author: PAUL M. SPINDEN, Judge.

text:
    David K. RHODUS, Respondent, v. Leslie R. McKINLEY, Appellant.
    Nos. WD 57133, WD 57289.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2000.
    Application for Transfer Denied May 30, 2000.

      See also 972 S.W.2d 557.

      Richard Koury, II, Independence, for appellant.
    David Holdsworth, Liberty, for respondent.
   PAUL M. SPINDEN, Judge.

David K. Rhodus appeals the circuit court’s judgment dividing marital property in its decree dissolving his marriage to Leslie R. McKinley. McKinley cross-appeals the circuit court’s valuation of bank accounts and the award of attorney fees to Rhodus. We affirm the circuit court’s judgment in part and reverse in part.

On September 22, 1995, Commissioner Michael W. Walker issued a recommended judgment to the circuit court. Rhodus filed a motion for rehearing in circuit court. On February 14, 1996, Commissioner Walker “reopened” the case to reconsider division of the couple’s property and Rhodus’ request for attorney fees. On December 30, 1996, Commissioner Walker entered a recommended order awarding four items of property to McKinley and awarding $3100 and attorney fees of $20,-506.78 to Rhodus. The circuit court issued judgments in which it adopted and confirmed Commissioner Walker’s decisions of September 22, 1995, and of December 30, 1996. Rhodus and McKinley file cross-appeals.

Although we are doubtful that a family court commissioner has authority to “reopen” a case to grant rehearing once the circuit court has adopted and confirmed the commissioner’s findings and recommendations, we do not address the issue in this case. The circuit court, which did have authority to grant rehearing, adopted Commissioner Walker’s second decision after the rehearing as its own when the circuit court still had jurisdiction.

In reviewing the circuit court’s judgment, we recognize that the circuit court has broad discretion in dividing marital property. We will disturb the circuit court’s decisions in dividing marital property only when they are so “heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.” Allen v. Allen, 961 S.W.2d 891, 893 (Mo.App.1998) (quoting Dodson v. Dodson, 904 S.W.2d 3, 6 (Mo.App.1995)). The circuit court’s obligation is to divide the marital property fairly according to the factors enumerated in § 452.330.1. Carter v. Carter, 940 S.W.2d 12, 16 (Mo.App.1997).

Rhodus first disputes the circuit court’s decision that his using $53,500 from the sale of calves to “pay down” a debt of a cattle and grain business created “a $53,-500 marital interest in [Rhodus’] cattle business.” Rhodus does not contest that he used the proceeds from the 1995 sale of calves to discharge $53,500 of the business’ debt or that the calves sold were marital property. Central to his complaint is that he did not realize a profit from the gross sale proceeds, so, he argues, “the award of the ‘pay down’ in the amount of $53,500 to [Rhodus] as marital property was an error which actually penalizes [Rhodus] for operating his business.” His point is without merit.

Section 452.330.2 defines marital property as “all property acquired by either spouse subsequent to the marriage.” Calves born to cattle owned as separate property by a husband or wife should be deemed to be property acquired subsequent to marriage. Elder v. Elder, 824 S.W.2d 520, 521 (Mo.App.1992); In re Marriage of Williams, 639 S.W.2d 236, 237 (Mo.App.1982). Because the calves were produced and sold after Rhodus’ marriage to McKinley, the circuit court correctly deemed them to be marital property.

That the business was not profitable is of no consequence. Rhodus used money that he held jointly with McKinley to pay a business debt. To the extent that the business remained his separate property, as Rhodus maintains, his using jointly-held money to pay a business debt, in effect, gave McKinley an interest in the business.

Rhodus asserts that the circuit court treated the business as marital property. We disagree. By applying all of the calf sale’s proceeds to pay his business debt, Rhodus used marital property to pay a nonmarital debt. If property acquired before marriage is subject to a loan, “the property becomes marital property to the extent marital funds are used to pay off the loan.” Mika v. Mika, 728 S.W.2d 280, 282 (Mo.App.1987). The circuit court found that Rhodus created a marital interest in his business to the extent that he used marital funds to increase the value of his separate property. The payment erased $53,500 of his business debt and increased his business’ value by the same amount. The circuit court did not err by including the payment in his share of marital property and in ordering him to execute a promissory note to McKinley for her share of the $53,500.

Rhodus complains in his next point that the circuit court included in the couple’s marital property the proceeds from two cows belonging to McKinley because he used the proceeds to cover the costs of rearing McKinley’s calves. For the same reason as the previous point—that calves born to cows separately owned by a spouse after marriage should be deemed marital property—we find no merit in his contention.

Rhodus next contends that the circuit court erred in designating “[McKinley’s] herd” (the cows that had not been sold before the trial) as containing 19 cows, nine heifers, seven steers, and 16 calves. Rhodus maintains that he sold the nine heifers and seven steers at the Mo-Kan sale barn; therefore, the decree already accounted for them as a separate item. In December 1994, James Hertzog appraised the cattle before the sale and the cattle remaining at Rhodus’ farm and testified:

[COMMISSIONER WALKER]: Now, first of all, in your appraisal, which is [E]xhibit 21, you list 19 four to five year old cows, 9 heifers, and 7 steers.
JAMES HERTZOG: Uh huh.
Q: And you were asked the question, [“H]ow many of those were sold on [E]x-hibit 7,[”] and you said[, “A]ll of them.[”]
I thought the sale on [E]xhibit 7[was] calves out of those 19 four to five year old cows.
A: No, I[—]well, maybe I didn’t make myself clear; all the calves were sold.
Q: All right.
A: And two cows.
Q: These that were sold on [E]xhibit 7 are calves out of these 19 cows?
A: Corrects a]nd they’re itemized out down there with 9 heifers and 7 steers.

Along with other evidence, this evidence supported Rhodus’ claim that the calves sold at Mo-Kan sale barn in December 1995 were the nine heifers and seven steers to which Hertzog referred in the appraisal. They did not remain in McKinley’s herd of cattle at trial, nor did the two cows also sold at the sale barn. Rhodus stipulated to the existence of 17 of McKinley’s cows on his property at the time of trial, and that confirms that the circuit court overstated the number of livestock remaining in McKinley’s herd. The decree, in effect, credited these calves twice in Rhodus’ share of marital property. The circuit court’s judgment as to the value of McKinley’s remaining herd of cattle was against the weight of the evidence, so we reverse it.

Hertzog estimated that the remaining 17 cows’ value with their calves was $700 a pair. We remand this case to the circuit court with instruction that it reduce the value of “[McKinley’s] herd” from $20,895 to $11,900, and that it reduce Rhodus’ promissory note to McKinley by $8995 to $33,205.

Rhodus’ next point is that the circuit court erred in not determining the value of McKinley’s “gain-sharing plan and production incentive plan,” which the circuit court awarded to McKinley. This point has no merit because Commissioner Walker’s recommended judgment of December 30, 1996, assigned a value of $8716.73 to the production incentive plan and $15,492.20 to the gain-sharing plan.

