author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willekis Bakari DORSEY, Defendant-Appellant,
    No. 25867.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 22, 2005.

      George W. Gilmore, Jr., Sikeston, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

A jury found Willekis Dorsey (“Defendant”) guilty of first degree murder and armed criminal action. See § 565.020.1; § 571.015. The trial court sentenced Defendant to concurrent terms of life imprisonment without parole and eight-years imprisonment, respectively. Defendant appeals, presenting four points for decision. The first three points challenge evi-dentiary rulings by the trial court; the fourth point seeks plain error review of statements made during the State’s closing argument. Defendant also filed a motion requesting this Court to remand the case so Defendant can file another motion for new trial based on newly-discovered evidence. We deny the motion to remand and affirm Defendant’s convictions.

Defendant does not challenge the sufficiency of the evidence to sustain his convictions. In this appeal, we consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences. State v. Cravens, 132 S.W.3d 919, 921 (Mo.App.2004); State v. Campbell, 122 S.W.3d 736, 737 (Mo.App.2004). Viewed from that perspective, the favorable evidence supporting the State’s case against Defendant is set out below.

Defendant, Earl Brown (“Brown”), Her-shal Wiley (‘Wiley”), Tyrone Sheron (“Tyrone”) and Michael Sheron (“Michael”) had been acquainted with one another since elementary school. In the summer of 1999, Brown was 15; Defendant was 17 or 18; Wiley was 17; Tyrone was 21 or 22; and Michael was 25. Brown was the only one of the group who had attended school during the 1998-99 term, but he dropped out after the school year was completed. During the summer of 1999, he began to spend time with Defendant and “started running the streets.” Defendant, Brown, Wiley, Tyrone and Michael “[sjtarted running around and selling drugs.” Tyrone supplied the drugs that the others sold.

May 28, 2000 was a Sunday. That evening, Defendant and Brown returned to Sikeston, Missouri, after spending the Memorial Day weekend in Memphis, Tennessee, with three girls. Defendant and Brown went looking for Michael and found him at a local mini-mart. Michael was standing beside a Lexus automobile owned by Don Prude (“Victim”). Victim was a drug dealer from Blytheville, Arkansas. Michael and Victim were talking. When Defendant and Brown arrived, Defendant got out of his vehicle and also spoke to Victim. Victim left, and Michael and Defendant talked for a little while. Everyone then left the mini-mart parking lot.

Later that evening, Defendant and Brown met Michael at his house and went for a ride together. Michael said he had gotten 4.5 ounces of crack cocaine from Victim and did not want to give it back.

On Monday, May 29th, Defendant and Brown went riding around together. During the ride, Defendant asked Brown if he wanted to make some money by participating in killing Victim and keeping his drugs. Brown said he would. Victim came to the home of Tyrone’s mother that day while Defendant and Brown were there. Victim tried to purchase marijuana from Defendant.

Later that evening, Defendant and Brown went to a meeting at Michael’s house. Six persons were present for this meeting: Defendant, Brown, Michael, Tyrone, Reggie Wilkens, and Sean Clay. Michael said he had Victim’s drugs and he wanted to keep them, so they needed to kill Victim. He offered all of the others a chance to participate in the murder in exchange for some of the drugs. Defendant said he would kill Victim, and Michael gave Defendant a 9mm Beretta Model 92FS handgun to use for that purpose. This firearm, which had been stolen a few months earlier, was a special model with very distinctive and unusual features. The gun had the seals of different branches of the military on the slide, and the hammer, trigger and screws were gold-colored. The plan was simply to kill Victim when he came to pick up his drugs. The drugs were divided that evening between Brown, Defendant, Michael and Sean Clay. Defendant received 1.5 ounces of Victim’s crack cocaine for agreeing to kill him.

After the meeting, Defendant and Brown went outside to wait for Victim. When he arrived, however, he had a girl in the car with him. Defendant and Brown did not carry out the murder then because the girl was present. Defendant and Brown went back inside the house, and the group discussed killing Victim the next day. The new plan was for Brown to lure Victim to Haywood City, Missouri. Defendant and Wiley were going to follow Victim and kill him there. Michael and Tyrone said they needed Wiley to drive because he was the only one of the group who had a driver’s license.

On May 30, 2000, Defendant and Brown went to Wiley’s house. Defendant explained the plan and told Wiley that all he had to do was drive. He agreed to do so. The three of them drove into Sikeston and sat in a car waiting for Victim to show up. When he did, Defendant told Victim that Brown was a cousin of Michael and Tyrone and would take Victim to his drugs. Brown got in Victim’s car and directed Victim to the home of Brown’s grandmother, Clara Adams. She lived on Hickory Street in Haywood City. Defendant and Wiley were familiar with the area, and Wiley knew the location of Adams’ house.

Once Brown and Victim arrived in Haywood City, they drove to Hickory Street. Brown had Victim drive around the block once to give Defendant and Wiley time to get into position. After circling the block, Brown had Victim stop in front of Adams’ house. Brown told Victim the drugs were behind the house. Brown got out of the car and went behind the residence to stall for time while Victim waited in his car. Brown saw Defendant and Wiley drive past, turn around and come back. Wiley stopped his car beside Victim’s car. Defendant got out, opened the passenger door of Victim’s car, said “I’ve got your drugs” and then pulled out the 9mm Beretta and fired four shots at Victim. One bullet struck him in the back of the head, killing him. Defendant then wiped the gun off, threw it away and got back in Wiley’s car. Meanwhile, Brown ran down a pathway by his grandmother’s house and rejoined Defendant and Wiley at another location farther down Hickory Street. After Brown got back in Wiley’s car, the three of them returned to Sikeston.

Police arrived to investigate the murder about 15 minutes after it occurred. Two witnesses reported seeing Defendant and Wiley on Hickory Street a few minutes before, and again immediately after, the murder occurred.

Defendant was arrested about two hours after Victim was killed. During a voluntary interview with the police, Defendant admitted that he and Wiley had been in Haywood City and that, around the time Victim was killed, Defendant and Whey had driven past Victim’s Lexus twice while the vehicle was parked on Hickory street. Defendant denied that he was involved in the killing or that he had recently fired a gun. He agreed to submit to a gunshot residue test, which showed that Defendant’s hand tested positive for gunshot residue.

On September 4, 2000, some children found a handgun under an abandoned automobile near the location of the murder. The gun was retrieved by a Mr. Hogan, who took it to the police because he thought it might have been used in the homicide. The weapon Hogan gave to the authorities was a 9mm Beretta Model 92FS. The gun had military insignia on the slide, and the hammer, trigger and screws were gold-colored. Ballistics tests showed Victim was killed with this gun.

After Defendant was convicted and sentenced, he appealed. Additional facts are provided below when relevant to our discussion of Defendant’s motion for remand and his four points relied on.

Motion for Remand

The first issue we address is Defendant’s motion for remand based upon newly-discovered evidence. The motion arises from the following events.

At Defendant’s trial, Brown testified for the State. He had originally been charged with Victim’s murder, but the State offered to reduce Brown’s charge to conspiracy to murder, with a punishment range of 5-15 years, in exchange for his testimony against Defendant, Wiley, Tyrone and Michael. Before Defendant’s trial took place, Brown had testified at the earlier trials of Wiley and Tyrone. In all three trials, Brown consistently identified Defendant as the person who shot and killed Victim.

Defendant was convicted of first degree murder and armed criminal action on August 7, 2003. His motion for new trial was filed on September 2, 2003 within the 25-day time period granted by the trial court. Defendant’s request for a new trial was denied on September 24, 2003, at which time the sentences were pronounced and judgment was entered.

On July 12, 2004, Brown executed an affidavit stating Tyrone was the person who actually killed Victim. Brown claimed his testimony about seeing Defendant shoot Victim had been coerced by Scott County police officers. On August 3, 2004, Defendant’s counsel took a sworn statement from Brown to obtain additional information concerning his recantation.

On September 24, 2004, Defendant filed a motion requesting this Court to remand the case to the trial court to permit the filing of another motion for new trial based on the newly-discovered evidence contained in Brown’s affidavit and sworn statement. Copies of these documents were attached to the motion. The motion alleged that a remand should be ordered because Brown’s recantation completely exonerates Defendant of the crimes of murder and armed criminal action. We ordered the motion taken with the case.

Brown’s recantation was not presented to the trial court in Defendant’s motion for new trial because the change in Brown’s testimony did not become known until after the time for filing and/or amending the motion had expired. Therefore, the affidavit and sworn statement have been submitted to this Court for consideration. “Generally, presentment of evidence extraneous to the trial court record should not be considered on appeal.” Benton v. State, 128 S.W.3d 901, 904 (Mo.App.2004). Nevertheless, “an appellate court has the inherent power to prevent miscarriage of justice or manifest injustice by remanding a case to the trial court for consideration of newly discovered evidence presented for the first time on appeal.”

