author: MICHAEL A. WOLFF, Judge.

text:
    STATE of Missouri, Respondent, v. Jeremy D. PIKE, Appellant.
    No. SC 86083.
    Supreme Court of Missouri, En Banc.
    April 26, 2005.
    Rehearing Denied May 31, 2005.

      Bruce B. Brown, Kearney, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Deborah Daniels, Michael J. Spillane, Asst. Attys. Gen., Jefferson City, for respondent.
   MICHAEL A. WOLFF, Judge.

Jeremy Pike appeals from his convictions for the class D felony of driving while intoxicated, the class A misdemeanor of driving whole revoked, and the class C misdemeanor of following another vehicle too closely. Pike contends:

1. The provision of section 577.023 that enhances a driving while intoxicated charge from misdemeanor to felony by including prior DWI offenses from courts- where the judge is a lawyer — but not including offenses from non-lawyer judge courts — violates equal protection and due process constitutional guarantees;
2. The arresting officer did not have reasonable suspicion to justify stopping Pike’s car and, thus, Pike’s Fourth Amendment rights were violated;
3. The evidence was insufficient to support the driving while intoxicated conviction; and
4. The evidence was insufficient to support the conviction for following too closely.

Because of the challenge to the validity of statute, this Court has exclusive appellate jurisdiction. Mo. Const, art. V, section 3.

The judgment of the trial court is affirmed.

Facts and Procedural History

At approximately 2:20 a.m. on August 23, 2003, a Missouri Highway Patrol trooper was stationed, facing east, in a fully marked patrol car, next to 152 Highway in Platte County, Missouri. The double-lane highway was under construction with some of the westbound left lane closed. From behind him, the trooper observed three vehicles traveling east. The trooper was unable at trial to remember the exact speed of the vehicles, but he believed that the vehicles were traveling between 45 and 55 miles per hour. The speed limit was 55 miles per hour. The trooper did not observe the first vehicle use its brakes or slow down drastically when it approached or passed him.

The second vehicle — with Pike driving— was about one car length behind the first vehicle. The third vehicle was about one and one half car lengths behind the second vehicle. The trooper followed the vehicles. At two separate times while following the vehicles, the trooper observed Pike’s car cross the fog line by as much as one foot; each time, the car was partially driving on the shoulder.

After straying over the fog line twice, Pike entered the exit ramp for Platte Purchase Drive. The trooper turned on his lights and pursued Pike up the exit ramp, and the car pulled over. The trooper stopped his patrol car and approached Pike’s car from the rear. Pike produced a Missouri nondriver identification card. Also in the car were the vehicle’s owner and two juveniles.

A video recorder in the patrol vehicle recorded the traffic stop. The trooper asked Pike to get out of the car and Pike complied. Pike appeared to be chewing gum as he walked to the patrol car.

In the patrol car, the trooper observed that Pike’s eyes were watery, glassy, red, bloodshot, and “somewhat staring.” The trooper smelled a strong odor of alcohol from Pike, and Pike admitted that he had had four beers. Pike’s speech was “somewhat slurred and mumbling.” Based on these observations, the trooper suspected that Pike was intoxicated.

Pike was asked to perform some field sobriety tests, and he complied. At the trooper’s direction, the tests were performed behind the highway patrol car; thé tests were not recorded by the patrol car’s video camera. The trooper testified that he requested the tests be performed behind the highway patrol car, rather than between the two vehicles, because he was the only officer on the scene, there were still three people in the car Pike had been driving, and the patrol vehicle would serve as a barrier between himself and the passengers in the stopped car.

Pike failed all six possible points on the horizontal gaze nystagmus test. The trooper then asked Pike to recite the alphabet from C to W, but Pike recited from G to Z. During the Romberg balance test, Pike failed to estimate when 30 seconds had elapsed within the 4-5 second standard deviation cutoff for passing the test. Pike also failed the one-leg stand test by using his hands to balance, stepping down two times, and swaying. A preliminary breath test administered at the scene was positive for alcohol; results of the preliminary breath test are proper for determining whether there is probable cause for an arrest but are inadmissible as evidence of blood alcohol content. Section 577.021.

The field sobriety tests strengthened the trooper’s suspicions that Pike was intoxicated, and Pike was arrested for driving while intoxicated at approximately 2:47 a.m. Pike was placed in the patrol vehicle while the car Pike had been driving was searched. A cooler containing beer was found in the car.

At the Platte County jail, the trooper read Pike the Miranda warnings and the “implied consent” warnings. See section 577.020.1. Pike agreed to take a breath test to determine his blood alcohol level. Pike said he had had five beers at a party. The test was administered at 4:09 a.m., with a result of .121 percent, which was over the legal limit of .08 percent. The result of the breath test taken at the county jail, if the test was properly administered, is admissible to support a conviction. Section 577.020.

The parties stipulated to the introduction of Pike’s driving record showing that his license was revoked at the time of the stop. Pike also stipulated that he had two prior driving while intoxicated convictions, one a municipal conviction from Oakview, Missouri, and one from Platte County.

Pike filed a motion to suppress and a motion to declare section 577.023 unconstitutional. The judge overruled both of these motions after a hearing. During a bench trial in April 2004, Pike renewed his motion to suppress and objected to the introduction of any evidence obtained after the vehicle stop. The objection was overruled, and Pike was found guilty of felony driving while intoxicated, driving while his license was revoked, and following too closely. Pike was found not guilty of possession of alcohol by a minor.

Discussion

1. Constitutionality of section 577.023.1

Pike argues that section 577.023.1 is unconstitutional in that it violates the equal protection and due process clauses of the United States and Missouri constitutions. All statutes are presumed to be constitutional; a statute will not be held unconstitutional unless “it clearly and undoubtedly contravenes the constitution.” United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004). A statute will be enforced unless it “plainly and palpably affronts fundamental law embodied in the constitution.” Id. Doubts will be resolved in favor of the constitutionality of the statute. Id.

Equal Protection

Pike argues that section 577.023 violates his right to equal protection guaranteed by the United States and Missouri Constitutions. Section 577.023.3 requires a court to enhance a “persistent offender’s” driving while intoxicated conviction from a misdemeanor to a felony. A “persistent offender” is defined as someone who has two prior convictions for intoxication-related traffic offenses within ten years of the charged offense. Section 577.023.1(2)(a). To be subject to the enhanced penalty as a persistent offender, each prior offense must have been a “violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the defendant was represented or waived the right to an attorney in writing.” Section 577.023.1(1) (Emphasis added). Therefore, only offenders whose prior convictions were heard before a lawyer judge are subject to section 577.023.3’s enhancement to a class D felony.

Pike’s driving while intoxicated charge was enhanced to a felony based on section 577.023 and Pike’s two prior convictions, one for a state law violation and one for a municipal ordinance violation where the judge was a lawyer. Pike argues that the disparate treatment applied to those with prior convictions before a lawyer judge violates the equal protection clause.

The first step in considering an equal protection claim is to determine whether the challenged classification operates against a suspect class or impinges upon a fundamental right. In re Marriage of Kohring, 999 S.W.2d 228, 231-32 (Mo. banc 1999). If the statute does not discriminate against a suspect class and does not implicate a fundamental right, then the rational basis test of review will be applied. Id. Pike does not claim to belong to a suspect class, nor does one exist. Pike contends that section 577.023 involves a fundamental right. Fundamental rights are those rights that “are ‘deeply rooted in this Nation’s history and traditions,’ and ‘implicit in the concept of ordered liberty.’ ” In re Marriage of Woodson, 92 S.W.3d 780, 783 (Mo. banc 2003); Riche v. Dir. of Revenue, 987 S.W.2d 331, 336 (Mo. banc 1999).

Pike argues that a fundamental right is implicated where an offense is “transformed from a misdemeanor to a felony.” However, an enhanced sentence under section 577.023.3 is not a new offense. See Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Rather, proof of prior convictions under section 577.023 “merely serves to authorize enhanced punishment for the underlying offense charged, if the defendant is found guilty.” State v. Cullen, 39 S.W.3d 899, 904 (Mo.App.2001). Since section 577.023 creates no new offense, no fundamental right is implicated by the enhancement provision, and the rational basis test applies.

The oft-stated rational basis test requires only that the challenged law bear some rational relationship to a legitimate state interest. To prevail under the rational basis test, Pike must show that the classification has no reasonable basis and is purely arbitrary. Miss Kitty’s Saloon, Inc. v. Missouri Dep’t of Revenue, 41 S.W.3d 466, 467 (Mo. banc 2001). Under rational basis review, this Court will not substitute its judgment for that of the legislature as to the wisdom, social desirability or economic policy underlying a statute. Kohring, 999 S.W.2d at 233.

This Court has previously acknowledged that section 577.023 promotes the State’s interest in “deter[ring] persons who have previously been convicted of driving while intoxicated from repeating their unlawful acts and to severely punish those who ignore the deterrent message.” A.B. v. Frank, 657 S.W.2d 625, 628 (Mo. banc 1983).

Pike argues that the provision relating to lawyer judges bears no rational relationship to this deterrence goal. He argues that this provision creates a “happenstance” classification, citing State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

A statute may have more than one purpose. The challenged statutory provision clearly indicates the legislature’s belief that a defendant subject to an enhanced driving while intoxicated charge deserves the protection of a judge fully trained in the law. This is not merely a “happenstance” classification, because it provides additional protection to defendants. Section 577.023’s classification relates to a legitimate state interest and is constitutional under the rational basis test.

