author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronnie L. NEWBERRY, Defendant-Appellant.
    Nos. 25907, 26398.
    Missouri Court of Appeals, Southern District, Division Two.
    March 11, 2005.

      Melinda K. Pendergraph, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

In May 2002, Ronnie Newberry (“Defendant”) was charged by information with committing four felonies. Count I charged Defendant with murder in the second degree for killing Clarence Winters (“Clarence”) by striking him with a hammer. § 565.021.1. Count II charged Defendant with armed criminal action for committing second degree murder with a dangerous instrument. § 571.015.1. Count III charged Defendant with assault in the first degree for attempting to kill or cause serious physical injury to Bill Vaughn (“Bill”) by striking him with a hammer. § 565.050.1. Count IV charged Defendant with armed criminal action for committing first degree assault with a dangerous instrument. § 571.015.1.

As required by § 557.036 (Cum.Supp. 2004), the case was tried to a jury in a bifurcated proceeding. In the first stage of the trial, the jurors only decided whether Defendant was innocent or guilty of the submitted offenses. See § 557.036.2 (Cum. Supp.2004). On Count I, Defendant was convicted of the lesser-included offense of voluntary manslaughter for killing Clarence. See § 565.025.2(2)(a). On Count III, Defendant was convicted of the lesser-included offense of assault in the second degree for seriously injuring Bill. See MAI-CR 3d 319.06; MAI-CR 3d 319.10. Defendant also was found guilty on both counts of armed criminal action. In the penalty phase of the trial, the jury recommended the following terms of imprisonment as punishment: 15 years for Count I; 10 years for Count II; 7 years for Count III; and 7 years for Count IV. The trial court followed the jury’s recommendations when entering judgment. The sentences on Counts I and II were ordered to run concurrently. The sentences on Counts III and IV were ordered to run concurrently with each other, but consecutively with the sentences imposed on Counts I and II.

Defendant has appealed the judgment and sentences, presenting two points for decision. The first point asserts that the trial court erred in refusing to give Defendant’s tendered Instructions A and C. Instruction A would have submitted the lesser-included offense of involuntary manslaughter in the first degree for the jury’s consideration. Instruction C would have submitted the offense of armed criminal action with involuntary manslaughter hypothesized as the underlying felony. Defendant claims these instructions should have been given because there was an evidentiary basis upon which the jury could have found that Defendant acted recklessly in killing Clarence with a hammer. The second point asserts that the trial court erred in overruling Defendant’s objection to the testimony of two police officers about statements Defendant made to them before his arrival at the police station. Defendant claims these statements were inadmissible because he was subjected to custodial interrogation without being given his Miranda warning. We affirm.

Defendant does not challenge the sufficiency of the evidence to sustain his convictions. In this appeal, we consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences. State v. Cravens, 132 S.W.3d 919, 921 (Mo.App.2004); State v. Campbell, 122 S.W.3d 736, 737 (Mo.App.2004). Viewed from that perspective, the favorable evidence supporting the State’s case against Defendant is summarized below.

Mary Winters (“Mary”) and Martha Barton (“Martha”) are sisters. In February 2002, Mary was married to Clarence. They lived in a house on Douglas Street in Springfield, Missouri, along with their 10-year-old grandson, H.R. Winters (“H.R.”). Martha lived in Mansfield, Missouri, with her boyfriend, Bill. Although Bill lived with Martha, he was still married to the Winters’ daughter, Velma Vaughn (‘Velma”). Bill and Velma were estranged and had been separated for five years. Velma lived in Versailles, Missouri, with Defendant and their two children, Violet and Lena.

On February 3, 2002, Defendant came to Springfield with Velma and Lena, who was then four months old. They arrived at the Winters’ home before noon. That same day, Martha and Bill drove from Mansfield to Springfield. They arrived at the Winters’ home around 2:15 p.m.

The adults visited with one another in the living room of the Winters’ home while H.R. played outside. Clarence, who had suffered a stroke six years earlier, was seated in a chair. He could no longer walk and used a walker or wheelchair to get around. He had also lost the use of his left hand as a result of the stroke. Bill was sitting on a couch near Clarence’s chair. Defendant, Velma and Lena were sitting together on another couch in the same room. The plan was to eat supper together and watch the Super Bowl on television.

Everything was calm while all of the adults were together. No one was fighting or arguing with anyone else. Clarence and Bill had known each other for 15-20 years and always got along well. Around 5:00 p.m., Mary and Martha left the Winters’ home to visit their brother, who lived about five minutes away by automobile from Mary’s house. They were gone about 15 minutes.

While Mary and Martha were out, Defendant severely injured Clarence and Bill. Velma and H.R. each testified about what happened. H.R. was playing in the backyard when he heard Clarence yell for help. H.R. ran around to the front of the house and up onto the porch. Once there, H.R. saw Defendant hit Clarence with Defendant’s yellow-handled hammer. Bill was still sitting on the couch and yelled at H.R. to call the police. Defendant then struck Bill with the hammer. After doing so, Defendant threatened to kill H.R. if he told anyone what he had seen. Despite the threat, H.R. ran down the street to call the police.

H.R.’s account of what happened was corroborated by Velma. She testified that she was sitting on one couch, feeding Lena a bottle. Clarence was in his chair, and Bill was sitting on the other couch. "While they were talking to each other, Defendant left the room and went outside. "When he came back into the living room, he was holding his yellow-handled claw hammer. Defendant used the hammer to strike Clarence on the left side of his forehead. Next, Defendant struck Bill on the back of the head with the hammer. Neither Clarence nor Bill had offered any resistance or attempted to fight with Defendant before being struck in the head with the hammer.

About the time Defendant’s attack upon the victims concluded, Mary and Martha returned from visiting their brother. As they were getting out of the Winters’ van, H.R. ran up and told them Clarence was hurt. Defendant and Velma, who was carrying Lena, ran out of the house and got into the van. They drove to the home of Velma’s brother, who also lived in Springfield.

Mary and Martha went inside and found Clarence bleeding profusely with a large wound on his forehead. A portion of Clarence’s brain was protruding through the hole in his forehead. He was still sitting in the same chair in which he had been seated when Mary and Martha left. Likewise, Bill was still sitting on the same couch where he had been when Mary and Martha left. He was leaning forward with his head down. The back of his head was cut and bleeding profusely. His eyes were open, but he was unable to move or speak. The women provided first aid until the paramedics arrived. Bill and Clarence were both taken from the scene to St. John’s Hospital.

Police arrived at the Winters’ home at approximately the same time as emergency personnel. Shortly after 6:00 p.m., Defendant, Velma and Lena returned to the scene in the Winters’ van. Officer Kent Bishop (“Officer Bishop”) approached the van and asked Defendant if he knew anything about what was going on inside the house. Defendant replied that he came out of the bathroom and “they were trying to rape the baby, so he hit them.” Defendant was handcuffed and detained for questioning. While Defendant was riding in a patrol car driven by Officer Jonathan Spaeth (“Officer Spaeth”), Defendant voluntarily stated that when he came out of the bathroom, Bill was trying to rape Lena.

After Defendant arrived at the police station, Defendant was read his Miranda rights. He then voluntarily gave two videotaped statements to police. Each statement. was over an hour in length. Edited versions of the statements were played for the jury. In both statements, Defendant claimed Clarence and Bill injured each other during an altercation. Defendant said he was not involved, other than to remove Lena from the living room to keep her from getting hurt. Defendant claimed the altercation resulted because Bill tried to rape Lena, and Clarence tried to stop him from doing so.

On February 4, 2002, Clarence died at St. John’s Hospital. Dr. James Shelly, the pathologist, who performed an autopsy on Clarence, found only two injuries on Clarence’s body, both to his head. He had a small laceration on his upper left eyebrow and a penetrating injury in his left forehead. Brain tissue had extruded into this wound opening. Two pieces of bone, which remained attached to the skull on each side of the opening like a door on a hinge, had been driven backwards at a 45-degree angle about 1 inch into the temporal lobe of Clarence’s brain. One bone fragment measured about 3.5 centimeters in length. This fragment was pushed 2.5 centimeters down into the brain. The other bone fragment measured 2 inches in length and 1 inch in width. The penetrating wound to Clarence’s skull caused a circumferential fracture, which permitted the parts of the skull above and below the fracture to move independently of one another. This wound extended 2 inches into the brain. Dr. Shelly opined that Clarence’s injuries were consistent with being struck in the forehead with the claw end of a hammer. The penetration of the hammer claw and the bone fragments caused severe tissue damage and extensive hemorrhaging into the brain. Dr. Shelly had only seen similar, deep penetrating brain injuries caused by bullets. Such a wound could only be caused by an action involving tremendous force, like a gunshot, automobile accident or dropping a front-end loader on someone’s head. The penetrating hammer blow would have been immediately incapacitating, making any further defense or movement impossible. It was this single blow which ultimately caused Clarence’s death.

Defendant also inflicted severe, permanent injuries upon his other victim. Bill spent three weeks in the hospital and six months at the rehabilitation center in Mt. Vernon, Missouri. Despite this lengthy treatment, his right arm remains paralyzed; his ability to walk is substantially limited; and he is no longer able to speak, except to say “Yes” or “No.”

Additional facts necessary to the disposition of the case are included below as we address Defendant’s two points on appeal.

