author: CLIFFORD H. AHRENS, Judge.

text:
    Sheila N. CAMPBELL, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 85099.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for appellant.
    Charles E. Bridges, St. Charles, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

The Director of Revenue, State of Missouri (“Director”) appeals the judgment of the circuit court reinstating the driving privileges of Sheila N. Campbell (“Campbell”). Director argues that the court erred in reinstating Campbell’s driving privileges because the judgment was against the weight of the evidence and was not supported by substantial evidence. We reverse and remand.

Campbell’s license was revoked pursuant to section 302.505 RSMo (Supp.2001). She filed a petition for trial de novo of the revocation. At trial, Officer Kirt MacMa-nus testified that he responded to a call regarding a vehicle in the median at the intersection of Highway 40 and Highway N. The car was facing west. A county police deputy had arrived at the scene prior to Officer MacManus. When Officer MacManus arrived, he observed that the vehicle’s motor was off. He testified that Campbell was in the driver’s seat of the car and the keys were in the ignition. He also stated that the lights were still on in the car. Campbell testified that she had been at a party earlier in the evening, and she did not recall leaving the party. She was sleeping in her car in the driver’s seat, and she woke up when Officer MacManus knocked on the window. According to Campbell, the motor was not running at the time, and the fights were off in the vehicle. She did not know how she got there, and she did not know if she drove there.

The trial court found that Officer Mac-Manus did not have probable cause to arrest Campbell for driving while intoxicated or for an alcohol related traffic offense. Additionally, the court noted that it did not see evidence that Campbell was driving. The court ordered Campbell’s driving privileges to be reinstated. Director now appeals.

In its sole point on appeal, Director argues that Campbell admitted she was operating the vehicle, and Officer MacMa-nus reasonably concluded that Campbell had been driving because she was alone in the driver’s seat with the keys in the ignition, and he had been informed that the county deputy already at the scene had turned off the vehicle.

We affirm the judgment of the trial court unless it is against the weight of the evidence, it is not supported by the evidence, or it misapplies the law or erroneously declares the law. Saladino v. Director of Revenue, 88 S.W.3d 64, 68 (Mo.App.2002); (citation omitted).

Pursuant to section 302.505, a license shall be revoked if the arresting officer had probable cause to believe the person was driving a vehicle with a blood alcohol concentration of eight hundredths of one percent. Section 577.001.1 RSMo (2000) defines the term “driving” as “physically driving or operating a motor vehicle.”

In the present case, the court noted in its judgment that there was no evidence of Campbell’s driving. However, in the alcohol influence report, under the “interview” section, Officer MacManus marked Campbell’s response as “yes” to the question, “were you operating the vehicle?” In her brief, Campbell argues that the report was not admitted into evidence. Based upon the record before us, we disagree. After the court took the case under advisement, Director moved to admit the report, among other documents, into evidence. Initially, counsel for Campbell argued that the evidence was closed. However, the court noted the parties had stipulated to some information contained in the police report. After some discussion, counsel for Campbell stated, “I won’t object to it.” Therefore, we are not persuaded by Campbell’s argument that the report indicating that Campbell admitted to operating the vehicle cannot be considered as evidence.

In addition to the evidence from Officer MacManus’s interview with Campbell, there was significant circumstantial evidence to support Officer MacManus’s belief that Campbell was driving. Director had only to prove that Officer Mac-Manus had probable cause to believe Campbell was driving. Saladino, 88 S.W.3d at 70; (citing Hinnah v. Director of Revenue, 77 S.W.3d 616, 621-22 (Mo. banc 2002)). It is not necessary that Officer MacManus see Campbell driving, but instead, he may rely upon circumstantial evidence of such to form a belief amounting to probable cause. Id.; (citations omitted). ‘Probability and reasonableness characterize the concept of probable cause. Probable cause is a fluid concept and, as such, turns on the assessment of the probabilities in particular factual contexts.’ ” Id.; (quoting Cox v. Director of Revenue, 37 S.W.3d 304, 307 (Mo.App. 2000)).

The evidence in this case, and the reasonable inferences therefrom support a finding that Officer MacManus had probable cause to believe Campbell was driving. Office MacManus testified a county police deputy was already on the scene when he arrived, and the deputy informed him he had turned off the vehicle Officer Mac-Manus observed the vehicle in the median between the east and west-bound lanes of Highway 40. According to Officer Mac-Manus, Campbell was in the driver’s seat, and the keys were in the ignition. It is a logical inference from this circumstantial evidence that Campbell drove the vehicle there. Campbell did not contradict this evidence. She testified she had been at a party, but did not remember leaving. Campbell was unsure how she got to the median and she did not know whether she drove there. She did not testify that she was not driving.

The Missouri Supreme Court faced a similar case in Cox v. Director of Revenue, 98 S.W.3d 548 (Mo. banc 2003). In Cox, the driver was found sleeping or unconscious in the driver’s seat of a parked car in a parking lot. The keys were in the ignition, and the motor was running. The interview form completed by the police officer indicated that Cox responded “yes” to the form question of “were you operating the vehicle.” Cox’s driving privileges were suspended. After a trial de novo, the circuit court ruled that Cox’s driving privileges were improperly suspended, and reinstated the privileges. The Supreme Court reversed and remanded, finding that where the key was in the ignition, the engine is running, and the person is behind the wheel, the officer had probable cause to believe Cox was operating the vehicle, even though he was sleeping. Id. at 550.

Here, there was evidence that Campbell’s vehicle was stopped in the median between two lanes of the highway. As the driver was in Cox, Campbell was in the driver’s seat with the keys in the ignition. Although there is some dispute as to whether the car was running, Office Mac-Manus testified that he was informed it was. Additionally, in Wilcox v. Director of Revenue, 842 S.W.2d 240, 243 (Mo.App.1992), the court determined that in evaluating probable cause, even when the vehicle’s engine was not running, other circumstantial evidence could supply the “driving” and “while” elements of driving while intoxicated. In Wilcox, an officer observed a vehicle parked in a lane of the highway. Wilcox was in the driver’s seat of the car, asleep. The keys were in the ignition; however, the vehicle was not on. The court found that based upon the facts that Wilcox’s vehicle was in the lane of a highway, Wilcox was alone in the vehicle and sitting in the driver’s seat, behind the wheel, and the key was in the ignition, reasonable grounds existed to believe Wilcox drove the vehicle to the location. Id. at 244. Based upon “practical considerations,” it was unreasonable to believe that someone else had driven the car to the location, left and Wilcox then sat in the driver’s seat and slept. Id. The court stated that “[rjeasonable probabilities favor the belief that Mr. Wilcox’s intoxication while driving caused him to stop the vehicle in that location.” Id.

As in Wilcox, here, Campbell was found in the driver’s seat, behind the wheel, and the key was in the ignition. The vehicle was in the median between two lanes of the highway. Given these facts, it is unreasonable to believe that another person drove Campbell’s vehicle to the median, left her in the car, and Campbell sat in the driver’s seat and slept. Regardless of whether the engine was, in fact, running at the time the officers arrived at the scene, the evidence supports the belief that Campbell was driving while intoxicated and stopped her car at the location as a result of her intoxication.

Based upon the evidence in the record before us, Officer MacManus had probable cause to believe that Campbell was operating the vehicle, and therefore the trial court erred in its judgment reinstating Campbell’s driving privileges.

The judgment of the trial court is reversed and the cause is remanded with directions to enter a judgment reinstating the revocation of Campbell’s driving privileges.

MARY K. HOFF, P.J., and PATRICIA L. COHEN, J., concur.

      . Campbell argues that an initial objection to this testimony was sustained, and therefore, this evidence cannot be considered. However, Officer MacManus’s subsequent testimony regarding the county deputy's information was not objected to, and no relief was requested after such testimony was provided.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Cornell WALLACE, Appellant.
    No. ED 85410.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 27, 2005.
    Cornell Wallace, Jefferson City, MO, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Cornell Wallace appeals pro se the trial court’s denial of his petition to reduce his sentence pursuant Rule 29.05. In 1998, Wallace pleaded guilty to a class C felony of stealing of a motor vehicle, Section 570.030, RSMo 1994, a class C felony of tampering in the first degree, Section 569.080.1(2), RSMo 1994, and a class A misdemeanor of receiving stolen property, Section 570,080, RSMo 1994, for which he was sentenced as a prior and persistent offender to eleven and a half years’ imprisonment for stealing a motor vehicle, eleven and a half years’ imprisonment for first-degree tampering, and one year imprisonment for receiving stolen property, all sentences to run concurrent.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Michael GILLENWATER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85452.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.
    Kent Denzel, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Michael Gillenwater (“movant”) appeals from the judgment denying his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. Movant contends that the motion court clearly erred in denying his motion because the record leaves the definite and firm impression that the plea court’s acceptance of his guilty plea to first degree murder under section 565.020 RSMo (2000) violated his due process rights in that his guilty plea was not entered into knowingly, intelligently, and voluntarily.

