author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James W. DILLARD, Defendant-Appellant.
    No. 26008.
    Missouri Court of Appeals, Southern District, Division Two.
    March 22, 2005.

      Irene Earns, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

James Dillard (“Defendant”) was charged by information with two counts of committing the class C felony of possession of a controlled substance (methamphetamine and more than 35 grams of marijuana) in violation of § 195.202. The information was later amended to allege that Defendant was a prior and persistent drug offender and that these offenses could be treated as class A felonies for purposes of sentencing. See § 195.275; § 195.285. After a bench trial, Defendant was convicted on both counts and sentenced to concurrent terms of 25 years in prison.

Defendant’s appeal presents three points for decision. He contends the trial court erred by: (1) denying Defendant’s motion to suppress and admitting drugs, paraphernalia and his inculpatory statements obtained as the result of an unconstitutional search and seizure; (2) denying Defendant his constitutional right to a jury trial; and (3) imposing sentences so grossly disproportionate to the offenses he committed that they violate the federal and state constitutional proscriptions against cruel and unusual punishment found in the Eighth Amendment and art. I, § 21. We affirm.

Facts and Procedural History

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 and inferences supporting the State’s case against Defendant are summarized below.

On January 11, 2002, Deputy Raymond Koch (“Deputy Koch”) of the Wayne County, Missouri, Sheriffs Department received an anonymous telephone tip. The caller stated Defendant was driving a white van from the St. Louis area to Wayne County, and the van might contain drugs. Acting on the tip, Deputy Koch and Sergeant Jamie Garris (“Sergeant Garris”), a Wayne County drug task force officer, drove in Deputy Koch’s truck to a location on Highway 67 near the Wayne County-Madison County line. The two officers parked beside the road and began observing southbound traffic. About 20 minutes later, they were joined at this location by Missouri State Highway Patrol Corporal Michael Carson (“Corporal Carson”) and Williamsville Police Officer Kevin Henson (“Officer Henson”), who arrived together in Corporal Carson’s patrol car.

At approximately 8:00 p.m., a white van pulling a box trailer passed by the officers. This was the first white van the officers had seen since they arrived to conduct surveillance. The van appeared to be exceeding the posted speed limit of 60 miles per hour. Both police vehicles entered the southbound lanes of Highway 67 and began to follow the van. Deputy Koch paced the van and determined that it was speeding, according to the speedometer in his truck. Corporal Carson, who was behind Deputy Koch, used the radar unit in the highway patrol car to verify that the van was traveling approximately 70 miles per hour. Deputy Koch also ran a check on the trailer’s license plates and learned they had expired. He activated his emergency lights to pull the van over and also noticed the trader’s brake lights were not functioning.

Defendant, who was driving the van, pulled onto the shoulder of Highway 67 and stopped. Because it was a Friday night, traffic was heavy. Deputy Koch parked his truck in front of the van, and Corporal Carson parked his patrol car behind the van. Both Deputy Koch and Corporal Carson were familiar with Defendant from prior encounters they had with him. Deputy Koch approached the driver’s side of the van and asked Defendant for his driver’s license and proof of insurance. Defendant started looking in his checkbook and seemed to be having problems finding the items Deputy Koch asked to see. Defendant’s verbal responses also were “slow.” While Defendant fumbled through some papers, Deputy Koch looked inside the van for officer safety reasons and noticed that a cup holder on top of the vehicle’s engine compartment contained a beer bottle. By that time, Corporal Carson had approached the driver’s door of the van, holding a flashlight to illuminate the scene. Suspecting Defendant had been drinking and driving, Deputy Koch asked Defendant to get out of the van.

As Defendant exited his vehicle, Corporal Carson saw a small piece of aluminum foil fall out of the van and land on the ground at the edge of the highway. Corporal Carson recognized the tin foil as a type of drug paraphernalia commonly used to smoke methamphetamine. After the tin foil had lain there a moment, Defendant put his foot on top of it. Defendant was standing on the edge of the traveled portion of the highway, which was dangerous due to the heavy traffic volume. After Defendant twice refused to remove his foot from the foil, Corporal Carson took Defendant by the arm and moved him onto the shoulder of the road in front of the van.

Deputy Koch picked up the tin foil. It was a 2-inch by 2-inch piece of folded tin foil. On both sides of one end, there was a burnt black residue. There also was a brown substance on the outside of the foil. From prior training, experience and arrests, Deputy Koch and Corporal Carson recognized this foil packet as a type of drug paraphernalia commonly used to smoke methamphetamine. When the folded square of foil was opened, it contained what Corporal Carson believed to be methamphetamine. Deputy Garris observed that the tin foil also had a burnt residue on the inside, which was consistent with the use of methamphetamine.

Defendant was placed under arrest, handcuffed and given his Miranda warn-mg. Corporal Carson then searched Defendant and found a clear plastic baggie containing an off-white powdery substance in his right-front pants’ pocket. Deputy Koch searched the interior of the van and found an ashtray containing marijuana cigarette butts, a pair of forceps holding a burnt marijuana cigarette, a complete roll of aluminum foil under the driver’s seat, and two plastic pens with the insides removed and what appeared to be burnt methamphetamine residue on them.

Because Defendant’s van and trailer were parked in a dangerous position on the roadside, Officer Henson drove the van to a baseball field in Greenville, Missouri, so a more complete search could be conducted. Defendant was transported to the same location by Corporal Carson. During the trip, Defendant said he did not want to go back to court and offered to cooperate by providing the police with information. In response to questioning by Corporal Carson, Defendant admitted there was one-quarter pound of marijuana in a travel mug behind the driver’s seat of his van. Once Corporal Carson arrived at the baseball field, he recovered the mug from the van. Later that evening, Defendant gave a written statement to Corporal Carson at the Wayne County Sheriffs Office. In the statement, Defendant admitted buying one gram of methamphetamine and one-quarter pound of marijuana from an individual in St. Louis that day. Defendant also admitted that he had used “one line” of methamphetamine after he bought it.

Laboratory tests were conducted on the items seized from Defendant and his vehicle. The results included the following findings: (1) the aluminum foil packet that fell out of Defendant’s van contained about one-tenth of a gram of methamphetamine; (2) the plastic baggie taken from his pants’ pocket contained seven-tenths of a gram of methamphetamine; (3) the travel mug contained 104.30 grams of marijuana.

Additional facts necessary to the disposition of the case are included below as we address Defendant’s three points on appeal.

Discussion and Decision

Point I

Prior to trial, Defendant filed a motion to suppress the drugs, paraphernalia and the inculpatory statements he made to police after he was arrested. The motion alleged this evidence was seized in violation of Defendant’s Fourth Amendment rights because it was not obtained via a search warrant or the existence of circumstances authorizing a warrantless search. The trial court conducted an evidentiary hearing at which Corporal Carson and Defendant testified. The court denied the motion to suppress. During the trial, Defendant renewed his constitutional objection, which was overruled.

In Defendant’s first point, he contends these rulings were error because seizure of the foil packet was not justified as part of the traffic stop, the investigative stop to determine whether Defendant was driving while intoxicated or pursuant to the plain view doctrine. He also argues that all of the other post-arrest evidence should have been suppressed as fruits of an unlawful search. Thus, the linchpin of Defendant’s argument is that the foil packet was unconstitutionally seized.

In reviewing a trial court’s ruling on a motion to suppress, our inquiry is limited to determining whether the decision is supported by substantial evidence. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). We consider the evidence presented at the pretrial hearing, as well as any additional evidence presented at trial. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). The evidence presented on a motion to suppress is viewed in a light most favorable to the ruling. State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003). Therefore, we consider only the facts and reasonable inferences derived therefrom favorable to the ruling. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001). Evidence and inferences contrary to the trial court’s order are disregarded. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998). We defer to the trial court’s factual findings and credibility determinations, but we review questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). We will not reverse the trial court’s ruling on a motion to suppress unless the decision is clearly erroneous, leaving this court with a definite and firm impression that a mistake has been made. Williams, 97 S.W.3d at 469; State v. Birmingham, 132 S.W.3d 318, 321 (Mo.App.2004). Viewed in a light most favorable to the trial court’s order denying Defendant’s motion to suppress, we conclude the ruling is supported by substantial evidence because the foil packet was properly seized by police pursuant to the plain view doctrine.

The Fourth Amendment to the United States Constitution guarantees all citizens the right to be free from unreasonable searches and seizures. State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004). This reasonableness requirement has been interpreted to mean that a search usually must be based on probable cause and executed pursuant to a warrant. State v. Gantt, 87 S.W.3d 330, 332 (Mo. App.2002). Warrantless searches are presumptively invalid. State v. Galazin, 58 S.W.3d 500, 505 (Mo. banc 2001). Accordingly, if a search is conducted without a warrant, the search must fall within one of the recognized exceptions to the probable cause and warrant requirements in order to be valid. Gantt, 87 S.W.3d at 333.

We begin by noting that a routine traffic stop based on the violation of state traffic laws is a justifiable warrant-less seizure under the Fourth Amendment. Barks, 128 S.W.3d at 516. Since police had a reasonable suspicion that Defendant had violated state traffic laws, the initial stop was a constitutional seizure. See City of Springfield v. Hampton, 150 S.W.3d 322, 326 (Mo.App.2004) (officer’s observation of vehicle exceeding the speed limit provided reasonable suspicion that the driver had committed a traffic violation and authorized the ensuing traffic stop).

Once Deputy Koch interacted with Defendant and observed the beer bottle in the van, it was permissible to extend the traffic stop to investigate whether Defendant had been drinking and driving. See State v. Day, 87 S.W.3d 51, 54 (Mo.App. 2002) (traffic stop can extend beyond the time necessary to effect its initial purpose if specific, articulable facts create an objectively reasonable suspicion the driver is involved in criminal activity). Defendant was asked to exit his vehicle as a part of this new investigation. While doing so, the foil packet fell from the van, where it was plainly visible to Corporal Carson until Defendant placed his foot on top of it. Seizure of the foil packet without a warrant was proper because it was in plain view.

