author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Forrest LYNCH and Vina Lynch, Plaintiffs-Appellants, v. Gerald L. RUDOLPH, Seymour Bank, and Mary Chessor, Defendants-Respondents.
    No. 26511.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 15, 2005.

      Stuart L. King, Springfield, for Appellants.
    James R. Cox, Springfield, for Respondents.
   NANCY STEFFEN RAHMEYER, Judge.

Forrest Lynch and Vina Lynch (“Appellants”) appeal the grant of summary judgment entered against them in their suit against Gerald L. Rudolph, Seymour Bank and Mary Chessor (“Respondents”). Appellants acknowledge that they did not respond to a properly filed motion for summary judgment; however, Appellants contend that the motion for summary judgment did not establish judgment as a matter of law because the motion was not supported by references to pleadings, discovery or affidavits as required by Rule 74.04, but was supported by exhibits which were inadmissible due to Seymour Bank’s failure to lay a proper foundation or otherwise demonstrate the admissibility of the exhibits. We disagree and affirm.

Rule 74.04 provides in relevant part:

(c)(1) Motions for Summary Judgment. ... A statement of uncontrovert-ed material facts shall be attached to the motion. The statement shall state -with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.
(e) Form of Affidavit. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Appellants contend that an affidavit signed by Gerald L. Rudolph based upon Rudolph’s “knowledge, information and belief,” is not based on Rudolph’s personal knowledge; they further contend that the affidavit does not lay a proper foundation for the bank records, which make up the forty-four exhibits attached to the motion for summary judgment. Appellants contend that the bank records contain numerous hearsay statements, which would not be admissible in evidence, but do not contest the validity or foundation of any of the specific exhibits. Respondents counter that Rudolph’s affidavit is proper as an affidavit of a custodian of records, and, more importantly, the exhibits attached to the motion for summary judgment conclusively show that all of Appellants’ claims for relief are insupportable as a matter of law.

Appellants’ petition claimed three counts of fraud. The first two counts allege fraud from events which occurred in April 1992. Appellants claim that Respondent Seymour Bank fabricated a $100,000 Promissory Note and forged Appellants’ signatures on it for the purpose of giving the bank apparent authority to withdraw money from their bank account. Appellants admit they signed a deed of trust, but claim they did so under false pretenses. Appellants sought recovery of the principal and interest they paid on the “fraudulent” note. Respondents counter that summary judgment was proper on two bases: first, Respondents’ exhibits, the bank records, conclusively show that Appellants received the entire $100,000 proceeds of the note, thus showing Appellants suffered no damages; and, second, the actions are barred by the statute of limitations. If the exhibits were properly considered in the summary judgment motion, the statute of limitations argument is dispositive.

We find that the exhibits, as business records, are properly admissible as exhibits in the motion for summary judgment. First, Rudolph’s affidavit substantially complies with the filing of an affidavit as the custodian of records for business records. See section 490.692. The bank statements, checks and notes are classic business records of the bank. As such, the exhibits were properly considered by the trial court, particularly since Appellants did not challenge the trustworthiness of any of the documents. See ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (finding that facts set forth by the moving party are “taken as true unless contradicted by the non-moving party’s response to the summary judgment motion”). Second, the exhibits, which Appellants claim to be inadmissible as hearsay, were not necessarily admitted for the truth of the matter asserted; they merely reflected the deposits and withdrawals of hundreds of thousands of dollars in Appellants’ bank account in 1991 and 1992. The records were presented to the trial court to show Appellants’ knowledge of the deposits and withdrawals from Appellants’ bank account. We find the court properly considered the exhibits attached to the motion for summary judgment.

Appellants’ fraud claims are subject to a five-year statute of limitations pursuant to section 516.120(5); however, the running of the statute of limitations can be tolled for up to ten years if the defrauded party is unaware of the fraud. Gilmore v. Chicago Title Ins. Co., 926 S.W.2d 695, 698 (Mo.App. E.D.1996). Although Appellant Forrest Lynch claimed he was not aware of the fraud until June 2001, the exhibits clearly show that Appellants had actual knowledge of the alleged fraud at the latest in July 1992. As one example, the April 1991 bank statement of Appellants shows a bank overdraft prior to the deposit of the promissory note, deposits of the note proceeds, and checks written within the month totaling $25,953.71. A reasonably prudent person exercising proper diligence would have discovered funds had been deposited to cover what would have been over $23,000 in overdrafts. Appellants certainly would have thought something unusual about a deposit so large and would notice writing checks far in excess of money available to them had there been no deposit.

Additional exhibits include bank statements indicating $1,200 deductions from Appellants’ account with no corresponding check numbers, but that do correspond to another exhibit containing the loan payment forms. Another exhibit reflects that Respondent Seymour Bank received $118,758.88 of Appellants’ money from a loan in July 1992. Again, any reasonably prudent person would have been put on notice that something out of the ordinary was happening to a bank account if $118,758.88 was taken out of an account. Those deposits and withdrawals amply reflect Appellants’ knowledge of any alleged fraud in 1991 or June 1992 at the latest. Appellants do not argue otherwise. Thus, the five-year statute of limitations had run prior to the filing of Counts I and II of Appellants’ petition, and the trial court properly granted summary judgment on Counts I and II based on the defense that the statute of limitations had expired prior to filing the lawsuit.

Count III is a claim that Appellants were coerced by a misrepresentation of Respondent Seymour Bank through its employee, Tom Rost, to sign a note in the amount of $27,300 and a deed of trust. Appellants specifically claim that the misrepresentation was Rost’s assertion there was a pre-existing debt and that the bank had a right to foreclose on Vina Lynch’s real estate. Thus, Appellants must prove that they owed no money for a previous debt and there was no previous deed of trust in order to prevail. Appellants’ claim is refuted by the bank records. Keeping in mind that Appellants admit to signing a note and a deed of trust on June 2, 2001, they simply complain that they were coerced into signing the documents by the false representations of the bank employee of a previous debt and previous deeds of trust.

Respondents cited to numerous exhibits reflecting a series of past due promissory notes prior to June 2, 2001. Clearly, there is no issue of material fact that prior to the claimed misrepresentation, Appellants owed bona fide debt to Respondent Seymour Bank in June of 2001, that the bank had prior deeds of trust, and Respondent Seymour Bank was entitled to foreclose on Vina Lynch’s real estate prior to any alleged coercion. Appellants cannot show any “false statements” made by Rost. Respondent Seymour Bank had the right to foreclose on a delinquent promissory note and deed of trust and the statements cannot form the basis of a claim for misrepresentation as claimed by Appellants. The trial court did not err in granting summary judgment on Count III.

The grant of summary judgment is affirmed.

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

      . Counsel representing Appellants on appeal did not represent Appellants at trial.

      . All rule references are to Missouri Court Rules (2005), unless otherwise stated.

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


source: Caselaw Access Project

author: VICTOR C. HOWARD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lena M. BUHR, Appellant.
    No. WD 64104.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Sarah Weber Patel, Asst. Appellate Defender, Kansas City, MO, for Appellant.
    Before HOWARD, P.J., and SMART and NEWTON, JJ.
   VICTOR C. HOWARD, Presiding Judge.

Lena M. Buhr (“Buhr”) was convicted of endangering the welfare of a child in the first degree pursuant to section 568.045, and she now appeals. Buhr argues on appeal that the trial court erred in overruling her motions for judgment of acquittal and in sentencing her for endangering the welfare of a child in the first degree, in violation of her right to due process as provided by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Missouri Constitution. Buhr claims that the State did not prove beyond a reasonable doubt that her act of allowing Bryon Griffin (“Griffin”), her boyfriend, to have contact with Anthony, her son, on or about June 6, 2002, would result in an actual risk to Anthony’s life, body, or health, or that Buhr knowingly created that risk. For the reasons stated below, we affirm.

Background

Buhr was charged by Indictment in Jackson County with one count of murder in the second degree, two counts of endangering the welfare of a child in the first degree, one count of hindering the prosecution of a felony, and one count of tampering with physical evidence in a felony prosecution. The case was tried by jury in the Circuit Court of Jackson County on January 26 and 27, 2004, before the Honorable Michael W. Manners. Buhr appeals only her conviction for endangering the welfare of a child in the first degree in violation of section 568.045. The following evidence was adduced at trial.

In 2001, Buhr and her two sons, William and Anthony, moved in with Penny Webb (“Webb”) at 9314 Independence Avenue, Independence, Missouri. At that time, Anthony was three years old and William was five years old. Griffin lived in an upstairs apartment at this same address. After Buhr moved in with Webb, she started spending substantial amounts of time with Griffin.

In February 2002, Buhr showed Webb an injury to Anthony’s testicles. Buhr told Webb that William had kicked Anthony. When Webb attempted to ask William if this was true, Buhr and Griffin interrupted and prevented William from speaking. To repair the damage, a tube was inserted into Anthony’s testicles. Webb testified that each time Anthony would go to Griffin’s apartment, Buhr would bring Anthony back down to Webb’s apartment because the tube had come out. This happened three or four times, and each time Anthony would have to undergo another surgery to reinsert the tube.

