author: PATRICIA BRECKENRIDGE, Judge.

text:
    STATE of Missouri, Appellant, v. Jeremy WILSON, Respondent.
    No. WD 64333.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.

      Michael D. Fusselman, Moberly, MO, for appellant.
    Andrew Farwell, Kirksville, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   PATRICIA BRECKENRIDGE, Judge.

This is an interlocutory appeal by the State of Missouri from an order of the trial court suppressing marijuana seized during a search of a vehicle in which Jeremy Allen Wilson was a passenger and the incriminating statements Mr. Wilson made subsequent to the seizure. The State claims that the trial court erred in sustaining Mr. Wilson’s motion to suppress the marijuana because the evidence showed that the highway patrol trooper had probable cause for the search. The State also claims that the trial court erred in suppressing statements made by Mr. Wilson both before and after the issuance of Miranda warnings. As to the statements made before the Miranda warnings, the State claims that the statements were a result of preliminary investigation rather than custodial interrogation. As to the post-Miranda statements, the State asserts that because the questions asked of Mr. Wilson were part of a preliminary investigation, Mr. Wilson’s post-Miranda statements are not tainted. Finally, the State claims that the recorded statements made between Mr. Wilson and Lance Harmon, the driver of the vehicle, were improperly suppressed because the conversation occurred in a patrol car, where Mr. Wilson had no reasonable expectation of privacy.

This court finds that the trial court did not err in suppressing the marijuana because the trial court’s determination that no probable cause existed for the search of the vehicle was supported by substantial evidence. This court further finds that the trial court did not err in suppressing Mr. Wilson’s pre-Miranda statements because Mr. Wilson was not provided with his Miranda warnings prior to a custodial interrogation. Because of the circumstances under which Mr. Wilson was questioned after being provided his Miranda warnings, this court finds Mr. Wilson’s post-Miranda statements were also properly suppressed. The trial court did err, however, in suppressing the statements made by Mr. Wilson while in the back seat of the patrol car, because Mr. Wilson had no reasonable or legitimate expectation of privacy in the back seat of a patrol car. The order of the trial court suppressing evidence is affirmed, in part, and reversed, in part.

Factual and Procedural Background

On March 7, 2004, Missouri State Highway Patrolman Mark Reynolds stopped a vehicle driven by Mr. Harmon for speeding on U.S. Highway 63. Mr. Wilson was a passenger in the vehicle. Trooper Reynolds approached the vehicle on the passenger side. Trooper Reynolds instructed Mr. Harmon to exit his vehicle and to sit in the patrol car while Trooper Reynolds wrote him a summons for speeding. While Mr. Harmon was still in the patrol car, Trooper Reynolds asked Mr. Harmon if he had anything illegal in the vehicle. Mr. Harmon responded that he did not. Trooper Reynolds asked Mr. Harmon for permission to search the vehicle. Mr. Harmon consented.

Trooper Reynolds directed Mr. Harmon to stand in front of his vehicle. Trooper Reynolds also asked Mr. Wilson to stand in front of Mr. Harmon’s vehicle, but to face a different direction and to stand far enough apart from Mr. Harmon that they could not communicate. Trooper Reynolds then began to search the vehicle. During his search, he discovered two duf-fle bags, one black and one blue. When Trooper Reynolds opened the blue duffle bag, he discovered marijuana in a plastic bag. Trooper Reynolds then handcuffed Mr. Wilson and placed him in the patrol car. He also handcuffed Mr. Harmon and had him stand in front of the patrol car. Trooper Reynolds first questioned Mr. Wilson about the marijuana and the duffle bags. Mr. Wilson told Trooper Reynolds that he owned the blue duffle bag, but that he was unaware of any marijuana. Trooper Reynolds then questioned Mr. Harmon. Mr. Harmon told Trooper Reynolds that both bags and the marijuana were his. Although Trooper Reynolds told Mr. Harmon that Mr. Wilson had said the blue duffle bag was his, Mr. Harmon continued to claim both bags. Trooper Reynolds then read Mr. Harmon the Miranda warnings.

After reading Mr. Harmon the Miranda warnings, Trooper Reynolds put Mr. Harmon in the patrol car where Mr. Wilson was. Trooper Reynolds then told Mr. Wilson that he needed to read him the Miranda warnings. Before doing so, however, he asked Mr. Wilson whether one of the duffle bags was his. When Mr. Wilson again stated that the blue duffle bag was his, but he was unaware of the marijuana, Trooper Reynolds read Mr. Wilson his Miranda warnings. Trooper Reynolds then reviewed Mr. Wilson’s previous statements and had Mr. Wilson confirm them. After the confirmation, Mr. Wilson and Mr. Harmon were left alone in the back seat of the patrol car. At this time, Mr. Wilson and Mr. Harmon talked about the duffle bags and marijuana. Neither Mr. Wilson nor Mr. Harmon was aware that the patrol car’s audio/visual recorder was recording their conversation. In the course of this conversation, Mr. Wilson made incriminating statements regarding the possession of the marijuana.

Sergeant B.N. Anderson arrived on the scene to assist Trooper Reynolds. In explaining the circumstances of the search, Trooper Reynolds advised him that he had smelled marijuana on Mr. Harmon during the traffic stop. When the search was complete, Sergeant Anderson transported Mr. Harmon to the Randolph County jail and Trooper Reynolds transported Mr. Wilson. On the drive to the Randolph County jail, Trooper Reynolds continued questioning Mr. Wilson about the duffle bags and marijuana. During this conversation, Trooper Reynolds had Mr. Wilson describe the other contents of the blue duffle bag.

Subsequently, Trooper Reynolds completed an arrest report in which he related the circumstances surrounding the traffic stop and search. In the arrest report, Trooper Reynolds stated that he “could smell a faint odor of marijuana emanating from inside the vehicle” when he first approached Mr. Harmon’s car. Trooper Reynolds also stated that he “could smell a faint odor of marijuana about” the person of Mr. Harmon when Mr. Harmon was sitting in the patrol car waiting for Trooper Reynolds to finish writing the summons for speeding. The arrest report also stated that Trooper Reynolds asked for permission to search the vehicle after Trooper Reynolds had issued the summons for speeding. Finally, in the arrest report, Trooper Reynolds stated that, when he opened the blue duffle bag, he immediately smelled “a strong odor of marijuana.” He also stated in his arrest report that he arrested Mr. Wilson and Mr. Harmon for possession of marijuana, he noted the times that he read them the Miranda warnings, and he set out the incriminating statements that Mr. Wilson and Mr. Harmon had made to him.

Mr. Wilson was charged with felony possession of marijuana, under section 195.202, RSMo 2000. Mr. Wilson filed a motion to suppress the marijuana, his statements to Trooper Reynolds, and the statements made during his conversation with Mr. Harmon in the back seat of the patrol car. A hearing was held to determine whether the evidence should be suppressed. At the hearing, Trooper Reynolds testified that he had asked Mr. Harmon for consent to search the vehicle prior to issuing Mr. Harmon the summons for speeding. Trooper Reynolds further testified that he told Mr. Harmon that he smelled marijuana emanating from Mr. Harmon’s person prior to requesting consent to search the vehicle. Trooper Reynolds testified that, during the search, he noticed a “strong odor of marijuana” while he was in the back seat of Mr. Harmon’s car, but prior to opening the blue duffle bag. Trooper Reynolds stated that he placed Mr. Wilson and Mr. Harmon under arrest immediately after finding the marijuana. Trooper Reynolds conceded that he questioned Mr. Harmon prior to giving him Miranda warnings and stated it was inadvertent and “a mistake” not to have read the Miranda rights. He stated that is why, after reading the Miranda warnings, he asked questions that were very similar to the questions asked prior to the Miranda warnings. Trooper Reynolds acknowledged that he also questioned Mr. Wilson prior to giving him his Miranda rights and, then, after reading him the Miranda warnings, asked him the same questions he had asked prior to reading the Miranda warnings.

The audio/video recording of the entire stop, including the conversation of Mr. Wilson and Mr. Harmon in the back of the patrol car, was admitted in evidence at the hearing. Not all of the statements made by Trooper Reynolds, Mr. Harmon, and Mr. Wilson outside the patrol car were audible, likely due to the wind at the scene. Mr. Wilson also testified as to the circumstances surrounding the search and his statements.

The trial court found that Trooper Reynolds lacked probable cause to search the vehicle. The trial court also found that Mr. Harmon’s consent “was not freely, voluntarily, and knowingly given.” Consequently, the trial court suppressed the marijuana found during the search of the vehicle. The trial court further found that Mr. Wilson’s statements both before and after he was read the Miranda warnings should be suppressed. Finally, the trial court suppressed Mr. Wilson’s recorded statements in the back of the patrol car “which were recorded without his knowledge.” The State filed this interlocutory appeal.

