text:
    Donna SNIDER, Assessor for Pemiscot County, Missouri, Appellant, v. CASINO AZTAR/AZTAR MISSOURI GAMING CORP., Respondent.
    No. SC 86181.
    Supreme Court of Missouri, En Banc.
    March 1, 2005.

      Stephen P. Sokoloff, Kennett, Thomas W. Rynard, Jefferson City, for Appellant.
    W. Edward Reeves, Caruthersville, Thomas L. Caradonna, Douglas M. Neider, St. Louis, for Respondent.
   MICHAEL A. WOLFF, Judge.

Introduction

What is the proper standard for appraising the real and personal property of a gambling casino for tax purposes?

The assessor in this case based her valuation on the “highest and best use” of the real and personal property — as a gaming facility. The casino owner objected because that standard is tied to a prospective buyer acquiring one of only 11 available gaming licenses from the state.

The state tax commission accepted the casino’s argument and determined that the casino’s property should be evaluated as if it were “country club” type property— some of which floats on or near the Mississippi River — rather than as a licensed gaming facility.

Aztar’s property’s highest and best use is as a gaming facility so the assessor’s method of valuation was correct. The judgment is reversed, and the case is remanded.

Background

There are two separate entities, Casino Aztar and Aztar Missouri Gaming Corp., that own the property involved in this case. Casino Aztar owns two parcels of real property totaling about 37.5 acres along the Mississippi River at Caruthers-ville. Aztar Missouri Gaming Corp. owns personal property including a casino boat, the “City of Caruthersville,” and an adjacent barge, the “Scott.” Aztar Missouri Gaming Corp. also owns furniture, gaming equipment and other small items of personal property that are not involved in this case. The two entities are referred to collectively as “Aztar.” Aztar does business as a licensed gaming facility.

The improvements to Aztar’s real property include a 40,000 square-foot pavilion, two gazebos, an exposition center, parking for about 900 vehicles, and a four-acre park. The property was specifically designed for use as a gaming facility. The location meets the requirement of Missouri Constitution article III, section 39(e) that a gaming facility be located in artificial spaces within 1,000 feet of the Mississippi or Missouri Rivers.

The assessor classified Aztar’s property as commercial property with a highest and best use as a gaming facility. The assessor valued the real property at a fair market value of $11,970,280 and an assessed value of $3,830,490. The assessor also valued Aztar’s personal property at $17,210,160. Both valuations were based upon a replacement cost approach that took the actual cost of acquiring and improving the properties and adjusted those costs downward for four years’ worth of depreciation and depletion.

Aztar filed a complaint with the county board of equalization and requested a lower value on its real property and its casino boat and barge. The board upheld the assessor’s calculations of value. Aztar then sought review from the Missouri Tax Commission. Following a hearing, the commission held that the assessor had overvalued Aztar’s real and personal property. The commission adopted the standard and approach to valuation proposed by Aztar, as well as the values Aztar’s expert obtained by applying that standard and approach. The assessor appealed the commission’s decision to the Pemiscot County Circuit Court. That court affirmed the commission’s decision. After opinion in the Court of Appeals, Southern District, this Court granted transfer. This Court has jurisdiction. Mo. Const, art. V, sec. 10.

Standard of Review

This Court reviews the decision of the commission and not the decision of the trial court. Evangelical Retirement Homes of Greater St. Louis, Inc. v. State Tax Commission, 669 S.W.2d 548, 552 (Mo. banc 1984). This Court is limited to determining whether the commission’s decision is supported by competent and substantial evidence upon the whole record or whether it was arbitrary, capricious, unreasonable, unlawful, or in excess of the commission’s jurisdiction. Id. (citing section 536.140.2). Whether the appropriate standard of value and approach to valuation were properly applied under the particular facts and circumstances of the case is a question of law. City of St. Louis v. Union Quarry & Construction Co., 394 S.W.2d 300, 303 (Mo.1965).

A tax assessor’s valuation is presumed correct. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 895 (Mo. banc 1978). This presumption may be rebutted only if the taxpayer presents substantial and persuasive evidence that the assessor’s valuation is erroneous. Id. The taxpayer bears the burden to establish the value that should have been placed on the property. Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo.1959).

AZTAR’S REAL PROPERTY Valuation

Section 137.115.1 requires that all real property be assessed according to its true value in money. “True value in money is the fair market value of the property on the valuation date, and is a function of its highest and best use, which is the use of the property which will produce the greatest return in the reasonably near future.” Aspenhof Corp. v. State Tax Commission, 789 S.W.2d 867, 869 (Mo.App.1990) (citations omitted).

For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches. See St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977). Each valuation approach is applied with reference to a specific use of the property — its highest and best use. Aspenhof Corp., 789 S.W.2d at 869. The method used depends on several variables inherent in the highest and best use of the property in question. Id. Each method uses its own unique factors to calculate the property’s true value in money. Security Bonhomme, Inc., 558 S.W.2d at 659.

Cost Approach

The “cost approach” may be based on either reproduction cost or replacement cost. See Security Bonhomme, Inc., 558 S.W.2d at 659. The reproduction cost, or cost of construction, is a determination of the cost of constructing an exact duplicate of an improved property using the same materials and construction standards. See, e.g., Gupples Hesse Corp., 329 S.W.2d 696. The replacement cost is an estimate of the cost of constructing a building with the same utility as the building being appraised but with modern materials and according to current standards, design and layout. See Aspenhof Corp., 789 S.W.2d at 869.

The cost approach is most appropriate when the property being valued has been recently improved with structures that conform to the highest and best use of the property or when the property has unique or specialized improvements for which there are no comparables in the market. See, e.g., Stephen and Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798 (Mo.1973).

While reproduction cost is the best indicator of value for newer properties where the actual costs of construction are available, replacement cost may be more appropriate for older properties. In the case of Aztar’s property, due to its recent construction and specialized use, the reproduction cost of the property best indicates its true value in money. In fact, the assessor used the reproduction cost approach to determine the true value of Aztar’s property by taking the actual cost of acquiring and improving the property and decreasing that amount to account for four years’ worth of depreciation and depletion.

Income Approach

The “income approach” determines value by estimating the present worth of what an owner will likely receive in the future as income from the property. The income approach is “based on an evaluation of what a willing buyer would pay to realize the income stream that could be obtained from the property when devoted to its highest and best use.... ” Equitable Life Assurance Society v. State Tax Commission, 852 S.W.2d 376, 380 (Mo.App.1993).

When applying the income approach to valuing business property for tax purposes, it is not proper to consider income derived from the business and personal property; only income derived from the land and improvements should be considered. Id. at 381. This approach is most appropriate in valuing investment-type properties and is rehable when rental income, operating expenses and capitalization rates can reasonably be estimated from existing market conditions. The initial step in applying the income approach is to find comparable rentals and make adjustments for any differences. See id. at 381-82. Because casino facilities are not normally leased, there are no market rents data on which to base a valuation, and Aztar’s property is not amenable to the income approach.

Comparable Sales Approach

The “comparable sales approach” uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differ-enees between the properties. “Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.” See State ex rel. Missouri Highway and Transportation Commission v. Union Realty and Securities Co., 827 S.W.2d 768, 770 (Mo.App.1992). This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data are available to make a comparative analysis. Thus, application of this approach to “special use” property, such as Aztar’s casino property, is not appropriate.