Buhr moved in with Griffin in March 2002. William and Anthony alternated between staying with their mother and father, Frank Buhr, during this time. Sometime after Anthony’s surgeries, Frank Buhr gained custody of the boys because of the abuse that Anthony was suffering. Buhr was restricted to having only supervised visits with the boys. On June 1, 2002, Frank Buhr took the boys back to their mother and told her that he could not care for them any longer.

After Buhr moved in with Griffin, Webb began to notice that Anthony was being hurt. She noticed injuries including: bruises, a black eye, and missing clumps of hair on his head. Deborah James (“James”), a caretaker for Buhr’s father, also noticed injuries to Anthony. In late May 2002, when James last saw the boys, she noticed that Anthony’s head was shaved, he had multiple bruises on his head and face, and he had a bloody black eye.

Around midnight on the night of June 5, 2002, James noticed that Buhr’s father appeared to be having a stroke. James notified Buhr and offered to watch the boys so that Buhr could meet her father at the hospital. Buhr declined James’ offer and told her that Griffin would watch the boys. At the time of the phone call, Webb was downstairs in her apartment and testified that she heard Buhr and Griffin arguing and fighting. Webb said she then heard Buhr crying as she ran down the stairs with Griffin in pursuit. Webb later noticed that Buhr had left. Webb then heard a muffled baby’s cry.

While at the hospital with her father, Buhr called home to let Griffin know that she was on her way home. Buhr heard Anthony crying in the background. Buhr returned home about two hours after she had left. When Buhr returned, she saw Griffin choking Anthony, whose body was discolored and swollen. Buhr put Anthony on her bed and went into the bathroom, where she saw a hole in the wall above the toilet and that the bathroom was covered in blood. When Buhr asked Griffin what he had done, he replied that he had thrown Anthony through the wall, beat him, burned his genitals with a blow dryer, and shoved ice cubes up his rectum.

Downstairs, Webb realized that Buhr had returned home because she heard Griffin and Buhr yelling and fighting again. Webb became worried by the situation and called the police. In the meantime, Buhr called a nurse hotline. Buhr and Griffin told the nurse that Anthony had choked on some milk, but was now alert and breathing fine. They also told the nurse that Anthony suffered from allergies, that he had played at a house with mold in it earlier that day, and that he had suffered from a cold earlier in the week. The nurse heard knocking on the door, and Griffin told her that the police were there. The nurse instructed Griffin on how to treat Anthony based on the symptoms he had described, and the call ended.

Officer Brian Newsome (“Newsome”) responded to Webb’s 911 call and arrived at Griffin’s apartment around 2:42 a.m. on June 6, 2002. Newsome told Griffin that he was investigating a noise complaint. Griffin told Newsome that Buhr was upset because her father had had a stroke and was in the hospital. Buhr told Newsome the same story and apologized for being loud. Buhr later admitted that she did not tell Newsome about Anthony because she was scared and was trying to protect Griffin. Newsome believed Buhr at the time because she did not appear to be afraid of Griffin. Newsome offered his assistance, which the couple declined. Buhr then helped Griffin clean up the bathroom, putting the bloody towels and Griffin’s shirt in the washing machine.

Anthony’s labored breathing continued, but Buhr did not call 911 until Anthony was in cardiac arrest. Buhr told the 911 operator that Anthony was not breathing and was having an allergic reaction. When paramedic Joelle Wright (‘Wright”) arrived, she found Anthony lying on the floor in a diaper with Griffin standing over him. Anthony was taken down to the ambulance. Wright had been informed that Anthony had had an allergic reaction, but when she began Anthony’s intubation, she noticed that his airway was not swollen. Wright recalled that Griffin and Buhr were calm.

Newsome was called back to the apartment and arrived as the paramedics were taking Anthony out of the apartment. Griffin told Newsome that Anthony had swallowed a tooth, and Buhr said nothing.

Wright also observed Anthony while he was being treated later in the emergency room. Wright noticed that Anthony had multiple bruises and that he had blood in his diaper and abrasions around his penis and scrotum. Anthony also had a purple scar on his ankle. Wright recalled that when she touched Anthony’s face, she felt air, which can be caused when the sinus is broken.

At the hospital, other police officers tried to question Buhr, but each time Griffin would interrupt and speak for her. Griffin told the officers that Anthony had woken him up with his wheezing, that he had called the nurse for advice, and that he had laid on the couch with Anthony to monitor his breathing. Buhr never corrected Griffin’s statement. The officers at the hospital also testified that Buhr did not show signs of being distressed by Griffin. Buhr had the opportunity to speak with police, but she never told them that her son had been abused. When Anthony was transported to a different hospital, Griffin was taken into custody for questioning.

Anthony was transported to Children’s Mercy Hospital. Emily Reavey (“Reav-ey”) was Anthony’s bed nurse at Children’s Mercy Hospital. Reavey recalled that Anthony’s face, eyes, and lips were very swollen. Anthony was transferred to the intensive care unit where Dr. Tiffany Johnson took over Anthony’s case. Dr. Johnson noted that Anthony was unresponsive at that time. Anthony had sustained significant injuries to his mouth, scrotum, penis, and rectal area. Anthony had a hole punctured in his lungs and bruises of different ages all over his body, including areas such as his inner thighs and shoulders, which are rarely injured except in cases of abuse. Anthony was missing a tooth, and his gums were torn. Dr. Johnson noted that Anthony had two separate injuries to his genital area. The tip of Anthony’s penis and parts of Anthony’s scrotum had been burned recently. Anthony also had an older injury to his scrotum. Dr. Johnson stated that Anthony’s scrotum had been hit with such force that a large pool of blood had developed within the scrotal sac, which had produced enough pressure that the sac burst producing a large hole. Anthony also had a partially healed cigarette burn on the instep of his foot. Dr. Johnson testified that she was certain that Anthony’s injuries were inflicted at different times.

Buhr went to the police station and was interviewed by police at around 7:30 a.m. on June 6, 2002. Buhr was asked why she did not notify the nurse hotline service that Anthony was being abused. Buhr responded that “sometimes you don’t want it fixed. It’s too bad enough that you don’t want the doctor to look at it.” Buhr also stated that, “she didn’t want to end up with Frank again,” and that Griffin “helped her get away from Frank.” Buhr admitted that she had seen bruises on Anthony’s back and buttocks in the past. Buhr was unable to answer whether she loved Griffin or her children more.

Anthony died on June 7, 2002, due to a lack of oxygen to his brain, which was caused by swelling that could have been prevented had he received immediate medical attention after he was injured.

Buhr requested another interview with police on June 7, 2002. Buhr admitted that she had seen large bruises on Anthony’s back in March, that she had seen Griffin hit Anthony and William with a belt once, and that she had seen a cut around Anthony’s neck “a while back.” When Buhr viewed pictures of Anthony taken at the hospital, she admitted that some of his injuries were old and some were new and that she had heard Anthony crying in the background when she had called Griffin from the hospital while visiting her father. Buhr told police that Griffin had never threatened her and that she felt safe talking to the police freely. Buhr also stated that “this is lookin’ bad on me already,” and “you guys ... are gonna throw me into jail for nuthin’.”

Anthony’s autopsy was performed by Dr. C. Chase Blanchard on June 8, 2002. Dr. Blanchard noted Anthony’s internal anal injuries and stated that they could only have been caused by severe force. Dr. Blanchard also noted that Anthony had both old and new injuries on his head. Anthony’s brain was discolored and swollen. Upon observing Anthony’s neck muscles, Dr. Blanchard concluded that Anthony had been manually strangled.

Police interviewed Buhr a third time on June 8, 2002. Buhr admitted that Anthony had a scar under his chin that was caused by Griffin, that she had seen bruises on Anthony’s back the Tuesday before he died, and that his lips were injured on the Monday before he died but that he was not missing any teeth at that point. Buhr told police that Griffin had told her that he had slipped in the bathroom and pushed a hole in the wall with his elbow, and that he had placed signs in front of the hole. Buhr then accompanied Officer Brent McHenry (“McHenry”) to her residence and consented to a search of her apartment. While McHenry was collecting evidence, Buhr handed McHenry a brown belt and a bloody sock that were hidden under her mattress.

