author: MINTON, Judge.

text:
    Joey MEADOWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-CA-002482-MR.
    Court of Appeals of Kentucky.
    June 3, 2005.
    As Modified July 8, 2005.
    Discretionary Review Denied by Supreme Court Dec. 14, 2005.

      Julia K. Pearson, Frankfort, KY, for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, KY, for Appel-lee.
    Before MINTON and TACKETT, Judges; HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

MINTON, Judge.

INTRODUCTION

Joey Meadows was charged with first-degree rape, first-degree unlawful imprisonment, and two counts of first-degree sodomy. A jury found him guilty of first-degree sexual abuse (a lesser included offense of first-degree rape), first-degree unlawful imprisonment, and one count of first-degree sodomy. The jury found him not guilty of the remaining count of first-degree sodomy. Meadows then waived sentencing by the jury. The circuit court sentenced him to a maximum of fifteen years’ imprisonment.

Meadows brings a direct appeal of his judgment of conviction. He asserts three errors by the trial court: failing to instruct the jury on fourth-degree assault, allowing Dr. William Smock to testify as an expert witness regarding a bite mark on Meadows’s penis, and allowing Dr. Russell Compton to testify about T.H.’s account of the sexual assault and to give his expert opinion that T.H.’s injuries were consistent with her account. Finding no reversible error, we affirm.

CONTACT BETWEEN MEADOWS AND T.H.

After spending some time with Jennifer and Corey McDonald and Meadows in the McDonalds’s home, T.H. decided to spend the night there. She had come to the McDonalds’ home with Meadows, who is also Jennifer’s brother, after meeting him in a bar a few hours earlier. Meadows also was staying with the McDonalds. T.H. borrowed pajamas from Jennifer and went to sleep alone in the bedroom to which Jennifer had taken her.

At this point, the accounts of T.H. and Meadows, both of whom testified at trial, diverge. According to T.H., she did not know that the bedroom Jennifer escorted her to was also the same bedroom where Meadows planned to sleep. She testified that she woke up to find that Meadows had removed her pajama bottoms and was on top of her. He was penetrating her vagina with his penis and touching her breast. She resisted, struggling and kicking. He then switched to performing oral sex on her. After more resistance by T.H., Meadows pinned her arms, grabbed her chin, and forced his penis into her mouth. Later, he again attempted sexual intercourse.

T.H. asserted that Meadows forced all of these sexual acts upon her. He pinned her down and physically restrained her. She struggled and kicked and bit Meadows at least once. Meadows repeatedly hit her in the head, choked her, and held or dragged her by her hair. He threatened to rape her anally if she were not cooperative. He once held a pillow over her head and, on multiple occasions, threatened to kill her by breaking her neck or strangling her if she awakened anyone. He added impact to these death threats by telling her that he knew how to kill people because he was trained as a Marine. T.H. was finally able to escape when he fell asleep.

Meadows testified that he and T.H. never discussed where he was to sleep because it was understood that they would sleep together. Moreover, he said that she should have known that it was his bedroom since it was a three-bedroom house and the McDonalds and their baby occupied the other two bedrooms. He stated that when he went to bed, he and T.H. engaged in consensual foreplay, which included him penetrating her vagina with his finger. Then, of her own initiative, T.H. began performing fellatio on him. In the process, she accidentally injured his penis with her teeth, causing it to bleed, which made her laugh. Meadows went to the bathroom to check out the injury. The injury and T.H.’s laughter caused Meadows to lose desire for further sexual contact. At that point, he and T.H. just went to sleep. He testified that all of the sexual contact was consensual. He denied ever engaging in sexual intercourse or cunnilingus with T.H. He also denied that he ever struck T.H., threatened her, or prevented her from leaving. Other relevant facts will be set forth as needed.

JURY INSTRUCTION ON FOURTH-DEGREE ASSAULT

The trial court instructed the jury on two lesser included offenses of first-degree rape: first-degree sexual abuse and sexual misconduct. In fact, Meadows was convicted of first-degree sexual abuse rather than first-degree rape. But Meadows asserts that the trial court erred by denying his request for an additional jury instruction on fourth-degree assault. He preserved this issue for review under RCr 9.54(2) by tendering . a jury instruction for fourth-degree assault and by arguing to the trial court that he was entitled to this instruction as a lesser included offense of first-degree rape.

William S. Cooper’s Kentucky Instructions to Juries, does not list fourth-degree assault among the lesser included offenses of first-degree rape by forcible compulsion, raising the question of whether it is a lesser included offense of first-degree rape. The mere “fact that the evidence would support a guilty verdict on a lesser uncharged offense does not establish that it is a lesser included offense of the charged offense.” It might simply be an uncharged offense.

Of the four possible ways set forth in KRS 505.020(2) by which an uncharged lesser offense can be included within a charged offense, only the following might apply in the instant ease: “[the offense] is established by proof of the same or less than all the facts required to establish the commission of the offense charged.”

Fourth-degree assault requires proof of “physical injury.” But physical injury is not an element of rape. The Kentucky Supreme Court has held that second-degree assault is not a lesser included offense of first-degree rape precisely because physical injury is an element of the former offense but not the latter. The same reasoning would apply to fourth-degree assault. Also, when it is not based on the use of a deadly weapon or dangerous instrument, fourth-degree assault requires proof that the defendant acted “intentionally or wantonly” in causing the physical injury. In contrast, the statute for first-degree rape does not require any particular state of mind, such as intent or knowledge. Because fourth-degree assault cannot be established by proof of the same facts or less than all of the facts needed to establish first-degree rape, it cannot be a lesser included offense of first-degree rape.

Even if it were a lesser included offense, Meadows was not entitled to an instruction on fourth-degree assault. A trial court is required to instruct on every theory of the ease that can reasonably be supported by the evidence, but there is no duty to instruct on a theory that lacks an evidentiary foundation. An instruction on a lesser included offense is required only if “the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense[] and yet believe beyond a reasonable doubt that he is guilty of the lesser offense” based on the evidence as a whole. No special jury instruction is required where the “negative [of the submitted instruction] completely covers the defense of the accused.”

Meadows asserts that he was entitled to an instruction on fourth-degree assault on the ground that the jury could believe that T.H. and Meadows engaged in consensual fellatio but that he physically assaulted her after she accidentally injured his penis and laughed about doing so. But this theory is not supported by the evidence presented at trial. Meadows’s defense to the rape charge was that no sexual intercourse ever occurred and that he never forcibly compelled her to do anything. This defense was adequately presented by the first-degree rape instruction since it is simply that instruction’s negative.

Even if there were evidence to support the theory that Meadows physically assaulted T.H. after she bit his penis, this would just be evidence of an uncharged assault not a lesser included offense of the rape charge. The evidence does not support an instruction on fourth-degree assault even if it were a lesser included offense of first-degree rape.

Meadows asserts that he was entitled to an instruction on fourth-degree assault even if it were not a lesser included offense of first-degree rape because it was crucial to his defense theory. A defendant is “entitled to an instruction on his theory of the case, even if it is an alternative theory as opposed to a lesser included offense.” Thus, the Kentucky Supreme Court held that if any substantial evidence is presented to support a defendant’s defense theory that the alleged acts upon which charges of first-degree rape, first-degree sodomy, and kidnapping were based all occurred after the victim had been murdered, the defendant is “entitled upon request to instructions [on the crime of abuse of a corpse] accordingly, rather than the jury being left with no alternative except to convict or acquit of the principal charges.”

But Meadows has not preserved this issue. At trial, he requested the fourth-degree assault instruction solely on the basis that it was a lesser included offense of the rape charge. Having given a specific reason for his objection to the trial court’s failure to instruct on the fourth-degree assault charge, he may not now raise a different ground. Regardless, this claim is without merit. A trial comí is not required to instruct on a defendant’s alternate defense theory unless substantial evidence to support that theory has been presented. No such evidence was presented in this case. Moreover, unlike Sanborn’s defense, Meadows’s defense to the crime of rape is simply the negative of the instruction. Therefore, no additional instruction was required. For all of these reasons, we find no error in the trial court’s refusal to instruct the jury on fourth-degree assault.

DR. SMOCKS’S TESTIMONY

Meadows asserts that the trial court erred by admitting expert testimony by Dr. William Smock that Meadows had a bite mark on his penis that was the result of a bite of considerable pressure. The ultimate decision on whether to admit expert testimony is subject to review for abuse of discretion. Meadows asserts that the trial court abused its discretion because Dr. Smock did not meet the requirements set forth in Stringer v. Commonwealth governing the admissibility of expert witness evidence. In Stringer, the Kentucky Supreme Court held that such evidence is admissible so long as the following conditions are met:

(1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), (3) the subject matter satisfies the test of relevancy set forth in [Kentucky Rules of Evidence (KRE) ] 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702.

Meadow has asserted that Dr. Smock’s testimony did not meet any of these four conditions.

Dr. Smock examined Meadows in the emergency room of the University of Louisville Hospital (University Hospital) in the afternoon following Meadows’s contact with T.H. The police had requested that a clinical forensic examination of Meadows be performed. But Meadows also asked to be treated for a bite wound to his penis. Dr. Smock examined Meadows for both purposes.

Dr. Smock testified that Meadows had an abrasion on the top glans, or head, of the penis and a semicircular contusion, or bruise, on the lower glans of the penis. Also, blood was coming from Meadows’s urethra. These wounds and the blood were documented by photographs. When he asked Meadows how he was injured, Meadows told him that he was bitten dim-ing consensual oral sex by a woman he met at a bar. Dr. Smock gave his expert opinion that the physical findings were consistent with Meadows’s account of suffering a bite to the penis. He cleaned the wound and prescribed an antibiotic. Dr. Smock wanted to examine Meadows’s urethra because of the presence of blood, which he indicated was likely caused by a tearing of the vascular walls inside the urethra due to the pressure of the bite. Meadows refused to permit Dr. Smock or the urologist to examine the urethra.