The issue in this case is whether, regardless of the valuation method used, one type of commercial real property may be valued based on something less than its highest and best use while all other commercial property is valued at its highest and best use. In short, such subdivision is not allowed because Missouri Constitution article X, section 4(b) prohibits further dividing the classes of real property provided for in that section.

The Commission’s Discretion in Valuation

The purpose of valuing property for tax assessment purposes is to determine the true value in money of the property on the relevant day. Hermel, Inc., 564 S.W.2d at 897. In making this determination, the commission has some discretion in deciding which approach best estimates the value of a particular property.

The commission’s choice of valuation approaches must comply with the law. Both section 137.115 and article X, section 4(b) of the Missouri Constitution require that real property in Missouri be taxed according to its true value in money. True value is a function of the property’s highest and best use. Aspenhof Corp., 789 S.W.2d at 869.

Once the commission decides to use a particular approach, it must apply that approach properly and consider all of the factors relevant to that approach. See Stephen and Stephen Properties, Inc., 499 S.W.2d at 802.

The commission, however, cannot ignore a lack of support in the evidence for adjustments made by the expert witnesses in the application of a particular valuation approach. Drey v. State Tax Commission, 345 S.W.2d 228, 234-36 (Mo.1961). Further, the commission cannot base its decision on opinion evidence that fails to consider information that should have been considered under a particular valuation approach. Id.; Security Bonhomme, Inc., 558 S.W.2d at 659.

The Commission’s Valuation Standard

The commission accepted the valuation standard and approach proposed by Aztar. The commission relied predominantly on the income approach to value the real property, supported by the comparable sales approach and the replacement cost approach. Aztar based all three of the approaches on use of its property as a “country club.”

Although Aztar’s expert conceded that the highest and best use of the property is as a gaming facility, he maintained that because possession of a gaming license is a critical factor in the price actually paid for the property, accepted valuation approaches should be applied to casino property using an alternate second-best use of the property as the applicable standard.

In advocating a second-best use standard, Aztar misinterprets the law to hold that property’s true value in money is something less than its highest and best use when that highest and best use cannot be enjoyed by anyone who owns the property.

It is true that property can only be valued according to a use to which the property is readily available. But this does not mean that in order for a specific use to be the highest and best use for calculating the property’s true value in money, that particular use must be available to anyone deciding to purchase the property.

Highest and best use does not look at the characteristics of the owner— such as possession of a casino use license or the goodwill of a corporate owner. Highest and best use looks only at the qualities of the property itself — such as the location, improvements and terrain of the property. Because of these rules, Equitable Life Assurance Society, 852 S.W.2d at 381, when addressing the true value in money of a hotel, correctly states:

[W]hat is at issue for tax assessment purposes is not the value of the ... hotel; it is the value of the real property which is being used to operate a ... hotel. Therefore, the value of the ... franchise and business acumen must be excluded if one is to value the property.

In accepting Aztar’s proposed valuation standard, the commission ignored the rule of valuation for tax assessment purposes that a property’s true value in money must be determined by valuing the property at its highest and best use regardless of the personal characteristics of a potential owner of the property. Valuing Aztar’s property using any other standard undervalues the property. Here the commission undervalued the property by considering the fact that a casino license must be obtained by the property owner to use the property as a casino. That is not a factor in the highest and best use analysis.

The parties agree that Aztar’s property’s highest and best use is as a gaming casino. The commission, however, crafted a new legal standard for valuing licensed gaming facilities — the next most profitable commercial activity. Under the commission’s decision, when the highest and best use of property can occur only if a license is issued, the property should be valued according to the next best use — the best use that could be made without the license. By applying one standard to most commercial properties but a different standard to casinos, the commission created a valuation subclass of commercial property. This violates both article X, section 4(b) of the Missouri Constitution and section 137.115.

As a matter of law the commission had to use the highest and best use standard when determining the value of Az-tar’s property for taxation purposes. A determination of the true value in money cannot reject the property’s highest and best use and value the property at a lesser economic use of the property. Union Quarry & Const. Co., 394 S.W.2d at 304-307.

The Evidence Before the Commission

The assessor submitted written testimony to the commission, but all of her evidence was excluded regarding the real and personal property assessments. As a result, the only evidence submitted at the hearing regarding valuation was from Az-tar’s two expert witnesses. Aztar’s appraisal expert testified that the highest and best use of the property was as a casino, but he compared Aztar’s property to “country club” property when applying the income approach as supported by the replacement cost approach and the comparable sales approach. In fact, there is evidence in the record that it would not be economically feasible to convert Aztar’s property to an alternate use, including use as a hotel, mixed use, institutional use, or retail use. So any alternate use proposed by the expert was based entirely on speculation.

None of the rental comparables used by Aztar’s expert in applying the income approach were casino properties. That is precisely why the income approach is inappropriate in this case — casino property is not rental property, so no rental comparables are available with which to apply the income approach. Aztar’s application of the comparable sales approach is similarly flawed in that the evidence established that there were no sales of similar properties in the market to which the property at issue could be compared. If there is an absence of comparables in the market on which to base a determination, the appropriate solution is to reject the use of this approach, not to find the next best economic use for which comparables in the market can be found. See Union Realty and Securities Co., 827 S.W.2d at 770-771.

In adopting Aztar’s income approach supported by replacement costs and the second-best use standard, the commission ignored evidence showing that, in light of the recent construction of the improvements and the specialized use of the property, the reproduction cost approach would most accurately indicate the true value in money of Aztar’s property. The commission’s decision relied on expert testimony that ignored or improperly applied the appropriate valuation standard and approach.

The legal premise that the commission applied is incorrect as a matter of law, and its decision is not supported by substantial evidence.

The Valuation Standard and Approach Used by the Assessor

The assessor determined the value of Aztar’s property by applying the reproduction cost approach based on the highest and best use standard. The reproduction cost method is appropriate, as discussed above, when the improvements are recent and the property is “special use.”

Contrary to Aztar’s assertions, the assessor did not directly include the value of the gaming license in the value of Az-tar’s real property. It is not possession of the gaming license that imbues Aztar’s property with its highest and best use, it is the demand for a casino in the community and the physical attributes of the property that make it suitable to being developed to that use: In determining the highest and best use, “the uses of the land for which it is reasonably adapted or suited may be considered, including a special adaptation to a particular use, having regard to the existing business wants of the community.” Union Quarry & Construction Co., 394 S.W.2d at 305 (citations omitted).

The special adaptation exists here because the property’s location meets the requirement of article III, section 39(e) of the Missouri Constitution that a gaming facility be located in artificial spaces within 1,000 feet of the Mississippi or Missouri Rivers. In fact, based only on the suitability of the location as a gaming facility, Aztar acquired the property and invested over $12 million in improvements before acquiring the license to operate a casino. The assessor rightly used the property’s highest and best use as a gaming facility when determining the true value in money of Aztar’s real property.

AZTAR’S PERSONAL PROPERTY

As with real property, personal property is to be assessed with reference to its true value in money. True value in money means the fair market value of the property on the valuation day. Hermel, 564 S.W.2d at 897. The assessor determined that the fair market value of the personal property was $17,210,160.

