author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Respondent, v. Steven Eugene JOHNSON, Appellant.
    No. 26301.
    Missouri Court of Appeals, Southern District, Division Two.
    May 16, 2005.

      Ellen H. Flottman, Columbia, for Appellant.
    • Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   ROBERT S. BARNEY, Judge.

Steven Eugene Johnson (“Appellant”) appeals his conviction by a jury for statutory sodomy in the first degree, a violation of section 566.062.1. Following a jury trial, the trial court sentenced him to eight years imprisonment. As explained more fully below, in his sole point on appeal Appellant maintains the trial court erred in admitting into evidence a purported act of inappropriate sexual touching by Appellant on a person other than the victim herein. We reverse the judgment of the trial court.

Appellant does not challenge the sufficiency of the evidence to support the judgment. This Court accepts as true all evidence supporting the verdict, including all favorable inferences therefrom and, as a general rule, disregards all contrary evidence and inferences. State v. Dunn, 21 S.W.3d 77, 79 (Mo.App.2000).

The record reveals that on April 13, 2003, thirteen-year-old N.T. and her friend, fifteen-year-old J.G., spent the night at the home of twenty-one-year old Amanda Brake (“Brake”). Brake shared a home with Appellant, who was forty-three years old, though the two were not involved in a romantic relationship. At Brake’s house, the three young women “watched TV;” drank beer; danced; talked; and, listened to the radio. Appellant and some of his Mends arrived at the home around 8:00 p.m.

Brake, J.G., and N.T. went to bed in Brake’s room at around 4:00 a.m. According to N.T., she was awakened at about 6:00 a.m. When she awoke, Appellant was leaning down over her, her pajama pants and underwear were pulled down around her knees, and Appellant “had his finger inside of [her] vagina.” N.T. “kind of kicked [Appellant] off of [her] and rolled over and squeezed [her] legs really tight together. And then [Appellant] came back and tried to rub [her] leg, and [she] kicked him again and acted like [she] was sleeping. And then [Appellant] got up and left the room.... ” N.T., who was “scared[J nervous and Mghtened,” then tried to wake up Brake and J.G. "When she was unable to wake them and after she heard Appellant go into the bathroom, N.T. gathered her things and “ran over to [her Mend V.H.’s] house as fast as [she] could.”

In July of 2008, an informant told Webster County Sheriffs Department Investigator Rick Hamilton (“Hamilton”) that Appellant “had sexual relations with a 18-year-old girl.” Hamilton initiated a hotline call to the Missouri Division of Family Services and they arranged for N.T. to be interviewed at the Child Advocacy Center. Hamilton then questioned Appellant. Appellant told Hamilton that he did not remember “what [he] did with the girls that night.”

The record also shows that during the trial, in addition to the testimony from N.T., Respondent (“the State”) planned to call J.G. to testify that Appellant had touched her inappropriately. Appellant filed a motion in limine seeking to exclude J.G.’s testimony relating to his commission of “other bad acts” against her. At the hearing on the motion in limine, Appellant’s counsel argued that J.G.’s testimony would be “prejudicial to [Appellant]” in that the State had not “charged him with the allegation involving [J.G.];” therefore, her testimony “would deny him a fair trial ...” and was not admissible as an exception to the prohibition against the admission of prior misconduct evidence. In response, the State argued, in pertinent part, that J.G.’s testimony was relevant and fell within the exception to the use of uncharged prior misconduct, because the event detailed in J.G.’s testimony was “part of the circumstances or sequence of events surrounding the offense charged ... [and was necessary] to present a complete and coherent picture of what transpired.” The trial court overruled Appellant’s motion in limine. WTren J.G. subsequently took the stand, Appellant objected on the same basis raised in the motion in limine. The trial court overruled the objection and noted Appellant’s continuing objection to J.G.’s testimony.

J.G. then testified that on the morning in question she awoke at 8:00 a.m. in Brake’s house to find Appellant rubbing her vagina on the outside of her jeans. When Appellant realized that J.G. was awake, he said, “Why don’t you go into the living room with me?” J.G. told Appellant that she wanted to lay back down and Appellant left the room. J.G. then gathered her shoes and her “hoodie,” and left Brake’s house.

As heretofore related, following a jury trial, Appellant was convicted of one count of statutory sodomy in the first degree and was sentenced by the trial court to eight years in prison. This appeal followed.

In his sole point on appeal, Appellant maintains the trial court abused its discretion in overruling Appellant’s motion in limine and “admitting evidence of [AJppel-lant’s alleged acts against [J.G.].” He asserts that the admission of J.G.’s testimony deprived him of his due process rights and his constitutional right to be tried only for the crime with which he was charged. He also asserts that “any probative value that this improper character evidence may have had to shed light on any material issue was clearly outweighed by its prejudicial impact and made it more likely that the jury would convict [A]ppellant on the charged offense related to [N.T.].”

Trial courts have broad discretion in determining whether to admit or exclude testimony, and an appellate court will reverse only upon a showing of a clear abuse of discretion. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). “ ‘We review trial court decisions regarding the admissibility of evidence for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.’ ” Dunn, 21 S.W.3d at 85 (quoting State v. Santillan, 1 S.W.3d 572, 579 (Mo.App.1999)) (internal quotation omitted).

It is generally recognized that a criminal defendant has a right to be tried only for the offense for which he is charged. State v. Pennington, 24 S.W.3d 185, 189 (Mo.App.2000). “The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is not admissible for the purpose of showing the propensity of the defendant to commit such crimes.” State v. Burns, 978 S.W.2d 759, 761 (Mo. banc 1998). “Propensity to commit a crime is not a proper purpose for admission of evidence because it ‘may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.’” Pennington, 24 S.W.3d at 189 (quoting State v. Bernard, 849 S.W.2d 10, 16 (Mo. banc 1993), superceded in part by § 566.025, RSMo 1994). “ ‘Proffered evidence will run afoul of th[is] rule ... if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes.’ ” State v. Wallace, 952 S.W.2d 395, 397 (Mo.App.1997) (quoting State v. Hombuckle, 769 S.W.2d 89, 96 (Mo. banc 1989)).

However, “[e]vidence of prior misconduct of the defendant, although not admissible to show propensity, is admissible if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial.... ” Bernard, 849 S.W.2d at 13. Such evidence “is legally relevant, in that its probative value outweighs its prejudicial effect.” Id.

“Bernard recognizes five categories of exceptions to the general rule prohibiting admission of evidence of uncharged misconduct and adds a sixth exception.” State v. Roberts, 948 S.W.2d 577, 591 (Mo. banc 1997). “Such evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial or (6) a signature modus operandi [where nearly identical incidents are so unusual and distinctive as to corroborate the victim’s testimony].” Id. Roberts notes that the court in State v. Skillicorn, 944 S.W.2d 877, 887 (Mo. banc 1997), acknowledged “a seventh category permitting evidence of a continuation of a sequence of events that assist in painting a coherent picture of the crime.” Roberts, 948 S.W.2d at 591. “The State, however, may not ask a defendant about unrelated criminal misconduct unless the conduct is related to the crimes with which defendant was [actually] charged.” State v. Phillips, 134 S.W.3d 54, 57 (Mo.App.2004). “The list of exceptions to the general rule is not exclusive but, in each instance, announce a judicial conclusion that the prior-bad-acts evidence is both logically and legally relevant.” Roberts, 948 S.W.2d at 591; see State v. Jacobs, 939 S.W.2d 7, 10 (Mo.App.1997). “This balancing of prejudicial effect and probative value lies within the sound discretion of the trial court.” State v. Shaline, 793 S.W.2d 167, 171 (Mo.App.1990). “In all cases in which evidence of uncharged misconduct is offered, ‘the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny.’ ” Burns, 978 S.W.2d at 761 (quoting State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967)). “Admonitions to be wary of evidence of other crimes are long standing.” Pennington, 24 S.W.3d at 190.