The plain view doctrine is one of the recognized exceptions to the warrant requirement imposed by the Fourth Amendment to the United States Constitution. See State v. Rutter, 93 S.W.3d 714, 724 (Mo. banc 2002); State v. Courtney, 102 S.W.3d 81, 87 (Mo.App.2003); Gantt, 87 S.W.3d at 333. This doctrine applies when: (1) the officer is lawfully located in a place from which the object can be plainly seen; (2) the officer has a lawful right of access to the object itself; and (3) the incriminating character of the object is immediately apparent to the seizing officer. State v. Miller, 894 S.W.2d 649, 656 (Mo. banc 1995); see also Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). We find that each element necessary to apply the plain view doctrine was present here.

First, Corporal Carson and Deputy Koch were lawfully located on Highway 67, a public road, carrying out their duties of enforcing state traffic laws when the foil packet fell on the ground at the edge of the traveled portion of the roadway. The foil packet was plainly visible to Corporal Carson as soon as it fell out of the van.

Second, Corporal Carson and Deputy Koch had a lawful right to view the foil packet once it fell from the van and landed on the ground. See State v. Howard, 973 S.W.2d 902, 909 (Mo.App.1998) (bag of marijuana that fell from glove compartment when it was opened by passenger was in officer’s plain view); State v. Bibb, 922 S.W.2d 798, 802 (Mo.App.1996) (where police were at the site of frequent drug transactions and observed defendant drop two off-white chunks, pick them up and throw them into the vehicle’s open window, the contraband was within plain view). “Although the law limits searches during an investigative stop, it does not demand that the police turn a blind eye to evidence discovered in plain view or by plain feel during such a stop.” State v. Courtney, 102 S.W.3d 81, 88 (Mo.App. 2003).

Third, the incriminating character of the foil packet was immediately apparent to Corporal Carson and Deputy Koch. As soon as the piece of foil fell to the ground, Corporal Carson recognized the object as a type of drug paraphernalia commonly used to smoke methamphetamine. When Deputy Koch picked up the tin foil, he observed that it was a 2-inch by 2-inch piece of folded tin foil with a burnt black residue on the exterior portion of both sides of one end. There also was a brown substance on the outside of the foil. Deputy Koch also recognized this foil packet as a type of drug paraphernalia commonly used to smoke methamphetamine. These officers’ knowledge of how methamphetamine is ingested, based on their prior training and experience, is a relevant consideration in determining whether the incriminating character of the foil packet as contraband was immediately apparent. See State v. Rushing, 935 S.W.2d 30, 33 (Mo. banc 1996).

Citing State v. Courtney, 102 S.W.3d 81, 85 (Mo.App.2003), Defendant argues that he had a reasonable expectation of privacy in the piece of foil even after it fell from the van. We disagree for two reasons.

? First, Courtney teaches that “[w]hen a defendant stores drugs in a closed, opaque container that conceals the contraband from plain view, he can demonstrate an objectively reasonable expectation of privacy.” Id. at 85. This principle has no application here because the size, shape, folding and burnt exterior of the foil packet identified it as a type of drug paraphernalia used to smoke methamphetamine. In Courtney, nothing about the outward appearance of the hollowed-out bolt that fell from the defendant’s pants betrayed the fact that methamphetamine was concealed inside the bolt. Id. at 86.

Second, we reject Defendant’s argument that he could create an objectively reasonable expectation of privacy in the foil packet by covering it with his foot once it fell to the ground. Defendant was standing in a dangerous location next to the traveled portion of a busy highway with his foot on the foil. He could not have remained there without jeopardizing the safety of himself and the officers standing beside him. When Defendant was moved to a safer location on the shoulder in front of his van, the foil packet was once again in the officers’ plain view. While Defendant may well have manifested his subjective intention to hide the foil packet from the officers, we conclude Defendant could not have had any objectively reasonable expectation of privacy under these circumstances. Therefore, Courtney is distinguishable and does not support Defendant’s argument. Point I is denied.

Point II

In Defendant’s second point, he claims the trial court committed plain error in denying his constitutional right to a jury trial. Defendant contends the record does not show with unmistakable clarity that he knowingly, intelligently and voluntarily waived this right, resulting in manifest injustice. Defendant asks us to review for plain error pursuant to Rule 30.20.

Plain error review is discretionary. See State v. Thurston, 104 S.W.3d 839, 841 (Mo.App.2003); State v. Smith, 33 S.W.3d 648, 652 (Mo.App.2000). For relief under the plain error rule to be warranted, a defendant must demonstrate “the error so substantially affected the defendant’s rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected.” State v. Deckard, 18 S.W.3d 495, 497 (Mo.App.2000).

A request for plain error review requires us to go through a two-step analysis. State v. Scurlock, 998 S.W.2d 578, 586 (Mo.App.1999). First, we determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. State v. Stanley, 124 S.W.3d 70, 77 (Mo. App.2004). We must decide “whether, on the face of the claim, plain error has, in fact, occurred.” State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001); State v. Brown, 97 S.W.3d 97, 100 (Mo.App.2002). Only if facially substantial grounds are found to exist do we then move to the second step of this analysis and determine whether a manifest injustice or miscarriage of justice has actually occurred. Stanley, 124 S.W.3d at 77. Therefore, we begin our analysis by considering whether Defendant’s assertion of plain error is facially substantial.

A criminal defendant’s right to have a jury decide the issue of guilt or innocence is guaranteed by the federal and state constitutions. U.S. Const, amend. VI and XIV; Mo. Const, art. I, § 22(a); State v. Mitchell, 145 S.W.3d 21, 23 (Mo. App.2004). This right can be waived if the waiver is voluntarily, knowingly and intelligently made. State v. Sharp, 533 S.W.2d 601, 605 (Mo. banc 1976); Mitchell, 145 S.W.3d at 23. Here, Defendant was charged with committing two felonies. Rule 27.01(b) provides that “[i]n felony cases such waiver by the defendant shall be made in open court and entered of record.” This proviso is meant to ensure that the waiver is voluntarily, knowingly and intelligently made. State v. Carter, 104 S.W.3d 413, 415 (Mo.App.2003). Such a waiver “must appear from the record with unmistakable clarity.” State v. Bibb, 702 S.W.2d 462, 466 (Mo. banc 1985); Mitchell, 145 S.W.3d at 23.

Just prior to commencement of the trial, the court held a pretrial conference with the attorneys. Defendant was present as well. During the conference, defense counsel announced that Defendant intended to waive a jury. The court reminded counsel that any waiver needed to be done in open court, on the record and in writing. Immediately after the pretrial conference was concluded, the trial judge asked for the written waiver on the record, and defense counsel provided it to the court. This document was signed by Defendant and stated that “I do give up my right to have a trial by jury” and “it is my desire to have a trial before the Court and to waive my right to a trial by jury.” (Bold emphasis in original.) Despite the foregoing statements in the written waiver, however, Defendant claims he did not knowingly, intelligently and voluntarily waive his right to a jury trial, based on certain statements he made on the record when the written waiver was provided to the court.

As we noted earlier in our opinion, Corporal Carson was the only police officer who testified at the hearing on the motion to suppress, and the trial court denied the motion. Just after the pretrial conference concluded, the written waiver was handed to the court. The following colloquy then took place among defense counsel Walsh, prosecutor Kiser, the trial court and Defendant:

Mr. Walsh: [Defendant’s] concern is Judge, speaking in general, and what upsets him is that he feels that at least one of the law enforcement officers here has committed perjury from a previous hearing and I assured him
that I would get a chance to cross examine through me. The officer, his waiver of trial by jury is conditioned upon, and he had asked me to subpoena Deputy Ray, K-O-C-H, is that like Cook?
Mr. Kiser: Yes.
Mr. Walsh: And Mr. Kiser assured me that Mr. Koch will be here ... and he will call him ... in his case in chief he had told me and that was the foremost concern to [Defendant].
The Court: Is he going to be here?
Mr. Kiser: Mr. Koch will be here. But as far as conditions on waiver of the jury, that’s an unconditional waiver.
The Court: Has your client signed it?
Mr. Walsh: Yes sir. And I’m handing you the waiver of trial by jury. That’s just a form that I use. You may have some additional questions Judge, I don’t know.
The Court: Let thé record reflect the waiver of trial by jury is signed by the defendant. Is that your signature Mr. Dillard?
Defendant: Yes.
The Court: That has been filed.... Do you wish to ask your client some questions as to his rights and under the Constitution?
Mr. Kiser: Koch is here.
Mr. Walsh: Briefly Judge if it please the Court. Mr. Dillard you and I have talked about the issues of this lawsuit and what the issues are, have we not?
Defendant: Yes sir.
Mr. Walsh: And based on our talks by phone and then in person today, is it your desire to waive the jury and let those issues be decided by Judge Price?
Defendant: Yes sir.
Mr. Walsh: What is important to you is that you have the right to confront witnesses, is it not?
Defendant: Yes sir.
Mr. Walsh: Especially Deputy Koch and Sargent [sic] Carson?
Defendant: Yes sir.
The Court: Further, any witness that takes the stand on behalf of the state your attorney will have an opportunity to cross examine that witness.
Defendant: Okay.