Due Process

The United States and Missouri Constitutions require that due process of law be provided before an individual may be deprived of life or liberty. Pike argues that the enhancement provision of section 577.023 violates his right to substantive due process.

Pike argues that municipal convictions are generally civil matters and should not be treated as criminal convictions for enhancement purposes. This is true, Pike argues, because of the increased procedural protections available in state convictions compared to municipal convictions and because of the different penalties that may be imposed upon conviction. He argues that because most municipal convictions either do not authorize incarceration or carry a maximum penalty of a much shorter incarceration, it violates his due process rights to later consider his municipal conviction in the same way as his state conviction.

Incarceration was not authorized as a punishment when Pike pled guilty in the municipal proceeding. Therefore, Pike argues, he had an increased incentive to plead guilty rather than risk prosecution, and possible incarceration, by the state.

Pike’s contention is controlled by Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), where the defendant objected to the enhancement of his federal drug conviction based, in part, on an uncounseled municipal driving while intoxicated conviction. The Court first cited Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), where it was determined that a defendant did not have the constitutional right to counsel in a misdemeanor case, unless incarceration was actually imposed as a sentence. Id. at 743, 114 S.Ct. 1921. Under Scott, Nichols’ municipal DWI conviction was constitutional, because Nichols was not sentenced to prison. Id. The Court upheld enhancement of Nichols’ sentence, based partly on the prior municipal conviction. The Supreme Court recognized that an otherwise constitutional conviction, whether municipal or state, may properly be used to enhance a later conviction. Id. at 747, 114 S.Ct. 1921.

Pike does not allege that his original municipal conviction was unconstitutional, nor is there any evidence to support this proposition. Rather, he asserts that the use of his municipal conviction to enhance his later sentence was unconstitutional. Under Nichols, however, section 577.023 does not violate a defendant’s due process rights by allowing a penalty enhancement based on a prior constitutional municipal conviction.

2. Reasonable Suspicion Justifying Stop of Pike’s Vehicle

Pike argues that the trooper’s stop of his vehicle violated his Fourth Amendment right to be free from unreasonable search and seizure; therefore, he argues, all evidence obtained during and after the traffic stop should be suppressed.

The state argues that Pike did not properly preserve this issue for appeal because he objected only to the overruling of his motion to suppress and not to the admission of the underlying evidence at trial. At trial, Pike again requested that his motion to suppress be granted and asked for and received a continuing objection to all evidence presented relating to events after the stop of Pike’s vehicle. This objection was sufficient to preserve this issue for appeal.

At a motion to suppress hearing, the State bears the burden of proving that the seizure was constitutionally proper. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999); State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). When reviewing the trial court’s overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court’s ruling. Deck, 994 S.W.2d at 534; State v. Baskerville, 616 S.W.2d 839, 843 (Mo.1981).

The Fourth Amendment of the United States Constitution guarantees citizens the right to be free from “unreasonable searches and seizures.” The Missouri constitution offers the same level of protection; the same analysis applies to cases under the Missouri Constitution as under the United States Constitution. State v. Damask, 936 S.W.2d 565, 570 (Mo. banc 1996). :

Stopping Pike’s car was a “seizure” for purposes of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). As a general rule, warrantless seizures are unreasonable and, thus, unconstitutional. State v. Miller, 894 S.W.2d 649, 651 (Mo. banc 1995). An exception to this rule was recognized in Terry v. Ohio, where the Supreme Court held that a brief investigative stop may be conducted where an officer has a “reasonable suspicion” based on “specific and articulable facts” that illegal activity has occurred or is occurring. 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968); see also State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999).

The existence of reasonable suspicion is determined objectively: “would the facts available to the officer at the moment of the seizure or search “warrant a man of reasonable caution in the belief that the action taken was appropriate?’ ” Terry, 392 U.S. at 21-22, 88 S.Ct. 1868. The reasonableness of an officer's action is determined by balancing the interest to be served against the privacy interest affected by the seizure. Id. at 21, 88 S.Ct. 1868.

Terry’s reasonable suspicion standard applies to traffic stops. Deck, 994 S.W.2d at 534; Miller, 894 S.W.2d at 651. Reasonable suspicion — and therefore a traffic stop — may be based on the officer’s observation of a traffic violation. State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004); State v. England, 92 S.W.3d 335, 339 (Mo.App.2002). A traffic violation, however, is not required to create reasonable suspicion to justify a stop; justification may be based on erratic or unusual operation. See Deck, 994 S.W.2d at 535; State v. Bunts, 867 S.W.2d 277, 280 (Mo.App.1993).

Reasonable suspicion is a less stringent standard than probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Reasonable suspicion may be established with information that is different in amount or content, or that is less reliable, than the evidence required to establish probable cause. Id. The quantity and quality of the information must be considered in the “totality of the circumstances” to determine whether reasonable suspicion exists. Id.

Considered in the light most favorable to the state, the evidence presented at the suppression hearing and at trial supported the trooper’s reasonable suspicion that unlawful activity had occurred. Pike was one of relatively few drivers on the road at 2:20 in the morning. The trooper observed Pike following another vehicle at a distance of approximately one car length or so, which the trooper testified was not an adequate distance when considering the speed of the vehicles. The trooper observed Pike’s vehicle travel over the fog line dividing the travel lane from the shoulder on two occasions. Even though this did not constitute “erratic” driving in the trooper’s opinion, there was no evidence of any obstruction or other circumstance that would necessitate driving on the shoulder and no evidence that either of the other two vehicles went onto the shoulder. These facts, considered in fight of the trooper’s experience as a highway patrol officer, provided a reasonable suspicion that a traffic violation had occurred and justified the stop of Pike’s vehicle. In fact, the trial court found that the evidence proved beyond a reasonable doubt that traffic violations had been committed. When considering the facts and inferences therefrom in the fight most favorable to the trial court’s judgment, it is clear that the trooper could point to specific facts— the distance between the vehicles and the transgressions over the fog fine — that provided a reasonable suspicion that Pike had committed at least one traffic violation. The stop was constitutionally permissible.

3. Sufficiency of the Evidence — Driving While Intoxicated

Pike argues that the trial court erred in overruling his motion for acquittal on the issue of driving while intoxicated. Pike contends that there was insufficient evidence to find him guilty of this charge, because the trooper’s testimony was contradictory, inconsistent, vague, and speculative; because the evidence that he was intoxicated was invalid or unreliable; and because the breath test was not properly admitted.

When the sufficiency of the evidence is challenged in a criminal case, this Court’s review is limited to whether there is sufficient evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). The evidence, including all reasonable inferences therefrom, is considered in the fight most favorable to the judgment, disregarding all contrary inferences. Id.

Pike first argues that the field sobriety tests should not be considered as evidence because they were administered behind the patrol car, so that they were not recorded by the video camera. Although section 577.020.7 does not require that field sobriety tests be videotaped, Pike argues that the trooper’s decision to administer the tests where they could not be videotaped evidences a “prima facie case of bad faith” and, therefore, creates an adverse inference against the test results pursuant to the spoliation doctrine. The trooper testified that he was the only officer on the scene when he began the sobriety testing and that he conducted the tests behind his vehicle because three individuals remained in the other vehicle and he wanted his patrol car to serve as a barrier between himself and those unrestrained individuals.

Even assuming that the spoliation doctrine would apply where the desired evidence was not destroyed, but rather was never created at all, the trooper’s decision does not show bad faith. Legitimate reasons for the trooper’s decision to conduct the testing behind his patrol car were presented. The fact that none of the occupants in the car had given him a particular reason to fear them does not mean that the trooper was required to assume that there was no weapon or other means by which they could have harmed him. The decision to conduct the testing behind the patrol car was reasonable under the circumstances.

Pike also argues that his appearance, driving style, admissions, breath, and slurred speech may have provided a reasonable suspicion of driving while intoxicated, but this evidence was insufficient to support his conviction beyond a reasonable doubt. Pike is correct that each of these items, taken individually, would provide slim support for his conviction. However, taken cumulatively, and combined with his performance on the field sobriety and breath tests, this evidence is sufficient to find Pike guilty of driving while intoxicated.

Pike points out that the trooper initially testified that the shoulder on which Pike performed the field sobriety tests was paved; but, upon being shown pictures of the scene during cross-examination, the trooper admitted that the shoulder was gravel. Pike argues that this shows that the trooper was not reliable as a witness and that he may not have performed the sobriety tests correctly. However, there is no evidence that the incorrect recollection about the condition of the shoulder had any effect on the administration of the tests or on the testimony as a whole. Such issues of credibility are for the trial court, and the trial court here chose to believe the trooper’s testimony that he properly administered the field sobriety tests.

Pike argues that the breath test was not properly conducted; therefore, the results were not admissible. A prima fa-cie case for the admission of the results of the breath test administered at the county jail is established where the state demonstrates that the test was performed according to Department of Health regulations by an operator with a proper permit using equipment that was properly maintained and approved. Section 577.020; Reckner v. Fischer, 121 S.W.3d 296, 301 (Mo.App.2003). Pike does not dispute that the trooper was permitted to conduct the test or that the equipment used was proper. Pike contends that the test was not performed according to the regulations and procedures because Pike appeared to be chewing gum at the time of the traffic stop and the trooper could not specifically remember asking Pike whether he had something in his mouth prior to administering the test.

