author: JOSEPH M. ELLIS, Judge.

text:
    AMERICAN FAMILY MUTUAL INSURANCE COMPANY, et al., Respondents, v. The MISSOURI DEPARTMENT OF INSURANCE, et al., Defendants, Legal Aid of Western Missouri, Appellant.
    No. WD 64460.
    Missouri Court of Appeals, Western District.
    Sept. 6, 2005.

      Jeffrey L. Williams, Kansas City, MO, for appellant.
    Gary L. Mayes, St. Louis, MO, for respondents.
    Stephen R. Gleason, Jefferson City, MO, for defendants.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   JOSEPH M. ELLIS, Judge.

Legal Aid of Western Missouri (“Legal Aid”) appeals from a judgment entered in the Circuit Court of Cole County enjoining the Missouri Department of Insurance (“MDI”) from releasing to Legal Aid certain statistical information that had been provided to MDI by various insurance companies doing business in the State, including Respondents Shelter Insurance Company, American Family Insurance Company, The Fire Insurance Exchange, and Mid Century Insurance Company. The trial court determined that the information sought by Legal Aid was protected from disclosure under the Sunshine Act by the Uniform Trade Secrets Act and by Article I §§ 10, 26, and 28 of the Missouri Constitution. For the following reasons, the judgment is affirmed.

Pursuant to § 374.405, which was originally enacted in 1978, insurers providing residential insurance in the State of Missouri, like Respondents, are required to report certain information to MDI on a yearly basis. Specifically, Section 374.405 states:

1. The director [of MDI] shall establish statistical bases for the reporting of premium and loss data under policies of homeowners’ insurance, dwelling-owners’ insurance, renters’ or tenants’ insurance, or residential fire insurance.
2. Each insurer shall annually report to the director all premium and loss data under policies of homeowners’ insurance, dwelling-owners’ insurance, renters’ or tenants’ insurance, or residential fire insurance as the director may require.
3. The director shall have the authority to review and verify the accuracy of the data reported.

In this vein, pursuant to 20 CSR 600-3.100, MDI has required insurers to provide it with written exposure (the number of policies issued), premium written (the amount of premium collected during the reporting year), loss paid counts (the number of claims made against the policies during the reporting year), and losses paid data (the total amount of losses paid on claims for the reporting year) for residential insurance policies. This information is to be broken down by the zip code in which the insureds reside. Over the years, the Director of MDI has issued bulletins assuring insurers that the information provided would be considered confidential and would not be distributed to anyone, except on an aggregate basis.

On March 17, 2003, Legal Aid submitted a request to MDI, pursuant to the Sunshine Law, § 610.010 et seq., and the Public Records Law, § 109.180, asking MDI to produce “statewide market share data and market share data in minority populated zip-codes in the Kansas City MSA” for residential insurance for the reporting year ending December 31, 2000. On April 4, 2003, MDI informed Respondents of Legal Aid’s request and advised Respondents that it was considering releasing the zip code level data to Legal Aid and the public. Respondents subsequently informed MDI that they objected to such disclosure. On June 25, 2003, MDI notified Respondents that it intended to provide Legal Aid with the written exposure and written premium components of the zip code data on file for the year 2000 unless it was enjoined from doing so by a court of competent jurisdiction.

On July 16, 2003, Respondents filed a Petition for Declaratory and Injunctive Relief in the Circuit Court of Cole County asking the court to enjoin MDI from disclosing any of the zip code data on file with MDI. That same day, with the consent of the parties, the trial court entered a preliminary injunction enjoining MDI from disclosing the data.

On August 20, 2003, Legal Aid filed its answer to Respondents’ petition. On December 15, 2003, MDI filed its answer to the petition.

The parties subsequently submitted the case to the trial court on written briefs, affidavits, exhibits, and discovery materials. On May 10, 2004, the trial court entered its judgment in favor of Respondents. The court found that the written premium component of the zip code data for the year 2000 was a trade secret and that “the Takings Clauses of the federal and state constitutions and the Missouri Uniform Trade Secrets Act prohibit MDI from disclosing the written premium component to Legal Aid.” The trial court permanently enjoined MDI from disclosing any of Respondents’ zip code data on file with MDI for the year 2000 to Legal Aid or any other member of the public. Legal Aid brings five points on appeal from that judgment.

With regard to this Court’s standard of review on appeal, Legal Aid asserts that, in addressing its points, we should review the trial court’s decision de novo because the trial court did not hear any testimony and the case was submitted to the court on the briefs, affidavits, exhibits, and discovery materials. Legal Aid contends that, in reviewing the evidence, this court owes no deference to the factual findings made by the trial court and should determine the facts for itself.

Our review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Business Men’s Assurance Co. v. Graham, 984 S.W.2d 501, 505 (Mo. banc 1999). Accordingly» “[t]he decision of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” Brizendine v. Conrad, 71 S.W.3d 587, 590 (Mo. banc 2002).

Contrary to Legal Aid’s assertions, “[t]his Court ‘defers to the trial court as the finder of fact in determinations as to whether there is substantial evidence to support the judgment and whether that judgment is against the weight of the evidence, even where those facts are derived from pleadings, stipulations, exhibits and depositions.’ ” Id. (quoting Graham, 984 S.W.2d at 506). Thus, “[i]n reviewing a contention that the evidence is insufficient, the evidence is viewed in the light most favorable to the verdict, and deference is accorded to the trial court’s assessment of credibility.” Id. Moreover, “[t]he appellate court is primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result.” Graham, 984 S.W.2d at 506 (internal quotations omitted). “Thus, the judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.” Id. With this standard of review in mind, we turn to Legal Aid’s points on appeal.

In its first point, Legal Aid contends that the trial court erred in finding that the written premium data for 2000 was a trade secret under the Uniform Trade Secrets Act, thereby rendering the information exempt from disclosure under the Sunshine Act and the Public Records Law.

A “trade secret” is defined as:

information, including but not limited to, technical or nontechnical data, a formula, pattern, compilation, program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. .

Lyn-Flex West, Inc. v. Dieckhaus, 24 S.W.3d 693, 698 (Mo.App. E.D.1999) (quoting §4.17-453(4)). In determining whether the information involved in a given case constitutes a trade secret under the Uniform Trade Secret Act, the following factors have been utilized by the courts to provide guidance:

(1) the extent to which the information is known outside of [the] business;
(2) the extent to which it is known by employees and others involved in [the] business;
(3) the extent of measures taken by [the business] to guard the secrecy of the information;
(4) the value of the information to [the business] and to [its] competitors;
(5) the amount of effort or money expended by [the business] in developing the information;
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Id. (quoting AEE-EMF, Inc. v. Passmore, 906 S.W.2d 714, 721-22 (Mo.App. W.D.1995)). “The existence of a trade secret is a conclusion of law based on the applicable facts.” Id.

Legal Aid argues that the Respondents failed to prove that the written premium component derives independent value from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure because “prior release of such data has not afforded any competitive advantage to their competitors, the data is too limited in age and scope to afford such an advantage, and such deminimus [sic] value renders the information subject to disclosure when the interest of the public in disclosure is balanced against the need to protect property interests represented.”

Legal Aid makes no assertions related to the first, second, third, fifth, and sixth factors set forth supra. Indeed, the record clearly supports a finding that the information sought by Legal Aid was not known outside of the various insurance companies and MDI; that the insurance companies only allowed a limited number of employees to have access to the information; that the insurance companies utilized extensive measures to guard the secrecy of the information; that the companies spent significant effort and money in developing the information at issue; and that it would be difficult for a competitor to obtain the specific data at issue on its own.

Legal Aid’s challenge on appeal focuses solely on the trial court’s finding that the information at issue had independent economic value, actual or potential, to the insurance companies and their competitors. Despite the fact that this is only one of the factors considered by the courts in determining whether the information at issue is a trade secret, it is a factor required under the statute, and a business seeking to protect information as a trade secret must prove that it has some independent economic value, actual or potential, in order for the information to qualify as a trade secret under the statutory definition. See § il745S(4>)(a). Thus, the issue before us is whether the trial court’s finding that the requested information had independent economic value is supported by the evidence and is not against the weight of the evidence.