Point I

Defendant’s first point posits trial court error in refusing to give Instructions A and C. As noted above, these proposed instructions relate solely to Defendant’s criminal responsibility for Clarence’s death.

Voluntary manslaughter for causing death under the influence of sudden passion arising from adequate cause and involuntary manslaughter in the first degree for recklessly causing death are both lesser-included offenses of murder in the second degree. See §§ 565.023.1(1); 565.024.1(1); 565.025.2(2)(a)-(b). At the instruction conference, Defendant tendered Instruction 5, which was patterned after MAI-CR 3d 313.04. This instruction submitted the offense of murder in the second degree (conventional) for striking Clarence with a hammer when Defendant knew or was aware that his conduct was causing or was practically certain to cause Clarence’s death. At Defendant’s request, this instruction included paragraph Third requiring the jurors to determine whether Defendant did so under the influence of sudden passion arising from adequate cause. The trial court granted Defendant’s request to give this instruction.

Since the issue of sudden passion was submitted in Instruction 5, Defendant tendered Instruction 7, which submitted the lesser-included offense of voluntary manslaughter for killing Clarence. See MAI-CR 3d 313.08; § 565.023.1(1); § 565.025.2(2)(a). The trial court granted Defendant’s request to give this instruction.

Defendant also tendered Instruction A, which submitted the lesser-included offense of involuntary manslaughter. This instruction was patterned after MAI-CR 3d 313.10 and hypothesized that Defendant recklessly caused Clarence’s death by striking him with a hammer. Defendant’s counsel argued this instruction should be given because “the evidence and interpretation of the evidence could be that [Defendant’s] actions were reckless. One of the statements that Velma made is that [Defendant] accidentally hit Bill, and we believe that the same could apply to Clarence Winters, and we would submit involuntary manslaughter.” Defendant also tendered Instruction C, which submitted the offense of armed criminal action based on an underlying felony of involuntary manslaughter in the first degree. The trial court refused Defendant’s request to give these two instructions. He challenges both rulings on appeal.

In reviewing whether a trial court erred in failing to instruct the jury on a lesser-included offense, we review the evidence in a light most favorable to the defendant. State v. Williams, 66 S.W.3d 148, 155 (Mo.App.2001); State v. Battle, 32 S.W.3d 193, 195 (Mo.App.2000). Nevertheless, a defendant is not entitled to an instruction on a lesser-included offense unless the instruction is supported by the evidence and any logical inferences derived from that evidence. Williams, 66 S.W.3d at 155; Battle, 32 S.W.3d at 196.

Our resolution of this point is governed by statute. Defendant was charged with murder in the second degree for killing Clarence. Section 556.046.1 states, in pertinent part, that “[a] defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when: ... (2) It is specifically denominated by statute as a lesser degree of the offense charged ....” As noted above, involuntary manslaughter is specifically denominated as a lesser degree of second degree murder. § 565.025.2(2)(b). Nevertheless, “[t]he court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” § 556.046.2. Therefore, we must decide whether there was a basis for the jury to acquit Defendant of second degree murder, but convict him of involuntary manslaughter.

As relevant here, a person commits the crime of second degree murder if he or she “[k]nowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person .... ” § 565.021.1(1). A person commits the crime of involuntary manslaughter in the first degree if he or she, inter alia, “[r]ecklessly causes the death of another person .... ” § 565.024.1(1). A person acts recklessly “when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” § 562.016.4. To put a finer point on the issue presented, the question is whether there was a basis for the jury to acquit Defendant of second degree murder, but to convict him of first degree involuntary manslaughter, because he acted recklessly, rather than knowingly, in killing Clarence.

Viewing the evidence and any logical inferences flowing therefrom in a light most favorable to Defendant, we find nothing to rationally support the conclusion that Defendant did not act knowingly in killing Clarence. Defendant did not testify at trial. The two videotaped statements he gave to police would not support an involuntary manslaughter instruction because Defendant blamed Clarence’s injuries on Bill. At the instruction conference, defense counsel argued an involuntary manslaughter instruction was supported by Velma’s testimony. The judge was not persuaded, and we believe his decision was correct.

During Martha’s cross-examination, she testified that she spoke with Velma at the crime scene after she returned with Defendant; Velma said, “Bill had hit Clarence.” Velma was called as a prosecution witness and testified that she saw Defendant, without provocation, hit Clarence and Bill in the head with a hammer. During cross-examination by defense counsel, Velma was asked about inconsistent stories she had told Martha and the police. Velma denied that she ever told Martha that Bill hit Clarence. Velma admitted, however, that during questioning at the police station, she initially denied knowing anything about what happened and claimed to have been in the bedroom listening to the radio the whole time. She then gave the following testimony:

Q. Okay. And when you were talking with the police officer some more, the police officer told you that he didn’t think you were telling the truth?
A. Yes.
Q. And so then you told the police officer that Bill had reached for the hammer?
A. No.
Q. You didn’t tell him that?
A. No.
Q. And you told the police officer that Bill had accidentally been struck with the hammer?
A. Yes.
Q. And you told the police officer that?
A. Yes.
Q. And the police officer told you that he didn’t think you were telling the truth?
A. Yes.
Q. And that’s when you told him that [Defendant] hit him with the hammer?
A. Yes.

On redirect, Velma testified that she did not initially tell the police what she knew because she was scared. She was afraid she would go to jail as well because she was in the house when the incident happened.

Taken together and considered in context, the testimony of Martha and Velma would only support the conclusion that Bill had been accidentally struck with the hammer during an altercation with Clarence. Their testimony would not support the conclusion that Defendant accidentally struck Clarence.

On appeal, Defendant has changed his position from that advanced at trial. He now argues the involuntary manslaughter instruction should have been given because the State introduced Defendant’s statement, made to Officer Bishop at the scene, that Defendant “came out of the bathroom, that they were trying to rape the baby, so he hit them.” Defendant argues this statement would permit the jury to find that Defendant was trying to defend his daughter from a sexual assault, but responded to the threat recklessly by inflicting an ill-aimed blow to Clarence’s head. We disagree.

In State v. Williams, 66 S.W.3d 143 (Mo.App.2001), Williams injected the victim with a lethal dose of methamphetamine. Williams later told police that she meant to kill or seriously injure the victim when she gave him the drugs. Id. at 155-56. Williams was charged with second degree murder. At trial, Williams tendered an instruction on involuntary manslaughter based on the argument that she acted recklessly in killing the victim. The trial court refused to give the instruction. On appeal, this Court concluded that, even when viewed favorably to Williams, the evidence showed she was practically certain the victim would be killed or seriously injured by the drug overdose. Id. at 156. No involuntary manslaughter instruction should have been given because “we can find nothing that would indicate a jury could conclude that Defendant did not act knowingly.” Id.

In State v. Brummall, 51 S.W.3d 113 (Mo.App.2001), the female victim had been stabbed numerous times and was found dead with a knife sticking out of her face. Brummall’s blood was found on an entertainment center in the room where the victim was stabbed. Forensic examiners also found blood from one or two people other than the victim on the knife. Brum-mall could not be excluded as a possible source of this blood. Hairs not belonging to either Brummall or the victim were found on her body. Brummall was charged with first degree murder and found guilty of second degree murder. At trial, Brummall offered an instruction on involuntary manslaughter. The trial court refused the instruction. On appeal, the Western District affirmed that ruling:

Brummall contends that there was no evidence as to exactly what happened during the altercation that resulted in Jamie’s death, and there was no evidence of how many people were in the house at the time Jamie was killed. Brummall further contends that evidence of another unknown person’s DNA was found on the handle of the knife, and numerous hairs, not consistent with his hair, were found on Jamie’s body, and therefore the possibility of one or more other people being present during the altercation cannot be ruled out. Brummall argues that the jury reasonably could have inferred that any role he played in the stabbing of Jamie was a reckless response to injuries inflicted on him at the scene. Again, we find there was no evidence by which a reasonable jury could find that Brum-mall recklessly caused Jamie’s death, and any such finding by the jury would be based on pure speculation.

Id. at 117-18.

In State v. Deckard, 18 S.W.3d 495 (Mo.App.2000), Deckard entered a pizza restaurant holding a shotgun. In an angry tone, Deckard told the victim, who was standing behind the counter, to come outside. Deckard pointed the shotgun at the victim’s head when he reached for a telephone. Deckard ordered the victim to place the phone back in the receiver. After victim complied, he was shot in the head. Deckard was charged with first degree murder. At trial, the court instructed the jury on first degree murder and refused Deckard’s tendered instructions on second degree murder, voluntary manslaughter and involuntary manslaughter. On appeal, Deckard argued the trial court erred in refusing the instruction on involuntary manslaughter. Deckard asserted the jury could have found he acted recklessly, based on evidence that he took the gun inside the restaurant to intimidate the victim and thought the weapon was unloaded. This Court rejected Deckard’s argument. Since a person is presumed to have intended for death to follow from acts which are likely to produce that result, we held that Deckard’s actions “transcended recklessness” and that “no rational factfin-der could conclude [Deckard] did not act knowingly.” Id. at 503-04.