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

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


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    THE DENT WIZARD OF SAN FRANCISCO, INC. and Dent Wizard International Corporation, Plaintiffs/Appellants, v. Blake BUNETIC, Justin Cunningham, Jeff Finley, David Hutchison, Glenn Latessa, Carmello Panela, Zachary Rockelman, Dennis Scipi, and Robert Valenzuela, Defendants, Edward Kruse, Respondent.
    No. ED 85349.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 27, 2005.

      Jason M. Rugo, Roger W. Pecha, Kenneth L. Coyne, Jenkins & Kling, P.C., St. Louis, MO, for appellants.
    Blake Bunetic, Dublin, CA, pro se.
    Justin Cunningham, San Rafael, CA, pro se.
    Jeff Finley, Pleasanton, CA, pro se.
    David Hutchison, Morgan Hill, CA, pro se.
    Glenn Latessa, Livermore, CA, pro se.
    Carmello Panelo, San Ramon, CA, pro se.
    Zachary Rockelman, San Leandro, CA, pro se.
    Dennis Scipi, Pinole, CA, pro se.
    Robert Valenzuela, Pleasanton, CA, pro se.
    Edward C. Kruse, Kruse, Reinker & Hamilton, L.L.C., St. Louis, MO, pro se.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiffs appeal from a judgment awarding defendants’ former attorney attorney’s fees in the amount of $25,516.74 to be paid to the attorney from an injunction bond posted by plaintiffs in their injunction action against defendants. Defendants have not filed a motion to assess damages under the bond. We reverse because defendants’ former attorney was neither a party enjoined nor a party interested in the subject matter of the controversy and therefore had no standing to recover damages under the bond.

On August 4, 2008, plaintiffs, Dent Wizard of San Francisco, Inc. (individually, DSWF), and Dent Wizard International Corporation, filed a petition for injunctive and other relief and damages against defendants, nine former employees of plaintiffs. Plaintiffs alleged that each defendant breached a non-solicitation agreement and interfered with DSWF’s customers. After plaintiffs applied for a temporary restraining order (TRO) against defendants, the trial court entered a TRO and approved a bond in the amount of $125,000. Edward Kruse, respondent in this appeal, entered his appearance as attorney for defendants.

Mr. Kruse subsequently filed a motion to dissolve the TRO on the grounds that the signature of defendant Blake Bunetic had been forged. After a hearing, the trial court dissolved the TRO against Mr. Bunetic, renewed and extended the TRO against the remaining defendants and increased the bond to $300,000. Plaintiffs subsequently dismissed Mr. Bunetic from the action without prejudice. Mr. Kruse next filed a motion to dissolve the TRO with respect to the remaining defendants, which the trial court denied. Mr. Kruse later filed a motion to dissolve the TRO on the grounds that the signature of defendant Justin Cunningham had been forged. Plaintiffs voluntarily released Mr. Cunningham from the TRO.

In March, 2004 defendants discharged Mr. Kruse and engaged the services of attorney Richard Edwards, who entered his appearance on March 1, 2004. On August 16, 2004, Mr. Kruse filed a motion to withdraw.

On September 9, 2004, Mr. Kruse filed an “Amended Motion for Assessment of Attorney Fees on Injunction Bond.” Mr. Kruse alleged that he incurred attorney’s fees in the amount of $58,127.63 while representing defendants, and he sought payment from the bond in the amount of $25,516.64. Specifically, Mr. Kruse stated:

[CJounsel seeks compensation for reasonable attorney fees that were incurred on behalf of defendants in their representation and defense. Counsel spent substantial amounts of time and expense in representing the defendants as a whole and in the procuring of the dissolution of the Temporary Restraining Order as to defendants Bunetic and Cunningham. Defendants’ former attorney thus moves for the payment of outstanding attorney fees for the expense, effort and time expended on defendants’ behalf in the amount of $25,516.64 either from the injunction bond, or, in the alternative, that an attorney lien be placed upon the defendants cause of action and any verdict, proceed or judgment that is a result of this cause of action.

Both defendants and plaintiffs opposed Mr. Kruse’s motion in the trial court.

The trial court subsequently entered a judgment awarding Mr. Kruse $25,516.74. It concluded that Mr. Kruse’s attorney’s fees were compensable damages that could be paid from the bond and Mr. Kruse had an enforceable attorney’s lien on the bond.

DISCUSSION

We will affirm an award of damages on an injunction bond unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Buttress v. Taylor, 62 S.W.3d 672, 678 (Mo.App.2001), citing Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

In the first of their four points, plaintiffs contend that the trial court erroneously declared and misapplied the law when it entered a judgment awarding attorney’s fees to Mr. Kruse from the injunction bond because Mr. Kruse had no standing to recover his own fees on the bond. We agree and find this point disposes of this appeal.

Sections 526.070, 526.200, and 526.210 RSMo (2000) govern injunction bonds. These statutes limit a court’s jurisdiction to award damages to those damages that may be awarded on the bond. Seaton v. Western Auto Supply Co., 609 S.W.2d 207, 210 (Mo.App.1980) (quoting the City of St. Louis v. St. Louis Gaslight Company, 82 Mo. 349, 357 (1884)). Those statutes “ ‘provide the only basis for an assessment of damages arising from the issuance of an injunction.’ ” Newcourt Financial USA v. Lafayette Inv., 983 S.W.2d 214, 216 (Mo.App.1999) (quoting Collins & Hermann v. St. Louis County, 684 S.W.2d 324, 325-26 (Mo. banc 1985)).

Only the parties enjoined or parties “interested in the subject matter of the controversy” may recover damages on the injunction bond. Section 526.070; Rule 92.02. An “interested party” for the purposes of section 526.070 is any party to the injunction suit, whether enjoined or not “who incurs a loss as the actual, natural, and proximate result of the restraint being issued.” Buttress, 62 S.W.3d at 680. In Buttress, the court held that an intervenor to the injunction suit who had incurred attorney’s fees to protect its interests in the injunction suit was an interested party because it incurred those fees as the “actual, natural and proximate result of the restraint.” Id.

An award of damages on an injunction bond may include an award of reasonable attorney’s fees paid for necessary services rendered to lift the restraint. Collins & Hermann, 684 S.W.2d at 326. This is an award made to the client who incurred the fees, not to the attorney who rendered the services.

As a general matter, an attorney who represents a client in an action is not an interested party to the action. McLaughlin v. McLaughlin, 427 S.W.2d 767, 768-69 (Mo.App.1968). Specifically, Mr. Kruse is not an interested party who may recover damages on the bond under sections 526.070 and 526.200. He is not a party to the suit for injunction or an inter-venor in that action. Mr. Kruse has no personal interest in the subject matter of the TRO or the underlying action. He was not enjoined and has not incurred a loss as the actual, natural and proximate result of the restraint. Rather, his loss, if any, arose from his contractual relationship with defendants and defendants’ alleged failure to pay him the amounts he billed them for legal services he rendered.

Because Mr. Kruse was not enjoined or an interested party, he had no standing to recover his own fees as damages on the bond. If a party lacks standing, the trial court has no subject matter jurisdiction over the questions presented. Sequa Corp. v. Cooper, 128 S.W.3d 69, 75 (Mo.App.2003). The trial court had no jurisdiction to award damages to Mr. Kruse under sections 526.070, 526.200, and 526.210.

This lack of jurisdiction also precludes an award to Mr. Kruse on the alternate theory that he had an attorney’s lien on the bond. As we have stated, the court’s jurisdiction to award damages from the bond is limited to claims under sections 526.070, 526.200, and 526.210. Newcourt, 983 S.W.2d at 216; Seaton, 609 S.W.2d at 210. Mr. Kruse did not have standing to make a claim under these statutes. Moreover, defendants did not initiate a proceeding for assessment of damages on the injunction bond under these statutes, which would be a new and independent controversy. See Burney v. McLaughlin, 63 S.W.3d 223, 235-36 (Mo.App.2001); J and P Trust v. Continental Plants Corp., 541 S.W.2d 22, 26 (Mo.App.1976). Accordingly, there was no cause of action to which an attorney’s lien could attach. See generally, Section 484.130 RSMo (2000); Kansas City Area Trans. Auth. v. 4550 Main, 893 S.W.2d 861, 868-69 (Mo.App.1995).