We assume that Rhodus objects to the valuations because Commissioner Walker set the values based on evidence of the bonuses’ worth on dates other than the date of trial. “Because of the untold number of ‘pension plans’ which appear to have their own singular and unique requirements for meeting ‘vesting’ and ‘maturing’ provisions, it is imperative that trial courts be authorized to apply a flexible approach to accommodate the particular facts of each case.” Kuchta v. Kuchta, 636 S.W.2d 663, 665 (Mo. banc 1982). The two bonus plans in question share with pensions the difficulty of assigning a value to assets that accrue over time but are not paid until the end of a preordained period. To receive a gain-sharing bonus, McKinley had to remain employed through December 31, 1995, and the amount of the bonus was based on a percentage of “the firm’s net operating profit.” The quarterly bonus was a percentage of the fees she billed over a certain threshold each quarter. The parties presented evidence attempting to establish the prorated values of the bonuses that McKinley was entitled to on August 18,1995, the date of trial.

The circuit court, as recommended by Commissioner Walker, used McKinley’s actual bonuses, paid on September 30, 1995, and on December 31, 1995, as the values for the distribution of property. It stated that those amounts were “the closest valuation in time to the hearing date[.]” The circuit court classified the portions of the quarterly bonus and profit-sharing bonus accrued through August 18, 1995, as marital property. It awarded both bonuses to McKinley, along with other items of marital property. The parties presented sufficient evidence to permit a “fair and accurate” valuation of the marital property and enough evidence for a meaningful review of that division on appeal. Spauldin v. Spauldin, 945 S.W.2d 665, 669 (Mo.App.1997). We find no abuse of the circuit court’s broad discretion in assigning values to and dividing marital property. Mehra v. Mehra, 819 S.W.2d 351, 357 (Mo. banc 1991).

McKinley appeals the circuit court’s awarding $20,506.78 in attorney fees to Rhodus. She first contests the timeliness of Rhodus’ motion for attorney fees, and she emphasizes the inequity of the $20,-506.78 award in comparison to the $3100 judgment to Rhodus recommended by Commissioner Walker after the rehearing.

Rhodus filed a motion for attorney fees on March 10, 1996. This filing was within the 30-day limit imposed by Rules 73.01(a)(5) and 75.01. The circuit court had not entered a final judgment in the case when Commissioner Walker reopened the case to hear additional evidence as to the values of four items of property. A recommendation to order the payment of attorney fees is within a commissioner’s powers in matters assigned to the family court division of the circuit court, which include “[a]ll actions or proceedings governed by chapter 452.” Section 487.080, RSMo 1994.

McKinley does not cite, nor do we find, any controlling authority for the argument that the attorney fees awarded to Rhodus must be proportionate to Rhodus’ recovery. She contends that, because proceedings from which the attorney fees accumulated resulted in a judgment for Rhodus of only $3100, awarding him $20,506.78 for attorney fees constituted an abuse of discretion.

An abuse of discretion occurs when the order awarding attorney fees is against the logic of the circumstances, arbitrary, and unreasonable. Crawford v. Crawford, 986 S.W.2d 525, 533 (Mo.App. 1999). McKinley’s argument that an award for fees must be proportional to the recovery those fees gain is illogical. Fees are incurred regardless of the result they achieve.

The General Assembly set the standard for awarding attorney fees in divorce actions in § 452.355.1. That statute states:

The court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney’s fees, including sums for legal services rendered

The circuit court is an expert in the necessity, reasonableness, and value of fees. Crews v. Crews, 949 S.W.2d 659, 671-72 (Mo.App.1997). Commissioner Walker derived the amount of the recommended award from detailed records entered as evidence of the fees Rhodus’ counsel incurred in connection with the motion to vacate judgment and subsequent hearings.

As to the issues that the circuit court must consider pursuant to § 452.355, we find no abuse of discretion. Evidence of the parties’ resources was varied and highly contested. Commissioner Walker recommended a finding that McKinley “did not accurately disclose” the values of bank accounts, a pension plan, and two bonus plans at trial. Among the factors to consider in awarding attorney fees is the extent to which the other party’s conduct required the expense of attorney fees or unnecessarily engendered increased litigation expenses. T.B.G. v. C.A.G., 772 S.W.2d 653, 655 (Mo. banc 1989). McKinley does not argue that she lacks financial resources to pay the fees. For these reasons, we affirm the circuit court’s award of $20,506.78 to Rhodus for attorney fees.

McKinley also asserts that the circuit court did not value and distribute marital assets, including bank accounts held by Rhodus and his interests in hay, crops, and feed at his family farm. The point relied on refers only to undistributed bank accounts. Issues raised only in the argument portion of the brief are not preserved for review. Lush v. Woods, 978 S.W.2d 521, 524 (Mo.App.1998).

The circuit court awarded Rhodus $4000 as his marital interest in “[h]is Kearney Trust personal checking account.” McKinley argues that the account’s value was actually $6758 and that Rhodus owned two other accounts which the circuit court did not distribute. McKinley requests that we remand the case for the circuit court to determine the values of the accounts and to distribute them. We decline.

McKinley attempted to introduce evidence regarding the bank accounts at an evidentiary hearing on February 9, 1996. When McKinley began to cross-examine Rhodus about the funds in question, Commissioner Walker sustained an objection to the evidence, stating that “the issues are framed by the pleadings. There is no pleading requesting affirmative relief on behalf of [McKinley].” McKinley made an offer of proof concerning the accounts, but we find nothing in her offer of proof establishing that the accounts existed on February 9, 1996, and what their balances were.

Should McKinley have evidence of undistributed property, the proper procedure is a separate suit in equity. Chrun v. Chrun, 751 S.W.2d 752, 755 (Mo. banc 1988). We, therefore, do not review the merits of the point.

PATRICIA BRECKENRIDGE, Presiding Judge, concurs. ALBERT A. RIEDERER, Judge, was a member of the panel during oral arguments but resigned from the court before it issued this opinion.

      .This is the second time for this court to consider this appeal. We dismissed the first appeal sua sponte on the ground that we lacked jurisdiction because the circuit court had not entered a judgment. Rhodus v. McKinley, 972 S.W.2d 557 (Mo.App.1998).

      . Unless otherwise noted, all citations of statutes refer to the 1998 Supplement to the Revised Statutes of Missouri.

      . Overruled on separate grounds by Cates v. Cates, 819 S.W.2d 731, 736 (Mo. banc 1991).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ricardo ELLIOTT, Appellant.
    No. ED 75864.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2000.
    Application for Transfer Denied May 30, 2000.

      Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Ricardo Elliott (“Defendant”) appeals a judgment finding him guilty of one count of assault in the first degree, section 565.050 RSMo (1994), one count of attempted robbery in the first degree, section 564.011 RSMo (1994), and two counts of armed criminal action, section 571.015 RSMo (1994). Defendant claims the trial court erred in overruling his Batson objections to the state’s peremptory strike of two African-American venirepersons. Defendant also claims the trial court error in permitting the prosecutor, during closing arguments, to denigrate the tactics of defense counsel and dispute the credibility of an alibi witness. Finally, defendant claims the trial court committed plain error in permitting the introduction of inferential hearsay during a police officer’s testimony.