In State v. Hamlett, 756 S.W.2d 197 (Mo.App.1988), an argument occurred between Hamlett and the victim, who was seated in a car. According to Hamlett, the victim got out of the car and then appeared to be reaching for a gun or tire tool. Without waiting to find out, Hamlett intentionally kicked victim in the throat. Hamlett then used his fists to hit victim in the head three or four times. Hamlett kicked victim again and hit him two more times before victim fell to the ground. Victim died of a massive brain hemorrhage caused by one or more blows to the head. Id. at 200. At trial, the court gave instructions on second degree murder and voluntary manslaughter, but it refused Hamlett’s request for an instruction on involuntary manslaughter. On appeal, we affirmed that ruling because Hamlett’s “attack on [victim] was deliberate, not accidental, and even if Hamlett, as he says, had no desire to kill [victim], such a result followed. Since the assault, by fists and feet, was a means likely to produce death, Hamlett is presumed to have intended that death would follow his acts.” Id. at 200-01.

Applying the foregoing precedents here, the trial court properly refused to give an involuntary manslaughter instruction because there was no evidentiary basis upon which the jury reasonably could have acquitted Defendant of second degree murder. Even viewed favorably to Defendant, the evidence shows he acted knowingly in killing Clarence. Defendant’s statement to Officer Bishop confirmed that Defendant intentionally hit Clarence in the head with a hammer. The blow was so powerful that it cracked his skull around its entire circumference, and it pushed large fragments of bone into his brain. The claw of the hammer penetrated two inches into Clarence’s brain, causing destruction of brain tissue and extensive hemorrhaging. Death would be practically certain to result from such a blow. In sum, Defendant intentionally used a deadly weapon on a vital part of Clarence’s body to inflict a fatal injury. These facts are sufficient to permit a finding of intent to kill. See State v. Craig, 33 S.W.3d 597, 600 (Mo.App. 2000).

Defendant argues, however, that even if he intentionally killed Clarence, he was entitled to the involuntary manslaughter instruction based on the holding of State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000), and its progeny. We find this argument unpersuasive for two reasons.

First, Beeler addressed the issue of how to properly instruct the jury when both self defense and involuntary manslaughter are submitted. The Supreme Court overruled prior cases standing for the proposition that “self defense in a homicide matter forecloses the possibility of an instruction on involuntary manslaughter because such an offense requires an accidental act or unintended consequence .... ” Id. at 299. The Supreme Court held that “reckless conduct is not inconsistent with the intentional act of defending one’s self, if in doing so one uses unreasonable force.” Id. The instructions in Beeler were erroneous because they permitted the jury to reach inconsistent conclusions:

The jury was instructed in such a way that it could have decided (1) defendant’s shooting of McElroy was done in self-defense and (2) defendant acted recklessly by consciously disregarding a risk that grossly deviated from reasonable behavior. Such conclusions are necessarily inconsistent. One cannot be said to act reasonably, as self-defense requires, and grossly deviate from reasonableness, as is the case with one exhibiting a reckless state of mind, at the same time. Here, it is apparent the jury was not properly instructed.... The court instructed the jury in such a way that it could have found defendant acted reasonably and unreasonably at the same time.

Id. at 300. In the case at bar, the statutory defense of justification (i.e., self defense or defense of another) codified in § 563.031 was not submitted to the jury. Thus, the problem that arose in Beeler is not present here because the instructions given to the jurors did not permit them to reach inconsistent conclusions.

Second, Beeler recognized that “[r]eck-lessness resembles knowing conduct in one respect in that it involves awareness, but it is an awareness of risk, that is, probability less than a substantial certainty. By contrast, to act knowingly is to be aware that the conduct is practically certain to cause a result.” Id. at 299. Thus, jurors can draw an inference of recklessness if there is a basis to believe that the defendant “did not knowingly cause the victim’s death or have a purpose to do great harm to the victim.” Id. at 300. In the case at bar, those are the only reasonable and logical inferences that could be drawn from the evidence. By striking Clarence in the head with the claw end of a hammer, Defendant either knowingly caused Clarence’s death or had a purpose to do great harm to Clarence. Both transcend recklessness and constitute knowing action. It also is appropriate to note the jury did find Defendant knew or was aware his conduct in striking Clarence with a hammer was causing or was practically certain to cause Clarence’s death. The jury had to make this finding beyond a reasonable doubt in order to return its unanimous guilty verdict on the lesser-included offense of voluntary manslaughter. Thus, Beeler and its progeny lend no support to Defendant’s argument that he was entitled to an involuntary manslaughter instruction.

No rational juror could reasonably conclude that Defendant did not act knowingly in killing Clarence. See Deckard, 18 S.W.3d at 504. Since there was no basis for the jury to acquit Defendant of second degree murder, the trial court did not err in refusing Instructions A and C. Defendant’s first point is denied.

Point II

Defendant’s second point posits trial court error in denying his motion to suppress the statements Defendant made to Officer Bishop and Officer Spaeth at the scene and in admitting the statements as evidence at trial. The pretrial motion to suppress alleged that Defendant’s statements were inadmissible because they were obtained in violation of Defendant’s Fifth Amendment right to remain silent, in that he had not yet been given his Miranda warning. The court held an eviden-tiary hearing at which Officers Bishop and Spaeth testified. After considering the evidence, the trial court determined both statements were admissible and denied the motion. The court later overruled the same constitutional objection to the admission of this testimony during the trial.

In reviewing a trial court’s ruling on a motion to suppress, our inquiry is limited to determining whether the decision is supported by substantial evidence. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). The evidence presented on the motion to suppress is viewed in a light most favorable to the ruling. State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003). Therefore, we consider only the facts and reasonable inferences derived therefrom favorable to the ruling. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001). Evidence and inferences contrary to the trial court’s order are disregarded. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998). We defer to the trial court’s factual findings and credibility determinations, but we review questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). We will not reverse the trial court’s ruling on a motion to suppress unless the decision is clearly erroneous, leaving this court with a definite and firm impression that a mistake has been made. Williams, 97 S.W.3d at 469; State v. Birmingham, 132 S.W.3d 318, 321 (Mo.App.2004). Viewed in a fight most favorable to the trial court’s order denying Defendant’s motion to suppress, the circumstances under which Defendant made his statements to Officer Bishop and Officer Spaeth are set forth below.

Police arrived at the Winters’ home at 5:18 p.m. and secured the premises. All of the officers at the scene were told that: (1) two persons in the house had been assaulted; (2) Defendant may have committed the assaults; and (3) he left in a van. Officer Bishop was assigned to perimeter security. His job was to make sure only authorized personnel like police officers, medical examiners, etc., came inside the yellow police tape that had been placed around the crime scene. While Officer Bishop was performing this duty, he came into contact with several members of the Winters’ family. They were very upset and wanted to go inside the house and see what had happened. Officer Bishop prohibited them from going inside the crime-scene tape and directed them to the hospital where the victims were taken.

At 6:04 p.m., a van pulled up to the crime scene and stopped in front of the Winters’ house. This was unusual because unauthorized persons are not permitted at a crime scene. During the 20 minutes Officer Bishop had been working perimeter security, all of the other vehicles on the street had passed by the Winters’ house without stopping. Officer Bishop approached the van to see why it had stopped. He thought it might be another family member who wanted to look at the crime scene. Officer Bishop opened the van door and asked the driver if he knew anything about what was going on inside the house. The driver replied “that he came out of the bathroom, that they were trying to rape the baby, so he hit them.” At that point, Officer Bishop realized the driver of the van was Defendant. He was asked to exit the vehicle, handcuffed for officer safety and detained for questioning by a detective.

Defendant was taken to Officer Spaeth’s patrol car. Officer Bishop placed Defendant in the vehicle and gave Officer Spaeth the Defendant’s driver’s license. Officer Spaeth asked Defendant if the address shown on the license was correct, and Defendant said it was. Officer Spaeth then ran a computer check to see if there were any “wants or warrants” on Defendant. After Defendant had been in the car 5-10 minutes, he asked if he could talk to somebody. Officer Spaeth replied that Defendant could talk to a detective. Defendant said he would like to do so and asked to be taken to police headquarters for that purpose. Defendant was then transported to police headquarters as he requested. On the way to headquarters, Defendant voluntarily stated that when he came out of the bathroom, Bill was trying to rape Lena. This statement was not made in response to any questioning by Officer Spaeth.

At the conclusion of the suppression hearing, the trial court decided Defendant’s statement to Officer Bishop was a spontaneous, unsolicited remark that Defendant made freely, knowingly and voluntarily in response to a single investigative question at the scene. The court also decided Defendant’s statement to Officer Spaeth was admissible. The court found this statement was volunteered since it was not made in response to any questioning by Officer Spaeth.

We first address the statement Defendant made to Officer Bishop. Defendant argues the statement is inadmissible because it was made in response to custodial interrogation by Officer Bishop before Defendant had been given his Miranda warning. Defendant’s argument is based on the premise that he was “in custody” when questioned by Officer Bishop because Defendant was suspected of committing the assaults on Clarence and Bill. We disagree.