Standard of Review

A trial court’s order suppressing evidence is entitled to interlocutory appeal under section 547.200.1. “Review of a trial court’s decision as to a motion to suppress evidence is limited to a determination of whether there is substantial evidence to support its decision.” State v. Tackett, 12 S.W.3d 332, 336 (Mo.App.2000). “The trial court’s ruling on a motion to suppress will be reversed only if it is clearly erroneous.” State v. Hoyt, 75 S.W.3d 879, 882 (Mo.App. 2002). “The trial court’s ruling is clearly erroneous if this court is left with a definite and firm belief a mistake has been made.” Id. “This court reviews the trial court’s decision viewing the facts and reasonable inferences therefrom in the light most favorable to the trial court’s order with the freedom to disregard contrary evidence and inferences.” Id.

No Abuse of Discretion in Suppressing Marijuana

The State first claims that the trial court erred in sustaining Mr. Wilson’s motion to suppress the marijuana because Trooper Reynolds had probable cause to search the vehicle. Specifically, the State asserts that Trooper Reynolds had probable cause because he testified that he smelled an odor of marijuana emanating from the car when Mr. Wilson lowered the window.

“At a suppression hearing, the State bears both the burden of producing evidence and the risk of non-persuasion to show by a preponderance of the evidence that the motion to suppress should be overruled.” State v. Bradshaw, 99 S.W.3d 73, 76 (Mo.App.2003). “The trial court may choose to believe or disbelieve all or any part of the testimony presented by the State, even though it may be uncontradict-ed.... ” State v. Talbert, 873 S.W.2d 321, 325 (Mo.App.1994).

In this case, Trooper Reynolds testified that, during the stop for speeding, he smelled an odor of marijuana coming from the vehicle. If believed, Trooper Reynolds’ testimony would be sufficient to establish probable cause. State v. McNaughton, 924 S.W.2d 517, 524 (Mo. App.1996). The trial court, however, is not obligated to believe Trooper Reynolds’ testimony. State v. Carroll, 165 S.W.3d 597, 602 (Mo.App.2005). The trial court was entitled to simply disbelieve Trooper Reynolds’ testimony. Id.

Additionally, discrepancies between the audio/video recording, the arrest report, and Trooper Reynolds’ testimony at the suppression hearing could be considered by the trial court in its determination of the credibility of Trooper Reynolds’ recollection of events. First, Trooper Reynolds specifically testified that he told Mr. Harmon that he smelled marijuana on his person prior to requesting consent to search Mr. Harmon’s vehicle. At the time of the request, both Mr. Hannon and Trooper Reynolds were sitting in the patrol car. The patrol car’s audio/video recorder repudiates Trooper Reynolds’ testimony. No such statement was captured by the recorder. Secondly, Trooper Reynolds testified that he requested consent to search Mr. Harmon’s vehicle prior to issuing Mr. Harmon the summons for speeding. Yet, Trooper Reynolds’ own arrest report and the patrol car’s audio/video recorder establish that the summons for speeding was issued to Mr. Harmon prior to Trooper Reynolds’ request for consent to search the vehicle. Finally, Trooper Reynolds testified at the suppression hearing that he noticed “a strong odor of marijuana” while he was in the back seat of Mr. Harmon’s car, but prior to opening the blue duffle bag. However, in his arrest report, Trooper Reynolds stated that he noticed the odor after he opened the blue duffle bag. These inconsistencies undermine Trooper Reynolds’ credibility and support the trial court’s disbelief of his testimony.

Trooper Reynolds’ testimony regarding the odor of marijuana is the only evidence the State advances to demonstrate probable cause. Since the trial court’s decision indicates that it did not believe Trooper Reynolds’ statement, the State failed to meet its burden of proof. The trial court’s decision to suppress the confiscated marijuana was not clearly erroneous. The State’s first point is denied.

In its second point, the State asserts that all statements made by Mr. Wilson were improperly suppressed. The point addresses three categories of statements: pre-Miranda statements to Trooper Reynolds, post -Miranda statements to Trooper Reynolds, and the statements made during the conversation between Mr. Wilson and Mr. Harmon in the back seat of the patrol car. For ease of discussion, each category of statements will be discussed separately.

No Error in Suppressing Pre-Miranda Statements

The State first claims that the statements made by Mr. Wilson to Trooper Reynolds before he received Miranda warnings were improperly suppressed. Specifically, the State asserts that the questions were “general, fact-seeking questions.” The State further claims that a “brief detention for fact-finding purposes does not constitute custodial interrogation.”

“A criminal suspect is entitled to Miranda warnings, consistent with their Fifth Amendment right against self-incrimination, once the suspect is subjected to a ‘custodial interrogation.’ ” State v. Taylor, 109 S.W.3d 190, 192 (Mo.App. 2003), (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). The prosecution cannot use statements obtained during custodial interrogation not preceded by Miranda warnings. State v. Birmingham, 132 S.W.3d 318, 322 (Mo.App.2004). An interrogation occurs when the police obtain a statement from a suspect by using “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297, 302 (1980) (footnotes omitted). “For an interrogation to be custodial, the questioning must occur ‘after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Birmingham, 132 S.W.3d at 322 (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602).

“In Missouri, ‘custodial interrogation’ is defined as questioning initiated by law enforcement officers after a person has been taken into custody....” State v. Glass, 136 S.W.3d 496, 511 (Mo. banc 2004). The Missouri Supreme Court, in State v. Werner, 9 S.W.3d 590 (Mo. banc 2000), provided factors relevant in analyzing whether a suspect is “in custody”:

After stating that a suspect’s status of being ‘in custody1 at a particular moment depends on the totality of the circumstances, the Missouri Supreme Court in Werner outlined six factors, in addition to the purpose, place, and length of the interrogation, that bear upon the determination of whether a suspect is ‘in custody’: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to answer questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere was police dominated; (6) whether the suspect was placed under arrest at the termination of questioning.

State v. Dravenstott, 138 S.W.3d 186, 195-96 (Mo.App.2004) (quoting State v. Werner, 9 S.W.3d at 595). Additionally, the courts can consider “an individual’s personal background, experience, familiarity with police questioning, maturity, education, and intelligence.” State v. Londagin, 102 S.W.3d 46, 49 (Mo.App.2003).

Here, prior to making any statement, Mr. Wilson was handcuffed and placed in the back of the patrol car. Although the trial court found that Mr. Wilson was not told that he was under arrest prior to being questioned about the marijuana, the audio/video recording from the patrol ear, Trooper Reynolds’ arrest report, and his testimony at the suppression hearing all showed that Mr. Wilson was placed under arrest at the time he was handcuffed. Even if Mr. Wilson was not under arrest, the totality of the circumstances, as evaluated under the factors in Werner, 9 S.W.3d at 595, demonstrates that Mr. Wilson was under arrest-like circumstances at the time Trooper Reynolds questioned him about the marijuana and ownership of the duffle bags. He was handcuffed and placed in the patrol car. He was not told that questioning was voluntary, that he was free to leave, or that he was not under arrest. He did not possess unrestrained movement. His initial contact with Trooper Reynolds was not voluntary. Although Trooper Reynolds did not use deceptive stratagems, the atmosphere was police dominated. The record does not contain much information about Mr. Wilson, but it does show that he was nineteen years old. Under the totality of these circumstances, Mr. Wilson was “in custody.”

Having found that Mr. Wilson was “in custody,” the issue then becomes whether Mr. Wilson was “‘subjected to [express] questioning or its functional equivalent’ in violation of Miranda ” at the time he made the initial incriminating statement. State v. Williams, 163 S.W.3d 522, 526 (Mo.App.2005) (quoting Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90). “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.” Innis, 446 U.S. at 301,100 S.Ct. at 1690 (footnote omitted).

The Eastern District of this court recently considered whether a suspect was subject to a custodial interrogation in violation of Miranda, in Williams, 163 S.W.3d at 526. In that case, the Eastern District found that Ms. Williams was subjected to questioning or its equivalent, when she was confronted by a police officer “about the controlled substances he found in her closet as she sat handcuffed on a hallway floor, in the vicinity of, among others, her two children and five police officers.” Id. The court found that the police officer should have known that confronting Ms. Williams about the controlled substance “was reasonably likely to elicit an inculpatory or exculpatory response” from her and, thus, subjected her to the functional equivalent of questioning. Id.

Here, although there was not the number of persons present as in Williams, the confrontation of Mr. Wilson about the marijuana by Trooper Reynolds was also reasonably likely to elicit an incriminating or exculpatory response. The questions asked by Trooper Reynolds were not preliminary, investigatory questions made for the purpose of determining whether a crime had been committed. Trooper Reynolds first asked, “What do you want to tell me about the marijuana I found in the car?” When Mr. Wilson responded that he was unaware of any marijuana, Trooper Reynolds then asked, “Is one of those duffle bags back there yours?” Trooper Reynolds initiated questions designed to obtain information as to whether Mr. Wilson or Mr. Harmon was the one who had committed the crime by being in possession of the marijuana. Mr. Wilson was, therefore, subjected to an interrogation. See id.

The State cites State v. Baker, 850 S.W.2d 944 (Mo.App.1993), in support of its argument that Trooper Reynolds was entitled to ask Mr. Wilson general questions without violating Mr. Wilson’s constitutional rights. Baker, however, is factually distinguishable. In Baker, the defendant and his cellmate were reported to have been in possession of homemade weapons and other contraband. Id. at 946. The defendant and his cellmate were moved to another location while their cell was searched. Id. After the search turned up the reported items, the captain of the correctional center asked the suspects: “Who does all this belong to?” Id. Defendant responded that it was his. Id. The court in Baker found that this did not constitute a custodial interrogation. Id. at 950. In so ruling, the court considered the circumstances that only one general question was asked; the question was directed to both appellant and his cellmate; and both individuals were convicted felons in prison and “presumably knowledgeable of the implications of their actions.” Id.