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Lonnie SNELLING, Appellant, v. BEST BUY, INC., Respondent.
    No. ED 76632.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 6, 2000.
    Application for Transfer Denied May 30, 2000.
    Lonnie Snelling, St. Louis, pro se.
    Wilbur L. Tomlinson, Armstrong Teasdale, LLP, St. Louis, for respondent.
    Before: RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Lonnie Snelling (Plaintiff) appeals from the entry of summary judgment in favor of Best Buy, Inc. (Defendant), in his action against Defendant claiming fraudulent misrepresentation and unlawful merchandising practices in connection with the sale of a television set Plaintiff purchased at one of Defendant’s stores approximately twelve years ago. Plaintiffs suit alleged that at the time of purchase in 1988 he was told by a sales representative the TV was “a new arrival” in the store, but then he discovered, approximately ten years later, that the TV was manufactured in 1986. We have reviewed the briefs of the parties and the record on appeal. No error of law appears. The summary judgment motion and response thereto support the finding that there is no genuine issue of material fact and that Defendant is entitled to judgment as a matter of law. An opinion would have no precedential value. The judgment is affirmed. Rule 84.16(b).

      . Defendant’s motion to dismiss the appeal is denied. We have appellate jurisdiction pursuant to § 512.190 RSMo 1994, in that Plaintiff’s petition claimed damages exceeding five thousand dollars.


text:
    Anthony WOOTEN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76047.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant, Anthony Wooten, (“appellant”), appeals the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Appellant seeks to vacate his convictions and sentences for first-degree assault, section 565.050, RSMo 1994, armed criminal action, section 571.015, two counts of unlawful use of a weapon, section 571.030, and possession of a controlled substance, section 195.202, for which appellant was sentenced to a total term of thirty years in prison. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcripts, and find the judgment is not clearly erroneous. 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,


text:
    George LEWIS II, Plaintiff/Respondent, v. Donald BENSON, Jr., Cross-Claimant/Respondent, and Steven Hatch, Cross-Claimant/Respondent.
    No. ED 76048.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2000.
    Application for Transfer Denied May 30, 2000.

      Larry D. Hale, James Heckel, St. Louis, for appellant.
    Michael D. Stokes, Peter J. Dunne, St. Louis, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Donald Benson, Jr. (“Benson”) appeals a judgment entered on a jury verdict from the Circuit Court of St. Louis City finding him liable for injuries suffered by George Lewis, II (“Lewis”) and Steven Hatch (“Hatch”) in an automobile accident. Benson claims the trial court erred in overruling his objection to the submission of a verdict directing jury instruction on failure to maintain a proper lookout. Benson also claims this instruction should not have been submitted on behalf of Lewis as Lewis’s testimony contradicted the failure to maintain a careful lookout as a theory of the case. Benson also asserts the trial court erred in not granting his motions for a judgment notwithstanding the verdict, remittitur, and a new trial.

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

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


text:
    Philip Maurice SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76008.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2000.
    Application for Transfer Denied May 30, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Philip Smith (Movant) appeals from the judgment denying his Rule 24.085 motion for post-conviction relief without an evi-dentiary hearing. Movant contends the motion court erred in denying his claims that: (1) his guilty plea was uninformed and involuntary because neither counsel nor the court advised him of the applicable 40% minimum prison term he would be required to serve pursuant to Section 558.019 RSMo 1994; and (2) his counsel was ineffective, and his plea was rendered uninformed and involuntary, in that counsel failed to seek a mental evaluation based on Movant’s history of schizophrenia to investigate his capacity to understand the proceedings and a possible defense of mental defect.

We have reviewed the briefs of the parties and record on appeal, and we conclude that the motion court’s determination is not clearly erroneous. Rule 24.035(k). An extended opinion would have no prece-dential value. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Willie JOHNSON, Defendant/Respondent.
    No. ED 75585.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.
    Application for Transfer Denied May 30, 2000.
    Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Pope Butler, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Defendant appeals from the judgment entered on a jury verdict finding him guilty of one count of robbery in the first degree, in violation of Section 569.020 RSMo (1994), and one count of armed criminal action, in violation of Section 571.015 RSMo (1994). The trial court sentenced him to ten years imprisonment on the murder count and three years imprisonment on the armed criminal action count, the terms to be served consecutively-

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

The judgment is affirmed in accordance with Rule 30.25(b).


author: PAUL M. SPINDEN, Presiding Judge.

text:
    Andrew J. SCHULTZ, Jr. and Jacqueline M. Schultz, Appellants, v. HEARTLAND HEALTH SYSTEM, INC., Raman J. Patel, Physicians Acute Care Services, Inc., William F. Rippe, and Specialists of Internal Medicine, Inc., Respondents.
    No. WD 56918.
    Missouri Court of Appeals, Western District.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2000.
    Application for Transfer Denied May 30, 2000.

      Bill McIntosh, Kansas City, for Appellants.
    Wendell Koerner, Randa Rawlins, Bill Lynch, Kansas City, for Respondents.
   PAUL M. SPINDEN, Presiding Judge.

Andrew Schultz contends that the circuit court erred in overruling his motion for new trial because, he asserts, a juror intentionally did not disclose her prior litigation experience during voir dire. He also appeals the circuit court’s exclusion of two expert witnesses’ opinion testimony and the court’s permitting certain comments during closing arguments. The first point is dispositive. We reverse and remand to the circuit court for a new trial.

Schultz sued Heartland Health Systems for its nurses’ allegedly negligent failure to advise a doctor of the development of certain symptoms during Schultz’s hospital stay. Schultz also sued doctors Raman J. Patel and William F. Rippe for allegedly negligent failure to consult a surgeon. Schultz contended that his post-surgery complications were more severe because the doctors did not diagnose his condition as appendicitis before his transfer to a smaller hospital. A jury ruled for Heartland Health Systems, Patel, and Rippe. Schultz appeals.

Schultz argues that venire person Wane-ta Reital intentionally failed to disclose her involvement in two civil lawsuits when asked about prior litigation experiences during voir dire. He claims that the circuit court abused its discretion in finding that Reital’s nondisclosure was unintentional and not prejudicial. We agree.

During voir dire, William McIntosh, Schultz’s attorney, said to the venire panel:

With regard to this next question, I need to ask you, I’ll give you a little bit of a definition!) A] lawsuit involves any action in which one party invokes the judicial process or the court system, whether it’s divorce, increases or decreases in child support payments, custody fights, personal injuries, bankruptcy cases, suit[s] on unpaid credit card amounts or unpaid bills, suits on money loans that have not been paid, landlord-tenant actions for unpaid rent or possession or damage to premises or unrefund-ed security deposits, small claims actions, even Social Security matters that went to court, even traffic tickets.
I don’t want to hear about traffic tickets, divorce, child custody or child support cases, but excluding just those things, traffic tickets, divorce, child custody, and child support cases, have any of you ever been involved in legal proceedings?

Reital did not respond to this question or other follow-up questions seeking information about the panel’s experiences with litigation.

At an evidentiary hearing after the trial, Reital acknowledged that she and her husband had filed for bankruptcy less than a year before the trial and that the case was pending. They retained and met with an attorney, she said, and, 10 months before the trial, they went to court for a first meeting of the creditors where they were placed under oath. The day before the Schultz trial began, Reital filed a motion to suspend payment on the bankruptcy case.

