text:
    STATE of Missouri, Plaintiff-Respondent, v. David G. HENSCHEL, Defendant-Appellant.
    No. 26216.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 24, 2005.
    Motion for Rehearing or Transfer Denied March 17, 2005.
    Mel L. Gilbert, Buffalo, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Assistant Attorney General, Jefferson City, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

David G. Henschel (“Appellant”), who had two previous convictions for driving while intoxicated (DWI), was charged with a class D felony DWI in violation of section 577.010. He was found guilty after a jury trial, sentenced by the court to three years in the department of corrections, and now appeals the judgment of conviction. Appellant brings two points on appeal. His first point claims the trial court should have granted a new trial when a rebuttal witness for the State, Appellant’s wife, filed an affidavit which claimed she was mistaken in her trial testimony; his second point posits error in allowing the State to cross-examine him about his prior convictions. We affirm.

The substance of Appellant’s first point is that the affidavit of Karrie was newly discovered evidence, warranting a new trial because it was the only evidence that Appellant consumed alcoholic beverages on the day of his arrest, and her testimony undermined Appellant’s defense that he was drinking non-alcoholic beverages. The State counters that the evidence was not newly discovered, could have been procured with due diligence, and was not material because it was cumulative of other testimony. We review the trial court ruling on a motion for new trial based upon newly discovered evidence for an abuse of discretion. State v. Rutter, 93 S.W.3d 714, 730 (Mo. banc 2002).

Karrie testified that Appellant did not sleep at home the night before the incident of his arrest and that when he arrived home his speech was slurred and he staggered. Karrie, who had often seen Appellant after he had been drinking, believed he was drunk. Karrie and Appellant got into an argument over Appellant’s stepson. Appellant went into his stepson’s room, “grabbed him out of bed and ... knocked him around the walls, in the head against the wall.” Karrie testified that her father-in-law was in St. Louis and not present on the date of the argument, or else he would have separated her son and Appellant because he would do so when Appellant was drinking. Karrie called her sister, Karen, told her what happened and took her son to Karen’s home; she then went home and spoke with Appellant, who was drinking Budweiser beer. When Appellant stated he was going over to get his stepson, Kar-rie called Karen to warn her that Appellant was on his way to Karen’s house and that he was drunk. Karen called the police and hid with her nephew in a nearby horse trailer. The police arrived shortly after the call and subsequently arrested Appellant for driving while intoxicated.

Appellant’s version of the events was that he was hanging Sheetrock with his father-in-law until 3:00 a.m., prior to the incident; he claimed he went home at 3:00 a.m. and slept for around three and one-half hours. He testified that he did not consume any alcohol that evening or prior to the incident; his testimony concerning the altercation with his stepson did not contradict Karrie’s version of the events leading to his arrest. He countered any testimony concerning his appearance by claiming the Sheetrock dust caused his eyes to be bloodshot and a hearing problem from childhood caused his slurred speech.

In her affidavit, Karrie claimed, after refreshing her memory -with receipts, she was in error when she testified that on the date of this incident that her father-in-law was in St. Louis. She further stated:

6. I specifically had recalled that the incident involving the drinking by David occurred while David’s father was in St. Louis and not working on his house.
7. I picked up the car with David’s father that day so I know his father was not in St. Louis as I testified at trial.
8. Another item that confused me during my mistaken testimony was that David and I had got (sic) into arguments on a number of occasions, especially around two-and one-half (21/2) years ago.
9. Now that I have better recollection my testimony at another trial would be different than what I said on February 6, 2004.

We do not find anything in the affidavit to be newly discovered evidence that was not discoverable with due diligence prior to trial. While Appellant makes much of the fact that Karrie was not an endorsed witness by the State as a reason that Appellant did not depose her, clearly, she had important information regarding the events which led up to Appellant’s arrest. The argument between Karrie and Appellant set in motion the events which led to Appellant’s arrest; he was arrested after he drove over to his sister-in-law’s house to retrieve his stepson after the argument. The fact that the State may not have interviewed Karrie prior to the trial did not preclude Appellant from doing so.

Furthermore, in her affidavit, Karrie did not contradict any of the facts regarding an argument over her son, her observations of Appellant’s appearance and demeanor, or her warning call to her sister. Karen also provided supplementary and uncontradicted testimony that she received a frantic phone call from Karrie that Appellant was angry and drunk, she called the police as a result of that phone call, and she hid in a horse trailer with her nephew until the police got there. She testified that Appellant’s speech was slurred, which only happened when he was drunk, and he staggered when he got out of the car, which he never did if he was sober.

Although Appellant claims it was critical that only Karrie provided any testimony that he consumed alcoholic beverages on that day, it is not necessary for anyone to have seen Appellant consume alcoholic beverages on that day. In addition to Karen’s testimony, Deputy Sheriff Bill Shepard witnessed Appellant with a strong odor of alcohol on his breath, glassy eyes, slurred speech, and swaying when he walked back to his car. Appellant lied to Shepard twice when Appellant was asked who drove the car. Appellant initially said his wife had driven him to Karen’s house, he then stated that his sister-in-law drove him, but Appellant admitted at trial that he drove himself to Karen’s house.

Another deputy, Scott Rice, also observed that Appellant had a strong odor of alcoholic beverages about him, had watery, bloodshot and glassy eyes, and slurred speech. Appellant was given field sobriety tests, which he did not pass; he then refused to submit to a chemical test of his breath. We find the trial court did not abuse its discretion when it denied a new trial based on the affidavit of Appellant’s wife. Appellant’s first point is denied.

Appellant’s second point claims a violation of sections 577.023.6 and 577.023.14; he claims that each of these statutes prohibits the state from ever questioning a defendant about prior alcohol-related offenses. Appellant does not cite to any cases for this unique proposition, but claims the clear legislative intent of both sections is to keep the matter of prior convictions away from the jury. The proposition that the legislature intended for the jury to decide each case on its merits is simply a restatement of a basic principle of law that a defendant is on trial for the crime with which he is charged. If Appellant had not taken the stand as a witness, the jury would not have been told of any prior alcohol-related offenses.

On the other hand, when an accused elects to testify on his or her behalf, the State has an absolute right to impeach him with prior convictions of felonies or misdemeanors. M.A.B. v. Nicely, 909 S.W.2d 669, 671 (Mo. banc 1995). Section 491.050 provides the same:

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case. Such proof may be either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.

Section 577.023 is a statute known as a habitual offender statute, which defines a recidivist status, for which the offender may be more heavily punished, rather than defining a separate offense, or even a separate element of the underlying offense with which the defendant is charged. State v. Cullen, 39 S.W.3d 899, 904 (Mo.App. E.D.2001). The proof of prior convictions merely serves to authorize enhanced punishment for the underlying offense charged, if the defendant is found guilty. Id. In fact, the title of section 577.023 is “[pjersistent and prior offenders — enhanced penalties — imprisonment requirements, exceptions — procedures.” There is nothing in section 577.023 to trump well-established evidentiary rules or section 491.050 regarding the right to impeach witnesses with prior convictions. Appellant’s second point has no merit.

The judgment of conviction is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

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

      . Appellant and Karrie Henschel separated six weeks prior to the trial and were in the process of obtaining a divorce. We refer to her as Karrie for ease of discussion and mean no disrespect by using her first name.

      . Although Appellant contends he told Deputy Rice that he wanted to take the breath test, we accept the evidence in the light most favorable to the judgment. Burkholder ex rel. Burkholder v. Burkholder, 48 S.W.3d 596, 597-598 (Mo. banc 2001).

      . Section 577.023.6, which provides for enhanced penalties for prior and persistent offenders, states the facts regarding whether the defendant is a prior and persistent offender "shall be pleaded, established and found prior to submission to the jury outside of its hearing.”

      . Section 577.023.14 further provides in pertinent part:
      Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Judge.

license: Public Domain

text:
    KANSAS ASSOCIATION OF PRIVATE INVESTIGATORS, et al; Julie Smith, Fund Administrator, Amicus Curiae, Respondents, v. Joseph J. MULVIHILL, et al., Appellants.
    No. WD 64160.
    Missouri Court of Appeals, Western District.
    April 5, 2005.

      Lisa S. Morris, Kansas City, MO, for Appellants.
    Douglas S. Stone, Kansas City, MO, for Respondent, KS. Association.
    George A. Bartlett, Jefferson City, MO, for Amicus Curia.
    Before: PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

This case involves a class action suit that began in 1998. The plaintiffs include the Kansas Association of Private Investigators, a not-for-profit membership corporation, and several individual private investigators (collectively Investigators). In 2000, we affirmed the trial court’s finding that two fee increases by the Kansas City, Missouri, Board of Police Commissioners (Board), one in 1988 and one in 1997, constituted void rulemaking and that the class members were entitled to refunds of those fees. See Kansas Ass’n of Private Investigators v. Mulviliill, 35 S.W.3d 425 (Mo.App. W.D.2000). The Board paid $2,367,389 into the circuit court of Cole County, which placed that fund under the control of a Fund Administrator.