Police obtained an arrest warrant for Buhr on June 18, 2002. Buhr was taken to the police station, read her Miranda rights, and interviewed again. Buhr repeatedly said that she did not want to admit anything and that she was scared to say too much because she did not want to implicate herself. Buhr admitted that she lied about her role in helping Griffin clean up the bathroom and about Griffin telling her that he had put his elbow through the bathroom wall. Buhr said that she lied because she was trying to protect herself and that if she did tell the truth, she would end up in jail with Griffin. Buhr also reaffirmed her previous statement that Griffin had never threatened her or hit her. Buhr admitted that she knew she was not supposed to have unsupervised visits with her children because of the abuse Anthony had suffered in the past. Buhr said, “[s]ee, that’s another thing that’s goin’ to implicate me too ... that I knew that he was doin’ this.” Buhr also admitted that she knew that Griffin had abused her son the night he was taken to the hospital, that she saw Anthony’s blood in the bathroom, and that she saw his genitals that night before she ever called the police. Buhr said that she did not call 911 because she knew the police would respond and she was trying to protect Griffin. Buhr said that she wanted to be with Griffin. Buhr also admitted that she knew that Griffin had kicked Anthony in the scrotum. Buhr said that, “there’s a certain point where you go to protect your children and then there’s a certain point when you’re in a situation where you don’t know what to do.” Buhr told police that Griffin did not like Anthony and that Griffin targeted Anthony because Anthony could not talk yet. Finally, Buhr admitted that she allowed the abuse and concealed the evidence because she loved Griffin and was afraid of losing him.

Buhr’s trial began on January 26, 2004. Following the presentation of the State’s case, Buhr filed a motion for judgment of acquittal, which was overruled. Buhr did not present any evidence. After deliberation, the jury returned a guilty verdict on all counts. Buhr filed a second motion for judgment of acquittal, which was also overruled. Buhr was sentenced to a term of thirty years for murder in the second degree, and to terms of four years for each of the remaining four convictions with the sentences to run concurrently.

On appeal, Buhr claims that the trial court erred in overruling her two motions for judgment of acquittal and in sentencing her for Count III, endangering the welfare of a child in the first degree, because the State did not prove beyond a reasonable doubt that Buhr’s act of allowing Griffin to have contact with Anthony on or about June 6, 2002, would result in an “actual” risk to Anthony’s life, body, or health or that Buhr “knowingly” created that risk. Buhr does not appeal her convictions on the other counts.

Standard of Review

In a challenge to the sufficiency of evidence at trial, this court’s role is limited to a determination of whether the State presented sufficient evidence from which a reasonable trier of fact could have found Buhr guilty beyond a reasonable doubt. State v. Langdon, 110 S.W.3d 807, 811 (Mo.banc 2003). A conviction must be based on proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the defendant is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970).

In reviewing a challenge to the sufficiency of evidence, this court views the evidence and all reasonable inferences from the evidence in the light most favorable to the verdict and disregards any evidence and inferences to the contrary. State v. Belton, 153 S.W.3d 307, 309 (Mo.banc 2005); State v. Grim, 854 S.W.2d 403, 413-14 (Mo.banc 1993). This court neither weighs the evidence, State v. Edwards, 116 S.W.3d 511, 545 (Mo.banc 2003), nor determines the credibility of witnesses. State v. Dulany, 781 S.W.2d 52, 55 (Mo.banc 1989). It is within the jury’s discretion, as the trier of fact, “to believe all, some, or none of the witness’ testimony in arriving at [its] verdict.” Id.

Argument

Buhr claims on appeal that the trial court erred when it overruled her two motions for judgment of acquittal. Buhr argues that the State did not prove beyond a reasonable doubt that her act of allowing Griffin to have contact with Anthony on or about June 6, 2002, would result in an “actual risk” to Anthony’s life, body, or health or that she knowingly created that risk. We find that there was sufficient evidence to support the jury’s conclusion that Buhr’s actions on June 6, 2002, resulted in an actual risk to Anthony’s life, body, or health. We also find that there was sufficient evidence to support the jury’s conclusion that Buhr knowingly created that risk. Thus, the trial court did not err in overruling Buhr’s motions for judgment of acquittal. Because there was sufficient evidence for the jury to convict Buhr of this charge, the trial court also did not err in sentencing Buhr for endangerment of a child in the first degree.

Missouri’s child endangerment statute provides that “[a] person commits the crime of endangering the welfare of a child in the first degree if: (1) The person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old[.]” § 568.045.1(1). “A person ‘acts knowingly’, or with knowledge ... [w]ith respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.” § 562.016.3(2).

The “Endangering Welfare of Child, 1st Degree” charge against Buhr at issue in this appeal stated that “on or about June 6, 2002, in the County of Jackson, State of Missouri, the defendant knowingly acted in a manner that created a substantial risk to the life and body and health of [Anthony] (DOB 12/01/1998), a child less than seventeen years old, by allowing Bryon Griffin to have contact with [Anthony] after defendant believed that Bryon Griffin had previously physically abused [Anthony].”

1. Actual Risk

The State must prove that there was “an actual, as opposed to a potential risk, to the life, body, or health of the child,” which is a “fact specific determination and requires an analysis of the facts in each case.” State v. Burrell, 160 S.W.3d 798, 802 (Mo.banc 2005).

The facts in this case clearly establish that Buhr created a substantial and actual risk to Anthony. Buhr observed the interaction between Griffin and Anthony for a significant period of time. In fact, Griffin and Anthony lived in the same residence intermittently for several months before Anthony’s murder. Griffin was left alone with Anthony under his sole supervision on several occasions. Buhr was aware that Griffin was abusing Anthony during this time. In fact, Anthony was taken out of her custody for that specific reason and given to his father. The abuse was so frequent that between February 2002 and June 2002, Anthony: (1) suffered an injury to his testicles that required surgery; (2) underwent three or four more surgeries when the tube that had been inserted into his testicle mysteriously fell out after having been at Griffin’s apartment; (3) suffered multiple bruises, black eyes, and missing clumps of hair that were observed by two other parties; (4) was beaten with a belt and cut around his throat as admitted by Buhr; and (5) was tortured and fatally injured on June 6, 2002. Buhr admitted that she knew that Griffin did not like Anthony and that he targeted him for abuse because he could not talk yet. Buhr also admitted that she knew Griffin had injured Anthony on Monday, June 3, 2002, and Tuesday, June 4, 2002, just days before his death.

Buhr tries to distinguish her case from others by pointing out that she was charged for a conduct on or about a specific date as opposed to a range of time. Buhr argues that this means that the State would have to prove beyond a reasonable doubt that Anthony was practically certain to sustain injury on or about June 6, 2002.

However, in Burrell, the Missouri Supreme Court found that there was sufficient evidence of actual risk to the child on the specific date in question, partly because the father was known to have abused the child in the past, and partly because the father had abused the child earlier that day. Id. In the present case, Griffin was known to have abused Anthony frequently in the past, including the days leading up to Anthony’s death. Buhr also knew that Griffin targeted Anthony and that Griffin was angry when she left Anthony with him while she visited her father in the hospital.

We find that there was sufficient evidence of an actual risk to Anthony on any given day that he was in contact with Griffin, including June 6, 2002. The danger to Anthony did actually exist. It was not a potential risk just because Griffin had the free will to refrain from abusing Anthony when he chose to. Griffin also had the free will to abuse Anthony every day he had contact with Anthony. Buhr admitted that Griffin had injured Anthony on Monday, June 3, 2002, and Tuesday, June 4, 2002, before his death on June 7, 2002. Furthermore, on June 6, 2002, Anthony was at greater risk because Griffin was already agitated as evidenced by Webb’s testimony that she heard Griffin and Buhr yelling and fighting before Buhr left the apartment that night and by Buhr’s admission that she knew Griffin was angry that night. Buhr also heard Anthony crying in the background when she called Griffin from the hospital while she was visiting her father. There was sufficient evidence for the jury to find that there was an actual risk to Anthony’s life, body, or health on or about June 6, 2002.

2. Knowledge

Buhr claims that the State did not prove beyond a reasonable doubt that she acted knowingly in creating the risk to Anthony. “A person ‘acts knowingly,’ or with knowledge ... [w]ith respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.” § 562.016.3(2). Therefore, the State must prove that Buhr was aware that her conduct of leaving Anthony with Griffin on or about June 6, 2002, was practically certain to cause substantial risk to Anthony’s life, body, or health. In determining whether a person knowingly created a substantial risk, we look to the totality of the circumstances. Burrell, 160 S.W.3d at 802. The State can prove knowledge through “direct evidence and reasonable inferences drawn from the circumstances surrounding the incident.” Id.

