text:
    Eldon BUGG, Appellant, v. VANHOOSER HOLSEN & EFTINK PC, et. al., Respondent.
    No. WD 63569.
    Missouri Court of Appeals, Western District.
    Dec. 7, 2004.
    Rehearing Denied Feb. 1, 2005.

      Eldon Bugg, Columbia, MO, pro se.
    Kevin E. Glynn, Kansas City, for Respondent.
    Before HAROLD L. LOWENSTEIN, PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   PER CURIAM.

Eldon K. Bugg appeals the trial court’s ruling granting summary judgment to Gerald D. Eftink and his Cass County law firm, YanHooser, Holsen and Eftink, P.C. Mr. Bugg’s petition against the defendants purported to plead claims of abuse of process, defamation, and prima facie tort. All claims were related to a letter authored by Mr. Eftink in November 1998 and mailed to the Chief Disciplinary Counsel, who is appointed by the Supreme Court and authorized to conduct investigations into lawyer misconduct and the unauthorized practice of law. Because we determine that the defendants were entitled to judgment as a matter of law, we affirm.

Background

The following facts are undisputed. Eldon K. Bugg, a non-lawyer, is the general manager of Caldwell Computing Technology, Inc., a business located in Boone County. Caldwell supplies computer-related products and services to the livestock auction industry. Mr. Eftink and his law firm are retained counsel for the Livestock Marketing Association, Inc. The Association has members that have purchased or leased equipment and software from Caldwell. Because of litigation matters that arose out of Caldwell’s contracts with members of the Association, Eftink and other lawyers in his firm became acquainted with Bugg.

In several different cases, Bugg brought an action in his own name as an assignee of Caldwell’s contract claims in an effort to recover amounts allegedly due to Caldwell under lease contracts. Bugg paid a nominal amount, ranging up to $10, for each assignment from Caldwell. The agreements with Caldwell provided that Bugg could keep whatever he recovered. One case involved a lessee of Caldwell, TriStates Livestock, Inc. In that case, Bugg took from Tri-States, the lessee, an assignment of a claim against an insurance company. The claim was for electrical damage to a computer caused by lightning. In Bugg’s complaint, he alleged that the cause of action assigned to him included damages for loss of property. He also purported, as assignee, to seek recovery of damages for “stress and humiliation.”

In his November 1998 letter to the Office of the Chief Disciplinary Counsel, Ef-tink set forth factual assertions related to the above matters. Eftink also included the following statements:

I think this is an improper attempt to practice law without a license.
It appears to us that Mr. Bugg is a salaried employee and officer of the corporation and that he has simply been employing a strategy to get around the requirement that the corporation appear in court by counsel.
I suspect that the corporation is compensating Mr. Bugg for his efforts and that if he ever collects on any of these cases, he will “assign” the money back to the corporation.
I would appreciate it if your office would check into the matter of Mr. Eldon K. Bugg.

In February 1999, the Office of the Chief Disciplinary Counsel wrote to Bugg, stating that it was investigating reports concerning his activities to determine whether he was engaged in the unauthorized practice of law. The letter also stated, in pertinent part:

While a natural person may represent himself in court, a corporation may not. Our Missouri courts have stated that those who are officers, directors and in management positions in corporations may not bring suit on their own behalf as assignees of that entity. It will be considered the unauthorized practice of law. Property Exchange and Sales, Inc. v. Bozarth, 778 S.W.2d 1 (Mo.App.1989). Please advise us what position you have with Caldwell Computing Technology, Inc. for if you do not think that the Property Exchange and Sales, Inc. v. Bozarth case applies in your situation, please explain to us why not.

The letter also suggested that he seek legal advice as to his responsibilities and requested that he respond within two weeks.

Several days later, Bugg responded, stating that he was merely an employee of the corporation. Any claim he might acquire from the corporation, he said, was for good and valuable consideration. Any legal remedy he sought through the courts was as a natural person and as the rightful owner of the claim. He suggested this distinguished his actions from those in Bo-zarth.

In March 1999, the Office of the Chief Disciplinary Counsel (“OCDC”) replied to Mr. Bugg’s letter, indicating that the OCDC would not take further action on the matter at that time. The OCDC indicated that litigants could raise the issue when Bugg appears in court. The letter stated that the OCDC was not deciding at that time whether Bugg’s activities constituted the unauthorized practice of law.

In February 2001, Bugg filed his petition against Eftink and Eftink’s law firm alleging abuse of process, defamation, and prima facie tort. Thereafter, defendants moved for summary judgment, claiming entitlement to judgment as a matter of law and asserting numerous legal defenses to plaintiffs claims. After considering the arguments of both sides, the trial court granted defendants’ motion for summary judgment.

On appeal, Bugg contends that the trial court erred in granting judgment to defendants because defendants did not show entitlement to judgment.

Standard of Review

Pursuant to Rule 74.04, judgment may be granted when there is no dispute as to any material fact and a party is entitled to judgment as a matter of law. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo.App.1993). This court reviews the record in the light most favorable to the party against whom the judgment was entered. Id. at 376. Facts set forth in affidavits or otherwise in support of a party’s motion for summary judgment are taken as true unless contradicted by the non-moving party’s responses to the motion. Id. The non-movant is accorded all reasonable inferences from the record. Id. The court’s review is essentially de novo, and the criteria for determining the propriety of a summary judgment on appeal are no different from that which the trial court would employ in deciding to sustain the motion initially. Id. The propriety of a summary judgment is purely an issue of law, and because the trial court’s judgment is founded on the record submitted and the law, this court does not defer to the trial court’s order granting the judgment. Id.

Analysis

The trial court in this case did not specify the basis of its ruling on the summary judgment motion. There were various defenses asserted by the defendants, including privilege, truth, justification, and lack of damage to plaintiffs reputation. We assume the trial court granted judgment on one or all of these theories. If the judgment was properly entered, we will sustain the judgment on any theory, even if not the theory relied upon by the trial court.

We need not delve into all the particulars of all the parties’ positions if there is a complete legal defense that would entitle the defendants to judgment on all of the claims in question. Therefore, we start by discerning whether any of the defenses raised herein would constitute, as a matter of law, a complete bar to all claims. It appears at first blush that several different defenses are meritorious defenses, at least as to some claims, if not all. Because the defense of privilege would clearly be applicable to all claims if valid in this instance, we will first consider the defense of privilege.

Respondents argue that the letter in question is privileged because it was a good faith communication to the Chief Disciplinary Counsel concerning the unauthorized practice of law. Respondent lawyers rely upon the Missouri Supreme Court Rule 5.315, which provides:

Communications submitted to the ... chief disciplinary counsel ... or the staffs ... relating to lawyer misconduct or disability are absolutely privileged if submitted in good faith. No lawsuit predicated on such communications may be instituted.

While the rule uses the term “lawyer misconduct” and makes no reference to non-lawyers engaged in the unauthorized practice of law, Respondents argue that the privilege applies here just as much as if it had been a complaint concerning a lawyer. That is because, pursuant to Rule 5.29, the OCDC is charged with the duty of investigating the unauthorized practice of law. Thus, such complaints, they say, should be viewed as falling under the protection of Rule 5.315.

Rule 5.315 appears to be a judicial codification by rule of the common law qualified privilege. Rule 5.315 provides a qualified privilege not only for purposes of defamation claims, but for other claims as well.

A communication is qualifiedly privileged when “it is made in good faith upon any subject matter in which the person making the communication has an interest or in reference to which he has a duty,” and when it is made “to a person having a corresponding interest or duty.” Rice v. Hodapp, 919 S.W.2d 240, 244 (Mo. banc 1996). A qualified privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty. See id.; 50 AM.JUR. 2d Libel and Slander, § 276 (1995). Whether the surrounding circumstances and relationships are such as to give rise to a qualified privilege is a question of law. Rice, 919 S.W.2d at 244. Here, Eftink clearly had at least a legitimate interest, if not a duty, to report his suspicions to the OCDC. Thus, we hold Eftink was entitled to the qualified privilege.

The plaintiff may overcome a qualified privilege by proving by clear and convincing evidence that the defendant made the defamatory statement with actual malice or that the statements exceeded the exigencies of the situation. Id. In this case, there is no contention that the statements exceed the exigencies of the situation. And indeed, the letter was published only to the OCDC, which was charged with responsibilities related to the unauthorized practice of law. In order to overcome the privilege, therefore, Bugg was required to offer the trial court some reason to believe that he could potentially show actual malice.

Actual malice is not about whether Eftink had ill will toward Bugg. See Smith v. UAW-CIO Fed. Credit Union, 728 S.W.2d 679, 683 (Mo.App.1987). Actual malice is about whether the statements were false and were made either (1) with knowledge that they were false or (2) with reckless disregard for whether they were true or false, at a time when the defendant had serious doubts as to whether they were true. Rice, 919 S.W.2d at 244. Whether the defendant acted with malice is a question of fact for the jury. Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 345 (Mo.1963). However, the issue will not be submitted to a fact finder when no substantial evidence of actual malice exists. Id.

Here, there is no dispute that the letter was factually true as far as the facts stated in the letter. Eftink’s letter was specific, and referred the Disciplinary Counsel to specific cases so that any investigation could begin with the specific cases mentioned. There is no evidence that Eftink’s letter was other than truthful.

Bugg contends, however, that it was not in good faith because Eftink did not disclose all pertinent facts. Bugg contends that Eftink should have informed the OCDC that the issue of unauthorized practice was raised in each of the four cases that Eftink mentioned, and that in each case the court mled that Bugg was entitled to proceed with his assigned claim. The failure to point this out in the letter, says Bugg, should cause the loss of any claim of privilege because it shows the defendants did not act in good faith.

