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

text:
    CITY OF BRIDGETON, Appellant, v. CITY OF ST. LOUIS, Respondent.
    No. ED 76505.
    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.

      Michael D. Hart, William A. Richter, St. Louis, for appellant.
    Edward J. Hanlon, Donald G. Dylewski, Steven N. Cousins, Thomas E. Wack, Ami-ci Curiae, St. Louis, for Regional Commerce and Growth Assoc., et al.
   ROBERT G. DOWD, Jr., Judge.

The City of Bridgeton (Bridgeton) appeals from a judgment in a court-tried civil case in an action for declaratory judgment and injunction which seeks to prevent the City of St. Louis (St. Louis) from proceeding with its plan, W-1W, for the expansion of Lambert-St. Louis International Airport (Lambert Airport) and St. Louis’s counterclaim which seeks a declaration that St. Louis is not required to comply with Bridgeton’s zoning ordinances. The trial court denied Bridgeton’s injunction and entered a judgment that St. Louis did not have to comply with Bridgeton’s zoning ordinances. Bridgeton claims the trial court erred when it (1) held Section 305.200(3), RSMo 1994, did not prohibit St. Louis from expanding Lambert Airport in Bridgeton without first obtaining Bridgeton’s zoning approval; (2) ruled a new runway was not a “landing field” under Section 305.200(3); (3) held St. Louis did not first have to apply to Bridgeton for zoning approval; (4) overruled Bridgeton’s motion in limine, heard evidence and issued a decision on a “balancing of interests” claim; (5) denied Bridgeton’s motion for continuance and motion for bifurcation; (6) misapplied the “balancing of interests” test; and (7) stated in its order, judgment and injunction that St. Louis is not required to comply with Bridgeton’s zoning ordinances or “any other related land use ordinances in connection with [St. Louis’s] expansion of the [Lambert] Airport pursuant to the W-1W Plan.” We affirm.

Bridgeton is a constitutional charter city under Missouri Constitution, Art. VI, Section 19, located in St. Louis County, Missouri. The City of St. Louis is a special constitutional charter city under Missouri Constitution, Art. VI, Section 31. St. Louis has owned and operated Lambert Airport since the 1920’s. Lambert Airport is located outside of St. Louis, in Bridge-ton and other adjacent cities in northwest St. Louis County.

In 1993, it was determined that the Master Plan for the airport needed to be updated. St. Louis proposed to add a runway and terminals to Lambert Airport. The proposed W-1W plan would extend the runway into an area of Bridgeton that is not zoned for an airport. The new runway is needed to allow for simultaneous landing of aircraft during inclement weather. The Federal Aviation Administration (FAA) requires runways to be 3,400 feet apart in order to have simultaneous instrument landings. Currently, the two major runways at Lambert Airport are less than 1,400 feet apart. At Lambert Airport, simultaneous instrument landings are not possible during inclement weather which creates delays to passengers in St. Louis and other destinations. The costs of these delays to the national economy is reflected in the FAA’s Record of Decision which predicted a savings (based on the construction of the W-1W Project) of $1.9 billion at Lambert Airport and $5.1 billion to the National Air Transportation System during 2005 to 2015. There are also predicted savings to passengers from reduced delays of $1.4 billion at Lambert Airport and $9.5 billion nationally. The FAA, after considering several plans, approved the W-1W plan as the only possible, prudent and practicable alternative.

Bridgeton sued St. Louis to prevent the expansion of the airport into Bridgeton in contravention of Bridgeton’s zoning laws. The trial court found for St. Louis. This appeal follows.

In its first point, Bridgeton claims the trial court erred when it held Section 305.200(3), did not prohibit St. Louis from expanding Lambert Airport in Bridgeton without first obtaining Bridgeton’s zoning approval. Bridgeton argues the plain language of the statute prohibits the construction of the new runway in violation of Bridgeton’s Zoning Ordinance.

This same issue was litigated and decided in City of St. Louis v. City of Bridgeton, 705 S.W.2d 524 (Mo.App. E.D. 1985) (hereinafter Bridgeton I). In Bridgeton I, St. Louis wanted to construct an airport employee parking lot in Bridge-ton on land St. Louis owned. Id. at 525. The area was not zoned for this use. Id. After the Bridgeton City Council unanimously rejected a proposed ordinance granting St. Louis permission to construct the lot under a section of the zoning ordinance applicable to off-street parking, St. Louis sought declaratory and injunctive relief seeking immunity from Bridgeton’s zoning. Id. In its opinion, this court analyzed Section 305.200(3). Id. at 528. The pertinent part of Section 305.200(3) states:

...no airport or landing field shall be established or located in any county, city or city under special charter in violation of any plan or master airport plan or zoning regulation restricting the location of an airport or landing field adopted by the planning commission of any such county, city or city under special charter.

Judge Reinhard, writing for this court, found in analyzing this portion of Section 305.200(8) that “[t]his provision relates to the establishment of a new airport in a new location, not the operation of an existing one, and we find it inapplicable here.” Bridgeton I, 705 S.W.2d at 528. We further note the absence of, or specific legislative silence related to, any statutory language regarding expansion or addition in Section 305.200(3). In Chapter 305, the term “establish” patently refers to an action undertaken at the outset of an airport’s existence; wherein the act of establishing an airport or landing field is an act separate from acquiring, leasing or setting apart real property for such purpose. Section 305.210. Further, paragraph three of Section 305.200 states, “no airport or landing field shall be established or located in any county, city or city under special charter....”; whereas paragraph one of Section 305.200 provides that a county, city or special charter city can acquire property “for an airport or landing field or addition thereto...” (emphasis added.) It may be reasonably concluded that this language evinces a legislative intent to distinguish between a new airport and the expansion of existing facilities; thereby avoiding the situation where no surrounding municipalities would allow expansion within their boundaries; and thereby render expansion an impossibility and potentially, as a result, doom a viable airport, as well as the economic well-being of the dependent region.

The addition of a runway to Lambert Airport is not the establishment of a new airport in a new location; it is the operation and expansion of an existing airport. Lambert Airport is an established airport. The proposed runway addition would enhance facilities already located there. The runway is meant to be an addition to existing facilities. We find W-1W is the expansion of an existing and operating airport. We again find Section 305.200(3) is inapplicable to this ease. Point denied.

In its second point, Bridgeton claims the trial court erred when it ruled a new runway was not a “landing field” under Section 305.200(3). Bridgeton argues the construction of a new runway is a “landing field” under Section 305.200(3), and it cannot be built without zoning approval.

The language of the statute prohibits the establishment or location of a landing field or airport. We found under Bridge-ton’s first point that St. Louis is expanding an existing airport. St. Louis is not establishing or locating an airport or a landing field. Section 305.200(3) again is inapplicable. Point denied.

In its third point, Bridgeton claims the trial court erred when it held St. Louis did not first have to apply to Bridgeton for zoning approval. Bridgeton argues the Bridgeton Zoning Ordinance and the Intergovernmental Zoning Immunity Ordinance are valid exercises of Bridgeton’s authority and the evidence did not establish facts which would invalidate the ordinances. Bridgeton argues that even if Section 305.200(3) does not prohibit the airport expansion into Bridgeton, the basic principles of home mle embodied in Article VI, Section 19(a) of the Missouri Constitution should bar St. Louis from moving forward with W-1W. Bridgeton claims St. Louis must seek zoning approval from Bridgeton or establish that it is immune. St. Louis argues the determination of whether or not St. Louis is immune from Bridgeton’s zoning regulations is a question of law for the courts, not a question for a city council to decide. Bridgeton argues St. Louis must exhaust administrative remedies by first seeking immunity under the Ordinance before seeking judicial relief.

The issue sought to be resolved is whether or not St. Louis is immune from Bridgeton’s Zoning Ordinances. This is a legal issue. Because the question poses no factual questions or issues requiring the special expertise within the scope of the administrative agency’s responsibility, but instead proffers only questions of law clearly within the realm of the courts, the doctrine of exhaustion does not apply in the present case. Premium Standard Farms, Inc. v. Lincoln Tp. Of Putnam County, 946 S.W.2d 234, 238 (Mo.1997). A failure to exhaust administrative remedies may be justified when the only or controlling question is one of law, at least where there is no issue essentially administrative, involving agency expertise and discretion, which is in its nature purely administrative. Id.

Here, the question is whether or not St. Louis is immune from Bridgeton’s zoning ordinances — a question of law. We find it is not necessary for St. Louis to exhaust administrative remedies before asking the court in its counterclaim to determine immunity. If the question had been “Is the area zoned R-l or R-2?,” it would be a question requiring the special expertise within the scope of the administrative agency’s responsibility. Bridgeton’s City Council has special knowledge and expertise in determining the zoning in areas of Bridgeton. Instead the question to be resolved here is whether or not St. Louis is immune from Bridgeton’s zoning ordinances. We find it is not necessary for St. Louis to exhaust administrative remedies. Point denied.

In its fourth point', Bridgeton claims the trial court erred when it overruled Bridge-ton’s motion in limine, heard evidence and issued a decision on a “balancing of interests” claim. Bridgeton argues it was error to hear evidence on a “balancing of interests” claim because St. Louis did not plead immunity. We disagree.

The character of a cause of action is determined by the facts stated in the petition and not by the prayer or name given the action. Farmer’s Mut. Fire Ins. Co. v. Farmer, 795 S.W.2d 104, 107 (Mo.App. S.D.1990) (emphasis added).