Id.; State v. Ramsey, 874 S.W.2d 414, 417 (Mo.App.1994). Whether to exercise the inherent power to remand for this purpose, in order to prevent a miscarriage of justice in such unique cases, is discretionary with the appellate court. McCauley v. State, 866 S.W.2d 892, 894 (Mo.App.1993); State v. Davis, 698 S.W.2d 600, 603 (Mo.App.1985). This remedy, however, is limited to those extraordinary cases in which the newly-discovered evidence completely exonerates the defendant of the crime for which he or she was charged. State v. Gray, 24 S.W.3d 204, 209 (Mo.App.2000); State v. Bransford, 920 S.W.2d 937, 949 (Mo.App.1996).

We decline to remand this case because Brown’s affidavit and sworn statement do not completely exonerate Defendant of the crimes of first degree murder and armed criminal action. While Brown did recant his testimony concerning who shot Victim, there was no recantation of other important facts establishing Defendant’s liability for the crimes with which he was charged. In the sworn statement, for example, Brown admitted there was a meeting at Michael’s house a day or so before the murder occurred at which the following events took place: (1) a plan was formulated to lure Victim to Haywood City where Tyrone would be waiting to execute Victim; (2) Victim’s murder would enable the group to steal and divide the drugs Victim had left with Michael; (3) Defendant was present while the murder was being planned; (4) everyone at the meeting, including Defendant, knew Tyrone was going to kill Victim; (5) Michael gave Tyrone the 9mm Beretta later used to kill Victim; and (6) Defendant received a share of Victim’s drugs when they were divided that evening. According to Brown’s sworn statement, the plan was carried out on May 30, 2000 and resulted in Tyrone murdering Victim with the 9mm Beretta. Assuming, arguendo, that Tyrone actually killed Victim, the foregoing facts are still sufficient to support Defendant’s conviction for first degree murder and armed criminal action on an accomplice-liability theory.

The three elements of first degree murder are: (1) knowingly; (2) causing the death of another person; (3) after deliberation upon the matter. § 565.020.1; State v. Carter, 71 S.W.3d 267, 272 (Mo.App.2002). In a first degree murder case premised on accomplice liability, the jury also must find that the defendant personally deliberated upon the murder. State v. Ferguson, 20 S.W.3d 485, 497 (Mo. banc 2000); State v. Salazar, 978 S.W.2d 469, 470 (Mo.App.1998). Deliberation is defined as “cool reflection for any length of time no matter how brief.” § 565.002(3). “Like any state of mind, deliberation generally must be proved through the surrounding circumstances of the crime.” Ferguson, 20 S.W.3d at 497; see also State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998). Circumstances in which deliberation may be inferred in a case of accomplice liability for first degree murder include any one of the following:

1. Prior to the murder, there was a statement or conduct by the defendant, or a co-participant in defendant’s presence, indicating a purpose to kill another human being. State v. Gray, 887 S.W.2d 369, 376-77 (Mo. banc 1994); State v. Betts, 646 S.W.2d 94, 95 (Mo. banc 1983).
2. The murder was committed by means of a deadly weapon, and the accomplice was aware that the deadly weapon was to be used in the commission of a crime. Gray, 887 S.W.2d at 377; State v. Turner, 623 S.W.2d 4, 6-7 (Mo. banc 1981).
3. The accessory either participated in the homicide or continued in the criminal enterprise when it was apparent that a victim was to be killed. Gray, 887 S.W.2d at 377; State v. Lindsey, 507 S.W.2d 1, 2 (Mo. banc 1974).

Here, all three circumstances continue to exist even after taking Brown’s recantation into consideration. Defendant was present during a meeting at which Victim’s murder was planned. Participating in the planning of an offense is one of the acts specifically proscribed by § 562.041.1(2), which imposes criminal responsibility upon one person for the conduct of another. Everyone at the meeting, including Defendant, knew Tyrone was going to kill Victim. Defendant was aware that Michael gave Tyrone the Beretta for the purpose of killing Victim, and this handgun was the weapon later used to murder Victim. After Defendant became aware that Victim was going to be killed so the group could steal his drugs, Defendant continued to participate in the criminal enterprise by receiving a share of the drugs that were divided up at the meeting.

Brown’s recantation also is insufficient to completely exonerate Defendant of the crime of armed criminal action. As relevant here, the two elements of this crime are: (1) Defendant’s commission of the underlying felony of murder in the first degree; and (2) commission of the murder “by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon .... ” § 571.015.1; State v. Danikas, 11 S.W.3d 782, 789 (Mo.App.1999); State v. Anderson, 867 S.W.2d 571, 574 (Mo.App.1993). As previously noted, Defendant knew the murder would be committed through the use of the Beretta, a deadly weapon, and Victim later was killed by this weapon.

Brown’s post-trial affidavit and sworn statement do not constitute newly-discovered evidence of sufficient gravity that a miscarriage of justice will occur unless we order a remand permitting the inclusion of such evidence in the record. Therefore, we deny the motion to remand. See State v. Hill, 884 S.W.2d 69, 77 (Mo.App.1994); State v. Hicks, 803 S.W.2d 143, 146 (Mo.App.1991).

Point I

In Defendant’s first point, he contends the trial court erred in failing to admonish the jury to disregard evidence of prior uncharged misconduct after ruling such evidence inadmissible. This contention arises from the following testimony elicited from Brown at the conclusion of his redirect examination by the State:

Q. Now, how long have you been trying to deal in drugs?
A. 2000, before this happened.
Q. And prior to this, did you have much experience in dealing with drugs with anybody?
A. No.
Q. And when you got started with this, who was your partner in this?
A. Willekis.
Q. Now, Mr. Davis is getting—
MR. DAVIS: Objection, Judge. May we approach?
THE COURT: You may.
(At this time counsel approached the bench, and the following proceedings were had:)
MR. DAVIS: Judge, this is clearly indicative of prior uncharged bad acts. “Who was your partner in this?” He said, ‘Willekis,” right?
MR. BOYD: We were — He said (indiscernible).
MR. DAVIS: Okay. I would ask the Court to instruct the jury to disregard the last statement.
MR. BOYD: (Indiscernible) conspiracy, Your Honor.
MR. DAVIS: It’s not part of the conspiracy.
MR. BOYD: It’s knowlédge and intent.
THE COURT: All right. I’m going to sustain the objection. (Indiscernible.) I think — Why don’t you all — (Indiscernible.)
(Proceedings returned to open court.)

At this point, the prosecutor began to pursue a new line of questioning.

The transcript in this case was created from sound recordings made at the trial. Because the recording apparatus failed to completely preserve all of the proceedings at the bench conference, we are unable to discern whether the trial court granted, denied, or simply failed to rule upon defense counsel’s request that the jury be admonished to disregard Brown’s last statement. The transcript contains many other instances in which portions of the testimony could not be understood so as to be transcribed, resulting in additional parts of the record being described as “indiscernible.” Under the circumstances, we believe the following cautionary words concerning the limitations of a sound-recording system bear repeating for the edification of trial judges:

Magnetic tape recording devices cannot make known an inability to record sounds they do not register. Court reporters can make known an inability to hear testimony and other matters so that statements that would otherwise be “inaudible” may be restated. The 141 “inaudibles” in this record suggest that there are types of cases in which magnetic tape recording devices should not be used. Many jury trials, due to the number of participants and the manner in which testimony may be presented, do not lend themselves to a record made by machine that cannot make known the shortcomings of lawyers or witnesses (or even judges) who may not speak in a manner that can be recorded. Fortunately, the shortcomings identified in the majority opinion do not require a new trial in this case. Future cases with such omissions may not be so fortunate. The type of record used at trials should be adequate for the circumstances of the case being tried.

State v. Koenig, 115 S.W.3d 408, 418 (Mo.App.2003) (Parrish, J., concurring). The type of record used at Defendant’s trial was not adequate for the circumstances of the case being tried. Nevertheless, a transcript that is inaccurate or incomplete does not automatically require reversal. State v. Franklin, 16 S.W.3d 692, 695 (Mo.App.2000); State v. Anthony, 837 S.W.2d 941, 945 (Mo.App.1992). No new trial is required here because Brown’s redirect testimony was cumulative of other testimony that he had given without objection. At the very beginning of Brown’s direct examination by the State, he testified that he had known Defendant, Wiley, Tyrone and Michael since elementary school. During the summer of 1999, Brown testified that he started running the streets and selling drugs with these individuals:

Q. What changed in the summer of ’99 for you?
A. Attitude.
Q. And could you tell the ladies and gentlemen of the jury what you’re talking about? What kind of attitude have you changed?
A. Well, at first I was going to school every day, got a — I had — I was working. Started hanging out with friends and started running the streets.
Q. Now, was Willekis in school in ’99?
A. No.
Q. And what about Hershal?
A. No.
Q. What about Tyrone?
A. No.
Q. All right. Now, how — when you say you started running with— What did you guys start doing?
A. Started running around and selling drugs.
Q. And where did you get those drugs at?
A. Tyrone.
Q. Now, how old is — Now, you’re 16 at this point in time, and Willekis is about how old?
A. 17 or 18.
Q. And what about Hershal?
A. About 17.
Q. And how old was Tyrone?
A. I’d say 21 or 22.
Q. And what about Michael?
A. Probably about 25, somewhere around in there.
Q. Now, you started running around and doing this stuff with them. Did you happen to get involved, was there something going on close to May 30, 2000?
A. Yes.