After all of the claims were paid, over $1,000,000 remained in the fund. In March 2004, the trial court issued a judgment setting aside $25,000 as a reserve to pay any late-filing claimants and distributing the remainder of the money to various charities in Cole County, most providing services to children, and $78,049.32 to the Cole County Treasurer for expenses. The Fund Administrator distributed the money as directed by the trial court, filing her report with the trial court in April 2004. At the same time, the trial court issued a judgment approving the Fund Administrator’s report and absolving her of all liability with respect to those disbursements.

The Board thereafter filed this appeal, claiming that the trial court erred in its March 2004 order. The Board raises three points on appeal. First, it claims that the trial court erred in its application of the cy pres doctrine to those unclaimed funds because it distributed the money to entities that had no relationship to the parties or issues in the case. Second, it claims that the trial court erred because it did not give the parties an opportunity to be heard before making the distributions, denying the parties their due process. Finally, the Board claims that the excess money should have been returned to them because that was the most appropriate disposition of the funds.

The Investigators adopted the Board’s arguments for points one and two. They differed with the Board on point three only, stating that the case should be remanded for a hearing on the distribution of the funds.

The distribution of unclaimed funds in a class action suit has not been directly addressed in our courts. We believe the correct standard of review is abuse of discretion. See e.g., In re Airline Ticket Comm’n Antitrust Litig., 307 F.3d 679, 682 (8th Cir.2002) (“We generally review a district court’s cy pres distribution for an abuse of discretion.”); Van Gemert v. Boeing Co., 739 F.2d 730, 737-38 (2d Cir.1984) (trial court did not abuse its discretion in formulating the distribution plan for the unclaimed funds).

We will find an abuse of discretion if the trial court’s decision is against the logic of the circumstances before the court at the time and is so arbitrary and unreasonable that it shocks the conscience of this court and suggests a lack of careful consideration. Suhr v. Okorn, 131 S.W.3d 886, 891 (Mo.App. W.D.2004).

We agree with both the appellant and the respondent; the trial court went beyond its authority in making the unclaimed distributions. The trial court abused its discretion both in denying the parties due process and in the actual distribution.

Both parties complain that the trial court made the distributions without giving either of them an opportunity to be heard. The trial court held no hearing concerning the unclaimed funds, and the parties stated that they were not informed that the court was taking suggestions about what to do with the remaining funds. Yet the order stated that the trial court “has given considerable thought to proper distributions and has received and considered informal suggestions and requests. The trial court, however, has independently made the determinations with respect to the distributions” that are being questioned in this appeal.

Governmental decisions that deprive individuals of property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment are constrained by procedural due process. Dabin v. Dir. of Revenue, 9 S.W.3d 610, 615 (Mo. banc 2000). “Procedural due process requires that before a person is deprived of a property interest, he or she ‘must receive notice and an opportunity for a hearing appropriate to the nature of the case.’ ” State v. Mann, 23 S.W.3d 824, 836 (Mo.App. W.D.2000) (quoting Moore v. Bd. of Educ. of Fulton Pub. School No. 58, 836 S.W.2d 943, 947 (Mo. banc 1992)). The opportunity to be heard “must come at a meaningful time and in a meaningful manner.” Laubinger v. Laubinger, 5 S.W.3d 166, 175 (Mo.App. W.D.1999).

Both parties had an interest in the unclaimed funds; the Investigators because the funds were part of a judgment in their favor, and the Board because it paid that money into the trial court and could possibly reclaim the funds. They were given neither notice nor an opportunity to be heard. Therefore, the trial court’s distribution order in March 2004 deprived both parties of due process. On remand the trial court must hold a hearing and allow both parties to present statements and/or evidence about the distribution of the unclaimed funds.

The trial court also abused its discretion in its determination of where to distribute unclaimed funds in a class action lawsuit. This is a matter of first impression. We only found one Missouri case that even mentioned using the cy pres doctrine in this context, and this was in a footnote to a concurring opinion. Buchholz Mortuaries, Inc., v. Dir. of Revenue, 113 S.W.3d 192, 196 n. 1 (Mo. banc 2003) (Wolff, J., concurring). In Buchholz, Judge Wolff mentioned that “[t]he fluid class recovery doctrine is a rule of equity used in class actions, based on the cy pres doctrine” to distribute funds in a class action. Id. He said that the court “may make an appropriate order for their distribution,” but no direction was given for the application of this rule. Id. Other jurisdictions, however, have considered this problem and set out clear rules that we believe should apply in Missouri.

When courts are faced with distributing unclaimed funds from a class action, they have four options: a pro rata distribution to the class members who have already made claims; escheat to the government; reversion to the defendant; or a cy pres distribution. In re Motorsports Merch. Antitrust Litig., 160 F.Supp.2d 1392, 1393-94 (N.D.Ga.2001). The trial court in this case did consider all four of these options and rejected the first three. Because neither party appealed the trial court’s decision to not apply the first two options, we will not review that part of the decision. We will review the other two options and their applicability in this case.

The trial court decided that reversion to the Board was improper because that would reward the Board for illegally collecting fees and it found that the Board had caused numerous delays in sending notice to all the possible claimants. Although there are probably many instances when it would be inappropriate to allow unclaimed funds to revert to the defendant in a class action suit, we do not agree with the trial court that it would always be wrong.

In Van Gemert, the Second Circuit found that the trial court did not abuse its discretion in allowing the unclaimed funds to revert to Boeing, the defendant, with the requirement that Boeing publish notice of the fund in its annual report and pay any valid claims in perpetuity. 739 F.2d at 731, 737-38. The court found that Boeing had breached private contractual duties, not a duty to the public, and that Boeing had acted without malice or bad faith and was complying with the existing law and could not have known that it had greater duties. Id. at 736-37.

In our case, the Board similarly acted without malice or bad faith; it simply failed to fully comply with the rules regarding notice to increase fees charged for licenses. So it could be appropriate to return the unclaimed funds to the Board, with a proviso that the Board must be ready to pay any late filed claims. We are not saying that the trial court must return the funds to the Board, we are simply saying that the trial court may consider that option when it holds a hearing on remand.

The fourth option is to apply the cy pres doctrine, which comes from a Norman French expression, cy pres com-me possible, which means “as near as possible.” Airline Ticket Comm’n, 307 F.3d at 682. When this doctrine is used to distribute unclaimed funds in the class action context, “the unclaimed funds should be distributed for a purpose as near as possible to the legitimate objectives underlying the lawsuit, the interests of class members, and the interests of those similarly situated.” Id. The funds may be donated to charitable organizations that combat harms similar to those suffered by the class members. Motorsports Merch., 160 F.Supp.2d at 1394. Using the funds for a purpose closely related to their origin is the best cy pres application, although the funds may go to other, unrelated charities if a closely related one cannot be found. Id.

In using the fourth option, the trial court appeared to realize that these rules exist, but abused its discretion in their application. Although this case was litigated in Cole County, all the parties in the case reside in and around Kansas City. Yet the trial court distributed all of the money to Cole County charities and to the Cole County treasury. And the parties to this case are all involved in some type of law enforcement, yet the trial court distributed the money to benefit children. While the charities that received this money are worthwhile, these distributions are in no way related “as near as possible to the legitimate objectives underlying the lawsuit, the interests of class members, and the interests of those similarly situated.” Airline Ticket Comm’n, 307 F.3d at 682. The fact that this case was brought in Cole County did not place that great of a burden on the taxpayers in that county and did not justify distributing the money to Cole County. If the trial court decides on remand to apply the cy pres doctrine to these funds, then it must distribute the funds to charities that are more closely and obviously related to law enforcement activities. In making that distribution, one factor that the trial court must consider is the location of the parties to the lawsuit. See Powell v. Georgia-Pacific Corp., 119 F.3d 703, 705 (8th Cir.1997) (holding that scholarships for students in the counties and parishes where the class members lived was an appropriate use of the unclaimed funds); see also Airline Ticket Comm’n, 307 F.3d at 683 (trial court must consider the geographic scope of the case).

The trial court abused its discretion when it distributed the unclaimed funds without providing the parties with notice and an opportunity for a hearing. Further, the trial court abused its discretion when it distributed the funds to charities unrelated to the activities of the parties in the suit and in Cole County, where none of the parties resided. On remand, the trial court must allow both parties an opportunity to be heard concerning the distribution of the unclaimed funds. The trial court may consider a reversion to the Board or may apply the cy pres doctrine to the funds, or some combination of the two. And if it chooses to apply the cy pres doctrine, the funds must be distributed to charities with interests as near as possible to the interests of the class members and those similarly situated. Airline Ticket Comm’n, 307 F.3d at 682. Because it is unlikely that the money can be recovered from the charities, the question may arise whether the funds could be recovered from the surety bond of the Fund Administrator. It may also be able to recover the money paid to the Cole County treasurer, and, of course, the $25,000 held for any late-filed claims. But we leave it to the trial court to determine how to recover the money in order to correct its error. Therefore, this case is reversed and remanded for further proceedings consistent with the directions given in this opinion.