Both parties pleaded facts which were relevant to a balancing of interests test. Bridgeton specifically pleaded the negative effects the airport expansion would have on the community of Bridge-ton. Bridgeton was aware intergovernmental immunity was at issue if the court found the Intergovernmental Immunity Ordinance was invalid. St. Louis asserts in its counterclaim that Bridgeton’s Zoning Ordinance cannot be applied to prevent St. Louis from proceeding with its planned expansion of the Airport under the W-1W Project. St. Louis also stated in its counterclaim that a justiciable controversy exists between the parties as to whether St. Louis is subject to Bridgeton’s Zoning Ordinance in connection with St. Louis’s plan to expand the airport under the W-1W Project. Consequently, St. Louis would not be subject to Bridgeton’s Zoning Ordinance if it had intergovernmental immunity. We find this issue was sufficiently pleaded to put Bridgeton on notice that the balancing of interests test would be used to show St. Louis’s intergovernmental immunity. Point denied.

In its fifth point, Bridgeton claims the trial court erred when it denied Bridgeton’s motion for continuance to sufficiently prepare for the issue of immunity and its motion for bifurcation to separate the “balancing of interests” claim from the determination of the validity of the Intergovernmental Zoning Immunity Ordinance. As a general principle, the grant or denial of a continuance is largely within the discretion of the trial court. Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 207 (Mo.1991). It is the trial court’s responsibility to control its docket and the progress of litigation. Lohmann By and Through Lohmann v. Norfolk & Western Ry. Co., 948 S.W.2d 659, 672 (Mo.App. W.D.1997). The denial of a continuance is rarely reversible error, but the trial court does not enjoy absolute or arbitrary discretion. Id. In exercising its discretion, the court should direct its attention toward the goals of fundamental fairness and the avoidance of unfair advantage. Knipp v. Director of Revenue, 984 S.W.2d 147, 150 (Mo.App. W.D.1998). We find no abuse of discretion.

Bridgeton became aware of St. Louis’s claim of immunity from Bridgeton’s Zoning Ordinances when St. Louis filed its counterclaim in October 1998 with a trial date of December 7, 1998. The trial date was subsequently reset to January 11, 1999, because of Bridgeton’s request for a change of judge. Bridgeton’s position has consistently been to oppose immunity and to require St. Louis to apply to it for an immunity determination under its Intergovernmental Zoning Ordinance. Bridge-ton was aware the balance of interests test would be used to determine immunity as this court had previously decided in Bridgeton I. Furthermore, Bridgeton fails to show how it was prejudiced or that St. Louis was unfairly advantaged by the courts denial of its motion for continuance and its motion for bifurcation. Bridgeton cites cases where a denial of a continuance was reversible error. See Missouri Public Service Company v. Argenbright, 457 S.W.2d 777, 785 (Mo.1970); Wegeng v. Flowers, 753 S.W.2d 306, 308 (Mo.App. W.D.1988). Reversal in these cases was based on a claim of surprise. In this case, we fail to see that surprise was a significant factor. It was clear early on that a determination of immunity would be a significant aspect of the case. We fail to find an abuse of discretion in denying the motion for continuance and bifurcation. Point denied.

In its sixth point, Bridgeton claims the trial court erred when it misapplied the “balancing of interests” test. Bridgeton argues the trial court should not have only considered expansion under W-1W versus no expansion under W-1W, but should have considered all the other possible expansion alternatives. We disagree.

In a court-tried case, the decision of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Wl-W is the only plan mentioned in the pleadings and the only plan approved by the FAA. After considering several alternatives, it was the only option the FAA approved and the FAA found it was “the only possible, prudent and practicable alternative.” We do not expect the trial court to examine every imaginable option that is no longer being considered for expansion of Lambert Airport. The trial court properly considered the options placed before it — to expand Lambert Airport under W-1W or no expansion at all.

We also find the trial court properly applied the balance of interests test. The trial court heard evidence from both parties considering the impact of the Airport expansion. In resolving claims of governmental immunity from zoning regulations, Missouri courts have applied two tests: (1) the “power of eminent domain” test, and (2) the “balancing of interests” test. City of Washington v. Warren County, 899 S.W.2d 863, 865-66 (Mo.1995).

The court in Bridgeton I detailed factors to consider when evaluating immunity under the balancing of interests test. “The factors the court considered were the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the 'public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interest.” Bridgeton I, 705 S.W.2d at 529. “In some instances one factor will be more influential than another or may be so significant as to completely overshadow all others.” Id. “And there will undoubtedly be cases, as there have been in the past, where the broader public interest is so important that immunity must be granted even though the local interests may be great.” Id.

Here, the trial court evaluated the interests of the parties using the balancing of interests test. In its analysis, the trial court concluded St. Louis was immune from Bridgeton’s zoning ordinances because the importance of expanding Lambert Airport pursuant to the W-1W plan outweighed Bridgeton’s interest in enforcing its zoning ordinances as to St. Louis.

The trial court considered Lambert Airport’s current inadequate capacity which might endanger its status as a hub airport. The trial court considered Lambert Airport’s inability to accommodate traffic during inclement weather. The trial court also considered the savings to passengers because of reduced delays. There was also evidence of the regional and statewide importance of expanding Lambert Airport. Lambert Airport’s location west of St. Louis provides important access to Jefferson City, the State capitol, and its location benefits the St. Louis region concentrated westward of St. Louis City. Delay or impediment to Lambert Airport’s expansion would be detrimental to the economic development of the State of Missouri. Additionally, there was credible testimony that airports generate significant regional economic growth in terms of jobs and commercial activity, including in those communities in close proximity to the Airport.

The trial court also heard evidence of Bridgeton’s interest in maintaining their community. The acquisition for the expansion would require over 18 % of Bridgeton’s total land area including more than 1,900 residential parcels, 6 schools, at least 2 parks, 6 churches and 75 businesses. After considering all of the evidence, the court found the expansion would benefit not only citizens of St. Louis, but citizens in Bridgeton, the entire metropolitan area, and the State of Missouri.

The trial court examined copious amounts of evidence and determined St. Louis is immune from Bridgeton’s zoning ordinances using the balancing of interests test. The substantial benefits conferred by the operation of the airport on the public clearly outweigh the interests of Bridgeton. The expansion of Lambert Airport is essential to its survival. • We find there was substantial evidence to support the trial court’s finding, the finding was not against the weight of the evidence, and the trial court did not erroneously declare or apply the law. Point denied.

In its seventh and final point, Bridgeton claims the trial court erred when it stated in its judgment, order and decree that St. Louis is not required to comply with Bridgeton’s zoning ordinances or “any other related land use ordinances in connection with ’ [St. Louis’s] expansion of the [Lambert] Airport pursuant to the W-1W Plan.” Bridgeton argues the injunction is overbroad and vague. We disagree.

The molding of an appropriate injunctive decree rests largely in the sound discretion of the trial court, which is vested with a broad discretionary power to shape and fashion the relief it grants to fit particular facts, circumstances, and equities of the ease before it. May Dept. Stores Co. v. County of St. Louis, 607 S.W.2d 857, 870 (Mo.App. E.D.1980). A reviewing court will uphold the injunction unless there is no substantial evidence to support it or unless it erroneously declared or applied the law. Champion Sports Center, Inc. v. Peters, 763 S.W.2d 367, 369 (Mo.App. E.D.1989) (citing Murphy v. Carron, 536 S.W.2d at 32). An injunction must clearly and specifically describe the acts and things enjoined so as not to be subject to misunderstanding and confusion by those against whom it is directed. Farmer’s Mut. Fire Ins. Co. v. Farmer, 795 S.W.2d at 109.

Here, the injunction states, “St. Louis is not required to comply with [Bridgeton’s] Zoning Ordinance, or any other related land use ordinances in connection with [St. Louis’s] expansion of [Lambert] Airport pursuant to the W-1W Plan.” We find the injunction is not unreasonably vague as to what it prohibits. In Champion Sports Center, Inc., 763 S.W.2d at 370, the court found that the contract between the parties could be used to interpret the meaning of the injunction. The contract described the activities of the business that the former employee was now prohibited from competing with. Id. Likewise, here, we find the W-1W plan provides meaning as to what activities Bridgeton may not interfere with in the expansion of Lambert Airport. We find the injunction is specific enough to provide meaning to the parties. Point denied.

Judgment affirmed.

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

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

      . An amicus brief was filed on behalf of the following entities: Regional Commerce and Growth Association, Civic Progress, Inc., St. Louis County, City of Florissant, City of Ferguson, Coalition of Communities in Support of Westward Expansion, Senator Christopher Bond, Senator John Ashcroft, Governor Mel Carnahan, Former Senator Thomas Eagleton, Former Senator John Danforth, North County Chamber of Commerce, St. Louis Economic Development Council, Creve Coeur-Olivette Chamber of Commerce, St. Louis Labor Council, Home Builders Association of Greater St. Louis, Leadership Council of Southwestern Illinois, St. Louis Clergy Coalition, and “Let’s Get On With Our Lives.”

      . The trial court found this ordinance was enacted after, and in response to, the decision in Bridgeton I.

      . As will be more fully developed later in Bridgeton’s sixth point, the question of immunity can be addressed by applying two tests, one of which is the “balancing of interests” test.

      . Bridgeton submitted an airport expansion proposal, Bridgeton 2020, to the FAA. This plan was examined by the FAA as an alternative but eliminated from detailed analysis. Mayor Bosley of St. Louis in a letter to the Mayor of Bridgeton indicated that he submitted Bridgeton’s 2020 plan for review. His letter further stated: "I have directed my airport staff to coordinate closely with the City of Bridgeton during the development of the W-1W plan so that the interests of your community are given full consideration in the planning process.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Eugene BICKLEY, Appellant.
    No. ED 75988.
    Missouri Court of Appeals, Eastern District, Division One.
    April 18, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 24, 2000.
    Application for Transfer Denied June 27, 2000.
    Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., and PAUL J. SIMON and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

Eugene Bickley, appellant, appeals his convictions of murder in the first degree, section 565.020.2 RSMo 1994, and armed criminal action, section 571.015 RSMo 1994.