This case more closely resembles Williams than Baker. Here, as in Williams, Trooper Reynolds confronted Mr. Wilson with the fact that marijuana had been found. In contrast to Baker, in which only a single, generalized question was asked, Trooper Reynolds asked several questions addressed directly to Mr. Wilson. Like the Williams case, Mr. Wilson was handcuffed at the time of the questioning. Mr. Wilson was a nineteen-year-old involved in a highway stop for speeding. His degree of sophistication is, therefore, lower than that of the defendant in Baker. Like the police in Williams, Trooper Reynolds should have known that questioning Mr. Wilson in this manner would lead to an incriminating response. For these reasons, this court finds Baker inapplicable to the present case.

Further, there is evidence from which the trial court could have found that the delay in providing Mr. Wilson his Miranda warnings was strategic. Prior to reading Mr. Wilson his Miranda warnings, Trooper Reynolds informed Mr. Wilson that he was about to read Mr. Wilson his Miranda rights. Before proceeding to do so, however, Trooper Reynolds asked Mr. Wilson to verify that one of the duffle bags belonged to him. Mr. Wilson verified that the blue duffle bag, where the marijuana was found, was his. Immediately after Trooper Reynolds read Mr. Wilson his Miranda warnings, he repeated the question, confirming Mr. Wilson’s incriminating statement. This type of interrogation technique is precisely what the United States Supreme Court criticized in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The Supreme Court, in Seibert, found that the “object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.” Id. at 2610. The Supreme Court held that the “question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted.” Id. at 2613.

In sum, Mr. Wilson was under custodial interrogation when he made his incriminating statements. Because Trooper Reynolds’ failed to provide Mr. Wilson with his Miranda warnings before a custodial interrogation, the trial court did not clearly err in suppressing the statements Mr. Wilson made before being provided his Miranda warnings.

No Error in Suppressing Post-Miranda Statements

The State next asserts that the trial court incorrectly suppressed Mr. Wilson’s post-Miranda statements to Trooper Reynolds. Specifically, the State argues that, because the initial questioning did not necessitate a Miranda warning, the subsequent questioning should not have been suppressed.

Here, Trooper Reynolds questioned Mr. Wilson and obtained incriminating information before providing Mr. Wilson his Miranda warnings. Immediately upon receiving Mr. Wilson’s incriminating answers, Trooper Reynolds provided Mr. Wilson with his Miranda warnings. Trooper Reynolds then submitted the same questions to Mr. Wilson again. Mr. Wilson provided the same answers.

As noted previously, the United States Supreme Court criticized this type of interrogation technique in Seibert, id. at 2601. In Seibert, the suspect was arrested and then interrogated for thirty to forty minutes at the station house. Id. at 2606. At the time of this initial questioning, the suspect had not been provided her Miranda warnings. Id. During this questioning, the suspect confessed to crimes amounting to second-degree murder. Id. The police then gave the suspect a twenty-minute break. Id. Upon returning, the police obtained a Miranda waiver and resumed questioning, confronting the suspect with her previous statement. Id. The suspect repeated the information. Id. The Supreme Court, in a plurality opinion, suppressed the statement and condemned this form of questioning as detrimental to Miranda. Id. at 2613.

The Court distinguished Seibert from Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, (1985). Seibert, 124 S.Ct. at 2612. In Elstad, the suspect made an incriminating statement in his home, before receiving his Miranda warnings. Elstad, 470 U.S. at 301, 105 S.Ct. at 1289. He was then taken to the police station where he was provided his Miranda warnings. Id. The suspect subsequently executed a written confession. Id. The Court, in Seibert, noted that a reasonable person, in the Elstad situation, “could have seen the station house questioning as a new and distinct experience.” Seibert, 124 S.Ct. at 2612. By contrast, in the Seibert case, the Court believed that the twenty-minute break was an insufficient period of time to establish such a new experience. Id. at 2612-13. In distinguishing between the facts of the two cases, the Court identified “a series of factors” to be considered in determining “whether Miranda warnings delivered midstream could be effective enough to accomplish their object:”

[T]he completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Id. at 2612.

When considering the factors from Sei-bert and applying them to the facts of this case, this court reaches the same conclusion as the Supreme Court did. In this case, there was virtually no break between the unwarned interrogation and the interrogation after Mr. Wilson was given his Miranda warnings. The settings of the two interrogations were the same and Trooper Reynolds conducted both interrogations. There was a clear overlapping of the content of the two statements and Trooper Reynolds’ questions treated the second round of questioning as continuous with the first. Additionally, Trooper Reynolds expressly acknowledged the need-to provide Mr. Wilson with his Miranda warnings, but, nevertheless, waited until after he had Mr. Wilson confirm the incriminating statements to do so. The circumstances of the second questioning were such that Mr. Wilson was not “effectively advise[d] ... that he had a real choice about giving an admissible statement.” Id. at 2610. Consequently, it cannot be said that the trial court clearly erred in suppressing Mr. Wilson’s post-Miranda statements.

Error in Suppressing Statement Made in Patrol Car

Finally, the State claims that the trial court incorrectly suppressed comments made by Mr. Wilson in a conversation with Mr. Harmon while in the back seat of the patrol car. Specifically, the State avers that Mr. Wilson had no reasonable expectation of privacy in the back seat of the patrol car and, therefore, recording the conversation did not constitute an improper search under the Fourth Amendment.

Two conditions must be met to properly raise a Fourth Amendment challenge. “First, the defendant must have an actual, subjective expectation of privacy in the place or thing searched. Second, the expectation of privacy must be ‘reasonable’ or ‘legitimate.’” State v. McCrary, 621 S.W.2d 266, 273 (Mo. banc 1981). The State admits that Mr. Wilson’s situation satisfies the first condition in that he had a subjective expectation of privacy in the patrol car. The State argues, however, that Mr. Wilson’s situation does not satisfy the second condition in that a suspect cannot have a legitimate or reasonable expectation of privacy in the back seat of a patrol car.

The only case cited by Mr. Wilson as support for his argument that the recorded conversation was properly suppressed is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the United States Supreme Court found that an individual had a reasonable expectation of privacy when using a telephone in a phone booth. A phone booth and the back seat of a police or patrol car are not sufficiently similar for Katz to be persuasive. Although not cited by the State, other jurisdictions have specifically addressed the issue of whether there is a reasonable expectation of privacy in a police or patrol car. The proper inquiry, as explained by the United States Court of Appeals, Eighth Circuit is “whether a defendant’s expectation of privacy is one that society is prepared to recognize as reasonable.” United States v. Clark, 22 F.3d 799, 801 (8th Cir.1994).

The proper inquiry into reasonableness, in turn, is “ “whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.’ ” Id. (quoting United States v. Hendrickson, 940 F.2d 320, 322 (8th Cir.)), (cert denied, 502 U.S. 992, 112 S.Ct. 610, 116 L.Ed.2d 633 (1991)). In making such inquiry, the Eighth Circuit found:

A marked police car is owned and operated by the state for the express purpose of ferreting out crime. It is essentially the trooper’s office, and is frequently used as a temporary jail for housing and transporting arrestees and suspects. The general public has no reason to frequent the back seat of a patrol car, or to believe that it is a sanctuary for private discussions.

Clark, 22 F.3d at 801-02. Consequently, the Eighth Circuit determined that “a person does not have a reasonable or legitimate expectation of privacy in statements made to a companion while seated in a police car.” Id. at 802. See also United States v. McKinnon, 985 F.2d 525, 528 (11th Cir.1993); State v. Smith, 641 So.2d 849, 852 (Fla.1994); People v. Marland, 135 Mich.App. 297, 355 N.W.2d 378, 384 (1984); People v. Seaton, 146 Cal.App.3d 67, 194 Cal.Rptr. 33, 42 (1983); State v. McAdams, 559 So.2d 601, 602 (Fla.Dist.Ct. App.1990); State v. Hussey, 469 So.2d 346, 351 (La.Ct.App.1985); State v. Lucero, 96 N.M. 126, 628 P.2d 696, 698 (Ct.App.1981).

This court agrees that a suspect cannot have a reasonable or legitimate expectation of privacy in the back seat of a patrol car. “A police car is not the kind of public place, like a phone booth (e.g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)), where a person should be able to reasonably expect that his conversation will not be monitored.” Clark, 22 F.3d at 802. Since Mr. Wilson failed to satisfy the second condition for a valid Fourth Amendment challenge regarding his statements in the back of the patrol car, the trial court clearly erred in suppressing those statements.

