text:
    STATE of Missouri, Plaintiff-Respondent, v. Paul W. MONROE, Defendant-Appellant.
    No. 23133.
    Missouri Court of Appeals, Southern District, Division One.
    March 31, 2000.

      Craig A. Johnston, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Catherine Chatman, Asst. Atty. Gen., Jefferson City, for Respondent
   KENNETH W. SHRUM, Judge.

A jury found Defendant guilty of the class D felony of driving while intoxicated (DWI), § 577.010. The trial court found Defendant was a persistent DWI offender, § 577.023. Defendant contends on appeal that the trial court erred when it allowed the State to introduce and use his Arkansas DWI convictions as proof that he was a persistent DWI offender. We affirm Defendant’s DWI conviction. We reverse Defendant’s sentence as a persistent DWI offender and remand for resentencing.

FACTS

After he was stopped by a sheriffs deputy, Defendant failed field sobriety tests and was noted to have red and watery eyes and slurred speech. The deputy arrested Defendant and took him to the Jasper County jail. After arriving, the deputy read Defendant his Miranda rights and interviewed him. In the interview, Defendant admitted driving, drinking alcohol, and that he was “under the influence of an alcoholic beverage.” Defendant refused to take a breathalyzer test.

The State charged Defendant as a persistent DWI offender, alleging he had two municipal convictions for DWI, both in the city of Van Burén, Arkansas. In a pretrial hearing, the prosecutor first offered Exhibit 2, a document entitled “Transcript of Judgment” from the Van Burén, Arkansas, municipal court. This exhibit recited, inter alia, that Defendant was charged with DWI on July 12, 1998, and pleaded guilty thereto on September 16,1998. The exhibit also contained the pre-printed word “ATTORNEY” and beside that word was written “Waiver.” A pre-printed form entitled “Plea Statement and Waiver of Counsel” was attached to Exhibit 2. This form was filled out and contained what purported to be Defendant’s signature and initials. The singular “authentication” of Exhibit 2 was by Donna Parrish, court clerk.

Defense counsel objected to the admission of Exhibit 2, saying it was not “double certified, it’s an out-of-state judgment.” Thereon, the State proffered Exhibit 1, a document entitled “Certificate of Authentication.” This document contained a clerk’s “authentication” (signed by Donna Parrish) which recited, among other things, that “the writings annexed ... are true copies of originals on file and of record in said office.” Beneath the clerk’s authentication, the municipal judge signed to “certify the foregoing authentication by Donna Parrish, Clerk of said Court, to be in due form.” In opposing the use of Exhibit 1 as a curative document, defense counsel pointed out that Exhibit 1 did not have “writings annexed” as recited and that the “double certification” document (Exhibit 1) “was obviously sent at a later date than the initial documents.” Based on the prosecutor’s representation that the phrase “writings annexed” in Exhibit 1 was a reference to Exhibits 2 and 3, the court admitted all three exhibits.

The additional documentary evidence received on the issue of Defendant’s prior convictions was Exhibit 3. This exhibit, which bore the heading “Transcript of Judgment,” pertained to a charge of DWI lodged against Defendant on July 9, 1994, to which he pleaded guilty on July 25, 1994. On this exhibit was the pre-printed word “ATTORNEY” and beside it was written, “Waiver.” Attached to Exhibit 3 was a pre-printed “WAIVER” form. It had what purported to be Defendant’s signature. The municipal clerk’s “authentication” of Exhibit 3 was identical to that on Exhibit 2. See note 3.

Following Defendant’s conviction and resultant judgment, he appealed to this court.

APPLICABLE LAW REGARDING “DWI” ENHANCEMENT

Section 577.023 provides for enhanced penalties where an accused has prior convictions for “intoxication related traffic” offenses. The statutory definition of an “intoxication related traffic” offense includes “driving under the influence of alcohol ... in violation of ... municipal ordinance, where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney in writing.” § 577.023.1(1). A “persistent offender” under this statute is one who has, inter alia, “pleaded guilty to ... two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged.” § 577.023.1(2)(a). A person found guilty of DWI pursuant to § 577.010 who also is “alleged and proved to be a persistent offender shall be guilty of a class D felony.” § 577.023.3.

DISCUSSION AND DECISION

Defendant’s single point relied on has two parts. In each part, Defendant challenges the sufficiency of the evidence to support the trial court’s finding that he was a prior and persistent DWI offender under § 577.023. Defendant says the trial court erred in two respects when it admitted the exhibits offered by the State to prove his status as a persistent DWI offender. We address these claims of trial court error separately.

Point 1(a): Lack of Compliance With § m.180

Defendant initially complains that Exhibits 2 and 3 were inadmissible and not entitled to faith and credit because they did not comply with the requirements of § 490.130, a statute that governs the admissibility of out-of-state court records. In pertinent part, § 490.130 provides:

“The records and judicial proceedings of any court ... of any state, attested by the clerk thereof, with the seal of the court annexed, if there be a seal, and certified by the judge ... to be attested in due form, shall have such faith and credit given to them in this state as they would have at the place whence the said records come.” (Emphasis Supplied.)

Consequently, to be given faith and credit in Missouri courts, foreign judgments must be authenticated; they must bear the attestation and seal of the clerk of the court and the certification of a judge. See State v. Mashek, 882 S.W.2d 777, 781 (Mo.App.1994).

When prior convictions are the basis for enhanced punishment or procedural differences, the state must prove the fact of prior convictions and do so in conformity with applicable statutory requirements for such proof. § 577.023. See State v. Young, 366 S.W.2d 386, 388 (Mo.1963). Purported transcripts of foreign judgments are not admissible over objection unless they are authenticated as required by applicable statutes. State v. Dipley, 242 Mo. 461, 147 S.W. 111, 116[13] (1912). A court commits reversible error if, despite timely objection, it admits documentary evidence of an accused’s convictions that does not meet the minimum requirements of § 490.130. Young, 366 S.W.2d at 388.

Here, Defendant points out that a “single attestation and certification” document is not part of Exhibits 2 and 3, that is, the exhibits are “authenticated” by the clerk but lack a “certification” by the judge that the clerk’s “attestation” is in “due form.” Consequently, Defendant contends that Exhibits 2 and 3 did not meet the minimum requirements of § 490.130 to be admissible into evidence. He argues that even if Exhibit 1 may have met the criteria of § 490.130, it did not cure the deficiencies in Exhibits 2 and 3 nor render them admissible as Exhibit 1 had no attachments. Consequently, he insists the State failed to carry its burden of proving him a persistent DWI offender.

The State concedes that Exhibits 2 and 3 do not have the municipal judge’s certification as required by § 490.130. Even so, the State argues that when the exhibits are viewed in their entirety and proper consideration is given to the purpose of the judge’s attestation, “it is plain the Arkansas court records are entitled to full faith and credit.” To support its position, the State argues:

“It is the clerk of the court who is the legal custodian of records and has the ability and power to certify the correctness of transcripts or copies of court records. Maroon v. Immigration & Naturalization Serv., 364 F.2d 982, 984 (8th Cir.1966). There can be no question that this much was done in this case....
“The purpose of the judge’s certification, on the other hand, is to assure officials of a sister state that the clerk’s attestation is in ‘due form,’ § 490.130; that is, that the clerk’s certification was proper under the laws of the sending state. See State v. Wolfskill, 421 S.W.2d 193,196 (Mo.1967)....
“The separate certificate of authentication achieves this purpose.”

We agree with the State’s analysis of the purpose for the foreign judge’s certification requirement i.e., to assure the receiving state that the foreign clerk’s attestation was in “due form” under the laws of the sending state. We do not agree that the separate certification via Exhibit 1 serves that purpose.

As prepared, Exhibit 1 is merely a “generic” certification that the clerk’s attestation shown on Exhibit 1 is in “due form.” Standing alone, it sheds no light on whether the clerk’s attestations on Exhibits 2 and 3 were in “due form.” Nor does reading the three exhibits together, as the State urges, solve the problem. This follows because the clerk’s attestation on Exhibit 1 is not identical to her attestations on Exhibits 2 and 3. Although the differences do not appear substantive, it cannot be determined, even by looking at all three exhibits, that the attestation forms on Exhibits 2 and 3 are in “due form” under Arkansas law. Under the circumstances, the trial court erred in admitting Exhibits 2 and 3 and relying on them as competent evidence of Defendant’s status as a persistent offender. Because the record contains no other evidence of Defendant’s pri- or DWI convictions, the adjudication that Defendant was a persistent DWI offender was erroneous.