There was sufficient evidence for the jury to find that Buhr was aware that her conduct was practically certain to cause substantial risk to Anthony’s life, body, or health. The visible appearance of a child can give notice to the parents that their child is being abused or needs medical attention. State v. Gaver, 944 S.W.2d 273, 277 (Mo.App. S.D.1997). Anthony had visible bruises, a black eye, and missing clumps of hair that two witnesses noticed in the months before his death. The witnesses testified that these injuries did not start appearing until after Anthony started living with Griffin. Anthony’s testicles were injured while at Griffin’s apartment in February 2002, and the tube that was later inserted into his testicle mysteriously fell out three or four times while at Griffin’s apartment, requiring further surgeries. These injuries put Buhr on notice that her child was being abused. In addition, Buhr later admitted to police that she knew Griffin was abusing Anthony, but she did not report the abuse because she loved Griffin and did not want him to get into trouble. Buhr admitted to knowledge of other injuries that had not been reported by the other two witnesses. At one point, William and Anthony were removed from Buhr’s custody specifically because of the abuse Anthony was suffering. Buhr admitted that Griffin had injured Anthony on June 3, 2002, and June 4, 2002, before his death on June 7, 2002. Buhr also heard Anthony crying when she called Griffin from the hospital where she was visiting her father on June 6, 2002. Buhr should have been aware that there was a substantial risk that Griffin could injure her son at any given time, including June 6, 2002, and that her conduct on that day was practically certain to cause that risk.

It is clear that Buhr was conscious of her guilt. Buhr’s statements to the police evidenced that she was afraid of going to jail and afraid of getting Griffin in trouble. Buhr helped Griffin dispose of evidence. Buhr also failed to report the abuse in the months before Anthony’s death because she knew it was so severe that she feared getting Griffin in trouble. Buhr failed to report the truth about Anthony’s murder to police until June 18, 2002.

Conclusion

Thus, the jury could have reasonably found Buhr guilty of endangering the welfare of a child in the first degree in violation of section 568.045. There was sufficient evidence for the jury to find beyond a reasonable doubt that Buhr’s actions on June 6, 2002, would result in an actual risk to Anthony’s life, body, or health and that Buhr knowingly created that risk. For the foregoing reasons, the judgment of the trial court is affirmed.

SMART and NEWTON, JJ., concur.

      . Statutory references are to Revised Statutes of Missouri 2000, unless otherwise noted.


author: PER CURIAM.

text:
    In the Interest of R.J.M., B.M.M., D.J.M., Plaintiff. Juvenile Officer, Respondent, v. R.D.M. (Father), Appellant, R.H. (Mother), Defendant.
    Nos. WD 64947, WD 64948, WD 64949.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Frederick P. Tucker, Macon, MO, for appellant.
    James D. McConnell, Shelbyville, MO, for respondent.
    Susan R. Barrow, Macon, MO, for R.J.M., B.M.M., and D.J.M. and Guardian.
    Jill R. Creed, Macon, MO, for defendant.
    Before: HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

R.D.M. (Father) appeals from the judgments terminating parental rights to his sons, R.J.M. and D.J.M. Upon review of the record, we find the judgment is supported by evidence of Father’s abuse and neglect, and that the termination was in the best interest of the children. The judgment is affirmed.

We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Kevin C. COLE, Appellant.
    No. WD 64509.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Sarah Weber Patel, Appellate Defender Office, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Maekelprang and Evan Buch-heim, Office of Attorney General, Jefferson City, for respondent.
    Before LISA WHITE HARDWICK, Presiding Judge, PATRICIA A. BRECKENRIDGE, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Kevin C. Cole appeals the circuit court’s judgment convicting him of burglary in the first degree and domestic assault in the first degree. We affirm. Rule 30.25(b).


text:
    Joseph F. ROSS, Appellant, v. ESTATE OF Roger COHEN, et al., Defendants, National Depository Corporation, Respondent.
    No. WD 64364.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Steven A. Ediger, Kansas City, MO, for appellant.
    James T. Wiglesworth, Overland Park, KS, for respondent.
    Patrick J. Doran, Greer S. Lang, Kansas City, MO, Ronald C. Rundberg, Overland Park, KS, for defendants.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Summary judgment was granted to an intervenor in a Missouri action who had foreclosed on a partnership interest in a previous judgment in Kansas. Appellant sought to preclude application or recognition of Kansas judgment. The trial court granted summary judgment based on application of full faith and credit clause of United States Constitution. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Delmonte M. WILSON, Appellant.
    No. WD 64263.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Ruth Sanders, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Delmonte M. Wilson was convicted after a bench trial on two counts of robbery in the first degree, § 569.020, RSMo 2000, two counts of armed criminal action, § 571.015, RSMo 2000, and one count of tampering in the first degree, § 569.080, RSMo 2000. He argues on appeal that there was insufficient evidence to support the robbery and armed criminal action convictions. For reasons stated in the memorandum provided to the parties, we affirm. Rule 30.25(b).


author: JEFFREY W. BATES, Chief Judge.

text:
    Brenda HEIDRICK, Plaintiff-Appellant, v. Harold SMITH and Shirley Smith, Defendants-Respondents.
    No. 26197.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 16, 2005.

      Abe R. Paul, Pineville, MO, for appellant.
    William J. Lasley, Peter J. Lasley, Carthage, MO, for respondents.
   JEFFREY W. BATES, Chief Judge.

On June 24, 2001, Brenda Heidrick (“Heidrick”) was driving home in her blue 1994 Ford Mustang on Y Highway in Newton County, Missouri. As she approached the farm of Harold and Shirley Smith (hereinafter referred to collectively as “the Smiths” and individually as “Mr. Smith” or “Mrs. Smith”), Heidrick’s automobile collided with one of the Smiths’ calves that was on the highway. Heidrick’s car was damaged in the collision, and she sustained injuries to her neck, shoulder and arm.

In October 2002, Heidrick sued the Smiths. The petition alleged that the Smiths were negligent in permitting their calf to be on the roadway. In the Smiths’ answer, they alleged that Heidrick was herself negligent because, inter alia, “[s]he failed to keep a careful lookout for objects in front of her.... ”

In February 2004, the case was tried to a jury. At the Smiths’ request and over Heidrick’s objection, the trial court decided to give Instruction No. 7, which is set out in full below:

Instruction No. 7
In your verdict, you must assess a percentage of fault to plaintiff if you believe:
First, plaintiff failed to keep a careful lookout and
Second, plaintiff was thereby negligent and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.
The term “negligent” or “negligence” as used in this instruction means the failure to use the highest degree of care. The phrase “highest degree of care” means that degree of care that a very careful person would use under the same or similar circumstances.

The jury returned a verdict assessing 20% of the fault to the Smiths and 80% of the fault to Heidrick. The jury also determined that Heidrick had sustained total damages of $60,000 for personal injuries and $15,000 for property damage. After the verdict was rendered, however, the trial court reduced Heidrick’s award for property damage to $3,000 because the pleadings and proof would not support a larger award. The court entered judgment in Heidrick’s favor in the amount of $12,600.

Heidrick has appealed from the judgment. In her sole point relied on, she contends the trial court erred in giving Instruction No. 7 because it was not supported by substantial evidence. Specifically, Heidrick argues there was no credible evidence that she had the time and distance to have seen the calf, reacted to it, and either swerved or stopped in time to avoid the collision.

I. Standard of Review

It is axiomatic that any issue submitted in an instruction must have evi-dentiary support; “the submission of any proposition without sufficient evidentiary foundation is error.” Oldaker v. Peters, 817 S.W.2d 245, 251 (Mo. banc 1991). “Appellate review is conducted in the light most favorable to the submission of the instruction, and if the instruction is supportable by any theory, then its submission is proper.” Id. at 251-52. Thus, in determining whether Instruction No. 7 should have been submitted, we view the evidence and the reasonable inferences derived therefrom in a light most favorable to the Smiths, who offered the instruction. Barlett v. Kansas City Southern Ry. Co., 854 S.W.2d 396, 399 (Mo. banc 1993); Maxwell v. City of Hayti, 985 S.W.2d 920, 922 (Mo.App.1999). We disregard all contrary evidence and inferences. Oldaker, 817 S.W.2d at 252; Maxwell, 985 S.W.2d at 922. Consequently, we will ignore Heidrick’s evidence unless it tends to support the submission of Instruction No. 7. Riscaldante v. Melton, 927 S.W.2d 899, 901 (Mo.App.1996). The favorable evidence and inferences bearing on Heidrick’s alleged failure to keep a careful lookout are set forth below.

II. Summary of the Evidence

The Smiths raised beef cattle on 40 acres of land in Newton County, Missouri. Their farm was comprised of two parcels of land, which were divided by Y Highway. In the balance of this opinion, we will refer to these two tracts of land as “the west tract” and “the east tract.” The west tract consisted of 10 acres and lay on the west side of the highway. The east tract, which is L-shaped, consisted of 30 acres and lay on the east side of the highway. The portions of the west tract and east tract that abut Y Highway were directly across from one another. Each tract had fenced areas inside which beef cattle were kept.

The west tract contained two residences. The Smiths lived in one residence, which was located on the southern part of the west tract. Their son and daughter-in-law, Travis and Cindy Smith (“Travis” and “Cindy”), lived in another residence, which was located on the northern part of the west tract. The Smiths’ other son and daughter-in-law, Tracy and Candy Smith (“Tracy” and “Candy”), lived in a residence located on the east tract. This residence was inside the fenced portion of the east tract. The driveway leading to Tracy’s house was equipped with a cattle guard to keep the animals inside the fencing. The driveway leading to the Smiths’ residence was located on the opposite side of the highway a short distance south of Tracy’s driveway.