Mr. Wilson argues, however, that, even if he did not have a reasonable expectation of privacy in the rear seat of the patrol car, the recorded conversation should nevertheless be suppressed as a “fruit-of-the-poisonous-tree.” In both his motion to suppress and his memorandum of law in support of suppression, Mr. Wilson argued that the recorded conversation was the “fruit” of the unwarned interrogation. Specifically, Mr. Wilson argued his will was “overborne” as both he and Mr. Harmon “were reeling from the unconstitutional tactics” employed by Trooper Reynolds. Mr. Wilson argued that after he had made the incriminating statements, his “right to silence seemed to serve no purpose, prompting [him] to speak more freely” to Mr. Harmon. Mr. Wilson’s argument, therefore, identified Trooper Reynolds’ failure to provide Miranda warnings, rather than the unlawful detention, as the underlying illegality.

Mr. Wilson did not raise a Fourth Amendment fruit-of-the-poisonous-tree argument at the trial court level. The distinction between a claim that subsequent statements are tainted by a Miranda violation and a fruit-of-the-poisonous-tree argument based on a Fourth Amendment violation is great, because both the United States Supreme Court and Missouri Courts have recognized that very different and sophisticated analysis is required for each type of violation. See U.S. v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 2626, 159 L.Ed.2d 667 (2004); Pistad, 470 U.S. 298, 105 S.Ct. 1285; Seibert, 542 U.S. 600, 124 S.Ct. 2601; Glass, 136 S.W.3d 496. In his brief on appeal, Mr. Wilson repeats his argument that the recorded conversation is the “fruit” of the Miranda violation, but adds a brief reference to the unlawful seizure. The only portion of Mr. Wilson’s fruit-of-the-poisonous-tree argument that references an unreasonable search under the Fourth Amendment was a portion of a single sentence: “Mr. Wilson’s statements in the patrol car were not random, but in direct response to the unconstitutional search of the vehicle and container^]” Mr. Wilson fails to develop his argument beyond this one sentence. Even if this single statement were sufficient to raise a valid Fourth Amendment issue, Mr. Wilson fails to cite any legal authority for such a proposition. Mr. Wilson’s argument lacks the sophistication the subject demands.

Consequently, this court will not now examine Mr. Wilson’s unsupported suggestion that the recorded conversation is a fruit of the poisonous tree stemming from the illegal search and seizure. On remand, Mr. Wilson may attempt to present a valid claim, with legal authority, that the recorded conversation should be properly suppressed as fruit of the poisonous tree.

The State’s claim of error with respect to the statements Mr. Wilson made in the back seat of the patrol car is granted. Accordingly, the decision of the trial court is reversed as to this evidence. This case is remanded for further proceedings consistent with this opinion.

All concur.

      . Miranda warnings must be provided when a person is subjected to custodial interrogation.
        Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 16 L.Ed.2d 694 (1966).

      . All statutory references are to the Revised Statutes of Missouri 2000.

      . The State does not assert that the trial court erred in finding that Mr. Harmon’s consent to search was not valid because it was not freely, voluntarily, and knowingly given or question Mr. Wilson’s standing to challenge Mr. Harmon's consent.

      . The "fruit of the poisonous tree” is the doctrine that the product of an unlawful search or seizure, whether direct or indirect, may not be used against the victim of the search. Wong Sun v. U.S., 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).

      . The contention that Mr. Wilson spoke because he believed his silence would serve no purpose is belied by the fact that he did not speak within hearing of Trooper Reynolds and was unaware that the patrol car recorder was on.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert J. PESEK, Appellant, v. LACLEDE GAS COMPANY, Respondent.
    No. ED 85482.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 30, 2005.
    Daniel A. Raniere, St. Louis, MO, for appellant.
    Charles S. Elbert, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Robert J. Pesek (hereinafter, “Pesek”) appeals from the trial court’s entry of summary judgment in favor of Laclede Gas Company (hereinafter, “Laclede”). Pesek raises three points on appeal. In his first point, Pesek argues the trial court erred in granting summary judgment on his claim for false arrest because there was a genuine issue of material fact regarding whether Laclede encouraged, promoted, or instigated his arrest by knowingly providing false, misleading, or incomplete information to the sheriff. In his second point, Pesek alleges the trial court erred in granting summary judgment on his false arrest claim based upon the erroneous conclusion the sheriff was the sole person who decided to arrest Pesek. In his final point, Pesek challenges the entry of summary judgment on his claim for malicious prosecution because there were several genuine issues of material fact.

We have reviewed the briefs of the parties and the legal file submitted on appeal. There are no genuine issues of material fact with respect to Pesek’s claims for false arrest and malicious prosecution. ITT Commercial Fin. v. Mid-America Marine, 854 S.W.2d 871, 376 (Mo. banc 1993). An extended opinion reciting the detailed facts and restating the 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 the order affirming the trial court’s decision pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Michael A. RUSSELL, Defendant/Appellant.
    No. ED 84988.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 30, 2005.
    Jessica Hathaway; Assistant Appellate Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen.; Ronald S. Ribaudo; Assistant Attorney General, Jefferson City, MO, for respondent.

      Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Michael A. Russell (Defendant) appeals from a judgment of conviction of trafficking in the second degree. Defendant alleges trial court error in denying his motions to suppress evidence and statements. We have reviewed the briefs of the parties and the record on appeal and conclude that the challenged evidence and statements were not “fruit of the poisonous tree,” and accordingly, the trial court did not clearly err in denying Defendant’s motions to suppress evidence and statements. See State v. Whitaker, 101 S.W.3d 332, 333 (Mo.App. E.D.2003). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


author: ROBERT G. DOWD, JR., Judge.

text:
    A & E ENTERPRISES, INC., Appellant, v. CLAIRSIN, INC., Respondent, and Missouri Highways and Transportation Commission, Defendant.
    No. ED 85614.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 30, 2005.

      Andrew R. Kasnetz, St. Louis, MO, for Appellant.
    Joseph Vincent Keady, Jr., Clayton, Philip E. Morgan, Jr., Chesterfield, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

A & E Enterprises, Inc. (A & E) appeals from the trial court’s grant of summary judgment in favor of Clairsin, Inc. (Clair-sin) in A & E’s action to set aside a conveyance of real property from the Missouri Highways and Transportation Commission (MHTC) to Clairsin. A <& E contends the trial court erred in granting summary judgment in Clairsin’s favor because MHTC exceeded its authority under Section 227.290, RSMo 2000, by failing to provide A & E with notice of its intention to sell the property and thereby rendering the conveyance to Clairsin void. Because we find there was no genuine issue of material fact and Clairsin was entitled to summary judgment as a matter of law, we affirm.

On March 6, 1964, MHTC obtained two tracts of land (Property) owned in fee simple absolute by Earnest, Josephine, Arthur, and Esther Dohacks (collectively referred to as the Dohacks). MHTC acquired the land by condemnation in connection with its construction and operation of the highways located in southern St. Louis County. The Dohacks remained the owners of other parcels of land adjoining the Property on the north and northeast sides. In August of 1978, the Do-hacks formed a corporation, A & E, and the title to the adjacent parcels of land was transferred to A & E by quitclaim deed. The Dohacks are the principals and sole shareholders of A & E. Beginning in 1996, A & E leased the adjacent parcel on the north side to Dave Sinclair Ford, Inc., a.k.a. Clairsin.

On September 1, 2000, MHTC conveyed the Property in a quitclaim deed to Clair-sin in exchange for $128,000. The quitclaim deed was prepared by employees of the Missouri Department of Transportation (MoDOT) and signed by MHTC Vice Chairman, Edward Douglas, and attested by Mary Ann Winters, Secretary to the MHTC.

Thereafter, on November 7, 2002, A & E filed a petition to set aside the conveyance and for damages naming Clairsin and MHTC as defendants. MHTC filed a cross-claim for declaratory judgment against Clairsin alleging the quitclaim deed was not authorized by MHTC and was therefore void. Clairsin subsequently filed a cross-claim against MHTC requesting a declaratory judgment that it was a bona fide purchaser of the Property and that MHTC authorized the conveyance. A & E, MHTC, and Clairsin each filed motions for summary judgment. A & E and MHTC both asserted in their motions for summary judgment that they were entitled to summary judgment because neither MHTC nor MoDOT gave notice of the sale to the Dohacks or A & E as required by Section 227.290, and, therefore, the conveyance was void. In its motion for summary judgment, Clairsin contended A & E was not the grantor nor in possession of the adjoining land under Section 227.290 and therefore, MHTC was not required to give notice. The trial court subsequently entered summary judgment in favor of Clairsin. A & E now appeals.

In its sole point, A & E contends the trial court erred in entering summary judgment in favor of Clairsin. A & E argues MHTC exceeded its authority pursuant to Section 227.290 by failing to provide A & E with notice of its intention to sell the Property, and therefore, the conveyance to Clairsin is void. We disagree.

Appellate review of a trial court’s grant of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 871, 376 (Mo. banc 1993). We will review the record in the light most favorable to the party against whom judgment was entered. Id. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id. We accord the non-movant the benefit of all reasonable inferences from the record. Id.

The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. The propriety of summary judgment is purely an issue of law. Id. Summary judgment is proper when there are no genuine issues of material facts and the movant is entitled to judgment as a matter of law. Id. at 380. If the non-movant cannot contradict the showing of the movant, judgment is properly entered against the non-movant because the movant has already established a right to judgment as a matter of law. Id. at 381.

