author:
McANULTY, Judge.
      GUIDUGLI, Judge,

text:
    Victor Lamont HUMPHREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-CA-000906-MR.
    Court of Appeals of Kentucky.
    May 21, 2004.
    Rehearing Denied July 2, 2004.
    Discretionary Review Denied by Supreme Court Feb. 9, 2005.

      Gail Robinson, Frankfort, KY, for appellant.
    Albert B. Chandler III, Attorney General of Kentucky, Ian G. Sonego, Assistant Attorney General, Frankfort, KY, for ap-pellee.
    Before GUIDUGLI, McANULTY, and TAYLOR, Judges.
   OPINION

McANULTY, Judge.

Victor Lamont Humphrey (Humphrey) appeals from an order of the Jefferson Circuit Court denying his motion under RCr 11.42 seeking to vacate an earlier judgment of the Jefferson Circuit Court sentencing him to a total of 10 years in prison for two counts of complicity to commit second-degree arson. Humphrey was a juvenile at the time the offenses were committed.

Humphrey’s primary contention is that his waiver of his right to a preliminary hearing in the juvenile court prior to the transfer of his case to the circuit court was not knowingly and intelligently given. Humphrey seeks to vacate the final judgment of the Jefferson Circuit Court and remand his case to juvenile court. At a minimum, Humphrey requests an eviden-tiary hearing on his claims. For the reasons explained below, this Court concludes that there are material issues of fact that cannot be conclusively resolved by an examination of the record, necessitating an evidentiary hearing. However, we further conclude that Humphrey failed to establish any factual basis which should have caused the district court to experience reasonable doubt as to his competence to stand trial. Consequently, the trial court’s order is vacated and remanded in part and affirmed in part.

Humphrey was originally charged with two counts of second-degree arson and nine counts of third-degree arson for his alleged involvement in setting two garage fires, the first fire occurring on November 2, 1999, and the second on June 4, 2000. At the time of the June 2000, fire, Humphrey had just turned fifteen years old. For clarity’s sake, we note here that Humphrey was represented by three different attorneys during the proceedings against him. The first represented him in district court. The second, whose representation is at issue in this appeal, represented Humphrey when his case was transferred from district court to circuit court. The third attorney represented Humphrey during probation revocation proceedings.

In October of 2000, Humphrey signed a Waiver of Rights form in the district court. As a result, the district court did not conduct the preliminary hearing mandated by Kentucky Revised Statutes (KRS) 640.010(2) “to determine if the child should be transferred to Circuit Court as a youthful offender.” Instead, the district court issued an order transferring the case to the circuit court. On October 20, 2000, prosecutor Brian Good filed an information charging Humphrey with two counts of complicity to commit second-degree arson. Humphrey entered a guilty plea to both charges, and the circuit court sentenced him on December 1, 2000, to ten years on each count -to run concurrently for a total of ten years, probated for five years. Ultimately, on February 1, 2002, the circuit court revoked Humphrey’s probation for violations of conditions of his probation.

Humphrey did not file a direct appeal of the judgment of conviction. After the circuit court revoked his probation, he filed a motion under RCr 11.42 to vacate the final judgment and remand his case to juvenile court. After the Commonwealth failed to file a response to Humphrey’s RCr 11.42 motion within the time prescribed by RCr 11.42(4), Humphrey filed a motion to grant his RCr 11.42, or alternatively, to schedule an evidentiary hearing. Eventually, the Commonwealth did file a response, and the trial court summarily denied Humphrey’s RCr 11.42 motion, precipitating this appeal.

Humphrey presents a number of claims for our review. First, Humphrey argues that he could not waive his right to a transfer hearing. In the alternative, Humphrey argues that if he could waive his right to a transfer hearing, he did not do so knowingly and intelligently. Second, Humphrey asserts that he was denied effective assistance of counsel by the action and inaction of the attorney that represented him during the waiver to circuit court and the subsequent entry of the guilty plea. Third, Humphrey contends that the district court deprived him of due process by failing to conduct a competency hearing. Finally, Humphrey argues that, at a minimum, the trial court should have conducted an evidentiary hearing on his motion.

I. WAIVER OF PRELIMINARY HEARING IN DISTRICT COURT

For the purposes of the following discussion, the preliminary hearing established in KRS 640.010(2) may be referred to as a “preliminary hearing” or a “transfer hearing” or a “waiver hearing.” Humphrey argues that KRS 635.020(2) and KRS 640.010(2) mandate a preliminary hearing prior to a transfer to circuit court. KRS 635.020(2) states as follows:

If a child charged with a capital offense, Class A felony, or Class B felony, had attained age fourteen (14) at the time of the alleged commission of the offense, the court shall, upon motion of the county attorney made prior to adjudication, and after the county attorney has consulted with the Commonwealth’s attorney, that the child be proceeded against as a youthful offender, proceed in accordance with the provisions of KRS 640.010.

As Humphrey was charged with two counts of second-degree arson, class B felonies, and he had reached age fourteen (14) at the time of the alleged commission of the offenses, KRS 640.010(2) is applicable. KRS 640.010(2), in relevant part, provides as follows:

In the case of a child alleged to be a youthful offender by falling within the purview of KRS 635.020(2), (3), (5), (6), (7), or (8), the District Court shall, upon motion by the county attorney to proceed under this chapter, and after the county attorney has consulted with the Commonwealth’s attorney, conduct a preliminary hearing to determine if the child should be transferred to Circuit Court as a youthful offender. The preliminary hearing shall be conducted in accordance with the Rules of Criminal Procedure.

As set out in KRS 640.010(2)(a), the purpose of the preliminary hearing is for the district court to determine “if there is probable cause to believe that an offense was committed, that the child committed the offense, and that the child is of sufficient age and has the requisite number of prior adjudications, if any, necessary to fall within the purview of KRS 635.020.” The import of a child being transferred from district court to circuit court is that the child loses the greater procedural protections and provisions of the juvenile justice system and is held for trial under adult procedures. See Kent v. United States, 388 U.S. 541, 547, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

Humphrey points out that in utilizing the word “shall” throughout KRS 635.020(2) and KRS 640.010(2), the legislature intended there be no waiver of the preliminary hearing by the minor; thus, Humphrey’s waiver was a nullity. We disagree. Voluntary waiver by the minor of the preliminary hearing in KRS 640.010(2) is not an aberration. In so concluding, we refer to KRS 600.010(2)(e), which specifies that “[ujnless otherwise provided, such protections [of KRS Chapters 600 to 645, the Kentucky Unified Juvenile Code] belong to the child individually and may not be waived by any other party.” In other words, in this provision, the legislature is signaling its intent that a child may waive any of the rights set out in the Kentucky Unified Juvenile Code, unless otherwise provided. See D.R. v. Commonwealth, Ky. App., 64 S.W.3d 292, 296 (2001) (holding that, under KRS 610.060, “a child may waive the right to counsel only if that child has first been appointed, and consulted with, counsel concerning the waiver.”)

In concluding that a child may voluntarily waive the preliminary hearing, we further rely on the nature of the proceeding, which is dispositional rather than adjudicatory. On this point, the preliminary hearing “does not result in any determination of guilt or innocence or in confinement or punishment.” State v. Muhammad, 237 Kan. 850, 703 P.2d 835, 839-40 (1985) (holding that, under Kansas state law, a court may conduct a transfer hearing “without a voluntary waiver of appearance by the juvenile if counsel is present and allowed to participate on the juvenile’s behalf.”) Moreover, applying the reasoning of Commonwealth v. Townsend, Ky., 87 S.W.3d 12, 15 (2002), if a defendant can waive his constitutional right to a trial by jury, which he can, there is no reason why he cannot also waive his statutory right, under KRS 640.010, to a preliminary hearing to determine if he should be transferred to circuit court as a youthful offender. (Toivnsend held that a defendant could waive the “finally discharged” provision of KRS 640.030(2)(b).)

Humphrey further supports his argument that the preliminary hearing cannot be waived by citing Benge v. Commonwealth, Ky., 346 S.W.2d 311 (1961) for the proposition that, since a transfer hearing is a jurisdictional requirement, a juvenile is unable to waive that hearing. Benge, however, was a direct appeal case from a judgment entered on a verdict, and this case is not. Benge, 346 S.W.2d at 312. This case is a collateral attack under RCr 11.42 of a guilty plea, therefore, we believe Schooley v. Commonwealth, Ky.App., 556 S.W.2d 912 (1977), is applicable on this point.

