author: JOHN E. PARRISH, Presiding Judge.

text:
    Delbert THOMAS, Brenda Thomas and Delbert Thomas, Trustee for the Delbert Thomas Revocable Trust, Plaintiffs-Appellants, v. Charles KING and Charlene King, Defendants-Respondents.
    No. 25981.
    Missouri Court of Appeals, Southern District, Division Two.
    April 25, 2005.

      Jason N. Shaffer, Springfield, Richard L. Rollings, Jr., Ozark, for Appellants.
    Andrew P. Wood, Sims, Johnson, Wood & Farber, Neosho, for Respondents.
   JOHN E. PARRISH, Presiding Judge.

Delbert Thomas, Brenda Thomas, and Delbert Thomas, Trustee for the Delbert Thomas Revocable Trust, (collectively referred to as plaintiffs) appeal a judgment establishing a roadway easement for purposes of ingress and egress over property plaintiff trustee owns. Plaintiffs were enjoined from barricading or impeding the roadway. Charles King and Charlene King (defendant) were awarded an easement for travel over the roadway and were permitted “to construct, erect or maintain cattle guards or gates” at the terminal ends of the roadway easement. This court affirms in part, reverses in part, and remands with directions.

Plaintiff trustee and defendant own adjacent tracts of land in McDonald County, Missouri. Defendant’s tract is located west of the tract owned by plaintiff trustee. The eastern edge of defendant’s tract adjoins the western edge of plaintiff trustee’s property. A county road runs along a portion of the southern edge of plaintiff trustee’s property. The county road turns in a southerly direction away from that property some distance east of the southern boundary of defendant’s property. Defendant and her predecessors in title had traveled from the county road, across plaintiff trustee’s property, onto defendant’s property for more than twenty years. Gates existed at each end of the roadway across the land now owned by plaintiff trustee. Gates were in place at those locations as early as the 1950s. The gates enclosed livestock and protected the pasture and hayfield the roadway crossed.

In September 2002, defendant and her husband, Charles King, installed cement ramps and cattle guards at each end of the roadway. This action was filed shortly thereafter. Plaintiffs contend that upon Delbert Thomas and Brenda Thomas purchasing their property, they gave verbal permission to Charles King and defendant to continue to use the roadway (which was characterized in the petition filed herein as “the lane”) “so long as the gates were shut to protect the livestock and pasture.”

By this action, plaintiffs sought (1) declaration that plaintiffs Delbert and Brenda Thomas initially granted Charles King and defendant permissive license to cross their land and that plaintiff trustee, as successor owner, continued to allow the permissive use of the roadway but that the permission has since been revoked; (2) declaration that defendant and Charles King committed trespass and were continuing to commit trespass; and (3) judgment ordering defendant and Charles King to cease and desist from further trespassing on the land. Plaintiffs sought to enjoin defendant and Charles King, their “tenants, agents, employees, attorneys and those persons in active concert or participation[,] from trespassing by using or accessing the lane across Plaintiffs’ property.”

Defendant and Charles King filed a two-count counterclaim. Count I asserted the roadway in question was a public road. Count II asserted defendant and Charles King were possessed of a prescriptive easement to use the roadway. They sought determination by the trial court of their claims that they were entitled to use the roadway in question for ingress and egress to their property and for injunctive relief.

The trial court found Count II of the counterclaim determinative. It adjudged that “Defendants, their employees, agents, assignees and tenants, and Defendants’ successors in interest” had “a roadway for ingress and egress across Plaintiffs’ property” along the disputed strip. It declared the roadway to be “[a] 15 foot roadway.” The trial court enjoined plaintiffs “and all persons acting in conjunction with or on Plaintiffs’ behalf’ from barricading or impeding the roadway. The trial court declared that defendant would “be allowed to construct, erect or maintain cattle guards or gates at the north and south end of said roadway.”

Plaintiffs’ first point on appeal contends the trial court erred in granting a prescriptive easement over plaintiffs’ property because the use by defendant and Charles King of the roadway was not adverse in that defendant and Charles King and their predecessors’ use was permissive and they believed the disputed roadway was a public road. “An easement by prescription is established by use that is continuous, uninterrupted, visible and adverse for a period of ten years.” Schrieber v. Aslinger, 11 S.W.3d 816, 819 (Mo.App.2000). The only element plaintiffs challenge is the requirement that the use by defendant and her predecessors in title was adverse. “Adverse use for purposes of establishing an easement by prescription is non-recognition of the owner’s authority to permit or prohibit use.” Id.