Save for certain factual circumstances set out in section 566.025 involving minors under fourteen years of age, “ ‘[i]n Missouri, the prosecution may show a defendant’s propensity for illicit sexual relations with the prosecuting witness but similar sexual crimes with other persons are generally inadmissible for the purpose of showing propensity.’ ” State v. Brooks, 810 S.W.2d 627, 631 (Mo.App.1991) (quoting State v. Young, 661 S.W.2d 637, 639 (Mo.App.1983)). ‘“Where sodomy is the crime charged, evidence that [the] accused committed the same offense, or had improper relations, with a person other than the one named in the indictment, is as a rule held to be inadmissible.’ ” State v. Atkinson, 293 S.W.2d 941, 943 (Mo.1956) (quoting 22 C.J.S. Criminal Law § 691). “Furthermore, in considering this question, it should be noted that to admit proof of crimes other than the one with which the accused is charged would require him to defend any number of charges about which the indictment gives him no information.” Id. at 943-44. “Such proof, especially as to crimes such as sodomy, would also be likely to have a decidedly prejudicial effect upon the jury.” Id.

We first begin by noting that the cases primarily relied upon by the State, supporting its proposition that J.G.’s testimony was permissible, involve evidence of a common scheme or plan, not evidence of a sequence of events surrounding the offense charged.

Secondly, it is our view that the State’s reliance on State v. Barrett, 41 S.W.3d 561, 564 (Mo.App.2001), is misplaced because in Barrett the evidence which was admitted related to the Barrett defendant’s prior bad acts against the victim in that case. It has long been held that evidence of uncharged sexual conduct with the same victim “is admissible to establish motive, intent, absence of mistake or accident, or a common scheme or plan.” State v. Boulware, 923 S.W.2d 402, 405 (Mo.App.1996). Here, the evidence which the State sought to admit related not to Appellant’s prior bad acts with the victim, N.T., but his prior bad acts with J.G.; accordingly, Barrett is inapposite.

Thirdly, although the State relies on State v. Dalton, 587 S.W.2d 644, 645 (Mo.App.1979), in support of its contention that J.G.’s testimony was logically and legally relevant, Dalton does not assist the State. As explained in Bernard, the Dalton court “affirmed the trial court’s admission of evidence of various acts of sexual misconduct committed against two brothers, placed briefly in the care of the defendant.” Bernard, 849 S.W.2d at 15. “The court found the evidence admissible under the common scheme or plan exception in part because the defendant exercised control and custody of the boys and in part because the various acts of sexual misconduct, both charged and uncharged, occurred during an approximately one-hour period.” Id. (emphasis added).

Dalton is factually dissimilar to the present matter. In Dalton, the defendant’s acts toward the two boys were part of the same criminal enterprise in that the acts were very similar in nature and appeared to be part of a greater plan to intentionally victimize the children. Dalton, 587 S.W.2d at 645. “[T]he court used the fact of adult authority as the key to its finding the defendant’s sexual offenses were part of a scheme.” Brooks, 810 S.W.2d at 634. In the present matter, Appellant’s acts toward each of the two girls were not the same. Appellant was not the children’s custodian, nor was he specifically charged with the responsibility of their care as was the defendant in Dalton. There was no evidence that Appellant set out to commit a series of sexual assaults on the two young girls that were but temporarily in his home. “There is no evidence mentioned or discussed ... which tended to show the defendant had some overarching plan and the separate acts of sexual misconduct were part of that plan.” Id. at 633-34. If anything, the inference derived from the record is that Appellant was simply presented with the opportunity to sexually molest both girls and had no plan to do so beforehand. Dalton is not persuasive here.

Lastly, the cases which have allowed the application of the series or sequence of events exception have typically involved interrelated clusters of events, crime sprees, or situations where other exceptions were also applicable, such as deliberation, motive, identity, or intent. Our review of the case law reveals the “series or sequenee of events” exception to be a narrowly read exception and historically used in robbery and homicide cases.

As for the application of the series or sequence of events exception to the present matter, it appears that there was no evidence that Appellant had a generalized plan to inappropriately touch both N.T. and J.G. Additionally, it was not necessary to show Appellant’s actions towards J.G. in order to prove N.T.’s allegations and convict Appellant of statutory sodomy. N.T., herself, was able to testify about the event for which Appellant was on trial. “Generally, in sexual offense cases the victim’s testimony alone is sufficient to sustain a conviction, even if uncorroborated.” State v. Sprinkle, 122 S.W.3d 652, 666 (Mo.App.2003).

“Evidence of other crimes is highly prejudicial and should be received only when there is strict necessity.” State v. Williams, 804 S.W.2d 408, 410 (Mo.App.1991) (internal quotation omitted). “If evidence of a prior crime is not admissible under any exceptions to the general rule prohibiting its admission, the admission is presumed to be prejudicial.” Brooks, 810 S.W.2d at 634. In the instant matter, the evidence of Appellant’s uncharged prior misconduct is not legally relevant, in that its prejudicial effect outweighs its probative value. See Bernard, 849 S.W.2d at 17; State v. Sladek, 835 S.W.2d 308, 314-15 (Mo. banc 1992). The trial court abused its discretion in permitting J.G. to testify as she did.

The judgment of the trial court is reversed and the cause remanded for a new trial.

PARRISH, P.J., and SHRUM, J., concur.

      . "A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.” § 566.062.1. Deviate sexual intercourse is defined in section 566.010(1) as "any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.”
      All statutory references are to RSMo 2000 unless otherwise stated.

      . We use the initials of the victim and any other minors mentioned in the opinion in order to protect their identity. According to the record, the girls knew Brake because she previously dated J.G.'s brother.

      . Brake's bedroom did not have an actual bed in it; instead, it appears that the three young women slept on a mattress in the corner of the room with their heads pointed toward the wadi and their feet pointed toward the bedroom door.

      . V.H., who had been with N.T. and J.G. for a period of time the previous evening, lived about a block from Brake's home.

      . "The common scheme or plan theory is not a 'series of crimes’ theory in which the evidence of one crime may be offered to show the defendant’s propensity to engage in the crime charged.” State v. Conley, 873 S.W.2d 233, 236 (Mo.1994).

      . Section 566.025 states:
      In prosecutions pursuant to this chapter or chapter 568, RSMo, of a sexual nature involving a victim under fourteen years of age, whether or not age is an element of the crime for which the defendant is on trial, evidence that the defendant has committed other charged or uncharged crimes of a sexual nature involving victims under fourteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he or she is charged unless the trial court finds that the probative value of such evidence is outweighed by the prejudicial effect.
      We note that a prior version of section 566.025, RSMo 1994, which did not require the trial court to determine whether the probative value of such evidence is outweighed by the prejudicial effect, was declared unconstitutional by the Missouri Supreme Court in Bums, 978 S.W.2d at 762. Appellant does not directly challenge the constitutionality of the latest enacted version of section 566.025.

      . The &ial court did not specifically state which exception to the prohibition against prior misconduct evidence was applicable to the present matter. Further, in his brief, Appellant made only blanket assertions that "no valid reason existed to justify the admission of allegations of crimes against [J.G.]” However, as the State only argues that J.G.’s testimony was introduced as part of the "sequence of events” exception, we find that the State has tacitly conceded in this appeal that none of the other exceptions are applicable and we address only that exception in this opinion.