We have reviewed the record on appeal and the briefs of the parties and find no error of law. An extended opinion would have no precedential value, we affirm the opinion pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Roger A. PEEK, Appellant.
    No. ED 76229.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2000.
    Roger A. Peek, Moscow Mills, pro se.
    Mark D. Bradley, Asst. Pros. Atty., Warrenton, for respondent.
    Before: RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Roger A. Peek (Defendant) appeals from the judgment entered pursuant to his conviction in a court-tried case for the offense of trespass in the second degree, in violation of § 569.150 RSMo 1994. Defendant was sentenced to pay a fine of $100.00 and was further required to pay court costs of $69.50. On appeal, Defendant raises the following claims of error: (1) he was charged pursuant to an unlawful procedure; (2) trespass in the second degree is not a prosecutable offense, in that it is statutorily classified as an infraction rather than a felony or misdemeanor; and (8) insufficiency of evidence. We have reviewed Defendant’s brief, the legal file and transcript. The claims of error are without merit, and a written opinion would serve no jurisprudential purpose. We affirm the judgment of the trial court pursuant to Rule 30.25(b).

      . The State has not filed a brief in this matter.


text:
    Claude WILLIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76861.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2000.
    Application for Transfer Denied June 27, 2000.
    Mark A. Grothoff, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Movant Claude Willis appeals from the judgment denying his Rule 29.15 motion for post-conviction relief on the merits without an evidentiary hearing. The convictions and sentences sought to be vacated were for one count of attempted rape, one count of kidnapping, and one count of armed criminal action. On direct appeal, the judgment convicting Movant was affirmed. See State v. Willis, 970 S.W.2d 912 (Mo.App. E.D.1998). Movant argues (1) that his appellate counsel was ineffective for failing to challenge the sufficiency of the evidence to support his convictions for kidnapping and armed criminal action on direct appeal; and (2) that his trial counsel was ineffective for failing to introduce evidence of the victim’s prior drug use and convictions.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. The motion court’s determination was not clearly erroneous. Rule 29.15(k). No precedential or jurisprudential purpose would be served by an extended opinion reciting detailed facts and restating principles of law. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Milton WILLIAMS, Movant, v. STATE of Missouri, Respondent.
    No. ED 76374.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 18, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 24, 2000.
    Application for Transfer Denied June 27, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES B. BLACKMAR, Sr.J.
   ORDER

PER CURIAM.

Movant appeals from a judgment, denying without an evidentiary hearing, his Rule 24.035 motion for post-conviction relief.

The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Melvin Leroy TYLER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 75368.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 18, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 24, 2000.
    Application for Transfer Denied June 27, 2000.

      Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City, for respondent.
    Before MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J„ and CHARLES BLACKMAR, Sr.J.
   ORDER

PER CURIAM.

Melvin Leroy Tyler (“Movant”) appeals from the judgment denying his Rule 27.26 motion to vacate, set aside or correct his judgment and sentence without an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s determination is not clearly erroneous. Rule 27.26(j). An extended opinion would be of no precedential value. We have, however, provided a memorandum opinion, for the use of the parties only, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Herbert BOWENS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 75381.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 25, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2000.
    Application for Transfer Denied June 27, 2000.

      Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Catherine Chatman, Asst. Atty. Gen., Jefferson City, for respondent.
   WILLIAM H. CRANDALL, Jr., Presiding Judge.

Defendant, Herbert Bowens, appeals from the judgment denying his Rule 29.15 motion without an evidentiary hearing. We affirm in part and reverse and remand in part.

A jury convicted defendant of two counts of rape, section 566.030, one count of Mdnapping, section 565.110, and one count of deliberately creating a grave and unjustifiable risk of infecting another -with HIV, section 191.677.1(2). The trial court sentenced defendant to consecutive terms of life imprisonment for each rape conviction, thirty years for the kidnapping conviction and ten years for the creating a grave and unjustifiable risk of infecting another with HIV conviction. Defendant appealed and this court affirmed. State v. Bowens, 964 S.W.2d 232 (Mo.App. E.D.1998). Defendant then filed a pro se Rule 29.15 motion for post-conviction relief. The trial court appointed counsel and an amended Rule 29.15 motion was filed. The trial court issued findings of facts and conclusions of law, and denied the motion without an evidentiary hearing. Defendant raises seven points on appeal.

Appellate review of the denial of defendant’s Rule 29.15 motion is limited to determining whether the court’s findings and conclusions are clearly erroneous. Rule 29.15(k); Crews v. State, 7 S.W.3d 563, 566 (Mo.App. E.D.1999). For a claim of ineffective assistance of counsel, defendant had to establish by a preponderance of the evidence that (1) counsel was ineffective by failing to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and (2) defendant was prejudiced as a result of the ineffective assistance. State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998); Crews, 7 S.W.3d at 566.

Defendant argues in his first point that the court clearly erred in failing to render findings or conclusions for his claim that his trial counsel was ineffective in failing to investigate two alibi witnesses. The court stated in its findings, among other things, that counsel provided effective assistance, counsel obtained and read police, laboratory and expert reports, and counsel conducted an independent investigation of the case, including having an independent expert review the state’s DNA analysis. In its conclusions, the court stated, among other things, that defendant failed to establish he was entitled to relief, defendant was not prejudiced or deprived of any substantial rights by the conduct of his counsel, defendant failed to show that his counsel lacked the care and skill of reasonably competent attorneys and defendant failed to overcome the presumption of competency for counsel. The court did not specifically address defendant’s claim regarding the alibi witnesses. Defendant contends that the court’s “generic conclusion” that trial counsel provided effective assistance, obtained police and expert reports, and conducted an independent investigation was insufficient.

Rule 29.15 provides, in part, that “the court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” “ ‘There is no ambiguity in this directive and its requirements are not a mere formality.’ ” Crews, 7 S.W.3d at 567 (citations omitted). The court is not required to issue itemized findings and conclusions but rather the findings and conclusions must be sufficient to permit meaningful appellate review. Id. Findings and conclusions cannot be supplied by implication from the court’s ruling. Id.

Although Rule 29.15 requires findings and conclusions for all issues presented, it has been found that not every failure to enter a finding or conclusion for an issue requires reversal and remand. Id. at 567-68. In Crews, this court stated that the following were “five possible exceptions” to the requirement for findings and conclusions: (1) no finding of fact is necessary where the only issue is one of law, but the court must still enter a conclusion of law; (2) an appellate court will not order a useless remand to direct the court to’ issue a proper conclusion of law on an isolated issue where it is clear that the movant is entitled to no relief as a matter of law and will suffer no prejudice by denying a remand; (3) findings and conclusions are not required on an allegation if the court grants a hearing on the motion and the movant fails to present substantial evidence at the hearing to support that allegation; (4) findings and conclusions are not required for issues that were not properly raised or are not cognizable in a post-conviction motion; and (5) reversal is not required if the motion itself was insufficient. Id. at 568. None of the exceptions discussed in Crews apply to defendant’s ineffective assistance claim regarding the alibi witnesses.

As discussed, the court did enter certain general findings and conclusions, but the court did not specifically address defendant’s claim regarding the two alibi witnesses. The court’s findings and conclusions are insufficient to pérmit meaningful appellate review. See Matt v. State, 992 S.W.2d 269, 273-74 (Mo.App. E.D.1999). Under the circumstances presented here, the portion of the judgment as to defendant’s claim regarding the two alibi witnesses must be reversed and the cause remanded.

Defendant argues in his second point that the court clearly erred in not granting an evidentiary hearing for his claim regarding the two alibi witnesses. We decline to address this point until the court issues findings and conclusions on this claim that are sufficient to permit meaningful appellate review. Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993). We have reviewed defendant’s remaining five points and find that a written opinion for these points would have no precedential value. Defendant’s remaining five points are denied in accordance with Rule 84.16(b).

The portion of the judgment as to defendant’s claim of ineffective assistance of counsel regarding the two alibi witnesses is reversed and remanded for proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

MARY K. HOFF, Judge and ROBERT E. CRIST, Senior Judge, Concur.

      . All statutory references are to RSMo.1994.


text:
    Martha Lou MONTGOMERY, Appellant, v. H.P. MONTGOMERY, Jr., Respondent.
    Nos. 22896, 22917.
    Missouri Court of Appeals, Southern District, Division Two.
    April 25, 2000.
    Motion for Rehearing or Transfer Denied May 16, 2000.
    Application for Transfer Denied June 27, 2000.

      Charles (Ed) Lee, Walker, Salveter, Lee & Graff, Springfield, for appellant.
    Susan S. Jensen, Pratt & Fossard, Springfield, for respondent.
    Before PREWITT, J., GARRISON, C.J., and BARNEY, J.
   PER CURIAM.

By a decree entered on February 8, 1999, the trial court dissolved the marriage of Martha Lou Montgomery (Wife) and H.P. Montgomery, Jr. (Husband). The parties, both born in 1943, were married on March 15, 1974, and separated on March 16,1996. Two of the three children born of this marriage were emancipated at the time of trial. The parties were awarded joint legal and physical custody of their remaining child who is disabled and over 22 years old.

The decree awarded Wife maintenance of $405 monthly, divided the marital property, and set nonmarital property aside to each party. Both parties appeal.

Wife’s Appeal

In her lone point on appeal, Wife claims the trial court erred in classifying 11,116 shares of Great Southern bank stock and an investment account as Husband’s nonmarital property. Wife alleges this erroneous classification of property resulted in an unjust distribution of marital property.