Section 227.290 grants the MHTC authority to sell property that it no longer needs. Section 227.290 provides:

Whenever in the opinion of the state highways and transportation commission the advantageous use of any interest in land or any leasehold which has heretofore or may hereafter be acquired by the commission has ceased, the state highways and transportation commission shall have the authority to convey the same for the best available cash price by deed signed by its chairman or vice chairman and attested by its secretary; provided, however, that before any sale shall be consummated under this section, the grantor to the state of the property offered for sale, if real estate, and if such grantor shall at the time be in possession of the adjoining land, shall be notified by written notice of the state transportation department, of such contemplated sale; provided, that all moneys received from the disposal of any such interest in land or leasehold shall be deposited in the state treasury to the credit of the state road fund; provided further, that when any land or leasehold herein described has been donated without charge whatsoever, by the owner and grantor of said property to the purpose of the state highway construction or maintenance and such grantor is still in possession of contiguous property, the same shall revert to such original owner without cost to him if and when relinquished by the state.

(Emphasis added.)

Pursuant to Section 227.290, MHTC is only required to give notice to the grantor of the property if that grantor is still in possession of adjoining land at the time of the proposed sale. Here, the Dohacks were the grantors of the Property to MHTC. At the time of the sale of the Property to Clairsin, the adjoining land was owned by A & E and not the Dohacks.

A & E contends that because the Dohacks are the principals and sole shareholders of A & E, MHTC was required to give it notice. However, a corporation is a separate entity from its incorporators and shareholders. City of Lake Ozark v. Campbell, 745 S.W.2d 799, 801 (Mo.App. S.D.1988). Although the Dohacks are the shareholders of A & E, A & E is a distinct and separate entity from the Dohacks themselves. Furthermore, shareholders of a corporation should not be able to choose when its form is disregarded and when it is not. Id. Therefore, MHTC was not required to give A & E notice of the sale of the Property because A & E was not the grantor of the Property, and Clairsin was entitled to judgment as a matter of law. The trial court did not err in granting summary judgment in Clairsin’s favor. Point denied.

The judgment is affirmed.

NANNETTE A. BAKER, P.J. and SHERRI B. SULLIVAN, J„ concur.

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

      . In the event the trial court set aside the conveyance, Clairsin also sought in its cross-claim against MHTC money damages for improvements to the property and indemnity for any amounts of money A & E could recover from Clairsin as damages.


text:
    Brandon L. MAHON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85684.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 30, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Attorney General Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Brandon Mahon (Movant) appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. Mov-ant pleaded guilty to and was convicted of four counts of felony burglary in the first degree, Section 569.160, RSMo 2000, three counts of felony stealing, Section 570.030, RSMo 2000, and one count of misdemeanor stealing, Section 570.030, RSMo 2000, for which Movant was sentenced to concurrent terms of seven years’ imprisonment for each felony conviction and one year’s imprisonment for the misdemeanor conviction. On appeal, Movant argues the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing because (1) the plea court was without jurisdiction to sentence Movant to seven years’ imprisonment on Counts IV and VIII of felony stealing because the record reflects the property appropriated in those counts was not valued at $750 or more as required for a conviction of felony stealing under Section 570.030.3(1), and (2) Counsel misled Movant into pleading guilty by promising him he would receive a 120-day callback, under Section 559.115, RSMo 2000, and four years of probation in exchange for his guilty plea. We affirm.

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


author: LAWRENCE E. MOONEY, Judge.

text:
    Austin Michael WEISS, by his next friend, Kevin Joseph WEISS, and Kevin Joseph Weiss, Individually, Respondents, v. Sarah Marie CRITES, Appellant.
    No. ED 85021.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 30, 2005.

      Gordon Rolla Upchurch, Philip E. Adams, Union, MO, for appellant.
    Prudence Fink Johnson, Union, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

In this action for declaration of paternity and custody of a minor child, the mother, Sarah Crites, appeals from the trial court’s judgment awarding primary physical custody of the parties’ minor child to the father, Kevin Weiss. Because the trial court’s judgment does not include the required written finding detailing the specific relevant factors that made the court’s chosen custody arrangement in the best interest of the child, we reverse and remand.

Factual Background

The history of this litigation need not be recounted in detail. The child, Austin Weiss, was born out of wedlock to Sarah Crites and Kevin Weiss. The parties resided together until Austin was almost three years old. At that time, the mother informed father that she was involved in a lesbian relationship and that she preferred that relationship to a relationship with the father. Father moved out of the parties’ home and into his parents’ home. Austin remained with his mother. Father then filed a petition for declaration of paternity and an order of child custody, visitation, and support. Father requested that he and the mother have joint legal custody of the parties’ minor child, that he obtain primary physical custody of the child, and that the mother receive visitation rights. The mother, on the other hand, requested full legal and primary physical custody of the child, with the father receiving limited supervised visitation rights during the day on weekends.

The case was tried, and the trial court entered judgment, on May 6, 2004, declaring Kevin Weiss to be the biological father of the child, Austin Weiss. The trial court awarded the parties joint legal custody of the child, with primary physical custody of the child awarded to the father. The court adopted the father’s parenting plan, with one modification. The mother now appeals.

Standard of Review

On appeal from a court-tried case, we will sustain the trial court’s judgment and custody determination unless there is no substantial evidence to support the decision, the judgment is against the weight of the evidence, or the trial court erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Besancenez v. Rogers, 100 S.W.3d 118, 122 (Mo.App. E.D.2003).

Discussion

The mother alleges the trial court erred in transferring physical custody of the child from her to the father because the court’s judgment is not supported by substantial evidence, is against the weight of the evidence, and erroneously declares and applies the law. The mother contends the trial court made its custody decision solely and silently based on her sexual orientation without evidence that harm had or would result to the child.

We do not reach the mother’s specific contention, however, as the trial court did not make the required written finding detailing the specific relevant factors that supported its custody determination. Because the parties in this case had not agreed to the custodial arrangement regarding their minor child, the trial court was required to include in its judgment a written finding based on the public policy in section 452.375.4, RSMo.2000, and the factors listed in section 452.375.2(1) to (8) detailing the specific relevant factors that made the chosen arrangement in the best interest of the child. Section 452.375.6; Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005); Cunningham v. Cunningham, 143 S.W.3d 647, 650 (Mo.App. E.D.2004). The trial court did not include this required finding in its judgment. Thus, the court’s judgment is not in compliance with section 452.375.6. Speer, 155 S.W.3d at 62. Section 452.375.6 does not mandate written findings on all of the factors listed, but the relevant factors must be detailed. Id.

That part of the judgment declaring Kevin Weiss to be the biological father of the child, Austin Weiss, is affirmed. In all other respects, the judgment is reversed and the cause is remanded. On remand the trial court may, in its discretion, take further evidence and shall make the required findings in compliance with section 452.375.6. The trial court shall also enter its custody finding in conformity with section 452.375.1 because Missouri’s statutory scheme does not allow for an order granting “primary physical custody.” Id.

GLENN A. NORTON, C.J., and BOOKER T. SHAW, J., concur.

      . The parties do not dispute that Kevin Weiss is the natural father of Austin, and the mother, on appeal, does not challenge the trial court’s finding of paternity.

      . All statutory references are to RSMo.2000.

      . Section 452.375.1 provides that "[a]s used in this chapter, unless the context clearly indicates otherwise: (1) 'Custody', means joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof."

      .The mother also raises two other points on appeal, both alleging error in the trial court’s denial of her post-trial motions requesting a new trial, or, in the alternative, to set aside the judgment. Because consideration of our remand allows for the possibility of further evidence and the certainty of a new judgment, consideration of these points would be premature.


text:
    Michael HUNTER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85369.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 30, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Movant, Michael Hunter, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. On appeal, movant argues that his counsel rendered ineffective assistance for failing to negotiate a plea agreement for a more favorable sentence than he received.

The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    Cornell CHASE, Claimant/Appellant, v. BAUMANN PROPERTY CO. and Division Of Employment Security, Respondents.
    No. ED 85927.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 30, 2005.
    Ninion S. Riley, Jefferson City, MO, for respondent.
    Cornell Chase, St. Louis, MO, appellant acting pro se.
    Baumann Property Company, St. Louis, MO, respondent acting pro se.
   GLENN A. NORTON, Chief Judge.

Cornell Chase (Claimant) appeals from a decision by the Labor and Industrial Relations Commission (Commission) that affirmed the Appeals Tribunal’s dismissal of Claimant’s appeal. We dismiss the appeal.

A deputy -with the Division of Employment Security (Division) determined that Claimant was disqualified for sixteen weeks of unemployment benefits and that Claimant’s wage credits that he had accrued with his employer should be canceled because Claimant was discharged for aggravated misconduct connected with work. The deputy’s determination was mailed on August 8, 2004. The determination set forth the procedures to appeal the deputy’s determination to the Appeals Tribunal. The determination also stated that an appeal had to be filed no later than September 8, 2004. On December 20, 2004, Claimant sent a letter to the Division. Claimant stated he had not received notice of the deputy’s determination and he was filing an appeal. Claimant also challenged the deputy’s determination that he was discharged for aggravated misconduct with work. The Appeals Tribunal dismissed Claimant’s appeal because it “was not filed within the thirty-day statutory time limit and that the deputy’s determination ha[d] become final.” Section 288.070.4. Claimant filed an application for review by the Commission. Section 288.200.1. The Commission affirmed and adopted the decision of the Appeals Tribunal. Claimant appeals from this decision.