Dr. Smock did not attempt to identify who made the bite based on the bite mark. He conceded that he could not determine whether the bite was intentional or accidental based upon the appearance of the bite mark. Regarding the force used, he could only say that a considerable amount of force would be required to break the skin and damage the blood vessels in the urethra. He could not specify whether the bite mark was the result of a single bite or multiple bites in exactly the same location, although he deemed the latter less likely.

It might appear at first blush that any error in admitting Dr. Smock’s expert opinion testimony identifying the wound on Meadows’s penis as a bite mark is harmless per se. Detective Eddie Robinson testified that Meadows had said that T.H. accidentally injured his penis with her teeth during consensual oral sex but that he had downplayed the seriousness of the injury. Meadows similarly testified that the wound occurred accidentally during consensual oral sex. Meadows also did not object to Dr. Smock’s testifying about Meadows’s earlier admission to this effect. However, because Dr. Smock’s description of the bite mark and the pressure needed to puncture the skin and tear the blood vessels inside the urethra might tend to weigh against Meadows’s claim that the wound occurred accidentally during consensual oral sex, we will review the merits of this issue.

Meadows first asserts that Dr. Smock was not qualified to present expert testimony on the nature of the wound and how it was likely made. Whether a witness is qualified as an expert is a factual determination and is reviewed for clear error. The trial court conducted a hearing outside the presence of the jury on this issue, ultimately ruling that Dr. Smock is qualified as an expert on bite marks.

Dr. Smock is the head of the emergency medicine department at University Hospital. He is board-certified in emergency medicine and has also completed an additional year of training in clinical forensic medicine. He is an associate professor of emergency medicine at University of Louisville and teaches emergency medicine and clinical forensic medicine.

Dr. Smock has lectured and written extensively on clinical forensic medicine including pattern injuries. He described the study of pattern injuries as a recognized field of clinical forensic medicine concerning matching an injury with the object causing the injury. Bite marks are considered a type of pattern injury. Dr. Smock has actually written on identifying bite marks and instructs his students in clinical forensic medicine on diagnosing and treating bite marks.

Dr. Smock testified that he has evaluated hundreds of bite marks in both living and deceased persons. Specifically, he has evaluated numerous penile bites. He has also received some additional training on bite marks from a Louisville-area dentist who is a practicing forensic dentist. Forensic dentists are experts on identifying persons based on unique characteristics of their teeth, which may include determining the identity of an unknown deceased person based on dental records, determining the age of a person based on his or her teeth, and determining who made a bite based on an analysis of the bite mark and the suspect’s teeth.

In spite of Dr. Smock’s credentials, Meadows still asserts that he is not qualified to make a bite mark identification because he is not a dentist and, therefore, not qualified in the field of forensic dentistry to determine whether T.H. made the bite on Meadows’s penis. This is a contrived argument since Dr. Smock never attempted to identify who bit Meadows based on the bite mark. The real issue is whether Dr. Smock is qualified as an expert to distinguish a bite mark from any other type of wound and to testify to the extent of the injury.

The Kentucky Supreme Court ruled in Wheeler v. Commonwealth that a physician pathologist was qualified as an expert witness to testify whether a wound on a victim’s arm was a bite mark. Thus, the fact that Dr. Smock is a medical doctor and not a forensic dentist is not disposi-tive. Dr. Smock’s specialized training in clinical forensic medicine and pattern identification, including recognizing and treating bite marks, and his vast personal experience evaluating and treating bite marks make him eminently qualified to recognize a bite mark. The trial court did not abuse its discretion in determining that Dr. Smock was qualified to offer expert opinion testimony on the nature of the injury to Meadow’s penis.

Meadows also asserts that bite mark analysis did not satisfy the Daubert test because forensic dental identification — identifying a biter based on the bite mark he or she left behind — has not been empirically tested, is somewhat subjective, and has a high error rate even by highly trained forensic dentists. At trial, Meadows cursorily asserted that there was no scientific foundation for forensic dentistry and identification by bite mark; but he did not press for a Daubert hearing when none was conducted. It was clear that the focus of the hearing conducted by the trial court was Dr. Smock’s qualification to testify about bite mark evidence, not whether the science behind his testimony was sound. By failing to object timely, Meadows has failed to preserve this issue for judicial review.

Even if this issue were preserved, it is without merit because it is based on the mistaken premise that Dr. Smock identified the person who bit Meadows based on the bite mark. Attacking this type of dental forensic identification does nothing to call into question the study of pattern injuries that formed the basis of Dr. Smock’s expert testimony that Meadows’s wound was a bite mark. Meadows also cited two isolated cases from other jurisdictions in which different forensic dentists reached different conclusions on whether particular marks were bite marks. If the mere existence of a dispute between experts on the existence of a particular fact were fatal, no expert testimony would be admitted under Daubert.

Meadows also asserts that Dr. Smock’s testimony is inadmissible because it is not relevant as defined by KRE 401 and does not pass the balancing test under KRE 403, which permits relevant evidence to be excluded, among other reasons, “if its probative value is substantially outweighed by the danger of undue prejudice .... ” Meadows asserts that Dr. Smock’s testimony is not relevant because it is based on junk science; but this conclusion is based on the flawed premise that Dr. Smock identified who bit Meadows based on the characteristics of the bite mark, a practice of forensic dentistry which Meadows asserts is lacking in scientific validity. Moreover, Meadows admits that this evidence supported T.H.’s story of sexual assault, in effect, conceding its relevance.

Meadows further asserts that the expert witness testimony by Dr. Smock “should have been excluded as more prejudicial than probative” because Dr. Smock “provided the evidence to support T.H.’s story of forced sexual relations,” specifically one count of sodomy. But Meadows misapplies the test of KRE 403. The test is not whether the probative value is outweighed by the danger of prejudice but, rather, whether the probative value is substantially outweighed by the danger of undue prejudice. As Meadows himself concedes, this testimony is relevant to the count of sodomy based on Meadows’s attempt to force T.H. to perform fellatio. The fact that Meadows has an alternative explanation that also might account for the bite mark — that it happened accidentally during consensual oral sex — lessens any possible prejudice. Because the danger of undue prejudice is not substantially outweighed by the probative value of the evidence, the trial court did not err in admitting Dr. Smock’s expert opinion evidence identifying the wound on Meadows’s penis as a bite mark inflicted by a bite of considerable pressure.

Meadows also asserts that Dr. Smock’s opinion did not serve to assist the jury, as required by KRE 702, but, rather, to confuse it. But his real complaint here is not that it confused the jury but, rather, that it provided additional support for T.H.’s version of sexual assault. The fact that Dr. Smock’s expert testimony is relevant or persuasive does not make it confusing. Meadows’s only other basis for saying that it confused the jury lies in his continuing assertion that Dr. Smock is unqualified to identify the biter, • a contention we have already discussed.

DR. COMPTON’S TESTIMONY

Meadows also objected to the trial court’s allowing Dr. Russell Compton to relate T.H.’s account of the sexual assault and the events leading up to it and to give his expert opinion that T.H.’s injuries were consistent with this account.

Dr. Compton examined T.H. when she came in to the emergency room of University Hospital at approximately 2 p.m. on March 4, 2002, alleging that she has been sexually assaulted earlier. Dr. Compton testified that he first talked with T.H. to establish a rapport; then performed an external examination; and, finally, performed a sexual assault examination. He testified that T.H. had bruises in the following locations: over her left eyebrow and eyelid; left shoulder/chest area; right middle arm; left upper arm; right inner thigh; left outer thigh; and neck. Her neck had both linear bruises on one side and smaller bruises caused by significant pressure. She also had multiple abrasions on her right forearm and linear abrasions radiating out from her vagina.

Dr. Compton also delivered an uninterrupted monologue lasting almost three-and-a-half minutes recounting everything that T.H. told him about the sexual assault and the events leading up to it. KRE 803(4) sets forth a hearsay exception for “[statements made for purposes, of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.” Statements by T.H. concerning how she was struck, pinned down, choked, and forcibly penetrated are obviously relevant to describing the inception or cause of her injuries and relevant to treatment or diagnosis. And it was not error to admit Dr. Compton’s retelling of these statements.

But Dr. Compton’s testimony also included many hearsay statements which would not be admissible under KRE 803(4) because they were not made for the purpose of medical treatment. Such statements included, for example, Meadows’s name, the bar where he and T.H. met, what they did at the bar, where they went after they left the bar, and what he said to her during the sexual assault. Notably, Meadows never objected to this testimony. In fact, on cross-examination, Meadows pursued this line of testimony by asking follow-up questions which would require additional answers based on inadmissible hearsay. Thus, this error is not preserved for judicial review. Even if we were to consider this error, we would deem the admission of this evidence to be harmless error. Meadows conceded that the impermissible hearsay testimony was cumulative of other evidence. And the admission of inadmissible hearsay testimony that is cumulative is harmless error.

Meadows did object to part of Dr. Compton’s testimony: his expert opinion testimony that T.H.’s physical injuries were “consistent with” her account of the sexual assault. Dr. Compton specifically stated that the bruises on her neck were consistent with being choked, the bruises on her body were consistent with being forcibly restrained and pinned down, and the linear abrasions radiating from her vagina were consistent with blunt force trauma that could result from forcible sexual intercourse.

Meadows asserts that Dr. Compton’s testimony that T.H.’s injuries were consistent with the events of the sexual assault as she described them “leads inextricably ... to a conclusion that [she] was telling the truth, thus she was raped and Joey Meadows was the culprit.” He asserts that this was improper expert opinion testimony on the ultimate issue of guilt. Meadows cites Newkirk v. Commonwealth for the proposition that such testimony is barred: “[Wjhere the determination of credibility is synonymous with the ultimate fact of guilt or innocence, expert opinion is inadmissible.” But Meadows fails to consider that the Kentucky Supreme Court more recently held in Stringer v. Commonwealth that it was “departing] from the ‘ultimate issue’ rule.” The Court explained as follows:

The real question should not be whether the expert has rendered an opinion as to the ultimate issue, but whether the opinion “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Generally, expert opinion testimony is admitted when the issue upon which the evidence is offered is one of science and skill and when the subject matter is outside the common knowledge of jurors. Presumably, jurors do not need assistance in the form of an expert’s opinion that the defendant is guilty or not guilty. However, they usually do need the assistance of a medical expert in determining the cause of a physical condition in order to understand the evidence and determine the ultimate fact in issue.