Reital indicated that she heard and understood the voir dire question regarding prior litigation experience. She testified that she heard two other members of the venire give information about bankruptcies. She said that she did not respond to the question because:

I assumed that there [were] two or three different types of bankruptcies. Some of them went to court and some didn’t. Like I said, we walked into a room and there was a gentleman sitting at a table with a whole bunch of notebooks, and five minutes later we left. I mean, there was no judge, there was no nothing. So I just assumed it was not a court. It was just, you know, a meeting.

Although other potential jurors disclosed information about legal proceedings that never went to court, Reital believed that her bankruptcy case was different because she did not recognize that she had been to court or that the question did not require a court appearance.

A juror’s nondisclosure can be intentional or unintentional:

Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable ... Unintentional nondisclosure exists, where, for example, the experience forgotten was insignificant or remote in time, or where the venireman reasonably misunderstands the question posed.

Williams v. Barnes Hospital, 736 S.W.2d 33, 36 (Mo. banc 1987). Whether a venire person’s nondisclosure is intentional is significant. We infer bias and prejudice from a juror’s intentional withholding of material information. Groves v. Ketcherside, 939 S.W.2d 393, 395 (Mo.App.1996). “Questions and answers pertaining to a prospective juror’s prior litigation experience are material.” Brines v. Cibis, 882 S.W.2d 138, 140 (Mo. banc 1994).

Under the Williams test, Reital’s nondisclosure was intentional. The question expressly included bankruptcy cases. She admitted that she remembered the pending bankruptcy petition, but she assumed several facts, which, in her view, eliminated her experiences from those sought by Schultz’s attorney. This conscious decision not to respond effectively allowed her to determine her qualification “rather than providing the information sought so that the attorneys could make their strikes in an informed manner.” Rife v. State Farm Mutual Automobile Insurance Company, 833 S.W.2d 42, 43 (Mo.App.1992). Her contention that she did not comprehend that her bankruptcy was included within McIntosh’s question was unreasonable, especially in light of other jurors’ responses disclosing legal proceedings that had not been to “court.”

We view Reital’s nondisclosure as intentional; therefore, the circuit court erred in dismissing Schultz’s motion for new trial. We reverse the circuit court’s judgment and remand the case for a new trial.

HAROLD L. LOWENSTEIN, Judge, and ROBERT G. ULRICH, Judge, concur.


author: ROBERT G. ULRICH, Judge.

text:
    STATE of Missouri, Respondent, v. Matthew R. HIRT, Appellant.
    No. WD 56763.
    Missouri Court of Appeals, Western District.
    Feb. 15, 2000.
    Motion for Transfer to Supreme Court Denied March 28, 2000.
    Application for Transfer Denied May 30, 2000.

      Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.
    Jermiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SPINDEN, P.J., LOWENSTEIN, J. and ULRICH, J.
   ROBERT G. ULRICH, Judge.

Matthew Hirt appeals his conviction following jury trial for leaving the scene of a motor vehicle accident, section 577.060, RSMo 1994. Mr. Hirt contends that the trial court erred in overruling his motion for acquittal because insufficient evidence was presented to convict him of leaving the scene of an accident in that Mr. Hirt, after driving away from the location where he struck and apparently killed a pedestrian, presented himself to the Sheriffs department one hour after the accident. The judgment of the trial court is affirmed.

Facts

On January 24, 1998, Mr. Hirt, driving a red Pontiac, struck a pedestrian walking alongside the road while Mr. Hirt was attempting to pass his neighbor’s vehicle traveling along the road. The pedestrian flew up into the windshield, rolled over the top of the car, and landed alongside the road in the ditch. Mr. Hirt did not stop his vehicle but continued into the ditch, hit a metal culvert pipe, traveled along the ditch, reentered the roadway from a driveway 165 feet south of the impact and continued driving down the road. Mr. Hirt drove to his grandmother’s residence, asked to use the telephone and then walked a short distance to his parents’ home. He was then driven to the Saline County Sheriffs Department by his father, arriving at the police station approximately one hour after the accident.

Mr. Hirt was subsequently charged by information, as a prior offender, with leaving the scene of a motor vehicle accident, section 577.060, RSMo 1994, and assault in the second degree, section 565.060, RSMo 1994. The jury found Mr. Hirt guilty of the offense of leaving the scene of a motor vehicle accident and acquitted him of the offense of assault in the second degree. He was sentenced to five years imprisonment. This appeal followed.

I. Sufficiency of the Evidence

Mr. Hirt’s first point on appeal is that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because insufficient evidence was presented to convict him of the crime of leaving the scene of a motor vehicle accident. He claims he had a legal defense to the offense, having presented himself to the Saline County Sheriffs Department after the accident in compliance with section 577.060, RSMo 1994.

In reviewing the sufficiency of the evidence, appellate review is limited to a determination of whether sufficient evidence was presented from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). Also, in testing the sufficiency of the evidence on defendant’s motion for judgment of acquittal, the evidence must be viewed in the light most favorable to the State and evidence to the contrary must be rejected. State v. Cochran, 496 S.W.2d 825, 827 (Mo.1973).

Section 577.060, RSMo 1994, provides:

A person commits the crime of leaving the scene of a motor vehicle accident when being the operator or driver of a vehicle on the highway ... and knowing that an injury has been caused to a person ... due to his culpability or to accident, he leaves the place of the injury, damage or accident without stopping and giving his name, residence, including city and street number, motor vehicle number and driver’s license number, if any, to the injured party or to a police officer, or if no police officer is in the vicinity, then to the nearest police station or judicial officer.

§ 577.060.1, RSMo 1994.

This statute has been construed by the Supreme Court as “requiring a driver, after injury or property damage, to stop at once and give the required information to the injured party or to a police officer if one is present.” Cochran, 496 S.W.2d at 826. Only when no police officer is present and the other party is badly injured or for some reason is unable to receive the information may the driver leave the scene and go to the nearest police station or judicial officer. Id. at 826-27. The statute by its plain language imposes two separate requirements on a driver knowing that an injury has been caused due to his culpability or accident. Those requirements are: (1) to stop, and (2) to give his “name, residence, including city and street number, motor vehicle number, and driver’s license number, if any, to the injured party or to a police officer.” § 577.060.1, RSMo 1994. The statutory language permitting the driver to go to the nearest police station or judicial officer applies only to the requisite giving information and not to the stopping requirement.

The Missouri Supreme Court has declared that the purpose of the statute is: (1) to prevent those controlling and operating automobiles from concealing their identity by immediate flight from the scene of the accident; (2) to obtain information which will readily identify him; (8) to prevent drivers from evading prosecution by escaping before their identity can be determined; and (4) to sufficiently establish the identity of the parties so that they and police authorities may know with whom to deal in matters growing out of the accident. State v. Daugherty, 358 Mo. 734, 216 S.W.2d 467, 474 (1949) (citations omitted). Requiring a driver to stop at the scene of an accident in which the driver was involved to determine the ability of the injured party to receive information or the absence of a police officer at the scene supports the stated purposes of the statute. By stopping, one whose vehicle is involved in an accident can determine whether assistance is required and can respond to the demands imposed by the circumstances. Secondly, the person operating a motor vehicle involved in an accident will more likely be identified by stopping to determine whether a victim can receive information. The thrust of the statute is to compel motorists involved in vehicular accidents to stop and report information to facilitate identification and investigation of the circumstances of the accident. The General Assembly has assessed a criminal penalty in its determination to facilitate identification of the operator of a vehicle involved in an accident.