In his sole point on appeal, Claimant argues that there was not sufficient competent evidence to support a finding that he was discharged for misconduct related to work. Claimant contends that another person committed the act for which he was discharged.

The Division has filed a motion to dismiss the appeal. The Division first argues that Claimant’s late appeal to the Appeals Tribunal divests the Commission and this Court of jurisdiction. In support of this argument, the Division cites to Phillips v. Clean-Tech, 34 S.W.3d 854 (Mo.App. E.D. 2000). The Phillips case did not involve a late appeal to the Appeals Tribunal. Instead, it involved a late application for review with the Commission. Phillips, 34 S.W.3d at 855. This Court noted that there is no provision in section 288.200 for filing a late application for review with the Commission. Id. In contrast, section 288.070.8 does provide for filing a late appeal of a deputy’s determination to the Appeals Tribunal “for good cause.” The cases cited by the Division do not support a conclusion that a late appeal to the Appeals Tribunal will deprive the Commission and this Court of jurisdiction.

The Division also argues that Claimant’s brief must be stricken and the appeal dismissed because the only issue raised in Claimant’s brief was not considered by the Commission. We decline to strike Claimant’s brief. But we agree that Claimant’s brief presents nothing for this Court to review and therefore the appeal must be dismissed.

We may only address the issues that were determined by the Commission and may not consider issues that were not before the Commission. Perry v. Tiersma, 148 S.W.3d 833, 835 (MoApp. S.D. 2004). If an appellant does not file a brief on the issues pertaining to the appeal, then the appellant is deemed to have abandoned that appeal. Krause v. Assurant, Inc., 158 S.W.3d 329, 332-33 (Mo.App. W.D.2005).

Claimant’s sole argument on appeal is that there was not sufficient competent evidence to support a finding that he was discharged for misconduct connected with work. However, the issue before the Commission was the timeliness of Claimant’s appeal to the Appeals Tribunal. Claimant does not address this issue in his brief and there is not an issue presented for this Court to review. Although we prefer to dispose of a case on the merits, to do so here would require this Court to serve as an advocate for Claimant. Appellate courts should not become advocates for an appellant by speculating about facts and arguments that have not been made. Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo.App. E.D.2005)(discussing Rule 84.04). The Division’s motion to dismiss the appeal is granted.

Claimant’s appeal is dismissed.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.

      . All statutory references are to RSMo.2000.


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Dayon J. BALLARD, Defendant/Appellant.
    No. ED 84330.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 30, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

The defendant appeals from his judgment and sentence, which found him to be a persistent offender. Because the trial court plainly erred in this finding, we modify the judgment and sentence and, as modified, affirm.

The defendant pointed a gun at the victim and stole her money and car. After a car chase and foot pursuit, the police apprehended the defendant. The State charged the defendant with the crimes of robbery in the first degree, armed criminal action, and resisting arrest. After a jury found the defendant guilty of all charges, the trial court sentenced the defendant to concurrent terms of seventeen years for the robbery conviction, fifteen years for the armed criminal action conviction, and one year for the resisting arrest conviction.

We shall address only a single claim of error in our published opinion. The defendant argues that the trial court plainly erred in finding him a persistent offender in its judgment and sentence.

In the information, the State alleged that the defendant had three prior felony convictions and was a prior and persistent offender. During trial the following hearing was held:

THE COURT: All right. We’re in the courtroom outside the presence of the jury, and the State has asked for a hearing on its allegation that the Defendant is a prior offender. The State can go forward with regard to this allegation.
THE PROSECUTOR: Thank you, your Honor.
DEFENDANT’S COUNSEL: We’re going to stipulate, Judge, except that I believe it’s been stated on the charge in the City, I think [the prosecutor] already said it’s robbery second, not robbery first on the prior conviction. So [the defendant] doesn’t have to—
THE COURT: All right[.] So you waive proof of the fact that he is a prior offender?
DEFENDANT’S COUNSEL: Right. THE COURT: He has been convicted or been found guilty of a felony, and you waive proof of those?
DEFENDANT’S COUNSEL: Yes, Judge.
THE COURT: Is that acceptable to you, [the prosecutor]?
THE PROSECUTOR: It is, your Hon- or.
THE COURT: All right. Based on that concession, the Court finds the Defendant is a prior offender.

In its written judgment and sentence, the trial court checked the boxes for both a prior and persistent offender. The court also listed the three convictions that were set forth in the information.

The defendant admits that the issue was not properly preserved and therefore review is for plain error. “[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20.

A prior offender “is one who has pleaded guilty to or has been found guilty of one felony.” Section 558.016.2. A persistent offender “is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.” Section 558.016.3. The trial court shall find a defendant to be a prior and persistent offender if: (1) the indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior and persistent offender; (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior and persistent offender; and (3) the trial court finds beyond a reasonable doubt that the defendant is a prior and persistent offender. Section 558.021.1; State v. Johnson, 150 S.W.3d 132, 136 (Mo.App. E.D.2004). In addition, the necessary facts shall be pleaded, established, and found prior to submitting the case to the jury. Section 558.021.2; State v. Emery, 95 S.W.3d 98, 101-02 (Mo. banc 2003).

Here, the defendant was sufficiently established to be a prior offender under section 558.021.1. However, there was no evidence presented at the hearing that the defendant had pleaded guilty to or had been found guilty of two or more felonies committed at different times, as required for a finding that a defendant is a persistent offender. In addition, at the conclusion of the hearing, the trial court found that the defendant was a prior offender, but entered no finding that he was a persistent offender.

The State initially suggests that the defendant “may have waived proof of all of his prior offenses.” The State relies on the trial court’s statement during the hearing that the defendant was waiving “proof of those.” However, the defendant’s trial counsel stated that they were waiving proof for one conviction. The trial court then asked whether the defendant was waiving proof as to the defendant being a “prior offender” and the defendant’s counsel answered affirmatively. The trial court also referred to the defendant “being convicted or found guilty of a felony.” The defendant only waived proof for one conviction.

The State also contends that there were no consequences to finding the defendant was a persistent offender, rather than a prior offender. The State asserts that for the class A felony of robbery in the first degree, the unclassified felony of armed criminal action, and the misdemeanor of resisting arrest, there is no sentence enhancement for a persistent offender. Section 558.016. Accordingly, the range of punishment was the same regardless of whether the defendant was a persistent offender or a prior offender. The State argues that the defendant is therefore not entitled to relief because he did not suffer manifest injustice. However, this Court has held that if a “defendant has been improperly sentenced as a prior or persistent offender, a manifest injustice has occurred and it is appropriate for plain error.” State v. Dixon, 24 S.W.3d 247, 250 (Mo.App. E.D.2000). See also Section 558.041; State v. Reynolds, 161 S.W.3d 887, 888-89 (Mo.App. E.D.2005). The trial court plainly erred in checking the persistent-offender box on the sentence and judgment form.

The State concedes that if plain error is found, the remedy is to correct the written judgment, eliminating the persistent-offender finding. Under the circumstances presented here, we may finally dispose of this matter and correct the defendant’s judgment of conviction and sentence to reflect sentencing as a prior offender only. State v. Williams, 145 S.W.3d 874, 879 (Mo.App. E.D.2004). As for the defendant’s other point, we have furnished the parties with a memorandum for their information only, setting forth our reasons for denying the point. Rule 30.25(b).

We correct the judgment of conviction and sentence in State of Missouri v. Dayon Ballard, Cause No. 021-1129, Circuit Court of the City of St. Louis, Twenty-Second Judicial Circuit, by ordering that the sentence and judgment form be modified to reflect that the defendant has been found to be a prior offender and to delete any reference to the defendant as a persistent offender. In all other respects, the judgment of conviction and sentence is affirmed.

ROBERT G. DOWD, JR., J., and MARY K. HOFF, J., concur.

      . During sentencing, the prosecutor stated that the defendant had three prior felony convictions.

      . All statutory references are to RSMo.2000.

      . On appeal, the defendant concedes that his trial counsel stipulated to his prior conviction for robbery in the second degree and therefore waived proof of his prior-offender status.


text:
    Thomas E. REAY, Plaintiff/Respondent, v. Steven M. PHILIPS, Defendant/Appellant.
    No. ED 85974.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 30, 2005.
    Thomas Reay, Florissant, MO, Respondent acting pro se.
    Steven Philips, Florissant, MO, pro se.
   GLENN A. NORTON, Chief Judge.

Steven Philips (Appellant) appeals from the judgment and full order of protection entered against him and in favor of Thomas Reay (Respondent). We dismiss the appeal as moot.

The parties in this case are neighbors. On February 10, 2005, Respondent filed a petition seeking an order of protection against Appellant. In the petition, Respondent alleged that Appellant had assaulted him and was stalking him. After a hearing on February 28, 2005, the trial court entered a judgment and full order of protection. The judgment further stated “This order shall be effective until (date) 6/28/05, unless sooner terminated or extended.” Respondent appeals to this Court. On June 28, 2005, during the pen-dency of this appeal, the order of protection expired.

