author: HOWARD, Judge.

text:
    STATE of Missouri, Respondent, v. Robert A. BOUSER, Appellant.
    No. WD 55745.
    Missouri Court of Appeals, Western District.
    Dec. 14, 1999.
    As Modified March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2000.
    Application for Transfer Denied May 30, 2000.

      Andrew A. Schroeder, Asst. Appellate Dist. Defender, Kansas City, for appellant.
    Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

      Before: EDWIN H. SMITH, P.J., HOWARD, J„ and TURNAGE, Sr J.
   HOWARD, Judge.

Robert A. Bouser (Mr. Bouser) was jury-tried and convicted as a persistent offender of second degree murder pursuant to § 565.021.1(2), for which he was sentenced to eighteen years in prison.

Mr. Bouser asserts that the trial court erred: (1) in instructing the jury as to second degree felony murder based on the underlying felony of abuse of a child because that felony “merged” into the resultant homicide, and (2) in refusing to admit evidence that someone else had the opportunity to cause the injuries to the victim on the grounds the evidence was “irrelevant and immaterial.”

The judgment is affirmed.

Facts

Appellant does not question the sufficiency of evidence to sustain his conviction, and a reasonable jury could find:

In February of 1997, J.M.P., a 15-month-old boy, lived in a small, two-bedroom duplex in Grandview, Missouri, with his mother, Krystal Judkins, his grandmother, Sherry McMannama, and his brother and sister, C.J. and S.P. His mother’s boyfriend, appellant Robert Bouser, had also been living at the duplex with his family since November of 1996.

J.M.P. was just beginning to walk. On February 5, 1997, he fell and hit his head on the cement floor of a laundromat. Although a “knot” formed on the right side of his forehead and he cried for about ten minutes, J.M.P. quickly resumed playing and was “fíne.” That same evening, showing no apparent signs of injury, J.M.P. actively played with his brother and sister.

Due to recent surgery on the harelip and cleft palate J.M.P. was born with, it was necessary that he be given sponge baths. While bathing her son that night, Ms. Judkins did not notice scrapes or cuts anywhere on J.M.P.’s head or anywhere else on his body. Later J.M.P. fell asleep 20 minutes after his grandma gave him his bedtime bottle and put him to bed. He awoke once in the night because he was “cutting some teeth.” His grandma fed him another bottle, gave him Tylenol and rubbed teething lotion on his gums. J.M.P. then fell back to sleep.

The next morning, February 6, 1997, both Ms. McMannama and Ms. Judkins awoke for work. After C.J. left for school on the bus, Ms. Judkins looked in on J.M.P. and S.P. Both were sleeping as usual, as was Mr. Bouser who had agreed to watch the children that day. Ms. Jud-kins and Ms. McMannama left around 9:00 a.m. for work. Only Mr. Bouser, S.P., and J.M.P. remained at the duplex.

That afternoon, Ms. McMannama returned to the duplex around 4:00 p.m. Mr. Bouser informed her he believed J.M.P. had fallen on some toys on the floor of his room, and he thought the boy was “breathing funny.” When she checked on J.M.P., she observed that one of his teeth appeared loose, and he had a small cut on his mouth. She left to pick up Ms. Judkins at work. They returned home about thirty minutes later, and J.M.P. lay motionless on the living room couch. Mr. Bouser told them, “[J.M.P.] just fell over and collapsed.” Ms. McMannama then called 911 using the neighbor’s phone.

Considered a “critical pediatrics” case, J.M.P. was taken by the ambulance to Children’s Mercy Hospital with Ms. Jud-kins riding along. The paramedic’s initial diagnosis indicated that the boy was in shock, and his “brain was having some type of significant trouble.” J.M.P. exhibited significant breathing and circulation problems. Upon removal of J.M.P.’s clothing, the paramedic observed “several bruises to the face, to the neck area, and to the chest and abdomen.” Ms. Judkins was upset and would not answer the paramedic’s questions as to the origin of her son’s bruises.

He arrived at Children’s Mercy at 5:20 p.m., February 6,1997, and was treated by an emergency trauma team. Due to the severity of his injuries, he died the following day.

On February 10, 1997, Detectives Van-Winkle and McKinstry arrested Mr. Bouser “for investigation of killing J.M.P.” and transported him to the Grandview police station. Mr. Bouser waived his Miranda rights and gave a statement as to what occurred on the day of February 6, 1997, when he was the only adult with S.P. and J.M.P. A synopsis of Detective VanWin-kle’s testimony, (verbatim where indicated by quotes) follows:

Mr. Bouser recounted that he agreed to watch the kids that day. After they woke up and he fixed breakfast, S.P. had scattered her toys everywhere in the children’s bedroom, and J.M.P. had “shit all over himself.” He had to bathe him and clean up the mess. In describing both -incidents to the detective, Mr. Bouser “became agitated” and “shifted around” in his seat. Mr. Bouser explained that later, while he was in the living room and the children were in their bedroom, he heard J.M.P. cry. He went in to check on him again. He discovered the boy had a loose tooth and small amount of blood on his mouth. From this, he speculated that perhaps the boy had fallen on some of the toys on the floor or on the bedroom table. He told the detective that “except for a little cold ... [J.M.P.] had acted fíne all week.... He might have had a little bit of a breathing problem but it was not anything serious. It was just something that kids get.” After Ms. McMannama arrived home and then went to call and pick up her daughter, Mr. Bouser described to the officer that he had set J.M.P. on the couch next to him, and, “next thing he knew, J.M.P. rolled over backwards and kind of went limp.... He said he picked him up by the arms and shook him ... trying to get him to respond, and ... he didn’t respond.”
• When accused of the “murder” of J.M.P., Detective VanWinkle observed Mr. Bouser’s “low voice” denial, but it was not “much of a strong denial.”

At trial, doctors from the trauma team and the medical examiner who performed his autopsy testified for the State. Injuries to J.M.P.’s brain included: a small “acute, severe” subdural hematoma (blood in the space around the brain), a “cerebral edema” (“diffused swelling” of the brain causing an interruption in the blood supply to the brain), and a “subarachnoid hemorrhage” (blood in the space on top of the brain). The doctors also found extensive bruising on J.M.P.’s body, numerous retinal hemorrhages, abdominal injuries including a large laceration or cut through his liver, damage to the right adrenal gland, a large amount of -blood within the abdominal cavity, and- signs that J.M.P. was “in shock”- (his blood was not properly circulating through his vital organs).

The doctors all testified that J.M.P.’s injuries could not have resulted from falling onto a pile of toys, bumping his head on a table or falling on the cement while trying to walk. The head’and abdominal injuries resulted from direct, intentional “blunt traumas” of significant force to the baby’s head and to' his abdomen. The medical experts were unable to pinpoint exactly when the injuries were sustained or which life-threatening injury ultimately caused his death. However, their testimony showed that if J.M.P.’s severe injuries occurred prior to February 6, 1997, he could not have awoken on February 6 th, could not have played or eaten in any normal fashion, and overall “he would have been significantly abnormal.” Each medical witness also testified that J.M.P., with these significant injuries, could not have been sitting normal in an adult’s lap and then have suddenly collapsed as Mr. Bouser contended.

Mr. Bouser was subsequently convicted of second degree murder pursuant to § 565.021.1(2). After finding him to be a “persistent offender” under § 558.016.3, the trial judge sentenced Mr. Bouser to eighteen years. Mr. Bouser filed a motion for a new trial raising the same issues set forth in this appeal. The trial court denied Mr. Bouser’s motion, and this appeal followed.

Point I

Mr. Bouser contends the court erred in instructing the jury as to second degree felony murder based on the underlying felony of abuse of a child. He argues felony abuse of a child, analogous to assault, “merged” into the homicide offense. This is because that felony “is not a separate and independent offense of homicide, but actually resulted] in the victim’s death” thereby precluding its use as a predicate felony for a conviction of second degree felony murder. Mr. Bouser requests that his conviction and sentence for felony murder in the second degree be reversed, and therefore requests that the case be remanded either for a new trial or for re-sentencing for the offense of involuntary manslaughter.

Prior to the jury retiring for consideration, Mr. Bouser specifically objected to the giving of Instructions No. 10 and No. 11. Mr. Bouser likewise raised the objections in his motion for new trial. Rule 29.11. Thus, this court will review for error the giving of Instruction No. 10 and No. 11. Rule 28.03.