Plaintiffs’ argument in Point I that the use of the roadway was not shown to be adverse is two-fold. They contend (a) that the evidence was that the use of the roadway was permissive and (b) that defendant and' Mr. King believed the road was a public roadway, as asserted in Count I of the original counterclaim filed in this case; that this reliance was not adverse to plaintiffs.

Whittom v. Alexcmder-Richardson, 851 S.W.2d 504 (Mo. banc 1993), is apropos to plaintiffs’ argument that defendant’s assertion of the alternative claim that the roadway was a public road defeats the claim that the use of the road had been adverse to plaintiffs and, therefore, defeats defendant’s claim that ■ she possesses a prescriptive easement to use the road. In Whittom, as here, .a determination was sought that parties to the action — in Whit-tom the plaintiffs, here defendant, and at the time the counterclaim was filed, her husband — that they had a right to use a certain roadway. The plaintiffs in Whit-tom asserted two grounds for their claim: (1) that they were entitled to use the road because of a common law dedication of the road as a public road; and (2) that they had acquired a prescriptive easement for its use. Here, the claim asserted by counterclaim was (1) that the road was a public road by reason of public use and expenditure of public moneys to maintain the road; and (2) alternatively, as in Whittom, that the parties claiming a right to use the road had acquired a prescriptive easement for its use.

The claim in this case that the road was a public road was based on § 228.190. The claim in Whittom that the road was a public road was based on the contention that there had been an implied dedication of the road as a public road. The trial court in Whittom required the plaintiffs to elect, prior to submission of the case, between the prescriptive easement theory by which they claimed a right to use the road and the common law dedication they pleaded. On appeal, Whittom held that the theories of recovery on which the plaintiffs relied were not inconsistent based on the facts of the case. Whittom concluded that “the plaintiffs properly [sought] only one remedy, right, or privilege: use of the roadway.” Id. at 507. The court reversed the trial court on the basis that it was error to require the plaintiffs in that case to elect a remedy for the reason that the theories of recovery were not inconsistent under the facts in the case. Whittom explained:

The review of the law of prescriptive easements reveals that the alternative theories of prescriptive easement and common law dedication are not necessarily inconsistent or repugnant; proof of one theory does not necessarily disprove the other. As noted, the element of the intent required, or “permission” as the parties frame the issue in this case, for purposes of common law dedication may be inferred by the owner’s actions, even if the owner had an actual intent not to dedicate the land for public use. Connell [v. Jersey Realty & Inv. Co., 352 Mo. 1122], 180 S.W.2d [49] at 52 [1944]. The owner’s intent to dedicate the land may be inferred by refusal to prohibit the public from using the land. The owner would be estopped from asserting that no dedication occurred since the public relied upon the owner’s inaction as proof of the owner’s intent to dedicate. See Id. It appears from the record in the present case that this was the plaintiffs theory of common law dedication.

Id. at 509.

In this case, defendant’s alternate theories of recovery were (1) that the road was a public road that had continued to be used for many years, and (2) that defendant and her predecessors in title had used the road without plaintiffs’ permission for a sufficient time to acquire the claimed easement. The claim by defendant and Mr. King that the use of the road was adverse to plaintiffs, i.e., that it was without plaintiffs’ or their predecessors in title’s permission, was consistent with both theories of recovery. The use of the road without plaintiffs’ permission supported the claim that the road had not been abandoned, i.e., that it had not been subject to nonuse by the public for the requisite five years as required by § 228.190 to show abandonment and vacation as a public road. It likewise supported defendant’s and Mr. King’s claim that they used the road without plaintiffs’ permission during the time required to establish a prescriptive easement.

As in Whittom, the alternative theory of recovery was not inconsistent or repugnant. Defendant and Mr. King’s pleading of the alternative remedy for prescriptive easement, along with the claim that the road was a public road, did not preclude the determination that a prescriptive easement existed. Under the facts in the record, the alternative theories of public road by reason of chapter 228 and prescriptive easement were not inconsistent or repugnant. Proof of one theory would not necessarily disprove the other in that each was dependent on continued use of the roadway. Part (b) of Point I is of no consequence.

