author: GLENN A. NORTON, Presiding Judge.

text:
    Dirk A. DUNKLE, Respondent, v. Jacqueline S. DUNKLE, Appellant.
    No. ED 84272.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 29, 2005.

      Daniel R. Schramm, Chesterfield, MO, for appellant.
    Daniel P. Card II, Jefferson City, MO, for respondent.
    Michael C. Todt, St. Charles, MO, co-counsel for respondent.
   OPINION

GLENN A. NORTON, Presiding Judge.

Jacqueline Dunkle (“Mother”) appeals the trial court’s judgment of dissolution that awarded Dirk Dunkle (“Father”) sole physical and legal custody of their two children. We affirm in part and reverse in part.

I. BACKGROUND

Mother and Father were married and had two children. They lived with their children in the St. Louis area, but eventually they separated and Father filed a petition for dissolution. Before trial, the trial court entered two successive pendente lite (“PDL”) judgments that set forth shared custody arrangements, the first requiring Mother’s periods of custody to be supervised and the second allowing unsupervised custody. Father filed a motion to modify the second PDL judgment, indicating that he had already accepted a new job in Columbia, Missouri, that he planned to move there with the children in a few days and that he sought to modify the existing PDL judgment “so that visitation with [Mother] continues in accordance with the new location of the children’s residence.”

Three weeks later, which was about one month before trial, and by consent of the parties, the court entered an amended PDL judgment that gave Father custody of the children during the week, while Mother had custody on all but one weekend up until the time of trial. The judgment stated that “[t]he parties stipulate that this amended PDL judgment shall not be precedent in the trial of the dissolution. The court shall not consider this in making its decision relative to custody.”

The dissolution case was tried before a family court commissioner, who heard evidence from numerous witnesses including Mother, Father and the children’s guardian ad litem. According to the guardian, both parents were capable of exercising physical custody, but in light of Father’s move the guardian did not make a recommendation to the court regarding physical custody. The guardian generally expressed some concern about whether Father would be cooperative if given sole custody, given his move to Columbia and his position that joint legal custody was not appropriate. But the guardian also had reservations about Mother’s continuing need to properly take medication and be monitored. Both parties agree that Mother, who took primary responsibility for child care until the onset of her illness, suffers from bipolar personality disorder and must take certain medications regularly. The commissioner found that Mother’s disorder did not interfere with her parenting abilities and that Father’s attempts to portray her as mentally unbalanced were “pathetic.” There was also sharply disputed evidence regarding whether Mother had coached her daughter to make allegations of sexual abuse against the son of Father’s girlfriend.

The circuit court entered a judgment of dissolution confirming the commissioner’s findings on December 4, 2003. After noting that the issue of custody was “a close one,” the court awarded Father sole physical and legal custody of the children and gave Mother visitation on alternating weekends and holidays and for one-half of the summer. The court mailed notice of the judgment to the parties on December 8, 2003. On December 30, 2003, Mother filed a “Motion to Amend the Judgment or, in the Alternative, for a New Trial.” The court denied her motion on March 3, 2004, treating it as an untimely motion for rehearing under Rule 129.13(a) because it was not filed within 15 days of the court’s mailing. On March 12, 2004, Mother filed her notice of appeal.

II. DISCUSSION

A. Jurisdiction

Father moves to dismiss this appeal for lack of jurisdiction, arguing that Mother’s notice of appeal was untimely filed. We disagree. Whether this court has jurisdiction is a question of law that we review de novo. Bounds v. O’Brien, 134 S.W.3d 666, 670 (Mo.App. E.D.2004).

Under the normal civil procedure rules, a motion for new trial and a motion to amend the judgment are both considered “authorized after-trial motions,” which, if timely filed, extend a trial court’s control over its judgment from 30 days up to 90 days. See Puisis v. Puisis, 90 S.W.3d 169, 171-72 (Mo.App. E.D.2002) (citing Rule 78.06, Rule 81.05 and Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 393 n. 1 (Mo. banc 1993)). Rule 78.04, formerly Rule 73.01(a)(4)-(5) (1999), permits the filing of a motion for new trial or a motion to amend the judgment within 30 days after the judgment is entered. If filed within that time, the court has up to 90 days in which to rule on those motions, after which they are deemed overruled. Rule 78.06; Rule 81.05(a)(2).

But special rules exist for certain juvenile and family law matters tried before a family court commissioner, and these rules supersede all inconsistent statutes and court rules. Rule 129.01; Rule 129.02. In such cases, a party “may file a motion for rehearing by a judge of the court” within 15 days from when the court mailed notice of its judgment. Rule 129.13(a). The judge is then obligated to rule on the motion for rehearing promptly, otherwise it is deemed overruled after 45 days. Rule 129.13(b).

Here, Mother’s “Motion to Amend the Judgment or, in the Alternative, for a New Trial” was filed more than 15 days after the court mailed its notice of the judgment but less than 30 days after the judgment was entered. Father contends that Rule 78.04 only applies in cases heard before an Article V judge and that Rule 129.13 applies here because it is inconsistent with and therefore supersedes Rule 78.04 in its entirety. If Father is correct, then a motion seeking the relief authorized by Rule 78.04 would have no effect and Mother’s motion would be treated as an untimely motion for rehearing under Rule 129.13. There being no other basis for extending the time for appeal, the judgment would have become final 30 days after it was entered and her notice of appeal, which was filed more than ten days later, would be untimely. See Rule 75.01; Rule 81.05(a)(1); Rule 81.04(a). An untimely notice of appeal would require us to dismiss the appeal for lack of jurisdiction. Rogiers v. Boatmen’s Trust Co., 918 S.W.2d 285, 286 (Mo.App. E.D.1996).

Mother argues, on the other hand, that there is no inherent inconsistency between the “permissive right” to seek a rehearing under Rule 129.13 and the “alternative remedy” of asking the judge to amend the judgment or order a new trial under Rule 78.04. She contends, therefore, that her motion seeking an amended judgment or a new trial was timely filed and extended the court’s jurisdiction over the matter for up to 90 days. See Rule 78.04; Rule 81.05(a)(2). Since the court ruled on her motion within that time, the judgment became final upon the court’s ruling and her notice of appeal, which she filed within ten days of that ruling, would have been timely filed, giving this Court jurisdiction over the appeal. See Rule 81.05(a)(2)(B); Rule 81.04(a).

No court has squarely addressed the issue presented here: whether the deadlines applicable to motions for rehearing under Rule 129.13 are inconsistent with, and therefore supersede, the normal deadlines applicable to motions for new trial and other authorized after-trial motions under Rule 78.04, Rule 78.06 and Rule 81.05. Prior decisions, however, have implicitly found the two sets of rules to be inconsistent insofar as they relate to a motion for neio trial. We take this opportunity to expressly articulate the inconsistency that until now has only been implicitly recognized. Still, we find no inconsistency with respect to a motion to amend the judgment.

In Washington v. Washington, this Court used Rule 129.13, not Rule 78.04, to analyze a motion similar to the one here, finding it untimely. 18 S.W.3d 44, 45-46 (Mo.App. E.D.2000). Although the motion in that case was styled as a motion for new trial and the trial court purported to grant a new trial, on appeal this Court treated it as a motion for rehearing in order to be “[cjonsistent with Rule 129.” Id. at 45 n. 1. The motion had been filed more than 15 days after notice of the court’s original judgment was sent to the parties, so this Court found the motion untimely under Rule 129.13(a). Id. at 46. And even if the motion for rehearing had been timely filed, it would have been deemed overruled for all purposes once the court failed to rule on it within 45 days. Id. (citing Rule 129.13(b)).

The Court specifically did not reach the issue of whether the trial court could have granted a rehearing or new trial on its own motion within 30 days of the judgment under Rule 75.01. Washington, 18 S.W.3d at 46 n. 2. Nor did the opinion mention Rule 78.04, Rule 78.06, or Rule 81.05. But Washington implicitly found the two sets of rules to be at least somewhat inconsistent. Had the Court treated the motion in Washington as a motion for new trial under Rule 78.04, its analysis of the jurisdictional question would have been different because the motion was timely filed under that rule, and as a timely authorized after-trial motion it would have extended the trial court’s jurisdiction enough to allow the trial court to properly grant the “rehearing.” See Rule 81.05(a)(2). By expressly treating the motion as one for rehearing in. order to be “Consistent with Rule 129,” the Court implicitly recognized that the normal civil procedure rules are inconsistent with Rule 129.13 as to the filing of a motion for new trial. See id. at 45 n. 1.

We also find guidance in another case that applied the deadlines of Rule 129.13 instead of the normal civil procedure rules. See State ex rel. Harper v. Goeke, 12 S.W.3d 717, 718-20 (Mo.App. E.D.1999). In Harper, this Court treated a “Motion for Hearing Before Judge” as a motion for rehearing under Rule 129.13. Id. Although it appears that one of the parties had argued against treating the motion as one for new trial under Rule 73.01(a)(4) (1999), the predecessor to current Rule 78.04, the Court did not analyze that possibility. Id. at 718. The timeliness of the motion was not at issue in Harper because it was filed within 15 days of the trial court’s mailing, but this Court found that it was deemed to be overruled 45 days after it was filed. Id. at 719-20. At that time, the original judgment became final and appealable and the trial court lost jurisdiction to later enter an amended judgment. Id.

Like Washington, Harper suggests that the two sets of rules are inconsistent. If the motion in Harper had qualified as a motion for new trial under the normal rules of civil procedure, then the analysis would have been different because the Court would have had to rely on its alternate basis for holding that the trial court lacked jurisdiction to enter the amended judgment. Under Rule 81.05(a)(2), the motion would have constituted an authorized after-trial motion that extended the trial court’s jurisdiction beyond when it entered the amended judgment. The Court’s decision not to address whether the motion qualified as a motion for new trial lends further support to the notion that those rules are inconsistent with Rule 129.13.