MISSOURI’S FELONY-MURDER STATUTE AND THE MERGER DOCTRINE

Throughout the trial, Mr. Bouser argued the court should not instruct the jury on second degree felony murder because of the merger doctrine. His pretrial motion to dismiss, motions for judgment of acquittal, and his objections to the submission of Instructions No. 10 and No. 11, were all based on, among other theories not herein appealed, the concept of merger. He does not assert a double jeopardy violation. All motions and objections concerning merger were considered by the trial judge - and denied or overruled. Before submitting the case to the jury, the trial judge instructed it as to conventional second degree murder, felony second degree murder based on the underlying felony of child abuse (Instructions No. 10 and No. 11) and involuntary manslaughter. Instructions No. 10 and No. 11, under which the jury convicted him and upon which appellant’s first point rests, follow:

INSTRUCTION NO. 10
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about February 6,1997, in the County of Jackson, State of Missouri, the defendant caused multiple injuries to .[J.M.P.] by means of blunt force trauma, and
Second, that in doing so, defendant inflicted cruel and inhuman punishment upon [J.M.P.], and
Third, that [J.M.P.] was then less than seventeen years old, and Fourth, that defendant knew his conduct was inflicting cruel and inhuman punishment upon a child less than seventeen years old,
then you will find that the defendant has committed abuse of a child.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of abuse of a child.
* * ⅜
INSTRUCTION NO. 11
If you do not find the defendant guilty of murder in the second degree as submitted in Instruction No. 8, you must consider whether he is guilty of murder in the second degree under this instruction.
If you find and believe from the evidence beyond a reasonable doubt:
First, that defendant committed the felony of abuse of a child, as submitted in Instruction No. 10, and
Second, that defendant killed [J.M.P.] by means of blunt force trauma, and
Third, that [J.M.P.] was killed as a result of the perpetration of that abuse of a child,
then you will find the defendant guilty of murder in the second degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the second degree under this instruction.
If you do find the defendant guilty of murder in the second degree, you will return a verdict finding the defendant guilty of murder in the second degree.

The felony-murder rule can be traced as far back as Lord Coke, who, in 1797, pronounced, “[i]f the act be unlawful, it is murder.” 3 Edward Coke, Institutes of the Laws of England (London 1797). At common law, there were no degrees of murder. A homieide was either murder or manslaughter. “[N]ot only was it murder to kill another, though the intent was merely to severely hurt, but a homicide unintentionally committed in pursuit of a felony was murder, and was punishable with death.” State v. Clark, 652 S.W.2d 128, 125 (citing Whahton on Homicide § 105, at 147 (3d ed.1907)).

The felony-murder rule “permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony.” State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975), overruled on other grounds by State v. Morgan, 592 S.W.2d 796, 801 (Mo. banc 1980). Proving one intended to commit the underlying felony “raises a conclusive presumption that the defendant possessed the necessary felonious intent to support conviction for the resulting murder.” Id.

The merger doctrine, initially a judicial creation, is “a means of limiting or barring application of the felony-murder rule” where the underlying felony is the very act that caused the homicide. State v. Coody, 867 S.W.2d 661, 664 n. 1 (Mo.App. S.D.1993). This form of limitation was first adopted by Missouri in State v. Shock, 68 Mo. 552 (1878). The Shock court interpreted the felony-murder statute in effect at the time to not include “those acts of personal violence to the deceased which are necessary and constituent elements of the homicide itself, and are, therefore, merged in it.” Shock, 68 Mo. at 561.

In Shock, a three-two decision, the defendant beat the six-year-old deceased with a pole and grapevines over the course of fifteen minutes, ostensibly as punishment. Id. at 557. The boy died several days later and defendant was convicted of first degree murder and sentenced to be hanged. Id. The first degree murder statute in effect at the time of the Shock decision read:

Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree.

Wagner’s Stat. (1872) c. 42, art. 2, s.l, p. 445 (emphasis added). The Shock jury was instructed, in part, as follows:

If the jury believes, from the evidence, that it was not the intention of the defendant to kill the child Scott, by whipping him, but that he did intend to do him great bodily harm, and in so whipping him, death ensued, he is guilty of murder in the first degree.

Shock, 68 Mo. at 558 (emphasis added). The issue in Shock was whether inflicting “great bodily harm” was an “other felony” constituting first degree murder. The Shock court’s analysis was conducted within a much different legal context and interpreted very different criminal statutes than exist today and accordingly is of little value in our case.

Analyzing the applicable, felony statute of the day, the Shock court stated that the “bare” infliction of great bodily harm was not a felony at common law, nor was it made so by the specific statute’s language and concluded it was not, under the circumstances of the case, an “other felony.” Id. at 560-61. Because the statute made infliction of great bodily harm a felony only when death did not ensue, the court reasoned that in cases where death did ensue, it was not a felony. Id. at 559. Accordingly, such an assault could not be an underlying or “other felony” to support felony murder. Of course, our statutes are much different today, and it is clear that, under present law, such an assault is a felony regardless of whether death ensues.

The Shock court also doubted that the words “other felony” could include offenses other than the specifically listed felonies, i.e., arson, rape, robbery and burglary, and feared adopting a broader interpretation would engulf the other degrees of murder, potentially making the commission of any felony first degree murder. Id. at 562-63. As will be discussed below, subsequent legislation eliminates this concern.

Additionally, Shock pronounced that when a felony-murder statute uses the word “murder” instead of “homicide,” a killing must constitute a common law murder to come within the statute, i.e., there must have been an intent to kill. Id. at 559-60. This view, regarding intent to kill, would not prevail over time.

In Missouri, until 1984, felony murder could be classified as either first or second degree murder, depending on the underlying felony, although much more judicial attention was focused on first degree murder provisions. Unlike the present case, Shock involved murder in the first degree, and accordingly, the second degree statute received little analysis. However, in the subsequent case of Clark, when analyzing the same second degree murder statute as in effect during Shock, the court defined the “all other kinds of murder” language to be: “(1) Intentional murder, nondeliberate, and (2) homicides committed in the perpetration of or attempt to perpetrate any felony other than the five listed in the first degree murder statute.” Clark, 652 S.W.2d 128, 127 (Mo. banc 1983) (citing M.A.I.—CR 2d 15.16, “Notes on Use,” n. 3) (emphasis in original). The Clark court saw no other limitation on the type of felony to support such a charge.

In 1932, the Missouri Supreme Court discussed the Shock opinion in State v. Glover, 330 Mo. 709, 50 S.W.2d 1049, 1051 (1932). The court’s understanding of Shock ⅛ conclusions were:

[T]he first degree murder statute embraced only killings which would have been murder at common law; that is was merely a statute of classification, not of definition; and, since at common law there could be no murder without an intent to kill, such intent was necessary under the constructive murder statute. [As a result, Shock ] held ... that if ... one person assail another, though without intending to kill him, and the latter person die, the assault and its result [were] all one offense[.] ... [T]he assault [was] simply a constituent element of the homicide, merging therein, and not a separate, independent felony.... [Thus, under the first degree murder statute as it then read,] the words “or other felony” appearing therein referred to some collateral felony, like arson, robbery, etc., and not to acts which themselves constituted the homicide.

Id. As pointed out in Glover, in response to the Shock opinion, the legislature, the next year, amended the first degree murder statute. Id. The words “or other felony” were stricken from the statute and replaced by “or mayhem.” § 1282, RSMo 1879. In effect, except as to the specifically enumerated felonies of arson, rape, robbery, burglary and mayhem, the legislature clarified that felony murder could not be charged as first degree murder.

As noted by Glover, the case of State v. Hopkirk, 84 Mo. 278, 287 (1884) partially overruled Shock. In Hopkirk, the court agreed that the felony-murder statute was a statute of classification instead of definition and only embraced killings that would have been murder at common law. Id. at 287. However, it “denied that at common law no homicide could be murder, unless there was an intent to kill.” Id. Instead, Hopkirk edged the law closer to our present concepts by affirming that “at common law, a homicide committed in the perpetration of a felony was murder, and this, whether there was any precedent intention of the homicidal act or not.” Id.

Most of the cases discussing this aspect of felony murder in depth were written in the 1800⅛. A large portion of the courts’ analyses of the felony-murder statutes m effect in the older cases focused on their conflicting beliefs of the significance of what constituted “murder” at common law, i.e., the courts drew a distinction between “murder” at common law and “homicide.” Hopkirk, 84 Mo. at 289. In 1885, evidently to put the question at rest, the legislature amended the first degree felony-murder statute so that it read, as it did until 1975:

Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful deliberate and premeditated killing and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.

Glover, 50 S.W.2d at 1052; Missouri Laws, 1885, p. 138 (emphasis added).

In the years since Shock, only a few cases have embraced the issues of felony murder and the merger doctrine. The cases repeat variations of the theme in Shock. See State v. Cook, 560 S.W.2d 299, 304 (Mo.App.1977) (discussing whether the underlying felony was a “distinct or separate felony” not an “integral part” of the homicide); State v. Hanes, 729 S.W.2d 612, 617 (Mo.App. E.D.1987) (discussing whether the underlying felony was “independent of’ the homicide); State v. Rogers, 976 S.W.2d 529, 533 (Mo.App. W.D.1998) (discussing whether the underlying felony was a “separate and distinct act”); State v. DeJournett, 868 S.W.2d 527, 533 (Mo.App. S.D.1993) (declining to determine the continued viability of the doctrine because it was not applicable to the case). Although the statutes impacting on the felony-murder rule have evolved significantly over the years, none of the more recent cases have analyzed the applicable legislative language and its effect on the continued viability of the merger doctrine. Certainly, the present felony-murder statute, in effect since 1984, has not undergone such analysis. We feel the legislature’s pronouncements are clear and dispositive.