Bugg is entitled to all reasonable inferences from the record. ITT, 854 S.W.2d at 376. We hold, however, that it could not reasonably be said, even considering the omission about which Bugg complains, that the letter was anything other than truthful. Although Bugg had a document called an “assignment” in each case, presenting, prima facie, the appearance that the claim had been assigned to him for consideration, and was allowed by the court to continue, that fact does not necessarily give rest to reasonable concerns. Indeed, Eftink stated in the letter that his suspicion was that “if [Bugg] ever collects on any of those cases, he will ‘assign’ the money back to the corporation.” (Emphasis added). Until a recovery were to occur, it would be impossible to know what Bugg would do with the recovery. Ef-tink’s legitimate purpose in the letter was to initiate an investigation, based on concerns that were not alleviated by the fact that in each case Bugg was allowed to proceed as an assignee. Accordingly, it is clear that the letter did not present a distorted or false impression. There is no evidence of actual malice.

There are strong public policy reasons why we would not wish to discourage attorneys and members of the public from reporting their concerns. To be hypercritical in the evaluation of such letters would undermine the purpose of the privilege. This is illustrated in the fact that, although Eftink may not have known it at the time, there are public records showing that Bugg has, at least to some extent, engaged in the unauthorized practice of law. The facts related thereto are drawn from the records of cases on appeal to this court. We take judicial notice of those records in order to illustrate the importance of the reporting of legitimate concerns. The fact that Bugg is in possession of documents labeled “assignments,” for which he paid a nominal amount of money, does not exempt him from suspicion with regard to the unauthorized practice of law.

Because Eftink’s letter enjoys a privilege as a matter of law to all claims pleaded, it is unnecessary to consider the arguments and authorities of the parties as to other issues.

We affirm the trial court’s ruling granting summary judgment to the Respondents.

Appendix

Case No. 1

Bugg appeared as an appellant in 2001 in Bugg v. Moberly Correctional Center, [50 S.W.Bd 924 (Mo.App.2001)]. That case was an appeal of proceedings in which Bugg was originally armed with a document executed by his brother, Billy Bugg, purporting to grant a “power of attorney” to Bugg to authorize Bugg to represent Billy with regard to a claim in the Division of Workers’ Compensation. Bugg was rebuffed in his effort to act as counsel for his brother, and then, pro se, filed a declaratory judgment action seeking a ruling that would permit him to prosecute his brother’s claim. The trial court ruled against Bugg, and he appealed to this court. This court held that Billy could not delegate his representation to someone without a law license, and that the “power of attorney” did not suffice to authorize Bugg to represent his brother. Later, Bugg and his brother Billy purported to file an action against various officials and entities for actual and punitive damages growing out of an alleged breach of an agreement between Billy and Billy’s employer, the Department of Corrections. They sought recovery of back pay and a lost bonus and recovery of damages for emotional distress. Attached to the petition was “an assignment of rights,” executed by Billy. According to Bugg’s petition, this was a “split assignment” by virtue of which Billy gave his brother all interest in the employment agreement, and also gave Bugg “bare legal title” to his workers’ compensation claim, but “did not assign any injury benefits to [Bugg], only title to the claim.” The trial court found the assignment invalid and dismissed Bugg, leaving Billy the sole plaintiff.

Bugg did not appeal his dismissal. Bugg later, however, attempted to file a second assignment by Billy to him of “all rights, title, and interest as sole plaintiff’ in the same suit. He also attempted to file a “notice of substitution of parties,” in which he gave notice that he would be the plaintiff in the suit. The court disallowed the assignment and substitution. After Billy subsequently failed to prosecute the action, the action was dismissed. Billy did not appeal, but Bugg filed a motion under Rule 74.06 to set aside the judgment. When that was ruled against him, he appealed. Bugg’s appeal to this court was found to be without merit.

Case No. 2

Bugg also appeared in this court in Estate of Laura Downs v. Eldon Bugg, [75 S.W.3d 853 (Mo.App.2002)], in which Bugg appealed a judgment rendered against him in a discovery of assets proceeding. In that case someone drew trust documents for Laura Downs, a long-time family friend of Bugg, for a living trust. Someone also drew a durable power of attorney for health care purposes, of which there was one section that also purported to give to Bugg broad fiduciary authority to act in behalf of Downs “with respect to any and all matters whatsoever without limitation or reservation.”

Bugg borrowed $42,000 from Ms. Downs, which he then loaned to his employer, Caldwell Computing Technology, Inc. Bugg executed a $42,000 promissory note to Ms. Downs. He then drafted an assignment whereby he, in behalf of Ms. Downs, pursuant to the purported power of attorney, transferred into a trust the $42,000 note. Downs and Bugg were co-trustees of that trust, and Bugg’s own living trust was the beneficiary of that trust. About a year later, Bugg, in behalf of the trust, acknowledged accepting from Caldwell the sum of $37,212 as “full and final payment” of all amounts due to the Laura Downs Revocable Trust. Laura Downs’ conservator, who had been appointed in the interim, sought a judgment that all assets included in the $42,000 belonged to the conservatorship. The trial court granted summary judgment in favor of the conservatorship. This court affirmed by summary order pursuant to Rule 84.16(b).


source: Caselaw Access Project

author: GLENN A. NORTON, Judge.

license: Public Domain

text:
    Janet WENGERT, Appellant, v. THOMAS L. MEYER, INC., Respondent.
    No. ED 83941.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 7, 2004.

      Andrew Tarry, Francis Toohey, Jr. (co-counsel), Perryville, MO, for respondent.
    Geoffrey L. Pratte, Farmington, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Janet Wengert (“Buyer”) appeals the judgment finding that she failed to prove fraudulent or negligent misrepresentation by Thomas L. Meyer, Inc. (“Seller”) in connection with her purchase of undeveloped land in Seller’s subdivision. We affirm.

I. BACKGROUND

After Buyer purchased a lot in Seller’s subdivision and built her home there, she discovered a severe water-drainage problem in her backyard. Before the purchase, the lot had been covered in tall weeds, which allegedly prevented her from carefully examining the property. Buyer was not aware of the exact topography of the land at the time of her purchase, saw no evidence of any water-drainage problems on the lot and was not informed of any drainage problem by Seller or any of its agents. Although a preliminary plat of the subdivision was filed at the city hall showing the contour lines of the land, the final subdivision plat, which was recorded in the land records and given to Buyer, did not have contour lines.

The severe water-drainage problems in Buyer’s backyard arose after a period of wet weather. Although the water did not damage her home directly, Buyer testified that her property value was zero because of the water that sometimes flowed across her backyard. It is not entirely clear what caused the drainage problem, but possibilities include a “wet weather spring” or “dry-bed creek” located near her backyard, or simply wet weather combined with the slope of the land around her backyard.

Seller’s witnesses indicated that they had no knowledge of a water problem on the lot, although the “swale” on the property was evident from the land’s topography. The contractor who built Buyer’s home testified that he saw. no problematic water conditions when building her or her neighbor’s homes, but that by looking at the surrounding area one would assume that water would drain there.

Under the original contract for sale of the land, Buyer was allowed to inspect the property and Seller was required to give her a disclosure statement. But later Buyer signed an amendment to the contract that removed the disclosure requirement and postponed the closing date. Buyer testified that Seller’s sales manager told her that the amendment only changed the closing date, that she relied on this representation, that she did not read the amendment and that she failed to realize that it also removed the disclosure requirement. Seller’s witness, however, testified that she told Buyer ahead of time that there would be no disclosure statement. No disclosure was ever provided, and Buyer never requested one.

Following a bench trial, the court found that Seller had no duty to disclose the possibility of a drainage problem. The court found that the parties “stood on equal footing to learn” about the problem and that “no witness envisioned that this amount of water would ever accumulate.” The court also found that the drainage problem was intrinsic to the land and that if Seller had known of the problem it would be inclined to find that Seller had a duty to disclose that information to Buyer. But it found no clear and convincing evidence that Seller or its agents had actual or constructive knowledge that this problem existed. The court found no convincing evidence of any form of negligent misrepresentation and stated that the amendment eliminating the disclosure requirement was “not misleading.”

II. DISCUSSION

In this court-tried case, we must affirm the trial court’s judgment 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court on the credibility of witnesses, and the trial court is free to believe all, part, or none of a witness’s testimony. State ex rel. Moore v. Brewster, 116 S.W.3d 630, 639 (Mo.App. E.D.2003).

A. Misrepresentation of the Water Problem

Buyer argues that she is entitled to recover under a misrepresentation theory based on Seller’s failure to give her sufficient information about her property at the time of sale. Fraudulent misrepresentation and negligent misrepresentation can arise from a person’s affirmative misrepresentations or from passive nondisclosure. Kesselring v. St. Louis Group, Inc., 74 S.W.3d 809, 813-14 (Mo.App. E.D.2002). But nondisclosure is only actionable when the defendant had a duty to disclose the information. Id. at 814 (citing Restatement (Second) of ToRts Section 551 (1977)).

Fraudulent misrepresentation involves knowingly or recklessly supplying false information or omitting information while under a duty to disclose it, while negligent misrepresentation only requires a failure to exercise reasonable care. Kesselring, 74 S.W.3d at 813-14. Therefore, to recover for nondisclosure, the plaintiff must show that the defendant knew or should have known about the underlying factual information that allegedly should have been disclosed. See Restatement Section 551(2) (listing five circumstances where a duty to disclose arises, each of which requires some level of knowledge).

1. Negligent Misrepresentation

Buyer argues that the court misapplied the law regarding negligent misrepresentation by requiring knowledge or recklessness instead of mere negligence. She points out the following findings in the trial court’s judgment:

... no evidence was presented that would convince this court that would constitute any form of negligent misrepresentation on the part of [Seller], No evidence was presented that clearly showed any conduct on the part of [Seller] or [its] agent[s] that was calculated to mislead and to fraudulently gain an advantage over [Buyer].