In support of her argument that we have jurisdiction over this appeal, Mother primarily relies on Johnson v. Johnson, which applied both sets of deadlines in a case heard before a family court commissioner. 122 S.W.3d 613, 614 (Mo.App. E.D.2003). But Johnson did not address — nor implicitly recognize — any inconsistency between the normal civil procedure rules and Rule 129.13 because the notice of appeal was untimely under both sets of rules. See id. at 614-15. Mother also relies on Wilson v. Whitney, 81 S.W.3d 172 (Mo.App. S.D.2002). There, the court treated a motion for rehearing as a motion for new trial because the motion “alleged the trial court committed errors of fact or law.” Id. at 177-78. Without analyzing the motion under Rule 129.13, the court found the motion to be timely filed under Rule 78.04, thus allowing the trial court to enter a new judgment after further hearings. Id. at 177-78. But had the court analyzed the motion under Rule 129.13, it would have reached the same result because the motion was filed within 15 days of the trial court’s original judgment and the court ruled on the motion by within 45 days. See id. at 177; Rule 129.13. Unlike Washington and Harper, the analyses in Johnson and Wilson would have been the same under either set of rules, making it unnecessary for those courts to address the inconsistency between them. They provide no guidance on that issue.

Our conclusion that the two sets of rules are inconsistent is further supported by the notion that, despite different terminology, a motion for rehearing-is the functional equivalent of a motion for new trial. In the Interest of R.G., 885 S.W.2d 757, 765 (Mo.App. E.D.1994) (recognizing this functional equivalence in the context of a juvenile proceeding). Since both Rule 78.04 and Rule 129.13 address the deadlines applicable to these functionally equivalent motions, it would be inconsistent to apply both sets of rules at the same time to the same motion. Each set of rules uses a different starting point and a different period of time in order to determine whether a motion was timely filed, and each set of rules gives the trial court a different amount of time in which to rule on the motions.

Because of the inconsistency between these two sets of rules, the 15-day and 45-day deadlines on a motion for rehearing under Rule 129.13 supersede the 30-day and 90-day deadlines on a motion for new trial under Rule 78.04, Rule 78.06 and Rule 81.05(a)(2)(A). See Rule 129.02; Washington, 18 S.W.3d at 45-46; Harper, 12 S.W.3d at 718-20. Therefore, in a case tried before a family court commissioner under Rule 129, the applicable deadline for the filing of a motion for new trial or a motion for rehearing is 15 days from the court’s mailing, and such a motion is overruled by operation of law after 45 days. Rule 129.13. However, Rule 129.13 does not directly address a motion to amend the judgment.

The provisions of Rule 129 only supersede those statutes and other existing court rules to the extent that Rule 129 is “inconsistent therewith.” See Rule 129.02. Because a motion to amend the judgment is not mentioned anywhere in Rule 129, there can be no inconsistency between it and the normal civil procedure rules.

The Southern District has addressed a similar situation with respect to Rule 119.07, which applies in certain juvenile and family court proceedings. See Rule 110.01. Rule 119.07 permits the filing of a motion to amend or correct the judgment within ten days but is silent as to the filing of a motion for new trial. The court held that because the rule is silent on the filing of a motion for new trial, its ten-day limit on a motion to correct or amend the judgment does not prevent the filing of a motion for new trial within the 30-day timeframe of Rule 78.04. In the Interest of B.W.B., 73 S.W.3d 894, 895 (Mo.App. S.D.2002) (citing Rule 110.04 and In the Interest of A.K.L., 942 S.W.2d 953, 956 (Mo.App. S.D.1997)). Although Rule 129.13 presents the opposite scenario — it is silent on the filing of a motion to amend the judgment, but expressly limits the filing of a motion for rehearing — the same rationale applies. Because Rule 129.13 is silent as to a motion to amend the judgment, it does not supersede the normal civil procedure rules with respect to that type of motion. Thus, even in cases heard by a family court commissioner, unless Rule 119.07 applies, the parties have 30 days from the entry of the judgment in which to file a motion to amend the judgment.

Applying these principles to the facts of this case, we first consider the nature of Mother’s motion, which was styled as a “Motion to Amend the Judgment or, in the Alternative, for a New Trial.” Since the title of the motion is not dispositive, we must also consider its contents. See In re Marriage of Echessa, 74 S.W.3d at 804 n. 1; Miller v. Enyeart, 893 S.W.2d 901, 903 n. 1 (Mo.App. W.D.1995). In the motion, Mother alleges that several of the trial court’s findings and conclusions were erroneous and that the judgment entered does not conform to the evidence submitted at trial. While she does not mention a specific rule anywhere in the motion, the title of the motion and its contents invoke the relief authorized by Rule 78.04 — a new trial or an amended judgment. Therefore, we will treat the motion both as a motion for new trial and as a motion to amend the judgment. See Hart, 152 S.W.3d at 425-26 (finding that a single motion qualified as both a motion to amend the judgment and a motion for new trial).

To the extent that the motion sought a new trial or a rehearing before the court, under Rule 129.13(a) it was due within 15 days from when the court mailed notice of its judgment. Since the motion was more than 15 days after the court’s mailing, it was untimely. Were there no other basis for extending the time for appeal, the judgment would have become final 30 days after it was entered and Mother’s notice of appeal, which was filed more than ten days later, would be untimely. See Rule 75.01; Rule 81.05(a)(1); Rule 81.04(a).

But to the extent that the motion sought to amend the judgment, it was timely under Rule 78.04 because it was filed less than 30 days after the trial court entered its judgment. As a timely authorized after-trial motion, it extended the trial court’s jurisdiction for up to 90 days. See Rule 81.05(a)(2). Within that time, the trial court denied her motion, and given that there were no other motions to rule on, the judgment became final at that time. See Rule 81.05(a)(2)(B). Therefore, Mother’s notice of appeal, filed less than ten days later, was timely. See Rule 81.04(a).

Father’s motion to dismiss for lack of jurisdiction is denied.

B. Child Custody & Visitation

Mother’s three points on appeal challenge the trial court’s determinations regarding physical custody, legal custody and visitation. Our review of this judgment of dissolution is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must affirm the trial court’s custody determination unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Abbott v. Perez, 140 S.W.3d 283, 290 (Mo.App. E.D.2004).

Substantial evidence means “competent evidence from which the trial court could reasonably decide the case.” Bauer v. Bauer, 38 S.W.3d 449, 455 (Mo.App. W.D.2001). We defer to the trial court’s superior ability to assess the credibility of witnesses and view all facts and reasonable inferences in a light most favorable to its decision. Abbott, 140 S.W.3d at 290. With respect to custody and visitation issues, the trial court has broad discretion, and we give even greater deference to these decisions than in other civil cases. Id. at 290-91. We do not reweigh the evidence, even if the evidence could have supported another conclusion. See St. Lawrence v. St. Lawrence, 109 S.W.3d 225, 226 (Mo.App. E.D.2003). We presume that the court awarded custody in accordance with the children’s best interests after reviewing all of the evidence and we will reverse its decision only if we are firmly convinced that the welfare and best interests of the children require otherwise. Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App. E.D.2004).

The trial court’s initial child custody determination must be made in accordance with the best interests of the child after considering all relevant factors, including eight specific statutory factors. See section 452.375.2(1)-(8). The court must also consider several different custodial arrangements under section 452.375.5. When the parties do not agree on a custodial arrangement, the trial court’s judgment must include a written finding, based on the public policy stated in section 452.375.4 and each of the factors listed in section 452.375.2(1)-(8), “detailing the specific relevant factors that made a particular arrangement in the best interest of the child.” Section 452.375.6 (emphasis added); see also Cunningham v. Cunningham, 143 S.W.3d 647, 649-50 (Mo.App. E.D.2004). Additionally, if the trial court rejects a proposed custodial arrangement, it must include a written finding in the judgment “detailing the specific relevant factors resulting in the rejection of such arrangement.” Section 452.375.6 (emphasis added); see also Cunningham, 143 S.W.3d 647 at 650. The trial court is not, however, required “to do a complete ‘laundry list’ of the statutory factors” under section 452.375.2(1)-(8). Foeste v. Foeste, 122 S.W.3d 698, 701 (Mo.App. E.D.2003). Instead, it must only address in detail those factors that it considered particularly relevant to its custody determination. Id.; Speer v. Colon, 155 S.W.3d 60, 62 (Mo. banc 2005).

1. Physical Custody

Mother challenges the trial court’s award of sole physical custody to Father. She acknowledges that the court addressed the statutory factors relevant to its custody decision under section 452.375.2(1)-(8), but argues that the court misapplied those factors because its findings were inconsistent, overlooked important issues, or lacked evidentiary support. She also argues that the court failed to properly address Father’s relocation to Columbia. Thus, she alleges that the court abused its discretion, that it misapplied the law and that its decision was not supported by substantial evidence for a variety of reasons, the cumulative effect of which requires reversal in this “very close case.” We disagree.

(a) Relocation

In its judgment, the trial court’s only finding with respect to relocation was its recognition that Mother wanted the children to reside with her in St. Louis County, while Father wanted them to reside with him in Columbia. Mother argues that the court erred by failing to make specific findings under sections 452.375.2(7) and 452.377.9 with respect to Father’s relocation to Columbia, and by doing so, contravened the parties’ stipulation as recognized in the last PDL judgment.

(i) Effect of the Parties’ Stipulation and the Last PDL Judgment

Mother argues that the court improperly acted “in contravention of the parties’ stipulation” and the last PDL judgment by considering Mother’s consent to Father temporarily having primary custody of the children in Columbia shortly before trial. She argues that because she only consented on the condition that it would not be precedent in their dissolution case and the trial court would not consider it in making its final custody decision, the trial court still had an obligation to address the statutory relocation issues. Because it did not do so, she argues that the court completely disregarded the guardian’s concerns about whether Father’s move was made in good faith.