      . See Skillicorn, 944 S.W.2d at 887 (holding that evidence of the defendant’s misconduct in threatening other victims with the same guns he had used in a murder several hours earlier was admissible as "a continuation of the sequence of events that present[ed] a coherent picture of [defendant’s] crime" and “helped establish the element of deliberation in the charged crime of murder”); State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994) (holding that where "the evidence of [the defendant’s] planned use of the gun to commit a drive-by shooting was interconnected to and nearly contemporaneous with” the murder for which he was on trial, “it set the context for that offense” and “added to the complete and coherent picture of the murder and was, therefore, properly admitted”); State v. McKibben, 998 S.W.2d 55, 59 (Mo.App.1999) (holding that where the defendant was charged with robbery and there was evidence of two assaults committed by the defendant "in an uninterrupted sequence spanning approximately one hour” the two assaults were a "continuation of the sequence of events” surrounding the robbery and the defendant's "actions after the robbery were admissible to present a complete and coherent picture of the events that transpired”); State v. Morrow, 968 S.W.2d 100, 107 (Mo. banc 1998) (holding that evidence of other uncharged crimes was admissible where the crimes were "part of a three day drug binge and crime spree,” and were necessary to “fully and fairly [present] a complete and coherent picture of the crimes charged and the whole truth to the jury”); State v. Flenoid, 838 S.W.2d 462, 467-68 (Mo.App.1992) (holding that where the defendant was charged with possession of a controlled substance and unlawful use of a weapon the evidence that defendant carried a beeper and cash was "part of the res gestae of the charge being tried,” thus, it was "admissible to present a complete and coherent picture of events surrounding the possession of the cocaine and weapon” and was also indicative that the defendant sold drugs, which "was a circumstance tending to show his knowledge and intent in possessing the cocaine”); State v. Davis, 806 S.W.2d 441, 443 (Mo.App.1991) (holding that testimony by police officers that defendant, who was charged with possession of a controlled substance, had engaged in other drug transactions while they were performing surveillance on him was admissible because "such testimony established the res gestae of the crime with which defendant was charged;” such ”[e]vidence of the transactions which occurred between defendant and others furnished a cohesive picture of the charged offense;” and, "[djefendant’s conduct prior to his arrest could also be viewed as circumstantial evidence to show how he came into possession of the cocaine”); State v. Wacaser, 794 S.W.2d 190, 194 (Mo. banc 1990) (holding that where the defendant was on trial for the murder of one boy and the evidence showed that the defendant took two boys "together to a motel room and contemporaneously stabbed [them] to death” the testimony that the State dismissed a second murder charge against defendant for the death of the second boy was admissible to illustrate "the circumstances surrounding the offense charged ...”); Phillips, 134 S.W.3d at 57 (holding that evidence that the defendant and an accomplice, who were on trial for murdering a store clerk, had a "plan” to burglarize a convenience store, steal anhydrous ammonia, and manufacture methamphetamine was admissible to show "the complete and coherent picture of the events that transpired” and to show motive, "in that the need for money obtained from the burglary was necessary for Defendant and the other two men to complete their plan of manufacturing methamphetamine”).


source: Caselaw Access Project

author: JOHN E. PARRISH, Presiding Judge.

license: Public Domain

text:
    Josh McCALLUM, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 26500.
    Missouri Court of Appeals, Southern District, Division Two.
    May 17, 2005.

      Mark A. Grothoff, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Josh McCallum (movant) was convicted, following a trial before the court without a jury, of two counts of burglary in the first degree. § 569.160, RSMo 1994. See State v. McCallum, 72 S.W.3d 287 (Mo.App.2002). Movant filed a motion for post-conviction relief following his incarceration as permitted by Rule 29.15. That motion was denied after an evidentiary hearing. Movant appeals. This court affirms.

State v. McCallum, supra, recites the facts adduced at the trial of movant’s underlying criminal case. Those facts are not repeated here other than as may be necessary to address the two points mov-ant asserts in this appeal. Movant contends he received ineffective assistance of counsel in his criminal case. His claims of ineffective assistance of counsel relate to testimony given by Jeremy Dry and Bobby Tygart.

To prevail on an ineffective assistance of counsel claim, a movant must show by a preponderance of the evidence (1) that trial counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney, and (2) that as a result, his or her defense was prejudiced. State v. Hall, 982 S.W.2d 675, 680 (Mo.banc 1998), cert. denied, 526 U.S. 1151, ... (1999).

Nunley v. State, 56 S.W.3d 468, 469-70 (Mo.App.2001).

Point I contends the motion court erred in denying movant’s Rule 29.15 motion and in finding movant’s trial attorney was not ineffective because he failed to object to the grant of immunity to Jeremy Dry. Movant bases the claim of error in Point I on the part of § 491.205.2, RSMo Supp.1999, that provides that the judge who hears an application for witness immunity “may not hear the subsequent criminal trial ... for which the immunity applies.”

Movant’s trial counsel testified at the evidentiary hearing in this case. He was asked what occurred during trial that resulted in waiving trial by jury. He answered that the waiver was precipitated by the threat that Jeremy Dye would testify as a witness for the state. Movant’s trial attorney was asked how these concerns related to waiving the jury. The attorney explained that during a recess in the criminal trial (that had begun with a jury), the state announced it intended to request the grant of immunity to Jeremy Dry and intended to call him to testify. An agreement was reached between movant and the state that in return for movant waiving trial by jury, the state “would limit the range of punishment or cap the punishment at 12 years on both counts, running concurrent.” The state further agreed, in exchange for waiver of a jury trial, that no other charges would be filed in Newton County against movant.

The state called Jeremy Dry as a witness. Dry sought to invoke his Fifth Amendment right not to testify for the reason that he might incriminate himself. The state presented the trial court with an “Application for Witness Immunity.” Movant’s trial attorney objected to the grant of immunity on grounds other than that the applicable statute provided that the judge hearing the application may not hear a subsequent criminal trial for which the immunity applied. The trial judge overruled the objection.

Movant’s trial attorney testified at the Rule 29.15 hearing that he had reviewed the statute regarding witness immunity prior to the trial in movant’s criminal case. He was asked the reason he “would not have objected” to the same judge granting immunity who was the judge in the trial of the case. He explained that he believed the trial judge would have granted the state whatever time was necessary to contact the circuit judge who was in McDonald County at the time of trial; that he did not believe it would make a difference in the outcome by requiring the matter to be presented to the other judge. Movant’s trial attorney said he was trying to keep the judge at the trial and the prosecutor “on board with the proposal they had made.”

With respect to the issue raised in Point I, the motion court found that movant’s trial counsel was aware of the statutory requirement, but for strategic reasons did not object. The motion court noted:

Trial counsel knew that Judge Perigo was available to hear the request for immunity, and that immunity was likely to be granted whichever judge heard the request. Trial counsel’s concern was that requiring the State to go through the trouble of putting the issue in front of Judge Perigo would hurt his chances of getting an agreement from the State to proceed without a jury in exchange for a cap on possible punishment.

The motion court found that this strategy was reasonable; that movant did not meet his burden of showing trial counsel’s actions were deficient.

“Appellate review of the denial of a post-conviction motion is limited to the determination of whether the findings of fact and conclusions of law are clearly erroneous.” Goodson v. State, 978 S.W.2d 363, 364 (Mo.App.1998). “Such findings and conclusions will be found clearly erroneous only if the reviewing court is left with a definite and firm impression that a mistake has been made.” State v. Collier, 918 S.W.2d 354, 356 (Mo.App.1996).

