text:
    STATE of Missouri, Respondent, v. Kevin BROWN, Defendant-Appellant.
    Nos. ED 69440, ED 75268.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 29, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.
    Application for Transfer Denied May 30, 2000.
    Amy M. Bartholow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Anne E. Hawley, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ
   ORDER

PER CURIAM.

Kevin Brown, Defendant, appeals from the judgment entered on a jury verdict finding him guilty of first-degree assault of a law enforcement officer in violation of Section 565.081.1 RSMo. (1994), as to which he was sentenced to life in prison; second-degree assault of a law enforcement officer in violation of Section 565.082 RSMo. (1994), as to which he was sentenced to life in prison; armed criminal action in violation of Section 571.015 RSMo. (1994), as to which he was sentenced to 30 years in prison; first-degree tampering in violation of Section 569.080 RSMo. (1994), as to which he was sentenced to 20 years in prison; and first-degree property damage in violation of Section 569.100 RSMo. (1994), as to which he was sentenced to 10 years in prison; all sentences are to run consecutively. Defendant also appeals from a judgment denying on the merits, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief.

As to the direct appeal, no jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. We affirm the judgment pursuant to Rule 30.25(b).

As to the post-conviction appeal, the judgment of the motion court is based on findings of fact and conclusions of law that are not clearly erroneous. A written opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b)(2).

However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dennis PENNING, Plaintiff/Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant/Respondent.
    No. ED 75697.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.
    Application for Transfer Denied May 30, 2000.
    Stephen M. Tillery, Michael B. Marker, Carr, Korein, Tillery, Kunin, Montroy, Cates & Glass, East St. Louis, IL, for appellant.
    Thompson Coburn LLP, Dan H. Ball, James W. Erwin, St. Louis, Walker & Williams, P.C., Thomas E. Jones, Belle-ville, IL, John P. Lord, Union Pacific Railroad Company, St. Louis, for respondent.
    Before CRANDALL, P.J. and HOFF, J. and PUDLOWSKI, S.J.
   ORDER

PER CURIAM.

Dennis Penning appeals from the trial court judgment entered in favor of Union Pacific Railroad Company in a personal injury action.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error are without merit. The evidence in support of the jury verdict is not insufficient. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no jurisprudential value. Judgment affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Lonnie BOURISAW, Appellant.
    No. ED 75489.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.

    Application for Transfer Denied May 30, 2000.
    Kent Denzel, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Lonnie Bourisaw (Bourisaw) appeals from the judgment upon his conviction by a jury of seven counts of forcible sodomy, Section 566.060, RSMo Cum.Supp.1998, for which he was sentenced to seven consecutive terms of life in prison. Bourisaw claims the trial court erred when it (1) overruled Bourisaw’s objections and allowed Bourisaw to be cross-examined as to whether he had been committed to a juvenile facility for alleged prior acts of child molestation; (2) accepted the jury’s verdict because the State failed to prove an element of the crime, forcible compulsion, beyond a reasonable doubt; (3) ordered life sentences to be served consecutively; (4) refused an instruction on a lesser included offense; and (5) permitted the State to cross-examine Bourisaw with previously undisclosed evidence. We affirm.

We have reviewed the briefs of the parties, the legal file and the transcript. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth reasons for this order pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Anthony COOPER, Appellant.
    No. ED 75031.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2000.
    Motions for Rehearing and/or Transfer to Supreme Court Denied April 19, 2000.

      Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
   WILLIAM H. CRANDALL, Jr., Presiding Judge.

Defendant, Anthony Cooper, appeals from the judgment and sentence after a jury found him guilty of murder in the first degree, assault in the first degree, two counts of robbery in the first degree, two counts of burglary in the first degree, two counts of forcible sodomy and four counts of armed criminal action. We affirm in part and vacate and remand in part.

Defendant, Ceddrick Franklin and James Howard were tried together for crimes committed in the City of St. Louis. For a recitation of the facts, see State v. Franklin, 16 S.W.3d 692, 694 (Mo.App. E.D.2000). The trial court sentenced defendant as a prior offender to consecutive terms of life without parole for the murder conviction, thirty years for the assault conviction, thirty years for each robbery conviction, fifteen years for each burglary conviction, a life sentence for each sodomy conviction, a life sentence for one of the armed criminal action convictions and seventy-five years for each of the three remaining armed criminal action convictions. This appeal followed.

The transcript of the trial was requested. The court reporter stated in an affidavit that her court reporter’s bag containing the last three tapes of the trial was stolen. The stolen tapes provided the state’s rebuttal evidence, prior offender hearings, instruction conference and closing argument. This court ordered the respective attorneys to prepare a stipulation for the missing portions of the transcript. The attorneys stipulated to certain facts but were unable to agree to certain other facts. This court granted the state’s motion to remand to the trial court to resolve the disputed portions of the record. The trial court issued a certification of the trial record. Defendant filed a motion with this court objecting to the trial court’s certification of the record and requesting the cause be remanded for a new trial. Defendant contended among other things that meaningful review of his claims was impossible and that the trial court’s certification of the record was an inadequate remedy. Defendant also raised this issue in his brief.

An appealing party is entitled to a full and complete transcript for an appellate court’s review. State v. Middleton, 995 S.W.2d 443, 446 (Mo. banc 1999); State v. Anthony, 837 S.W.2d 941, 945 (Mo.App. E.D.1992). However, a transcript that is inaccurate or incomplete does not automatically require reversal. Id. Defendant is entitled to a new trial only if he exercised due diligence to correct the deficiency in the record and was prejudiced by the incompleteness of the record. Id. Under the circumstances here, defendant exercised due diligence to correct the record. With the exception of the missing transcript for defendant’s prior offender hearing that is discussed in our analysis for defendant’s fourth point, review of the record and defendant’s arguments fails to reveal any prejudice resulting from the missing transcript. Defendant’s request for a new trial is denied.

We next address defendant’s argument in his fourth point. Defendant contends that the trial court plainly erred when it found him to be a prior offender and thereby removed assessment of punishment from the jury. Defendant did not raise the issue in his motion for new trial and therefore review is for plain error. State v. Vann, 7 S.W.3d 407, 410 (Mo.App. W.D.1999). Although a criminal defendant does not have a constitutional right to have a jury assess punishment, the defendant’s right to a jury’s recommendation of sentence is granted by statute, and if the sentence recommended by a jury is within the range of punishment for that crime, it constitutes the maximum sentence a court can impose. Section 557.036.3 RSMo. Cum.Supp.1997; State v. Hunter, 840 S.W.2d 850, 863 (Mo. banc 1992)(holding that a defendant does not have a constitutional right for a jury to assess punishment).

In the information, the state charged defendant as a prior offender. The information provided that on November 1,1993, defendant pleaded guilty to the felony of “Trafficking Second Degree (931-1869) in the. Circuit Court of the City of St. Louis, State of Missouri.” As discussed, defendant’s prior offender hearing was on one of the missing tapes. In the certification of the trial record, the court stated that prior to the jury’s verdict a hearing was conducted as to defendant’s prior offender status. The court further stated that based on evidence presented at the hearing it “entered its finding reflecting that [defendant] was a prior offender under the laws of the State of Missouri, in that he pleaded guilty, on November 1, 1993, to the felony of Trafficking Second Degree in the Circuit Court of the City of St. Louis as set forth in Cause Number 931-1869 and signed an order reflecting said finding.”

A prior offender is a person who has pleaded guilty to or been found guilty of one felony. Section 558.016 RSMo.1994. Under section 558.021.1 RSMo. Cum.Supp. 1997, the court shall find a defendant to be a prior offender if: (1) the indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender; (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender; and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender.

Defendant argues that the “record does not reflect that he was properly proved up as a prior offender” under section 558.021. In the certification, the trial court did set forth the basis for finding defendant was a prior offender. However, absent a transcript, review of the trial court’s finding is not possible. Furthermore, to use a prior conviction for purposes of a prior offender finding, the state must prove that defendant was represented by counsel or waived this right at the prior proceedings. State v. Russ, 945 S.W.2d 633, 634 (Mo.App.E.D.1997). “Among the facts the state must prove is that defendant was represented by counsel at the proceedings on the convictions or that defendant was advised of that right and voluntarily waived it.” Id. Here, the trial court’s certification failed to state whether defendant was represented by counsel or if he voluntarily waived this right when he entered his guilty plea. The state notes that defendant testified that on November 1, 1993, he pleaded guilty to “Trafficking Second Degree” and received a five year sentence. But defendant did not testify that when he pleaded guilty he was represented by counsel or waived his right to counsel.

Under the circumstances presented here, defendant’s sentence must be vacated and the cause remanded for resentenc-ing. On remand, the state shall be permitted to present whatever evidence it has of defendant’s status as a prior offender. State v. Lowery, 926 S.W.2d 712, 718 (Mo. App.E.D.1996). If the state presents sufficient evidence to prove beyond a reasonable doubt defendant’s prior offender status, then the trial court may resentence defendant. Id. If not, the court must grant a new trial. Id.

No jurisprudential purpose would be served by addressing defendant’s remaining points and these points are denied. Rule 30.25(b).

