source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    B.C., Appellant v. B.T. and K.F., Joint Custodians of N.C., Appellees.
    No. 2005-CA-000045-ME.
    Court of Appeals of Kentucky.
    Dec. 29, 2005.

      Delbert K. Pruitt, Paducah, KY, for appellant.
    Vicki R. Holloway, Paducah, ICY, for appellees.
    Before BARBER, BUCKINGHAM, and JOHNSON, Judges.

      . The parties will be referred to by their initials or family status to protect the interests of the minor child.

   OPINION

JOHNSON, Judge.

B.C. has appealed from the November 3, 2004, order of the McCracken Family Court which granted custody of his minor child, N.C., to B.T., the paternal grandmother of the child, and K.F., the paternal aunt of the child. Having concluded that the family court’s factual findings were not clearly erroneous, that it correctly applied the law, and that it did not abuse its discretion in making its custody award, we affirm.

B.C. and his wife, R.C., are the natural and biological parents of N.C., whose date of birth is June 17, 2002. On July 18, 2003, a juvenile dependency, neglect, and abuse petition was filed in the McCracken Family Court on behalf of N.C. by Alexia J. Pritchett, a social worker with the Cabinet for Families and Children. The petition stated that the mother had “verbally and physically assault[ed]” N.C.’s older sibling and the Cabinet feared that since the older sibling had been removed from the home that the mother’s anger would turn to N.C. The petition further stated:

The home is unsafe for a thirteen-month old child. The home is cluttered with piles of clothes and other items several feet high. [The mother] stores her medications on the couch. [The mother] stated the couch was her medicine cabinet and refused to move the medication stating [the child] does not climb on the couch. [The mother] makes baby rattles out of medication bottles and black-eyed peas. [The father] works six days a week driving a truck out of town.

An emergency custody order was entered the same date, temporarily placing N.C. in the custody of the Cabinet. On July 22, 2003, a temporary removal hearing was held and the family court entered an order placing N.C. in the temporary custody of B.T., the paternal grandmother.

On September 18, 2003, the family court held an adjudication hearing. The family court found that N.C. was a neglected child and allowed temporary custody to remain with the paternal grandmother. At a disposition hearing held on October 16, 2003, the family court found that because the mother neglected the minor child, and even though reasonable efforts had been made to prevent the child's removal from the home, it was in the best interests of the minor child to grant his temporary custody to the paternal grandmother. Pursuant to an amended disposition order entered on October 27, 2008, C.C., the mother’s sister, N.C.’s maternal aunt, was granted one overnight visitation per week with N.C., with the stipulation that if the mother was present for the visitation that her visitation must be supervised or the visitations at the maternal aunt’s home would terminate.

On December 18, 2003, B.T., the paternal grandmother, and K.F., the paternal aunt, filed a verified motion for permanent custody of N.C. During this time, the father filed a motion for a rule on September 27, 2004, stating that the paternal grandmother was denying him visitation with N.C. However, neither the father nor the mother filed a response to the paternal grandmother’s and the paternal aunt’s motion for custody. The father’s motion for a rule was renoticed on March 3, 2005. There is no order of record as to the father’s motion for a rule. N.C.’s guardian ad litem filed her report on November 10, 2004, recommending that the motion for permanent custody be granted. Following several delays, a hearing was held in the family court on November 8, 2004. The family court, in an order entered on December 3, 2004, found as follows:

1.The natural parents had inadequate housing for the minor child at the time of his removal from the home. The home continues to be inadequate as of the date of the hearing. In fact, [the mother] testified that the home is uninsurable due to structural problems. One room has no floor whatsoever, only open floor joists. This condition allows snakes, mice and insects to come into the home. One of the bathrooms is completely unusable.
2. The house was unsafe for a crawling infant. At the time of the removal, the house was littered with piles of clothing and other items. Medicines were kept within easy reach of the child. A loaded gun was left on a nightstand, within easy reach of the child. The baby’s older brother (age 9) took and shot the gun in the house on one occasion. A whiskey bottle was “stored” on the floor by the father’s chair, within easy reach of the child. Though these issues were addressed to the parents by Social Services prior to the removal, the conditions still existed at the time of removal. Neither [the father] nor [the mother] recognized the seriousness of these issues.
3. [The mother] is an unfit parent. She yelled, cursed and screamed at the children unnecessarily and inappropriately. She has also bit and choked her older child. Her older son was removed from her home due to her neglect and abuse....
4. [The father] failed to provide adequate shelter for his child prior to the removal. [The father] has made no significant effort over the fifteen month period [the child] has been gone to make the needed improvements to the house.
5. Neither parent has provided any financial support for the minor child since June, 2003.
6. The parents had supervised visitation throughout this proceeding. The parents have not fully exercised said visitation. They did not visit with him except a few hours during the week preceding the hearing, though the child was available. [The father] has had the opportunity to visit with his child, but chose not to for a period of two months (January and February 2004).

The trial court also found both parents to be unfit, awarded the paternal grandmother and the paternal aunt joint custody of N.C., and ordered that the father and the mother be required to pay child support. From that order, the father filed this appeal.

This proceeding was initially brought by the Cabinet based on a petition alleging that N.C. was an abused and neglected child as described in KRS 620.070. McCracken County has a family court system in place, thus the actions of the family court in this case are viewed differently than a district court carrying out the same functions. The implementation of the Family Court System has made the analysis of these type of cases somewhat confusing. Before we begin our analysis of the issues at hand, we will outline the procedures, as set forth by statute.

First, we will address the jurisdiction of the family court. It is a misnomer to say that a family court serves the role of a district court and a circuit court. KRS 23A.100 specifically states that the family court is “a division of Circuit Court with general jurisdiction pursuant to Section 112(6) of the Constitution of Kentucky.” As a division of the circuit court, the family court has jurisdiction of cases, including child custody and visitation. Further, while still acting as a division of the circuit court, the family court has “additional jurisdiction” over “[dependency, neglect, and abuse proceedings under KRS Chapter 620,” such cases which are usually under the jurisdiction of the district courts in Kentucky. Thus, the family court when hearing cases normally within the district court’s jurisdiction, is not sitting as a district court, but rather as a circuit court given special jurisdiction to hear cases normally under the district court’s charge.