A case is moot where an event occurs that makes the court’s decision unnecessary or makes it impossible for the court to grant effectual relief. Flaherty v. Meyer, 108 S.W.3d 131, 132 (Mo.App. E.D. 2003). A decision by this Court regarding an order of protection that has expired is unnecessary and it is impossible for us to grant any relief. Snyder v. Snyder, 136 S.W.3d 843 (Mo.App. E.D.2004). Therefore, this appeal is moot.

This Court has a duty to examine its jurisdiction sua sponte. Talbot v. Union Elec. Co, 157 S.W.3d 376, 378 (Mo.App. E.D.2005). We issued an order to Appellant directing him to show cause why his appeal should not be dismissed as moot. Appellant filed a response. He contends this matter is a blemish on his legal record and he wants to have it expunged from his record. Even if an appeal is moot, we may exercise our jurisdiction when an appeal presents an issue of “general public interest and importance” that will evade appellate review. Flaherty, 108 S.W.3d at 132. Although Appellant may believe he has compelling personal reasons for his appeal, which in his mind would warrant our review, this is not the type of ease falling within the general public interest exception.

The appeal is dismissed as moot.

KATHIANNE KNAUP CRANE J., and BOOKER T. SHAW, J. concur.


text:
    Chadrick TAYLOR, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85469.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 30, 2005.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Deborah Daniel, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Chadrick Taylor, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. On appeal, movant argues that his counsel rendered ineffective assistance during the sentencing hearing.

The trial court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no prece-dential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re the MARRIAGE OF Susan Elizabeth JOHANSON and Troy Melvin Johanson. Susan Elizabeth Johanson, Petitioner-Respondent, v. Troy Melvin Johanson, Respondent-Appellant.
    No. 26717.
    Missouri Court of Appeals, Southern District. Division One.
    Aug. 31, 2005.

      Richard D. Bender, Springfield, for appellant.
    Gail L. Fredrick, Douglas C. Fredrick, Springfield, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Troy Melvin Johanson (“Father”) and Susan Elizabeth Johanson (“Mother”) were married for almost four years; their child was born three years prior to the marriage. Father has two children by his first wife for which he has an $11,000 arrearage on child support, one child by his second wife for which there is no child support obligation, and one child by his third wife for which he has a child support arrearage of $17,041.96. He currently receives social security for a disability. The court adopted Mother’s Form 14 calculation based upon a monthly income attributable to Father of $650.00 from social security, $300.00 from “Indian gaming” and $1,000.00 “imputed”; the court ordered Father to pay $345.00 per month in child support for his fifth child.

Father contends, in his sole point on appeal, that there was insufficient evidence to support an imputation of income to Father. Specifically, Father states the only evidence for the imputation of any income was the testimony of Mother that “at one point, when we took his deposition, [Father] was working out at the Snow Bluff Complex with some type of program.” Father, who appeared pro se at trial, did not provide an updated property schedule or financial information. Father argues that the award of social security disability is inconsistent with a finding that Father is capable of earning additional income.

Mother counters that no evidence was offered to prove that Father actually did have a disability, what his disability was, or to what extent he was disabled. Mother cites to evidence that Father worked “intermittently” during the marriage at different places and helped care for the children when he was not working. She cites to evidence that he was previously employed at the Patha Heritage Center and Snow Bluff, had a restaurant and tribal area at Snow Bluff, and worked at Surrey Resorts; however, she did not know his current employment status. Mother also testified that Father was able to drive, cook meals, help get the children ready for school and care for the children when they were sick while she worked and he did not.

The standard of review for a judgment of dissolution is the same for any court-tried case. Holtgrewe v. Holtgrewe, 155 S.W.3d 784, 786 (Mo.App. E.D.2005). Therefore, we will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. In re Marriage of Lindeman, 140 S.W.3d 266, 270 (Mo.App. S.D.2004); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The trial court is allowed to impute income to prevent a parent from dodging his support commitments by deliberately limiting or reducing work to reduce income. Perkins v. Perkins, 21 S.W.3d 184, 186 (Mo.App. S.D.2000). Imputation of income should only occur in the proper circumstances; those being where the parent has tried to evade his obligations. Id. For purposes of the Form 14 calculation, a trial court may impute income to a parent who has voluntarily become unemployed or underemployed, thus reducing his income. Young v. Beckman, 147 S.W.3d 899, 903 (Mo.App. W.D.2004). The income imputed is based upon what the parent could earn by use of his or her best efforts to gain employment suitable to his or her capabilities. Burton v. Donahue, 69 S.W.3d 76, 79 (Mo.App. E.D.2001). The decision whether or not to impute income is decided by the facts on a case by case basis. Id.

Even though the trial court may impute a higher income to a party, an award of child support must be supported by evidence at trial of the parent’s ability to pay. Walker v. Walker, 936 S.W.2d 244, 248 (Mo.App. S.D.1996). The trial court is not allowed to speculate when setting the amount of income. Monnig v. Monnig, 53 S.W.3d 241, 247 (Mo.App. W.D.2001).

Mother argues that Father is underemployed and the imputation of income was proper because of the “intermittent” employment history and Father possessing “a requisite amount of intellect so as to represent himself pro se in a court of law,” which indicates that he possesses “organizational, managerial, and financial skills that would enable him to work in an office environment, possibly in a managerial capacity.” She points to Father’s care of the child to assert that he is qualified to work in the food preparation, delivery, or childcare industry. Mother concludes that though “Father claimed he could earn nothing,” the record supports the fact that he possessed the capacity to earn something.

Earning “something” does not equate to an imputation of $1,000.00 per month, each and every month. Intermittent working throughout the marriage does not support the imputation of income. Being mindful that the court takes parties where it finds them, the facts are that the court dissolved a marriage where Mother worked and Father, who was on social security disability, did not during most of the marriage. There is no evidentiary basis for the imputation to Father of income in the amount of $1,000.00 per month, nor that he has the ability to pay child support based on this imputation. The judgment is reversed and remanded for a determination of the correct amount of child support. We reverse the portion of the decree awarding child support and remand the case to the trial court for further proceedings consistent with this opinion. In all other respects, the decree is affirmed.

PREWITT, P.J., and PARRISH, J., concur.

      . According to Mother, Father receives an annual $3,000.00 distribution from Indian gaming revenues.

      . The court did not give any adjustment on Line 2 of the Form 14 for any other court or administratively ordered child support being paid; however, Father has not appealed that omission.

      . Mother cites to evidence indicating that Father was inappropriate as a caretaker for the minor child, but that issue is not before us as Mother did not appeal the parenting plan. In fact, Mother proposed a parenting plan allowing substantial unsupervised visitation.

      . Mother does note that the probable cause determination by the Division of Family Services that Father had sexually abused his stepdaughter may be a hindrance in the childcare industry.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Amanda BUSSE, Defendant-Appellant.
    No. 26399.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 2, 2005.

      Susan L. Hogan, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. General, Daniel N. McPherson, Asst. Atty. General, Jefferson City, MO, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Amanda Busse (“Appellant”) was charged by information with murder in the first degree in violation of section 565.020, but was convicted after a jury trial of one count of murder in the second degree in violation of section 565.021. Appellant was sentenced to twenty-five years imprisonment. In her sole point on appeal, Appellant asserts the trial court erred in sustaining the prosecutor’s objection to Defense Counsel’s voir dire question on the issue of the range of punishment for second degree murder. We affirm.

Appellant does not challenge the sufficiency of the evidence, therefore, we will view the evidence in a light most favorable to the verdict. State v. Johnson, 95 S.W.3d 221, 222 (Mo.App. S.D.2003). The evidence adduced at trial reveals that Diane Coleman (“Diane”), thirty-two, did not return to Westwood’s Care Center (“West-wood”) on the night of November 11, 1997. Diane had schizophrenia and was being monitored at Westwood. Her body was discovered a few days later, on November 15, 1997, in Crawford County, floating in the Meramec River. An autopsy revealed that her injuries were consistent with a beating, which resulted in her death. She had numerous cuts and lacerations on her arms and hands from trying to defend herself. The autopsy further suggested that the beating occurred with different blunt objects. The cause of death was blunt impacts to the head with injury to the brain.

On the evening of November 11, 1997, eleven-year-old Kenneth Paul Busse (“Kenneth”) was living with his grandmother when his sister, Appellant, stopped by between 11:30 p.m. and 12:30 a.m., and told Kenneth she wanted to take him to a party to celebrate his birthday. Kenneth reluctantly left his grandmother’s house and climbed into a van driven by Larry DeClue (“Larry”), Appellant’s boyfriend. Also in the van were a few of Appellant’s friends: Jeremy Payne (“Jeremy”), Angela Cody, and Melissa O’Brien. Appellant offered a piece of paper with LSD on it to Kenneth and instructed him to place it underneath his tongue. He followed her instructions, but removed the piece of paper after five to ten seconds.