Part (a) claims the use of the roadway by defendant and Mr. King was not adverse in that plaintiffs had given permission for them to use the road and, subsequently, when cattle guards were constructed, withdrawn that permission. Defendant’s evidence demonstrated open, continuous, visible, and uninterrupted use of the roadway for a period of more than ten years. Those claims were not contested. Thus, the burden of showing that use was permissive rather than adverse is cast upon plaintiffs. Speer v. Carr, 429 S.W.2d 266, 268 (Mo.1968); Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571, 572 (1942). Plaintiffs presented evidence that the use of the roadway by defendant and Mr. King was permissive; that plaintiff Delbert Thomas gave defendant’s and Mr. King’s predecessor in title permission to use the roadway (which he characterized as “the pathway”) so long as she closed gates at each end of it. However, these events occurred after plaintiffs purchased the property in 1982.

Defendant presented evidence that her and Mr. King’s use was not permissive; that there were no conversations or agreements with plaintiffs over the use of the roadway; that’ she had not asked permission to use it. Thus, whether the road’s use was permissive or adverse is an issue involving credibility of the witnesses with respect to what occurred after plaintiffs acquired their property. The trial court is the ultimate judge of witness credibility. Phillips v. Sommerer, 917 S.W.2d 636, 640 (Mo.App.1996). “Conflicts in the evidence were for the trial court to resolve, and the facts must be taken in accordance with the result reached.... ” Trenton Trust Co. v. Western Sur. Co., 599 S.W.2d 481, 483 (Mo. banc 1980). See also Tad lock v. Otterbine, 767 S.W.2d 366, 370 (Mo.App.1989).

The trial court did not determine that the use by defendant and her predecessors in title was permissive. To the extent that factor impacted the judgment rendered, this court’s review requires deference to the trial court in its resolution of conflicts in evidence adduced. This, however, is not the determinative issue.

Regardless of the issue over permissiveness of use during the time defendant owned her property, the roadway in question was, as the parties agreed, in existence as early as the 1950s. Plaintiffs presented no evidence as to the origin of the road, although evidence was presented that the road had been used by defendant, her husband, and their predecessors in title to access the property defendant now owns for more than 40 years.

As in Tadlock v. Otterbine, supra, evidence established that the use had been open, continuous, and uninterrupted. This gave rise to a presumption that the use was adverse. Id. at 370, citing Parker v. Rogers, 698 S.W.2d 617, 618 (Mo.App.1985). “In the absence of some showing that the use was permissive in its origin, the burden is cast on the opposing party to show that the use was permissive rather than adverse.” Id. The evidence was sufficient for the trial court to find that an easement had been established by adverse possession prior to plaintiffs or defendant acquiring their respective properties. Permission granted after an easement has already been established by adverse use has no legal effect. Speer v. Carr, 429 S.W.2d at 269; Bryant v. Price, 893 S.W.2d 856, 860 (Mo.App.1995). Point I is denied.

Point II asserts that the trial court erred in granting defendant the right to maintain cattle guards or gates at the north and south ends of the roadway because any prescriptive easement acquired was conditional and subject to plaintiffs’ right to maintain gates on the property; that gates were maintained during the prescriptive period. Defendant concedes that use of the roadway was restricted by “gates across the disputed roadway at both the north and south ends.” A prescriptive right is limited to the same extent of the use during the prescriptive period. Holian v. Guenther, 471 S.W.2d 457, 459 (Mo.1971).

Installation of cattle guards by defendant in 2002 precipitated this action. Defendant testified that cattle guards had been placed at each end of the road for a short time prior to 1964. There was no other evidence of cattle guards having been on the road at any other time from the 1950s to 2002. The record does not support a finding that cattle guards were placed on the road for the requisite period of time for the right to maintain them to be acquired by prescription. Point II is granted. The part of the judgment that permits construction, erection, or maintenance of cattle guards by defendant will be reversed. Likewise, the right to maintain gates belongs to plaintiffs. Defendant acquired no right to do so by prescription. The part of the judgment granting that right to defendant will be reversed.

Plaintiffs’ Point III argues that the trial court erred in determining the width of the easement to be 15 feet because evidence was that the road was of varying widths; that it was less than 15 feet wide. There was conflicting testimony concerning the width of the roadway. A surveyor who performed a survey of the road in 2003 on which the road was described as 30 feet wide testified that the actual surface of the road measured “anywhere from 12 to 15 feet” in three locations he measured. Defendant testified that the width of the road varied to “probably 20-feet wide.” She stated the gate across the road was 14 feet wide; that the cattle guard was 10 feet wide.

[W]here the evidence is contradictory and conflicting, we defer to the trial court’s opportunity to view the witnesses and assess their credibility. Auxier v. Holmes, 605 S.W.2d [804] at 805-806 [ (Mo.App.1980) ]. Conflicts in evidence are for the trial court to resolve and the facts must be taken in accordance with the result reached. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 (Mo.banc 1980).