The judgment on defendant’s convictions is affirmed, and defendant’s sentence is vacated and the cause is remanded.

KENT E. KAROHL, J., and MARY K. HOFF, J., Concur.

      . In Franklin, this court also vacated the sentence and remanded. Franklin, at 698-99.


text:
    QUARRY HOLDING COMPANY and James P. Davis, Plaintiffs/Appellants, v. CITY OF ST. PETERS, Defendant/Respondent.
    No. ED 76284.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 6, 2000.
    Application for Transfer Denied May 30, 2000.
    Paul Simon, Jr., Gregory M. Power, Clayton, for appellant.
    Kathryn M. Koch, Mark G. Arnold, St. Louis, for respondent.
    Before: MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and ROBERT E. CRIST, Sr.J.
   ORDER

PER CURIAM.

Quarry Holding Company and James P. Davis appeal the grant of the City of St. Peters’ motion for summary judgment and the denial of Quarry’s and Davis’ motion for summary judgment in their suit against City for “Illegal Act,” “Breach of Contract,” “Mistake,” “Unjust Enrichment,” and “Quiet Title.”

No error of law appears. A written 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:
    Jerry WADER, Movant, v. STATE of Missouri, Respondent.
    No. ED 76147.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.
    Application for Transfer Denied May 30, 2000.

      John M. Schilmoeller, Asst. Public Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CRANDALL, P.J. and HOFF, J. and ROBERT E. CRIST, S.J.
   ORDER

PER CURIAM.

Jerry Wader (Movant) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Movant argues he was denied effective assistance of counsel because: (1) he was not allowed to testify; and (2) trial counsel failed properly to investigate and call JoAnn Ripple to testify on Movant’s behalf.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. The motion court’s findings and conclusions are not clearly erroneous. Rule 29.15.(k). An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. Judgment affirmed in accordance with Rule 84.16(b).


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    Richard W. HOFFMAN, Plaintiff/Appellant, v. VAN PAK CORPORATION, Defendant/Respondent.
    No. ED 75976.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.
    Application for Transfer Denied May 30, 2000.

      Stephen G. Bell, Ronald J. Wuebbeling, St. Louis, for appellant.
    Robert J. Tomaso, D. Shane Jones, Blackwell Sanders Peper Martin LLP, St. Louis, for respondent.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff, who formerly had been employed by defendant as a salesman, appeals from that part of the trial court’s judgment denying relief under Sections 407.911-.915 RSMo (1994), which provides for damages, in addition to actual damages, to certain “sales representatives” who were not timely paid “commissions” pursuant to a contract with a “principal” to solicit “wholesale” orders. We affirm on the grounds that sufficient evidence supported the trial court’s finding that defendant was not a “principal” as defined in the statute.

FACTUAL BACKGROUND

We view the facts in the light most favorable to the judgment. Defendant, Van Pak Corporation, was a manufacturer of conveyors, palletizers, and electrical control systems and a distributor of cylinder products. These were custom products or systems which defendant produced in response to individual customer orders. In negotiating the sale, defendant sometimes recommended a system for the customer. In other cases, the customer engineered a proposed system and sent it to defendant for a bid. When the order and deposit were received, defendant produced the system as ordered. Payment was not due until delivery or until the product was successfully started up. After the product was made, defendant also provided installation services and installed “a good percentage” of what it sold. Defendant sold its products primarily to end users. Defendant sometimes custom-manufactured systems and equipment for a company which would provide defendant’s product, either alone or as part of a larger system, to one of its own customers. Defendant also sold parts or bearings to the aftermarket, which, its officers testified, were wholesale sales that constituted less than one percent of its business.

Plaintiff, Richard W. Hoffman, began his employment with defendant on April 1, 1996 and spent six months training for a sales position. After completing the training, plaintiff was given a sales territory with an existing customer base and entered into defendant’s Incentive Compensation Agreement for Qualified Salesman for F1997 (compensation agreement) dated October 1, 1996 and effective until September 30, 1997. The compensation agreement provided plaintiff with an annual draw of $48,000 paid monthly against commissions, incentive compensation paid monthly after accruing credit for the annual draw, and reimbursement for authorized business expenses, including travel, meals, and customer entertainment. The formula for compensation was set out in the incentive plan:

Commissions earned will be calculated as a percentage of accumulated gross margins on each sale. * * * The percentage of margin used to offset the gross margin quota will be 35% of the cumulative margin until the salesman exceeds his gross margin quota. Commission earned after satisfying the gross margin quota will be at a rate of 40%.

The compensation agreement provided that the incentive compensation would be credited at the time of booking and paid in the month after the booking was paid. It further provided: “A Salesman must be working for Van Pak Corporation during the month the applicable portion of the incentive compensation is earned to be eligible for the payment.”

Pursuant to the compensation agreement, plaintiff was responsible for sales of four types of accounts: end user, aftermarket, resale, and OEM accounts. The compensation agreement described these accounts in the following manner:

a. End user — the typical product or service user.
b. Aftermarket — parts business.
c. Resale — -another company similar to Van Pak Corporation buying a product or service to resell on its own or as part of a system.
d. OEM — An Original Equipment Manufacturer for whom we supply a product that they resell or incorporate into their product or product line.

Plaintiffs sales territory consisted of part of St. Louis County, southeast Missouri and the state of Arkansas. In addition, the compensation plan provided that plaintiff was to work in the office when not making sales calls and could take vacation as set out in the company manual. According to the employee handbook, either the employee or the company could terminate employment at any time for any or no reason.

Plaintiff worked for defendant during the 1997 fiscal year. On October 1, 1997, defendant introduced a new incentive compensation plan for fiscal year 1998. Under this plan plaintiff became a Regional Sales Manager, was assigned a nine-state territory plus part of Missouri, would earn commissions of 2% of all sales, and would be reimbursed for expenses on a different basis. Plaintiff raised his concern that he would receive substantially less compensation under the new plan. Plaintiff informed defendant’s president that, because of the changes in the new compensation plan, he intended to submit a proposal for resignation. On October 20, 1997 defendant terminated plaintiff. Plaintiff asserted that he was owed additional commissions for the period of October 1, 1996 through September 30,1997.

On April 17, 1998, plaintiff filed a petition in the Circuit Court of St. Louis County to recover commissions in the amount of $99,307.85 and for other relief. At trial plaintiff submitted the case on breach of contract. The issue for the jury was whether plaintiff was working for defendant during the month the claimed commissions were “earned” under the terms of the compensation agreement. The parties disputed whether orders which had been made while plaintiff was employed, but not billed and closed while he was employed were “earned” while he was employed. The jury returned a verdict in plaintiff’s favor for $99,200.21.

By stipulation, the motion for pre-judgment interest, attorney’s fees, and damages under Section 407.913 was submitted to the court. In its judgment the court awarded plaintiff damages in accord with the jury’s verdict and assessed pre-judgment interest in the amount of $7,631.62, from April 20, 1998, the date on which the parties stipulated that all orders solicited by plaintiff were fully billed and closed. The court denied plaintiff’s claim for statutory damages on the grounds that:

1) the Defendant is not engaged in the business of manufacturing, producing, importing, or distributing a product for wholesale; 2) the Incentive Compensation Agreement entered into by Plaintiff and Defendant does not provide for payment of a commission based upon a percentage of the dollar amount of orders or sales; 3) the agreement between the parties does not provide that plaintiff was to solicit wholesale orders.

Plaintiff appeals from that part of the judgment denying additional statutory damages.

DISCUSSION

For his sole point on appeal plaintiff contends that the trial court erred in denying his claim for additional damages under Sections 407.911-.915 because he presented uncontroverted facts at trial which established his right to recover damages under that statute.

We must affirm the judgment of the trial court 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. Carrón, 536 S.W.2d 30, 32 (Mo.1976). We accept the evidence and all favorable inferences in the light most favorable to the prevailing party. Mullenix-St Charles Properties, L.P. v. City of St. Charles, 983 S.W.2d 550, 555 (Mo.App.1998). We defer to the trial court’s factual findings because of its superior position to assess credibility. Id.

In addition to the damages he recovered for breach of contract, plaintiff sought to recover additional damages under Section 407.913 RSMo which provides:

Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative .... an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment. In addition the court may award reasonable attorney’s fees and costs to the prevailing party.

For this statute to apply to the parties of this case, plaintiff had to show that defendant was a “principal,” that plaintiff was a “sales representative,” and that plaintiff was compensated by “commission” as those terms are defined in Section 407.911:

407.911. Definitions — As used in sections 407.911 to 407.915, the following terms mean:
(1) “Commission”, compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales, or as a specified amount per order or per sale;
(2) “Principal”, a person, firm, corporation, partnership or other business entity, whether or not it has a permanent or fixed place of business in this state, and who:
a) Manufactures, produces, imports, or distributes a product for wholesale;
b) Contracts with a sales representative to solicit orders for the product; and
c) Compensates the sales representative, in whole or in part, by commission;
(3) “Sales representative”, a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission, but shall not include one who places orders or purchases for his own account for resale.

Plaintiff contends that defendant was a “principal” under the statute. The first criterion for a principal is that it manufacture, produce, import or distribute a product “for wholesale.” “Wholesale” is not defined by the statute.