At issue in Stringer was whether the trial court properly admitted a gynecologist’s testimony in a child sexual abuse case that his physical findings from a vaginal exam of the alleged victim were consistent with something being inserted into the victim’s vagina and consistent with the history of sexual abuse which she gave the doctor. The Supreme Court held that this was not the equivalent of testimony that the defendant was guilty but, rather, testimony relevant to determining that the ultimate fact at issue was more probable. Because the Court determined that the opinion “concerned a subject peculiarly within the knowledge of a trained physician and was likely to assist the jury in determining whether [the alleged victim] had been sexually abused” by the defendant, it held that the testimony was admissible. We can find no meaningful distinction between the testimony at issue in Stringer and Dr. Compton’s testimony that his physical findings regarding T.H. were consistent with the history of sexual assault which she recounted to him. Therefore, we hold that the trial court did not err in admitting this evidence.

DISPOSITION

Having determined that Meadows has not identified any reversible error or abuse of discretion by the trial court, we affirm his judgment of conviction.

ALL CONCUR.

      . Kentucky Revised Statutes (KRS) 510.040.

      . KRS 509.020.

      . KRS 510.070.

      . KRS510.110.

      . The October 20, 2003, Judgment of Conviction and Sentence sentenced Meadows as follows: "five (5) years for Sexual Abuse in the First Degree; ten(10) years for Sodomy in the First Degree; and five (5) years [for] Unlawful Imprisonment in the First Degree, for a total of FIFTEEN (15) YEARS.” Capitalization as in original, emphasis omitted. It is unclear from the order which sentences are to run concurrently and which are to run consecutively in order to reach the total of fifteen years’ imprisonment. However, no one has raised this issue on appeal.

      .KRS 508.030.

      . KRS 510.140.

      . Kentucky Rules of Criminal Procedure.

      . RCr 9.54(2) dictates that a party may not designate as error the failure to give an instruction unless one of the following occurs: “the party’s position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the juiy, stating specifically the matter to which the party objects and the ground or grounds of the objection.”

      . § 4.23 cmt. (1999). This treatise refers to first-degree rape by forcible compulsion to distinguish KRS 510.040(l)(a) which punishes sexual intercourse by forcible compulsion from KRS 510.040(l)(b) which punishes sexual intercourse with a person who is incapable of consent because he or she is physically helpless or less than twelve (12) years old. Meadows’s rape charge was based on the use of forcible compulsion.

      . Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998).

      . KRS 505.020(2)(a).

      . See KRS 508.030.

      . Wager v. Commonwealth, 751 S.W.2d 28, 30 (Ky.1988), Van Dyke v. Commonwealth, 581 S.W.2d 563, 565 n. 1 (Ky.1979). See also, KRS 510.040.

      . See Wager, 751 S.W.2d at 30.

      . See KRS 508.030(l)(b). Meadows was not accused of using any deadly weapon or dan- . gerous instrument.

      . KRS 508.030(l)(a).

      . Malone v. Commonwealth, 636 S.W.2d 647, 647-648 (Ky.1982) (holding that the voluntary intoxication is no defense to first-degree rape because the defendant’s mens rea is not an element of the crime). See also, KRS 510.040.

      . Ragland, v. Commonwealth, 421 S.W.2d 79, 81 (Ky.1967).

      . Houston, 975 S.W.2d at 929. See Smith v. Commonwealth, 599 S.W.2d 900, 905 (Ky.1980) (holding that “[ijnstractions in a criminal prosecution must have a source within the framework of the evidence introduced at the trial.”).

      . Houston, 975 S.W.2d at 929.

      . Blevins v. Commonwealth, 258 S.W.2d 501, 502-503 (Ky.1953).

      . See Id.

      . Cooper, § 1.04(C).

      . Sanborn v. Commonwealth, 754 S.W.2d 534, 549-550 (Ky.1988).

      . Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570, 571 (Ky.App.1999).

      . See Blevins, 258 S.W.2d at 502-503.

      . Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky.1999).

      .956 S.W.2d 883 (Ky.1997).

      . Mat 891.

      . Meadows was escorted by police to the emergency room but apparently had not yet been arrested.

      . Bratcher v. Commonwealth, 151 S.W.3d 332, 353 (Ky.2004), Robert G. Lawson, The Kentucky Evidence Law Handbook, § 6.20[6], at 456 (4th ed.2003).

      . Dr. Smock described clinical forensic medicine as that branch of forensic medicine which focuses on living patients.

      .He completed his year of clinical forensic training at the Kentucky Medical Examiner’s Office.

      . 121 S.W.3d 173 (Ky.2003).

      . Id. at 183 (Ky.2003).

      . See Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky.2001) (holding that appellant failed to preserve the issue of whether a Daubert hearing was required by never requesting one nor timely objecting to the trial court’s failure to conduct one).

      . On cross-examination, Meadows asked Dr. Compton whether T.H. stated whose bed she went to sleep in that night and what she and Meadows bought at Wal-Mart after they left the bar but before they went to his sister’s house.

      . See White v. Commonwealth, 5 S.W.3d 140, 142 (Ky.1999), Patterson v. Commonwealth, 555 S.W.2d 607, 609 (Ky.App.1977).

      . 937 S.W.2d 690 (Ky.1996).

      . Id. at 694.

      . 956 S.W.2d 883.

      . Id. at 891.

      . Id. at 889-890 (quoting KRE 702, citations omitted).

      . 956 S.W.2d at 889.

      . Id. at 891.

      . Id. at 892.


source: Caselaw Access Project

author: McANULTY, Judge.

license: Public Domain

text:
    CITY OF SALYERSVILLE, Appellant, v. MAGOFFIN COUNTY, Kentucky, By and Through Bill W. MAY, Magoffin County Judge Executive; and Magoffin County Fiscal Court Magistrates, Troy Wendell Minix, Manuel Minix, and Pernell “Buck” Lemaster, Appellees.
    No. 2004-CA-001763-MR.
    Court of Appeals of Kentucky.
    Nov. 10, 2005.

      John C. Collins, Collins & Allen, Sal-yersville, KY, for appellant.
    Donald W. McFarland, Salyersville, KY, for appellee.
    Before COMBS, Chief Judge; JOHNSON and McANULTY, Judges.
   OPINION

McANULTY, Judge.

The City of Salyersville (“the City”) appeals the grant of summary judgment to Magoffin County in their dispute over which entity shall regulate solid waste collection in the City of Salyersville. Magof-fin County, by and through its Fiscal Court and magistrates, (“Magoffin County”) filed a complaint seeking injunctive relief against the City of Salyersville after the City accepted bids for garbage collection within its limits. Magoffin County asserted that it held the exclusive authority to regulate the collection and disposal of solid waste for the entire geographic area of Magoffin County pursuant to KRS Chapter 224. The circuit court, in granting the motion for summary judgment, agreed with Magoffin County that it was the exclusive agent for processing, collecting, and disposing of solid waste. This appeal follows.

The City asserts that the statutes at issue leave an exception whereby a city may be the provider of solid waste management, and that under the circumstances of this case the City of Salyersville fits within that exception. In addition, the City maintains that the summary judgment was granted prematurely since issues of fact remain to be determined. The County responds that the actions of Sal-yersville to unilaterally begin its own collection and disposal of solid waste were completely beyond any scope of authority belonging to the City.

Our Supreme Court has held that under the applicable statutes the management and disposal of solid waste is vested exclusively in county fiscal courts. Eastern Kentucky Resources v. Arnett, 934 S.W.2d 270, 273 (Ky.1996). The General Assembly, in KRS Chapters 67, 109 and 224, conferred on counties primary responsibility and authority for the exclusive management of solid waste. Id. Yet the City cites City of Radcliff v. Hardin County, 607 S.W.2d 132 (Ky.App.1980), which held that even after the passage of KRS Chapter 109 and KRS 67.083 cities retain power over the collection of solid waste within the city limits.

However, our reading of that case and the existing statutory scheme convinces us that its holding is no longer applicable. A number of the statutes construed in that case have since been repealed. Under the present statutes, cities do not act unilaterally in the regulation of solid waste, but are permitted to act with the permission of counties which have developed a solid waste management plan. KRS 67.083(3)(o), provides that exclusive management of solid waste resides with fiscal courts. In addition, KRS 109.011 states that primary responsibility for solid waste management rests with counties and solid waste management districts, and in cities already operating solid waste management systems the responsibility rests jointly with the county and the city. Only when it is in the public interest, and by mutual agreement and approval of the Environmental and Public Protection Cabinet, may a county delegate its authority to cities. KRS 109.011(6). Thus, we do not agree that cities retain the same authority to regulate solid waste management described in the City of Raddiff case.

The City claims, nonetheless, that it maintains authority under Chapter 224 to provide for solid waste collection within its city limits. The statutory exception the City relies on is contained in the following section of KRS 224.43-315:

The county may enter into agreements with any person for the performance of the responsibilities described in this section, including cities within its geographic boundaries, but the county shall be responsible for providing the universal collection program described in this section, except any city of the first or second class having sole responsibility for developing its portion of the solid waste plan shall be responsible for providing the universal collection within its jurisdiction, and except any city contracting for the collection of its solid waste on February 26, 1991, may continue to contract for the collection of its solid waste if the contract provides for disposal in accordance with the area solid waste management plan.

KRS 224.43-315(5)(Emphasis supplied).