Respondents presented affidavits executed by Michael Miller, an actuarial consultant, in support of their claim that information related to the written premiums obtained by each insurer in each zip code had economic value. Miller stated that all four of the types of information collected by MDI, and combinations thereof, provided important information about each specific insurer’s pricing and/or marketing strategies in the State. He stated that ■written premiums by zip code, even -without the accompanying exposure counts, can be an important indicator of where an insurer has been successful in marketing its policies. He indicated that there was no public source of information for determining the volume of premium dollars written in a specific zip code and that information concerning where a competitor’s policies are could be extremely valuable in setting the rates to be charged. Miller also said that premium volume by zip code revealed important information about where an insurer’s customers are located and where the insurer has been successful in its marketing strategy. He further indicated that knowledge of where a competitor was not writing any insurance, or not writing much insurance, was just as valuable competitive information as knowing where sales were being emphasized. Miller stated that “[b]y having access to other insurers’ company-specific premium data by zip code, an insurer could determine which other insurers actually compete within any particular zip code, adjust its rates as it deems necessary in relation to the filed rates of its actual competitors in that particular zip code, and disregard the filed rates of those other insurers that do not compete with the insurer in that particular zip code.” Miller stated that the competitive value of the written premium information by zip code extended for a minimum of five years and might have value for up to ten years. He further indicated that many insurers have marketing strategies that target geographic areas within the state and that disclosure of company-specific premium data by zip code would reveal those marketing strategies to competitors and provide information on how successful the insurer had been in marketing its products in each zip code.

The insurers also presented affidavits from actuaries from each of the various insurance companies. Those affidavits state that the written premium component of the zip code data reflects where their customers are located, the amount of business the insurer has in the zip code, and how successful or unsuccessful the insurer has been in each zip code. The affidavits assert that, if competing insurers were to obtain this information, they could adjust their pricing to become more competitive and/or more profitable in a given zip code and might adopt similar marketing strategies to those utilized by the more successful insurers in the zip code.

In short, Respondents’ experts testified that the zip code level written premium data was potentially valuable to competitors, and they explained how competitors might be able to use that information to their economic advantage. This testimony sufficiently supports a finding that the zip code level written premium data “derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.” § íl7.J¡.53(i)(a).

Legal Aid’s argument on appeal, however, implicitly challenges the trial court’s finding as being against the weight of the evidence. Boiled down to its essence, Legal Aid’s contention is that its experts offered evidence that supports a result contrary to that reached by the trial court and that this court should find in favor of Legal Aid in reviewing the case de novo. As previously noted, however, we are not reviewing the trial court’s judgment de novo. We must view the evidence in the light most favorable to the judgment and defer to the trial court’s assessment of the credibility of the experts. Brizendine, 71 S.W.3d at 590. The judgment is to be affirmed if it is supported by the evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Id. Applying the proper standard of review, we view Legal Aid’s point and argument as asserting that the judgment is not supported by the evidence and is against the weight of the evidence.

Legal Aid extensively discusses the affidavits of its own experts and contends that their affidavits refute the claims of the insurers’ experts and demonstrate that the opinions of the insurers’ experts are based upon speculation. As noted supra, Legal Aid argues that the Respondents failed to prove that the written premium component has independent economic value because (1) “prior release of such data has not afforded any competitive advantage to their competitors,” (2) “the data is too limited in age and scope to afford such an advantage,” and (3) “such deminimus [sic] value renders the information subject to disclosure when the interest of the public in disclosure is balanced against the need to protect property interests represented.”

Legal Aid points to testimony offered by two of its experts indicating that information similar to the data at issue in this case had been previously released in a handful of other states. The experts further testified that they were not aware of any evidence indicating that this disclosure had caused any detriment to the insurers involved or any competitive advantage to their competitors. Legal Aid contends that, because the insurers failed to demonstrate any harm had occurred from the release of data in these other states, the trial court could not have properly found the potential for harm in the release of the data in this State.

Legal Aid relies upon the testimony by its experts that they are not aware of any evidence that the release of similar data in a handful of other states caused any harm to the insurers operating within those states. One of the experts also cited an example of one insurer in Texas whose zip code level data was released to the public as a result of a civil case and managed to subsequently increase its statewide market share. The expert asserted that this was “powerful evidence refuting the companies’ claim of competitive harm from the release of their zip code data.” Legal Aid asserts that Respondents’ failure to present evidence of any economic damage to insurers in the states that have released such data refutes any contention that the data has economic value.

The statements offered by Legal Aid’s experts fail to conclusively establish that insurance companies were not harmed by the release of this data in the other states referenced. The fact that the experts are not aware of any harm does not establish that none existed. Further, even if the amount of premium collected by an insurer did not decrease, or even increased, after the release of such data, that does not establish a lack of harm to the company’s business as the release of the data may have reduced the rate of growth for the insurer. Moreover, even if no harm occurred from the release of data in those states, the fact that insurers were not harmed in those instances does not conclusively discredit the testimony of Respondent’s experts that the potential for harm exists. While we might have viewed this evidence more favorably and given it greater weight than did the trial court, the mere presence of the evidence in the record does not render the trial court’s judgment against the weight of the evidence.

Legal Aid also asserts that the age and the limited scope of the data requested refuted any claims that the data has independent economic value. At the time of trial, the data was three years old. Legal Aid notes that its two experts opined that the data was of little value to competitors of the insurance companies due to the age of the data and the fact that intervening events had occurred that might have affected the companies’ rate making and marketing strategies. Respondents’ experts, on the other hand, stated that the data had value for at least five years, that the insurance companies still utilized that data in their own rate making, and that the data would still provide competitors with useful information that they could utilize to the detriment of the reporting company. Pursuant to our standard of review, we must defer to the trial court’s assessment of the credibility of the witnesses and the weight to be given their testimony. Brizendine, 71 S.W.3d at 590. Viewing the evidence in this manner, the affidavits of Respondent’s experts sufficiently support the trial court’s determination that the requested data retained independent economic value despite the passage of time and that finding is not against the weight of the evidence.

Finally, Legal Aid contends that the requested data is not a trade secret under § 417.450(4)(a) because the data has “dem-inimus [sic] value”. Based upon the evidence submitted in the record, a finding by the trial court that the data had more than de minimis value is supported by the evidence and is not against the overwhelming weight of the evidence.

In short, while the evidence would certainly have supported a contrary finding, the trial court’s finding that the requested data had independent economic value and was a trade secret under § 417.450 was supported by sufficient competent evidence and was not against the weight of the evidence. Point denied.

In its second point, Legal Aid asserts that the trial court erred in finding that the written premium data for 2000 was a trade secret because the trial court viewed the Respondents’ evidence without giving sufficient deference to the fact that it was to strictly construe trade secret status as an exception to the Sunshine Law and to liberally construe the provisions of the Sunshine Law. Section 610.011.1 provides that “[i]t is the public policy of this state that ... records ... of public governmental bodies be open to the public unless otherwise provided by law” and that the provisions of the Sunshine Act “shall be liberally construed and their exceptions strictly construed to promote this public policy.” Legal Aid contends that the trial court failed to adequately consider the impact of this public policy and the strict construction of exceptions in rendering its judgment.

Legal Aid bases its contention that the trial court did not give adequate consideration to these factors on the fact that they were not specifically referenced in the judgment. Contrary to Legal Aid’s assertions, however, a trial court is presumed to have known the law and followed it in rendering its judgment. State v. Roll, 942 S.W.2d 370, 374 (Mo. banc 1997); Haddock v. State, 75 S.W.3d 872, 877 (Mo.App. W.D.2002); Dorman v. Dorman, 91 S.W.3d 167, 171 n. 4 (Mo.App. W.D.2002); State v. Fuelling, 145 S.W.3d 464, 469 (Mo.App. W.D.2004). Thus, we must presume that the trial court properly considered the relevant provisions of the Sunshine Law in rendering its decision as long as that presumption is not rebutted by the record. See Fuelling, 145 S.W.3d at 469.

Nothing in the record rebuts the presumption that the trial court was aware of the provisions of the Sunshine Law and properly considered those provisions in rendering its judgment. Instead, Legal Aid appears to be arguing that the statute calls for the evidence to be strictly construed against the party attempting to assert an exception to the Sunshine Act, something that the statute does not provide. Point denied.