We find that the judgment does not contravene the last PDL judgment, which memorialized the parties’ stipulation that the temporary custody arrangements it set forth would not be considered precedential with respect to the final custody decision. While the court found that Mother’s willingness to allow Father to care for the children in Columbia “undercuts her claim that [Father] cannot adequately care for the children on his own,” it also found that Father’s willingness to allow Mother unsupervised custody on weekends “undercuts his claim that [Mother] is too unstable to have custody of the children.” These findings were made in the context of considering both parents’ capability to care for the children; they do not support Mother’s assertion that the court charged her with adverse consequences as a result of her consent. As discussed below, the trial court fulfilled any further obligation it had to address Father’s relocation.

(ii) Section 452.375.2(7)

In making its initial best interests determination, the trial court must consider whether either parent intends to relocate the principal residence of the children. Section 452.375.2(7). Here, the court’s finding suggests that this factor did not favor either party. That conclusion is supported by the evidence. At the time of the trial, the children were living with Father in Columbia under a temporary pretrial custody arrangement to which Mother had consented. Whether the trial court awarded primary physical custody to Mother or Father, the children’s principal residence, which had previously been their Father’s home in O’Fallon, would have to change. Their new residence would either be with Father in Columbia or with Mother elsewhere in the St. Louis area. There was no evidence that either party planned to relocate again. Since relocation was not particularly relevant to the trial court’s custody determination, detailed analysis of this factor was not required. See Speer, 155 S.W.3d at 62. Under these circumstances, the trial court properly applied the law, and its finding with respect to this factor was supported by the evidence.

(iii) Section 452.377

Section 452.377 sets forth substantive standards that guide the trial court’s resolution of relocation disputes. See section 452.377.9-.10; Stowe v. Spence, 41 S.W.3d 468, 469 (Mo. banc 2001). Under section 452.377, courts must find that relocation “(1) is in the best interests of the child, (2) is made in good faith, and (3) if ordered, complies with the requirements of subsection 10.” Stowe, 41 S.W.3d at 469. Mother argues that the court’s failure to make these findings was erroneous.

Mother fails to recognize the different standards applicable to initial custody determinations and custody modifications. See DeFreece v. DeFreece, 69 S.W.3d 109, 113-14 (Mo.App. W.D.2002). Where the court, as here, makes its initial custody determination in accordance with the best interest factors of section 452.375.2, it is not required to make any additional findings under section 452.377 and Stowe with respect to relocation. Id. at 114; see also Brown v. Shannahan, 141 S.W.3d 77, 79 (Mo.App. E.D.2004) (finding that “[s]ection 452.377 provides for modification of existing custody or visitation arrangements” and did not apply when mother relocated with child prior to an initial determination of paternity and custody rights) (emphasis in original); Abbott, 140 S.W.3d at 291-93 (allowing relocation of children in initial dissolution case based on factors in section 452.375.2 without analyzing child relocation statute).

(b) Other Statutory Best Interest Factors

In addition to contesting the trial court’s findings with respect to Father’s relocation, Mother also challenges the court’s findings with respect to the other best interest factors in section 452.375.2, claiming that each of its findings lacked eviden-tiary support, was somehow inconsistent, or overlooked important issues. We disagree.

The trial court rejected Mother’s proposed parenting plan, in which she sought sole physical custody and joint legal custody. Therefore, while the court was required to make detailed findings with respect to each of the statutory factors it deemed particularly relevant, which it did, it did not need to discuss every one of the factors. See Speer, 155 S.W.3d at 62. The court mentioned each of the factors in section 452.375.2(1)-(8), providing additional detail for the factors that were particularly relevant to its decision, and concluded that its award of sole legal and physical custody to Father, subject to Mother’s visitation rights, was in the children’s best interests. The court further listed reasons why this custodial arrangement was more appropriate than any of the others in section 452.375.5(1)-(5).

Before analyzing Mother’s claims of error with respect to the remaining best interest factors, we note that when making the findings required by section 452.375.6, the trial court need not give greater weight to certain factors than to others. See In re Marriage of Cluck, 121 S.W.3d 271, 273 (Mo.App. S.D.2003). In other words, there is no specific formula for how a trial court must weigh the non-exclusive list of best interest factors under section 452.375.2 when making its final custody determination. See Ludwig v. Ludwig, 126 S.W.3d 466, 477 (Mo.App. W.D.2004) (there is no formula for how to weigh the factors under section 452.330.1). Instead, after properly considering those factors, the trial court has broad discretion to determine what arrangement is in the best interests of the children under the particular facts of each case. See Abbott, 140 S.W.3d at 293.

Here, the trial court’s most detailed findings relate to Mother’s mental health. The court was required to consider the “mental and physical health of all individuals involved, including any history of abuse.” Section 452.375.2(6). The court found “overwhelming evidence” that Mother’s mental illness does not interfere with her ability to take care of the children and function as a parent. Nevertheless, the court stated that its “primary area of concern” was that Mother’s caretaking ability hinged so heavily on her remaining under a doctor’s care and being monitored to ensure compliance with her prescribed medications. Mother argues that the court placed undue emphasis upon this concern, which she characterizes as speculative, claiming there was no evidence that she had failed to take her medication or see her physician. But there was evidence of such failure in the past. The psychologist who evaluated Mother testified that Mother could be a safety risk to her children if she were not on her medication, which she had quit taking at least once before. In order to ensure that the medication was being taken and was functioning properly, the psychologist stated that Mother would need to consult with a professional health expert at least every two weeks. The trial court’s concern was not speculative and was supported by substantial evidence. Further, the court was not required to wait and see if its concerns would become a reality. This factor strongly supports the court’s decision to give Father custody, and it was within the trial court’s discretion to give greater weight to this factor than to others. See In re Marriage of Cluck, 121 S.W.3d at 273.

The trial court also found that an additional, non-statutory factor supported giving Father custody, namely, finding Mother’s conduct in reporting the possible sexual abuse of her daughter to be “suspect.” Mother argues that there was no evidence to support the court’s finding that Mother had done anything improper in reporting information she had received about the potential sexual abuse of her daughter and that this finding was prejudicial to the court’s final decision. She points out that the social worker who testified about finding no evidence of abuse admitted during cross-examination that Mother had simply reported what the daughter told her grandmother about the alleged abuse. After hearing such evidence, the guardian ad litem opined that Mother did nothing improper. But the trial court was not bound by the guardian’s assessment. See In re Marriage of Horinek, 41 S.W.3d 897, 906 (Mo.App. S.D.2001). Further, there was evidence that Mother had improperly attempted to “coach” her daughter into telling the social worker that Father’s girlfriend’s seven-year-old son had tried to insert a stick inside her daughter. It was within the trial court’s discretion to believe that Mother’s conduct was “suspect,” and that further supported its decision to give Father sole physical custody.

Although the trial court initially found that there was no credible evidence that either party was less likely to allow meaningful contact with the other parent, its later findings seem to acknowledge that Father might not be the more cooperative parent. See section 452.375.2(4). Mother argues that those findings were inconsistent. The court also found no credible evidence that the children do not interact well with both parents, but it did not address the children’s relationships with others. See section 452.375.2(3) (relating to the children’s interactions and interrelationships with their parents and others who significantly affect their best interests). Mother argues that this finding was conclusory and overlooked evidence about her superior support system, given that she has relatives who live in the St. Louis area while Father has none in Columbia. But even if Mother is correct that these findings were somewhat inconsistent and incomplete, at best these factors would have supported giving Mother physical custody, and we would still not be convinced that granting Father sole physical custody was an abuse of the trial court’s broad discretion in light of its serious and substantiated concerns about Mother’s continuing mental health needs.

The trial court appears to have found that the remaining statutory factors were neutral with respect to physical custody, favoring neither party. As to the wishes of the parents and their proposed parenting plans, see section 452.375.2(1), the court found that Mother had not submitted a proposed parenting plan and that she sought sole legal custody. Father concedes that these findings were erroneous, since Mother had in fact submitted a proposed parenting plan in which she sought joint legal custody. Although this finding was not supported by the evidence, the trial court was clearly aware that Mother and Father both sought sole physical custody. Because the parents had opposing wishes, this factor must not have weighed in favor of either party, and a review of Mother’s parenting plan would not have altered the trial court’s decision insofar’ as it relates to physical custody. Whether this error may have affected the court’s award of legal custody is addressed in subsection II.B.2., infra.

The trial court also considered the children’s needs for a meaningful relationship with both parents, as well as the parents’ ability and willingness to perform parental functions, as required by section 452.375.2(2), and found that the “children are entitled to a frequent, continuing and meaningful relationship with both parents.” Other findings indicate that the court agreed with the guardian ad litem that both Father and Mother are capable of caring for their children. Mother characterizes the court’s findings as conclusory and argues that the trial court should have addressed how its decision would achieve such a relationship given that she has no decision-making authority and only limited visitation. But the court’s findings simply suggest that this factor favored neither party, and therefore was not particularly relevant to the trial court’s ultimate custody determination. Thus, the court was not required to perform a detailed analysis with respect to this factor. See Speer, 155 S.W.3d at 62. Likewise, the court found “no credible evidence that the parties’ children are not well-adjusted in either parent’s home.” See section 452.375.2(5) (children’s adjustment to their home, school and community). Mother argues that the court never addressed the children’s adjustment to their school and community. But the trial court need not be so specific, since this finding suggests that this factor did not favor either parent and was not, therefore, particularly relevant to its decision. See Speer, 155 S.W.3d at 62.