Salyersville, a city of the fourth class, argues that the highlighted exception above applies because the City was contracting with someone to provide garbage services on the cutoff date of February 26, 1991.

The trial court found that under the circumstances of this case, the fact that on February 26, 1991, the city had contracted with someone to provide services did not trigger an exception to KRS 224.43-315. We agree. The statute provides that a city contracting for collection of solid waste on the effective date of the act may continue to do so. But we do not believe Salyersville can benefit from this exception now since it did not continue that contract. In this case, the county assumed control of the solid waste plan shortly after the statute’s effective date. We believe the purpose of the date in the statute is not to provide an arbitrary cutoff date but to allow those cities which were providing solid waste services to continue to do so. Salyersville, however, interrupted its solid waste collection service. We do not accept the City’s argument that the statute means any city with a contract on the effective date may at any time contract for waste collection services. We affirm the circuit court’s holding that Magoffin County has the exclusive authority over this governmental function under KRS 224.43-315.

The city also argues that because the city adopted an ordinance in addition to the Magoffin County Solid Waste Ordinance it may act under its own ordinance pursuant to KRS 67.083(7)(b). We disagree. KRS 67.083(7)(b) only applies where the county has adopted an ordinance which prescribes penalties for its violation, and the city has adopted an ordinance concerning the same subject matter and the city’s ordinance is the same as or more stringent than the county ordinance. In this instance, the county ordinance provides a comprehensive solid waste management plan. The city ordinance merely provides that garbage collection within the city limits of Salyersville shall be mandatory. We do not agree that KRS 67.083(7)(b) has any applicability here. The ordinances are not the same. The simple fact that both ordinances concern similar subject matter does not suffice to let the city usurp the county’s authority to regulate solid waste collection.

Finally, the City of Salyersville argues that the grant of summary judgment was not proper because there are issues of material fact which have not been resolved. This argument does not have merit. To begin with, the City argued below that summary judgment was warranted in its favor because there were no issues of fact left to be resolved. Further, we conclude that the facts the City raises on appeal are not facts in dispute, but simply facts the City argues in its favor. There is no dispute between the parties that the City formerly contracted for solid waste management services, and that the County subsequently assumed that role. The “disputes” raised by the city now are arguments as to the applicable law. Thus, the circuit court correctly proceeded to grant summary judgment.

For the foregoing reasons, we affirm the summary judgment in favor of Magoffin County.

ALL CONCUR.

      . In fact, Magoffin County asserts that there are procedures in the solid waste management plan whereby the city can assume its own garbage collection, such as applying for a license or franchise from the county, but the City of Salyersville has not done so.


author: SHERRI B. SULLIVAN, J.

text:
    Gene SCHENBERG, Plaintiff/Respondent, v. BITZMART, INC. and Stealth MediaLabs, Inc., Defendants/Appellants.
    No. ED 84637.
    Missouri Court of Appeals, Eastern District, Division One.
    June 14, 2005.
    Application for Transfer to Supreme Court Denied Nov. 29, 2005.
    Application for Transfer Denied Dec. 20, 2005.
    Richard Felix Huck, III, St. Louis, MO, for appellant.
    Jay Lee Kanzler, Jr., St. Louis, MO, for Bitzmart & Stealth Medialabs, Inc.
   SHERRI B. SULLIVAN, J.

Introduction

Bitzmart, Inc. (Bitzmart) and Stealth MediaLabs, Inc. (Stealth MediaLabs) (collectively Appellants) appeal from the trial court’s judgment in favor of Gene Schen-berg (Respondent) on Respondent’s claims for compensation due at the time of his termination from employment with, and the value of his shares of company stock in, Bitzmart. We dismiss for lack of jurisdiction.

Procedural Background

The trial court’s judgment in this matter was entered on March 23, 2004. On April 5, 2004, Howard Leventhal (Leventhal), a principal shareholder in Appellants, filed a document with the court entitled “Defendants’ Memorandum of Preliminary Grounds for Grant of New Trial.” On April 19, 2004, Leventhal filed a motion for new trial on behalf of Appellants. On May 5, 2004, Respondent filed a motion to dismiss Appellants’ post-trial motions for lack of jurisdiction, because they were filed by a non-attorney on behalf of a corporation. On May 13, 2004, after a hearing, the trial court granted Respondent’s motion to dismiss all of Appellants’ post-trial motions for lack of jurisdiction, noting that Leven-thal is a non-attorney. The judgment also indicates that the parties stipulated that judgment in this case was entered on March 23, 2004.

Appellants, by an attorney, filed a notice of appeal on May 21, 2004; twenty-nine days after the judgment became final on April 22, 2004.

Jurisdiction

Appellants present this Court with four points on appeal, the first of which asserts that we have jurisdiction of this case. Respondent has filed a motion to dismiss for lack of jurisdiction. Appellants assert that we have jurisdiction to consider their appeal because it was timely filed by an attorney within ten days after the trial court disposed of Appellants’ motion for new trial, and the trial court erred in ordering the motion for new trial dismissed on the grounds that it was filed by a non-attorney, because Missouri does not apply a bright-line test holding any pleading filed on behalf of a corporation by a non-attorney void ab initio and, instead, a motion for new trial in a judge-tried case is a perfunctory pleading and is an exception to the general rule that a corporation must be represented by an attorney. Appellants maintain they would be prejudiced if their motion is held invalid as the trial court’s actions led them to believe the motion for new trial could be filed by a non-attorney.

Appellants’ notice of appeal, filed on May 21, 2004, was not filed within 10 days of the date the trial court’s March 23, 2004 judgment became final, as required by Rule 81.04(a). Appellants maintain that their notice was filed within 10 days of the date the trial court disposed of their motion for new trial. However, the motion for new trial was not filed by an attorney. The general rule, is that a corporation may not represent itself in legal matters, and must act through licensed attorneys. Reed v. Labor and Indus. Relations Comm’n, 789 S.W.2d 19, 21 (Mo.banc 1990). The normal effect of a representative’s unauthorized practice of law is to dismiss the cause or treat the particular actions taken by the representative as a nullity. Strong v. Gilster Mary Lee Corp., 23 S.W.3d 234, 241 (Mo.App. E.D.2000); Joseph Sansone Co. v. Bay View Golf Course, 97 S.W.3d 531, 532 (Mo.App. E.D. 2003). The trial court did precisely that. We find no error in the trial court’s finding that Appellants’ motion for new trial was void. As such, it did not extend the time limit for filing an appeal.

Appellants maintain that they should come within the exception to the rule, because they would be prejudiced if their motion is held invalid as the trial court’s actions led them to believe the motion for new trial could be filed by a non-attorney. We disagree. The record contains no evidence to support the assertion that the trial court led Leventhal to believe that he could file pleadings on behalf of Appellants or otherwise represent them in court. Furthermore, the record demonstrates that Leventhal was clearly aware that he could not. Prior to his withdrawal for non-payment, Appellants’ attorney informed Leventhal that “a non-lawyer may not represent a corporation in court,” and that the court would probably not allow him to represent Appellants because he was not a licensed attorney. After being so informed, Leventhal himself filed a pleading on behalf of Appellants that states, “Defendants are corporations which require representation by a duly licensed attorney under Missouri law....”

Appellants also argue that a motion for new trial in a judge-tried case is a perfunctory pleading and is an exception to the general rule that a corporation must be represented by an attorney. Appellants present no authority for such a supposition. Furthermore, we wholly disagree that a motion for new trial is “perfunctory.” On the contrary, the timing and validity of a motion for new trial can be a decisive factor in whether a party has timely appealed under Rule 81.05, as is demonstrated in the instant case.

For the foregoing reasons, we find that this appeal is untimely, and thus we lack jurisdiction to hear it. Appellants’ appeal is dismissed.

GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.

      . Respondent’s Motion to Dismiss is granted in accordance with this opinion. Appellants’ Motion to Strike is denied.

      . All rule references are to Mo. R. Civ. P.2004.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    STATE of Missouri, Respondent, v. William WEAVER, Appellant.
    No. WD 63529.
    Missouri Court of Appeals, Western District.
    July 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      Craig A. Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Following a jury trial, William Weaver was found guilty of first-degree assault, Section 565.050, and armed criminal action, Section 571.015. He was then sentenced by the trial judge to thirty years imprisonment on each count to be served consecutively. Weaver now appeals, claiming that he was denied his right to be sentenced by a jury under Section 557.036. The judgment is affirmed.

I. Underlying Facts

Weaver had an altercation with his brother, Rusty Weaver. Later, when a neighbor agreed to drive Rusty to different location, Weaver shot the neighbor with a shotgun. Weaver was arrested and charged with first-degree assault and armed criminal action.

At trial, after the State’s opening statement, a bench conference was held where Weaver’s counsel explained to the judge, “I’ve spoken to Mr. Weaver concerning [sentencing], and he desires to have a judge sentencing at the punishment phase should it go that far, sir.” The trial judge decided to resolve the issue later after reviewing the relevant authority.

Later at trial, another bench conference was held on the issue of punishment. The trial judge and attorneys on both sides agreed that the judge would decide the punishment if a guilty verdict was returned. The jury ultimately found Weaver guilty, and a sentencing hearing was held where the trial judge stated, “the defendant asked ... that any sentencing that became necessary be carried out by the judge as opposed to a jury determination of what the punishment should be.... Do you see it any other way?” Weaver’s defense counsel replied “no.” The trial judge then sentenced Weaver to two consecutive sentences of thirty years imprisonment.

II. STANDARD OF REVIEW

Weaver did not raise the issue of punishment at trial, so this court may only conduct review for plain error. State v. Hamilton, 8 S.W.3d 132, 134 (Mo.App.1999). Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted. Rule 30.20. Under the plain error rule, the defendant bears the burden of proving the existence of manifest injustice. State v. Polson, 145 S.W.3d 881, 890 (Mo.App.2004); State v. Norman, 145 S.W.3d 912, 921 (Mo.App.2004).