In determining legislative intent, we must give an undefined word used in a statute its plain and ordinary meaning. State v. Burnau, 642 S.W.2d 621, 623 (Mo. 1982). Under traditional rules of construction, the word’s dictionary definition supplies its plain and ordinary meaning. Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998) (Blacks Law Dictionary); Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993) (Webster’s Third International Dictionary). Further, we presume that the legislature acted with knowledge of any prior judicial construction of the term. Citizens Elec. Corp. v. Director of Dept. of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989); State v. Stout, 958 S.W.2d 32, 34 (Mo.App.1997).

At the time this statute was enacted, Missouri case law had established the plain and ordinary meaning of “retail” and “wholesale.” When not defined in the statute in which those words were used: “Retail means ‘a sale in small quantity or direct to the consumer, as distinguished from the word wholesale meaning a sale in large quantity to one who intends to resell.’ ” Burnau, 642 S.W.2d at 623 (quoting Fountain v. St. Joseph Water Co., 352 Mo. 817, 180 S.W.2d 28, 31 (1944)). The court added: “A wholesaler is one who ‘never sells to the ultimate consumer.’ ” Id. (quoting Fischbach Brewing Co. v. City of St. Louis, 231 Mo.App. 793, 95 S.W.2d 335, 340 (1936)). Webster’s Third International Dictionary (1986), in use in 1989, defined the noun “wholesale” as “the sale of goods or commodities in quantity usu. for resale (as by a retail merchant).” It defines the adjective “wholesale” as “of, relating to, or engaged in the sale of goods or commodities in quantity for resale.” Blacks Law Dictionary, in use in 1989, defined “wholesale” as “selling to retailers or jobbers rather than to consumers...a sale in large quantity to one who intends to resell.” black’s law DICTIONARY 1482 (5th ed.).

These dictionary definitions of “wholesale” have been adopted in construing the New Jersey Sales Representatives’ Rights Act, N.J.S.A. 2A:61A-1 et seq., which also defines “principal” as one who “manufactures, produces, imports or distributes a product for wholesale.” American Delta Technologies, Inc. v. RK Electronic Information Concepts, 276 N.J.Super. 283, 647 A.2d 1844, 1346-47 (App.Div.1994).

Plaintiffs reliance on broader definitions of “wholesale” found in Roland Electrical Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383 (1946) and Holtz v. Plastore, 760 F.Supp. 698 (N.D.Ill.1991) is misplaced. In Roland Electric the question before the Court was whether the exemption from the Fair Labor Standards Act for employees engaged in retail or service establishments applied to employees of a firm which engaged in manufacturing and supplying electrical equipment and services in interstate commerce to commercial and industrial users. The Court analyzed the word “retail” by contrasting it with “wholesale.” Its conclusion, that the firm in question was not a retail or service establishment under the Fair Labor Standards Act, cannot be taken out of that context and fairly be applied to the Missouri statute at issue here. We also find unpersuasive the fact that, in denying a motion to dismiss, the Illinois federal district court in Holtz adopted the Roland Electric definitions in determining the meaning of “wholesale” under the Illinois Sales Representative Act. Ill.Rev.Stat. Ch. 48, para. 2251 (1985), amended by 820 ILCS 120/1 (1993).

There was sufficient evidence to support the trial court’s finding that defendant did not manufacture, produce, import, or distribute a product for wholesale. Plaintiff adduced no evidence of sales made of a product in large quantities to one who intends to resell. Rather, the evidence was that defendant primarily custom-manufactured each product after it was ordered according to that customer’s specifications. The sales were primarily to end users. The fact that two customers were companies in the same industry which ordered a system or custom equipment to resell to its own customer or to incorporate into a product that they made did not convert these sales into wholesale sales. There was no evidence that such orders for a custom product involved the sale of a large quantity of items to the customer for resale.

Plaintiff last argues that there is no good reason for restricting the application of the statute based on “semantics” and that, as a commissioned salesman, the statute should apply to him. Section 407.913 provides for additional monetary damages, in addition to actual damages, for the untimely payment of commissions. Statutes imposing penalties must be strictly construed. Masterson v. Roosevelt Bank, 919 S.W.2d 9, 11 (Mo.App.1996). The statute uses the word “wholesale” in defining both “principal” and “sales representative.” We presume that the legislature did not insert idle verbiage or superfluous language in the statute. Hyde Park Housing Partnership v. Director of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993). Each word, clause, sentence, and section of a statute should be given meaning. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993); J.S. DeWeese Co. v. Hughes-Treitler Mfg. Corp., 881 S.W.2d 638, 643 (Mo.App.1994).

These rules of construction have been applied to hold that “sales representatives” under this statute are limited to natural persons. Id. Further, other jurisdictions using these rules, have held that “product,” as used in similar statutes, refers only to tangible, manufactured goods and does not include services. American Delta Technologies, Inc., 647 A.2d at 1347; English Co. v. Northwest Envirocon. Inc., 278 Ih.App.3d 406, 215 Ill.Dec. 437, 663 N.E.2d 448, 454 (1996).

It is clear that in its use of the word “wholesale” the legislature intended to address a problem in the wholesale distribution system and wholesale markets and did not intend to create additional remedies for all salespersons who are paid by commission. Whether such a remedy should be extended to all commissioned salespeople is a question for the legislature, not for the courts.

Because defendant was not a “principal” as defined by Section 407.911. l(2)(a) of statute the trial court did not err in denying damages under Section 407.913 RSMo.

The judgment of the trial court is affirmed.

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

      . Because this case is resolved by the issue of whether defendant manufactured, etc. a product for "wholesale," we do not address whether the transaction or the parties fell within or without any other provision of Sections 407.911-.915.


author: LAWRENCE G. CRAHAN, Judge.

text:
    In the ESTATE OF Robert LAUSE, Deceased. Trudy Carra-deSalero, in her capacity as next friend for Oliver Robert Lause, a minor, Appellant, v. Rebecca Krawitz, in her capacity as administrator of the estate of Robert Lause, deceased, Respondent.
    No. ED 76354.
    Missouri Court of Appeals, Eastern District. Division Five.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 6, 2000.
    Application for Transfer Denied May 30, 2000.
    Russell A. Willis III, Creve Coeur, for appellant.
    John Robert O’Connor, Emil L. Poert-ner, Union, for respondent.
   LAWRENCE G. CRAHAN, Judge.

Trudy Carra-deSalero (“Mother”) in her purported capacity as next friend for Oliver Robert Lause (“Son”) appeals the final settlement of the estate of Robert Lause (“Father”) and other orders related to the administration of the estate. We dismiss the appeal for lack of standing.

Mother and Father were never married ■ but their out-of-wedlock union produced Son, born April 9, 1982, whom Father supported financially during his lifetime. Father also named Son as the beneficiary of a testamentary trust, which was to receive the residue of his estate.

Father died on October 19,1997. At the time of his death, Father resided in Franklin County and Mother and Son resided in Colorado. A will dated January 16, 1991 was admitted to probate and letters of administration were granted on December 11, 1997 to Rebecca Krawitz (“Administrator”), who was also named in the will as the trustee of the testamentary trust.

Beginning in May 1998, Mother filed a series of motions on behalf of Son in her purported capacity as his next friend. However, Mother never sought an order appointing her as next friend, nor do we find any such appointment in the record.

On September 1, 1998, Administrator filed a motion to modify the homestead order to abate any payments due to be paid to Mother on Son’s behalf and to direct any payments instead to his lawful custodian once appointed by a Colorado court. This motion alleged upon information and belief that Son had initiated or intended to initiate a guardianship proceeding because Mother had failed and refused to care for him. Son did institute such a proceeding in Colorado. So far as we can determine from the record, Administrator’s motion was resolved informally pending the outcome of the guardianship proceeding with payments being made directly to Son’s landlord in Colorado.

On January 28, 1999, the District Court of Larimer County, Colorado issued Findings and Orders appointing Michael R. Smith, Son’s employer and mentor, as Son’s guardian. The Colorado District Court specifically found that Mother was more concerned with the financial gains from having Son in her household and had ignored her parental responsibility to him. The Court further found that Mother had at least attempted to use Son’s property for her own financial gain. On February 16, 1999, the Colorado District Court issued supplemental orders also appointing Mr. Smith as Son’s conservator. The Court further noted that, pursuant to its previous order, attorney Russell Willis, Mother’s counsel at trial and on appeal, no longer had authority to act on behalf of Son in the Missouri probate action.

A final settlement was filed in the probate proceeding on February 25, 1999 and approved on March 17, 1999. On March 30, 1999, Mother filed a motion for leave to file objections to the final settlement out of time and a motion to set aside the judgment approving the final settlement. On June 2, 1999, these motions were overruled. Mother filed her notice of appeal on June 14, 1999.

Administrator claims Mother’s appeal should be dismissed because, inter alia, she lacks standing to pursue this appeal on Son’s behalf in her purported capacity as his next friend. We agree. Mother claims no personal interest in the estate. Thus, she is not personally aggrieved by any ruling of the trial court and can claim standing to pursue this appeal only if she is properly before the court as Son’s next friend. Rule 52.02(a) provides that “civil actions by minors may be commenced and prosecuted only by a duly appointed guardian of such minor, or if there is no such guardian, by a next friend appointed by him in such civil action.” Mere allegations that one is a next friend does not make such a person the next friend or guardian. Lechner v. Whitesell by Whitesell, 811 S.W.2d 859, 861 (Mo.App. 1991).