A Miranda warning is not required every time the police question an individual. State v. Glass, 136 S.W.3d 496, 510 (Mo. banc 2004). This warning is only required to be given prior to any custodial interrogation of a criminal suspect. State v. Dravenstott, 138 S.W.3d 186, 195 (Mo.App.2004). “A custodial interrogation occurs only when the suspect is formally arrested or is subject to arrest-like restraints.” Glass, 136 S.W.3d at 508. It is well-settled law that a person who is asked preliminary, investigative questions by police is not in custody. See, e.g., State v. Kerr, 114 S.W.3d 459, 462 (Mo.App.2003); State v. Londagin, 102 S.W.3d 46, 51 (Mo.App.2003); State v. Barrett, 41 S.W.3d 561, 565 (Mo.App.2001); State v. Hicklin, 969 S.W.2d 303, 310 (Mo.App.1998); State v. Dye, 946 S.W.2d 783, 786 (Mo.App.1997); State v. Norton, 904 S.W.2d 265, 271-72 (Mo.App.1995); State v. Crane, 841 S.W.2d 271, 273 (Mo.App.1992). Here, the trial court found that Defendant’s statement to Officer Bishop was spontaneously and voluntarily made in response to a single investigative question at the crime scene. This finding is supported by substantial evidence. Since Defendant was not in custody when he made the statement, he did not have to be informed of his Miranda rights before being questioned by Officer Bishop. Therefore, the trial court did not err in denying the motion to suppress and admitting Officer Bishop’s testimony at trial.

We next consider the trial court’s rulings with respect to the statement Defendant made to Officer Spaeth. We conclude the trial court properly denied the motion to suppress and admitted this evidence at trial because the statement was volunteered. “The Miranda safeguards apply whenever a person in custody is subjected to either express questioning or its functional equivalent, i.e., interrogation.” State v. Mitchell, 41 S.W.3d 574, 578 (Mo.App.2001). Since volunteered statements do not result from custodial interrogation, such statements are not barred by the Fifth Amendment and are admissible even though the person is in custody and has not been given his or her Miranda warning. See, e.g., Gregg v. State, 446 S.W.2d 630, 632 (Mo.1969); State v. Elmore, 43 S.W.3d 421, 425 (Mo.App.2001); State v. Duncan, 945 S.W.2d 643, 648 (Mo.App.1997); State v. Butler, 660 S.W.2d 225, 228 (Mo.App.1983).

Defendant argues that, even if his statement to Officer Spaeth was volunteered, it should have been suppressed anyway because it resulted from Officer Bishop’s earlier, improper interrogation. Our holding that Defendant was not unconstitutionally interrogated by Officer Bishop renders this argument moot. Since the statement to Officer Spaeth was not tainted, “no intervening event was required to attenuate the taint.” Glass, 136 S.W.3d at 508. Defendant’s second point is denied.

The judgment of the trial court is affirmed.

PARRISH, P. J., and SHRUM, J. Concur.

      . Since several witnesses share the same surname as the crime victims, we use their given names for purposes of clarity. No disrespect is intended.

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

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

      . The trial court decided to give Instruction 5 over the State’s objection that the issue of sudden passion was not supported by the evidence.

      . These cases include State v. Frost, 49 S.W.3d 212 (Mo.App.2001); State v. Craig, 33 S.W.3d 597 (Mo.App.2000); State v. Battle, 32 S.W.3d 193 (Mo.App.2000); State v. Davis, 26 S.W.3d 329 (Mo.App.2000); and State v. Hill, 17 S.W.3d 157 (Mo.App.2000).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles David ANGLIN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63733.
    Missouri Court of Appeals, Western District.
    March 15, 2005.

      Jeannie Marie Willibey, Asst. Appellate Defender, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Attorney General, Jefferson City, for respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   PER CURIAM.

Charles Anglin appeals the denial of his Rule 29.15 motion. Anglin’s motion charged his appellate attorney with ineffective assistance for failing to challenge the denial of his motion to suppress incriminating statements he had given to the police prior to receiving Miranda warnings. We affirm.

We view the evidence at trial in the light most favorable to the verdict. See State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998).

The evidence showed that Anglin and his accomplice arrived at a car wash with the intent of stealing a car. When they saw the victim washing his car, Anglin shot him with a shotgun. Then, the accomplice shot and killed him with a .857 magnum. Anglin looked for the keys to the victim’s car but could not find them. Then, the two men stole the victim’s wallets and took off running.

One day later, the police received information of a shotgun stock located on the ground near Anglin’s apartment building. An officer knocked on Anglin’s door and asked him if he had noticed the shotgun stock in the yard behind his building. Anglin said that he had not noticed it.

The next day, or two days after the murder, the police also learned that a warrant had been issued for Anglin because he had violated a probation and parole agreement. At that time, Anglin was also a suspect in the car wash murder. The police went to Anglin’s apartment and arrested him for the probation and parole violation.

After they handcuffed Anglin, they asked him if he had a gun. Anglin answered yes and told him it was in his pocket. An officer seized the handgun, which was a loaded .357 Magnum. Another officer knew that two weapons had been used in the car wash murder. So that officer immediately asked, “Where’s the shotgun?” Anglin said it was in the woods and walked them toward the area. Officers eventually found pieces of the shotgun, which Anglin had disassembled, scattered in different areas around his apartment building.

Meanwhile, as the officers walked with Anglin to the woods, they gave him Miranda warnings. Anglin agreed to talk. He described how the murder occurred and admitted his involvement in it. About one hour later, during a police department interview, Anglin gave videotaped and written statements, again admitting his involvement. This interview was conducted after Anglin had waived his Miranda rights.

Before trial, Anglin filed a “motion to suppress statements,” claiming that the written and videotaped confessions were involuntary. The trial court denied the motion. A jury convicted Anglin of first-degree murder, § 565.020, and first-degree robbery, § 569.020. The trial court sentenced him to life imprisonment without parole and thirty-years’ imprisonment, respectively.

Anglin appealed to this court, and we affirmed his convictions and sentences. State v. Anglin, 45 S.W.3d 470 (Mo.App.2001). Anglin timely filed a pro se Rule 29.15 motion for post-conviction relief, and appointed counsel filed an amended motion. The motion court denied the 29.15 motion, and this appeal follows.

Anglin contends that the motion court clearly erred in denying his claim that appellate counsel was ineffective for failing to challenge a Miranda violation. At trial, Anglin filed a motion to suppress the incriminating statements he had made to the police following his arrest. Had appellate counsel raised on appeal the denial of the motion to suppress and the admission of the contested evidence at trial, Anglin says, we would have reversed the convictions.

Appellate counsel does not have a duty to raise every non-frivolous claim of error. Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Thus, an ineffective assistance charge against appellate counsel requires a showing that counsel failed to assert a claim of error that would have required reversal. Moss v. State, 10 S.W.3d 508, 514 (Mo. banc 2000) (quoting Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994)). And that claim must have been so obvious from the record that a competent and effective attorney would have asserted it. Id. The claim of error upon which Anglin’s ineffective assistance charge rests does not meet this standard.

The point relied on not only asserts that appellate counsel should have challenged the ruling on the motion to suppress, but also the admission of the incriminating statements. The admission of evidence is an appealable issue because it is the admission of the evidence that causes the damage to the defendant. See State v. Lacy, 851 S.W.2d 623, 626 (Mo.App.1993). Thus, on appeal, Anglin alleges a possible claim of error that appellate counsel may have been obligated to assert.

However, our review is limited to the court’s ruling on the claims asserted in the 29.15 motion. Any allegations or issues that are not raised in the Rule 29.15 motion are waived on appeal. State v. Clay, 975 S.W.2d 121, 141 (Mo. banc 1998). Anglin’s motion charged appellate counsel only with ineffective assistance for “failing to raise ... that the trial court erred in overruling Movant’s Motion to Suppress.” It did not allege that appellate counsel should have challenged the court’s admission of the contested evidence.

A denial of a motion to suppress is interlocutory and, therefore, is subject to change during trial. State v. Hensley, 83 S.W.3d 681, 688 (Mo.App.2002). Sometimes an appellate court may, in reviewing a challenge to the admission of evidence, use language suggesting it is reviewing the denial of a motion to suppress. The traditional rule, however, is that the denial of a defendant’s motion to suppress preserves nothing for appeal. Id. In essence, then, Anglin’s 29.15 motion charged appellate counsel with ineffective assistance for his failure to argue a fatally defective claim.

Also, the motion to suppress at issue did not deal with the specific issues Anglin raised in his 29.15 motion and in this appeal. Here, Anglin argues that the statements concerning weapons should have been suppressed because he made them prior to receiving his Miranda warnings. He also alleges that the subsequent statements, including the written and videotaped confessions, were tainted by the earlier Miranda violation.

However, the motion to suppress did not raise these issues. The motion challenged “all statements, both written and videotaped,” that Anglin gave to the police. (Emphasis added). The statements Anglin gave to the police before he received the warnings were neither written nor videotaped. Thus, the motion to suppress failed to challenge these statements. And while the motion to suppress the written and videotaped statements cited Miranda, the challenge was not based on the absence of warnings. Rather, the motion argued that the written and videotaped statements constituted an involuntary confession under the totality of the circumstances, citing State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986), and State v. Flowers, 592 S.W.2d 167, 169 (Mo. banc 1979).

Indeed, the record confirms that the trial court viewed the motion to suppress in the same way. In denying the motion, the court’s sole finding was that “the statements were voluntarily made.” Thus, even if we were to treat the denial of a motion to suppress as an appealable issue, Anglin has not alleged a possible claim of error with regard to that denial. This is because the issue of whether the statements concerning weapons were illegally obtained was not before the court in the motion to suppress. Nor was the issue of whether the later confessions, obtained after Anglin waived his rights, were tainted by an earlier Miranda violation.