The assessor’s valuation is presumed to be correct, and it is Aztar’s burden to rebut the presumption. Daly v. P.D. George Co., 77 S.W.3d 645, 648 (Mo.App.2002). Aztar’s expert appraiser did not use any recognized valuation method in formulating his opinion as to the valuation of the boat, the “City of Caruthersville,” or the adjacent barge, the “Scott.”

The commission’s rejection of the assessor’s cost-based approach and its acceptance of Aztar’s nontraditional methods suffered from the same legal deficiency as Aztar’s position on the valuation of its real property. Aztar failed to carry its burden of showing that the assessor was incorrect, and the commission erred in applying a criterion other than the property’s highest and best use.

Conclusion

The standard the commission adopted for casino properties impermissibly divides the commercial class of property created by Missouri Constitution article X, section 4(b) into multiple subclasses. The assessor’s cost-based approach to valuation of the real and personal property was legally correct and was not shown to have been factually incorrect.

The judgment is reversed, and the case is remanded.

All concur.

      . The properties were about four years old on the date of valuation.

      . Aztar actually has three appeals that have been consolidated in this case. Aztar has one appeal for each of its two parcels of real property and one appeal for its personal property.

      .All statutory citations are to RSMo 2000 unless otherwise indicated.

      . "Except as otherwise provided in subsection 3 of this section and section 137.078, the assessor shall annually assess all personal property at thirty-three and one-third percent of its true value in money as of January first of each calendar year. The assessor shall annually assess all real property, including any new construction and improvements to real property, and possessory interests in real property at the percent of its true value in money set in subsection 5 of this section.” Section 137.115.1.

      . "Property in classes 1 and 2 and subclasses ■ of those classes, shall be assessed for tax purposes at its value or such percentage of its value as may be fixed by law for each class and for each subclass.” Mo. Const. art. 10, sec. 4(b).

      . The improvements were constructed four years ago.

      . Aztar's appraisal evidence was similar in methodology to that disapproved in Quincy Soybean Co. v. Lowe, 773 S.W.2d 503 (Mo.App.1989).


source: Caselaw Access Project

author: MARY R. RUSSELL, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Chad D. MADORIE, Appellant.
    No. SC 86024.
    Supreme Court of Missouri, En Banc.
    March 1, 2005.

      Kent Denzel, Office of Public Defender, Columbia, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie M.- Morrell, Asst. Atty. Gen., Jefferson City, for Respondent.
   MARY R. RUSSELL, Judge.

Chad D. Madorie (“Appellant”) was convicted of driving while intoxicated in violation of section 577.010, RSMo 2000. He appeals, arguing that his extrajudicial statements should not have been admitted in that the State failed to establish sufficient proof of the corpus delicti of the offense of driving while intoxicated. After an opinion by the Court of Appeals, Southern District, this Court granted transfer. Mo. Const, art. V, sec. 10. Because the State established sufficient proof of the corpus delicti of the offense of driving while intoxicated, the judgment is affirmed.

I. Facts

At approximately 1 a.m., an officer of the Joplin Police Department was called to the scene of an accident. He observed a vehicle in the ditch just off the roadway near a private drive. The vehicle was in the ditch facing the roadway with its front pointing up. There was no one in the vehicle, but the officer observed Appellant standing near the vehicle. Another person, Kevin Dunn (“Friend”), was in the area away from the vehicle speaking to the first reporting officer. The vehicle was registered in Appellant’s name.

Appellant approached the officer when he arrived. The officer observed that Appellant was “a little unstable on his feet, kind of swaying as he walked,” and he stumbled occasionally. The officer noticed a “strong odor of intoxicants [and] alcoholic beverages” around Appellant and that his eyes were watery and bloodshot. Appellant told the officer that when he was driving down the street, he saw Friend, who was walking. He went to turn around in the private drive to give Friend a ride, and while trying to turn around, got stuck in the ditch. Appellant initially asserted that he had nothing to drink that night, but later admitted he had “a little bit” earlier in the evening. The officer could smell alcohol on his breath during the conversation.

Because he was suspicious that Appellant was intoxicated, the officer gave him several field sobriety tests. Appellant failed these tests and was charged with driving while intoxicated. At the police station Appellant received Miranda warnings and consented to a breathalyzer test. After being told that the breathalyzer test showed his blood alcohol content was over the legal limit, Appellant stated that he knew he was driving while intoxicated, but because the officer had not seen him with the keys in the ignition, he knew he could get out of it with a lawyer.

Appellant was convicted and sentenced to three years imprisonment. He appeals.

II. Corpus Delicti

A. Origin of the Corpus Delicti Rule

The term “corpus delicti” is Latin for “body of the crime.” Black’s Law Dictionary 346 (7th ed.1999). The term is used in the context of criminal law to describe the prosecutor’s burden of proving that a crime was committed by someone, independent from a defendant’s extrajudicial statements. Id.; see also Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L.Rev. 385 (1993). Missouri case law has never discussed the history of the corpus delicti rule. To understand the rule and its application to this case, it is helpful to examine its origin in England and subsequent adoption in Missouri.

Most commentators trace the corpus de-licti rule to 17th century England. See, e.g., David A. Moran, In Defense of the Corpus Delicti Rule, 64 Ohio St. L.J. 817, 826-27 (2003); Mullen, at 399. Specifically, the idea of requiring corroborating evidence independent of a defendant’s confession is traced to several murder cases in which the accused confessed to the killing, were hanged, and the victims were later found still alive. Moran, at 826-27; Mullen, at 400; see Perry’s Case, 14 Howell St. Tr. 1312 (1660). Most commentators agree that the rule was never specifically adopted in English common law, or at least its application was limited to murder cases. Moran, at 829; Mullen, at 400-01. In the United States, however, the rule has been accepted as a basic requirement in any criminal case.

The rule’s genesis in the United States is typically attributed to The Trial of Stephen and Jesse Boorn in Vermont. 6 Am. St. Tr. 73 (1819). Jesse and Stephen Boorn were brothers-in-law of the supposed victim in this case, Russel Colvin, who disappeared in 1812. Id. at 73-74. Seven years later, when some bones, later determined not to be human bones, were found near his home, Jesse Boorn was arrested for Colvin’s murder. Id. at 74-75. Jesse implicated his brother Stephen in the murder. Id. at 75. Stephen ultimately confessed after initially denying wrongdoing when told it was his only chance to avoid the death penalty. Id. at 76. Both brothers were convicted ■ and sentenced to hang based solely on their confessions. Id. at 77.

While Jesse’s death sentence was commuted to life imprisonment, Stephen narrowly avoided his own execution, when the supposed victim was later identified. Id. at 77, 92-94. Both men were granted new trials. Id. at 94-95. Their trials were widely publicized and began the United States’ widespread adoption of the corpus delicti rule. See Moran, at 830-31. By the end of the 19th century, almost every jurisdiction in the United States adopted some form of a corroboration requirement for all crimes. Mullen, at 401.

This Court first explicitly adopted the corpus delicti rule in Robinson v. State, 12 Mo. 592 (1849). It held that “the confessions of a party not made in open court, or on examination before a magistrate, but to an individual, uncorroborated by circumstances, and without proof aliunde that a crime has been committed, will not justify a conviction.” Id. at 597. This Court limited its holding, however, by stating that “full proof of the body of the crime, the corpus delicti, independently of the confession, is not required by any of the cases; and in many of them slight circumstances corroborating the facts were held sufficient.” Id. (emphasis added).