PAUL M. SPINDEN, P.J., and VICTOR C. HOWARD J. concur.

      . We have reviewed the Fund Administrator’s brief, filed as an amicus curiae. She brings up several issues that were not raised by either party, which issues therefore, we are not required to address. Hemeyer v. KRCG-TV, 6 S.W.3d 880, 882 (Mo. banc 1999). But because some were jurisdictional issues, we considered them and found that they have no merit.

      . Although both the trial court and the Fund Administrator mention In re Ancillary Adversary Proceeding Questions, 89 S.W.3d 460 (Mo. banc 2002), as precedent in dealing with unclaimed funds, that case is of no help here. The appellant in that case was the state treasurer, who claimed that the unclaimed funds in four receiverships should revert to the state treasury. Id. at 462. The Supreme Court found that the treasurer lacked standing to collect the funds and affirmed the trial court. Id. at 464. The treasurer was not an original party to the case, whereas the Board was an original party in the instant case. And that case does not apply to the issues here, because no one is appealing the trial court’s decision that the money should not escheat to the state.


text:
    In the Interest of BABY GIRL P, Plaintiff. E.P., Appellant, v. A.M. and L.M.; Adoptions of Babies and Children, Inc., Respondents.
    No. WD 64497.
    Missouri Court of Appeals, Western District.
    April 12, 2005.

      Kimberly A. Carrington, Kansas City, MO, for appellant.
    William F. O’Sullivan, Kansas City, MO, for plaintiff.
    Sanford P. Krigel, Kansas City, MO, for respondents, A.M. & L.M.
    James A. Waits, Kansas City, MO, for respondent, Adoptions of Babies & Children.
    Before PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Birth mother E.P. files this appeal from the order of the Jackson County Circuit Court denying her request that she be permitted to withdraw her consent to the termination of her parental rights and the adoption of her daughter Baby Girl P. Because we find that the court erred in requiring that E.P.’s withdrawal be in writing under section 453.030.7, we hereby reverse and remand for further proceedings.

E.P. is a thirty-year-old Spanish-speaking woman who decided while she was pregnant with Baby Girl P. to place the child for adoption. Arrangements were made in April 2004 for E.P. to meet with a birth parent coordinator from Adoptions of Babies and Children Inc. (respondent ABC Adoptions), a private adoption agency. She thereafter met on seven or eight occasions with the agency’s coordinator, Ms. Catherine Welch, to develop a social history and adoption plan. Ms. Welch speaks and understands little Spanish and always communicated with E.P. through an interpreter who was available at Truman Hospital, where E.P. was getting prenatal care. A.M. and L.M., respondents, were selected as the adoptive couple and met with E.P.’s approval.

Baby Girl P. was born on June 9, 2004. An adoption consent hearing was conducted on June 18 before a family court commissioner. E.P., who was provided an interpreter, said she was willing to give up her parental rights to Baby Girl P. The commissioner accepted her consent as knowing and voluntary and ordered the transfer of temporary custody of Baby Girl P. to ABC Adoptions for later placement. A.M. and L.M. took temporary custody of the child after the consent and temporary custody hearings and have had custody ever since. Between June 18 and 22, E.P. attempted orally to withdraw her consent to the termination of her parental rights.

On Tuesday, June 22, a circuit court judge signed the judgment adopting the commissioner’s findings and recommendations and accepted E.P.’s consent. On July 2, ten days after the circuit court had accepted E.P.’s consent, E.P. filed a pro se Motion to Withdraw Consent to Termination of Parental Rights and Consent to Adoption and Motion for Rehearing, asking that her consent be withdrawn. Legal counsel was appointed to assist E.P., and the matter was set for a hearing on July 29. An amended motion was filed, alleging that E.P. timely withdrew her consent and that duress due to a “force of circumstances,” misrepresentation, and possible fraud prevented E.P. from knowingly executing the consent.

A two-day hearing was conducted by a family court commissioner, who found in his Nunc Pro Tunc Findings and Recommendations that “the mother did not execute a withdrawal of consent prior to entry of judgment on June 22, 2004,” and that “her failure to timely file or execute such withdrawal of consent” was not excused by “any fraud, mistake, coercion, misrepresentation, duress, duress by ‘force of circumstances’ or any other conduct.” The order of temporary custody remained in effect. The commissioner’s findings were adopted and confirmed without modification by a family court judge on August 5. E.P. filed a motion and amended motion for rehearing on August 11 and 20, and both were denied by court order on August 23. This appeal followed.

E.P. raises three issues on appeal: that the court erred in denying her motion to withdraw her consent to adoption in that (i) she had effectively withdrawn her consent before it had been accepted and approved by a judge; (ii) she was under duress from a “force of circumstances” when giving her consent; and (iii) the consent was obtained through misrepresentation that prevented E.P. from providing a knowing and voluntary consent, and she was precluded from formally withdrawing the consent due to misrepresentation or for other “good cause.”

In cases arising under our adoption law, we sustain the trial court’s judgment unless there is no substantial evidence to support it, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law. In re Adoption of H.M.C., 11 S.W.3d 81, 86 (Mo.App. W.D.2000).

Adoption, unknown to common law, is purely a creature of statute. In re Adoption of McKinzie, 275 S.W.2d 365, 369 (Mo.App.1955). Our first general adoption law was enacted in 1917, and a number of changes have been made to the law since then. Id. Until 1947 the legislature required continuing consent to adoption, and birth parents could revoke that consent at any time and for any reason until the adoption hearing. In re Baby Girl _, 850 S.W.2d 64, 70 (Mo. banc 1993); McKinzie, 275 S.W.2d at 369-70. In 1947 the statute was revised, and the written consent was made irrevocable without leave of court. Baby Girl _, 850 S.W.2d at 70. A 1985 revision omitted the language regarding the irrevocability of the written consent and court review, id., but the courts continued to rule that a birth parent’s change of mind was not a sufficient basis on which his or her consent could be withdrawn. In re R.V.H., 824 S.W.2d 28, 30-31 (Mo.App. W.D.1991); In re Interest of A.M.K., 723 S.W.2d 50, 53 (Mo.App. E.D.1986).

Today, the statute provides, briefly and without qualification, that the written consent required in cases involving the adoption of children under the age of 18 “may be withdrawn anytime until it has been reviewed and accepted by a judge.” § 453.030.7. In 2003 the Eastern District Court of Appeals had occasion to address section 453.030.7, and agreed with the birth mother therein that she had the absolute right to withdraw her consent before a court had accepted it. In re Interest of K.L.S., 119 S.W.3d 548, 551 (Mo.App. E.D.2003). There is no longer any question about the birth parent’s motivation in seeking the withdrawal; this is simply irrelevant under the statute. Because the court in KL.S. was considering a written motion to withdraw consent, the issue that remains is whether an oral expression of intent to withdraw the consent constitutes an effective withdrawal of the birth parent’s consent under section 453.030.7.

The family court commissioner found that E.P. did not “execute a withdrawal of consent prior to the entry of judgment on June 22, 2004.” The statute does not, however, by its terms require that a withdrawal of consent be executed, or in writing. The statute contains no direction to a birth parent as to how to go about withdrawing the written consent or to whom notice of such withdrawal is to be directed. § 453.030.7. Because adoption involves the destruction of the parent-child relationship, we strictly construe the adoption statutes in favor of the rights of the natural parents. McKinzie, 275 S.W.2d at 369; see also K.L.S., 119 S.W.3d at 551 (<cWe have regularly noted the sanctity of the parent-child relationship and have held that any judicial termination of such a relationship is an exercise of awesome power that must be tempered and controlled by strict and literal compliance with the statutes.”); In re Interest of G., 389 S.W.2d 63, 65 (Mo.App.1965) (“Adoption statutes are to be strictly construed against the deprivation of natural parents in regard to the parent and child relationship.”).

Accordingly, the circuit court erred in requiring that a withdrawal of consent be in writing. For this reason, the case must be remanded to determine whether, under the circumstances of this case, E.P. orally communicated a withdrawal of consent under section 453.030.7 before the trial court accepted her previously given consent.

Because we have determined that the circuit court made an error of law, we will not consider the remaining issues. We reverse the circuit court’s order denying E.P.’s request to withdraw her consent and remand for further proceedings consistent with this opinion.

PAUL M. SPINDEN, P.J., and VICTOR C. HOWARD, J. concur.

      . Unless otherwise indicated, all statutory references are to RSMo. (2000).

      . See also Matter of P.A.W., 623 S.W.2d 592, 594 (Mo.App.1981) (noting the modern trend, among jurisdictions with no statutory provisions for withdrawal of consent, toward limiting the right of revocation).