Legislative Intent

In the late 1800’s the legislature, at least in part reacting to the changing judicial interpretations of its laws, fashioned the murder statutes which would remain essentially unchanged until the 1970’s when the legislature began revising the first and second degree murder statutes. The first degree felony-murder statute remained essentially the same from 1885 until 1975, when the legislature created separate sections for intentional, premeditated “capital murder,” § 559.005, and for first degree, unpremeditated, unintentional felony murder based on those felonies enumerated in the 1879 statute (except kidnapping replaced mayhem), § 559.007. The “or other felony” language was again left out. The 1983 legislature repealed all former versions of first and second degree murder and rewrote each. The 1975 distinction between capital murder and first degree murder was repealed and replaced by a first degree murder statute which eliminated all forms of first degree felony murder. § 565.020.1 RSMo Supp.1983. Felony murder was reclassified as second degree murder with a killing in the perpetration of “any felon/’ serving as a basis for establishing the reckless intent then required for second degree murder. § 565.021.2 RSMo Supp.1983.

The relevant portion of Missouri’s second degree murder statute, amended in 1983 and effective October 1, 1984, reads as follows:

1. A person commits the crime of murder in the second degree if he:
(1) Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person; or
(2) Commits or attempts to commit any felony, and, in the perpetration-or the attempted perpetration of such felony ...' another person is killed as a result of the perpetration or attempted perpetration of such felony ...
2. Murder in the second' degree is a class A felony, and the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.

§ 565.021 (emphasis added). Upon a literal reading of the statute, there is no mention of merger nor is there mention of limits on, or specifics about, the felony being used to support a charge of second degree felony murder.

The Legislature’s prerogative is to define crimes and set the punishment for offenders, and this'prerogative is given great latitude. “Courts are without authority to read into a statute a legislative intent contrary to the intent made evident by the plain language, even when a court may prefer a policy different from that enunciated by the legislature.” State v. Smith, 972 S.W.2d 476, 479 (Mo.App. W.D.1998). Accordingly, we examine the stat ute in order to determine “the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning.” Farmers’ & Laborers’ Coop. Ins. Ass’n v. Director of Revenue, 742 S.W.2d 141, 145 (Mo. banc 1987).

Specifically, we must decide if our legislature intended for certain felonies, such as abuse of a child, to be used as an underlying felony for a conviction of second degree felony murder. Or, in other words, whether particular felonies, such as assault, merge into the resulting homicide thereby precluding the use of the felony to support a second degree felony murder charge. As set forth above, § 565.021.1(2) clearly references “any felony ” in defining this crime. The term “any” connotes, “one, no matter what one: EVERY - used as a function word especially in assertions and denials to indicate one that is selected without restriction or limitation of choice.” Webster’s Third New International Dictionary 97 (1981). This court does not recognize ambiguity in this term. Just as “the word ‘any’ as used in a constitutional provision is ‘all-comprehensive, and is equivalent to “every,” ’ ” it should also be construed as “all-comprehensive” in a statutory provision. Boone County Court v. State, 681 S.W.2d 821, 325 (Mo. banc 1982) (quoting State ex rel. Randolph County v. Walden, 357 Mo. 167, 206 S.W.2d 979, 983 (1947)).

The plain and ordinary meaning of “any,” therefore, indicates our legislature intended that every felony could serve as an underlying felony for the purpose of charging a defendant with second degree felony murder pursuant to § 565.021.1(2). Nowhere does the statute limit the felony to be used in charging under this statute to any particular type of or specific felony, i.e., inherently dangerous, as some other states have done. See, e.g., Kan. Stat. Ann. 21-3401; Miss.Code Ann. § 97-3-19; Iowa Code § 707.2.

In 1983, Missouri had a first degree felony-murder statute that read:

Any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping.

§ 565.003 RSMo 1978 (emphasis added). The emphasized offenses were felonies the legislature specified in order to “bump the charges up” to first degree from second degree murder, then defined as, “[a]ll other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide ...”

§ 565.004 RSMo 1978.

In 1983, the legislature repealed' the first and second degree murder statutes, and effective October 1, 1984, first degree murder required a showing that defendant “knowingly eaus[ed] the death of another person after deliberation upon the matter,” § 565.020 RSMo 1984. Second degree felony murder was amended with the “any felony” language as reflected today in § 565.021.1(2). These amendments evidence the legislature’s intent to eliminate first degree felony murder. It clearly chose to instead solely classify felony murder under the second degree murder statute and to delineate “any felony ” as being capable of supporting a second degree felony murder conviction under § 565.021.1(2). If the legislature had desired to limit underlying felonies, it would have done so, as it had done for the previous first degree murder statute.

As to the underlying felony, “Abuse of a child” pursuant to § 568.060, reads: 1. A person commits the crime of abuse of a child if such person:

(1) knowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old ...
(3) Abuse of a child is a class C felony, unless:
... (2) A child dies as a result of injuries sustained from conduct chargeable pursuant to the provisions of this section, in which case the crime is a class A felony.

As set forth in Instruction No. 10, this was the underlying felony that the jury found Mr. Bouser to have committed. The jury found Mr. Bouser committed this offense and J.M.P. died in perpetration of that felony, thus, pursuant to Instruction No. 11 they convicted him of second degree felony murder. “Abuse of a child” certainly qualifies as “any felony” as defined in the second degree felony-murder statute. We also note there is no requirement in the definition of “abuse of a child” that the abuse be dispensed over a period of time before the charge will arise. See Faraga v. State of Mississippi 514. So.2d 295 (Miss.1987).

Also, by way of the same 1984 amendments, with language that did not previously exist, § 565.021.2 specifically allows, “the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.” (Emphasis added.) “Statutory expression of one thing implies the exclusion of another.” State v. Rellihan, 662 S.W.2d 535, 545 (Mo.App. W.D.1983). Only murder or manslaughter would merge into the homicide for punishment purposes, no other felonies were expressly mentioned. Thus, the legislature specifically provided that punishment for a conviction of a felony will not merge into punishment for a second degree felony murder conviction supported by that same felony unless the underlying felony is murder or manslaughter. This alleviated the Shock court’s concerns that, unless limited, the felony-murder rule would consume all other degrees of murder and manslaughter.

Convictions for both abuse of a child and felony murder have been upheld as not in violation of double jeopardy despite claims that the child abuse felony merged with the homicide. See Coody, 867 S.W.2d at 661. It would appear counter-intuitive to hold that the felony child abuse cannot serve as a basis for the conviction of second degree felony murder under § 565.021.1(2).

The legislature, not the courts, makes law and it may limit or abolish the felony-murder rule as it sees fit. It is not for the courts to assume this legislative function. If the Missouri Legislature intends for felony assault or felony abuse of a child to merge into a resulting homicide, it may so formulate the second degree felony-murder statute. This court agrees with the reasoning of the Texas Court of Appeals on this same issue:

If [the legislature] had intended to exempt [particular] felony offenses or lesser included felony offenses or to embrace the merger doctrine as a limitation on felony murder, it could easily have done so. The maxim “expresio unius est exclusio alteráis” is often employed in the construction of statutes. In general, it means that a statute’s inclusion of a specific limitation excludes all other limitations of that type. (Citations omitted.)

Rodriguez v. Texas, 953 S.W.2d 342, 354 (Tex.Ct.App.1997). For the same reason, this court declines to interpret the plain language of § 565.021.1(2) as barring a conviction of second degree felony murder based on the underlying felony of abuse of a child.

Thus, there was no error in the trial court’s use of Instruction No. 10 and No. 11. The legislature did not intend for there to be any merger, and it is not within this court’s province to rule contrary to our legislature’s intent.

Point I is denied.

Point II

In his second point on appeal, appellant contends the trial court abused its discretion when it refused to admit evidence he offered on the grounds it was irrelevant and inadmissible.

“SOMEONE ELSE HAD THE OPPORTUNITY TO CAUSE THE INJURY” EVIDENCE

Trial courts are given broad discretion on questions of the relevance of evidence. Without clear showing of abuse of that discretion, appellate courts will not interfere with the trial court’s ruling. State v. Parkhurst, 845 S.W.2d 31 (Mo. banc 1992).

To preserve for appeal the issue of improper exclusion of evidence, an offer of proof must be made at trial demonstrating to the trial judge why the evidence is relevant and should be admitted. Evans v. Wal-Mart Stores, Inc., 976 S.W.2d 582, 584 (Mo.App. E.D.1998). An offer of proof at trial serves two purposes: (1) it “preservefe] the record for appeal so the appellate court understands the scope and effect of the questions and proposed answers in considering whether the trial judge’s ruling was proper,” and (2) it allows “the trial judge to further consider the claim of admissibility” after having ruled the evidence inadmissible in pretrial hearings. Id. If a trial judge excludes evidence upon an offer of proof at trial, then the proponent may assert error on the exclusion. Sullivan v. Spears, 871 S.W.2d 75, 76 (Mo.App. W.D.1994).