Purdue v. State, 14 S.W.3d 255, 256 (Mo.App.2000). See Rule 29.15(k).

“Counsel is presumed to have been competent and the defendant must overcome the presumption that counsel’s challenged acts or omissions were sound strategy. Decisions concerning whether or when to make objections at trial are left to the judgment of counsel.” State v. Suarez, 867 S.W.2d 583, 587 (Mo.App.1993) (citations omitted). “Appellate courts will not review or reassess the judgment of trial counsel on questions of strategy, trial tactics or trial decisions.” State v. Brasher, 867 S.W.2d 565, 570 (Mo.App.1993).

The motion court concluded that mov-ant’s trial counsel’s actions were a matter of trial strategy and that the trial strategy was sound. The motion court’s findings and conclusions with respect to the issue raised in Point I are not clearly erroneous. Point I is denied.

Point II alleges that the motion court erred in denying movant’s Rule 29.15 motion because movant was denied effective assistance of counsel in that his trial counsel failed to adequately cross-examine witness Bobby Tygart and failed to impeach his testimony.

Requirements for a point relied on are stated in Rule 84.04(d). The rule requires:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged mling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].”

Point II fails to explain in summary fashion why, in the context of the case, the legal reasons asserted as error support a claim of reversible error. Point II gives no hint as to the subject of prior inconsistent statements that it contends should have been addressed, nor does Point II suggest, in the context of the case, how cross-examination was deficient. Point II merely surmises that trial counsel failed “to adequately cross-examine Bobby Ty-gart and impeach his testimony with prior inconsistent statements.”

“Lack of compliance with requirements of Rule 84.04 amounts to failure to preserve issues for appellate review.” State v. Eggers, 51 S.W.3d 927, 930 (Mo.App.2001). This court may, nevertheless, in its discretion, consider plain errors affecting substantial rights, though not preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. This court has reviewed the record in this case (including a review of the transcript in movant’s criminal trial that is part of this record on appeal). That review discloses no manifest injustice or miscarriage of justice.

The motion court found:

When first approached by investigators, Mr. Tygart denied having any knowledge of the alleged business. At a later time he told the same investigators about the statements made by movant. This court finds that Mr. Tygart’s possible biases were sufficiently exposed by trial counsel as was Mr. Tygart’s criminal record. Given the weight of evidence presented at trial against movant, this court cannot find that the result of the trial would have been different had Mr. Tygart been more thoroughly cross-examined or impeached. Movant has failed to meet his burden on this issue.

The motion court’s determination of Point II is based on findings of fact that are not clearly erroneous. No error of law appears. Further opinion on the issue asserted in Point II would have no prece-dential value. The trial court’s finding on the issue addressed in Point II is affirmed in compliance with Rule 84.16(b). Point II is denied. The judgment denying mov-ant’s Rule 29.15 motion is affirmed.

BATES, C.J., and BARNEY, J., concur.

      . The offenses with which movant was charged were class B felonies. The range of punishment for each offense was "a term of years not less than five years and not to exceed fifteen years.” § 558.011.1(2), RSMo 1994.

      . The prosecuting attorney told the trial court, at the time he presented the application tó grant immunity to Dry, that because Dry had previously pleaded guilty to the two felony offenses for which movant was being tried, he did not believe Dry was entitled to claim a Fifth Amendment right not to testify. The prosecuting attorney explained, however, that he was asking the trial court to grant immunity to Dry "just to clean up any possible technical problems.”


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Tracy TAMBONE, Respondent/Cross-Appellant, v. Gregorio TAMBONE, Appellant/Cross-Respondent.
    No. ED 83627.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2004.

      Merle L. Silverstein, Clayton, MO, for Appellant.
    Benicia A. Baker-Livorsi, St. Charles, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Tracy L. Tambone (hereinafter, “Wife”) and Gregorio Tambone (hereinafter, “Husband”) were married on May 28, 1992. During their marriage, twin children were born. Wife and Husband separated in December 2001. Wife and Husband stipulated that conduct of both parties was not at issue and Wife would receive custody of their minor children. Hence, the only issues for the trial court to determine were division of the marital estate, and awards of maintenance and child support. After a three-day trial, the trial court issued its judgment dissolving their marriage on September 18, 2003. This appeal and cross-appeal follow, raising issues of property division and child support. We reverse and remand.

Provisions in a decree of dissolution will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, they erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We view the evidence and all permissible inferences therefrom in the light most favorable to the trial court’s decree, and we disregard all contrary evidence and inferences. Mehra, 819 S.W.2d at 353. Further, we defer to the trial court’s determination of the credibility of the witnesses. In re Marriage of Novak, 83 S.W.3d 597, 600 (Mo.App. E.D.2002).

In his first point on appeal, Husband claims the trial court erred in its division of the marital property for three reasons. He alleges the trial court failed in: (1) dividing the marital property in a just and equitable manner; (2) assigning a negative value to a portion of the debt assigned to him; and (3) including the full amount of debt assigned to him in its calculation of marital property on the distribution schedule. Husband believes this creates an extremely disproportionate division of marital property.

“The trial court is vested with considerable discretion in dividing marital property and an appellate court will interfere only if the division is so heavily weighted in favor of one party as to amount to an abuse of discretion.” In re Marriage of Duvall, 67 S.W.3d 736, 740 (Mo.App. E.D.2002). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances of the case before it and is so arbitrary and unreasonable as to shock this Court’s sense of justice. Schroeder v. Schroeder, 59 S.W.3d 607, 609 (Mo.App. W.D.2001). Section 452.330.1 RSMo (2000) sets forth nonexclusive factors for the trial court to consider in its division of marital property: (1) the economic circumstances of both parties at the time of the property division and the desirability of the custodial parent to be awarded the family home; (2) the contribution of both parties to the accumulation of marital property; (3) the value of each party’s separate property; (4) conduct of the parties during the marriage; and (5) the custodial arrangements for the minor children.

The trial court took each of these factors into consideration in its judgment, including specifically, as per their pre-trial stipulations, not making a determination as to the conduct of Husband and Wife. Husband, however, complains the trial court erred in dividing the debt from the home equity loan and their tax refund check.

Wife concedes $23,000 of the home equity loan was characterized as a positive distribution to Husband when it should have been a debt attributable to her. Accordingly, upon remand, the trial court is directed to allocate this loan as a debt to Wife in its re-division of their marital property.

Husband also claims the trial court erred in assigning $7,000 of the home equity loan to him as sanctions. The trial court found that in December 2002, Husband increased the amount of the home equity line of credit by $6,500. This increase was made while the parties were separated and without Wife’s knowledge or consent. Husband argues Wife knew of the increased amount. However, we defer credibility determinations to the trial court, which found Wife did not know of the increased line of credit against her name. Novak, 83 S.W.3d at 600. The trial court ordered Husband to pay $7,000 on the home equity loan, accounting for the additional increase, as accrued interest, and a sanction to Husband for not receiving Wife’s consent.

Imposing sanctions of a flat fine to Husband was not an abuse of the trial court’s discretion. The fine was compensatory in nature and related to the actual damages suffered by Wife. Smith v. White, 67 S.W.3d 742, 747 (Mo.App. W.D.2002). Husband argues this should be divided as part of the marital estate. However, it stands to reason that sanctions imposed against one party should not be attributable against the party who was harmed. The trial court did not abuse its discretion in imposing sanctions against Husband and not including them as part of the marital estate.