I. Analysis

Weaver’s sole point on appeal claims that the trial court “erred when it failed to hold a jury-tried punishment stage under Section 557.036.” This statute requires that a jury assess the punishment unless the defendant requests in writing, prior to voir dire, that the court assess the punishment. Weaver contends that, although his attorney spoke with the trial judge stating, “I’ve spoken to Mr. Weaver concerning [sentencing], and he desires to have a judge sentencing at the punishment phase should it go that far,” the trial judge should have “determine[d] if Mr. Weaver personally waived this right.” He does not contend that he did not desire the trial judge determine his sentence. Weaver argues that unless the record indicates that his waiver was made voluntarily, knowingly, and intelligently, his waiver was not valid.

First, as Weaver concedes, there is no constitutional right to jury sentencing. State v. Emery, 95 S.W.3d 98, 102 (Mo. banc 2003); Ring v. Arizona, 536 U.S. 584, 597 n. 4, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The defendant does however have a statutory right to jury sentencing unless he waives that right. Emery, 95 S.W.3d at 102; State ex rel. Eggers v. Enright, 609 S.W.2d 381, 387 (Mo. banc 1980) (“a defendant has the right under § 557.036[ ] to waive a jury for the sentencing phase”). A defendant waives his right to a jury at the punishment stage of trial when he allows the judge to determine his sentence -without invoking his statutory right. Emery, 95 S.W.3d at 102.

Emery decided what was required for a valid waiver when it addressed a prior version of the statute at issue in this case. There, the defendant was convicted by a jury of second-degree assault. Id. at 99. The statute required that the trial judge determine the defendant’s sentence if the state proved that he was a prior or persistent offender. Id. at 100. Erroneously, the trial court determined the defendant’s sentence without such proof. Id. at 101. Emery held, that although the trial court erred in sentencing the defendant without a jury, the defendant nevertheless “waived his statutory right to a jury-recommended sentence where he allowed the judge to determine his sentence without raising his right to have the jury recommend a sentence.” Id. at 102. Because the defendant “chose to sit on his statutory right,” he was not entitled to a jury recommended sentence. Id. at 103.

Like in Emery, the trial court in this case did not follow the explicit guidelines of the statute. The defendant’s request for the judge to determine his punishment was neither in writing nor prior to voir dire. His oral request took place after the prosecutor’s opening statement. As a result, the trial judge should have denied Weaver’s request since it was untimely and not in writing. Section 557.036.4(1).

This, however, does not end the matter. In spite of the trial court’s error, Weaver validly waived his right to jury sentencing when he requested the judge through his attorney to determine his punishment. In Emery, all that was required for the defendant to waive his right to jury sentencing was for him “to sit on his statutory right” and allow the judge to determine his sentence. 95 S.W.3d at 103. Here, not only did Weaver choose not to invoke his right to jury sentencing, but he also affirmatively expressed to the court, on three separate occasions, his request for the judge to sentence him. There is absolutely no evidence that Weaver did not intelligently waive his right. Although the better practice, under these circumstances, would have been to conduct a hearing on the record with the defendant affirmatively waiving his statutory right, and such hearing being held prior to submission of the case, the failure to do so does not entitle Weaver to a reversal and remand.

Weaver fails to show under the plain error standard of review that manifest injustice has occurred. Weaver urges this court to reverse the trial court’s determination of his sentence because the trial judge erroneously granted his request to be sentenced by the court. Under the plain error standard, this court cannot find that manifest injustice has taken place when Weaver requested court sentencing and is merely unhappy with the result.

The judgment is affirmed.

All concur.

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

      . Section 557.036 provides,
      "Where an offense is submitted to the jury, the trial shall proceed in two stages. At the first stage, the jury shall decide only whether the defendant is guilty or not guilty of any submitted offense.... The issue at the second stage of the trial shall be the punishment to be assessed and declared.... [T]he court, and not the jury, shall assess punishment if: (1) The defendant request in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt; or (2) The state pleads and proves the defendant is a prior offender....”


author: PER CURIAM.

text:
    Carl E. FREEMAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64144.
    Missouri Court of Appeals, Western District.
    July 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Dec. 20, 2005.
    Susan L. Hogan, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Following a jury trial, Carl E. Freeman was found guilty of voluntary manslaughter, Section 565.023, and armed criminal action, Section 571.015. Freeman now appeals the denial of his Rule 29.15 motion for post-conviction relief, claiming ineffective assistance of counsel. The judgment is affirmed. Rule 84.16(b).

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


author: PATRICIA BRECKENRIDGE, Judge.

text:
    STATE of Missouri, Respondent, v. Oscar Barreras SANCHEZ a/k/a Antonio Lopez, Appellant.
    No. WD 63807.
    Missouri Court of Appeals, Western District.
    July 26, 2005.
    Cause Ordered Transferred Aug. 30, 2005.
    Case Retransferred Dec. 20, 2005.
    Court of Appeals Opinion Readopted Dec. 27, 2005.

      Margaret Mueller Johnston, Columbia, MO, for appellant.
    Richard Shames, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Oscar Sanchez appeals his conviction and sentence for the class A felony of trafficking in the first degree, under section 195.222, RSMo Cum.Supp.2004, and the class C felony of possession of a controlled substance, under section 195.202, RSMo 2000. On appeal, Mr. Sanchez asserts that the trial court clearly erred in denying his motion to suppress and in considering evidence seized during a search of a vehicle in which he was riding because the search was conducted without reasonable suspicion that he was engaged in criminal activity. Because this court finds the detention extended beyond the time reasonably necessary to effect the purpose of the initial traffic stop and there was no new reasonable suspicion that would support further detention, the judgment is reversed and the case is remanded.

Factual and Procedural Background

On July 5, 2003, Missouri State Highway Patrol Trooper Russell Seaton and Highway Patrol Corporal Gary Swartz were parked on the shoulder of Interstate 70 in Saline County. Trooper Seaton was out of his patrol car when he noticed a white Pontiac Grand Am with Montana license plates drive by. Tara Hencz was driving the car and Mr. Sanchez was a passenger. After the car passed by, Trooper Seaton returned to his patrol car and proceeded down the interstate. Although he was not pursuing the Grand Am, he eventually caught up to the car, which was traveling about sixty-eight or sixty-nine miles per hour. At that time, he noticed that it was following a tractor-trailer too closely. After Trooper Seaton observed the car following the tractor-trailer for more than a quarter of a mile, he activated his emergency lights and stopped the car for following too closely.

Trooper Seaton approached the car on the passenger’s side and spoke with Ms. Hencz, the driver. He asked her to produce her driver’s license and proof of insurance. When handing Trooper Seaton her Montana driver’s license, insurance, and registration paperwork, Ms. Hencz appeared to be very nervous and her hands were visibly shaking. Trooper Seaton asked Ms. Hencz to step back to the rear of the car. He then asked her questions about the purpose of her trip and about her passenger, Mr. Sanchez. Ms. Hencz said she was traveling to St. Louis to visit her aunt and identified Mr. Sanchez as “[m]y friend Anthony.” She told Trooper Seaton she did not know Mr. Sanchez’s last name and did not know where her aunt lived in St. Louis. Ms. Hencz’s nervousness increased as Trooper Seaton continued to question her.

Trooper Seaton returned to the passenger side of the car and asked Mr. Sanchez some questions. Mr. Sanchez said that his name was Antonio Lopez, Ms. Hencz was his girlfriend, and they were going to St. Louis to see a friend. Mr. Sanchez also told Trooper Seaton that he did not know where in St. Louis they were going. When asked for identification, Mr. Sanchez handed Trooper Seaton an “Arizona identification card.” Trooper Seaton immediately became suspicious that the card was a fake because of its unevenly placed picture, typeset, unusual lamination, uneven rounded edges, and lack of a holograph.

After questioning Mr. Sanchez, Trooper Seaton took Ms. Hencz back to Trooper Seaton’s patrol car. Trooper Seaton ran a computer check on Ms. Hencz’s driver’s license and Mr. Sanchez’s identification card. While he was doing this, Trooper Seaton continued to ask Ms. Hencz questions about her trip. She was evasive in answering questions and indicated she had not spoken to her aunt in several days. She said her aunt’s phone number was somewhere in the car. She also said she and Mr. Sanchez were just friends. Trooper Seaton noticed that Ms. Hencz’s level of nervousness continued to increase and he could see her pulse beating in her abdomen. At this point, Trooper Seaton contacted Corporal Swartz for backup.

After Corporal Swartz arrived, Trooper Seaton advised him of the inconsistent stories given by Ms. Hencz and Mr. Sanchez and showed him Mr. Sanchez’s identification card. Corporal Swartz also believed the card was a fake. The two officers talked briefly to Ms. Hencz and, then, Corporal Swartz went to speak to Mr. Sanchez. Mr. Sanchez told Corporal Swartz he had been living in Montana for five months, Ms. Hencz was his girlfriend, and he had been staying with Ms. Hencz. He said that Ms. Hencz “tended bar.” He also told Corporal Swartz they had been in Kansas City, they had gone to Oceans of Fun, and they were on their way to St. Louis.

Corporal Swartz then spoke to Ms. Hencz. She told him that she was a housekeeper. She said that Mr. Sanchez had only been in Montana for one or two weeks and he lived in a hotel. As the officers continued to question Ms. Hencz, she grew more nervous, became very rigid and tense, and started to hug herself.

Eventually, Trooper Seaton received confirmation that the vehicle was properly registered, Ms. Hencz had a valid driver’s license, and the information contained on the identification card was on file. Trooper Seaton entered a warning for Ms. Hencz for following too closely, handed her paperwork back to her, and said, “Have a safe trip, you’re free to go.” At this point, it had been approximately thirty-five to forty minutes since Trooper Seaton initially stopped Ms. Hencz.