In its third point, Legal Aid contends that the trial court erroneously determined that the disclosure of the written premium amount for 2000 would inevitably lead to disclosure of the rest of the insurers’ zip code data. Legal Aid argues that this finding ignores the fact that any future request for further information would be subject to further judicial review.

While the trial court did offer gratuitous findings to this effect, the trial court offered other unrelated findings that support its judgment. As previously noted, the trial court specifically found that the written premium data for 2000 had economic value and was a trade secret in its own right. That finding was supported by the evidence and was not against the weight of the evidence.

In reviewing a court tried case, this Court “is primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result.” Graham, 984 S.W.2d at 506. “Thus, the judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.” Id. Accordingly, regardless of whether the trial court’s findings related to the inevitable discovery of other zip code data dealt with issues that were not ripe for adjudication, the trial court’s judgment was supported by other findings and must be affirmed on those grounds. Point denied.

In its fourth point, Legal Aid claims that the trial court erred in denying its post-trial motion asking the court to consider allowing the release of the insurers’ market share ratios for Kansas City area minority-populated zip codes. Legal Aid asserts that such information is devoid of independent economic value, could yield no advantage to competitors, and that the release of similar data in 1993 showing companies’ market share in minority neighborhoods showed no apparent harm to the insurers.

“The circuit court is vested with considerable discretion in ruling on a motion to amend judgment ....” Gill Constr., Inc. v. 18TH & Vine Auth., 157 S.W.3d 699, 711 (Mo.App. W.D.2004). This court will not reverse the trial court’s denial of a motion to amend judgment absent an abuse of that discretion. Id. at 712.

The record reflects that MDI does not currently have the requested data but that it might be able to make such calculations from the data that it has. Legal Aid apparently wanted the trial court to order MDI to analyze the zip code data and release a report similar to one it had released in 1993.

Were MDI to create such a document, Legal Aid might well be able to acquire it under the Sunshine Act; however, the Sunshine Act does not empower individuals or the courts to order a governmental agency to create records. See Jones v. Jackson County Circuit Court, 162 S.W.3d 53, 60 (Mo.App. W.D.2005). For the purposes of the Sunshine Act, “public records” include only those written or electronic records “that are already in existence that the public governmental body is ‘holding’ or ‘maintaining’ in its possession.” Id. at 59. “There is nothing in the definition of ‘public records,’ ... that indicates that it includes written or electronic records that can be created by the public governmental body, even if the new record could be created from information culled from existing records.” Id. at 60 (emphasis omitted). “The plain language of the Sunshine Law does not require a public governmental body to create a new record upon request, but only to provide access to existing records held or maintained by the public governmental body.” Id.

Since the record reflects that the data requested in Legal Aid’s motion to amend judgment was not contained in an existing record held by MDI, the trial court did not abuse its discretion in denying Legal Aid’s post-trial motion. Point denied.

In its fifth and final point, Legal Aid contends that the trial court erred in failing to grant its motion to substitute the Concerned Clergy Coalition as a party defendant because the Concerned Clergy Coalition was the real party interested in seeking the written premium data. Legal Aid asserts that it was not a party in interest, that it was misnamed in the action, and that it had a right to have that problem corrected. Legal Aid claims that it was merely acting on behalf of the Concerned Clergy Coalition when it requested the records from MDI.

The primary problem with Legal Aid’s argument is that Legal Aid was properly named as a defendant in this action. Legal Aid made the request for Respondents’ zip code data from MDI. In making that request, Legal Aid made no mention of doing so on behalf of the Concerned Clergy Coalition or, for that matter, that it was making its request in a representative capacity for anyone. Legal Aid, in its own capacity, certainly had standing to make such a request under the Sunshine Act and the Open Records Act. MDI subsequently announced its intent to release the zip code data to Legal Aid unless it was enjoined by a court from doing so. Respondents filed their action to enjoin MDI from releasing the requested information to Legal Aid, naming MDI and Legal Aid as party defendants.

Under these facts, we simply cannot find error in the trial court’s failure to act on Legal Aid’s request to be removed as a party defendant in the action and to have a different party substituted in its place. The Concerned Clergy Coalition may well have been able to file a meritorious motion to intervene in the action pursuant to Rule 52.12(a), but it did not file any such motion. Point denied.

The judgment is affirmed.

All concur.

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

      . Section 417.455 authorizes the courts of this State to grant an injunction to prohibit the misappropriation of a trade secret. "Misappropriation” includes the disclosure of a trade secret without consent where the party seeking to disclose the trade secret knows or has reason to know that the trade secret was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use. § 417.453(2)(b) and (c)(ii).

      . Both statutes allow records to be closed where permitted by law. § 610.021(14) and § 109.180.

      . These factors are borrowed from the Restatement (First) of Torts § 757. Lyn-Flex West, Inc. v. Dieckhaus, 24 S.W.3d 693, 698 (Mo.App. E.D.1999). "Although the Restatement’s factors are not part of the Uniform Trade Secrets Act, the act essentially incorporates these factors in its definition of trade secrets.” Id. "Further, courts in states that have adopted the Act, have found that those factors provide guidance in determining whether the information in a given case constitutes trade secrets within the definition of the Act.” Id.

      . The experts testified that similar data has been released in Massachusetts, Illinois, and Minnesota.

      . The trial court never ruled on this motion, thereby implicitly overruling it.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles BAKER, Appellant, v. SECOND INJURY FUND, Respondent.
    No. WD 64338.
    Missouri Court of Appeals, Western District.
    Sept. 6, 2005.

      Nancy Lee Jackson, Thomas C. Locke, Co-Counsel, Independence, MO, for appellant.
    Carolyn Biersmith McCarthy, Asst. Atty. Gen., Kansas City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Charles Baker appeals the Labor and Industrial Relations Commission’s decision finding that the Second Injury Fund was not liable for either permanent total disability or permanent partial disability benefits. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Brad ADKINS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64332.
    Missouri Court of Appeals, Western District.
    Sept. 6, 2005.
    Jeannie Marie Willibey, Kansas City, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang, Office of Attorney General, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Brad Adkins appeals the circuit court’s denial, after an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief (PGR) from his convictions for second degree felony murder and second degree assault. Relying on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Mr. Adkins’s sole point on appeal is that his trial counsel provided ineffective assistance when he failed to move for disqualification of the prosecutor, under Mo.Rev.Stat. Section 56.110, on grounds that the prosecutor was inappropriately “interested” in the case because of his professional and personal relationship with the victims and their family. The motion court concluded that “the relationship between the victim’s family and that of [the prosecutor] and members of his office provides no basis to disqualify them.”

We affirm.

Facts

Brad Adkins was convicted of second degree felony murder and second degree assault for killing Theresa Morse and injuring her husband Kenneth Morse in a drunk-driving accident. On direct appeal, this court affirmed Mr. Adkins’s convictions. State v. Adkins, 62 S.W.3d 506 (Mo.App.2001). Mr. Adkins then moved for post-conviction relief under Supreme Court Rule 29.15. The motion court denied relief, and this appeal followed.

Mr. Adkins does not dispute the facts of the accident. Mr. Adkins ran a stop sign and collided with the Morses’ vehicle at about 10:30 p.m. on October 21, 1999. Following the accident, an officer at the scene abandoned a field sobriety test when he had to catch Mr. Adkins to prevent him from falling down and hurting himself. The first subsequent breathalyzer test yielded .229 percent blood alcohol content (BAC). Some hours later, when Mr. Adkins’s BAC subsided to .17 percent, an officer read Mr. Adkins his Miranda warnings. Mr. Adkins waived his rights and made a statement that he had been drinking since 7:00 p.m., had “too much” to drink, and did not remember much about the crash. Mr. Adkins had prior drunk-driving convictions, making this drunk-driving incident a felony.