For all of the above reasons, the judgment of the trial court is reversed.

LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ., concur.

      , No respondent’s brief has been filed.


author: PATRICIA L. COHEN, Judge.

text:
    STATE of Missouri, Respondent, v. Chauncey REGOT, Appellant.
    No. ED 83465.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.

      William J. O’Herin, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Chauncey Regot (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of St. Charles County upon his conviction by a jury of one count of leaving the scene of a motor vehicle accident, in violation of Section 577.060 RSMo 2000. In his appeal, Defendant contends that the trial court erred in: (1) failing to submit his proposed verdict directing instruction; and (2) sentencing Defendant to nine (9) years when seven (7) years was the maximum sentence for a prior and persistent offender convicted of a Class D felony at the time of sentencing rather than the ten (10) year maximum in effect at the time of the offense. We affirm.

Statement of the Facts and Proceedings Below

Viewed in the light most favorable to the verdict, the evidence adduced at trial establishes that on November 11, 2002, Defendant and his girlfriend, Rebecca Marvel, drove to the Division of Family Services office (DFS) in St. Charles, Missouri. While Ms. Marvel waited for her appointment, Defendant took her car and drove to a Convenient Mart gas station and bought a soda. As he exited the Convenient Mart, he collided with Lisa Brown and her co-worker, Julie Seymore. Immediately following the collision, Defendant left his car and walked toward Ms. Brown’s car. When Defendant reached Ms. Brown, she was sitting on the ground. Although in pain, Ms. Brown remained conscious and engaged in conversation with Defendant. Specifically, Defendant asked Ms. Brown if she was “okay.” Ms. Brown responded that she was not and that Defendant “needed to call somebody.” Defendant did not attempt to speak to Ms. Seymore who remained in the car.

After his conversation with Ms. Brown, Defendant initially headed toward the Convenient Mart, but then decided to run back to DFS. Once at DFS, Defendant spoke with his girlfriend and told her about the accident but did not call the police. Nonetheless, police and paramedics arrived at the scene of the accident. Ms. Brown and Ms. Seymore, both of whom were conscious and aware of everything that had occurred, reported to police what had happened and offered a description of Defendant. Thereafter, paramedics transported Ms. Brown and Ms. Seymore to a local hospital.

Shortly after responding to the scene of the accident, Detective Sergeant Michael Akers responded to a call reporting a stolen car from DFS. Upon arriving at DFS, Detective Akers spoke with Rebecca Marvel who reported her maroon 1990 Mercury Sable stolen. Having responded to the earlier accident, Detective Akers was aware both that the Sable had been involved in the earlier accident and that the driver of the Sable left the scene without exchanging information.

While interviewing Ms. Marvel, Detective Akers noticed a man matching the description of the driver who left the scene of the accident injuring Ms. Brown and Ms. Seymore. Detective Akers approached the man who turned out to be Defendant. When questioned by Detective Akers, Defendant stated that he was at DFS with his friend Travis. However, upon further inquiry, Defendant admitted that he had lied and that he fabricated Travis to cover the fact that he was at DFS with Ms. Marvel. Defendant also admitted that Ms. Marvel’s Sable had not been stolen and that he took the car to the Convenient Mart to buy a soda.

Defendant admitted that when pulling out of the Convenient Mart he collided with Ms. Brown’s car. Defendant further acknowledged getting out of the Sable and walking over to Ms. Brown. Defendant asserted that, after a brief conversation with Ms. Brown, he became seared and ran back to DFS, contacted Ms. Marvel and told her to call the police and report the car stolen. Defendant admitted that he asked several people at DFS for a ride home because he wanted to get out of the area. As a result of Defendant’s admissions, Detective Akers arrested Defendant for leaving the scene of the accident. Detective Akers transported Defendant to the hospital parking lot where Ms. Brown and Ms. Seymore identified Defendant as the man who left the scene of the accident.

The State charged Defendant, as a prior and persistent offender, with leaving the scene of a motor vehicle accident in violation of Section 577.060. At trial, both Ms. Brown and Ms. Seymore testified regarding the accident. In pertinent part, both women stated that they were coherent immediately following the accident and therefore were capable of exchanging names and insurance information with Defendant. Officer Diane Ermeling corroborated Ms. Brown’s and Ms. Seymore’s testimony and testified that when she responded to the accident, both Ms. Brown and Ms. Sey-more were conscious and able to converse.

Defendant testified in his own defense. Specifically, he claimed that after the collision, he walked up to Ms. Brown and said he would “be right back.” He admitted to leaving the scene of the accident without giving his name, insurance or contact information but claimed that he did not offer this information because it did not appear that Ms. Brown or Ms. Seymore were capable of taking down any information. Moreover, Defendant testified that he left the scene to go to DFS to get Ms. Marvel, the owner of the car, and wait for police to respond and return him to the scene of the accident.

At the close of evidence, the jury returned a verdict of guilty. The court sentenced Defendant, as a prior and persistent offender, to nine (9) years in the Missouri Department of Corrections. This appeal followed.

Discussion

In his first point on appeal, Defendant contends that the trial court erred when it submitted verdict directing Instruction Number 5 which: (1) improperly posited that at least one of the injured victims at the scene was not badly injured; and (2) failed to include that Defendant left the scene without exchanging information so that he could get to the nearest police station or judicial officer. In response, the State asserts that the trial court properly submitted Instruction Number 5 because the evidence submitted at trial supported the fact that both Ms. Brown and Ms. Seymore, although injured, remained conscious and capable of receiving Defendant’s identification information and that Defendant never left the scene to find the nearest police station or judicial officer.

As an initial matter, we note that we will not reverse a decision based on instructional error unless the trial court erred in submitting the instruction and the defendant suffered prejudice as a result. State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc 2002). A trial court does not err by refusing to submit an instruction that has no basis in the evidence. State v. Wilson, 105 S.W.3d 576, 586 (Mo.App. S.D.2003); State v. Hirt, 16 S.W.3d 628 (Mo.App. W.D.2000). If an instruction is erroneous, we analyze whether there was prejudice by reviewing the facts and the language of the instruction. State v. Ward, 745 S.W.2d 666, 670 (Mo. banc 1988). Prejudice results when the instructions are misleading and confusing to the jury. State v. Green, 812 S.W.2d 779, 787 (Mo.App. W.D.1991).

As a general rule, “[w]henever there is an MAI-CR instruction applicable under the law and Notes on Use, the MAI-CR instruction is to be given to the exclusion of any other instruction.” State v. Ervin, 835 S.W.2d 905, 922-23 (Mo. banc 1992). There was no dispute that MAI-CR3d 331.10 was the applicable verdict director. Accordingly, the trial court properly based Instruction Number 5 on MAI-CR3d 331.10. The State proposed that the trial court use option 5 in paragraphs Fourth and Fifth. The trial court agreed and Instruction Number 5 (the verdict director) provided as follows:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about December 11, 2002, the defendant operated a motor vehicle on a road traveled by the public at or near Ehlmann in the County of St. Charles, State of Missouri, and
Second, that while so doing the defendant was a party to an accident that caused physical injury to another person, and
Third, that defendant was aware that such physical injury had occurred, and
Fourth, that at the time of the accident or shortly thereafter at least one of the injured persons was present at the scene of the accident and not badly injured, and
Fifth, that defendant left the scene of the accident without stopping and giving sufficient information by which the defendant could be readily identified and located to at least one of the injured persons, then you will find the defendant guilty of leaving the scene of a motor vehicle accident.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
Physical injury means physical pain, illness, or any impairment or physical condition.

Defendant contends, however, that the trial court should have used the language from option 8 of MAI-CR3d 331.10 rather than option 5 in the Fourth and Fifth paragraphs. Defendant’s proposed language was as follows:

Fourth, that at the time of the accident or shortly thereafter no police officer was present at the scene of the accident and all of the other parties to the accident were badly injured and unable at the scene to receive information from the defendant.
Fifth, that the defendant left the scene of the accident without stopping and giving sufficient information by which the defendant could be readily identified and located to the nearest police station or judicial officer.