Defendant did not object to this testimony, which plainly told the jury that Brown, Defendant, Wiley, Tyrone and Michael all were involved with selling drugs together. Assuming the trial judge erred in failing to admonish the jury to disregard Brown’s testimony to the same effect on redirect, we discern no prejudice to Defendant. “Erroneously admitted evidence is not considered prejudicial where similar evidence is properly admitted elsewhere in the case or has otherwise come into evidence without objection.” State v. Collis, 139 S.W.3d 638, 641 (Mo.App.2004); see State v. Bucklew, 973 S.W.2d 83, 93 (Mo. banc 1998); State v. Gilbert, 121 S.W.3d 341, 346 (Mo. App.2003); State v. Ponder, 950 S.W.2d 900, 910 (Mo.App.1997). Defendant’s first point is denied.

Point II

In Defendant’s second point, he contends the trial court erred in denying his request for a mistrial after he learned of a discovery violation by the State. This claim of error arises from the following events.

On cross-examination, Defendant was asked whether he had discussed Victim’s murder with an inmate named Charles Williams while Defendant was being held at the Cape County jail:

Q. And did you discuss the case with Mr. Williams?
A. No, sir, I did not. I mean, I don’t know who you’re talking about.
Q. That’s all right. I’m just asking you questions. You can say yes or no. Did you indicate to Mr. Williams that you were paying some girls to come to court to tell lies for you?
A. No, sir.
Q. And did you tell Mr. Williams about how good you were with a gun and how straight you were about robbing people and shooting people?
A. No, sir, I did not.
Q. You remember being up there in Cape County Jail, though, in B pod, don’t you?
A. Yes. Yes, I do.
Q. Uh-huh. And did you admit to Mr. — Mr. Williams that you, in fact, did shoot Don Prude?
A. No, sir, I did not.
Q. Did you also tell Mr. Williams that you’re going to kill Earl Brown whenever you got out because he didn’t keep his mouth shut?
A. No, sir, I did not. I have no reason to.

Defense counsel asked one redirect question to confirm that Defendant did not know a Charles Williams, and the defense rested. The court took a recess because the State’s rebuttal witnesses were not yet available.

During the break, defense counsel learned that the State had taken a statement from Charles Williams. When proceedings resumed, but before the jury returned to the courtroom, counsel asked the trial court to examine the document to determine whether it included any statements attributed to Defendant. If so, counsel argued there had been a Brady violation because Defendant had an absolute right to obtain a copy of any statements he made during discovery. Counsel also asked for a mistrial. The trial court made the following ruling:

After doing some research on the law, which is necessary sometimes, my ruling is going to be that I’m going to exclude the testimony of Charles Williams, and I’m going to instruct the jury to disregard the questions and the answers regarding Charles Williams and anything that Mr. Dorsey may have said to Mr. Williams in the Cape County Jail. I think that the State should have turned over to the Defendant any statements, whether exculpatory or inculpatory, that the Defendant may have made and the name of any person who the Defendant may have made the statements to, but I don’t find that the failure to do that is so prejudicial to warrant a mistrial because the witness did not actually testify. But I think that the problem will be cured by not allowing Mr. Williams to testify, and I think also by the Court instructing the jury not to — or, in other words, instruct-mg the jury to disregard any of those questions and answers that were previously given, talked about with Mr. Williams.

After the jurors were reseated, the trial court instructed them to disregard the questions and answers about whether Defendant made any statements to Williams and to not consider the questions and answers during deliberations.

Defendant argues the trial court should have granted a mistrial because the relief granted was inadequate. Declaring a mistrial is a drastic remedy that should only be employed in those extraordinary circumstances in which the prejudice to a defendant can be removed in no other way. State v. Schneider, 736 S.W.2d 392, 400 (Mo. banc 1987). The decision whether to declare a mistrial rests largely within the discretion of the trial court because the judge has observed the incident that precipitated the request for a mistrial and is in a better position than an appellate court to determine what prejudicial effect, if any, the incident had on the jury. State v. Webber, 982 S.W.2d 317, 322 (Mo.App.1998). We will not reverse a trial court’s exercise of discretion absent a showing of clear abuse and substantial prejudice resulting to the defendant. Id. at 322-23.

Here, the trial court found there had been a violation of Rule 25.03(A)(2) because the State failed to disclose Williams’ statement to the defense. “A mistrial is not required just because a Rule 25.03 violation by the prosecutor has occurred.” State v. Scott, 943 S.W.2d 730, 736 (Mo.App.1997). Instead, the court had a range of other options from which to choose to remedy the violation. ‘When a party has failed to comply with an applicable discovery rule, the court may order disclosure of the information, grant a continuance, exclude such evidence, or enter such other orders it deems just under the circumstances.” State v. Wallace, 43 S.W.3d 398, 402 (Mo.App.2001). The court chose to exclude Williams’ testimony and to instruct the jury to disregard the questions and answers about whether Defendant made any statements to Williams.

We disagree with Defendant’s assertion that this remedy was inadequate because the prosecutor’s questions informed the jury of the contents of Williams’ statement. Prior to opening statements, the trial court read MAI-CR 3d 302.02 to the jury. This instruction specifically advised jurors that they “must not assume as true any fact solely because it is included in or suggested by a question asked a witness. A question is not evidence, and may be considered only as it supplies meaning to an answer.” Jurors are presumed to know and follow the instructions they are given. State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999); State v. Rose, 86 S.W.3d 90, 103 (Mo.App.2002). The judge reminded jurors of this instruction when he admonished them to disregard the questions and answers concerning Williams. Furthermore, Defendant steadfastly denied knowing or talking to Williams when answering the prosecutor’s questions. Since the State was precluded from calling Williams as a witness, this line of questioning appeared to be more harmful to the State than the Defendant. Accordingly, we conclude the trial court did not abuse its discretion in denying the request for a mistrial because there is no reasonable likelihood the State’s discovery violation affected the result of the trial. See Wallace, 43 S.W.3d at 403. Defendant’s second point is denied.

Point III

In Defendant’s third point, he urges reversal because the trial court permitted witness Michelle Rhoden (“Rho-den”) to testify, over objection, that she saw Brown in a car with Defendant and Wiley after the murder. Defendant contends Rhoden’s testimony was speculative because she had testified at the preliminary hearing and was unable, at that time, to identify who was in the car with Defendant and Wiley. The facts relevant to this point are set forth below.

Rhoden was called as a witness by the State. On May 30, 2000, she lived in a house across the street from where the murder occurred. She was walking to her car when she heard the shots that struck Victim. Rhoden went into her Mother’s house, which was next door, and remained there 5-10 minutes. When she returned to her car and pulled out onto Hickory Street, she saw Defendant and Wiley together in an automobile. Rhoden went to a café, but she returned to the crime scene with an acquaintance to see whether they could identify the person who had been killed. Once there, Rhoden again saw Defendant and Wiley sitting together in a car across the street from Rhoden’s house. She spent about five minutes viewing Victim’s body, but did not recognize him. When she left to return to the café, she saw Defendant, Wiley and a third person together in Wiley’s car. The car was near a little pathway on Hickory Street along the route to the café. Rhoden then gave the following testimony:

Q. Now, who do you believe that third person was based upon what you saw that day?
MR. DAVIS: Objection, Judge. Calls for speculation. She already testified she didn’t know who it was.
MR. BOYD: Observation, Your Honor.
THE COURT: Well, she can — you can answer if you know.
BY MR. BOYD:
Q. Who did -you think that third person was that was in the backseat with Hershal and Willekis?
A. Earl.
Q. And why did you think that?
A. It looked—
Q. How long have you known — Put it that way. How long have you known Earl?
A. I went to school with him.
Q. What’s that?
A. I went to school with him.
Q. All right. Do you know him on sight?
A. Huh? ..
Q. Do you know him on sight?
A. I mean—
Q. Just when you see him? You know — You know him when you see him?
A. Yeah.
Q. And did you believe that was Earl with — with Willekis and Hershal there in the backseat?
A. I believe so.