This Court further explained the corpus delicti rule in State v. Lamb, 28 Mo. 218 (1859). In that case, it drew a distinction between judicial and extrajudicial confessions in relation to the corpus delicti rule:

Confessions are either judicial or extra-judicial. Judicial confessions are those made in conformity to law before the committing magistrate, or in court in the due course of legal proceedings. It seems that these confessions, uncorroborated by any other proof of the corpus delicti, are sufficient to found a conviction, even if it be followed by a sentence of death, they being deliberately made, under the deepest solemnities, with the advice of counsel and the protecting caution and oversight of the judge.
Extra-judicial confessions are those which are made by a party elsewhere than before a magistrate or in court. It is of these confessions, when uncorroborated by any other proof of the corpus delicti, that the question is made, whether they are sufficient to found a conviction ....
... We consider the true rule, as deduced from the current of authorities, to be, that an extra-judicial confession, with extrinsic circumstantial evidence satisfying the minds of a jury beyond a reasonable doubt that the crime has been committed, will warrant a conviction, although the dead body has not been discovered and seen, so that its existence and identity can be testified to by an eye-witness.

Id. at 230-32.

Initially, proof of the corpus delicti of a crime was broken down by this Court into two elements: (1) a criminal act; and (2) the defendant’s agency in the production of the act. See, e.g., State v. Bass, 251 Mo. 107, 157 S.W. 782, 787 (1913); State v. Dickson, 78 Mo. 438, 447 (1883). Later this Court determined that the corpus de-licti rule required only proof of the criminal act and the criminal agency of someone. State v. Gillman, 329 Mo. 306, 44 S.W.2d 146, 148 (1931). This rule is still applicable. See State v. Edwards, 116 S.W.3d 511, 544 (Mo. banc 2003) (“The corpus delicti in a homicide case consists of two elements: (1) proof of the death of the victim and (2) evidence that the criminal agency of another was the cause of the victim’s death.”).

B. Admission of Appellant’s Statements

A trial court has broad discretion to admit or exclude evidence at trial. State v. Chaney, 967 S.W.2d 47, 55 (Mo. banc 1998). This standard of review compels the reversal of a trial court’s ruling on the admission of evidence only if the court has clearly abused its discretion. Id.

Extrajudicial admissions or statements of the defendant are not admissible in the absence of independent proof of the commission of an offense, i.e. the corpus delicti. Edwards, 116 S.W.3d at 544; State v. Fears, 803 S.W.2d 605, 608 (Mo. banc 1991). Evidence, however, that the defendant was the criminal agent is not required before the defendant’s statement or confession is admitted. State v. Litterell, 800 S.W.2d 7, 10 (Mo.App.1990). In addition, absolute proof independent of his statement or confession that a crime was committed is not required. State v. Hahn, 640 S.W.2d 509, 510 (Mo.App.1982). “All that is required is evidence of circumstances tending to prove the corpus delicti corresponding with the confession. Slight coiroborating facts are sufficient to establish the corpus delicti.” Id. (emphasis added). The determination of whether there is sufficient independent evidence of the corpus delicti of an offense is fact specific and requires a case-by-case evaluation. See, e.g., State v. Tillman, 823 S.W.2d 43 (Mo.App.1991); State v. Friesen, 725 S.W.2d 638 (Mo.App.1987). Under the facts of this case, the trial court did not abuse its discretion in finding that the corpus delicti was proven and admitting Appellant’s statements.

Section 577.010 states that “[a] person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.” The corpus delicti of driving while intoxicated under section 577.010 consists of evidence that someone operated a motor vehicle while intoxicated. Litterell, 800 S.W.2d at 10. Here, the facts corroborating Appellant’s statements are sufficient to establish that someone operated the vehicle while intoxicated.

“Operating” for purposes of section 577.010 means “physically driving or operating a motor vehicle.” Sec. 577.001.1. There are sufficient facts corroborating Appellant’s statement that he was driving his vehicle on the roadway immediately before it went into the ditch. First, the officer arrived on the scene of the accident only 15 minutes after the accident was reported. Appellant’s vehicle was found in an unusual position, in a ditch with its nose pointing towards the roadway. Also, Appellant was standing next to the vehicle when the officer arrived on the scene, and when he arrived, Appellant immediately approached him to discuss the situation. Finally, the vehicle was registered in Appellant’s name.

To prove the corpus delicti of the offense of driving while intoxicated, there also must be sufficient independent evidence that corroborates Appellant’s statement to the officer at the police station that he was intoxicated while operating his vehicle. For purposes of section 577.010, a person is in an “intoxicated condition” when “he is under the influence of alcohol.” Sec. 577.001.2. When he approached the officer, Appellant was unsteady and stumbled over the paved driveway. There was also a strong odor of alcohol around Appellant and on his breath during his conversation with the officer, and his eyes were watery and bloodshot. Appellant failed the three field sobriety tests. The cumulative independent evidence corroborates Appellant’s statement that he was operating his vehicle while intoxicated.

Appellant argues that the State failed to produce evidence establishing that someone operated the vehicle while intoxicated because the State offered no evidence as to whether it was Appellant or Friend who operated the vehicle and no evidence of whether Friend was intoxicated. Appellant’s argument fails to recognize that the State is not required to present independent proof of the defendant’s criminal agency, outside of the defendant’s admissions, to establish the corpus delicti. See State v. Stimmel, 800 S.W.2d 156, 158 (Mo.App.1990). The State is only required to prove that someone committed the crime with “[i]ndependent evidence of circumstances, which ‘correspond and interrelate’ with the circumstances described in the statement or confession.” Id. When the officer arrived, only Appellant and Friend were at the accident scene. Appellant was the one who was standing next to the vehicle and who immediately approached the officer when he arrived, supporting the proposition that Appellant was the driver of the vehicle. The State’s evidence of Appellant’s operation of the vehicle while intoxicated sufficiently “corresponds and interrelates” with the circumstances described in both of his statements to establish the corpus delicti of driving while intoxicated. The corpus delicti of driving while intoxicated was proven with sufficient corroborating facts.

III. Denial of Hearing on Motion to Suppress

On the morning of trial, Appellant filed a motion to suppress his statements on the basis that they were the product of an illegal arrest because he was not arrested within one and one-half hours of the alleged offense as required by section 577.039. The court denied the motion stating that he could preserve all of his arguments by objecting at the time the testimony was offered. The court noted that he had many prior opportunities to file a motion to suppress, but chose to wait until a jury was called. Appellant now argues that the trial court violated his constitutional rights by not conducting a hearing on his motion to suppress. In making his argument, Appellant states that because due process requires a procedure in which the voluntariness of a defendant’s confession is determined by a proceeding separate from trial, he should have received a hearing on his motion to suppress on the basis that his statements were the product of an illegal arrest. No authority is cited for this proposition. The argument is without merit. Appellant was not prejudiced as he still had the opportunity to object to the admission of his statements when they were offered into evidence by the State, even though the court did not conduct a separate hearing.

IV. Conclusion

The judgment is affirmed.

All concur.

      . All references are to RSMo 2000 unless otherwise indicated.

      . The results of the breathalyzer test were deemed hearsay and were not admitted into evidence because the State failed to endorse the person who performed the monthly maintenance on the machine and that person was not able to testify as to the accuracy of the machine.