At this point, Defendant said he was curious why Deputy Koch had not testified at the suppression hearing because Defendant believed Deputy Koch’s testimony would be inconsistent with that of Corporal Carson. The judge explained that he had not heard Deputy Koch’s testimony yet, but defense counsel would have a right to cross-examine the witness. Defendant then stated, “Exactly but I don’t understand why I had to sign a waiver of jury trial before those issues are heard.” The court immediately reminded Defendant that he had to knowingly, voluntarily and intelligently waive his constitutional right to a jury trial in open court and on the record. The following colloquy then occurred between the trial judge and Defendant:

The Court:.... How far in school have you completed?
Defendant: One year of college.
The Court: One year of college. You can read and write?
Defendant: Yes.
The Court: Have you had sufficient time to go over this case with your attorney?
Defendant: Yes. But this issue has not been raised and I’m not satisfied with the outcome of the motion to suppress hearing because of that.
The Court: Your attorney as I recall, has preserved all those matters for [the] appellate record.... My concern is that you knowingly, voluntarily and intelligently waive your right to a jury trial?
Defendant: Yes.
The Court: And you had signed the agreement to that?
Defendant: Yes.
The Court: You are not under the influence of alcohol of any medication today, are you sir?
Defendant: No sir.
The Court: You know what you’re doing?
Defendant: Yes sir.
The Court: You appear to. You appear to be very alert and intelligent Mr. Dillard. So the Court is going to accept your waiver of jury trial and proceed with a court trial without a jury.

Defendant contends that he .mistakenly believed he had to waive his right to a trial by a jury in order to get a hearing on issues raised in his motion to suppress. We disagree with his interpretation of the record.

Defendant was dissatisfied with the trial court’s decision oh the motion to suppress because Deputy Koch had not testified at the suppression hearing. Defendant was concerned because he wanted his attorney to have an opportunity to point out inconsistencies in the account of events given by Deputy Koch and Corporal Carson. During the hearing- on the waiver of jury trial issue, Defendant was told: (1) Deputy Koch was going to testify at the trial itself; (2) defense counsel would have an opportunity to cross-examine Deputy Koch; and (3) Defendant could challenge the ruling on the motion to suppress on appeal. After being told these things, Defendant reiterated on the record that he was willingly waiving his right to a jury trial. At no time did he express a desire to have a jury decide the issue of his guilt or innocence.

Based on our review of the written waiver of jury trial and the transcript, we conclude that Defendant did knowingly, voluntarily and intelligently waive his right to a jury trial in court and on the record with unmistakable clarity. Therefore, we decline to review Defendant’s second point for plain error because he has failed to present facially substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Point II is denied.

Point III

In Defendant’s third point, he contends the 25-year concurrent sentences imposed by the trial court were so grossly disproportionate to the offenses of possession of methamphetamine and marijuana that the sentences violate the federal and state constitutional proscriptions against cruel and unusual punishment found in the Eighth Amendment and art. I, § 21. Defendant acknowledges that he did not raise this constitutional issue at sentencing, but he asks for plain error review pursuant to Rule 30.20 because he claims the lengthy sentences are unconstitutional and, therefore, manifestly unjust. Once again, our task is to determine whether Defendant’s asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. See State v. Stanley, 124 5.W.3d 70, 77 (Mo.App.2004).

When Defendant was first charged with drug possession, both offenses in the information were described as class C felonies. A class C felony has a maximum range of punishment of seven years. See § 558.011.1(3). In the amended information, Defendant was alleged to be a prior and persistent drug offender, which allowed these offenses to be treated as class A felonies for sentencing purposes. See § 195.275; § 195.285. Prior to trial, the court made a finding beyond a reasonable doubt that Defendant was a prior and persistent drug offender pursuant to § 195.275. The maximum range of punishment for a class A felony is life imprisonment. See § 558.011.1(1). The sentences imposed by the trial court were within the allowable range for a class A felony. Therefore, we perceive Defendant’s argument as a constitutional attack on the validity of § 195.285, which authorizes enhanced punishment for recidivist drug offenders.

We first consider whether we have jurisdiction to decide this issue. The Missouri Supreme Court has exclusive jurisdiction over appeals involving the constitutional validity of a state statute. See Mo. Const, art. V, § 3; State v. Condict, 65 S.W.3d 6, 16 (Mo.App.2001). “The mere assertion that a statute is unconstitutional, however, does not deprive the court of appeals of jurisdiction unless the constitutional issue is real and substantial, and not merely colorable.” State v. Wiles, 26 S.W.3d 436, 443 n. 4 (Mo.App.2000). A constitutional claim is merely colorable if our preliminary inquiry discloses that the contention is so obviously unsubstantial and insufficient, in fact or in law, as to be plainly without merit. State v. Stone, 926 S.W.2d 895, 898 (Mo.App.1996). Because we determine that Defendant’s constitutional challenge is merely colorable, this court has jurisdiction.

The Eighth Amendment proscription against the infliction of “cruel and unusual punishments” has been construed to prohibit a term of years sentence that is grossly disportionate to the severity of the crime. Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The Eighth Amendment applies to the states via the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In Solem, the Court held that “a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292, 103 S.Ct. 3001. The intraju-risdictional and interjurisdictional analyses in the second and third factors, however, need only be undertaken “in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dispropor-tionality.” Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment); Ewing v. California, 538 U.S. 11, 23-24, 123 S.Ct. 1179, 155 L.Edüd 108 (2003) (plurality opinion).

Our threshold comparison of the crimes Defendant committed — possession of methamphetamine and more than 35 grams of marijuana — with the concurrent 25-year sentences imposed upon Defendant do not lead us to infer that his punishment is so grossly disportionate to the offenses he committed as to violate the Eighth Amendment.

In Rummel, the Supreme Court addressed an Eighth Amendment challenge to Texas’ recidivist statute, which required the imposition of a life sentence upon a third conviction for a noncapital offense. Rummel, 445 U.S. at 264, 100 S.Ct. 1133. Rummel had been sentenced to life imprisonment after being convicted of the felony of obtaining $120.75 by false pretenses. Id. at 266, 100 S.Ct. 1133. His two prior felonies were fraudulent use of a credit card to obtain $80 worth of goods or services and passing a forged check in the amount of $28.36. Id. at 265, 100 S.Ct. 1133. In analyzing Rummel’s Eighth Amendment claim, the Court pointed out that “successful challenges to the proportionality of particular sentences have been exceedingly rare.” Rummel, 445 U.S. at 272, 100 S.Ct. 1133. The Court also acknowledged that states have an interest in dealing more harshly with those persons who, by their repeated criminal acts, have shown “that they are simply incapable of conforming to the norms of society as established by its criminal law.” Id. at 276, 100 S.Ct. 1133. The Court elaborated on this theme later in its opinion:

[G]iven Rummel’s record, Texas was not required to treat him in the same manner as it might treat him were this his first “petty property offense.” Having twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.

Id. at 284,100 S.Ct. 1133. Finally, the fact the Rummel would be eligible for parole in as little as 12 years had to be considered in assessing the validity of his Eighth Amendment challenge to the Texas recidivist statute. Id. at 280-81, 100 S.Ct. 1133. After considering all of these factors, the Court held that Rummel’s mandatory life sentence did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. Id. at 285, 100 S.Ct. 1133.

Here, Defendant did not receive the maximum sentence of life imprisonment that could have been imposed upon him as a persistent drug offender. Indeed, he did not even receive the maximum 30-year term allowable for a class A felony. He also received concurrent, rather than consecutive, sentences. Defendant’s four felony offenses demonstrate a persistent inability to conform his behavior to the social norms prescribed by the criminal laws of this state dealing with the possession and sale of controlled substances. It is also worthy of note that his earlier offenses involved the sale and production of drugs, rather than simple possession. The fact that Defendant’s offenses all involve drugs makes his prior convictions much more serious than those in Rummel. As Justice Kennedy pointed out in Harmelin:

Possession, use, and distribution of illegal drugs represent “one of the greatest problems affecting the health and welfare of our population.” Petitioner’s suggestion that his crime was nonviolent and victimless, echoed by the dissent ... is false to the point of absurdity. To the contrary, petitioner’s crime threatened to cause grave harm to society. Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at least three ways: (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture.

Harmelin, 501 U.S. at 1002, 111 S.Ct. 2680 (citations omitted). Finally, Defendant’s convictions for possession of methamphetamine and marijuana are not offenses for which imprisonment without the possibility of probation or parole is mandated. See, e.g., § 195.291; § 195.292; § 192.295; § 195.296. Therefore, it appears Defendant could become eligible for parole. See § 558.011.4(c); Rowland v. State, 129 S.W.3d 507, 511 (Mo.App.2004). We believe Rummel is dispositive on this point and compels the conclusion that Defendant’s sentences do not constitute the infliction of cruel and unusual punishment that is proscribed by the Eighth Amendment.

Our conclusion that the sentences imposed upon Defendant are not so grossly disportionate as to offend the federal constitution forecloses Defendant’s parallel argument that he is entitled to relief under our state constitution. We apply the same “gross disproportionality” standard in determining whether there has been a violation of art. I, § 21(a) of the Missouri Constitution. See State v. Lee, 841 S.W.2d 648, 654-55 (Mo. banc 1992). In State v. Hill, 827 S.W.2d 196 (Mo. banc 1992), the defendant was convicted of trafficking drugs in the first degree and sentenced to a term of 30 years without probation or parole. Our Supreme Court held that the defendant’s sentence did not violate art. I, § 21(a). Id. at 198. In so holding, the Court stated that “[d]rug trafficking is a serious matter, and the legislature could properly mandate a severe sentence. We reject the cruel and unusual punishment claim.” Id. We reach the same conclusion here because Defendant has a more extensive criminal history than the defendant in Hill, and Defendant’s prior crimes include felony convictions for selling and producing drugs. His 25-year concurrent sentences do not violate art. I, § 21(a).

Therefore, we decline to review Defendant’s third point for plain error because he has faded to present facially substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Point III is denied.

Although the foregoing discussion disposes of all of the issues presented by Defendant’s appeal, one further matter requires our attention. The judgment contained in the record on appeal appears to contain two clerical errors. First, it incorrectly indicates that Defendant was only found to be a prior and persistent offender. The transcript, however, demonstrates the trial judge also made a finding, on the record and beyond a reasonable doubt, that Defendant was a prior and persistent drug offender. Defendant was sentenced based on this finding. Second, Rule 29.07(c) requires that a judgment of conviction set forth the sentence imposed. The judgment also fails to recite the sentences imposed upon Defendant, even though they were announced in open court and recorded in a docket entry. “The failure to memorialize accurately the decision of the trial court as it was announced in open court was clearly a clerical error.” State v. Taylor, 123 S.W.3d 924, 931 (Mo. App.2004). Rule 29.12 authorizes a trial court to correct clerical errors in the judgment that result from oversight or omission. Id. Accordingly, while we affirm Defendant’s convictions and sentences, we must remand this case with instructions to the trial court to enter an amended written judgment reflecting the judgment and sentences as they were announced by the trial judge in open court.