The trial court has broad discretion in making child custody decisions, and we reverse its decision only if we are firmly convinced that the best interests of the children require otherwise. See Abbott, 140 S.W.3d at 293. The judgment suggests that most of the factors did not clearly favor either party and that joint physical custody was inappropriate given the distance between the parties’ residences. In light of the trial court’s high degree of concern that Mother might fail to take her medication and thereby pose risks to the safety of the children, and its questions about the propriety of Mother’s actions surrounding the reported abuse of her daughter, we are not firmly convinced that it was inappropriate to give Father sole physical custody. Even if some of the factors would have supported giving physical custody to Mother, it is not our role to reweigh the evidence, especially when the trial court considered this a close case. See St. Lawrence, 109 S.W.3d at 226 (refusing to reweigh the evidence with respect to a child’s best interests). The trial court’s findings sufficiently complied with section 452.375.6. With the exception of an error relating to the first factor that was inconsequential with respect to physical custody, its findings were supported by substantial evidence. The trial court neither misapplied the law nor abused its broad discretion in making its physical custody determination.

Point denied.

2. Legal Custody

In her second point on appeal, Mother challenges the trial court’s award of sole legal custody to Father. The court found that an award of joint legal custody would be inappropriate because of the distance between Mother and Father and their inability “to develop a written joint legal custody parenting plan.” The court stated that Mother “will be too far away to be involved in the children’s school and extra-curricular activities, and, as a practical matter, [Father] will have to make all of the day-to-day decisions concerning the children’s care.”

Mother argues that the trial court misapplied the standards governing custody decisions under section 452.375.4-.5 and that its decision to deny joint custody was an abuse of discretion and was not supported by substantial evidence. Specifically, Mother argues that the court failed to realize that Mother sought joint legal custody and that she had submitted a parenting plan, that such error was not harmless in this close case, and that she would be able to participate in joint decisions despite the distance between her and Father.

The legislature has expressed a public policy in favor of allowing children to have “frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage.” Section 452.375.4. This has been interpreted as a preference for joint legal custody. See, e.g. Meyer v. Block, 123 S.W.3d 316, 324 (Mo.App. W.D.2003) (stating that “joint legal custody is favored on public policy grounds”); Brown, 141 S.W.3d at 80 (noting that the “[preference for joint custody” is not meant “to induce parents to find common ground”). To the extent that there is a preference in favor of joint legal custody, it only applies when both parents are willing and able to share the rights and responsibilities related to raising their children. McCauley v. Schenkel, 977 S.W.2d 45, 51 (Mo.App. E.D.1998). “There is no preference for joint custody unless, in the given circumstances, it is in the best interests of the child.” Id. But joint legal custody cannot be denied solely because one parent opposes it. Luther v. Vogel, 863 S.W.2d 902, 904 (Mo.App. E.D.1993).

It is well established that in deciding whether joint legal custody is in the children’s best interests, two particularly important considerations for the trial court are whether the parents share “[a] commonality of beliefs concerning parental decisions” and whether they have the “ability to function as a parental unit in making those decisions.” In re Marriage of M.A., 149 S.W.3d 562, 569 (Mo.App. E.D.2004). “This commonality of beliefs is ‘imperative to the best interest of the child in a joint custody arrangement.’ ” Id. (quoting Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991)).

For the following reasons, we find that the trial court’s award of sole legal custody to Father was erroneous. First, as indicated above, the court erroneously found that Mother failed to submit a parenting plan and that she sought sole legal custody, when in fact she had submitted a parenting plan and sought joint legal custody. Although there was some indication in the transcript that the family court commissioner knew that Mother had submitted a parenting plan, we cannot say that the trial court’s error in finding to the contrary was harmless. If, as the judgment indicated, neither parent sought joint legal custody, that fact would support a conclusion that the parties could not make joint decisions with respect to their children. This may have been part of the trial court’s rationale, and since Mother actually sought joint legal custody, we are not convinced that the trial court adequately considered that possibility.

Additionally, the trial court made absolutely no findings that address whether Mother and Father share common beliefs or whether they are able to make joint decisions regarding their children. While written findings with respect to these two considerations may not be required, their absence supports our conclusion that the court failed to adequately consider joint legal custody. This is especially true given the trial court’s misplaced focus on the relatively modest geographical distance between the parties in this case. An award of “joint legal custody” involves sharing the right, responsibility and authority to make decisions about important events in the children’s fives, such as their health, education and welfare. See section 452.375.1(2); Reisinger v. Reisinger, 125 S.W.3d 879, 884 (Mo.App. E.D.2004). Joint legal custody is not necessarily inappropriate merely because one parent lives in a different city. Although Father argues that the court properly considered the distance between Columbia and the St. Louis area in refusing to award joint legal custody, given the numerous possible methods of communication in today’s society, the parents’ ability to confer with each other and exercise such rights is not totally dependent on their geographical proximity. Indeed, courts in this state have approved joint legal custody awards even though parents were separated by much greater distances than the distance between Mother and Father in this case. See, e.g. Reisinger, 125 S.W.3d at 884-85 (affirming award of joint legal custody even though mother had relocated with child to New Mexico); DeFreece, 69 S.W.3d at 111-16 (affirming award of joint legal custody even though child’s primary residence was with mother in Iowa, although the appellant did not challenge the award of joint legal custody).

We reverse the trial court’s award of sole legal custody to Father and remand for reconsideration of whether joint legal custody is appropriate in light of the factors relevant to that decision.

3. Summer Visitation

Mother’s final claim of error challenges the amount of visitation the trial court awarded to Mother during the summer. The trial court awarded visitation to Mother on alternating weekends and holidays during the school year and for one-half of the summer, permitting the parties to deviate from its detailed schedule anytime they agreed to do so. Absent such agreement, on every other weekend, Mother’s visitation period would begin at 6:00 p.m. on Friday and end at 6:00 p.m. on Sunday. The trial court set up a detailed, alternating holiday schedule, which took into account probable school holidays and three-day weekends, whereby Mother would get certain holidays in odd-numbered years and Father would get those same holidays in even-numbered years. Mother is entitled to visitation for exactly one-half of the summer under a detailed scheme of alternating two-week periods for each parent. Mother is responsible for transporting the children to her residence during her visitation periods, and Father is responsible for picking them up once her visitation period is over.

Mother does not challenge the weekend or holiday arrangements, but instead argues that she should get longer periods of visitation with her children during the summer months because she was given no regularly scheduled visitation from Monday through Thursday of each week. She contends that the current arrangement violates the public policy in section 452.375.4 of providing her with frequent, continuing and meaningful contact with her children. We disagree.

The fact that a visitation schedule does not provide a distant parent and child with visitation of the same frequency or duration as may have been feasible when they were located nearby does not constitute a basis for reversal. Lavalle v. Lavalle, 11 S.W.3d 640, 648 (Mo.App. E.D.1999); Maher v. Maher, 951 S.W.2d 669, 676 (Mo.App. E.D.1997). Mother cites McElroy v. McElroy, in which this Court instructed the trial court to consider “the distances between the parties and the time spent traveling from one parent to the other, the opportunity for visitation posed by the children’s extended school breaks and three-day weekends, as well as the children’s weekend activities in developing the new schedule.” 910 S.W.2d 798, 805 (Mo.App. E.D.1995). But in this case, the trial court’s parenting plan took into account each of those items.

Point denied.

III. CONCLUSION

The judgment is reversed for reconsideration of whether joint legal custody is appropriate, and in all other respects it is affirmed.

KATHIANNE KNAUP CRANE, J. and CLIFFORD H. AHRENS, J., concurring.

      . Unless otherwise indicated, all rule references are to the Missouri Court Rules (2003) and statutory references are to RSMo 2000.

      . The court further stated that even if the motion had been timely filed, under Rule 129.13(b) it was overruled by operation of law 45 days after it was filed.

      .A rehearing before the commissioner can also be obtained, either upon a party’s request or upon the judge’s own motion. Rule 129.11.

      . The court's original judgment was entered February 11, 1999. Washington, 18 S.W.3d at 45. Since the 30th day after the judgment was Saturday, March 13, 1999, the motion filed that following Monday, March 15, 1999, would have been timely under Rule 78.04. See id.; Rule 44.01(a).

      . The trial court purported to grant a "rehearing” on June 7, 1999, which was within 90 days of the motion filed on March 15, 1999. See id. at 45.

      . This Court gave two reasons for finding that the trial court lacked jurisdiction to enter an amended judgment. Harper, 12 S.W.3d at 719-20. First, the motion was overruled by virtue of Rule 129.13(b) on April 25, 1999, 45 days after its filing on March 11, 1999. Id. at 719-20. Second, a notice of appeal had been filed on May 5, 1999, in response to the trial court's original judgment, thereby cutting off the trial court’s jurisdiction to perform anything except ministerial functions. Id. at 720. Therefore, the trial court lacked jurisdiction to later enter its amended judgment on May 21, 1999, and this Court set aside that amended judgment via an order in prohibition. Id. at 718-20.

      .If the Court had used the normal civil procedure rules, the amended judgment of May 21, 1999 was entered well before June 9, 1999, the 90th day after the motion was filed. See id; Rule 81.05(a)(2).

      . In Johnson, this Court analyzed two different motions, one filed by each party, under both sets of rules and found them to have been either untimely filed or deemed overruled more than ten days before the notice of appeal was filed. Johnson, 122 S.W.3d at 614-15. Within 15 days of the original judgment, the appellant filed a motion for rehearing before a judge under section 487.030.2, or in the alternative, a motion for new trial under Rule 78.04. Id. at 614. Although the motion actually invoked section 487.030.2, the Court acknowledged that the analysis under Rule 129.13 would have been the same. Id. at 614 n. 3. More than 30 days after the original judgment was entered, the respondent filed a similar motion, which the trial court purported to deny in two later amended judgments. Id. at 614 — 15.
      This Court analyzed these two motions using both sets of deadlines. Id. Treated as a motion for rehearing, appellant's motion would be deemed denied 45 days after it was filed based on section 487.030.2 and Rule 129.13; treated as a motion for new trial, that motion would be deemed denied 90 days after it was filed based on Rule 78.06 and Rule 81.05(a). Id. at 614. Treated as a motion for rehearing, respondent’s motion would be deemed denied 45 days after it was filed; treated as a motion for new trial, that motion would be deemed untimely based on Rule 78.04. Id. at 615. A third motion, one to disqualify the judge, was not an authorized after-trial motion. Id. at 614-15. Therefore, even with the benefit of the latest possible date at which the original judgment became final and appealable, the notice of appeal was untimely because it was filed more than ten days afterward, and the amended judgments were "a legal nullity.” Id. at 615.