      . The State argues that although Appellant objected to the admission of his statements, he failed to preserve this issue because he did not make an offer of proof showing that he had evidence that his arrest was more than one and one-half hours after the alleged offense.


author: BOOKER T. SHAW, Judge.

text:
    STATE of Missouri ex rel. Richard FOWLER, Relator, v. James PURKETT, Superintendent Eastern Reception, Diagnostic and Correctional Center, Respondent.
    No. ED 84891.
    Missouri Court of Appeals, Eastern District, Writ Division Two.
    Nov. 23, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.

      Rosalynn Koch, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa J. Berry, Jefferson City, MO, for respondent.
   OPINION

BOOKER T. SHAW, Judge.

In his petition for habeas corpus, Richard Fowler (“Relator”) attacks the lawfulness of his confinement by the Superintendent of the Missouri Eastern Reception, Diagnostic and Correctional Center, James Purkett (“Respondent”). Relator alleges he is being unlawfully restrained by Respondent because the trial court exceeded its jurisdiction in sentencing him to thirty-years imprisonment for statutory sodomy. Relator argues the statute criminalizing his conduct was amended prior to sentencing, and as a result, he was entitled to be sentenced under the amended statute, which provided for a lesser sentence. We grant Relator’s petition and the remand the case for further proceedings.

Relator was charged by information with seven counts of statutory sodomy alleged to have occurred in October and November 1994, in violation of Section 566.060, RSMo 1986. Relator requested and received a bill of particulars in February 1995, alleging Relator committed the crime of statutory sodomy by “touching” his hand to the “vagina area” and “panty area” of two girls, ages seven and nine.

On March 20, 1995, pursuant to a plea agreement, Relator pleaded guilty to four counts of statutory sodomy. The State dismissed the remaining three charges against Relator. During the plea hearing, Relator admitted he “touched [the victim’s] vagina” with “just [his] fingers.” The trial court sentenced Relator to concurrent terms of thirty years imprisonment on each count. Relator did not seek post-conviction relief challenging his plea and sentence.

On December 16, 2003, Relator filed a writ of habeas corpus with the circuit court of St. Francois County challenging the validity of his sentence given the amendments to the statutory sodomy statute and the accompanying sentencing statute. The circuit court held Relator’s actions still constituted “deviate sexual intercourse” despite the amendment, and therefore, he was sentenced correctly. Subsequently, Relator sought habeas corpus relief from this Court.

Rule 91.01(b) provides that “[a]ny person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint.” See also State ex rel. Beaird v. Del Muro, 98 S.W.3d 902, 906 (Mo.App. W.D.2003). “A petition for habeas corpus relief under Missouri law is said to be limited to determining the facial validity of confinement, which is based on the record of the proceeding that resulted in the confinement.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). Ha-beas corpus relief is also available in cases where there are circumstances so rare and exceptional that a manifest injustice would result in the absence of habeas corpus relief. Brown v. Gammon, 947 S.W.2d 437, 440 (Mo.App. W.D.1997).

As a general rule, habeas corpus relief may not be used to circumvent the time limits set out in Rule 24.035(b). Brown v. State, 66 S.W.3d 721, 731 (Mo. banc 2002). However, “a petitioner may be entitled to relief on a claim not raised in a post-conviction motion, if the petitioner can assert either: (1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a) that the procedural default was caused by something external to the defense — that is, á cause for which the defense is not responsible — and (b) prejudice resulted from the underlying error that worked to his actual and substantial disadvantage.” Id.

Relator concedes he did not seek any form of post-conviction relief in connection with his plea or the resulting sentence. Despite this concession, Relator argues he is entitled to habeas corpus relief because he is raising a jurisdictional defect, which can be brought at any time. We agree. “A sentence which is in excess of that authorized by law is beyond the jurisdiction of the sentencing court.” Merriweather v. Grandison, 904 S.W.2d 485, 486 (Mo.App. W.D.1995). Not only is the judgment in such a case erroneous, but it “is absolutely void and subject to collateral attack on habeas corpus.” Id. Therefore, we find Relator’s request for habeas corpus relief proper.

Relator was convicted of four counts of statutory sodomy in violation of Section 566.060, RSMo 1986. Section 566.060.3 states a person commits the crime of Sodomy “if he has deviate sexual intercourse with another person to whom he is not married who is less than fourteen years of age.” Id. At the time Relator was chargéd, the term “deviate sexual intercourse” was defined as “any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person.” Section 566.010(1), RSMo 1986. A violation of Section 566.060.3, RSMo 1986, was a Class B felony punishable by life imprisonment or a term of not less than five years. Section 566.060.3, RSMo 1986.

Effective January 1, 1995, the legislature divided the crime of sodomy into two distinct categories: forcible sodomy, Section 566.060, RSMo 1994, and statutory sodomy, Section 566.062, RSMo 1994. Statutory sodomy was not modified by the amendment. Additionally,, the definition of “deviate sexual intercourse” was amended to read, “any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object....” Section 566.010(1), RSMo 1994. It is clear from reading the amended statute the word “hand” has been omitted.

Under the -amended statutory scheme, a person who subjects a child who is less than twelve years of age, to “sexual contact” commits the crime of child molestation in the first degree. Section 566.067, RSMo 1994. “Sexual contact” is defined as “any touching of another person with the genitals or any touching of the genitals or anus of another person ... for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3), RSMo 1994. Child molestation in the first degree is a Class C felony punishable by up to seven years imprisonment. Section 566.067.2, RSMo 1994.

Relator claims, pursuant to the amended laws, his conduct falls within the category of child molestation in the first degree, not statutory sodomy. Respondent argues that despite the amendment to the law, Relator’s conduct still fits within the definition of “deviate sexual intercourse” such that his sentences were proper.

An examination of the plea transcript reveals the following exchange between Relator and his counsel with respect to the charges:

[Defense Counsel]: Now, in each of these four counts, [Relator], you indicated that you touched their vaginafs]?
[Relator]: Yes, sir.
[Defense Counsel]: And did you touch them with your hand?
[Relator]: Yes, sir.
[Defense Counsel]: Just your fingers?
■ [Relator]: Yes, sir.

There was no evidence presented by the State of, nor did Relator admit to, any penetration of the vaginal area. As such, in the absence of evidence of penetration, we cannot say this “touching” rose to the level of “deviate sexual intercourse.” However, we do find there was sufficient evidence adduced at the plea hearing that Relator committed child molestation in the first degree in violation of Section 566.067, RSMo 1994, in that he subjected two victims who were less than twelve years of age to “sexual contact” by touching their vaginas with his hand only. See State v. Pnce, 940 S.W.2d 534, 537 (Mo.App. E.D.1997) (placing hand on victim’s genitals constituted sexual abuse as opposed to deviate sexual' intercourse under amended statutes); State v. Palmer, 976 S.W.2d 29, 30 (Mo.App. E.D.1998) (touching victim’s genitals constituted sexual abuse, not statutory sodomy under amended statutes); State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 519 (Mo. banc 2001) (holding direct touching of victim’s vagina constituted child molestation under amended statutes).