The background of this issue commenced in June 1989 when Husband sold his stock in the Lebanon Coca Cola Bottling Company for $362,500. Wife concedes that this stock was Husband’s non-marital property. ' On June 30, 1989, Husband opened a “Borrowed Money Account” (BMA) at Great Southern Bank in his and Wife’s name as “joint tenants with right of survivorship.” Husband deposited all the Coca Cola sales proceeds in this account. The BMA signature card, signed only by Husband, stated, in pertinent part, that “[i]t is agreed by the signatory parties with each other and by the parties with [Great Southern Bank] that any funds placed or added to the account by any one of the parties are and shall he conclusively intended to be a gift....”

On July 11, 1989, Husband took $62,500 from the joint BMA and opened another account in both parties’ names at Great Southern Bank. This account was called a “Grand Sweep Account” (GSA). Both the BMA and the GSA were interest-bearing accounts. When earned, interest was deposited in the respective accounts.

Husband withdrew $50,022 from the BMA on December 21, -1989, in order to purchase 5,558 shares of stock in Great Southern Bankcorp, Inc. These shares were listed in Husband’s name alone. Due to various stock splits, Husband accumulated a total of 33,348 shares of Great Southern stock.

After Wife commenced this action in October 1996, Husband sold 22,232 shares of Great Southern stock for $429,040. With these proceeds, Husband opened an “Investment Account” at Great Southern Bank in his name alone. Husband pledged the remaining 11,116 shares of Great Southern stock to secure a loan in his name only at Boatmen’s Bank.

Husband closed the GSA on February 1, 1991. Wife closed the BMA on October 17, 1996, and received the sum of $429.

Shortly before the first day of trial (April 29,1998), Husband’s Great Southern Investment Account had a balance of $353,849. However, Husband testified that he had withdrawn approximately $115,000 from this account to pay capital gain taxes on the Great Southern stock he sold. He indicated that the balance of this account was approximately $238,850. The trial court valued this account at $353,849.

The parties received dividends from Husband’s Great Southern stock. Husband acknowledged that the dividend checks were mailed to the parties’ home and that he deposited the proceeds in the parties’ joint household checking account at Commerce Bank. Wife paid family bills from this account.

When asked why he opened the BMA account in joint names with his wife, Husband answered as follows:

As I’ve mentioned several times before, my intention was to have the account set up such that if something did happen to me, it would very easily transfer to [Wife]. And as I’ve also mentioned, that came from years in the car business, suggesting to people to title in both names, which makes it a very simple matter if something happens to one party or the other.

Wife testified that the Great Southern accounts were marital property because (1) Husband opened the BMA in joint names specifically to receive the proceeds from the sale of his nonmarital property, (2) deposits were made to the Great Southern accounts from sources other than the Coca Cola proceeds, (3) Great Southern stock dividends were deposited in the parties’ joint checking account and used for family purposes, (4) interest from the BMA and GSA was marital income and allowed to accumulate in those accounts, and (5) the parties had a general practice and agreement to treat gifts and inheritances (including the Coca Cola proceeds) as joint marital property.

The trial court awarded Husband as his nonmarital property all of the pledged Great Southern stock valued at $287,682 and the Great Southern Investment Account valued at $853,849. The trial court determined that Husband did not intend to give Wife any of the Coca Cola proceeds by opening the BMA and that Husband’s evidence rebutted the presumption of gift to her. Under the decree, Husband received $749,571 as nonmarital property and $95,000 in nonmarital debt. Wife received nonmarital property worth $12,650.

Appellate review of a dissolution of marriage judgment is governed by Rule 73.01(c) and the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Mistler v. Mistler, 816 S.W.2d 241, 245 (Mo.App.1991). Thus, a judgment in a dissolution of marriage case must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.

“The placing of separate property of a spouse into the joint names of both spouses creates a presumption that the property transferred becomes marital property, and clear and convincing evidence is required to show the transfer was not intended as a gift.” Stephens v. Stephens, 842 S.W.2d 909, 913 (Mo.App.1992). The clear and convincing standard “refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.” In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo.App.1995). Where a spouse has caused separate property to be transferred to her and her spouse jointly, self-serving testimony that she did not intend a gift is entitled to little weight. Stephens, 842 S.W.2d at 914.

Here, Husband repeatedly testified that he did not intend to make a gift to Wife by putting her name on the BMA. Husband’s testimony indicated that Wife’s name was placed on the account in order to avoid probate. As noted, Husband’s testimony that he did not intend a gift is entitled to little weight. Likewise, Husband’s testimony regarding probate avoidance “does not corroborate Husband’s intent to retain the funds as his separate property.” Clark v. Clark, 919 S.W.2d 253, 255 (Mo.App.1996).

Husband argues that his “actions with the Coca-Cola proceeds indicate his intent to keep it as his property alone.” He points to evidence that (1) he made all the decisions regarding the Coca Cola proceeds, (2) he did not consult with Wife prior to investing these proceeds, (3) he did not advise Wife concerning the investments in question, and (4) Wife “made no transactions” in the BMA other than closing the account and receiving $429. Husband emphasizes that his actions were similar regarding the Great Southern stock and Investment Account.

We discern little difference between this case and Clark v. Clark, supra. There, husband received an inheritance and opened several mutual fund accounts in the names of husband and wife “as joint tenants with right of survivorship.” 919 S.W.2d at 254. The trial court divided the accounts as marital property. On appeal, husband claimed this classification was erroneous.

To rebut the presumption that husband’s inheritance had been transmuted into marital property, husband indicated that he intended to reinvest the inheritance and try to double it in five years in order to share the proceeds with his brothers and sisters. Id. at 255. He insisted that he did not intend to make a gift to wife. Id. Husband also claimed he only placed his wife’s name on the account for purposes of avoiding probate. Id.

This Court held that husband’s evidence was insufficient to overcome the presumption of transmutation. We said that husband’s evidence “falls short of instantly tilting the scales in the affirmative when weighed against the evidence in opposition, as required under the clear and convincing evidence standard.” Id.

Here, the evidence in opposition to Husband’s stated intent is stronger than the evidence in Clark. In this case, unlike Clark, Husband signed an agreement with Great Southern Bank indicating that funds placed in the BMA “shall be conclusively intended to be a gift.” Considering this additional evidence along with the close resemblance to Clark, we hold that Husband’s evidence does not overcome the presumption that he intended to make a gift of the Coca Cola proceeds to Wife. Under the clear and convincing standard, Husband’s evidence does not instantly tilt the scales in his favor when weighed against the other evidence.

“Marital Property” is defined in § 452.330.2 as “all property acquired by either spouse subsequent to the marriage.” Certain exceptions, not relevant here, follow. Section 452.330.3 creates a statutory presumption that all property acquired by either spouse after the marriage and prior to dissolution of marriage is presumed to be marital property regardless of whether it is held individually or by some form of coownership. We have held that Husband transmuted his nonmarital property into marital property by opening the BMA. Thus, the purchase of Great Southern stock and the Great Southern Investment Account was property acquired after the marriage with marital funds. Titling these assets individually does not destroy the presumption of marital property.

However, trial court error in classifying property is not necessarily prejudicial. Spidle v. Spidle, 853 S.W.2d 311, 316 (Mo.App.1993). This court does not reverse a judgment unless the trial court error materially affected the merits of the action. Rule 84.13(b).

According to Wife’s calculations (which Husband does not directly dispute), the trial court awarded Wife marital property valued at $250,336 along with marital debt of $3,629. Husband was awarded marital property valued at $175,020 along with marital debt of $45,641. Thus, the trial court divided gross marital property of approximately $425,000. However, the trial court failed to appropriately divide as marital property the Great Southern stock and Investment Account shown in the decree with a value of $641,531. This failure to divide over 60 percent of the marital property can only be viewed as prejudicial to Wife.

Therefore, the division of marital property and the designation of the Great Southern stock and Investment Account as Husband’s nonmarital property must be reversed.

Husband’s Appeal

In his first point, Husband claims the trial court erred in awarding Wife a 1992 Ford Ranger (value $6,500) and Husband a 1996 Suburban (value $24,175) along with a 1960 Pontiac (value $4,000) because these three vehicles were owned by Montgomery GMC Trucks, Inc. Husband and his brother each own one-half of the stock in this corporation.

We agree with Husband’s contention that a court in a dissolution case may not exercise control over property belonging to a corporation even if one of the spouses is the sole shareholder of that corporation. Graves v. Graves, 967 S.W.2d 632, 636 (Mo.App.1998). However, this rule has no application to the vehicles in this case due to lack of evidence that the vehicles were corporate owned.

The trial court found that “there was no evidence presented to the Court that Montgomery GMC, Inc., is in fact a valid corporation and the Court has to assume since required filings on an annual basis with the Secretary of State is required, and no proof of that having been done, the corporate status has long been forfeited.” Husband does not dispute this finding in any manner. Failing to do so, this uncontested finding resolves the issue. Point denied.

Husband’s next point asserts the trial court erred in failing to divide all the parties’ marital debts. Husband presented evidence that he owed $41,604 in credit card debt, but this debt was not mentioned in the decree.

Effective August 28, 1998, § 452.330.1 was amended. The amended version required the trial court to divide the “marital property and marital debts.” (Emphasis added.) The decree in this case was entered on February 8, 1999, without recognizing the requirement of the amended statute.

Husband’s point is well taken. Upon remand, the trial court shall divide the marital property and marital debt as required by § 452.330.1, RSMo Supp.1999.

Finally, Husband complains that the trial court’s division of marital property was “one-sided” in favor of Wife and must be reversed. We do not address this point because of our previous determination to reverse the marital property division.