In Schooley, the appellant, Lonnie Schooley, filed a motion under RCr 11.42 in which he argued that the circuit court never acquired jurisdiction over the charges against him because there was no valid transfer of the case by the juvenile court. Id. at 914. In analyzing the issue, the court considered the fact that circuit courts had general jurisdiction to try felony cases. Id. at 915. Moreover, the circuit court also had general jurisdiction “to try juvenile felony offenders if there has been a valid transfer order pursuant to KRS 208.170(1) [the predecessor to KRS 635.020].” Id. at 915-16.

The court ultimately concluded that the circuit court has general subject-matter jurisdiction, and whether the circuit court had jurisdiction over Schooley’s particular case was a question of policy rather than power. See id. at 916. The policy consideration was one of due process. See id. at 916. Specifically, the question the court set out to answer was: Were the errors in transferring jurisdiction from the district court to the circuit court of “such magnitude as to render the judgment of conviction so fundamentally unfair that the defendant can be said to have been denied due process of law.” Id. at 917. The court considered a number of factors such as (1) Schooley’s guilty plea; (2) Schooley’s failure to bring a direct appeal; and (3) procedural defects and timeliness issues with Schooley’s RCr 11.42 motions. See id. at 918. Ultimately, the court concluded that there was no denial of due process in Schooley’s case and affirmed the circuit court’s order denying his final RCr 11.42 motion. See id.

Turning to the facts of this case and applying the Schooley guidelines discussed above, preliminarily we state that the Jefferson Circuit Court had general subject-matter jurisdiction over Humphrey’s case. Humphrey was initially charged with two class B felonies and nine class D felonies. The question now becomes whether there were any errors in transferring jurisdiction from the district court to the circuit court. After reviewing the record, we believe that there were.

As we previously concluded above that Humphrey could waive the preliminary hearing, the error did not lie in the actual transfer based upon Humphrey’s purported waiver, but in the waiver itself. In other words, based on the record, we are not convinced that the waiver was valid. See Townsend, 87 S.W.3d at 15 (“[T]he ‘finally discharged’ provision of [KRS 640.030(2) ] subsection (b) inures to the benefit of a defendant and, like any other constitutional or statutory right, can be the subject of a valid waiver.”) (Emphasis supplied.)

A waiver is the voluntary relinquishment of a known right. See Herndon v. Wingo, Ky., 404 S.W.2d 453, 455 (1966). Thus, in order for there to be a valid waiver of Humphrey’s right to a preliminary hearing to determine if his case should be transferred to circuit court, there must be proof that Humphrey voluntarily gave up a right that he knew he had. Although there is no authority in Kentucky that addresses the requisites of a valid waiver, case law from other jurisdictions is instructive on the issue of waiver of the transfer hearing. See State v. Berry, 647 So.2d 830 (Fla.1994); State v. Mayfield, 241 Kan. 555, 738 P.2d 861 (1987); State v. N.G., 305 N.J.Super. 132, 701 A.2d 976 (1997). Moreover, the state of Texas provides for a waiver of rights by statute. See V.T.C.A. Family Code, Sec. 51.09(a). The consensus among those jurisdictions is that the court must inform the child of the right to the preliminary hearing and ensure that the waiver of this right is voluntarily, knowingly and intelligently made. Considering the facts that children require special considerations due to their intelligence and experience, and the United States Supreme Court has stated that whether a child should be deprived of the special protections of the juvenile justice system is a critically important question, we believe these assurances are necessary to ensure due process and fair treatment of the child. See Kent, 383 U.S. 541, 86 S.Ct. 1045, 1053-54, 16 L.Ed.2d 84.

Returning to the facts of this case, Humphrey argues on appeal that, if this Court finds that he could waive the preliminary hearing, then he did not properly waive this right because his waiver was not made knowingly and intelligently. In response, the Commonwealth relies on the document entitled “Waiver of Rights” [Waiver] that both Humphrey and his attorney signed on October 11, 2000, in support of its contention that Humphrey’s waiver was voluntary.

The Waiver at issue is a form that is filled in with Humphrey’s name and case number. In pertinent part, it reads as follows:

I, Victor Humphrey, have consulted with my attorney concerning this waiver and have had the following rights explained to me:
a) the right to have a preliminary hearing before a judge of the Jefferson District Court to determine if there is probable cause to believe that a felony offense has been committed and that I committed such offense before my case is referred to the Jefferson County Grand Jury....

Standing alone, we do not believe this is sufficient to demonstrate that Humphrey’s waiver of the transfer hearing was knowingly given. It says nothing of the consequences of waiving the KRS 640.010 hearing, nor does it address the additional considerations set out in KRS 640.010(2)(b) that the district court must find prior to transferring the child’s case.

Unfortunately, the infirm Waiver is not cured by any meaningful colloquy between the district court and Humphrey. The dialogue between the district court and Humphrey prior to the transfer is as follows:

Judge: Now, we should probably say it one more time now that Mr. Humphrey has joined us here. Mr. Humphrey, by agreement your two counts of arson 2nd complicity are being waived to circuit court. We are going to dismiss/merge all your other charges. You are going to continue being held on a $50,000 bond. Okay?
Humphrey: Yes ma’am.
Judge: Okay. That’s it.

As to what Humphrey understood about his transfer from district court to circuit court, in his original RCr 11.42 motion, Humphrey asserted that his attorney just told Humphrey that he was taking his case to circuit court. In other words, Humphrey alleged that he was not advised of the consequences of waiving the required preliminary hearing in district court. We do not believe that the Waiver and the recorded discussion between the district court and Humphrey conclusively resolve the fact of a valid waiver. “[I]f there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record,” an evidentiary hearing is required. Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 452 (2001). Accordingly, we vacate the order of the Jefferson Circuit Court summarily denying Humphrey’s RCr 11.42 motion and remand for an evi-dentiary hearing on the issue of whether Humphrey’s waiver was voluntarily, knowingly and intelligently made.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Humphrey asserts that he was denied constitutionally effective assistance of counsel. The test for proving ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland test requires Appellant to show trial counsel’s performance was deficient, and this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985).

The two-prong Strickland test also applies to challenges to guilty pleas based on ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203, 210 (1985). Appellant must show the attorney’s performance was deficient and the attorney’s ineffective performance affected the outcome of the plea process. See id. Further, in any case, “[jjudicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

In support of his ineffective assistance of counsel claim, Humphrey argues that his attorney’s advice to waive the transfer hearing and agree to have the case sent to circuit court fell below an objective standard of reasonableness. Consistent with the previous section, Humphrey contends that a child cannot voluntarily waive a transfer hearing. Moreover, assuming that such a hearing could be waived, Humphrey argues that this is not a case where waiver was advisable. On the issue of how such advice prejudiced Humphrey, he asserts that he did not receive anything in the way of sentence that he likely would not have received over his objection while giving up the strong possibility of remaining in juvenile court.

To bolster his claim of ineffective assistance, Humphrey cites State v. N.G., 305 N.J.Super. 132, 701 A.2d 976 (1997), a New Jersey Superior Court case which held that the failure of a child’s attorney to advise the child and/or his mother of both the benefits of voluntary waiver to adult court and the consequences of such a waiver constituted a prima facie showing of ineffective assistance of counsel. Id. at 979.. To put this holding in context, the child, N.G., had not entered a guilty plea to the charges he faced, and the case had not yet gone to trial. The remedy he sought was the return of his case to the Family Part, or the juvenile court. The court ultimately granted his request after considering a number of factors including the failure on the part of the State to show that the waiver was made knowingly, willingly and voluntarily; the attorney’s ineffective assistance; the State’s failure to show that the waiver hearing satisfied the basic requirements of due process and fairness; the prejudice to the child if the case remained in adult court; and the lack of prejudice to the State if the matter was returned to juvenile court, where it would proceed pursuant to the requirements of the New Jersey juvenile code. See id. at 979. Despite the procedural differences in State v. N.G. and this case, we find the court’s reasoning persuasive, especially as it pertains to counsel’s failure to advise the child as to the consequences of a voluntary waiver to adult court.

Consistent with our decision above, we believe an evidentiary hearing is required on the issue of ineffective assistance of counsel. Although counseled waiver may have constituted legitimate trial strategy, the record does not conclusively prove or disprove whether Humphrey’s waiver was indeed counseled. We vacate and remand for an evidentiary hearing on the allegations that Humphrey’s attorney (1) gave him no choice about waiver of the transfer hearing, nor (2) did he advise him of the benefits and consequences of agreeing to waive the preliminary hearing. We further believe the trial court should conduct an evidentiary hearing and make determinations concerning whether counsel rendered ineffective assistance in connection with his advice to waive the transfer hearing and plead guilty to two counts of second-degree arson. Of course, Humphrey will bear the burden of proof in the evidentiary hearing to show that he was not adequately represented. See Osborne v. Commonwealth, Ky.App., 992 S.W.2d 860, 863 (1998).