There remains a question of what direction this court should give the trial court upon remand. Defendant urges this court to grant him a new trial on all issues. Simultaneously, he concedes the existence of case law that runs counter to his request. For example, State v. Cobb, 875 S.W.2d 533 (Mo.banc 1994) instructs that when a defendant is improperly sentenced as a persistent offender, an appellate court should reverse the sentence and remand with instructions to allow the state to present whatever evidence it has to prove the defendant’s status as a persistent DWI offender. Id. at 537. Apparently, Defendant would have this court ignore our constitutionally imposed obligation to follow controlling decisions of the Missouri Supreme Court. Mo. Const, art. 5, § 2 (1945). This we cannot and will not do. See State v. Tuter, 920 S.W.2d 111, 112[1] (Mo.App.1996). We reject Defendant’s requests to order a new trial on all issues. Point 1(b): Failure to Prove Waiver of Counsel in Municipal Cases

In this part of his argument, Defendant relies on the fact that before a prior municipal DWI conviction can be used for enhancement, it must have occurred in a case where the accused was “represented by or waived the right to an attorney in writing.” § 577.023.1; State v. Girdley, 957 S.W.2d 520, 524[9] (Mo.App.1997). With that as his premise, Defendant asserts that the copies of the municipal court judgments from Arkansas were not admissible because the State failed to show beyond a reasonable doubt that he had “validly” waived his right to counsel in those cases; consequently, he says the trial court erred when it used his Arkansas convictions to enhance his punishment.

• Despite his position on this point, Defendant concedes that the records from Arkansas of Defendant’s DWI convictions contain written waiver of counsel forms signed by Defendant. He also concedes that the transcripts of the judgments recite that Defendant waived counsel. Defendant argues, however, that this is not enough. Defendant’s theory is that before the records of his Arkansas convictions could be used to enhance his punishment, the State had to prove he had signed waiver of counsel forms in his Arkansas DWI cases that complied with § 600.051.

Defendant cites no Missouri case, and our independent research finds none, imposing that requirement on the use of a plea of guilty to an intoxication-related traffic offense to establish that a defendant is a persistent intoxication-related traffic offender. To the contrary, this court has implicitly held otherwise in analogous cases.

For instance, in Wilson we concluded that

“[sjection 600.051.1 requires a written waiver of counsel to be filed in any criminal case in which a defendant may receive a jail sentence or confinement. However, no statute or rule provides that a record of a judgment of conviction is void on its face if it does not recite a written waiver or an express wavier. Neither Baldasar nor Burgett declares that proof of a conviction that does not contain such a recital is either inadmissible or insufficient. The records in question are not silent on the subject of counsel. They should be construed with consideration given to the nature of the criminal action. Reasonably construed, the records show the defendant was advised of his right to counsel and waived that right and entered a plea of guilty.”

684 S.W.2d at 547[5].. (emphasis added).

•In State v. McElroy, 894 S.W.2d 180 (Mo.App.1995), we held that

“[wjhere certified copies of the records concerning prior convictions, when reasonably construed, show that a defendant was advised of his right to counsel and waived that right, then the record offered is both admissible and sufficient to invoke the application of the prior offender status. The failure of such a record to recite that the accused voluntarily waived counsel, either expressly or in writing, does not render such record void or insufficient for enhancement purposes.”

Id. at 187[17]. (citations omitted). See also State v. Welty, 729 S.W.2d 594, 602 (Mo.App.1987); Dover v. State, 725 S.W.2d 915, 919 (Mo.App.1987).

These cases are authority for our holding that compliance with § 600.051 in the Arkansas cases was not a predicate for using the Arkansas convictions to enhance Defendant’s punishment. As in Wilson, Welty, and McElroy, the present record is not silent on the subject of Defendant’s waiver of counsel and it reasonably demonstrates waiver. We reject Defendant’s arguments to the contrary.

CONCLUSION

The sentence of Defendant as a persistent DWI offender is reversed. This case is remanded for resentencing with instructions to allow the State to present whatever evidence it has to establish Defendant’s status as a persistent offender. If the State on remand proves Defendant is a persistent offender or prior offender, the verdict of guilty of DWI shall remain intact and the trial court shall resentence Defendant. However, if upon remand the State fails to prove Defendant is a persistent offender or prior offender, the trial court is instructed to set aside the verdict and order a retrial.

CROW, P.J., CONCURS.

PARRISH, J., CONCURS.

      . With one exception, all statutory references are to RSMo 1994. All references to § 577.023 are to RSMo Cum.Supp.1998.

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

      . State’s Exhibit 2 was certified thusly:
      "I, Donna Parrish, clerk of the Van Burén Municipal Court, Van Burén, Arkansas do certify that the above and foregoing is a true and correct transcript of the proceedings, orders and judgment of the above entitled cause as shown by the docket of said court.
      "Witness my hand and seal of said Court this 6th day oí January, 1999.
      :⅛⅞ Donna Parrish CR
      Municipal Court Clerk”

      . Section 600.051.1 requires a written waiver of counsel in any criminal case in which an accused may receive a jail sentence or confinement. State v. Wilson, 684 S.W.2d 544, 547 (Mo.App.1984). Other parts of § 600.051 describe what the waiver must contain.

      . The Baldasar and Burgett cases referenced in Wilson are Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lewis WILLIAMS, Appellant.
    No. ED 76204.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 4, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Application for Transfer Denied June 27, 2000.

      Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Attys. Gen., Jefferson City, for respondent.
   ROBERT G. DOWD, Jr., Judge.

Lewis Williams (Williams) appeals from the judgment upon his conviction by a jury of one count of murder in the first degree, Section 565.020, RSMo 1994 ; two counts of assault in the first degree, Section 565.050; and three counts of armed criminal action, Section 571.015, for which Williams was sentenced to life imprisonment without the possibility of parole for murder, life imprisonment for the corresponding armed criminal action count, and fifteen years’ imprisonment for each of the remaining counts, all sentences to be served concurrently. Williams claims the trial court (1) plainly erred in repeatedly asking Williams in the presence of the jury if he wanted to testify because this questioning resulted in manifest injustice, (2) plainly erred in overruling an objection and permitting the prosecutor to cross-examine Williams about his involvement in an unrelated shooting because this questioning resulted in manifest injustice, and (8) erred in denying Williams’ motion for judgment of acquittal at the close of the entire case. We affirm in part and remand in part with directions.

We view the facts in the light most favorable to the jury verdict. On March 28, 1993, five shots were fired into the home of Lucille Johnson, Williams’ mother, which was located in the Bluemeyer Housing Project. Williams was not home when this happened. He learned of the shooting when he returned home later that day. Shortly after the shooting, several people were playing basketball in the parking lot of the Bluemeyer Housing Project. A van pulled up to the lot and Williams and Earnest Black began firing shots at the people playing basketball. One shot hit and killed John Brown and another hit Walter Russell, an eleven-year-old boy, in the leg. The van then drove away from the scene.

Three St. Louis Housing Authority officers, Darryl Ewing, Gregory Taylor, and Joseph Simmons, pursued the van. The van stopped and three men, including Williams and Black, exited the van and started shooting at the officers.

Williams was later arrested and brought to the police station to participate in a lineup. Wdiile preparing for the lineup, Carl Hoyt, a civilian employee of the prisoner processing division, heard Williams tell three men that he had been involved in a driveby shooting in which an eleven-year-old boy had been shot.

At trial, Williams initially declined to testify in his own behalf. He did present the testimony of three witnesses. The State presented three rebuttal witnesses, one of whom, Patrick Brown, testified that he saw Williams and Black firing shots from the van. Williams then took the stand and testified in his own behalf. He denied having any involvement in the shooting. The jury found Williams guilty as charged.

In his first point, Williams claims the trial court plainly erred in repeatedly asking him in the presence of the jury if he wanted to testify because this questioning resulted in manifest injustice. Williams argues the questioning encouraged the jury to draw an adverse inference from his initial refusal to testify in his own defense and constituted a challenge to Williams to testify. Specifically, he complains of the following exchange:

WILLIAMS: I need to address the Court.
COURT: Just a minute, Mr. Williams.
Do you care to testify at this time?
WILLIAMS: Yes, I would.
COURT: Would you please take the witness stand, please?
WILLIAMS: I would leave the room in your contempt. I wish to — I would leave the room.
COURT: Take her out. Take her out. Take her out. All folks please leave. Do you wish to testify?
WILLIAMS: I’m not asking to testify. I don’t mind but I do not have a lawyer.
COURT: If you want to testify, come up and testify. If you wish to testify, come up and testify. Let the record show that the witness has remained silent and does not wish to testify and we’ll proceed. Ms. Johnson, call the next witness.
MS. JOHNSON [defense counsel]: At this time, the defense rests.
COURT: If you have another witness you want to call besides—
WILLIAMS: Patrick Brown.
COURT: If you wish to testify, you may get up and testify.
WILLIAMS: Where’s the witness, Patrick Brown?
COURT: This is your opportunity to testify, if you wish to testify.
WILLIAMS: Yes, I do want Patrick Brown.
COURT: All right. Get up here and testify if you want to testify now.
WILLIAMS: I want the question answered.
COURT: If you want to testify, come up and testify right now.
WILLIAMS: Would Patrick Brown—
COURT: Excuse me. If you wish to testify, step forward and testify now, Mr. Williams.
WILLIAMS: I don’t have a lawyer.
COURT: All right. Then the defense rests. You may approach the bench.

Williams concedes that he did not object to this exchange at trial. As such, this claim is not properly preserved for appeal, and the only review here can be for plain error. Plain error review, however, should be used sparingly and should not be used to justify the review of every point that has not properly been preserved. State v. Fairow, 991 S.W.2d 712, 715 (Mo.App. E.D.1999). A claim should be reviewed for plain error only where it facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. Id. If the court exercises its discretion and reviews for plain error, the appellant bears the burden of demonstrating not only that the trial court erred but that the error so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989). “Relief under plain error, therefore, requires that appellant go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights.” Id.