SHRUM and BARNEY, JJ., Concur.

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

      . The amended information also alleged Defendant was a prior and persistent offender because he had two prior felony convictions. See § 558.016.

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

      . At the time of Defendant’s arrest on January 11, 2002, he was on probation for a prior drug conviction. The judge had suspended execution of the 12-year sentence that had been imposed.

      . All references to rules are to the Missouri Rules of Criminal Procedure 2004.

      . The State’s evidence showed that on August 4, 1989, Defendant pled guilty in the Circuit Court of St. Louis County, Missouri, to two felonies for selling marijuana and cocaine. On April 6, 2000, Defendant pled guilty in the Circuit Court of Wayne County, Missouri, to a felony for producing more than five grams of marijuana.

      . In reaching this conclusion, we have given careful consideration to Defendant's contention that Solem supports his argument, but we find this case factually distinguishable for two reasons. First, Helm was sentenced to life imprisonment without the possibility of parole. Solem, 463 U.S. at 281-82, 103 S.Ct 3001. Second, none of Helm’s offenses involves the possession or sale of drugs. Id. at 279-81, 103 S.Ct. 3001. In our view, Rum-mel, not Solem, is the controlling decision in the case at bar.

      . Because Defendant was found to be a prior and persistent drug offender, the offenses he committed could be treated as class A felonies for sentencing purposes. See § 195.285.2. Defendant’s 25-year concurrent sentences fall within the permissible range of punishment for a class A felony. See § 558.011.1(1). The finding that Defendant was a persistent offender as defined by § 558.016.3, however, would only authorize the trial court to sentence Defendant to a maximum 20-year term of imprisonment. See § 558.016.7(3).


source: Caselaw Access Project

author: PATRICIA BRECKENRIDGE, Judge.

license: Public Domain

text:
    STATE of Missouri, ex rel. Layne ANDERSON, Relator, v. The Honorable W. Stephen NIXON, 16th Judicial Circuit, Jackson County, Respondent.
    No. WD 64037.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Darren E. Fulcher, Kansas City, MO, for appellant.
    David H. Bony, Kansas City, MO, for respondent.

      Before BRECKENRIDGE, P.J., SPINDEN and HARDWICK, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Layne Anderson filed a petition for writ of prohibition seeking to prohibit the Honorable W. Stephen Nixon, a circuit judge, from taking any further action in the underlying case other than to dismiss the application for trial de novo filed by the defendant, Robert Morris, d/b/a MJM Au-toSales. Mr. Anderson claims that Mr. Morris is not entitled to a trial de novo because the judgment for damages entered in favor of Mr. Anderson and against Mr. Morris by the associate circuit judge was not a default judgment but, rather, was a judgment in a contested case. This court granted Mr. Anderson’s preliminary writ of prohibition and ordered the circuit judge to take no further action other than to dismiss Mr. Morris’ application for trial de novo. The preliminary writ of prohibition is now made absolute.

Factual and Procedural Background

On October 15, 2002, Mr. Anderson filed a petition in an associate division of the Jackson County Circuit Court alleging, inter alia, claims of breach of contract, fraud, violation of the Missouri Merchandising Practices Act, and violation of the statute requiring proper assignment of a motor vehicle title against Mr. Morris, d/b/a MJM Auto Sales. Mr. Anderson sought damages in excess of $10,000 on each alternative count. Mr. Morris did not file an answer.

The matter was called for trial on July 11, 2003. Mr. Anderson appeared in person and by counsel. Mr. Morris was not present, but his counsel appeared on his behalf. Mr. Anderson presented his own testimony and was cross-examined by Mr. Morris’ counsel. Mr. Morris’ counsel also made an opening statement and a closing argument.

On July 18, 2003, the associate circuit judge entered judgment, finding against Mr. Anderson on his claims of breach of contract, fraud, and violation of the statute requiring proper assignment of a motor vehicle title. The associate circuit judge found in favor of Mr. Anderson on his claim that Mr. Morris violated the Missouri Merchandising Practices Act. The associate circuit judge awarded Mr. Anderson $9000 in damages, $2500 in attorney’s fees, and court costs, which included $25 in special process server fees.

On July 21, 2003, Mr. Morris filed an application for trial de novo before a circuit judge. In response, Mr. Anderson filed a motion to strike or, alternatively, to dismiss Mr. Morris’ application for trial de novo. In his motion, he alleged that Mr. Morris was not entitled to a trial de novo because the petition claimed damages of more than $5000, and the ease in the associate division was contested. Therefore, Mr. Anderson argued that Mr. Morris’ only remedy was an appeal to this court.

The circuit judge entered an order on February 25, 2004, denying Mr. Anderson’s motion to strike or, alternatively, to dismiss Mr. Morris’ application for a trial de novo. In the order, the circuit judge indicated that the case before the associate circuit judge was uncontested and the associate circuit judge’s judgment was a default judgment. The circuit judge further indicated that, because the case was uncontested, Mr. Morris was entitled to a trial de novo. The circuit judge set the case for trial.

Mr. Anderson filed a petition for writ of prohibition with this court. In his petition, he alleged that the case before the associate circuit judge was contested, requiring Mr. Morris to appeal to this court rather than seek a trial de novo. This court issued a preliminary writ of prohibition, ordering the circuit judge “to refrain from all action in the premises, other than to dismiss Robert Morris’ application for trial de novo.”

Circuit Judge’s Order Exceeded Jurisdiction

“Prohibition is a powerful writ, divesting the body against whom it is directed to cease further activities.” State ex rel. Riverside Joint Venture v. Mo. Gaming Comm’n, 969 S.W.2d 218, 221 (Mo. banc 1998). As such, the Supreme Court has limited its application to “three, fairly rare, categories of cases.” Id. These three types of cases are those in which:

1) the trial court exceeded its personal or subject matter jurisdiction; 2) the trial court exceeded its jurisdiction or abused its discretion to such an extent that it lacked the power to act as it did; or 3) there is no adequate remedy by appeal for the party seeking the writ, and the “aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision [of the lower court].”

State Bd. of Registration for Healing Arts v. Broum, 121 S.W.3d 234, 236 (Mo. banc 2003) (quoting State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994)).

Mr. Anderson argues that the circuit judge exceeded his jurisdiction under section 512.180, RSMo Cum.Supp. 2001, because the only method of review of the associate circuit judge’s decision was an appeal to this court. Section 512.180 discusses the review of cases tried before an associate circuit judge:

1. Any person aggrieved by a judgment in a civil case tried without a jury before an associate circuit judge, other than an associate circuit judge sitting in the probate division or who has been assigned to hear the case on the record under procedures applicable before circuit judges, shall have the right of a trial de novo in all cases where the petition claims damages not to exceed three thousand dollars.
2. In all other contested civil cases tried with or without a jury before an associate circuit judge or on assignment under such procedures applicable before circuit judges or in any misdemeanor case or county ordinance violation cases a record shall be kept, and any person aggrieved by a judgment rendered in any such case may have an appeal upon that record to the appropriate appellate court. At the discretion of the judge, but in compliance with the rules of the supreme court, the record may be a stenographic record or one made by the utilization of electronic, magnetic, or mechanical sound or video recording devices.

While this statute provides for review of cases heard on the record where the petition claims damages less than $3000, and it provides for review of all other contested civil cases, the statute does not provide for review of uncontested civil eases before an associate circuit judge where the petition claims damages in excess of $3000. See Weston Point Resort Condominium Owners’ Ass’n, Inc. v. Flow, 796 S.W.2d 928, 929-30 (Mo.App.1990) (referring to the 1987 version of section 512.180.1, in which the threshold dollar amount was $5000 instead of $3000). Therefore, under Mo. Const, art. V, section 27.5, uncontested cases before an associate circuit judge where the petition claims damages of more than $3000 may be reviewed by a trial de novo. See Weston Point, 796 S.W.2d at 930. In this case, where the petition clearly claimed damages in excess of $3000, the dispute is whether the proceeding before the associate circuit judge was a contested case, requiring Mr. Morris to appeal to this court rather than seek a trial de novo.

Mr. Morris first argues the case was uncontested because he did not file an answer to Mr. Anderson’s petition. Under section 517.031.2, RSMo 2000, however, Mr. Morris was not required to file a responsive pleading unless he intended to raise an affirmative defense, counterclaim, or cross claim. Thus, his failure to file an answer is not dispositive of whether this was a contested case under 512.180.2.

Mr. Morris next argues that the case was uncontested because he did not appear at trial. Although Mr. Morris did not attend the trial, the judgment indicates that his counsel attended and entered an appearance on Mr. Moras’ behalf. Where a party does not personally appear at trial but counsel does appear, the party is deemed to have appeared at trial through counsel. See Hamngton v. Hamngton, 153 S.W.3d 315, 317 n. 3 (Mo.App.2005); Spirtas Co. v. Div. of Design & Constr., 131 S.W.3d 411, 415-16 (Mo.App.2004); Grimes v. Bagwell, 809 S.W.2d 441, 444 (Mo.App.1991). Mr. Morris appeared at trial through counsel.