III. DISTRICT COURT’S FAILURE TO CONDUCT A COMPETENCY HEARING

Humphrey’s competency has been an issue during the course of the proceedings against him. In the district court, his first attorney advised the court that she had questions about her client’s competency and wanted him evaluated. A psychologist evaluated Humphrey and, in a report dated August 9, 2000, found him competent. After learning of this report and still having doubts about her client’s competency, Humphrey’s first attorney requested and was subsequently granted funds for a second evaluation. This evaluation never occurred, and the trial court never conducted a competency hearing under KRS 504.100(3).

In this appeal, Humphrey argues that the district court deprived Humphrey of due process by failing to conduct a competency hearing. It is well accepted that “[cjriminal prosecution of a defendant who is incompetent to stand trial is a violation of due process of law under the Fourteenth Amendment.” Mills v. Commonwealth, Ky., 996 S.W.2d 473, 486 (1999). Moreover, as further stated in Mills:

The competency hearing of KRS 504.100(3) is mandatory and cannot be waived by a defendant. The standard of review in such a case is, “Whether a reasonable judge, situated. as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial.” Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.1983), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 287 (1983).

Id. at 486.

In this case, we conclude that Humphrey failed to establish any factual basis, which should have caused the district court to experience reasonable doubt as to Humphrey’s competence to stand trial. Humphrey does not point to anything, other that his first attorney’s hesitance as to Humphrey’s competency, that should have alerted the district court that Humphrey was incompetent. Moreover, a psychologist did evaluate Humphrey during the district court proceedings and found him competent at that time. ' That it was later determined in May of 2001 that Humphrey’s competency fluctuated from time to time does not indicate that the district court should have questioned Humphrey’s competency in August, September and October of 2000. Accordingly, we believe the district court’s failure to conduct a competency hearing was harmless error.

The order of the Jefferson Circuit Court denying Humphrey’s RCr 11.42 motion is vacated in part, affirmed in part, and the case is remanded for an evidentiary hearing on the issues discussed above.

TAYLOR, Judge, concurs.

GUIDUGLI, Judge, concurs in part, dissents in part and files separate opinion.

GUIDUGLI, Judge,

concurring in part and dissenting in part.

I concur in part and respectfully dissent in part. I believe that Humphrey was entitled to a transfer hearing pursuant to KRS 640.010(2). It should not be waived. This statute provides essential protections for juveniles consistent with the legislative intent set forth in KRS 600.010. Whether a juvenile, his attorney, the Commonwealth or even the District Court Judge wishes to expedite the matter by waiving the hearing is not the important factor in this consideration. Rather it is the protection of rights given to juveniles by the legislature. The use of the term shall denotes that the transfer hearing must take place and that certain factors must be presented prior to transferring a juvenile to circuit court. The consequences of a juvenile being treated as an adult in circuit court are significant and have life-long effects. To mandate the Commonwealth present evidence sufficient under KRS 640.010(2)(b) to justify removing a juvenile from these many protections is not an unreasonable burden. The statute mandates it and the juvenile courts should adhere to it. I concur in all other aspects of the majority opinion.


source: Caselaw Access Project

author: BARBER, Judge.

license: Public Domain

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Joshua WINSETT and Craig Culbreth, Appellees.
    No. 2003-CA-002769-MR.
    Court of Appeals of Kentucky.
    Dec. 17, 2004.

      Travis W. Calvert, Bowling Green, KY, for Appellant.
    Harlan E. Judd, III, Bowling, Green, KY, for appellee, Johsua Winsett.
    Paul T. Lawless, Bowling Green, KY, for appellee, Craig Culbreth.
    Before BARBER and McANULTY, Judges; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

BARBER, Judge.

The circuit court dismissed Government Employees Insurance Company’s (GEICO) intervening complaint for failure to state a claim because it adjudged that the Statute Of Limitations for bringing the action had expired. We reverse the judgment because the Statute of Limitations is not determinative of the issue of whether GEI-CO’s intervening complaint should have been allowed.

The underlying facts of this case are that GEICO’s insured, Everton L. Sim-monds (Simmonds), was involved in an automobile accident with the Appellees here, Joshua Winsett (Winsett) and Craig Cul-breth (Culbreth), on April 28, 2001. Sim-monds filed suit against Winsett and Cul-breth on October 15, 2002, clearly within the Statute of Limitations applicable to his action.

GEICO moved to intervene in order to protect its subrogation rights on September 8, 2003. No judgment, settlement or other event had occurred disposing of the case at that time. On November 26, 2003, the circuit court entered its final and ap-pealable order denying GEICO’s motion to alter, amend, or vacate its judgment entered October 20, 2003, dismissing GEI-CO’s intervening complaint.

The circuit court, in its order dismissing GEICO’s intervening complaint, found that KRS 413.125 supplied the correct Statute of Limitations. That section provides that a party must bring a claim for property damage (the only item of damage at issue here) within two years of the date of the event causing the loss. The court also determined that the date of the occurrence was April 28, 2001, and because GEICO did not file its intervening complaint until September 8, 2003, more than two years after the accident, it was time-barred.

On appeal GEICO makes a number of arguments for why the court’s judgment should be reversed. First, it maintains that the court, although not expressly setting it forth in its order, relied on KRS 411.188(2) to bar its claim. Second, GEI-CO contends that the filing of the complaint by its insured tolled the Statute of Limitations applicable to its claims. Third, GEICO contends that it should be substituted as the real party in interest and its intervening complaint related back to the original complaint pursuant to CR 15.03. The Appellees oppose the conclusions of GEICO and assert that the circuit court’s order should be affirmed.

A review of both statutory and case law leads us to the conclusion that the circuit court’s judgment dismissing GEI-CO’s intervening complaint was in error.

We begin with the observation that a subrogee’s claim is strictly derivative of its subrogor with no right to independently maintain a cause of action as long as the insured is pursuing the claim. Zurich Am. Ins. Co. v. Haile, Ky., 882 S.W.2d 681, 685 (1994). Therefore, the settled law holds that the Statute of Limitations applicable to the insured is also applicable to the insurer. Whitney v. Louisville & N.R.Co., 296 Ky. 381, 384, 177 S.W.2d 139, 141 (1944); Waters v. Transit Authority of River City, Ky.App., 799 S.W.2d 56, 58 (1990); Commonwealth, Dept. of Transp., Bureau of Highways v. All Points Construction Co., Ky.App., 566 S.W.2d 171, 173 (1977).

Here, the circuit court determined that the two-year Statute of Limitations under KRS 413.125 was applicable to GEICO’s claims. Whether this is the correct Statute of Limitations section to apply or not is irrelevant to the outcome in this case. The pertinent Statute of Limitations for Simmonds, GEICO’s insured, is also two years under the Motor Vehicle Reparations Act. We do not express an opinion on whether either of these Statutes of Limitations is the correct one to apply because there appears to be confusion in the law about this issue and it does not bear on the outcome of this case. See e.g., Waters, supra 799 S.W.2d at 58 (problems and inconsistencies would result by applying different Statutes of Limitations to different types of plaintiffs under the Motor Vehicle Reparations Act); Gray v. State Farm Mut. Automobile Ins. Co., Ky.App., 605 S.W.2d 775, 776 (1980)(5 year Statute of Limitations applies to claims by insurer for reimbursement of basic reparation benefits); and the opinion of the circuit court in this case applying KRS 413.125 to a claim for property damage.

The real question of import in this case is whether or not GEICO’s intervening complaint should have been allowed. This is not a relation back issue. As noted above, an examination of the case law on this subject shows that in most jurisdictions the same Statute of Limitations that applies to the insured’s claim also applies to the insurance company. However, there is a difference of opinion if the sub-rogee files its subrogation claim by intervening in its subrogor’s suit outside the Statute of Limitations, but before the conclusion of the subrogor’s case. Some states allow this practice; others do not. See When Does Statute of Limitations Begin to Run Upon an Action by Subrogated Insurer Against Third-Party Tortfeasor, 91 A.L.R.3d 844.