The applicable regulation, 19 CSR 25-30.060, requires that, immediately prior to administering a breath test, the officer observe the subject for fifteen minutes and ensure that there is “no smoking or oral intake of any material during this time; if vomiting occurs, start over with the 15 minute observation period.”

The trooper testified that he observed Pike for the 15 minute period and that Pike did not smoke, vomit, or take anything into his mouth during this period.

Pike does not assert that he began chewing gum during the observation period, or even that he was chewing gum during the observation period. Rather, he asserts that he was chewing gum approximately one and a half-hours before the test, when the trooper stopped him. Although the trooper did not observe Pike spitting the gum out, he also did not state that he observed Pike chewing it during the observation period. The evidence was sufficient to support a reasonable inference from the trooper’s testimony that he observed Pike for the 15 minute period and that Pike no longer had anything visibly in his mouth. The trial court was entitled to draw that inference, and this Court defers to its conclusion.

Although it appears from the plain language of the regulation that the trooper did not violate the regulation, Pike relies on Carr v. Director of Revenue, 95 S.W.3d 121 (Mo.App.2002), to argue that the proper procedures were not followed. In Carr, the officer testified that he followed the proper observation procedures prior to the test. Id. at 122. Carr, on the other hand, testified that he was allowed to smoke a cigarette, use the restroom, and place a butterscotch candy into his mouth during the 15 minute observation period. Id. The trial court apparently believed Carr, because it held that he had properly rebutted the State’s prima facie case that the test was admissible, and the court of appeals affirmed. Id. at 126.

Carr is distinguishable from this case. The Carr defendant produced specific evidence to rebut the director of revenue’s prima facie case that the test results were valid. Here, Pike produced no evidence, other than the trooper’s admissions that Pike appeared to be chewing gum at the time of the stop and that the trooper did not specifically remember checking Pike’s mouth for a foreign object. Moreover, the testimony in Carr, if believed, would have proven that the regulation was not followed: it would have proven the actual oral intake of a piece of candy during the observation period. In contrast, even if Pike was chewing gum before the observation period, this is not specifically prohibited by the regulation.

The result of the breath test at the Platte County jail was properly admitted and supports the conviction.

4. Sufficiency of the Evidence — Following Too Closely

Pike challenges the sufficiency of the evidence underlying his conviction for following too closely. When the sufficiency of the evidence is challenged in a criminal case, appellate review is limited to whether there is sufficient evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). An appellate court considers the evidence, including all reasonable inferences therefrom, in the light most favorable to the judgment and disregards all contrary inferences. Id.

The trial court found Pike guilty of violating section 304.017, RSMo 2000, which states: “[t]he driver of a vehicle shall not follow another vehicle more closely than is reasonably safe and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the roadway.”

The trooper testified that he did not observe any slowing of the first vehicle as it passed him. Although he acknowledged that the vehicle could have gradually slowed down in response to his presence, he did not observe a drastic reduction in speed. He estimated that Pike was following about one ear length behind the first vehicle. The incident occurred early in the morning, when it was dark, and when one lane of the road was closed due to construction. The trooper believed that the vehicles were traveling between 45 and 55 miles per hour when they passed him.

This evidence, viewed in the light most favorable to the judgment, was sufficient to sustain Pike’s conviction. As a Highway Patrol officer, the trooper was accustomed to observing traffic. He believed that Pike’s vehicle was too close to the vehicle in front, when considering the speed of the vehicles and the road conditions. The evidence supports this belief.

Conclusion

Section 577.023 does not violate the constitution. The trial court properly admitted evidence of Pike’s intoxication and the evidence was sufficient to support the conviction. The evidence also supports the conviction for following too closely.

The judgment is affirmed.

All concur.

      . All statutoiy citations are to RSMo Supp. 2004, unless otherwise noted.

      .The horizontal gaze nystagmus test was conducted by moving a pen in front of Pike's face and asking Pike to follow the pen’s movement with his eyes. The trooper observed both of Pike’s eyes and determined that Pike failed all six possible points on the test, because both eyes showed a lack of smooth pursuit, the onset of nystagmus (showing of white in the eyes) at maximum deviation, and the onset of nystagmus prior to 45 degrees.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Appellate courts review a criminal conviction before a judge in the same way as a conviction by a jury. The evidence and all favorable inferences therefrom are considered in the light most favorable to the state. Appellate review is to determine whether "substantial evidence was adduced to support the trial court’s finding.” State v. Seaman, 625 S.W.2d 950, 952 (Mo.App.1981).

      . U.S. Const, amends. V and XIV; Mo. Const. art. I, sec. 2.

      . U.S. Const., amends. V and XIV; Mo. Const, art. I, sec. 10.

      . The spoliation doctrine creates an inference of bad faith on the part of the state when evidence is destroyed or altered. Simple negligence is not enough to invoke the adverse inference rule; the destruction must be intentional. Baldridge v. Dir. of Revenue, 82 S.W.3d 212, 222-23 (Mo.App.2002).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michael HANCOCK, Appellant.
    No. SC 85948.
    Supreme Court of Missouri, En Banc.
    April 26, 2005.
    Rehearing Denied May 31, 2005.
    Jeffrey S. Eastman, Gladstone, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   PER CURIAM.

Michael Hancock appeals from his felony conviction for driving while intoxicated and his sentence as a persistent offender based on two prior driving while intoxicated convictions. Hancock argues that charging him with a felony based partly on a prior municipal driving while intoxicated conviction violates the Equal Protection clauses of the United States and Missouri Constitutions. This Court has jurisdiction. Mo. Const, art. V, section 3.

Hancock’s contentions are resolved in State of Missouri v. Jeremy Pike, 162 S.W.3d 464, 2005 WL 949692 (Mo. banc 2005) (No. SC86083, decided April 26, 2005). For the reasons stated in that opinion, the judgment is affirmed.

All concur.

      . U.S. Const, amends. V and XIV; Mo. Const. art. I, sec. 2.


author: STEPHEN N. LIMBAUGH, JR., Judge.

text:
    SCANWELL FREIGHT EXPRESS STL, INC., Respondent, v. Stevie CHAN and Dimerco Express (U.S.A.) Corp., Appellants.
    No. SC 86022.
    Supreme Court of Missouri, En Banc.
    April 26, 2005.
    Rehearing Denied May 31, 2005.

      James W. Erwin, Mary C. Bonacorsi, Thompson Coburn LLP, Bradley A. Winters, Mark L. Brown, St. Louis, for appellants.
    Charles A. Seigel, III, Michael A. Wolff, St. Louis, for respondent.
   STEPHEN N. LIMBAUGH, JR., Judge.

Scanwell Freight Express STL, Inc., sued Stevie Chan for breach of fiduciary duty and Dimerco Express (U.S.A.) Corp. for conspiracy to breach fiduciary duty. Following a jury trial, Scanwell was awarded $54,000 in damages from Chan and $254,000 from Dimerco. After opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10. The judgment is reversed, and the case is remanded.

I.

In brief, and in the light most favorable to the verdict as is required where, as here, there is a challenge to the sufficiency of the evidence, Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000), the facts are as follows:

Scanwell, a freight forwarding business, hired Chan in April 1996 to be the general manager of its St. Louis Office. Chan was an at-will employee, and she was not required to sign a non-compete agreement. While serving as Seanwell’s general manager, Chan made arrangements with Dimerco, Scanwell’s direct competitor, to open a.Dimerco office in St. Louis. At Dimerco’s request, Chan created a “business proposal” for this purpose. She also arranged .for Dimerco to take over the lease of Scanwell’s St. Louis office upon its expiration. Chan resigned from Scanwell effective March 1, 2001, and approximately one month later, Dimerco opened its St. Louis office with Chan as its general manager. Dimerco operated in the same premises that Scanwell previously occupied, employed most of the same employees as Scanwell, and for a while even used the same telephone number. Dimerco also acquired a number of Scanwell’s customers.

Thereafter, Scanwell filed the suit against Chan and Dimerco that is the subject of this appeal.

II.

In order to address the dispositive points on appeal, which are instructional error and submissibility, it is first necessary to identify and define the cause of action at issue. Scanwell’s cause of action against Chan is labeled “breach of fiduciary duties.” However, Scanwell describes its claim as a breach of a “fiduciary duty of loyalty,” and its verdict director alleged that Chan committed a “breach of fiduciary duties” by “breachfing] a duty of loyalty,” as if a breach of fiduciary duties is the same as a breach of a duty of loyalty. Although the law is unclear whether or to what degree the two concepts overlap, in this case the question need not be resolved. In the employer-employee relationship, this Court, drawing on the Restatement (2d) of Agency, has implicitly recognized a separate cause of action for beach of the duty of loyalty, Nat’l Rejectors, Inc. v. Trieman, 409 S.W.2d 1, 41 (Mo. banc 1966), and it is apparent from the briefs and argument that that is the claim Scanwell is ultimately pursuing.