The 29.15 motion could have asserted that appellate counsel should have challenged the admission of these statements at trial. Even if it had, though, a close review of the record reveals that appellate counsel would have faced an uphill battle because the issue was not preserved for appellate review. A specific objection is required when the challenged evidence is offered at trial. State v. Williams, 9 S.W.3d 3, 11 (Mo.App.1999). Here, when the ari*esting officer testified to Anglin’s incriminating oral statements, no objection was made.

There were objections when the videotaped and written confessions were introduced. The basis of these objections, however, was not that the confessions were obtained illegally because of a prior failure to give Miranda warnings. Rather, the objections were based on the argument set forth in the motion to suppress, i.e., the confessions were involuntary under the totality of the circumstances. Thus, the admission of the contested statements on the grounds of a Miranda violation was not preserved for review. Indeed, appellate counsel’s testimony at the hearing was that one of the reasons he did not raise this issue was that it was not preserved.

Appellate counsel, then, would have been able only to challenge the admission of the evidence as a matter of “plain error” pursuant to Rule 30.20. “Plain error” is evident, obvious, and clear error. State v. Rogers, 51 S.W.3d 879, 880 (Mo.App.2001). It is not at all clear that the police questioning in this case constituted a Miranda violation. Although Ang-lin was in police custody, officers may ask about weapons for purposes of safety in connection with making an arrest. New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Miranda warnings need not precede the questions as long as they are reasonably prompted by a concern for the public safety. Id. at 656, 104 S.Ct. 2626. Here, the questions of the arresting officers were consistent with such a concern.

Before giving the warnings, the officers asked only those questions necessary to elicit the location of the weapons. See State v. Turner, 716 S.W.2d 462, 466 (Mo.App.1986) (involving a brief question for the limited purpose of neutralizing a potentially dangerous situation). The first question — -whether Anglin had a weapon on his person — was necessary to secure the officers’ safety. The subsequent discovery of the .357 Magnum did not terminate any exigency because the arresting officers knew that two guns had been used in the crime.

The officers also knew that a shotgun stock had been found near Anglin’s residence. The possibility that the operational part of the shotgun had been hidden near the residence posed a potential danger to the public. See Quarles, 467 U.S. at 657, 104 S.Ct. 2626 (describing danger that gun concealed in supermarket posed to the public). Indeed, the gun’s parts were found scattered in places where a member of the public could have come upon them. The forearm to the shotgun and the ammunition were found in the woods, and the trigger and hammer assembly was found in a wooded area outside Anglin’s residence. Like the first question, the second question to locate the shotgun arguably was reasonably prompted by the public safety.

It is not at all clear and obvious that the admission of the evidence in question was erroneous. Nor is it clear that the trial judge should have sua sponte intervened to preclude its admission. Accordingly, the trial court did not clearly err in concluding that appellate counsel had no duty to make such a challenge.

We will not overturn the motion court’s decision unless we are left with a definite and firm belief that the motion court erred. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Because we are not left with that belief here, the judgment is affirmed.

      . Anglin had been on probation for a third-degree assault conviction and on parole for a burglary conviction.

      . Sometimes courts talk about reviewing the denial of a defendant’s "motion to suppress” on a defendant’s direct appeal. Those are often cases where the defendant's real complaint was the admission of evidence at trial, and where a proper objection was made at trial. See, e.g., State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999); State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). The State, of course, has been granted the right to appeal the grant of a motion to suppress, even though the ruling is interlocutory. § 547.200.1. See, e.g., State v. Pattie, 42 S.W.3d 825 (Mo.App.2001). It is easy to corn fuse the fact that the State has a right to appeal the 'grant of a motion to suppress with an assumed defendant's right. The defendant, however, has no similar right to appeal an interlocutory ruling, even after conviction. It is the admission of the evidence at trial, not the denial of the motion to suppress, that is appealable after conviction.


text:
    Marietta NEWTON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64090.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Jeannie M. Willibey, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Marietta Newton appeals the dismissal of her Rule 24.085 motion for post-conviction relief because it was untimely filed. Since a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Troy L. FENTON, Appellant.
    No. WD 63883.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Irene C. Earns, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: BRECKENDRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Appellant, Troy Fenton was convicted of escaping from confinement, Section 575.210, RSMo 2000. Fenton appeals, claiming that the trial court erred in overruling his motion for judgment of acquittal because the State presented insufficient evidence to convict him. Affirmed. Rule 30.25(b).


author: VICTOR C. HOWARD, Judge.

text:
    Dennis R. BISHER (24.035), Appellant, v. STATE of Missouri, Respondent.
    No. WD 63872.
    Missouri Court of Appeals, Western District.
    March 15, 2005.

      Andrew Allen Schroeder, Appellate Defender, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., HOWARD and NEWTON, JJ.
   VICTOR C. HOWARD, Judge.

Dennis Bisher appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Bisher claims that he was entitled to an evidentiary hearing on his allegation that he pleaded guilty in reliance on a plea agreement with the State that he would receive credit toward his sentence for time served while awaiting disposition of the charges he pleaded guilty to. We reverse and remand for an evidentiary hearing.

Background

On November 15, 2002, the State charged Bisher by Indictment with one count of felony driving while intoxicated, one count of felony leaving the scene of a motor vehicle accident, and one count of misdemeanor driving while license was suspended, revoked or canceled. As a result, Bisher’s parole was revoked, and he returned to the custody of the Department of Corrections (the “DOC”).

Bishop remained in the custody of the DOC until June 2, 2003, when he appeared before the Circuit Court of Lafayette County to enter a guilty plea to the charged offenses. During the plea hearing, the State presented evidence to the court supporting the charges if the case were to go to trial. Bisher admitted the facts and circumstances surrounding the charges as presented by the State. The court then discussed the State’s sentencing recommendation. The State indicated that “at most” it would recommend concurrent three-year sentences on each of the felonies and six months in jail for the misdemeanor driving while suspended or revoked. The State then mentioned that if Bisher cooperated on a matter not disclosed in the plea hearing record, the State would recommend two years, rather than three, on each of the felonies. Bisher indicated he was confused. The court expressed concern about Bisher’s confusion and stated that it wanted to “make sure [Bisher] understood] what [was] going on.” Thus, the comb permitted Bisher to speak with his counsel off the record. Bisher then said he understood this agreement and that he was to return for sentencing on June 23, 2003, to allow him time to cooperate, so the State would make the reduced sentencing recommendation. The court then asked Bisher, “Any other promises made to you in this matter?” Bisher replied, “Other than the two years, no. No.” The court accepted Bisher’s guilty plea and set sentencing for June 23, 2003, which was subsequently continued to July 21, 2003, because defense counsel was unable to be present.

At the July 21, 2003 sentencing hearing, the plea court reiterated the above reasons for the delayed sentencing. Defense counsel advised the court, “the understanding was a two-year sentence and time — credit for what he has got on that sentence.” The State then recommended that Bisher receive a two-year sentence on each of the felonies and six months in the county jail for driving while suspended, “[a]ll said sentences to run concurrently with each other and any previously imposed sentence.” Bisher confirmed his understanding of the State’s recommendation, and the court pronounced Bisher’s sentence. At the conclusion of the sentencing hearing, the court noted that Bisher was to “have credit for time served.” This credit is also reflected in the court’s docket sheet. Bisher was delivered to the Department of Corrections on July 23, 2003.

Bisher subsequently filed a timely pro se Rule 24.035 motion to vacate, set aside or correct his conviction and sentence. Bisher claimed that part of his plea agreement with the State was that he would receive credit for the time he had served since his parole was revoked — November 15, 2002, through June 2, 2003. Bisher alleged that without the credit, he would not have pled guilty. Bisher’s court-appointed post-conviction counsel timely filed an amended Rule 24.035 motion raising this same allegation. The motion indicated Bisher would prove his claim through evidence that included the testimony of an officer that was present when Bisher negotiated his plea agreement with the State. A month later, the motion court denied Bisher’s Rule 24.035 motion without an eviden-tiary hearing. This appeal follows.

Discussion

In his sole point on appeal, Bisher claims the motion court erred in denying his Rule 24.035 motion without an eviden-tiary hearing.

Our review of Bisher’s Rule 24.035 motion is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k). We will find the motion court’s findings and conclusions clearly erroneous if, after reviewing the entire record, we definitely and firmly believe the motion court made a mistake. Edwards v. State, 954 S.W.2d 403, 406 (Mo.App. W.D.1997).

To be entitled to an evidentiary hearing, Bisher must have alleged “facts, not conclusions,” which if true would warrant relief; the record and files in the case must not refute these allegations; and Bisher must have been prejudiced by the matters complained of. Weston v. State, 2 S.W.3d 111, 114 (Mo.App. W.D.1999). In his point relied on, Bisher claims he met this burden of pleading unrefuted factual allegations and is therefore entitled to an evidentiary hearing on his claim because he alleged that:

A) he pled guilty in reliance on a plea agreement that promised him, in part, that he would receive credit towards the service of his sentence the time he served awaiting disposition of the charge in the underlying criminal case, and
B) if he had known that the State, via the Department of Corrections, would not later honor that agreement, then he would not have pled guilty but would have instead taken his case to trial.