Williams correctly notes that direct references to a defendant’s right to testify or failure to do so by a prosecutor or trial court are generally prohibited. State v. Futo, 990 S.W.2d 7, 14 (Mo.App. E.D.1999). This is because a criminal defendant has the right not to testify. Id.

Williams contends the trial court’s questioning constituted an attempt to bring his reluctance to testify before the jury and thus caused the jury to draw an adverse inference therefrom. Williams specifically argues the following exchange, which occurred outside of the hearing of the jury, rendered the trial court aware of his reluctance to testify:

JOHNSON [defense counsel]: At this time, I don’t know what to do. He is not taking the stand, but we want to bring in Patrick Brown.
COURT: Where is he?
JOHNSON: I have no idea. He was a state’s witness.
WARREN [the prosecutor]: We gave the only phone number we had to Ms. Johnson last night and we advised her of the same number and that’s the only number they have.
JOHNSON: They advised me Pat Brown does not stay out there and I do not think my investigator would be safe going out to try and find the guy because it’s a family member of the deceased.
WARREN: There’s no reason to suspect the family would do anything.
COURT: We can call a recess and have your investigator see if he can find him.
JOHNSON: It’s my understanding even Mr. Warren had trouble with this guy-
WARREN: We had to leave a number of phone calls, but put the defendant on now. There’s no reason—
COURT: He does not want to testify.
JOHNSON: Not until this guy does.

There is no merit to this claim. Although this exchange may have made the trial court aware that Williams would not be testifying until after Patrick Brown did so, there is no evidence that such knowledge rendered the trial court’s later questioning of Williams a deliberate attempt to bring his reluctance to testify before the jury. The trial court simply asked Williams if he wished to testify only in response to his outburst. Williams has therefore failed to point to anything in the record which establishes that he was prejudiced by the trial court’s comments.

Moreover, this court has recently held that prejudice and reversible error cannot automatically be presumed whenever a reference to a defendant’s right to testify or failure to do so is made. Futo, 990 S.W.2d at 16. This is because the “record may present a state of facts and circumstances permitting the court to say that an allusion to the failure of defendant... to testify was not prejudicial error.” Id. (quoting State v. Watson, 1 S.W.2d 837, 840-41 (Mo.1927)). Such a state of facts and circumstances exist where the evidence of guilt is so strong it demonstrates beyond a reasonable doubt that the reference to the defendant’s right to testify did not contribute to the defendant’s conviction. Id.

Here, the State presented the testimony of three eyewitnesses to the shooting. Each of these witnesses identified Williams as one of the people who participated in the driveby shooting. The State presented the testimony of two Housing Authority officers who pursued the van immediately after the shooting and identified Williams as one of the men who jumped out of the van, fired shots in their direction, and fled the scene. The State further presented the testimony of a witness who overheard Williams admit to committing a driveby shooting at Bluemeyer Housing Project in which an eleven-year-old boy was shot. This evidence demonstrated that Williams was guilty of the crimes for which he was charged.

Williams further contends the trial court’s comments had the effect of coercing him to testify. Williams cites in support State v. Croka, 646 S.W.2d 389 (Mo.App. W.D.1983). In Croka, the court held that the prosecuting attorney’s comment during voir dire that he anticipated that the defendant would testify coerced the defendant into testifying because it challenged the jury to observe whether the defendant took the stand. Id. at 390.

Croka has no bearing on the instant case. In Croka, the prosecuting attorney gratuitously mentioned the defendant’s, right to testify. Here, the trial court’s remarks were in direct response to Williams’ outburst. Although the aforementioned conversation between Williams and the trial court took place in front of the jury, it immediately followed a conversation among the attorneys, the trial court, and Williams which occurred outside of the jury’s hearing. This conversation featured an acrimonious exchange between the trial court and Williams wherein Williams claimed he did not have an attorney and the trial court admonished him both to follow his attorney’s advice and to be seated. The dialogue of which Williams complains was therefore an extension of a conversation which occurred outside of the jury’s presence. Thus the trial court’s comments are distinguishable from the comments which necessitated a reversal in Croka in the sense that they were provoked.

Furthermore, the latter conversation cited above demonstrates that Williams wanted to testify, but not until after Patrick Brown had done so. This is indicated by his affirmative response the first time the trial court asked him if he wanted to testify. Rather than demonstrating that he was forced to testify against his wishes, the record reveals that Williams got what he wanted — the opportunity to testify after Patrick Brown had been called.

The court addressed an analogous situation in State v. Spidle, 967 S.W.2d 289 (Mo.App. W.D.1998). The prosecutor in Spidle stated during voir dire that the state could not call the defendant as a witness. Id. at 292. The court held that although this statement constituted plain error, plain error does not require reversal of a conviction in all circumstances. Id. Considering whether the prosecutor’s comments had the effect of compelling the defendant to testify, the court noted that manifest injustice did not occur because the defendant stated that he did want to testify and because the defendant at no time indicated that he felt compelled to testify as a result of the prosecutor’s comments. Id.

As in Spidle, Williams was asked whether he wanted to testify and at no time suggested that he felt compelled to testify as a result of the trial court’s comments. Moreover, the trial court made this inquiry only after Williams asked to address the court in the jury’s presence. As Williams has failed to adduce any evidence in support of his contention, he has failed to demonstrate that manifest injustice has occurred.

Williams contends State v. Howard, 540 S.W.2d 86 (Mo. banc 1976) is instructive on this issue. In that case the defendant spoke out during the trial court’s reading of jury instructions, and the trial court responded with a comment on the defendant’s right to testify. Id. at 87. The Supreme Court held the trial court’s response, “Now you were given the opportunity to take the stand,” resulted in manifest injustice. Id. at 88. The court reasoned that this statement could have violated the defendant’s presumption of innocence and suggested to the jury that the burden of proving his innocence was on the defendant. Id.

Howard, however, is distinguishable from the instant case. Unlike the defendant in Howard, Williams did take the stand and testify. Thus, the jury could not have inferred that Williams was guilty because he did not testify. Moreover, since Williams testified, there is no reason to think that his presumption of innocence has been violated or that the jury understood that Williams had the burden of proving his innocence.

Because Williams has failed to demonstrate that the trial court’s comments contributed to his convictions, he has failed to demonstrate that he suffered manifest prejudice as a result of these comments. Point denied.

In his second point, Williams contends the trial court plainly erred in overruling an objection and permitting the prosecutor to cross-examine him about his involvement in an unrelated shooting. Williams concedes that he did not preserve this issue for appeal in his motion for a new trial. As such, this claim is not properly preserved for appeal, and the only review here can be for plain error.

Williams argues this questioning resulted in manifest injustice in that it allowed the prosecutor to bring before the jury irrelevant other crimes and led the jury to believe that Williams had a propensity for violence. We disagree.

Williams specifically complains of the following exchange:

WARREN [the prosecutor]: Now, early in the day — do you remember someone Damon Johnson?
WILLIAMS: No.
WARREN: Just prior to your house being shot up, were you involved in another shooting in the neighborhood?
JOHNSON [defense counsel]: I object. It’s irrelevant.
COURT: Sustained.
WARREN: It goes to motive.
COURT: Come to the bench.
(Out of the hearing of the jury, at the bench, the following takes place:)
JOHNSON: I object and move for a mistrial. Mr. Warren just introduced evidence of other crimes.
WARREN: It’s acceptable when it goes to show the motive this [sic] is an ongoing battle between him and another gang and this is motive for this shooting.
COURT: You can ask him about another shooting as long as he is not the shooter. Okay? I don’t care. It’s evidence of other crimes. I’m not letting it come in.
WARREN: So I understand the Court’s ruling, I’m not sure where I can or cannot go.
COURT: You can ask leading questions, but not ask him if he was a shooter. Your motion is overruled.
(End of bench conference. Back within the hearing of the jury, the following takes place:)
COURT: Ladies and gentlemen, you may disregard the last question.
WARREN: You are aware you were identified as being involved in the incident earlier, before your mother’s house got shot up, in which somebody was shooting guns?
WILLIAMS: That’s what it says in the police report.
WARREN: Are you aware you were identified as one of those parties?
JOHNSON: May I have an objection that is continuing throughout the entire line?
COURT: Come to the bench again.
(Out of the hearing of the jury, at the bench, the following takes place:)
COURT: I don’t mind you saying was he involved, but was he involved in the shooting with other people, where he is somehow implicated as being the shooter with the people shooting, I think it’s evidence of other crimes. My ruling was specifically that you have to reword your question.
WARREN: I am afraid I asked if he was involved.
COURT: But you asked was he involved in a shooting. But what you have to do is word it so was he involved in a fracas with other people.
WARREN: I’ll leave it alone because I’m not sure of the ruling.

Williams argues this was evidence of other crimes that was not logically or legally relevant to demonstrate his guilt of the crimes with which he was charged. Williams further argues this evidence was introduced solely to show that he had a violent disposition and a propensity to commit such crimes.