In this case, undisputed evidence was presented that Mr. Hirt did not stop at the scene of the accident but continued driving after he struck the pedestrian. He made no attempt to determine whether the victim could receive information or whether a police officer was in the vicinity. Mr. Hirt’s belief as to the pedestrian’s ability to receive information based solely on the impact, without stopping to investigate, is not sufficient to permit Mr. Hirt to fail to stop at the accident scene and to proceed to the nearest police station. Evidence that Mr. Hirt failed to stop to ascertain whether the victim could receive information or whether a police officer was in the vicinity was sufficient to support the conviction; therefore, the trial court did not err in overruling Mr. Hirt’s motion for judgment of acquittal. Point one is denied.

II. Verdict Director

Mr. Hirt asserts as his second point on appeal that the trial court erred in submitting the state’s verdict director for leaving the scene of an accident and refusing to use Mr. Hirt’s proposed verdict director instead because the verdict director submitted did not allow the jury to consider whether Mr. Hirt complied with the statute by giving information to law enforcement authorities at the nearest police station. Mr. Hirt argues that submission of the state’s verdict director denied him the legal defense of presenting himself and the requisite information to authorities at the nearest police station in compliance ■with section 577.060, RSMo 1994.

The state’s verdict director, patterned after MAI-CR3d 331.10, using option 5 in the Fourth and Fifth paragraphs, was submitted to the jury:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 24, 1998, in the County of Saline, State of Missouri, the defendant operated a motor vehicle on a street traveled by the public at or near High Street near the intersection of Missouri State Highway 41 in the city of Miami, in the County of Saline, State of Missouri, and
Second, that while so doing the defendant was party to an accident that caused physical injury to another person, and
Third, that defendant knew or was aware that such physical injury had occurred, and
Fourth, that at the time of the accident or shortly thereafter the injured person was present at the scene of the accident and was able to receive information from the defendant, and Fifth, that defendant left the scene of the accident without stopping and giving sufficient information by which the defendant could be readily identified and located to the injured person,
Then you will find the defendant guilty under Count I of leaving the scene of a motor vehicle accident....

MAI-CR3d 331.10 (emphasis added). Mr. Hirt objected to this instruction and proposed that the Fourth and Fifth paragraphs be replaced with option 8 of MAI-CR3d 331.10:

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

MAI-CR3d 331.10 (emphasis added). The trial court concluded that both the state’s and Mr. Hirt’s proposed verdict directors were supported by the evidence and within the scope of the charge of leaving the scene of the accident as required by Note on Use 3 to MAI-CR3d 331.10. The court ruled that it would not submit Mr. Hirt’s verdict director in lieu of the state’s but would submit both verdict directors to the jury as alternative instructions. Mr. Hirt decided to not submit his proposed verdict director as a separate instruction under those circumstances. Mr. Hirt argues that the verdict director submitted did not allow the jury to consider whether he complied with section 577.060, RSMo 1994, by going to the nearest police station after leaving the scene of the accident.

An appellate court may not reverse for alleged instructional error unless there is, in fact, an error in submitting the instruction and prejudice results to the defendant. State v. Taylor, 944 S.W.2d 925, 936 (Mo. banc 1997); Rule 28.02(f). An instruction should not be given if no evidence was presented to support it. State v. Broum, 958 S.W.2d 574, 580 (Mo. App. W.D.1997)(citing State v. Daugherty, 631 S.W.2d 637, 639 (Mo.1982)). Instructions must be supported by substantial evidence and its reasonable inferences. Id.

The trial court did not err in submitting the state’s verdict director (patterned after MAI-CR3d 381.10 option 5) in lieu Mr. Hirt’s verdict director (patterned after MAI-CR3d 331.10 option 8) because the defense of going to the nearest police station was not available to Mr. Hirt. The key portion of the verdict director, contained within both option 5 and option 8 to the Fifth paragraph of MAI-CR3d 331.10, requires that the defendant “left the scene of the accident without stopping and giving sufficient information.” In this case, evidence was presented to show that Mr. Hirt left the scene of the accident without stopping his vehicle to determine whether the victim was unable to receive information or whether a police officer was in the vicinity. Mr. Hirt could only have complied with the statute, and thus availed himself to the defense of going to the nearest police station, by first stopping at the scene of the accident to determine that the victim was unable to receive information and that no police officer was in the vicinity. Mr. Hirt’s subsequent trip to the police station an hour after the accident, after failing to stop at the scene to determine the status of the victim he struck, was not a defense to leaving the scene of a motor vehicle accident; therefore, the submission of the verdict director without the justification of giving the statutorily-required information to the authorities at the nearest police station or judicial officer did not deprive the jury of considering whether Mr. Hirt complied with the statute. Point two is denied.

III. Hearsay Objections

In his final point on appeal, Mr. Hirt contends the trial court erred in sustaining hearsay objections precluding Mr. Hirt from eliciting testimony from his grandmother that he asked to use her telephone to call an ambulance and testimony from his father that he stated, “Daddy, I killed Mr. Bean.” Mr. Hirt argues that his grandmother’s testimony was admissible as an exception to the hearsay rule as a statement of a present intention to do a future act. He also argues that his father’s testimony was not hearsay as it was not offered to prove the truth of the matter asserted.

Grandmother’s Testimony

Normally, an appellate court will not review evidence excluded by the trial court unless a specific and definite offer of proof had been made at trial. State Farm Mut. Auto. Ins. Co. v. DeCaigney, 927 S.W.2d 907, 911 (Mo.App. W.D. 1996). The offer must show three things: (1) what the evidence will be; (2) the purpose and object of the evidence; and (3) each fact essential to establishing the admissibility of the evidence. Id. When proffered evidence is denied admission, relevancy and materiality must be shown by specific facts sufficient in detail to establish admissibility to preserve the matter for appeal. Id.

Only in certain narrow circumstances is such an offer unnecessary. Elmahdi v. Ethridge, 987 S.W.2d 366, 371 (Mo.App. W.D.1999). Those circumstances exist when: there is a complete understanding, based on the record, of the excluded testimony; the objection is to a category of evidence, rather than to specific testimony; and the record reveals the excluded evidence would have helped the proponent. Id. Although narrative offers of proof are occasionally found to be adequate, the proper procedure involves putting the witness on the stand and propounding questions. DeCaigney, 927 S.W.2d at 911. Such a procedure allows the trial court to fully hear and understand the testimony, so as to be able to rule upon the admissibility of the evidence, and also preserves a record for appellate courts to review. Id. The offer must be more than a mere statement of the conclusions of counsel. Id.