Although Trooper Seaton told Ms. Hencz that she was free to go, he had no intention of releasing the Grand Am automobile. He believed he was entitled to detain the vehicle because he had articula-ble facts to support a reasonable suspicion that criminal activity was occurring. Specifically, his suspicions were aroused by Ms. Hencz’s failure to know Mr. Sanchez’s name and the fact that neither Ms. Hencz nor Mr. Sanchez could provide a solid location where they were going. He also took into account the discrepancies between statements from Ms. Hencz and Mr. Sanchez, such as the nature of their relationship, where Mr. Sanchez lived in Montana, how long he had been in Montana, what Ms. Hencz did for a living, and what they had done in Kansas City. He also considered that Ms. Hencz and Mr. Sanchez were traveling eastbound on Interstate 70, which is “a known and documented established drug thoroughfare,” and were headed to St. Louis, “which is a known destination ... city for narcotics.” He also was concerned that Ms. Hencz was abnormally nervous during the traffic stop, and she became more nervous as the stop continued. Under the totality of these circumstances, he suspected drug smuggling.

After Trooper Seaton told Ms. Hencz that she was free to go, she got out of the patrol car and began to walk back to her car. As soon as Ms. Hencz got to the rear of her car, Trooper Seaton got out of his patrol ear and asked her if he could ask her a few more questions. She agreed and returned to the front of the patrol car. Trooper Seaton asked her if she knew of the drug problem in the country. She indicated that she did. At this point, Trooper Seaton noticed that Ms. Hencz became visibly shaken and she was breaking out in goose bumps, even though it was over one hundred degrees outside. He then asked her if she knew that people transported drugs across the country everyday in all types of vehicles. She said that she did not. Trooper Seaton told Ms. Hencz that he was not accusing her of any wrongdoing, but he was suspicious. He asked Ms. Hencz for consent to search her car. She refused. Trooper Seaton then asked her, “Could you just stand here for a minute?”

Trooper Seaton next asked Mr. Sanchez to get out of the car and asked permission to search him for weapons. Mr. Sanchez complied. Trooper Seaton asked Mr. Sanchez if he knew of anything-illegal in the car or whether he had any bags in the car. Mr. Sanchez said the car was Ms. Hencz’s. When Trooper Seaton asked Mr. Sanchez for permission to search his bags and possessions in the vehicle, he refused. Trooper Seaton then told Mr. Sanchez, “Stay right here for me.”

Trooper Seaton had Corporal Swartz use his canine to walk around the car and do a “canine-sniff.” On the second pass, the dog signaled on the right side of the trunk. Based on this indication, Trooper Seaton told Ms. Hencz he was going to search the car. He then got the keys from the car’s ignition and popped open the trunk. Inside the trunk, Trooper Seaton found three suitcases containing large bundles of marijuana. The officers arrested Ms. Hencz and Mr. Sanchez and had the vehicle towed. A further search of the vehicle uncovered another bundle of marijuana, methamphetamine, two electronic gram scales, baggies, four rounds of 9-mm ammunition, an empty magazine, and a loaded 9-mm high-point pistol.

Mr. Sanchez was subsequently charged with one count of the class A felony of trafficking in the first degree, under section 195.222, RSMo Cum.Supp.2004, and one count of the class C felony of possession of a controlled substance, under section 195.202, RSMo 2000. Before trial, Mr. Sanchez filed a motion to suppress the physical evidence seized during the traffic stop. Following a hearing, the trial court issued a written order denying the motion. In that order, the trial court found the facts consistent with Trooper Seaton’s and Corporal Swartz’s testimonies. The trial court further found that a reasonable suspicion of criminal activity was created by the “glaring inconsistencies between the stories given by [Ms.] Hencz and Mr. Sanchez, particularly as to important aspects,” “that the traffic violation occurred in [sic] Interstate 70,” “that the driver was a Montana resident and her passenger was from Arizona,” the driver was visibly nervous and “her level of nervousness seemed to increase.”

Thereafter, Mr. Sanchez waived his right to a jury trial and the case proceeded to trial before the court. At the beginning of trial, Mr. Sanchez renewed his motion to suppress, which the court took up with the trial. Ms. Hencz testified as a witness for the State at trial. At the close of the evidence, the trial court found Mr. Sanchez guilty on both counts. The trial court sentenced Mr. Sanchez, as a prior and persistent offender, to consecutive sentences of thirty years in prison on the trafficking count, and fifteen years in prison on the possession count. Mr. Sanchez filed this appeal.

Standard of Review

Appellate review of the denial of a motion to suppress is limited to a determination of whether there was substantial evidence to support the ruling. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). In making this determination, this court reviews both the suppression hearing record and the evidence presented at trial. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). This court views the evidence and any reasonable inferences from the evidence in the light most favorable to the trial court’s ruling and defers to the trial court’s determination as to the credibility of witnesses. State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). “The trial court’s ruling will be reversed only if clearly erroneous.” Id.

Trial Court Clearly Erred in Denying Motion to Suppress

In his sole point on appeal, Mr. Sanchez asserts the trial court erred in denying his motion to suppress and in considering the evidence seized during the search of Ms. Hencz’s car at trial. In particular, he contends that, because the traffic stop was complete at the time Trooper Seaton initiated the search, any search thereafter required new and articu-lable suspicion that a crime had been committed. He concludes that, because Trooper Seaton did not have any new reasonable suspicion that criminal activity had been committed, the search was illegal and, therefore, the evidence seized should have been suppressed.

“The Fourth Amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures.” Id. “A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment.” Id. Such a stop is constitutional “[s]o long as the police are doing no more than they are legally permitted and objectively authorized to do.” Id. And, while an officer may detain an individual for a routine traffic stop, indefinite detention is not justified. Id. “The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation.” Id.

The facts in this case are very similar to the facts in Granado, a recent Missouri Supreme Court case. In Granado, a state highway patrolman stopped the defendant after he observed the defendant’s truck weaving on an interstate highway. Id. at 310. The defendant, who was extremely nervous, went with the officer back to the officer’s patrol car and told the patrolman that he and his cousin, who was a passenger in the truck, were en route from Dallas, Texas, to Memphis, Michigan. Id. The defendant also said the truck was rented and he was going to be driving it back to Texas by himself because his cousin was going to take the bus back to Texas. Id. The defendant also told the patrolman his registration information was in the truck’s glove compartment. Id. The patrolman then returned to the truck and requested the paperwork from the defendant’s cousin. Id. The cousin told the patrolman they were traveling to Capac, Michigan, and they would be returning to Texas later in the week. Id.

The patrolman gave the defendant a warning for crossing the centerline and told him he was free to go. Id. After the patrolman handed the defendant his license and rental information, the defendant got out of the patrol car and began to walk back to his truck. Id. Just before the defendant reached the truck, however, the patrolman stepped out of his patrol car and asked the defendant for consent to search the truck and its contents based on the inconsistencies in the stories of the defendant and his cousin. Id. The defendant denied consent. Id. The patrolman told the defendant that was his right but, nevertheless, the vehicle could not be moved because he was going to call a K-9 unit to sniff the vehicle. Id. The patrolman also told the defendant he was free to go, but he could wait in the patrol car during the search. Id. The patrolman also asked the cousin for consent to search the truck. Id. The cousin, however, deferred to the defendant as to whether to grant permission to search the truck. Id.

Eventually, the K-9 unit arrived on the scene and the dog indicated the presence of narcotics in the truck. Id. at 311. Upon searching the truck, the patrolman found approximately thirty-six pounds of marijuana. Id. The defendant and his cousin were both arrested. Id. The trial court overruled the defendant’s motion to suppress and the defendant was convicted of possession of a controlled substance with the intent to deliver. Id.

On appeal, the Supreme Court held that the results of the search should have been suppressed because the detention extended beyond the time reasonably necessary to effect its initial purpose, and there was no new reasonable suspicion found during the period of lawful seizure that would support the search. Id. at 310. In particular, the Court held that “[t]he purpose of the stop, to investigate a traffic violation, was satisfied as soon as [the defendant] stepped out of the patrol car.” Id. at 311. “Once th[o]se steps were completed, the patrolman was required to allow [the defendant] to proceed without further questioning unless specific, articulable facts created an objectively reasonable suspicion that the individual was involved in criminal activity.” Id. In response to the state’s argument that the patrolman had a right to search the defendant’s car based on suspicious behavior during the traffic stop and the inconsistencies in the defendant’s and passenger’s statements, the Court stated: “If the search request occurred prior to handing [the defendant] the written warning and telling him that he was free to go, the Court might agree; however, he did not do so.” Id. at 312. Rather, the Court found that “[n]o specific, articu-lable facts developed between the time [the defendant] got out of the patrol car and returned to his truck that justifie[d] detaining [the defendant] to ask him further questions.” Id.

In addition, the Court stated that, “[e]ven if a law enforcement officer does not have reasonable suspicion to further detain a driver at the completion of a traffic stop, the officer may question the driver if the encounter has turned into a consensual one.” Id. The Court held, however, that the “court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id.

In Granado, the Court found that, even though the patrolman told the defendant that he was free to go, under the circumstances, no reasonable person would have felt free to leave. Id. In particular, the Court noted: both the defendant and his cousin were from Texas; they were pulled over by police on a rural Missouri highway; it was a cold night; neither party had a jacket; and they had just been informed that their truck and personal possessions were being detained for an indefinite period of time. Id. Consequently, the Court held that the detention extended beyond the time reasonably necessary to effect its initial purpose and, therefore, the trial court erred in failing to grant the defendant’s motion to suppress. Id. at 312-18.

Here, Trooper Seaton completed the initial purpose of the traffic stop when he issued Ms. Hencz a warning for traveling too closely. After issuing the warning, Trooper Seaton told Ms. Hencz she was “free to go.” Just a few seconds after Ms. Hencz got out of the patrol car to return to her car, however, Trooper Seaton asked Ms. Hencz if he could ask her a few more questions. But, as in Granado, there is nothing in the record demonstrating that any new “specific, articulable facts” had developed between the time Trooper Sea-ton told Ms. Hencz that she was free to go, and the time he asked her if he could ask her a few more questions, that would have justified Trooper Seaton detaining her further. Id. at 312.