To summarize our holding, that portion of the trial court’s decree dividing the marital property and finding the Great Southern stock and Investment Account to be Husband’s nonmarital property is reversed. The remainder of the decree is affirmed. This cause is remanded for a division of marital property and marital debts consistent with this opinion, all in accordance with the requirements of § 452.330, RSMo Supp.1999. Upon remand, the trial court shall determine if, as shown in the decree, the Great Southern Investment Account value is $353,849 in light of Husband’s testimony that he paid capital gains taxes of approximately $115,-000 from that account. Additional evidence may be heard on this issue if the trial court deems it necessary.

      . Husband relies on the following three cases to support his argument: Corbett v. Corbett, 728 S.W.2d 550 (Mo.App.1987); In re Marriage of Gilmore, 943 S.W.2d 866 (Mo.App.1997); and Frerichs v. Frerichs, 704 S.W.2d 258 (Mo.App.1986). These cases are factually distinguishable from the instant case and do not aid Husband. The most compelling distinction is that none of Husband's cases have evidence of a signed agreement indicating that a gift was intended to Wife.

      . Statutory references are to RSMo 1994 unless otherwise indicated.


author: JAMES K. PREWITT, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Dean FLOYD, Defendant-Appellant.
    No. 22598.
    Missouri Court of Appeals, Southern District, Division Two.
    May 2, 2000.
    Rehearing and Application for Transfer Denied May 24, 2000.
    Application for Transfer Denied June 27, 2000.

      Amy M. Bartholow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.
   JAMES K. PREWITT, Judge.

Defendant was arrested the morning of October 3,1997, for the murder of his wife. He was originally charged by complaint, which was dismissed when the grand jury issued an indictment on October 28, 1997, charging murder in the first degree, pursuant to § 565.020.1, RSMo 1994. Following jury trial on August 24-28, 1998, Defendant was found guilty and thereafter sentenced to life imprisonment without parole.

The evidence presented established the following: At approximately 4:00 a.m. on October 3, 1997, Defendant awoke before his wife, Sherri Floyd, and turned off the alarm clock so that she would not be awakened by it. Defendant retrieved a butcher knife from the kitchen and returned to bed, where he laid down next to his wife for an hour and thought about killing her. When Sherri began to wake, Defendant attempted to plunge the knife into her stomach. The knife did not penetrate her stomach, so Defendant straddled his wife and began slashing at her throat and legs with the knife. Sherri struggled and screamed, and Defendant continued to attack her. Finally, Defendant put his hands around Sherri’s neck and squeezed until she stopped struggling. When Defendant relaxed, Sherri gasped and began moving, and Defendant again strangled her, this time fatally. Defendant then checked her for a pulse, and found none. After that, Defendant washed his hands in the bathroom, and went into the kitchen to eat a bowl of cereal. When he finished eating, Defendant went back into the bedroom and checked again for a pulse. Defendant then called his father-in-law, Charles Mears, and told him that he had just killed Charles’ daughter. Defendant also called 911 and said, “I’ve just killed my wife.”

When police officers arrived at Defendant’s home, Defendant walked outside with his hands raised. When the officers instructed him to lie down on the ground, he complied. Defendant was handcuffed, placed in the back of a patrol car, and read his Miranda rights. Detective James Ar-nott arrived at the scene, and again read Appellant his Miranda rights and transported him to the Sheriffs station.

For several years prior to his wife’s death, Defendant had been suffering with depression. On January 6, 1995, Appellant’s co-workers found him dazed and disoriented, and wandering in the parking lot. A co-worker brought him inside, and attempted to talk to him. Defendant’s eyes were glazed; he was hallucinating and hearing voices. He seemed confused, lethargic, and his speech was slow. He was taken to the emergency room at Cox North Hospital, and admitted to the psychiatric unit under the care of psychiatrist Dr. Kenneth Fattmann. The psychiatrist diagnosed Defendant as suffering from a major depressive disorder with psychotic features. Defendant remained hospitalized for 17 days and was prescribed medication to aid a recovery. According to Defendant’s religious beliefs, however, he felt that taking medication was a moral and spiritual failure, and that he should trust in God for his healing.

In October of 1996, Defendant was again hospitalized for eleven days in the psychiatric unit following a suicide attempt by cutting his wrists with a filet knife. He was again diagnosed as suffering from major depression recurrent with psychotic features. The psychiatrist treating him, Dr. Edgar Galinanes, prescribed an antidepressant and a prescription to treat auditory hallucinations. After his release, Defendant received no follow-up care, and did not take his medication on a regular basis.

Defendant made four more attempts to commit suicide by slitting his wrists, taking pills, and by drinking lamp oil. Defendant believed that God would not let him die because no one would be left to care for his wife. Defendant was convinced that he needed to take his wife with him in order to leave - he had to take her life to take his own.

At the time of the killing, Defendant had not been taking anti-psychotic medications for more than a month.

Point I

Defendant claims the trial court erred by not granting his motion to strike venireperson Garey Stubblefield. The defense filed a motion to strike Stubblefield for cause based upon the assertion that Stubblefield did not believe that a defense of mental disease or defect could ever justify a verdict of not guilty. An appellate court will not disturb a trial court’s ruling on its determination of whether to strike a venireperson for cause unless the record reflects both a clear abuse of discretion, and a real probability of injury to the complaining party. State v. Wise, 879 S.W.2d 494, 512 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995).

Venirepersons may be excluded only where their views would prevent or substantially impair the performance of them duties as jurors in accordance with the instructions and their oath. State v. Rousan, 961 S.W.2d 831, 839 (Mo.banc), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). If it appears that a venireperson cannot apply the proper burden of proof or otherwise follow the court’s instructions in a first-degree-murder case, then the juror can be stricken for cause. Id. The qualifications of a prospective juror are not determined conclusively by a single response, but are determined on the basis of the voir dire as a whole. Id.

Defendant singles out one answer Veni-reperson Stubblefield gave during voir dire. In his brief, Defendant recites Stub-blefield’s answer that a person’s mental disease or defect would not be strong enough in order to find him not guilty. When read in context, however, it is apparent that the prosecutor’s question presented to Venireperson Stubblefield was not clearly worded. Additionally, there were many other instances when Stubblefield did not respond to questioning along the same line. The pertinent parts of voir dire follow:

MR. CARRIER: ... But the bottom line under Missouri law is that it is the determination and responsibility and the decision of the jury to decide whether the defendant had a mental disease or defect at the time of the offense which excluded responsibility. Is there anybody who feels that they could not make that type of decision? Okay. I see no response....
Now, another thing that I want to talk about in Missouri law is that under Missouri law a person can have a mental disease or defect and still be responsible for their actions. There’s two different parts to the analysis.
The issues are, number one, is - did the defendant have a mental disease or defect at the time of the offense. And then number two, did that mental disease or defect exclude him from responsibility in this case? Is there anybody who would have difficulty in - about distinguishing between those two issues?
Ms. Stubblefield, in this situation, if you have a - in this case that there’s evidence that the defendant had a mental disease or defect at the time of the offense, would you automatically then find him not guilty if that’s what the evidence showed that he had no mental disease or defect at the time of the offense?
VENIREPERSON STUBBLEFIELD: No.
MR. CARRIER: And why not? VENIREPERSON STUBBLEFIELD: I just don’t feel it would - I(sic) would be strong enough in order to find him guilty that -
MR. CARRIER: Okay. To find him guilty or not guilty?
VENIREPERSON STUBBLEFIELD: Not guilty.
MR. CARRIER: Not guilty?
Do you understand, then, that the other part of that analysis is that if you find that he had a mental disease or defect at the time of the offense, that the other part that you have to find is the issue that the mental disease or defect prevented him from having responsibility - VENIREPERSON STUBBLEFIELD: Yes-
MR. CARRIER: Do you understand that?
VENIREPERSON STUBBLEFIELD: Yes.
MR. CARRIER: Okay. Is there anybody who does not understand that principle or disagrees with that principle in Missouri law that there are two different parts of this equation, whether the defendant has a mental disease or defect at the time of the offense and whether that mental disease or defect prevented him from having responsibility for his actions? (No response.)

Voir dire by defense attorney, Dee Wampler:

MR. WAMPLER: ... Do any of you, from what you’ve heard about this case so far, do you have any assumptions or feelings or opinions about the case or about Richard Dean Floyd being guilty already from what you’ve heard about the case? In other words, are you leaning at this time towards guilt or leaning towards not guilty, based on anything either that’s been said today or anything that you’ve heard or read about the case? Anything at all?
Is it a clean slate? ...
MR. WAMPLER: And Ms. Stubble-field-
VENIREPERSON STUBBLEFIELD: Yes.

Defense counsel further questioned the venire panel members concerning the State’s burden of proof on the issue of mental disease or defect, whether they felt the defense of mental disease or defect was just a loophole, and whether they felt that depression could never count as a mental disease or defect. None of the venire panel members, including Ms. Stub-blefield, responded affirmatively to these questions.

Considering voir dire as a whole, not isolating a single response, we conclude that the trial court did not abuse its discretion when it denied the motion to strike Venireperson Stubblefield. Because we do not find an abuse of discretion, it is not necessary to determine if there was a real probability of injury to Defendant. See Wise, 879 S.W.2d at 512. Point I is denied.

Point II

Defendant alleges the trial court erred in overruling his motion to suppress statements in that the statements were not voluntary, knowing and intelligently made under the totality of the circumstances. Appellate review of motions to suppress is limited to a determination of whether sufficient evidence exists to sustain a trial court’s holding. Wise, 879 S.W.2d at 503.

Defendant filed a Motion to Suppress Statements on April 19, 1998 alleging that the statements were not voluntary. A hearing was held on the motion on May 1, 1998. Defendant argues that the trial court did not make a finding of voluntariness of his statements, and in fact misstated the law in regard to the court’s duty. The trial court stated the following:

THE COURT: ... the Court does not have the determination of voluntariness of a statement. That is a jury determination. The Court’s obligation is to determine whether the State has sufficient evidence to show, or whether the State has shown, sufficient evidence to permit a jury to believe that the statement is voluntary.