Because Mr. Moras appeared at trial through counsel, the associate circuit judge’s judgment was not a default judgment. See section 517.131, RSMo 2000 (an associate circuit judge may enter a default judgment where a properly-served defendant fails to appear at trial). That Mr. Morris appeared at trial through counsel and was not in default distinguishes this case from those relied upon by Mr. Morris. Unlike Mr. Morris, the defendants in Wulff v. Kakadiaris, 856 S.W.2d 128, 129 (Mo.App.1993), and Weston Point, 796 S.W.2d at 928-29, failed to appear at trial. Therefore, the cases were uncontested and the judgments against the defendants were default judgments, entitling them to a trial de novo before a circuit judge. Wulff 856 S.W.2d at 130; Weston Point, 796 S.W.2d at 931.

Although the judgment entered against Mr. Morris was not a default judgment, he argues that it was, nevertheless, “uncontested” because he did not testify, call witnesses, or introduce any evidence on his behalf during the trial. The court in Weston Point held that to “contest” a case means “ ‘[t]o assert a defense to an adverse claim in a court proceeding. To oppose, resist, or dispute the case made by a plaintiff.... To strive to win or hold. To controvert, litigate, call in question, challenge. To defend, as a suit or other proceeding.’ ” 796 S.W.2d at 931 (quoting Black’s Law DictionaRY 320 (6th ed.1990)). Mr. Morris admitted, in his suggestions in opposition to Mr. Anderson’s petition for writ of prohibition, that his counsel cross-examined Mr. Anderson, made an opening statement, and made a closing argument. Thus, through his counsel, Mr. Morris opposed, resisted, disputed, called into question, and challenged Mr. Anderson’s case. The case was contested. That Mr. Morris failed to take the opportunity to support his challenge to Mr. Anderson’s case with his own testimony or other evidence on his behalf did not make the case uncontested.

Because this was a contested case, Mr. Morris was required to appeal the associate circuit judge’s judgment to this court rather than seek a trial de novo. Section 512.180.2. Therefore, the circuit judge exceeded his jurisdiction in denying Mr. Anderson’s motion to dismiss Mr. Morris’ application for trial de novo. See Mesa v. Cesena, 121 S.W.3d 334, 336 (Mo.App. 2003). Accordingly, this court’s preliminary writ of prohibition is made absolute.

All concur.

      . All statutory references are to the Revised Statutes of Missouri Cumulative Supplement 2001, unless otherwise indicated.

      . The threshold dollar amount was lowered from $5000 to $3000 in 2001. Section 512.180.1, RSMo Cum.Supp.2001. This amount remained the threshold amount until 2004. Section 512.180.1, RSMo Cum.Supp. 2004, now provides:
      Any person aggrieved by a judgment in a civil case tried without a jury before an associate circuit judge, other than an associate circuit judge sitting in the probate division or who has been assigned to hear the case on the record under procedures applicable before circuit judges, shall have the right of a trial de novo in all cases tried before municipal court or under the provisions of chapters 482 [small claims courts], 534 [forcible entry and unlawful detainer], and 535 [landlord — tenant actions], RSMo.

      . Mo. Const, art. V, section 27.5 provides, in pertinent part:
      The right to and method of review from a final judgment or appealable order of an associate circuit judge ... shall, until otherwise provided by law, be de novo before a circuit judge or another associate circuit judge within the circuit....

      . Section 517.031.2, RSMo 2000, provides:
      Affirmative defenses, counterclaims and cross claims shall be filed in writing not later than the return date and time of the summons unless leave to file the same at a later date is granted by the court. No other responsive pleading need be filed. If no responsive pleading is filed, the statements made in the petition, affirmative defenses, counterclaims or cross claims shall be considered denied except as provided in section 517.132.


author: LISA WHITE HARDWICK, Judge.

text:
    STATE of Missouri, Respondent, v. Rickey STALLINGS, Appellant.
    No. WD 63129.
    Missouri Court of Appeals, Western District.
    March 29, 2005.

      Kent Denzel, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before SMART, P.J., ELLIS and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Rickey Stallings was convicted on one count of forgery, § 570.090, R.S.Mo.2000, and sentenced to a ten-year prison term. On appeal, he challenges the sufficiency of the evidence to support his conviction, alleges instructional error, and seeks plain error review of comments made during the State’s closing argument. We affirm.

Factual and Procedural History

In April 2002, Stallings was incarcerated at the Algoa Correctional Center, having served thirteen years of his twenty-three year sentence for various felony offenses. He worked as a clerk in the prison’s library.

On April 22, 2002, an office assistant in the Algoa records department opened a manila envelope that came from the message center, a room where mail was sorted for delivery to various departments in the prison. The unsealed envelope appeared to have been sent through inter-agency mail from the Fulton Reception and Diagnostic Center. Among the documents in the envelope was a four-page order, purportedly from the St. Louis County Circuit Court, stating that Stallings’ prison sentence had been reduced to thirteen years. Upon review of the order, Algoa records officer Teresa Adams became suspicious that it was not authentic. Adams noticed the order had no original signatures and the court clerk’s certification on the last page did not include an embossed seal.

Subsequent investigation revealed there was no order in Stallings’ court file to amend or otherwise reduce his prison sentence. The order that arrived in the Algoa records department was determined to be a forgery, with a photocopied signature of the sentencing judge and a photocopied certification seal. The document was sent to the Missouri State Highway Patrol laboratory for fingerprint testing. Four of Stallings’ thumbprints were found on pages of the forged document.

Stallings was charged with one count of forgery. At the jury trial, the State presented evidence that Stallings, as a clerk, had access to electronic typewriters and a copy machine in the prison library. Library clerks also were permitted to enter the message center without supervision. A Highway Patrol official identified Stall-ings’ fingerprints on the counterfeit document. A prison official testified that although outgoing inmate mail was generally checked for contraband and inappropriate content an envelope marked as “legal mail” would not be opened unless it was suspected of containing contraband.

The jury found Stallings guilty of forgery. The trial court sentenced him, as a prior and persistent offender, to a prison term of ten years, to be served consecutively to his existing sentence.

Sufficiency of the Evidence

In his first point on appeal, Stall-ings contends the trial court erred in entering the judgment of conviction because the evidence was insufficient to prove he committed forgery under Section 570.090. Our review of this point is limited to determining whether the jury had substantial evidence from which to find the defendant guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo.banc 1998). In making this determination, we accept as true all the evidence favorable to the State, including all favorable inferences drawn therefrom, and disregard all contrary evidence and inferences. Id. We will not weigh the evidence or determine the credibility of witnesses, as that is within the jury’s province. Id.

Stallings was charged with committing a forgery in violation of Section 570.090, which provides in relevant part:

1. A person commits the crime of forgery if, with the purpose to defraud, he
(1) Makes, completes, alters or authenticates any writing so that it purports to have been made by another or at another time or place or in a numbered sequence other than was in fact the case or with different terms or by authority of one who did not give such authority; or ...
(4) Uses as genuine, or possesses for the purpose of using as genuine, or transfers with the knowledge or belief that it will be used as genuine, any writing or other thing which the actor knows has been made or altered in the manner described in this section.

Stallings argues the evidence was insufficient to find that he transferred a forged writing, as required in Section 570.090.1(4). The term “transfer” is not defined in the statute. Stallings contends the applicable dictionary definition of “transfer” is “to make over or negotiate the possession or control of (a right, title, or property) by a legal process usu[ally] for consideration.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2427 (1981). He relies on State v. Conaway, 824 S.W.2d 50, 58 (Mo.App.1991), wherein the court applied this definition and held the evidence was sufficient to support a forgery conviction because a “transfer” took place when the defendant negotiated fraudulently-endorsed checks by depositing them into his bank account. Stallings argues that Cona-way indicates the “clear legislative intent [of § 570.090.1(4) ] to use the term ‘transfer’ in its financial sense.” Because there was no evidence that he negotiated a financial instrument, Stallings contends the State failed to prove the element of transfer.

When a statutory term is undefined, we must apply its common sense, dictionary meaning, in the absence of an indication of specialized use. State v. Trotter, 5 S.W.3d 188, 193 (Mo.App.1999). The common meaning of “transfer” is not limited to the negotiation of financial documents; Webster’s dictionary also defines the term as “to cause to pass from one person or place to another: transmit.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2427 (1993). Similarly, Black’s Law Dictionary offers several definitions of “transfer,” including “[t]o convey or remove from one place or one person to another; to pass or hand from one to another[.]” BLACK’S LAW DICTIONARY 1504 (7th Ed.1999). This use of the term was apparent in State v. Pride, 1 S.W.Sd 494, 499-501 (Mo.App. 1999), where we found the defendant demonstrated the requisite intent to commit forgery by faxing fraudulent copies of a cashier’s check and a certificate of insurance.

Forgery is a crime that can be committed by transferring a fraudulent writing in several ways. In Pride, the defendant’s “transfer” was the transmission of a facsimile, whereas in Conaway it was the depositing of a check. The applicable common sense meaning of the term depends on the factual situation. In light of the circumstances here, the State sought to apply the term as used in Pride, by proving that Stallings transferred the fraudulent court order by placing it in the prison mail system. The State’s theory was a reasonable application of the dictionary definition of “transfer” as the conveyance or removal of an object from one place to another.

We also find that the evidence at trial supported the State’s theory. Prison officials testified that Stallings had access to typewriters and a copy machine, which would have equipped him to prepare the court order. The fingerprint evidence provided direct proof that Stallings handled and had knowledge of the counterfeit document. Testimony further established that, as a library clerk, Stallings had unsupervised access to Algoa’s message center, from which the envelope containing the fraudulent order was dispatched to the records department. Stallings also had a reason to perpetrate the crime, in that he had served thirteen years of his twenty-three year sentence, and the falsified court document would have cleared the way for his immediate release from prison.

Based on this evidence, the element of “transfer” was circumstantially established by proof that Stallings had the means, opportunity, and motive to commit the forgery. There was substantial evidence from which the jury could reasonably infer that Stallings prepared the forged document and then used the prison mail system to transfer it from the message center to the records department. Accordingly, the evidence was sufficient to support the determination that Stallings was guilty of forgery beyond a reasonable doubt. Point I is denied.