Relator next argues that becadse his offenses were reclassified from statutory sodomy to child molestation' in the first degree, the maximum sentence he could have received for each count was seven years imprisonment. We agree. Pursuant to Section 1.160, RSMo 1994: ,

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

While Relator’s offenses occurred prior to the legislative amendments, he was sentenced after the amendments became effective. Moreover, there is no question the amendments reclassifying Relator’s offenses as child molestation in the first degree lessened the range of punishment available to the trial court at sentencing. Thus, Relator could only have been sentenced to a maximum of seven years imprisonment on each count pursuant to Section 566.067.2, RSMo 1994. Therefore, we find the trial court exceeded its jurisdiction when it sentenced Relator in excess of that authorized by law. See State v. Woodard, 945 S.W.2d 627, 629 (Mo.App. E.D.1997).

Relator requests this Court to grant him immediate discharge from his confinement, relying on State ex rel. Osowski v. Purkett, 908 S.W.2d 690 (Mo. banc 1995). In Osowski, the relator was discharged after being erroneously sentenced, and then subsequently serving the term of imprisonment which exceeded the maximum allowed by law. Id. at 691. In this case, Relator argues since the maximum sentence for each count of first degree child molestation is seven years imprisonment, and he has served approximately nine years of the previously imposed thirty-year sentences, he should be released. We disagree.

Osowski is distinguishable from Relator’s case because in Osowski, the relator pleaded guilty to one count of attempted sodomy. In the instant case,- Relator pleaded guilty to four separate counts, and sentenced to four concurrent terms of thirty years imprisonment. We cannot, and will not, speculate, as to whether the trial court would have ordered Relator’s sentences to run concurrently or consecutively had he been sentenced properly in the first instance. The proper remedy under these circumstances is to remand Relator for resentencing within the limits authorized by law. See Price, 940 S.W.2d at 537 (Mo.App. E.D.1997) (remanding sodomy conviction for resentencing when “sexual abuse” definition was amended to include hand-to-genital contact, as opposed-to “deviate sexual intercourse” prior to sentencing); State v. Gillespie, 944 S.W.2d 268 (Mo.App. E.D.1997); Woodard, 945 S.W.2d at 629; Palmer, 976 S.W.2d at 30.

Relator’s petition for a writ of habeas corpus is granted and the case is remanded for resentencing.

LAWRENCE E. MOONEY, P.J., concurs.

CLIFFORD H. AHRENS, J., concurs in result.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Craig D. PICKENS, Jr., Appellant.
    No. ED 83982.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 30, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    Daniel A. Juengel, Frank & Juengel, P.C., Clayton, MO, for appellant.
    Andrea Kaye Spillars, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Craig Pickens (“Defendant”) appeals from a circuit court judgment rendered after a jury convicted him of two counts of first degree assault on a law enforcement officer, third degree assault on a law enforcement officer, and two counts of armed criminal action. Defendant contends that the circuit court erred when it: (1) allowed the State to improperly strike African-American venirepersons; (2) allowed multiple convictions for a single act; (3) failed to grant a motion for judgment of acquittal where the convictions were against the weight of the evidence and reflected the jury’s failure to follow the instructions; and (4) improperly limited voir dire.

We have reviewed the briefs of the parties and the record on appeal and no trial court error appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


text:
    WHISPERING LAKES APARTMENTS, Plaintiff/Respondent, v. Arthur J. BROOKS, Defendant/Appellant.
    No. ED 84564.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 30, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.

      Arthur J. Brooks, Florissant, MO, for appellant.
    Thomas E. Osterholt, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., and SHERRI B. SULLIVAN, J.
   PER CURIAM.

Arthur Brooks (“Tenant”) appeals from an order and judgment rendered against him in an unlawful detainer action brought by Midwest Diversified Properties d/b/a Whispering Lakes Apartments (“Landlord”). We dismiss for lack of appellate jurisdiction.

On November 29, 2002, Tenant entered into a written lease with Landlord for rental of an apartment at 4561 Whispering Lakes Drive (“premises”) in Florissant, Missouri. The lease was for twelve months, beginning on December 1, 2002, and ending on November 30, 2003. According to the terms of the lease, either the Landlord or Tenant could terminate this lease at the end of the twelve-month period by giving the other party at least thirty-one days written notice prior to November 30, 2003. Landlord gave written notice to Tenant on October 13, 2003, that it was terminating the lease at the end of the initial period on November 30, 2003. The written notice informed Tenant that he needed to turn in the keys to the premises prior to 5:00 p.m. on November 30, 2003.

Tenant did not surrender possession of the premises to Landlord on November 30, 2003. On December 2, 2003, Landlord filed a verified complaint for unlawful de-tainer against Tenant. Landlord asserted the rent was $780.00 per month, and sought judgment for rent, “doubled to the date of judgment, for restitution of the premises, court costs and for such other and additional relief as the Court may [d]eem proper[.]” Landlord also sought attorney’s fees and costs associated with enforcing the terms of the lease. Landlord attached copies of the lease and the written notice it gave to Tenant on October 13, 2003, and incorporated those exhibits by reference as part of the verified complaint.

Tenant was served with process on December 17, 2003, returnable on January 4, 2004. On January 6, 2004, Landlord appeared in court by'its attorney, and Tenant faded to appear. The trial court entered a default judgment in favor of Landlord for restitution of the premises, and the sum of $3,120.00, “double the sum found for his damages” as well as $1,560.00 per month for “double the sum found per month for rent and profits,” from January 6, 2004 onwards until the premises were returned to Landlord. The trial court also awarded Landlord attorney’s fees.

Tenant moved to set aside the default judgment. The judgment was set aside, and the case was tried on March 31, 2004, before an associate circuit judge. Landlord and Tenant both appeared and presented evidence. The case was apparently not heard on the record. The trial court found Tenant did not pay rent for December 2003 or January 2004, and Landlord was required to take legal action to remove Tenant. The trial court entered judgment in favor of Landlord and ordered Tenant to pay $1,274.00 in damages plus $340.00 in attorney’s fees. No post-trial motions were filed, and Tenant did not apply for a trial de novo. Tenant now appeals from that judgment.-

The right to appeal is purely a statutory right, and where the statute does not give right to appeal, no right exists. Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996) (quoting Christman v. Richardson, 818 S.W.2d 307, 308 (Mo.App. 1991)). Trials de novo and appeals on unlawful detainer actions are permitted and conducted in the manner provided for in Chapter 512. Section 534.380 RSMo (Cum.Supp.2003). Appeals from cases tried before associate circuit judges are governed by section 512.180. Section 512.180; see also Farinella, 922 S.W.2d at 756. Section 512.180.1 grants an aggrieved party in a civil case tried without a jury the right to a trial de novo “in all cases where the pleading claims damages not to exceed three thousand dollars” unless the judge was sitting in the probate division or had been assigned to hear the case on the record under procedures applicable before circuit judges. Section 512.180.2 states that in all other contested civil cases tried before an associate circuit judge “a record shall be kept and any person aggrieved by a judgment rendered in any such case may have an appeal upon that record to the appropriate appellate court.” See also Farinella, 922 S.W.2d at 756.

Where an action for damages not exceeding $3,000.00 is tried without a jury before an associate circuit judge, the aggrieved party’s only recourse is to apply timely for a trial de novo. Section 512.180.1. See Kohnen v. Hameed, 894 S.W.2d 196, 199 (Mo.App.1995). However, section 512.180 is silent as to when the court ascertains the amount of damages claimed. . See Farinella^ 922 S.W.2d at 756. Unlawful detainer petitions and rent and possession petitions pray for damages due to the date of the judgment because the respective statutes for those actions provide that if the verdict is in favor of the complainant then damages will be due up to the date of the judgment. Sections 534.310, 534.330, and 535.040. See also Farinella, 922 S.W.2d at 756. Despite the open-ended nature of petitions for such actions, the amount of damages claimed will be known at the time of the hearing on such petitions. See Farinella, 922 S.W.2d at 756. If the amount due exceeds the statutory limit set in section 512.180, the court and the parties know that the trial will be on record and that appeal lies with this Court. Id.