Defendant’s argument in this regard is valid. When a defendant challenges the admission of a statement on the grounds of involuntariness, the trial court must make a clear cut determination of voluntariness before the finder of fact can consider the statement. State v. Nolin, 833 S.W.2d 456, 458 (Mo.App.1992). See also State v. Knese, 985 S.W.2d 759, 767 (Mo.banc), cert. denied, 526 U.S. 1136, 119 S.Ct. 1814, 143 L.Ed.2d 1017 (1999). When the record made by the trial court fails to show with “unmistakable clarity” that Defendant’s statement was voluntarily made, we can request the trial court make appropriate findings on the record. See Nolin, 833 S.W.2d at 458.

This court issued an Order to the trial court on January 6, 2000, directing that additional findings of fact be made com cerning the voluntariness of Defendant’s statements. The trial court reviewed the trial transcript, and conducted an eviden-tiary hearing on March 24, 2000, to receive further evidence on the issue. Based upon that record, the trial court made specific findings of fact on March 25, 2000. The findings were filed here, becoming a part of the record. The trial court found:

1. Defendant was given the required Miranda warnings before the interrogations by law enforcement officers and Defendant voluntarily, knowingly and intelligently waived those rights and voluntarily made statements.
2. Defendant was calm, coherent and intelligently responsive during each interrogation by law enforcement officers when the statements were made.
3. Defendant’s physical and mental condition, background and emotional state, considered separately or as a whole, did not prevent Defendant from understanding his rights as explained by the law enforcement officers and did not prevent Defendant from voluntarily, knowingly and intelligently waiving those rights and voluntarily making the statements.
4. Defendant’s statements to law enforcement officers were voluntarily made.

We now consider whether there was sufficient evidence to sustain these findings. The statements Defendant sought to suppress included a statement given to Detective Arnott while in route to the sheriff department when Detective Arnott asked Defendant: “What happened this morning?” Defendant replied: “I killed my wife.” The Miranda rights had been read to Defendant twice before he made this statement. After arriving at the Sheriffs Department, and after signing a wavier, Defendant gave Detective Arnott a complete statement explaining how he had killed his wife. The statement recalled the events related hereinabove.

The test for voluntariness is whether the totality of the circumstances deprived defendant of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that defendant’s will was overborne at the time he confessed. Nolin, 833 S.W.2d at 459. In review of the trial court’s denial of a motion to suppress, this court looks only to determine whether the evidence was sufficient to support the ruling. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo.banc 1990). From the record before us, we must decide whether there was adequate evidence to support the trial court’s action. Id.

There was no evidence of police coercion presented at the hearing on the motion. At the scene of the crime, Defendant spent about fifteen minutes waiting in a patrol car before being transported to the police station. The total time that Detective Ar-nott spent with Defendant, from the time he took custody of him at the crime scene to the time he finished interviewing him, was sixty to ninety minutes. Once at the Sheriffs Department, Detective Arnott again read Defendant his rights, and Defendant placed his initials beside each line that enumerated his rights, and signed the waiver form.

After giving one statement, Defendant agreed to repeat the statement, and allowed an audio recording of the second statement. Detective Arnott testified that while in custody, Defendant appeared calm, followed orders, gave precise answers to questions, and did not exhibit unusual behavior. Defendant was read his Miranda rights three times, and each time he said he understood those rights. Defendant never requested to speak to an attorney nor requested to stop the questioning, and the duration of his contact with the detective was not excessive or unreasonable.

Detective Arnott testified, without contradiction, that Defendant gave no appearance of being unaware of the events taking place, and appeared to be in a normal state of mind. The testimony was sufficient to carry the State’s burden that Defendant voluntarily, knowingly, and intelligently waived his Constitutional rights and then confessed. The evidence at the suppression hearing was uncontradicted and is sufficient to sustain the trial court’s findings. Point II is denied.

Point III

Defendant alleges trial court error in overruling his motion for acquittal, and error for sentencing him, because he proved he was suffering from a mental disease or defect excluding him of responsibility. Defendant concedes that the statutory presumption of sanity is substantial evidence to take this issue to the jury, however he argues that the evidence should be rebuttable, and therefore apparently reviewable by the appellate court. This point must be denied.

Section 552.030.6, RSMo 1994 provides as follows:

All persons are presumed to be free of mental disease or defect excluding responsibility for their conduct ... The issue of whether any person had a mental disease or defect excluding responsibility for such person’s conduct is one for the trier of fact to decide upon the introduction of substantial evidence of lack of such responsibility.... Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take that issue to the trier of fact....

In State v. Moss, 789 S.W.2d 512 (Mo.App.1990), the court reviewed a similar argument as presented by Defendant. Moss argued that the trial court should have directed a verdict of acquittal at the close of all the evidence based on evidence that he was suffering from a mental disease or defect excluding him from responsibility at the time he committed the acts charged. Id. at 513. His argument was rejected, the court thereby refusing to take the issue out of the hands of the jury. “By statute, the defendant is presumed to be free from mental disease or defect and that presumption alone is sufficient to take the issue to the jury even when it is controverted by substantial and uncontradicted evidence to the contrary.” Id. at 513-14. In this case, there was evidence regarding Defendant’s mental disease or defect, as it related to his responsibility for the murder of his wife. By statute, resolution of this issue was for the jury, and we will not take that responsibility out of their hands. Point III is denied. The trial court did not err in denying Defendant’s motion for acquittal.

Point TV

Finally, Defendant alleges the trial court erred in failing to grant his motion to dismiss based upon prosecutorial and police misconduct. The alleged misconduct was a failure to allow Defendant’s medical experts access to him for purposes of mental examinations for several weeks after his arrest. Defense counsel filed a motion to dismiss for prosecutorial/police misconduct that was overruled in May of 1998. The dismissal of an indictment is a matter for the discretion of the trial judge, which is reviewed for an abuse of that discretion. State v. Collins, 669 S.W.2d 933, 935 (Mo.banc 1984).

The central complaint of Defendant on this issue is that because his defense hinged upon his state of mind at the time of the crime, it was critical that his medical experts examine him as soon as possible after his arrest. Defendant asserts that the “prosecutor and the Greene County Jail staff acted together to deny Richard’s experts access to him.”

Defendant was taken to the Greene County Jail on the day of his arrest, October 3, 1997. The rule of that facility is to only allow contact visits between an attorney and his or her client, and that outside doctors are only allowed to see a defendant in jail if they had a court order. Defendant’s attorney hired Dr. Whipple, a psychologist who also worked for the Greene County Jail. Dr. Whipple examined Defendant for one and one-half hours on October 5, 1997, and again the next day for one hour. On October 6, the Chief of the Greene County Jail, Jimmy Hensley, learned that Dr. Whipple had been hired by Defendant. Hensley asked Dr. Wfiiip-ple to cease examining Defendant because it could present a conflict of interest for a jail supervisor to be hired on behalf of an inmate.

On October 9, 1997, defense counsel and the prosecutor agreed that Dr. Bland would examine Defendant on the following day. Also on October 9, Defendant obtained a court order that stated that after Dr. Bland finished his examination of Defendant, then Defendant’s doctors could have access to Defendant. Dr. Bland examined Defendant from 9:00 a.m. to 12:00 p.m. at the jail on October 10, 1997. During Dr. Bland’s examination, Defendant’s doctor, Dr. Fattmann, attempted to see Defendant, but the jail officers stated that Defendant was still being examined by Dr. Bland, and the court order required Dr. Fattmann to wait until Dr. Bland was finished with his examination.

On October 28, 1997, prosecutors obtained an indictment against Defendant, and on October 30, 1997, the original case was dismissed. The next day, October 31, 1997, Defendant’s doctor, Dr. Burstin, sought to examine Defendant at the jail. The chief of the jail advised him that the court order was no longer valid since the original case had been dismissed, and was not allowed to examine Defendant.

Dr. Fattmann attempted to examine Defendant on November 7, 1997, but was not allowed to do so because he did not have a valid court order. On November 21, 1997, the trial court ordered that Defendant be furloughed and transported to his doctor’s office for examination. On November 25th or 27 th, Dr. Fattmann examined Defendant at the doctor’s office. At trial, Dr. Fattmann testified that his opinion was that Defendant’s mental condition on the day he murdered his wife was severe enough to exclude responsibility for his actions.

On November 24, 1997, Dr. Davidson, also hired on behalf of Defendant, examined Defendant at the doctor’s office. Dr. Logan also examined Defendant on a date not set forth in the record.

Prison administrators are to be accorded wide-ranging deference in the adoption and execution of policies and practices that, in their judgment, are needed to preserve internal order and discipline and to maintain institutional security. Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984). Prison administrators are given statutory authority to determine those persons allowed to enter a correctional facility. Section 217.265.1, RSMo 1994 states:

Except as provided [herein] no person shall be permitted to enter a correctional center except by special permission of the chief administrative officer of the facility, the division director, the department director or under such regulations as they shall prescribe.

The regulation established by the Greene County Jail allowed contact visits only between inmates and attorneys. Other contact visits with inmates required a court order. This rule was established under statutory authority and appears to be a reasonable rule. The evidence does not support Defendant’s claim of bad faith on the part of the state, and there is no evidence of prosecutorial misconduct. The delay in medical examinations is sufficiently explained by the circumstances set forth above, and prejudice was not established. Point IV is denied.

The judgment is affirmed.

MONTGOMERY, P.J., and GARRISON, C.J., concur.