Under Trieman, the seminal case on which both sides rely, every employee owes his or her employer a duty of loyalty. Trieman, 409 S.W.2d at 41; see also Rest. (2d) Agency, sec. 387 (1958). The case arose when certain at-will employees were accused of misappropriating trade secrets from them employer in a scheme to compete with the employer. The factual context of the case is especially important because it involves the most common manifestation of the duty of loyalty, and the essence of Seanwell’s claim here, which is that an employee has a duty not to compete with his or her employer concerning the subject matter of the employment. Rest. (2d) Agency, sec. 393 (1958). This Court described the duty of loyalty in the broad and general terms of section 387 of the Restatement (2d) of Agency, stating, “[an employee] must not, while employed, act contrary to the employer’s interests.” Trieman, 409 S.W.2d at 41 (quoting Midland-Ross Corp. v. Yokana, 293 F.2d 411, 412 (3rd Cir.1961)). However, in addressing the corresponding duty not to compete, the Court held, nonetheless, that employees are allowed to “agree among themselves to compete with their then employer upon termination of their employment,” and “[t]hey may plan and prepare for their competing enterprises while still employed.” Id. at 26. Admittedly, the mere decision to enter into competition is “contrary to the employer’s interests,” but the Court saw the need to balance the duty not to compete with the interest of promoting free competition. Id. at 39-41. As some courts have put it, the law allows employees the privilege to plan and prepare for competition in recognition of the “competing interests of allowing an employee some latitude in switching jobs and at the same time preserving some degree of loyalty owed to the employer.” Cudahy Co. v. Am. Lab., Inc., 313 F.Supp. 1339, 1346 (D.Neb.1970); see also Maryland Metals, Inc. v. Metzner, 282 Md. 31, 382 A.2d 564, 569 (1978); Anxton Computer Enter., Inc. v. Parker, 174 N.J.Super. 418, 416 A.2d 952, 955 (A.D.1980).

Although the Trieman Court did not elaborate on the conduct that would constitute a breach of the duty, it necessarily follows that a breach arises when the employee goes beyond the mere planning and preparation and actually engages in direct competition, which, by definition, is to gain advantage over a competitor. The Restatement (2d) of Agency, see. 393, cmt. e, which this Court cited with favor in Trieman, plays on the same idea, further describing the kinds of activities that can constitute a breach of the duty of loyalty. That comment, in pertinent part, states:

After termination of his agency, in the absence of a restrictive agreement, the agent can properly compete with his principal as to matters for which he has been employed. Even before the termination of the agency, he is entitled to make arrangements to compete, except that he cannot properly use confidential information peculiar to his employer’s business and acquired therein. Thus, before the end of his employment, he can properly purchase a rival business and upon termination of employment immediately compete. He is not, however, entitled to solicit customers for such rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.

(citation omitted).

III.

Applying these standards, this Court concludes that Scanwell presented a submissible case that Chan breached her duty of loyalty. Chan’s actions were clearly contrary to Scanwell’s interests, and when viewed in the light most favorable to the verdict, her actions, in at least two respects, went beyond mere planning and preparation to compete. In these two respects, a more detailed recitation of the evidence of Chan’s activities before she left Scanwell’s employment is necessary, keeping in mind that Dimerco and Scanwell were in direct competition.

First, Chan gave Dimerco confidential information about Scanwell’s operations and customers. This included general information on Scanwell’s customér base and detailed information on a few of Scanwell’s customers. Most of the evidence centered on the fact that Chan gave Dimerco a customer profile of one of Scanwell’s largest customers, which included contact information, special handling requirements, rate structure, billing instructions, and other information. At trial, Chan admitted that the customer profile was confidential “[to] some degree” and that it would be helpful to a competitor in soliciting the business of the customer. Dennis Choy, Scanwell’s president, also testified that this information was confidential and that, in fact, customer profiles were “the most vital pieces of information for any company to keep within [itself].” Although Chan and Dimerco argue that some of the information in the profile was not confidential because it could be obtained from other sources such as the customers themselves, at least some of the information in the profile, such as Scanwell’s air freight rates, was entirely unavailable. Regardless of the extent of the disclosure of confidential information, as other courts have aptly noted, even “slight assistance to a direct competitor can constitute a breach of the employee’s duty of loyalty.” Cameco, Inc. v. Gedicke, 157 N.J. 504, 724 A.2d 783, 789 (1999).

A second and more egregious activity was that Chan, while still employed by Scanwell, secured Seanwell’s leased premises — Scanwell’s business office — for Dimerco. The key testimony on the matter was uncontroverted. In 1998, Chan, as office manager, signed the original lease of the premises on behalf of Scanwell. The lease termination date was May 31, 2001, and Scanwell was required to exercise the renewal option by January 31, 2001. However, shortly after signing the lease in 1998, the landlord contacted Chan and requested that the termination date be moved up to March 31, 2001, and that the renewal option deadline by moved up to December 1, 2000. Chan agreed, signed the amended lease, and sent it to Scanwell headquarters in Chicago. In the fall of 2000, as the December 1, 2000 deadline approached, Chan, who was by then preparing to leave Scanwell and open the Dimerco office, took no action to renew the lease for Scanwell and did not notify Scan-well’s home office that the renewal deadline was approaching.

Then in early February 2001, while still employed by Scanwell and at a time the Scanwell’s premises still could have been relet to Scanwell, Chan, with Dimerco’s approval, negotiated and signed a lease of the same premises for Dimerco. Although Chan signed the lease on February 15, 2001, it was on February 20, 2001, that Chan first informed Scanwell that she planned to resign. That same day, she sent a letter to her supervisor at Scanwell, M.B. Hassan, stating, “[t]he new rental lease has been turned back to the landlord] and will not be renewed. You can contact [the landlord’s agent] if you have [a] different arrangement. Otherwise the lease will end[ ][in] March.”

While Chan and Dimerco claim that there are no cases holding that an employee owes a “duty to remind” his employer of its legal rights and obligations, they miss the larger issue. Chan did not merely fail to remind Scanwell of the renewal deadline, she arranged for Scanwell’s direct competitor to take over the premises, and, in doing so, prevented Scanwell from being able to re-lease the premises after the renewal deadline had passed. As a result of her actions, Scanwell lost its business office, and Scanwell customers who thereafter called or visited the office talked with Dimerco representatives.

IV.

Despite this Court’s conclusion that Scanwell made a submissible case on the dissemination of confidential information and the proof relating to the lease, instructional error requires reversal. Chan and Dimerco contend the instruction defining “a fiduciary relationship” was overbroad and that the verdict director gave the jury a “roving commission.” This Court agrees on both points.

The definitional instruction given in this case stated that “A fiduciary relationship is established when one reposes trust and confidence in another in the handling of certain business affairs.” Apparently, this instruction was offered under the misconception that the cause of action was one for breach of fiduciary duty rather than breach of the duty of loyalty. Even then, the instruction set out nothing more than the relationship that gives rise to a duty, but without identifying the duty. The existence of a duty, of course, is a matter of law for the court to decide, see, e. g., Senn v. Manchester Bank of St. Louis, 583 S.W.2d 119, 132 (Mo. banc 1979); Siefert v. Leonhardt, 975 S.W.2d 489, 492 (Mo.App.1998), but it is the breach of the duty that is for the jury to decide. It is the duty, then, that must be defined in the instructions, rather than the relationship that gave rise to the duty.

Where, as here, an allegation of breach of the duty of loyalty is presented in the context of an employee acting in competition with his or her employer, a proper definitional instruction of the duty of loyalty, consistent with the foregoing analysis, must set out the following elements: 1) In general, an employee must not, while employed, act contrary to the employer’s interest; 2) however, an employee may agree with others to compete upon termination of the employment and may plan and prepare for them competing enterprise while still employed; and 3) but an employee may not, while still employed, go beyond mere planning and preparation and act in direct competition with the employer. See Trieman, 409 S.W.2d at 26, 41; Rest. (2d) Agency, sec. 393, cmt. e. In the absence of such a definitional instruction, the jury was unaware of the conduct that the law prohibits, and prejudice re-suited because the jury was allowed to conclude that even mere planning and preparation for competition breached the duty.

This Court also concludes that Chan’s verdict director, Instruction No. 7, constituted an impermissible “roving commission.” “A ‘roving commission’ occurs when an instruction assumes a disputed fact or submits an abstract legal question that allows the jury ‘to roam freely through the evidence and choose any facts which suit[ ] its fancy or its perception of logic’ to impose liability.” Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998) (quoting Davis v. Jefferson Sav. & Loan Ass’n, 820 S.W.2d 549, 556 (Mo.App.1991)). Instruction No. 7 stated:

Your verdict must be for Plaintiff on its claim against Defendant Stevie Chan for breach of fiduciary duties if you believe:
First, Defendant Stevie Chan, the General Manager of Plaintiff, owed a duty of loyalty to Plaintiff, and
Second, during her employment with Plaintiff, Defendant Stevie Chan made arrangements to have Defendant Dimerco take over Plaintiffs business operation including securing Plaintiffs business lease for Defendant Dimerco, disclosing confidential information of Plaintiff to Dimerco, and
Third, in so acting, Defendant Stevie Chan breached a duty of loyalty owed to Plaintiff, and
Fourth, as a direct result of Defendant Stevie Chan’s conduct Plaintiff was harmed.

Even if the duty of loyalty referred to in paragraphs “First” and “Third” had been properly defined, paragraph “Second” is fatally defective. By couching paragraph Second so that the ultimate allegation was that “Chan made arrangements for Dimer-eo to take over Seanwell’s business operation,” the verdict director made actionable the aggregate of all of Chan’s conduct in making those arrangements, even those arrangements that involved mere “planning and preparation.” The jury was not limited to the allegations relating to the lease and the dissemination of confidential information because those allegations were preceded by the word “including,” which, generally speaking, is not a word of limitation. “Including” is a word of enlargement; “[wjhen used in connection with a number of specified objects, it implies that there may be others which are not mentioned.” St. Louis County v. State Highway Comm’n, 409 S.W.2d 149, 153 (Mo. 1966). It may well be then, that the jury, in arriving at its verdict, took into consideration not only evidence relating to the lease and confidential information, but also evidence of other plans and preparations that were not actionable. It is in this way that the jury was given a roving commission.