On cross-examination, Rhoden admitted she had testified at the preliminary hearing one month earlier. At this hearing, Rhoden stated that she had seen a third person in Wiley’s car, but she did not know who the person was. Further questions on cross-examination, however, demonstrated that Rhoden was very reluctant to testify and did not initially tell the police what she knew until they accused her of lying and threatened to arrest her or charge her with perjury. On redirect examination, Rhoden conceded that she believed Brown was the third person in the car, but she wasn’t sure.

Defendant argues the admission of this testimony was so prejudicial that a new trial is required. We resolve this point against Defendant on the same ground as his first point. After Rhoden testified, the State called Brown as a witness. He testified unequivocally that Defendant and Wiley were supposed to pick him up after the killing as a part of the murder plan. Once Victim was shot, Brown ran down a pathway and met Defendant and Wiley on Hickory Street as they were heading out of the neighborhood. Brown got into Wiley’s car and rode back to Sikeston with them. Brown’s testimony, which was based on his own personal knowledge of the events in question, was received without objection. Assuming the trial court erred in admitting Rhoden’s equivocal testimony (which was quite effectively impeached by defense counsel), it was merely cumulative of Brown’s properly-admitted testimony of like tenor. State v. Simms, 131 S.W.3d 811, 815 (Mo.App.2004); State v. Winegamer, 87 S.W.3d 923, 925-26 (Mo.App.2002). Defendant’s third point is denied.

Point IV

Defendant’s final point contends the trial court erred in failing to grant a mistrial sua sponte because the State made three improper comments during its closing argument: (1) a reference to Defendant having been a drug dealer with Brown; (2) Defendant and Wiley having told different stories to the police; and (3) Brown being grilled by four defense attorneys who tried to shake his story with tricky questioning. Defendant claims the first argument was improper because the trial court had excluded the evidence that Defendant had been a drug dealer. He challenges the second argument because there was no evidence Wiley ever talked to the police. Defendant characterized the third argument as an impermissible personal attack on defense counsel.

Defendant concedes that he objected to none of the comments and requests plain error review pursuant to Rule 30.20. Under the plain error rule, Defendant is not entitled to relief unless he demonstrates that manifest injustice or a miscarriage of justice will occur unless the error is corrected. State v. Worthington, 8 S.W.3d 83, 87 (Mo. banc 1999).

By its very nature, an argument that a trial court committed plain error by failing to intercede sua sponte and prohibit improper closing argument offers a defendant “little chance of success.” State v. Kirk, 918 S.W.2d 307, 309 (Mo.App.1996). Plain error will seldom be found based upon a comment in closing argument to which no objection was made. State v. Faulkner, 103 S.W.3d 346, 362 (Mo.App.2003); State v. Lawson, 50 S.W.3d 363, 367 (Mo.App.2001). This is because “alleged errors committed in closing argument do not justify relief under the plain error rule unless they are determined to have a decisive effect on the jury.” State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc 1988). For an improper argument to have a decisive effect, “there must be a reasonable probability that, in the absence of these comments, the verdict would have been different.” State v. Roberts, 838 S.W.2d 126, 132 (Mo.App.1992).

This high threshold for obtaining relief under the plain error rule is necessary for two reasons. First, trial strategy looms as an important consideration. State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994). We presume counsel’s failure to object was the result of trial strategy, not error. State v. Bristol, 98 S.W.3d 107, 114-115 (Mo.App.2003); State v. Elam, 89 S.W.3d 517, 523 (Mo.App.2002); State v. Edwards, 30 S.W.3d 226, 232 (Mo.App.2000). Counsel may intentionally fail to object because a responsive or retaliatory argument will be more powerful and more beneficial to the defendant than making an objection which is sustained. Second, in the absence of an objection and a request for relief, a trial judge’s only option is uninvited interference with summation, which increases the risk of error by the very act of such intervention. State v. Edwards, 116 S.W.3d 511, 587 (Mo. banc 2003). As our Supreme Court has recognized, “[a] holding that would require the judge to interrupt counsel presents a myriad of problems.” State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999). We do not find that such uninvited intervention was required here.

The comment about Defendant being a drug dealer was a proper argument. It was based on the testimony that Brown gave at the beginning of his direct examination, and the comment helped explain the relationship and motives of the various persons involved in Victim’s murder. As we pointed out in ruling on Defendant’s first point, Brown’s direct-examination testimony on this subject was admitted long before the trial court sustained an objection to a similar question and answer during Brown’s redirect examination. Therefore, there was evidence to support the prosecutor’s statement.

The comment about Wiley telling police a different story than Defendant was improper because it does not appear to have been supported by the evidence. See State v. Storey, 901 S.W.2d 886, 900 (Mo. banc 1995) (a prosecutor may not argue facts outside the record). We are not persuaded, however, that the jury would have reached a different verdict if this comment had not been made. The comment was made only once, and the prosecutor did not describe what differences, if any, existed between the account of events given by Defendant and Wiley. The jury also knew Wiley had not been called by either side as a witness, and no other witness had testified about any statements Wiley made to the police. Before retiring to deliberate, the jury was given MAI-CR 3d 302.06, which stated that “[t]he attorneys will now have the opportunity of arguing the case to you. Their arguments are intended to help you in understanding the evidence and applying the law, but they are not evidence.” We presume the jurors followed this instruction. State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999); State v. Rose, 86 S.W.3d 90, 103 (Mo.App.2002). Accordingly, this isolated comment did not have a decisive effect on the jury.

The final comment in dispute concerns Brown being questioned by four defense counsel prior to trial. This evidence was adduced by defense counsel, who asked Brown if he remembered giving a deposition attended by the prosecutor and four defense attorneys. Defendant’s counsel thereafter used Brown’s deposition on several occasions to refresh his recollection about testimony he had given. At no point did Brown appear to testify differently at trial than he did at his deposition. We do not interpret the State’s comment about Brown being questioned at deposition as a personal attack upon defense counsel. Instead, we believe the comment was simply intended to point out that Brown had told the same story in his deposition, despite being intensely questioned by four defense attorneys about what had occurred. “It is a prosecutor’s right to comment on the credibility of witnesses from the State’s viewpoint.” State v. Cummings, 134 S.W.3d 94,105 (Mo.App.2004).

Defendant has failed to demonstrate that manifest injustice or a miscarriage of justice will result unless we grant his request for a new trial. Therefore, we deny his final point on appeal.

Having given careful consideration to each of Defendant’s points, we find that the trial court did not err for any of the reasons asserted in his appeal. We also conclude that his request for a remand should be denied. Therefore, the trial court’s judgment is affirmed.

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

      . All references to statutes are to RSMo (2000).

      . The use in some instances of given names, rather than surnames, is for the sake of clarity; no disrespect is intended.

      . Wiley, Tyrone and Michael had all been charged with Victim's murder based on testimony given by Brown at their preliminary hearings.

      . Wiley and Tyrone were both acquitted at their trials.

      . Brown’s sworn statement also confirms that Defendant and Wiley were in Haywood City on Hickory Street at the time the murder occurred, just as Brown testified at the trial and Defendant admitted to the police.

      . This statute states, in pertinent part, that "[a] person is criminally responsible for the conduct of another when ... (2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.”

      . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: HAROLD L. LOWENSTEIN, Judge.

license: Public Domain

text:
    Gerald ELAM, Appellant Pro Se, v. Sheriff Robert DAWSON, Respondent.
    No. WD 63564.
    Missouri Court of Appeals, Western District.
    March 1, 2005.
    Gerald M. Elam, Cameron, pro se.
    Robert T. Bickhaus, Macon, respondent.
    Before LOWENSTEIN, P.J., SPINDEN and SMART, JJ.
   HAROLD L. LOWENSTEIN, Judge.

On September 29, 2003, Gerald Elam filed a pro se petition to replevin personal property seized from him pursuant to a search warrant executed on or about June 5, 1997. Items were taken from Elam’s home during an ongoing criminal investigation of him for his alleged murder of a grandparent. The search was conducted by the respondent, Sheriff Robert Dawson. Elam’s petition sought recovery of throwing hatchets, a shotgun, a rifle, pistols, knives, and ammunition. He alleged that because the trial court presiding over his criminal charges ruled these seized items were “irrelevant” and were not admitted into evidence, they should have been released to either him or his parents. Elam was convicted of the homicide and sentenced to a life term in prison.

In response, Sheriff Dawson filed a motion to dismiss claiming that Elam’s claim was barred by the one-year limitation period involving the forfeiture of unclaimed seized property, Section 542.301.1(a), and the general five-year statute of limitation for replevin, Section 516.120(4). Using June 5, 1997, as the date of seizure, the trial comí sustained Dawson’s motion based on both limitation statutes and dismissed the petition with prejudice.