(emphasis added).

Contrary to Defendant’s argument, his proposed language for paragraph Fourth has no basis in the evidence, and the trial court did not err in submitting the State’s verdict director. Both Ms. Brown and Ms. Seymore testified at trial regarding the accident. Both women testified that they were coherent immediately following the accident and therefore were capable of exchanging names and insurance information with Defendant. Officer Diane Er-meling, the officer who responded to the scene of the accident, corroborated Ms. Brown and Ms. Seymore’s testimony and confirmed that, when she responded, both Ms. Brown and Ms. Seymore were conscious and able to converse.

Defendant testified that neither Ms. Brown nor Ms. Seymore were capable of “taking down” his identification information. However, even Defendant’s testimony acknowledged that Ms. Brown, although injured and sitting on the ground, was capable of conversation. To that end, Defendant asked Ms. Brown if she was okay and Ms. Brown responded “no, I’m not, call the police,” to which Defendant replied, “okay, ma'am, I’ll be right back.” Moreover, Defendant’s testimony acknowledged that he never even approached Ms. Seymore, the passenger who remained in Ms. Brown’s wrecked car, and therefore Defendant could not dispute that Ms. Sey-more was capable of receiving his information.

Likewise, the record contains no evidentiary support for Defendant’s proposed Fifth paragraph and the trial court did not err in submitting the State’s verdict director on that basis. Defendant’s proposed Fifth paragraph should only have been used if all the other parties to the accident were badly injured and unable to receive information from him. Here, as discussed above, the evidence did not support Defendant’s theory that Ms. Brown and/or Ms. Seymore were unable to receive information.

The case of State v. Hirt, 16 S.W.3d 628 (Mo.App. W.D.2000) is instructive on this point. In Hirt, the defendant also argued that the trial court erred in refusing to substitute option 8 of MAI-CR3d 331.10 for option 5. Id. at 631-33. As the Western District noted, “[t]he key portion of the verdict director, contained within both option 5 and option 8 to the Fifth paragraph of MAI-CR3d 331.10, requires that the defendant ‘left the scene of the accident without stopping and giving sufficient information.’” Id. at 633. Thus, where, as here, the defendant does not give his information to an injured party at the scene or does not go to the nearest police station, “a verdict director without the justification of giving the statutory-required information to the authorities at the nearest police station or judicial officer did not deprive the jury of considering whether [defendant] complied with the statute.” Id. Accordingly, point one is denied.

In his second point on appeal, Defendant asserts that the trial court erred when it sentenced him, as a prior and persistent offender, to nine (9) years imprisonment on a Class D felony. In support of his contention, Defendant relies on Section 1.160 and argues that the maximum sentence for a prior and persistent offender convicted of a Class D felony was seven (7) years at the time of sentencing rather than the ten (10) year maximum in effect at the time of the offense in 2002. In response, the State asserts that Defendant was not entitled to lesser sentence because the statutory section creating the underlying offense, leaving the scene of an accident, was not amended.

Section 1.160 RSMo 2004 provides, in relevant part:

No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except: ... [t]hat if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to the original sentencing, the penalty or punishment shall be assessed according to the amendatory law.

Accordingly, under Section 1.160, “a defendant will be sentenced according to the law in effect at the time the offense was committed unless a lesser punishment is required by a change in the law creating the offense itself.” State v. Johnson, 150 S.W.3d 132, 138 (Mo.App. E.D.2004) (emphasis in the original). Section 577.060 creates the offense of “leaving the scene of a motor vehicle accident” and defines the offense as a Class D felony when, inter alia, the accident resulted in physical injury to another party.

When Defendant committed the offense in this case, the range of punishment for a Class D felony was a term of imprisonment not to exceed ten (10) years. Section 558.016 RSMo 2002. However, a statutory amendment to Section 558.016 became effective on July 27, 2003, prior to Defendant’s sentencing. This amendment reduced the maximum imprisonment for Class D felonies from ten (10) to seven (7) years. Section 558.016.7(4) RSMo Cum. Supp.2003. Defendant contends that Section 1.160 entitles him to relief because the amendment to Section 558.016 occurred before his original sentencing. We disagree.

Section 1.160 does not entitle Defendant to a reduced sentence because the statutory section creating the offense of “leaving the scene of a motor vehicle accident” was not amended prior to Defendant’s sentencing. See Johnson, 150 S.W.3d at 138-39. Because the amendment did not apply to the law creating the offense of “leaving the scene of a motor vehicle accident” the amendment to the sentencing guidelines set forth in Section 558.016 does not reduce the penalty for Defendant’s conviction. Accordingly, Defendant’s second point is denied.

Conclusion

The judgment of the trial court is affirmed.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J„ Concur.

      . All further statutory references are to RSMo (2000) unless otherwise noted.

      . MAI-CR3d 331.10 contains eight numbered options for use in paragraphs Fourth and Fifth. The paragraph Fifth option must correspond to the paragraph Fourth option.

      . We also note that neither the statute nor the applicable MAI-CR instruction require that the injured person be capable of "taking down” the requisite information.

      . MAI-CR3d 331.10 directs that language used in the Fifth paragraph must correspond to the language used in the Fourth paragraph. Given that there is no basis in the evidence for Defendant's Fourth paragraph, the trial court had no basis for using Defendant’s proposed Fifth paragraph.


text:
    In the Interest of H.C., A Minor Child.
    No. ED 85671.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 27, 2005.
    Mary D. Fox, University City, MO, for appellant.
    Daniel Underwood, Attorney for Juvenile Officer, Family Court of St. Louis.
    Kathryn L. Pierce, St. Louis, MO, Guardian Ad Litem, Voices for Children, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Heather Cole (Mother) and Roy Cren-shaw (Father) appeal from the Order and Judgment of Adjudication finding H.C. (Child) was without proper care, custody or support within the provisions of Section 211.031.1, RSMo 2000, and from the Order and Judgment of Disposition that placed Child in the legal custody of the Department of Social Services, Children’s Division (Children’s Division). On appeal, Mother and Father argue the trial court erred in finding there was clear and convincing evidence that Child was a juvenile within the City of St. Louis who is without proper care, custody, or support and who therefore falls within the provisions of Sections 211.031.1, RSMo 2000. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    Mark DUFFY, Appellant, v. TREASURER OF the STATE OF MISSOURI, CUSTODIAN OF the SECOND INJURY FUND, Respondent.
    No. ED 85738.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.
    Ray B. Marglous, Clayton, MO, for appellant.
    Da-Niel Cunningham, St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Mark Duffy (“Duffy”) appeals the final award of compensation, finding the Missouri Second Injury Fund (“Second Injury Fund”) hable for permanent partial disability benefits. Duffy alleges that the Labor and Industrial Relations Commission (“commission”) erred in finding the Second Injury Fund liable only for permanent partial disability benefits, when the evidence supported an award of permanent total disability benefits.

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

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


text:
    Christopher FREEMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85079.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.
    S. Kristina Starke, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Christopher Freeman (“movant”) appeals from the judgment of the motion court denying his motion for post-conviction relief pursuant to Rule 24.035 following an evidentiary hearing. Movant contends that the motion court clearly erred in denying his amended motion because his guilty plea was not voluntarily made in that the trial court denied his request for change of counsel, thereby denying him his right to effective assistance of counsel and coercing him to plead guilty by insisting that movant go to trial within nine days with assigned counsel if he did not plead guilty. Movant also argues that the motion court clearly erred in denying his amended motion because he was denied due process of law when the plea court sentenced him to a term of fifteen years’ imprisonment, which exceeded his plea bargain with the State of Missouri (“State”), in that the record shows that movant had a true plea agreement with the State, and the plea court should have permitted him to withdraw his guilty plea if it would not honor the plea agreement. Movant additionally asserts that the motion court clearly erred in denying his amended motion, which claimed that his plea counsel was ineffective by failing to adequately discuss the charges with him, for advising him to enter a blind plea rather than accept the State’s recommendation, and by threatening him that he would receive the maximum sentence if he failed to plead guilty.