V. Conclusion

For the foregoing reasons, Scanwell’s judgment against Chan must be reversed. Seanwell’s judgment against Dimerco for conspiracy must be reversed as well because it is wholly derivative of the judgment against Chan, see Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. banc 1996), and because the definitional instruction and the separate verdict directing instruction suffered from the same infirmities as those pertaining to Chan. Reversed and remanded.

WHITE, C.J., WOLFF, STITH, PRICE and TEITELMAN, JJ., and SAUER, Sp.J., concur.

RUSSELL, J., not participating.


author:
CHARLES B. BLACKMAR, Senior Judge.
      LAURA DENVIR STITH, Judge,

text:
    STATE of Missouri, Respondent, v. James A. BEINE, Appellant.
    No. SC 86190.
    Supreme Court of Missouri, En Banc.
    April 26, 2005.
    As Modified on Denial of Rehearing May 31, 2005.

      Lawrence J. Fleming, N. Scott Rosen-blum, Stephen R. Welby, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan Buchheim, Deborah Daniels, Asst. Attys. Gen., Jefferson City, for respondent.
   CHARLES B. BLACKMAR, Senior Judge.

This case comes to the writer on recent reassignment.

James Beine was employed as a counsel- or at the Patrick Henry Elementary School in St. Louis City. During the 2000-2001 school year one of Mr. Beine’s duties was to prevent disruptive behavior by students in the school’s halls and restrooms. To perform this duty, Mr. Beine often had to enter the restrooms designated for males.

During the 2000-2001 school year, all restrooms in the school were designated only as being for males, females, or unisex. No restrooms were expressly designated for students only, and adults sometimes used the large public restrooms frequented by the students.

K.L., C.M., and J.M., three male students at Patrick Henry under the age of 14, asserted that in the spring of 2001, Mr. Beine exposed himself to them while they were using the restroom near the school gym.

K.L. and C.M. testified that sometime in the spring of 2001 Mr. Beine entered the restroom while they were using it. Mr. Beine proceeded to use a urinal next to the boys. C.M. and K.L. further allege that Mr. Beine stood 8 or 4 feet from the urinal and urinated into it in an arc. K.L. and C.M. claimed that they could see Mr. Beine’s “private part.”

J.M., C.M.’s younger brother, testified that on another occasion in the spring of 2001, he entered the restroom while Mr. Beine was using a urinal. J.M. proceeded also to use a urinal and then wash his hands at the sink while Mr. Beine continued to use the urinal. As J.M. was washing his hands, a group of boys entered the restroom and began causing a ruckus. J.M. claimed that Mr. Beine turned from the urinal and told the boys to “shut up.” Mr. Beine’s pants were allegedly unzipped and his penis exposed when he turned to discipline the boys. Mr. Beine quickly turned back and zipped up his pants before proceeding to prevent the restroom disturbance.

Mr. Beine was initially indicted on three counts of sexual misconduct involving a child by indecent exposure, in violation of section 566.083.1(1), reading as follows:

A person commits the crime of sexual misconduct involving a child if the person:
(1) Knowingly exposes the person’s genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age.

A fourth count, involving K.L., was added later. The jury found Mr. Beine guilty on all four counts. The trial court accepted the jury’s recommendation and sentenced Mr. Beine to four years on each count. It ordered three of the sentences to be served consecutively and one to be served concurrent with the consecutive sentences for a total of twelve years imprisonment. Mr. Beine appealed. Because he challenges the validity of a state statute, this Court has jurisdiction. Mo. Const, art. V, sec. 3.

DISCUSSION

The guilty verdict on all four counts must be reversed because the evidence adduced by the state at trial is insufficient to convict Mr. Beine of any of the charges. On appeal, the state is obliged to point to substantial evidence in support of each of the essential elements of the offense charged. The state has failed to do so in this case.

There is no question that the appellant knowingly exposed his genitals to persons under the age of fourteen. This is often necessary in a men’s restroom. There is serious question, however, about the sufficiency of the evidence to support the charges “that the defendant [exposed his genitals] in a manner that would cause a reasonable adult to believe that such conduct was likely to cause affront or alarm to a child less than fourteen years of age.”

The state is not required to show that any child was actually affronted or alarmed. There was no direct evidence as to how a reasonable adult might react to the appellant’s behavior, and there is no citation that sheds any light on how that proposition might be established by evidence.

The state puts strong reliance on the testimony of a fellow inmate of an Illinois jail as to a conversation he said he had with the appellant, after he was arrested on the present charges. Conceding the jury’s right to believe this testimony, and overlooking the notorious unreliability of jailhouse snitches, the testimony still manifestly lacks substance. It does not show anything about the appellant’s state of mind when he committed the acts shown by the evidence. What it shows, rather, is a realization after the fact that something about the restroom encounter, or any other encounter for that matter, bothered some boys. The testimony proves nothing about how the appellant’s conduct might appear to a reasonable adult at the time it occurred.

One of the appellant’s duties at the school was to monitor the restroom. Anybody who has attended a public grade school knows that boisterous behavior is not unusual in restrooms, especially when students are released in substantial numbers for recess. Thus, the appellant was in a place where his duties required him to be. When no boys are present, there is no need for a monitor. There was no prohibition on his using the restroom for his personal needs while he was properly there. It is quite common for men and boys to use a common facility at sporting events, Boy Scout camps, horse shows, and other public events. In so doing, it is necessary for the users to expose their private parts. Fathers regularly take their pre-K sons into public restrooms. The evidence that on two occasions the appellant stood at a distance from the urinal and urinated in an arc in the presence of the boys cannot reasonably be construed as likely to cause affront or alarm. The boys used such phrases as “embarrassed” and “funny” when talking about their reaction to the incident, but these hardly equate to “affront”' or “alarm.” The argument that the children were not accustomed to any adults being in the restroom when they were present is at war with the admitted evidence that the appellant had the duty of monitoring the restroom.

State v. Moore, 90 S.W.3d 64, 67-69 (Mo. banc 2002), a case on which the state places strongly reliance, approves the dictionary definition of “affront” as “a deliberately offensive act or utterance; an offense to one’s self respect,” and of “alarm” as “apprehension of an unfavorable outcome, of failure, or dangerous consequences; an occasion of excitement or apprehension.” Moore goes on to say, “To be impolite is not enough. To be annoying is insufficient.” “Affront” might connote an exhibition by a man of his genitalia to a woman or girl. “Alarm” would indicate a suggestion of physical encounter to either a male or a female. The record shows no indication of anything that would properly come within these definitions. The state simply has not proved criminal conduct under the applicable statute. For this reason, the judgment on all counts must be reversed.

While this conviction cannot stand because the evidence was insufficient to convict Mr. Beine, this conviction also cannot stand because the portion of the statute upon which Mr. Beine was charged and convicted is patently unconstitutional.

The appellant essentially claims that section 566.083.1(1) is unconstitutional because it punishes innocent conduct, contains no requirement of criminal intent (mens rea), and does not advise a person in the position of the appellant as to what he must do to avoid violation of the statute when his conduct is otherwise lawful. The only express statutory requirement of knowing conduct is that of knowingly exposing one’s genitals to a child less than 14 years of age. The act of a man in exposing his genitals in the process of urinating in a public restroom is not only innocent but often necessary. The statute contains two essential elements: first, the act of exposing one’s genitals and, second, exposure in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child ■less than 14 years of age. The appellant argues that this last portion of the subsection is completely lacking in any explicit requirement of a mental state.

In essence, Mr. Beine contends that the statute is overbroad — it prohibits conduct to which a person is constitutionally entitled along with conduct that a person has no right to engage in. Mr. Beine is correct. A person necessarily must knowingly expose himself in a great many situations. One of those situations is when a man uses a public restroom. Even if a reasonable person might think that in some of these restroom situations a child is likely to suffer affront or alarm from witnessing such exposure, that alone cannot make the exposure criminal. If that were the case, no person would ever be able to use a public restroom without risking a criminal charge. As such, the statute prohibits two types of conduct: some of which a person has no right to engage in and the other of which a person has a right to engage in. When a statute prohibits conduct a person has no right to engage in and conduct a person has a right to engage in, the statute is unconstitutionally over-broad. See City of St. Louis v. Burton, 478 S.W.2d 320, 323 (Mo.1972); Christian v. Kansas City, 710 S.W.2d 11, 12-14 (Mo.App.1986).

The state attempts to avoid this result by making two arguments. First, it is argued that even if the statute is unconstitutionally overbroad, the court cannot strike down the statute because Mr. Beine was engaging in conduct that was not constitutionally protected. This argument fails under the doctrine of overbreadth. Under that doctrine, a person may contest the constitutionality of a statute even if he was not engaging in constitutionally protected conduct. For example, in State v. Carpenter, 736 S.W.2d 406 (Mo. banc 1987), this Court struck down a “disturbing the peace” statute as being overbroad, in spite of this writer’s pleas to adopt a saving construction. Carpenter represents the law of this state. See State v. Moore, 90 S.W.3d 64, 71 (Teitelman, J. dissenting).