Contrary to the recitation in the style of her pleadings, Mother was never appointed next friend for the minor child. Neither the docket sheet nor any other document in the legal file gives any indication that Mother was appointed as next friend or that Son ever consented to such appointment.

More importantly, at the time Mother filed her notice of appeal she was no longer eligible to act as Son’s next friend because a guardian had been duly appointed for Son by the District Court in Colorado. Under the express language of Rule 52.02(a), a next friend can only be authorized to act on behalf of a minor child “if there is no such guardian.” Moreover, the Colorado District Court had expressly ruled that Mother’s attorney, and thus Mother, no longer had any authority to represent Son in the Missouri probate proceeding. If Mother and her attorney lacked authority to appear on Son’s behalf in the underlying probate proceeding, Mother likewise lacks standing to pursue this appeal in her purported capacity as Son’s representative.

Appeal dismissed.

MARY RHODES RUSSELL, C.J., ROBERT E. CRIST, Sr.J., Concur.

      . Mother claims the probate court recognized her as acting as Son’s "Next Friend” in its orders granting a homestead and support allowance. Although those orders refer to her as Son’s "fiduciary” and "Mother,” they do not recognize any court appointing her as next friend. Moreover, in a letter to the attorney for the guardian dated March 9, 1999, Mother’s attorney acknowledged that the probate judge thought it inadvisable for him to make further filings on behalf of Mother in view of the Colorado District Court's orders. Thus, nothing in the record suggests the probate court implicitly regarded Mother as having authority to act on Son’s behalf.

      . The District Court’s appointment of Mr. Smith as Guardian was affirmed, at least as an emergency measure, in In re the Matter of O.R.L., et al, 996 P.2d 788 (Colo.App.2000).


text:
    STATE of Missouri, Respondent. v. Ceddrick FRANKLIN, Appellant.
    No. ED 75070.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2000.
    Motions for Rehearing and/or Transfer to Supreme Court Denied April 19, 2000.
    Application for Transfer Denied May 30, 2000.

      Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
   WILLIAM H. CRANDALL, Jr., Presiding Judge.

Defendant, Ceddrick Franklin, appeals from the judgment and sentence after a jury found him guilty of murder in the first degree, assault in the first degree, two counts of robbery in the first degree, two counts of burglary in the first degree, two counts of forcible sodomy and four counts of armed criminal action. We affirm in part and vacate and remand in part.

In September 1997, Anthony Cooper and James Howard were at Ronnie Golden’s residence. Howard told Cooper he wanted to rob Cornelius Payne. Howard also stated that Payne would have to be killed because Payne knew him. Defendant, Anthony Cooper, James Howard, Ronnie Golden and a fifth man went to rob Payne at his apartment located in a four family flat in St. Louis. Because there were several people around the flat, the men decided not to commit the robbery. On October 8, 1997, defendant went to Golden’s house where Cooper and Howard were present. Defendant said “he needed some drugs in his system.” Howard suggested that they “do the robbery” of Payne and that if they got a large amount of “dope” they would split it. Cooper then left and returned with Andre McIntosh. Defendant drove a stolen car to Howard’s house to obtain “things” for the robbery. Cooper, Howard, Golden and McIntosh drove a different car to Howard’s house. Defendant, Cooper, Howard, Golden and McIntosh prepared for the robbery by dressing in black, obtaining four pistols and wearing gloves and putting tape on their fingers to avoid leaving fingerprints. The five men went in the stolen ear to the four family flat and kicked in the door of one of the apartments. Dewayne Dodd, Ramona Davis and three children and not Payne lived at this apartment. The men demanded drugs and money, and hit and kicked Dodd and Ramona Davis. Food stamps were stolen from this apartment. Cooper found some razor blades and cut Dodd. Dodd suffered a broken nose and his cuts required between 300 and 350 stitches. The assailants eventually realized they were in the wrong apartment. Cooper told Golden to stay in Dodd’s apartment to make sure no one called the police. Defendant, Cooper, Howard and McIntosh then went to Payne’s apartment and kicked in the door. Payne, Carla Davis and three children were in the apartment. The four men demanded money and drugs. Defendant, Cooper and Howard beat Payne with a pole. At one point, the mask Cooper was wearing “raised up” and Carla Davis saw his face. Cooper told her he knew where she lived and he would kill her if she said “something.” Defendant found a pistol and gave it to Cooper. Cooper and Howard shot Payne, and additional' shots were also fired. Payne was shot nine times and died from his wounds. Drugs and other items were stolen from the apartment. Defendant, Cooper, Howard, Golden and McIntosh fled in the stolen ear and divided up the stolen property.

Defendant was charged by information as a prior offender with murder in the first degree, assault in the first degree, two counts of robbery in the first degree, two counts of burglary in the first degree, two counts of forcible sodomy, four counts of armed criminal action and sexual misconduct in the first degree. The state entered a motion of nolle prosequi for the sexual misconduct count. Defendant, Cooper and Howard were tried together. The jury found defendant guilty of the twelve counts remaining at trial. The trial court sentenced defendant as a prior offender to consecutive terms of life without parole for the murder conviction, twenty-five years for the assault conviction, twenty-five and thirty years for the robbery convictions, fifteen years for each burglary conviction, thirty years for each sodomy conviction and two life sentences, fifty years and twenty-five years for the armed criminal action convictions. This appeal followed.

The transcript of the trial was requested. The court reporter stated in an affidavit that her court reporter’s bag containing the last three tapes of the trial was stolen. The stolen tapes provided the state’s rebuttal evidence, prior offender hearings, instruction conference and closing argument. This court ordered the respective attorneys to prepare a stipulation for the missing portions of the transcript. The attorneys stipulated to certain facts but were unable to agree to certain other facts. This court granted the state’s motion to remand to the trial court to resolve the disputed portions of the record. The trial court issued a certification of the trial record and an addendum to the certification. Defendant filed a motion with this court objecting to the trial court’s certification of the record and requesting the cause be remanded for a new trial. Defendant contended among other things that meaningful review of his claims was impossible and that the trial court’s certification of the record was an inadequate remedy. Defendant also raised this issue in his brief.

An appealing party is entitled to a full and complete transcript for an appellate court’s review. State v. Middleton, 995 S.W.2d 443, 466 (Mo. banc 1999); State v. Anthony, 837 S.W.2d 941, 945 (Mo.App. E.D.1992). However, a transcript that is inaccurate or incomplete does not automatically require reversal. Id. Defendant is entitled to a new trial only if he exercised due diligence to correct the deficiency in the record and was prejudiced by the incompleteness of the record. Id. Under the circumstances here, defendant exercised due diligence to correct the record. With the exception of the missing transcript for defendant’s prior offender hearing that is discussed in our analysis for defendant’s ninth point, review of the record and defendant’s arguments fails to reveal any prejudice resulting from the missing transcript. Defendant’s request for a new trial is denied.

We next address defendant’s argument in his second point on appeal. Defendant contends that the trial court erred in “fashioning a ruling” that deprived the defense of its right to effectively cross-examine Golden and McIntosh regarding pending criminal charges. Defendant also contends that the trial court erred in refusing to permit the defense to cross-examine Martiez Armstrong at all regarding pending criminal charges. Defendant further contends that the rulings denied him the opportunity to demonstrate to the jury a reason for these witnesses to testify favorably for the state.

The scope of cross-examination and determinations regarding witness credibility are matters largely within the discretion of the trial court. State v. Taylor, 944 S.W.2d 925, 935 (Mo. banc 1997). Generally, a witness’ credibility may not be impeached by showing a mere arrest, investigation or criminal charge that has not resulted in a conviction. State v. Wise, 879 S.W.2d 494, 510 (Mo. banc 1994); State v. Francis, 997 S.W.2d 74, 78 (Mo.App. W.D. 1999). There are three exceptions to this general rule: (1) where the inquiry demonstrates a specific interest of the witness; (2) where the inquiry demonstrates the witness’ motivation to testify favorably for the state; or (3) where the inquiry demonstrates that the witness testified -with an expectation of leniency. Id.; State v. Joiner, 823 S.W.2d 50, 52-53 (Mo.App. 1991).