JURY Instructions

In Point II, Stallings contends the trial court erred in giving a disjunctive jury instruction regarding accomplice liability because there was no evidence to support this theory. The trial court overruled Stallings’ objection to Instruction No. 6, which stated in relevant part:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 22, 2002, in the County of Cole, State of Missouri, the defendant transferred 'with the knowledge or belief that it would be used as genuine, St. Louis County Circuit Court document, a writing, and
Second, that defendant knew this writing has been made so that it purported to have authority of one who did not give such authority, and Third, that defendant did so with the purpose to defraud, then you are instructed that the offense of forgery has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that defendant acted alone or with the aid of another person in committing that offense[;] then you will find the defendant guilty of forgery.

(emphasis added). The argument on appeal focuses on paragraph Fourth, where the State sought to submit the forgery charge under alternative theories of individual or accomplice liability. Stallings correctly argues that by submitting the alternatives in the disjunctive, the State was required to present substantial evidence in support of both theories. State v. Puig, 37 S.W.3d 373, 377 (Mo.App.2001).

As discussed under Point I, the evidence at trial was sufficient to prove that Stall-ings could have acted alone in committing the forgery by placing the counterfeit court order in the prison mail system during his unsupervised work visits to the message center. But the State also presented evidence of another means of commission. An Algoa prison official testified that outgoing inmate mail was generally checked for contraband and scanned for inappropriate content (such as threatening remarks); however, any envelope marked as “legal mail” would not be opened without specific grounds for suspecting contraband. Other testimony established that court-related inmate mail was frequently sent to the Fulton Reception and Diagnostic Center for sorting and delivery to the appropriate prison by inter-agency mail. Collectively, this testimony allowed an inference that Stallings could have sent the falsified order, under the guise of “legal mail,” outside the prison for someone else to mail to the Fulton clearinghouse, where it would then be forwarded to Algoa as inter-agency mail.

The evidence was sufficient to support a finding that Stallings either acted alone or with the aid of another person. Point II is denied, as the trial court did not err in submitting Instruction No. 6 under the alternative theories of individual or accomplice liability.

Closing Aegument

In his final point on appeal, Stall-ings contends the trial court plainly erred in failing to prevent, sua sponte, the prosecutor from misstating the evidence during closing argument. Because Stallings failed to object to the prosecutor’s statements, he seeks review of his claim under the plain error standard.

Pursuant to Rule 30.20, we have discretion to review for “plain errors affecting substantial rights.” This review involves a two-step process. First, we determine whether the claim of error facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. State v. Hagan, 113 S.W.3d 260, 267 (Mo.App.2003). Plain error is evident, obvious, and clear. State v. DeWeese, 79 S.W.3d 456, 457 (Mo.App. 2002). Absent a finding of facial error, an appellate court should decline its discretion to review the claim. Hagan, 113 S.W.3d at 267. If plain error is found, we proceed to the second step to consider whether the error actually resulted in manifest injustice or a miscarriage of justice. Id.

“The plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review.” State v. Tokar, 918 S.W.2d 753, 769 (Mo. banc 1996). Statements made in closing argument will rarely amount to plain error, and any assertion that the trial court erred for failure to intervene sua sponte ignores the possibility that an attorney may not have objected for strategic reasons. State v. Cole, 71 S.W.3d 163, 171 (Mo. banc 2002). Without an objection, “the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.” State v. Clemmons, 753 S.W.2d 901, 908 (Mo. banc 1988).

During closing argument, the prosecutor explained the State’s theory as to how Stallings transferred the falsified court order:

Now, that he transferred this to Al-goa, you know, literally we don’t know exactly where it went, how it got there. We know that it had been up in that message center mail room on [April] 22nd. And it came from the records department and ended up in an envelope that was not sealed that seemed to have come from the Fulton Diagnostic Center. So the inference would be that it was either in there and came from Fulton or somebody dropped it in there. And that’s probably about it.
Nobody can tell you how it got there, except we know that the defendant is a law clerk. We heard that law clerks had access. He was a law clerk at the time.
We also heard that the mail, if you just wrote “legal mail” on the outside of an envelope, it would go out and it would not be opened, it would not be read unless there was something that aroused suspicion. So it’s quite possible that it could have gone out of the prison with U.S. mail, with instructions to send it to Algoa.

(emphasis added). Stallings argues the prosecutor’s statement that legal mail would not be opened was contrary to the evidence at trial. He contends Algoa’s investigator, Ben Wilson, testified that all outgoing inmate mail is checked for contraband and should be scanned for improper content and, if the envelope is marked as “legal mail,” the prison staff also checks to be sure that the addressee is actually an attorney.

Upon review of the trial transcript, we find nothing to support Stallings’ characterization of Wilson’s testimony regarding all outgoing inmate mail. On direct examination by the State, Wilson explained that legal mail is not subject to the stringent review procedures of other outgoing inmate mail:

Q: All right. Now when an inmate mails a letter from Algoa is their mail read by someone?
A: Um, normally the mail is checked for contraband. They should check it for contraband. She should also scan it for any type of illegal terms, drug terms, stuff like that. Any kind of threatening remarks. The only mail that’s not read that I’m aware of, according to policy, is legal mail. Stuff that’s marked legal mail.
Q: So if I was an inmate at Algoa and had an envelope with papers in it and wrote to John Jones, Attorney at Law, St. Louis, Missouri, and then I wrote in big letters, legal mail, would that get read?
A: No. Normally they should check to make sure that it’s going to an attorney. They have a book in the mailroom that has a list of attorneys statewide, and they should verify that that’s going to an attorney, not somebody that’s fictitious.
Q: Is that always done?
A: I don’t know. I don’t work in the mailroom.
Q: But if it says legal mail, but it doesn’t have an attorney’s name on it, it says legal mail?
A: If it says legal mail nobody touches it. Unless we suspect it has contraband in it going out and then it would have to be opened in front of the individual.
Q: If you had no reason to suspect a problem, and it says legal mail on the outside of it, would it be opened?
A: No.

Wilson’s testimony was fully consistent with the prosecutor’s statement during closing argument that an envelope marked “legal mail” would not be opened unless it aroused suspicion of contraband. The trial court did not err in allowing the prosecutor’s statement because it was supported by evidence in the record. Finding no error, we decline plain error review and deny Point III of the appeal.

The judgment of the trial court is affirmed.

All concur.

      . As we recognized in State v. Nelson, 895 S.W.2d 289, 292 (Mo.App.1995), ”[c]ircum-stantial evidence is perfectly valid and can be essential in a forgery case where a defendant’s knowledge can likely be established no other way.” Circumstantial evidence need not be absolutely conclusive of guilt and need not demonstrate the impossibility of innocence. State v. O’Haver, 33 S.W.3d 555, 559-60 (Mo.App.2000). Substantial evidence of guilt can be established by proof that the defendant had the means, motive, and opportunity to commit the charged crime. Id. at 560; State v. Sherman, 927 S.W.2d 350, 354 (Mo.App. 1996).


author: PER CURIAM.

text:
    CITY OF BETHANY, Respondent, v. FARMERS MUTUAL INSURANCE COMPANY OF HARRISON COUNTY, Missouri, Defendant, Harrison County Farm Bureau, Defendant, Eddie Barber d/b/a Ed’s Excavating, Defendant, Jeff Schreiner d/b/a Schreiner and Sons Construction, Defendant, Morton Buildings, Inc., Appellant, Allied Design Architectural & Engineering Group, P.C., Appellant.
    No. WD 63236.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    James P. Valbracht, Chillieothe, MO, for appellant.
    Frederick K. Starrett, Overland Park, KS, for respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Morton Buildings, Inc. and Allied Design Architectural and Engineering Group appeal from judgments entered against them in the Circuit Court of Grundy County in a negligence action filed by the City of Bethany, Missouri, over damages sustained by the city library building during the construction of an adjacent building. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, that no error of law appears, and that an opinion would have no precedential value.

Judgment affirmed. Rule 84.16(b).


text:
    Donald Ray ELLIS, Appellant, v. Mary Ellen ELLIS, Respondent Pro Se.
    No. WD 64377.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Patrick Burwell Starke, Blue Springs, MO, for Appellant.
    Mary Ellen Ellis, Cassatt, SC, pro se.
    Before: SPINDEN, P.J., HOWARD and NEWTON, JJ.
   ORDER

PER CURIAM.

Donald Ellis appeals from a trial court’s judgment of dissolution awarding modifiable monthly maintenance to his ex-wife, Mary Ellis. Mr. Ellis argues that the trial court’s findings regarding maintenance are insufficient under section 452.335 RSMo 2000. Mrs. Ellis did not file a Respondent’s brief.

We have reviewed Mr. Ellis’ brief and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the trial court’s judgment pursuant to Rule 84.16(b).


text:
    Shawnell LAWSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63685.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Craig A. Johnston, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: LOWENSTEIN, P.J., BRECKENRIDGE and SMART, JJ.
   ORDER

PER CURIAM.

Following his conviction for murder in the first degree, Section 565.020 RSMo 2000, and armed criminal action, Section 571.015 RSMo 2000, Shawnell Lawson filed a Rule 29.15 motion for post-conviction relief, alleging ineffective assistance of trial counsel. The trial court denied the motion after an evidentiary hearing. The judgment is affirmed. Rule 84.16(b).


author: JAMES M. SMART, JR., Judge.

text:
    STATE of Missouri ex rel. DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, and Khaleb Lee Holder, by Karen Louise Salmon as next friend, and Karen Louise Salmon, Relator, v. The Honorable Stephen HUDSON, Associate Circuit Judge, Third Circuit of Grundy County, Respondent.
    No. WD 64345.
    Missouri Court of Appeals, Western District.
    March 29, 2005.