Although the court referred to a lack of negligent and intentional conduct in the same paragraph, the first sentence was clearly directed toward the Buyer’s negligent misrepresentation claim and the reference in the second sentence to a lack of conduct “calculated to mislead” the Buyer was directed toward the fraudulent misrepresentation claim. Point denied.

2. Lack of Knowledge

Several of the trial court’s findings indicate that it concluded that Buyer had failed to prove that Seller knew or should have known about any severe water-drainage problem. Buyer argues that such factual findings relating to Seller’s lack of knowledge are against the weight of the evidence. We disagree.

At trial, Buyer’s neighbors, who own the lot next to hers, testified that the sales manager for Seller told them about having once walked through standing water on their property and that it must be a “dry-bed creek” at certain times of the year. But the sales manager testified that he had no personal knowledge of the water drainage in the area and could not recall what he had told the neighbors. Seller’s corporate representative testified that he was aware of the land’s topography, the depression in the land and how water was channeled through the area, but that he saw no problem with it. It was undisputed that Seller had access to a topographical map of the subdivision, but only gave Buyer a map without contour lines.

Given these facts, we cannot say that the trial court’s findings were against the weight of the evidence. 'The testimony of Buyer’s neighbors, if believed, tends to show that Seller had some level of knowledge that part of Buyer’s lot might have unusual drainage issues. But the court was free to disbelieve the neighbors’ testimony about the sales manager’s statements. We defer to the trial court’s superior ability to evaluate the credibility of witnesses. See Yates v. Bridge Trading Co., 844 S.W.2d 56, 58 (Mo.App. E.D.1992). Moreover, even if the court found this evidence credible, we cannot say that it would have satisfied Buyer’s burden of proof. Even if the sales manager knew about a possible “dry-bed creek” on Buyer’s property that flowed during certain parts of the year, this does not necessarily show that Seller knew or should have known that a severe water-drainage problem would occur once Buyer built her home there. We are not firmly convinced that the trial court’s findings were against the weight of the evidence. See id. Point denied.

Since Buyer failed to prove that Seller knew or should have known about the severe water-drainage problem, her claims of fraudulent and negligent misrepresentation fail. Buyer’s contention that the court misapplied the law by imposing a duty on her to investigate the property more fully is therefore moot, and that point on appeal is denied.

B. Lack of a Disclosure Statement

The trial court found that the amendment to the original contract was not misleading and did not change the terms relating to a disclosure statement. Buyer argues that these findings were against the weight of the evidence. She contends that the amendment was misleading because the sales manager misrepresented that it merely postponed the closing date of the sale, when in fact it also removed the disclosure requirement.

Paragraph nineteen of the original contract is the only portion dealing with a disclosure statement:

19. SELLER DISCLOSURE STATEMENT. A Seller property condition disclosure statement is not a substitute for any inspections that Buyer may wish to obtain. Except as disclosed either in this Contract or any such seller property condition disclosure statement, neither Seller nor any broker or salesperson has made any representations not specifically set forth.
[The next page of the agreement states that this] Contract is contingent on Buyer’s review of a Farm or Vacant Land Disclosure Statement which Seller will provide to Buyer ...

Later, both the sales manager and Buyer signed an amendment to the contract that postponed the closing date and removed the disclosure requirement.

We agree with the trial court that the amendment, on its face, was not misleading in any way. Its terms were handwritten on a one-page, pre-printed form. The two items listed on that form were the changing of the closing date and the removal of the disclosure requirement. The latter was conspicuously written in the middle of the page.

The amendment, however, clearly changed the terms of the original contract by removing the disclosure requirement. Although the court's statement to the contrary was erroneous, we find that it did not materially affect the merits of the action because Buyer failed to prove a misrepresentation relating to this change. See Rule 84.13(b) (stating that we cannot reverse the trial court unless its error materially affected the merits of the action). Although Buyer argues that the court “completely overlooked the representation” by the sales manager relating to the contents of the amendment, the judgment indicates that it simply did not believe Buyer’s testimony, which was the only evidence of this alleged misrepresentation. The trial court was free to disbelieve her assertion that she did not notice or read the portion of the amendment that removed the disclosure requirement. See Brewster, 116 S.W.3d at 639. Further, other evidence indicated that Buyer had already been told that a disclosure statement would not be provided and that Seller routinely does not provide disclosures when selling vacant land. Point denied.

III. CONCLUSION

The judgment is affirmed.

KATHIANNE KNAUP CRANE, P.J. and BOOKER T. SHAW, J., concurring.

      . On appeal, Buyer has failed to adequately describe exactly what condition or information should have been disclosed under her theory of the case. In her petition, she alleged the existence of a "wet weather spring,” but no evidence of that condition was presented at trial. In her reply brief. Buyer initially argues that the nondisclosure was supplying her with a plat map of the subdivision that lacked contour lines, while the Seller possessed a topographical map showing contour lines. Later in the brief, however, she states that "the thrust of the problem[] is a severe water condition, regardless of its source, and not simply 'standing water.’ ”
      This later statement is most in line with the petition and the evidence presented. Buyer’s evidence tended to show that there was a severe water-drainage problem on the property; she did not advance the theory that Seller should have disclosed the existence of any and all moisture on the properly or should have provided every bit of technical or topographical information known about the property. Therefore, the relevant inquiry for purposes of this argument is whether Seller had knowledge of a severe water-drainage problem, not whether Seller knew of the general topography of the land or knew that some water might drain onto parts of Buyer’s property.


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Louiso V. RAMIRES, Appellant.
    No. WD 62863.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.

      Michael Joseph Gunter, Kansas City, MO, for Appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, P.J., LOWENSTEIN and SPINDEN, JJ.
   EDWIN H. SMITH, Chief Judge.

Louiso Ramires appeals the judgment of his convictions, after a jury trial in the Circuit Court of Platte County, of one count of trafficking in the second degree, § 195.223, and one count of unlawful use of a weapon, § 571.030. As a result of his convictions, the appellant was sentenced to consecutive terms in the Missouri Department of Corrections of fifteen years for trafficking and three years for unlawful use of a weapon, and fined $300 on the conviction for unlawful use of a weapon.

The appellant raises two points on appeal. In Point I, he challenges his drug conviction, and in Point II, he challenges his conviction for unlawful use of a weapon. In Point I, he claims that the trial court erred in overruling his pre-trial motion to suppress and in admitting at trial, over his objection, the methamphetamine seized from the vehicle he was driving when he was arrested for driving without a valid driver’s license because the seizure was illegal under the Fourth Amendment of the U.S. Constitution. In Point II, he claims that the trial court erred in overruling his motion for judgment of acquittal, at the close of all the evidence, on the charge of unlawful use of a weapon, because the State failed to prove, as required by due process, each and every element of the offense beyond a reasonable doubt, in that it failed to prove that the handgun with which he was charged as possessing was functional.

We affirm the appellant’s conviction for unlawful use of a weapon, and reverse and remand his conviction for trafficking.

Facts

At approximately 2:00 a.m. on August 13, 2002, Officer Brian Bradley of the Parkville, Missouri Police Department, while on patrol in the area of East Street and Fourth Street, noticed that a vehicle backing out of a driveway was missing a front license plate and had a cracked taillight. He stopped the vehicle and asked the driver, who turned out to be the appellant, for his driver’s license and proof of insurance. The appellant produced only a Mexican identification card, and, when asked whether he had a driver’s license, replied that he did not.

Officer Bradley placed the appellant under arrest for driving without a valid driver’s license, handcuffed him, and conducted a search of his person. Officer Bradley found $6,000 in cash in the appellant’s pants pocket, consisting of $20, $50, and $100 bills. After placing the appellant in his patrol car, Officer Bradley searched the interior of the appellant’s vehicle around the driver’s seat. During the search, he found, underneath the seat, a silver .32 caliber Beretta handgun, which he seized.

At some point, Officer Bradley radioed for backup. At about the same time he found the handgun, Officers David Win-ship and Eric Sligar arrived at the scene to provide backup. Officer Bradley decided to have the vehicle that the appellant was driving towed and impounded, which required the completion of a “Missouri Department of Revenue Authorization to Tow Form,” which called for an inventory search of the vehicle prior to its being released to the tow company. Officer Bradley called a tow company and then transported the appellant to the police station in his patrol car, while Officers Win-ship and Sligar stayed at the scene to conduct the required inventory search of the vehicle. During the search, an opaque white plastic bag containing the methamphetamine was found and seized.

On October 10, 2002, the appellant was charged, by information, in the Circuit Court of Platte County with one count of trafficking in the second degree and one count of unlawful use of a weapon. On January 16, 2003, the appellant filed, pursuant to Rule 24.05, Rule 34.01, and § 542.296, a motion to suppress the methamphetamine and handgun, alleging that they were seized in violation of the Fourth Amendment. The motion was heard on January 22, 2003 and overruled.

Officer Bradley testified at the appellant’s suppression hearing on behalf of the State, explaining why he had the vehicle towed and impounded following the seizure of the handgun and the arrest of the appellant, and describing the inventory search conducted of the vehicle:

A. My next step with the defendant, after I found the handgun, I ordered a Good Times Company tow company [sic] to the scene to tow the vehicle.
Q. And why would you do that?
A. Because of the defendant had no driver’s license and was unable to produce any paperwork for the vehicle that showed it was his, and finding the loaded handgun and the large amount of cash, I just felt better towing the vehicle and impounding it.
Q. And there’s nobody else to take possession of the car, at that point; is that correct?
A That’s correct.
Q. Okay. And at this point, do you have procedures that you follow through Parkville, as far as when you’re gonna impound a vehicle?
A. Through the city and through the State, yes, sir.
Q. Okay. And are you familiar with those policies and procedures?
A. Yes, sir.
Q. Okay. And what are your normal steps that you have to take, when you make the decision to impound a vehicle?
A. The State of Missouri has a Department of Revenue Authorization to Tow Form, which requires a detailed inventory search of the vehicle, prior to being towed.
Q. And why is that inventory of the vehicle done?
A. To inventory any contents, damaged, or missing parts of the vehicle, prior to it being released to the tow company.
Q. And to your knowledge, was that inventory search done?
A. Yes, sir, it was.
Q. Okay, and who was it conducted by?
A. It was conducted by Officer Sligar conducted the inventory search and Officer Winship filled out the form while Officer Sligar conducted the search.