The open-ended nature of unlawful de-tainer petitions and of rent and possession petitions does not preclude all trials de novo. See sections 534.380, 535.110; see also Farinella, 922 S.W.2d at 756. Pleadings in associate circuit court are to be informal, unless the court in its discretion directs otherwise. Section 517.031. The Missouri Supreme Court determined in Farinella, 922 S.W.2d at 756 that “[e]valuating the petition to determine the amount of damages at the time of hearing harmonizes the related statutes on rent and possession, appeals from the associate circuit division, and procedure in the associate circuit divisions.” The same logic applies to unlawful detainer petitions.

Proper appeal from a judgment entered by an associate circuit judge rests not on labels but rather on the facts. Farinella, 922 S.W.2d at 757 (quoting Federated Mortgage & Investment Co. v. Jones, 850 S.W.2d 113, 115 (Mo.App.1993)). The analysis in each case must be fact specific to determine if the facts bring the case within section 512.180.1 or section 512.180.2. Farinella, 922 S.W.2d at 757. This Court reads the petition in the light most favorable to the plaintiff as of the date of the hearing. See Farinella, 922 S.W.2d at 757. Under this standard, the petition claimed damages of $1,274.00, an amount that did not exceed $3,000.00. Further, the trial court treated the case as one in which trial de novo would be available, and preserved no record for appellate review. See State ex rel. JCA Architects, Inc. v. Schmidt, 751 S.W.2d 756, 758 (Mo. banc 1988); A-AABCAA Plumbing, Inc. v. Levin, 821 S.W.2d 131, 132 (Mo.App.1992). Tenant had a right to a trial de novo in circuit court, not an appeal to this Court. The only authority this Court has in an appeal without statutory sanction is to enter an order dismissing the appeal. Farinella, 922 S.W.2d at 757-58 (quoting Aldridge v. First Financial Insurance Co., 828 S.W.2d 734, 735 (Mo.App.1992)).

Appeal dismissed.

      . All further statutory citations are to RSMo (Cum.Supp.2003) unless noted otherwise.

      . Landlord’s motion to dismiss for Tenant's failure to comply with Rule 84.04 is denied as moot. Tenant's motion for summary judgment is also denied.


text:
    Frederick SPENCER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83959.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    S. Paige Canfield, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Assistant Attorney General, Jefferson City, MO, for Respondent.

      Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Frederick Spencer (“Mov-ant”), appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Following a jury trial, Movant was convicted of three counts of forcible sodomy, section 566.060 RSMo (1994), and three counts of rape, section 566.080. Movant was sentenced to five years imprisonment for the first count of forcible sodomy and five years imprisonment for the first count of rape, the sentences to run concurrently, and ten years imprisonment on each of the remaining counts of forcible sodomy and rape, the sentences to run concurrently with each other and consecutively to the five year sentences. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).

      . All statutory references are to RSMo 1994 unless otherwise indicated.


author: GLENN A. NORTON, Judge. LAWRENCE G. CRAHAN, Judge,

text:
    Michele EVELAND, Respondent, v. Jerry EVELAND, Appellant.
    No. ED 83883.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 7, 2004.
    Rehearing Denied Feb. 9, 2005.

      Theresa C. Burke, St. Louis, MO, for respondent.
    Theodore D. Dearing, Clayton, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Jerry Eveland appeals the judgment denying his motion to modify the dissolution decree. We reverse and remand.

I. BACKGROUND

Jerry Eveland (“Husband”) and Michele Eveland (“Wife”) separated and entered an agreement under which Husband agreed to pay Wife $800 a month upon his retirement:

[Husband] shall pay to [Wife] $400 per month as and for child support for five years from the date of decree; thereafter he shall pay $400 per month as and for maintenance. The child support or maintenance obligation shall cease upon [Husband’s] retirement or other severance of service from the St. Louis City Fire Department. Upon his retirement or- other severance of service from the St. Louis City Fire Department, as settlement of [Wife’s] marital interest in his pension, he will pay $800 per month as maintenance or cause to be paid from his retirement as a St. Louis City Fire Department employee $800 per month, either by consent or by QUADRO. He will execute all documents necessary to secure her right to continue to receive benefits after his death, either as widow or by Qualified Domestic Relations Order, from said St. Louis City Fire Department Retirement Fund.

The court entered a decree of legal separation, incorporating this agreement. Neither party appealed the separation decree.

On Husband’s motion, the court converted the separation decree into one dissolving the marriage and ordered Husband to pay Wife $800 a month as maintenance in accordance with the separation agreement and the separation decree. The court also made the award of maintenance modifiable and incorporated the separation agreement to the extent its terms did not conflict with any other provisions in the dissolution decree. Neither party appealed the dissolution decree.

Husband moved to modify the dissolution decree under section 452.370 RSMo 2000, arguing that the $800 monthly payment was maintenance that should be terminated due ’ to a substantial change in circumstances. Wife contended that the payment was a final division of marital property and was not subject to modification. The trial court agreed with Wife, and Husband appeals.

II. DISCUSSION

Because the court did not find the parties’ separation agreement unconscionable and incorporated it into the separation decree, which was not appealed, the terms of the agreement are binding. See Peaslee v. Peaslee, 844 S.W.2d 569, 571 (Mo.App. E.D.1992); section 452.325.2. “The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties and to give effect to that intention.” J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). Where the parties have expressed their final and complete agreement in writing and there is no ambiguity in the contract, the intent of the parties must be determined solely from the four corners of the contract itself. Mid Rivers Mall, L.L.C. v. McManmon, 37 S.W.3d 258, 255 (Mo.App. E.D.2000). But if the terms of the separation agreement are ambiguous, then the court may refer to matters beyond the face of the document itself. See Erwin v. City of Palmyra, 119 S.W.3d 582, 585 (Mo.App. E.D.2003). An ambiguity arises when, from the four corners of the contract alone, it appears that “the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.” Chehval v. St. John’s Mercy Medical Center, 958 S.W.2d 36, 38 (Mo.App. E.D.1997); Erwin, 119 S.W.3d at 585. Whether a contract is ambiguous is a question of law that we determine without deference to the trial court’s decision. Board of Education City of St. Louis v. State, 134 S.W.3d 689, 695 (Mo.App. E.D.2004).