The state further argues that the overbreadth doctrine should not apply to this case because this is not a first amendment case. It is true that when a case involves a non-speech related constitutional attack “the overbreadth doctAe is rarely applicable.” Caesar’s Health Club v. St. Louis County, 565 S.W.2d 783, 788-89 (Mo.App.1978). But Missouri courts have found the overbreadth doctrine applicable to non-first amendment cases in the past. For example, this Court extended the overbreadth doctrine to strike down a loitering ordinance in City of St. Louis v. Burton, 478 S.W.2d 320, 323 (Mo.1972), despite the fact that no first amendment claims were made. The court of appeals relied on Burton to extend the over-breadth doctrine and strike down a solicitation ordinance in Christian v. Kansas City, 710 S.W.2d 11, 12-14 (Mo.App.1986), even when the appellant made no first amendment arguments. Like the solicitation ordinance in Christian, the statute in this case “reaches beyond conduct which is calculated to harm and could be used to punish conduct which is essentially innocent,” so it is overbroad. Id. at 13.

The purpose of the overbreadth doctrine is to ensure that a statute does not punish innocent conduct. The Court may take judicial notice that all persons have to relieve themselves regularly, that the need for such relief may arise suddenly, that public facilities are regularly provided, and that males of all ages regularly use the facilities provided for them, necessarily exposing their genitals in the process. Section 566.083.1(1) leaves adults in a state of uncertainty about how they may take care of their biological needs without danger of prosecution when a child is present in the same public restroom. Because a person’s right to use public restrooms is about as fundamental a right as one can imagine, probably equal to or more fundamental than speech rights, the overbreadth doctrine should extend to this case and permit Mr. Beine to contest section 566.083.1(1) even if he had no right to engage in the conduct he engaged in.

But it is not clear that Mi*. Beine had no right to do what he did. The evidence that the state introduced at trial essentially showed only that Mr. Beine used a public restroom while boys were present and stood at a little further distance from the urinal than men usually do, and that Mr. Beine accidentally turned around without zipping his pants zipper up to discipline some boys that were causing a disturbance in the restroom. This is constitutionally protected conduct, so even if the over-breadth doctrine did not apply to this case, Mr. Beine can still contest the constitutionality of the statute by arguing that it prohibits conduct to which he is constitutionally entitled to engage in. So the aspect of the overbreadth doctrine as applied in Carpenter, that of allowing an appellant to take advantage of the doctrine because of the effect of the statute on others, even though the appellant’s conduct may not represent protected speech, has no application here, because this appellant was engaging in lawful, and necessary, conduct.

The state also seeks to hold that section 566.083.1(1) is constitutional by applying the “knowingly” mens rea requirement to both the exposure and to the manner of exposure requirements enumerated in the statute. Specifically, the state argued that 566.083.1(1) requires the state to present evidence not only that the appellant knowingly exposed his genitals to a child less than 14 years old, but also that he knowingly did so in a manner that would cause a reasonable adult to believe that the conduct was likely to cause affront or alarm to a child of less than 14 years. The. state thereby adds a word that the legislature did not see fit to include, suggesting that the addition is appropriate pursuant to the Court’s duty to sustain a statute as against a constitutional challenge if at all possible.

The only authority relied upon by the state to rewrite section 566.083.1(1) is State v. Moore, 90 S.W.3d 64, 67 (Mo. banc 2002), but Moore involved section 566.095, a sexual solicitation statute. That statute makes criminal a defendant’s conduct when the defendant “solicits ... another person to engage in sexual conduct under circumstances in which he knows that his requests or solicitation is likely to cause affront or alarm.” That statute implies knowing conduct in the act of solicitation because knowledge is inherent in the word “solicitation.” The statute also specifically enumerates a knowing mens rea to the “likely to cause affront or alarm” requirement. As such, the statute governing Moore contains the explicit language of scienter that section 586.088.1(1) lacks.

Moore also provides little if any instruction for this case because Moore’s facts are very different from the facts in this case. There a 61-year-old man solicited a 13-year-old virgin to perform an act of fellatio on him. The Court had no problem in finding that Moore’s conduct was within “a core of unprotected expression” that could be punished, even by a statute that is rather broadly drawn.

Section 566.083.1(1) differs from the statute involved in Moore by referring to exposure in “a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age,” rather than focusing on the effect of the exposure on the child or children witnessing the exposure. The accused is required to guess what a hypothetical reasonable adult might believe as to the effect on the children witnessing the event. No precedent for this kind of requirement has been cited. It is a slim reed to support a 12-year sentence. The Moore statute requires a direct and knowing address to the child, who presumably would be the person affronted or alarmed. It is clearly distinguishable.

CONCLUSION

The judgment on all counts is reversed. Inasmuch as the state has had an opportunity of proving its case, and has failed to do so, double jeopardy prohibits a retrial. The case, then, should be remanded with directions to enter judgment of acquittal on all counts. State v. Self, 155 S.W.3d 756 (Mo. banc 2005).

WHITE, C.J., WOLFF and TEITELMAN, JJ., concur.

STITH J., concurs in part and dissents in part in separate opinion filed.

PRICE and LIMBAUGH, JJ., concur in opinion of STITH, J.

RUSSELL, J., not participating.

LAURA DENVIR STITH, Judge,

concurring in part and dissenting in part.

I concur in the principal opinion’s determination that there was insufficient evidence to support the submission as to J.M. I dissent from the principal opinion’s determination that there was insufficient evidence to support the submissions as to C.M. or K.L. and from its finding that section 566.083.1, RSMo 2000, is unconstitutional based on its erroneous conclusion that the statute solely requires proof that defendant knowingly exposed his genitals to a child under 14. On its face, the statute requires proof that defendant knowingly exposed his genitals to a child under 14 in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than 14. This is not unduly vague or overbroad. Because the evidence of such conduct was sufficient to support the guilty verdicts as to the incidents involving K.L. and C.M., I would affirm those convictions.

I. FACTUAL BACKGROUND

A more detailed factual statement is appropriate here than that set out in the principal opinion as a basis for addressing Mr. Beine’s sufficiency claims.

James Beine was employed as a counsel- or at Patrick Henry Elementary School in St. Louis for the 2000-2001 school year. One of his duties was to monitor the hall and restrooms to prevent disruptive behavior. School policy and practice sometimes required male staff members to enter the boys’ restrooms in their roles as “bathroom monitors.”

K.L., C.M., and J.M. were students at Patrick Henry during the 2000-2001 school year. At that time, the school did not have a restroom solely designated for the male faculty and staff, although there were unisex restrooms available for faculty and staff throughout the building. Mr. Washington, the school’s principal, testified that there was no written policy forbidding use of the boys’ restrooms by adult staff, but that it would not have been considered appropriate for the adult staff members to have used the children’s restrooms when the children were using them, although adult staff might use these restrooms on occasion if no children were present.

The present case grew out of occurrences in the spring of 2001 in which Mr. Beine allegedly exposed himself to three boys, K.L., C.M., and J.M., on three different occasions, while they were using the boys’ restroom near the school gym. Mr. Beine initially was indicted on three counts of sexual misconduct involving a child by indecent exposure. A fourth count, involving K.L., was later added. The jury found Mr. Beine guilty. He received 4 years on each count.

II. CONSTITUTIONALITY OF SECTION 566.083.1

Because an understanding of section 566.083.1’s meaning is necessary in order to determine whether the evidence supported the four counts submitted and whether his conduct can constitutionally form the basis of a conviction, Mr. Beine’s argument that the statute is unconstitutional will be addressed first.

Mr. Beine alleges that section 566.083.1 permits an adult to be convicted of sexual misconduct if a child of less than 14 merely sees the person’s genitals, even if the adult has not knowingly caused that child alarm and has acted without inappropriate intent. The statute itself says otherwise. It states in relevant part:

A person commits the crime of sexual misconduct involving a child if the person:
1. Knowingly exposes the person’s genitals to a child less than 14 years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than 14 years of age.

Mr. Beine acknowledges that the statute expressly requires that he act knowingly, but argues that the word “knowingly” only modifies the immediately following 13 words, “exposes the person’s genitals to a child less than 14 years of age”, and not the remaining 30 words of the sentence in which it appears, although the statute has no punctuation so indicating. He argues that, as so construed, the statute is unconstitutionally vague because a person could be subjected to prosecution without knowing that his conduct was likely to cause such affront or alarm.

Challenges to the constitutionality of a statute are legal issues that are reviewed de novo. Baldwin v. Dir. of Revenue, 38 S.W.3d 401, 405 (Mo. banc 2001). “A statute is presumed to be constitutional and will not be invalidated unless it clearly and undoubtedly violates some constitutional provision and palpably affronts fundamental law embodied in the constitution.” Bd. of Educ. of St. Louis v. State, 47 S.W.3d 366, 368-369 (Mo. banc 2001). Any doubt concerning a statute’s constitutionality must be resolved in favor of its validity. State v. Mahurin, 799 S.W.2d 840, 842 (Mo. banc 1990). “[Wjhen a constitutional and unconstitutional reading of a statute are equally possible,” the court must choose the constitutional one. Spradlin v. City of Fulton, 924 S.W.2d 259, 263 (Mo. banc 1996). In addition, the rule of lenity requires that ambiguity in a penal statute be construed against the government and in favor of persons on whom the penalties will be imposed. J.S. v. Beaird, 28 S.W.3d 875, 877 (Mo. banc 2000). See also State v. Rowe, 63 S.W.3d 647, 650 (Mo. banc 2002).