The Prosecutor’s relationship with the victims’family

Mr. Adkins asserts that the prosecutor had an improper “interest” in the outcome of the case because of his close relationship with the victims’ family. Both Mr. and Mrs. Morse worked for the Buchanan County Sheriffs Department. Mrs. Morse’s mother, Kay Ezell, worked as a clerk for Buchanan County Circuit Judge Robb, prompting Judge Robb to disqualify himself and have the case transferred to Platte County. Ms. Morse’s sister, Lori Hudson (Ms. Ezell’s other daughter), had also worked at the Buchanan County courthouse. Buchanan County Prosecutor Dwight Scroggins prosecuted the case. Prosecutor Scroggins testified at the PCR hearing that he knew Kay Ezell “and her family for a long time.” Prosecutor Scrog-gins “knew who [Kenneth Morse] was” and “knew who [Theresa Morse] was ... in some capacity.” Mr. Scroggins said of Theresa Morse, “I probably knew her better than I knew Kenny simply because of her mother and sister working in the courthouse.” Subsequent to the trial, Ms. Ezell retired but has been employed part-time as a secretary in the Buchanan County Prosecutor’s Office. Mr. Scroggins testified that in small jurisdictions like St. Joseph or Platte County, it is “very common” for prosecutors to know the victims.

The Prosecutor was not disqualified

Platte County Judge Hull presided over both the trial and the PCR hearing. At the PCR hearing, Prosecutor Scroggins said he would consider disqualifying his office or a particular prosecutor if there were a “direct conflict of interest,” such as where someone in the prosecutor’s office had previously represented the defendant, or if the defendant’s relationship with the prosecutor’s office would give the impression that the defendant might get favorable treatment, and had done so, e.g., where the defendant in a murder case was a former local police chief. But knowing the victim would not be a “conflict,” said Mr. Scroggins. Trial counsel explained that he considered moving to disqualify the prosecutor but elected not to do so, because he was not convinced it would succeed.

Assertion that the Prosecutor showed unfair bias

Mr. Adkins asserts that Prosecutor Scroggins told the court in the pre-trial hearing on the motion for change of venue that he would not extend a plea offer to Mr. Adkins, because the victims’ family did not want an offer extended. No other part of the record corroborates or refutes that assertion that the victims’ family’s wishes dictated the decision not to offer a plea. At the PCR hearing, Mr. Scroggins did not recall whether he had extended a plea offer, but said, “We generally don’t to murderers — or to murder cases.”

At the PCR hearing, Mr. Adkins testified that during closing argument, Mr. Scroggins cried and threw exhibits “on the floor, and they’d slide — -they slid all the way across towards the tables over there.” Trial counsel corroborated this assertion. Mr. Scroggins did not recall crying during his closing argument, and when asked if he recalled throwing pictures across the room, he said, “I’m sure I didn’t throw pictures across the room. I’m sure the court would not have allowed [that].”

Mr. Adkins asserts that the prosecutor’s closing argument personalized the case, indicating Prosecutor Scroggins’s personal “interest.” During closing argument, Mr. Scroggins called Mr. Adkins a drunk, and said that the responsibility to prove guilt “is a responsibility that I do not take lightly, but it is a responsibility that in this particular case I take willingly.” Mr. Adkins also points out that at trial, Mr. Scroggins occasionally referred to the victims by their first names.

Discussion

Standard of Review

Appellate review of a PCR motion is limited to determining whether the motion court’s decision was clearly erroneous. Rule R. 29.15(k). Clear error may be found where “the appellate court is left with the definite and firm impression that a mistake has been made.” Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) (internal quotation marks omitted). In the motion court, Mr, Adkins had to prove his claim for relief by a preponderance of the evidence. Rule 29.15(f). The motion court is “free to believe or disbelieve evidence—contradicted or undisputed.” Sanders, 738 S.W.2d at 857.

To prevail on a Sixth Amendment claim of ineffective assistance of counsel, a mov-ant must show both (1) trial counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Sanders, 738 S.W.2d at 857. On appeal, this court need not decide both parts of the test if it decides one part has not been satisfied. Sanders, 738 S.W.2d at 857 (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052). Mr. Adkins fails to meet the high standard for either part of the test.

1. Trial counsel’s performance was not unconstitutionally deficient

In showing that trial counsel was deficient, a movant must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 858 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (emphasis in Sanders, internal quotation marks omitted). The movant must show that trial counsel did not act “reasonably within prevailing professional norms under all the circumstances.” Id. (emphasis in original). A strategy is unreasonable, for example, where trial counsel offers into evidence a sex-abuse defendant’s prior, unprosecuted sex-abuse allegations, in an attempt to show that the defendant is being subjected to harassment in the present prosecution. State v. McCarter, 883 S.W,2d 75 (Mo.App.1994).

Mr. Adkins has not overcome the presumption that trial counsel’s conscious decision not to move to disqualify the prosecutor indicates reasonable trial strategy. Trial counsel rightly recognized that the prosecutor’s relationship with the victims did not require disqualification. The disqualification statute reads,

If the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office, or shall be related to the defendant in any criminal prosecution, either by blood or by marriage, the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause.

Mo.Rev.Stat. Section 56.110 (emphasis added). A prosecutor’s professional or familial relationship with a defendant may create a conflict of interest. No conflict of interest lies here; Mr. Adkins asserts, rather, that the prosecutor was “interested” in the case because of his personal familiarity with the victims.

The Missouri Supreme Court weighed the interest that requires disqualification in State v. Newman, where:

The prosecutor acknowledged that he had served as a pallbearer at [the victim’s] funeral; that he and the law firm of which he was a member had represented [the victim] personally and in his business [for years]; that at the time of the trial he was representing [the victim’s wife] in an estate matter; [and] that he had visited the [victim’s] home socially and hunted with [the victim]....

605 S.W.2d 781, 787 (Mo.1980). The Court found these facts insufficient to require disqualifying the prosecutor. Prosecutor Scroggins is much less close to the victims here than the prosecutor was in Newman. Mr. Scroggins did not socialize with the victims’ family or represent them as their attorney. The evidence showed only that Mr. Scroggins was casually familiar with the victims’ family because of their work in local government. Disqualification was not required. If disqualification were required where a prosecutor casually knows the victims, prosecutors in small jurisdictions would too frequently be prevented from doing their jobs.

Mr. Adkins seeks to distinguish Newman on grounds that the Newman court, on review of the trial record, found no “action on the part of the prosecutor which was unfair or reflected excessive personal concern in the outcome of the case.” Id. at 787-88. Mr. Adkins alleges that Prosecutor Scroggins’s personalizing conduct at closing argument and his failure to offer a plea-bargain evince excessive personal concern in the outcome of the case. But the Newman court stressed that the trial court has discretion to disqualify the prosecutor. Id. at 787. Here, the same judge conducted both the trial and the PCR hearing, and was thus in the best position to assess unfair bias demonstrated by the prosecutor’s conduct. The judge concluded that “the relationship between the victim’s family and that of [the prosecutor] and members of his office provides no basis to disqualify them.” The judge also found that Mr. Scroggins’s comments during closing argument were not evidence that he should have been disqualified before trial for his “interest” in the case. Mr. Adkins acknowledges that the trial court has discretion to disqualify the prosecutor, but argues that trial counsel’s failure to move for disqualification nevertheless constitutes deficient performance. We think trial counsel’s failure to make a motion that appeared likely to fail does not constitute unconstitutionally deficient assistance of counsel.

2. Trial counsel’s failure to move to disqualify the prosecutor did not result in prejudice

“[IJneffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Neither appellant nor respondent cites a case indicating what facts constitute “prejudice.” Two Missouri appellate cases finding ineffective assistance that amounted to prejudice highlight the standard a movant must meet. In Kenner v. State, the Court of Appeals found clear error in the motion court’s refusal to vacate a judgment. 709 S.W.2d 536 (Mo.App.1986). In Kenner’s burglary trial, his attorney failed to object to (1) testimony regarding another burglary Kenner had not been charged with, (2) testimony and a photograph implicating Kenner in illegal drug use, and (3) testimony that drug use violated Kenner’s parole. Id. at 537-38. The appellate court said, “Movant was prejudiced by this failure to object because it gave the jury the opportunity to assess evidence of [crimes] for which movant was not on trial[.]” Id. at 539. In contrast, Mr. Adkins did not suffer from admission of inadmissible evidence as a result of trial counsel’s failure to move for Prosecutor Scroggins’s disqualification.