      . As a legal term, "execute” means to make a document final by signing it. Black’s Law Dictionary 609 (8th ed.2004).


author: PAUL M. SPINDEN, Presiding Judge.

text:
    GOLDFINCH ENTERPRISES, INC., Appellant, v. COLUMBIA W, L.P., and Investment Properties and Management, Inc., Respondents.
    No. WD 64184.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Loren Wray Moll, Overland Park, KS, for appellant.
    Thomas M. Franklin, Kansas City, for respondent.
   PAUL M. SPINDEN, Presiding Judge.

Goldfinch Enterprises, Inc., is arguing with its lessor, Columbia W, and the manager of Columbia W’s retail center, Investment Properties and Management, Inc., over parking spaces in a shared parking lot. The circuit court granted summary judgment for Columbia W and Investment Properties on the ground that the parties’ lease agreement granted Columbia W control over the parking lot. We affirm the circuit court’s judgment.

Goldfinch leased one of six stores in the retail center to operate a yoga center. The parking lot outside the stores had 25 spaces. Goldfinch’s customers frequently took all of the available parking spaces. This caused another tenant in the center, John Scott Fitness, to mark off six parking spaces for its customers’ exclusive use without Columbia W’s permission. Goldfinch complained to Columbia W and to Investment Properties about John Scott Fitness’ manager and employees accosting Goldfinch’s customers who parked in the spaces reserved for fitness center customers. Goldfinch suggested to Columbia W that it allow John Scott Fitness to mark off only three parking spaces, but Columbia W did not respond to the suggestion or do anything to resolve the dispute.

Goldfinch sued Columbia W and Investment Properties. Count I of its petition sought the circuit court’s declaratory judgment that Columbia W had breached the lease “by permitting one tenant to claim exclusive use of certain parking areas[.]” Count II was a breach of contract action that prayed “for damages in an amount to be proven at trial[.]”

Several weeks after Goldfinch filed its lawsuit, the fitness center reduced its reserved spaces to three, but Goldfinch persisted in its lawsuit. The circuit court granted summary judgment for Columbia W and Investment Properties. Its judgment said:

The Court finds that, under the terms of the lease agreement, Defendant Landlord has not violated the Lease by allowing another tenant to post signs and mark off three parking spots for its customers. The Lease provides that all common areas are subject to the exclusive control areas. The Court finds that there remain no questions of material fact and that Defendants are entitled to judgment as a matter of law as to the issue of lease violation.
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is GRANTED. Defendants’ request for attorney’s fees is denied.
JUDGMENT is entered in favor of Defendants on Plaintiffs request for declaratory relief and damages. Costs are assessed against Plaintiff.

The circuit court correctly refused to grant declaratory judgment for Goldfinch. Goldfinch’s dual action for declaratory judgment and for breach of contract was mutually exclusive. The circuit court did not have authority to issue a judgment in law and a declaratory judgment in the same action. Because Goldfinch was asserting a breach of contract action in Count II, a remedy in law, the circuit court could not exercise its power under the Declaratory Judgment Act, Chapter 527 of the Revised Statutes. An adequate remedy at law existed and was being exercised, precluding the circuit court’s acting to grant declaratory judgment. Graham v. Goodman, 850 S.W.2d 351, 356 (Mo. banc 1993); Michigan Sporting Goods Distributors, Inc. v. Lipton Kenrick Associates, L.P., 927 S.W.2d 570, 572 (Mo.App.1996).

The circuit court also correctly granted summary judgment for Columbia W and Investment Properties in response to Goldfinch’s breach of contract action. No genuine issue of material fact was in dispute, and judgment for Columbia W and Investment Properties was appropriate as a matter of law.

Goldfinch did not dispute that the lease agreement declared that the parking area was a “common area,” and that the common areas were “at all times ... subject to the exclusive control and management of [Columbia W].” The agreement further provided that Columbia W had authority to “change the size, area or arrangement of the parking areas[.]” By agreeing to permit Columbia W to change the size and configuration of the parking lot, Goldfinch, in effect, authorized Columbia W to give exclusive use of three parking spaces to the fitness center. The lease granted this right exclusive of Goldfinch’s approval. Columbia W had no obligation under the lease to satisfy Goldfinch’s desires or needs.

Goldfinch emphasizes that the lease required Columbia W to “enforce reasonable rules and regulations with respect to the use of all ... common areas and facilities.” The provision for “reasonable rules and regulations,” it argues, would prohibit Columbia W from acting arbitrarily and capriciously in setting aside parking spaces for one of the tenants, and, whether or not Columbia W had acted reasonably would be an issue of fact that precluded summary judgment.

Goldfinch misreads the provision. It has nothing to do with setting aside parking spaces for the exclusive use of any of the tenants. Columbia W’s permitting the fitness center to claim the six parking spaces did not constitute implementation of a rule or regulation. As the term “rule or regulation” is commonly understood, Columbia W would have been implementing a rule or regulation only had it attempted to govern how parking spaces within the common area were to be used. For instance, Columbia W could enact a rule or regulation requiring that only compact cars could park in certain spaces. Had it done so, the spaces so regulated would have remained a part of the common area. In contrast, Columbia W permitted the fitness center to remove the parking spaces from the common area entirely by setting them aside for the center’s exclusive use. Those spaces were no longer subject to rules governing the common area’s use because, although they still functioned as parking for fitness center customers, they were no longer a part of the common area.

Because Goldfinch is not disputing Columbia W’s authority to reduce the parking lot’s size, the circuit court properly granted summary judgment on Goldfinch’s breach of contract claim for Columbia W and Investment Properties. We, therefore, affirm the circuit court’s judgment.

VICTOR C. HOWARD and THOMAS H. NEWTON, Judges, concur.

      . The emphasis appeared in the original.


text:
    Sondra SAMUELS, Respondent/Cross-Appellant, v. AMERICAN FAMILY INSURANCE COMPANY, Appellant/Cross-Respondent.
    Nos. WD 63776, WD 63785.
    Missouri Court of Appeals, Western District.
    April 12, 2005.

      Larry D. Coleman, Raytown, for appellant.
    Nikki Cannezzaro, Kansas City, for respondent.
   PAUL M. SPINDEN, Presiding Judge.

American Family Insurance Company appeals the circuit court’s judgment awarding $9155 to Sondra Samuels, American Family’s insured, and Samuels cross appeals. Because Samuels’ cause of action was purely a creature of statute and because the statute does not support Samu-els’ cause of action, the court lacked subject matter jurisdiction to rule on Samuels’ claim. We, therefore, vacate the circuit court’s judgment.

This dispute stems from an automobile collision involving a car that Samuels rented from Avis Rent A Car. Avis sued Samu-els after she and American Family refused to pay Avis for the car’s damage. Samu-els, in turn, sued American Family for vexatious refusal to pay. Several months before trial, American Family paid Avis, and Avis dismissed its lawsuit against Samuels. Samuels, however, persisted in her vexatious refusal to pay claim against American Family.

The parties stipulated that the only issue to be resolved by the circuit court was Samuels’ claim for vexatious refusal to pay. The circuit court ruled for Samuels but also determined that American Family’s refusal to pay was not vexatious and did not support an award of punitive damages. American Family appealed, and Samuels cross-appealed.

We vacate the circuit court’s judgment because it lacked subject matter jurisdiction. The vexatious refusal to pay statute, Section 375.420, RSMo 2000, does not apply to Samuels’ case. In authorizing a vexatious refusal to pay claim, the General Assembly made an exception for claims made under “automobile liability insurance” policies:

In any action against any insurance company to recover the amount of any loss under a policy of automobile, fire, cyclone, lightning, life, health, accident, employers’ liability, burglary, theft, embezzlement, fidelity, indemnity, marine or other insurance except automobile liability insurance, if it appears from the evidence that such company has refused to pay such loss without reasonable cause or excuse, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not to exceed twenty percent of the first fifteen hundred dollars of the loss, and ten percent of the amount of the loss in excess of fifteen hundred dollars and a reasonable attorney’s fee; and the court shall enter judgment for the aggregate sum found in the verdict.

Samuels made her claim under her insurance policy’s liability coverage, and American Family agreed that coverage was available under the policy’s liability coverage. In describing its “liability coverage,” the policy said, “[American Family] will pay damages an insured person is legally liable for because of bodily injury or property damage due to the use of a car or utility trailer.” The policy defined a car as an “insured auto, a passenger car, and a utility car,” and it defined a passenger car as “a four-wheel car of the private passenger type.” Thus, American Family was obligated under its liability coverage to pay for property damage that Samuels caused while operating the Chevrolet Lu-mina that she had rented from Avis.

Although Section 375.420 includes claims made “under a policy of automobile ... insurance,” it excludes specifically claims made under “automobile liability insurance.” Samuels’ statutory claim for vexatious refusal to pay, therefore, was not authorized, and the circuit court should have dismissed her claim. We, therefore, vacate the circuit court’s judgment, and we deny Samuels’ motion for attorney fees.

VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge, concur.

      . We added the emphasis.


text:
    James A. BLANTON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64272.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Margaret Mueller Johnson, Office of Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, David Barrett, Office of Attorney General, Jefferson City, for Respondent.
   PAUL M. SPINDEN, Presiding Judge.