In his last argument relating to this point, Husband argues that the trial court improperly ordered him to pay Wife $7,453 from the tax refund check he received. The trial court found Husband obtained Wife’s signature on their joint tax return under the guise of dividing the refund with her. Husband failed to do so. “Proceeds from federal and state tax refunds are presumed to be marital property and subject to division by the trial court.” Kester v. Kester, 108 S.W.3d 213, 222 (Mo.App. S.D.2003). This amount was included in the judgment in the marital distribution chart. The trial court determined this amount was owed to Wife, and we find no suggestion that the trial court abused its discretion.

Husband’s second point on appeal claims the trial court erred in classifying the proceeds from Wife’s wrongful death claim for her mother’s death as separate property. Husband contends those proceeds were acquired during the marriage and did not qualify as separate property.

While Husband and Wife were married and living together, Wife’s mother died. Wife, her sister, and her father brought a wrongful death suit, seeking to be compensated for their untimely loss of their relative. Husband did not support, nor did he participate in, this suit. The wrongful death suit settled, and Wife’s portion of the settlement was distributed to her while Husband and Wife were separated. Wife placed these proceeds in her separate account. Husband believes the trial court erred in allowing Wife to retain the settlement proceeds as separate property rather dividing the proceeds as part of the marital estate.

All property acquired during a marriage is presumed to be marital property. Section 452.330.3. However, there are exceptions to this maxim. A party may overcome the presumption of marital property by demonstrating the property is within one of the categories delineated by Section 452.330.2; this includes property acquired b.y gift, bequest, devise or descent. Section 452.330.2(1). Furthermore, the list of exclusionary factors in Section 452.330.2 is not exclusive. Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo. banc 1999). “The party claiming that property is non-marital bears the burden of proving the property is separate property by clear and convincing evidence.” In re Marriage of Maninger, 106 S.W.3d 4, 9 (Mo.App. E.D.2003).

Wrongful death is a statutory cause of action. Sections 537.080 et. seq. Section 537.080.1 provides for a wrongful death action

[wjhenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for....

This section continues, setting forth a hierarchy of those persons entitled to bring a wrongful death cause of action. Section 537.080.1(l)-(3). Paragraph (1) of the statute allows a spouse, children, or parents of the decedent to bring a wrongful death action. Section 537.080.1(1). If there is no representative from paragraph (1) able to bring suit, then paragraph (2) allows for a wrongful death suit brought by the siblings of the decedent. Section 537.080.1(2). In the last scenario, if no one in either class is able to bring suit, a plaintiff ad litem shall be appointed by the court. Section 537.080.1(3).

Wife, in conjunction with her sister and her father instigated the wrongful death action for her mother’s death as they were all members of the first class pursuant to Section 537.080.1(1). Husband was not entitled to sue on behalf of Wife’s mother as he was not a member of any class listed by the statute. See also, Call v. Heard, 925 S.W.2d 840, 850 (Mo. banc 1996).

Additionally, Section 537.095 states, “Any settlement or recovery by suit shall be for the use and benefit of those who sue or join, or who are entitled to sue or join, and of whom the court has actual written notice.” After Husband and Wife separated, Wife’s wrongful death suit settled. When the proceeds of this settlement were distributed to her, she maintained the funds in a separate account which did not contain marital funds nor was Husband listed as an account holder. Under these circumstances, Wife’s proceeds remained her separate property.

Husband further argues the settlement proceeds should be marital property because Missouri follows the “source of funds rule.” Hoffmann v. Hoffmann, 676 S.W.2d 817, 824 (Mo. banc 1984); Section 452.330.2(5). Yet, this rule is not applicable in this case. The “source of funds rule” characterization of property as marital or separate “is determined by the source of funds used to finance the purchase.” Davis v. Davis, 107 S.W.3d 425, 432 (Mo.App. E.D.2003). In this case, there were no marital funds invested into the wrongful death action; the case was taken on a contingency basis and fees were paid out of the settlement.

We find the trial court did not error by listing the proceeds of the wrongful death suit as Wife’s separate property. Point denied.

Husband’s final point on appeal claims the trial court erred in calculating its Form 14 because it failed to take into account monthly tuition expenses for the children which were ordered by the court. Husband believes this resulted in a mathematically incorrect amount of child support.

It is mandatory to use the Form 14 in calculating child support. Rule 88.01; McGowan v. McGowan, 43 S.W.3d 857, 871 (Mo.App. E.D.2001). In this case, both Wife and Husband submitted a Form 14. However, the trial court rejected both of their forms and prepared its own.

Determining the proper child support amount involves a two-step analysis. In the first step, the trial court establishes the presumed child support from a Form 14 submitted by either party or by the court. Searcy v. Searcy, 85 S.W.3d 95, 99 (Mo.App. W.D.2002) (citing Douglas-Hill v. Hill, 1 S.W.3d 613, 616 (Mo.App. W.D.1999)). This is a mathematical process, ensuring the child support guidelines are followed. J.L.M. v. R.L.C., Jr., 132 S.W.3d 279, 286 (Mo.App. W.D.2004). “In the second step, the trial court makes a determination of whether that presumed child support amount has been rebutted as being unjust and inappropriate.” Id.

This Court’s review of the Form 14 ensures “the calculation was done accurately from a mathematical standpoint and that the various items and their amounts were included in the calculation and supported by substántial evidence.” Lagermann v. Lagermann, 109 S.W.3d 239, 245 (Mo.App. E.D.2003). In this case, the trial court erred in its initial calculation of its Form 14 by failing to include the private education costs. Line 6(e) of Form 14 provides for “[o]ther extraordinary child-rearing costs.” The comment for Line 6(e) explains what items should be included in extraordinary child-rearing costs. This comment allows for private school expenses which are not included in basic child-rearing costs. MO.R.Civ.P. Form 14, line 6(e), comment A. These costs are included on the Form 14 if the parents agree or the court so orders. Id.

Both Husband and Wife agreed then-minor children would receive a private school education. They further agreed Husband would pay for all costs associated with attending private school. Accordingly, the trial court failed to include approximately $1400 of monthly educational expenses on its Form 14. These monthly expenses should have been included as extraordinary child-rearing expenses. The trial court is directed to re-calculate its Form 14 upon remand.

Wife raises one point in her cross-appeal. She alleges the trial court erred in finding Husband’s future interest in a parcel of property in New Jersey as separate property. Similar to Husband’s claims, Wife states that all property acquired during a marriage is marital unless it meets one of the statutory exceptions pursuant to Section 452.330. Wife believes Husband failed to introduce competent evidence which would exclude this property from being separate property.

At trial, Husband testified his aunt gifted the property to him, his siblings, and cousins subject to a life estate in Husband’s parents. Husband’s mother is still living, and Husband does not have free and clear title in the New Jersey property. Husband further testified that no marital funds were used to obtain or maintain this property.

The trial court is entitled to believe or disbelieve the testimony of either party. Taylor v. Taylor, 25 S.W.3d 634, 645 (Mo.App. W.D.2000); Novak, 83 S.W.3d at 600. It is apparent, the trial court believed Husband when he alleged he would receive his interest in the New Jersey property only after his mother passed away. The gift from his aunt clearly falls within a separate property exception. Section 452.330.2(1). Point denied.

The judgment of the trial court is reversed and remanded.

WILLIAM CRANDALL, JR., J., and CLIFFORD H. AHRENS, J., concur.