STANDARD OF REVIEW

On appeal from a motion to dismiss, this courts construes the petition liberally and view all alleged facts as true and in a light most favorable to the petitioner. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App.2004). A motion to dismiss based on an affirmative defense may be sustained if the defense is irrefutably shown by the petition. Lehnig v. Bornhop, 859 S.W.2d 271, 272 (Mo.App.1993).

I.

Elam’s petition alleges: (1) prior to June 1997 he was the owner of the items in question; (2) the items were seized in his criminal case; (3) pursuant to his motion in limine, a judge ruled these items were irrelevant to the charges; (4) the court again ruled that the items irrelevant to the charges when it ultimately decided during his criminal case in October 2000; (5) from June 3,1997, to October 4, 2000, the defendant continued to wrongly possess and failed to return the items to his parents; and (6) on March 7, 2002, his mother wrote to the sheriff, asking that the items be returned.

Elam’s first argues that the trial court erred in applying the one-year limitation period provided for in Section 542.301.1(l)(a). This subsection states:

1. Property which comes into the custody of an officer or of a court as the result of any seizure and which has not been forfeited pursuant to any other provisions of law or returned to the claimant shall be disposed of as follows: (1) Stolen property, or property acquired in any other manner declared an offense by chapters 569 and 570, RSMo, but not including any of the property referred to in subdivision (2) of this subsection, shall be delivered by order of court upon claim having been made and established, to the person who is entitled to possession:
(a) The claim shall be made by written motion filed with the court with which a motion to suppress has been, or may be, filed. The claim shall be barred if not made within one year from the date of the seizure.

§ 542.301.1(l)(a) (emphasis added).

In Castelli v. City of Bridgeton, 792 S.W.2d 909, 909 (Mo.App.1990), the police arrested Castelli in June 1986, for unlawful use of a weapon and seized several guns. In November 1987, he entered a plea and was sentenced, and in August 1989, filed a petition for replevin for the firearms. Id. The trial court refused to dismiss Castelli’s petition as being time barred under the one-year period under Section 542.301.1. Id. The appeals court affirmed saying that statute did not apply to seized property that was owned and legally possessed or claimed by the person arrested. Id. at 910. “[Section] 542.301.1[was] inapplicable because the firearms seized were legally possessed by the respondent and not used in the commission of a crime.” Id. The court went on to state the applicable remedy for Castelli was, indeed, in replevin for recovery of specific personal property, and that Section 516.120 provided the correct time period for filing. Id. Similarly, the trial court here improperly applied Section 542.301 in dismissing the petition because Elam legally possessed the seized items.

II.

Elam next argues that the trial court erred in finding Section 516.120 barred his action. Section 516.120(4) sets a time of five years statute of limitation to file “[a]n action for taking, detaining ... any goods or chattels, including actions for the recovery of specific personal property.” He contends that under Section 516.100, the time began to run when damages were capable of ascertainment, and that time was when the “property is no longer needed as evidence.”

Elam argues that his agents (his parents) were led to believe that they could get back the property when the specified items were no longer needed, and that time occurred when the court ruled on the motion in limine that suppressed these items from being introduced. He concludes that the date the damages became ascertainable was the date of trial, October 4, 2000, and, therefore, his petition was not time barred.

Elam’s petition for replevin was filed on September 29, 2003. The sole question here is whether the five-year period began on the date of seizure, June 5, 1997, or on the date the trial court in the criminal proceeding determined that the seized items were irrelevant to the crime.

In Hamdan v. Board of Police Commissioners for the City of St. Louis, 37 S.W.3d 397, 398 (Mo.App.2001), the respondent seized personal property from an arres-tee’s bank safe deposit box. The arrestee sued in replevin and conversion to reclaim her loss. Id. at 398-99. She asserted that her property should have been returned since it not been involved in “any criminal enterprise,” nor was it the “subject of any forfeiture proceeding.” Id. at 398.

The primary question in Hamdan was when the time started to run on the five years in which to file under 516.120. Id. at 399. The respondents asserted, as does the sheriff in this case, that the time began to run on the date of seizure. Id. The trial court sustained a motion to dismiss based on the statute of limitations. Id. On appeal, the court reversed the dismissal, ruling that the time did not begin to run until the damage was sustained and capable of ascertainment, which did not begin until “the police indicated the property was no longer needed as evidence.” Id.

Although Elam also raises a third point on appeal concerning the dismissal of his claim, this court need not address the argument because his first two points are dispositive. The judgment sustaining the motion to dismiss is, therefore, reversed and the case is remanded for trial.

All concur.

      . All statutory references are to RSMo. (2000) unless otherwise indicated.

      . Section 542.301 is inapplicable to seized weapons that were legally possessed by the owner and not used in the commission of a crime; rather, a replevin action is the proper way to secure the return of such property. Lathon v. City of St. Louis, 242 F.3d 841, 844 (8th Cir.2001).

      . Section 516.100 mandates that statutes of limitation for civil actions, other than those for recovery of real property, begin to run when the cause of action accrues.


author: JOHN E. PARRISH, Presiding Judge.

text:
    Tracy Marie USSERY, Plaintiff-Respondent, v. Mark Ellis USSERY, Defendant-Appellant.
    No. 26219.
    Missouri Court of Appeals, Southern District, Division Two.
    March 3, 2005.

      Richard L. Anderson, Branson West, for Appellant.
    No appearance for Respondent.
   JOHN E. PARRISH, Presiding Judge.

Mark Ellis Ussery (appellant) and Tracy Marie Ussery (respondent) each filed motions to modify provisions of the judgment that dissolved their marriage. Respondent also filed a motion identified on the trial court’s docket sheet as “[Respondent’s] Motion for Contempt and Request for Order to Show Cause.” The trial court denied both motions to modify the dissolution judgment, but entered judgment for respondent in the amount of $3,737.36 stating that the motion for contempt was “otherwise overruled.”

This appeal is directed to the judgment that denied appellant’s motion to modify the maintenance and child support awards in the parties’ dissolution judgment and the judgment awarding money damages that appears to be directed to respondent’s request to hold appellant in contempt. The judgment is affirmed with respect to the determination of the parties’ motions to modify the dissolution judgment. The judgment with respect to the respondent’s contempt motion is reversed. The case is remanded to the circuit court with directions.

The parties’ marriage was dissolved March 16, 2001. They were awarded joint legal and joint physical custody of the two children born of the marriage. Appellant was ordered to pay support in the amount of $431 per month for the younger child. No provision was made for payment of child support for the older child. The dissolution judgment noted that the older child had turned eighteen and dropped out of an education program in which he had previously been enrolled. The dissolution judgment awarded respondent modifiable maintenance of $1,000 per month.

Appellant’s motion to modify the dissolution judgment alleged there had been substantial changes of circumstance since the dissolution of the marriage. He requested the trial court to “terminate or decrease maintenance awarded the [respondent].” Respondent filed a counter-motion to modify the dissolution judgment in which she alleged changes of circumstance since the dissolution of the marriage and requested the trial court to award her sole custody of the parties’ minor children with visitation granted to appellant. She requested the trial court “to find that the prior Final Judgment is unreasonable as it relates to the custody and support of the parties’ minor children and the maintenance of [respondent]” and to grant her sole custody of the parties’ minor children and for appellant to be granted visitation rights with them. Respondent also requested the trial court to award her attorney fees.

The trial court denied each party’s motion to modify. The judgment stated, however, “Judgment in the amount of $571.50 and $3,165.86 for a total of $3,737.36 is granted in favor of [respondent] and against the [appellant]. [Respondent’s] Motion for Contempt is otherwise overruled.”

The Trial

The modification judgment denied both motions to modify the dissolution judgment, yet entered money judgment for respondent and against appellant in the amount of $3,737.36. This court infers from the language in the part of the judgment that entered that award that the award resulted from respondent’s motion for contempt.

When this case was called for trial on October 15, 2003, the trial judge announced, “This is the Circuit Court of Stone County, Division 1. Today’s date is October 15, 2003. We’re here today in the matter of In Re: the Marriage of Tracy M. Ussery and Mark E. Ussery, Case No. CV500-306DR.” The trial judge stated that appellant had filed a motion to modify “in June of 2002”; that an answer and counter-motion had been filed and that the case “now comes on for hearing.” The trial judge announced the appearances of the parties and their attorneys and trial commenced. The attorneys announced ready for trial. The docket entry states that the parties appeared with counsel; that trial was had and “evidence adduced on Motions to Modify & Motion For [sic] Contempt.” Notwithstanding the reference to the motion for contempt in the docket entry, this court has found no adjudication in the record that defendant was or was not found to be in contempt.

Regardless, it is appropriate to note that issues concerning allegations of contempt are distinct from a trial of motions to modify a dissolution judgment. A contempt hearing may be consolidated with the trial of a motion to modify for purposes of receiving evidence; however, they are separate proceedings for purposes of appeal. In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 783 (Mo. banc 2003). Although no pronouncement was made that the motion for contempt was consolidated with the trial of the parties’ motions to modify their dissolution judgment, that appears to have occurred. The issues related to each type of proceeding will be addressed separately.