At trial, defense counsel asked Mr. Hirt’s grandmother what appellant did when he arrived at her house. She replied that, “He asked if he could use the phone.” Opposing counsel objected and a discussion ensued. The trial court sustained the state’s hearsay objection. Defense counsel faded to make an offer of proof regarding what Mr. Hirt’s grandmother would have testified if permitted. In fact, defense counsel admitted, “Now, I don’t know if she’ll say to uses the - to call the ambulance or not because — .”

In this case, Mr. Hirt’s attorney made no offer of proof that Mr. Hirt’s grandmother would have testified that Mr. Hirt said to her that he was calling an ambulance or that she saw him dial the number for an ambulance. Absent an offer of proof, Mr. Hirt’s point was not preserved for appellate review.

Father’s Testimony

Mr. Hirt also contends that the trial court erred in sustaining the state’s hearsay objection to Mr. Hirt’s father’s testimony that Mr. Hirt stated, “Daddy, I killed Mr. Bean.” Mr. Hirt argues that his father’s testimony would not be hearsay as it was not offered to prove the truth of the matter asserted.

The trial court has broad discretion to admit or exclude evidence, and the appellate court will reverse only upon a showing of clear abuse of discretion. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997). A trial court will be found to have abused its discretion when a ruling is “clearly 'against the logic and circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Brown, 939 S.W.2d 882, 883-84 (Mo. banc 1997).

During direct examination, defense counsel asked Mr. Hirt’s father what he spoke to his son about when his son arrived at his house after the accident. Mr. Hirt’s father stated, “He came in - he said, ‘Daddy, I killed Mr. Bean.’” The state objected after the statement was made. The court sustained the state’s objection. The state did not request that the testimony be stricken or that the jury be instructed to disregard it. So, although the state’s objection to the question was sustained after the answer was given, Mr. Hirt’s father’s testimony “Daddy, I killed Mr. Bean,” was heard by the jury and the jury was not directed to disregard the testimony. The testimony, therefore, was still available for the jury’s consideration.

A hearsay statement is “any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.” State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997), cert. denied, 522 U.S. 871, 118 S.Ct. 186, 139 L.Ed.2d 125 (1997). In this case, the statement, “Daddy, I killed Mr. Bean,” was not offered to establish that Mr. Hirt had killed Mr. Bean but to show Mr. Hirt’s state of mind. Accordingly, the statement, “Daddy, I killed Mr. Bean,” was not hearsay, and the state’s hearsay objection was improperly sustained by the trial court.

However, although the court improperly sustained the state’s hearsay objection, Mr. Hirt has not shown that his right to a fair trial was prejudiced by the trial court’s sustaining the state’s objection. The jury heard Mr. Hirt’s father’s testimony and was not instructed to disregard it. Furthermore, Mr. Hirt’s belief that he killed Mr. Bean instantaneously at the scene, by itself, was not sufficient to justify his leaving the scene of the accident without stopping.

The judgment of the trial court is affirmed.

SPINDEN, P.J., and LOWENSTEIN, J. concur.

      . Although the statute requires the driver to stop, in State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 473 (1949), the Missouri Supreme Court stated that "we do not hold that the law required one who has had an accident to stop instantly, or within any certain number of feet of the place where the collision occurred.”

      . MAI-CR3d 331.10 Note on Use 3 provides that "[i]f more than one optional paragraph is supported by the evidence and is within the scope of the charge, each of the two optional paragraphs so supported and charged may be submitted by separate instructions.” MAI-CR3d 331.10.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    William G. SALMONS, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. WD 57013.
    Missouri Court of Appeals, Western District.
    Feb. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2000
    Application for Transfer Denied May 30, 2000.

      Nancy McKerrow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: Presiding Judge LOWENSTEIN, Judge LAURA DENVIR STITH and Judge RIEDERER.

      . After submission of this case, Judge Riederer retired from the court.

   HAROLD L. LOWENSTEIN, Judge.

After pleading guilty to the two felonies of manufacture of methamphetamine and possession of pseudoephedrine, Appellant filed a motion for post-conviction relief pursuant to Rule 24.035. Appellant claimed his constitutional rights were violated in that his convictions violated double jeopardy and he was denied effective assistance of counsel. At the heart of this motion is the argument that pseu-doephedrine is a necessary component in methamphetamine implying that one cannot commit the crime of manufacture of methamphetamine without first possessing pseudoephedrine.

I. FACTS

Appellant, William G. Salmons, was charged by information in lieu of indictment and plead guilty to the class B felony of manufacture of methamphetamine, in violation of § 195.211, RSMo Cum.Supp. 1998, and the class D felony of possession of pseudoephedrine with intent to manufacture methamphetamine in violation of § 195.246, RSMo Cum.Supp.1998. At the plea hearing, Appellant testified that he understood both of the charges and that he understood the rights he was giving up by entering his guilty pleas. Appellant also assured the court that he had no complaints about his legal representation.

In his motion for relief pursuant to Rule 24.035, Appellant alleged he had been convicted in violation of the constitutional prohibition against double jeopardy and that he had been denied effective assistance of counsel.

After finding Salmons was not entitled to an evidentiary hearing on the matter because the “files and records conclusively show[ed] that Movant [was] entitled to no relief,” the court entered judgment denying his motion for relief.

II. STANDARD OF REVIEW

On appeal from a denial of a motion for post-conviction relief, this court is limited to a determination of whether the findings and conclusions were clearly erroneous. Rule 24.035(k). The findings and conclusions “are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.” State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994).

ANALYSIS

A.

Appellant’s first claim of error is that his guilty pleas to the manufacture of a controlled substance and the possession of pseudoephedrine with intent to manufacture methamphetamine were involuntary and unknowing because his attorney failed to raise the objection that conviction of both these charges would violate Appellant’s double jeopardy rights. Appellant contends that all of the elements of the felony of possession of pseudoephedrine are contained in the felony of the manufacture of methamphetamine, and therefore, conviction for both violated Appellant’s double jeopardy rights under the Constitution.

“The Fifth Amendment, incorporated in and made applicable to the states by the Fourteenth Amendment,...provides that no one shall be ‘subject for the same offense to be twice put in jeopardy of life or limb.’ ” State v. McLemore, 782 S.W.2d 127, 128 (Mo.App.1989) quoting Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 28 L.Ed.2d 707 (1969). However, a defendant may be convicted of more than one offense based on the same conduct if the legislature intended to punish the conduct under more than one statute. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). To determine the intent of the legislature regarding cumulative sentences, initially the statutes under which the defendant was convicted are examined. State v. Villa-Perez, 835 S.W.2d 897, 903 (Mo. banc 1992).

Appellant was convicted of the manufacture of methamphetamine under § 195.211.1 which reads:

[I]t is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.

Additionally, Appellant was convicted of the possession of pseudoephedrine with the intent to manufacture methamphetamine under § 195.246.1 which reads:

It is unlawful for any person to possess...pseudoephedrine, its salts, optical isomers and salts of optical isomers with the intent to manufacture methamphetamine or any of its analogs.