During his trial, Mr. Bouser properly made an offer of proof to the court concerning the testimony he sought to introduce. He now argues the trial court abused its discretion in thereafter excluding the evidence. Mr. Bouser maintains that the evidence elicited from Julie Horn-beck in the offer of proof, concerning the manner in which Ms. McMannama and Ms. Judkins (her mother and sister respectively) placed J.M.P.’s retainer in his mouth was:

[R]elevant and admissible evidence that someone else had the opportunity to inflict one or more of the fatal injuries to [J.M.P.], because the evidence directly connected Ms. McMannama and Ms. Judkins to the source of the blunt force trauma that caused the laceration to [J.M.P.’s] liver.

In reviewing evidential relevance, we must “assume the party making an offer of proof stated it as fully and favorably as possible.” State v. Harris, 620 S.W.2d 349, 353 (Mo. banc 1981). In Mr. Bouser’s offer of proof, Ms. Hornbeck testified that J.M.P. wore a retainer that had to be taken out by Ms. McMannama and Ms. Judkins twice a day for cleaning. Ms. Hornbeck testified further:

They had to hold him to take it out, so it would not go down his throat.... [They would restrain] his head, his arm, and his leg. And when they restrained his arms, they usually put the arm or the arm over the hand and stomach in order to restrain at all.... Every single time it seemed like they had to place their hand on his head, in order for him to stop moving around.... [If he didn’t open his mouth], either Sherry or Krystal would stick their fingers in his mouth. Pry it open. They would literally open it up. He was always resisting. He didn’t want it done.

Athough she testified that this procedure to clean J.M.P.’s retainer was done daily, Ms. Hornbeck later stated that she had not personally seen Ms. McMannama and Ms. Judkins do this for at least two or three weeks before “the accident.” After this definite and specific offer of proof, the trial court again ruled that the evidence was irrelevant and inadmissible. Consequently, the evidence would not be introduced to the jury.

“Evidence which has no other effect than to cast bare suspicion on another is not admissible.” State v. Schaal, 806 S.W.2d 659, 669 (Mo. banc 1991). Evidence that another person or persons had an opportunity to commit the crime for which Mr. Bouser was on trial cannot be held admissible “absent proof that the other person committed an act directly connecting him or her with the crime.” State v. Magill, 801 S.W.2d 725, 727 (Mo.App. S.D.1990).

Ms. Hornbeck testified that she had seen her mother and sister restrain J.M.P. in this manner “too many times to count.” Again, she did not observe this “routine” less than two weeks before J.M.P. sustained the injuries that led to his death. No other evidence was offered to show a direct connection between this procedure for removing and replacing the retainer and the life-ending injuries J.M.P. sustained. No medical testimony was presented that tended to show that holding the child down in such a manner could cause his liver to tear. Instead, the offered testimony tended to show that this was a daily event, and J.M.P., although resistant to the invasive procedure, had never been injured by it before. The medical testimony also controverted this assertion.

It cannot be determined whether the women removed, cleaned and replaced J.M.P.’s retainer within the “two days at most” timeframe of the infliction of injury upon J.M.P., nor can it be determined that this “routine” was of the type that would cause such a severe injury. Thus, neither Ms. McMannama nor Ms. Judkins can be directly connected to the blunt trauma or traumas leading to the death of J.M.P.

Moreover, the evidence demonstrated J.M.P. likely died from injuries that could only have been sustained within the time appellant was the only adult with J.M.P. Appellant argues that through his cross-examination, Ms. McMannama and Ms. Judkins “were caught in numerous lies,” and “[i]f the defense had been permitted to link Ms. McMannama or Ms. Judkins to the injury that caused the laceration to [J.M.P.’s] liver, the outcome of the trial would have been different.” However, no evidence was found in the court record that either woman “committed an act directly connecting her with the crime.” The offered evidence would have merely east bare suspicion upon the boy’s mother and grandmother.

It is this court’s duty to review the trial court’s refusal to admit the evidence for abuse of discretion. The offered evidence was irrelevant because it did not sufficiently or directly connect some person other than Mr. Bouser with the crime. The trial court did not abuse its discretion in finding the evidence “irrelevant and inadmissible.”

Point II is denied.

Conclusion

This court finds that the Missouri Legislature did not intend for the charges of felony murder and abuse of a child to merge nor do the facts support merger. Thus, the jury was properly instructed on second degree felony murder with the felony “abuse of a child” as the predicate felony. Further, the trial judge’s refusal to admit evidence offered by appellant as “irrelevant and inadmissible” was not an abuse of discretion. We therefore affirm the trial court’s judgment.

EDWIN H. SMITH, P.J., and TURNAGE, Sr.J., concur.

      . All statutory references are to RSMo 1994 unless otherwise noted.

      . Instruction No. 10 was patterned on M.A.I. 322.12. Instruction No. 11 was patterned on M.A.I. 313.06.

      . The second degree murder statute in effect at the time read, "All other kinds of murder at common law, not herein declared to be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree.” Wagner’s Stat. (1872) c. 42, art. 2, s.2, p. 445.

      . The "great bodily harm” statute read as follows:
      If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement, or culpable negligence of another, in cases under circumstances which would constitute murder or manslaughter, if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned, shall in cases not otherwise provided for, be punished by imprisonment in the penitentiary.
      Mo. Rev. Stat. Ch. 200, Crimes and Punishments, art. II § 33 (1872) (emphasis added).

      . Until 1984, Missouri’s second degree murder statute had remained the same as written in 1835 and as set forth supra in footnote 3.

      . The Southern District specifically declined to consider the current contention that "merger principles prohibit use of the felony-murder rule when abuse of a child is the underlying felony because that specific issue had not been properly raised on appeal." Coody, 867 S.W.2d at 663, n. 1.

      . Appellant alleges that the trial court's exclusion of this evidence violates his rights under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. 10 and Sec. 18(a), and Art. Ill, Sec. 40 of the Missouri Constitution. "However, we do not reach defendant’s allegations of constitutional infirmity for, as noted above, the proffered testimony was inadmissible because of its facial irrelevance. We are therefore able to dispose of the contention on grounds other than the constitutional challenge.” Harris, 620 S.W.2d at 358, n. 3.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KCD, INC. a Missouri Corporation d/b/a, Custom Concepts Design and Build, Appellant/Cross-Respondent, v. Vincent and Heather STENDERA et al., Respondents/Cross-Appellants.
    Nos. ED 75478, ED 75575.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2000.
    Rehearing Denied April 6, 2000.
    Stephen B. Evans, St. Louis, for appellant.

      Steven G. Schumaier, Robert G. Pennell, St. Louis, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ
   ORDER

PER CURIAM.

KCD, Inc., d/b/a Custom Concepts appeals the judgment of the trial court in favor of Vincent and Heather Stendera in this dispute over a contract to build a shell house. The Stenderas have also filed a cross-appeal. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b)(1). The Stendera’s motion for attorney’s fees for frivolous appeal is denied.


author: PHILLIP R. GARRISON, Chief Judge.

text:
    Jess RUSH, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 22809.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 28, 2000.
    Motion for Rehearing or Transfer Denied March 21, 2000.

      Lisa M. Stroup, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
   PHILLIP R. GARRISON, Chief Judge.

Jess Rush (“Movant”) was charged by felony information with murder in the first degree, Section 565.020.1, and kidnapping, Section 565.110. A jury found Movant guilty on both counts, and he was sentenced to life without the possibility of parole for the offense of murder in the first degree, and fifteen years in prison for the offense of kidnapping. Both convictions were affirmed on appeal. State v. Rush, 949 S.W.2d 251 (Mo.App. S.D.1997). Movant, thereafter, pursuant to Rule 29.15 filed a motion for post-conviction relief, which was later amended. Following an evidentiary hearing, the motion court denied relief. Movant appeals.

Movant raises two points of error on appeal. In his first point, he alleges that trial counsel was ineffective in failing to investigate and introduce at trial evidence surrounding the dismissal of a pending felony charge against State’s witness, Edward Thomas (“Thomas”), for failure to return rental property. In his second point, Movant asserts that trial counsel was ineffective in failing to investigate Thomas’ criminal convictions and use such convictions to impeach his testimony.

Our review of the motion court’s denial of post-conviction relief is not a de novo review; rather, the findings of the motion court are presumptively correct. See Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Leisure v. State, 828 S.W.2d 872, 873-74 (Mo. banc 1992), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). The findings and conclusions of the motion court are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. State v. Vinson, 800 S.W.2d 444, 448 (Mo. banc 1990); George v. State, 973 S.W.2d 114, 115 (Mo.App. S.D.1998).

To prevail on a claim of ineffective assistance of counsel, a movant must show that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Kelley, 953 S.W.2d 73, 91 (Mo.App. S.D.1997), cert. denied, 522 U.S. 1151, 118 S.Ct. 1173, 140 L.Ed.2d 182 (1998). Prejudice is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Trial counsel is afforded wide latitude in preparing for and conducting a defense. State v. Neal, 849 S.W.2d 250, 258 (Mo.App. W.D.1993). In order to show ineffective assistance of counsel based on the failure to adequately prepare for trial, a movant must allege that trial counsel failed to discover specific information before trial; that the information would have been discovered by reasonable investigation; and that the undiscovered information would have provided movant with a viable defense. State v. Colbert, 949 S.W.2d 932, 943 (Mo.App. W.D.1997).