      . All further statutory references herein are to RSMo (2000) unless otherwise noted.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff/Respondent, v. John W. DILLEY, Jr., Defendant/Appellant.
    No. ED 84159.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 23, 2004.
    Leslie E. McNamara, Assistant Attorney General, Jefferson City, MO, for respondent.
    Jason Coatney, Springfield, MO, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., BOOKER T. SHAW, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Defendant appeals from the judgment entered by the trial court on a jury verdict finding him guilty of assault in the second degree, in violation of Section 565.060 RSMo (2000), and abuse of a child resulting in death, in violation of Section 568.060.3(2) RSMo (2000). The trial court sentenced defendant to five years imprisonment on the assault count and fifteen years imprisonment on the abuse count, to be served concurrently.

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

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


author: SHERRI B. SULLIVAN, J.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Dwayne MILLER, Defendant/Appellant.
    No. ED 83858.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2005.
    Application for Transfer Denied May 31, 2005.

      Deborah B. Wafer, St. Louis, MO, for appellant.
    Deborah Daniels, Daniel Neal McPherson — Co-Counsel, Jefferson City, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Dwayne Miller (Defendant) appeals from a judgment of conviction of first-degree murder, armed criminal action, and first-degree attempted robbery. Defendant alleges trial court error in sustaining the State’s challenge to Defendant’s peremptory strike of a white venireperson, overruling Defendant’s challenge to the State’s peremptory strikes of two black venirepersons, and in sustaining the State’s objection to defense counsel’s attempt to compare for the venire the difference between the civil and criminal burdens of proof. We affirm.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the verdict, the evidence adduced at trial reveals the following. Lisa Thomas (Thomas) was walking with her daughter to a restaurant near her house. On her way, Thomas saw Paul Henley (Henley), an acquaintance with whom Thomas had been doing errands earlier in the day, and Defendant in a vacant lot next to her house. Thomas overheard part of a conversation between the two men in which they made reference to black tar heroin and her brother, Cornelius Dukes (Dukes), a drug dealer. Testifying under a plea agreement, Henley corroborated those observations, testifying that he met Defendant on a vacant lot, where they discussed robbing Dukes. Earlier in the day, Thomas had bought a box of sandwich bags for Dukes to- use to package some black tar heroin and brought the box to Dukes’s house. Henley was with Thomas when she did this errand, but he remained in the car.

Later that evening, Defendant and Henley went to Dukes’s house. They followed Renee Spann (Spann), Dukes’s girlfriend’s mother, who also lived in the house, into the house when she returned home. Both men were brandishing guns when they entered the house. Defendant held a semiautomatic pistol and Henley held a .38 caliber revolver.

Defendant demanded money and/or drugs from Dukes. Dukes walked into the bedroom, retrieved a small amount of crack cocaine, and gave it to Defendant. Defendant demanded more drugs, and he arid Dukes began scuffling. Tracy Alston (Alston), Dukes’s girlfriend, who also lived in the house, grabbed their two children and fled towards the back door of the house, along with Spann.

Defendant’s gun was pointed towards Dukes’s abdomen, and Spann heard a gunshot as she saw the two men struggling. Henley fired a shot, hitting Dukes in the leg. Defendant and Dukes continued wrestling, and Henley fled from the house. As Alston reached the back door, she heard three gun shots, and Henley also heard three gun shots as he fled from the house.

After a few moments, Alston returned to the house and saw Dukes staggering outside into the front yard. Dukes was taken to a hospital, where he was pronounced dead. Dukes had been shot five times: once in the back, with the bullet entering the abdomen; once in the back of the shoulder; and three times in the thigh. The cause of death was determined to be a gunshot wound to the abdomen. Police recovered three shell casings from a nine-millimeter semiautomatic pistol and one projectile of indeterminate type from the scene.

Later, detectives interviewed Spann and Alston and showed them a photo array, from which both women identified Defendant. After his arrest, Henley also identified Defendant from a photo array as the man who shot Dukes. Alston had no doubt that Defendant was the man who entered her house with a pistol and got into a wrestling match with Dukes. Alston had seen Defendant at her house a few months before the shooting, engaged in a conversation with Dukes, during which Dukes did not seem fond of Defendant. The police also interviewed Thomas, and she told them that she overheard a conversation between Henley and Defendant after the shooting in which Henley told Defendant “that he didn’t have to shoot him or he wasn’t supposed to shoot him.”

Defendant was charged by indictment with murder in the first degree (Count D, a class A felony in violation of Section 565.020, armed criminal action (Count ID, a felony in violation of Section 571.015, and attempted robbery in the first degree (Count III), a class B felony in violation of Sections 569.020 and 564.011. The case proceeded to a jury trial.

During voir dire questioning of a venire-person who had served on a jury in a civil case, defense counsel stated:

[Traditionally, in a civil case, it’s the preponderance — preponderance of the evidence. And what that means is — I’m sorry. I’ll slow. What that means is— is that if it’s slightly more than not, okay. If there’s two sides and they’re battling back and forth and you’re not sure what happened but you’re kind of thinking I’ll lean this way just a little. If it’s fifty-one percent to forty-nine percent or — that person or that side or the Plaintiff or Defendant or whatever would have successfully convinced you by a preponderance of the evidence. One more check puts them ahead. You understand the burden of proof is proof — proof more higher in a case like that?

At which point, the prosecutor objected to defense counsel engaging in a “lecture” with the venire comparing burdens of proof. The prosecutor noted that the proper questions to be asked were whether or not the venire could follow the beyond a reasonable doubt burden of proof applicable to the case. The trial court sustained the State’s objection.

After the parties made their peremptory strikes, but before the venire was excused and the jury was sworn, both the State and Defendant raised Batson challenges. Defendant challenged the State’s peremptory strikes of black venirepersons Shirley Alexander (Alexander) and Amazie McCain (McCain). The State challenged Defendant’s peremptory strike of white venireperson Mary Visintainer (Visintainer).

The prosecutor provided the following explanation for striking Alexander:

Your Honor, I struck her because she to me acted completely bored by the entire proceedings. I noticed once or twice her yawning. I noticed at least once when we took a brief, might have been a bench conference type of break or something and come back, that she actually, she rolled her eyes and looked disgusted that — because we were continuing on voir dire yesterday. And the same thing today, she looked pretty bored. And I have nothing written down for her. I believe that she did not respond in terms of raising her hand to general questions but other than that did not participate in voir dire in any way.

In response to this explanation, defense counsel suggested that the description of being “bored” and “tired” and concerned that the process “was going on, on and on” applied to a lot of people. Defense counsel identified Visintainer as being similarly situated because he “addressed her or else she wouldn’t have spoken to any great degree.” The prosecutor disagreed that Visintainer was similarly situated because she responded to some questions that he had. Also, the trial court noted that Visin-tainer was in the court’s line of sight as the court looked at the jury box and Visin-tainer “always seemed to be very attentive through the proceedings.”

The prosecutor provided the following explanation for striking McCain:

Your Honor, I struck her for basically the same reason as I struck [Alexander], I — as I was speaking to everybody, I— I — frankly, I noticed the entire background there in the seats. None of them appeared to be really particularly paying much attention. The two ladies, you know, I noticed them sort of exchanging glances occasionally. Again, like they were bored. In terms of other people who were similarly situated, I would-note that there were two other people. At least one of which stated on the record that she was bored. But those two people were struck for cause. If they weren’t, I probably would have struck them peremptorily for the same reason. You know, if they couldn’t give us a couple of hours of their time, you know, I don’t think they would make very good jurors for either side.

In response to this explanation, defense counsel noted that another white venire-person, Janice Rozmirsky (Rozmirsky), did not speak during his questioning and maybe answered a few of the prosecutor’s questions, but she did not put forward “any great information.” Defense counsel also stated again that if someone was not involved and appeared to be tired, then that description applied to “every single person out there including the attorneys.”