      . Other cases have also treated these motions as interchangeable. See In re Marriage of Echessa, 74 S.W.3d 802, 804 n. 1 (Mo.App. S.D.2002) (treating a motion for rehearing following a judgment of dissolution as a motion for new trial); Farmers State Bank v. Place-Wiederholt Chevrolet-Oldsmobile, Inc., 747 S.W.2d 170, 172 (Mo.App. W.D.1988) (treating a motion for rehearing as a motion for new trial in a court-tried case).

      . Mother also points out that the language of Rule 129.13(a) — “a party ... may file a motion for rehearing by a judge” — is permissive. But this permissive language merely indicates that the filing of a motion for rehearing is not a mandatory requirement; it does not suggest that Rule 129.13 was intended to create a new after-trial remedy that should be analyzed separately from a motion for new trial.

      . "Rules 110 through 128 shall govern practice and procedure in the juvenile and family courts under sections 210.125, 210.160, 210.166, 210.700 to 210.760, RSMo, and chapter 211, RSMo.” Rule 110.01.

      . We acknowledge that there is support for the notion that Mother’s failure to specifically rely on Rule 78.04 “is sufficient, in itself, to deny h[er] the benefits of that rule.” Koppenaal v. Director of Revenue, 987 S.W.2d 446, 451 (Mo.App. W.D.1999) (citing Rule 73.01(a)(5) (1998), the former rule relating to a motion to amend the judgment); see also Wooten v. Williams, 827 S.W.2d 282, 284 n. 2 (Mo.App. E.D.1992); contra Blue Ridge Bank and Trust Co. v. Hart, 152 S.W.3d 420, 425 (Mo.App. W.D.2005). Since such denial is not required, we decline to do so here.

      . Neither party contends that this motion cannot or should not be treated as a motion to amend the judgment under Rule 78.04, and we see no reason why it should not be so treated. This is especially true where, as here, doing so gives us jurisdiction to review this case on the merits, which we have a duty to undertake "in every instance that [we] may properly do so.” Wills v. Whitlock, 139 S.W.3d 643, 658 (Mo.App. W.D.2004) (quoting City of Lake Winnebago v. Sharp, 652 S.W.2d 118, 122 (Mo. banc 1983)); see also Hoenig v. Corrigan Bros., Inc., 983 S.W.2d 526, 528 (Mo.App. E.D.1998) ("Rules should be liberally construed in favor of permitting appeals to proceed.”).

        . "[I]t is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child” unless the court makes specific findings that such contact is not in the child’s best interest. Section 452.375.4. Also as a matter of public policy, parents are encouraged to participate in decisions affecting their children and to use alternative dispute resolution. Id.

      . The Missouri Supreme Court also noted that under the new Rule 78.07(c) (2005), " '[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.’ ” Speer, 155 S.W.3d at 62 n. 9.

      . The term "principal residence” is not defined, but for purposes of sections 452.375 and 452.377, the term "relocation” refers to "a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence.” Section 452.377.1.

      . Nor was the trial court required to address the notice provisions of section 452.377, which require 60 days advance notice from a custodial parent who seeks to relocate the principal residence of a child. See section 452.377.2. First, it appears that section 452.377 does not apply to an initial custody determination at all, even if one parent relocates before that determination is made. See DeFreece, 69 S.W.3d at 114; Shannahan, 141 S.W.3d at 79; Abbott, 140 S.W.3d at 291-93. Second, even if the statute’s notification requirements did apply to this situation, under these circumstances Mother waived any argument that Father failed to provide adequate notice of his intent to relocate to Columbia. Although Mother refers to the notification requirements in her brief, her point on appeal, which specifically cites section 452.377.9 but not section 452.377.2, does not allege that Father failed to abide by the notice requirements, and we find no evidence in the record that she made this argument to the trial court. See Siegfried v. Remaklus, 95 S.W.3d 107, 112 (Mo.App. E.D.2001) (argument regarding faulty notice under section 452.377 not preserved where not encompassed in point relied on and not challenged in the trial court). Third, while she asserts in her brief that Father failed to notify her about the relocation according to the statute, she does not explain how such failure should have affected the trial court’s ultimate custody decision. Fourth, Mother never sought to prevent the relocation. See Weaver v. Kelling, 53 S.W.3d 610, 616 (Mo.App. W.D.2001) (“The purpose of the notice provision of section 452.377 is to give a party entitled to custody or visitation of the child the opportunity to challenge the relocation by filing a motion seeking an order to prevent the relocation.”).

      . If there is evidence as to the children’s wishes regarding custody, the court must consider that as well. See section 452.375.2(8). The trial court found, and Mother concedes, that there was no credible evidence as to the minor children's wishes and that the guardian made no custody recommendation. But Mother argues that the court overlooked some of the guardian’s general opinions and concerns. Even if those opinions were entirely favorable to Mother — which the record belies — the court was not bound by the guardian’s assessment. See In re Marriage of Horinek, 41 S.W.3d at 906.


source: Caselaw Access Project

author: NANNETTE A. BAKER, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Raymond BROOKS, Appellant.
    No. ED 84348.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 29, 2005.

      S. Kristina Starke, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Raymond Brooks (“Defendant”) appeals from a judgment of the Circuit Court of the City of St. Louis entered after a jury convicted him of burglary in the second degree, felony stealing over $500, and felony resisting arrest. He was acquitted of one count of possession of burglar’s tools. On appeal, Defendant alleges that the trial court erred in: (1) denying Defendant’s motion for judgment of acquittal as to burglary in the second degree because the evidence was insufficient to sustain the conviction; (2) denying Defendant’s motion for judgment of acquittal as to felony stealing because the evidence was insufficient to sustain the conviction; and (3) denying Defendant’s motion for judgment of acquittal as to felony resisting arrest because the evidence was insufficient to sustain the conviction. We affirm in part and reverse in part.

Background

Around 4:00 a.m. on February 10, 2003, witnesses saw two men wearing hooded shirts enter a “Cigarettes for Less” store through a broken window. The men exited the store and threw boxes of cigarettes into a red pickup truck with a silver metal toolbox. The truck went east on Chippewa. The witnesses called 911, and Officer Robert Farrow (“Officer Farrow”) responded. As Officer Farrow traveled west on Chippewa toward the store, he saw a truck matching the description of the burglars’ truck traveling east on Chippewa.

Officer Farrow made a U turn and, as he waited for a red light to change, he activated the lights on his patrol car. The truck drove through the red light when Officer Farrow activated his car’s lights. He continued to follow the pickup truck and momentarily lost sight of it. He turned left onto Tedmar and found the truck he had been following abandoned on the front lawn of a residence. There were fresh footprints in the snow directly outside the truck. In the bed of the pickup Officer Farrow found a trash bag, cartons of cigarettes, one hundred and twenty-six lighters and a roofer’s hammer mounted on a piece of pipe. In the cab he found a black jacket and a knit cap.

The police took Brian Mueller, a witness who saw the burglar’s pickup truck outside the “Cigarettes for Less” store, to the abandoned truck Officer Farrow had pursued. Mr. Mueller said he was certain that the truck was the same one he had seen in the parking lot outside the store. Officer Farrow called in a canine officer to assist in searching for the occupants of the truck. Officer James Siebum (“Officer Siebum”) and his police dog, Canine Officer Glis, (“Glis”) responded. Officer Farrow stayed with the abandoned pickup during the entire incident.

Officer Siebum learned that there were footprints that suddenly stopped near vehicles parked in a driveway down the street. Glis pulled on his lead and tried to get under the vehicles. Officer Siebum announced twice that he was an officer and that he had a dog. He commanded Glis to “find him” and Glis went underneath a truck and pulled out Wilbert Hunter (“Hunter”) who had been hiding under the axle of the truck. It is unclear from the record whether Hunter was found under the truck used in the burglary or under a different truck.

Officer Siebum and Glis then went to the abandoned truck on Tedmar that had been driven by the burglars. Officer Siebum discovered footprints leading from the driver’s side of the vehicle through several yards. Glis smelled the area around the driver’s side door and driver’s seat and followed the scent alongside the footprints. Glis followed the scent through yards and beyond some footprints. Officer Siebum and Glis then backtracked and saw that the footprints had veered to the right and stopped under a shed window that was missing the frame and glass. Glis put his paws on the window and started barking. Officer Siebum believed the other burglary suspect was inside the shed so he announced he was a canine officer and had a dog. He said that if the suspect did not come out he would release the dog. When there was no response, Officer Siebum released Glis and the dog jumped through the window. Glis apprehended Defendant by biting him on the hand until Officer Siebum came inside the shed and removed Glis.

Other officers responded to the “Cigarettes for Less” store where the owner told the police that boxes of cigarettes were missing. There was a trashcan near the store that had the plastic liner removed. Sixty cartons of cigarettes were returned to the owner intact. Some cartons were returned damaged and some were not returned at all because they had flown out of the back of the truck as it was driven away. According to the evidence at trial, the value of the cigarettes returned was $1,920.00 and the value of the lighters was $348.00.

At the close of the evidence and following arguments of counsel, the jury found Defendant guilty of second degree burglary (Count I), stealing (Count II), and resisting arrest (Count III). The jury found Defendant not guilty of possessing burglar’s tools (Count IV). On March 19, 2004, appellant was sentenced as a persistent offender to concurrent sentences of eight years for second degree burglary, eight years for stealing and seven years for resisting arrest. This appeal follows.