Moss v. Ward, 881 S.W.2d 238, 243 (Mo.App.1994). See also Parker v. Rogers, 698 S.W.2d 617 (Mo.App.1985). There was sufficient evidence for the trial court to find the width of the prescriptive easement to be 15 feet. Point III is denied.

The part of the judgment that permits construction, erection, or maintenance of cattle guards by anyone other than plaintiffs is reversed. The part of the judgment that permits anyone but plaintiffs to maintain gates on the north and south ends of the prescriptive easement area is reversed. In all other respects the judgment is affirmed. The case is remanded. The trial court is directed to enter judgment consistent with this opinion.

BATES, C.J., and SHRUM, J., concur.

      . Suggestion of death of Charles King was filed with this court. The parties also filed a stipulation of facts that recites that Charlene King is the sole owner of the real estate over which the trial court granted the easement that is the subject of this appeal.

      . Plaintiffs Delbert Thomas and Brenda Thomas owned the tract that plaintiff trustee now owns from 1982 until 1996 when it was conveyed to plaintiff trustee. Delbert Thomas and Brenda Thomas continue to manage the use of the property.

      . Although the trial court announced a decision for plaintiffs on Count I of the counterclaim and noted the determination by docket entry, the judgment does not recite disposition of that claim. A judgment is final and, therefore, appealable when it disposes of all issues in the case and leaves nothing for future determination or when a claim is left undetermined and a determination is made that there is no just reason for delay. See Rule 74.01(b). That did not occur in this case. In this case, however, the trial court's judgment for defendants on Count II of their counterclaim necessarily constituted a rejection of the claim of a public road in Count I of that counterclaim. The judgment is, therefore, final and appealable, notwithstanding that it did not recite the determination of Count I of the counterclaim. See Podlesak v. Wesley, 849 S.W.2d 728,-730 (Mo.App.1993).

      . "A public road, except state roads, may be established in three ways: '(1) under the provisions of Chapter 228, RSMo, [1994], (2) by prescription, or (3) by implied or common law dedication.’ ” Kleeman v. Kingsley, 88 S.W.3d 521, 522 n. 1 (Mo.App.2002), quoting Coffey v. State ex rel. County of Stone, 893 S.W.2d 843, 846 (Mo.App.1995). Section 228.190 provides, as pertinent here, "[A]ll roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.”

      . References to statutes are to RSMo 2000 unless stated otherwise.

      . Plaintiffs reliance on Rosemann v. Adams, 398 S.W.2d 855 (Mo.1966), is misplaced for the reason that the party in Rosemann- who claimed an individual prescriptive easement believed the property in question was public and owned by the city. Id. at 858. He could not claim the easement for personal use adverse to the rights of other members of the public that he acknowledged. See abo Custom Muffler & Shocks v. Gordon Partnership, 3 S.W.3d 811, 814-15 (Mo.App.1999).

      . Defendant and her husband acquired the property in 1986.


source: Caselaw Access Project

author: ROBERT S. BARNEY, Judge.

license: Public Domain

text:
    Kevin Luke PATRICK, Appellant, v. STATE of Missouri, Respondent.
    No. 26493.
    Missouri Court of Appeals, Southern District, Division Two.
    April 26, 2005.

      Irene Earns, Columbia, for appellant.
    Jeremiah W.’ (Jay) Nixon, Atty. Gen., and Stewart M. Freilich, Asst. Atty. Gen,, Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant Kevin Patrick (“Movant”) appeals from the motion court’s denial of his Amended Motion to Vacate, Set Aside, or Correct Sentence and Judgment brought pursuant to Rule 24.035. On November 13, 2002, Movant entered an Alford plea to charges of manufacturing a controlled substance, a class B felony under section 195.211, and delivery of an imitation controlled substance, a class D felony under section 195.242. Movant was sentenced to concurrent terms of nine years in prison for manufacturing a controlled substance and five years in prison for delivering an imitation controlled substance. In Mov-ant’s amended Rule 24.035 motion and in this appeal, Movant contends he was denied effective assistance of counsel because his counsel did not advise him that certain evidence could have been suppressed based on the inadequate affidavit underlying the search warrant upon which the charges were based. Following an eviden-tiary hearing, the motion court denied relief. We affirm the motion court’s ruling.

A review of the facts in the underlying criminal case reveals the charges against Movant stemmed from two incidents which occurred in March of 2002.