These principles require rejection of Mr. Beine’s argument that section 566.083.1 does not require that a defendant act “knowingly” as to the conduct that forms the basis for violation of that statute. As noted above, the paragraph in question states:

A person commits the crime of sexual misconduct involving a child if the person:
1. Knowingly exposes the person’s genitals to a child less than 14 years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than lk years of age.

Sec. 566.083.1 (emphasis added). The meaning of the italicized portion of the statute has been addressed previously by this Court, albeit in dicta, in State v. Moore, 90 S.W.3d 64, 67 (Mo. banc 2002). Moore rejected an argument that another statute, section 566.095.1, was unconstitutionally vague because it made solicitation of sexual conduct a crime if done “under circumstances in which he knows that his requests or solicitation is likely to cause affront or alarm.” Id. In discussing why section 566.095.1 was constitutional as to child victims, this Court compared it to section 566.083.1, the statute at issue in the instant case, and to another statute using similar language. Moore noted that both of the latter statutes “prohibit conduct that is known or believed ‘likely to cause affront or alarm’, presumably to distinguish a criminal act of exposing oneself from conduct that is accidental, inadvertent, or otherwise done without an intent to do harm.” Id. at n. 8 (emphasis added). It said this was sufficiently specific to avoid constitutional challenge.

Moore was correct in its reading of section 566.083.1. The word “knowingly” as used in section 566.083.1 applies to the entire sentence in which it appears; nothing limits its application to only the first portion of that sentence. The statute does not merely require the State to present evidence that the defendant knowingly exposed his genitals to a child less than 14 years old. To the contrary, this single sentence requires the State to show that defendant knowingly exposed his genitals to a person under 14 in a manner that would cause a reasonable adult to believe that the conduct was likely to cause affront or alarm to a child of less than 14 years. If the person does not knowingly act in this manner, he has not violated the statute.

As so construed, section 566.083.1 is not unconstitutionally vague. As this Court has previously recognized, “impossible standards of specificity are not required.” State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983):

If the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty.

Id. Mr. Beine suggests that even if the statute requires that he act knowingly, the word “knowingly” is itself vague. But:

A person acts knowingly ‘(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or (2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.’

Mahurin, 799 S.W.2d at 844, quoting, sec. 562.016.3. Moore applied this definition, holding that in determining whether a defendant acted “knowingly”, a court looks at how the person would expect the recipient of the sexual solicitation to feel as a result of the comment. Moore, 90 S.W.3d at 68. Moore held that the adult in that case could be held to know that solicitation of a child to perform a criminal sexual act was likely to cause affront or alarm. Id.

Moore also rejected a contention, similar to the one now made by Mr. Beine, that the phrase “likely to cause affront or alarm” is vague, stating:

In the context in which ‘affront’ and ‘alarm’ are used in section 566.095, what is prohibited are sexual requests or solicitations that the defendant knows are likely to cause such a reaction. To be impolite is not enough. To be annoying is insufficient. The words ‘affront or alarm’ convey, respectively, a deliberate offense or a feeling of danger. At the least, real emotional turmoil must result.

90 S.W.3d at 67. Moore further described the conduct of exposing one’s genitals to a child as “inherently criminal behavior.” Id. at 68 at n. 8.

Applying these principles here, the statute is not unconstitutionally vague in making it criminal for a defendant to knowingly expose his genitals to a child less than 14 in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than 14 years of age. The statute informed Mr. Beine that he cannot expose himself in a manner that he knows is likely to cause deliberate offense or a feeling of danger. Mr. Beine’s vagueness challenge is rejected.

Mr. Beine also argues that the statute is overbroad. As the principal opinion concedes, an overbreadth argument is normally cognizable only where a person claims First Amendment free speech rights are infringed or chilled. See, e.g., Artman v. State Bd. Of Registration for the Healing Arts, 918 S.W.2d 247, 251 (Mo. banc 1996). Here, unlike in Moore, 90 S.W.3d at 66-67, the statute at issue criminalizes conduct, not speech, and Mr. Beine admits he was not attempting to communicate to the'boys when acting in the manner alleged; to the contrary, he denied any intent to cause them affront or alarm or knowledge that his conduct might do so. The principal opinion nonetheless finds constitutional concerns in the statute because it construes the statute to criminalize unknowing behavior based solely on the reactions of others. As discussed in detail above, this construction of the statute is incorrect. The statute criminalizes only knowingly exposing ones genitals to a child in a manner that the defendant knows a reasonable adult would believe was likely to cause affront or alarm to the child. It does not chill protected conduct.

Ill SUFFICIENCY OF THE EVIDENCE

Mr. Beine also argues that, even if this Court rejects his constitutional challenge, the evidence was not sufficient to support his convictions. He did not contest that he knowingly exposed his genitals in the course of urinating or that he knew the children were less than 14 years of age. But, he argues the record does not support a finding that he knew his conduct would affront or alarm the boys or that a reasonable person would believe that his conduct would do so, and there was no evidence that it did.

It should be noted preliminarily that the statute does not require the State to show that these particular boys were actually affronted or alarmed, only that a defendant knowingly acted in a manner that he knew would cause a reasonable adult to believe his conduct was likely to affront or alarm a child of less than 14 years of age. See sec. 566.083.1. Of course, this does not make proof whether a particular child showed affront or alarm irrelevant; it merely is not dispositive.

In reviewing a claim that the evidence was not sufficient to support the verdict, this Court is limited to determining whether the evidence was sufficient for a reasonable juror to find each element of the crime beyond a reasonable doubt. State v. O’Brien, 857 S.W.2d 212, 215 (Mo. banc 1993). All the evidence is considered in the light most favorable to the verdict. Id. “Evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may reasonably be drawn from the evidence are indulged. Conversely, the evidence and any inferences to be drawn therefrom that do not support a finding of guilt are ignored.” Id. at 216.

A. Testimony of Mr. Beine’s Jailhouse Admissions to Another Inmate.

After Mr. Beine’s arrest for allegedly exposing himself to C.M., J.M., and K.L., he was incarcerated in the Madison County jail with a person named William Long-well. Mr. Longwell was called by the State as a witness against Mr. Beine. Mr. Longwell testified that he ran a Bible study class in the jail, that Mr. Beine asked to sit in on the class, and that after awhile:

A. We started talking about the Bible a little bit, some of the meanings to us, and that’s when he had made a statement that got us into a conversation.
Q. And was this a conversation that concerned why he was incarcerated, why he was locked up?
A. Yeah.
Q. ... What was the statement he made that led into this?
A. We were talking about a Bible scripture. He seemed to be — start getting a little upset. He said that God had put him in jail as a punishment because he said that he referred to himself as — he was like the serpent in the Bible that crawls through the grass, instead in his case the grass was like little kids.

(emphasis added). The court overruled an objection by defense counsel that the above testimony went beyond what he had anticipated, which was that Mr. Longwell would testify that “he said he had exposed himself to two boys that are brothers, at one time with one other kid, nothing about this other stuff.” The testimony continued:

Q. After Mr. Beine made this statement to you, did you then ask him basically about what that meant, and specifically, concerning why he was locked up?
A. Yeah. I asked him why he would say something like that. I said, ‘why would they say something like that? What they have you on, a lot of charges or something? And he said ‘yeah.’
A. ... he said that there was some brothers, two young brothers, that could possibly testify against him. He wasn’t sure and [it] had made him nervous.
I said, “well, evidently they have something to testify about.’ He asked me, he goes, “well, you have been locked up a couple of times.’ I said ‘yeah,’ and he said ‘well, you know a little bit about the law,’ he said ‘let me explain it to you, you tell me what you think.’ So we got to talking.
He said he was a counselor that worked in a school in Missouri. I don’t know what school, a school in Missouri. And that he was a counsel- or there, and that there was two young boys there ages about six and seven, I believe, somewhere in that area at the time, that was a couple years ago. He said that the normal procedure there was these couple young kids stuck out to him and he was drawn to them for whatever reason.
Q. He said he was drawn to them?
A. He said he was drawn to them for whatever reason, these two young kids.

Mr. Longwell then continued his testimony, stating that Mr. Beine had confessed that he knowingly exposed himself to two young boys:

Q. Then what did he say?
A. ... And he said that on a couple of instances he was the one that was to watch them go in and watch them come out, and he said these two particular young boys, whenever they would go in there if another adult wasn’t around to see, then he said he would go in there while they using the bathroom and he said he exposed himself to them. And I said ‘you exposed yourself to them’ and he flat out — he flat out said, he said ‘I showed my penis to them. I think — I don’t know whether or not they are going to testify-’
Q. Did he tell you their names?
A. Only thing he said, he said he didn’t believe it would have been very much trouble started if it wasn’t for Mrs. B ..., I believe, and I said ‘who is this’ and he said that was the kid’s mother.

It is against the backdrop of this testimony, which the jury was free to believe despite Mr. Beine’s attempts to impeach it, that this Court should consider the evidence that Mr. Beine violated section 566.083.1.

B. Knowing Exposure to C.M. and K.L. While Urinating.

Sometime in the spring of 2001, K.L., who was ten years old and in the fourth grade, and C.M., who was nine years old and in the fourth grade, were in the boy’s bathroom on the ground floor next to the gymnasium. They were both using the urinals when Mr. Beine entered the bathroom. C.M. testified that other than one time when the principal was in the bathroom, the only adult who entered the bathroom when the boys were using it was “Dr. James,” as the boys referred to Mr. Beine. C.M. said that Mr. Beine was in the bathroom almost any time his class used it.