The state filed a motion in limine requesting the trial court to order defense counsel not to mention any pending criminal cases of the state’s witnesses. The trial court overruled the state’s motion. Prior to Golden’s testimony for the state; the trial court, the prosecutor and defendant’s, Howard’s and Cooper’s counsel discussed pending criminal cases against Golden in which Cooper and Howard allegedly had some involvement. There was also discussion that if Golden were cross-examined regarding these pending cases then the prosecutor would be permitted “to go into more detail” as to the pending cases and this would constitute improper evidence of uncharged crimes. The trial court stated that defendant’s counsel could cross-examine Golden as to his pending criminal eases, “but if you do then I think that opens the door” for the prosecutor. During cross-examination, defendant’s counsel asked Golden whether he had a pending case. The trial court sustained an objection to this question made by Howard’s and Cooper’s counsel. The trial court then explained its ruling:

THE COURT: All right. Let me get [defendant’s counsel] here because he asked the question. Was your question, [defendant’s counsel], going to have to relate to whether disposition of the pending case had anything to do or was part of the negotiation in exchange for his testimony?
[DEFENDANT’S COUNSEL]: Yes, Your Honor.
THE COURT: Was your question in any way going to relate to any of the defendants in the pending case?
[DEFENDANT’S COUNSEL]: I was not going to ask them about the pending or anything else.
THE COURT: So your question was going to be whether the disposition, whether any disposition of the pending case about any reference to the particular of the case charged, whether there was anybody else charged together went into the negotiation for his testimony?
[DEFENDANT’S COUNSEL]: Right.
THE COURT: I think that if [defendant’s counsel] asks him that question in that fashion without getting into the specifics of it as he has just indicated through what the court considers an offer of proof I will allow the question to be artfully made and the answer given in that limited fashion.
[PROSECUTOR]: Well, I understand, of course, ruling, and so on redirect I’m going to ask about that pending case. I think that that’s only fair. He was instructed — he was instructed what the consequences were going to be and they were each and every one -
THE COURT: Well, let’s cross that bridge when we get to it if we get to it.
[PROSECUTOR]: He’s already gotten to it.
THE COURT: Not to anticipate any inquiry on redirect examination or to arrive at anticipatory rulings, but it was the court’s understanding and we discussed this issue in chambers that the issue was whether we were going to get into the specifics of the case as in whether there were unindicted co-defendants or whether he was an unindicted co-defendant or the particulars of the case as to who the defendants were or the charges, which is different from the question that [defendant’s counsel] has posed in relation to just saying was there any deal to dispose of any pending case in exchange other than this one in exchange for your testimony, which is what you intended to propose to ask, right?
[DEFENDANT’S COUNSEL]: Yes.
[Cross-examination of Golden continued]:
[DEFENDANT’S COUNSEL]: This other pending case, you got the same lawyer for that case that you did for the case we’re here on today; is that right?
[GOLDEN]: Yes.
[DEFENDANT’S COUNSEL]: Is that right?
[GOLDEN]: Yes.

Although initially sustaining the objection, the court set forth the parameters for questioning Golden regarding his pending criminal case. The court indicated that defendant’s counsel could question Golden as to whether disposition of his pending case was related to his testimony for the state. Accordingly, defendant was permitted to cross-examine Golden regarding whether he had a reason to testify favorably for the state. Defendant’s counsel did not inquire further other than asking Golden if he had the same lawyer for his pending case and for his involvement in the present case. Furthermore, Golden was cross-examined regarding the “deal” he made for his testimony for his involvement in the crimes for the present case.

In addition to contending that the trial court’s ruling deprived him of effective cross-examination of Golden, defendant also contends that he was left in a “no win situation” of either not cross-examining Golden on his pending case or implicating Cooper and Howard and thereby creating guilt by association. See State v. Shackel-ford, 861 S.W.2d 738, 736-87 (Mo.App. E.D.1993). However, we find that the trial court’s ruling permitted inquiry into any motive for Golden to testify favorably for the state without unduly permitting improper guilt by association evidence. In addition, as indicated by the court, its ruling was anticipatory regarding whether on redirect the prosecutor could get into “the details” of Golden’s pending case. Under these circumstances, the trial court did not abuse its discretion.

The following is taken from McIntosh’s cross-examination:

[HOWARD’S COUNSEL]: Now, is it true that you also have pending a pending charge?
[PROSECUTOR]: Your Honor, I’m going to object and ask to approach the bench please.
[HOWARD’S COUNSEL]: Well, this is what I would ask: Do you have a pending unlawful use of a weapon [ ], a .22 caliber on 7/26/97 at I think it’s 5715 Lotus? And then my next question is ... Has the State of Missouri made any deals with you concerning that case? [PROSECUTOR]: I totally object to that, Your Honor. It is irrelevant to this case, and the state has a motion in limine against pending cases that has absolutely no bearing on this.
[THE COURT]: I will allow you to ask the question as to whether there was any deal regarding any pending case of the disposition of any pending case in exchange for his testimony, any pending case other than this case. The first question though that you asked, I’m not going to let you ask that question.
[PROSECUTOR]: So what are you going to let him ask?
[THE COURT]: I’m going to let him ask if there is a deal regarding disposition of any other pending cases in exchange for his testimony. I will allow him to ask that question, but I will not allow you to go into any details of any pending cases.
[DEFENDANT’S COUNSEL]: If I could save ourselves the troubles, and I would also join in this motion to get into this pending case which go to the dates of the charge, and I’m going to assume that your ruling is that I would also not be allowed to ask those questions?
[THE COURT]: Except for the matters I indicated.
[Cross-examination of McIntosh continued]
[HOWARD’S COUNSEL]: Mr. McIntosh, not including this case, is there any deal you struck for any pending case in exchange for your testimony here today?
[McIntosh]: No.

The analysis for Golden applies to defendant’s challenge to McIntosh’s cross-examination. The court ruled that McIntosh could be cross-examined regarding any “deal” he made for disposition of any pending cases in exchange for his testimony for the state. Howard’s counsel did ask whether there was any deal for his testimony. Defendant’s counsel did not question McIntosh regarding any pending cases. As with Golden, McIntosh was cross-examined regarding the state’s sentencing recommendation for his guilty pleas in the present case. The trial court did not abuse its discretion.

Martiez Armstrong testified during the state’s rebuttal case and as previously discussed, the transcript for that portion of the trial is missing. In its addendum to the record certification, the trial court stated that the defense brought the existence of the pending charge to the prosecutor’s attention. The court also stated:

On the issue of cross-examining witness Armstrong relative any pending misdemeanor charge, there was discussion of this matter and an objection on general relevancy grounds, in light of the fact that the prosecutor was advised of its existence by the defense and there was no good faith indicia of the existence of any deal or intent to make a deal in exchange for any rebuttal testimony.

The trial court’s statements reflect and defendant does not argue on appeal that there was any deal by the state for Armstrong’s rebuttal testimony. Defendant argues that the “jury could have found that Armstrong had perceptions of the prosecution’s power over her pending charges” and this gave her a motive to lie. However, defendant’s argument is speculative and therefore insufficient to show an abuse of discretion. State v. Harris, 825 S.W.2d 644, 649 (Mo.App.1992); State v. Watts, 813 S.W.2d 940, 943 (Mo.App.1991); See Francis, 997 S.W.2d at 78. Defendant’s second point is denied.

We next address defendant’s argument in his ninth point. Defendant contends that the trial court erred when it found him to be a prior offender and thereby removed assessment of punishment from the jury. Defendant did not raise the issue in his motion for new trial and therefore review is for plain error. State v. Vann, 7 S.W.3d 407, 410 (Mo.App. W.D. 1999). Although a criminal defendant does not have a constitutional right to have a jury assess punishment, the defendant’s right to a jury’s recommendation of sentence is granted by statute, and if the sentence recommended by a jury is within the range of punishment for that crime, it constitutes the maximum sentence a court can impose. Section 557.036.3 RSMo. Cum.Supp.1997; State v. Hunter, 840 S.W.2d 850, 863 (Mo. banc 1992)(holding that a defendant does not have a constitutional right for a jury to assess punishment).

In the information, the state charged defendant as a prior offender. The information provided that on October 16, 1994, defendant pleaded guilty to the felony of “Distribution/Sale C/S Cocaine Base (941— 253) in the Circuit Court of the City of St. Louis, State of Missouri.” As discussed, defendant’s prior offender hearing was on one of the missing tapes. In the certification of the trial record, the court stated that prior to the jury’s verdict a hearing was conducted as to defendant’s prior offender status. The court further stated that based on evidence presented at the hearing it “entered its finding reflecting that [defendant] was a prior offender under the laws of the State of Missouri, in that he pleaded guilty, on October 16, 1994, to the felony of Distribution/Sale of a Controlled Substance Cocaine Base in the Circuit Court of the City of St. Louis as set forth in Cause Number 941-25B and signed an order reflecting said finding.”

A prior offender is a person who has pleaded guilty to or been found guilty of one felony. Section 558.016 RSMo.1994. Under section 558.021.1 RSMo. Cum.Supp. 1997, the court shall find a defendant to be a prior offender if: (1) the indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender; (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender; and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender.

Defendant argues that the “silent record fails to demonstrate that the prior conviction the state pleaded was indeed suffered by [defendant], and that he was represented by counsel at the alleged prior conviction.” In the certification, the trial court did set forth the basis for finding defendant was a prior offender. However, absent a transcript, review of the trial court’s finding is not possible. Furthermore, as noted by defendant, the trial court’s certification fails to state whether defendant was represented by counsel when he entered his guilty plea or if he voluntarily waived this right. “Among the facts the state must prove is that defendant was represented by counsel at the proceedings on the convictions or that defendant was advised of that right and voluntarily waived it.” State v. Russ, 945 S.W.2d 633, 634 (Mo.App. E.D.1997).