This distinction is critical as it justifies this Court’s authority to hear the case before us. Appeals from district court orders are appealed to the circuit court, not to this Court. However, regardless of the type of case before a family court, it is still acting as a circuit court and thus an appeal to this Court is proper. Therefore, it is irrelevant whether the current action is one that would have been handled by a district court or a circuit court, as long as it is within the jurisdiction given to the family court under KRS 23A.100, our review is proper.

Second, we will analyze the procedure used by either a district court or a family court under KRS Chapter 610 and KRS Chapter 620 to determine whether temporary removal of a child is necessary based on his status as a dependant, neglected, or abused child. KRS 600.020(1) defines an abused or neglected child as follows:

[A] child whose health or welfare is harmed or threatened with harm when his parent, guardian, or other person exercising custodial control or supervision of the child:
(a) Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
(b) Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
(c) Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child ...;
(d) Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
(h) Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child’s well-being_

The formalities of filing a dependency, neglect, or abuse action are outlined in KRS 620.070. All juvenile proceedings “shall consist of two (2) distinct hearings, an adjudication and a disposition^]” In a dependency, neglect, or abuse case, “[t]he adjudication shall determine the truth or falsity of the allegations in the petition and shall be made on the basis of an admission or confession of the child to the court or by the taking of evidence.” “The burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence.” The adjudication, which determines whether a child has in fact been neglected or abused is considered a trial and the parties have a right to appeal.

Once the family court has determined by a preponderance of the evidence that a minor child is dependant due to neglect or abuse, the family court will hold a separate hearing to determine the temporary removal of the child pursuant to KRS 620.080. “The temporary removal hearing statute’s substantive standard strikes the balance between parental rights and child protection by erring on the side of child protection.... The focus of a temporary removal hearing is the possibility of harm to the child rather than a determination of the truth or falsity of the dependency, neglect, or abuse petition’s allegations” [footnote omitted]. The burden of proof is the same as at the adjudication hearing, ie., preponderance of the evidence; however, at a temporary removal hearing, hearsay testimony is allowed for good cause. Should the family court decide that the minor child should be removed from the home, it shall issue a temporary custody order stating “the specific reasons for removal and showing] that alternative less restrictive placements and services have been considered.”

KRS 620.140 provides that continuation in the home must “be contrary to the welfare of the child[.]” This statute seems to indicate that the family court should make reasonable efforts to reunify a child with its family as defined in KRS 620.020(10). However, pursuant to KRS 610.127(7), “[r]easonable efforts as defined in KRS 620.020 shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction determines that the parent has: (7) Other circumstances in existence that make continuation or implementation of reasonable efforts to preserve or reunify the family inconsistent with the best interests of the child and with the permanency plan for the child.”

In determining the temporary custody of a child found to be dependant, neglected, or abused, the family court shall make its determination based on the best interests of the child. In determining custody in such a situation, the family court, or a district court “shall utilize the provisions of KRS Chapter 403 relating to child custody and visitation.” Once a family court has made a disposition as to the temporary custody placement in a dependency, neglect, or abuse case, “[t]he family, custodian, guardian, legal representative of such child” may move the family court to continue the custody order prior to expiration.

There is no dispute between the parties that the paternal grandmother and the paternal aunt were de facto custodians, as defined in KRS 403.270(l)(a), at the time of filing the motion for permanent custody of N.C. Thus, there is no dispute that the family court should have used the “best interests of the child” standard in determining N.C.’s custody between his defacto custodians and his biological father, B.C., as all are on equal footing. However, the father’s arguments lie in whether the family court erred in its analysis of KRS 403.270(2) and whether the father was given equal consideration with the de facto custodians.

In reviewing a child-custody award, the appellate standard of review includes a determination of whether the factual findings of the family court are clearly erroneous. A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person. Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court’s ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court’s decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.

The father begins his argument by contesting the family court’s initial adjudication of neglect and order of removal of N.C. from his home. He argues that there was not sufficient evidence to justify the initial removal on September 18, 2003, and that that decision was based, in part, on hearsay evidence. This argument is not well founded.

The original family court action brought under KRS 620.070 had been final for two months prior to the filing of a motion for permanent custody of N.C. by the paternal grandmother and the paternal aunt. Pursuant to KRS 620.110, any person aggrieved by the issuance of a temporary order may appeal that decision. The father took no steps to do so, and even during the year in which the motion for permanent custody was filed and the hearing was held, the father neither filed a reply to the motion, nor did he file his own motion for custody. There was a substantial and valid basis for N.C.’s removal and the family court had jurisdiction. Thereafter, the child and the parents were properly represented and the matter proceeded to its conclusion following all constitutional due process protections and Kentucky statutory law. The family court’s finding on the initial determination of neglect and removal were not clearly erroneous.

The father also argues that when making the custody award the family court should have considered the issues that led to the removal and also the steps taken by him and the mother to alleviate the issues that led to the removal. It is evident by reviewing the family court’s custody order that the family court heard evidence regarding both of these issues and made appropriate findings.

The father also argues that the family court erred by failing to accept the findings of the expert witness, Dr. Stephen Alexander as Dr. Alexander provided the only expert testimony regarding the mother’s mental condition. Dr. Alexander testified that the mother had no clinical psychopathology. First, it should be pointed out that the mother is not a party to this appeal and how this report affected her chances for custody of N.C. is moot. Regardless of whether the mother had a defined psychological condition, the family court supported its decision with overwhelming evidence of the mother’s actions that were contrary to N.C.’s best interests. Therefore, we find no error by the family court as to this issue.

The father then argues that there was no evidence that he failed to protect N.C., but rather that there was evidence he had taken a different job to put him home on a regular basis, had supplied health insurance, and had bought various necessities for N.C. However, the father failed to request amended or additional findings pursuant to CR 52.02. When a party fails to make a CR 52.02 request for additional findings, CR 52.04 provides that:

A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by written request for a finding on that issue or by a motion pursuant to Rule 52.02.

The father made no such motion. His failure to request additional findings of fact by the family court is fatal to his appeal as to the issue of the lack of such findings of fact.