The only difference between this case and Granado is that Trooper Seaton believed, and the trial court found, that, at the end of the traffic stop, the facts in their totality were sufficient to create reasonable suspicion that Ms. Hencz and Mr. Sanchez were engaged in criminal activity. That difference does not impact this court’s assessment of the legality of the stop, however, because, in Granado, the Supreme Court found that reasonable suspicion developed during the initial traffic stop would not support further detention, once the law enforcement officer handed the driver the written warning and said that the driver was free to go. Id. Instead, Granado requires that there must be some additional specific, articulable facts arising between the time the driver was released and the time the law enforcement officer asked further questions to justify continued detention. Id.

Additionally, the record fails to demonstrate that the encounter between Trooper Seaton and Ms. Hencz, after the traffic stop was completed, was consensual. While Trooper Seaton testified that Ms. Hencz was free to leave at this point, the record demonstrates that Trooper Seaton actually told Ms. Hencz, “Could you just stand here for a minute.” In addition, he told Mr. Sanchez, “Stay right here for me.” Moreover, Ms. Hencz and Mr. Sanchez were both from Montana. They were pulled over by a state trooper on the side of a Missouri interstate highway. The temperature was over one hundred degrees, and their car and all of their personal possessions were being detained. The facts here are similar to Granado, which as discussed above, involved an out-of-state defendant who was told he was free to leave, but it was a cold night on a Missouri highway, and all of his personal possessions were being indefinitely detained by a highway patrolman. Id. Accordingly, as in Granado, under the totality of the circumstances, no reasonable person would have believed they were free to leave. Id.

In sum, there is nothing in the l'ecord that would have given Trooper Seaton reasonable suspicion that Ms. Hencz and Mr. Sanchez were involved in criminal activity after the traffic stop was completed and Trooper Seaton told Ms. Hencz she was free to go. Moreover, under the totality of the circumstances, no reasonable person would have felt free to leave following completion of the traffic stop. Accordingly, the trial court clearly erred in denying Mr. Sanchez’s motion to suppress and should not have considered the evidence seized during the search at trial. “In the absence of the seized evidence, there was insufficient evidence to support the conviction.” Id. at 313. However, “[t]he erroneous admission of evidence does not preclude retrial because the state may produce other evidence that cures the evidentiary insufficiency.” Id.

The trial court’s judgment is reversed, and the case is remanded.

All concur.


author: VICTOR C. HOWARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jason NORMAN, Appellant.
    No. WD 64073.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.
    As Modified Nov. 1, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Kent Denzel, Asst. Public Defender, Columbia, MO, for Appellant.
    Before HOWARD, P.J., and SMART and NEWTON, JJ.
   VICTOR C. HOWARD, Presiding Judge.

Jason Norman (“Norman”) appeals from a conviction by jury in the Circuit Court of Lafayette County for trafficking in the first degree in violation of section 195.222, and trafficking in the second degree in violation of section 195.223. Norman argues two points on appeal. In Point I, Norman argues the trial court erred by admitting Fred Alkire’s testimony that Gary Cowan had mentioned Norman’s name, because the testimony was not admissible under the co-conspirator exception to the hearsay rule. In Point II, Norman argues the trial court plainly erred in overruling Norman’s objection to submitting both Count I and Count II to the jury and sentencing Norman on both counts, because Count II was a lesser-included offense of Count I, so submitting both counts to the jury constituted double jeopardy.

Background

Norman was charged by an information in lieu of indictment, as a prior drug offender, in the Circuit Court of Lafayette County with: (1) trafficking of drugs in the first degree in violation of section 195.222 and (2) trafficking of drugs in the second degree in violation of section 195.223. Norman does not challenge the sufficiency of the evidence. Viewed in a light most favorable to the verdict, the following evidence was adduced at trial:

On December 13, 2002, around 12:20 p.m., Detective Heidi Morgan (“Morgan”) of the Higginsville Police Department received a call to respond to the residence of Gary Cowan (“Cowan”) and Christine Co-wan following a report that Cowan and his friends were illegally riding their four-wheelers in the streets. Morgan immediately went to the Cowans’ residence. When Morgan entered the porch area, she detected a chemical smell similar to ammonia coming from the residence and from around Cowan’s truck. Morgan knocked on the Cowans’ door, and Cowan answered the door, appearing to be extremely nervous. When Cowan opened the door, Morgan could smell and see marijuana smoke coming from the back of the residence. Cowan stepped outside and closed the door behind him, and Morgan advised Cowan to stop riding four-wheelers in the streets. Morgan did not tell Cowan she could smell marijuana and a chemical odor.

Morgan returned to the police station and notified Officer Fred Alkire (“Alkire”) of the narcotics unit that she had smelled a chemical odor and marijuana at the Cowan residence. Alkire and Officer Donnie Hammond (“Hammond”) responded to the Cowan residence around 3:00 p.m. Alkire detected a faint chemical odor on the front porch of the Cowan residence. Alkire and Hammond knocked on the front door, and Cowan answered the door. Alkire told Cowan he was there because there was a methamphetamine lab in his residence. Cowan was very nervous and shook uncontrollably. Cowan told Alkire that the only thing in his house was marijuana. Alkire asked Cowan if he could look around, and Cowan agreed. Cowan took Alkire to the garage to look around. Al-kire found nothing in the garage and told Cowan he thought the chemical odor was coming from inside the house. Cowan then consented in writing to Alkire searching his residence.

Alkire entered the Cowan residence through a side door into a mudroom. Co-wan pointed to a red bag in the mudroom that was partially opened. Alkire looked in the bag and found a jar containing coffee filters and a cloth shirt. The cloth shirt contained about 157 grams of methamphetamine. The red bag also contained another glass jar, a plastic jug with blue liquid, a can of Coleman fuel, a blue funnel, and a plastic two-quart container with some liquid and a baggie between the lid and the plastic. Alkire determined that this red bag was a mobile methamphetamine lab.

Other items used in the manufacturing of methamphetamine were found in the Cowan residence including: burnt blister packs which contained cold medicine with pseudoephedrine, a can of acetone, a plastic container of liquid, a bottle of Liquid Fire, scales that contained methamphetamine, a prescription bottle containing several baggies of methamphetamine, coffee filters containing powder, aluminum foil on a plate, and a respirator. Outside of the Cowan residence, Alkire also found a fitting that attached to an anhydrous ammonia tank.

While Alkire was speaking with Cowan, Cowan mentioned Norman’s name and said Norman had been there the night before. Christine Cowan testified that the red bag found in her house belonged to Norman. Norman’s fingerprint was found on one of the jars in the red bag. That jar contained a liquid weighing 0.68 grams that contained methamphetamine. Norman was friends with Cowan and stayed at the Cowan residence approximately twice a month. Christine Cowan testified that she had heard Cowan and Norman talking about cooking methamphetamine on more than one occasion. Cowan testified that the red bag belonged to him, but also admitted to having told the police that the red bag belonged to Norman.

Aubrey Christopher testified in rebuttal for the State that he met Norman while incarcerated, and Norman told him that he committed the crimes for which he was charged.

After the close of evidence and closing arguments, the jury found Norman guilty of trafficking of drugs in the first degree (Count I) and trafficking of drugs in the second degree (Count II). On April 2, 2004, the trial court sentenced Norman as a prior drug offender to concurrent twenty-year sentences on each count. This appeal follows.

Standard of Review

Although Norman initially conceded that the hearsay issue he raises in Point I was not preserved for appeal, Norman argues in his reply brief that it is properly preserved. We disagree. “The ‘[djefendant is required to make a timely and specific objection at the time the evidence is sought to be introduced’ to preserve it for appellate review.” State v. Benwire, 98 S.W.3d 618, 628 (Mo.App. W.D.2003) (quoting State v. Hill, 929 S.W.2d 258, 262 (Mo.App. E.D.1996)).

In the instant case, Norman initially objected on hearsay grounds when the State questioned Alkire on direct examination whether Cowan had mentioned Norman’s name, and the objection was sustained. The State later asked Alkire two similar questions about whether Cowan had ever mentioned Norman’s name, and Norman did not object to either question. When the State asked Alkire how many times Cowan had used Norman’s name, Norman objected and the State withdrew the question. However, two of the State’s questions to Alkire regarding whether Cowan mentioned Norman’s name were never objected to. Therefore, Point I was not properly preserved. Norman also concedes that Point II is not preserved. Accordingly, our only review is for plain error.

Under plain error review, an appellate court “should first examine whether the claim of plain error is one that, on its face, establishes substantial grounds for believing that manifest injustice or miscarriage of justice has occurred.” State v. Rogers, 51 S.W.3d 879, 880 (Mo.App. W.D.2001). Once plain error is facially established, an appellate court should then “review the claim to determine whether manifest injustice or a miscarriage of justice actually occurred.” Id. If a claim of plain error does not facially establish substantial grounds for believing manifest injustice or miscarriage of justice has occurred, an appellate court should decline to review a claim of error under Rule 30.20. Id. “The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review.” State v. Houston, 139 S.W.3d 223, 227 (Mo.App. W.D.2004). Not all prejudicial or reversible error is plain error. State v. Dowell, 25 S.W.3d 594, 606 (Mo.App. W.D.2000). “Plain error is evident, obvious and clear error.” State v. Bailey, 839 S.W.2d 657, 661 (Mo.App. W.D.1992).

Point I

In Point I, Norman argues the trial court erred by admitting Alkire’s testimony that Cowan had mentioned Norman’s name, because the testimony was not admissible under the co-conspirator exception to the hearsay rule.