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


text:
    In re: MARRIAGE OF Sharon Briem BULLARD, n/k/a Sharon Briem and Steven S. Bullard. Sharon Briem Bullard, Petitioner/Respondent, v. Steven S. Bullard, Respondent/Appellant.
    No. ED 76310.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 16, 2000.

      Deborah Benoit, Kruger & Beniot, L.L.C., St. Louis, for appellant.
    Edward C. Cody, Klutho, Cody & Kilo, P.C., St. Louis, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J.
   PER CURIAM.

In this dissolution action husband appeals from a judgment entered after a remand with directions to compute and award child support and retroactive child support and to determine if wife had been credited with a statutory exemption. He contends that the judgment goes beyond the scope of the remand because, in addition to making the awards of child support and retroactive child support, it valued and redistributed marital property, made new orders concerning marital debt, and entered a net judgment in wife’s favor of $90,197.96. We agree that these provisions are beyond the scope of remand and are null and void. We reverse those portions of the decree which exceed the scope of remand and remand with directions.

Husband also challenges the use of seven-year-old income figures to calculate the amount of income imputed to him for calculation of child support. Because he did not submit a Form 14, he did not preserve this issue for appeal.

PROCEDURAL HISTORY

Husband, Steven S. Bullard, and wife, Sharon Briem Bullard, n/k/a Sharon Briem, were married on August 10, 1981. One child, Matthew Scott Bullard, was born of the marriage on April 1, 1985, and was a minor at the time of dissolution.

This is the third appeal in this case. The trial court entered its initial dissolution decree on March 1, 1995. We affirmed in part and reversed and remanded in part. Bullard v. Bullard, 929 S.W.2d 942 (Mo.App. E.D.1996) [Bullard I], We reversed the provisions of the decree awarding husband maintenance and instructed the trial court to award no maintenance to husband on remand. Id. at 945. We reversed the provision denying child support and remanded that issue to the trial court with instructions. We remanded for a redivision of marital property, since the trial court’s division included items which were not marital property. However, we rejected wife’s claims that the trial court erred in not giving monetary value to all items of marital property or in failing to consider the relevant factors required by Section 452.330 RSMo (1994). Id. at 945-46.

The trial court conducted a hearing on remand and entered an amended judgment and decree of dissolution on January 28, 1997. It denied husband maintenance as instructed, and found that wife had paid husband $8,250.00 in maintenance after the original decree. It divided the marital property and awarded wife $62,375.00 and property of unknown value and awarded husband $47,297.00 and property of unknown value. It also ordered wife to pay to husband $18,506.00 as an additional share of marital property, but reduced this amount by the $8,250.00 which wife had paid husband as maintenance, resulting in a net payment of $10,256.00. It did not order child support.

Wife appealed on multiple grounds. On appeal we reversed the provision of the decree denying child support and remanded for the trial court to enter judgment ordering husband to pay child support to wife in an amount to be determined after imputing income to husband taking into account husband’s “education, recent work history, occupational qualifications, earnings history when employed, and prevailing job opportunities.” Bullard v. Bullard, 969 S.W.2d 880, 883 (Mo.App. E.D.1998) [Bullard II\. We also instructed the trial court to award retroactive child support in conformity with Section 452.340 RSMo (1994). Id. at 884. We further remanded for the trial court to determine if wife had been credited for statutory exemptions, and if not, to so credit her. Id. at 885.

Wife also challenged • the trial court’s division of property, claiming that the trial court had failed to properly apply Section 452.330, that it had failed to assign values to all of the property, failed to consider husband’s misconduct, and had no basis for finding wife depleted marital assets. We denied these claims and affirmed the remaining portions of the decree.

After remand from Bullard II, a new trial judge was assigned to the case who conducted a trial on January 28, 1999. Husband appeared pro se. At trial the trial judge announced that under the mandate he was only going to consider the issues of child support, retroactive child support, and the statutory exception. The court limited evidence to these issues and denied wife’s oral request for a net judgment and oral motion for judgment. At the conclusion of the testimony, the court said it was its intention to rule on only three issues: child support, retroactive child support, and the exemption. It invited the parties to submit proposed findings and conclusions on these issues. Wife filed a proposed second amended judgment.

On March 10, 1999 the trial court entered a second amended judgment and decree of dissolution. In accord with the mandate, the trial court found husband’s monthly child support obligation under Rule 88.01 was $525.18 from May, 1992 through December, 1996, $503.81 from January, 1997 through January, 1999, and $580.00 thereafter. The court awarded wife retroactive child support of $63,900.33 and prospective child support of $580.00 per month. However, the trial court did not make findings or an order with respect to the statutory exemption.

Further, the second amended judgment addressed matters which were not covered by the mandate and which had been determined differently in the prior judgments and affirmed. The second amended judgment contained new findings with respect to marital property and the parties’ financial obligations to each other. The court gave values to the Lake St. Louis property and the MCI stock. It awarded all of the MCI stock to wife, with a credit for one-half the value to husband to be offset against his child support obligation. It showed a total award of $72,270.00 in marital property to wife and $93,343.00 in marital property to husband. It gave wife a credit of $2,214.63 which was the amount husband had garnished from wife’s account in partial satisfaction of the $10,256.00 judgment the trial court had awarded him as an additional share of marital property in the amended decree. The court also made findings with respect to each party’s payments of marital debt and awarded wife a credit of $8,441.00 for her payments of marital debt and ordered the parties to pay one-half of the balance of the debt.

After making these findings and awards, the court then computed a net judgment as follows:

35. The Court, after deducting the credits set forth above, to wit:

Total Credits due Wife: $103,878.96
from the value of the shares of MCI Communications stock Wife is required to pay to Husband ($9,896), plus interest thereon, for a total sum due Husband of $13,681, Wife is entitled to, and is hereby awarded against Husband a net Judgment of $90,197.96. 36. This Judgment in favor of Wife is a net Judgment and because credit has been given to Husband for the value of the MCI Communications stock, the MCI Communications stock shall remain the property of Wife.

DISCUSSION

I. Scope of Second Amended Judgment

For his first point husband contends that the trial court erred in making the determinations set out above regarding the division of property and debt and in awarding wife a net judgment of $90,-197.96. Husband argues that the trial court lacked the power to make this award because it was beyond the scope of the mandate and opinion. Further, wife had not filed a written motion for judgment to bring the property matters before the trial court and the trial court denied her oral motion for judgment.

Where a case is reversed and remanded, the rulings of the higher court become the law of the case. Feinstein v. McGuire, 312 S.W.2d 20, 23 (Mo.1958).

The general rule is that the decision of an appellate court is the law of the case on all points presented and decided and remains the law of the case throughout all subsequent proceedings, both in the trial and appellate courts, and no question involved and decided in the first appeal of the cause will be considered on a second appeal, and on a retrial should not be considered by the trial court.

Id. Where the judgment of the trial court has definitely determined the rights of the parties and has been affirmed, “any subsequent orders or adjudications in the cause must be confined to those necessary to execute the judgment.’ ” Papin v. Papin, 475 S.W.2d 73, 76 (Mo.1972) (quoting 5B CJS Appeal and Error Section 1977 p. 614).

When a case is remanded with directions, the trial court is bound to render judgment in conformity with the appellate court’s mandate. Morrison v. Caspersen, 339 S.W.2d 790, 792 (Mo.1960); Pemberton v. Pemberton, 779 S.W.2d 8, 10 (Mo.App.1989). See also Pinkston v. Ellington, 845 S.W.2d 627, 629 (Mo.App.1992) (contrasting a remand with directions from a general remand). The trial court does not have the power to open the cause and have a new trial on the issues determined in the opinion. Feinstein, 312 S.W.2d at 23. The trial court is without power to modify, alter, amend or otherwise depart from the appellate mandate and its proceedings contrary to the directions of the mandate are null and void. Morrison, 339 S.W.2d at 792.

The directions on remand were limited to 1) a determination of whether wife was credited with her statutory exemptions, totaling $1,100.00, 2) a determination of current child support, and 3) a determination of retroactive child support. All provisions in the judgment relating to the valuation and division of marital property, restitution of maintenance, and allocation of debt had been affirmed and were not subject to reopening or redetermination on remand. However, the trial court’s second amended judgment did redetermine these issues on remand. It valued marital property which had not been previously valued. It awarded all of the MCI stock to wife, which had previously been awarded one-half to each party.

In addition, the trial court found wife owned a lesser number of MCI shares than had previously been determined. It took away the $10,256.00 cash award to husband and gave wife a $21,073.00 cash award instead. It gave wife a credit against husband for the amount garnished on the $10,256.00 award. It gave wife a credit for the $8,250.00 maintenance she had paid, when this amount had been previously credited against the cash award to husband. It made new findings and awards with respect to marital debt. Accordingly, except for the provisions determining the child support and the provisions which merely reincorporate the prior judgment, the written second amended judgment and decree exceeded the authority of the trial court on remand.

2. Child Support

In his second point husband contends that the trial court erred in determining child support because it relied on information that was several years out of date. The record does not disclose that husband submitted a Form 14. A party must have submitted a completed Form 14 in order to preserve for appellate review a claim of error in the determination of child support. Mills v. Mills, 939 S.W.2d 72, 75 (Mo.App.1997). Because husband failed to file a Form 14 stating his income and expenses, he has not preserved his claim for review. This point is denied.

Conclusion

We declare null and void paragraphs 19-23 and 32-36 of the second amended judgment and reverse all awards of money and property made therein.

As a result of this opinion, the judgment in this case consists of:
1) All provisions of the original judgment dated March 1, 1995 and the amended judgment dated January 28, 1997 which were not appealed or which have been affirmed on appeal.
2) Paragraphs 11-18 and 29 and 30 of the second amended judgment.
3) The March 10, 1999 order sustaining husband’s motion for judgment.