On appeal, Defendant contends that the trial court erred in denying Defendant’s motion for judgment of acquittal as to Counts I, II and III and submitting Counts I, II and III to the jury because the evidence was insufficient to support a conviction of burglary in the second degree, stealing over $500 and felony resisting arrest. Defendant also asserts that the trial court erred in allowing certain remarks made by the prosecutor during final summation.

Standard of Review for Sufficiency of Evidence

The standard for reviewing claims challenging the sufficiency of evidence is well-established. State v. Clay, 975 S.W.2d 121, 139 (Mo.1998). On review, the Court accepts as trae all of the evidence favorable to the State, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. Id. In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. In considering whether the evidence is sufficient to support the verdict, this Court considers whether a reasonable juror could find each element of a crime beyond a reasonable doubt. Id. When reviewing for sufficiency of the evidence, circumstantial evidence is afforded the same weight as direct evidence. State v. Hutchison, 957 S.W.2d 757, 767 (Mo. banc 1997). If there actually is insufficient evidence to support a guilty verdict, then a directed verdict of acquittal is authorized. State v. Holloway, 992 S.W.2d 886, 889 (Mo.App. S.D.1999).

Discussion

Count I: Burglary in the Second Degree

In his first point on appeal, Defendant contends that the trial court erred in denying Defendant’s motion for judgment of acquittal at the close of the evidence and submitting the count to the jury because the State’s evidence was insufficient to prove that Defendant committed the crime of burglary in the second degree. He maintains that there was no evidence that Defendant was ever inside the Cigarettes for Less store or that he conspired with Mr. Hunter to commit the charged crime. We find no error and affirm.

After reviewing all of the evidence presented at trial, this court has determined that there was sufficient evidence for a reasonable juror to find each element of the crime of burglary in the second degree. The evidence connecting the pickup track to the burglary was substantial. A witness to the burglary identified the truck as the truck used in the burglary. An officer pursued a truck matching the description and traveling in the same direction as the truck used in the burglary. The officer lost sight of the track momentarily, but when he found the track parked it contained cartons of cigarettes and lighters. There is sufficient evidence for a juror to conclude that the track found on Tedmar by Officer Farrow was the same track used in the burglary.

The jury was instructed on the responsibility Defendant would have for the conduct of another under Section 562.041. Under this statute, a person is responsible for the conduct of another if, either before or during the commission of an offense and with the purpose of promoting the commission of the offense, a person aids or agrees to aid or attempts to aid the other person in planning, committing or attempting to commit the offense. Thus, the State would have to prove that Defendant aided or agreed to aid Hunter in planning or committing the burglary. While evidence connecting Defendant to the truck was circumstantial, it is afforded the same weight as direct evidence. Defendant was found at the end of a trail of footprints leading from the driver’s side of the truck used in the burglary. Therefore, it would be reasonable for the jury to infer that defendant was in the truck and was either directly involved or aided Hunter in committing the burglary.

The State also had to submit sufficient evidence for a reasonable juror to conclude that either the defendant or Hunter committed every element of the burglary offense. Section 569.170 says a person commits burglary in the second degree when he knowingly enters unlawfully or remains unlawfully in a building or inhabitable structure for the purpose of committing a crime. Evidence of each of these elements was presented by the State. The State presented evidence that Defendant or Hunter knowingly entered when he broke a window and entered the store. The State presented evidence that Defendant or Hunter entered the store unlawfully as the owner of the store testified they did not have permission to enter or be there. The State also presented evidence that cigarettes and lighters were stolen from the store. The jury was free to infer that Defendant or Hunter broke the window and entered the store for the purpose of stealing the cigarettes.

If a jury is convinced beyond a reasonable doubt, we need not disturb the result simply because the case depended wholly or mostly upon circumstantial proof, so long as the evidence meets the minimal appellate standard required by due process. State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993). Here, the jury was convinced beyond a reasonable doubt, and evidence was presented on every element of the crime charged. Even though much of the evidence was circumstantial, circumstantial evidence is given the same weight as direct evidence and the jury is free to make reasonable inferences from the evidence presented. The fact that there were no eyewitness identifications, fingerprints, footprint identifications or security camera tapes was an argument presented to and rejected by the jury. Under Missouri law, appellate courts do not review what evidence was absent, but instead review the sufficiency of the evidence that was presented. See Clay, 975 S.W.2d 121. We find there was sufficient evidence of burglary in the second degree. This point is denied.

Count II: Stealing Over $500

As his second point on appeal, Defendant maintains that the trial court erred in denying his motion for acquittal and submitting to the jury on Count II because there was insufficient evidence to sustain a conviction of felony stealing over $500.00. For his second point, Defendant again argues that the circumstantial evidence was inadequate to support the inferences made by the jury. Defendant also maintains that the evidence was insufficient by arguing what evidence was not presented by the State. However, as stated above, this court reviews the sufficiency of the evidence presented. The cases cited by Defendant under this point are not persuasive.

In State v. Watkins the court found the evidence insufficient to sustain a conviction and reversed. 804 S.W.2d 859 (Mo.App. E.D.1991). However, Watkins is distinguishable from this case. In Watkins the defendant was charged with felony property damage, and an element of felony property damage is damage over $1,000.00. Id. at 860. The court in Watkins found that there was no evidence presented for the dollar amount of the property damage. Id. at 861. Thus, one element was entirely lacking evidence. However, that is not the case here. In this case, the State presented evidence, though some of it circumstantial, of every element of the crime charged.

For a defendant to be found guilty of stealing over $500.00 under Section 570.030, the State must prove that defendant: 1) appropriated the property of another 2) valued at $500.00 or more, but less than $25,000.00 3) with the purpose to deprive him or her thereof 4) without his or her consent.

As we determined above, there was sufficient evidence for the jury to find that, even if Defendant did not enter the store himself, he was still responsible for the crime under Section 562.041. Similarly to Point I, Defendant does not point to any specific element for which the evidence was lacking. Upon examination, we find that there was sufficient evidence for a reasonable juror to find each element of the ciime of stealing over $500.00.

The first element a juror would have to find is whether Defendant appropriated the property of another. Defendant was found at the end of a trail of footprints leading from the truck used in the burglary. The cigarettes stolen from the store were in the truck. A juror could reasonably infer that the Defendant or Hunter appropriated the cigarettes and the cigarettes were the property of the store owner. A juror could also find that the stolen goods were valued over $500.00, because there was testimony that the value of the cigarettes was $1,920.00 and that the value of the lighters was $348.00. Furthermore, since the goods were taken from the store at night during a break-in, it would be reasonable for a juror to conclude that Hunter and Defendant did not intend to return the cigarettes to the owner and them purpose was to deprive the owner of them. This court does not find evidence lacking for any element of the crime of stealing over $500.00 and accordingly, this point is denied.

Count III: Resisting Arrest

On his third point on appeal, Defendant asserts that the trial court erred in overruling the judgment of acquittal and submitting Count III to the jury because there was insufficient evidence to uphold a conviction of felony resisting arrest. Section 575.150 states:

A person commits the crime of resisting or interfering with arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer; or
(2) Interferes with the arrest, stop or detention of another person by using or threatening the use of violence, physical force or physical interference.
5. Resisting or interfering with an arrest for a felony is a class D felony. Resisting an arrest by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony; otherwise, resisting or interfering with an arrest, detention or stop is a class A misdemeanor.

Jury Instruction Nine stated:

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that on February 10, 2003, in the City of St. Louis, State of Missouri, Robert Farrow was a law enforcement officer, and
Second, that Robert Farrow was making an arrest of the defendant for burglary in the second degree, and
Third, that defendant reasonably should have known that a law enforcement officer was making an arrest of the defendant and
Fourth, that for the purpose of preventing the law enforcement officer of making the arrest, the defendant resisted by fleeing from the officer, then you will find the defendant guilty under Count II of resisting arrest. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Defendant maintains that the trial court erred in submitting this instruction to the jury because Defendant was charged with resisting arrest by fleeing, not by hiding, which is what defendant was doing in the shed. Defendant also maintains that the State presented no evidence establishing that it was Defendant who fled from Officer Farrow. Defendant urges us to reverse his conviction and discharge him from the sentence imposed. The State concedes that the trial court did err in entering a verdict on Count III for felony resisting arrest, stating that the evidence was only sufficient to show misdemeanor resisting. The State asks us to reverse the judgment for felony resisting and remand to the trial court with an order to enter a verdict for misdemeanor resisting arrest with a re-sentencing. We find that there is insufficient evidence in this case to support a guilty verdict for resisting arrest. The conviction for Count III is reversed.

As is stated above, this Court determines whether a reasonable juror could find each element of a crime beyond a reasonable doubt. Clay, 975 S.W.2d at 139. When considering the evidence, circumstantial evidence is afforded the same weight as direct evidence. Hutchison, 957 S.W.2d at 767. Only when there is insufficient evidence to support a guilty verdict is a directed verdict of acquittal is authorized. Holloway, 992 S.W.2d at 889.

In a case from the Western District, the resisting arrest statute did not apply to a motorist’s flight from a traffic stop initiated by police officer turning on lights and siren in an attempt to stop an automobile. State v. Dossett, 851 S.W.2d 750, 752 (Mo.App. W.D.1993). The court held that there was insufficient evidence to uphold a conviction for resisting arrest. Id. The court in Dossett relies on State v. Long, which states that the gravamen of the offense is resisting an arrest, not flight from an officer. 802 S.W.2d 573, 575-576. Accordingly, the offense of resisting arrest cannot occur unless a law enforcement officer actually contemplates an arrest. Id.