Our Legislature, through KRS 403.270(2), commands the family court to determine custody based on the best interests of the child, while considering all appropriate parties equally and considering all relevant factors. This Court has determined that there is no “significant difference” in the analysis required to make an award of joint custody versus sole custody. The father argues that he was not given adequate consideration for joint custody of N.C. However, in reviewing the record and the family court’s final order, it appears that the family court considered all relevant factors before determining what custody arrangement was in the best interests of N.C. The family court considered the evidence presented, including the testimony of the parties. Considering the clear evidence of abuse and neglect, we agree with the family court that the evidence overwhelmingly demonstrated that the father was unfit to parent N.C. Thus, the evidence in the record supports the family court’s findings.

For the foregoing reasons, the order of the McCracken Family Court is affirmed.

ALL CONCUR.

      . The family court found all reasonable efforts were made to prevent the child’s removal from the home.

      . The Cabinet filed a predispositional investigation report prior to the disposition order being entered. While the Cabinet found the home clean and medicines were up away from children, it had concern because the mother had only visited with the minor child once or twice a week, while she had the opportunity to do so every day. The Cabinet report states: "The Cabinet recommends that [the mother] receive individual counseling to work on her own issues before the children are returned to her.”

      . The family court noted in its custody order entered on December 3, 2004, that the maternal aunt did not file a response or appear at the hearing on the motion for permanent custody brought by the paternal grandmother and the paternal aunt.

      . The record does not indicate whether child support was ever set.

      . The mother is not a party to this appeal, thus her rights to custody of N.C. will not be determined by this Court at this time.

      . Kentucky Revised Statutes.

      . KRS 23A.100(l)(b) and (l)(c).

      . KRS 23A.100(2)(c).

      . KRS 610.010(l)(e) and (4); see also KRS 620.070(1).

      . KRS 610.130.

      . KRS 610.080.

      . KRS 610.080(1); see also KRS 620.100(3).

      . KRS 620.100(3).

      . KRS 620.100(2); see also KRS 610.060(l)(a)(noting that both the child and his or her parents have a right to counsel at such hearings).

      . KRS 620.100(3).

      . 15 Graham & Keller Kentucky Practice § 6.15 (2003).

      . KRS 620.080(2).

      . KRS 620.090.

      . See also KRS 620.130(1).

      . See KRS 620.020(10) (stating that " '[r]ea-sonable efforts' means the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable a child to safely live at home ... ”).

      . See KRS 620.023 which states as follows:
      (1) Evidence of the following circumstances if relevant shall be considered by the court in all proceedings conducted pursuant to KRS Chapter 620 in which the court is required to render decisions in the best interest of the child:
      (a) Mental illness as defined in KRS 202A.011 or mental retardation as defined in KRS 202B.010 of the parent, as attested to by a qualified mental health professional, which renders the parent unable to care for the immediate and ongoing needs of the child;
      (b) Acts of abuse or neglect as defined in KRS 600.020 toward any child;
      (c) Alcohol and other drug abuse, as defined in KRS 222.005, that results in an incapacity by the parent or caretaker to provide essential care and protection for the child;
      (d)A finding of domestic violence and abuse as defined in KRS 403.720, whether or not committed in the presence of the child;
      (e)Any other crime committed by a parent which results in the death or permanent physical or mental disability of a member of that parent's family or household; and
      (f)The existence of any guardianship or conservatorship of the parent pursuant to a determination of disability or partial disability as made under KRS 387.500 to 387.770 and 387.990.
      (2) In determining the best interest of the child, the court may consider the effectiveness of rehabilitative efforts made by the parent or caretaker intended to address circumstances in this section.

      .KRS 403.270(2) states as follows:
      The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including:
      (a) The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;
      (b) The wishes of the child as to his custodian;
      (c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;
      (d) The child’s adjustment to his home, school, and community;
      (e) The mental and physical health of all individuals involved;
      (f) Information, records, and evidence of domestic violence as defined in KRS 403.720;
      (g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
      (h) The intent of the parent or parents in placing the child with a de facto custodian; and
      (i) The circumstances under which the child was placed or allowed to remain the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

      . KRS 620.027 (stating that "[i]n any case where the child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interest of the child”).

      . KRS 610.120(l)(b).

      . KRS 403.270(2).

      . Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986).

      . Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003).

      . Reichle, 719 S.W.2d at 444.

      . Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.1982); Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.2002).

      . Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994).

      . Sherfey, 74 S.W.3d at 782-83.

      . KRS 403.270(2)(i).

      .KRS 620.023(2).

      . Eiland v. Ferrell, 937 S.W.2d 713, 716 (Ky.1997)(citing Cherry, 634 S.W.2d at 423).

      . Squires v. Squires, 854 S.W.2d 765, 768 (Ky.1993).


author: TACKETT, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant v. Barry K. YOUNG, Appellee.
    No. 2004-CA-002370-MR.
    Court of Appeals of Kentucky.
    Dec. 29, 2005.

      Gregory D. Stumbo, Attorney General of Kentucky, Robert E. Prather, Assistant Attorney General, Frankfort, KY, for appellant.
    David J. Guarnieri, Frankfort, KY, for appellee.
    Before BUCKINGHAM, JOHNSON, and TACKETT, Judges.
   OPINION

TACKETT, Judge.

The Commonwealth of Kentucky appeals from an order of the Anderson Circuit Court allowing certain evidence of an alleged victim’s behavior to be admitted in a rape prosecution. Barry Young, the defendant in this case, filed a motion prior to trial to introduce certain acts by the alleged victim in support of his defense that their sexual encounter was consensual. The trial court agreed to admit evidence of the prosecuting witness’ sexual fantasy about the defendant, her multiple appearances at his place of employment prior to the incident, and her relationship with the Lawrenceburg City Police Department af-terwards. The Commonwealth argues that this evidence violates Kentucky’s rape shield rule. We disagree and affirm the trial court.

There is no agreement as to the events which took place on the night in question. The prosecuting witness alleges that, sometime in the summer of 2002, Young stopped her for a traffic violation and, using his authority as a police officer, coerced her into having intercourse with him in lieu of being arrested. She also claims that Young made threatening statements to her and told her that no one would believe her word over that of a cop. According to Young, he was on his way home after his shift ended at 3:00 a.m. when the alleged victim flagged him down. He was acquainted with her and, when he stopped to see what she wanted, she told him they needed to talk. Young claims they drove to the Anderson County Park in separate vehicles and, while they were there, engaged in consensual sex.