Officer Sligar also testified at the suppression hearing on behalf of the State. He testified that he conducted the inventory search, which he described as “a search of the vehicle for all of its contents to discover any valuable items and log every item that we find in the vehicle on the tow sheet, as protection for liability for the department.” He testified that he began the inventory search “near the driver’s seat in the driver’s immediate reach area,” including looking underneath the dashboard by kneeling on one knee. While looking in that area, he noticed that the dashboard around the steering wheel did not have a cover, partially exposing a white plastic bag, which fell to the floorboard when it pushed on it. He testified that although he could not see what was inside the bag, he opened it up and found another plastic bag, which was blue and was semi-transparent. He could see, without opening it, that it contained a grainy material, which he believed was methamphetamine. He then opened the blue plastic bag and found what was later determined to be 612.9 grams, or 1.35 pounds, of methamphetamine.

The appellant was tried in a two-day jury trial on March 3-4, 2003. During the trial, the appellant objected to the admission of the methamphetamine and the handgun, claiming that they were obtained through an illegal search. The appellant’s objections were overruled, and the evidence was admitted.

The jury returned verdicts finding the appellant guilty of trafficking in the second degree and unlawful use of a weapon. On May 15, 2003, he was sentenced to consecutive terms in the Missouri Department of Corrections of fifteen years for trafficking, and three years for unlawful use of a weapon. In addition, he was fined $300 on his conviction for unlawful use of a weapon.

This appeal followed.

I.

In Point I, the appellant challenges his conviction for trafficking in methamphetamine. He claims that the trial court erred in overruling his pre-trial motion to suppress and in admitting at trial, over his objection, the methamphetamine seized from the vehicle he was driving when he was arrested for driving without a valid driver’s license because the seizure was illegal under the Fourth Amendment of the U.S. Constitution. He claims that the seizure of the methamphetamine, which was found in a white plastic bag tucked up under the dashboard, violated the Fourth Amendment and was unlawful in that the opening of the bag, which was considered a closed container, revealing the methamphetamine, was not permitted as part of a valid inventory search of the vehicle and its contents, under the Fourth Amendment exception relied upon by the State for the seizure. Specifically, the appellant claims that the opening of the white plastic bag violated the Fourth Amendment in that there was no showing, as required, that the Parkville Police Department had adopted specific procedures for opening closed containers found during an inventory search.

Appellate review of the denial of a motion to suppress is limited to a determination of whether there is substantial evidence to support the ruling. State v. Roman, 961 S.W.2d 881, 845 (Mo. banc 1998). In making this determination, this court reviews both the record of the suppression hearing and the trial. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). This court views the evidence and any reasonable inferences in the light most favorable to the trial court’s ruling. State v. Carter, 955 S.W.2d 548, 560 (Mo. banc 1997). This court defers to the trial court’s determination as to the credibility of witnesses. Rousan, 961 S.W.2d at 845. The ultimate issue of whether the Fourth Amendment was violated is a question of law, however, which this court reviews de novo. State v. Kimberley, 103 S.W.3d 850, 856 (Mo.App.2003).

The Fourth Amendment to the U.S. Constitution, enforceable against the states through the due process clause of the Fourteenth Amendment, guarantees the right of the people to be secure from unreasonable searches and seizures. Deck, 994 S.W.2d at 534. This same right is guaranteed by article I, section 15 of the Missouri Constitution. Id. Pursuant to these constitutional guarantees, warrant-less searches and seizures are deemed per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Taber, 73 S.W.3d 699, 704 (Mo.App.2002). One such exception is an inventory search of a motor vehicle, which permits a law enforcement officer to make a warrantless search of a lawfully seized vehicle, provided that it is conducted according to standardized criteria or an established routine adopted by the law enforcement agency conducting the search. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632,1635,109 L.Ed.2d 1 (1990); Colorado v. Bertine, 479 U.S. 367, 372,107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987); State v. Jones, 865 S.W.2d 658, 660 (Mo. banc 1993); State v. Hoyt, 75 S.W.3d 879, 883 (Mo.App.2002). In that regard, the appellant claims that the purported inventory search of the vehicle by the Parkville police officers at the scene of the arrest, that resulted in the seizure of the methamphetamine, was file-gal in that it was not conducted according to standardized criteria or established routine adopted by the Parkville Police Department, such that it violated his constitutional protection against unreasonable searches and seizures.

Inasmuch as we are to affirm the trial court’s denial of the appellant’s motion to suppress on any ground supported by the record, State v. Wells, 33 S.W.3d 202, 205 (Mo.App.2000), before we address whether the seizure of the methamphetamine was illegal, as the appellant contends, we first have to address the State’s contention that the trial court did not err in denying the appellant’s motion because he failed to show at the suppression hearing, as required, that he had “standing” to challenge the legality of the seizure. The State did not contest this issue at the suppression hearing, contending that it can raise it for the first time on appeal. The appellant does not address the issue of standing on appeal.

A. Fourth Amendment Standing

Rule 34.01 provides that the “provisions of Chapter 542, RSMo, shall govern procedure in searches and seizures.” Section 542.296.1 authorizes a “person aggrieved by an unlawful seizure made by an officer and against whom there is a pending criminal proceeding growing out of the subject matter of the seizure” to file a motion to suppress the evidence of the property or matter seized. And, although Rule 41 of the Federal Rules of Criminal Procedure, did contain, but no longer contains, this “aggrieved” language as to motions to suppress, 3A CHARLES ALAN WRIGHT, Nancy J. King & Susan R. Klein, FEDERAL PRACTICE AND PROCEDURE § 672 n. 1, at 370 (3d. ed.2004) states: “The phrase [concerning being aggrieved by a search and seizure] does not appear in new Rule 41(h), which now speaks to motions to suppress, but it has not been doubted that the concept is still applicable to a Rule 41(h) motion.” See State v. Nichols, 628 S.W.2d 732, 736 (Mo.App.1982) (referencing the “aggrieved” language of what was then Rule 41(e) of the Federal Rules of Criminal Procedure, stating: “Rule 41 conforms to the general standard and is no broader than the constitutional rule”) (citations omitted).

Section 542.296.1 does not specify who is considered a person aggrieved by a search and seizure to allow the filing of a motion to suppress evidence from an alleged illegal search and seizure. However, as we discuss, infra, the case law, both federal and state, would clearly indicate that to be an aggrieved person so as to have “standing” to file a motion to suppress, challenging the legality of a search, the defendant has to have a legitimate expectation of privacy in the property or thing searched.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978), the U.S. Supreme Court addressed the issue of “standing” to assert a Fourth Amendment violation and seek the protections of the exclusionary rule. The exclusionary rule “is a judicially imposed sanction to safeguard a person’s Fourth Amendment right to be free from unreasonable searches and seizures.” State v. Dowell, 25 S.W.3d 594, 604 (Mo.App.2000). In Rakas, the petitioners sought to have the Court interpret language in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) as supporting the so-called “target” theory for standing that they were advancing, “which would in effect permit a defendant to assert that a violation of the Fourth Amendment rights of a third party entitled him to have evidence suppressed at his trial.” Rakas, 439 U.S. at 133, 99 S.Ct. 421. In support of the target theory, the petitioners quoted from Jones, 362 U.S. at 261, 80 S.Ct. 725:

In order to qualify as a person aggrieved by an unlawful search and seizure one must have been a victim of a search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of search or seizure directed at someone else.

Rakas, 439 U.S. at 134-35, 99 S.Ct. 421 (emphasis added).

The Rakas Court rejected the “target” theory of standing and held that, because a person’s Fourth Amendment rights are personal constitutional rights that cannot be vicariously asserted and are not violated by an illegal search and seizure of a third person’s premises or property, and because the “exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.” Rakas, 439 U.S. at 134, 99 S.Ct. 421 (citations omitted) (emphasis added). In so holding, the Court “reaffirmed the principle that the rights assured by the Fourth Amendment are personal rights which may be enforced by exclusion of evidence only at the instance of the one whose own protection was infringed by the search and seizure.” Id. at 138, 99 S.Ct. 421 (citations omitted).

Having rejected the “target” theory for standing to challenge a search and seizure under the Fourth Amendment, the Court then turned to the question of what standard to use in determining whether a defendant has a Fourth Amendment right of protection with respect to the place or thing searched such that he could file a motion to suppress, seeking to exclude, at trial, the evidence seized. In that regard, the Court held that whether a challenged search or seizure violates the Fourth Amendment rights of a defendant seeking to invoke the exclusionary rule turns on a “determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” Id. at 140, 99 S.Ct. 421 (emphasis added). As to that interest, the Rakas Court discussed the rule in Jones that a Fourth Amendment right of protection existed where the defendant was “legitimately on premises.” Id. at 142, 99 S.Ct. 421 (citing Jones, 362 U.S. at 264, 80 S.Ct. 725). The Court rejected this standard as being “too broad a gauge for measurement of Fourth Amendment rights.” Id. Instead, the Court adopted, as the proper measure of a defendant’s interest sufficient to invoke Fourth Amendment protection, as a “legitimate expectation of privacy” in the place or thing being searched. Id. at 148, 99 S.Ct. 421.