On March 21, 2002, Movant sold methamphetamine to an undercover informant from his home in Barton County. Thereafter, Movant made a second sale to an informant of a substance that was purportedly methamphetamine; however, later tests revealed it was pseudo-ephedrine and not a controlled substance. Based on the foregoing transactions, on March 26, 2002, the Barton County Sheriffs Department executed a search warrant on Movant’s home. The search of Movant’s residence revealed a rifle, “jars containing multilay-ered liquids, coffee filters, red phosphorus, Red Devil Lye, Liquid Fire, Heet, ... syringes, [an] unknown powder substance, rubbing alcohol, cans of Coleman fuel, cans of acetone, two hot plates, a flask and rubber tubing.” Several of the items discovered at Movant’s home tested positive for traces of methamphetamine. Upon Movant’s arrest and after being advised of his Miranda rights, Movant admitted to the Sheriff that “he did cook [mjetham-phetamine as he needed it” and showed the Sheriff “the needle tracks in his arms.”

In his sole point on appeal, Movant alleges the motion court erred in denying his Rule 24.035 motion. Specifically, Movant alleges his plea counsel was ineffective because his “plea was unknowing and involuntary in that counsel did not advise him that items taken from his home and his subsequent incriminating statement could have been challenged as the fruits of an illegal search and seizure due to an inadequate affidavit underlying the search warrant.”

“Appellate review of denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous.” White v. State, 957 S.W.2d 805, 807 (Mo.App.1997); Rule 24.035(k). “‘The findings and conclusions are deemed erroneous if after reviewing the record, this [C]ourt is left with the definite and firm belief that a mistake has been made.’ ” Goings v. State, 1 S.W.3d 600, 601 (Mo.App.1999) (quoting Saffold v. State, 982 S.W.2d 749, 752 (Mo.App.1998)). We presume that the motion court’s findings and conclusions are correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002). “Movant has the burden of proving the grounds asserted for post-conviction relief by a preponderance of the evidence.” Jenkins v. State, 9 S.W.3d 705, 707 (Mo.App.1999).

To prevail on a claim of ineffective assistance of counsel, Movant must show by a preponderance of the evidence that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would have exhibited under similar circumstances and that MoV-ant was thereby prejudiced. McVay v. State, 12 S.W.3d 370, 373 (Mo.App.2000) (see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). “To show prejudice in a case where the movant entered a guilty plea, the movant must show a reasonable probability that, but for counsel’s unprofessional errors, movant would not have pleaded guilty and would instead have insisted upon going to trial.” State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998). If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant’s claim of ineffective assistance of counsel must fail. Id.

“When reviewing an ineffective assistance of counsel claim, there is a strong presumption that counsel’s conduct was reasonable under the circumstances.” McVay, 12 S.W.3d at 373. “In order to overcome such a presumption, a movant must establish a serious dereliction of duty by plea counsel that substantially affected his rights.” Id. In considering a Rule 24.035 claim of ineffective assistance of counsel, courts must “‘view the reasonableness of counsel’s conduct from counsel’s perspective at the time and eliminate hindsight from consideration.’ ” Moore v. State, 39 S.W.3d 888, 893 (Mo.App.2001) (quoting Henderson v. State, 977 S.W.2d 508, 511 (Mo.App.1998)).

Where, as here, there is a negotiated plea of guilty, a claim of “ineffective assistance is immaterial except to the extent that it impinges upon the voluntariness and knowledge with which the guilty plea was made.” Cupp v. State, 935 S.W.2d 367, 368 (Mo.App.1996). An Alford plea is not treated differently than a guilty plea where the accused admits the commission of the crime charged. Wilson v. State, 813 S.W.2d 833, 843 (Mo. banc 1991). “As with any guilty plea, an Alford plea is valid if it ‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” Sexton v. State, 36 S.W.3d 782, 785 (Mo.App.2001) (quoting Alford, 400 U.S. at 31, 91 S.Ct. at 164, 27 L.Ed.2d at 167).

In the instant matter, the record reveals that at his plea hearing, Movant acknowledged that his plea was entered with the benefit of a plea bargain; that he was waiving his right to a preliminary hearing; that he had been advised of all of his constitutional rights; and, that he and his attorney had discussed the case at length. He indicated that he desired to enter an Alford plea and that his plea was made knowingly, willingly, voluntarily and intelligently. Thereafter, the trial court accepted Movant’s plea and found that Movant understood the nature of the charges against him; that he understood the consequences of entering his plea; and, that his plea was entered freely and voluntarily. Additionally, Movant acknowledged he had “plenty of time to talk with [his] attorney” prior to entering his plea; that his attorney had done everything that he had wished him to do; and, that he was satisfied with his attorney’s services.