The parties agree that neither of these statutes reveals whether the legislature intended to punish the same conduct under both statutes. Accordingly, Missouri’s general cumulative punishment statute, § 566.041, RSMo 1994, is applicable. It reads:

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 is included in the other, as defined in section 556.046;

§ 566.046, RSMo 1994, in relevant part, reads:

1... An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

“If 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 meaning of § 556.046.1(1).” Villa-Perez, 835 S.W.2d at 903-4. As to Appellant’s convictions for manufacture of methamphetamine under § 195.211.1 and possession of pseudoephedrine under § 195.246.1, the issue before the court is whether each requires proof of an element which the other does not.

The court first notes that in State v. Brown, 750 S.W.2d 139 (Mo.App.1988) it was held that conviction for the manufacture of marijuana and felony possession of marijuana did not constitute a double jeopardy violation. There the defendant argued that possession of marijuana was a lesser included offense of the manufacture of marijuana. In rejecting this argument the court held, “[t]he applicable test, to determine whether several charges are identical, is whether each offense necessitates proof of a fact which the other does not; the fact that there is some overlapping evidence that supports the convictions for both offenses does not violate the prohibition against double jeopardy.” Id. at 142. The court distinguished the two crimes of possession and manufacture by the requisite mental state applicable to each. As to manufacture, the state must prove (1) the planting or harvesting of marijuana “with (2) an awareness of the character of the controlled substance.” Id. “[T]he mental state is tied directly to a form of horticultural activity that is prohibited by statute.” Id. As to possession, “the state must prove that he had knowledge of the presence and nature of the substance.” Id. “The mental state pertains only to having the controlled substance under one’s dominion or control, or having access to it.” Id. Due to these distinct mental state elements, the Brown court determined that conviction for possession of and manufacture of marijuana did not violate double jeopardy. Each requires proof of an element which the other does not.

The crime of the manufacture of methamphetamine requires the state to prove the defendant: (1) manufactured methamphetamine and (2) was aware the substance he manufactured was methamphetamine. The crime of possession of pseudoephedrine with intent to manufacture methamphetamine requires the state to prove the defendant: (1) possessed pseudoephedrine; (2) was aware of its presence; and (3) possessed it with the intent to manufacture methamphetamine. State v. White, 14 S.W.3d 121, 126 (Mo.App.W.D.2000) citing State v. O’Brien, 5 S.W.3d 532 (Mo.App.1999). This case is analogous to State v. Brown, supra. 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 pseudoephedrine 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.

Appellant’s conviction for the manufacture of methamphetamine and the possession of pseudoephedrine with intent to manufacture methamphetamine did not violate double jeopardy. Therefore, Appellant’s pleas of guilty to each were not involuntary due to counsel’s failure to object to the convictions on that basis. This point is denied.

B.

Appellant’s second claim of error is that no factual basis was shown to support Appellant’s guilty plea to the count of possession of pseudoephedrine because at the plea hearing Appellant was originally questioned about the charge of possession of ephedrine that was later amended. Appellant failed to raise this claim in his Rule 24.035 motion. “An issue not raised as a ground for relief in the Rule 24.035 motion is not cognizable on appeal and will not be reviewed by this court.” Smith v. State, 970 S.W.2d 916 (Mo.App.1998) citing Coates v. State, 939 S.W.2d 912, 915 (Mo. banc 1997); Broum v. State, 882 S.W.2d 154, 156 (Mo.App.1994). “Rule 24.035(d) requires that the post-conviction motion include all of the claims and those not raised in the motion are waived.” Smith v. State, 970 S.W.2d at 916. Appellant has not preserved this point for appeal. Point denied.

The judgment denying post-conviction relief is affirmed.

All Concur.

      . All further statutory references are to the Revised Statutes of Missouri, Cumulative Supplement 1998, unless otherwise indicated.


text:
    In re the ESTATE OF Edra PITTMAN.
    No. WD 56987.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2000.
    Application for Transfer Denied May 30, 2000.

      Gardiner Blaine Davis, Kansas City, for Appellant.
    Stephen Nordyke, Butler, for Respondent.
   PAUL M. SPINDEN, Presiding Judge.

Gerald Pittman appeals the circuit court’s judgment removing him as guardian of his mother, Edra Pittman, and conservator of her estate. The circuit court acted on a petition filed by Edra Pittman, and Gerald Pittman argues that the circuit court erred because Edra Pittman’s petition did not state any statutory grounds for relief. He also alleges that the circuit court based its judgment on issues not stated in the petition and that this amounted to trial of the issues without proper notice. We affirm the circuit court’s judgment.

The circuit court appointed Gerald Pittman as his mother’s guardian and conservator of her estate in 1984. Edra Pittman asked the circuit court to remove her son and to appoint in his stead Susan Pittman, her son’s former wife. The circuit court granted her request to remove Gerald Pittman from the positions. It appointed Susan Pittman as conservator of Edra Pittman’s estate and June Cumpton, Bates County public administrator, as Edra Pittman’s guardian. Gerald Pittman’s appeal asserts that the circuit court erred because Edra Pittman’s motion did not allege, and the evidence did not support, any statutory ground for removal.

Although Gerald Pittman did not raise the issue of the sufficiency of the pleadings at trial, we consider his argument because a pleading that does not state a cause of action deprives the circuit court of subject matter jurisdiction. Landvatter Ready Mix, Inc. v. Buckey, 963 S.W.2d 298, 303 (Mo.App.1997). Gerald Pittman mistakenly argues that the only statutory ground for allowing a ward to request removal of a court-appointed guardian is § 475.110. Section 475.110 also incorporates the grounds for removal of a personal representative listed in § 473.140 and applies them to removal of a guardian or conservator.

Section 473.140 says:

If any personal representative ... fails to discharge his official duties, or wastes or mismanages the estate, ... the court, upon its own motion, or upon complaint in wilting made by any person interested supported by affidavit, after notice to the personal representative, ... shall hear the matter and may revoke the letters granted.

Section 472.010 defines “interested person” in probate cases as including “others having a property right or claim against the estate.” It also says, “This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved.”

Edra Pittman certainly was an “interested person” in the management of her estate. She, therefore, had authority pursuant to § 475.110 to petition the circuit court for her son’s removal as her guardian and conservator of her estate.

Moreover, § 475.082.5 specifically authorizes the circuit court to act on Edra Pittman’s petition. It says:

If it appears to the court as part of its review or at any time upon motion of any interested person, including the ward or protectee or some person on his behalf, that the guardian or conservator is not discharging his responsibilities and duties as required by this chapter or has not acted in the best interests of his ward or protectee, the court may order that a hearing be held and direct that the guardian or conservator appear before the court.

Although Edra Pittman’s motion did not aver the statutory basis for her seeking to remove her son as her guardian and conservator of her estate, the circuit court did not err in removing Gerald Pittman. “Probate pleadings are not to be judged by the strict rules of pleadings applied to a petition in the circuit court. If the pleadings give reasonable notice of the nature and extent of the claim[,] strict rules of pleadings ... are not required.” Estate of McCormack v. McCormack, 676 S.W.2d 928, 930 (Mo.App.1984).

Edra Pittman stated twice in her motion that she wanted to remove Gerald Pittman as her guardian and conservator of her estate. Other contentions referred to her improved “capacity to care for her person and her ability to manage her financial resources.” These statements taken with the request to replace Gerald Pittman with Susan Pittman as guardian and conservator reasonably gave Gerald Pittman notice of the nature and extent of the claim.