Sometime after their encounter, the prosecuting witness was working as a confidential informant for the police department. On March 25, 2003, she was at the County Attorney’s office waiting for a warrant to be served on the target of the drug investigation in which she had been assisting. While she was waiting, Young called the County Attorney to ask for an arrest warrant in an assault case, and he was told to come by the office to pick it up. When the alleged victim became aware that Young was coming by the office, she became upset and reported that he had raped her sometime the previous summer.

The Grand Jury indicted Young on charges of first-degree rape, intimidating a witness, first-degree official misconduct, and tampering with a witness. Prior to trial, Young submitted a sealed motion giving notice of his intent to introduce evidence covered by the rape shield rule. The trial court held an in camera hearing prior to swearing in the jury. Young proposed to offer evidence that the alleged victim 1) told a co-worker that she had a sexual fantasy about Young; 2) frequented his place of employment and flirted with him; 3) dated a doctor after the alleged rape and did not mention it to him; 4) maintained a relationship with the police department after the alleged rape; 5) fabricated the rape allegation to explain a pregnancy to her sterile husband; and 6) exchanged drugs for money and acted in homemade pornographic videos. The trial court ruled that the evidence regarding the alleged victim’s relationship with the doctor and her prior sexual activities involving drugs and pornography would be excluded. Young withdrew his request to enter evidence of her pregnancy and her husband’s sterility; however, the remaining evidence was held to be admissible. The Commonwealth then requested a continuance which the trial court granted over Young’s objection. This interlocutory appeal followed.

The Commonwealth argues that the trial court abused its discretion by finding evidence of the prosecuting witness’ sexual fantasy, her previous flirtatious behavior, and her relationship with the police department which followed the alleged rape to be admissible. “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). Kentucky Rule of Evidence (KRE) 412 sets forth the protections for victims of sexual crimes by restricting the type of evidence which can be admitted in a rape prosecution. The relevant portion of the rule reads as follows:

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
(b) Exceptions:
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) any other evidence directly pertaining to the offense charged....

The Commonwealth contends that the evidence which Young sought to offer is excluded under the rule and does not fall under any of the exceptions in KRE 412(b).

According to the Commonwealth, the prosecuting witness’ conduct prior to the alleged rape did not constitute sexual behavior and, therefore, would not be admissible under KRE 412(b)(1)(B). The Commonwealth argues that the language of the rule was meant to be construed narrowly and to limit the evidence to actual sexual contact between the parties. The alleged victim made statements to her co-worker that she wanted to engage in sex with Young to such a degree that it would melt the ice in the water cooler. She also commented, in reference to Young, that she “wanted some of that.” The Commonwealth contends that, since she did not act on her wishes at the time these statements were made, the comments are more properly characterized as sexual predisposition, rather than sexual behavior which would be admissible under section (b)(1)(B) of the rape shield rule.

The case law in our jurisdiction interpreting this portion of Rule 412 is scant; however, Professor Robert Lawson’s oft-cited treatise on Kentucky evidence law is instructive in resolving the issue. Kentucky’s rape shield rule is modeled on Federal Rule 412, and Lawson quotes the Advisory Committee on the rule as follows:

The rule ... also exelude[s] all other evidence relating to an alleged victim of sexual misconduct that is offered to prove a sexual predisposition. This ... is designed to exclude evidence that does not directly refer to sexual activities or thoughts....

(emphasis added) Lawson, Robert G., The Kentucky Evidence Law Handbook FouHh Edition, LexisNexis, p. 161 (2003). Thus, in drafting Federal Rule 412, it was contemplated that sexual thoughts would be treated as behavior, rather than sexual predisposition. Since the prosecuting witness’ sexual fantasy was directed toward Young, the trial court properly found that it constituted sexual behavior which is admissible under KRE 412(b)(1)(B).

The trial court also ruled that Young would be allowed to present evidence that the alleged victim frequented the Police Department when he was working at night and flirted or made sexual advances directed at him. Again, the Commonwealth argues that Young is seeking to introduce prohibited evidence of the prosecuting witness’ sexual predisposition. KRE 412(b)(1)(C) permits the introduction of any other evidence directly pertaining to the offense charged. According to Lawson, this exception to the exclusionary nature of the rule, which does not mention sexual behavior, could be used to allow evidence of the alleged victim’s sexual predisposition as long as it directly related to the charged offense. Lawson, p. 166. Young’s entire defense to the charge of first-degree rape is that the sexual encounter was consensual; therefore, evidence of the alleged victim’s predisposition to have sex with him would relate directly to the charged offense.

Finally, the Commonwealth objects to evidence that, after the alleged rape, the prosecuting witness had an ongoing relationship with the Lawrenceburg Police Department, which included work as a confidential informant. The Commonwealth argues that admitting this evidence violates the spirit of KRE 412 since Young would be seeking to prove that a woman who had been raped would not typically continue to frequent the place where her alleged attacker worked. Regardless of Young’s reason for wishing to introduce the evidence, it in no way involves the prosecuting witness’ sexual conduct and, as such, is not covered by Rule 412.

The Commonwealth contends that, even if we do not reverse the trial court’s ruling on admissibility under KRE 412, the evidence would still be inadmissible under KRE 403 because its probative value is outweighed by its prejudicial nature. We disagree. This is a case which hinges solely on the credibility of the prosecuting witness and Young. There is no medical evidence since the alleged rape was not reported for months. Excluding the evidence as the Commonwealth desires would be tantamount to denying Young his constitutional right to present a defense of consensual sexual contact. For the foregoing reasons, the order of the Anderson Circuit Court is affirmed.

ALL CONCUR.


author: MARY R. RUSSELL, Judge. LAURA DENVIR STITH, Judge,

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 86441.
    Supreme Court of Missouri, En Banc.
    Dec. 20, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, State Solicitor, Jefferson City, for appellant.
    Ann K. Covington, B. Derek Rose, St. Louis, Edward F. Downey, Jefferson City, for respondent.
   MARY R. RUSSELL, Judge.

The Director of Revenue seeks review of the Administrative Hearing Commission’s (“AHC”) decision granting Southwestern Bell Telephone Company a refund of $598,944.14, plus interest, in use tax paid on purchases in the second quarter of 1992. The AHC’s decision is affirmed in part and reversed in part, and the cause is remanded.