In the instant case, Movant first alleges that trial counsel was ineffective in failing to investigate and introduce evidence at trial concerning the circumstances surrounding the dismissal of a pending felony charge for failure to return rental property. Movant contends that the charge against Thomas was dismissed in order to allow him to assist law enforcement personnel in procuring incriminating evidence from Movant concerning the murder and kidnapping. Movant argues that he was prejudiced in that, as a result of trial counsel’s lack of investigation, the jury was not informed that Thomas “had a reason to fabricate his testimony in order to avoid a conviction and/or incarceration on the charge of failing to return rental property.”

As to this point, the motion court concluded, after an evidentiary hearing, that trial counsel was not ineffective in failing to introduce into evidence the circumstances surrounding the dismissal of the charge against Thomas for failure to return rental property. It further found that the evidence indicated that the dismissal of Thomas’ charge was not related to any deal between the State and Thomas.

The motion court’s finding is not clearly erroneous. Movant has failed to demonstrate how he was prejudiced by trial counsel’s failure to introduce evidence of the circumstances surrounding the dismissed charge. Movant contends that such evidence would have provided additional material for impeachment, but does not allege that further investigation and questioning by counsel would have provided him with a viable defense. “It is not enough that some misstep of counsel had some conceivable effect on the outcome of the case. The particular failure must be so significant as to demonstrate a reasonable probability that but for counsel’s unprofessional errors, the result would have been different.” State v. Gray, 887 S.W.2d 369, 381 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995).

In this case, the evidence showed that Movant revealed to several other witnesses, including a former neighbor, a former girlfriend, and at least two fellow inmates, that he was involved in the murder and kidnapping. Movant also admitted to the police that he was present during the commission of the crime. The jury also had before it thirteen letters, handwritten to Thomas, in which Movant told of his involvement in the crime. Consequently, had counsel been successful in impeaching the testimony of Thomas, there is no indication that the result would have been different and Movant fails to allege otherwise. This point is therefore denied.

In his second point, Movant contends that trial counsel was ineffective in failing to thoroughly investigate Thomas’ prior criminal convictions. Movant alleges that during the State’s direct examination Thomas was not “entirely candid about his criminal record,” and therefore trial counsel, during cross-examination, should have explored Thomas’ history of criminal convictions in order to impeach his credibility. Movant contends that he was prejudiced as a result of trial counsel’s actions in that “the jury did not realize the extent of [Thomas’] criminal history, and so did not realize they did not have to believe [Thomas’] testimony.”

The motion court denied this point finding that Movant “had failed to prove any prejudice to the Movant or that the results of the trial would have been any different.” The motion court’s finding is not clearly erroneous. A trial counsel’s mere failure to impeach a witness does not entitle a movant to post-conviction relief. State v. Phillips, 940 S.W.2d 512, 524 (Mo. banc 1997). Movant has the burden to show how impeachment would have provided him with a defense or changed the outcome of the trial. Id.

Here, Movant fails to prove that trial counsel deprived him of a viable defense. During direct examination, Thomas acknowledged that he had convictions for crimes such as burglary, receiving stolen property and bad checks. He also revealed that he had been in and out of prison for sixteen years, since he was twenty years old, and was known as the “old dog” because of the amount of time he had been incarcerated. The jury was also aware that Movant and Thomas first became acquainted while both were incarcerated. Although the jury was not fully informed as to the extent of Thomas’ convictions, they were aware that he was a convicted felon, and Movant does not show how cross-examining Thomas further about his criminal history would have provided him with a viable defense. Movant’s second point is therefore denied.

The judgment of the motion court is affirmed.

MONTGOMERY, P.J., and BARNEY, J., concur.

      . All statutory references are to RSMo 1994, and all rule references are to Missouri Rules of Criminal Procedure (1999), unless otherwise indicated.

      . Movant admits that trial counsel cross-examined Thomas about the dismissed charge, asking him whether or not he had been promised anything in return for his testimony. However, Movant contends that trial counsel should have investigated and introduced further evidence of the facts surrounding the dismissal of the pending charge. These facts included evidence that Thomas feared he would not receive parole as long as the charge of failing to return rental property was pending and that Thomas had written several letters to a deputy sheriff requesting that the detainer placed against him because of the pending charge be dropped.

      . In reference to a deal between the State and Thomas, the motion court remarked: "[a]s to [Thomas'] testimony, the Movant asks this Court to find that Thomas, the Prosecuting Attorney and the [Law Enforcement] Officers were lying when they stated there was no agreement with Thomas to obtain this information from [Movant]. The Court denies the point.”

      . At the time Thomas testified at Movant's trial, he had been convicted of two counts of burglary in the second degree, two counts of burglary in the first degree, two counts of escape, one count of uttering, one count of forgery, two counts of stealing over $150.00, and one count of negotiating a bad check.


author: PER CURIAM,

text:
    MIDWEST ARBITRATION AND MEDIATION, INC., Plaintiff-Appellant, v. James CONDRY, Defendant-Respondent.
    No. 22496.
    Missouri Court of Appeals, Southern District, Division Two.
    March 28, 2000.
    Motion for Rehearing or Transfer Denied April 19, 2000.
    Application for Transfer Denied May 30, 2000.

      Richard L. Routman, Kansas City, for appellant.
    Mathew W. Placzek, Placzek, Francis & Overby, Springfield, for respondent.
    Before MONTGOMERY, P.J., GARRISON, C.J., and BARNEY, J.
   PER CURIAM,

Midwest Arbitration and Mediation, Inc. (“Midwest”) appeals from a judgment denying its motion to compel arbitration between itself and James Condry (“Condry”) pursuant to a provision in a contractual agreement. We dismiss the appeal for failure to comply, with Rule 84.04.

Midwest framed its points relied on as follows:

The trial court erred in concluding that the contract between the parties did not contain an agreement to arbitrate.
The trial court erred in failing to compel arbitration in the face of a contract that plainly and unambiguously requires any unresolved dispute between the parties to be submitted to binding arbitration. The trial court erred in denying the motion to compel arbitration because federal and Missouri law [sic] provide that where the parties provide in their agreement for a method appointing arbitrators, that method shall be followed.

Condry asserts that each of these points violates the wherein and why requirements of Rule 84.04(d) and that such a violation warrants dismissal of the appeal. We agree.

The version of Rule 84.04(d) that was in effect at the time Midwest filed its brief provided that a point relied on in an appellant’s brief shall “(A) identify the trial court ruling or action the appellant challenges; (B) state concisely the legal reasons for appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” The requirements of Rule 84.04(d) were interpreted in Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978), in which the court stated:

The dual requirements of Rule 84.04(d) that the point relied on state Wherein and Why the action or ruling is claimed to be erroneous are apparently the most common source of error in appellate briefing. Actually, compliance with these requirements is a matter of common sense if counsel bear in mind the informational purpose of the brief. After stating the ruling the trial court actually made, it stands to reason that the point should then specify Why the ruling was erroneous. This requirement essentially contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court’s conclusion of law on the point being addressed. After stating why the ruling was erroneous, the court then must be informed Wherein the testimony or evidence gives rise to the ruling for which appellant contends.

Each of Midwest’s points relied on fails to comply with Rule 84.04(d). Midwest states that the trial court erred in failing to compel arbitration, but does not allege why the trial court’s ruling was in error, and fails to refer to testimony or evidence presented in the case to support its contentions. It is not sufficient to merely set out what the alleged errors are without stating wherein and why the ruling is erroneous. See Murphy v. Aetna Cas. & Sur. Co., 955 S.W.2d 949, 950 (Mo.App. S.D.1997).

Insufficient points relied on preserve nothing for appellate review and constitute grounds for dismissal. Skalecki v. Small, 976 S.W.2d 566, 568 (Mo.App. S.D.1998). Deficient points relied on force the appellate court to search the argument portion of the brief or record itself to determine an appellant’s assertions, thereby wasting judicial resources, and, worse yet, creating the danger that the appellate court will interpret the appellant’s contention differently than appellant intended or his opponent understood. Myrick v. Eastern Broad., Inc., 970 S.W.2d 885, 886 (Mo.App. S.D.1998); see also Thummel, 570 S.W.2d at 686. If we attempt to interpret Midwest’s points as stated, this court will be forced to act as an advocate for Midwest, which we cannot do. Midwest’s appeal must, therefore, be dismissed.

We decline plain error review in this case. Plain error review, which is discretionary under Rule 84.13(c), is generally not appropriate where an appellant fails to identify wherein and why the trial court erred. Marks v. Hopkins, 952 S.W.2d 747, 748 (Mo.App. S.D.1997). Furthermore, Midwest, in its reply brief, did not respond to Condry’s contention that its points relied on were deficient, and failed to request plain error review.

Because of violations of Rule 84.04(d), this appeal is dismissed.