This separation agreement is ambiguous because it is reasonably susceptible of more than one meaning. On its face, the agreement refers to the $800 monthly payment both as maintenance and as a settlement of Wife’s marital interest in Husband’s pension, which could fairly be construed as a division of property. If the obligation is deemed to be maintenance, it is subject to modification under section 452.370. If deemed to be a division of property, it is not. See sections 452.330.5 and 452.360.2; see also Ochoa v. Ochoa, 71 S.W.3d 593, 595 (Mo. banc 2002). It is improper to classify the distribution of one spouse’s interest in a civil service pension as maintenance. In re Marriage of Bums, 903 S.W.2d 648, 652 (Mo.App. E.D.1995). Nevertheless, as we concluded in Peaslee, even when an agreement improperly classifies distribution of a pension plan as maintenance, if that agreement is not found unconscionable and is incorporated into a decree that is not appealed, “the parties are bound by the terms of their agreement, as they intended to be.” 844 S.W.2d at 571; see also Booher v. Booher, 125 S.W.3d 354, 357 (Mo.App. E.D.2004) (court should not “countenance the use of maintenance as an appropriate method to compensate a spouse for an interest in marital property” in absence of evidence the parties intended that improper result). Thus, the question remains: what did these parties intend? The parties’ intent is a question of fact for the trial court to answer by reference to extrinsic evidence. Board of Education, 134 S.W.3d at 695; see also Jackson v. Christian Salvesen Holdings, Inc., 978 S.W.2d 377, 383-84 (Mo.App. E.D.1998).

Wife claims that the issuance of a qualified domestic relations order (“QDRO”) — which is required by federal law in order to distribute pension funds to a spouse — evidences the parties’ intent to treat the monthly payment as a division of property. This argument is unpersuasive because a QDRO is not required in order to divide and distribute a government retirement plan like Husband’s civil service pension. See In re Marriage of Burns, 903 S.W.2d 648, 652 (Mo.App. E.D.1995) (citing 26 U.S.C. sections 401(a)(13), 401(a)(last sentence), 411(e)(1) and 414(d)). The fact that the parties provided for the possibility of transferring this monthly payment by way of a QDRO is not determinative of their intent.

Husband argues that any ambiguity in this agreement must be construed against Wife because her lawyer drafted it. Ambiguities should only be construed against the drafter when other means of construction fail and the intent of the parties cannot be ascertained from other sources. See State Farm Mutual Automobile Insurance Co. v. Esswein, 43 S.W.3d 833, 842 (Mo.App. E.D.2000); Aluminum Products Enterprises, Inc. v. Fuhrmann Tooling and Manufacturing Co., 758 S.W.2d 119, 124 (Mo.App. E.D.1988). Here, the parties own testimony provides insight to their intent.

Husband testified that the $800 monthly payment was Wife’s part of his monthly pension; but he also testified that he believed that it was for maintenance and did not anticipate that those payments would last forever. On the other hand, 'Wife testified that the $800 monthly payment was never intended to be maintenance and was, instead, a property settlement. There was also conflicting testimony about the meaning of handwritten notes Husband made during the parties’ negotiations, which were given to Wife’s lawyer before the agreement was drafted. The ambiguity in this agreement cannot be resolved without resolving the conflicting testimony, and that requires an assessment of the parties’ credibility. We defer to the trial court to make that determination, as it is in a better position than we are to do so. See United Siding Supply, Inc. v. Residential Improvement Services, Inc., 854 S.W.2d 464, 469 (Mo.App. W.D.1993). Since the trial court implicitly found no ambiguity and relied solely on the language of the agreement, as incorporated into the separation decree, it had no reason to resolve the ambiguity by reference to the parties’ testimony. We remand so that the trier of fact can determine the parties’ intent. See, e.g., Board of Education, 134 S.W.3d at 695 (finding ambiguity, reversing summary judgment and remanding to trial court).

III. CONCLUSION

The judgment is reversed, and the- case is remanded to the trial court for further proceedings consistent with this opinion.

GEORGE W. DRAPER III, C.J., concurring.

LAWRENCE G. CRAHAN, J., dissenting.

LAWRENCE G. CRAHAN, Judge,

dissenting.

I respectfully dissent. Viewed in context, I do not find the separation agreement to be ambiguous. The agreement calls for an initial payment of $400 per month in child support and $400 per month in maintenance. These payments would cease upon Husband’s retirement or severance of service from the St. Louis City Fire Department, when wife was to begin receiving her marital interest in Husband’s pension, which amounted to $800 per month. Upon receipt of such funds, Wife’s inability to fully provide for her needs would presumably cease and there would no longer be any need for maintenance.

Any other construction of the agreement would render it unconscionable. The agreement expressly provides that the $800 payment Wife was to receive from the St. Louis City Fire Department was “as settlement of [Wife’s] marital interest in his pension.” As the majority acknowledges, it is improper to classify the distribution of one spouse’s interest in a civil service pension as maintenance. In re Marriage of Burns, 903 S.W.2d 648, 652 (Mo.App.1995). Although the decision in Peaslee v. Peaslee, 844 S.W.2d 569, 571 (Mo.App.1992), can be read to suggest that the court is bound by a misclassification of property division as maintenance if that was the parties’ intent, this dicta was not essential to the court’s ultimate holding. The court did not find that the pension benefits misclassified as maintenance were modifiable. The parties had agreed that child custody, visitation, support and statutory maintenance were modifiable. Id. at 570. The court ultimately held that modification of the pension benefits was expressly precluded by the terms of the separation agreement. Id. at 572.

Allowing the parties’ misclassification of a marital interest in pension benefits as maintenance to render that interest modifiable would, as a matter of law, violate public policy and render the agreement unconscionable. It would violate public policy because neither the dissolution court nor this court would be able to evaluate the reasonableness of a division of marital property dependent upon future, unspecified events. Surrender of marital interests in property in exchange for less than a sum certain is unconscionable.

Although I would affirm the judgment, I note that nothing in the majority opinion compels a different result on remand. The error identified by the majority is the trial court’s conclusion that the misclassified marital interest in Husband’s pension was not modifiable as a matter of law. There is, however, ample evidence to support a finding that modification was also contrary to the parties’ intent. Nothing in the majority opinion precludes such a finding on remand.

For the foregoing reasons, I would affirm the judgment.

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

        . Those handwritten notes appear to have been admitted into evidence at the hearing on Husband’s' motion to modify, but have not been filed with this Court.


text:
    In the Interest of D.P.
    No. ED 83875.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    N. Scott Rosenblum, Stephen R. Welby, Clayton, MO, for appellant.
    Carolyn M. Whitehorn, St. Louis, MO, for respondent Juvenile Officer.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

D.P. appeals from the trial court’s judgment finding him guilty of statutory sodomy in the first degree, in violation of Section 566.062.1, RSMo 2000, and subjecting him to the provisions of Section 211.031.1(2). D.P. argues the trial court (1) erred in conducting the hearing pursuant to Section 491.075 without the presence of D.P.’s counsel; (2) committed plain error in admitting the three-year old victim’s hearsay statements without making a proper finding under Section 491.075; and (3) erred in finding D.P. committed the offense of statutory sodomy in the first degree.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The trial court’s judgment is affirmed pursuant to Rule 84.16(b). The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . All subsequent statutory references are to RSMo 2000.


text:
    James Scott MURPHY, Appellant, v. Donald ROPER, et al., Respondent.
    No. ED 84447.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2004.
    Rehearing Denied Feb. 9, 2005.
    James S. Murphy, Mineral Point, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

James Scott Murphy (Murphy) appeals from the trial court’s denial of his petition for writ of mandamus against Donald Roper, Superintendent of Potosi Correctional Center, and Sharon Glove, Records Officer. Murphy sought an order of mandamus to compel the Missouri Department of Corrections to credit him with 497 days of jail-time credit to be applied against a ten-year sentence for robbery in the first degree, Section 569.020, RSMo 1978.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).