I. Jurisdiction and Standard of Review

This Court has jurisdiction to review the AHC’s decision pursuant to Mo. Const, art. V, section 3, as the case involves construction of the state revenue laws. The AHC’s interpretation of revenue laws is reviewed de novo. DST Sys., Inc. v. Dir. of Revenue, 43 S.W.3d 799, 800 (Mo. banc 2001). The AHC’s factual determinations will be upheld if the law supports them and, after reviewing the whole record, there is substantial evidence that supports them. Id.

A taxpayer carries the burden of showing they are entitled to an exemption under the statutes. Branson Props. USA, L.P. v. Dir. of Revenue, 110 S.W.3d 824, 825 (Mo. banc 2003). Exemptions from taxation are to be strictly construed against the taxpayer, and any doubt is resolved in favor of application of the tax. Id.

II. Background

Bell seeks a refund of the use tax it paid on machinery and equipment used to produce basic and vertical telephone services. Bell contends it is entitled to a refund under sections 144.030.2(4) and (5), RSMo Supp.1992, which provide sales and use tax exemptions for certain machinery and equipment “used directly” in manufacturing a product intended for final use or consumption.

Director denied Bell’s refund claim, and Bell sought review of that decision from the AHC. The AHC affirmed Director’s denial of the refund, finding that Bell did not qualify for a manufacturing exemption because telephone service was not a manufactured product. The AHC also found that, even if Bell were engaged in manufacturing, its purchases did not qualify for the exemption because the legislature had not intended for all telephone components to be exempt as “used directly” in manufacturing.

Bell sought review of the AHC’s decision. In Southwestern Bell Telephone Co. v. Director of Revenue, 78 S.W.3d 763 (Mo. banc 2002) (hereinafter “Bell /”), this Court held that Bell’s telephone services constituted the manufacturing of a product intended for final use and consumption for purposes of the sales and use tax exemptions. Bell I, 78 S.W.3d at 767-68 (holding Bell’s basic telephone services and various vertical services are intangible products that are manufactured). This Court, however, remanded to the AHC for further fact-finding as to whether Bell’s purchases were qualifying machinery and equipment under sections 144.030.2(4) and (5). Bell I, 78 S.W.3d at 768.

On remand from Bell I, the AHC ruled in Bell’s favor. The AHC concluded that all of Bell’s purchases were machinery and equipment “used directly” in manufacturing such that they qualified for the use tax exemption and, therefore, Bell was entitled to its full refund claim of $598,944.14. The AHC noted that Director had conceded that certain purchases — mostly switching components and central office equipment — were not taxable, leaving a challenged amount of $242,328.63. Director now seeks review of the AHC’s decision on remand.

In Bell I, this Court remanded to the AHC so that it could review the evidence to determine if Bell’s claimed purchases were for “machinery and equipment, or materials and supplies solely required for the installation or construction of such machinery and equipment.” Id. Under the plain language of sections 144.030.2(4) and (5), however, this review necessarily required the AHC to determine if the purchases at issue were “used directly” in manufacturing. Under the statute, purchases must be “used directly” in order to qualify for the exemption.

Director challenges the AHC’s conclusion that Bell’s purchases are “used directly” in manufacturing. In reviewing the AHC’s decision on remand, this Court must determine if the AHC erred in finding that all of Bell’s purchases were machinery and equipment “used directly” in its manufacture of basic and vertical telephone services.

III. What is “used directly”?

The standard for determining what is “used directly” in manufacturing has evolved as manufacturing itself has changed from traditional rust-belt factories to industries that are increasingly reliant on what the AHC appropriately calls “technology of a new millennium.” Keeping pace with modern industry, especially in information and communication technologies, has required consideration of how the manufacturing exemption applies to intangible products or services. Bell I, 78 S.W.3d at 766. As technology has evolved, consideration has been given to how the manufacturing exemption applies when a company’s machinery and equipment is connected by telephone lines and via data processing connections. As noted in Bell I, this case requires “ ‘the application of a statutory framework that first took shape in the thirties and forties to [current] technology.’ ” Id. at 763-64 (quoting Bridge Data Co. v. Dir. of Revenue, 794 S.W.2d 204, 205 (Mo. banc 1990), abrogated by Int’l Bus. Machs. Corp. v. Dir. of Revenue, 958 S.W.2d 554 (Mo. banc 1997)).

The meaning of “used directly in manufacturing a product” was first addressed in Floyd Charcoal Co., Inc. v. Director of Revenue, 599 S.W.2d 173, 176 (Mo. banc 1980), abrogated on other grounds by AlTom Inv., Inc. v. Dir. of Revenue, 774 S.W.2d 131 (Mo. banc 1989). In Floyd Charcoal, this Court adopted the “integrated plant” theory for determining what is “directly used” in manufacturing. 599 S.W.2d at 177-78.

The “integrated plant” theory stresses that:

‘The basic questions are the following: (1) Is the disputed item necessary to production? (2) How close, physically and causally, is the disputed item to the finished product? (3) Does the disputed item operate harmoniously with the admittedly exempt machinery to make an integrated and synchronized system?
It is not practical to divide [the] plant into ‘distinct’ stages. It was not built that way, and it does not operate that way. The words ‘directly and exclusively’ should not be construed to require the division into theoretically distinct stages of what is in fact continuous and indivisible.’

Id. at 177 (quoting Niagara Mohawk Power Corp. v. Wanamaker, 286 A.D. 446, 144 N.Y.S.2d 458, 461-62 (1955), aff'd, 2 N.Y.2d 764, 157 N.Y.S.2d 972, 139 N.E.2d 150 (1956)).

Floyd Charcoal rejected the argument that equipment could not qualify for the manufacturing exemption if it did not produce a change in the composition of raw materials involved in the manufacturing process, stating:

Modem manufacturing facilities are designed to operate on an integrated basis .... [and] limiting] the exemption to those items of machinery or equipment which produce a change in the composition of the raw materials involved in the manufacturing process would ignore the essential contribution of the devices required for such operation.

Floyd Charcoal, 599 S.W.2d at 178.

Floyd Charcoal also rejected the contention that the relevant question was “whether or not the manufacturing operation may be carried on without the machinery in question,” because “[s]uch a test does not comport with the reality of the process involved.” Id.