Evidence of uncharged crimes, wrongs or acts committed by the accused is generally inadmissible. State v. Bernard, 849 S.W.2d 10, 18 (Mo. banc 1993). If evidence is logically relevant to a fact in issue, however, it may be admissible if its probative value outweighs any prejudice. State v. Gray, 887 S.W.2d 369, 386 (Mo. banc 1994). Evidence which tends to establish motive, intent, absence of mistake or accident, common scheme or plan, or identity has been held to be categorically admissible. State v. Henderson, 826 S.W.2d 371, 374 (Mo.App. E.D.1992). The state is generally given wide latitude in the development of evidence of motive. State v. Blackman, 875 S.W.2d 122, 139 (Mo.App. E.D.1994). If evidence of uncharged crimes is relevant for some purpose, the evidence should not be rejected “merely because it incidentally shows the accused to be guilty of another crime.” State v. Tomlin, 830 S.W.2d 31, 34 (Mo.App. W.D. 1992).

Here, the State questioned Williams about his involvement in a prior shooting in order to show his motive for committing the shooting at Bluemeyer Housing Project. The evidence presented at trial indicated that there had been several shootings in the neighborhood of the housing project on March 28, 1993. The evidence also indicated these shootings were gang-related and that Williams was involved in some of them. This evidence was relevant to show that Williams’ mother’s house was shot up in retaliation for an earlier shooting. Although the evidence at trial did not establish that anyone involved in the prior shootings had been a target in the shooting for which Williams is charged here, it is reasonable to infer that Williams committed the driveby shooting to retaliate for the shooting at his mother’s house. Thus the evidence was relevant to show Williams’ motive for committing the shooting.

Moreover, Williams has failed to demonstrate that the prejudicial effect of this evidence outweighed its probative value. As discussed in point one, the evidence of guilt here was overwhelming. Given all of this evidence, it is unlikely that the jury was persuaded to convict Williams based on the references made to some other shooting in Williams’ cross-examination. Point denied.

In his third point, Williams argues the trial court erred in denying his motion for judgment of acquittal at the close of the entire case because there was legally insufficient evidence to support a finding of guilt. In making this claim, Williams argues the evidence was insufficient to support a conviction for the class A felony of assault in the first degree because there was no evidence that he caused serious physical injury to Walter Russell.

In reviewing Williams’ claim that there was insufficient evidence to convict him of assault in the first degree, this court should accept as true all of the evidence favorable to the State, including all favorable inferences to be drawn therefrom, and disregard all contrary evidence and inferences. State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998). Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror could have found the appellant guilty of the crime charged beyond a reasonable doubt. Id. In considering whether the evidence is sufficient to support the guilty verdict, the court should consider whether a reasonable juror could find each element of the crime charged beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993).

To sustain a conviction for assault in the first degree, the state is required to show that a defendant attempted to kill or knowingly caused or attempted to cause serious physical injury to another person. Section 565.050.1. If the victim actually sustains a serious physical injury, assault in the first degree is a class A felony. Section 565.050.2. If the victim does not sustain a serious physical injury, assault in the first degree is a class B felony. Id. Williams was charged with the assault in the first degree of Russell as a class A felony.

Williams correctly notes that under the class A charge the State was required to prove that he actually caused serious physical injury to Russell. Williams also correctly notes that the evidence here was insufficient to sustain a conviction based on the class A charge. However, that does not end the discussion.

The jury instruction as to the assault in the first degree charge pertaining to Walter Russell provided, in pertinent part, as follows:

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about March 28, 1993, in the City of St. Louis, State of Missouri, the defendant or another person attempted to kill or cause serious physical injury to Walter Russell by shooting him, then you are instructed that the offense of assault in the first degree has occurred.

Although the information charged Williams with the class A felony of assault in the first degree, the instruction clearly submitted this charge as a class B felony. As such, there was a variance between the information and the instruction. Thus, the issue for this court is whether this variance is fatal.

A variance between the information and the jury instruction does not automatically result in reversible error. State v. Lee, 841 S.W.2d 648, 651 (Mo. banc 1992). Such a variance is fatal where the instruction submits a new and distinct offense to the jury. State v. Jones, 980 S.W.2d 453, 455 (Mo.App. E.D.1996). Instructing on one form of the offense where the information charges another form of the same offense is not reversible error absent a showing that the variance between the information and the instruction is material and prejudicial. Lee, 841 S.W.2d at 651. Variances are material where they affect whether the defendant received adequate notice of the charges against him. State v. Whitfield, 939 S.W.2d 361, 366 (Mo. banc 1997). Variances are prejudicial where they affect the defendant’s ability to defend the charge against him. Id.

Here, Williams was charged with assault in the first degree based on the shooting of Walter Russell. The jury instruction submitted the offense of assault in the first degree based on the shooting of Walter Russell. Therefore, it cannot be said that the jury instruction submitted a new and distinct offense to the jury.

The information notified Williams that he would face a charge of shooting Walter Russell. The jury instruction also submitted an offense based on the shooting of Walter Russell. Thus, the instruction did not affect whether Williams received adequate notice of the charge against him. And because Williams denied having any involvement in the shooting, it is difficult to see how this defense would have changed based on whether he was charged with actually causing serious physical injury to Russell or with merely attempting to do so. Because the variance between the charge and instruction here was neither material nor prejudicial, the trial court did not err in submitting the instruction on the class B felony of assault in the first degree to the jury.

The evidence here was sufficient to sustain a conviction based on such instruction. The evidence presented at trial showed that Williams fired several shots into a crowd of people, one of which struck Walter Russell in the leg. This was sufficient evidence from which a reasonable juror could conclude that Williams committed the class B felony of assault in the first degree by attempting to kill or cause serious physical injury to Walter Russell. Therefore, although the State concedes that there was insufficient evidence to sustain Williams’ conviction as a class A felony, there was sufficient evidence to sustain his conviction as a class B felony and sentence as instructed.

Williams argues the court should hold the State to the burden of proof on the offense as it was charged in the information, not how it could have otherwise been charged, citing State v. Price, 980 S.W.2d 143 (Mo.App. E.D.1998). In Price the defendant was charged with two charges, burglary in the second degree or, in the alternative, receiving stolen property, both of which were class C felonies. Id. at 143. The state asked the jury to find the defendant guilty of either charge. Id. at 144. The jury convicted the defendant of the latter charge and this court reversed on the basis of insufficient evidence to support that conviction. Id.

Price, however, is distinguishable. Unlike in Price, there was abundant evidence here with which to support Williams’ conviction. Moreover, Price involved no variance between the information and the jury instructions. Price, therefore, has no bearing on the instant case.

As Williams correctly notes, however, the judgment entered by the trial court in this case does indicate that he was convicted of the class A felony of assault in the first degree. In light of the jury instruction submitted on this charge, this was a clerical error. Williams was convicted by the jury of the class B felony of assault in the first degree. Moreover, he was sentenced by the jury to fifteen years’ imprisonment on the charge, within the range of punishment for a class B felony. Section 558.011.1(2).

That the judgment on this charge resulted from a clerical error is further illustrated by the fact that the judgment contained several other clerical errors. Although the assault in the first degree count charged against Williams for his shooting at officers Darryl Ewing, Joseph Simmons, and Gregory Taylor was charged and instructed as a class B felony, the trial court indicated that Williams was convicted of a class A felony. The judgment also indicated that Williams was convicted of class A felonies on all three armed criminal action counts, even though armed criminal action is an unclassified felony. These clerical errors do not require reversal, but may be corrected by the trial court pursuant to Supreme Court Rule 29.12. See State v. Ivy, 851 S.W.2d 71, 73 (Mo.App. E.D.1993); State v. Anthony, 857 S.W.2d 861, 868-69 (Mo.App.W.D.1993). We therefore affirm the judgment but remand for the entry of an order nunc pro tunc to reflect that Williams was convicted of one count of the class A felony of murder in the first degree, two counts of the class B felony of assault in the first degree, and three counts of the unclassified felony of armed criminal action. Supreme Court Rule 29.12; see also State v. Harris, 939 S.W.2d 915, 918 (Mo.App. W.D.1996).

Judgment affirmed in part and remanded in part with directions.

CRANE, P.J., and SULLIVAN, J, concur.

      . All further statutory references are to RSMo 1994 unless otherwise indicated.


author: ULRICH, Judge.

text:
    Howard SIMPSON, Appellant, v. INDOPCO, INC., d/b/a National Starch and Chemical Company, Inc., Respondent.
    No. WD 57149.
    Missouri Court of Appeals, Western District.
    April 4, 2000.
    As Modified May 30, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court May 30, 2000.
    Application for Transfer Denied June 27, 2000.

      Jerrold Renter, Kansas City, for appellant.
    Mark Eugene Johnson, Kansas City, for respondent.
    Before LAURA DENYIR STITH, P.J., ULRICH, J„ and SMART, J.
   ULRICH, Judge.

Howard Simpson appeals from the trial court’s grant of judgment notwithstanding the verdict (JNOV) in favor of Indopco, Inc., d/b/a National Starch and Chemical Company, Inc. (National Starch) on Mr. Simpson’s malicious prosecution claim. Mr. Simpson contends that National Starch failed to provide accurate, complete and potentially exculpatory information to the Fraud Unit of the Division of Workers’ Compensation, which caused criminal charges to be filed against Mr. Simpson. The judgment of the trial court is affirmed.