In Jones, the Court not only held that Fourth Amendment standing could be established by the defendant’s being “legitimately on the premises;” but held that there was “automatic” standing “where the same possession needed to establish standing is an essential element of the offense charged.” Id. at 135, 99 S.Ct. 421. While standing based upon the defendant’s being “legitimately on the premises” was rejected in Rakas, the “automatic” standing rule was subsequently rejected in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). In rejecting the “automatic” standing rule, the Court, in Salvucci noted that in Jones, it had advanced two reasons for the rule: (1) that without the rule, in carrying his burden of proof as to standing, by testifying he possessed the items in question, the defendant would be conceding a proof element of the crime charged; and, (2) that any other rule would result in prosecutorial self-contradiction in that the government, in proving criminal liability, would be asserting that the defendant possessed the items, but with respect to Fourth Amendment standing, would be asserting the exact opposite. Salvucci, 448 U.S. at 87-88, 100 S.Ct. 2547 (citing Jones, 362 U.S. at 261-64, 80 S.Ct. 725). The Court concluded that the first reason was no longer valid in that, in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court had held that a defendant’s testimony at a suppression hearing could not be used against him at trial. Salvucci, 448 U.S. at 89-90,100 S.Ct. 2547. As to the second Jones reason for the “automatic” standing rule, the Court held that it was no longer valid in that it was based on an assumption that was incorrect in light of Rakas, the assumption being that a defendant’s possession of a seized item, sufficient to establish guilt, was also sufficient to establish Fourth Amendment standing. Id.

Reading Rakas and Salvucci together, it is clear that, according to federal law, only one basis remains for establishing standing to file a motion to suppress evidence with respect to the Fourth Amendment, that basis being the legitimate expectation of privacy in the place or thing searched. In other words, in order for a defendant to be aggrieved by an unlawful search and seizure sufficient to allow his filing of a motion to suppress under the Fourth Amendment, seeking to invoke the exclusionary rule, there has to be a showing that he has a legitimate expectation of privacy in the place or thing searched.

In State v. McCrary, 621 S.W.2d 266, 272 (Mo. banc 1981), the Missouri Supreme Court recognized the U.S. Supreme Court’s holding in Rakas, that “before one can complain of the violation of the fourth amendment, ... one has to have a legitimate expectation of privacy in the place or thing searched.” The McCrary Court also recognized that the “reasonable expectation” test for “standing” under Art. I, § 15, adopted by it in 487 S.W.2d 502, 508 (Mo. banc 1972), was identical to the “legitimate expectation of privacy” test adopted by the Court in Rakas. State v. McCrary, 621 S.W.2d at 273. Thus, the McCrary Court concluded that “in order for [a defendant’s] rights to have been violated or for [him] to have standing to assert a violation of Mo. Const. Art. I, § 15, [he] must have had a legitimate expectation of privacy in the place or thing searched.” Id. (emphasis added); see also State v. Simmons, 955 S.W.2d 752, 761 (Mo. banc 1997); State v. Wise, 879 S.W.2d 494, 503-04 (Mo. banc 1994); State v. Clark, 136 S.W.3d 582, 586 (Mo.App.2004); State v. Mosby, 94 S.W.3d 410, 415 (Mo.App.2003); State v. Toolen, 945 S.W.2d 629, 631 (Mo.App.1997). In other words, to challenge the legality of a search and seizure in this state under the Fourth Amendment and/or Art. I, § 15, the defendant must be “aggrieved” by the search and seizure in that he has a legitimate expectation of privacy in the place or thing searched. Thus, we interpret the language in § 542.296.1, that “[a] person aggrieved by an unlawful seizure made by an officer and against whom there is a pending criminal proceeding growing out of the subject matter of the seizure may file a motion to suppress the use in evidence of the property or matter seized,” as a codification of the “standing” requirement set forth in Rakas, Salvucci, Rawlings, and McCrary, which is satisfied by showing that the defendant has a legitimate expectation of privacy in the place or thing searched. See State v. Clark, 136 S.W.3d at 586; State v. Toolen, 945 S.W.2d at 631; State v. Childress, 828 S.W.2d 935, 939 (Mo.App.1992); State v. Nichols, 628 S.W.2d 732, 736-38 (Mo.App.1982) (discussing Fourth Amendment standing in terms of being “aggrieved” by the search and seizure).

Having concluded that being “aggrieved” by the search and seizure, as provided in § 542.296.1, equates to Fourth Amendment standing, the question becomes whether the defendant or the State has the burden of proof with respect to that issue. This question arises in that the State is claiming, here, that the trial court was correct in denying the appellant’s motion to suppress because he did not show that he had standing to file the motion, asserting that the burden to establish standing was on the appellant.

Section 542.296.1 does not expressly state whether the defendant or the State has the burden of proof as to standing. However, ,§ 542.296.6 does provide that:

The judge shall receive evidence on any issue of fact necessary to the decision of the motion. The burden of going for ward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled.

(Emphasis added.) The language of the statute, “burden of going forward with the evidence and the risk of nonpersuasion,” references the two recognized components of the burden of proof: “the burden of producing (or going forward with) evidence and the burden of persuasion.” Kinzen-baw v. Dir. of Revenue, 62 S.W.8d 49, 58 (Mo. banc 2001). The burden of going forward with the evidence is defined as “a party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict.” Id, at n. 6 (quoting Black’s Law DictionaRY 190 (7th ed.1999)). The burden of persuasion is defined as “a party’s duty to convince the fact-finder to view the facts in a way that favors that party.” Id. In referencing both components of the burden of proof, there can be no doubt that § 542.296.6 dictates that the State has the burden of proof to show by a preponderance of the evidence that the motion to suppress should be overruled. However, appellate decisions of this state, including the decisions of the Missouri Supreme Court, which were decided after the enactment of § 542.296.6 in 1974, clearly indicate that, as to a motion to suppress, the defendant has the initial burden of showing that he is aggrieved by the search and seizure or, in other words, has standing to challenge the search and seizure, under the Fourth Amendment, by showing that he has a legitimate expectation of privacy in the place or thing searched.

In State v. McCrary, the Missouri Supreme Court recognized that this state follows the rule that the defendant has the “burden of establishing that his own Fourth Amendment rights were violated by the challenged search and seizure.” 621 S.W.2d at 273 (citing State v. Hornbeck, 492 S.W.2d 802, 808 (Mo.1973) and (quoting Rakas, 439 U.S. at 131 n. 1, 99 S.Ct. 421) (emphasis added)). As the court in State v. Baker, 632 S.W.2d 52, 53 (Mo.App.1982) stated:

Though it is the state’s burden at [the motion to suppress] hearing to show by a preponderance of the evidence that the motion to suppress should be overruled, § 542.296.6, RSMo.1978, it is the defendant’s burden to establish ‘standing’ to challenge the search and seizure by showing his own Fourth Amendment rights were violated.

In other words, although the State, in accordance with § 542.296.6, has the burden of production and persuasion to show by a preponderance of the evidence that the defendant’s motion to suppress should be overruled, the defendant, in accordance with § 542.296.1, has the initial burden of proving that he is aggrieved by the search and seizure, or stated another way, that he has Fourth Amendment standing to challenge the search and seizure by showing that he has a legitimate expectation of privacy in the place or thing searched. State v. Simmons, 955 S.W.2d at 761; State v. Clark, 136 S.W.3d at 587; State v. Mosby, 94 S.W.3d at 416; State v. Mitchell, 20 S.W.3d 546, 557 (Mo.App.2000); State v. Toolen, 945 S.W.2d at 631; State v. Martin, 892 S.W.2d 348, 351 (Mo.App.1995); State v. Thompson, 820 S.W.2d 591, 593-94 (Mo.App.1991); State v. Baker, 632 S.W.2d at 53.

At least one legal commentator has questioned the freedom of the individual states to allocate the burden of proof in Fourth Amendment suppression hearings, specifically allocating any burden to the defendant, stating:

It appears clear that the Supreme Court has held, albeit without any extended discussion of the issue, that the burden of proof must be on the prosecution when it is claimed that the evidence was obtained in a search by consent, and thus it cannot be said that the allocation of the burden as to Fourth Amendment claims is merely a matter of state procedure untouched the Constitution. However, the Court has not spoken in such direct terms about allocation of the burden in other situations.

5 WAYNE LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 11.2(b), at 56 (3d ed.1996). In that regard, as we interpret § 542.296, Missouri places the burden on the prosecution as to all Fourth Amendment claims with respect to motions to suppress, whether a warrant was issued or not, except the burden to prove standing, which is on the defendant. Missouri’s placing of the burden on the defendant to prove Fourth Amendment standing has never been challenged as being unconstitutional, and, in fact, is consistent with federal case law on the issue, as we discuss, supra.

In holding as we do, that despite § 542.296.6, the defendant has the initial burden to show Fourth Amendment standing to file a motion to suppress, we are aware of two decisions of the Southern District of this court holding to the contrary: State v. Tipton, 796 S.W.2d 109, 111-12 (Mo.App.1990); and, State v. Childress, 828 S.W.2d at 942-43, relying on Tipton. In Tipton, the Southern District, relying on State v. Milliorn, 794 S.W.2d 181, 184-85 (Mo. banc 1990), concluded that § 542.296.6 placed the burden on the State to prove that the defendant had no Fourth Amendment standing. State v. Tipton, 796 S.W.2d at 111-12. And, the court in Childress, although recognizing an abundance of both federal and state authority to the contrary, ruled in accordance with Tipton. State v. Childress, 828 S.W.2d at 942-43. Both the Tipton and Childress courts’ reliance on Million is misplaced.