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

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


text:
    Lufunso NEWSOME, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85386.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 27, 2005.
    Timothy Forneris, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J„ and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Lufunso Newsome (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 on the merits without an evidentiary hearing. Movant claims counsel was ineffective for failing to move to dismiss or object to the indictment charging him with one count of kidnapping, because the indictment failed to include essential elements of the crime. Movant also claims counsel was ineffective for failing to object to the closing argument of the state. Finally, movant argues counsel was ineffective for failing to challenge the sufficiency of the evidence of kidnapping to support his conviction.

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

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


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Shaval A. YOUNG, Appellant.
    No. WD 63443.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.

      Jeremiah W. (Jay) Nixon, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Jeannie Willibey, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Before SMITH, C.J., and ULRICH and SMART, JJ.
   EDWIN H. SMITH, Chief Judge.

Shaval A. Young appeals the judgment of his convictions for first-degree robbery, in violation of § 569.020, and armed criminal action (ACA), in violation of § 571.015, following a bench trial in the Circuit Court of Jackson County. As a result of his convictions, the appellant was sentenced to concurrent prison terms of eleven years for first-degree robbery and three years for ACA in the Missouri Department of Corrections.

The appellant raises one point on appeal. He claims that the trial court erred in overruling his motion for judgment of acquittal, at the close of the State’s and all the evidence, as to both offenses of which he was convicted, because the State, in violation of due process, failed to prove, as required by § 569.020 and § 571.015, an essential element of both offenses, that the knife displayed by the appellant during the course of the robbery was a “deadly weapon.”

We affirm.

Facts

On March 24, 2002, at approximately 5:00 p.m., the victim, Nathaniel Samuels, left his apartment building, located at 1108 Tracy in Kansas City, Missouri, and proceeded to walk on Tracy toward 12th Street. At the corner of 12th Street and Tracy, three young men began walking behind the victim. One of the men, the appellant, asked him for fifty cents. The victim continued walking, but after the appellant persisted in asking for the change, the victim finally gave him fifty cents. The victim then started to walk quickly away from the men, but all three men continued to follow him, and they too began to walk faster.

At the corner of 12th Street and The Paseo, the appellant jumped in front of the victim, displayed a knife and demanded the rest of the victim’s money. One of the other two young men ran from the scene, while the other stayed.

The victim initially refused to give the appellant his money and tried to run away, but the appellant grabbed him, causing the victim to slip and fall in the street. The appellant then put the knife to the victim’s chest and said, “Now, give me the money.” The victim gave the appellant all the money he had — one hundred and twenty-five dollars, which consisted of twenty- and one-dollar bills. The appellant and his accomplice then walked down The Paseo dividing the money between them. The victim started to chase after them, but lost sight of them as they entered the T.B. Watkins apartment complex at around 12th Terrace and Highland.

The victim spotted several Kansas City, Missouri, police officers at 13th Street and Highland and reported to them what had just happened. He described the man with the knife as tall and thin, and wearing a blue hooded jacket. The victim got into the patrol car of Officer Charles Hill. After driving approximately fifty feet, he saw and pointed out the appellant and his accomplices. As the patrol car approached the appellant and the other young men, the appellant jumped a six-foot fence and proceeded to circle around the building, jump another fence, and climb onto the balcony of another building.

Officer Hill called for backup as he watched the appellant, who was talking ■with two other men on the balcony. When the second patrol car arrived, the appellant began walking back down the sidewalk toward Officer Hill’s patrol car. As the appellant got about ten to fifteen feet away, Officer Hill stepped out of his patrol car and advised the appellant that he was under arrest. The two other males with the appellant, Deandre Ashley and Aaron Bean, were arrested upon being identified by the victim as the two other young men who were involved in the robbery. After their arrest, the police searched the appellant and the other two men. They found four twenty-dollar bills and two singles on the appellant, one twenty and two singles on Ashley, and five singles on Bean.

Detective Darren Reach interviewed the appellant, who waived his Miranda rights and agreed to speak with Reach. Initially, the appellant denied having any involvement in the robbery, but after further questioning, admitted both orally and in writing that he approached the victim, displayed a pocket knife with the blade open, took his money, and threw the knife somewhere afterwards.

On April 5, 2002, the appellant was indicted in the Circuit Court of Jackson County for the class A felony of robbery in the first degree, in violation of § 569.020, for “forcibly stealing] U.S. currency in the possession of Nathaniel Samuels, and in the course thereof ... was armed with a deadly weapon.” The appellant was also charged with ACA, in violation of § 571.015, for committing “the felony of Robbery in the first degree ... by, with and through the use, and assistance and aid of a deadly weapon.” In December of 2002, the appellant had a mental evaluation by the Division of Comprehensive Psychiatric Services at Western Missouri Mental Health Center. The report from that evaluation, dated December 18, 2002, concluded that the appellant was competent to stand trial. In pretrial proceedings on June 2, 2003, the appellant waived his right to a jury trial.

The appellant’s case proceeded to a one-day bench trial before the Honorable Preston Dean on June 3, 2003. The court found the appellant guilty of first-degree robbery and ACA. On September 11, 2003, the appellant was sentenced to concurrent terms of eleven years for the first-degree robbery and three years for ACA in the Missouri Department of Corrections.

This appeal follows.

Standard of Review

In a jury-tried case, our review of a trial court’s ruling on a motion for judgment of acquittal is for a submissible case. State v. Sensabaugh, 9 S.W.3d 677, 679 (Mo.App.1999). However, in a judge-tried case, as here, where the trier-of-fact and the arbiter of the law are one in the same, we review to determine whether there was sufficient evidence from which the trial court could have found the defendant guilty beyond a reasonable doubt. State v. Rehberg, 919 S.W.2d 543, 552 (Mo.App.1995). “In making that determination, we accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding, and all contrary evidence and inferences are ignored.” Id. “We do not weigh the evidence or decide the credibility of the witnesses,” but defer to the trial court. Id. (citing State v. Silvey, 894 S.W.2d 662, 672 (Mo. banc 1995)).

I.

In the appellant’s sole point on appeal, he claims that the trial court erred in overruling his motion for judgment of acquittal, at the close of the State’s and all the evidence, as to both offenses of which he was convicted, because the State, in violation of due process, failed to prove, as required by § 569.020 and § 571.015, an essential element of both offenses, as charged, that the knife the appellant displayed during the course of the robbery was a “deadly weapon.” While we agree that the evidence was insufficient to demonstrate that the knife used by the appellant was a “deadly weapon,” we disagree that the evidence was insufficient to convict the appellant of first-degree robbery and ACA.

Under § 569.020, there are four options available for charging robbery in the first degree. In that regard, § 569.020 reads, in pertinent part:

1. A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
(4)Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.

The State chose option (2) in charging the appellant, alleging in Count I of the indictment that on or about March 24, 2002, the appellant, in violation of § 569.020, “forcibly stole U.S. currency in the possession of Nathaniel Samuels, and in the course thereof ... was armed with a deadly weapon.” (Emphasis added.) Accordingly, in charging the appellant with ACA, under § 571.015, which provides, in pertinent part: “any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action,” the State alleged in Count II of the indictment that on or about March 24, 2002, the appellant, in violation of § 571.015, “committed the [] felony of Robbery in the first degree by, with and through the use, assistance and aid of a deadly weapon.” (Emphasis added.) Thus, in order to convict the appellant of the offenses of first-degree robbery and ACA, as charged, the State, as a matter of due process, had the burden of proving, beyond a reasonable doubt, the common proof element of the offenses — that the knife the appellant displayed during the commission of the robbery was a “deadly weapon.” State v. Kelly, 43 S.W.3d 343, 350 (Mo.App.2001); see also State v. Talkington, 858 S.W.2d 802, 804 (Mo.App.1993).

In this point, the appellant is claiming that the evidence was insufficient for the judge to find that the knife was a “deadly weapon,” as charged as to both offenses such that the evidence was insufficient to convict as to both offenses charged. For its part, the State contends that the evidence was sufficient for the judge to find that the knife used by the appellant in the robbery was a “deadly weapon,” which is defined, for purposes of §§ 569.020 and 571.015, in § 556.061(10) as: “any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, dagger, billy, blackjack or metal knuekles[.]” In the alternative, the State contends that even if the appellant is correct that the evidence was insufficient for the judge to find that the knife was a “deadly weapon,” it was sufficient for the judge to find that it was a “dangerous instrument,” which is defined, for purposes of §§ 569.020 and 571.015, in § 556.061(9) as: “any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury[,]” and that this, in turn, was legally sufficient to sustain his convictions, even though the indictment charged the offenses as having been effectuated by the use of a deadly weapon. While the appellant concedes that the evidence was sufficient to convict him of first-degree robbery and ACA, based on the use of a dangerous instrument, he argues, as a matter of law, citing State v. Bisans, 104 S.W.3d 805, 808 (Mo.App.2003), that because he was not charged in that fashion, he could not be convicted on that basis. Because we believe that the State is correct in its contention that the evidence was sufficient to convict the appellant, based on the use of a “dangerous instrument,” we discuss it alone.