Kentucky falls in those states that allow intervention. This issue was squarely addressed by Roberts v. Unites States Fidelity & Guar. Co., Ky.App., 273 S.W.2d 39, 41 (1954) where the Court stated:

We are therefore drawn to the conclusion that where an insurance carrier has paid compensation benefits to an injured employee and relieved the employer of all liability therefore, and this is the situation here, the insurance carrier, for the purpose of reimbursement, may become a party plaintiff to a suit commenced within the period of limitations by the employee or his heirs, although the addition of this party is effected after the running of the period of limitations.

See also, Daugherty v. Reynolds Metals Co., 967 F.Supp. 240, 241 (W.D.Ky.1997); Berry v. Irwin, 224 Ky. 565, 6 S.W.2d 705, 706 (1928). Although these cases considered a subrogated workers’ compensation carrier, we perceive no difference in this context between the subrogation rights of a workers’ compensation carrier and a contractual subrogee such as here.

Thus, we hold that a subrogee who moves to intervene in an action timely filed by its subrogor should be allowed to do so even though the Statute of Limitations on the underlying claim may have run if the intervention is applied for in a timely fashion pursuant to CR 24. Prior to trial or other disposition of the case is presumptively timely. This has been impliedly recognized by this Court previously. See McCormack Baron & Assoc. v. Trudeaux, Ky.App., 885 S.W.2d 708, 711 (1994) (motion to intervene not timely because filed after judgment entered).

One final matter is the application of KRS 411.188(2). GEICO argues that the Statute, in its entirety, has been found unconstitutional by the Kentucky Supreme Court in O’Bryan v. Hedgespeth, Ky., 892 S.W.2d 571, 578 (1995). Winsett and Culbreth maintain that it has not. The parties apparently conceive that KRS 411.188(2) would act to cut off GEICO’s claims in this case.

KRS 411.188(2) requires a subrogee to assert its rights by intervening in the suit filed by its subrogor once it receives notice. The O’Bryan case only specifically dealt with the constitutionality of KRS 411.188(8), the section of the Statute that allowed the jury to hear evidence of collateral source payments made to the plaintiff. It did not hold the Statute unconstitutional in its entirety. Therefore, KRS 411.188(2) is applicable.

However, contrary to the positions of the parties, in our view KRS 411.188(2) lends support to the conclusion that GEI-CO has timely filed its intervening complaint rather than the opposite. This is so because a subrogor may wait until the last day of his or her Statute of Limitations to file suit and send the notice required by the Statute to anyone possessing subrogation rights. If those subrogees were cut off by the running of the underlying Statute of Limitations, there would be no point to the notice provision of the Statute or to the language in it requiring intervention to preserve subrogation rights. This would render the Statute a nullity in such cases.

For the reasons stated above, we reverse the judgment of the Warren Circuit Court and remand the case for proceedings consistent with this Opinion.

ALL CONCUR.

      . Simmonds originally filed suit against Laura Culbreth, Craig Culbreth’s wife, but amended his complaint to substitute Craig Culbreth as the proper defendant.


author: PER CURIAM.

text:
    Odessa GANT, Appellant, v. LOU FUSZ MOTOR COMPANY, Respondent.
    No. ED 83347.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 21, 2004.
    Odessa Gant, St. Louis, MO, pro se.
    Thomas L. Sandifer, Clayton, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   PER CURIAM.

Odessa Gant appeals a judgment entered in favor of Lou Fusz Motor Co. (“Lou Fusz”) on Ms. Gant’s claim that Lou Fusz failed to repair her Pontiac van. Lou Fusz has filed a Motion to Dismiss Ms. Gant’s appeal contending that she failed to comply with Rules 84.04 and 84.06 and Local Rule 365. Because we agree that Ms. Gant has failed to comply with the applicable rules, we dismiss.

Ms. Gant filed a pro se appeal from the trial court’s judgment. Thereafter, Ms. Gant filed a pro se brief and an amended brief. Lou Fusz has not filed a brief in response.

It is well-settled that pro se appellants are held to the same standards as attorneys and must comply with Supreme Court Rules, including Rule 84.04, which sets out the requirements for appellate briefs. Davis v. Coleman, 93 S.W.3d 742 (Mo.App. E.D.2002). Failure to comply with the rules of appellate procedure constitutes grounds for dismissal of an appeal. Id. at 742-43.

Ms. Gant’s brief fails to comply with Rule 84.04. The jurisdictional statement consists solely of an argumentative fact statement. The statement of facts is not fair and concise. The points relied on do not, among other things, identify the trial court ruling which appellant challenges, referring incomprehensibly to findings of the Director of Revenue. The argument section, which refers to the “dealership’s conclusions of law, or its application of the law to the facts,” fails to comply in any respect with Rule 84.04. In short, Ms. Gant’s brief preserves nothing for review. Davis, 93 S.W.3d at 742-43.

Appeal dismissed.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Angela CARDWELL, Defendant/Appellant.
    No. ED 83851.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 21, 2004.
    Ellen H. Flottman, Columbia, MO, for appellant.

      Deborah Daniels, Linda Lemke, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Defendant appeals from the judgment entered on a jury verdict finding her guilty of six counts of forgery, in violation of Section 570.090 RSMo (2000). The trial court found defendant to be a prior offender and sentenced her to seven years imprisonment on each count. The sentences on counts I, II, and III to be served consecutively to each other and counts IV, V, and VI to be served concurrently with each other and the sentences on the previous counts, for a total of 21 years. The sentence was to be served consecutively to sentences defendant was already serving.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


text:
    WATERFORD WEST APARTMENTS, Respondent, v. Eric THROCKMORTON and Ron Throckmorton, Appellants.
    No. ED 84171.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 21, 2004.
    Frank D. Keefe, Ellisville, MO, for Appellant.
    Katharyn B. Davis, St. Louis, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Eric and Ron Throckmorton (collectively referred to as Defendants) appeal from a judgment awarding Waterford West Apartments (Plaintiff) damages and attorney’s fees following an action for breach of lease. On appeal, Defendants argue the trial court erred in finding that Defendants breached their lease, and in awarding attorney’s fees, a termination fee, and rent for the month of April 2003. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    Sarah D. SACHTLEBEN, Petitioner/Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent/Respondent.
    No. ED 84056.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 21, 2004.
    Samuel W. Panos, Chesterfield, MO, for appellant.
    Daniel L. Massey, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J, KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Petitioner, Sarah D. Sachtleben, appeals from the trial court’s judgment denying her petition for review of revocation of her driving privilege under Section 577.041 RSMo (2000) after she refused to submit to a chemical test. No error of law appears. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Norman AKINS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84025.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 21, 2004.
    Maleaner R. Harvey, St. Louis, MO, for appellant.
    Deborah Daniels, Karen Kramer (co-counsel), Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J. and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Norman Akins appeals the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. He alleged he his plea counsel was ineffective for failing to investigate the charges against him before advising him to plead guilty.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Curtis HAMOR, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 83691.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 28, 2004.

      Cheryl Caponegro Nield, Assistant Attorney General, Jefferson City, MO, for appellant.
    Curtis Hamor, St. Louis, MO, pro se.
    PATRICIA L. COHEN, Presiding Judge.
   Introduction

The Director of Revenue (“Director”) appeals the judgment of the Circuit Court of the City of St. Louis reinstating Curtis Hamor’s driver’s license. On appeal, the Director contends that she made a prima facie case for the revocation of Hamor’s driving privileges and, therefore, the trial court erred in granting Hamor’s motion for a directed verdict at the close of the Director’s case. We reverse and remand for further proceedings.

Statement of the Facts and Proceedings Below

On the evening of December 7, 2002, Officer Daniel Kim (“Officer Kim”) was dispatched to the scene of an accident with injuries at 2000 Cherokee in the City of St. Louis. While en route, the dispatcher advised Officer Kim of reports that a white male had exited one of the vehicles involved in the accident and walked west on Cherokee towards the intersection of Cherokee and Wisconsin. When Officer Kim arrived at the scene of the accident, he found that another officer had already responded and apprehended the white male, later identified as Hamor, one-half block from the accident scene.

At the scene of the accident, the officers found a Cadillac and a blue pickup truck both with front-end damage. Officer Kim spoke with a witness who explained that he heard crashing sounds, looked out the window and saw a white male exit one of the vehicles and walk away from the scene of the accident. The witness also explained that, a short time after the accident, he saw a woman get into the pickup and drive down the street to the intersection of Cherokee and Wisconsin. After running the vehicles’ plates, Officer Kim discovered that the pickup truck was registered to Hamor.