In State v. McCarter, the appellate court affirmed the motion court’s order for a new trial in a conviction for sexually abusing a ten-year-old boy. 883 S.W.2d 75 (Mo.App.1994). At trial, McCarter’s attorney offered into evidence a social worker’s report stating that McCarter had been accused of, but not criminally charged with, sexually abusing his three grandchildren. Id. at 76. Trial counsel explained that he hoped to show that the prior uncharged allegations indicated that the present charges were fallacious. Id. at 78. The motion court found that a reasonably competent attorney would not have entered the report, and McCarter was prejudiced. Id. at 77. The Court of Appeals affirmed. Id. at 79. In contrast, Mr. Adkins’s did not suffer from introduction of evidence that no reasonably competent attorney would have introduced.

Mr. Adkins argues that prejudice need not be shown where the basis of the motion is that the prosecutor should be disqualified. The cases stating that no actual prejudice need be shown to disqualify a prosecutor involve conflicts of interest, where the prosecutor previously represented the defendant. State v. Ross, 829 S.W.2d 948, 951 (Mo. banc 1992); State v. Clampitt, 956 S.W.2d 403, 404 (Mo.App.1997); State v. Boyd, 560 S.W.2d 296, 297 (Mo.App.1977). In other words, on a motion for disqualification, an alleged conflict of interest — where the prosecutor has an interest in the defendant, rather than the victims — may justify disqualification without a showing of prejudice, although we express no opinion on that issue here, where no conflict of interest lies. But this appeal is not on a motion to disqualify the prosecutor; this is an appeal from a Rule 29.15 motion for post-conviction relief for trial counsel’s failure to move to disqualify the prosecutor. The difference in procedural posture dictates a different test. Here, the motion is to set aside a conviction on grounds that trial counsel was ineffective, and the Strickland test applies. Therefore, Mr. Adkins must show prejudice. This misapplication of conflict of interest cases also appears to underlie Mr. Adkins’s incorrect assertion that prosecutors must avoid the “appearance of impropriety.”

Because the prosecutor’s familiarity with the victims does not require disqualification, failure to move for disqualification does not constitute prejudice. But even if Mr. Scroggins should have been disqualified, prejudice likely does not lie. Mr. Adkins argues that “there was a very real possibility that a neutral prosecutor would have conveyed a reasonable plea offer” and would not have made “inflammatory arguments.” Speculation about what a different prosecutor might have done does not meet the requirement that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland 466 U.S. at 694, 104 S.Ct. 2052. We find no clear error in the motion court’s judgment.

We therefore affirm.

ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge, concur.

      . All citations are to Mo.Rev.Stat. (2000), unless otherwise indicated.


author: EDWIN H. SMITH, Chief Judge.

text:
    Anton Joseph KOTAR, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. WD 64159.
    Missouri Court of Appeals, Western District.
    Sept. 6, 2005.

      Jeffrey S. Eastman, Gladstone, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, Benita M. Seliga, Asst. Atty. Gen., Kansas City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., and LOWENSTEIN and ULRICH, JJ.
   EDWIN H. SMITH, Chief Judge.

Anton Joseph Kotar appeals the order of the Circuit Court of Clinton County upholding the administrative revocation of his driving privileges by the Director of Revenue (Director). The Director revoked the appellant's driving privileges for one year, pursuant to § 577.041.3, for his refusal to submit to a breath test, as authorized by § 577.020, after he had been arrested for driving while intoxicated (DWI).

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in revoking his driving privileges, pursuant to § 577.041.3, for refusing to submit to a breath test, as requested, because the record did not support the court’s finding, required by § 577.041.4(2)(a) to revoke, that the arresting officer had reasonable grounds to believe that he was driving a motor vehicle in an intoxicated condition. In Point II, he claims that the trial court erred in finding that he knowingly and voluntarily refused to submit to a breath test, as requested, warranting revocation of his driving privileges by the Director, in accordance with § 577.041.3, because it misinterpreted and misapplied § 577.041.1 in finding, as required, that he was granted twenty minutes to contact an attorney once he requested to speak to one.

We reverse and remand as to Point II, rendering Point I moot.

Facts

The appellant’s vehicle was stopped on July 3, 2004, at a sobriety checkpoint being conducted by the Missouri Highway Patrol at the intersection of Missouri Highway 116 and U.S. Highway 69 located in Clinton County, Missouri. Trooper John Huber, upon approaching, immediately noticed a smell of intoxicants emanating from the vehicle. At some point, Trooper Huber asked the appellant how much he had had to drink. The appellant told Trooper Huber that he had drunk one and a half beers.

Given his suspicions, Trooper Huber asked the appellant to step out of his vehicle to submit to several field sobriety tests. The appellant submitted to both the gaze nystagmus and walk-and-turn tests. He was also asked to perform the one-leg-stand test, but he declined because he thought it could not be performed properly given the conditions at the scene. During the administration of the tests, Trooper Huber noticed a moderate odor of alcohol emanating from the appellant’s breath. He also noticed that the appellant’s eyes were glassy and watery, and that his pupils were dilated. Based on the test results and his observations, Trooper Huber placed the appellant under arrest for DWI and asked him to submit to a portable breath test to be administered at the scene.

In asking him to submit to the breath test, Trooper Huber advised the appellant, inter alia, as required by § 577.041.1, that if he failed to take the test as requested, his driving privileges would be revoked immediately by the Director for one year. The appellant requested to speak to an attorney before deciding whether to submit to the breath test. Having obtained from the appellant the name of the attorney he wished to contact, John Quinn, and Quinn’s telephone number, which was obtained from the “dispatch in St. Joseph,” “Lieutenant Beydler” of the Patrol, using a cell phone provided by the Patrol, which was identified by the Director at oral argument on appeal as a personal cell phone of one of the officers, attempted to contact Quinn for twenty to twenty-five minutes, but was unsuccessful.

After again being asked to submit to a breath test, the appellant refused. As a result, his driving privileges were revoked for one year, pursuant to § 577.041.3. Pursuant to § 577.041.4, the appellant filed an application for a hearing to reinstate his driving privileges. A hearing for reinstatement under § 577.041.4 was held on February 13, 2004. On April 30, 2004, the trial court entered its judgment upholding the Director’s revocation of the appellant’s driving privileges.

This appeal followed.

Standard of Review

Our review, here, is the same as in any other judge-tried case and is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Staton v. Dir. of Revenue, State of Mo., 14 S.W.3d 282, 284 (Mo.App.2000). As such, we are to affirm the trial court’s judgment upholding the Director’s revocation of the appellant’s driving privileges, for a breathalyzer refusal, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

I.

Because we find Point II disposi-tive of this appeal, we address it alone. In Point II, the appellant claims that the trial court erred in finding that he knowingly and voluntarily refused to submit to a breath test, as requested, warranting revocation of his driving privileges by the Director, in accordance with § 577.041.3, because it misinterpreted and misapplied § 577.041.1 in finding, as required, that he was granted twenty minutes to contact an attorney once he requested to speak to one. We agree.

Section 577.041.3 mandates that the Director revoke, for one year, the license of a person under arrest for DWI for refusing, when requested by the arresting officer, to submit to a chemical test allowed pursuant to § 577.020. Pursuant to § 577.041.4, “[i]f a person’s license has been revoked because of the person’s refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred.” At the hearing, the Director has the burden of proving all the requisite elements for upholding the revocation. Testerman v. Dir. of Revenue, State of Mo., 31 S.W.3d 473, 475-76 (Mo.App.2000). In order to make a prima facie case for revocation for a refusal in a DWI case, the Director is required to show: (1) the driver was arrested; (2) the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and (3) the driver refused to submit to an authorized chemical test as requested. § 577.041.4; Mount v. Dir. of Revenue, State of Mo., 62 S.W.3d 597, 599 (Mo.App.2001). If the Director makes a prima facie case for revocation for a refusal, the burden then shifts to the driver to rebut that case by a preponderance of the evidence. Testerman, 31 S.W.3d at 475-76. It is the third element of the Director’s prima facie case for revocation, the refusal element, that is at issue in this point.