Movant’s foregoing assertions in his colloquy with the trial court firmly establishes that Movant’s plea was voluntarily and knowingly entered. “A [Mov-ant] who repeatedly assures the court that he is satisfied with his counsel’s performance and that his counsel had done everything that he requested, is later barred from obtaining post-conviction relief based on ineffective assistance of counsel.” Estes v. State, 950 S.W.2d 539, 542 (Mo.App.1997). Movant’s Alford plea was voluntarily and knowingly entered.

With that being said, “[a] complaint contending that counsel failed to render assistance to the standard required by law by failing to file and pursue a motion to suppress is waived by a voluntary entry of a guilty plea.” Steinle v. State, 861 S.W.2d 141, 144 (Mo.App.1993).

[I]f [Movant] (a) was aware that, through counsel, he could move to suppress his statements to law enforcement officers and to suppress physical evidence, (b) understood that by entering a plea of guilty he waived the right to file such a motion, and (c) voluntarily entered the guilty plea, he cannot now successfully complain that trial counsel failed to file a motion to suppress.

Smith v. State, 937 S.W.2d 339, 342 (Mo.App.1996). “The existence of allegedly inadmissible evidence against an accused is not sufficient to vacate a guilty plea which was voluntarily and understandingly made.” Hatchett v. State, 909 S.W.2d 748, 750 (Mo.App.1995). Additionally, the decision regarding “whether to file a motion to suppress is a matter of trial strategy....” State v. Maddix, 935 S.W.2d 666, 672 (Mo.App.1996). Trial “counsel will not be deemed ineffective for failing to file a mer-itless motion to suppress.” Id.; see also State v. Hunter, 840 S.W.2d 850, 870 (Mo. banc 1992).

At the evidentiary hearing on this matter, Movant’s counsel testified that he “discussed at length” the adequacy of the search warrant and the option of filing a motion to suppress with Movant. Mov-ant’s counsel explained to Movant that if he wanted to file a motion to suppress “he would be bound over on at least one charge, and that it was up to the Court as to whether he would be bound over on the other three charges” and might even face an additional charge. Further, Movant’s counsel stated that regardless of whether or not the evidence found during the execution of the search warrant could be excluded, “there would [still] be evidence which could be used against him ...” such as the methamphetamine and the pseudo-ephedrine Movant sold to the informant. Movant’s counsel stated that based on the foregoing discussions, Movant “chose the plea route” rather than filing a motion to suppress and proceeding to trial.

Movant has failed to meet his burden of proof. See Jenkins, 9 S.W.3d at 707. Movant’s counsel’s decision not to file a motion to suppress based on the allegedly defective search warrant was reasonable trial strategy. See Maddix, 935 S.W.2d at 672. Further, it is Movant’s contention that “the affidavit did not provide sufficient information to support issuance of the warrant on probable cause;” however, Movant did not even enter into evidence at the evidentiary hearing “the affidavit in support of the search warrant [or] the search warrant itself’ and he “failed to call any law enforcement personnel involved in procuring and executing the search warrant to testify” in his effort to prove a “serious dereliction of duty by plea counsel that substantially affected his rights.” See Moore, 39 S.W.3d at 892; Jenkins, 9 S.W.3d at 707. As a result, Movant has failed to prove that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would have exhibited under similar circumstances. Moore, 39 S.W.3d at 893.

Accordingly, the motion court’s findings and conclusions are supported by the record and are not clearly erroneous. Rule 24.035(k). The judgment of the motion court is affirmed.

SHRUM, J., and BATES, C.J., concur.

      . Unless otherwise specified, all Rule references are to Missouri Court Rules (2004) and all statutory references are to RSMo 2000.

      . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Movant’s Alford plea was entered based on a plea agreement with the State of Missouri ("the State”). It appears from the record that in exchange for Movant's Alford plea to the two counts detailed above, the State agreed to: (a) dismiss two other charges against Movant; (b) refrain from prosecuting Movant for an additional charge arising from evidence discovered at Movant's home during the execution of the search warrant; (c) recommend a lesser sentence; (d) refrain from charging Movant as a prior drug offender under section 195.275; and, (e) recommend Movant enter a treatment program which, upon completion of the treatment program, would allow Mov-ant to be placed on five years supervised probation.

      . In addition to the above terms of imprisonment, Movant was required to enter "the Long-term program for the treatment of chronic nonviolent offenders with serious substance abuse addictions pursuant to [section] 217.362....”