In speaking with Hamor, Officer Kim noticed that Hamor had bloodshot, watery eyes, and dilated pupils. Officer Kim also noted that Hamor swayed as they spoke and his breath smelled of alcohol. Hamor admitted to drinking five beers. As a result, Officer Kim asked Hamor to submit to a field sobriety test. Hamor could not successfully complete the field sobriety test. In light of Hamor’s poor performance on the sobriety test as well as his appearance and odor, Officer Kim arrested Hamor and transported him to the Mounted Patrol in Forest Park.

At the Mounted Patrol station, Officer Terrance Dupree (“Officer Dupree”) read Hamor the Missouri Implied Consent Law and further questioned him regarding the events of the evening. During the interview, Hamor admitted to driving a vehicle and being involved in an accident. Despite being informed of the consequences of failing to submit to a blood alcohol test, when Officer Dupree asked Hamor to submit to a breath test, Hamor refused.

Accordingly, the Director revoked Ha-mor’s driving privileges for one year for refusing to take a breathalyzer test pursuant to section 577.041 RSMo 2000. Ha-mor filed his Petition for Review and Stay in the Circuit Court of the City of St. Louis. At the hearing, the Director called Officers Kim and Dupree to testify both of whom Hamor cross-examined. When the Director rested, Hamor did not present any evidence. Instead, Hamor asked the court for a directed verdict based on the Director’s alleged failure to make her pri-ma facie case. The court granted Ha-mor’s motion and ordered the Director to reinstate Hamor’s driving privileges. This appeal followed.

Standard of Review

We review the reinstatement of Hamor’s driver’s license pursuant to the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Hinnah v. Director of Reve nue, 77 S.W.3d 616, 620 (Mo. banc 2002). We accept as true all evidence and inferences in favor of the prevailing party and disregard contrary evidence. Kimber v. Director of Revenue, 817 S.W.2d 627, 630 (Mo.App. W.D.1991). Under this standard, we cannot disregard uncontroverted evidence that all of the elements of the Director’s prima facie case have been met. Zimmerman v. Director of Revenue, 72 S.W.3d 634, 636 (Mo.App. S.D.2002).

Discussion

In her sole point on appeal, the Director contends that the trial court erred when it granted Hamor’s motion for a directed verdict and reinstated Hamor’s driving privileges. Specifically, the Director argues that the trial court improperly granted Hamor’s motion for a directed verdict based on its determination that the Director failed to prove that Hamor was actually driving.

As a general matter, the Director has the burden of proving, by a preponderance of the evidence, a prima facie case for the suspension of a person’s driving privileges. Specifically, the Director has to demonstrate that: (1) the person was arrested or stopped; (2) the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and (3) the person refused to submit to the test. Section 577.041.4 RSMo. Hocknan v. Director of Revenue, 103 S.W.3d 382, 384 (Mo.App. W.D.2003). Once the Director makes a prima facie case, the driver has the burden to rebut the case. Roberts v. Wilson, 97 S.W.3d 487, 492 (Mo.App. W.D.2002).

Review of both the transcript and the records demonstrate that Hamor was arrested and later refused to submit to a breath test. Accordingly, the sole remaining issue for the trial court was whether the officers had reasonable grounds to believe that Hamor was driving a motor vehicle while in an intoxicated condition. To make a submissible case and shift the burden of rebuttal to Hamor, the Director needed to show only that the officer had reasonable grounds to believe that Hamor was driving while intoxicated rather than that Hamor was actually driving or was actually intoxicated. See Hinnah, 77 S.W.3d at 622. Accordingly, when the trial court granted Hamor’s motion and reinstated his driver’s license on the basis that the Director failed to prove Hamor was actually driving, it erroneously declared and applied the law.

In the context of driver’s license revocation cases, “reasonable grounds” is virtually synonymous with “probable cause.” Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App. E.D.2001). “Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.” Hinnah, 77 S.W.3d at 621, citing State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996). We determine whether the officer had probable cause by viewing the situation as it would have appeared to the prudent, cautious and trained police officer. Brown v. Director of Revenue, 85 S.W.3d 1, 3-4 (Mo. banc 2002).

Given this standard, there is ample evidence in the record to justify the officers’ reasonable belief that Hamor was intoxicated. Specifically, when officers arrived at the scene, they noted that Hamor had bloodshot, watery eyes, and dilated pupils. Hamor swayed as he spoke with the officers and his breath smelled strongly of alcohol. Furthermore, Hamor admitted to drinking five beers and failed a field sobriety test.

Likewise, the officers’ belief that Hamor was driving was also reasonable given the circumstances. It is not necessary for the officer to actually observe the person driving to establish probable cause to arrest for driving while intoxicated. Kleffner v. Director of Revenue, 956 S.W.2d 446, 448 (Mo.App. E.D.1997). When driving is not actually observed, an officer may rely on circumstantial evidence to form probable cause. Id. Moreover, an officer can rely on information provided by eyewitnesses. Jarvis v. Director of Revenue, 92 S.W.3d 301, 305 (Mo.App. E.D.2002). Here, a witness identified Hamor as the white male who exited one of the vehicles after the accident. Hamor was found walking within one half block of the scene of the accident and the blue pickup truck involved in the accident was registered to Hamor. In light of these facts, the Director made a prima facie case for revocation and the trial court erred in granting Hamor’s motion for directed verdict at the close of the Director’s case instead of first shifting the burden of rebuttal to Hamor.

Conclusion

The judgment of the trial court is reversed and the cause is remanded to allow Hamor the opportunity to present evidence to rebut the Director’s prima facie case.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., concur.

      . All further statutory references are to RSMo 2000 unless otherwise noted.

      . As a preliminary matter, we note that the trial court entered judgment in this case after Hamor moved for a directed verdict at the close of the Director’s case. Notably, however, this was a judge-tried case and there was no jury to direct. As our colleagues in the Southern District recently reiterated, a motion for directed verdict has no function in a trial without a jury and, as such, when counsel erroneously moves for directed verdict in a court-tried case, the trial court should construe the motion as a submission of the case for determination on the merits pursuant to Rule 73.01(b). Spry v. Director of Revenue, 144 S.W.3d 362, 367 (Mo.App. S.D.2004). Rule 73.01(b) authorizes a defendant to assert that upon the facts and the law the plaintiff is not entitled to relief at the conclusion of plaintiff's evidence in a court-tried case.

      . Hamor did not file a responsive brief.

      . To the extent that the witness's statement was offered to illustrate the basis for the officers’ reasonable belief that Hamor was driving and was not offered as proof that Hamor was, in fact, driving, the statement was not hearsay and was admissible. Jarvis, 92 S.W.3d at 305.


text:
    In re MARRIAGE OF Elizabeth HAVERMAN and Dale Haverman. Elizabeth Haverman, Petitioner/Respondent, v. Dale Haverman, Respondent/Appellant.
    No. ED 83759.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 28, 2004.
    James J. Leightner, Gerard Diekman, Diekman & Leightner, Clayton, MO, for appellant.
    N. Kimasa Sindel, Murphy, Sindel & Coston, Clayton, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Father appeals from a judgment modifying a decree of dissolution of marriage. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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

The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Craig D. WHITE, Appellant.
    No. ED 83854.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 28, 2004.
    Timothy J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Bucheim, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Craig D. White (“Defendant”), appeals from the judgment of the Circuit Court of the City of St. Louis convicting him, after a jury trial, of child molestation in the first degree, section 566.067, RSMo 2000. Defendant was sentenced to ten years imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


text:
    Melissa HOGUE, Claimant/Appellant, v. Crabtree HARMON, Employer/Respondent.
    No. ED 84833.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 28, 2004.
    Susan K. Roach, Roach Law Firm, Clayton, MO, for appellant.

      E. Thomas Líese, Holtkamp, Liese, Childress & Schultz, P.C., Hans K. Am-ann, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Claimant appeals from the final award of the Labor and Industrial Relations Commission, affirming the award of the Administrative Law Judge. We affirm. The findings and conclusions of the Commission are supported by competent and substantial evidence on the whole record. No error of law appears, and an extended opinion would have no precedential value. The parties have been furnished, for their information only, with a memorandum setting forth the reasons for our order affirming the judgment pursuant to Rule 84.16(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Michelle WILLIAMS, Claimant/Appellant, v. MITCH MURCH’S MAINTENANCE MANAGEMENT COMPANY and Division of Employment Security, Respondents.
    No. ED 85076.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 4, 2005.
    Michelle Williams, St. Louis, MO, for appellant.
    Cynthia A. Quetsch, Jefferson City, MO, for respondents.
   GEORGE W. DRAPER III, Chief Judge.