      . All rule references are to Missouri Rules of Civil Procedure (1999), unless otherwise indicated.


author: LAWRENCE E. MOONEY, Judge.

text:
    STATE of Missouri, Respondent, v. James CARTWRIGHT, Defendant-Appellant.
    No. ED 76042.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.

      Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Catherine Chatman, Asst. Atty. Gen., Jefferson City, for respondent.
   LAWRENCE E. MOONEY, Judge.

James Cartwright (“Defendant”) appeals the judgment entered on his conviction of aggravated stalking in violation of Section 565.225 RSMo. (1994) . On appeal, Defendant claims that the trial court erred in (1) overruling his motions for judgment of acquittal and in sentencing him on his aggravated stalking conviction because there was insufficient evidence to prove his guilt beyond a reasonable doubt in that the State did not prove that Defendant made a credible threat against the life of, or a credible threat to cause physical injury to, his wife, Laura Cartwright (“Victim”), or that Defendant intended to cause Victim to reasonably fear for her safety; and (2) overruling Defendant’s motion for continuance, after the court allowed appointed counsel to withdraw and private counsel to enter her appearance just nine days before trial causing prejudice to Defendant because the State had just recently disclosed police reports and cassette tapes and private counsel had not been given adequate time to investigate, prepare, subpoena witnesses, or make considered and reasoned trial decisions. We affirm.

FACTS

Viewed in light most favorable to the verdict, the facts adduced at trial are as follows: Defendant and Victim were married for seven years. The couple began having marital problems in August 1997 after Defendant accused Victim of having sexual relations with friends and co-workers. Defendant began to repeatedly waken Victim in the middle of the night accusing her of extramarital affairs and demanding that she confess. One night in August, Defendant told Victim that he was sick of the affairs and that he was “going to break [her] neck and...throw [her] down the basement stairs.”

Defendant’s accusations and threats were followed by apologies that somewhat settled Victim’s fears. The accusations did not cease, however. One weekend, Victim’s friend, Monica, was staying with the couple. Defendant told Victim he knew that Victim and Monica were sleeping together. He then said, “I’m going to sleep with both you and Monica...this has been my fantasy and you owe it to me.” The two argued about the issue the next day, and Defendant repeatedly accused Victim of the affairs. Defendant then got a can of black spray paint and painted “fag” in letters three feet tall on the side of Victim’s van. Victim fled to her parents’ house with her children and called the police. The next day, she obtained an ex •parte order of protection. By the terms of the order, Defendant could not harass Victim nor enter their home.

Defendant began parking across the street from Victim’s house at night and sleeping in his truck. Defendant violated the terms of the order for the first time when he entered the house and stole jewelry while Victim was gone. The following day, Defendant was arrested for both violating the protective order and for felony stealing after he took a cellular phone out of Victim’s van while it was parked in Victim’s driveway. Defendant later made false reports about Victim to the Division of Family Services and to her manager at work, telling him that she was selling company secrets.

Victim filed for divorce on August 25, 1997. Appellant then inundated Victim with apologies, gifts, and excuses for his behavior blaming it on medication that he had been taking. However, the accusations began again after Victim had Debbie, a friend, stay with her for a weekend in September. Defendant, who was still sleeping in his truck across the street, called Victim and accused her of having an affair and said that he had videotaped her having sex with Debbie. Victim phoned the police again after Defendant entered the property in violation of the protection order. He left before the police arrived.

On another occasion, Defendant persuaded Victim to allow him to take a shower in the house. Victim waited with their son outside. The next day, Victim found three listening devices in the kitchen, her bedroom, and the spare bedroom. Victim obtained a full order of protection. Private investigators later found another recording device in the garage that was wired into the phone line and a tape of Victim’s telephone conversations.

Later, Defendant’s attorney arranged for Defendant to collect his things from the house. Victim left the house after Defendant did not arrive at the scheduled time. She returned home to find Defendant standing in the garage. Defendant said that the judge had told him he could get anything that he wanted out of the house and started ranting about Victim stealing his recorder that he had been using to tape her conversations. Victim called the police again, and Defendant fled before they arrived. Victim and her family discovered more recording devices after this incident.

In October and November, Defendant changed his strategy. He began following Victim to work, calling her on her cellular phone, and stopping his car in the middle of the road outside her workplace and repeatedly screaming “I love you!” Defendant -also moved into an. apartment building adjacent to Victim’s house so that he could, “...go outside and scream [’] love you, Laura[’]...”

According to court order, Victim and Defendant exchanged custody of their son at Victim’s mother’s residence. Defendant requested that Victim bring his guns to the next exchange. "When Victim refused, Defendant said, “I can go in the City and get a gun for a hundred dollars.” At another exchange, Defendant told Victim that when the divorce was final he would destroy everyone that had anything to do with the divorce and then kill himself. Victim later made a police report of the incident and arranged for officers to be present the next time she had to pick up her son from visitation. At the next visitation, Defendant walked up to Victim’s car- before the police arrived and pressed a piece of paper against her window that read, “I am the ax murderer. If you fuck with me one more time, I will kill you.” The police arrived and told Victim to leave. Victim reported the incident to the police as soon as she arrived home.

Victim found Defendant in her basement the night after Christmas. She screamed, locked the door to the basement, ran out into the street with her phone and called the police. Defendant fled before the police arrived. Defendant had been in the house all night listening to Victim through a furnace vent. Later, Victim found one of her nightgowns in the basement. It had been shredded with a knife or razor. Police arrested Defendant shortly thereafter.

At trial, Defendant presented no evidence; and the jury found Defendant guilty of aggravated stalking. Defendant was sentenced to serve five months in the St. Charles County Jail. Defendant timely filed this appeal.

ANALYSIS

I.

SUFFICIENCY OF THE EVIDENCE

In his first point on appeal, Defendant challenges the sufficiency of the evidence in support of his conviction for aggravated stalking. Specifically, Defendant argues that the State did not adduce sufficient evidence to support the jury’s finding that Defendant made a credible threat against the life of Victim or to cause physical injury to Victim or that Defendant acted with the intent to place Victim in reasonable fear of death or serious physical injury.

This Court does not act as a super juror with veto powers when reviewing the sufficiency of the evidence to support a criminal conviction. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998) cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). In fact, we owe great deference to the trier of fact. Id. We do not ask ourselves whether we believe that the evidence at trial established guilt beyond a reasonable doubt. Id. Rather, we ask whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Applying this analysis to the case at bar, we find that a rational trier of fact could have found Defendant guilty of aggravated stalking beyond a reasonable doubt.

“Any person who purposely and repeatedly harasses or follows with the intent of harassing or harasses another person, and makes a credible threat with the intent to place that person in reasonable fear of death or serious physical injury, commits the crime of aggravated stalking.” Section 565.225. For purposes of this statute, a “credible threat” is a threat “made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause physical injury to, a person...” Id.

In a Bill of Particulars, the State alleged three specific incidents in which Defendant made credible threats to Victim. The first incident occurred in August 1997 when Defendant threatened to throw Victim down the stairs and break her neck (“August occurrence”). Second, the state identified the December 10th confrontation in which Defendant stated that if the divorce went through, he would “destroy” everyone involved and then kill himself (“December 10th occurrence”). Finally, the State pointed to the December 14th custody exchange when Defendant showed Victim the letter reading, “I am the ax murderer. If you fuck with me one more time I will kill you,” (“December 14th occurrence”).

Regarding the December 14th and August occurrences, Defendant argues that his actions did not cause Victim to reasonably fear for her safety as evidenced by the fact that she either did not call the police immediately or at all. Defendant also argues that the December 10th occurrence does not rise to the level of a credible threat because the word “destroy” is too nebulous to satisfy the requirement that there be a credible threat against the life or safety of Victim. We disagree.

Whether Defendant had the requisite intent to cause Victim to reasonably fear for her safety does not depend upon Victim’s later actions as Defendant argues. A reasonable juror could find that any of the three occurrences constituted a threat made with the intent to place Victim in .reasonable fear for her safety. All of the communications involved words like “kill” and “destroy” that are frequently associated with severe physical harm. Likewise, a reasonable juror could have found that Victim was reasonably fearful for her safety. Victim repeatedly testified that she was “afraid he was going to kill me,” “scared,” that she believed what he told her, that she had trouble sleeping and eating, that she had nightmares, and that everyday she woke up wondering if it would be the day that Defendant killed her.

Thus, viewing the facts most favorably to the prosecution, we find that a reasonable juror could have found Defendant guilty of making credible threats against the life or safety of Victim. Defendant’s first point is denied.

II.

CONTINUANCE

In his second point on appeal, Defendant claims the trial court abused its discretion in overruling Defendant’s motion for continuance after the court allowed appointed counsel to withdraw nine days before trial. Defendant claims that the denial of the continuance prejudiced him because private counsel Glass was not given adequate time to investigate, prepare, subpoena witnesses, or make considered and reasoned trial decisions. Additionally, Defendant claims that Glass did not have adequate time to review newly disclosed police reports and cassette tapes. We disagree.