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


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kevin R. ESTES, Defendant-Appellant.
    No. 26280.
    Missouri Court of Appeals, Southern District, Division One.
    April 26, 2005.

      Nancy A. McKerrow, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Assistant Attorney General, Jefferson City, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Kevin Estes appeals his conviction for the class C felony of stealing under section 570.030. Estes contends that the trial court erred by admitting a self-incriminating statement obtained in violation of his constitutional rights and that this error was prejudicial because the admission of the statement allowed the State to present an accomplice liability theory to the jury. We affirm.

On February 14, 2003, Officer Gary McKinney of the Joplin Police Department received a dispatch concerning a hit-and-run accident. The dispatcher indicated that the suspected perpetrator was driving a 1980s-model, maroon vehicle. McKinney spotted a maroon four-door sedan with what appeared to be fresh front-end damage. As Officer McKinney approached the car, he saw Paul Cox and Stacy Kimberlin exit the car and begin walking away from the car. McKinney used his public address system to order Cox and Kimberlin to stop, but they ran instead. As McKinney pursued them on foot, Kimberlin stopped, but Cox continued to run and then turned and fired two shots at McKinney. Officer McKinney returned to the car, which still contained Kevin Estes, who was in the driver’s seat of the car, and a passenger named Amanda. McKinney ordered them out of the car and onto the ground, along with Kimberlin, and handcuffed all three. McKinney later testified that he handcuffed the three for officer safety because a passenger in the car had just fired a weapon at him, but the three were not under arrest. McKinney and another officer who had arrived at the scene then “re-engaged” Cox, and, after exchanging fire with Cox, McKinney eventually fired a shot that fatally wounded Cox. After McKinney shot Cox, another police officer, who had arrived at the scene, placed Estes in the back of a police car and drove him to the Joplin Police Department.

Once Estes arrived at the police station, he was escorted to an investigation room. Joplin Police Corporal John Wales was instructed by another officer to watch Estes and talk with him while he was in the investigation room. Wales testified that he knew Estes was involved in the police shooting. He also stated that he knew Estes from his previous duties with the police department and admitted that he initiated a “cordial conversation” with Appellant before advising him of his Miranda rights. In response to a direct examination question about whether Wales read Estes his rights before talking to him, Wales replied, “[w]e started the initial conversation; I did not read him the advice of rights.” Wales then testified that after the cordial conversation, he informed Estes of his Miranda rights at 3:15 p.m. and began to interview Estes. At around 5:30 p.m., Joplin Police Detective Darren Gallup joined Wales and participated in the interrogation. Estes agreed to make a tape-recorded statement.

The taped statement shows that Detective Gallup again informed Estes of his Miranda rights, and Estes stated that he understood his rights and continued making the statement. Estes explained that although he did give Cox and Kimberlin a ride to the home from which the guns were stolen, he did not know that Cox and Kim-berlin had planned to steal the guns. He also stated that the guns were eventually placed in the trunk of a different vehicle and that Cox and Kimberlin intended to sell them. Wales testified that an investigator from Carthage had come over and wanted to search Estes’ vehicle. Estes signed a waiver allowing the police to search the vehicle, which contained the guns supporting Estes’ stealing conviction. Simultaneously with the police interviews with Estes, a different officer was interviewing Kimberlin, who admitted to the theft of the guns and implicated Estes as the person in possession of the guns.

Estes filed a pre-trial motion to suppress the taped statement on the grounds that his statement was the fruit of an unlawful arrest. Following an evidentiary hearing on the matter, the trial court overruled the motion. At trial, the prosecutor introduced the taped statement and Estes objected on the grounds that not everything in the statement constituted an admission. The trial court overruled the objection. Estes now appeals his conviction on the grounds that the trial court erred by overruling his motion to suppress the taped statement. He concedes that this issue was not properly preserved for review and asks this Court to review the issue pursuant to the plain error rule, Rule 30.20.

Appellate courts must use the plain error rule sparingly and not use it to justify a review of every allegation of error that has not been properly preserved for appellate review. State v. Evenson, 35 S.W.3d 486, 492 (Mo.App. S.D.2000). To be entitled to relief under the plain error rule, “[a] defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant’s rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected.” State v. Deckard, 18 S.W.3d 495, 497 (Mo.App. S.D.2000). The burden of proving the existence of a manifest injustice or miscarriage of justice rests with the defendant. State v. Franklin, 144 S.W.3d 355, 359 (Mo.App. S.D. 2004). Courts undertaking plain error review must conduct a two-step analysis. Id. Reviewing courts “first determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred.” Id. If the reviewing court finds that facially substantial grounds exist, it “then determinéis] whether a manifest injustice or a miscarriage of justice has actually occurred.” Id.