An aerial map of the land including and surrounding the Smiths’ farm was introduced in evidence. A person traveling south on Y Highway would round a small curve just at the northern boundary of the Smiths’ farm. From that point onward, the portion of highway running between the west tract and the east tract ran straight south. As a driver approached Tracy’s driveway, there was a small dip in the road. This dip existed because the road sloped gently uphill and traveled though a small depression in the terrain. Thus, a driver traveling south on Y Highway and approaching the Smiths’ farm would round the curve, proceed straight south, go over a “little hump” in the road and then continue southward past the Smiths’ property.

The trial court admitted a number of photographs showing this hump in the road from vantage points both north and south of its location. These photographs show that the hump was not large enough to obstruct a driver’s view of objects the size of a car or a cow on the highway. For example, Exhibit F was taken by a photographer standing well north of the hump in the road and depicts the view looking toward the south. The photograph shows a pickup truck traveling in the northbound lane. The truck is located well south of the hump at a location considerably past Tracy’s driveway. All of the truck from its front bumper upwards is visible in the photograph. Thus, the photographs in evidence demonstrate that a person driving an automobile south on Y Highway could see over the top of the little hump in the road and detect large objects considerably farther south on the road.

On June 23, 2001, Tracy and Mrs. Smith moved a group of calves from the east tract to the west tract in order to wean them. These calves weighed 350 to 400 pounds. They were placed in a cattle trailer, driven across Y Highway onto the west tract, and released into the field.

The day after the calves had been moved onto the west tract, the accident took place. At approximately 8:30 p.m. on June 24, 2001, Travis and Cindy were standing on their porch with Cindy’s brother, Jeremy Heidrick. Tracy was sitting on a four-wheeler in their yard, facing toward the west. As the four persons were having a conversation, Cindy noticed that one of the Smiths’ black calves had gotten out and was on the highway. She told Travis and Tracy, who looked toward the road and also saw that the calf was out. Although it was close to dark, the 350-pound calf could be easily and plainly seen. It was standing in the middle of the road next to Tracy’s driveway. The distance from the calf to the porch was approximately 170 feet. Travis and Tracy immediately started after the calf so they could put it back in the pasture. Travis ran toward the road on foot, and Tracy turned his four-wheeler around and drove toward the road.

The collision took place only seconds after Cindy first saw the calf was out. Cindy, Travis and Tracy all watched Heid-rick’s vehicle hit the calf. She testified that “[Heidrick] came around the curve up in front of our house, and I looked at [Jeremy] and said, my God, she’s going to hit it.” Heidrick then hit the calf before Travis or Tracy could reach the animal. The impact occurred right at Tracy’s driveway. When the calf was struck, it was standing in nearly the same spot where Cindy had first seen it. None of the Smiths’ witnesses observed Heidrick brake or swerve before she hit the calf.

The calf sustained no serious injuries in the collision. After the animal was struck, it jumped over the cattle guard and reentered the east tract. Travis testified that, from the point where the calf was struck, he could “see in a straight line unobstructed to the north on Y Highway” a little more than 500 feet.

Heidrick testified that she lived about 1½ miles west of the Smiths’ farm. Heidrick drove on Y Highway twice a day as she traveled to and from work. On the evening of June 24th, Heidrick was on her way home. The weather was clear, and the asphalt roadway was dry. She rounded the curve just north of the Smiths’ farm and headed south on Y Highway at about 50 miles per hour. As she topped the little hump in the road near Tracy’s driveway, she struck something. For a moment, she did not know what she had hit. Heidrick testified, however, that “when I turned around and looked I could see the black calf.” Although Heidrick admitted that the calf had to have been in the middle of the road at the moment of impact, she “didn’t see it.” Heidrick conceded that she did not attempt to brake or swerve prior to hitting the calf. After the collision, she pulled into the Smiths’ driveway and parked her car. Photographs of the damage to her car were admitted in evidence. These pictures show that Heid-rick’s vehicle basically sideswiped the calf. The impact dented the top of the left fender, cracked the left corner of the windshield and knocked the driver’s side mirror off of the car.

At the conclusion of the Smiths’ case, they asked the trial court to take judicial notice of the reaction times and braking distances in a chart contained in the Missouri Driver’s Guide. The trial court agreed to do so and took judicial notice of the fact that an automobile traveling at 55 miles per hour can be brought to a complete stop in 255 feet. That figure is derived from adding 121 feet of reaction time to 134 feet of braking distance.

III. Discussion and Decision

The sole issue for decision is whether the trial court should have submitted Instruction No. 7, the Smiths’ comparative fault instruction. Heidrick contends the instruction lacked evidentiary-support because there was no “credible evidence” that she had the time and distance to have seen the calf, reacted to it, and either swerved or stopped in time to avoid the collision. We begin by noting that it is not our function to weigh the evidence or assess the credibility of witnesses. The evidence in this case was conflicting on many matters, including the issues of the Smiths’ liability and Heid-rick’s comparative fault. “We are not permitted to second-guess whom the jury chooses to believe, as this court leaves both the issue of credibility and the weight to be afforded conflicting evidence to the jury.” Smith v. State, 148 S.W.3d 330, 336 (Mo.App.2004). “The jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony.” Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 682 (Mo. App.2002). Thus, our role is limited to determining whether the evidence and reasonable inferences derived therefrom, when viewed in a light most favorable to the jury’s verdict, are sufficient to support the Smiths’ theory that Heidrick was partly or wholly at fault for failing to keep a careful lookout as submitted in Instruction No. 7.

This Court’s decision in Wiskur v. Johnson, 156 S.W.3d 477 (Mo.App.2005), contains a concise summary of the law concerning the submission of a lookout instruction which we find apropos:

The essence of the lookout instruction is a failure to see and a failure to act. The failure to see involves a motorist’s failure to become aware of other motorists, pedestrians, or objects that present a dangerous situation, and the failure to act is the motorist’s failure to take precautionary action to avoid that danger. In other words, “The ‘lookout’ duty requires motorists to exercise the highest degree of care to discover the presence of other persons and objects upon the streets and highways and to become aware of dangerous situations and conditions.” For a lookout submission to be proper, substantial evidence must show that the breach of that duty was the proximate cause of the accident. The proper test of failure to keep a careful lookout as the proximate cause is whether the driver of the colliding vehicle, exercising the highest degree of care, could have seen the other vehicle in time to have taken effective precautionary measures to avoid the accident.

Id. at 480 (citations and footnote omitted). The disposition of this appeal, then, depends on our answer to the following question: by exercising the highest degree of care, could Heidrick have seen the Smiths’ calf on the road in time to take effective precautionary measures to avoid the collision?

We first address the question of whether sufficient evidence was presented to create a jury question on the issue of Heidrick’s ability to have seen the calf on the road prior to the collision. We believe there was. Cindy testified that the collision occurred at 8:30 p.m. At that time of day, the sun had not yet set. Cindy, Travis and Tracy all testified that they could easily and plainly see the 350-pound calf standing in the middle of the road, just seconds before the collision took place, from a distance of approximately 170 feet away. The animal remained standing in approximately the same place on the road until it was hit by the car. Tracy testified that, at the point where the impact occurred, the view to the north was unobstructed for a distance of over 500 feet. Moreover, these witnesses were able to see Heidrick’s dark blue Mustang as soon as it rounded the corner. At that point, the car was well over 500 feet away. They then watched the car as it approached and struck the calf. Finally, although Heidrick denied seeing the calf before she hit it, she admitted that she was able to see the calf in the road immediately after the collision when she turned around and looked back in that direction. Based on this testimony, there was sufficient evidence for the jury to infer that Heidrick could have seen a 350-pound black calf standing in the middle of the highway at least 500 feet before she hit the animal.

We next address the question of whether sufficient evidence was presented to create a jury question on the issue of Heidrick’s ability to take precautionary measures to avoid the collision. We believe there was. Heidrick’s view of the road was unobstructed for a distance of over 500 feet as she approached the point of impact. During that entire time, the calf was clearly visible, standing in the middle of the road. Heidrick could have reacted to the danger, applied her brakes, and brought her car to a complete stop in less than 255 feet. Therefore, the jury could have inferred that Heidrick had ample time and distance to avoid the collision by stopping her vehicle before she struck the calf. Alternatively, the evidence unequivocally established Heidrick’s car basically sideswiped the calf, which was standing in the middle of the road when it was hit. “The mobility of a car and the quickness with which it may be swerved is a matter of common knowledge.” Smiley v. Farmers Ins. Co., Inc., 749 S.W.2d 711, 713 (Mo.App.1988). Given the glancing nature of the impact, the jury could have inferred that Heidrick had the ability to avoid the collision by swerving, or slowing and swerving, her car enough to miss the calf.