The only claim of prejudice preserved for appeal involves the lack of time to review the newly disclosed police reports and cassette tapes. Defendant did not raise the issue of his counsel’s time to investigate, prepare, subpoena witnesses, or make considered and reasoned trial decisions in either his written motion for continuance or in his motion for a new trial. Allegations of error cannot be broadened or changed on appeal. State v. Pospeshil, 674 S.W.2d 628, 632 (Mo.App. S.D.1984). Accordingly, these latter claims of error are only subject to plain error review.

The preserved claim of error arises out of the trial court’s failure to grant a continuance after an alleged discovery violation by the State. Defendant claims that his counsel was given inadequate time to review certain police reports and cassette tapes that the State produced on the morning of trial. In order to remedy such a violation, the trial court “may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just and proper.” Rule 25.16. When the State fails to make timely disclosure, the remedy is left to the sound discretion of the trial court. State v. Kinder, 942 S.W.2d 318, 322 (Mo. banc 1991). We will intervene only where a defendant demonstrates that the State’s failure to timely disclose results in fundamental unfairness. Id. Defendant fails to meet this standard.

Here, the trial court allowed Defendant to review the evidence over a recess prior to the prosecution’s case. A recess is a valid remedy for a discovery violation. State v. Carlisle, 995 S.W.2d 518, 521 (Mo.App. E.D.1999). Not only was Defendant given adequate time to review the information, Defendant also had previous notice of the information since both the police reports and tapes were referred to in Victim’s pretrial deposition. Accordingly, we find that the trial court did not abuse its discretion in refusing to grant a continuance in order to remedy an alleged discovery violation.

Turning to the unpreserved claims, Defendant must show that the trial court’s failure to grant the continuance for reasons not then argued before the court not only resulted in prejudicial error, but that the error affected his rights so substantially that manifest injustice or a miscarriage of justice resulted. State v. Davis, 825 S.W.2d 948, 952 (Mo.App. E.D.1992). No manifest injustice has occurred here.

Defendant suffers only from his own actions, not the court’s. Defendant created the situation of which he complains by changing attorneys nine days before trial. The trial court is not required to grant a continuance when the Defendant voluntarily obtains private counsel on the eve of trial, nor is the court obligated to force appointed counsel to assist the new counsel. State v. Crider, 451 S.W.2d 825, 827 (Mo.1970). Accordingly, the trial court did not plainly err.

Finding no merit in any of Defendant’s claims of error, the judgment of the trial court is affirmed.

RICHARD B. TEITELMAN, P.J., and CLIFFORD H. AHRENS, J., concur.

      . All future statutory citations are to RSMo. (1994) unless otherwise indicated.


author: ROBERT G. ULRICH, Judge.

text:
    Perry Jay MACE, Appellant, v. Evelyn Marie (Mace) DAYE, Respondent.
    No. WD 56571.
    Missouri Court of Appeals, Western District.
    April 25, 2000.

      Perry Jay Mace, acting pro se.
    T. Jeremiah Smith, St. Louis, for respondent.
    Before SPINDEN, P.J., LOWENSTEIN, J. and ULRICH, J.
   ROBERT G. ULRICH, Judge.

Perry Mace appeals from the circuit court’s denial of his motion for re-hearing on the family court commissioner’s order refusing to allow Mr. Mace to transfer the parties two minor children to another school district. He also appeals from the judgment of the circuit court modifying its decree of dissolution by ordering a change of primary physical custody of the two minor children from Mr. Mace to their mother, Evelyn Daye, and denying his motion for sole custody of the children. The appeal is dismissed.

Mr. Mace appeals pro se. Pro se appellants are bound by the same rules of procedure as appellants represented by licensed attorneys and are not entitled to preferential treatment regarding compliance with procedural rules such as Rule 84.04. Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App. E.D.1999). Violations of the rules of appellate procedure, and specifically Rule 84.04, constitute grounds for a court to dismiss an appeal. Id.

Rule 84.04 sets forth the requirements for filing briefs with appellate courts. Estate of Dean v. Morris, 963 S.W.2d 461, 466 (Mo.App. W.D.1998). It requires “[wjhere the appellate court reviews the decision of a trial court, each point shall: (A) identify the trial court ruling or action that the appellant chai-lenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Id.; Rule 84.04(d)(1). “Abstract statements of law, standing alone, do not comply with this rule.” Rule 84.04(d)(4). The purpose of the briefing requirements regarding points relied on is to give “notice to the party opponent of the precise matters, which must be contended with and answered” and “to inform the court of the issues presented for resolution.” Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). If the appellate court must search the argument portion of the brief or the record on appeal to determine or clarify the nature of the asserted claims, the court may interpret the claims differently than the opponent or differently than was intended by the party asserting the claim. Id. The function of the appellate court is to examine asserted trial court error, not to serve as advocate for any party to an appeal. Id. Where a brief fails to comply -with the applicable rules and does not sufficiently advise the court of the contentions asserted and the merit thereof, “the court is left with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency.” Id. Courts should not be asked or expected to assume such a role. Id. In addition to being inherently unfair to the other party on appeal, it is unfair to parties in other cases awaiting disposition because it takes from them appellate time and resources which should be devoted to expeditious resolution of their appeals. Thummel, 570 S.W.2d at 686.

Mr. Mace presents three points relied on in his brief:

Point I: The trial court erred in denying the appellant a re-hearing on September 5, 1997, under Rule 74.06 Mo.R.Civ.P, because the judgment ordering the children to remain at the same school was obtained by fraud and legal malpractice in that on September 3, 1997, Respondent’s attorney intentionally and deliberately gave false material testimony and that also Appellant’s attorney on August 13, 1997, intentionally and deliberately violated Supreme Court Rule 4, in regards to the rules of professional conduct by deliberately withholding relevant material facts as consented to be given.
Point II: The trial court erred for failing to recognize, and or by abusing its discretion, and or because of corruption, that under Mo. state statutes 452.375, and 452.410, that the weight of evidence in the trial did not support a change of custody and that the decision rendered was obtained and or made by fraud and is not in the best interest of the children.
Point III: The trial court erred by abusing its discretion, and or because of corruption in that it ignored the weight of evidence in the trial and failed to apply Mo. state statutes 452.375 and 452.410, and or give the appellant due process so that the best interest of the children was served.

Each of Mr. Mace’s points relied on sets out only abstract conclusions and statements of law without showing how they relate to any action or ruling by the court. The points relied on also fail to state the wherein and why the trial court’s ruling is claimed to be erroneous. Additionally, the points II and III fail to identify the trial court ruling or action being challenged.

Where a party fails to comply with Rule 84.04, they present nothing for appellate review. Nell v. Fern-Thatcher Co., 952 S.W.2d 749, 755 (Mo.App. W.D.1997). Despite the procedural defects, this court may consider such points on appeal, ex gratia, where appropriate to prevent manifest injustice. Id. In the instant case, such review would require this court to search the record for possible errors and then research those errors revealed. Id. That is the duty of the parties, not the function of an appellate court. Id.

The appeal is dismissed.

SPINDEN, P.J., and LOWENSTEIN, J., concur.

      . . Ms. Daye's motion for damages for frivolous appeal is denied.


author: KENT E. KAROHL, Judge.

text:
    STATE of Missouri, Respondent, v. Antoine HILL, Appellant.
    No. ED 74953.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 25, 2000.

      Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for respondent.
   KENT E. KAROHL, Judge.

The state charged defendant with murder in the first degree and armed criminal action. The jury found defendant guilty of the included offense of voluntary manslaughter and armed criminal action. Defendant appeals consecutive sentences totaling seventeen years.

Defendant testified he was the victim of an unprovoked assault by Kendrick Holmes in the bathroom of the Cut Above Lounge. Holmes was much larger than defendant and severely intoxicated. Defendant secured a .38 caliber revolver from his pocket and shot Holmes in the left temple. There was an eyewitness. Defendant stepped over the body, left the lounge and went to the parking lot. A security guard stopped defendant and another individual in the parking lot where they were pushing a truck. The security guard summoned the police. The revolver was never found.

Defendant also testified he initially told the police he had not shot Holmes. In addition to his oral statement, he gave a signed written statement and a video taped statement. The court permitted the state to show the video for the jury during cross-examination of defendant.

Defendant’s three unpreserved errors are not plain errors. First, the state’s cross-examination regarding defendant’s prior convictions was invited by his denial of prior convictions on direct examination. Second, rejecting defendant’s proposed question to a medical examiner about the effect of Holmes’ intoxication on defendant, to support his theory of self-defense, did not deprive defendant of the defense where the undisputed evidence was Holmes was very intoxicated. Finally, the state’s reference to “reasonable doubt” in voir dire was not error, plain or otherwise. The reference exactly tracked MAI-CR 3 rd 100.02. These points are denied.

Defendant argues the trial court erred in refusing to submit one of two verdict directing instructions which he tendered to submit the included offense of involuntary manslaughter. He contends his statements on the video would support a finding that he recklessly caused the death of Holmes. We do not have the video. However, the prosecutor asked, “in your video taped statement you said you didn’t mean for it to happen?” He answered, “Yes, sir.” During his live testimony defendant described the assault, which included an oral threat by Holmes, and movement of Holmes’ hand which defendant concluded was an attempted robbery with a weapon. Defendant used his gun believing it was necessary to protect himself.