A “refusal,” for purposes of § 577.041, means declining of one’s own volition to submit to a chemical test authorized by § 577.020 when requested by an officer to do so. Mount, 62 S.W.3d at 599. A refusal occurs, in response to a request by an officer to submit to a chemical test, by expressly saying, “I refuse” or using similar language; by remaining silent; or in the ease of a breath test, by not blowing into the Breathalyzer. Id. A qualified or conditional consent or refusal is considered a refusal, except where a driver qualifies a refusal on his having an opportunity to contact an attorney, as provided in § 577.041.1. Mount, 62 S.W.3d at 599. In that regard, § 577.041.1 provides:

If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.

In other words, “[w]hen a person conditions a refusal on consulting with an attorney but is not given a reasonable opportunity to do so, the person is not deemed to have refused to submit to a chemical test,” for purposes of revoking his license, pursuant to § 577.041.3. Bacandreas v. Dir. of Revenue, State of Mo., 99 S.W.3d 497, 500 (Mo.App.2003). The purpose of the twenty-minute time requirement of § 577.041.1 “is to provide a person with a reasonable opportunity to contact an attorney.” Bacandreas, 99 S.W.3d at 500. This purpose “is met when the driver attempts to contact an attorney unsuccessfully and the twenty minute statutory period expires or the driver abandons the attempt.” McMaster v. Lohman, 941 S.W.2d 813, 817 (Mo.App.1997).

The Director concedes that when requested to submit to a breath test at the scene, the appellant conditionally refused, requesting an opportunity to contact an attorney, invoking the twenty-minute requirement of § 577.041.1. In that regard, the parties agree that Lieutenant Beydler, using a phone provided by the Patrol, attempted, but failed, within the allotted twenty minutes, to contact the attorney the appellant advised he wanted to contact, John Quinn. The State contends that Lieutenant Beydler’s attempts to contact attorney Quinn for the appellant were sufficient, under the circumstances, to satisfy the twenty-minute requirement of § 577.041.1. The appellant claims that he was effectively denied the required twenty minutes to contact an attorney in that he was not allowed an opportunity to contact Quinn personally and that he was not informed, prior to the expiration of the twenty minutes, that the efforts of Lieutenant Beydler to contact Quinn on his behalf were unsuccessful, denying him any opportunity to contact another attorney.

In determining whether Lieutenant Bey-dler’s actions, in attempting to call attorney Quinn for the appellant, were sufficient to satisfy the twenty-minute attorney requirement of § 577.041.1, as the Director contends, it is significant, as the appellant points out, that § 577.041.1 expressly provides that it is “the person” who is being asked to submit to a chemical test authorized by § 577.020 who is granted twenty minutes within which to attempt to contact an attorney. In that regard, § 577.041.1 reads: “If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney.” (Emphasis added.) “The person” obviously refers to “a person” such that there can be no doubt, giving the language used its plain and ordinary meaning, see State v. Williams, 24 S.W.3d 101, 115 (Mo.App.2000) (stating that in interpreting a statute, we are to ascertain the intent of the legislature, giving the language used its plain and ordinary meaning), that the legislature intended that the right to contact an attorney, within the allotted twenty minutes, was a right of the driver to be exercised by him personally. The statute does not authorize the arresting officer to exercise that right on the driver’s behalf or to make unilateral decisions for the driver as to the manner in which to exercise that right. And, while it seems reasonable to suggest that a driver could expressly authorize an officer to act on his behalf in attempting to contact an attorney, the Director does not argue on appeal, and there is nothing in the record to suggest, that that is what occurred here. Rather, in oral argument, the Director conceded that Lieutenant Beydler’s efforts to contact attorney Quinn on the appellant’s behalf resulted from there not being any telephone service at the sobriety checkpoint set up by the Patrol other than a personal cell phone of one of the troopers. And, while we can appreciate a trooper’s reluctance to allow a stranger to use his cell phone, the appellant’s statutory right to “personally” attempt to contact an attorney could not be ignored based on a circumstance created by the Patrol by choice, not by necessity.

In setting up the checkpoint to conduct on-site breath tests, it should have been obvious to the Patrol that it was inevitable that a driver would request an opportunity to try to contact an attorney, before deciding whether to take the requested test, such that it was necessary for the Patrol to have available the means by which a driver could exercise that statutory right. Otherwise, the Patrol could effectively trump the driver’s right to have a reasonable opportunity to contact an attorney by creating a situation where the right could not be exercised. While there might be some compelling reasons for the Patrol’s wanting to conduct on-site portable breath testing, the fact remains that it was not absolutely necessary to do so in the proper functioning of the Patrol’s duties such that their choice in doing such testing should not be used as a shield for denying drivers their rights under the Implied Consent Law of this state, including the right to have a reasonable opportunity to contact an attorney.

In unilaterally choosing to call attorney Quinn for the appellant, rather than allowing him personally to make the call, the twenty-minute attorney provision of § 577.041.1 was violated. However, the fact that a requirement of § 577.041.1 was violated does not automatically entitle the appellant to reinstatement of his license. Bacandreas, 99 S.W.3d at 500. To be entitled to such relief, the appellant has to have been actually prejudiced as a result of this non-compliance. Id. The burden, though, is on the Director to show that the appellant was not actually prejudiced by the non-compliance. Id. at 501. Here, the Director failed in that burden.

From the record, it is clear that the appellant refused the breath test because he would not take the test until he had talked with an attorney. It is also clear that the appellant had no opportunity to attempt to contact an attorney other than Quinn because Lieutenant Beydler did not inform him, until it was too late, that he was unable to contact Quinn for the appellant. Under these circumstances, the Director did not meet her burden to show that the appellant had ceased attempting to contact Quinn and intended to make no additional attempts to contact an attorney within the allotted twenty minutes. Id. And, consequently, she did not carry her burden to show that the appellant was not actually prejudiced by being denied his statutory right of a reasonable opportunity to contact an attorney, as provided in § 577.041.1. Id.

Conclusion

The judgment of the Circuit Court of Clinton County, upholding the Director’s administrative revocation of the appellant’s license for a breath test refusal, is reversed and the cause remanded for the court to enter its order directing the Director to set aside the revocation of the appellant’s license.

LOWENSTEIN and ULRICH, JJ., concur.

      . The record does not indicate what Lieutenant Beydler’s first name is.


text:
    STATE of Missouri, Respondent, v. Timothy L. DRAPER, Appellant.
    No. WD 64496.
    Missouri Court of Appeals, Western District.
    Sept. 6, 2005.
    Rosalynn Koch, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Timothy Draper appeals his conviction following jury trial for the class B felony of committing violence against an offender, section 217.385, RSMo 2000, and sentence of five years imprisonment. Mr. Draper raises one point on appeal. He contends that the trial court erred in allowing Cynthia Rushefsky’s testimony regarding a possible motive for Mr. Draper’s actions because there was no evidence Mr. Draper had any knowledge of the facts constituting the motive to which Ms. Rushefsky testified and thus the testimony was irrelevant. The judgment of conviction is affirmed. Rule 30.25(b).


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

text:
    CITY OF KANSAS CITY, Respondent, v. McArthur TYSON, Appellant.
    No. WD 64326.
    Missouri Court of Appeals, Western District.
    Sept. 6, 2005.

      Donald P. Herron, Independence, for appellant.
    Todd Darren Wilcher, Kansas City, for respondent.
   PAUL M. SPINDEN, Judge.

A jury convicted McArthur Tyson of violating Kansas City Ordinance Section 80-212(10) by operating a demolition debris landfill in a Kansas City residential yard without a permit. We reverse the circuit court’s judgment.

Tyson owned and operated TSC, Inc., a concrete construction business. After Tyson tried unsuccessfully to obtain a conditional use permit, his neighbors and a city inspector saw dump tracks with the TSC logo on their doors enter Tyson’s land and dump asphalt, concrete, and dirt. City prosecutors filed an information against Tyson, charging him with unauthorized use of the premises in violation of the city code.

The Municipal Division of the Jackson County Circuit Court entered judgment against Tyson. Tyson then applied for a trial de novo in circuit court, which also entered judgment against him.

Tyson presents several grounds for appeal, but we reverse Tyson’s conviction on the ground that the city did not make a 'prima facie case against him. Although this is a civil action involving violation of a municipal ordinance, it was gwm-criminal; hence, the city’s burden was to prove beyond a reasonable doubt that Tyson had violated its ordinance. City of Cape Girardeau v. Jones, 725 S.W.2d 904, 907 (Mo.App.1987).