In conclusion, Heidrick’s comparative fault was vigorously disputed, and the evidence relevant to this affirmative defense was in conflict. Accordingly, it was up to the jury to decide whether Heidrick was negligent for failing to keep a careful lookout. Rickman v. Sauerwein, 470 S.W.2d 487, 489 (Mo.1971) (negligence is ordinarily a question for the jury, and it always is when the evidence on the issue is conflicting). That being the case, we are bound by the jury’s determination because “the weight and credibility of the evidence to support the verdict in favor of the defendants] is not an open question in this court.” Richardson v. Moreland, 435 S.W.2d 335, 337-38 (Mo.1968).

Heidrick’s point on appeal is denied, and the judgment of the trial court is affirmed.

PARRISH, P.J., and SHRUM, J., Concur.

      . Since several witnesses share the defendants’ surname, we will use the witnesses’ given names for purposes of clarity. No disrespect is intended.

      . All time references in this opinion refer to Central Daylight Saving Time.

      . We may take judicial notice of the time that the sun sets on the date and at the place of an accident. Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790, 792 (Mo.App. 1978). According to data from the United States Naval Observatory, the sun set in Neo-sho, Missouri, on June 24, 2001 at 8:41 p.m.

      . Heidrick’s testimony that she did not see the calf prior to impact does not preclude the submission of the Smiths’ lookout instruction. The pertinent inquiry is whether she reasonably could have seen the calf on the road, not whether she actually did so. Riscaldante v. Melton, 927 S.W.2d 899, 902 (Mo.App.1996). A driver "is held to have seen what looking would have revealed and failure to do so is negligence as much as if he had not looked at all.” Countryman v. Seymour R-II School Dist., 823 S.W.2d 515, 517 (Mo.App.1992).


text:
    Ronald F. DRISKELL, Petitioner-Appellant, v. DIRECTOR OF REVENUE, Respondent-Respondent.
    No. 26507.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 17, 2005.
    Staci Birdsong McNally, Lake Ozark, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Diane F. Peters, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Ronald Driskell (“Driskell”) appeals from a judgment sustaining the revocation of his driver’s license by the Director of Revenue (“Director”), pursuant to § 577.041 for refusing to submit to a chemical test of his blood alcohol content. We affirm.

On March 7, 2004, Driskell was arrested for driving while intoxicated by Richland police officer Kimbly Elrod (“Officer El-rod”). Officer Elrod read Driskell the implied consent warning mandated by § 577.041.1, but Driskell refused to submit to a breathalyzer test. On the Director’s behalf, Officer Elrod issued Department of Revenue (“DOR”) form 4323 to Driskell. This form notified him that, effective March 22, 2004, his driving privileges would be revoked for one year for refusing to submit to a chemical test of his blood alcohol content.

As authorized by § 302.311 RSMo (2000) and § 577.041.4, Driskell filed a petition for review in the Circuit Court of Camden County, Missouri, on March 18, 2004. The trial de novo was held on April 26, 2004. Officer Elrod was present and testified about the circumstances which led to Dris-kell’s traffic stop, his subsequent arrest for driving while intoxicated and his refusal to submit to the breathalyzer test. A copy of Officer Elrod’s alcohol influence report, DOR form 2389, was admitted in evidence as Exhibit A. This exhibit established that: (1) Driskell was arrested; (2) Officer Elrod had reasonable grounds to believe that Driskell was driving a motor vehicle while in an intoxicated condition; and (3) Dris-kell refused to submit to a chemical test of his blood alcohol content. Although Exhibit A was not certified by the DOR, the document did prove that Officer Elrod signed the report before a notary. Officer Elrod testified that it was standard procedure for his clerk to mail alcohol influence reports to the Director by certified mail. Based on the “overwhelming evidence” presented by the Director, the court found that: (1) Driskell was arrested; (2) Officer Elrod had reasonable grounds to believe Driskell was driving a motor vehicle while in an intoxicated condition; and (3) Dris-kell refused to submit to a chemical test.

At trial, Driskell contended his revocation should be set aside because the Director faded to prove she had actually received the sworn alcohol influence report from Officer Elrod. Driskell argued that such proof is required because § 577.041.3 states that, “[u]pon receipt of the officer’s report, the director shall revoke the license of the person refusing to take the test for a period of one year....” The prosecutor argued that no such proof was necessary in order for the revocation to be valid, but he then said, “I have no objection to taking this under advisement, and we’ll provide the certified copy to the Court.” The judge agreed and gave the parties seven days to submit “anything you wish to submit to me” on that issue. At the close of the hearing, the judge stated: “Court grants seven days to submit that, at which time, the Court will deem this matter under advisement.” On April 28, 2004, the prosecutor filed certified copies of the Director’s records with the trial court. These certified records contain Officer Elrod’s sworn alcohol influence report on DOR form 2389.

On May 14, 2004, the trial court entered a judgment sustaining the revocation of Driskell’s driving privileges. In a docket entry made on that date, the trial court explained why it rejected Driskell’s argument concerning the officer’s sworn report:

Court having reviewed the evidence finds all issues in favor of Respondent. Court admitted into evidence exhibit A, the Alcohol Influence Report. The officer testified that he followed standard procedure to submit the report to the Director of Revenue.... Exhibit A admitted by this Court shows that the officer signed the report before a notary. The officer testified report was sent to DOR per normal office procedure. Unlike the case submitted by Petitioner Allen v. Director of Revenue, 59 S.W.3d 636 the officer testified as to facts regarding submitting report to DOR and Exhibit A contains his notarized signature. Therefore given the above Court finds arresting officer had reasonable grounds to believe Petitioner was driving motor vehicle while intoxicated & Petitioner refused to submit to a chemical test. Judgment entered for DOR.

This appeal followed.

Our standard of review on appeal is well-settled. We must affirm the trial court’s judgment unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) the trial court erroneously declared the law; or (4) the trial court erroneously applied the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); Laney v. Director of Revenue, 144 S.W.3d 350, 352 (Mo.App.2004).

In Driskell’s lone point, he argues that the judgment is unsupported by the evidence and that the tidal court misapplied the law because “there was no evidence presented to the Court that a sworn report was submitted to the director of revenue.” Driskell bases his argument on Allen v. Director of Revenue, 59 S.W.3d 636 (Mo. App.2001). We find this argument unpersuasive because: (1) at a trial de novo, the Director is not required to prove that she received a sworn report from the officer; and (2) in any event, Allen is factually distinguishable.

At Driskell’s Trial De Novo, the Director Was Not Required to Prove She Received Officer Elrod’s Sworn Report

Section 577.041.2 requires the officer to provide the Director with a “sworn report” which sets out the factual basis for revoking a person’s driving privileges, based on refusal to submit a chemical test of his or her blood alcohol content. Upon receipt of the officer’s report, the Director is required to revoke the person’s license. § 577.041.3.

If the person is aggrieved by the revocation, he or she may obtain a trial de novo in circuit court. § 302.311 RSMo (2000); § 577.041.4. The trial court is only authorized to decide three issues:

At the hearing the court shall determine only:
(1) Whether or not the person was arrested or stopped;
(2) Whether or not the officer had:
(a) Reasonable grounds to believe that the person was driving a motor vehicle in an intoxicated or drugged condition; ... and
(3) Whether or not the person refused to submit to the test.

§ 577.041.4. The Director bears the burden of proving these three elements. Hinnah, 77 S.W.3d at 620. If the Director fails to meet this burden as to any one of the required elements, the circuit court must order the Director to reinstate the person’s license or permit to drive. § 577.041.5. On appeal, we review the circuit court’s judgment; we do not review the Director’s administrative order. Dillon v. Director of Revenue, 999 S.W.2d 319, 321 (Mo.App.1999).

As this review of the relevant statutory scheme demonstrates, a person’s driving privileges can be administratively revoked if an officer’s sworn report provides the Director with the verified factual information required in § 577.041.2. The filing of a petition for review, however, causes the administrative action taken by the Director to become irrelevant because, at the trial de novo, the Director is required to replicate the verified facts originally supplied by the officer’s sworn report. In other words, the facts supporting revocation—first provided by the officer’s sworn report — must be proven by the Director a second time, in an appropriate evidentiary manner, at the trial de novo before the circuit court.

In Baker v. Director of Revenue, 151 S.W.3d 144 (Mo.App.2004), we recently addressed the issue of whether the Director must prove at the trial de novo that she received a copy of the officer’s sworn report. We held that no such proof is required in order for the revocation to be sustained:

[E]ven if the administrative action was void, we are constrained to find that pursuant to section 577.041.4 the court was limited to ascertaining (1) whether or not the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; and (3) whether or not the person refused to submit to the test. See Hinnah at 620. The inquiry ends once these three questions have been answered. Id. The issue raised by Appellant is not contemplated by the statute.... We do not believe Allen commands a different result, but if we have incorrectly analyzed the holding of Allen, we are bound by the latest authority from our Supreme Court in Hinnah v. Director of Revenue.