Floyd Charcoal’s adoption of the three-prong “integrated plant” theory approach was consistent with the purpose of Missouri’s manufacturing exemption, which was enacted by the legislature to encourage the production of items ultimately subject to sales tax and to encourage the location and expansion of industry in Missouri. Id.; Concord Publ’g House, Inc. v. Dir. of Revenue, 916 S.W.2d 186, 190 (Mo. banc 1996). The exemption reduces multiple taxation that occurs where purchases for resale are taxed numerous times during the journey of goods to the ultimate consumer, such that the tax paid by the manufacturer is passed on to the consumer, who is, in turn, effectively taxed on a tax.

Since Floyd Charcoal, other cases have considered the “integrated plant” theory in deciding whether items are “used directly” in manufacturing such that they are exempt from sales and use tax.

The “integrated plant” theory as adopted in Floyd Charcoal was applied in Noranda Aluminum, Inc. v. Missouri Department of Revenue, 599 S.W.2d 1 (Mo.1980), wherein this Court discussed that the equipment at issue was “used in steps or operations that are essential to and comprise an integral part of [the] manufacturing process, and [was, therefore,] used directly for manufacturing or fabricating a product....” Norando, 599 S.W.2d at 4 (internal citations omitted).

Concord, 916 S.W.2d 186, reiterated that Floyd Charcoal had rejected strict interpretation of the phrase “directly used” to exempt only machines that physically alter raw materials to a finished product. Concord, 916 S.W.2d at 191-92. It asserted that “Missouri has adopted the integrated plant doctrine, viewing manufacturing operations as continuous and indivisible.” Id. at 191 (internal citations omitted). In Concord, computers used in manufacturing a newspaper were determined to be “directly used in manufacturing because they [were] an integral part of the publication process” and provided “the most important step in manufacturing a newspaper, the composition and editing of its contents.” Id. at 192.

In holding that the computers were exempt in Concord, this Court found the “integrated plant” doctrine can apply where two distinct corporations are cooperatively involved in manufacturing because it can “span two corporate entities as long as both businesses work together to manufacture a single product” and the “exchange between [the two corporations] occur[s] as a coordinated and necessary step in the manufacturing process.” Id. at 192-93.

Concord also found that physical distance between the claimed computers and other manufacturing equipment was a faetor to consider in determining if the computers were an integral part of manufacturing, but it was not a determinative factor. Id. at 193. Concord noted that because the computers were essential to manufacturing, their physical distance from other equipment did not break the direct tie required for the manufacturing exemption to apply. Id.

Similarly, in DST Systems, a computer system was found to be part of an “integrated plant” for producing printed statements via a subsidiary, even though the printing and computing occurred at different sites. 43 S.W.3d at 803. DST Systems discussed that the “integrated plant” doctrine views manufacturing operations as “continuous and indivisible” and found that DST’s equipment was exempt because it was “substantially,” though not exclusively, used for manufacturing the products and was “an integral part in producing the ultimate product.” Id.

The most recent case discussing the “integrated plant” theory is UtiliCorp United, Inc. v. Director of Revenue, 75 S.W.3d 725 (Mo. banc 2001). UtiliCorp concluded that electricity transmission and distribution equipment is not part of an “integrated plant,” because the equipment essentially repackages an existing product and, therefore, is not “used directly” in manufacturing. 75 S.W.3d at 728-29.

In this case, the AHC concluded that each category of equipment that Bell claimed qualified for the manufacturing exemption because it was “used directly” in manufacturing.

IV. Points on Appeal

A. How broad is Bell I’s definition of “manufacturing”?

Director first argues that the AHC erred in finding that Bell’s telephone network equipment was “used directly in manufacturing” because the AHC too broadly interpreted this Court’s holding in Bell I as to what part of telephone service constitutes manufacturing. She asserts that Bell I holds that the “product” that Bell “manufactures” is the reproduction of the human voice via transformation of voice to electronic signal, which occurs in customer-owned telephone sets on customers’ premises.

Director incorrectly maintains that Bell I limits “manufacturing” in this case to the transformation of a voice that occurs in a customer’s telephone set. Bell I held that “[bjasic telephone services and the various vertical services involved herein are intangible products that are manufactured.” 78 S.W.3d at 768. Bell 1 makes no statement limiting Bell’s manufacturing only to the conversion of voice to electronic signals. Instead, Bell I holds that the product that Bell manufactures is the ability to hear a reproduction of the human voice over appreciable distances. Id.

While voice-to-signal and signal-to-voice transformations occur on customers’ telephone sets, those transformations are valueless unless the signals are moved over the distances between customers so that a reproduction of the voice ultimately can be heard. The components located at the customers’ premises are the beginning and the end of the telephone system, but the customers’ components cannot produce telephone service without Bell’s components. To the extent that Director argues that Bell’s middle-of-the-system components are not a part of the “manufacture” of telephone services as discussed in Bell I and, thereby, do not qualify for the manufacturing exemption, the arguments are without merit.

Bell I’s holding remains: “[b]asic telephone services and the various vertical services involved herein are intangible products that are manufactured.” 78 S.W.3d at 768. As such, the machinery and equipment used to provide these basic and vertical services could qualify for the manufacturing exemption, if all the required elements of the exemption are met. The AHC was instructed to determine on remand if Bell’s claimed purchases were machinery and equipment that qualified for the exemption. To that end, the AHC was required to explore whether the claimed items were “used directly” in manufacturing.

B. Did the AHC wrongly apply the “integrated plant” doctrine?

Director argues that the AHC wrongly applied the “integrated plant” doctrine to the telephone system because the system performs some functions at the customer’s location on the customer’s equipment. She contends that “the AHC has taken the unprecedented step of permitting one of two unrelated persons operating in two different locations to invoke the [manufacturing] exception without the other” and urges this Court to “hold the ‘integrated plant doctrine’ within reasonable bounds.”

In applying the “integrated plant” doctrine to the multitude of components that make up the entire telephone system, the AHC did not wrongly extend the doctrine’s reach to “unrelated persons.” The doctrine requires examination of location and ownership to the extent that it asks in its second prong, “How close, physically and causally, is the disputed item to the finished product?” Nothing in this question requires claimed machinery and equipment to be located in the same building or to have common ownership to qualify for the exemption.