Kansas City ordinance Section 80-212(10)a requires citizens to obtain a conditional use permit before maintaining demolition debris landfills on their property. The ordinance defines a demolition debris landfill as “a place designated for the disposal of used building materials resulting from the demolition, site clearance or waste materials from the construction of buildings or structures.” Section 80-212(10)a. The ordinance further defines “used building materials” as “any and all material requiring disposal resulting from the demolition, site clearance or construction of buildings.” Section 80-212(10)b.

The ordinance is ambiguous. It is beguiling in its declaration in Section 80-212(10)a, on the one hand, that a demolition debris landfill is “a place designated for used building materials resulting from the demolition ... of buildings or structures but, on the other hand, defining “used building materials” in Section 80-212(10)b as materials resulting from destruction of only “buildings” and not “structures.” We suspect that this ambiguity may have resulted from a drafting error. Regardless, the rule of lenity requires that we construe ambiguities in penal statutes against the government “and in favor of persons on whom such penalties are sought to be imposed.” J.S. v. Beaird, 28 S.W.3d 875, 877 (Mo. banc 2000). Construing the ordinance in this manner, we deem the city’s burden to prove that Tyson dumped materials that came from the destruction, site clearance, or construction of buildings, as opposed to all structures.

Amy Buford, the city inspector who investigated this case, testified that the trucks that she saw dumping on Tyson’s land were dumping dirt, concrete, and asphalt. Photographs of the debris showed only dirt and what appeared to be large chunks of asphalt or concrete. The city introduced no evidence that the debris came from the destruction, site clearance, or construction of buildings, as it was required to do. It was not enough to infer that the materials came from the construction or destruction of a structure — the city needed to establish that the debris came from buildings. This it failed to do.

Thus, we reverse the circuit court’s judgment convicting Tyson of violating the city’s ordinances.

PATRICIA BRECKENRIDGE, Judge, concurs.

JAMES M. SMART, JR., Presiding Judge, concurs in a separate opinion.

JAMES M. SMART, JR., Judge,

concurring.

I concur in reversing the judgment of the trial court. I write separately because I believe there is an additional reason to reverse the judgment. Tyson’s defense at trial was that the material deposited on his property was “clean fill.” He was entitled to use clean fill in his own yard (pursuant to section 260.210.10(1)) unless prohibited by local ordinance. He argued that there was no local prohibition against the use of clean fill in his own yard for fill purposes so that he could install a swimming pool. He argues that the trial court erred in precluding him from asserting this defense.

“Clean fill,” as defined by section 260.200(4) is “uncontaminated soil, rock, sand, gravel, concrete, asphaltic concrete, cinder blocks, brick, minimal amounts of wood and metal, and inert solids as approved by rule or policy of the department for fill, reclamation or other beneficial use.” The same definition is provided in ordinance number 62-121. According to section 260.210.10(1), a person “engaged in an activity that produces clean fill may use such material for fill, reclamation or other beneficial purposes on his or her own property or on the property of another person with the permission of the owner of such property, provided that such use does not violate any state law or local ordinance or order.”

The City says Tyson would have needed a conditional use permit to dump clean fill on his property for fill purposes. The City, however, fails to show the existence of an ordinance specifically limiting or prohibiting the use of clean fill in the City of Kansas City as authorized by section 260.210.10(1) of the state statutes. The City apparently believes such permit is required for clean fill on the assumption that clean fill is included within the definition of “used building material.” However, the definition of “used building material” does not specifically refer to “clean fill” or make any reference to the state statute permitting “clean fill” use for certain purposes. I also agree with the majority that the definition of “used building material” does not include clean fill unless such clean fill has come from demolition of buildings.

Tyson wished to testify that he was attempting to use clean fill for the purpose of installing a swimming pool on his property. Through his business activities he generated the material he wished to deposit on his own property. The pictures and the testimony show that the material that he deposited was clean soil with chunks of asphalt or concrete. There is no evidence of any wood or metal or trash or any other form of debris. The pictures and the testimony, in short, were entirely consistent with his defense.

Without any showing by the City that the use of clean fill on one’s own property was regulated by ordinance, Tyson should have been permitted to raise his proposed state-law defense to the “demolition landfill” charge. He should have been permitted to submit that defense pursuant to section 260.210.10(1). Because there was no evidence by the prosecution that the material deposited on his property was anything other than clean fill, and the pictures and testimony showed nothing other than clean fill, and because there was no evidence that Tyson was using the material for anything other than beneficial fill purposes on his property, Tyson was entitled to a judgment of acquittal at the close of the prosecution’s case. I agree that the judgment must be reversed.

      . We added the emphasis.


author: ANDELL, -Justice.

text:
    Frank GARCIA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 01-98-00439-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 17, 1999.
    Publication Ordered July 14, 1999.
    Discretionary Review Refused Nov. 24, 1999.

      Leonard Mitchell Rubin, Houston, for Appellant.
    John F. Healey, Jr., Greg Gilleland, Richmond, for State.
    Panel consists of Chief Justice SCHNEIDER and Justices HEDGES and ANDELL.
   OPINION

ANDELL, -Justice.

A jury found appellant guilty of aggravated assault, found both enhancement paragraphs true, and assessed punishment at 32 years confinement. In six points of error, appellant contends: (1) the evidence was legally and factually insufficient; (2) the jury’s non-answer of a special issue constituted error; (3) the trial court erred in refusing to submit a jury instruction; and (4) the admission of extraneous conduct evidence was error. We affirm.

Facts

Appellant and his girlfriend Mary Perez went to a New Year’s Eve party at a home in Fort Bend County. During the party, Perez danced with the complainant, Anthony Solis, a cousin of appellant. This angered appellant, and he took Perez into a bedroom where he yelled and attempted to strike her. Perez danced with the complainant again, and appellant called Perez outside. Appellant threw her to the ground, put a razor-edged box cutter to her throat, and threatened to stab her. Complainant then attempted to talk to appellant, and a fist fight ensued. After the two quit fighting, they reconciled. A short time later, appellant emerged from the house and stabbed the complainant with a sharp razor-edged object.

LEGAL AND FACTUAL SUFFICIENCY

In points of error one and two, appellant contends the evidence was legally and factually insufficient to prove appellant used or exhibited a deadly weapon. In point of error three, appellant contends the trial court erred by denying his motion for an instructed verdict.

A motion for an instructed verdict is an attack on the legal sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990); Rohrscheib v. State, 934 S.W.2d 909, 910 (Tex.App. — Houston [1st Dist.] 1996, no pet.). The standard for reviewing the legal sufficiency of evidence to support a conviction is whether, after reviewing the evidence in a light most favorable to the verdict, any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Banda v. State, 890 S.W.2d 42, 50 (Tex.Crim.App.1994).

In reviewing factual sufficiency of the evidence, we view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 131 (Tex.Crim.App.1996); Wilkerson v. State, 920 S.W.2d 404, 407 (Tex.App. — Houston [1st Dist.] 1996, no pet.). We apply the factual sufficiency test to the facts without the prism of “in the light most favorable to the verdict.” Clewis, 922 S.W.2d at 135.

A person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another, or intentionally or - knowingly threatens or injures another with a deadly weapon. See Tex. Penal Code Ann. § 22.01 & 22.02(a)(2) (Vernon Supp.1999). A deadly weapon is defined as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. 1.07(a)(17) (Vernon Supp.1999). Although a knife is not a deadly weapon per se, a knife can be found to be a deadly weapon based on the nature of its use or intended use. See Thomas v. State, 821 S.W.2d 616, 619-620 (Tex.Crim.App.1991). Factors which are important in determining whether a knife is a deadly weapon in its use or intended use are:

1. Size, shape, and sharpness of the knife
2. Manner of its use or intended use
3. The nature or existence of inflicted wounds
4. Testimony of the knife’s life-threatening capabilities.

Id. at 619; see Tex. Penal Code Ann. 1.07(a)(17)(B); Batro v. State, 635 S.W.2d 156, 158 (Tex.App. — Houston [1st Dist.] 1982, pet. refd.). The fact finder must examine each case on all of its facts to determine whether the knife is a deadly weapon. Thomas, 821 S.W.2d at 619. The jury can also consider the wounds inflicted on the victim in determining whether a knife is a deadly weapon. Bethel v. State, 842 S.W.2d 804, 807 (Tex.App. — Houston [1st Dist.] 1992, no pet.).