Facts

Mr. Simpson is an employee of National Starch. He filed two workers’ compensation claims arising out of a 1992 recurrent hernia and a 1993 back injury. His hernia was first diagnosed and treated in 1991 by Dr. Lawrence Evans. National Starch paid for all of Mr. Simpson’s medical treatment related to the hernia repair. In 1992, the hernia recurred and Dr. Evans again treated Mr. Simpson. Dr. Evan’s medical records from the 1992 visit stated that Mr. Simpson’s hernia recurred when “he was working on a tractor and had a flat tire on his tractor and had to work on it and since that time has developed a bulge in the left which hurts when he gets up and down [sic] his leg.”

On September 3, 1993, Mr. Simpson reported to his supervisor that he experienced pain in his lower back while he was working shoveling wet feed at National Starch. The supervisor filled out an internal National Starch injury report at that time. Mr. Simpson did not seek medical treatment at that time but sought medical treatment for his back from his personal physician, Dr. Lester McDonald, approximately four weeks later. Dr. McDonald’s medical records stated that Mr. Simpson complained of back pain that resulted from lifting and building a farrowing house. A few days later Mr. Simpson went to the emergency room due to back pain. The medical records from the hospital indicated that Mr. Simpson reported he was lifting a gate at his farm and developed a sudden onset of pain.

National Starch’s worker’s compensation case manager, Nurse Jim French, spoke on his car phone to Mr. Simpson after the worker’s compensation claim for the back injury was filed. His notes reported that Mr. Simpson first noticed pain when working on the farrowing barn for his hogs. Nurse French arranged an appointment for Mr. Simpson to be seen by Dr. Ameri-co Ramos, National Starch’s company physician. After examining Mr. Simpson and reviewing Mr. Simpson’s medical records, Dr. Ramos drafted a letter indicating that Mr. Simpson had hurt his back several times, twice by working on his farm. Mr. Simpson was working with his hogs on one of those occasions and was lifting a gate at his farm the second time. National Starch also arranged for Mr. Simpson to see Dr. Michael Poppa, who also reported that Mr. Simpson’s right hip, back, and leg began hurting him while working on the farm with his wife.

After reviewing Mr. Simpson’s worker’s compensation claims for the hernia and back injury, including the various medical records from physicians who treated or saw Mr. Simpson, National Starch deposed Mr. Simpson. After Mr. Simpson denied telling his physicians that he was injured while working on his farm during his deposition, National Starch deposed the physicians who saw Mr. Simpson. In February 1995, National Starch filed a complaint pursuant to section 287.128.6, RSMo 1994, with the Fraud Unit of the Missouri Division of Workers’ Compensation (Fraud Unit) and forwarded the following documentation along with the complaint: Mr. Simpson’s deposition, the depositions of three of the physicians who treated or saw Mr. Simpson, the medical records from the three physicians and the hospital, the report of National Starch’s reviewing physician, and the report by National Starch’s worker’s compensation case manager. National Starch, however, did not send National Starch’s internal company injury report completed by Mr. Simpson’s supervisor on September 3, 1993, the group health insurance claim form filled out by Mr. Simpson’s wife, or Dr. Ramos’ patient intake form to the Fraud Unit. These documents supported Mr. Simpson’s claim that his injuries were work related. National Starch also did not list Mr. Simpson’s supervisor and one of Mr. Simpson’s co-workers as witnesses on the fraud complaint form. Mr. Simpson’s supervisor and co-worker would have testified to Mr. Simpson’s September 3, 1993, reported work-related back injury.

The Fraud Unit thereafter referred the case to the office of the Missouri Attorney General. The Attorney General filed a misdemeanor information charging Mr. Simpson with four counts of knowingly making a false material representation on May 3, 1995, for the purpose of obtaining worker’s compensation benefits. National Starch forwarded a copy of the September 3, 1993, injury report, filed by Mr. Simpson’s supervisor, to the Assistance Attorney General on May 8, 1995. The Assistant Attorney General then filed an Amended Information charging Simpson with four courts of misdemeanor worker’s compensation fraud.

The criminal charges against Mr. Simpson were tried as a non-jury case, and Mr. Simpson was found not guilty on all counts. Mr. Simpson thereafter filed the malicious prosecution action against National Starch. At the close of plaintiffs evidence, and again at the close of all the evidence, National Starch moved for a directed verdict on the malicious prosecution count. The court overruled both motions. At the close of the trial, the jury returned a verdict against National Starch and in favor of Mr. Simpson in the amount of $300,000 in actual damages. The trial court subsequently granted National Starch’s motion for JNOV. This appeal followed.

Standard of Review

A trial court’s judgment non obstante veredicto (JNOV) will be affirmed only if the plaintiff failed to make a submissible case. Faust v. Ryder Commercial Leasing & Services, 954 S.W.2d 383, 387 (Mo.App. W.D.1997)(citing Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996)). A submissible case requires substantial evidence for every fact essential for liability. Davis v. Board of Educ. of City of St. Louis, 963 S.W.2d 679, 684 (Mo.App. E.D.1998). Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide a case. Id. Whether evidence in a case is substantial and whether the inferences drawn are reasonable are questions of law. Id. In determining whether a plaintiff has made a submissible case, the evidence is viewed in the light most favorable to that plaintiff and the plaintiff is given the benefit of all reasonable and favorable inferences to be drawn from the evidence. Id. The evidence and inferences must establish every element and not leave any issue to speculation. Id.

Point on Appeal

Mr. Simpson contends that the trial court erred in sustaining National Starch’s motion for JNOV because he made a prima facie case for malicious prosecution in that National Starch knowingly failed to provide accurate, complete and potentially exculpatory information to the Worker’s Compensation Fraud Unit.

For a malicious prosecution action to succeed, a plaintiff must plead and provide “strict and clear proof’ of six elements: (1) the commencement of a prosecution against the plaintiff; (2) the instigation of that prosecution by the defendant; (3) termination of the proceedings in favor of the plaintiff; (4) the want of probable cause for the prosecution; (5) that defendant’s conduct was actuated by malice; and (6) damage to the plaintiff. Integra a Hotel and Restaurant Co. v. Ragan, 887 S.W.2d 731, 732 (Mo.App. W.D.1994)(citing Burnett v. Griffith, 769 S.W.2d 780, 784 n. 2 (Mo. banc 1989); Sanders v. Daniel Intern. Corp., 682 S.W.2d 803, 807 (Mo. banc 1984)). Ah six elements must be proved, and a plaintiffs failure to prove any one of the elements results in the failure to make a submissible case of malicious prosecution. Thompson v. Wal-Mart Stores, Inc., 890 S.W.2d 780, 782 (Mo.App. W.D.1995). Actions in malicious prosecution have never been favorites of the law. Sanders, 682 S.W.2d at 806. Sound public policy dictates that the law should encourage the uncovering and prosecution of crime and any policy that discourages citizens from reporting crime or aiding in prosecution would be undesirable and detrimental to society in general. Id. Courts recognize malicious prosecution as an action tending to dilute the public policy of encouraging persons having knowledge of possible crimes to cooperate with public officers. Id.

The fourth element of a malicious prosecution action that the plaintiff must prove is the absence of probable cause to warrant referral to the prosecutor by the defendant. In determining whether probable cause existed in this civil malicious prosecution action, the question is whether Mr. Simpson established that National Starch lacked probable cause to report the claim to the Fraud Unit which instigated the prosecution by the Attorney General.

The probable cause to initiate criminal proceedings sufficient to rebut a claim of malicious prosecution is “reasonable grounds for suspicion, supported by circumstances in evidence sufficiently strong to warrant a cautious man in his belief that the person accused is guilty of the offense charged.” Thompson, 890 S.W.2d at 782. MAI 5 th 16.05 [1996] provides that “reasonable grounds” as used in malicious prosecution instructions means “the existence of facts which would cause an ordinarily careful person to believe plaintiff was guilty of the offense charged.” Where the facts pertaining to the issue are not in dispute, the determination of whether probable cause existed is a question of law for the court, and not a question of fact for the jury. Thompson, 890 S.W.2d at 782.

In Thompson, an employee brought a malicious prosecution action against his former employer for instituting criminal proceedings against him for stealing. The employer instigated the charges based upon videotape showing the employee removing currency from cash register, hiding it and surreptitiously placing it in his pocket, without any indication in the next four hours that the employee returned the money or change to the register. Thompson, 890 S.W.2d at 781. This court held that, as a matter of law, the former employer had probable cause to institute criminal proceedings against the employee. Id. at 783.

In this case, the medical records of three physicians and a hospital recorded Mr. Simpson’s farm activities as the source of his injuries. These same medical providers made statements, in depositions taken by National Starch’s attorney, that they understood that Mr. Simpson’s injuries were related to farming-related activities. Mr. Simpson’s medical records and the statements of his treating physicians, combined with Mr. Simpson’s claim for worker’s compensation benefits for those same injuries, constituted reasonable grounds for suspicion sufficient to warrant National Starch’s belief that Mr. Simpson was guilty of the offense charged.