      Kris Teena Daniel, Brookfield, for appellant.
    Jack N. Peace, Trenton, for respondent.
    Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

This is an original action in prohibition in which the Missouri Department of Social Services, Division of Child Support Enforcement, seeks to prohibit the Honorable Stephen Hudson from proceeding further on a counter-petition brought by Delbert Jackson. The counter-petition was filed in response to the State’s petition to establish paternity and child support, brought on behalf of the minor child Kha-leb Lee Holder and his mother Karen Salmon. Because we hold that the court lacks subject matter jurisdiction to proceed on the counter-petition, we order that the preliminary order in prohibition be made absolute.

Factual and Procedural Background

The background facts are not disputed. In October 1987, Karen Salmon (Mother) lived and worked in Grundy County, Missouri. During that time period, Mother and Delbert Jackson (Father) engaged in a sexual relationship. As a result, the minor child at issue here, Khaleb Holder, was born in July 1988. Mother later moved to Texas with Khaleb.

In September 2003, pursuant to the Uniform Interstate Family Support Act (UIF-SA), codified at §§ 454.850-454.997, the Missouri Division of Child Support Enforcement (DCSE) brought a “Uniform Support Petition” in Grundy County Circuit Court. The petition named Father as the respondent and requested the establishment of paternity and an order for child support, medical coverage, and additional costs. The uniform support petition form, which Mother completed while living in Texas, indicated that Khaleb was born in Missouri, but that he had been living in Texas since October 1992.

Father filed a motion to dismiss the petition. The court denied the motion to dismiss and ordered Father to file an answer within twenty days. In the interim, the court ordered blood tests to determine paternity. According to Father’s affidavit, the blood tests established that Delbert Jackson (Father) is the child’s father. Father timely filed his answer and included a counter-petition in which he requested that the court: (1) establish paternity; (2) grant him sole care, custody and control of the minor child, with reasonable visitation rights to Mother; and (3) order Mother to pay child support retroactive to the filing of the counter-petition.

DCSE filed a motion to dismiss the counter-petition on the ground that the court had no personal jurisdiction over Mother with regard to the claims in the counter-petition. After a hearing, the court determined that the court did have personal jurisdiction over Mother because she had submitted to jurisdiction by filing the Uniform Support Petition in the court. The court held that Father could proceed with his counter-petition in the underlying action.

DCSE then filed a petition for writ of prohibition in this court, seeking to prevent Judge Hudson from proceeding further with the claims in Father’s counter-petition on the grounds that the court lacked personal jurisdiction over Mother pursuant to section 454.912 of the UIFSA. This court ordered Respondent to file suggestions in opposition showing why the requested relief should not be granted. Following receipt of the suggestions in opposition, a temporary writ of prohibition was granted.

The cause was briefed and argued before this court for a determination as to whether the temporary writ should now be made permanent.

Writs of Prohibition

An extraordinary writ of prohibition may be granted when it is clear that a trial court is exceeding its jurisdiction. See State ex rel. Mo. Gaming Comm’n v. Kinder, 896 S.W.2d 514, 516 (Mo.App. 1995). The primary function of prohibition is to limit judicial activities to those within the bounds of “authority, preventing actions in want or in excess of the court’s jurisdiction.” State ex rel. Lopp v. Munton, 67 S.W.3d 666, 670 (Mo.App.2002). Prohibition is an appropriate remedy where the lower court lacks either personal or subject matter jurisdiction to proceed. Id.; State ex rel. Havlin v. Jamison, 971 S.W.2d 938, 939 (Mo.App.1998).

Arguments

The parties argue primarily about issues of personal jurisdiction rather than subject matter jurisdiction. DCSE’s primary argument in favor of the writ is that the court lacks personal jurisdiction over Mother to proceed on the counter-petition based on the limited immunity provided to her by section 454.912(a) of the UIFSA. That section provides in relevant part that “[p]articipation by a petitioner in a [UIF-SA] proceeding ... does not confer personal jurisdiction over the petitioner in another proceeding” (emphasis added). DCSE contends that the claims in Father’s counter-petition constitute “another proceeding.” While we assume that DCSE’s interpretation of the language “another proceeding” is correct, we need not decide the issue of personal jurisdiction because we determine that the trial court lacks subject matter jurisdiction of the custody and visitation claims asserted by Father.

Subject Matter Jurisdiction

In Father’s counter-petition, he requested that the court: (1) establish paternity; (2) give him sole care, custody, and control of the minor child, with reasonable visitation rights to Mother; and (3) order Mother to pay child support retroactive to the filing of Father’s counter-petition.

DCSE has also requested establishment of paternity. Both DCSE (in behalf of Mother and Khaleb) and Father seek to establish Father’s parentage of the minor child. Thus, we assume there is both subject matter jurisdiction and personal jurisdiction over Mother as to the declaration of paternity.

Next, Father requests child support from Mother “retroactive to the filing of the counter-petition.” Because Mother has had and continues to have sole custody of the child (at least until a custody determination can be made in the proper forum), there is no subject matter jurisdiction by which to award Father child support, retroactive or otherwise. The issue of personal jurisdiction over Mother is moot as to that point.

We turn, then, to the issue of whether the circuit court has subject matter jurisdiction over the child custody claim in Father’s counter-petition. In Missouri, subject matter jurisdiction over child custody disputes, including modification motions, is governed by the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 452.440 to 452.550. Steele v. Steele, 978 S.W.2d 835, 837 (Mo.App.1998); State ex rel. Laws v. Higgins, 734 S.W.2d 274, 277 (Mo.App.1987). The provisions of the UC-CJA dictate which State has jurisdiction over a child to establish or modify child custody orders. The UIFSA deals strictly with child support and paternity/parentage issues.

It is implicit in the UCCJA that the trial court is to make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody. Piedimonte v. Nissen, 817 S.W.2d 260, 266 (Mo.App.1991). The authority of a court under the UCCJA to hear a particular custody determination is a matter of subject matter jurisdiction. Laws, 734 S.W.2d at 279. Such jurisdiction may not be waived, may not be conferred by consent of the parties, must be based upon the circumstances at the time the jurisdiction is invoked, and may be raised at anytime. Id.; Lavalle v. Lavadle, 11 S.W.3d 640, 651 (Mo.App.1999).

To determine if a Missouri court has subject matter jurisdiction over a custody proceeding, we look to section 452.450 of Missouri’s version of the UCCJA. McClain v. Chaffee, 894 S.W.2d 719, 721 (Mo.App.1995). Section 452.450.1 provides four bases for jurisdiction to determine child custody. It states:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state:
(a) Is the home state of the child at the time of commencement of the proceeding; or
(b) Had been the child’s home state within six months parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because:
(a) The child and his parents, or the child and at least one litigant, have a significant connection with this state; and
(b) There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and:
(a) The child has been abandoned; or
(b) It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected; or
(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.

§ 452.450.1. Because the various bases of jurisdiction are stated in the disjunctive, jurisdiction may be predicated on any of the four subsections. McClain, 894 S.W.2d at 721. According to Father, the Missouri court has jurisdiction under section 452.450.1(2), and perhaps also under subsection (4). Those subsections are commonly referred to, respectively, as the “significant connection” basis and the “default or vacuum” basis. See Wheeler v. Winters, 134 S.W.3d 774, 778 (Mo.App. 2004). As the party seeking to assert jurisdiction, Father has the burden of establishing a prima facie basis for jurisdiction. See State ex rel. Rashid v. Drumm, 824 S.W.2d 497, 505 (Mo.App.1992).

Substantial Evidence Basis

The jurisdictional requirements of the UCCJA are designed to increase the probability that a custody decision will be in the child’s best interests by vesting the decision in the state with the greatest access to relevant information about the child and family. Piedimonte, 817 S.W.2d at 269. As a general rule, this would be the child’s home state. Id. at 270. Subsection (2) of section 452.450.1 is intended to cover the “unusual circumstances which would confer jurisdiction in a state other than the home state.” N.W. by M.G. v. B.W., 716 S.W.2d 278, 282 (Mo.App.1986).

Father argues that it is in Khaleb’s best interest that the Missouri court assume jurisdiction over the custody proceeding in this case because (1) both the child and Father have a “significant connection” with Missouri and (2) “substantial evidence” concerning the child’s care, protection, training, and personal relationships is available in this state. According to Father, both Father and child have significant connections with Missouri because Khaleb was conceived and born in Grundy County, Missouri, and because Father and his family are all residents of Missouri. Substantial evidence concerning the child’s future care, protection, training, and personal relationships is available in Missouri, Father says, because he “has the right to request visitation and custody of Khaleb which would all occur in Missouri.”

The best interest of the child, as used in section 452.450.1(2), is served when the forum has optimum access to relevant evidence about the child and family. Laws, 734 S.W.2d at 278. Thus, “[t]here must be maximum rather than minimum contact with the state.” Id. “The mere fact that [the child] was born here is of little or no significance.” Bounds v. O’Brien, 134 S.W.3d 666, 670 (Mo.App. 2004). In Bounds, where both parents resided in Missouri but the child did not, the court held: “The fact that his parents both reside here cannot, by itself, constitute a ‘significant connection’ for purpose of our analysis because if it was, jurisdiction could be predicated on this ground in virtually any case where one parent was a resident.” Id. Such would be the case here, where only Father resides in the state.

Apart from being born here, it appears that the child has had no contact with the state of Missouri for well over ten years. Thus, there is no “significant connection” between the child and the State of Missouri. Nor is there any indication that “substantial evidence concerning the child’s future care, protection, training, and personal relationships” is available here. To find that such evidence exists simply because Father seeks custody and visitation of the child would render this requirement satisfied in every custody case filed in any forum. We conclude that here, as in Bounds, “Mutually no current information about the child, his development or his personal relationships can be found in Missouri.” Id. It is, therefore, not in the child’s best interest that the Missouri court assume jurisdiction over the custody proceeding in this case.

Default or Vacuum Basis

Father seems to imply that the “default or vacuum” basis may alternatively afford jurisdiction to the Missouri court. Under that provision, the court may assume jurisdiction if it appears that no other state would have jurisdiction under the Act, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody, and it is in the best interest of the child that the circuit court assume jurisdiction. Id. at 671.