The nature, location, and severity of the wounds will be considered in determining whether the knife was a deadly weapon. Williams v. State, 477 S.W.2d 24, 25 (Tex.Crim.App.1972); Didion v. State, 625 S.W.2d 436, 439 (Tex.App.—Houston [14th Dist.] 1981, pet. ref d.).

Although the actual weapon in this case was never recovered, Perez testified that she saw appellant come out of the' house before the stabbing “with the knife—the box cutter that he used on me.” At trial, Perez and Frank Flores, who also witnessed the stabbing, demonstrated how appellant stabbed the complainant. Perez and Flores testified the complainant bled profusely after he was stabbed.

In his medical records, the complainant complained that he had been cut with a razor. The complainant suffered scarring from the stabbing. The doctor who treated the complainant testified that the laceration on the left side of the complainant’s chest was a clean cut wound caused by a sharp object. The doctor testified that the stabbing wound was close to the spleen and the base of the lung. The doctor testified that in his medical opinion, the stabbing wound could have created a substantial risk of serious bodily injury.

We conclude that any rational fact finder could have found the essential elements of aggravated assault beyond a reasonable doubt. We do not find the verdict to be clearly wrong and unjust. Accordingly, we overrule points of error one, two, and three.

SPECIAL ISSUE

In point of error four, appellant contends the trial court erred in accepting an incomplete jury verdict because the jury failed to answer the special issue as to whether appellant used a deadly weapon.

In Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App.1985), the Court of Criminal Appeals held that the trial court may properly enter an affirmative finding concerning the defendant’s use or exhibition of a deadly weapon or firearm during the commission of the offense if the deadly weapon or firearm has been specifically pleaded as such in the indictment. Id.

In our case, the indictment alleges, in pertinent part, that appellant did “intentionally, knowingly, and recklessly cause bodily injury to ANTHONY SOLIS by STABBING ANTHONY SOLIS, and the [appellant] did then . and there use and exhibit a deadly weapon, to wit: A KNIFE, during the commission of said assault.” The jury did not answer the special issue which asked whether appellant “did use or exhibit a deadly weapon, to-wit: an unknown object, that in the manner of its use or intended use was capable of causing death or serious bodily injury.” However, it was unnecessary because the jury found appellant “guilty of aggravated assault as charged in the indictment.” We find no error in the trial court’s acceptance of the jury’s verdict. We overrule point of error four.

JURY INSTRUCTION

In point of error five, appellant contends the trial court erred by refusing to instruct the jury on the lesser included offense of assault. Appellant argues that he was entitled to the instruction because the box-cutter appellant cut the complainant with was not a deadly weapon per se. The State maintains that the trial court properly denied appellant’s request because the evidence did not support it. We agree with the State.

A defendant is entitled to a jury charge on a lesser included offense if (1) the lesser included offense is subsumed in the proof necessary to establish the offense charged, and (2) some evidence in the record “would permit a jury rationally to find” that the defendant, if guilty, is guilty only of the lesser offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993). If a defendant presents no evidence and no evidence otherwise raises the issue of a lesser offense, a charge is not required. Aguilar, 682 S.W.2d at 558.

In reviewing a court’s decision not to give a charge on a lesser offense, we examine all of the evidence presented at trial, regardless of whether it is credible, controverted, or conflicting. Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App.1984); Hobson v. State, 644 S.W.2d 473, 477 (Tex.Crim.App.1983). However, the evidence may not be “plucked out of the record and examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986).

At trial, Perez testified appellant threw her to the ground, held a razor-edged box-cutter to her throat and threatened to cut' her throat. Perez and Flores both testified that the complainant bled profusely after he was stabbed. The doctor who treated the complainant testified that the laceration on the left side of the complainant’s chest was a clean cut wound caused by a sharp object. The doctor also testified that the stabbing wound was close to the spleen and the base of the lung. In his medical opinion, the stabbing wound could have created a substantial risk of serious bodily injury for the complainant.

We do not believe the evidence in the record “would permit a jury rationally to find” that appellant, if guilty, was guilty only of the lesser offense of assault. There was no evidence that the injury appellant inflicted was merely bodily injury instead of serious bodily injury. Accordingly, we overrule point of error five.

EXTRANEOUS CONDUCT EVIDENCE

In point of error six, appellant contends the trial court erred by admitting evidence of extraneous misconduct due to its irrelevancy. Specifically, appellant complains of the relevancy of Mary Perez’s testimony that appellant assaulted her with a razor-edged box-cutter five hours before he assaulted the complainant. The State contends the testimony was relevant and admissible because it showed appellant’s motive, intent, and plan in stabbing the complainant.

A defendant must be tried for the offense with which he is charged. He may not be tried for a collateral crime or for being a criminal generally. Tex. R. Evid. 401, 404(b); Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex.Crim.App.1972). When the State attempts to adduce evidence of “other crimes, wrongs, or acts,” the defendant must object in a timely fashion to preserve his complaint for appeal. Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1991). After objection, the State must satisfy the court that the other crime, wrong, or act has relevance apart from its tendency to prove the defendant’s character to show that he acted in conformity with it. Tex. R. Evid. 404(b). If the court decides that the evidence has “ho relevance apart from character conformity,” then it is inadmissible. Montgomery, 810 S.W.2d at 387.

The State may, however, persuade the court that the evidence has relevance apart from character conformity, i.e., that some “other purpose” such as those set forth in rule 404(b) will be served by admission of the evidence. Id. at 387-88; Tex. R. Evid. 401, 404(b). The relevance may be that the evidence “tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary facts, such as motive, opportunity, or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory.” Montgomery, 810 S.W.2d at 387-88. The Court of Criminal Appeals has determined that background evidence is one of the “other purposes” contemplated by rule 404(b). Mayes v. State, 816 S.W.2d 79, 86 (Tex.Crim.App.1991). However, before it is admissible under rule 404(b), it must meet a two-part test. Rogers v. State, 853 S.W.2d 29, 32 (Tex.Crim.App.1993); Mayes, 816 S.W.2d at 84-87. First, the background evidence must be relevant under rule 401. Rogers, 853 S.W.2d at 32; Mayes, 816 S.W.2d at 84. Although the State is permitted to offer evidence of what happened before and after the commission of the offense, the evidence must be relevant to something at issue in the case and not inherently prejudicial. Christopher v. State, 833 S.W.2d 526, 529 (Tex.Crim.App.1992). Second, if the evidence is relevant, the court must determine whether the evidence fits under one of the exceptions’ to rule 404(b). Rogers, 853 S.W.2d at 32; Mayes, 816 S.W.2d at 85.

The Court of Criminal Appeals has distinguished two types of background evidence: (1) evidence of other offenses connected with the primary offense, referred to as “same transaction contextual evidence” and (2) general background evidence referred to as “background contextual evidence.” Mayes, 816 S.W.2d at 86-87. Same transaction contextual evidence is admissible when “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.” Id. at 86 n. 4 (citing Nichols v. State, 97 Tex.Crim. 174, 260 S.W. 1050 (1924)). In other words, the evidence must be “necessary to the'jury’s understanding of the instant offense” because the. circumstances of the offense would “make little or no sense” without the admission of the same transaction contextual evidence. Rogers, 853 S.W.2d at 33. “Necessity” suffices for “other purpose” under rule 404(b). Id.

Perez testified appellant yelled at her and attempted to strike her after she danced with the complainant. Perez testified that appellant threatened to stab her after she danced with the complainant again. A fist fight ensued after the complainant spoke with appellant.

We conclude that Perez’s testimony was relevant because it reveals a motive behind appellant stabbing the complainant after the complainant danced with appellant’s girlfriend. We also conclude that Perez’s testimony was “necessary to the jury’s understanding” of the stabbing because appellant’s assault of Perez showed the events that led up to the stabbing of the complainant. We, therefore, find no error in the admission of this evidence under an exception to rule 404(b) as “same transaction contextual evidence.” Mayes, 816 S.W.2d at 86; Tex. R. Evro. 404(b).

We overrule point .of error six and affirm the trial court’s judgment.