Id. at 147. Baker is controlling here. The issue Driskell advanced below was irrelevant at the trial de novo and cannot be reviewed by us on appeal.

Allen Is Factually Distinguishable

Assuming — without so holding — that Allen has any continued vitality after Hin-nah, Driskell’s argument still fails. In Allen, the appellate court specifically noted that “the only evidence presented by the director was the officer’s unsworn and unsigned report. The arresting officer did not testify at trial.... ” Allen, 59 S.W.3d at 639 (footnote omitted). We note two factual distinctions in the case at bar that render Allen inapposite.

First, the arresting officer did testify at Driskell’s trial de novo. Officer Elrod’s testimony provided the trial court with a sufficient evidentiary basis to find that Driskell was arrested, that Officer Elrod had reasonable grounds to believe Driskell had been driving a motor vehicle while intoxicated, and that Driskell refused to submit to a chemical test of his blood alcohol content. These are the only three issues the trial court was authorized to decide. § 577.041.4; Hinnah, 77 S.W.3d at 620; Baker, 151 S.W.3d at 147.

Second, there was no dispute in Allen that the officer’s report was unsworn and unsigned. Here, the trial court admitted Exhibit A, Officer Elrod’s alcohol influence report, in evidence. This exhibit proved Officer Elrod signed the report before a notary. Officer Elrod further testified that the report would have been sent to the Director by certified mail pursuant to standard departmental procedure. Even if we assume the foregoing evidence was insufficient to prove that the Director received Officer Elrod’s report, the trial court also left the record open and permitted the parties to file anything else they wanted to submit on the issue of whether receipt of a sworn report was required. Acting on this invitation, the prosecutor filed a certified copy of Driskell’s DOR records, which proved unequivocally that the Director had received Officer Elrod’s sworn report. Based on this evidence, the trial court found the Director did receive Officer Elrod’s sworn report. We defer to this factual finding on appeal. Baker, 151 S.W.3d at 147. Accordingly, Allen simply has no application here.

Driskell’s point on appeal is denied. The judgment of the trial court is affirmed.

SHRUM, P.J., and BARNEY, J., concur.

      . All references to statutes are to RSMo Cum. Supp. (2004), unless otherwise indicated.


author: JAMES K. PREWITT, Judge.

text:
    In re the MARRIAGE OF Joann E. MACOMB and Donald D. Macomb. Joann E. Macomb, Petitioner-Respondent, and Donald D. Macomb, Respondent-Appellant.
    No. 26683.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 22, 2005.

      James R. Sharp, Sharp & Bredesen, Springfield, MO, for appellant.
    Verna L. Haun, Douglas, Haun & Heid-emann, P.C., Bolivar, MO, for respondent.
   JAMES K. PREWITT, Judge.

Donald D. Macomb (“Appellant”) appeals a ruling from the trial court denying his motion to set aside a default judgment and decree of dissolution of marriage granted to Joann E. Macomb (“Respondent”).

Appellant received a petition and summons regarding the dissolution of marriage on May 25, 2001. Appellant had discussed getting a divorce from Respondent, and Appellant made arrangements to be served with petition and summons prior to leaving for California for three weeks in his capacity as a truck driver. At the time of service, Appellant and Respondent lived together in Fair Grove, Missouri.

Appellant testified that he believed he had thirty days from the date when the hearing was set to file a response rather than thirty days from service. He testified he based this belief on a conversation he had with Respondent who told him that time to respond began once the date had been set. Appellant later testified that had he known the law, he would have filed his response before the thirty-day deadline.

Appellant admitted he “glanced” at the papers before handing them back to Respondent in the “ten-minute period” between being served and leaving for California. Respondent testified that, upon receiving the papers, Appellant said, “I’m not going to contest this” and “I’m not going to hire an attorney.” Respondent testified that Appellant had “under an hour” to read the papers before leaving, and he simply handed them to her before he left.

Appellant said that during the three-week period he was away, he communicated with Respondent “every day” regarding whether she had heard from the court. Respondent’s response was, “No, I haven’t heard a word.” Appellant returned one week prior to the dissolution hearing. Appellant testified that “less than an hour after” he returned, he began looking for the papers. He could not find the papers, and he said Respondent offered little detail about their location. Respondent testified that once Appellant returned, she insisted that he read the papers, but he kept saying, “I don’t want to look at them right now” and “Just put them away for me.”

Appellant testified that on the morning of the dissolution hearing, he asked Respondent “why she was getting ready for work so early.” Respondent said she truthfully answered that she was “attending an associates’ meeting at Sears[,]” which was where she was employed at that time. He testified that he thought she was “too dressed up” for work.

On the afternoon of June 26, 2001, the trial court entered a judgment dissolving the marriage between Appellant and Respondent. Respondent appeared at the dissolution hearing. Appellant did not appear, and the court found him in default, noting he was “personally served thirty days prior to this date.” Respondent was awarded maintenance of $1900 per month, specifically listed non-marital and marital property, attorney fees totaling $1250, one-half of the interest in Appellant’s Teamsters pension, and a bank account. Appellant was awarded several items of non-marital and marital property. Respondent moved out of the marital home on July 7, 2001, without mentioning the dissolution hearing. On July 24, the trial court entered an Amended Judgment and Decree of Dissolution to add a monetary award of $8,669.

On August 13, 2001, Appellant called the Polk County Clerk’s office to determine if a date had been set for the dissolution hearing. The clerk responded, “You’re already divorced, Mr. Macomb.” Appellant then went to the circuit court clerk’s office and obtained a copy of the judgment. He filed a motion to set aside the judgment on August 21, 2001. On October 9, 2001, the trial court declined to set aside the judgment. Appellant filed a Notice of Appeal on November 14, 2001, which was dismissed by this court on October 15, 2003, because the ruling on his motion to set aside the dissolution was not a final judgment.

On November 12, 2003, Appellant filed a Motion to Enter Final Judgment for Purposes of Appeal, which was denied on December 11, 2003. A petition for a writ of mandamus ordering the trial court to enter a final judgment was filed by Appellant and granted by this Court on June 24, 2004. Thereafter, a hearing was held by the trial court on August 30, 2004. It denied his motion on October 18, 2004. The trial court entered an amended judgment on November 4, 2004, to correct the previous entry. Appellant filed a Notice of Appeal on December 2, 2004.

In his first point, Appellant contends the trial court erred in denying his Motion to Set Aside Amended Judgment and Decree of Dissolution under Rule 74.05(d) for failing to consider “substantial evidence.” Appellant cites Rule 74.05(d), which requires a default judgment be set aside for “meritorious defense and for good cause.” Respondent countered by alleging that “the trial court was free to disbelieve Appellant’s evidence” showing good cause on his part. Respondent further contended that the default judgment occurred as a result of Appellant’s “reckless conduct in allowing the default since he did not read the summons or petition and failed to hire an attorney until two months” after being served. Appellant asserts that this does not rise to the “recklessness” set by Rule 74.05(d).

Rule 74.05(a) states, in part: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, upon proof of damages or entitlement to other relief, a judgment may be entered against the defaulting party[.]”

Rule 74.05(d) states:

Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney’s fees and expenses incurred as a result of the default by the party who requested the default.

Whether a default judgment should be set aside is within the trial court’s discretion and will not be disturbed on appeal unless an abuse of discretion is found. In re Marriage of Williams, 847 S.W.2d 896, 900 (Mo.App.1993).

In an action to set aside a default judgment, the party must timely file a motion to set aside, show a meritorious defense and good cause for setting aside the default judgment. J.E. Scheidegger Co., Inc. v. Manon, 149 S.W.3d 499, 502 (Mo.App.2004). This good-cause requirement is satisfied by proving the party in default did not recklessly or intentionally impede the judicial process. Crowe v. Clairday, 935 S.W.2d 343, 345 (Mo.App. 1996).

Appellant says his reliance on Respondent’s notification of when the dissolution hearing would be held and the hiring of an attorney after learning of the dissolution hearing is proof of his good cause. Respondent contends she always truthfully answered Appellant’s questions. Appellant says he relied on Respondent in regard to his legal obligation in obtaining counsel. Respondent testified that Appellant said he was not going to hire a lawyer.

Respondent’s testimony regarding her husband’s questions does not match Appellant’s testimony. Appellant testified that he specifically asked Respondent whether “she had heard about a court date.” Respondent testified she always answered truthfully. The trial judge is in a better position than this court to determine the credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record. Crowe, 935 S.W.2d at 346.

Under Rule 74.05(d), good faith mistakes do constitute good cause, and a default judgment can be vacated even if the party has negligently failed to file a timely answer. Newton v. Manley, 824 S.W.2d 522, 524 (Mo.App.1992). In Myers v. Pitney Bowes, Inc., 914 S.W.2d 835, 838 (Mo.App.1996), this court found that a party that was properly served and did not respond until after the default judgment acted negligently but not recklessly.