James A. Blanton appeals the circuit court’s judgment denying his Rule 24.035 motion to set aside his conviction based on his pleading guilty to two counts of the Class B felony of sale of a controlled substance. The state contends that we lack jurisdiction in this action because Blan-ton’s Rule 24.035 motion was unsigned. We agree and dismiss his appeal.

Blanton filed his motion to vacate, set aside or correct the judgment and sentence on March 11, 2003, but did not sign the motion. An unsigned motion for post conviction relief is a nullity and does not invoke the circuit court’s jurisdiction. Tooley v. State, 20 S.W.3d 519, 520 (Mo. banc 2000); Malone v. State, 798 S.W.2d 149, 151 (Mo. banc 1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 128 (1991). The Supreme Court has instructed:

The signature requirement is not a hollow, meaningless technicality. It constitutes a certificate that the filing is not for any improper purpose and is well grounded in fact and primarily has the objective of the elimination from the court system of groundless actions. Requiring a signature also makes certain the party actually assents to the filing of the action on his or her behalf.

Tooley, 20 S.W.3d at 520.

Although Rule 55.03(a) gives the mov-ant an opportunity to correct the missing signature and although the record establishes that Blanton knew as early as January 20, 2005, that he had not signed his motion, Blanton never “promptly” sought to correct the deficiency. See Tooley, 20 S.W.3d at 520; Wallingford v. State, 131 S.W.3d 781 (Mo. banc 2004). Hence, we have an unsigned motion and an alleged judgment from the circuit court ruling on that unsigned motion. For jurisdiction to attach, Blanton’s signature remains a mandatory element, and his failure to sign the motion rendered it a nullity. Tooley, 20 S.W.3d at 520. Because the circuit court did not have jurisdiction when it ruled on Blanton’s motion, this court lacks jurisdiction to consider it. Hence, we dismiss Blanton’s appeal.

VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge, concur.

      . When the Supreme Court decided Malone, it required that the signature also be verified. The Supreme Court, however, eliminated the verification requirement in State v. White, 873 S.W.2d 590, 594 (Mo. banc 1994).

      . Rule 55.03(a) was amended effective January 1, 2005. Before January 1, 2005, Rule 55.03(a) said, "Every pleading, motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name or, if the party is not represented by an attorney, shall be signed by the party.... An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.”

      . In Tooley, the circuit court dismissed the movant's unsigned Rule 24.035 motion before the expiration of the 90 days within which a pro se motion could be filed. The Supreme Court ruled that the movant should have been given the opportunity to correct the missing signature on the motion pursuant to Rule 55.03(a). Tooley, 20 S.W.3d at 520.

      . In Wallingford, the circuit court dismissed the movant’s unsigned Rule 29.15 motion after the expiration of the 90 days within which a pro se motion could be filed. The movant, however, four days after the filing deadline expired, filed a motion seeking to correct the missing signature. The Supreme Court ruled that movant’s motion should not be dismissed because he promptly corrected the missing signature on the motion in accordance with Rule 55.03(a). Wallingford, 131 S.W.3d at 782.

      .To the extent that Blanton asserts that Blan-ton’s missing signature illustrates the abandonment he suffered at the hands of his appointed counsel, we are not persuaded. "If counsel’s apparent inattention results from movant’s negligence or intentional failure to act, movant is entitled to no relief other than that which may be afforded upon the pro se motion.” Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991). The missing signature on Blanton's pro se motion was due to Blanton’s negligence or his failure to act — not his attorney’s.


author: PER CURIAM.

text:
    Eric D. ABERNATHY (24.035), Appellant, v. STATE of Missouri, Respondent.
    No. WD 63162.
    Missouri Court of Appeals, Western District.
    April 12, 2005.

      Susan Lynn Hogan, Appellate Defender, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before SMITH, C.J., SPINDEN and HOLLIGER, JJ.
   Order

PER CURIAM.

Eric D. Abernathy appeals from the motion court’s order denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. The appellant pled guilty, pursuant to a plea agreement, in the Circuit Court of Ray County to three counts of tampering in the first degree, § 569.080; two counts of violating a full order of protection, § 455.085; one count of property damage in the second degree, § 569.120; one count of assault in the first degree, § 565.050; and one count of stealing, § 570.030. As a result of his convictions, he was sentenced to concurrent terms of ten years for assault, seven years for each count of tampering, one year for stealing, one year for each count of violating a full protective order, and six months in jail for property damage.

In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 24.035 motion, alleging ineffective assistance of counsel and seeking to vacate, set aside or correct his conviction for the class B felony of assault in the first degree, because, based on the evidence presented at the motion hearing, the motion court was clearly mistaken in finding that his plea counsel was not ineffective, rendering his plea of guilty involuntary, for failing to advise him that he would be required to serve 85% of the sentence imposed on the assault conviction, as provided in § 558.019.3.

We affirm, pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Gerald CRUTCHER, Appellant.
    No. WD 64035.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Margaret Mueller Johnston, Assistant Public Defender, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before SPINDEN, P.J., HOWARD and NEWTON, JJ.
   Order

PER CURIAM.

Appellant Gerald J. Crutcher (“Crutch-er”) appeals from a conviction by jury in the Circuit Court of Henry County for criminal nonsupport in violation of section 568.040. In his sole point on appeal, Crutcher argues the trial court abused its discretion by denying Crutcher’s requests to inform the jury that his Kansas conviction was reversed on appeal, because evidence of the prior conviction was prejudicial.

We have reviewed the parties’ briefs 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 judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Kevin D. SMITH, Appellant.
    No. WD 63421.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Sarah Weber Patel, Appellate Defender, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before: SPINDEN, P.J., HOWARD and NEWTON, JJ.
   Order

PER CURIAM.

Kevin Smith appeals from the judgment entered on a jury verdict finding him guilty of domestic assault in the first degree, armed criminal action, and felony stealing. In his sole point on appeal, Smith claims that the trial court plainly erred in admitting evidence of his prior bad acts against the victim.

We affirm. Rule 30.25(b).


author: JEFFREY W. BATES, Chief Judge.

text:
    In the Matter of the CARE AND TREATMENT OF James Alvin FRANCIS, Respondent-Appellant.
    No. 26162.
    Missouri Court of Appeals, Southern District, Division Two.
    April 18, 2005.

      Emmett D. Queener, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alana M. Barragan-Scott, Deputy Solicitor, Jefferson City, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

After a bench trial, James Francis (“Francis”) was found to be a sexually violent predator (“SVP”) pursuant to the Sexually Violent Predators Civil Commitment Act (“SVPCCA”), §§ 632.480-.513. Francis appeals from the judgment ordering him committed to the custody of the Department of Mental Health for control, care and treatment until such time as his mental abnormality has so changed that he is safe to be at large. In Francis’ sole point relied on, he challenges a single factual finding made by the trial court: “That [Francis’] mental abnormality makes him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility.” Francis claims there is insufficient evidence to prove this fact beyond a reasonable doubt because: (1) destructive contradictions within the testimony of Dr. Lucinda Baker, the State’s expert, deprived her testimony of probative value; and (2) the court’s judgment rests on mere speculation as to Francis’ future behavior. Finding these arguments to be without merit, we affirm.

I. Standard of Review

In order to have Francis committed to the custody of the Department of Mental Health for treatment, the State had to prove beyond a reasonable doubt that: (1) Francis has a congenital or acquired condition affecting his emotional or volitional capacity that predisposes him to commit sexually violent offenses to a degree that causes him serious difficulty in controlling his behavior; and (2) he is more likely than not to engage in predatory acts of sexual violence if not confined. § 682.480(2); § 632.480(5); § 632.495; Thomas v. State, 74 S.W.3d 789, 791-92 (Mo. banc 2002); In re Coffel, 117 S.W.3d 116, 121 (Mo.App.2003). Francis only challenges the sufficiency of the evidence to establish the second element.

We assess the sufficiency of the evidence to support a judgment of commitment in a SVPCCA case by the same standard used in criminal cases. See Smith v. State, 148 S.W.3d 330, 335 (Mo. App.2004); In re Care and Treatment of Collins, 140 S.W.3d 121, 125-26 (Mo.App.2004); In re Care and Treatment of Pate, 137 S.W.3d 492, 496 (Mo.App.2004). Review of a bench-tried criminal case is the same as for a jury-tried case. State v. Garriott, 151 S.W.3d 403, 410 (Mo.App.2004); State v. Daniels, 18 S.W.3d 66, 67-68 (Mo.App.2000). Appellate review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense was established beyond a reasonable doubt. State v. Mann, 129 S.W.3d 462, 465 (Mo.App.2004); State v. Thompson, 112 S.W.3d 57, 62 (Mo.App.2003); Daniels, 18 S.W.3d at 68. It is not our function to reweigh the evidence. State v. Winsor, 110 S.W.3d 882, 885 (Mo.App.2003). Instead, we only determine whether the judgment is supported by sufficient evidence. Id. “The credibility and weight of testimony are for the fact-finder to determine. The fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case.” State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002) (citation omitted).