Denial of Appellant’s Motion to Modify

At the time of the dissolution of the parties’ marriage, appellant was working as a union boilermaker. He worked as a robotic welder at locations throughout the United States and in other countries for a welding specialty services contractor. He would either fly or drive to his job locations. The trial court found that appellant’s earnings for the four years preceding 2003 were $66,039 in 1999, $67,870 in 2000, $80,317 in 2001, and $69,174 in 2002. At the time of trial on October 15, 2003, the trial court found that appellant had earned only $11,083.17 for that year.

The trial court’s findings in the judgment include:

[Appellant] attributed the drastic reduction in earnings for 2003 principally to two causes, first the progression of his diabetes which [appellant] said was worse than in prior years, causing him problems with vision and dizziness, and secondly, to his loss of operating privileges, which prevented him taking jobs when ealled.[] This Court finds that the progression of his diabetes had minimal effect upon his earnings ability, but the loss of his operator’s license was significant. However, this Court also is not convinced by the evidence that this circumstance (loss of license) prevents [appellant] from taking job assignments or seeking other employment utilizing his skills.

The trial court concluded that although the loss of appellant’s driver’s license impaired his ability to work, appellant could do more to improve his employment prospects. It concluded that appellant was voluntarily underemployed; that appellant’s change in employment circumstances did not warrant modification of the dissolution judgment.

Point I argues that the trial court erred in finding appellant was voluntarily underemployed and by denying his request to lessen the amounts of child support and maintenance he is required to pay; that the trial court finding was against the weight of the evidence. Maintenance or child support obligations may be modified only upon showing changed circumstances so substantial and continuing as to make the terms of the original award unreasonable. § 452.370.1; Draper v. Draper, 982 S.W.2d 289, 291 (Mo.App.1998). A party who seeks modification of an award of child support or maintenance must prove with detailed evidence that circumstances have changed so substantially that the prior decree is unreasonable. Id. Voluntary unemployment, or underemployment, is not a substantial and continuing change of circumstances warranting modification of either an order to pay maintenance or support. Eaton v. Bell, 127 S.W.3d 690, 695-97 (Mo.App.2004).

Appellant described diabetes symptoms he claimed made work difficult. He was asked whether diabetes affected his ability to take jobs in 2002 and responded that he “took them whether [he] was able to take them or not”; that “[he] didn’t refuse anything.” With respect to the effect the loss of his driver’s license had on his employment possibilities, the trial court concluded the evidence was not sufficient to support appellant’s claim that he could not take job assignments or seek other employment where he could use his welding skills.

A person’s failure to use his or her best efforts to obtain new employment may result in a finding that the individual was voluntarily underemployed. State ex rel. Stimaman v. Calderon, 67 S.W.3d 637, 640-41 (Mo.App.2002). Appellant did not offer evidence of efforts made to obtain employment, but relied on his loss of license and physical disability for his decrease in income. The trial court assessed the evidence and concluded appellant’s diabetes did not prevent him from obtaining suitable employment. It observed that no evidence was presented concerning availability, or lack of availability, of alternate transportation that would permit appellant to secure suitable employment. Appellate courts defer to trial judges’ assessments of witness credibility and in weighing the evidence presented at trial. In re C.M.B. 55 S.W.3d 889, 895-96 (Mo.App.2001). Facts and reasonable inferences are reviewed in the light most favorable to the determination of trial court. Id. at 895. Appellant did not present detailed evidence that supported his claim of change of circumstances with respect to his employment abilities. The trial court finding that appellant was voluntarily underemployed was not an abuse of discretion. Point I is denied.

Point II alleges that the trial court erred in denying appellant’s request to modify maintenance because the evidence was that appellant could not meet both his essential needs and pay the amount of maintenance and child support ordered by the dissolution judgment. In a modification proceeding, a trial court may, but is not required to, consider the ability of the spouse paying maintenance to meet his or her own needs while meeting those of the spouse who receives maintenance. Brooks v. Brooks, 957 S.W.2d 783, 786 (Mo.App.1997), citing Smith v. Smith, 632 S.W.2d 91 (Mo.App.1982). In Smith the husband complained that the trial court erred in not following the guidelines of § 452.335, RSMo 1978, in determining a modification of maintenance. The requirement that appears as § 452.335.2(8) in the present revision of the statutes was present in the 1978 revision. It states that a relevant factor to be considered in initially setting maintenance is “[t]he ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Smith stated that although the trial court considered that factor in determining modification of maintenance, there was no requirement for it to do so. Id.

In a proceeding for modification of maintenance, “[i]f a spouse is entitled to maintenance, then the only determination is the reasonableness of the amount.” Brooks, supra. The trial court found respondent’s monthly gross income, including the $1,000 maintenance she receives, was $2,200. She receives an additional $431 per month child support for the parties’ younger child. Respondent’s monthly expenses exceeded her gross monthly income by approximately $100 when the $1,000 monthly maintenance and the $431 child support are included in the calculation of her monthly income. The trial court did not abuse its discretion in determining that the $1,000 monthly maintenance respondent was receiving was reasonable and denying appellant’s request to reduce that amount. Point II is denied.

Point III argues that the trial court erred “in failing to consider the extent to which the expenses claimed by respondent included expenses of the parties’ adult child.” Appellant argues that he was not obligated to support his adult child and his “obligation to pay maintenance should be based upon the financial condition of the parties and not that of the parties’ emancipated child.”

At the time of the dissolution of the parties’ marriage, their older son, Mark, was living with respondent. He was then over the age of 18, not physically or mentally incapacitated, and not enrolled in and attending a secondary school program or an institution of vocational or higher education. He was, therefore, emancipated. The trial court that heard the motions to modify likewise found the older son was emancipated.

Because the older son was living with respondent at the time of the dissolution of the parties’ marriage and was living with respondent at the time of the trial of the motions to modify the dissolution judgment, there was no change of circumstance that warranted modification. “To warrant modification, the change in circumstances must involve a departure from prior known conditions, including those known at time of dissolution.” Shanks v. Shanks, 117 S.W.3d 718, 721 (Mo.App.2003). Point III is denied. The judgment denying appellant’s and respondent’s motions to modify the dissolution judgment will be affirmed.

Motion for Contempt

The judgment denied both motions to modify the dissolution judgment. Those motions and the motion for contempt, as recognized by the trial court’s October 15, 2003, docket entry, are the pleadings on which the cases were tried. Having denied the motions to modify in their entirety, and having granted respondent relief in the part of the judgment entered March 15, 2004, stating, “Judgment in the amount of $571.50 and $3,165.86 for a total of $3,737.36 is granted in favor of [respondent] and against the [appellant]. [Respondent’s] Motion for Contempt is otherwise overruled,” this court is left to speculate regarding a theory on which money judgment was entered. (Emphasis added.)

Appellant’s Point IV contends the trial court erred in its entry of the money judgment; that no evidence was adduced that supported the award. The trial court having denied the motions to modify, it appears to this court that the only issues before the court were those to which the motion for contempt was directed.

A civil contempt proceeding is directed to a party for whom a prior order, judgment, or decree was entered. In re Marriage of Crow and Gilmore, 103 S.W.3d at 780. “ ‘Its purpose is to coerce compliance with the relief granted.’ ” Id., quoting State ex rel Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). As best this court can glean from the record before it, the contempt proceeding in this case sought a civil contempt remedy. There is no pronouncement in the record before this court that would cause it to conclude that respondent sought punitive relief; rather what appears to have been sought is enforcement of rights granted respondent in the original dissolution judgment; to coerce payment of certain amounts respondent claims were due her from appellant by reason of the dissolution of marriage judgment.

Upon entry of a civil contempt order, a contemnor has the opportunity of purging himself of the contempt by compliance with relief that has been granted. Id. Or, the contemnor may appeal the civil contempt order when it is “enforced.” Id. at 781. “When ‘enforcement’ occurs depends on the remedy. Two remedies to coerce compliance are compensatory per diem fines and imprisonment.” Id. Because no finding of contempt appears in the record on appeal, nor is a remedy directed to coerce compliance with the trial court’s prior order, judgment or decree, the legal basis for the money judgment recited in the judgment is ambiguous and inconsistent with a proceeding for civil contempt. The trial court findings do not identify with any degree of particularity the legal basis for formulation of the money judgment. “An appellate court cannot rule on issues formulated on inconsistent and ambiguous findings.” Main Street Feeds, Inc. v. Hall, 975 S.W.2d 227, 234 (Mo.App.1998).