In Concord, this Court held that the “integrated plant” doctrine could span two corporate entities as long as both worked together to create a single product and the exchange between them “occurred as a coordinated and necessary step in the manufacturing process.” 916 S.W.2d at 192-93. The AHC’s decision in this case is supported by Concord.

The end product of telephone service could not be produced without the conversion of voice-to-signal and signal-to-voice that occurs at customers’ premises. As discussed above, however, the manufacture of telephone services occurs throughout the entire telephone system, not only at customers’ locations. The multitude of component parts of the telephone system are necessarily spread over far distances, but they are not scattered and unconnected. Instead, the entire system operates continuously along pathways formed by much of the equipment at issue in this case. In this case, like in Concord, two distinct entities are working together to create a single product in an integrated and coordinated process. Given this, the AHC did not err in applying the “integrated plant” doctrine to Bell’s component parts of the telephone system to determine if they are “used directly” in manufacturing.

C. Are pay telephone components “used directly” in manufacturing?

Director contends the AHC wrongly applied the “integrated plant” doctrine in concluding that Bell’s pay telephone components qualified for the manufacturing exemption. She argues that the AHC erred in concluding that these items qualified for the exemption because they “operate harmoniously” with Bell’s manufacturing equipment. She asserts that prior cases have applied the “integrated plant doctrine” in a way that requires equipment to be used in manufacturing, not merely alongside or in connection with manufacturing.

The AHC found:

Although pay phones are not absolutely essential to the provision of telephone service, and are not closely connected to those portions of the system that actually effect a change in the signals, they ‘operate harmoniously with the admittedly exempt machinery to make an integrated and synchronized system.’ ... [I]tems such as pay telephone components should not be disqualified for the exemptions on grounds that they are not ‘directly used in manufacturing the product.

The AHC’s holding in this regard clearly conflicts with the three-prong test of the “integrated plant” doctrine adopted in Floyd Charcoal, which remains the test for determining whether machinery and equipment claimed under the manufacturing exemption is “used directly” in manufacturing.

In applying the “integrated plant” doctrine, all three prongs should be examined before determining whether an item qualifies for the manufacturing exemption. If an item is not necessary to production, it cannot be exempt. If it is not close physically or causally to the end product, it cannot be exempt. If it does not operate with admittedly exempt items in an integrated and synchronized system, it cannot be exempt.

Although the AHC found that there was evidence to satisfy the last prong of the test, that cannot overcome its findings that the pay telephone components “are not absolutely essential” and “not closely connected” to production components.

The portions of the AHC’s decision concluding that all pay telephone components are exempt are reversed, and the cause is remanded to the AHC for new findings and conclusions as to these claimed items. On remand, the AHC should consider all three prongs of the “integrated plant” doctrine with equal force.

D. Does “vertical services” equipment qualify for the exemption?

Director argues that the AHC wrongly concluded that all of Bell’s equipment used to provide “vertical services” qualifies for the manufacturing exemption. She acknowledges Bell Fs holding that “the various vertical services ... are intangible products that are manufactured,” but again asserts that Bell I limits Bell’s manufacturing to the “transformation of voice to electronic impulses” or the creation of “tones and other sounds that consumers use.” She contends that Bell’s vertical services cannot qualify for the manufacturing exemption unless they involve signal transformation or signal tones. She argues that vertical services that merely reproduce, not create, a signal should not be exempt, nor should vertical services that occur only at the central switch and send no signals to customers.

Bell I concluded that both basic telephone services and various vertical services are intangible products that are manufactured such that the manufacturing exemption can apply. 78 S.W.3d at 768. Bell’s vertical services are not necessary to production of basic telephone service, but Bell I instructs that they are additional intangible products that are manufactured by Bell that can qualify for the manufacturing exemption. As discussed above, Bell I did not confine Bell’s manufacturing merely to signal transformation.

Director argues, however, that this Court’s holding as to intangible vertical services cannot extend to include Bell’s vertical billing services, which produce a tangible product in the form of billing reports. She argues that vertical billing services equipment should not be exempt because it is not “used directly” in manufacturing Bell’s products, but is used merely to bill customers for a product manufactured by other equipment.

Bell’s billing services involve the compilation of information in a format requested by customers — electronically, on paper, or on disk or CD — that provides customers information about their use of Bell’s basic and vertical services. The billing services, however, are more than the tool by which Bell collects the money it is owed for providing its services. Like Bell’s other vertical services, Bell’s vertical billing services have independent value to customers who purchase the services and are taxed on that purchase.

If Bell’s vertical billing services merely provided the means by which Bell charged its customers for its communication services, they would not qualify for the manufacturing exemption. In this case, however, Bell presented evidence that the vertical billing services themselves are products that are manufactured. See Int’l Bus. Machs., 958 S.W.2d at 557 (organizing information through computer technology is manufacturing; product is an output with a market value, it can be either tangible personal property or a service). The AHC correctly compared Bell’s billing services equipment to the computers that were found to qualify for the manufacturing exemption in DST Systems. 43 S.W.3d at 800, 803 (mainframe computers and various other materials used to store, organize, and package for printing information used in transaction confirmation and shareholder reports were used in manufacturing products that were intended to be sold for final use or consumption such that they could be exempted under section 144.030).

Director’s arguments challenge only that Bell’s vertical services are not manufacturing, which are refuted above. After Bell I, all that was left for the AHC to determine was whether Bell’s claimed vertical services equipment satisfied the other requirements of section 144.030.2(4) or (5) such that the manufacturing exemption could apply. Director does not argue that the AHC’s decision exempting Bell’s vertical services equipment is in error as to these other requirements. As such, the AHC did not err in finding that Bell’s vertical services equipment is exempt from sales and use tax.

E. Is Bell’s transmission equipment “used directly” in manufacturing?

Finally, Director argues that the AHC erred in exempting Bell’s “interoffice trunking facilities” from use tax because this equipment is not “used directly” in manufacturing, but is merely used to provide transmission service for the manufactured product. Director cites UtiliCorp, 75 S.W.3d 725, in arguing that the AHC’s decision wrongly dissolves the “line between equipment that is used to create a product and equipment that deals with a product once it is created.” She argues that this Court should extend the UtiliCorp holding from electricity transmission to telephone transmission, asserting that Bell’s transmission and distribution equipment cannot be exempt. Bell, however, contends that the AHC rightly concluded that UtiliCorp’s holding is confined to the facts in that case and is uniquely applicable to electricity.