In support of Point I, Norman argues that Alkire’s testimony that Cowan said Norman’s name did not fall under the co-conspirator exception to the hearsay rule, because by the time Cowan made the statements, the conspiracy had ended. Norman claims the conspiracy ended when Morgan sent the narcotics unit to investigate the chemical and marijuana odors at the Cowan residence. Norman argues that evidence is admissible under the co-conspirator exception only if the prosecution produces evidence of such an agreement between the defendant and the de-clarant to engage in an unlawful act prior to admitting evidence under the co-conspirator exception. Norman claims that the State did not produce evidence of an agreement from Christine Cowan’s testimony until after Alkire’s testimony was admitted under the co-conspirator exception. Norman argues that Cowan’s statement was not in furtherance of any conspiracy, but was made to pin responsibility on Norman rather than himself. Norman also claims that although statements of co-conspirators made after the perpetration of a crime are admissible, this is only true where the statements are made for the purpose of concealing a crime.

Norman further argues that Cowan’s statement was offered to show the truth of the matter asserted and that Norman was not at the Cowan residence when the officers found the methamphetamine. Norman claims that the only connection between himself and the drugs- — other than the word of the Cowans, who were both admitted methamphetamine users, and the word of Aubrey Christopher, who was incarcerated — -was Norman’s fingerprint on a jar that was used to manufacture methamphetamine. Norman points out that the State’s fingerprint expert admitted there was no way to determine how long the fingerprint was on the jar. Therefore, because Norman knew Cowan and was at Cowan’s house to use the four-wheelers, Norman argues it is not inculpatory that Norman’s fingerprint was found on an item that Cowan later used to manufacture methamphetamine. Norman argues that the fingerprint is the only evidence that did not depend on the credibility of the Cowans or Aubrey Christopher. Norman concludes that he was convicted in large part on hearsay that should not have been admitted and that the trial court’s error was therefore so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful consideration.

“The general rule is that, where a timely objection is not made to the introduction of hearsay statements, their admission is not plain error.” State v. Aikens, 3 S.W.3d 792, 796 (Mo.App. W.D.1999). “The admission of unobjected-to hearsay almost never rises to the level of plain error.” State v. Cruz, 971 S.W.2d 901, 904 (Mo.App. W.D.1998). “An allegedly wrongful admission of hearsay testimony does not constitute plain error if such testimony is merely cumulative to other evidence properly admitted.” State v. Goodwin, 43 S.W.3d 805, 818 (Mo.banc 2001). Where substantial corroborating evidence is properly admitted at trial, a trial court’s admission of hearsay does not amount to plain error. State v. Stallings, 957 S.W.2d 383, 389 (Mo.App. W.D.1997).

In State v. Mead, 105 S.W.3d 552, 554-55 (Mo.App. W.D.2003), a police officer testified at trial that an accomplice had mentioned the defendant’s name, but the defendant did not object on hearsay grounds. Mead held that even if the police officer’s testimony was inadmissible, plain error review was inappropriate because the victim identified the defendant four separate times, so there was no showing of manifest injustice or a miscarriage of justice. Id. at 556-57.

The instant case is on point with Mead. There was substantial, properly admitted corroborating evidence linking Norman to the methamphetamine found at the Cowan residence. Norman’s fingerprint was found on a jar containing methampeta-mine. Christine Cowan testified that the red bag found in her house belonged to Norman and that she had heard Cowan and Norman talking about cooking methamphetamine on more than one occasion. In addition, Aubrey Christopher testified that Norman admitted to having committed the crimes for which he was charged while he was in custody. Even if Alkire’s testimony that Cowan mentioned Norman’s name was inadmissible hearsay, there was other evidence linking Norman to the methamphetamine, so no manifest injustice or miscarriage of justice occurred. We decline to review for plain error.

Point I is denied.

Point II

In Point II, Norman argues the trial court plainly erred in overruling Norman’s objection to submitting both Count I and Count II to the jury and by sentencing Norman on both counts, because Count II was a lesser-included offense of Count I, and submitting both counts to the jury constituted double jeopardy.

Norman cites Salmons v. State, 16 S.W.3d 635, 638 (Mo.App. W.D.2000), and acknowledges that this court has held that there is no double jeopardy violation where the defendant is convicted of both manufacture of methamphetamine and possession of pseudoephedrine with intent to manufacture methamphetamine.

In Salmons, 16 S.W.3d at 638, we said: Conviction for manufacture of methamphetamine requires proof of manufacture along with a mental state of awareness of the nature of methamphetamine. Conviction for possession of pseu-doephedrine requires proof of awareness of the presence of pseudoephedrine. These are distinct proof requirements. To convict of manufacture of methamphetamine, the state need not prove the defendant was aware of the presence of pseudoephedrine. To convict of possession of pseudoephedrine, the state need not prove the defendant was aware of the nature of methamphetamine. Therefore, conviction of each crime requires proof of an element which conviction of the other crime does not, and conviction for both does not violate double jeopardy.

Norman argues that Salmons is distinguishable from the instant case because the issue here is the manufacture of the illegal drug and the possession of that drug upon completion. Norman claims that possession of methamphetamine is a lesser-included offense of manufacturing because it is impossible not to possess the drug once it has been manufactured, and because possession is established by the same facts required to establish manufacturing. Norman cites State v. Derenzy, 89 S.W.3d 472, 474 (Mo.banc 2002), where the supreme court found that possession of marijuana is a lesser-included offense of delivery of a controlled substance within 2,000 feet of a school. Derenzy reasoned that it is impossible to deliver or transfer a controlled substance without exercising possession over the substance. Id. We do not find Derenzy controlling because we have different facts.

“[A] defendant may be convicted in one proceeding of more than one offense based upon the same conduct if the legislature'intends to punish the conduct under more than one statute.” State v. Villa-Perez, 835 S.W.2d 897, 903 (Mo.banc 1992). If, as here, the legislature’s intent is not expressed in the statutes in question, we look to the general cumulative punishment provisions of section 556.041. Id. Section 556.041 provides, in relevant part: “When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if (1) One offense in included in the other, as defined in § 556.046[.]”

Section 556.046.1(1) defines included offenses as offenses “established by proof of the same or less than all the facts required to establish the commission of the offense eharged[J” Accordingly, “[i]f each of the offenses for which the defendant was convicted requires proof of an element which the other does not, the offenses are not included offenses within the meanings of § 556.046.1(1).” Villa Perez, 835 S.W.2d at 903-04. “The elements of the two offenses must be compared in theory, without regard to the specific conduct alleged.” Derenzy, 89 S.W.3d at 474.

In State v. Brown, 750 S.W.2d 139, 142 (Mo.App. E.D.1988), the appellant argued that convictions for both possession and manufacture of marijuana constituted double jeopardy. In its analysis the court focused on the elements of the offenses charged. Brown held that “[t]o convict a defendant for possession, the state must prove that he had knowledge of the presence and nature of the substance. The mental state pertains only to having the controlled substance under one’s dominion or control, or having access to it.” Id. (citations omitted). On the other hand, “[t]o convict a defendant of manufacturing, the state had the burden of showing the planting, cultivating, growing, or harvesting of marijuana.” Id. Brown found that the appellant’s claim lacked merit because the respective offenses contain different elements. Id. Brown concluded that “‘possession’ and ‘manufacture’ of marijuana are distinct and separate offenses.” Id.

In the instant case, Norman was charged with both trafficking of drugs in the first degree and trafficking of drugs in the second degree. The elements of trafficking in the first degree are that (1) the defendant manufactured or produced by chemical synthesis 90 grams or more of any material, compound, mixture, or preparation containing any quantity of methamphetamine and (2) he knew that the material, compound, mixture, or preparation he manufactured or produced was or contained methamphetamine. MAI-CR 3d 325.11.1.

The elements for trafficking in the second degree are that (1) the defendent possessed 90 grams or more of a material, compound, mixture or substance containing any quantity of methamphetamine and (2) he knew or was aware of the presence and nature of the controlled substance. MAI-CR 3d 325.15.

In order to convict Norman of trafficking in the first degree, the State did not need to prove that Norman possessed 90 grams or more of a material, compound, mixture, or substance containing any quantity of methamphetamine. In other words it is not necessary to prove the defendant exercised dominion or control (possession) over the manufactured product to prove the offense of manufacturing. Likewise, in order to convict Norman of trafficking in the second degree, the State did not need to prove that Norman manufactured or produced by chemical synthesis 90 grams or more of any material, compound, mixture, or preparation containing any quantity of methamphetamine. The manufacturing process is not an element of possession. Therefore, conviction of each crime required proof of an element which conviction of the other crime did not, and conviction for both does not violate double jeopardy.

Point II is denied.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SMART and NEWTON, JJ., concur.

      . All statutory references are to Revised Statutes of Missouri Cumulative Supplement 2004.


text:
    Nathan HAWKINS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85128.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 30, 2005.
    ' Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 11,2005.
    Application for Transfer Denied Dec. 20, 2005.
    Nathan Hawkins, Mineral Point, pro se.
    Deborah Daniels, Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Nathan Hawkins, appeals pro se from a judgment denying his motion to reopen his post-conviction proceeding. We have reviewed the briefs of the parties and the record on appeal and find the motion court’s judgment is not clearly erroneous. Rule 29.15(k). No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been provided with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Larry WEBER, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85574.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Larry Weber (Appellant) appeals from the motion court’s denial of his Rule 24.035 motion for postconviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court did not err in denying Appellant’s Rule 24.035 motion. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P.2004, unless otherwise indicated.


text:
    R.S.J., Respondent, v. C.A.A., Appellant.
    No. WD 64188.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.
    Application for Transfer Denied Dec. 20, 2005.
    Dennis J. Campbell Owens, Kansas City, MO, for appellant.
    Michael E. Whitsitt, Westwood, KS, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

C.A.A. (Mother) appeals the decision of the trial court awarding sole legal and physical custody of her son, E.A., to his biological father, R.S.J. (Father), and restricting her visitation rights. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).