The Court in Million, in rejecting the State’s argument that State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974), was controlling, which held that the defendant had the burden of producing probative evidence in support of his motion to suppress, pointed out that Yowell was decided prior to the enactment of § 542.296.6. State v. Milliorn, 794 S.W.2d at 184. In finding that the burden of proof holding of Yowell was overruled by the enactment of § 542.296.6, the Court was not addressing the burden of proof as to Fourth Amendment standing. State v. Milliorn, 794 S.W.2d at 184. Rather, it was addressing the burden of proof as to whether the defendant’s motion to suppress should be overruled on the merits. Id. Thus, the Southern District’s reliance on Million in Tipton and Childress, placing the burden of proving the lack of Fourth Amendment standing on the state, was erroneous. This fact is made crystal clear by the Missouri Supreme Court’s post-Childress decision in State v. Simmons, 955 S.W.2d at 761, placing the burden of proving Fourth Amendment standing squarely on the defendant. Hence, Childress and Tip-ton were wrong from the beginning and should never have been followed. Moreover, we would note that the Southern District recently, in State v. Clark, 136 S.W.8d at 586, without any mention of Childress, ruled consistently with the holding in Simmons, citing State v. Toolen, 945 S.W.2d at 631. In any event, inasmuch as we are bound by the most recent pronouncements of our state Supreme Court, State v. Williams, 9 S.W.3d 3, 12 (Mo.App.1999), we are bound by the Court’s holding in Simmons, that the burden to prove Fourth Amendment standing is on the defendant. 955 S.W.2d at 761.

Having established that the appellant had the burden at the suppression hearing to show that he had a reasonable and legitimate expectation of privacy in the methamphetamine that was seized, the State contends that he failed to carry that burden, justifying the trial court’s denial of his motion to suppress. As noted, supra, the State did not raise the issue of Fourth Amendment standing at the suppression hearing or at trial, but raises it for the first time on appeal. As discussed, infra, this fact does not preclude us from considering the State’s contention that the appellant failed to carry his burden of proving Fourth Amendment standing, which justified the trial court’s denial of his motion to suppress.

On appeal, the appellant, not the respondent, has the “burden of showing erroneous action on the part of the trial court.” State v. Hensley, 770 S.W.2d 730, 731 (Mo.App.1989). To preserve an issue for appellate review, the appellant is required to raise that issue with the trial court below to give it an opportunity to take remedial action. State v. Brown, 953 S.W.2d 133, 139 (Mo.App.1997); State v. Gray, 926 S.W.2d 29, 33 (Mo.App.1996). In other words, an appellant cannot raise an issue for the first time on appeal. Gray, 926 S.W.2d at 33.

Here, the State is the respondent, not the appellant. As such, it was not required to preserve any issue for appeal by raising it below with the trial , court, including the issue of whether the appellant had Fourth Amendment standing to file his motion to suppress. See United States v. Miller, 636 F.2d 850, 854 (1st Cir.1980) (holding that the State, as the respondent, could raise the issue of the defendant/appellant’s Fourth Amendment standing for the first time on appeal in that, because it was the defendant’s burden at the suppression hearing to prove that he had Fourth Amendment standing, the. “failure to raise that standing issue was his failure, not the government’s,” such that he could not be heard to complain). Had the State been the appellant in our case, then, regardless of the fact that the defendant below had the burden of proof as to Fourth Amendment standing at the suppression hearing, the State would have been obligated to raise the issue below in order to preserve it for an interlocutory appeal, under § 547.200. See State v. Grundy, 25 Wash.App. 411, 607 P.2d 1235, 1237 (1980) (holding that the State, as the appellant, was obligated to challenge the defendant’s Fourth Amendment standing at trial, regardless of the burden of proof thereon). Of course, if the State stipulates or affirmatively waives standing, then, even as the respondent on appeal, it could not raise the issue. Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38 (1981); State v. Chil-dress, 828 S.W.2d at 940. That did not occur here.

In light of the foregoing discussion, to have Fourth Amendment standing to challenge the seizure of the methamphetamine, in accordance with § 542.296.1, the appellant had the initial burden of showing, by a preponderance of the evidence, that he had a legitimate expectation of privacy in the white plastic bag containing the methamphetamine, which was found in the vehicle during the purported inventory search conducted by the Parkville Police Officers at the scene of the appellant’s arrest. A two-part test exists for determining whether a defendant has a legitimate expectation of privacy in the place or thing searched:

First, the defendant must have an actual, subjective expectation of privacy in the place or thing searched. Second, the expectation of privacy must be reasonable or legitimate. The legitimacy or reasonableness of the expectation is measured by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

State v. McCrary, 621 S.W.2d at 272-73 (citations omitted).

In its brief, the State contends that the appellant did not have Fourth Amendment standing to challenge the inventory search of the vehicle “because [he] did not own the ear and [he] failed to demonstrate that he had permission to drive the vehicle.” In so contending, the State overlooks the fact that the appellant is not complaining on appeal about the legality of the inventory search of the vehicle insofar as it led to the discovery of the white plastic bag containing the methamphetamine. Rather, he is complaining about the opening of the bag once it was found during the inventory search, claiming that the Parkville police officers were not authorized to open closed containers found during an inventory search without there being shown a specified policy authorizing the same, which he contends there was not. Hence, in that respect, the question of standing in this case would concern the appellant’s privacy interest in the white plastic bag containing the methamphetamine, not the vehicle itself. In other words, the proper question concerning standing in this case is whether the record demonstrates that the appellant had a legitimate expectation of privacy in the white plastic bag containing the methamphetamine.

In determining whether the record supports a finding of Fourth Amendment standing with respect to the white plastic bag found during the inventory search of the vehicle the appellant was driving, we may consider the record of the suppression hearing and trial. State v. Clark, 136 S.W.3d at 586. The record on appeal reflects that the appellant did not specifically claim standing as to the white plastic bag at the suppression hearing or at trial, nor was the issue raised by the State. At the suppression hearing, the appellant did not testify. The only witnesses at the hearing were the State’s: Officer Bradley, who made the traffic stop of the appellant; and, Officer Sligar, who conducted the inventory search of the vehicle with Officer- Win-ship, and found the white plastic bag. They did not testify as to any statements made by the appellant at the scene that the white plastic bag was not his.

On, appeal, the appellant did not favor us with a complete transcript of the trial. Rather, for some unexplained reason, he chose only to provide the transcript of the State’s case. As to the State’s case, there is nothing in the record that the appellant made any statements at the scene that the white plastic bag containing the methamphetamine that was seized was not his. Consequently, there is nothing in the record on appeal that would suggest that prior to trial the appellant was disavowing any interest in the white plastic bag such that he would lack Fourth Amendment standing as to the bag. See State v. Toolen, 945 S.W.2d at 630, 632 (holding that a pre-trial showing that the defendant disclaimed ownership of the property in question prevented that defendant from asserting an expectation of privacy therein).

Although we did not conduct an exhaustive search, we found cases of our appellate courts that hold that the denial by the defendant, at trial, that the container in which the contraband was found was not his was sufficient to show a lack of Fourth Amendment standing. State v. Clark, 136 S.W.3d at 586; State v. Stillman, 938 S.W.2d at 291. We believe those cases are in error. Those cases fail to consider the well-established rule that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons v. United States, 390 U.S. at 394, 88 S.Ct. 967. In other words, a defendant is allowed to make contrary claims as to an interest in the place or thing searched for purposes of the Fourth and Fifth Amendments, just like the government. Without the rule of Simmons, the defendant would be forced:

either to give up what he believed ... to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another.

Id. In addition, without the rule, the U.S. Supreme Court commented that the “Government would be allowed the advantage of contradictory positions” at the suppression hearing and trial. United States v. Salvucci, 448 U.S. at 88, 100 S.Ct. 2547. In not allowing the government to take contradictory positions:

The Court reasoned that the Government ought not to be allowed to assert that the defendant possessed the goods for purposes of criminal liability, while simultaneously asserting that he did not possess them for the purposes of claiming the protections of the Fourth Amendment.... It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government.

Id. (citations omitted).

Common sense and logic dictates that the rule of Simmons should work in both directions. In other words, just like the State should not be allowed to use the defendant’s testimony at the suppression hearing against him at trial to prove guilt, it should not be allowed, on appeal, to use his testimony at trial against him to show a lack of standing. Unless the rule is enforced in both directions, the State would be allowed to argue on appeal that, although the rule of Simmons allows the defendant to take contrary positions before the trial court for purposes of the Fourth Amendment and criminal liability, his exercising of that right could be used on appeal to strike down any Fourth Amendment claim, based on there being no standing, using his testimony at trial that he did not have a privacy interest in the place or thing searched.

Unless it is enforced in both directions, the rule of Simmons, while eliminating the evil targeted by the rule for purposes of trial, would subsequently be rendered useless on appeal. In addition, unless the rule is enforced in both directions, the State would be allowed to have it both ways at trial and on appeal, while asserting a different rule for the defendant on appeal. The government’s having it both ways, while denying the same to the defendant, was expressly condemned by the Court in United States v. Salvucci 448 U.S. at 88, 100 S.Ct. 2547. Hence, to the extent that cases hold that the defendant’s testimony at trial, denying an interest in the place or thing searched, can be used against him on appeal to establish that he did not have standing to challenge the search, i.e., State v. Clark, 136 S.W.3d at 586; State v. Stillman, 988 S.W.2d at 291, they are wrong and should not be followed.

Here, the evidence was that the methamphetamine was wrapped in a blue plastic bag that was semi-transparent. That bag, however, was wrapped in an opaque white plastic bag, through which Officer Sligar testified at the suppression hearing he could not see so as to determine the nature of the contents. It is well settled, as to Fourth Amendment standing, that a defendant can have a legitimate expectation of privacy in personal items regardless of location. State v. Looney, 911 S.W.2d 642, 644 (Mo.App.1995). It is also well settled that a defendant can have a legitimate expectation of privacy with respect to contraband placed in a closed, opaque container to conceal it. Id.; State v. Courtney, 102 S.W.3d 81, 85 (Mo.App. 2003). Thus, in our case, the appellant could conceivably have a legitimate expectation of privacy in the white plastic bag containing the methamphetamine. However, the problem in determining that issue, here, is that, having reviewed the record before us in great detail, we find that it is totally devoid of any evidence from which it can be inferred, either way, as to the appellant’s having an interest in the white plastic bag.