In Bisans, the defendant was charged with and convicted of the class B misdemeanor of making a false report, under § 575.080.1(1), RSMo 2000, which read at the time: “A person commits the crime of making a false report if he knowingly: (1) Gives false information to a law enforcement officer for the purpose of implicating another person in a crime.... ” Id. at 807. Section 575.080.1 also provided that a person could be charged with making a false report if he knowingly:

(2) Makes a false report to a law enforcement officer that a crime has occurred or is about to occur; or
(3) Makes a false report or causes a false report to be made to a law enforcement officer, security officer, fire department or other organization, official or volunteer, which deals with emergencies involving danger to life or property that a fire or other incident calling for an emergency response has occurred.

In charging the defendant under option (1) of § 575.080.1, the State alleged that he “knowingly gave false information to Steven Brown, a law enforcement officer, that J.J. had threatened K.H., for the purpose of impheating J.J. in a crime, namely rape.” Bisans, 104 S.W.3d at 807. The State’s evidence was that the defendant had told Officer Brown, in corroboration of KH.’s admitted false allegations that J.J. had threatened to rape her, that he had overheard J.J. make such threats to K.H. Id. at 806-07.

In challenging his conviction on appeal, the defendant in Bisans claimed, inter alia, that while the evidence was sufficient to show that he did give false information to Officer Brown, it was insufficient to show, as charged under § 575.080.1(1), that he did so with the “purpose of implicating another person in a crime.” Id. at 807. In concluding that there was no evidence to support a finding that the defendant acted with the requisite “purpose of implicating J.J. in a crime, namely rape,” as required to convict under § 575.080.1(1), the Bisans court conceded that the “record may well have supported a finding by the jury that [defendant] provided false information to Officer Brown intending to corroborate KH.’s allegations that J.J. had made threatening statements to her.” Id. at 808. Specifically, the court stated:

While the record may well have supported a finding by the jury that [defendant] provided false information to Officer Brown intending to corroborate KH.’s allegations that J.J. had made threatening statements to her, [defendant] was not charged with, and the jury was not instructed on, [defendant] making a false report with the intent to implicate J.J. in any crime that J.J. might have been charged with in connection with those alleged threats.

Id. Such a finding by the jury, that “[defendant] provided false information to Officer Brown intending to corroborate KH.’s allegations that J.J. had made threatening statements to her,” id., would arguably have been sufficient to convict the defendant of making a false report under § 575.080.1(2), which only requires, for a violation, that the defendant make a “false report to a law enforcement officer that a crime has occurred or is about to occur.” (Emphasis added.) Because the Bisans court reversed the defendant’s conviction, despite it appearing that there was evidence to convict him of the offense charged, but on an alternative basis of the offense not charged or submitted to the jury, but permitted by the statute under which he was charged, the appellant contends that the court was rejecting the proposition urged by the State in our case, that a variance in the proof, or “method of conviction,” from the method of the offense charged was fatal to the State’s case. We disagree.

Unlike our case, Bisans was a jury-tried case. As such, instructions to the jury as to the law were required. In Bisans, there was no variance between the method of the offense that was charged and the method of the offense that was submitted to the jury in those instructions. They were the same. Hence, Bisans stands, inter alia, for the proposition that even if the proof would establish the offense charged, if the conviction is based solely on a method not charged or submitted to the jury, the conviction will not stand. In other words, in a jury-tried case, a reversal is required where there is a variance between the “method of submission” and the “method of conviction.” This rule makes perfect sense inasmuch as it is the jury that is the fact finder in a jury-tried case such that to allow a conviction on a method of the charged offense never submitted to the jury, would be to effectively deny the defendant of his right to a jury trial in that the jury would not be instructed on the sole method of conviction supported by the evidence.

Bisans stands in contrast to State v. Lee, 841 S.W.2d 648 (Mo. banc 1992). Unlike in Bisans, in which the method charged and the method submitted to the jury were identical, in Lee, the Missouri Supreme Court was confronted with the issue of whether a variance between the method of the offense charged in the information and the method of the offense submitted in the instructions to the jury was always prejudicial so as to mandate a reversal of the conviction, based on the method submitted in the instructions. Lee, 841 S.W.2d at 650. The Court said that the answer was no. Id. The Court held that a variance between the “method of the charged offense” and the “method of submission” only required reversal where the defendant failed to receive notice of the offense sufficient to allow him to adequately defend against the charged offense. Id.

The rule of Lee was extrapolated and applied to judge-tried cases by this court in State v. Jones, 892 S.W.2d 737, 739 (Mo.App.1994). In Jones, the defendant was charged with assaulting a police officer, in violation of § 565.083.1(1), by ‘attempting] to cause physical injury to Bryan Huff, a law enforcement officer, by trying to butt Bryan Huff in the head.’ ” 892 S.W.2d at 739. However, in convicting the defendant, the trial court found that the defendant had violated § 565.083 in an alternative method, by “chest-butting” the officer, which violated § 565.083.1(5). Id. In appealing his conviction, the appellant argued to this court that he could not be charged with one offense, or with one form of an offense, and convicted of another. Id. Analogizing to the resolution of this same issue in jury-tried cases, this court applied the rule of Lee and held that he could be convicted of the alternative method of the offense charged provided that the variance between the method charged and the method of conviction did not affect the defendant’s ability to adequately defend against the charged offense.

While the Jones court did not explain why the rule of Lee, rather than the rule of Bisans applied, the reason appears self-evident. In a judge-tried case, like Jones and this case, the trial court is the arbiter of the facts such that there are no jury instructions. As such, the determinable circumstance of Bisans, a variance between the “method of submission” and the “method of conviction,” would not present itself. Rather, the controlling circumstance in play in judge-tried cases is the variance between the “method of the offense charged” and the “method of conviction,” in other words, the circumstance of Lee, albeit in the context of a jury-tried case.

The appellant fails to demonstrate how he was prevented from adequately preparing his defense by the variance between the “method of the offense charged”— “deadly weapon,” and the “method of conviction” — “dangerous instrument.” He was charged with committing the robbery while using a “pocket knife” and that was the evidence that was presented at trial. His defense was that he was not the individual who displayed the pocket knife in the course of the robbery. From the record presented, we fail to see how the appellant’s defense was prejudiced in any way by the fact that the method of his convictions, “dangerous instrument,” varied from the method of the offenses charged, “deadly weapon.”

Point denied.

Conclusion

The judgment of the circuit court convicting the appellant of first-degree robbery, § 569.020, and ACA, § 571.015, is affirmed.

ULRICH and SMART, JJ., concur.

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

      . Section 575.080.1(1) was amended in 2002 and now reads: "A person commits the crime of making a false report if he knowingly: (1) Gives false information to any person for the purpose of implicating another person in a crime....”


text:
    James L. BLUM, Respondent, v. Joe RAMBLER and Mary L. Rambler a.k.a. Mary Blum, a.k.a. Mary Rambler-Blum, a.k.a. Mariah Newell, Appellants.
    No. WD 64394.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.

      John A. Lozano, Harrisonville, MO, for Appellants.
    Lynn K. Ballew, Harrisonville, MO, for Respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Joe and Mary Rambler appeal the judgment of the trial court in favor of James Blum on his claims for declaratory judgment, partnership dissolution, and accounting. They contend that the trial court’s findings that farm real estate and other real estate and personal property were partnership property and were acquired by the partnership was contrary to the parties’ written partnership agreement and violated section 358.080. The judgment of the trial court is affirmed. Rule 84.16(b).


text:
    Philip WILSON, Respondent, v. Michelle WILSON, Appellant.
    No. WD 64210.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Stephen C. Caruso, Kansas City, MO, for appellant.
    Ronald E. Partee, Kansas City, MO, for respondent.
    Before ROBERT G. ULRICH,
    Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.
   ORDER

PER CURIAM.

Michelle Wilson appeals from a decree entered by the Circuit Court of Clay County dissolving her marriage to Phillip Wilson. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Betty J. STOWELL, Appellant.
    No. WD 64058.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.

      Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

Betty Stowell appeals from her conviction on two counts of possessing a controlled substance in violation of Section 195.202, RSMo.2000. She contends the trial court abused its discretion in disallowing certain inquiries during voir dire.

Upon review of the record, we find no abuse of discretion and affirm the convictions. 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 30.25(b).


text:
    STATE of Missouri, Respondent, v. Randy J. GUNN, Appellant.
    No. WD 62391.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Lew A. Kollias, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Randy J. Gunn was convicted by a Jackson County jury of one count of the class C felony of assault in the second degree (§ 565.060, RSMo 2000; Count I) and two counts of the class C felony of abuse of a child (§ 568.060, RSMo 2000; Counts II and III)) for which he was sentenced to three consecutive seven-year terms of imprisonment in the custody of the Missouri Division of Adult Institutions. He appeals his conviction on Count I, arguing that the State did not prove venue was proper in Jackson County as to that offense.

No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties. Gunn’s conviction and sentence on Count I are affirmed. Rule 30.25(b).


text:
    Wayne D. JONES, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64771.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.

      Susan Lynn Hogan, Appellate Defender, Kansas City, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., joins on the briefs, Jefferson City, MO, for respondent.
    Before VICTOR C. HOWARD, P. J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   Order

PER CURIAM.

Wayne Douglas Jones appeals the denial of his Rule 24.035 motion in which he claimed ineffective assistance of counsel. 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:
    David NOLL, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent, Sysco Asian Foods, Inc., Defendant.
    No. WD 64828.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    David Noll, Kansas City, MO, pro se.
    Alan J. Downs, Jefferson City, MO, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   ORDER

PER CURIAM.

David G. Noll appeals an October 21, 2004 Order of the Labor and Industrial Relations Commission of Missouri affirming a determination of the Appeals Tribunal of the Missouri Division of Employment Security that Noll was ineligible to receive unemployment compensation benefits until he earns wages for insured work equal to ten times his weekly benefit amount since he had left work voluntarily without good cause attributable to the work or his employer, Sysco Asian Foods, Inc.

After reviewing the record and the parties’ briefs, we conclude that the Commission’s order is supported by competent and substantial evidence on the whole record and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

The order is affirmed. Rule 84.16(b).


text:
    Rachel L. HODGE, Appellant, v. Jack A. SWILLUM, Respondent.
    No. WD 64465.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Virgil D. Rogers, II, Tipton, MO, for Appellant.
    Clarence W. Hawk, Osage Beach, MO, for Respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Rachel Hodge appeals the judgment of the trial court following jury trial in favor of Jack Swillum on her claims for property damage and pain and suffering resulting from an automobile accident. She claims that the trial court erred in (1) giving a comparative fault instruction and (2) accepting the verdict in which the jury apportioned fault at 50% to Ms. Hodge, the plaintiff, and 50% to Mr. Swillum, the defendant, and awarded Ms. Hodge zero damages. The judgment of the trial court is affirmed. Rule 84.16(b).


text:
    Marion Dale MOAD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64475.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Jeannie Marie Willibey, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Daniel N. McPherson, Asst. Attorney General, Jefferson City, MO, joins on the briefs for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   Order

PER CURIAM.

Marion Moad appeals the denial of his Rule 29.15 motion in which he sought to vacate his convictions for one count of first-degree murder and two counts of first-degree assault. 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:
    STATE of Missouri, Respondent, v. Jessie Lee WHITAKER, Jr., Appellant.
    No. WD 63987.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Jeremiah W. (Jay) Nixon, Attorney General, Leslie E. McNamara, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for Appellant.
    Before SMITH, C.J., and LOWENSTEIN and ULRICH, JJ.
   Order

PER CURIAM.

Jessie Lee Whitaker, Jr., appeals from the judgment of the Circuit Court of Boone County convicting him, following a jury trial, of burglary in the first degree, § 569.160, and statutory sodomy in the second degree, § 566.064. As a result of his convictions, the appellant was sentenced to concurrent prison terms of eight years for burglary and seven years for sodomy in the Missouri Department of Corrections.

The appellant raises one point on appeal. He claims that the trial court erred in sustaining the State’s objection, based on relevancy, to a question asked by the defense of defense witness Sally Whitaker, on direct examination, concerning whether she had ever heard the victim “use racist remarks about anybody else in the trailer [court],” because it would have elicited testimony that was admissible as a prior inconsistent statement of the victim, pursuant to § 491.074, and was relevant in that it would show the victim’s bias against the appellant as an African American.

Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Barry K. BAKER, Defendant/Appellant.
    No. ED 85000.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 27, 2005.
    Kent Denzel, Columbia, MO, for appellant.
    Deborah Daniels, Karen Louise Kramer, co-counsel, Daniel Neal McPherson, co-counsel, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Barry K. Baker (Defendant) appeals from a judgment of conviction of murder in the first degree. Defendant challenges the sufficiency of the evidence to support his conviction in that the evidence did not show deliberation. We have reviewed the briefs of the parties and the record on appeal and conclude that the evidence was sufficient evidence from which a reasonable juror could have found beyond a reasonable doubt that Defendant deliberated before shooting the victim. State v. Shinn, 921 S.W.2d 70, 72-73 (Mo.App. E.D.1996). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


author: JANICE M. HOLDER, J„

text:
    OVERNITE TRANSPORTATION CO. v. TEAMSTERS LOCAL UNION NO. 480, et al.
    Supreme Court of Tennessee, at Nashville.
    Feb. 2, 2005 Session.
    June 8, 2005.
    Rehearing Denied Sept. 28, 2005.

      Edmund L. Carey, Jr. and George Edward Barrett, Nashville, Tennessee, for the Appellants-Defendants, Billy D. Cullen, Eddie Mims, Isom Folsom, and Ken-nie George.
    James Gerard Stranch, III and Mark Allen Mayhew, Nashville, Tennessee, for the Appellant-Defendant, Teamsters Local Union No. 480.
    Christopher Johlie and Melissa Crawford Mazzeo, Chicago, Illinois, and Kenneth A. Weber, Nashville, Tennessee, for the Appellee-Plaintiff, Overnite Transportation Company.
   OPINION

JANICE M. HOLDER, J„

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

We granted this appeal to determine 1) whether a trial court’s order declining to hold an alleged contemnor in civil contempt may be appealed; 2) whether compensatory damages for civil contempt are available pursuant to Tennessee Code Annotated section 29-9-105 (1980 & 2000) from a contemnor who commits an act forbidden by a trial court’s order; and, if so, 3) whether those damages may be recovered if the violation is not ongoing at the time of the hearing. We answer these questions in the affirmative. Accordingly, we affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

On October 24, 1999, Teamsters Local Union No. 480 (“Teamsters”) and its officers, Billy Cullen, Eddie Mims, Kennie George, and Isom Folsom (collectively “individual defendants”) commenced a strike protesting alleged unfair labor practices by Overnite Transportation Company (“Over-nite”), a common carrier of freight with a terminal in Nashville, Tennessee. On October 29, 1999, the trial court granted Ov-ernite’s request for a temporary injunction and imposed restrictions on the conduct of the parties. During the period from November 1999 to January 2000, Overnite alleged that the Teamsters committed various acts in defiance of the trial court’s orders, and the trial court granted Over-nite’s requests for more restrictive temporary restraining orders and temporary injunctions.

On June 23, 2000, Overnite filed a motion to require the Teamsters and the individual defendants (collectively “defendants”) to show cause why they should not be held in criminal or civil contempt. Ov-ernite attached affidavits detailing 131 instances in which the defendants allegedly violated the trial court’s orders. The trial court found that Overnite presented sufficient evidence to require the Teamsters to show cause why it should not be held in criminal contempt for 128 of Overnite’s allegations. The trial court referred the matter of criminal contempt to the Davidson County District Attorney General, who declined to prosecute.

Addressing the remaining issue of civil contempt, the trial court determined that Overnite could recover actual damages pursuant to Tennessee Code Annotated section 29-9-105 (1980 & 2000) if the Teamsters’ conduct was found to be contemptuous. The trial court, however, later concluded that Overnite could not recover actual damages because the strike activity had ended prior to the court’s hearing on March 12, 2002. The trial court found that any rulings as to the Teamsters’ past activity would be in the nature of punishment for criminal contempt rather than a coercive remedy for civil contempt. The trial eourt therefore granted the defendants’ motion for summary judgment and dismissed Overnite’s petition for civil contempt as moot.