The summary nature of probate pleadings “is purposely so framed that parties can attend to their own business in ordinary matters, and the decisions should be so rendered as to subserve the ends of justice according to the evidence.” Guthrie v. Fields, 299 S.W. 141, 143 (Mo.App. 1927). Lenience in probate pleadings also results from the early practice of appointing probate judges who were not lawyers. Murphy v. Pfeifer, 105 S.W.2d 39, 41 (Mo.App.1937). After the Court Reform and Revision Act of 1979, probate courts became a division of circuit court. Because it was then vested with general equity jurisdiction, the probate division could remove a guardian on non-statutory grounds. 5B John A. BORRON, Jr., MissouRi PRACTICE: Probate Law and Practice § 1982 (2d ed.1992).

This court’s recent decision In re Estate of Vester, 4 S.W.3d 575 (Mo.App.1999), is distinguishable. The petition in that case advised the conservator and personal representative that a creditor requested her removal as personal representative, but the circuit court, on its own motion, proceeded to remove her as conservator. In re Boeving’s Estate, 388 S.W.2d 40 (Mo.App.1965), which holds that pleadings must allege specific statutory grounds, was another instance when the circuit court, ex mero motu, initiated the removal of a guardian or conservator.

Gerald Pittman had notice from Edra Pittman’s petition titled “Motion for Order Changing the Person Designate as Guardian and Conservator” and from the circuit court’s notice of hearing issued on October 29, 1998 that she wanted him removed as her guardian and conservator of her estate. Gerald Pittman does not dispute that Edra Pittman sought to remove him as both guardian and conservator of her estate; he argues that the notice he received was not detailed enough.

The notice required when a ward or protectee brings a motion to terminate or to remove a guardian is a copy of the petition and notice of hearing. Section 475.083.6; Borron, supra. Gerald Pittman received such notice. He appeared at the appointed time, presented three witnesses, and never objected to the scope of the proceedings or requested clarification of the grounds for Edra Pittman’s motion. “However defective the [petition], the court has jurisdiction to judge and determine. If the one cited and served appears, he submits himself to the court and has the right to make his defense and to appeal.” In re Ford, 157 Mo.App. 141, 137 S.W. 32, 36 (Mo.App.1911).

Even if the circuit court erred in entertaining Edra Pittman’s motion, we discern no prejudice. Gerald Pittman does not explain how he would have changed his argument or evidence had he been informed of the specific statutory grounds justifying his removal. Only prejudicial error is reversible error. Krienke v. Lohman, 963 S.W.2d 11, 12 (Mo.App.1998).

Contrary to Gerald Pittman’s contention, the circuit court did not base its removal on grounds not enumerated by statute. The circuit court concluded that appointing Susan Pittman as conservator was in Edra Pittman’s best interest. It cited Gerald Pittman’s infrequent visits with his mother, his unilateral decision to remove a telephone from his mother’s room, and his not providing annual settlements and status reports “as should have been provided over a period of years.” These factors were sufficient to support the circuit court’s conclusion that continued guardianship by Gerald Pittman was not in Edra Pittman’s best interest, which is a reason for removal under § 475.082.5.

Gerald Pittman contends that, because the circuit court approved his submitting federal income tax returns as annual settlements, it was estopped from using that as a basis for removing him. He cites State ex rel. McWilliams v. Armstrong, 320 Mo. 1122, 9 S.W.2d 600 (Mo. banc 1928), for support. Armstrong is distinguishable. In that case, the estate had been completely exhausted, leaving the conservator nothing to account for in an annual settlement. Edra Pittman’s estate was never worth less than $388,558.72, its value when Gerald Pittman became guardian and conservator.

Section 473.543, RSMo Supp.1999, lists the required contents of an annual settlement. Among the essential items are “the exact amount of principal and interest collected on each claim, and also the amount and date of each expenditure or distribution, and to whom and for what paid.” Submitting only a federal income tax return as an annual settlement does not satisfy the requirements of an annual settlement, primarily because the purposes of income tax returns and annual settlements are different. A tax return is a report of taxable income. An annual settlement is a tool that the circuit court uses to monitor the estate’s earnings and expenditures, and, consequently, the guardian’s performance. It was improper for Gerald Pittman to rely on the court’s acceptance of the returns as a discharge of his duties as guardian and conservator. In addition, the record does not show any financial information filed with the circuit court for 1985, and the record contains no court orders accepting the returns filed in 1989 for the years 1986-1988 or in 1997.

Gerald Pittman’s testimony exhibited some confusion concerning his precise reporting duties as guardian and conservator. He complained that no one informed him of his legal duties, but this did not relieve him of those duties. “This is not want of ‘knowledge of a fact’ but a self-professed lack of understanding of the law’s requirement, which could have been ascertained from a reading of the statutes and pertinent cases. Persons are conclusively presumed to know the law.” Missouri Highway and Transportation Commission v. Myers, 785 S.W.2d 70, 75 (Mo. banc 1990). Taken alone, Pittman’s failure to file proper annual settlements provided adequate grounds for removing him as guardian and conservator under §§ 473.543 and 473.140.

The other reasons the circuit court cited also support the conclusion that removing Gerald Pittman as guardian was in Edra Pittman’s best interests. Section 475.082 instructs a guardian to file an annual report concerning the ward’s “personal status.” The statute directs the guardian to include, among other facts, the number of times the guardian has had contact with the ward, the date the guardian last saw the ward, and “any major changes in the physical or mental condition of the ward observed by the guardian.” That the General Assembly created such specific requirements indicates that personal contact between guardian and ward is important in the circuit court’s evaluation of a guardianship. A lack of personal observations limits a guardian’s ability to determine a ward’s condition. In addition, a guardian’s failing to submit annual status reports to the circuit court, as apparently occurred in this ease, can contribute to the circuit court’s finding that the guardian is neglecting his responsibilities and duties as established by § 475.082.

Gerald Pittman argues that the circuit court’s finding that “[t]he relationship between the ward and the guardian is not close” created an improper requirement of congeniality. Although we have ruled, in In the Estate of Webster, 920 S.W.2d 600, 605 (Mo.App.1996), that a hostile relationship between guardian and ward does not warrant removal of the guardian, Gerald Pittman’s nearly complete lack of a relationship with his mother was significant. The circuit court was justified in giving some weight to Gerald Pittman’s unilateral decision to remove his mother’s private telephone from her room. The record suggests that their relationship deteriorated to the point that them only interaction occurred when Edra Pittman called her son collect to ask him to send her money.

Edra Pittman’s evidence established a statutory basis for removing Gerald Pittman as guardian and conservator. The circuit court based its conclusion on sufficient evidence. We affirm the circuit court’s judgment.

HAROLD L. LOWENSTEIN, Judge, and ROBERT G. ULRICH, Judge, concur.

      .The circuit court explained that, because Susan Pittman lived in St. Louis, Edra Pittman’s needs would be "better served by a guardian who is nearby and who is able to personally know and observe the needs of the ward.”

      . All citations of statutes refer to the 1994 Revised Statutes.

      . We added the emphasis.