Generally, where there is no evidence presented on which to decide an issue, the party with the burden of proof on that issue loses. See State v. Birmingham, 132 S.W.3d 318, 323 (Mo.App.2004). In other words, that party is said to suffer the burden of non-persuasion. Hence, inasmuch as the record here is totally devoid of any evidence from which the trial court could have made an affirmative decision as to the appellant’s Fourth Amendment standing, as to the white plastic bag containing the methamphetamine, and the appellant had the burden of proof on standing below, we would logically expect that he would lose on that issue. However, that expectation proves to be incorrect, according to the U.S. Supreme Court in Combs v. United States, 408 U.S. 224, 226, 92 S.Ct. 2284, 2285, 33 L.Ed.2d 308 (1972).

In Combs, the defendant, who was charged with violating 18 U.S.C. § 659 “by receiving, possessing, and concealing 26 cases of tax-paid whiskey known by them to have been stolen from an interstate shipment,” sought to suppress the whiskey, which was found during the execution of a search warrant. Combs, 408 U.S. at 225-26, 92 S.Ct. 2284. The defendant challenged the seizure as being violative of the Fourth Amendment, asserting that there was no probable cause showing sufficient to support the issuance of the warrant. ’ Id. at 226, 92 S.Ct. 2284. In overruling the defendant’s motion to suppress, the District Court ruled that he lacked standing to challenge the legality of the search and seizure. Id. The Court of Appeals affirmed, but the U.S. Supreme Court reversed and remanded for a factual determination of standing.

In reversing and remanding, the Combs Court recognized that the defendant had not asserted, either at the suppression hearing or at trial, that he had a possesso-ry or proprietary interest in the searched item or thing, which, the Court opined, could have been explained by the failure of the government to make any challenge to the defendant’s standing. Id. at 227-28, 92 S.Ct. 2284. The Court concluded, however:

In any event, the record now before us is virtually barren of the facts necessary to determine whether [defendant] had an interest in connection with the searched premises that gave rise to a reasonable expectation on his part of freedom from governmental intrusion upon those premises. If [defendant] can establish facts showing such an interest, he will have demonstrated a basis for standing to attack the search; re-examination of the validity of the warrant in light of the Government’s present position on that issue would then be appropriate to resolve the question whether evidence of the seized whiskey was properly introduced at [defendant’s] trial.

Id. (citations omitted). The Court does not give any rationale for why the issue of standing was remanded to the trial court, rather than simply finding against the defendant for failing to carry his burden of proof on that issue. The answer may be that the Court chose this procedural course of action as a compromise.

Conceivably, the Combs Court could have ruled against the defendant on the issue of standing because he had the burden of proof at trial and, therefore, he should suffer the burden of non-persuasion. However, as one legal commentator pointed out, when it comes to allocating the burden of proof, with respect to Fourth Amendment claims: “[I]t is most unlikely that the Court would find it constitutionally permissible for a state to impose burdens of proof upon defendants to such a degree and extent as to foreclose ‘a reliable and clear-cut determination’ of Fourth Amendment claims.” LAFAVE, p. 56 (citing Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972)). Hence, in a Com&s-type case where, at the trial level, the defendant fails to assert Fourth Amendment standing and the State does not challenge it, the Court would not be inclined to allow the issue to be resolved on appeal simply on the basis that the appellant had been allocated the burden of proof thereon and had failed to present any evidence to satisfy that burden. In fact, as noted by LaFave:

[s]ome courts take an even tougher stance in a Combs type of case, that is, where the prosecution prevailed at the trial level on the merits. They view the issue of standing ... as out of the case entirely because it was not also put into issue by the prosecution originally. In support, it is argued that traditional policies of notice and fair play mandate the conclusion that if the prosecution fails to raise the standing issue, but instead opposes the motion on the merits, the defendant is entitled to infer that the State concedes his standing, and that such a rule promotes the avoidance of unnecessary litigation which is a key purpose of the standing requirement.

§ 11.7(e), at 426. However, what the Court decided in Combs was that, rather than ruling against the State, on the basis that it had essentially conceded standing by not challenging it below, or against the defendant, on the basis that he had the burden of proof, it would strike a compromise and remand the case to afford the trial court an opportunity to make a “reliable and clear-cut” determination concerning whether the defendant had Fourth Amendment standing.

We are bound by the decisions of the U.S. Supreme Court concerning Fourth Amendment claims. Rodgers v. Danforth, 486 S.W.2d 258, 259 (Mo. banc 1972). Hence, inasmuch as the record in the ease before us is totally barren of any facts on which the trial court could make a reliable and clear-cut determination as to whether the appellant had Fourth Amendment standing as to the white plastic bag, containing the methamphetamine, we would be required by Combs to remand that issue to the trial court for further consideration consistent with this opinion. 408 U.S. at 228, 92 S.Ct. at 2286. However, before doing so, we must first address the State’s alternative contention as to why the trial court was correct in denying the appellant’s motion to suppress, that even if the appellant had Fourth Amendment standing to challenge the seizure, the inventory search exception applied so as to justify the warrantless seizure of the methamphetamine. This is so in that, as we noted, supra, under out standard of review, we are to affirm the trial court’s denial of the appellant’s motion on any basis supported by the record. State v. Wells, 33 S.W.3d at 205. Hence, if we find that the inventory search exception applied here to justify the opening of the white plastic bag containing the methamphetamine, then we must affirm, rendering the issue of standing with respect thereto moot such that there would be no need to reverse and remand for a determination of standing by the trial court.

B. Inventory Search Exception to Fourth Amendment Warrant Requirement

The State contends that it satisfied its burden under § 542.296.6 to show, by a preponderance of the evidence, that the appellant’s motion to suppress the seizure of the methamphetamine should be overruled because the evidence was sufficient for the trial court to conclude that the seizure was valid under the inventory search exception to the warrant requirement of the Fourth Amendment. We disagree.

As our Missouri Supreme Court recognized in State v. Jones, 865 S.W.2d at 660 (quoting Bertine, 479 U.S. at 371, 107 S.Ct. at 741), “Inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment.” In the case of a valid inventory search, the Fourth Amendment “policies requiring a warrant or probable cause” are not implicated. State v. Jones, 865 S.W.2d at 660. The purpose of the inventory search exception is threefold: (1) the protection of the vehicle owner’s property, (2) the protection of the police from false claims of lost property, and (3) the protection of the police from potential danger. State v. Milliorn, 794 S.W.2d at 185. “An inventory search is valid where reasonable police regulations for inventory procedures are administered in good faith.” State v. Jones, 865 S.W.2d at 660.

The State, in its brief, contends that the appellant did not have Fourth Amendment standing to challenge the inventory search of the vehicle “because [he] did not own the car and [he] failed to demonstrate that he had permission to drive the vehicle.” However, as we noted, supra, the appellant is not complaining on appeal about the legality of the inventory search of the vehicle insofar as it led to the discovery of the white plastic bag containing the methamphetamine. Rather, he is complaining that the opening of the bag, once found during the inventory search, was illegal in that the State failed to offer, as required, any evidence to show that the white plastic bag was opened in accordance with established police procedure for inventory searches. Thus, the issue is whether the opening of the bag was justified under the inventory search exception to the Fourth Amendment. The resolution of this issue requires us to determine what is the permissible scope of an inventory search with respect to the opening of closed containers found in the course of such a search.

The question of the permissible scope of inventory searches is addressed in a line of U.S. Supreme Court cases, culminating in Florida v. Wells, which squarely addresses inventory searches involving the opening of closed containers. In the first of these cases, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Court held that warrantless inventory searches of impounded vehicles do not violate the Fourth Amendment when conducted pursuant to “standard police procedures.” 428 U.S. at 376, 96 S.Ct. at 3100. The Opperman Court did not explore the question of the permissible scope of an inventory search. It did indicate that the police could search glove compartments, which, as it noted, is the customary place for ownership and registration documents. 428 U.S. at 372, 96 S.Ct. at 3098. However, it did not reach the issue of whether closed containers found inside the impounded vehicle could be opened.

In Colorado v. Bertine, the Court framed the question of the permissible scope of the inventory search in terms of the discretion of the officers conducting the search. The Court ruled that Opper-man did not prohibit the exercise of police discretion in conducting an inventory search, “so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” 479 U.S. at 375, 107 S.Ct. at 743. However, in Bertine, the Court did not clearly define the parameters of permissible police discretion in opening closed containers found during an inventory search.

In Florida v. Wells, the Court did define the permissible scope of discretion that could be exercised by law enforcement officers in opening closed containers found during an inventory search. There, the Court held that “standardized criteria or established routine must regulate the opening of containers found during inventory searches.” 495 U.S. at 4, 110 S.Ct. at 1635. (Internal citations omitted.) The Court found that the basis for this principle is that:

an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime.

Id. (internal quotation marks and citations omitted). However, the Court recognized that “in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical 'all or nothing’ fashion.” Id.

A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and the characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exteriors.

Id. Hence, in accordance with Florida v. Wells, for the State, here, to satisfy its burden of proving, as provided in § 542.296.6, that the appellant’s motion to suppress, challenging the opening of the white plastic bag containing the methamphetamine, should be overruled on the basis that its seizure was legal under the inventory search exception to the Fourth Amendment, it had to introduce evidence at the suppression hearing that the Park-ville Police Department had standardized criteria or established routine for opening closed containers, such as the opaque white plastic bag found during the inventory search of the vehicle the appellant was driving when arrested.