The motion court denied Bisher’s Rule 24.035 motion without an evidentiary hearing after concluding in relevant part:

[Bisher] ... [claims] there was a plea bargain as to him receiving credit. While the plea hearing was less than crystal clear as to the exact agreement, jail time credit was not mentioned once during the plea. Other than the length of sentence to be imposed by the Court, [Bisher] agreed that there were no other promises made as part of the plea bargain. As such the record refutes any claim that there was an agreement regarding jail time credit or that [Bisher’s] plea relied on that agreement.

The State argues the motion court’s conclusion that the record refutes Bisher’s claim is not clearly erroneous. The State claims that Bisher’s “own testimony at the plea hearing and his plea petition refutes his allegation that the plea bargain included a promise that [Bisher] would receive credit for the time he had served in prison, prior to the disposition of the charges to which he pleaded guilty.” The State also insists that it never stated the plea agreement included credit for time served.

As stated by the motion court, the record of Bisher’s plea hearing is “less than crystal clear.” What is clear is the confusion surrounding Bisher’s “cooperation” and the State’s resulting sentencing recommendation. Sensing this confusion, the plea court allowed Bisher to discuss the matter with his counsel off the record. Although Bisher then acknowledged that “other than the two years” no promises had been made to him, we do not feel that under the circumstances of this case, the motion court and the State’s hyper-technical focus on Bisher’s testimony at the plea hearing and his plea petition refutes his claim raised in his Rule 24.035 motion.

At the plea hearing, the court explicitly questioned Bisher concerning his “Petition to Enter Plea of Guilty.” Bisher pointed out to the court that “[o]n the second-from-the-last page where the scratching’s on it, someone initialed that. I didn’t do that.” The section to which Bisher was referring is where he was to indicate his understanding of the plea agreement reached with the State. It appears that Bisher’s counsel had scratched something out and then wrote “2 — 6 mo 2 CC.” Bisher’s counsel informed the court “I did that. I did the whole thing,” and a discussion was had off the record. As previously noted, this was not the only time the court had to allow Bisher time with counsel in an attempt to alleviate Bisher’s confusion. Eventually, the court did accept Bisher’s plea.

The plea court continued sentencing in order to allow Bisher’s cooperation with the State to occur. This cooperation was the basis of the State’s indication during the plea hearing of the “possibility” that it would recommend two rather than three years on each of the felonies. At the sentencing hearing held almost two months after the plea, Bisher’s counsel and the sentencing court explicitly noted on the record the understanding that Bisher was to receive credit for time served. The State recommended the two-year, concurrent sentences on the felonies and never objected that the credit was not a part of its plea agreement with Bisher. Instead, the State claims in its brief on appeal that “[i]n light of the timing of the court’s comments and order, the court’s statements do not support [Bisher]’s claim that this plea bargain included a promise that he would receive credit for any time he had served prior to his guilty plea.”

We disagree with the State’s focus on the less-than-clear record of the plea hearing. In this case, we do not think it is proper to overlook the sentencing proceedings, which had to be continued to allow for the plea agreement to be carried out, i.e. to allow Bisher to cooperate for the State’s reduced sentencing recommendation. When sentencing did finally occur, Defense counsel and the sentencing court, which had accepted Bisher’s plea, explicitly noted Bisher’s credit for time served.

The issue is not whether the motion court actually had the ability, which it did not, to follow through on a promise of credit for time served. As explained in Webster v. Purkett, 110 S.W.3d 882, 836 (Mo.App. E.D.2003):

A claim that a person is entitled to credit for time served under section 558.031 cannot be brought in a Rule 24.035 motion. Murphy [v. State], 873 S.W.2d [231,] 232 [(Mo. banc 1994)]. But [a defendant’s] claims regarding a plea agreement and voluntariness of his pleas although related to are different from a claim of whether [a defendant] is entitled to the jail-time credit under section 558.031. Claims regarding the plea agreement and voluntariness of his plea are cognizable in a Rule 24.035 motion.

But Bisher’s claim is not that he is entitled to credit for time served. Rather, Bisher claims that he was entitled to an evidentia-ry hearing on his allegation that his plea was involuntary due to his mistaken belief that he would be credited with time served. Bisher alleged facts, which if true would warrant relief. We cannot say that when reviewed in its entirety, the record in this case refutes Bisher’s claim that he would not have pled guilty but for the agreement that he would receive credit for time served. Thus, Bisher was entitled to an evidentiary hearing to determine the existence of an alleged promise and representation regarding credit for the time he served and any effect it may have had on the voluntariness of his plea.

Conclusion

The motion court’s judgment denying Bisher’s Rule 24.035 motion is reversed and the cause is remanded for an eviden-tiary hearing.

EDWIN H. SMITH, C.J., and NEWTON, J., concur.

      . The Indictment charged Bisher as a prior and persistent offender under sections 558.016 and 557.036 RSMo 2000. However, the State explicitly advised the court at the plea hearing that it was not pursuing a prior and persistent status. The plea court informed Bisher "that is a pretty good deal.”


text:
    Greg N. DRAGOO, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63840.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Dimitra Yvette Massey, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Evan Buchheim, Office of Attorney General, Jefferson City, for Respondent.

      Before EDWIN H. SMITH, Chief Judge, RONALD R. HOLLIGER, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Gregg Dragoo appeals the denial of his Rule 24.035 motion for post-conviction relief. Dragoo’s motion was denied after evidentiary hearing.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


text:
    Donnie R. BOLDEN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63757.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Dimitra Y. Massey, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge, and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Donnie Bolden appeals the denial of his Rule- 29.15 motion for post-conviction relief, following an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no prece-dential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Joseph R. GIBSON, Appellant.
    No. WD 62806.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Sarah Weber Patel, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.

      Before SPINDEN, P.J., HOWARD and NEWTON, JJ.
   ORDER

PER CURIAM.

A jury convicted Appellant, Joseph Gibson, of assault in the third degree and unlawful use of a weapon. The trial court sentenced Gibson as a prior and persistent offender to concurrent sentences of 365 days in jail for the assault and seven years in the custody of the Department of Corrections for unlawful use of a weapon.

On appeal from the judgment entered upon his conviction, Gibson claims that the trial court erred in overruling his motions for judgment of acquittal and sentencing him for unlawful use of a weapon because the evidence was insufficient for a jury to find beyond a reasonable doubt that Gibson knowingly shot a firearm into the victim’s car.

We affirm. Rule 30.25(b).


text:
    Larry R. JONES, Appellant, v. Linda G. JONES, Respondent.
    No. WD 63476.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    William D. Rotts, Columbia, MO, for Appellant.
    Elizabeth K. Wilson, Columbia, MO, for Respondent.
    Before: SMART, P.J., ELLIS and HARDWICK, JJ.
   ORDER

PER CURIAM.

Larry Jones appeals from a judgment modifying his dissolution decree to increase the maintenance award to Linda Jones. Upon review of the record, we find no error and affirm the trial court’s judgment. We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

Affirmed. Rule 84.16(b).


text:
    John M. GALLAGHER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64223.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Susan Lynn Hogan, Appellate Defender, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Attorney General, Jefferson City, for Respondent.

      Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

This is an appeal from a judgment denying Appellant’s Rule 24.035 motion. Appellant filed this motion seeking to vacate his conviction for driving while intoxicated, for which he was sentenced as a prior and persistent offender to a term of seven years in the Missouri Department of Corrections. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    In re L.J.P., K.A.T., and M.D.P., Plaintiffs M.E.T. and M.A.T., Respondents, v. P.P. (Natural Mother); Appellant R.P. (Natural Father); L.P. (Natural Father); R.G. (Natural Father); and John Doe (Natural Father), Defendants.
    No. WD 64273.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Pamela S. Garrison, Kansas City, for Guardian Ad Litem.
    Shelley M. Villegas, Independence, for Appellant.
    Gerald F. McGonagle, Kansas City, for Respondents, M.E.T. & M.A.T.
    M.A.T. Lloyd Koelker, Kansas City, for Respondent, R.P.
    L.P., R.G., and JOHN DOE, for Defendants.
    Before: PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

P.P. appeals the trial court’s judgment that terminated her parental rights to her children.

For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Ronald BRASSFIELD, Appellant, v. PULLMAN POWER PRODUCTS, Respondent.
    No. WD 64337.
    Missouri Court of Appeals, Western District.
    March 15, 2005.

      Jerrold Renter, Kansas City, MO, for Appellant.
    John D. Jurcyk, Roeland Park, KS, for Respondent.
    Before: LOWENSTEIN, P.J., SPINDEN and SMART, JJ.
   ORDER

PER CURIAM.