As Mr. Simpson failed to establish the want of probable cause as an element of his malicious prosecution action against National Starch for its reporting Mr. Simpson to the Fraud Unit, the trial court did not err in granting National Starch’s motion for JNOV. Since failure to prove the want of probable cause , element of the malicious prosecution action is dispositive, whether the other elements were met in this case need not be addressed.

The judgment of the trial court is affirmed.

LAURA DENVIR STITH, P.J., and SMART, J., concur.


author: CROW, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Terrell PATTERSON, Appellant.
    No. 23033.
    Missouri Court of Appeals, Southern District, Division One.
    April 11, 2000.
    Application to Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied May 30, 2000.

      Craig A. Johnston, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Jefferson City, for Respondent.
   CROW, Presiding Judge.

Appellant was tried by jury on four criminal charges:

Count I: assault in the first degree, § 565.050, by knowingly causing serious physical injury to Arthur Duncan.
Count II: armed criminal action, § 571.015, by committing the crime in Count I with a deadly weapon.
Count III: murder in the first degree, § 565.020, by knowingly causing the death of Joyce Patterson after deliberation.
Count IV: armed criminal action, § 571.015, by committing the crime in Count III with a deadly weapon.

The jury presented the trial court a set of verdicts which the court rejected. After a sequence of events set forth infra, the jury returned a set of verdicts which the court accepted. In that set, the jury found Appellant guilty as charged in all four counts.

Later, upon denying Appellant’s timely motion for hew trial, the court sentenced Appellant to: life imprisonment on Count I; life imprisonment on Count II, consecutive to the sentence on Count I; life imprisonment without eligibility for probation or parole on Count III, consecutive to the sentences on Counts I and II; life imprisonment on Count IV, consecutive to the sentences on Counts I, II and III.

Appellant’s sole claim of error arises from the events that began when the jury presented its first set of verdicts. Because Appellant does not challenge the sufficiency of the proof to support the eventual guilty verdicts, only an abbreviated account of the evidence is necessary.

Viewed favorably to the result below, State v. Ervin, 979 S.W.2d 149, 159[14] (Mo. banc 1998), cert. denied, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999), the evidence established that on August 5, 1998, Appellant drove to the home of Arthur Duncan and shot him with a handgun. Appellant then drove to the residence of Joyce Patterson (Appellant’s wife) and shot her with the same gun. She died as a result of the shooting. Duncan survived, but sustained serious physical injuries.

Four jury instructions are pertinent to Appellant’s claim of error.

Instruction 11 submitted Count III.

Instruction 13 told the jurors that if they did not find Appellant guilty of murder in the first degree, they must consider whether he is guilty of murder in the second degree.

Instruction 14 submitted Count IV. It hypothesized Appellant used a deadly weapon in committing murder in the first degree as submitted in Instruction 11.

Instruction 15 also submitted Count IV. It hypothesized Appellant used a deadly weapon in committing murder in the second degree as submitted in Instruction 13.

The trial court supplied the jury twelve blank verdict forms — one for each possible verdict authorized by the instructions.

After deliberating about an hour and twenty minutes, the jury presented four verdict forms to the trial court.

The record indicates the first verdict form was signed by the foreman. It showed the jury found Appellant guilty of assault in the first degree and assessed punishment at “life in prison without parole or probation.” In a discussion in chambers outside the presence of the jury, the prosecutor and Appellant’s lawyer agreed with the trial court that the phrase “without parole or probation” was “sur-plusage.”

The second verdict form, like the first, was signed by the foreman. The second form showed the jury found Appellant guilty as charged in Count II and assessed punishment at life imprisonment. The trial court said the verdict “appears to be acceptable.” Neither the prosecutor nor Appellant’s lawyer disagreed.

The third verdict form was also signed by the foreman. It showed the jury found Appellant “guilty of second degree murder” and assessed punishment at life imprisonment. The trial court remarked, “It seems to be a permissible verdict.” The prosecutor and Appellant’s lawyer agreed.

This court divines from the record that the fourth verdict form presented by the jury was the one to be used for Count IV if the jury (a) found Appellant guilty of murder in the first degree as submitted in Instruction 11, and (b) found Appellant used a deadly weapon as hypothesized in Instruction 14. The fourth verdict form was not signed. However, it showed the jury assessed punishment at life imprisonment.

Recognizing that the fourth verdict form should have been used only if the jury found Appellant guilty of murder in the first degree, and that the third verdict form had shown the jury found Appellant guilty of murder in the second degree, the trial court stated: “[EJven if [the fourth verdict form] were signed, it would not be a permissible verdict. Therefore, the jury needs to be instructed by some means to reconsult its instructions and deliver an acceptable verdict upon Count IV[.]”

Appellant’s lawyer responded: “Judge, I’d just like to ask that Counts I, II, III, that they’ve already signed properly, that those being accepted by the Court and they just be referenced as to Count TV as to re-looking at that.”

The prosecutor replied that the jury “did not return a complete verdict.”

After further dialogue, the trial court and the lawyers returned to the courtroom. There, the court told the jury:

“Ladies and gentlemen, as to Count IV, your verdict is not in a complete and acceptable form. Please return to your room, endeavor to reach verdicts upon Count IV, and read the instructions upon the verdict forms.”

The jury thereupon returned to the jury room. Six minutes later, the jury reentered the courtroom. The only record of what occurred is a notation in the transcript that the trial court and counsel held an “off the record” discussion. At the conclusion of the discussion, the trial court told the jurors to “return to your room again and consider Count TV and carefully read the instructions contained on the verdict forms upon the forms relating to Count IV.”

Some fourteen minutes later, the bailiff — at the trial court’s direction — brought the instructions and verdict forms from the jury room to the courtroom. There, the court and the lawyers examined the verdict forms. The court announced:

“[T]he Court now finds that the verdict form completed upon Count IV is in a proper order. The first time the jury sent the packet of instructions out, it had signed a verdict form indicting that it found the Defendant guilty of second degree murder. It has now erased that signature and signed the first degree murder verdict form indicating that it finds the Defendant guilty of first degree murder.”

The trial court gave the lawyers an opportunity to comment.

Appellant’s lawyer said:

“Judge, we would renew the earlier motion that we made back in chambers for the Court to accept the verdicts as to I, II and III when the verdict as to III was murder in the second degree, because those verdicts were in the proper form at the time.... I think for the Court ... to now accept a verdict of murder in the first degree is a violation of my client’s double jeopardy rights under the 4th [sic] and 15th [sic] Amendments to the United States Constitution. As they came back before, Verdicts I, II and III were in proper form. It was Verdict IV that was not in proper form. So we would move that the Court accept the earlier verdict as to Count III of murder in the second degree.... [T]he Court’s instructions were for them to adjust Count IV and they’ve not followed that instruction of the Court. They’ve changed Count III.... If the Court’s denying our request to accept the verdicts as to the earlier Count III, verdict of murder in the second degree, we would request, in the alternative, for a mistrial.”

The trial court denied the request for mistrial.

The bailiff then escorted the jury to the courtroom where the trial court read four verdicts aloud.

The first verdict was the same as the one the jury originally presented on Count

I. The second verdict was the same as the one the jury originally presented on Count II.

The third verdict was:

“As to Count III, we the Jury, find the defendant, TERRELL PATTERSON, guilty of MURDER IN THE FIRST DEGREE, as submitted in Instruction No. 11.
We assess and declare the punishment for MURDER IN THE FIRST DEGREE at: Imprisonment for life without the eligibility for probation or parole.”

The fourth verdict was:

“As to Count IV, we the Jury, find the defendant, TERRELL PATTERSON, guilty of ARMED CRIMINAL ACTION, as submitted in Instruction No. 14.
We assess and declare the punishment for ARMED CRIMINAL ACTION at: Life imprisonment!.]”

All four verdicts were signed by the foreman.

The trial court polled the jury on each verdict. Every juror confirmed each verdict was his (or hers).

The trial court accepted the verdicts and discharged the jury.

Appellant’s sole point relied on:

“The trial court erred in a) refusing to accept the jury’s second degree murder verdict; 2) requiring the jury to further deliberate on all counts after it had acquitted Mr. Patterson of the greater offense of first degree murder when it found him guilty of this lesser offense; 3) accepting the subsequent first degree murder verdict; 4) overruling Mr. Patterson’s request for a mistrial; and plainly erred in 5) failing to advise the jury in writing what verdicts were supposedly inconsistent and by not submitting a new set of verdict forms for those verdicts, pursuant to MAI-CR3d 312.06, because these actions and omissions allowed and possibly coerced a first degree murder conviction, violating Mr. Patterson’s rights to due process of law and to not be placed in double jeopardy, U.S. Const., 5th and 14th Amends.; Mo. Const., Art. I, § 19, in that when the jury returned its second degree murder verdict, Mr. Patterson was acquitted of first degree murder, and since that verdict was in proper form it should have been accepted; instead, the trial court twice orally ordered the jury to continue deliberations, putting Mr. Patterson again in jeopardy for first degree murder áfter he had already been acquitted of that charge, without giving the jury the required written guidance as to the perceived problem, and resulted in the jury changing its verdict to first degree murder.”

Appellant correctly declares that conviction of a lesser included offense implicitly acquits an accused of the greater offense. State v. Moseley, 735 S.W.2d 46, 48[5] (Mo.App. W.D.1987); Shopbell v. State, 686 S.W.2d 521, 523[5] (Mo.App. W.D.1985); Ray v. State, 532 S.W.2d 478, 482[8] (Mo.App.1975).