The record reflects that the State did present evidence at the suppression hearing that the Parkville Police Department had a policy requiring an inventory search of all impounded vehicles. However, it did not present any evidence of standardized criteria or established routine governing the opening of closed containers found during such a search. Thus, pursuant to Florida v. Wells, the State failed to satisfy its burden of demonstrating that the opening of the white plastic bag containing the methamphetamine by the police was valid under the inventory search exception.

In its brief, the state ignores Florida v. Wells, instead citing Colorado v. Bertine for the more general rule, first stated in South Dakota v. Opperman, that inventory searches of impounded vehicles do not violate the Fourth Amendment when conducted pursuant to “standard police department procedures” concerning inventory searches. From this, the State argues that its evidence that the Parkville Police Department had a policy requiring an inventory search of all impounded vehicles, was sufficient to satisfy the requirements of the Fourth Amendment to justify the warrantless seizure of the methamphetamine under the inventory search exception. Obviously, this is a misstatement of the law, given the U.S. Supreme Court’s holding in Florida v. Wells, as we discuss, supra.

The State also cites State v. Meza for the same proposition that it cites Colorado v. Bertine. In State v. Meza, decided by this court, the defendant challenged on appeal the denial of his motion to suppress 3.25 pounds of marijuana found in his vehicle when he was arrested for careless driving, claiming that the search, which disclosed the marijuana in a zipped bag in the trunk of the car, was not justified under the inventory search exception, as contended by the State. 941 S.W.2d 779, 780 (Mo.App.1997). This court ruled against the defendant on that issue. Id. at 781. In doing so, we stated that “police may inventory property in their possession when they do so in accordance with standard operating procedures.” Id. (citing Colorado v. Bertine, 479 U.S. at 372, 107 S.Ct. 738).

State v. Meza is distinguishable from the case at bar and is not persuasive. Unlike in our case, in State v. Meza the defendant was not challenging the validity of the inventory search on the basis that there was no evidence of a standardized criteria or established routine governing the opening of closed containers found during an inventory search. Rather, there, in holding that the inventory search was conducted pursuant to standard operating procedures, this court was simply addressing the defendant’s contention that the inventory search in question was unnecessary in that he was only being briefly detained to post bond on a traffic matter which did “not implicate the need [to protect an owner’s property while it is in the custody of the police], nor [did] it justify the opening of a zipped bag in a locked trunk.” Id. at 781. Thus, State v. Meza cannot be cited for the proposition asserted by the State here and is not controlling. And, in any event, it would be trumped by the U.S. Supreme Court’s holding in Florida v. Wells.

C. Summary of Point I

For the reasons stated, supra, the opening of the white plastic bag containing the methamphetamine and found during the inventory search of the vehicle the appellant was driving when arrested, was illegal under the inventory exception of the Fourth Amendment. And, because the State presented no evidence that the war-rantless seizure of the methamphetamine was justified under any other recognized exception to the Fourth Amendment warrant requirement, the trial court’s denial of the appellant’s motion to suppress was error, unless it determines on remand that the appellant lacked Fourth Amendment standing to challenge the seizure.

II.

In Point II, the appellant claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence on the offense of unlawful use of a weapon because the State failed to prove, as required by due process, each and every element of the charged offense beyond a reasonable doubt. Specifically, he claims that the State failed to prove that the handgun, which was seized from the vehicle he was driving, was functional. We disagree.

The review of a trial court’s denial of a motion for judgment of acquittal is the same as reviewing a claim that there was insufficient evidence to convict the defendant of the charged offense. State v. Bass, 81 S.W.3d 595, 614 (Mo.App.2002). Our standard of review in a criminal appeal challenging the sufficiency of the evidence is set forth in State v. Robinson, 108 S.W.3d 689, 692 (Mo.App.2003):

A challenge to the sufficiency of the evidence to support a finding of guilt is based in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. No person may be deprived of liberty, ‘except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt.’ The constitutional sufficiency of the evidence is a question of law to be determined, in the first instance, by the trial court on proper motion by the defendant and again on appeal.
When properly raised by the defendant, the question of sufficiency arises before the case is put to the jury; the challenge is to the ‘submissibility’ of the case. Therefore, any guilty verdict subsequently rendered by the jury is wholly irrelevant to the question of whether the case was sufficient to go to the jury at all. The Court’s review is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to each of the elements of the crime, beyond a reasonable doubt. To ensure that the reviewing court does not engage in futile attempts to weigh the evidence or judge the witnesses’ credibility, courts employ ‘a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ Thus, evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may reasonably be drawn from the evidence are indulged. Conversely, the evidence and any inferences to be drawn therefrom that do not support a finding of guilt are ignored.

To convict a defendant of a criminal offense, the State is required, as a matter of due process, to prove beyond a reasonable doubt each and every element of the charged offense. State v. Sellars, 98 S.W.3d 124, 127 (Mo.App.2003). Here, the appellant was convicted of unlawfully using a weapon, in violation of § 571.030.1(1), which provides: “A person commits the crime of unlawful use of weapons if he or she knowingly ... Marries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use.” The essential elements of this offense “are the knowing concealment and accessibility of a functional lethal weapon.” State v. Purlee, 839 S.W.2d 584, 590 (Mo. banc 1992).

In claiming that the State failed to prove all of the elements of the charged offense of unlawful use of a weapon, the appellant relies on § 571.030.3, which provides that § 571.030.1(1) does not apply “when the actor is transporting such weapons in a nonfunctioning state.” The appellant contends that, pursuant to this statutory scheme, the State had the burden of proving beyond a reasonable doubt that the handgun seized from the vehicle was functioning, which it did not do.

The appellant’s claim fails to consider that § 571.030.3, the “non-lethal use exemption,” is a special negative defense which must be properly raised by the defendant by introducing evidence that the weapon was in a • nonfunctioning state. State v. Davis, 71 S.W.3d 659, 666 (Mo.App.2002). If the exemption is properly injected into the trial by the defendant, then, and only then, does the State have the burden to prove beyond a reasonable doubt that the exemption does not apply. Id.

In this case, the appellant makes no claim that he injected the non-lethal use exemption at trial, and there is nothing in the record on appeal suggesting that he did. And, as we noted, supra, the appellant has failed to include in the record on appeal that portion of the trial transcript concerning his evidence at trial. Accordingly, we presume that the omitted evidence would be unfavorable to his claim on appeal. State v. King, 873 S.W.2d 905, 907 n. 3 (Mo.App.1994). Because the appellant has failed to demonstrate on appeal that he properly injected the special negative defense of the “non-lethal use exemption,” the exemption did not apply such that the State met its burden of proving the elements of the offense, without proving that the weapon was functional. Hence, the trial court did not err in overruling his motion for judgment of acquittal based on the State’s failure to prove that element.

Point denied.

Conclusion

The circuit court’s judgment of the appellant’s conviction for unlawful use of a weapon is affirmed. The court’s judgment of his conviction for trafficking in the second degree is reversed, and the cause is remanded to the court with directions for the purpose of determining whether the appellant had Fourth Amendment standing to challenge the warrantless seizure of the methamphetamine. In the event the circuit court determines that the appellant did have such standing, the reversal of the appellant’s conviction for trafficking becomes final, inasmuch as we have already determined that no exception to the Fourth Amendment justifying the war-rantless seizure of the methamphetamine was proven, and the State would not have any appeal from the court’s standing ruling in that it would not be an interlocutory ruling under § 547.200. However, if the circuit court finds that the appellant did not have standing, the appellant would have the right to appeal that issue alone to this court.

LOWENSTEIN and SPINDEN, JJ., concur.

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

      . All rule references are to the Missouri Rules of Criminal Procedure, 2004, unless otherwise indicated.

      . Although the Missouri Supreme Court in McCrary used the term ''standing” to describe a defendant’s right to contest the legality of a search and seizure, 621 S.W.2d at 273, the United States Supreme Court in Rakas held that this determination "belongs more properly under the heading of substantive Fourth Amendment doctrine than under the heading of standing." Rakas, 439 U.S. at 140, 99 S.Ct. 421. (Emphasis added). Nonetheless, our courts, including the Missouri Supreme Court, in State v. Lane, 937 S.W.2d 721, 722 (Mo. banc 1997), and the U.S. Supreme Court in United States v. Payner, 447 U.S. 727, 731-732, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980), have continued to use "standing” as a shorthand reference in describing whether a defendant is "aggrieved" by the challenged search or seizure.

      . As Judge Hogan pointed out in his dissent in Tipton: "I do not believe State v. Milliorn, 794 S.W.2d 181 (Mo.banc 1990), was intended to relieve the defendant of his burden to show that he was 'a person aggrieved by an unlawful seizure' with the meaning of § 542.296.1.” 796 S.W.2d at 112.

      . Combs was decided before Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), which discarded reliance on concepts of standing. However, the rationale of Combs remains valid, whether the issue of the defendant’s burden is characterized as a question of standing or of substantive Fourth Amendment law, and so Combs is still followed by courts. See, generally, 5 WAYNE LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 11.7(e), at 420-26. (3d ed. 1996).


author: PER CURIAM.

text:
    Rodney McGOWAN, Respondent, v. James POUNDS, et al., Appellant.
    No. WD 63293.
    Missouri Court of Appeals, Western District.
    Dec. 28, 2004.
    Rehearing Denied Feb. 1, 2005.
    Daniel J. Pingelton, Columbia, MO, for appellant.
    Daniel H. Miller, Columbia, MO, for respondent.
   ORDER

PER CURIAM.

James and Martina Pounds appeal from the judgment of the trial court, which denied their motion to vacate a default judgment entered against them in a property dispute. For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 84.16(b).