Michelle Williams (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) regarding her unemployment benefits. The appeal is dismissed.

A deputy of the Division of Employment Security (Division) concluded Claimant was disqualified from receiving unemployment benefits because she left work voluntarily without good cause attributable to her work or employer. She filed an appeal with the Appeals Tribunal, which conducted a telephone hearing. The Appeals Tribunal affirmed the deputy’s decision and Claimant then filed an application for review by the Labor and Industrial Relations Commission. The Commission affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified that she mailed a copy of the Commission’s decision to Claimant on July 26, 2004. Claimant filed a notice of appeal to this Court by facsimile on September 3, 2004.

Once the Commission’s decision is mailed to the parties, it becomes final ten days thereafter. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal a final decision of the Commission. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on July 26, 2004. The decision became final ten days later and the notice of appeal was due on August 25, 2004. Section 288.200; Section 288.210. Claimant’s notice of appeal, which was filed on September 3, 2004, was untimely under section 288.210.

This Court has a duty to determine siia sponte whether it has jurisdiction. Williams v. ESI Mail Pharmacy Service, Inc., 103 S.W.3d 848 (Mo.App. E.D.2003). After reviewing our jurisdiction, we issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant did not file a response to our order.

Claimant’s notice of appeal was untimely. Section 288.210 fails to make any provision for late filing and does not recognize any exceptions for filing out of time. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment ease deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003).

The appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN, J. and GLENN A. NORTON, J., concur.


text:
    Stephen GREEN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83921.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 4, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Stephen Green (“Movant”) appeals the dismissal of his Rule 24.035 post-conviction motion without an evidentiary hearing. Movant pleaded guilty to one count of felony driving while intoxicated, Section 577.010, RSMo 2000. Movant was sentenced as a prior offender to serve one year in the St. Francois County Jail. Subsequently, Movant filed a motion for post-conviction relief pursuant to Rule 24.035, which the motion court dismissed.

In Movant’s sole point on appeal, he argues the motion court clearly erred in dismissing his Rule 24.035 motion because he claims the dismissal denied him due process of law, violated his right to equal protection under the law, and denied him access to the courts.

We have reviewed the briefs of the parties and the legal file. The motion court’s dismissal was not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Appellant, v. Jill Marie GIBSON, Respondent.
    No. ED 84947.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 4, 2005.
    Harry M. Swingle, Angel Woodruff, Officer of the Prosecuting Attorney, Jackson, MO, for appellant.
    Malcolm H. Montgomery, Cape Girar-deau, MO, for respondent.
    Before GEORGE W. DRAPER III, C.J., CLIFFORD H. AHRENS, J., and PATRICIA J. COHEN, J.
   ORDER

PER CURIAM.

The State of Missouri appeals the trial court’s grant of Jill Marie Gibson’s (hereinafter, “Defendant”) motion to suppress physical evidence. The State claims the trial court erred in granting the motion because the execution of its search warrant was reasonable even though Defendant was not a target of its investigation.

The search warrant at issue charged the police with looking for marijuana, methamphetamine, and evidence, including by not limited to, controlled substances, paraphernalia, records relating to the distribution of controlled substances, and any indicia of ownership or occupancy of the residence. Defendant was a guest at the residence during the search. When police arrived, she was restrained in the living room, separated from her purse which was left in the kitchen. After searching one purse, police searched Defendant’s. In her wallet, hidden behind Defendant’s drivers license, police found a small amount of a controlled substance. The officer who searched her purse claimed he did not look at Defendant’s driver’s license after removing it.

Upon review of the trial court’s ruling on a motion to suppress, this Court views the facts in the light most favorable to the order challenged on appeal. State v. Riddle, 843 S.W.2d 385, 386 (Mo.App. E.D.1992); State v. Garza, 853 S.W.2d 462, 463 (Mo.App. S.D.1993). Our review is limited to determining whether sufficient evidence exists to sustain its determination. State v. Wise, 879 S.W.2d 494, 503 (Mo. banc 1994). “Deference is given to the trial court’s evaluation of the credibility of the witnesses and the weight of the evidence.” State v. Solt, 48 S.W.3d 677, 679 (Mo.App. S.D.2001) (citing State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992)). Even if this Court believes it would have reached a different result sitting as the trier-of-fact, we must affirm the trial court if the ruling is plausible in light of the record. Solt, 48 S.W.3d at 679 (citing State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990)).

Giving deference to the trial court’s ability to determine the credibility of witnesses and looking at the facts in the light most favorable to its decision, the trial court’s decision was plausible. The trial court was free to believe the controlled substance was hidden behind Defendant’s driver’s license and police did not have the right to search Defendant’s purse.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. The judgment is affirmed pursuant to Rule 30.25(b).

      . The Court questions the underlying assumption that a woman has a lesser expectation of privacy simply because she carries her personal documents in a purse rather than a wallet in her pocket as many men do.


author: JAMES K PREWITT, Judge.

text:
    Deborah D. TAYLOR, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. 26424.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 26, 2005.

      Deborah D. Taylor, pro se.
    Alan J. Downs, Jefferson City, MO, for respondent.
   JAMES K PREWITT, Judge.

Claimant-Appellant Deborah D. Taylor appeals an order of the Labor and Industrial Relations Commission (“Commission”) affirming a decision by the appeals tribunal of the Division of Employment Security disqualifying Appellant from receiving unemployment benefits until sufficient wages were earned, pursuant to Section 288.050.1(1). The Commission found that Appellant voluntarily left her work without good cause attributable to her work or her employer, State Farm Insurance Company (“State Farm”).

We take the facts from the brief record. Appellant worked for State Farm Insurance agencies in various capacities since 1984. In March of 2000, Appellant was employed by State Farm Insurance Company as a Trainee Agent in Hannibal, Missouri. On May 6, 2003, Appellant requested a lateral transfer to “ ‘anywhere’ in the Southeast/Southwest Agency Field Office area,” due to her husband’s parents’ declining medical conditions and her husband’s back disability. This request was made by Appellant to her Agency Field Executive, Mike Heitman, and her Agency Field Consultant, Tway Branstetter, at a meeting in Columbia, Missouri.

Subsequently, Appellant was advised by Branstetter that a position would be opening in the Kimberling City area, and Appellant requested she be considered for the position. In August, 2003, she was informed that the position had been filled by someone else. This information was provided by Heitman and Appellant’s Vice President of Agency, Curt Drier. Both Heitman and Drier then advised Appellant to submit a letter resigning her Trainee Agent status, as they contended no other openings were foreseeable.

Appellant objected and was “adamant” in her explanation to both supervisors that she wanted a lateral transfer and did not want to quit her job. She stated that Heitman told her “what to put in [the resignation letter]” and that he wanted the resignation letter before August 8, 2003. Heitman also told Appellant at that time to designate an effective date for her resignation, although the date would not be “set in concrete.” Drier told her to provide a target date “no less than 90 days out, since they needed time to find [her] replacement.”

On August 7, 2003, Appellant sent her letter of resignation to Mike Heitman, citing December 31, 2003 or “upon the successful closing of the sale of [her] home, ... whichever comes first” as a “target” date for termination of her employment with State Farm.

On September 9, 2003, Appellant met with the Central Zone Agency Vice President, Michael Matlock, and Mary Bitzer, Senior Vice President, in Clayton. Appellant reiterated to them that she “wanted a lateral move[,] not a termination^]” but had been told by Heitman and Drier to write a letter of resignation. Matlock told her that it was State Farm’s “position that people are offered an Agency one time and you have to make the best of it.”

Appellant testified that on December 1, 2003, she requested to be allowed to extend her termination date until March 31, 2004. However, she was informed on December 16, 2004, by Heitman, that she would not be allowed to stay beyond the December 31, 2003 date. Her employment with State Farm ended on December 31, 2003.

Appellant filed a claim for unemployment benefits which was denied for the reason that she “quit because she was moving.” In its determination, the Division of Employment Security (“Division”) determined that Appellant was disqualified because she left her employment voluntarily without good cause attributable to her work or employer on December 31, 2003.

Appellant appealed the Division’s determination to the Appeals Tribunal which affirmed the deputy’s determination, citing its conclusion that Appellant quit voluntarily. Appellant was the only one to offer testimony at the hearing held by means of a telephone conference. On appeal to the Commission, the Commission affirmed and adopted the decision of the Appeals Tribunal, finding that the decision was “fully supported by the competent and substantial evidence on the whole record.”