The prosecutor replied to defense counsel’s response by indicating that he did not get the same feeling from Rozmirsky anytime that he looked back at her. She was sitting over his shoulder so he did not observe her as much- as the people in his line of sight. When he did turn around to look at the people behind him, Rozmirsky appeared to be alert, and he did not notice the same thing as in the others, “being bored.”

The trial court found the State’s reasons for using peremptory strikes against Alexander and McCain to be proper, well-founded, and based on reasons that had nothing to do with the race of the panel member. Therefore, the court denied Defendant’s challenges to those peremptory strikes.

Defense counsel provided the following explanation for striking Visintainer, a special education teacher:

Actually, I wanted to keep [Visintainer]. The Defendant felt as though that that would be a proper strike; I agree with him. I found it to be marginal except that my specific questioning as I re-looked at her, my specific questioning with regard to learning disabilities and someone’s — someone testifying. Although I think it was a point that could be made with everyone else, it could be a point that would actually offend her, that I’m addressing her students as being different or not being able to do certain things. It could also have created a reaction like well, by gosh my students would be able to come forward and testify if they were not guilty. So in retrospect, I agreed with my client.

In response to this explanation, the prosecutor stated that he did not “see any of that in terms of any responses that she had.”

Regarding defense counsel’s explanation for the peremptory strike of Visintainer, the trial court stated that the court’s notes did not support any of the things mentioned by defense counsel and that the explanation appeared to be “grounded on a level that’s just a bit more speculative” than is acceptable. Therefore, the court sustained the State’s challenge to that peremptory strike.

Subsequent to the trial court’s ruling on the State’s challenge, defense counsel provided the following clarification of his explanation for his peremptory strike of Vi-sintainer:

I had placed her on my good list and it was my client who said that he had a feeling about her. And then in retrospect when I looked at her, I thought, well, considering the questioning that I did to her about her profession, I didn’t see any problem. I didn’t see her react that way. It was just simply the — the well, you never know. The way I addressed her with regard to her students and all of that on a very critical issue of the right not to testify, it was more of a — a—of my opportunity to have everyone else focus on those types of changes differences or — or difficulties but not to challenge [Visintainer] and her students. So upon my client’s suggestion, I then thought well that might be a good choice. So just to make the record complete, I didn’t think there was anything that anyone would have seen and I didn’t either, that made her — that seemed like she was offended.

After a five-day trial, a jury found Defendant guilty as charged. Defendant made a motion for judgment of acquittal at the close of the State’s evidence and at the close of all the evidence and a motion for new trial. The trial court denied all three motions. The trial court entered a judgment in accordance with the jury verdict and sentenced Defendant to concurrent terms of life imprisonment without eligibility for probation or parole on Count I, twenty-five years’ imprisonment on Count II, and fifteen years’ imprisonment on Count III.

Discussion

Defendant raises three points on appeal. In his first point, Defendant argues that the trial court clearly erred in sustaining the State’s Batson challenge to Defendant’s peremptory strike of Visintainer.

We give the trial court’s determination on a Batson challenge great deference and will not set it aside unless it is clearly erroneous. State v. Costello, 101 S.W.3d 311, 312 (Mo.App. E.D.2003). A finding is clearly erroneous when, even if there is some evidence to support it, we are left with the definite and firm conviction from the evidence as a whole that a mistake has been made. Id. A party may not challenge an explanation on appeal that the party has not properly challenged in the trial court. Id.

The procedure for Batson challenges includes three stages. State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). First, the opponent must raise a Batson challenge with regard to one or more specific venirepersons struck and identify the cognizable racial group to which the venireperson or persons belong. Id. This challenge must be made before the venire is excused and the jury is sworn. Id.

Second, the proponent of the strike must provide a reasonably specific and clear race-neutral explanation for the strike. Id. The initial explanation is deemed race-neutral unless a discriminatory intent is inherent in the proponent’s explanation, even if that explanation has a disparate impact on minority venireper-sons. Id. Also, the explanation need not be persuasive. Id. at 469.

Third, if an acceptable explanation for the strike is articulated, the opponent must show that the proponent’s proffered explanation was merely pretextual and that the strike was racially motivated. Id. At this stage, the persuasiveness and the plausibility of the explanation become relevant. Id. While parties are free to use “horse sense” and “play hunches” in exercising peremptory strikes so long as the factors they rely on are race-neutral, objective explanations for exercising such strikes against minority venirepersons are the most persuasive. Id. at 470. Post-hoc explanations are irrelevant. Id. at 469. The opponent of the strike bears the burden of proving purposeful discrimination. Id.

In determining pretext, the trial court should consider the totality of the facts and circumstances surrounding the case; however, several factors should be considered. Id. at 470. The first factor is the existence of similarly situated jurors of another race who were not struck. Id. at 469. Although not dispositive, this factor is so relevant in determining pretext that it is crucial. Id. A second factor is the degree of logical relevance between the proffered explanation and the case to be tried. Id. A third factor is the attorney’s credibility, based on the attorney’s demeanor or statements during voir dire, and the trial court’s past experiences with the attorney. Id. A fourth factor is the demeanor of the venireperson who is the subject of the strike. Id. at 470!

The State satisfied the first stage of the Batson inquiry regarding the peremptory strike of Visintainer. The prosecutor noted that all of Defendant’s peremptory strikes were of white venirepersons. Defendant then satisfied the second stage. Defense counsel provided a race-neutral explanation for the strike by indicating his concern that he may have offended Visin-tainer by questioning her about the abilities of her students.

Next, we must determine whether or not defense counsel’s explanation was pretextual. During voir dire, the following exchange occurred between defense counsel and Visintainer:

[Counsel]: .... You said yesterday that you had dealt with individuals with learning disabilities?
[Visintainer]: Right.
[Counsel]: That is sometimes a — blanket description. That actually is probably overused in a blanket description because you probably deal with individuals that have a wide range of — of abilities?
[Visintainer]: Disability.
[Counsel]: Some — some, exceeding hours (sic) in some areas. But others, the reason that you’re dealing with them might not be — might have to be dealt with in a special way, right?
[Visintainer]: Right.
[Counsel]: Okay. And times obviously, that may be someone’s verbal skills, is that correct?
[Visintainer]: Correct.
[Counsel]: And their ability to articulate their point or not?
[Visintainer]: That’s right.
[Counsel]: And obviously, that’s one possibility of a reason that a person may choose not to testify is purely because of their ability to make their point?
[Visintainer]: Yes, it could be.
[Counsel]: Also, you have individuals that may, with regard to being cross-examined by somebody with as much experience as [the prosecutor]?
[Visintainer]: That could be.
[Counsel]: Factoring that in as I had said in the beginning is because they also had something to hide?
[Visintainer]: Could be.
[Counsel]: Whatever the factors that maybe that you think of or not think of and I think, everyone agrees with [another venireperson] that in the back of your mind you’re going to be quizzable about what’s going on. You’re quizzable as to why we’re standing — still standing up here talking to you at this late hour. But the bottom line is whether or not you believe the State is proven their case beyond a reasonable doubt and if they haven’t your verdict would be?
[Visintainer]: Not guilty.
[Counsel]: And any other factor that may. come in or not or whatever, you would be able to not hold that against [Defendant]?
[Visintainer]: Right.
[Counsel]: Okay. And whether — whatever my decision might be, you’re not going to hold that against [Defendant]?
[Visintainer]: Right.