In Saloma v. Saloma-Orozco, 788 S.W.2d 799, 801 (Mo.App.1990), the appellate court found, in a similar fact pattern, that where the participants in a dissolution were still living together, the relationship of confidence between a wife and husband may justify the latter’s reliance on wife’s representations and that her misleading statements about the dissolution hearing led to extrinsic fraud. Id. In order to use this defense, the complaining party must show that he was free from fault, neglect or inattention to his case. Id.

Here, contrary to Saloma, the trial court did not set aside the judgment nor did it find any misleading statements by Respondent. All fact issues not expressly found are deemed found in accordance with the Result. Rule 73.01. Credibility of testimony is best measured by the trial court. Crowe, 935 S.W.2d at 346. The trial court could have found that Appellant acted recklessly in failing to read the summons, or it may not have believed Appellant’s purported reliance on Respondent’s statements or found that Appellant’s reliance on an adverse party’s statements was reckless. Appellant’s inattention to the proceedings bars him from showing good cause. Appellant has not shown good cause to set aside the default judgment.

The judgment is affirmed.

GARRISON, P.J., and RAHMEYER, J„ concur.

      . Whether Appellant set forth a meritorious defense is not an issue here.


author: JOHN E. PARRISH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald G. ZIMMERMAN, Defendant-Appellant.
    No. 26629.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 22, 2005.

      Robert D. McGee, Springfield, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Judge.

Donald G. Zimmerman (defendant) was convicted, following a trial before the court without a jury, of attempting to manufacture or produce methamphetamine, a controlled substance. § 195.211.1. He was tried as, found to be, and sentenced as a persistent offender. See § 558.016. Defendant appeals contending the evidence was not sufficient for the trial court to have found him guilty. This court affirms.

The same standard of review applies in criminal cases tried by the court without a jury as in cases tried by jury. State v. Mayfield, 83 S.W.3d 103, 104 (Mo.App. 2002).

We accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding, and all contrary evidence and inferences are ignored. [State v. Pollard, 941 S.W.2d 831, 833 (Mo.App.1997).] We determine whether there was sufficient evidence from which a trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Phillips, 940 S.W.2d 512, 520 (Mo.banc 1997). Moreover, this Court does not weigh the evidence or determine the reliability or credibility of witnesses. State v. Frappier, 941 S.W.2d 859, 861 (Mo.App.1997).

State v. Matney, 979 S.W.2d 225, 226 (Mo. App.1998). See also State v. McCarty, 956 S.W.2d 365, 367-68 (Mo.App.1997). The evidence, considered in that light, is as follows.

Deputy sheriffs were dispatched to a residence rented by defendant based on an anonymous tip that methamphetamine was being manufactured. One of the deputies knocked on the back door at the house. Defendant answered the door. He was asked if he was the owner of the house. He said he was. Defendant gave permission to search the house.

When the deputies entered the house, they smelled a strong chemical odor. One of the deputies described the odor as one he associated, based on training and experience, “with that of a red-phosphorus-iodine-crystal methamphetamine lab.” He added, “It was a — in my opinion, a pungent odor. It’s not something that you can easily explain, but it’s something, once you’ve been there, you recognize.... It may not be easy to describe, but once you know that smell, you associate that smell with those types of chemicals.”

They found several pipes, a white substance and cold medication in the kitchen area that one of the deputies characterized, based on his training and experience, as items consistent with the manufacture of methamphetamine. A further search of the kitchen revealed a plate above the stove with a white powder on it, pseu-doephedrine tablets, empty pseudoephed-rine blister packs in the trash, a glass flask, Coleman fuel, acetone, and muriatic acid.

In another room, a deputy found pseu-doephedrine tablets, plastic bottles with multi-layered substances in them, which included a liquid and a pasty or powdery substance, stained coffee filters, three bottles of Heet, an electric PH tester, iodine crystals, Red Devil lye, and latex gloves. The deputy who searched the room noted that a coffee filter he found was stained by what, in his experience, was red phosphorus and iodine crystals. He explained that red phosphorus and iodine are “used in the methamphetamine process.” He was asked the following questions and gave the following answers concerning other items:

Q. Let’s talk about the Heet that’s depicted in [a photograph admitted in evidence]. What is the significance of Heet, based on your training and experience?
A. Based on my training and experience, we commonly find Heet used in these laboratories. When they crush the pills, they’ll soak the pills in Heet, and it helps separate the ephedrine.
Q. So, is Heet a component in the manufacturing process?
A. Yes, sir.

The deputy described other items found as items used in the manufacture of methamphetamine.

Defendant testified at trial. He said he rented the house where the items were found; that he had access to and control over all the rooms in the house. He stayed at the house the night before the search and had been at the house all day before the officers arrived. He said he had been doing laundry and picking up around the house. He used the house when he was not at other locations where he worked and on weekends.

Two other men were at the house when the deputies arrived. Defendant said they just happened to show up and he let them in the house and socialized with them. He said the other two men did not live at the house.

Defendant contends the trial court erred in overruling his motion for acquittal at the close of the state’s evidence and in finding him guilty of attempting to manufacture or produce methamphetamine, a controlled substance, because the evidence was not sufficient for a reasonable trier of fact to find him guilty. His argument includes that there was not a sufficient showing that he had possession of the items that were capable of use in producing methamphetamine since other persons were present at his house. He places significant reliance on State v. Mickle, 164 S.W.3d 38 (Mo.App.2005), regarding the argument that the presence of other people at his residence detracts from a showing that he possessed and controlled the items found at his house.

Mickle is not helpful to defendant. Mickle is an automobile case in which the court affirmed the conviction of a passenger in the automobile of attempt to manufacture methamphetamine. The court held the evidence was sufficient to find the automobile passenger constructively possessed methamphetamine related items so that the passenger was guilty of attempting to manufacture methamphetamine. Mickle differs from this case in many respects, including that it was an automobile case rather than a stationary residence.

Here, the evidence was that the house where the items were found that were capable of use to manufacture methamphetamine was defendant’s residence. He shared it with no one although two other persons were present at the time law enforcement officers seized the items on which defendant’s conviction was based. Defendant had been at the house the entire day before he was arrested and the items were seized. He had access to the entire house. The other persons present had arrived only a short time before law enforcement officers came to the house.

Section 564.011.1 is applicable to determine what constitutes an attempt to commit a crime. State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). It provides:

A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A “substantial step” is conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.

“To prove that [a defendant] engaged in a substantial step through the possession of materials used to manufacture methamphetamine, this court applies ‘the same standard of actual or constructive possession in manufacturing cases as is used in possession cases.’” State v. Farris, 125 S.W.3d 382, 387 (Mo.App.2004), citing State v. Rollett, 80 S.W.3d 514, 521 (Mo. App.2002). This is shown by establishing (1) that the defendant “had ‘conscious and intentional possession of the substance, either actual or constructive,’ ” and (2) that the defendant “was aware of ‘the presence and nature of the substance.’ ” Id., quoting State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). Both elements may be proved by circumstantial evidence.

Defendant’s sole occupancy of the house, notwithstanding that two visitors were present at the time the items used to produce methamphetamine were seized, was sufficient to prove his possession of those items. There was sufficient evidence for the finder of fact to find that defendant had exclusive possession of the house and that everything in it was within his easy reach and control.

Conduct that is corroborative of an actor’s criminal purpose includes “possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances,” and “possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances.” Stale v. Molasky, 765 S.W.2d 597, 601 (Mo. banc 1989).

Defendant possessed items within his house, primarily in the kitchen area, that are commonly used to manufacture or produce methamphetamine. These were items that, each standing alone, might have questionable value for the purpose of ascertaining a possessor’s knowledge that the nature of their use was to manufacture or produce methamphetamine. However, the presence of all the items was corroborative that their purpose was to manufacture or produce methamphetamine, thereby constituting a substantial step toward the manufacture or production of methamphetamine. In addition to the presence of substances used to manufacture or produce methamphetamine, a glass flask was present that was identified as a device commonly found in methamphetamine labs to separate chemicals. Further, the strong odor that permeated defendant’s house, consistent with a red-phosphorus-iodine crystal methamphetamine lab, was corroborative of defendant’s knowledge of the nature of the materials and illustrative of a substantial step having been taken to manufacture or produce methamphetamine. Defendant’s points on appeal are denied. The judgment of conviction is affirmed.

PREWITT, P.J., and RAHMEYER, J., concur.

      . Defendant was also charged with possession of methamphetamine, a controlled substance. § 195.202. He was acquitted of that charge.

        . References to statutes are to RSMo 2000.

      . Defendant told the court he was employed by a company that built sunrooms and that his job required him to work at locations away from his home.