The Court of Appeals reversed the trial court’s judgment. Citing Tennessee Code Annotated section 29-9-105, the Court of Appeals held that an injured party may recover actual damages that were sustained as a result of a defendant’s contemptuous conduct even after that conduct has ended. The defendants filed a petition to rehear, arguing that Overnite could not appeal from the trial court’s “acquittal” of the defendants from the allegation of contempt. The Court of Appeals denied the defendants’ petition to rehear because the trial court based its decision on a question of law without reaching the merits of the contempt petition. We granted review.

ANALYSIS

A. Right to Appeal

We must first determine whether Overnite had a right to appeal the trial court’s order granting summary judgment and dismissing the civil contempt proceedings. This Court previously has held that a party does not have a right to appeal an acquittal in a contempt proceeding. See Collier v. City of Memphis, 160 Tenn. 500, 26 S.W.2d 152, 153 (1930); Gunter v. Seaboard Copper Mining Co., 142 Tenn. 14, 215 S.W. 273, 274 (1919). These cases, however, predate the Tennessee Rules of Appellate Procedure, which became effective on July 1, 1979. A principal purpose of the Rules of Appellate Procedure is to bring together in one place a simplified, coherent, and modern body of law. Advisory Commission Comments to Tenn. R.App. P. 1. These rules are intended to replace the appellate procedure that was governed by scattered provisions of the Tennessee Code and the rules and decisions of the appellate courts. Id. Tennessee Rule of Appellate Procedure 3 governs the right to appeal a trial court’s order refusing to hold an alleged contemnor in contempt.

Although Collier and Gunter did not distinguish between criminal and civil contempt, this distinction is necessary in analyzing the right to appeal under Rule 3. Criminal contempt is used to “preserve the power and vindicate the dignity and authority of the law” as well as to preserve the court “as an organ of society.” Black v. Blount, 938 S.W.2d 394, 398 (Tenn.1996). Generally, sanctions for criminal contempt are designed to punish the contemnor and are unconditional in nature. Id. One alleged to have committed acts of criminal contempt, other than those acts committed in the court’s presence, must be given both notice of the alleged contempt and a hearing. Tenn.R.Crim. P. 42. If a defendant is charged with criminal contempt, guilt must be established by proof beyond a reasonable doubt. Black, 938 S.W.2d at 398. Criminal contempt cases are subject to the double jeopardy provisions in the federal and state constitutions. See Ahern v. Ahern, 15 S.W.3d 73, 80-82 (Tenn.2000); State v. Wood, 91 S.W.3d 769, 773 (Tenn.Ct.App.2002). Thus, an appeal from an acquittal of criminal contempt is barred.

The present case, however, involves a civil contempt action that arose out of a civil proceeding. A civil contempt action is generally brought to enforce private rights. See Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30, 377 S.W.2d 908, 912 (1964). The safeguards afforded to one accused of criminal contempt are not available to one accused of civil contempt. Tennessee Rule of Appellate Procedure 3(a) governs the right to appeal a trial court’s order declining to hold an alleged contemnor in civil contempt in a civil case. Rule 3(a) provides that “[i]n civil actions every final judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right.” Rule 3(a) does not exclude civil contempt proceedings from an appeal as of right, and we can discern no reason to impose such restriction.

B. Remedies for Civil Contempt

Overnite initiated civil contempt proceedings against the defendants and contended that the defendants willfully disobeyed the trial court’s orders regulating the conduct of the parties during the strike. See Tenn.Code Ann. § 29-9-102(3) (1980 & 2000). One may violate a court’s order by either refusing to perform an act mandated by the order or performing an act forbidden by the order. If the contem-nor has refused to perform an act mandated by the court’s order and the contemnor has the ability to comply with the order at the time of the contempt hearing, the court may fíne or imprison the contemnor until the act is performed. Tenn.Code Ann. § 29-9-104 (1980 & 2000); see Ahern, 15 S.W.3d at 79. Thus, the contemnor possesses the “keys to the jail” and can purge the contempt through compliance with the court’s order. Id.

The alleged contempt in the present case involves performing acts forbidden by the trial court’s order. Tennessee Code Annotated section 29-9-105 (1980 & 2000) provides that “[i]f the contempt consists in the performance of a forbidden act, the person may be imprisoned until the act is rectified by placing matters and person in status quo, or by the payment of damages.” (emphasis added). Section 29-9-105 combines punishment to vindicate the court with damages to compensate the party for injury arising from the illegal disobedience of the court. Headrick v. Carter, 897 S.W.2d 256, 261 (Tenn.1995). The measure of damages is the actual injury sustained as a result of the contempt. Id.

Fines for civil contempt may either coerce the contemnor to comply with the court order or serve to compensate the injured party. City of Chattanooga v. Davis, 54 S.W.3d 248, 271 (Tenn.2001) (“[Cjivil contempt fines ... are generally regarded as being remedial in nature when (1) the fine is prospectively coercive, or (2) the fine serves to compensate the party injured by the violation of the order.”) (citing United Mine Workers v. Bagwell, 512 U.S. 821, 829, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)). Accordingly, under the plain language of Tennessee Code Annotated section 29-9-105 (1980 & 2000), damages are available to a party injured by a contemnor’s acts in violation of a court’s order.

C. Effect of Cessation of Contemptuous Activity

The trial court recognized that compensatory damages are available in a civil contempt action but held that the cessation of strike activity prior to a hearing on the issue of contempt precluded a finding of civil contempt. The trial court therefore granted the defendants’ motion for summary judgment and dismissed the civil contempt claims. A trial court’s grant of a motion for summary judgment presents a question of law. Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn.2004). We review the granting of summary judgment by a trial court de novo without a presumption that the trial court’s conclusions are correct. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.2000).

When the contempt consists of the performance of a forbidden act, the cessation of the contemptuous conduct after the entry of the order prohibiting that conduct does not preclude a finding of civil contempt and an award of damages. Neither the plain language of section 29-9-105 nor that of section 29-9-102(3) requires that the disobedience of a court’s order be ongoing. See City of Cookeville v. Humphrey, 126 S.W.3d 897, 902 (Tenn.2004) (noting that where the language of a statute is clear and unambiguous, we must apply the statute in accordance with its plain language). Although the strike had ended, any disobedience of the injunction by the defendants would not be “rectified” until the defendants paid damages to Ov-ernite making it whole. See Tenn.Code Ann. § 29-9-105 (1980 & 2000).

CONCLUSION

We hold that a right to appeal lies from a trial court’s refusal to hold an alleged contemnor in civil contempt. We further hold that an injured party may recover damages pursuant to Tennessee Code Annotated section 29-9-105 from the contem-nor who performed the forbidden act, even though the contemptuous conduct is not ongoing. Therefore, the trial court erred in granting the defendants’ motion for summary judgment and dismissing Over-nite’s action for civil contempt. We affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

Costs of appeal are taxed to the appellants, Teamsters Local Union No. 480, Billy D. Cullen, Eddie Mims, Kennie George, and Isom Folsom, and their sureties, for which execution may issue if necessary.

      . The individual defendants contend that they were not parties to the civil contempt proceedings because the show cause order only applied to the Teamsters. Overnite, however, named the individual defendants as parties in its motion for a show cause order, and some of the allegations upon which the trial court based its show cause order involved actions allegedly committed by the individual defendants. The individual defendants further contend that Overnite’s claims against them should be dismissed due to Overnite’s failure to timely respond to the individual defendants’ motion for summary judgment. We are unable to adequately review this issue due to the absence of the individual defendants’ motion for summary judgment from the appellate record. See Tenn. R.App. P. 24.

      . These cases also predate the 1967 creation of a separate Court of Criminal Appeals. 1967 Tenn. Pub. Acts ch. 226, § 1 (codified as Tenn.Code Ann. § 16-5-101 (1994)). The Court of Criminal Appeals has jurisdiction of civil or criminal contempt arising out of a criminal matter. Tenn.Code Ann. § 16-5-108(a)(3) (1994). The Court of Appeals has jurisdiction of civil or criminal contempt arising out of a civil matter. Tenn.Code Ann. § 16-4-108(b) (1994).

      . Tennessee Code Annotated section 29-9-102 (1980, 2000) provides the following:
      The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:

      (3) The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts!.] • • •