Relying on that rule, Appellant maintains: “The guilty verdict for second degree murder initially returned by the jury as to Count III constituted an outright acquittal of ... first degree murder.” Consequently, argues Appellant, the trial court erred in accepting the jury’s later verdict finding Appellant guilty of murder in the first degree. According to Appellant, when the trial court required the jurors to deliberate further about Count III after they presented the initial set of verdict forms, the court “twice put [Appellant] in jeopardy for the first degree murder conviction that he had been implicitly acquitted of, in violation of his state and federal constitutional rights.”

The State, citing State v. Lashley, 667 S.W.2d 712, 715[3] (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984), insists that when a jury returns a verdict in improper form, it is the trial court’s duty to refuse to accept it and require further deliberation until a verdict in proper form is returned.

The State emphasizes that the fourth verdict form initially presented by the jurors showed they found Appellant guilty of armed criminal action as submitted in Instruction 14. That was the instruction hypothesizing Appellant used a deadly weapon in committing murder in the first degree. The State points out that the fourth verdict form contained this caution: “Unless you have found the defendant guilty of murder in the first degree as submitted in Instruction No. 11, you may not complete this verdict finding the defendant guilty of armed criminal action as submitted in Instruction No. 14.” Consequently, reasons the State, the third and fourth verdict forms initially presented by the jury were inconsistent, hence the trial court had a duty to reject them and require the jury to deliberate until proper verdicts were returned.

A case similar to, but not identical with, the instant case is State v. Peters, 855 S.W.2d 345 (Mo. banc 1993), cert. denied, 510 U.S. 1075, 114 S.Ct. 887, 127 L.Ed.2d 81 (1994). There, the trial court submitted the case to the jury by instructions hypothesizing: assault in the first degree, armed criminal action with assault in the first degree as the underlying felony, assault in the second degree, and armed criminal action with assault in the second degree as the underlying felony. Id. at 347. To convict the accused of armed criminal action, the instructions required a finding of guilt on one of the assault charges. Id.

The jury in Peters returned a verdict of not guilty of assault but guilty of armed criminal action with assault in the second degree as the underlying felony. Id. The judge refused to accept the verdicts because the accused could be found guilty of armed criminal action only if fust found guilty of the underlying felony. Id. The jury ultimately returned verdicts of guilty of assault in the second degree and guilty of armed criminal action with assault in the second degree as the underlying felony. Id.

On appeal, the accused maintained that the initial finding of not guilty of assault acquitted him of all assault charges and armed criminal action. Id. Consequently, argued the accused, the judge subjected him to double jeopardy by requiring the jury to deliberate further. Id.

The Supreme Court of Missouri disagreed, saying:

“We hold that the first two verdicts the jury attempted to return were inconsistent because if the defendant was not guilty of assault, he cannot be guilty of armed criminal action based on assault. The court acted properly in sending the matter back to the jury for further consideration. In addition, we hold that the action of the court did not subject [the defendant] to double jeopardy.”

Id. at 347-48[l].

Peters is analogous to the instant case in that the initial verdict in Peters acquitting the accused of assault was consistent on its face, just as the initial verdict form in the instant case finding Appellant guilty of murder in the second degree was consistent on its face.

The inconsistency in Peters arose only when the initial verdict on assault was considered with the initial guilty verdict on armed criminal action. Like Peters, the inconsistency in the instant case arose only when the initial verdict form on Count III was considered with the initial verdict form on Count IV. The former found Appellant guilty of murder in the second degree, while the latter found him guilty of armed criminal action with murder in the first degree — not murder in the second degree — as the underlying felony.

Peters recognized a verdict could be consistent on its face but inconsistent when compared with another verdict. Peters explained:

“[I]n many situations in which there are inconsistent verdicts, each verdict will be consistent on its face; it is only when you consider them together that the inconsistency becomes apparent.... In the final analysis, the verdict is just a communication from the jury to the judge. If the verdict is ambiguous, the best way to clarify the message is to ask the sender of the message (the jury) what was meant. Whenever possible, the jury should be allowed to resolve the inconsistency.
Many times it is impossible to have any idea which verdict is correct and which is incorrect....
In a situation such as in the present case ... in which one of the verdict directors incorporates the elements of another charge by requiring a finding of guilty on the underlying charge, an argument can be made that since the verdict directors in effect require the jury to resolve the underlying charge first, it is safe to assume this is the correct verdict and that the second verdict is the incorrect one.... While this contention is not without merit, the assumption that the first count decided (the underlying felony) is correct is not necessarily valid. For example, the error may arise simply in the process of filling out the verdict forms, in which event either verdict could be the one intended by the jury. Since the jury is still present and the trial judge and attorneys are aware of the inconsistency and the inconsistent verdicts have not been accepted, the safest and most accurate way to resolve the ambiguity is to resubmit both counts to the jury and find out for sure which verdict is the one the jury intends.
There is nothing magical about an inconsistent verdict that is consistent on its face but is inconsistent because of some other verdict in the case. Trial judges are encouraged to make every effort to salvage an improper verdict by calling the jurors’ attention to their mistake in failing to follow the jury instructions and giving them an opportunity to correct the mistake. The trial judge did exactly that. Peters was not tried twice on any count, and the double jeopardy clause has no application.
An attempt by a jury to return a verdict that is not accepted by the trial judge is not a verdict. A verdict is not binding until the court accepts it and the jury is discharged. A trial court’s refusal to accept an inconsistent verdict ‘is not a situation which places a defendant in double jeopardy.’ Consequently, Peters was not subjected to double jeopardy.”

Id. at 348-50 (citations omitted).

This court finds Peters answers — and refutes — the first four complaints in Appellant’s point relied on, i.e., clauses “a,” “2,” “3” and “4.” Indeed, Appellant’s position is weaker than that of the accused in Peters. There, the initial set of verdicts acquitted the accused of the underlying felony (assault). In the instant case, the initial verdict form for Count III found Appellant guilty of murder, but in a lesser degree than the eventual verdict on that count. Thus, in Peters the eventual verdict changed an apparent acquittal to a conviction, whereas the eventual verdict in the instant case simply elevated the degree of murder.

Apparently recognizing Peters is adverse to his position, Appellant maintains Peters “was incorrectly decided.” That contention is not cognizable in this court, as this court is constitutionally bound to follow the most recent controlling decision of the Supreme Court of Missouri. Mo. Const, art. V, § 2 (1945); State v. Rulo, 976 S.W.2d 650, 653[3] (Mo.App. S.D.1998).

The final complaint in Appellant’s point relied on is clause “5.” There, Appellant avers the trial court committed plain error in two respects: first, in failing to utilize MAI-CR 3d 312.06 to identify for the jury the verdicts which were inconsistent; second, in failing to supply the jury a new set of verdict forms for the inconsistent verdicts.

Appellant acknowledges his lawyer at trial did not object to those omissions, hence any complaint about them may be barred by Rule 28.03. That rule provides, inter alia: “No party may assign as error the ... failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”

It is obvious, of course, that the omissions toward which Appellant directs his final complaint occurred after the jury initially retired to deliberate. Therefore, it may be arguable whether Rule 28.03 bars review of Appellant’s final complaint.

However, this court need not decide that issue. That is because Appellant’s final complaint does not appear in his motion for new trial. That omission renders the complaint ineligible for appellate review. State v. Peterson, 518 S.W.2d 1, 3[2] (Mo.1974).

Accordingly, the only possible relief available to Appellant in regard to his final complaint is for plain error. In State v. Isa, 850 S.W.2d 876, 884[2] (Mo. banc 1993), the Supreme Court of Missouri explained:

“Plain error relief is appropriate only when the alleged error so substantially affects the rights of the defendant that a manifest injustice or miscarriage of justice results. Rule 29.12(b). The defendant bears the burden of showing that an alleged error has produced such a manifest injustice.”

Any complaint by Appellant that the eventual verdict on Count III—guilty of murder in the first degree—was a manifest injustice or miscarriage of justice is refuted by the jurors’ responses to the trial court’s sua sponte poll on all four verdicts. Every juror unequivocally confirmed the verdict of guilty of murder in the first degree on Count III was that juror’s verdict. Consequently, Appellant cannot demonstrate the trial court’s failure to utilize MAI-CR 3d 312.06 warrants plain error relief.

Judgment affirmed.

PARRISH and SHRUM, JJ., concur.

      . References to statutes are to RSMo 1994.

      . Appellant and Joyce were living apart; she had filed an action to dissolve their marriage.

      . Appellant’s motion for new trial avers that on this occasion, the verdict form for Count IV displayed the foreman’s signature. Although the record is silent about that, the State's brief agrees that the jury "returned the same verdicts as it had initially but signed the verdict form as to Count IV when it returned the second time.”

      . This court infers from the transcript that the jury had indicated to the bailiff that it had completed its verdicts.