Involuntary manslaughter is a lesser-included offense of first degree murder. Section 565.025. A court must instruct on a lesser-included offense only if the evidence established a basis for acquittal of the greater offense and conviction of the lesser-included offense. Section 556.046.2 RSMo 1994; State v. Coleman, 949 S.W.2d 137, 142 (Mo.App. W.D.1997). A defendant is entitled to a requested instruction which is supported by the evidence and any inferences which logically flow from the evidence. State v. Hopson, 891 S.W.2d 851, 853 (Mo.App. E.D.1995). The court should submit a requested instruction, “if the evidence arguably shows lack of an essential element of the higher offense which would not only authorize acquittal of the higher, but sustain conviction of the lesser.” State v. Isreal, 872 S.W.2d 647, 649 (Mo.App. E.D.1994).

In deciding on how to instruct a jury, a trial court must “resolve all doubts regarding the evidence in favor of instructing on the lower offense.” State v. Yacub, 976 S.W.2d 452, 453 (Mo.1998). Upon review, we view the evidence in the light most favorable to the defendant. State v. Cole, 377 S.W.2d 306, 307 (Mo.1964).

We originally rejected defendant’s argument and affirmed the conviction and sentence. The Supreme Court ordered a transfer of this case. Thereafter, it decided State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000) and retransferred this appeal. The State concedes “that Beeler requires the reversal and remand for new trial.”

Accordingly, we reverse and remand for a new trial.

WILLIAM H. CRANDALL, Jr., P.J. and MARY K. HOFF, J. concur.


author: PAUL J. SIMON, Judge.

text:
    Carolyn ESKEW, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 76144.
    Missouri Court of Appeals, Eastern District, Division One.
    April 25, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
    Timothy F. Devereux, Clayton, for respondent.
   PAUL J. SIMON, Judge.

The Director of Revenue (Director) appeals from the judgment of the Circuit Court of St. Louis County setting aside the revocation of Carolyn Eskew’s driving privileges under Section 577.041 RSMo 1994 (all further references herein shall be to RSMo 1994 unless otherwise indicated) for refusing a chemical test.

On appeal, Director contends that the trial court erred in setting aside the revocation of Eskew’s driving privilege under Section 577.041 because the director proved a prima facie case showing that: (1) Eskew was arrested; (2) the arresting officer had reasonable grounds to believe Eskew was driving while intoxicated; and (3) Eskew refused to submit to a breathalyzer test. We reverse and remand.

In review of judge-tried cases, we will affirm the trial court’s judgment if it is supported by substantial evidence, is not against the weight of the evidence and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

The record on appeal consists primarily of the Alcohol Influence Report and the Investigative Report, both written by Officer Andert of the Police Department of the City of Kirkwood. The Investigative report reveals that on March 20, 1997, at about 11:41 p.m., Officer Andert received a radio call to respond to a traffic accident. Officer Tabers arrived at the accident scene while Officer Andert was en route and advised over the radio that the accident involved an intoxicated driver.

When Officer Andert arrived at the scene, he observed that “the entire intersection of the northbound lanes and the exit ramp was blocked by wrecked vehicles.” He also noted that “Officer Tabers had already placed a female subject in handcuffs and had her seated in the rear of Officer Tabers’ vehicle.” Later at the police station, after producing identification the subject was identified as Eskew. Officer Andert noted that “when Officer Tabers first arrived at the scene, Ms. Es-kew was still seated in her vehicle with the keys in the ignition and the motor running. When Officer Tabers approached her, she said that she did not know why these people were parked in front of her and asked why they weren’t moving.

On speaking with other drivers involved in the accident, Officer Andert noted that the “intoxicated subject” had been traveling westbound exiting Highway 44 at S. Kirkwood Road and had apparently violated the red traffic signal, drove into the intersection and collided with two vehicles. She then apparently attempted to back up and leave the scene, but backed up into a pickup truck.

Thereafter, Officer Andert made contact with Eskew, observed a heavy odor of alcoholic beverages on her breath and noted that her eyes were watery and her pupils were dilated. After Officer Andert removed her from Officer Tabers’ car to place her in his own car, he noticed that she was walking unsteadily and wobbling. She was transported to the police station, where she was advised by Officer Andert that she was under arrest for Driving While Intoxicated.

Eskew was asked to complete sobriety tests, including the alphabet test, the walk- and-turn test and one leg stand test, which she refused. She was then advised of her rights under Missouri’s Implied Consent Law as well as her Miranda Rights, which she indicated that she understood. She was asked to take a breathalyzer test and she refused.

Officer Andert completed the Alcohol Influence Report and asked Eskew to respond to the questions, which she did. She answered that she had not eaten anything since lunch at 11:30 a.m. and that she had been drinking. She stated that she had began drinking red wine at the Ritz Carlton Hotel at approximately 7:30 p.m. and ending at 10:00 p.m. She indicated that she had consumed three glasses of red wine. She also stated that she had not been involved in an accident. The Alcohol Influence Report also indicated that Es-kew had refused to submit to the breathalyzer test. Officer Andert gave her notice that her Missouri driver’s license was revoked pursuant to Section 577.041 for refusing to submit to a chemical test and took possession of her license.

Eskew filed a petition for review in the Circuit Court of St. Louis County of the revocation of her driving privilege. The Director presented certified records of the Department of Revenue, including Officer Andert’s Investigative Report and Alcohol Influence Report, in lieu of live testimony. Officer Tabers’ reports, if any, were not submitted. Eskew did not present evidence. After receiving the certified records into evidence, the trial court granted the parties time to file a memorandum of law in support of their positions at trial. Eskew filed a memorandum, but Director did not. The trial court granted Eskew’s petition to set aside the revocation, finding that Director failed to prove that the arresting officer had probable cause to arrest Eskew.

On appeal, Director contends that the trial court erred in setting aside the revocation, because the director established that: (1) Eskew was arrested, (2) that the arresting officer had reasonable grounds to believe that Eskew was driving while intoxicated and thus reasonable grounds to arrest her; (3) that Eskew refused to submit a breathalyzer test.

Initially, we consider Eskew’s motion to strike Director’s reply brief, filed on March 27, 2000 just two days before oral arguments were heard on the case, contending that the reply brief was untimely. Rule 84.05 provides that appellant may, within fifteen days after receipt of respondent’s brief, file a reply brief, but that we may, by order in specific cases, lengthen the periods prescribed above for serving and filing briefs. We granted Director’s motion to file its reply brief out of time, therefore the motion to strike is denied.

Next we consider whether the trial court erred in setting aside the revocation. Section 577.041 provides that if a person under arrest for driving while intoxicated refuses to submit to a chemical test, the officer shall, on behalf of the director of revenue, serve the notice of license revocation personally upon the arrestee and take possession of her Missouri drivers license.

Here, the Investigative report and Alcohol Influence report clearly indicate that Eskew was arrested and that she refused to submit to the breathalyzer test. The only issue to resolve was whether Officer Andert, the arresting officer, had probable cause to arrest Eskew for driving while intoxicated.

Probable cause to arrest exists when the facts and circumstances would warrant a reasonably prudent, cautious and trained police officer to believe that an offense has been committed. McCabe v. Director of Revenue, 7 S.W.3d 12, 14 (Mo.App.E.D.1999). It is not necessary for an officer to actually observe a person driving to have probable cause to arrest the person for driving while intoxicated, but rather it may be determined by the collective knowledge and facts available to all of the officers participating in the arrest. Id. A police officer is entitled to rely on official information provided by another officer when determining if there is probable cause to arrest. Id. Further, while such evidence may be hearsay, it is sufficient to establish probable cause because it is not offered for its truth, but to explain the basis for a belief that probable cause to arrest existed. Id.

Here, Officer Andert received notice that the accident involved an intoxicated driver. When he arrived at the scene, he noted that a subject, Eskew, was already placed in the back of Officer Tabers’ patrol car. Further, he noted that when Officer Tabers arrived at the scene, Eskew was still seated in her vehicle with the keys in the ignition and the motor running. Additionally, Officer Andert interviewed other drivers involved, who stated that an intoxicated driver had caused the accident. All of the above information, would warrant a reasonably a prudent, cautious and trained police officer to believe that Eskew had been driving a motor vehicle at the time of the accident.

Further, when Officer Andert approached her he smelled a heavy odor, which he recognized as alcohol. She was swaying and wobbling. Finally, she admitted to drinking wine at the Ritz Carlton. Such evidence, collectively, supports a belief that Eskew had been drinking. Thus, the totality of the circumstances, known to Officer Andert by his own observations and those conveyed to him by Officer Ta-bers and other persons, would warrant a reasonably prudent, cautious and trained police officer to believe that Eskew was driving while intoxicated and constitute probable cause for her arrest. Thus the judgment must be reversed and remanded for further proceedings in accordance with this opinion.

JUDGMENT REVERSED AND REMANDED.

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