Ronald Brassfield appeals from the dismissal of his worker’s compensation claim for lack of jurisdiction. The judgment is affirmed. Rule 84.16(b).


text:
    Stanley JOSEPH, Appellant-Respondent, v. Kelli D. CORTES (Hamilton), Respondent-Appellant.
    No. WD 64350.
    Missouri Court of Appeals, Western District.
    March 15, 2005.
    Robert E. Harris, Warrensburg, for Appellant.
    Matthew C. Morgan, Warrensburg, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Stanley Joseph contests the trial court’s refusal to transfer custody of his daughter from her mother to him. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


author: CHARLES D. SUSANO, JR., J.,

text:
    DANNY L. DAVIS CONTRACTORS, INC. v. B. Allen HOBBS, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Assigned on Briefs March 24, 2004.
    July 30, 2004.
    Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      Danny P. Dyer, Knoxville, Tennessee, for the appellant, Mullen Construction Co., Inc.
    John T. McArthur and Melanie E. Davis, Maryville, Tennessee, for the appel-lee, Danny L. Davis Contractors, Inc.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

Danny L. Davis Contractors, Inc. (“the plaintiff’) sued (1) B. Allen Hobbs and Pete Roach, who together did business as BH Construction, and (2) Mullen Construction Co., Inc., (“Mullen Construction”), a Tennessee corporation, seeking to collect money owed under a contract the plaintiff entered into with BH Construction for the performance of electrical work in connection with the construction of a CiCi’s Pizza restaurant. The general sessions court awarded a judgment against Mullen Construction for $12,506.71. Mullen Construction filed an appeal bond, and the case was then tried de novo without a jury in the trial court. The trial court entered a judgment of $12,506.21 against Mullen Construction. Additionally, the trial court revoked the contractor’s license of Mullen Construction, with reinstatement dependent upon the company satisfying the judgment. Mullen Construction appeals, contending that the trial court (1) abused its discretion in admitting “hearsay” testimony into evidence; (2) erred in finding Mullen Construction hable on the contract under an agency theory; and (3) erred in revoking its contractor’s license pursuant to TenmCode Ann. § 62-6-118 (1997). We affirm.

I.

BH Construction contracted with F & M Pizza, Inc., to build a CiCi’s Pizza establishment in Alcoa. BH Construction, which is a Texas-based company, did not have a Tennessee general contractor’s license. Such a license is required for construction over $25,000. The CiCi’s Pizza job exceeded this amount.

Mullen Construction, which is located in Jackson, is a licensed Tennessee general contractor. Its president, Leon Mullen (“Mullen”), was approached by “a friend of a friend” and asked to obtain a building permit for BH Construction, which would allow it to fulfill its contractual obligations to F & M Pizza, Inc. Mullen agreed, in his words, to “pull the permit” for BH Construction, even though Mullen was aware that in doing so, he was, again in his words, “exposing [him]self to some civil liability.” In an attempt to protect his company against this risk, BH Construction entered into an agreement to indemnify and hold Mullen Construction harmless from any liability. Prior to entering into this agreement, Mullen admitted that he knew “[n]othing” about BH Construction.

On April 27, 1998, the City of Alcoa issued a building permit for the CiCi’s project, which listed Mullen Construction as the general contractor. A few weeks later, the plaintiff was approached by an individual, whose identity is not clear in the record, and asked to submit a bid for the electrical work on the project. As a result of this solicitation, Stanley Jones, an employee of the plaintiff, met with J. Brown to discuss the project. While Brown gave Jones a business card of Mr. Mullen emblazoned with “Mullen Construction Co., Inc.,” Brown was actually employed by BH Construction. The plaintiff submitted its bid for the electrical work on June 9, 1998, addressed to Mullen Construction.

The plaintiff’s bid for the electrical work was accepted. Before entering into an agreement on the CiCi’s project, Danny Davis, the president of the plaintiff company, verified that Mullen Construction was a licensed general contractor in Tennessee. Davis and Jones then went to the job site, where they met with Brown and Pete Roach, the latter being one of the principals of BH Construction. Before signing a document entitled “subcontract agreement,” Davis and Jones inquired as to why the agreement listed “BH Construction” as the contracting party, rather than Mullen Construction. Jones later testified that Brown told him that “BH Construction and Mullen Construction [were] the same company.” Davis testified similarly; he said “I was told” that the two companies “were one [and] the same.”

The plaintiff proceeded to complete all of the electrical work required on the project. However, payment for the work was not forthcoming. The plaintiff filed a mechanic’s lien of $25,013.42 against F & M Pizza’s leasehold interest in the property. Following negotiations with the owner of F & M Pizza, the plaintiff agreed to accept $12,506.71, which amount represented exactly half of what the plaintiff was owed on the project.

In February, 2002, the plaintiff filed a claim in general sessions court against Mullen Construction, and the sessions court awarded the plaintiff a judgment against Mullen Construction in the amount of $12,506.71. That same year, the plaintiff filed a complaint against Mullen Construction with the Tennessee Contractors Licensing Board, which fined Mullen Construction $500 for illegally using its contractor’s license for the benefit of BH Construction.

Mullen Construction appealed the general sessions court judgment to the circuit court. The trial court, sitting without a jury, entered a judgment in favor of the plaintiff for $12,506.21. In addition, the trial court revoked Mullen Construction’s contractor’s license, pending the full satisfaction of the judgment rendered against it. From this judgment, Mullen Construction appeals.

II.

In this non-jury case, our review is de novo upon the record of the proceedings below; but the record comes to us with a presumption of correctness as to the trial court’s factual findings — one that we must honor “unless the preponderance of the evidence is otherwise.” Tenn. R.App. P. 13(d). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

III.

Mullen Construction presents the following issues for our review:

1. Did the trial court properly admit into evidence the statements of BH Construction representatives pertaining to the relationship between Mullen Construction and BH Construction?
2. Did the trial court err in determining that an agency relationship existed between Mullen Construction and BH Construction?
3. Did the trial court err in revoking Mullen Construction’s contractor’s license pursuant to Tenn.Code Ann. § 62-6-118?
IV.
A.

Mullen Construction first asserts that the trial court abused its discretion in admitting into evidence statements made by representatives of BH Construction. Specifically, Mullen Construction takes issue with the testimony of Davis and Jones that BH Construction employees Brown and/or Roach represented to them that BH Construction and Mullen Construction were “one [and] the same.”

In Tennessee, decisions regarding the admissibility of evidence rest within the sound discretion of the trial court. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992). Upon review of the trial court’s decision to admit or exclude evidence, we recognize that “trial courts are generally accorded a wide degree of latitude and will only be overturned on appeal where there is a showing of abuse of discretion.” Id. “The abuse of discretion standard requires us to consider: (1) whether the decision has a sufficient evidentiary foundation; (2) whether the trial court correctly identified and properly applied the appropriate legal principles; and (3) whether the decision is within the range of acceptable alternatives.” Crowe v. First Am. Nat’l Bank, No. W2001-00800-COA-R3-CV, 2001 WL 1683710, at *9 (Tenn. Ct.App. W.S., filed Dec. 10, 2001) (citing State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.Ct.App.2000)).

Mullen Construction contends that the statements of Brown and/or Roach are inadmissible hearsay because the statements were offered for their truth: to prove that an agency relationship existed between Mullen Construction and BH Construction. Under Tenn. R. Evid. 801(c), “ ‘[h]earsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Unless subject to an exception, “[hjearsay is not admissible.” Tenn. R. Evid. 802. We agree with Mullen Construction that the plaintiff was offering the statements of the BH Construction representatives to prove them truth and, this being the case, those statements were hearsay. However, our inquiry does not end there. If the statements at issue fall within the ambit of a hearsay exception, they are admissible.

The plaintiff advances the theory that the statements of Brown and/or Roach are admissions by a party-opponent under Tenn. R. Evid. 803(1.2)(E), which provides that “[a] statement offered against a party that is ... a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy” is not excluded as hearsay. In order to bring this exception into play, the plaintiff must prove that BH Construction and Mullen Construction were involved in a civil conspiracy. A civil conspiracy is a “combination between two or more persons to accomplish by concert an unlawful purpose, or to accomplish a purpose not in itself unlawful by unlawful means.” Chenault v. Walker, 36 S.W.3d 45, 52 (Tenn.2001) (quoting Dale v. Thomas H. Temple Co., 186 Tenn. 69, 208 S.W.2d 344, 353 (1948)).

Each conspirator must have the intent to accomplish this common purpose, and each must know of the other’s intent. Dale, 186 Tenn. at 90, 208 S.W.2d at 353-54. The agreement “need not be formal, the understanding may be a tacit one, and it is not essential that each conspirator have knowledge of the details of the conspiracy.” Id. Finally, “it is [a] basic principle that each conspirator is responsible for everything done by his confederate which the execution of the common design makes probable as a consequence”; in other words, each conspirator is liable for the damage caused by the other. Id. 186 Tenn. at 90-91, 208 S.W.2d at 354;_

Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 67 (Tenn.2001).

In the instant case, BH Construction had a construction contract with F & M Pizza but did not have a Tennessee general contractor’s license, which is required by state law:

Any person, firm or corporation engaged in contracting in this state shall be required to submit evidence of qualification to engage in contracting, and shall be licensed as hereinafter provided. It is unlawful for any person, firm or corporation to engage in or offer to engage in contracting in the state, unless such person, firm or corporation has been duly licensed under the provisions of this chapter, as hereinafter provided....

Tenn.Code Ann. § 62-6-103(a)(l) (Supp. 2003). Mullen Construction agreed to “pull the permit,” i. e., obtain the permit, in its name, which would allow BH Construction- — an unlicensed contractor — to do work it otherwise would not be authorized to do. This amounted to a civil conspiracy: the two companies combined forces to accomplish the unlawful purpose of allowing BH Construction to engage in contracting work in this state.