Under the circumstances presented here, defendant’s sentence must be vacated and the cause remanded. On remand, the state shall be permitted to present whatever evidence it has of defendant’s status as a prior offender. State v. Lowery, 926 S.W.2d 712, 713 (Mo.App. E.D. 1996). If the state presents sufficient evidence to prove beyond a reasonable doubt defendant’s prior offender status, then the trial court may resentence defendant. Id. If not, the court must grant a new trial. Id.

No jurisprudential purpose would be served by addressing defendant’s remaining points and these points are denied. Rule 30.25(b).

The judgment on defendant’s convictions is affirmed, and defendant’s sentence is vacated and the cause is remanded.

KENT E. KAROHL, J„ and MARY K. HOFF, J., Concur.

      . The evidence was sufficient to support the jury’s verdict regarding the two sodomy counts and extensive recitation of the facts relating to these two counts is unnecessary.

      . During cross-examination, Golden testified that he pleaded guilty to thirteen counts. He also testified that in exchange for his testimony the state agreed to amend the murder in the first degree count to murder in the second degree, he would receive "a deal of seventeen years” for the thirteen counts and he had not been sentenced.

      . Defendant also contends that the trial court erred in its ruling permitting Cooper and Howard to be implicated for uncharged crimes because "a defendant in a criminal case has a right to be tried only for the offense with which he is charged.” However, the discussion prior to Golden’s cross-examination does not reflect that, contrary to Cooper and Howard, defendant was either an unindicted co-conspirator or indicted for alleged involvement in the pending case against Golden. Regardless, the analysis for defendant’s argument as to guilt by association evidence is applicable.

      . McIntosh testified that his “deal” with the state provided that he would be sentenced to concurrent terms of ten years for certain counts to be served consecutively with concurrent terms of five years for the remaining counts.

      . The state’s motion to strike the affidavit in the appendix of defendant's brief is granted.


author:
CROW, Presiding Judge.
      JOHN E. PARRISH, Judge, KENNETH W. SHRUM, Judge,

text:
    STATE of Missouri, Respondent, v. David C. BARNETT, Appellant.
    No. 23076.
    Missouri Court of Appeals, Southern District, Division One.
    March 10, 2000.
    Motion for Rehearing and Transfer to Supreme Court Denied April 3, 2000.
    Application for Transfer Denied May 30, 2000.

      Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for Respondent.
   CROW, Presiding Judge.

Appellant, tried by jury, was convicted of statutory rape in the first degree, § 566.032, RSMo 1994, and statutory sodomy in the first degree, § 566.062, RSMo 1994. The jury assessed punishment at ten years’ imprisonment for each crime. The trial court entered judgment per the verdict, running the sentences concurrently. This appeal followed.

Appellant’s sole point relied on is:

“The trial court erred and abused its discretion in failing to declare a mistrial after being informed by the jury that one juror ‘could not go against her personal feelings about this case’ and vote in favor of guilt, in violation of Mr. Barnett’s rights to due process of law and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United State Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, in that by failing to confer with counsel or determining the deadlock of the jury before instructing the jury for a second time to follow the instructions previously given the trial court compelled the jury to return guilty verdicts against Mr. Barnett.”

As Appellant does not challenge the sufficiency of the evidence to support the judgment, this opinion need not recount the sordid saga except to report that the victim was a seven-year-old girl.

After deliberating some three and a half hours, the jury entered the courtroom at 8:11 p.m. and presented verdicts signed by the foreperson finding Appellant guilty of both crimes and assessing punishment at ten years’ imprisonment for each.

Appellant’s lawyer (“Defense Counsel”) then said: “I would request that the jury be poled [sic].”

The trial court directed the clerk to poll the jury, whereupon the clerk asked each juror: “[I]s this your verdict?”

Eleven jurors answered, “Yes.” One juror, Donna Baker, answered, “No.” Then, this:

“[Prosecutor]: Your Honor, on behalf of the state, it’s required that it’s unanimous.
THE COURT: Yes.
[Prosecutor]: Since it was not polled (sie)[], I would ask that you instruct the jury to go back and follow the instructions and come back with a unanimous decision.
THE COURT: On the basis of the poll, ladies and gentlemen, your verdicts will be rejected. And I will ask you to return to the jury room and deliberate and return with a unanimous verdict.
Thank you very much.
(The jury returns to the jury room for deliberations at 3:15 p.m.)
(The following proceedings were had outside the presence of the jury.)
[Defense Counsel]: I need to make a motion at this time.
As of this time I would move for a mistrial. Obviously they didn’t follow the instructions given, that all jurors must be unanimous. They didn’t follow that instruction, and yet tendered a verdict of guilty when in fact all 12 had not agreed upon that sentence [sic]. So, at this time I would move for a mistrial.
I think that any continued deliberations would be — wouldn't be fair deliberations at this point, given what we just heard.
THE COURT: Motion for mistrial will be denied.
(At 3:30 p.m. the following proceedings were had outside the presence of the jury.)
THE COURT: On the record, gentlemen, I have this note from the jury. ‘Although the vote was unanimous on both counts, all 12 voting to convict, one juror expressed doubt all during deliberations. However, after further discussions that juror did vote to convict.
‘However, during the polling, which was not expected, that juror could not state what she does not truly feel. It is our thought that we would not be able to convince that juror to go against her personal feelings about this case. We feel that we are unable, for this reason, to not have the same occurrence again.’
I have sent instructions back in and told the jury to continue to deliberate in accordance with the instructions given.[ ]
There is an instruction that I can send to the jury, which I may do shortly, which says that if they agree upon to convict but cannot agree upon punishment, the court can sentence.
I think we should get that instruction prepared and a verdict form prepared to go along with it, which I will send in if they don’t return with something shortly.
[Defense Counsel]: I need to inquire as to what the note said. I heard part of the that [sic].
THE COURT: The note says that they — their vote was unanimous to convict. And that’s the reason that I’m saying what I’m saying, that—
[Defense Counsel]: But didn’t they also say that one juror had doubts throughout the process? I don’t know if that goes to the culpability, the guilt/not guilt.
THE COURT: I don’t either, and it doesn’t say. So that’s why I’m inclined to say that this instruction should proba-blybe—
[Prosecutor]: May I see the instruction book, Your Honor?
THE COURT: — -should be sent in at some point, yeah.
[Prosecutor]: There are — you’re allowed to communicate. And they give some — and you can do this by a note or bring in the jury, as to Count One, has the jury unanimously reached the decision to find the defendant either guilty or not guilty. And they can answer that yes or no.
If the answer is yes, indicate whether you found the defendant guilty or not guilty. And then they answer that.
And if the answer is no, indicate whether if given more time would be able to reach a decision to find the defendant guilty or not guilty.
And then it goes on down to — with questions about punishment. And this instruction is not to be given, the way I read it, until you have made a determination that they are, in fact, hung up over the punishment stage.
THE COURT: And that’s why I’m going to wait. That’s why I’m going to wait.
[Prosecutor]: We’ll go ahead and start preparing it.
THE COURT: But if they — if I think they are hung up — they’ve got the instructions back They have clean instructions. I’ve told them to deliberate in accordance with the court’s instructions.
If they indicate that they’re still hung up, I think this is the next step.
[Defense Counsel]: If I may inquire, does the note that they sent out, the communication, ask for a question to the court or is it just a statement?
THE COURT: It is just a statement.
[Defense Counsel]: I would tender again that I think that one person is expressing her feelings. She certainly didn’t feel like she could express them fully back there because she came out here and said no. That, again, any further deliberations would not be fair at this point. I think we should respect the wishes of one juror. And I would again move for a mistrial.
THE COURT: That will be denied.
(At 4:25 p.m. the jury returned with their verdict. And the following proceedings were had.)
THE COURT: Foreperson, hand your verdict to the sheriff, please.
Okay, as to Count One, ‘We the jury find the defendant, David C. Barnett, guilty of statutory rape in the first degree as submitted in Instruction Number 6. We assess and declare the punishment for David C. Barnett at imprisonment of [sic] a term of ten years.’ Signed by Sam Randolph, foreperson.
Second, as to Count Two, “We the jury find the defendant, David C. Barnett, guilty of statutory sodomy in the first degree as submitted in Instruction Number 8. We assess and declare the punishment for David C. Barnett at imprisonment for a term of ten years.’ Signed by Sam Randolph, foreperson.
Ladies and gentlemen, is this your verdict?
(Jury responds yes.)
[Defense Counsel]: Again, Judge, I would ask that the jury be polled.”

The trial court directed the clerk to poll the jury, whereupon the clerk asked each juror: “Is this your verdictf?]”

This time, all twelve jurors answered, “Yes.”

The trial court announced the verdicts “will be received.” The court then discharged the jury.

It appears to this court from the statement of facts and argument in Appellant’s brief that Appellant draws an inference from the transcript that may be incorrect.

According to the transcript, the trial court informed the prosecutor and Defense Counsel at 3:30 p.m. that the court had received a note from the jury. The court read the note aloud, after which the court uttered the first italicized remark (the one beginning “I have sent instructions ... ”).