Father asserted in a filing dated August 20, 2004, that Khaleb was, at that time, living in Arizona and had lived there for a “short time.” Father again asserts in his brief that “[Mother] and Khaleb no longer reside in Texas.” He says that Texas, therefore, would not be in a position to assert jurisdiction over Khaleb, since he does not reside there and no longer has any connection with Texas. He further asserts that “Khaleb has resided in Arizona for a short period of time, so that it would not be in [ ] Khaleb’s best interest for Arizona to assert jurisdiction over Kha-leb.” Father implies that because of this, no other state would exercise jurisdiction over the custody proceeding and that Missouri, therefore, should have jurisdiction to make the custody determination pursuant to section 452.450.1(4).

“The general rule is that a court’s acquisition of jurisdiction over a case depends on the facts existing at the time its jurisdiction is invoked.” Laws, 734 S.W.2d at 278 (citing 20 Am.Jur.2d Courts § 142 (1965)). “[N]othing in the act ... indi-eate[s] that jurisdictional requirements may be established during the pendency, as opposed to the commencement, of the proceedings.” Id. Here, Khaleb was living with his Mother in Texas when the support petition was filed. There is no indication that Texas, as the home state of the child at the commencement of the proceedings, and thus the forum with jurisdiction under the Act to adjudicate the custody of the child, would refuse that role. Texas has enacted the UCCJA.

Missouri courts lack subject matter jurisdiction under which to proceed on the custody issue because none of the requirements of section 452.450.1 of the UCCJA are met. Because there is no subject matter jurisdiction over the custody claim, we need not decide whether or not the court may exercise personal jurisdiction over Mother pursuant to the UIFSA.

Father’s argument that Mother has availed herself of the privileges of the State of Missouri, thereby subjecting herself to personal jurisdiction under section 454.857 and section 210.829(2) by engaging in sexual intercourse in the State of Missouri, also is beside the point. Again, Father is talking about personal jurisdiction over Mother, not subject matter jurisdiction for a custody determination. Section 210.829.1 states that an action brought under the Uniform Parentage Act (UPA) “may be joined” with an action for “dissolution of marriage, annulment, separate maintenance, support, custody or visitation.” However, the Act does not purport to create subject matter jurisdiction for such other actions. Section 210.841.3 simply provides that a judgment in a UPA proceeding “may contain any other provision directed against the appropriate party to the proceeding” concerning support, custody, visitation, the furnishing of a bond, or “any matter in the best interest of the child.” Again, this provision does not appear to create subject matter jurisdiction. It simply specifies what may be included in a judgment when the UPA action is joined with other actions. Moreover, section 454.999 provides that in a proceeding under UIFSA, no provisions of the UPA shall be applicable except for section 210.822 (presumption of paternity) and section 210.834 (dealing with blood tests). Therefore, Father’s arguments concerning personal jurisdiction are without merit.

In view of all the foregoing, it seems clear that the UCCJA — rather than the UPA or the UIFSA — -should be construed as controlling the matter of subject matter jurisdiction of custody disputes. Any other interpretation would undermine the purposes of both the UCCJA and the UIFSA. Evidence of this can be found in the Comment to Section 314(a) in the original version of the UIFSA. Missouri’s version of this provision is section 454.912(a), the statute on which DCSE relies to assert that Mother, as the petitioner in a UIFSA case, has limited immunity from personal jurisdiction as to the claims in Father’s counter-petition. The comment states that the “primary object” of the prohibition against conferring personal jurisdiction over a UIFSA petitioner in “another proceeding” is “to preclude joining disputes over child custody and visitation with the establishment, enforcement, or modification of child support.” The comment further notes that the “prohibition strengthens the ban on visitation litigation established in Section 305(d).”

Although we have no Missouri case directly on point, we note that the Supreme Court of Colorado also reached the conclusion in a UPA case that subject matter jurisdiction over custody was governed by the UCCJA. Nistico v. District Court, 791 P.2d 1128 (Colo, banc 1990). In that case, the father, a resident of Colorado, brought an action in Colorado seeking a declaration of parentage, custody, visitation, support, and other things. The action was brought under the UPA. Mother and child lived in California. The child was conceived in Colorado. Id. at 1128. Mother admitted the parentage, but sought to dismiss the other claims in the petition on grounds of lack of subject matter jurisdiction. When the trial court declined to dismiss, Mother sought a writ. Id. at 1129. The Colorado Supreme Court granted the writ, holding that, under the UCCJA, the court in the child’s home state of California was the only court with jurisdiction to address issues related to custody and visitation. Id. at 1130-32.

Some other cases have discussed the distinctions between the UCCJA and the UIFSA, indicating that there can be jurisdiction under the UIFSA to adjudicate child support while the subject matter jurisdiction to adjudicate custody remains exclusively in another state under the UC-CJA. See, e.g., McNabb ex rel. Foshee v. McNabb, 31 Kan.App.2d 398, 65 P.3d 1068 (2003); In re Hattenbach, 999 S.W.2d 636 (Tex.App.1999); In re Abur-Dalbouh, 547 N.W.2d 700 (Minn.App.1996).

Father claims that it is somehow unfair not to require Mother to answer his custody claims here, in Missouri, where he resides. Under section 452.450.1(2), “jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state.” Payne v. Weker, 917 S.W.2d 201, 204 (Mo.App.1996) (Emphasis in original). Father’s contentions as to fairness should be addressed to the General Assembly, as we only have authority to apply existing law.

Conclusion

For the foregoing reasons, we order that the preliminary writ of prohibition be made absolute.

ULRICH and HARDWICK, JJ„ concur.

      . Unless otherwise noted, all statutory references are to Revised Statutes of Missouri 2000.

      . See Comment to § 314(a) of the 1996 Uniform Interstate Family Support Act, National Conference of Commissioners on Uniform State Laws. Section 314(a) of UIFSA corresponds to section 454.912(a), RSMo 2000.

      . An affidavit signed by Father acknowledges that the blood test determined that he was the child’s father.

      . Mother, however, is not required to appear personally in court. § 454.917(a).

      . See Tex. Fam.Code Ann. §§ 152.001 to 152.317 (1999).


author: ROBERT G. ULRICH, Presiding Judge.

text:
    Danny FALK, Respondent, v. BARRY, INC., Appellant.
    No. WD 64402.
    Missouri Court of Appeals, Western District.
    March 29, 2005.

      Tracy M. Vetter, Kansas City, MO, for Appellant.
    James H. Bell, Kansas City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, Presiding Judge.

Barry, Inc. (Barry) appeals from the order of the Labor and Industrial Relations Commission (Commission) declining to modify its 1986 award, entered by authority of section 287.240 RSMo, requiring monthly payments to the widow of Danny Falk, who died as a result of injuries sustained in his employment with Barry. Barry claims that the payments were “capped” at $195,000 by the version of section 287.240 in existence when Mr. Falk died and when the award was entered and that the sum has been exceeded, thereby alleviating any legal duty to make further payments. The Commission properly indicated that it had no jurisdiction to review the award, and this court lacks jurisdiction to review the order. The appeal is dismissed.

Barry employed Danny Falk when he was injured as the result of a work related accident that occurred on June 15, 1982. Mr. Falk died from his injuries on June 19, 1982. The case was presented to an Administrative Law Judge, acting by authority of Missouri’s Workers’ Compensation Act, who entered an award on February 7, 1985. Barry filed its application for review by the Commission, challenging the findings of the ALJ and the method of computation.

The Commission’s final award was entered on June 23, 1986. The Commission modified the method of computation, but upheld the other findings. Barry was to pay to Mr. Falk’s dependents $174.00 per week. Barry made the weekly payments through its insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual), until December of 2003. A notation on the check dated December 9, 2003, stated: “NOTES: PER AWARD THIS IS THE FINAL PAYMENT OF $468.00.” Barry claims to have paid Mr. Falk’s dependents $200,700.00.

Counsel for Mrs. Veronica Falk, widow of Danny Falk, wrote a letter to the Commission dated December 30, 2003, requesting a hearing and determination as to why benefits were stopped. The Commission then wrote a letter to Liberty Mutual requesting notification of why payments were stopped. Barry filed its Notice of Employer/Insurer of Compliance with Order alleging that payment had been stopped because the version of section 287.240 in effect at the time of Mr. Falk’s injury and death included a $195,000.00 payment cap, which had been surpassed by the payments already made by Barry. Mrs. Falk then filed her Response to Barry’s Notice of Compliance. At the request of the Commission, the parties submitted briefs on the issue.

The Commission entered a ruling dated June 20, 2004. While the ruling of the commission is titled “order,” the Commission properly concluded that it was without authority to amend the award because the time for appeal of the award had expired. Effectively, the Commission is without authority to further delineate the award or expound on its meaning. The conclusion of the Commission was simply that Barry was, thus, required to abide by the terms of the award, whatever the award requires. “An administrative tribunal is a creature of statute and exercises only that authority invested by legislative enactment.” Martin v. Inland Truck Parts, 935 S.W.2d 68, 71 (Mo.App. W.D. 1996) (quoting Sheets v. Labor & Indus. Relations Comm’n, 622 S.W.2d 391, 393 (Mo.App.1981)).

Because the Commission has no statutory authority to review an award, the Commission correctly dismissed the action for lack of jurisdiction. See Mikel v. Pott Indus./St. Louis Ship, 896 S.W.2d 624, 626 (Mo. banc 1995). The Commission has no authority to enforce a workers’ compensation award, as this is power that must be exercised by the judiciary. Baxi v. United Techs. Auto. Corp., 122 S.W.3d 92, 96 (Mo. App. E.D.2003).

Appellate review of the decisions of the Commission is also statutory. Section 287.495, R.S. Mo.2000. Because no legal judgment has been presented for appellate review, this court must dismiss the action for a lack the jurisdiction. See Martin, 935 S.W.2d at 71.

All concur.