Before we begin our analysis, it should be made clear that Defendant was charged with resisting arrest by Officer Farrow, the officer who followed the suspect truck. He was not charged with resisting arrest by Officer Siebum, the officer who found him in the shed. Arguments made by the parties regarding Defendant’s encounter with Officer Siebum are misplaced and are not material to whether Defendant resisted arrest by Officer Farrow. It follows that any facts pertaining to Defendant’s encounter with Officer Siebum are immaterial to our review.

With this in mind, we review the jury instructions. The jurors were instructed to find Defendant guilty if they found that, on February 10th 2003, (a) that Robert Farrow was a law enforcement officer and that (b) he was making an arrest of the defendant for burglary in the second degree; (c) that Defendant reasonably should have known that a law enforcement officer was making an arrest of Defendant and (d) that, for the purpose of preventing the law enforcement officer from making the arrest, Defendant resisted by fleeing from the officer.

While evidence was presented that Robert Farrow was a law enforcement officer, there was no evidence presented indicating that Officer Farrow was making an arrest of the Defendant. Officer Farrow testified that when he saw the truck, he did a U turn and followed the truck going east on Chippewa. He then testified that, at the intersection of Chippewa and Hampton, he turned on his emergency lights, but he did not turn on the siren. Officer Farrow continued to follow the truck at a slow speed because the streets were snowy. When the truck turned on Tedmar, Officer Farrow testified that he was about three blocks behind the truck traveling at around 25 miles per hour. He turned onto Tedmar, where he found the truck parked on a lawn, empty of occupants. This was the extent of the testimony about Officer Farrow following the pickup truck. He never testified about his intent when he turned on his emergency lights and he did not discuss whether he planned to arrest the occupants of the truck.

Accordingly, it would be impossible for a jury to find that Officer Farrow was making an arrest of the occupants of the truck. While it may be possible to infer from the facts that Officer Farrow was making an investigatory stop, the facts that Officer Farrow did not turn on his siren and did not follow closely behind the suspect truck are significant. Though the State never elicited any such testimony, it proposes in its brief that Officer Farrow did not intend to arrest the occupants of the truck, but to make an investigatory stop. From this we determine that a reasonable juror could not have found that Officer Farrow intended to arrest Defendant.

A jury could not infer from the evidence presented that Defendant reasonably should have known that Officer Farrow was making an arrest. In State v. Chamberlin, the court found that there was sufficient evidence for the jury to infer that the defendant should have known the trooper pursuing him was making an arrest, but the facts in that case are distinguishable from the facts at issue here. See 872 S.W.2d 615 (Mo.App. W.D.1994). In Chamberlin, evidence was presented that the trooper intended to arrest the driver of the vehicle. Id. at 618. The trooper pursued a vehicle at high speed with lights and siren activated. Id. When the vehicle stopped and the driver fled on foot, the trooper yelled at the driver to stop, drew his weapon and continued in pursuit. Id. at 619. The court found that from this evidence, a jury could have found Defendant guilty of resisting arrest. Id.

However, in this case, Officer Farrow did not use his sirens, pursue the truck at high speed nor did he pursue on foot shouting and wielding a weapon. He followed the truck at a normal speed only activating his lights. We find that on these facts, coupled with the lack of testimony that Officer Farrow actually did intend to arrest the occupants of the truck, the State did not meet its burden and a reasonable juror could not have found that Defendant should have known that he was being arrested. The trial court erred in submitting Count III to the jury and denying Defendant’s motion for acquittal on this count.

The State requests that we remand to the trial court with an order to enter a verdict for misdemeanor resisting arrest and appropriate re-sentencing. In support of this contention, the State cites State v. Dooley, which states: When a conviction of a greater offense has been overturned for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the illfated conviction on the greater offense. 919 S.W.2d 539, 542 (Mo.App. E.D.1995). This rule does not apply in this case.

Under the rule, the jury must have been required to find all elements of the lesser offense to convict on the greater offense. Dooley, 919 S.W.2d at 542. In this case, though, the jury was not required to find the elements of misdemean- or resisting arrest in order to convict for felony resisting arrest. For misdemeanor resisting arrest, the jury would be required to find that Officer Farrow was making an investigatory stop of Defendant, Defendant knew he was making a stop, and that for the purpose of preventing the stop, resisted by fleeing from the officer. See MAI-CR 3d 329.61. However, the jury was instructed to find that Officer Farrow was arresting defendant, not stopping or detaining him. The facts needed to determine whether an officer was making a stop versus the facts needed to determine if an officer was making an arrest are different. The jury did not get a chance to consider whether Officer Farrow was making a stop. Though the State purports that this is what Officer Farrow was doing, there was no such evidence presented at trial. Thus, the judgment is reversed and the sentence entered for Count III is vacated.

Prosecutor’s Remarks during Closing

Appellant contends that the trial court erred in permitting certain remarks by the prosecutor during closing argument. Those comments will be set forth and analyzed in the order they were argued.

The trial court has broad discretion in controlling the scope of oral argument and its rulings will not give rise to reversible error absent an abuse of discretion resulting in prejudice to the defendant. State v. Martin, 103 S.W.3d 255, 264 (Mo.App. W.D.2003). The trial court’s rulings in allowing or rejecting argument of counsel are reversible for an abuse of discretion only where the argument is plainly unwarranted. State v. Sandles, 740 S.W.2d 169, 176 (Mo. banc 1987). If the prosecutor’s improper remarks were made during rebuttal argument, the trial court can consider whether the argument was invited. State v. Murphy, 739 S.W.2d 565 (Mo.App. E.D.1987).

I.

The first remark challenged by defendant was stated during closing argument.

“Now, I told you in jury selection ... that this was not going to be a case in which someone was going to stand up and say, yes, I saw that man ... commit the crime ... you said you didn’t need that type of identification ... [s]o I’m holding you to that now ... I told you you weren’t gonna get it; you didn’t get it, and you said it wouldn’t matter.”

Defendant alleges that this statement constituted a “call for commitment,” requesting the jurors to commit to a “promise” they made during voir dire that they did not need direct evidence to convict. Defendant contends that this comment suggested to jurors that they were required to convict regardless of how tangential the State’s case was. He maintains that the comment impermissibly shifted the burden of proof by convincing the jurors that they could convict based on whatever evidence the State presented. During trial, Defendant did not object to this comment, but now requests we review for plain error.

A claim of plain error alleging errors committed in closing arguments does not justify relief on appeal unless determined to have a decisive effect on the jury. State v. Schlup, 785 S.W.2d 796, 802 (Mo.App. W.D.1990). A prosecutor’s statement has a decisive effect if there is “a reasonable probability that the verdict would have been different had the error not been committed.” State v. Johns, 34 S.W.3d 93, 116 (Mo. banc 2000). In determining whether reversal is required, the court can consider whether the effect of “multiple errors” in the prosecutor’s argument was “cumulative and egregiously prejudicial.” Burnfin, 771 S.W.2d at 912-13.

The burden is on the defendant to demonstrate the “decisive effect of the statement.” State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). For such a decisive effect to occur, “there must be a reasonable probability that, in the absence of these comments, the verdict would have been different.” State v. Roberts, 838 S.W.2d 126, 132 (Mo.App. E.D.1992). Under Rule 30.20, plain error will seldom be found in unobjected-to closing argument, since a holding that would require the trial judge to interrupt counsel would present myriad problems. State v. Radley, 904 S.W.2d 520, 524 (Mo.App. W.D.1995). Trial judges are not expected to assist counsel in trying cases, and trial judges should act sua sponte only in exceptional circumstances. Id.

Defendant argues throughout his brief that the evidence in this case was thin and lacking and as a result contends that this comment had a decisive effect on the jury. However, as we discussed above, the evidence was sufficient for a reasonable juror to convict Defendant under Counts I and II. Furthermore, we also do not believe the comment was one that would warrant a sua sponte interruption of counsel under Radley. Accordingly, we find that this statement did not have a decisive effect on the jury and that the trial court did not err in failing to sua sponte instruct the jury to disregard the comment.

II.

Secondly, Defendant claims the statement, “[Mr. Brooks] sat and ... listened to all the evidence that the State presented and he thought in his mind, how could he concoct a story that places him in the shed” was an improper attack on defense counsel. A prosecutor may “comment on the credibility of the defendant as a witness and assert the improbability and untruthfulness of his testimony.” State v. Burnett, 931 S.W.2d 871, 875 (Mo.App. W.D.1996). However, personal attacks by the prosecutor on defense counsel are improper and objectionable. State v. Reyes, 108 S.W.3d 161, 170 (Mo.App. W.D.2003).

Defendant argues that suggesting that Defendant concocted the defense during trial was denigrating to both Defendant and defense counsel. Because appellant did not object to the prosecutor’s remarks at trial on the grounds that they denigrated defense counsel, this particular issue is not preserved for appellate review because the grounds asserted on appeal are limited to those stated at trial. State v. Ellsworth, 908 S.W.2d 375, 378 (Mo.App. E.D.1995). Appellant may not broaden the objection presented to the trial court, or rely on a theory different than the one offered at trial. Id. Where the grounds have been changed on appeal, nothing has been preserved for review. Id. Because appellant’s theory on appeal is different from the objection he asserted at trial, reversal would be appropriate only if the appellate court finds plain error. State v. McKibben, 998 S.W.2d 55, 60 (Mo.App. W.D.1999).

As stated above, a claim of plain error alleging errors committed in closing arguments does not justify relief on appeal unless it is determined to have a decisive effect on the jury and there is “a reasonable probability that the verdict would have been different had the error not been committed.” Johns, 34 S.W.3d at 116.