When the sufficiency of the evidence is challenged, we view the evidence in the light most favorable to the trial court’s judgment, “accepting as true all evidence favorable to the state, including all favorable inferences drawn from the evidence and disregarding all contrary evidence and inferences.” Whitnell v. State, 129 S.W.3d 409, 415 (Mo.App.2004). In reviewing the evidence, however, “this Court will not give the State the benefit on any unreasonable, speculative, or forced inferences; nor will we supply any missing evidence.” In re Care and Treatment of Burgess, 147 S.W.3d 822, 830 (Mo.App.2004). We will not reverse a trial court’s decision based on insufficiency of the evidence unless there is a complete absence of probative facts supporting the judge’s conclusion. See Smith, 148 S.W.3d at 335. The following summary of the evidence has been prepared in accordance with these principles.

II. Statement of Facts

Francis had a long pattern of repeated sexual offenses against children. In 1969, he married E.M. She already had a number of children from a prior relationship. These children included four young daughters: A.L.M., age 6; R.M., age 4; A.M.M., age 3; and S.M., age 2. From 1969 through 1972, Francis repeatedly molested all four of these young girls. On multiple occasions, he simulated sexual intercourse with them by placing his penis between their legs and masturbating to ejaculation. He frequently forced them to endure digital penetration of their vaginas with his fingers. On one occasion, he forced R.M. to have either vaginal or anal intercourse with him. Francis used fear, force and threats of violence to accomplish his sexual abuse of these children. During one incident involving A.L.M., for example, Francis placed a knife to her throat and threatened to kill her if she did not allow him to abuse her.

In 1972, a complaint was made against Francis accusing him of molesting a 7-year-old girl. When that information was relayed to the prosecutor, he reported that Francis was “known for that sort of thing, he had molested children previously.” In lieu of charges being filed, Francis was treated for a month at the Farmington State Hospital.

After Francis was released, he returned to live with E.M. and renewed his abuse of her four daughters. In 1974, Francis was sent to Farmington again for three days of treatment after he was reported to have been exposing himself to E.M.’s children and threatening to molest them. In 1975, he was arrested and charged with molesting A.M.M. Afterwards, Francis threatened to kill A.M.M. if she testified against him. Francis eventually pled guilty to this offense and was found to be a criminal sexual psychopath pursuant to §§ 202.700-.770 RSMo (1969). He was committed to Farmington for treatment for five years.

Francis was conditionally released from Farmington in 1980. In August 1980, Francis had anal intercourse with W.L., a 12-year-old boy. Francis also sexually assaulted J.L. who was W.L.’s 11-year-old sister, by placing his penis between her legs and masturbating until he ejaculated. In 1981, Francis pled guilty to the class B felony of sodomy for assaulting W.L. and to the class D felony of sexual abuse in the first degree for assaulting J.L. Francis was sentenced to five-years imprisonment on the sodomy conviction and two-years imprisonment on the first degree sexual abuse offense. The sentences were ordered to run consecutively.

Francis was released from prison in January 1988. He was rearrested in June 1989 and charged with the class B felony of sodomy for forcing C.S., a 5-year-old boy, to perform oral sex on Francis and for forcing C.S. to engage in anal intercourse with Francis. Francis pled guilty to this charge and was sentenced to serve ten years in prison.

In May 1999, the State filed a petition in the probate division of the Circuit Court of Butler County, Missouri. The petition alleged Francis was a SVP and should not be released from prison at the expiration of his sentence. After conducting a hearing, the trial court concluded there was probable cause to believe Francis was a SVP and should be detained for evaluation. At the State’s request, Francis was evaluated by Dr. Lucinda Baker (“Dr. Baker”), a psychologist employed by the Mid-Missouri Mental Health Center in Columbia, Missouri.

After remand (see note 2), this case was tried to the court. At the State’s request, the trial judge admitted in evidence the following documentary evidence: (1) a certified copy of Francis’ 1981 conviction for sodomizing W.L.; (2) a certified copy of Francis’ 1981 conviction for sexually abusing J.L.; (3) a certified copy of Francis’ 1989 conviction for sodomizing C.S.; and (4) transcripts of the testimony given at the first trial by A.L.M., R.M., A.M.M., and S.M. in which they described in detail how they were sexually abused by Francis over a period of six years. The State’s only live witness was Dr. Baker.

After interviewing Francis and examining “hundreds of pages” of records concerning him, Dr. Baker testified Francis suffers from the mental abnormality of pedophilia. This condition consists of recurrent and intense fantasies, impulses or behaviors directed toward prepubescent children and children who are below the age of consent. Based on Francis’ pattern of offenses, he is attracted to both boy and girl children. This mental abnormality of pedophilia predisposes Francis to commit sexually violent crimes. Pedophiles cannot be cured; the best that can be achieved is that they learn to control their pedophilia through treatment or other methods. As Dr. Baker explained, however, Francis has not accepted, or not responded to, treatment while committed or incarcerated. Francis showed little response to treatment he received at Farmington while committed from 1975-80 and while detained since 1999. He was quite resistant to treatment and had not received any treatment “that would modify in any way his sexual preferences.” While Francis was incarcerated, he started the first phase of the Missouri Sex Offenders Program (“MOSOP”), but he never completed the second treatment phase. He was offered the opportunity to do so twice, but he refused.

The mental abnormality of pedophilia causes Francis serious difficulty in controlling his behavior. Despite having served lengthy prison sentences, something is compelling him to reoffend regardless of the consequences. He is not deterred by incarceration. Francis also has very minimal insight into why he molests children. He attributes his behavior to anger, nervousness and/or the inability to control himself.

Dr. Baker opined that Francis’ mental abnormality of pedophilia makes him more likely than not to engage in predatory acts of sexual violence if not confined to a secure facility. She identified the following characteristics, all drawn from the relevant professional literature on the subject, which identify Francis as a recidivist sex offender: (1) the continuous and frequent pattern of sexual offenses since 1969; (2) poor social competence; (3) uncompleted sex offender treatment; (4) strong preoccupation with having sex with children; (5) his child victims include persons outside his family; and (6) his victims include children of both sexes. These factors all increase the risk of recidivism. In particular, men who molest children and men who have male victims tend to be more hardcore recidivists.

Dr. Baker also examined some moderating factors that reduce this risk, but she did not find them to be significant. For example, Francis’ only plan to avoid relapse was to “avoid children. It seemed rather unrealistic.” Likewise, Francis’ age at the time of the second trial (62 or 63) was only a slight moderating factor because, unlike rapists, the curve by which a pedophile’s offending behavior decreases is slow and gradual. At the conclusion of Dr. Baker’s direct examination, she testified to a reasonable degree of psychological certainty that, as a result of Francis’ mental abnormality of pedophilia, he is more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.

The trial court was persuaded by the evidence presented and made a specific factual finding that “[Francis’] mental abnormality makes him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility.” This appeal followed.

III. Discussion and Decision

The only issue presented by Francis’ appeal is whether the above factual finding is supported by the evidence and the reasonable inferences derived therefrom, viewed in a light most favorable to the judgment. Francis argues the evidence is insufficient to prove this fact beyond a reasonable doubt because: (1) destructive contradictions within the testimony of Dr. Baker, the State’s expert, deprived her testimony of probative value; and (2) the court’s judgment rests on mere speculation as to Francis’ future behavior.

Francis first argues Dr. Baker’s opinion concerning the likelihood that Francis would reoffend rests on speculation. Francis begins his argument by noting that Dr. Baker relied on a published study by Dr. Hansen and Dr. Bussiere (“the H & B study”) to identify risk factors relating to recidivism. Francis bases his argument on the fact that the H & B study derived a general recidivism rate for all sex offenders as a group at only 13%. Francis claims Dr. Baker’s testimony that Francis is more likely than not to reoffend is destructively inconsistent with this statistical recidivism rate. We disagree.

Dr. Baker explained the H & B study is a meta-analysis, which is performed by combining the results of many different studies in an attempt to give the meta-analysis greater statistical significance. When Dr. Baker formulated her opinions and conclusions about risk factors, she used this H & B meta-analysis study in addition to the other clinical literature on the subject because the H & B study combined “all manner of sex offenses” in its analysis. It was not specific to child molesters. In particular, Dr. Baker did not believe the general 13% reoffense rate derived from the meta-analysis methodology accurately reflected the recidivism rate for child molesters because some types of offenders have a higher reoffense rate than others. Studies looking specifically at recidivism rates for child molesters gave a truer reoffense rate. Therefore, Dr. Baker’s testimony that Francis was more likely than not to reoffend is not speculative because she adequately explained why the H & B study’s 13% statistical recidivism rate for all sex offenders did not apply to Francis.