The money judgment that is part of the judgment in the contempt proceeding must be reversed. The case will be remanded with directions that the trial court review the question of whether appellant’s conduct was contumacious and, if it so finds, to state in what manner that conduct was contumacious and to fashion an appropriate remedy under the circumstances of this case. It is left to the sound discretion of the trial court whether to consider this matter on the basis of the record heretofore made or to permit the parties to offer additional evidence.

Dispositions

The judgment denying the motions to modify the prior dissolution judgment filed by each appellant and respondent is affirmed. The money judgment is reversed and the contempt proceeding remanded for review pursuant to the terms of this opinion.

SHRUM and BARNEY, JJ., concur.

      . The record on appeal hied in this court does not include this pleading. ■

      . Evidence was presented that appellant lost his driver’s license and his fishing and hunting licenses for failure to pay child support. See § 454.1003.1(1), RSMo 2000. The trial court suggested that the suspension of appellant's license likely worked a disservice on appellant, respondent and their children; that enforcement of § 454.1003.1(1) in instances such as these may impair an obligor's ability to maintain skilled employment so as to be a detriment to children and parents.

      . References to statutes are to RSMo 2000 unless otherwise stated.

      . The dissolution judgment stated he was "temporarily emancipated,” a term unknown to this court.

      . This case was tried October 15, 2003. On that date the trial court noted, "Case taken under advisement until the parties file proposed Judgments as directed.’’ The trial judge announced at the end of the presentation of evidence on that date, "And what we’ll do is, I’ll deem this case submitted upon the filings of the proposed judgments by each party. At that time, I'll deem the case submitted and take it under advisement formally....”


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Roy Eugene HARRIS, Appellant.
    No. WD 63356.
    Missouri Court of Appeals, Western District.
    March 8, 2005.

      Irene C. Earns, Appellate Public Defender Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General Jefferson City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., HOWARD and NEWTON, JJ.
   EDWIN H. SMITH, Chief Judge.

Roy E. Harris appeals the judgment of his conviction, after a jury trial in the Circuit Court of Boone County, of first-degree tampering with a motor vehicle, § 569.080.1(2). As a result of his conviction, he was sentenced as a persistent offender, § 558.016, to six years in the Missouri Department of Corrections.

The appellant raises two points on appeal. In Point I, he claims that the trial court plainly erred in overruling his motions for judgment of acquittal at the close of the State’s and all the evidence because, in violation of due process, the State failed to establish an essential proof element of the offense charged, under § 569.080.1(2), that the vehicle in question was sold by the appellant. In Point II, he claims that the trial court plainly erred by failing to, sua sponte, declare a mistrial after a witness testified concerning inadmissible evidence of the appellant’s bad character, that he had been warned “to be careful around” the appellant.

We affirm.

Facts

In September of 2002, the appellant went to Head Motor Company in Columbia, Missouri, where he talked with Roger Tolson, a salesman, about purchasing a car. On a subsequent visit in January of 2003, Tolson told the appellant about a car he was interested in selling, a 1988 Nissan Maxima, which Tolson co-owned with his girlfriend, Leslie Nash. The appellant, who was interested in buying the car, was allowed on two separate occasions to take the Maxima, for several hours, on test drives. In February of 2002, the appellant agreed to purchase the car for $1,000, but never came up with the money to complete the sale.

On February 10, 2008, Tolson drove the Maxima.to work and parked it between two vans on a side street near the car lot, with the title to the vehicle in the glove compartment. When Tolson went to leave for lunch between 1:00 and 2:00 p.m., the vehicle was gone. At about 6:00 p.m., Tolson was leaving work in one of the company’s vehicles, when he saw the Maxi-ma traveling down the street. Tolson flagged down the vehicle and informed the driver, Franklin Jackson, that the car belonged to him. Jackson explained that he bought the car from the appellant and showed Tolson the title, which had Tol-son’s forged signature on it. Tolson called the police, who subsequently arrested the appellant.

On March 21, 2003, the appellant was charged, by indictment, in the Circuit Court of Boone County with tampering in the first degree, in violation of § 569.080.1(2). The appellant’s case was tried to a jury on August 12, 2003. Jackson testified at trial that he first met the appellant in early February of 2003 at Jackson’s mother’s house, and that a few days later, the appellant returned to the house in Tolson’s Maxima and asked Jackson if he knew of anyone who was interested in buying a car. Jackson replied that he was, but no deal was reached between Jackson and the appellant on that date.

On February 10, 2003, the appellant once again returned to Jackson’s mother’s house in the Maxima and asked Jackson if he was still interested in buying a car. Jackson replied that he was, and the appellant agreed to sell the Maxima to him for $800. Jackson gave the appellant the money, and the appellant gave Jackson a title to the Maxima, purportedly signed by “Roger Tolson.” Jackson then went to the Department of Revenue to title the Maxi-ma in his name where he was informed that he needed the signature of Tolson’s girlfriend, since she co-owned the vehicle with Tolson. Jackson contacted the appellant about getting Nash’s signature on the title. The appellant told Jackson that he would meet him later that day, and the two of them would go to Nash’s residence to get her signature. However, before the meeting could take place, the appellant was arrested and the vehicle was impounded.

Tolson testified at trial concerning his contacts with the appellant and the circumstances surrounding the disappearance of the Maxima. When asked whether he suspected initially that the appellant was somehow involved in the disappearance of the Maxima, he testified: ‘Tes, I did, because I had spoken to someone at the garage, and they informed me that I probably needed to be careful around him.” The appellant’s trial counsel objected to the witness’s answer as being non-responsive and asked that it be stricken. The trial court sustained the objection and ordered the answer stricken from the record. The appellant’s trial counsel did not ask for any further relief.

The jury found the appellant guilty of first-degree tampering, and on September 22, 2003, he was sentenced, as a persistent offender, to six years in the Missouri Department of Corrections.

This appeal followed.

Standard of Review

The appellant concedes that as to both of his claims of error, he failed to preserve them for appellate review. Thus, he asks for plain error review under Rule 30.20.

Rule 30.20 provides, in pertinent part, that “[wjhether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom.” The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant’s claim substantial grounds exist for believing that the trial court committed a “plain” error, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). “Plain” error for purposes of Rule 30.20 is error that is evident, obvious and clear. State v. Hibler, 21 S.W.3d 87, 96 (Mo.App.2000).

If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious and clear. Id. As in the case of our review for “regular” error, not every obvious error found in plain error review mandates reversal. Carr, 50 S.W.3d at 853. In the case of review for “regular” error, to be reversible, the found error must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002). Likewise, in the case of review for plain error, the error found must have prejudiced the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.

I.

In Point I, the appellant claims that the trial court plainly erred in overruling his motions for judgment of acquittal at the close of the State’s and all the evidence because, in violation of due process, the State failed to establish an essential proof element of the offense charged, under § 569.080.1(2), that the vehicle in question was sold by the appellant to Jackson. Specifically, the appellant claims that the State failed to make a submissible case as to this proof element in that there was no evidence that legal title to the vehicle ever passed so as to constitute a sale for purposes of § 569.080.1(2). Inasmuch as we do not find, for the reasons discussed, infra, substantial grounds on the face of the appellant’s claim for us to believe that the trial court committed evident, obvious, and clear error resulting in manifest injustice or a miscarriage of justice to the appellant, we decline plain error review.

As a matter of due process, the State, in order to convict a defendant of an offense, is required to prove each and every element of the offense charged, beyond a reasonable doubt. State v. Scurlock, 998 S.W.2d 578, 582 (Mo.App.1999). The appellant claims that the State failed to do that in that to convict him of a violation of § 569.080.1(2), as charged, the State had to show, inter alia, that he sold the vehicle in question and failed to do so in that there was no evidence that legal title to the vehicle ever passed from the true owners, Tolson and Nash.

Section 569.080.1(2) reads:

1. A person commits the crime of tampering in the first degree if:
(2) He knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof.

The State alleged that the appellant violated this section in that he “knowingly and without the consent of the owner sold an automobile, a tan 1988 Nissan Maxima.” (Emphasis added.) Hence, the State, in order to convict, had the burden of proving that the appellant sold the vehicle.

The appellant is contending, on appeal, that to show a sale, for purposes of § 569.080.1(2), the State had to show not only that he gave physical possession of the vehicle to Jackson, but that legal title of the vehicle also passed to Jackson, which the State concedes did not occur in that the title was not signed by the owners of the Maxima, Tolson and Nash. However, the State contends that this was not fatal to its case in that to show a sale, for purposes of § 569.080.1(2), it did not have to prove that legal title to the Maxima passed to Jackson. Thus, as framed by the parties, the issue for us is how to interpret the term “sells” as it appears in § 569.080.1(2).

In interpreting a statute, we are to ascertain the intent of the legislature. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002). In determining the legislature’s intent, we are required to consider and give meaning to all of the terms used in a statute. State ex rel. Nixon v. Estes, 108 S.W.3d 795, 798 (Mo.App.2003).