Estes contends that the trial court plainly erred by overruling his motion to suppress his taped statement and admitting that statement at trial because he was (1) seized without reasonable suspicion, (2) arrested in the absence of probable cause, and (3) subjected to custodial interrogation without being warned of his Miranda rights. Estes further contends that he was prejudiced by the introduction of the statement because the statement, in which Estes admitted knowing that the stolen guns were in his trunk and that Cox and Kimberlin intended to sell them, allowed the State to argue in closing argument for accessory liability as a potential basis for conviction even though Estes had been charged as a principal.

Estes does not develop his argument concerning the significance of being charged as a principal versus his conviction as an accessory other than to state: “Had Appellant’s statements been suppressed, the State would have had to depend on the testimony of Stacy Kimberlin, a witness whose credibility was highly questionable.” We consider any argument as to the legal significance of being charged as a principal but being convicted as an accomplice to be abandoned. Furthermore, Estes provides no law to support a contention that the prosecutor made an inappropriate closing argument. We conclude that Estes’ argument is that there would have been insufficient evidence to prove that Estes was an accomplice to the crime had his statements not been admitted. We find no merit to his contention.

Accomplice liability requires a showing that the defendant, before or during the commission of an offense, acted with the purpose of promoting the commission of the offense by aiding, agreeing to aid, or attempting to aid another person in planning, committing, or attempting to commit the offense. Section 562.041.1(2). Evidence supporting accomplice liability must include evidence of personal deliberation, although the evidence need not include evidence that the defendant performed each act constituting the elements of the crime, and “any evidence that shows affirmative participation in aiding the principal to commit the crime is sufficient to support a conviction.” State v. Clay, 975 S.W.2d 121,139 (Mo. banc 1998).

We conclude that Estes fails to facially establish substantial grounds for believing a manifest injustice or miscarriage of justice has occurred due to the admission of the statements because ample evidence, including the testimony of Kimberlin and the presence of the stolen guns in Estes’ car, supported the conviction. Kimberlin testified that on February 13, 2003, Estes drove a maroon four-door car to a Joplin motel where Kimberlin and Cox were staying to give them a ride to Carthage. Cox and Kimberlin were planning to go to Carthage to steal guns, cash, and checkbooks from the home of Chester Pendergraft, who was Kimberlin’s relative. Cox and Kimberlin intended to sell the guns, but Kimberlin also wanted to give one of the guns to Cox as a Valentine’s Day gift. Kimberlin explained that the theft of the guns was her idea, but she talked about the theft with Estes as well as Cox. She stated that Estes drove her, Cox, and Amanda to the Pendergraft house, and that before they entered the house, Estes helped measure the trunk of the car to see what length of a rifle it would accommodate. She further testified that once Cox took the guns from the house, he placed them in the trunk of the car, but Estes later helped move the guns into a hotel room and ultimately into the trunk of a car that Estes owned.

Because the prosecutor legitimately could have argued that Estes was an accomplice and because ample evidence supports the conviction even if the challenged statement had not been admitted, Estes has not shown the existence of any prejudice. See State v. Fuente, 871 S.W.2d 438, 443 (Mo. banc 1994) (finding that prejudice could not be established when, even if a challenged statement should have been suppressed, ample other evidence supported the conviction). Thus, we decline plain error review. Point denied. We affirm the conviction.

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

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

      . In fact, Estes introduced the taped recording of Kimberlin, which was recorded on the night of the interview; he did so because of the apparent contradictions in Kimberlin’s statements that night and her statements at trial.

      . All rule references are to Supreme Court Rules (2004), unless otherwise indicated.

      . Estes' point does not properly raise an argument contending that the statements should have been suppressed because Officer Wales used the kind of question-first practice held unconstitutional in Missouri v. Seibert, - U.S. -, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), in which police officers deliberately refrain from giving Miranda warnings until an interrogation has produced a confession, next inform the suspect of his Miranda rights, and then lead the suspect to confess again. The Seibert court held that courts reviewing the effectiveness of a Miranda warning delivered in the midst of a question-first protocol should evaluate:
      the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first.

        Seibert, 124 S.Ct. at 2612 (2004) (plurality opinion). Even though Estes does not properly raise a Seibert argument, we nonetheless find that the record does not contain a factual basis sufficient to support such an argument.