In Dr. Baker’s opinion, the most important factor relating to the risk of recidivism is “patterns of offending, and past behavior is the best predictor of future behavior. So if you have one offense, it doesn’t carry as much weight as if you have three or four, plus three or four accusations that weren’t adjudicated. And that sort of number has an impact.” In considering the weight to give Dr. Baker’s opinion, the trial judge had a right to consider the facts concerning Francis’ history of offenses against children. Francis engaged in frequent molestation of A.M.M., R.M., A.L.M., and S.M. from 1969-72. After receiving one month of treatment, Francis immediately returned to his pattern of molesting these same girls. An additional three days of treatment in 1974 had no effect in curbing his pedophilic tendencies. He persisted in molesting these four children until he was sent to Farmington in 1975. Five years of treatment had no effect in curbing his pedophilic tendencies. He was released from Farmington in 1980 and molested two new victims within a few months of being released. After an additional 7 years of incarceration, he molested C.S., a 5-year-old boy, within 18 months of being released from prison.

Given this persistent pattern of pedophilia, the trial judge had every right to believe that the H & B study’s 13% statistical recidivism rate for all sex offenders did not apply to Francis and to conclude that he was more likely than not to reoffend if not confined to a secure facility. The judge’s decision concerning Francis’ future behavior was not based on speculation, but on a solid evidentiary foundation.

Francis next argues that Dr. Baker’s testimony about Francis’ recidivism risk is speculative because failure to complete treatment is only a moderate recidivism risk factor. This argument ignores Dr. Baker’s testimony that pedophiles cannot be cured and only learn to control their behavior through treatment or some other means. In the case at bar, attempts had been made to curb Francis’ pedophilia through treatment and incarceration. Neither worked. Francis’ recurring pattern of sexually abusing children provided ample factual corroboration for Dr. Baker’s testimony. Furthermore, Dr. Baker identified a number of other risk factors, in addition to failure to complete treatment, which supported her conclusion about Francis’ individualized recidivism risk. Once again," the trial court had a right to consider Dr. Baker’s testimony as a whole, in conjunction with Francis’ offense history, in order to reach a conclusion concerning Francis’ risk of recidivism. The judge’s determination that Francis’ mental abnormality of pedophilia makes him more likely than not to engage in predatory acts of sexual violence if not confined to a secure facility is not speculative and is supported by the evidence.

Having considered the various challenges made by Francis to Dr. Baker’s testimony, we hold that all of these matters go only to the weight to be given to her opinions and conclusions. None con-statute “destructive contradictions” that deprive her testimony of probative value, as Francis suggests. It was the trial court’s responsibility to weigh the facts and reach a conclusion about the likelihood that Francis will continue to engage in predatory acts of sexual violence because of his pedophilia. The judge’s conclusion concerning Francis’ future behavior is supported by substantial evidence. Therefore, the judgment is affirmed.

PARRISH, P.J., and SHRUM, J„ concur.

      . All references to statutes are to RSMo (2000), unless otherwise specified.

      . This is the second appeal in this case. Francis was originally found to be a SVP by a unanimous jury verdict at his first trial. That judgment was reversed because of an error in the jury instructions. See Care and Treatment of Francis v. State, 100 S.W.3d 807, 808 (Mo. banc 2003). On remand, Francis waived his right to a jury trial.

      . This institution is now known as the Southeast Missouri Mental Health Center.

      . These records included documents concerning Francis from the Missouri Department of Corrections, medical records from his confinement at Farmington, interview notes, police reports, offense reports, victim statements, FBI identification records and the order of commitment declaring him to be a criminal sexual psychopath.

      . Francis also refers in his argument to a Department of Corrections study containing some statistical information comparing reof-fense rates for inmates who did or did not complete MOSOP. While Dr. Baker was asked about this study on cross-examination, she had not reviewed it, and she described it as an unpublished in-house study that was not subjected to peer review. She did not authenticate this study as the type of information reasonably relied upon by experts in her field in forming opinions on the subject. See § 490.065.3. Therefore, we will not address Francis' arguments insofar as they are based on the results of this unauthenticated study.

      . As relevant here, the doctrine of “destructive contradictions” is only properly invoked if Dr. Baker’s testimony is so inherently inconsistent or self-destructive on a vital point or element that reliance on her testimony is necessarily precluded. See State v. Cole, 148 S.W.3d 896, 902 (Mo.App.2004).


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Ann Marie CARPENTER, Plaintiff-Appellant, v. Thomas James CARPENTER, Defendant-Respondent.
    No. 26667.
    Missouri Court of Appeals, Southern District, Division One.
    April 18, 2005.

      Christy D. Cramer Preston, Legal Services of Southern Missouri, Rolla, for plaintiff-appellant.
    No Appearance for defendant-respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Ann Marie Carpenter (“Mother”) appeals from the judgment of the Circuit Court of Pulaski County ordering her to pay guardian ad litem (“GAL”) fees in the amount of $1,710. We reverse and remand.

Two children were born of Mother’s marriage to Thomas James Carpenter (“Father”): R.J.C. and C.A.C., born April 1, 1990 and December 3, 1991, respectively. On April 10, 1996, the marriage was dissolved in a judgment that included custody and visitation provisions for the minor children. On December 27, 2001, Father moved to modify the decree of dissolution and, as part of his motion, requested that the trial court appoint a GAL for the minor children. It appointed Dawn Clayton.

Mother was represented during these proceedings by Legal Services of Southern Missouri (“LSSM”), which filed, on her behalf, a “Certificate of Inability to Pay Costs, Fees, and Expenses” pursuant to Section 514.040.3. The certificate stated that Mother was unable to pay the costs, fees, and expenses necessary to defend or prosecute the action and that “[LSSM] is a not-for-profit Missouri Corporation providing legal services to the poor and is funded in substantial part by money appropriated by the General Assembly of the State of Missouri.” Mother testified that she is disabled and receives Supplemental Security Income each month in the amount of $552.

A hearing on Father’s motion to modify was held on August 14-15, 2003, and the trial court entered a “Judgment Pendente Lite” on December 11, 2003, ordering that “primary physical custody” of the children be transferred from Mother to Father beginning on December 22, 2003, until further order of the court. The court also ordered the parties to appear for a “review” on June 10, 2004. As part of the “Judgment Pendente Lite,” the trial court awarded GAL fees in the amount of $3,000, with $2,000 to be paid by Father and $1,000 to be paid by Mother. Mother filed a motion for reconsideration making numerous claims, including that the trial court lacked jurisdiction/discretion to assess GAL fees against her. The trial court denied her motion and she appealed from the “Judgment Pendente Lite,” claiming that the trial court erred in assessing GAL fees against her because she was represented by legal services. This court dismissed the appeal for lack of appellate jurisdiction on October 4, 2004. See Car penter v. Carpenter, No. 26177 (Mo.App. S.D. filed October 4, 2004).

On August 27, 2004, while the appeal from the “Judgment Pendente Lite” was pending, the trial court entered a judgment and decree finding a substantial and continuing change of circumstances warranting a modification of the decree of dissolution of marriage. It awarded joint legal and physical custody of the children to both parents, but designated Mother’s residence as the children’s address for health and educational purposes. The trial court stated, however, that it was “re-tainting] jurisdiction regarding the issue of [GALj’s fees which is presently on appeal.” On October 20, 2004, following dismissal of Mother’s first appeal by this court, the trial court entered a judgment and order assessing GAL fees of $5,130, with Father to pay $3,420 and Mother to pay $1,710. This appeal followed.

Mother presents one point on appeal. She claims the trial court erred in assessing GAL fees against her because she was represented by a legal services organization which determined that she was indigent and certified the same by filing a certificate with the clerk of the trial court.

The standard of review for court-tried cases is well established. The judgment of the trial court will be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Before addressing the merits in this case, we are required, sua sponte, to determine whether we have jurisdiction. Superlube, Inc. of Camdenton v. Innovative Real Estate, Inc., 147 S.W.3d 880, 881 (Mo.App. S.D.2004). If there is no final judgment, we lack jurisdiction and may not consider the merits. Id. Here, there are two documents denominated “judgment.” The first document was entered on August 27, 2004, and disposes of all of the issues in the suit except for GAL fees. As this judgment did not dispose of all of the issues, it was not a final judgment. The second “judgment” was entered on October 20, 2004, and resolved the remaining issue of GAL fees. The notice of appeal was timely filed after entry of the second judgment. The two documents together make up the final judgment that is appealed in this case, and therefore we have jurisdiction to consider the appeal. See Shelby v. Shelby, 130 S.W.3d 674, 677 (Mo.App. S.D.2004) (The trial court first entered its “Amended Partial Findings of Fact and Conclusions of Law[,] Judgment and Decree of Dissolution of Marriage” on April 10, 2002, and then on October 23, 2002, entered its “Second Amended Findings of Fact and Conclusions of Law, Judgment and Decree of Dissolution of Marriage,” which together made up the final judgment from which the appeal was taken.).