Having found evidence of a civil conspiracy, we must determine if the statements of Brown and/or Roach were properly admitted into evidence under the co-conspirator hearsay exception. Our Supreme Court has analyzed this hearsay exception as follows:

The rationale for [the co-conspirator hearsay] exception is the principle of agency, under which each conspirator is bound to the actions and statements made by other conspirators during the course of and in furtherance of a common purpose. See Tennessee Law of Evidence, § 803(1.2).6, at 521.
Accordingly, for a statement to be admissible under this exception, the [plaintiff] must establish: 1) that there is evidence of the existence of a conspiracy and the connection of the declarant and the defendant to that conspiracy; 2) that the declaration was made during the pendency of the conspiracy; and 3) that the declaration was made in furtherance of the conspiracy. See Tennessee Law of Evidence, § 803(1.2).6, at 521-22. These requirements must be established by a preponderance of evidence. See State v. Stamper, 863 S.W.2d 404, 406 (Tenn.1993).

State v. Henry, 33 S.W.3d 797, 801-02 (Tenn.2000).

Turning to the case at bar, we have previously found the existence of a conspiracy between BH Construction and Mullen Construction, which satisfies the first prong of the admissibility test. Next, the statements made by Brown and/or Roach — that BH Construction and Mullen Construction “were one [and] the same”— were certainly made during the pendency of the conspiracy. The conspiracy did not end, as Mullen Construction would have us believe, with the taking out of the permit. The purpose of the conspiracy was to pass BH Construction off as a licensed Tennessee general contractor; the taking out of the permit was only the beginning. The conspiracy was ongoing throughout the CiCi’s Pizza project, which encompassed all of BH Construction’s dealings — and key discussions — with the plaintiff and its representatives. Finally, the statements in question were made in order to convince the plaintiff that BH Construction was a licensed Tennessee general contractor, which furthered the purpose of the conspiracy, thereby satisfying the third prong of the admissibility test. Accordingly, we find that the statements made by Brown and/or Roach regarding the relationship between BH Construction and Mullen Construction are subject to the co-conspirator hearsay exception, and find no abuse of discretion in the trial court’s admission of these statements into evidence.

Mullen Construction contends that the plaintiff should not be allowed to argue the admissibility of the statements of the BH Construction representatives because, according to Mullen Construction, the plaintiff failed to properly plead the issue of a civil conspiracy. While the plaintiff did not use the phrase “civil conspiracy” in its pleadings, it did, in its response to Mullen Construction’s motion for a more definite statement, claim that Mullen Construction had “illegally and knowingly allowed [BH Construction] to use Mullen’s Tennessee Contractor’s license to obtain solicitations and bids on the CiCi’s Pizza project and illegally pull the building permits required by the City of Alcoa.” Pleadings are designed to “give notice of the issues to be tried so that the opposing party can adequately prepare for trial.” Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn.2002) (citing McClellan v. Bd. of Regents, 921 S.W.2d 684, 688 (Tenn.1996)). It is clear from the case presented by the plaintiff at trial and the response of Mullen Construction to that proof, that the latter was well aware of the plaintiff’s theory of civil conspiracy. Furthermore, we hold that the assertions in the plaintiffs response were sufficient to put Mullen Construction on notice of the plaintiffs theory of civil conspiracy. This issue was properly before the trial court and is now properly before us.

Mullen Construction also argues that the statements of Brown and/or Roach should be barred by the parol evidence rule, claiming that the subcontract was between the plaintiff and BH Construction, and that to allow evidence of statements indicating that BH Construction and Mullen Construction were essentially the same company would, arguably, vary the terms of the contract so as to make it an agreement between the plaintiff and Mullen Construction. Mullen Construction’s reliance on the parol evidence rule is misplaced. The parol evidence rule provides that testimony of prior or contemporaneous oral agreements “is inadmissible to contradict, vary, or alter a written contract where the written instrument is valid, complete, and unambiguous, absent fraud or mistake or any claim or allegation thereof.” Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 259 (Tenn.Ct.App.1990) (citations omitted). The subject testimony in the instant case, which was accredited by the trial court, established either that there was an agency relationship between BH Construction and Mullen Construction or that they “were one [and] the same” in some other way. The thrust of this testimony was that when one dealt with BH Construction, it also dealt with Mullen Construction. There is nothing in the “subcontract” agreement between the plaintiff and BH Construction to the contrary. Under the agreement BH Construction undertook certain obligations. The subject testimony does not “contradict, vary, or alter” this in any way. The testimony simply adds an additional layer of responsibility to the plaintiff and an additional obligor to which the plaintiff can look for payment for its services.

B.

Mullen Construction next contends that the trial court erred in finding that an agency relationship existed between it and BH Construction. We disagree.

In finding Mullen Construction hable to the plaintiff, the trial court relied on the doctrine of apparent agency. In expounding upon this doctrine, this court has stated the following:

Apparent agency is essentially agency by estoppel; its creation and existence depend upon such conduct by the apparent principal as will preclude him from denying another’s agency. Generally, to prove apparent agency one must establish (1) the principal actually or negligently acquiesced in another party’s exercise of authority; (2) the third person had knowledge of the facts and a good faith belief that the apparent agent possessed such authority; and (3) the third person relied on this apparent authority to his or her detriment.

Mechs. Laundry Serv. v. Auto Glass Co., 98 S.W.3d 151, 157 (Tenn.Ct.App.2002) (quoting White v. Methodist Hosp. S., 844 S.W.2d 642, 646 (Tenn.Ct.App.1992)) (internal citations omitted).

In the instant case, it is clear that Mullen Construction “acquiesced” in BH Construction’s “exercise of authority.” Mullen Construction knew that BH Construction would have to hold itself out as a part of or an agent of Mullen Construction in order to convince its client and its subcontractors that it was licensed in Tennessee. As the trial court stated,

But Mr. Mullen knew that by getting the contract or the permit in his name that [BH Construction] was going to have to convince everybody else in the world that they either were Mullen or were acting as Mullen’s agent or that permit would have been pulled and the job closed down....

The plaintiff certainly had “knowledge” and “a good faith belief’ that BH Construction had such authority, based upon the statements of Brown and Roach. In addition, the plaintiff had independently learned that Mullen Construction was licensed in the state of Tennessee, and the plaintiffs employee, Jones, was given a Mullen Construction business card with Mr. Mullen’s name on it by Brown, indicating BH Construction’s involvement with Mullen Construction. These facts are sufficient to arm the plaintiff with a good faith belief in BH Construction’s identity and authority. Finally, there is no question that the plaintiff “relied on this apparent authority to [its] detriment.” Accordingly, we hold that the trial court did not err in finding the existence of an agency relationship between BH Construction and Mullen Construction.

C.

Finally, Mullen Construction argues that the trial court erred in revoking its license pursuant to Tenn.Code Ann. § 62-6-118. This statute provides, in pertinent part, as follows:

(a)(1) Whenever any person, firm or corporation claims to have been damaged or injured by the gross negligence, incompetency, fraud, dishonest dealing and/or misconduct in the practice of contracting on the part of any person, firm or corporation licensed hereunder, files suit upon such claim in any of the courts of record in this state, and recovers judgment thereon, such court may, as a part of its decree or judgment in such case, revoke the certificate of license under which such contractor is operating at the time of the aforementioned wrongdoing.

(Emphasis added). Upon finding Mullen Construction liable to the plaintiff based upon Mullen Construction unlawfully obtaining the license for BH Construction, the trial court revoked its contractor’s license. Mullen Construction asserts that, because the plaintiff did not ask for the license revocation in its pleadings, the trial court did not have the authority to grant such relief. See Fidelity-Phenix Fire Ins. Co. v. Jackson, 181 Tenn. 453, 181 S.W.2d 625, 629 (1944). However, the statute at issue gives the trial court the right to revoke the license sua sponte. There was no need for the plaintiff to request such relief in order to obtain it.

In addition, Mullen Construction contends that the revocation of its license was barred by the doctrines of res judicata and the election of remedies, as well as the statute of limitations. With respect to res judicata and the election of remedies, Mullen Construction argues that the complaint the plaintiff filed with the Tennessee Contractors Licensing Board against Mullen Construction and the resulting $500 fine assessed against it was a final adjudication under the General Contractors Act, and that any other remedy under this act — such as the license revocation — is barred. This is simply incorrect. There is nothing in the act that prevents the trial court from revoking a contractor’s license if that contractor has previously been fined or otherwise penalized for violations of the Act. Furthermore, Mullen Construction’s reliance on the statute of limitations is misplaced, as the trial court had complete authority to revoke the license irrespective of whether the plaintiff requested such action.

In short, Tenn.Code Ann. § 62-6-118 grants a trial court the authority to revoke a contractor’s license upon a finding that the contractor committed fraud, and there can be no error when the trial court acts accordingly.

V.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, Mullen Construction Co., Inc. This case is remanded to the trial court for enforcement of the trial court’s judgment and for collection of costs assessed below, all pursuant to applicable law.

      . The plaintiff was unable to effect service of process on Hobbs and Roach. Both are apparently out-of-state residents.

      . It is not clear from the record as to whether Brown, Roach, or both of them make this

      . While the plaintiff requested damages in the amount of $12,506.71 in its response to Mullen Construction’s motion for a more definite statement (which was later held to constitute an amended complaint), Davis testified at trial that the plaintiff was seeking damages of $12,506.21. The trial court apparently relied on the latter request and awarded damages in that amount.