Kenneth fell asleep in the backseat of the van before they all arrived at the party. When he awoke, however, he was not at a party. Instead the van was stopped and completely empty. He climbed out of the van and saw that all of the van’s occupants were in the road. Kenneth asked Appellant what was going on and when Appellant stepped aside Kenneth could see a woman lying face up between all of them. Larry then left the circle around the woman and went to the van. He returned carrying three items: a pipe cutter, a crowbar, and a little souvenir baseball bat. He instructed those standing in the circle to hit the woman lying on the ground so that “nobody could snitch on anybody.” Larry was the first to hit the woman. A bat was eventually passed to Kenneth who raised it up and then dropped it and ran crying back to the van. Everyone took turns hitting the woman and Kenneth saw Appellant hit the woman three or four times. The woman tried to speak and defend herself, but only a gurgling sound came out. Larry and Jeremy carried the body to the edge of the bridge to toss her over the side but the woman’s foot became lodged in some foliage along the bank. Larry eventually dislodged her foot. When Larry returned to the van, he threatened that if anyone ever said anything about what happened he would take care of it.

The next day Larry and Jeremy picked Kenneth up from his grandmother’s house in a pickup truck and drove him to the bridge where they had dumped the body the night before. Larry and Jeremy went down into the ravine and came back up with the body wrapped in a tarp; they placed the body in the bed of the pickup truck and drove to a piece of property in the woods. They instructed Kenneth to get out of the truck and wait for them there at an old cabin. The truck took off on a trail that led to the river and Larry and Jeremy did not return for over an hour. When the pickup finally returned, Jeremy was no longer a passenger with Larry. Instead, Kenneth’s uncle was riding with Larry. The two exited the vehicle and ordered Kenneth to fetch rags and a bucket of water. Kenneth’s uncle and Larry cleaned the bed of the truck with soap and bleach and then Kenneth was taken back to his grandmother’s house. Diane’s body was later discovered in Mera-mec River by hunters.

The jury found Appellant guilty of second degree murder and the trial court sentenced her to twenty-five years imprisonment. This appeal followed.

In Appellant’s sole point on appeal, she contends the trial court erred in sustaining the prosecutor’s objection to Defense Counsel’s voir dire question on the issue of punishment for second degree murder, because it violated Appellant’s right to due process of law and to a fair trial with an impartial jury. Further, she asserts that the questions were legitimate questions which were necessary to determine whether members of the jury panel would be able to follow the court’s instructions and consider the entire range of punishment if Appellant were found guilty of a lesser included offense.

A defendant is entitled to a fair and impartial jury under both the Missouri and United States Constitutions. U.S. CONST, amends. VI, XIV; MO. CONST, art. I, sec. 18(a) (1945, as amended 1976). In order to make sure that such a jury is fair and impartial there must be an adequate voir dire that identifies unqualified jurors. State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000). “[T]he trial judge is vested with the discretion to judge the appropriateness of specific questions, and is generally vested with wide discretion in the conduct of voir dire.” Id.; see also State v. Cummings, 134 S.W.3d 94, 109 (Mo.App. S.D.2004) (holding that the control of voir dire is a matter within the sound discretion of the trial court). While it is the rule in this state that a liberal latitude is allowed in the examination of veniremembers, there is one legitimate limitation. State v. Clement, 2 S.W.3d 156, 159 (Mo.App. W.D.1999). This limitation occurs at the point where questioning tends to create prejudice. Id.

We will reverse only for an abuse of discretion and where Appellant can demonstrate prejudice. State v. Gilbert, 103 S.W.3d 743, 746 (Mo. banc 2003). The trial court abuses its discretion in control of voir dire only if the voir dire permitted does not allow for the discovery of bias, prejudice or impartiality. State v. Barton, 998 S.W.2d 19, 25 (Mo. banc 1999). “On appeal, discretionary rulings are presumed correct, and the appellant bears the burden of showing the abuse of discretion.” Pollard v. Whitener, 965 S.W.2d 281, 286 (Mo.App. W.D.1998) (quoting Anglim v. Missouri Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992)). “Where an appellant claims that a trial court abused its discretion in conducting the voir dire, he has the burden of showing a ‘real probability’ that he was prejudiced by the abuse.” Oates, 12 S.W.3d at 311. We find no abuse of discretion here.

The trial court commenced the voir dire with questions about the panel members’ relationship with the parties, the lawyers and their associates, their knowledge of the facts of the case, hardships created by jury services, and other questions of a general nature. After the prosecutor conducted his examination of the panel, Appellant’s counsel (“Defense Counsel”) began his voir dire examination. Following some very general questions, Defense Counsel asked the following question:

[DEFENSE COUNSEL]: I want everyone to understand, [Appellant] is charged with murder first degree. The punishment, if convicted of murder first degree—
[PROSECUTOR]: Objection, Your Hon- or. May counsel approach?
THE COURT: Did you want to approach?
(The following proceedings were held at the bench, out of the presence of the jury panel.)
[PROSECUTOR]: Punishment on murder first, if not submitted to a jury, should not be argued in voir dire. No reason to be mentioned in voir dire.
THE COURT: Are we going to talk about range of punishment or the fact that she’s punished? You can talk about the fact that there’s punishment, but the range thereof is not appropriate.
[DEFENSE COUNSEL]: They have a right to know because what happens is, if in fact they actually have a jury sentencing.
THE COURT: I’m well aware of that. We can talk about the fact of punishment and the penitentiary is one of those options, but as far as the range of punishment, that’s not appropriate on voir dire. It’s whether they can give punishment or not give punishment; it’s not the range of years. That’s prejudicial to go into the fact of the range of years.
[DEFENSE COUNSEL]: Can I talk about anything with the range of punishment in reference to years?
THE COURT: Sure. You can talk about it’ll be a long time, but as far as the specific range of number of years, that’s inappropriate.
[DEFENSE COUNSEL]: Okay. Well, I just want the record to reflect that I would ask this jury that if they could follow the instruction that says murder first is life without parole and if in fact that if, you know, if there is lesser included, that there may be a range of punishment on a murder second.
[PROSECUTOR]: There is no such instruction, Your Honor, under the new system of instruction.
THE COURT: Well, that question is inappropriate as being compound, for one thing. It’s also inappropriate because you’re here. You’re inflaming the jury with regard to the number of years. You can go, in the sense of it can be an extreme number of years, lots of years, but you’re not going to give details of life without parole or the range.
[DEFENSE COUNSEL]: Okay. Just so the record is clear, Judge, that it was two separate questions that I propose to ask.
THE COURT: Well, you gave me a compound. I’m talking about the range of years. That’s where we’re at.
[DEFENSE COUNSEL]: I understand, but I want your ruling based on that those axe two separate questions that I was going to ask.
THE COURT: What was your other one?
[DEFENSE COUNSEL]: The first one was for murder first, it is life without parole, and on murder second the range of punishment is from ten to thirty years or life.
THE COURT: Well, we’re not going to talk about up and down the ranges on whether they don’t find guilty on one. We’re not going to talk about specific term of years.
[DEFENSE COUNSEL]: I just want the Court to make clear that those are the two questions I was going to ask and that I’m being disallowed from asking either question.
THE COURT: You’re being disallowed from asking it and giving that range of years. I’m telling you, you can emphasize the fact we’re talking about a lot of years.
[DEFENSE COUNSEL]: I’m going to do that, sir. I appreciate it. I understand the ruling, but I just want the record clear.

The proceedings returned to open court and Defense Counsel asked the following questions:

On murder first, if there is a conviction, there is a punishment that is a lot, a lot, a lot of years. Does everybody here understand we’re talking about something that is very, very serious? Does everyone understand? I expect that the state will call witnesses that will include family members of [Appellant]. Can you consider the possibility that a family member may lie on another family member?

While the record reveals that although the court sustained the prosecutor’s objection to Defense Counsel’s question regarding the specific range of punishment, Defense Counsel was allowed to explain and question the venire on the fact that punishment for murder first was serious and would be for a very long time. Defense Counsel did not make any further statements regarding murder in the second degree. Appellant argues that the jurors must be able to consider the full range of punishment, as in capital murder cases because, she asserts, to do otherwise is an abuse of discretion. Appellant cites to capital murder cases for the general proposition that veniremembers are picked according to their ability to consider the full range of punishment, including the death penalty. Appellant does not cite to any cases for the proposition that the court abuses its discretion in disallowing voir dire questions covering the specific range of punishment in lesser included offenses. We do not find any cases for that proposition either and further do not believe the cases involving the death penalty are apropos on this issue. It is the trial court’s role to instruct the jury as to the range of punishment authorized by statute. Section 557.036. We do not see how the trial court abused its broad discretion in refusing to allow Defense Counsel to discuss with veniremembers that the range of punishment for second degree murder was ten to thirty years or life. The jury recommended a sentence of twenty-five years, which was within those parameters. We find no abuse of discretion in the denial of further discussion of the range of punishment. The point is denied.

GARRISON, P.J., and PREWITT, J., concur.

      . All references to statutes are to RSMo 2000 unless otherwise specified.

      . Since several individuals share the same surname, we will use their given names for purposes of clarity. No disrespect is intended.

      . Section 557.036 was changed effective June 27, 2003, to provide for the bifurcation of trials into first, a determination of guilt and second, a determination of punishment. The court does not instruct the jury on the range of punishment until the second phase.