First, we note that there were no similarly situated venirepersons. Regarding Visintainer’s demeanor, a review of the exchange between defense counsel and Vi-sintainer reveals no objective indication that Visintainer was offended by defense counsel’s questions. Rather, Visintainer’s responses indicate that she agreed with the premises of defense counsel’s questions. The prosecutor also stated that he did not observe anything that suggested Visintainer was offended by defense counsel’s questions. Further, in his clarification, defense counsel even stated that he did not see anything that appeared like Visintainer was offended.

Batson requires the trial judge to embrace a participatory role in voir dire, noting the subtle nuance of both verbal and nonverbal communication from each member of the venire and from the attorneys. State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987). As such, the trial court found defense counsel’s explanation to be unsupported by the court’s notes. The trial court also found the explanation to be speculative. We defer to the trial court’s findings as it is in the best position to evaluate the credibility of the witnesses. Id. at 66. Although Defendant argues that he used a “race-neutral hunch” in exercising the peremptory strike, the trial court obviously rejected his explanation and by implication was not persuaded by it. We defer to the trial court’s assessment of the legitimacy of the explanation.

We are not left with the definite and firm conviction from the evidence as a whole that a mistake has been made. Because of the great deference accorded trial courts in their determination of Batson challenges based on the totality of the facts and circumstances, we cannot conclude that the trial court clearly erred in sustaining the State’s Batson challenge to Defendant’s peremptory strike of Yisin-tainer. Accordingly, Defendant’s point one on appeal is denied.

In his second point on appeal, Defendant argues that the trial court clearly and plainly erred in overruling Defendant’s Batson challenge to the State’s peremptory strikes of Alexander and McCain.

Defendant did not raise this issue in his motion for new trial. Therefore, his claim is not preserved for appellate review. See Rule 29.11(d).' A claim not properly preserved for appellate review may be considered for plain error at our discretion. Rule 30.20. Under this standard, reversal requires a plain error affecting a substantial right that results in manifest injustice or miscarriage of justice. Id. Plain error review is to be used sparingly. State v. Knese, 985 S.W.2d 759, 770 (Mo. banc 1999). A defendant bears the burden of demonstrating manifest injustice or miscarriage of justice. State v. Tokar, 918 S.W.2d 753, 770 (Mo. banc 1996).

We conclude that Defendant has not met his burden of demonstrating manifest injustice or miscarriage of justice. Even if Defendant had preserved his claim for review, we conclude that the trial court did not clearly err in overruling Defendant’s Batson challenge to the State’s peremptory strike of Alexander and McCain.

Again, the issue on appeal concerns the third stage of a Batson challenge. Defendant argues that Rozmirsky was a similarly situated white venireperson not struck by the State. Defendant characterizes Rozmirsky as being similarly situated because she did not actively volunteer information during the voir dire process. However, this reason was not the only explanation given by the prosecutor for striking Alexander and McCain, and therefore Rozmirsky was not similarly situated.

Regarding Alexander, the prosecutor explained that she “acted completely bored” by the entire proceedings, that he noticed once or twice her yawning and that she rolled her eyes and looked disgusted after a break because they were continuing on with voir dire. Regarding McCain, the prosecutor explained that he struck her for basically the same reasons as he struck Alexander, including not paying much attention. The prosecutor also noticed McCain exchanging glances occasionally with Alexander as if they were bored. Inattentiveness, demeanor and attitude are proper explanations for exercising a peremptory challenge. State v. Brown, 998 S.W.2d 531, 546 (Mo. banc 1999). The prosecutor also indicated that when he looked at Rozmirsky, she appeared to be alert, and he did not notice her “being bored,” as he noticed with Alexander and McCain.

Further, the prosecutor stated that in terms of other people who were similarly situated, he noted two other people, at least one of whom stated on the record that she was bored, but those two people were struck for cause. If they were not, the prosecutor “probably would have struck them peremptorily for the same reason.”

Defendant argues that the prosecutor was required to bring Alexander and McCain’s demeanor to the trial court’s attention prior to the peremptory strikes, citing State v. Metts, 829 S.W.2d 585, 588 (Mo.App. E.D.1992). Defendant’s argument is misplaced. In Metts, we stated that the State should inform the court of any perceived inattentiveness on the part of a venireperson so that a more complete record could be presented to the reviewing court. Id. However, failure to follow this suggestion does not constitute reversible error; rather, it merely complicates a fact decision that the trial court must decide. State v. White, 918 S.W.2d 435, 437 (Mo.App. E.D.1996). Nevertheless, because determining who is and is not attentive requires subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson, we strongly recommend counsel to bring concerns of inattentiveness on the part of a venireper-son to the court’s attention at the earliest opportunity to make a more complete written record. See Metts, 829 S.W.2d at 587 (quoting U.S. v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991)).

The trial court found the prosecutor’s explanations regarding Alexander and McCain to be proper, well-founded, and based on reasons that have nothing to do with the race of the panel member. The trial court had the opportunity to assess the prosecutor’s credibility, based on his demeanor and statements during voir dire, and the record does not indicate that the trial court clearly erred in its assessment.

Considering the totality of the facts and circumstances surrounding the case, we conclude that the trial court did not plainly or clearly err in overruling Defendant’s Batson challenge to the State’s peremptory strikes of Alexander and McCain. Accordingly, Defendant’s point two on appeal is denied.

In his third point on appeal, Defendant argues that the trial court abused its discretion in sustaining the State’s objection to defense counsel’s attempt to compare for the venire the difference between the civil and criminal burdens of proof.

The trial court is vested with wide discretion in the conduct of voir dire. State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000). We review rulings by the trial court with regard to the conduct of voir due for an abuse of discretion. Id. at 311. Where a party claims that the trial court abused its discretion in conducting voir dire, the party has the burden of showing a “real probability” that he was prejudiced by the abuse. Id.

Defendant has not shown a real probability that he was prejudiced by the trial court’s sustaining the State’s objection to defense counsel’s attempt to compare for the venire the difference between the civil and criminal burdens of proof. Defendant argues that he needed to do so because several venirepersons had previously served on juries in civil cases and he needed to ensure that they understood the burden of proof beyond a reasonable doubt is higher than the burden of proof by a preponderance of the evidence. However, prior to defense counsel’s attempt at comparison, the venireperson being questioned indicated that she did not remember the term “preponderance” from her experience serving on the jury in a civil case. Thus, the comparison may have resulted in confusing the venire by distracting them from the applicable burden of proof in the criminal case.

Further, at the beginning of voir dire, the trial court asked the venire if there were any members who would not be willing to follow all of the instructions that the court would give to the jury. No venire-members raised their hands indicating that they would not be willing to follow the instructions. The court later instructed the jury on burden of proof by giving Instruction No. 4, based on MAI-CR 3d 302.04. Also, during voir dire, defense counsel had ample opportunity to discuss the burden of proof beyond a reasonable doubt with the venire panel, and he referred to the court’s instruction in doing so.

Accordingly, the trial court did not abuse its discretion in sustaining the State’s objection to defense counsel’s attempt to compare for the venire the difference between the civil and criminal burdens of proof. Defendant’s point three on appeal is denied.

Conclusion

The judgment of conviction and sentence of the trial court is affirmed.

GARY M. GAERTNER, P. J., and BOOKER T. SHAW, J., concur.

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

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that under the Equal Protection Clause, a prosecutor may not challenge a potential juror solely on the basis of the potential juror’s race); see also Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (holding that under the Equal Protection Clause and Batson, a criminal defendant may not challenge a potential juror solely on the basis of the potential’s juror’s race).

      . All rale references are to Mo. R.Crim. P. 2004, unless otherwise indicated.