The only undecided issue that remains in this case is whether wife is entitled to a statutory exemption as set forth in our opinion and remand in Bullard II, 969 S.W.2d at 884. We remand with directions to determine only that issue. If wife is entitled to an exemption, the trial court may offset that amount from the $10,-256.00 wife was ordered to pay husband as an additional share of marital property.

As set out above, the second amended judgment is reversed in part, affirmed in part, and remanded with directions.

      . This award also is inconsistent with the trial court's grant on March 10, 1999 of husband’s previously filed motion for a judgment which retitled one-half of the MCI stock in husband's name.


author: PAUL J. SIMON, Judge.

text:
    STATE of Missouri, Respondent, v. Ronald LUDWIG, Sr., Appellant.
    No. ED 75843.
    Missouri Court of Appeals, Eastern District, Division One.
    May 16, 2000.

      Charles H. Billings, Bruntrager <& Billings, P.C., St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Asst. Atty. Gen., Jefferson City, for respondent.
   PAUL J. SIMON, Judge.

Ronald Ludwig Sr., defendant, appeals the judgment of the Circuit Court of St. Francois County following a jury verdict of guilty of involuntary manslaughter in violation of Section 565.024 RSMo.1994 (all further references herein shall be to RSMo.1994 unless otherwise indicated).

On appeal, defendant argues that the trial court: (1) erred in denying defendant’s motions for judgment of acquittal at the close of the state’s case, at the close of the evidence and after conclusion of the trial, because the evidence was insufficient to support a guilty verdict of involuntary manslaughter; and (2) committed plain error in submitting the verdict directing instruction on involuntary manslaughter because the instruction failed to: (a) include the definition of “recklessly caused the death”; (b) require the jury to find that defendant possessed the culpable mental state since it required that the jury find defendant guilty if defendant or his son, Ron Ludwig, Jr. “recklessly” caused the death of victim and the direction to find defendant guilty if it was his purpose to aid in an unintentional act did not require a finding of a culpable mental state necessary for conviction. We reverse and remand.

On review, we accept as true all of the evidence favorable to the verdict, including all favorable inferences drawn from the .evidence, and disregard all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo.banc 1989). In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.

The record, viewed in the light most favorable to the verdict, reveals that on May 25, 1995, Randy Irby, victim, had spent the day drinking and target practicing with his .22 caliber revolver. Victim arrived at the Express Mart, intoxicated and with his .22 caliber revolver concealed in his waistband. He walked up to a group of people who were outside drinking beer. In the group was defendant and his son, Ron Ludwig, Jr. Victim attempted to shake everyone’s hand. Victim asked son if he wanted to “do a line,” which son declined. At that point, victim put his hands on defendant. Defendant twice told victim, “Don’t put your hands on me.” Son repeatedly asked victim to leave.

At some point, although victim had not removed the gun from his waistband, son announced that victim had a gun. Defendant took off his glasses, placed them on the hood of a truck and elbowed victim in the mouth. Victim was knocked onto a picnic table and to the ground. Defendant then punched victim several times and grabbed him by the throat. Defendant told son to get the gun from victim. Son got on top of victim. The gun fired, hitting victim in his left eye. Defendant then stood up, while son got to his knees. Son said, “I can’t believe I just shot him.” Defendant went into the store and called for help, telling the dispatcher that he had shot victim. An autopsy revealed that victim died as a result of “brain injury, secondary to a single, distant gunshot wound to the face.”

Defendant was charged, by indictment with voluntary manslaughter. Thereafter, an “Amended Substitute Information” was timely filed charging him as a prior offender. Son was not charged in the matter.

At trial, defendant asserted defenses of both self defense and accident. Instructions were submitted to the jury on voluntary manslaughter, involuntary manslaughter and self defense. Defense counsel indicated that he had no objection to the instructions. The verdict directing instruction on involuntary manslaughter, patterned after MAI-CR3d 813.10, incorporated accessory liability under MAI-CR 3d 304.04 and provided:

If you do not find the defendant guilty of voluntary manslaughter, you must consider whether he is guilty of involuntary manslaughter.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 25th day of May 1995, in the county of St. Francois, State of Missouri, the defendant, Ronald Ludwig Sr., or Ronald Ludwig Jr. caused the death of Randy Irby by shooting him, and
Second, that defendant or Ron Ludwig Jr. recklessly caused the death of Randy Irby, and
Third, that the defendant did not act in lawful self defense as submitted in Instruction No. 8, and
Fourth, that defendant did not act in lawful defense of another person as submitted in Instruction No. 9,
Then you are instructed that the offense of involuntary manslaughter has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of that involuntary manslaughter, defendant acted together with Ronald Ludwig Jr. in committing that offense, then you will find the defendant, Ronald Ludwig Sr. guilty of involuntary manslaughter. However, unless you find and believe from all the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of involuntary manslaughter.
If you do find the defendant, Ronald Ludwig Sr., guilty of involuntary manslaughter, you will return a verdict finding him guilty of involuntary manslaughter.

The instruction failed to include the portion of MAI-CR3d 313.10, which defines recklessly:

In determining whether the defendant recklessly caused the death of [name of victim], yon are instructed that a person acts recklessly as to causing the death of another person when there is a substantial and unjustifiable risk he will cause death and he consciously disregards that risk, and such disregard is a gross deviation from what a reasonable person would do in the circumstances.

The jury returned a verdict of guilty on the charge of involuntary manslaughter. Defendant was sentenced as a prior offender to a term of seven years in the Missouri Department of Corrections.

In his first point on appeal, defendant contends that the trial court erred in denying his motions for judgment of acquittal because the evidence was insufficient to support a guilty verdict of involuntary manslaughter in that all of the evidence showed that defendant did not fire the weapon that killed victim and there is no evidence to show that defendant recklessly intended to cause injury or death to victim.

Section 565.024.1(1) Involuntary Manslaughter, provides that a person commits the offense of involuntary manslaughter if he “recklessly causes the death of another person.” Section 562.041 Responsibility for the Conduct of Another, provides, in pertinent part:

A person is criminally responsible for the conduct of another when:
(2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.

The verdict directing instruction provided the jury the opportunity to find defendant guilty of involuntary manslaughter in recklessly causing the death of victim by shooting him or by acting together with his son for the purpose of promoting or furthering the commission of involuntary manslaughter as his son recklessly caused the death of victim. The evidence supports that either defendant or son caused the death of victim by shooting him. Defendant and son engaged in a struggle with victim, who was armed and intoxicated, in a group of people. Such behavior is reckless in that it presents a substantial and unjustifiable risk of death or injury to victim or to bystanders and defendant consciously disregarded that risk. Finally, there is evidence to support that defendant acted with son “for the purpose of promoting the commission of an offense” involuntary manslaughter, by telling son to “get the gun” and holding victim down while son attempted to take the gun, furthering a reckless situation. Therefore, the trial court did not err in denying defendant’s motions for judgment of acquittal. Point denied.

In his second point, defendant contends that the trial court erred in submitting the verdict directing instruction on involuntary manslaughter to the jury, in that it failed to define recklessly and to require the jury to find that defendant possessed a culpable mental state. He concedes that he did not object to the instruction and requests plain error review.

Rule 28.02(c) provides that whenever there is an MAI-CR instruction or verdict form applicable under the law and Notes On Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form. The giving of an instruction in violation of the Notes on Use under MAI-CR constitutes error, its prejudicial effect to be judicially determined, provided a timely objection has been made. Rule 28.02(f). However, for instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury such that the error affected the jury’s verdict, resulting in manifest injustice or miscarriage of justice. State v. Cline, 808 S.W.2d 822, 824 (Mo.banc 1991).

Where an instruction uses a word in its ordinary, common-sense meaning, then no confusion occurs simply because the word is not defined. State v. Dighera, 617 S.W.2d 524, 534 (Mo.App. 1981). The ordinary lay definition of reckless is “lacking in caution,” “careless, neglectful, thoughtless,” “marked by a lack of foresight or consideration: improvident, negligent.” Webster’s Third New International Dictionary 1896 (Unabridged Ed.1993). The Western District, in State v. Matheson, 919 S.W.2d 553, 558 (Mo.App. W.D.1996), using the same definition found that under the facts of the case it was not an error for the court to fail to include a definition of reckless, as the statutory definition was consistent with the lay definition. Here, in this factual situation, the failure of the instruction to define recklessly misled the jury. The lay definition includes words such as careless and negligent, conduct that does not rise to the level of conscious disregard of a substantial and unjustifiable risk which is a gross deviation from the standard of care used by an reasonable person. See State v. Beeler, 12 S.W.3d 294 (Mo.banc 2000). Such would allow the jury to find defendant guilty of involuntary manslaughter if his conduct was no more than carelessness or negligence, resulting in manifest injustice. The case must be reversed and remanded for further proceedings consistent with this opinion.

Finally, we consider defendant’s contention that the instruction was in error because it did not require the jury to find that defendant possessed the culpable mental state. Defendant argues that since the instruction required the jury to find defendant guilty if defendant or son “recklessly” caused the death of victim and to find defendant guilty if it was his purpose to aid in an unintentional act, it did not require a finding of a culpable mental state necessary for conviction.

The instruction, patterned after MAI-CR 3d 313.10 and MAI-CR 3d 304.04, submits that defendant or son recklessly caused victim’s death and with the purpose of promoting or furthering the commission of involuntary manslaughter, defendant acted together with son in committing that offense. Defendant need not have intended the result. Since the instruction is consistent with MAI, the court did not err, plain or otherwise. However, based on our finding as to the lack of a definition of recklessly, the judgment must be reversed and remanded.

JUDGMENT REVERSED AND REMANDED.

GARY M. GAERTNER, P.J. and JAMES R. DOWD, J., concur.