Words employed in a statute are given their usual and ordinary meaning unless the legislature itself has defined a particular term or phrase. The statutory definition should be followed in the interpretation of the statute to which it relates and is intended to apply and supersedes the commonly accepted dictionary or judicial definition and is binding on the courts.

Id. (citations omitted). Inasmuch as “sells” is not defined in § 569.080.1(2), and it has not been defined by case law for purposes of that statute, we must ascertain and give effect to the legislative intent of that term by giving it its plain and ordinary meaning. State v. Johnson, 964 S.W.2d 465, 469 (Mo.App.1998).

For his part, the appellant, in claiming as he does as to the definition of “sells,” relies on a definition of “sale” found in Black’s Law Dictionary, which states that a sale is “[a] contract between two parties ... by which the [seller], in consideration of the payment or promise of payment of a certain price in money, transfers to the [buyer] the title and possession of the property.” Black’s Law DictionaRy 1200 (5th ed.1979). In other words, the appellant seeks to impose a definition of “sells” that would require not only a showing that physical possession of the vehicle passed, but that legal title also passed. It is worthy of note, however, that the most recent edition of Black’s Law Dictionary defines “sale” as “[t]he transfer of property or title for a price.” Blaok’S Law Dictionary 1200 (7th ed.1999) (emphasis added). This more current definition is consistent with the broader definition which we conclude, infra, that the Legislature intended in § 569.080.1(2).

The definition sought by the appellant for “sells” defies logic inasmuch that would mean that the State could never obtain a conviction, under § 569.080.1(2), for the sale of a vehicle in that, under that definition, the State would be required to prove two mutually exclusive propositions: (1) the sale was “without the consent of the owner;” and, (2) legal title was passed by the owners. Section 301.210.1 requires that in order for legal title to pass to a motor vehicle, the owner must “endorse on the [certificate of ownership] an assignment thereof.” Obviously, an owner, who does not consent to a sale, is not going to endorse an assignment on the certificate of ownership so as to pass legal title. Thus, the two proof elements that would be mandated by the definition of “sells” that the appellant argues for legally cannot exist in the same universe of proof. Hence, if we were to find the definition of “sells” that the appellant urges, we would effectively be removing the unauthorized sale of a motor vehicle as a theory of the offense of first degree tampering with a motor vehicle, under § 569.080.1(2). This would be contrary to the maxim of statutory construction that the “legislature intended that every word, clause, sentence, and provision of a statute have effect.” Hyde Park Housing P’ship v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993).

In the absence of a statutory definition and case law interpreting a term in the context of the statute in question, the dictionary may be used to derive the plain and ordinary meaning of a term. Avila v. Cmty. Bank of Va., 143 S.W.3d 1, 5 (Mo.App.2003). The dictionary defines “sell” as “to give up, deliver, or exchange (property, goods, services, etc.) for money or its equivalent.” WebsteR’S New World College DICTIONARY 1219 (3rd ed.1997). This definition is consistent with the definition given “sell” by the court in State v. Miller, 318 Mo. 581, 300 S.W. 765, 767 (1927).

As this court stated in Pharmflex Inc. v. Division of Employment Security, 964 S.W.2d 825, 830 (Mo.App.1997) (citing Citizens Elec. v. Dir. of Dep’t of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989)): ‘When the legislature enacts a statute referring to a term which it does not define and which has judicial or common law meaning attached to it, the legislature is presumed to have acted with knowledge of that meaning.” “[W]here a statute uses words which have a definite and well known meaning at common law it will be presumed that the terms are used in the sense in which they were understood at common law, and they will be so construed unless it clearly appears that it was not so intended.” State v. Duggar, 806 S.W,2d 407, 408 (Mo. banc 1991) (citations omitted).

In Miller, the Missouri Supreme Court was called upon to interpret the term “sell,” the defendant having been charged with selling “moonshine”. 300 S.W. at 766. Pursuant to § 4499, RSMo 1929, it was a felony to:

manufacture, make, or ferment, by any process whatever, or sell, give away, or otherwise unlawfully dispose of any ‘moonshine,’ ‘hootch,’ ‘corn whiskey,’ or other intoxicating liquor whatsoever, the drinking of any of which shall cause the death of another, or shall cause the death of another, or shall cause another to become blind, insane, paralyzed, or violently mad.

(Emphasis added.) The information charged that the defendant “ ‘did sell, barter, and trade’ three pints of moonshine for an automobile tire.” Id. at 767. The defendant claimed that the information was deficient because it did not allege a criminal offense in that, in charging him with exchanging “moonshine for an automobile tire,” it did not charge him with selling moonshine in that the statutory term “sell” was not intended to include bartering and trading. Id.

The Miller Court rejected the narrow definition of “sell” urged by the defendant and gave it a broader definition, defining it as “[t]o transfer property for a consideration.” Id. In ruling against the defendant, the Court held that:

the Legislature intended to use the word “sell” in its broad sense, so as to include a disposition for any consideration. We cannot assume that the lawmakers intended to give the word a meaning which would defeat the purpose of the act.

Id. at 767. The rationale of State v. Miller applies here. It is clear that, in drafting § 569.080.1(2), the Legislature intended to use the word “sell” in its broad sense, meaning the exchange of property for any sort of valuable consideration, in that the restricted sense proposed by the appellant would wholly defeat the purpose of the statute.

Here, the evidence is undisputed that the appellant transferred the physical possession of the Maxima to Jackson for $800. This then would be sufficient for the jury to infer that the appellant was guilty, as charged, of “selling” the Maxima to Jackson, without Tolson’s and Nash’s consent, in violation of § 569.080.1(2). Hence, we do not find substantial grounds on the face of the appellant’s claim in this point for us to believe that the trial court committed plain error and, therefore, we decline plain error review.

Point denied.

II.

In Point II, the appellant claims that the trial court plainly erred by failing to, sua sponte, declare a mistrial after Tolson testified concerning inadmissible evidence of the appellant’s bad character, that he had been warned “to be careful around” the appellant. The appellant concedes that he did not properly preserve this claim of error for appellate review because he failed to object at trial to the allegedly impermissible testimony. State v. Brown, 58 S.W.3d 649, 652-53 (Mo.App.2001). As in Point I, the appellant seeks plain error review in this point, under Rule 30.20. Inasmuch as we do not find, for the reasons discussed, infra, substantial grounds on the face of the appellant’s claim for us to believe that the trial court committed evident, obvious, and clear error resulting in manifest injustice to the appellant, we decline plain error review.

Tolson testified, when asked whether he suspected that the appellant was somehow involved in the disappearance of the Maxi-ma: “Yes, I did, because I had spoken to someone at the garage, and they informed me that I probably needed to be careful around him.” The appellant contends that Tolson’ response constituted inadmissible evidence of uncharged misconduct of the appellant.

The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes. State v. Carr, 50 S.W.3d 848, 854 (Mo.App.2001). If, however, evidence of prior crimes or misconduct is both logically and legally relevant to prove the charged crime, and not just the propensity of the defendant to commit such crimes, it is admissible. Id. The admission of evidence only violates the general rule as to uncharged crimes evidence if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes. Id. Vague references are not clear evidence associating a defendant with other crimes. Id.

Here, the evidence in question did not constitute evidence of uncharged misconduct in that the witness’ challenged remark was vague and indefinite, and did not refer to specific conduct. State v. Boulware, 923 S.W.2d 402, 406 (Mo.App.1996) (stating that it was not plain error for the trial court to fail to declare a mistrial, sua sponte, over a witness’ remark about the defendant’s parole officer, because the remark was vague, indefinite, and did not refer to a specific crime). Hence, we do not find substantial grounds on the face of the appellant’s claim for us to believe that the trial court committed plain error and, therefore, decline plain error review.

Point denied.

Conclusion

The judgment of the circuit court, convicting the appellant of tampering in the first degree, § 569.080.1(2), is affirmed.

HOWARD and NEWTON, JJ., concur.

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

      . All rule references áre to the Missouri Rules of Criminal Procedure, 2004, unless Otherwise indicated.


author: PER CURIAM.

text:
    Robert Gene PLYMELL, Single; and Nolan D. Plymell and Judith Ann Plymell, Husband and Wife, Respondents, v. David L. YOUNGS, Appellant.
    No. WD 62747.
    Missouri Court of Appeals, Western District.
    March 8, 2005.
    Joseph Y. Decuyper, North Kansas City, MO, for Appellant.
    David B. Parman, Grant City, MO, for Respondent.
    Before: PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. David Youngs appeals from the trial court’s judgment in favor of Mr. Robert Plymell and Mr. and Mrs. Nolan Plymell.

For the reasons set forth in the memorandum provided to the parties, we affirm the trial court’s judgment of conviction. Rule 84.16(b).