The statement of facts in Appellant’s brief, citing that portion of - the transcript, avers:

“The trial court called the attorneys to advise them of the jury’s message and to inform the attorneys that it had returned to the jury an instruction ‘to continue to deliberate in accordance with the instructions given.’ ”

The argument following Appellant’s claim of error, citing the same portion of the transcript, avers:

‘Without consulting counsel, the trial court told the jury ‘to continue to deliberate in accordance with the instructions given.’ ”

This court divines from the above-quoted excerpts from Appellant’s brief that he believes the trial court, after receiving the note from the jury (and without consulting counsel), instructed the jury — off the record — “to continue to deliberate in accordance with the instructions given.” If that be Appellant’s understanding of the transcript, he may be wrong.

The transcript does not show the jury was brought before the trial court between the time the court received the note and the time the court told counsel about it, nor does the transcript show the court entered the jury room during that interval. Consequently, if the trial court communicated verbally with the jury during that interval, the trial court would have had to do so without the court reporter recording the event. This court is loath to assume that occurred.

The only other possible method of communication would have been a written instruction from the trial court to the jury directing the jury “to continue to deliberate in accordance with the instructions given.” This court’s examination of the record has turned up no such instruction.

The legal file contains only the written instructions read to the jury before it retired to deliberate. Nothing in the record even remotely suggests the trial court gave the jury a written instruction during deliberations.

The record does clearly demonstrate the trial court gave the jury one verbal directive during deliberations. That was the one immediately after the first poll, when the trial court said:

“On the basis of the poll ... your verdicts will be rejected. And I will ask you to return to the jury room and deliberate and return with a unanimous verdict.”

Contrary to the inference Appellant evidently draws from the transcript, this court believes the two italicized portions of the trial court’s remarks, read together, can reasonably be understood to mean the trial court, after reading counsel the note, was merely reminding counsel that the court, following the first poll, sent the jury back to the jury room and, either then or later, sent into the jury room the •written instructions the jury had received before initially retiring. This court believes that scenario is more likely correct than the one apparently embraced by Appellant. However, both are plausible, hence this court, in adjudicating Appellant’s claim of error, shall discuss both.

As this court believes its scenario is more likely correct, this court shall begin with it. Under it, the outcome of this appeal hinges on whether the trial court’s verbal directive to the jury immediately after the first poll constituted reversible error.

It is axiomatic, of course, that coercion of a guilty verdict by a trial court constitutes error. State v. Bums, 808 S.W.2d 1, 3[3] (Mo.App. E.D.1991). Appellant relies on Bums in seeking reversal. However, as henceforth explained, Appellant’s reliance is misplaced.

In Bums, as here, the accused was tried on two counts. Id. at 1. The jurors in Bums deliberated three hours and 35 minutes, then sent the trial court a note asking whether they had a “time limit” to reach a verdict. Id. at 2. In response, the trial court read the jury MAI-CR 3d 312.10, characterized in Bums as “the Al-⅛-type hammer instruction.” Id. About an hour and a half later, the jurors in Bums returned into court and were told by the trial court:

“Ladies and gentlemen of the jury, as you were instructed, you have to return a verdict on each count. You will go back to the jury room and complete your deliberations on Count II.”

Id.

Ten minutes later, the jury in Bums returned a verdict of not guilty on the first count, and subsequently found the accused guilty on the second. Id.

In a per curiam decision with one judge dissenting, the appellate court in Bums reversed the conviction. The majority held the trial court, contrary to MAI-CR 3d 312.10, told the jurors they had to reach a verdict on each count. Id. at 2-3. That, said the majority, was a “positive misdirection.” Id. at 3. Furthermore, held the majority, the guilty verdict on the second count was inconsistent with the acquittal on the first, as both arose from the same incident. Id.

The difference between Burns and the instant case is obvious. The trial court in Burns gave MAI-CR 3d 312.10 during the jury’s deliberations. That instruction informed the jurors, inter alia, that a juror should not agree to a verdict that violates the instructions of the court, nor should a juror agree to a verdict of guilty unless he is convinced of the accused’s guilt beyond a reasonable doubt. Id. at 2. Some ninety minutes after giving that instruction, the trial court in Bums told the jurors they had to return a verdict on each count. Id. The latter admonition clearly conflicted with MAI-CR 3d 312.10.

In the instant case, the trial court never gave MAI-CR 3d 312.10, thus there was no possibility of conflict between that instruction and anything the trial court said. Furthermore, the trial court never told the jurors they had to return a verdict on any count. When the first poll revealed the verdicts presented by the foreperson were not unanimous, the trial court merely rejected the verdicts and asked the jurors “to return to the jury room and deliberate and return with a unanimous verdict.”

Additionally, the verdicts in Bums were inconsistent, whereas in the instant case the jury ultimately returned a verdict of guilty on each count, assessing identical punishment on each.

This court is uncertain whether Appellant believes the tidal court’s directive to the jury immediately after the first poll was error. A careful reading of Appellant’s point relied on suggests Appellant may be hypothesizing error on only the trial court’s denial of Defense Counsel’s second motion for mistrial (the one Defense Counsel made after the trial court read counsel the note from the jury).

Be that as it may, this court holds the trial court’s directive to the jury immediately after the first poll did not constitute reversible error.

When a jury returns a verdict in improper form, it is the trial court’s duty to refuse to accept the verdict and require further deliberations until a verdict in proper form is returned. State v. Lashley, 667 S.W.2d 712, 715[3] (Mo. banc 1984), cert. denied, 469 U.S. 873,105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Consequently, the trial court in the instant case was obliged to reject the verdicts (as it did) and ask the jurors to deliberate further and return with unanimous verdicts.

It is true, as emphasized by Appellant, that when the trial court took that step, the court knew eleven jurors had just voiced their assent to the guilty verdicts. However, the trial court did not acquire that knowledge by questioning the jurors. The trial court received that information unexpectedly when Defense Counsel had the jury polled. To the foreperson’s apparent surprise, juror Baker disclaimed the guilty verdicts.

Confronted by that novel situation, the trial court was constrained to reject the verdicts and ask the jurors to see whether they could, upon further deliberation, reach unanimous verdicts. Appellant cites no case indicating the trial court’s directive in those extraordinary circumstances constituted reversible error.

Furthermore, Defense Counsel never objected to the trial court’s directive. The thrust of both of Defense Counsel’s motions for mistrial was that after the first poll revealed lack of unanimity among the jurors, further deliberation would not be “fair.” Pursuing that theme, the motion for new trial filed by Defense Counsel for Appellant asserted that once juror Baker renounced the verdicts, “there was no unanimous decision.”

This court is aware of no case holding that an initial lack of unanimity among jurors in a criminal case bars the jurors from later reaching a unanimous verdict. Accordingly, this court holds the trial court did not commit reversible error when, after the first poll, it rejected the verdicts and gave the directive set forth in the transcript. It follows that if this court’s assumption of what occurred at trial is correct, there is no basis to reverse the judgment.

Having decided that, this court now considers the possibility that the trial court, after receiving the note, instructed the jury — either verbally or in writing— “to continue to deliberate in accordance with the instructions given.” As explained earlier, Appellant’s brief, as understood by this court, indicates Appellant believes that is what occurred. For convenience, this opinion henceforth refers to the quoted phrase at the end of the first sentence in this paragraph as “the second additional instruction.”

The first hurdle encountered by Appellant is that Defense Counsel registered no objection to the second additional instruction. After the trial court read the note to counsel and uttered the two italicized remarks, Defense Counsel moved for a mistrial because, during the first poll, juror Baker disavowed the initial verdicts. Defense Counsel told the trial court it “should respect the wishes” of juror Baker and “any further deliberations would not be fair[.]” Defense Counsel voiced no complaint about the second additional instruction and did not mention it as a ground for mistrial. Furthermore, the motion for new trial filed by Defense Counsel for Appellant raised no issue about the second additional instruction.

Because of the omissions identified in the last two sentences of the preceding paragraph, no claim of error regarding the second additional instruction is preserved for review. State v. Moland, 626 S.W.2d 368, 370[1] (Mo.1982); State v. Cook, 491 S.W.2d 824, 325[2] (Mo.1973). Consequently, the only relief this court may grant in regard to the second additional instruction is the relief authorized by Rule 30.20, Missouri Rules of Criminal Procedure (2000). That rule enables an appellate court, in its discretion, to consider plain errors affecting substantial rights when the court finds manifest injustice or miscarriage of justice has resulted therefrom.

This court finds the second additional instruction caused no manifest injustice or miscarriage of justice.

First, the second additional instruction did not tell the jurors they had to return a verdict. It merely directed them “to continue to deliberate in accordance with the instructions given.” The instructions previously given had told the jurors, inter alia, that if they were not firmly convinced Appellant was guilty, they must “give him the benefit of the doubt and find him not guilty” (Instruction 4), and that each juror “must decide the case for yourself’ (Instruction 11).

Second, the second additional instruction did not conflict with any instruction the jury had already received.

Third, even when the second additional instruction is considered in conjunction with the trial court’s verbal directive immediately after the first poll, there is no manifest injustice or miscarriage of justice. The verbal directive merely asked the jurors to return to the jury room, deliberate, and return with a unanimous verdict. They had already been told in Instruction 11 that a verdict “must be unanimous.” Thus, the verbal directive was consistent with Instruction 11 and told the jurors nothing new.