Section 514.040.3 states:

Where a party is represented in a civil action by a legal aid society or a legal services or other nonprofit organization funded in whole or substantial part by moneys appropriated by the general assembly of the state of Missouri, which has as its primary purpose the furnishing of legal services to indigent persons, or by private counsel working on behalf of or under the auspices of such society, all costs and expenses related to the prosecution of the suit may be waived without the necessity of a motion and court approval, provided that a determination has been made by such society or organization that such party is unable to pay the costs, fees and expenses necessary to prosecute or defend the action, and that a certification that such determination has been made is filed with the clerk of the court.

Mother argues that as she was represented by LSSM, an organization funded in substantial part by moneys appropriated by the general assembly which has as its primary purpose the provision of legal services to indigent people, and that as LSSM filed a certification with the trial court stating that it had determined that she was unable to pay the costs, fees and expenses necessary to prosecute or defend the suit, she is not required to pay fees to the GAL.

In support of her argument, Mother cites State ex rel. Holterman v. Patterson, 24 S.W.3d 784 (Mo.App. E.D.2000). That case involved a motion to modify a decree of dissolution in which the mother sought a writ of prohibition to prevent the trial court from enforcing an order requiring her to pay GAL fees. Id. at 785. The mother, represented in the case by Legal Services of Eastern Missouri, Inc., filed a motion to modify a decree of dissolution; a certificate of inability to pay costs, fees and expenses; and a motion to join third party and order fees paid out of public funds, on the grounds of Section 514.040.3, RSMo Cum.Supp.1999. Id. The trial court appointed a GAL whose motion for security for GAL fees was sustained and the mother was ordered to pay one-third of the $1,000 security deposit. Id. The appellate court examined Section 514.040.3, RSMo Cum.Supp.1999 and found that Legal Services of Eastern Missouri had fulfilled the only requirements to waive costs and fees in that it made a determination that mother could not pay the fee and filed a certificate demonstrating that. Id. at 786. The court held that “[bjecause the statute provides that fees may be waived without court approval or motion, a court does not have jurisdiction or discretion to assess cost[s] or fees against a party, if those actions have been taken.” Id. Accordingly, the court issued a “peremptory writ of prohibition” directing the trial court to set aside its order requiring the mother to pay one-third of the GAL fees. Id.

Holterman is controlling in this case. Here, the record demonstrates that LSSM filed a certificate with the trial court stating that it had determined that Mother was unable to pay costs, fees, and expenses. The certificate also demonstrates that LSSM is funded in substantial part by moneys appropriated by the general assembly and has as its purpose the provision of legal services to indigent persons. Therefore, under Holterman and Section 514.040.3, the trial court had no discretion to order Mother to pay GAL fees.

We must reverse that portion of the judgment ordering Mother to pay GAL fees in the amount of $1,710 and remand the case to the trial court for further proceedings relating to the remaining GAL fees. With regard to that issue, we note that Section 452.423 governs the appointment of GALs in cases such as this. It states that the GAL

shall be awarded a reasonable fee for such services to be set by the court. The court, in its discretion, may: (1) Issue a direct payment order to the parties. If a party fails to comply with the court’s direct payment order, the court may find such party to be in contempt of court; or (2) Award such fees as a judgment to be paid by any party to the proceedings or from public funds....

Section 452.423.5, RSMo Cum.Supp.2004. In the event the trial court considers awarding GAL fees out of public funds, we refer it to the cases of Meyer v. Meyer, 842 S.W.2d 184 (Mo.App. E.D.1992), and Sweeten v. Watie, 842 S.W.2d 190 (Mo.App. E.D.1992).

PREWITT and RAHMEYER, JJ., concur.

      . The record does not contain the original judgment and decree of dissolution.

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

      . Section 452.375 does not provide for "primary physical custody.”

      . Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2004).

      . The language of the statute has not changed between the publishing of Holterman and the present case.


author: JERRY L. SMITH, J.,

text:
    STATE of Tennessee v. Barry Ray LONG.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Assigned on Briefs Jan. 6, 2004.
    June 16, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 15, 2004.
    Mike Mosier, Jackson, Tennessee, for the appellant, Barry Ray Long.
    Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Thomas A. Thomas, District Attorney General, for the ap-pellee, State of Tennessee.
   OPINION

JERRY L. SMITH, J.,

delivered the opinion of the court,

in which DAVID G. HAYES, and THOMAS T. WOODALL, JJ.,

joined.

The Weakley County Grand Jury indicted the defendant for manufacturing not less than .5 ounce or more than 10 pounds of marijuana. The Weakley County Sheriffs Department found the marijuana pursuant to a search of the defendant’s home based on a search warrant. The sheriffs department received the search warrant based on information garnered in a non-consensual warrantless search of a portable shed behind the defendant’s home. Due to previous drug-related charges which were later dismissed, the portable shed had been the subject of forfeiture proceedings in 2000. The defendant made no efforts to contest the forfeiture, but the sheriffs department also made no efforts to remove the portable shed. The defendant filed a motion to suppress the evidence found as a result of the search of the portable shed. After a hearing, the trial court denied the motion. The defendant then entered a plea of guilty and purported to reserve this certified question for appeal: Whether or not the search of the storage shed predicated on a search warrant was preceded and based upon a prior warrantless search. Because of the ambiguity of the certified question as presented, we dismiss the appeal.

Factual Background

On January 6, 2003, the Weakley County Grand Jury indicted the defendant for manufacturing not less than .5 ounce or more than 10 pounds of marijuana. The defendant filed a motion to suppress the marijuana obtained from his home. On March 20, 2003, the trial court held a hearing and subsequently denied the motion to suppress by written order. The trial court’s findings were as follows:

The facts are undisputed. In the year 2000, law enforcement officers found that the defendant was growing marijuana in a portable building which he owned and which was located on his land. An order of forfeiture was entered on September 22, 2000, ordering that the building be forfeited to Weakley County, Tennessee. Although the 2000 case against the defendant was dismissed because of an improper search, the defendant did not contest the forfeiture warrant. Following the order of forfeiture, crime scene tape was put around the building. The building was not locked or secured.
The sheriffs department made no effort to sell or otherwise dispose of the building, but left it upon the defendant’s property.
In October 2002, the sheriffs department received a tip that the defendant was growing marijuana in the portable building. After conferring with the District Attorney General, the sheriff concluded that he did not have probable cause to obtain a search warrant, but he also concluded that one was not necessary.
On or about October 15, 2002, deputies went to the defendant’s house and told the defendant they were there to inspect the portable building. The building was located behind the defendant’s house. The defendant asked if they had a search warrant and was told that a search warrant was not necessary. During the search, the deputies found a substantial amount of marijuana and drug paraphernalia.
The defendant argues that the State should have moved the portable building from the defendant’s land within a reasonable period óf time which the State did not do. Accordingly, the State did not have the right to search the building. The State essentially argues that it was the county’s building and that the officers had the right to enter it if they chose to do so.
The ownership of the building by Weakley County is not at issue. The Court finds no authority for requiring the State to dispose of the building within any specific time period. Therefore, the Court finds the State had the right to enter the building, and the defendant has no standing to contest their entry. The motion to suppress is denied.

On April 24, 2003, the defendant pled guilty, and the trial court sentenced him to two years in community corrections. The defendant’s guilty plea was entered pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure reserving a certified question. The certified question purportedly reserved is: Whether or not the search of the storage shed predicated on a search warrant was preceded and based upon a prior warrantless search. The defendant filed his notice to appeal on May 14, 2003.

Analysis

This Court is unable to discern the meaning of the certified question. The certified question refers to “the search of the storage shed predicated on a search warrant.” However, in the trial court’s findings and in the stipulation of facts it is clearly stated that there was no search warrant involved with the search of the portable shed. In fact, according to the briefs of both parties, the issue is the very fact that there was no search warrant and that the defendant did not give consent for the search of the portable shed. In addition, if we are meant to analyze the September 2000 search of the portable shed, we do not have an adequate record to address the legality of that search since that search does not form the basis of the conviction before us.

Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure sets out the requirements for an appeal based upon a certified question as the following:

(A) the judgment of the conviction, or other document to which such judgment refers that is filed before the notice of appeal, must contain a statement of the certified question of law reserved by defendant for appellate review;
(B) The question of law must be stated in the judgment or document so as to identify clearly the scope and limits of the legal issue reserved; (emphasis supplied)
(C) The judgment or document must reflect that the certified question was expressly reserved with the consent of the state and the trial judge; and
(D) The judgment or document must reflect that the defendant, the state, and the trial judge are of the opinion that the certified question is dispositive of the case....

The purported certified question of law in this case does not “identify clearly the scope and limits of the legal issue”. Therefore, we can only conclude that the certified question does not meet the strict requirements of Rule 37(b)(2)(i) of Tennessee Rules of Criminal Procedure. See State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn.1996); State v. Preston, 759 S.W.2d 647, 650 (Tenn.1988) (holding requirements of Rule 37(b)(2)(I) or (iv) are mandatory and jurisdictional).

Conclusion

In light of the foregoing this appeal is DISMISSED.