The determination included a finding that Appellant told her supervisor that she “planned to move” and that some time after this, Appellant’s “supervisor said that the claimant had to write a resignation letter giving a time frame[,]” but “claimant objected to writing a resignation letter.” It concluded that “claimant initiated the separation by stating that she intended to move from her present location due to family health issues[,]” which it determined was “a personal reason, not a problem with the job.” It further concluded that “[t]he claimant never rescinded her resignation[,]” that “she simply asked to have her resignation date postponed!]]” and “that the claimant quit.”

Appellant appears pro se. In her sole point on appeal, she contends that the Commission erred, as its decision was “unsupported by competent and substantial evidence upon the whole record, ... in that the only competent evidence before the [C]omission was that of the Appellant in which she testified and provided documents showing to the Commission that she was forced to write a resignation letter and told her supervisors several times, both before and after writing the letter, that she did not want to leave her position.”

Under § 288.210, the factual findings of the Commission are conclusive if, absent fraud, they are supported by competent and substantial evidence, and review of the Commission’s decision by this Court is confined to questions of law. This Court is not bound by the Commission’s conclusions of law or its application of law to facts, and questions of law are reviewed independently. Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 165-66 (Mo.App.2004). On matters of witness credibility and resolution of conflicting evidence, deference is accorded to the Commission’s determinations. Id. at 166.

A claimant is not entitled to unemployment benefits if he or she voluntarily quits his or her job absent good cause attributable to the work or the employer. § 288.050.1(1), RSMo; Wingo v. Pediatric and Adolescent Med. Consultants, Inc., 932 S.W.2d 898, 899 (Mo.App.1996). “Good cause” to voluntarily terminate employment is that conduct which conforms to what an average person, acting with reasonableness and in good faith, would do. Id.

Claimant has the burden to prove eligibility for benefits. Reutzel v. Mo. Div. of Employment Sec., 955 S.W.2d 239, 241 (Mo.App.1997). “When an employer claims an employee voluntarily left his or her employment without good cause attributable to the employer, it is the employee’s burden to prove that is not the case.” Id. “This may be done by the employee showing he or she left work for good cause attributable to the employer, or by the employee showing he or she did not voluntarily leave work but was discharged.” Id.

Whether an employee voluntarily left employment or was discharged is a factual determination within the purview of the Commission, and this Court must affirm the Commission’s determination if it is supported by competent and substantial evidence on the record as a whole. Worley v. Div. of Employment Sec., 978 S.W.2d 480, 482 (Mo.App.1998). The relevant facts and circumstances surrounding an employee’s cessation of employment are controlling. Id. at 483.

Here, the Commission found: (1) that Appellant requested a lateral move within the company; (2) that she applied for a position with State Farm in another city; (3) that upon informing Appellant that she would not be offered that position her “supervisor said that [Appellant] had to write a resignation letter giving a time frame”; and, (4) that Appellant objected to writing the resignation letter but later did so. However, we believe these findings to be inconsistent with the conclusions that Appellant “planned to move” and “voluntarily left work ... without good cause attributable to the work or the employer.”

We do not find that the record supports the Commission’s conclusion. Appellant was the only witness to testify. There is nothing in the record indicating that State Farm disputed Appellant’s version, and there is no other evidence to the contrary.

Appellate review is de novo in determining “whether the facts found by the Commission can, as a matter of law, be considered to constitute a voluntary departure from employment.” Sokol v. Labor & Industrial Relations Comm’n, 946 S.W.2d 20, 24 (Mo.App.1997). We find that the record establishes that Appellant did not initiate her separation from State Farm; rather, it was State Farm that insisted that she tender her resignation. There was no evidence that Appellant “planned to move” without acquiring a position with State Farm in a different location, nor that she “intended to move” without such a position. The record only reflects that Appellant would move if she acquired a position with State Farm in a certain geographical area. Appellant should not have been disqualified, as she did not leave work voluntarily.

Accordingly, the order of the Commission is reversed and the cause remanded to the Commission for it to grant Appellant the benefits she sought.

GARRISON, P.J., and RAHMEYER, J., concur.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David R. BULLOCK, Defendant-Appellant.
    No. 26011.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 26, 2005.

      Irene Earns, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Atty. Gen., Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

David R. Bullock (“Appellant”) appeals from his convictions for attempted statutory rape, and attempted sexual exploitation of a minor. Appellant contests the sufficiency of the evidence for both counts and claims error in the trial court’s denial of an instruction claiming entrapment on both charges.

Because the sufficiency of the evidence is challenged and Appellant claims an entrapment defense for the reason that he was not predisposed to engage in the charged offenses, we shall set forth in greater detail a series of sordid internet and telephone communications between Appellant and the purported victim than we usually would.

Viewed in the light most favorable to the verdict, the evidence indicates that a reserve deputy in Newton County created an undercover alter ego named “Ashley Anne” (“Ashley”), who purported to be thirteen years old; he used this profile, including a photograph, to visit teen chat rooms on the internet to see if child molesters or pedophiles would “hit on him.” On September 24, 2002, Ashley logged on to a teen chat room with a subtitle for “older guys looking for younger girls”; she started no conversations in the chat room, but waited for someone to start a conversation with her.

Soon thereafter, Ashley got a “whisper” — which is a private message that could only be seen by Ashley and the sender — from Appellant who used the screen name “Lover of Young Females.” In that whisper, Appellant suggested going to instant messenger where just the two of them could talk. Appellant’s screen name changed to Young Lover 33. The conversation lasted twenty to twenty-five minutes and the conversation became of a sexual nature.

Appellant stated, “I would like to meet you,” to Ashley and that she was pretty. Appellant asked Ashley if she was in Missouri and “are u a naughty girl?” Ashley responded, “I can be as naughty as you would want. You would have to teach me.... ”

Ashley and Appellant engaged in seventeen more conversations from September 25, 2002, until October 18, 2002. It is unnecessary to relate the details of all the conversations, but it is clear that Appellant commenced sexual discussions in most of the conversations. For instance, Appellant often asked Ashley what she was wearing. When she responded, “shorts and t shirt,” Appellant would ask the color of her panties or if she was wearing panties. He often asked whether she had played with herself the previous night and instructed her on how to masturbate.

The conversations continued about an actual future meeting between them. During the second conversation,. when Ashley asked Appellant if he would be in the area sometime soon, Appellant responded that maybe he could pick her up after school one day “next week.” Ashley said weekends were best for her so she could get permission to spend the night with her friends, but Appellant said anytime was good for him and specifically asked if she wanted to spend the night. Appellant suggested picking her up after school, maybe on a Thursday, and spending the entire Friday and Saturday with her. Ashley often asked for a picture of Appellant, but Appellant failed to supply one, stating he was being careful because “there are too many cops out there.” When Ashley asked, “cops out there? ? ? ? why?” Appellant stated, “men and underage girls.” Ashley responded, “but i am agreeing ... what is wrong with that?”; Appellant informed her it was still against the law. Appellant specified that he needed to be careful; not because of the talking, but because of the meeting between them.

Additionally, Appellant advised Ashley how to download a web cam program by giving a false profile as an older person so that Appellant could show himself to her. When he discussed their future sexual encounter, Appellant was explicit that he would not use a “rubber” because he would have no feeling and he set the timing of their meeting around her period so she “won’t need” birth control. Appellant requested details of her address and parents so he could check out the veracity of her statements to him.

Appellant further instigated conversations asking Ashley to bring younger friends with her for their meeting. He suggested he liked girls who were real flat chested and as young as six years of age; he asked her who her youngest friend was. Ashley advised Appellant that she had a friend that she could stay the weekend with and then discussed a friend who was ten years old, in the fourth grade, and a third grader who rode the school bus with her. Appellant specifically asked if Ashley would mind “me doing the 6 yold?”; he suggested the order would be the six year old first, next Ashley’s friend, and then Ashley all night. Appellant introduced the idea of filming the sexual encounters with Ashley and her friends and putting the recorded images on the internet. Appellant made it clear to Ashley that the planned meeting was against the law and they would be in trouble if any of the girls talked.

The conversations, including instant messenger conversations, e-mails and phone conversations, continued until October 18, 2002, when Appellant was arrested in Diamond, Missouri. In the conversations leading up to October 18, the plans were firmed up as to where to meet for the weekend. Ashley suggested Murphy’s One Stop right after school and gave directions to the store. Appellant requested details about the meeting, including what Ashley would be wearing, and assured Ashley if the situation did not feel right, he would leave. Ashley was told to get the key to the bathroom and go to the restroom, where she would meet Appellant.