The argument that this comment was denigrating to defense counsel is tenuous at best. We are not persuaded the State was even making reference to defense counsel. The defense attorney was not mentioned, directly or indirectly. Essentially, the Defendant urges us to find that the comment implicitly accused defense counsel of taking part in “concocting” the defense. However, under that reasoning, any time the State referred to possible misconduct of a defendant during trial, it would be making an implicit attack on defense counsel. We find that the State’s argument that appellant “concocted” a story was not an attack on defense counsel, but was a permissible argument as to Defendant’s credibility. See State v. Rath, 46 S.W.3d at 604, 609 (Mo.App. S.D.2001). As the comment was not improper, failing to instruct the jury sua sponte to ignore the comment was not plain error.

III.

Third, appellant argues that the statement “Where is Lisa Chapman? ... don’t be fooled because the defense has the same power that the State does to subpoena witnesses and get them into court” shifted the burden of proof to defendant to prove he did not commit the charged crimes and created a false issue. Defendant relies on his contention that the State’s evidence was weak and there is a reasonable possibility the jury’s verdict would have been different if the court had sustained defense counsel’s objection.

Again, the Defendant’s argument has not been preserved for appeal. Grounds asserted on appeal are limited to those stated at trial and appellant cannot rely on a theory different than that offered at trial. Ellsworth, 908 S.W.2d at 378. Because appellant did not object to the prosecutor’s remarks at trial on the grounds that they shifted the burden of proof, but rather on relevance, this particular issue is not preserved for appellate review. Furthermore, we construe the remark in the present case as a comment on the absence of evidence and the weakness of Defendant’s theory of the case. In addition, this comment was invited by defense counsel. Although, as Defendant argues, defense counsel did not mention Ms. Chapman’s absence at trial during closing argument, there were several references to her in the argument that appellant’s story of how he came to be hiding in the shed was believable. “A prosecutor has considerable leeway to make retaliatory arguments in closing. A defendant may not provoke a reply and then assert error.” Middleton v. State, 80 S.W.3d 799, 814 (Mo. banc 2002).

IV.

Lastly, appellant argues that an improper argument was made when the prosecutor stated during closing:

Now, you may be asking yourself, why should I care about this case? It’s a cigarette store ... Stealing is a major problem in this city ... People are fed up ... And what do they do? They leave. They go to St. Louis County.

A.

Arguments that appeal to the jury to convict the defendant to prevent him from committing future crimes of the same nature are improper. Murphy, 739 S.W.2d at 571 (finding argument that “we don’t need burglary in this town ... and we don’t need [the defendant] committing burglary ... you really, really need to put a stop to it” improper but not plain error). Likewise, a prosecutor’s argument of facts outside the record “is highly prejudicial.” State v. Storey, 901 S.W.2d 886, 900 (Mo. banc 1995). Furthermore, “[t]he prosecutor may not personalize his argument to the jury.” State v. Raspberry, 452 S.W.2d 169, 172 (Mo. banc 1970). A prosecutor improperly personalizes argument when he “asks the jurors to place themselves or some other identifiable person in the shoes of the victim or at the crime scene.” Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000). However, the prosecutor is permitted to argue general propositions regarding the prevalence of crime in the community, the personal safety of the community’s citizens, and the jury’s duty to uphold the law. State v. Plummer, 860 S.W.2d 340, 350 (Mo.App. E.D.1993).

Defendant argues that the prosecutor personalized the argument and claimed knowledge of facts outside the record. He submits that this comment is an impermissible personalization. Defendant also maintains that by telling the jury they should show they care about the “major problem” of stealing in the City of St. Louis by convicting Mr. Brooks, the prosecutor suggested that Mr. Brooks should be held responsible for all the theft in the City and personally deterred from committing future crimes.

We disagree. The comment in this case was not an improper personalization. The State did not ask the jury to put themselves in the place of the cigarette store owner or any other identifiable person involved in the crime. The general question “[W]hy should I care” did not put the jury “in the shoes” of the victim or at the crime scene. Instead, it was a plea to the jurors to uphold the law regardless of what they think about cigarette stores. As for the argument that this comment improperly implies that Defendant should be personally deterred from committing future crimes, neither the Defendant nor deterrence was mentioned. The statement was very general and we are not persuaded that in any way was it a comment on personally deterring the defendant from committing future crimes.

B.

Defendant also asserts that the suggestion that crime is the impetus for any shifting of the area’s population from the City of St. Louis to St. Louis County is unsupported by evidence and totally irrelevant to the issues before the jury. While this may be true, the argument was not preserved for appellate review. Under plain error review we must determine if the alleged error during closing argument had a decisive effect on the jury. Schlup, 785 S.W.2d at 802. A prosecutor is granted substantial latitude and may argue matters of common knowledge. See, State v. Jones, 7 S.W.3d 413, 419 (Mo.App. E.D.1999).

As we have stated above, there was sufficient evidence to convict Defendant on Counts I and II. This comment did not have a decisive effect on the jury. Though the relevance of the general statement made by the prosecutor about the shifting population of the city was questionable, it was not plain error for the judge to fail to instruct the jury to ignore the comment sua sponte. Point IV is denied.

The conviction for Counts I and II is affirmed. The conviction for Count III is reversed and the sentence is vacated.

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

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

      . RSMo.2002.

      . RSMo.2002.


author: PER CURIAM.

text:
    Robert BAKER and Wildwood Financial Group, Ltd., Respondents, v. Ronald LESTER, Appellant.
    No. ED 84399.
    Missouri Court of Appeals, Eastern District, Division One.
    March 29, 2005.
    John Stanton Steward, St. Louis, MO, for Appellant.
    Timothy Paul Philipp, Maryland Heights, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

This appeal arises from a judgment entered upon a jury verdict finding in favor of Robert Baker and Wildwood Financial Group, Ltd. (referred to separately as Baker and Wildwood, respectively or collectively as Respondent) in favor of Respondent’s claim of malicious prosecution against Ronald Lester (Appellant). Appellant appeals from the trial court’s denials of his motions for directed verdict at the close of the plaintiffs’ (Respondent’s) evidence and the close of all the evidence, and his motion for judgment notwithstanding the verdict (JNOV) at the close of all the evidence. We have reviewed the briefs of the parties and the record on appeal and conclude that Respondent made a submis-sible case of malicious prosecution, all elements of which were supported by substantial evidence. 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 Civil Procedure 84.16(b).


author: GLENN A. NORTON, Judge.

text:
    STATE of Missouri, Respondent, v. Violet JACKSON, Appellant.
    No. ED 84350.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 29, 2005.
    Gwenda R. Robinson, Jo Ann Roter-mund (co-counsel), St. Louis, MO, for appellant.
    Deborah Daniels, Lisa M. Kennedy (co-counsel), Jefferson City, MO, for respondent.
   OPINION

GLENN A. NORTON, Judge.

Violet Jackson appeals the judgment entered on her convictions for possession of cocaine base and marijuana. She challenges the sufficiency of the evidence to support these convictions and the discrepancy between the oral and written sentences. We affirm the convictions, but remand for correction of the sentences.

I. BACKGROUND

After a jury trial, Jackson was convicted for possessing drugs found loosely wrapped in a newspaper on the center console of her car; Jackson was alone in the parked car at the time. At the sentencing hearing, the court pronounced Jackson’s sentences as follows: five days imprisonment for the cocaine base conviction and one day imprisonment for the marijuana conviction. Then, the court stated that it was willing to suspend execution of those sentences and put Jackson on probation with certain conditions. In describing these conditions, the court noted that probation would be one year. The court asked Jackson if she would rather be on probation or go to jail for a week. She accepted probation. The court stated that execution of the sentences was suspended, and placed Jackson on probation for one year. Jackson asked for clarification that the suspended term of imprisonment was five days. The court indicated that the terms of imprisonment were actually seven days on the cocaine base conviction and five days on the marijuana conviction, that execution of those sentences was suspended and that “she’ll be on probation for a year.” The court explained further that if Jackson did not comply with the conditions of probation, then it was likely she would go to jail for a week. Consistent with this clarification, the written judgment imposed seven days imprisonment on the cocaine base conviction and five days imprisonment on the marijuana conviction and suspended execution of each of these sentences. But it indicated that the term of probation was two years. Jackson appeals.

II. DISCUSSION

In Jackson’s first point on appeal, she challenges the sufficiency of the evidence that she knowingly and consciously possessed the drugs. We have reviewed the parties’ briefs and the record on appeal and find no error. Point I is denied. No jurisprudential purpose would be served by further written opinion on this issue. See Rule 30.25(b).

Jackson’s second point relates to the discrepancy between the term of probation pronounced at the sentencing hearing and the one imposed in the written judgment. When the written sentence differs materially from the sentence orally imposed, the oral pronouncement generally controls. State v. Haughton, 130 S.W.3d 725, 726 (Mo.App. E.D.2004). Although there may have been some misunderstanding about the suspended terms of imprisonment, the court clearly intended to impose a one-year term of probation. The only mention of a two-year term of probation was in the State’s recommendations. But the court’s explanation of probation to Jackson, its pronouncement and its clarification of that pronouncement all refer to the length of probation as one year. Thus, the reference to a two-year term of probation in the written judgment was a clerical mistake in the recording of the sentence. Where, as here, the judge’s intentions are clear from the record, clerical mistakes like this may be corrected by a nunc pro tunc order. See generally State v. Carrasco, 877 S.W.2d 115, 117 (Mo. banc 1994); see also State v. Fizer, 119 S.W.3d 640, 641 (Mo.App. W.D.2003) (remand to correct clerical error in judgment imposing ten-years to reflect one-year imposed at hearing); see also Rule 29.12(c). A limited remand is necessary in this case for correction of the written judgment to reflect the sentence imposed at the hearing.

Point II is granted.

III. CONCLUSION

The judgment is affirmed under Rule 30.25(b). The case is remanded for the sole purpose of entering a nunc pro tunc order correcting the written judgment to state that the term of probation is one year.

CLIFFORD H. AHRENS, P.J. and NANNETTE A. BAKER, J. concurring.

      . Contrary to the State's contention, further clarification of the trial court’s intention with respect to probation is not needed, and its motion for remand is denied.