      . Appellant endeavors to distinguish Peters by arguing that the initial verdicts there were "truly inconsistent” because the jury could not find the accused guilty of armed criminal action without finding him guilty of assault, whereas in the instant case a conviction of murder in the second degree would support a conviction of armed criminal action. Appellant’s argument, while resourceful, is unpersuasive. There was a patent inconsistency between the initial verdict form presented by the jury on Count III and the initial verdict form presented by the jury on Count IV. A verdict finding an accused guilty of murder in the second degree is inconsistent with a verdict finding him guilty of armed criminal action by committing murder in the first degree with a deadly weapon.

      . The lawyer representing Appellant in this appeal is not the lawyer who represented him at trial.

      . Rule 28.03, Missouri Rules of Criminal Procedure, has remained unchanged since July 1, 1995.


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. George BROWN, Defendant/Appellant.
    No. ED 75894.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 11, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
    Application for Transfer Denied June 27, 2000.

      Gary E. Brotherton, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Defendant, George Brown, was charged with possession of a prohibited article, a homemade knife, on the premises of a correctional center, in violation of Section 217.360(4) RSMo (Cum.Supp.1997). At trial, the state introduced evidence that, after waiving his rights under Miranda, defendant acknowledged that the knife was his. After the jury found defendant guilty, the trial court sentenced defendant to a term of fifteen years to run consecutively with the life term he was already serving.

For his primary point on appeal, defendant asserts that the trial court erred in admitting his confession because, eleven days prior to admitting ownership of the knife, he told a correctional officer that he wanted an attorney and no attorney was made available to him before an officer next contacted him. He contends that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) prohibits prison officials from contacting him without having provided him with an attorney once he invoked his right to counsel. We affirm on the grounds that Edwards does not apply because there was no evidence showing defendant’s request for counsel occurred during a custodial interrogation and, thus, his Miranda right to counsel was not triggered during the first contact with officials.

On September 24, 1997, defendant was an inmate at the Potosí Correctional Center and was housed in cell 3A-31 with Derek Jennings. That day, Corrections Officer Sam Bergner learned that defendant had a new tattoo. While defendant was present, Officer Bergner searched defendant’s cell for a tattoo gun. Instead of a tattoo gun, Officer Bergner found and seized a homemade knife from the corner of the top bunk mattress belonging to defendant’s cellmate.

The following day, Officer Joseph Rosenberg, a zone lieutenant employed by the Missouri Department of Corrections at the Potosí Correctional Center, interviewed defendant. He testified that defendant made the following statement: “I want legal counsel and I want a mother fucking lie detector. I want the knife dusted for fingerprints and I don’t know about any knife in this cell.” Officer Rosenberg wrote the statement on a violation report form, gave a copy to defendant, and the interview concluded.

On October 6, 1997, Fred Johnson, a functioning manager at the Potosí Correctional Center, held an adjustment hearing for defendant regarding his conduct violation for possession of dangerous contraband. Johnson went to defendant’s cell and asked defendant if he wanted to participate in the hearing. Defendant agreed and Johnson read defendant his Miranda rights, which defendant then waived. Johnson asked defendant if he would like to make a statement whereupon defendant admitted ownership of the knife.

Defendant was thereafter charged by information with possession of a prohibited article on the premises of a correctional center, in violation of Section 217.360(4) RSMo (Cum.Supp.1997). Defendant filed a motion to suppress his statements which the trial court denied after a hearing. At trial defendant renewed his motion and objected to the introduction of his October 6 statement.

I. Admission of October 6 Statement

For his first point defendant contends that the trial court erred in overruling the motion to suppress his October 6 statement and in admitting that statement over objection at trial. Defendant argues that his September 25 request for counsel mandated that officers not contact him again until counsel had been provided to him and that, therefore, under Edwards, the October 6 contact rendered his October 6 waiver of counsel invalid and his statements inadmissible.

When a defendant has moved to suppress his or her inculpatory statements, the state bears the burden of proving, by a preponderance of the evidence, that the defendant made those statements voluntarily. State v. Martin, 820 S.W.2d 605, 606 (Mo.App.1991). In order to meet its burden, the state is not required to negate every possible circumstance which, if developed, could present a fact issue on the question of voluntariness. State v. Nolan, 428 S.W.2d 815, 818 (Mo. banc 1968). Rather, it is sufficient for the state to present a prima facie showing of voluntariness. Id. If a defendant contends that special circumstances exist which make the confession involuntary, the defendant is then required to present evidence to support that contention. Id.; State v. Vinson, 854 S.W.2d 615, 625 (Mo.App.1993).

Our review of a trial court’s denial of a motion to suppress is limited to whether the evidence is sufficient to support the trial court’s order. State v. Dye, 946 S.W.2d 783, 786 (Mo.App.1997). We consider the facts and all reasonable inferences in favor of the trial court’s ruling. Id. We will not disturb the challenged ruling absent manifest error. Id.

At the hearing on the motion to suppress, the state adduced evidence from Officer Johnson that on October 6 defendant was given the option to appear and testify at an administrative disciplinary hearing, that he was read the Miranda rights prior to the hearing, that defendant acknowledged that he understood those rights and waived them in writing, and that defendant was then asked if he had a statement to make on his own behalf. Defendant made his statement, which Johnson wrote down, and defendant approved and signed it. Johnson had no first-hand knowledge that defendant had previously asked for an attorney and did not remember if he had read about this request in a report. The trial court overruled the motion.

At trial, after the state adduced similar evidence regarding the October 6 statement, defendant called Officer Rosenberg. Rosenberg was asked if he had the occasion to interview defendant on September 25, if defendant gave a statement, the content of the statement, and whether he continued to question defendant or had further contact with him.

The state argues that the evidence regarding the September 25 interview did not show that defendant made his request for counsel during a custodial interrogation and, therefore, his rights under Edwards did not attach. We agree.

In Miranda v. Arizona, the Court required that a custodial interrogation be preceded by an advice of rights, including advice of the right to counsel; if an accused requests counsel, “interrogation must cease until an attorney is present.” 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). Subsequently, the Court held that once an accused has so requested counsel the accused is not subject to further interrogation by authorities unless counsel has been made available, or unless the accused is the one who initiates further contact. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85. The Supreme Court has never expanded the Ed wards rule to non-custodial requests for counsel. McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3, 111 S.Ct. 2204, 2211 n. 3, 115 L.Ed.2d 158 (1991).

A defendant’s status as a prison inmate does not necessarily make an interview by prison officials “custodial interrogation” requiring the protections set out in Miranda. See State v. Baker, 850 S.W.2d 944, 950 (Mo.App.1993). See also Leviston v. Black, 843 F.2d 302, 304 (8th Cir.1988); Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir.1978); United States v. Conley, 779 F.2d 970, 973 (4th Cir.1985); Garcia v. Singletary, 13 F.3d 1487 (11th Cir.1994); State v. Goss, 995 S.W.2d 617, 629 (Tenn.Crim.App.1998). When a prison inmate is questioned, “the language used to summon the individual, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and the additional pressure exerted to detain him must be considered to determine whether a reasonable person would believe there had been a restriction of his freedom over and above that in his normal prisoner setting.” Cervantes, 589 F.2d at 428. See also United States v. Chamberlain, 163 F.3d 499, 503 (8th Cir.1998).

Here, there was no evidence of circumstances which would show that, at the time defendant made the statement requesting a lawyer, he was “in custody” or subject to custodial interrogation for Miranda purposes. In particular there was no evidence, at the suppression hearing or at trial, which showed:

1. That any coercive language was used to set up or start the interview or summon the defendant;
2. That any coercive questions were asked of defendant or coercive statements were made to defendant;
3. That defendant was removed from his cell;
4. That defendant was confronted with evidence of his guilt;
5. That any additional pressure was put on defendant, such as a lengthy interrogation, psychological schemes, deceptive stratagems, or strong arm tactics;
6. That an additional restriction was placed on his freedom of movement at the time of the interview.

The state made a prima facie showing that the defendant’s October 6 statement was voluntary. Because the evidence does not show circumstances which would support a finding that defendant made his request for counsel during a custodial interrogation, Edwards does not apply to preclude admission of the October 6 statement which defendant made after he was advised of and had waived his rights under Miranda. The evidence is sufficient to support the trial court’s order. The trial court did not err in admitting defendant’s statement. Point one is denied.

II. Closing Argument

For his second point defendant contends that trial court plainly erred by allowing the prosecutor to state during closing argument that there was “clear and convincing” evidence that defendant possessed the knife. Defendant did not object or request remedial relief at trial and does not identify in his point on appeal what action he thinks the court should have taken.

We should rarely grant relief for assertions of plain error occurring in closing argument. State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994); State v. Clemmons, 753 S.W.2d 901, 907 (Mo. banc 1988); State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986). “This is because, in the absence of objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.” Clemmons, 753 S.W.2d at 907-08. We may exercise our discretion to consider plain errors affecting substantial rights if we find that manifest injustice or miscarriage of justice has resulted therefrom. Rule 30.20. We have examined defendant’s claim and find no basis for plain error review. Point two is denied.

ROBERT G. DOWD, Jr. and SHERRI B. SULLIVAN, J. concur.

      . This report is not part of the record on appeal.

      . At some point an order was issued that defendant remain in administrative segregation until the time of the hearing, but the record does not reflect if this was before or after the interview, and, in any event, his counsel advised the court that defendant was already in administrative segregation for another misconduct charge.