Appellant was arrested after he drove to Murphy’s One Stop, exited his car, looked into the window of the store, and walked back toward his car. The female decoy, who was in the store, carried the key toward the bathroom, walking a few feet behind Appellant. In Appellant’s car was an aluminum case with a web camera and drive, a laptop computer, and numerous compact discs for use in a computer. Appellant admitted to the officer his correspondence with Ashley, but indicated to the police that had Ashley shown up, he was going to contact the police to advise them to counsel Ashley about the dangers of meeting someone she only knew from the internet.

Appellant’s argument in Point I is that the trial court erred in overruling his motion for judgment of acquittal because the State failed to prove that Appellant was guilty of attempted first degree statutory rape or attempted sexual exploitation of a minor in that Appellant never took a “substantial step” toward committing those offenses. While Appellant admits the sexual conversations occurred, he contends the drive to Diamond, Missouri, does not amount to a substantial step toward either crime. Appellant relies upon State v. Bates, 70 S.W.3d 532, 536 (Mo.App. W.D.2002), and State v. Molasky, 765 S.W.2d 597 (Mo. banc.1989), for the proposition that mere solicitation, including specific discussions about future plans, did not constitute a substantial step in the commission of the underlying crimes. The crimes in Bates, attempted statutory rape and attempted statutory sodomy, stemmed from Bates sending sexually explicit letters and pictures to a teenage girl. The crime in Molasky, attempted murder, emanated from conversations designed to arrange a murder of a prosecuting attorney and two others. Bates and Molasky are easily distinguishable; both involve an inmate who did no more than talk about the proposed crimes.

We find the analysis in State v. Young, 139 S.W.3d 194 (Mo.App. W.D.2004), to be squarely on point. In Young, the defendant engaged in e-mails and instant messaging of a sexual nature with a sheriff posing as a 14-year-old girl. Id. at 195. The defendant made plans to meet the victim at a bowling alley at a specific day and time and told the victim that he would be bringing condoms, alcoholic beverages, and lubricant. Id. The defendant was arrested when he arrived at the bowling alley at the prescribed time with condoms, four wine coolers and lubricant. Id. The court found the defendant committed a substantial step when he traveled to the arranged place at the arranged time carrying the “promised items.” Id. at 197.

Here, conversations between Appellant and Ashley indicated that Appellant would meet thirteen-year-old Ashley and her younger Mends at a specific time and a specific location for the purpose of a sexual relationship and that it would be recorded on a computer camera for viewing by others. Ashley was instructed to get the restroom key and walk toward the restroom. Appellant arrived at the convenience store at the agreed-upon time with a computer, camera, and video diskettes. Appellant not only drove to the convenience store, he exited the car and looked into the convenience store that Ashley had entered. As she exited the store, he turned in the direction of the restrooms. The evidence supports a finding that Appellant took a substantial step to commit the crimes of statutory rape and sexual exploitation of a minor. Point I is denied.

In Point II, Appellant claims the jury should have been given an instruction allowing him to submit the defense of entrapment. The defense of entrapment lies where a law enforcement officer, or his agent, induced a person to engage in conduct that he is not otherwise ready and willing to do. Section 562.066.2; State v. Willis, 662 S.W.2d 252 (Mo. banc 1983). In other words, to assert the defense of entrapment, defendant must prove both inducement to engage in unlawful conduct and an absence of a willingness to engage in such conduct. State v. Mitchell, 897 S.W.2d 187, 191 (Mo.App. S.D.1995).

Appellant is correct that he is entitled to an instruction on any theory that the evidence and the reasonable inferences therefrom tend to establish. See State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc 2002). However, the defense of entrapment is only available to a defendant if there is evidence both of an unlawful inducement by police to commit an unlawful act and the absence of a predisposition to engage in such conduct — that the defendant was not “ready and willing” to commit an unlawful act. Section 562.066.2; State v. Moore, 904 S.W.2d 365, 368 (Mo.App. E.D.1995). If the defendant has any predisposition to commit the crime, there need not be an instruction on entrapment because the evidence is not sufficient enough from which a reasonable jury could find entrapment. U.S. v. Berg, 178 F.3d 976, 980 (8th Cir.1999). Moreover, the defense of entrapment is an affirmative defense by which the defendant must admit having engaged in the proscribed conduct to be entitled to an entrapment instruction. See State v. Johnson, 728 S.W.2d 675 (Mo.App. S.D.1987) (defendant not entitled to .entrapment instruction where defendant denied the charge of selling narcotics).

Appellant tendered four jury instructions alleging the affirmative defense of entrapment. Appellant cites to the evidence that Ashley induced Appellant to take the “substantial step” of committing the crimes of statutory rape and sexual exploitation of a minor when he was not otherwise so inclined. Appellant contends that he was only willing to express his fantasies, which was not a crime he was charged or convicted of, and he was not willing to act upon his fantasies without the inducement by Ashley. He notes that Ashley initiated the majority of contacts with Appellant; specifically, he claims Ashley initiated seventeen of the nineteen instant messages and four of the eight emails between her and Appellant. Appellant indicated the portions of the conversations where Ashley first proposed that Appellant come to Diamond and persisted in trying to set a firm date; he claims he was reluctant to act on his desires. Appellant’s claim that he would not have committed the charged offenses but for the enticement by Ashley is not . supported by the evidence.

As noted above, on September 24, the first conversation was very much of a sexual nature. Appellant stated Ashley was pretty and he would like to meet her. Appellant initiated the sexual conversations on the first meeting and continued the conversations throughout. Furthermore, on October 11, without any prompting by Ashley, Appellant initiated a conversation regarding whether Ashley would allow Appellant to record the sex on a computer cam and said he could let other people watch if she did not mind. It was Appellant who asked Ashley whether there was a motel in town and made suggestions regarding the future meeting. While it is true that Ashley was an enthusiastic participant, Appellant was completely willing to engage in criminal conduct. In determining Appellant’s predisposition to commit the crime, we do not overlook the chat room where “Lover of Young Females” first introduced himself to Ashley was for older “guys” who like younger “girls.” Appellant had read the profile of Ashley, knew she was thirteen years of age by the profile, and confirmed that fact with her on the internet when he initiated the sexual conversations.

Appellant first brought up the subject of the invitation to Ashley’s younger “friends” and a group orgy, indicating he preferred children 6-8 years old; Appellant also suggested the video recording of the group sexual encounters. Appellant first talked about meeting Ashley when he suggested picking her up after school. Although Ashley did make the specific plans of where to meet Appellant, she did so at the request of Appellant to set it up for Friday to Sunday and who suggested that she get the key to the store’s bathroom to meet there.

As for Appellant’s claim that he expressed reservations, his reservation was not in committing the crime but in getting caught. On October 3, when Ashley asked if Appellant was going to come to Missouri, Appellant told her that he needed to phone again before he saw her; he needed to be careful of jail because “u are going to sleep with me.” Appellant specifically informed Ashley that it was the future acts between them that were illegal and not the conversations. Appellant continuously requested Ashley’s full name and address so he could check an online database to ensure that Ashley’s family actually existed, but never gave his last name, address, or accurate birth date. Appellant had a full understanding that getting caught engaging in sexual activities in Diamond, Missouri, with a thirteen-year-old girl would result in jail. He protected himself from detection as well as he could by placing phone calls to Ashley and not allowing her to call him, refusing to give accurate identifying information about himself, and checking Ashley’s biography with other data bases to insure its accuracy.

Our analysis of the messages convinces us the trial court did not err in disallowing the instructions of entrapment to be given to the jury. First, Appellant does not admit that he committed the crimes for which he was convicted and, second, there is no evidence that Appellant was not predisposed, ready and willing to commit these crimes. Appellant did not meet his burden of injecting into the case a proper case for entrapment. Point II is denied.

The judgment of conviction is affirmed.

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

      . A violation of sections 564.011 and 566.032. All references to statutes are to RSMo 2000, unless otherwise indicated.

      . A violation of sections 564.011 and 573.023

      . We use the term purported victim because the "child” who was involved in the conversations was actually a reserve deputy and former police chief of Diamond, Missouri.

      . The photograph was provided from a photo of an actual child which was morphed or altered specifically for use by police departments.

      . All of the visitors to the chat room can see the names of all the people logged into the chat room.

      . An instant messenger allows two people to speak in real time privately to each other.