On the occasions in question, although enclosed toilet stalls were available and there was a unisex bathroom just down the hall for faculty and staff, Mr. Beine began to use an open urinal. As C.M. described the incident involving himself and K.L., he was in the bathroom when Dr. James came in, unzipped his pants, and proceeded to urinate right next to C.M. He did so while standing 3 or 4 feet away from the urinal and urinating in an arc. When this occurred, C.M. could see Mr. Beine’s “private part” and the stream of urine he aimed at the urinal, and it made C.M. feel “uncomfortable.” He further said:

Q: How did that make you feel when Doctor James was in the bathroom when you were using it?
A. Scared.
Q. Why was that?
A. Because he look at us use the urinal and stuff.
A. Yes. He would watch us use it.
Q. He would look at you using it.
A. Yes.
Q. And did that make you feel funny?
A. Yes.

C.M. said Mr. Beine acted similarly on another occasion, coming in the bathroom while C.M. was using it alone and urinating in an arc from a spot some distance from the urinal. C.M. testified that he could see Mr. Beine’s penis when he urinated in this manner.

K.L. similarly testified as to the first incident:

Q. Okay. So, he was actually peeing when you saw him do it.
A. Yes, sir.
Q. Okay. Could you see the stream of pee going to the urinal?
A. Yes, sir.
Q. Okay. What did you do when you saw this?
A. Heft.
Q. How did it make you feel when you saw Doctor James doing that?
A. Embarrassed.
Q. And had you seen anything like that before?
A. No, sir.
Q. Okay. Could you actually see his private part?
A. When I was leaving.
Q. Okay. And is that while he was peeing?
A. Yes, sir.
Q. And did you ever go into the bathroom again while Doctor James was in there?
A. No.

Both children said they immediately disclosed these incidents to their teacher and later to their mothers. C.M. and KL.’s teacher told the principal that her students were uncomfortable with Mr. Beine in the restroom. The mother of C.M. and J.M. complained to the school district and met with the associate superintendent as well as several others to discuss her concerns that adults were permitted to use the bathroom at the same time as students. When the principal refused to fire Mr. Beine or keep him away from her sons, C.M. and J.M.’s mother took her two sons out of the school a few weeks before the year ended and enrolled them elsewhere so they would not be near Mr. Beine.

This evidence, when considered in combination with Mr. Longwell’s testimony, was sufficient for a reasonable juror to find that Mr. Beine knowingly exposed his genitals to children under 14 years of age in a manner that would cause a reasonable adult to believe that the conduct was likely to cause the children affront or alarm. Mr. Beine was in a position of authority, and the children were not accustomed to any adult being in the bathroom when they were present. A reasonable person would believe that an adult with authority over children, who entered the bathroom while the children were using it, and who urinated in the fashion Mr. Beine did in front of children, showing his penis to them, would find that conduct likely to cause affront or alarm to a child less than 14 years of age. That is sufficient to support a conviction under the statute.

C. Evidence as to J.M.

The evidence is not sufficient to affirm the judgment as to the count involving J.M. That count alleged that on another occasion in the spring of 2001, Mr. Beine went into the boys’ bathroom near the gymnasium and began using the urinal. So far as the record shows, no child was in the room when Mr. Beine was first there. However, J.M., who was in the third grade and is the younger brother of C.M., entered the boys’ bathroom as Mr. Beine was urinating. J.M. used a urinal and finished before Mr. Beine and went to wash his hands at the sinks. As J.M. was washing his hands, some other boys entered the room and began to argue loudly. Mr. Beine, who had still been using the urinal, turned around and told the disruptive boys to “shut up.” His pants were still unzipped as he did so, and J.M. says he saw Mr. Beine’s penis:

A. So, other kids come in, they’re talking real loud, I guess he told them to shut up. He turned around, his hands were like this, and then he hurried up and zipped up his pants.
Q. Now what did you say was the deal with his zipper?
A. It was still down and then he hurried up and zipped it back up.
Q. When you say it was still down, could you see anything.
A. Yes.
Q. What could you see?
A. His private part.
Q. All right. So was that — you could see it?
A. Yes.
Q. Okay. You said it was hanging out of his pants?
A. Then he hurried up and zipped it back up.
Q. What did you do when that happened?
A. I just turned around.
Q. What did you think when you saw that?
A. I don’t know.
Q. How did it make you feel?
A. Disgust.
Q. Okay. Now, did you want to go to the bathroom when Dr. James was in there?
A. No.
Q. Why not?
A. Because I just didn’t know if he Was going to do it again, that’s all.

On cross-examination, J.M. further clarified that Mr. Beine said “shut up” to the loud boys as he turned around toward the sink, and:

Q. He turned around towards you, at that time you saw his penis, is that what you’re telling us?
A. Yes.
Q. He was flipping up his fly at the same time, is that right?
A. Yes.

On redirect J.M. then said:

Q. Were you mad at him?
A. Yeah. I didn’t use the word — I used the word “upset.”
Q. Why were you upset?
A. Because he — he turn around and say ‘shut up.’
Q. What about showing you his private part, did that upset you?
A. Yeah.

While J.M.’s testimony is sufficient to show that Mr. Beine exposed his penis to J.M., it is not sufficient to show that he knowingly did so in a manner that a reasonable adult would believe would more likely than not cause affront or alarm to a child of less than 14. As Moore stated, “To be impolite is not enough. To be annoying is insufficient. The words ‘affront or alarm’ convey, respectively, a deliberate offense or a feeling of danger. At the least, real emotional turmoil must result.” 90 S.W.3d at 67.

Here, there is no showing of deliberate offense, a feeling of danger, or real emotional turmoil. The evidence shows that the whole incident occurred very quickly. Mr. Beine was already in the bathroom when J.M. and the other boys entered. The principal said that on occasion an adult might use one of the boys’ rooms if no one was in it at the time. He did not flaunt himself as he had on the other occasions involved in this appeal, and J.M. did not see his penis while he was urinating. While J.M. did see Mr. Beine’s penis, he did so only briefly as Mr. Beine was hurriedly zipping up his pants after turning around from the urinal and yelling at the other boys to “shut up.” Nothing suggests that he particularly focused on J.M. or purposely exposed himself to J.M. or to any of the other boys. J.M. said he was disgusted, but from the testimony this appears in large part to be because he had been told to shut up. J.M. did not indicate whether any of the other boys saw Mr. Beine’s penis or complained about it. No charges were brought based on alleged exposure by Mr. Beine to the other boys, although a large group of them were in the bathroom at the time. While Mr. Beine’s admissions to Mr. Longwell could support a finding that he exposed himself to J.M. on some occasion, it does not support knowingly doing so on this occasion.

D. Other Contentions.

Mr. Beine raises a number of related issues concerning trial publicity and regarding the admission of evidence that the State argued shows an attempt to evade arrest by hiding in a closet of his house as the police pounded on the door and called repeatedly over many hours before finally obtaining a warrant and finding him hiding in the closet. Because the principal opinion finds the evidence insufficient, there will not be a retrial; thus, there is no reason to address these or the other evi-dentiary issues raised by Mr. Beine. Similarly, there is no point in addressing the failure of defendant to object to the fact that the instructions failed to submit the requirement that Mr. Beine act knowingly.

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

      . The constitutionality of subdivisions (2) and (3) of section 566.083.1 is not addressed.

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

        . See also State v. Burns, 978 S.W.2d 759, 760 (Mo. banc 1998) ("This Court is bound to adopt any reasonable reading of the statute that will allow its validity and to resolve any doubts in favor of constitutionality”); The Stroh Brewery Co. v. State, 954 S.W.2d 323, 326 (Mo. banc 1997) (“When alternative readings of a statute are possible, we must choose the reading that is constitutional”).

      . No argument is made that the incident involving K.L. and C.M., although involving two children, involved only a single act by Mr. Beine and, thus, can be the basis for only a single conviction where, as here, the statute bases guilt not on harm to the victim but rather on the intent with which defendant engaged in certain conduct before minors. Mr. Beine only engaged in that conduct once on each occasion. The propriety of imposing two separate convictions for this Conduct is thus not addressed further.

      . K.L. said Mr. Beine was four to five feet away from the urinal, and C.M. testified that Mr. Beine was three to four feet away.


text:
    STATE of Missouri, Respondent, v. Arlie BARKER, Appellant Pro Se.
    No. WD 64489.
    Missouri Court of Appeals, Western District.
    April 19, 2005.
    Arlie Barker, Bowling Green, pro se.
    Deborah Daniels, Jefferson City, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Arlie Barker appeals from the denial of his Rule 29.12(c) motion to “Correct Mistake in Judgment Sentence and Commitment.” Upon review of the record, we find no error and affirm the judgment. Because a published opinion would have no precedential value, we have provided the parties with a Memorandum explaining the reasons for our decision.

AFFIRMED. Rule 30.25(b).


author: PER CURIAM:

text:
    LeAndre’ Lamarr BALLEW by His Next Friend, Lanesa L. BALLEW, and Lanesa L. Ballew (Holt), Individually, Respondent, v. Bruce R. PICKENS, Appellant.
    No. WD 64039.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    Connie J. Boysen, Overland Park, KS, for appellant.
    Jay David DeHardt, Kansas City, MO, for respondent.

      Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM:

Bruce Pickens appeals the trial court’s modification of a child support order. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).