For the above reasons, this court holds the second additional instruction, considered separately or together with the trial court’s verbal directive immediately after the first poll, warrants no plain error relief under Rule 30.20.

The only remaining complaint in Appellant’s point relied on, as this court comprehends it, is that the trial court failed to confer with counsel and failed to determine “the deadlock of the jury” before giving the second additional instruction. That complaint, like the one just discussed, was not preserved, as it was not presented to the trial court by objection or motion for mistrial and was not raised in the motion for new trial.

Ex gratia review for plain error reveals no basis for reversal.

First, if Appellant’s complaint that the trial court failed to determine “the deadlock of the jury” is a complaint that the court — after receiving the note — failed to call the jurors into the courtroom and inquire how they were numerically divided (without, of course, asking how many favored guilty verdicts and how many favored not guilty verdicts), it is obvious that such an inquiry would have served no purpose. The note clearly revealed that although all twelve jurors had originally voted to adopt verdicts convicting Appellant on both counts, juror Baker repudiated the verdicts during the first poll and the foreperson believed juror Baker would not, upon further deliberation, alter her position. Appellant fails to explain how, in those circumstances, he was harmed because the trial court, after receiving the note, failed to determine “the deadlock.”

Second, if Appellant’s complaint that the trial court’s failure to “confer with counsel” before giving the second additional instruction is a complaint that Appellant was deprived of the opportunity to object or otherwise protect himself from the second additional instruction, the complaint does not warrant plain error relief. After the trial court informed counsel about the note and the second additional instruction at 3:30 p.m., the prosecutor, Defense Counsel and the court made an extensive record. Defense Counsel moved for a mistrial, but only on the ground that juror Baker’s “wishes” should be respected and further deliberations “would not be fair.” Defense Counsel had full opportunity to seek a mistrial on the ground that the second additional instruction was erroneous, but made no attack on it.

Furthermore, for the reasons set forth earlier, this court has found the second additional instruction itself caused no manifest injustice or miscarriage of justice.

The time spent by the jury in deliberation was not excessive, nor were the circumstances oppressive. The jury returned its unanimous verdicts at 4:25 p.m. after deliberating a total of four hours and fifty minutes. The verdicts came fifty-five minutes after the trial court read counsel the note.

Those circumstances are starkly different than the coercive proceedings in State v. McNail, 767 S.W.2d 84 (Mo.App. E.D. 1989), cited by Appellant. In McNail, after eight hours of deliberation on a Saturday, the first day of a three-day holiday, a deputy sheriff — at the trial court’s direction — informed the jurors about 9:00 p.m. to prepare for an overnight stay in a hotel. Id. at 86. The deputy asked the jurors for telephone numbers of people who could bring the jurors a change of clothes and toiletries. Id. The jury returned a guilty verdict ten minutes later. Id.

Reversing the conviction in McNail, the appellate court emphasized the obvious: “The totality of the circumstances here bespeak coercion.” Id. at [3].

No indicia of coercion appears in the trial court’s benign conduct in the instant case.

The other cases cited by Appellant are too factually unlike the instant case to be controlling, hence this opinion need not be extended by discussing them.

This court holds the trial court did not abuse its discretion in refusing to grant a mistrial on the grounds presented by Defense Counsel. This court further holds Appellant is not entitled to plain error relief on the additional grounds presented in this appeal.

Judgment affirmed.

PARRISH, J., files Opinion Concurring in Part and Concurring in Result Reached.

SHRUM, J., files Concurring Opinion joining in Opinion Concurring in Part and Concurring in Result Reached filed by PARRISH, J.

JOHN E. PARRISH, Judge,

concurring in part and concurring in result reached.

I concur in the principal opinion’s holding that the trial court did not commit reversible error when, after the first time the jury was polled, it declined to accept the tendered verdicts and caused the jury to resume deliberations. I concur in the rationale by which that conclusion was reached. I concur in the result reached with respect to appellant’s other complaints for the following reasons.

Apart from his complaint that a mistrial was not declared after the jury was first polled, appellant’s point relied on is not concise in identifying events that occurred at trial that produced trial court error. As the principal opinion points out one may infer from the argument in appellant’s brief that he believes the trial court conferred with or instructed the jury a second time. The trial transcript lends no credence to that belief. Either the trial court did not communicate with or otherwise instruct the jury a second time or, if it did, that communication or instruction is not disclosed by the transcript or legal file that makes up the record that is before this court. If the event occurred it was appellant’s obligation to make a record of the event at the time it occurred and to furnish that record on appeal. State v. Jennings, 815 S.W.2d 434, 443 (Mo.App.1991). In the absence of such a record this court could not base a finding of error or prejudice based on the event. State v. McCrary, 963 S.W.2d 674, 678-79 (Mo. App.1998).

KENNETH W. SHRUM, Judge,

concurring.

I join in the “OPINION CONCURRING IN PART AND CONCURRING IN RESULT REACHED” for the reasons stated therein.

      . The prosecutor may have meant "unanimous.”

      . The segment of the trial court’s comments appearing in italics is italicized to facilitate this court’s discussion (later in this opinion) of Appellant’s claim of error. A second segment of the trial court’s comments, infra, is also italicized for that purpose.

      . This court’s inference about Appellant's belief is buttressed by the complaint in Appellant’s point relied on (quoted earlier) that the trial court failed to confer with counsel or determine the deadlock of the jury "before instructing the jury for a second time to follow the instructions previously given[.]" (Emphasis added.)

      . A detailed explanation of the inconsistency appears in Bums, id. at 3, and need not be repeated here.

      . The lawyer representing Appellant in this appeal is not Defense Counsel.

      . One reasonable inference from those omissions is that, contrary to Appellant's apparent belief, no second additional instruction was given.


text:
    Tarence LOVE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76032.
    Missouri Court of Appeals, Eastern District, Division One.
    March 14, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Lisa M. Stroup, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., for respondent.
    Before GARY M. GAERTNER, P.J., SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant, Tarence Love, (“appellant”), appeals the judgment of the Circuit Court of the City of St. Louis convicting him of assault in the first degree, section 565.050, RSMo 1994, arson in the second degree, section 569.050, and assault in the second degree, section 565.060. Appellant was sentenced as a prior offender to a term of ten years for assault in the first degree, a term of seven years for arson in the second degree and a term of seven years for assault in the second degree. The sentence for assault in the second degree was ordered to run consecutively to the other two sentences, for a total of seventeen years’ imprisonment. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcripts, and find the judgment is not clearly erroneous. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b).

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


text:
    HEITMAN PROPERTIES OF MISSOURI, LTD., Appellant, v. THE PASTA HOUSE COMPANY, Respondent.
    No. ED 76071.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 14, 2000.
    Rehearing Denied May 10, 2000.
    Gallop, Johnson & Newman, L.C., Thomas P. Hohenstein, Joshua M. Avigad, George A. Kiser, St. Louis, for appellant.
    James J. Sauter, Stephen B. Evans, Deeba Sauter Herd, St. Louis, for respondent.
    Before CRANDALL, P.J. and HOFF, J. and CRIST, S.J.
   ORDER

PER CURIAM.

Heitman Properties of Missouri, Ltd. appeals the trial court’s judgment and order granting The Pasta House Company’s motion for summary judgment.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. Upon de novo review, we find no genuine issue of material fact or error of law. An extended opinion would have no precedential value.' We have, however, provided a memorandum opinion for the use of the parties only setting forth reasons for our decision. Judgment affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Tyrice ROYSTON, Appellant.
    No. ED 76269.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Defendant Tyrice Royston appeals from the judgment entered on a jury verdict finding him guilty of burglary in the second degree, Section 569.170 RSMo 1994, and stealing, Section 570.030 RSMo 1994. He was sentenced to three years’ imprisonment on each count, to be served concurrently.

We have examined the briefs and the record on appeal and find no manifest injustice. An extended opinion reciting the detailed facts and restating the principles of law would serve no precedential or jurisprudential value. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Lonnie EPPS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 76333.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Doris Gregory Black, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Kristin M. Frasier, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Lonnie Epps (Movant) appeals the denial of his Rule 24.035 motion for postconviction relief without an evidentiary hearing. Movant contends the motion court erred in denying his postconviction motion because: (1) the evidence in the case did not support a finding that Movant had “deviate sexual intercourse” with the victim; (2) trial counsel was ineffective for failing to file a Motion to Suppress Movant’s Statements; (3) Movant’s request for an evidentiary hearing should have been granted; and (4) trial counsel was ineffective for failing to conduct an adequate pre-trial investigation of the victim’s mother. We affirm.

We have reviewed the briefs of the parties and the legal file. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth reasons for this order pursuant to Rule 84.16(b).

We note the deposition of the victim was not before the motion court and so we cannot review it. Respondent’s Motion to Strike, which was taken with this case, is granted.


text:
    Floyd JOHNSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 76587.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.

      Elaine A. Pudlowski, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K Chesser, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Floyd Johnson appeals from the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s judgment is based on findings of fact and conclusions of law that are not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum of law, for them information only, setting forth the reasons for this order. We affirm judgment pursuant to Rule 84.16(b).