The AHC distinguished UtiliCorp on its facts, highlighting UtiliCorp’s finding that none of the equipment claimed for an exemption in that case was used in generating electricity, but instead was merely delivering the completed, essential product of electricity from the place where it was generated, without changing it. See Utili-Corp, 75 S.W.3d at 726-27 (there are three distinct stages of providing electricity-generation, transmission, and distribution — and the equipment at issue was used only for transmission and distribution, not generation). The AHC contrasted the telephone system from electricity by determining that, unlike electricity, the telephone system cannot be divided into generation and transmission stages because changes to signals occur at various stages in the system, not during one discrete generation phase. The AHC concluded that Utiliccnp is not applicable in this case because:

The entire telephone system is necessary to provide the service of connecting the caller to the other party, and that service is not complete until that connection is made and the signals transmitted back and forth during the conversation. Moreover, telephone service is a ‘two-way,’ interactive product ... and its final form is shaped both by individual choices [of the callers] ... and what features they may choose to use at a particular time. Electricity, in contrast, is complete when it leaves the generator. It is a ‘one-way’ product, largely unaffected by customer choice or action.

The AHC correctly determined that UtiliCorp does not control this case. Bell’s telephone service is worthless if not transmitted between and among customers. It is not complete at any one stage in the telephone system, but is a product of the entire system. The transmission equipment challenged by Director is “used directly” in manufacturing telephone service in that it satisfies the three-prong test of the “integrated plant” doctrine. The transmission equipment is necessary for the production of telephone service in that it enables signals to be carried appreciable distances; the equipment is close, physically and causally, to the finished product of telephone service; and it operates harmoniously with Bell’s other exempt equipment in an integrated and synchronized system. The production of telephone service illustrates the “integrated plant” doctrine’s concern that “ ‘[i]t is not practical to divide [the] plant into ‘distinct’ stages’ ” and “ ‘[t]he words ‘directly and exclusively’ should not be construed to require the division into theoretically distinct stages of what is in fact continuous and indivisible.’ ” Floyd Charcoal, 599 S.W.2d at 177 (quoting Niagara, 144 N.Y.S.2d at 461-62).

The AHC did not err in exempting Bell’s transmission and distribution equipment.

V. Conclusion

For the foregoing reasons, the AHC’s decision in affirmed in part and reversed in part, and the cause is remanded.

PRICE, TEITELMAN, LIMBAUGH, and WHITE, JJ., concur.

STITH, J., concurs in part and dissents in part in separate opinion filed.

WOLFF, C.J., concurs in opinion of STITH, J.

LAURA DENVIR STITH, Judge,

concurring in part and dissenting in part.

I disagree with the conclusion of the principal opinion that machinery and equipment used by Bell in its telephone transmission services are used directly in “manufacturing” and thereby qualify for the use tax exemption set out in sections 144.030.2(4) and (5). As this Court noted in its decision on prior appeal of this case:

Over the last few decades, the growth of modern information and communication technologies has challenged lawmakers and courts to keep pace with modem industry. One area of specific difficulty in Missouri has been the application of the manufacturing sales and use tax exemptions to intangible products or services. Two somewhat interrelated issues, the definitions of “product” and “manufacturing”, have been at the heart of this jurisprudence.

Southwestern Bell Telephone Co. v. Director of Revenue, 78 S.W.3d 763, 766 (Mo. banc 2002) (“Bell I ”).

It is unfortunate that, in its attempts to “update” the meaning of the word “manufacturing” as used in the manufacturing sales and use tax provisions, Bell I unintentionally gave the word a meaning beyond its dictionary meaning and inconsistent with the intent of the legislature as expressed in the taxing statutes themselves.

The sales and use tax exemption at issue states:

(4) Machinery and equipment, and the materials and supplies solely required for the installation or construction of such machinery and equipment, replacing and used for the same purposes as the machinery and equipment replaced by reason of design or product changes, which is purchased for and used directly for manufacturing or fabricating a product which is intended to be sold ultimately for final use or consumption;
(5) Machinery and equipment, and the materials and supplies solely required for the installation or construction of such machinery and equipment, purchased and used to establish new or to expand existing manufacturing, mining or fabricating plants in the state if such machinery and equipment is used directly in manufacturing, mining or fabricating a product which is intended to be sold ultimately for final use or consumption[.]

Secs. 144.030.2(4)-(5), RSMo Supp.1992.

In attempting to apply these provisions to the telecommunications industry, as the principal opinion notes, op. at 228, the taxpayer carries the burden of showing he or she is entitled to an exemption under the statute. Branson Props. USA, L.P. v. Director of Revenue, 110 S.W.3d 824, 825 (Mo. banc 2003). Exemptions from taxation are to be strictly construed against the taxpayer, so that any doubt or ambiguity in regard to the applicability of the exemption is resolved in favor of application of the tax. Id. Further, in construing the manufacturing exemption: Courts are instructed by the legislature to take the words in a statute in their plain and ordinary sense. The plain meaning of words, as found in the dictionary, will be used unless the legislature provides a different definition.

Lincoln Industrial, Inc. v. Director of Revenue, 51 S.W.3d 462, 465 (Mo. banc 2001) (citations omitted).

The dictionary definition of “manufacturing” does not encompass the services at issue here. To “manufacture” is variously described as, “1: to make (as raw material) into a product suitable for use ... 2a: to make from raw materials by hand or by machinery ... 2b: to produce according to an organized plan and with division of labor.” Webster’s Third New International Dictionary 1S78 (1993). It is similarly defined as, “1. a. To make or process (a raw material) into a finished product, esp. by means of a large-scale industrial operation. b. To make or process (a product), esp. with the use of industrial machines. 2. To create, produce, or turn out in a mechanical manner.” The American Heritage Dictionary, 2nd College Edition 76⅛ (1991).

As is evident, these definitions describe a physical process or one that involves making a product. Even if these definitions can be applied to the making of an intangible product, as this Court has previously held, they cannot be equated with the transmission of a voice over the telephone. Equipment may be used in facilitating the transmission, and the voice may change in form as it travels to its destination, but the voice is not manufactured. It is transmitted. Whether it is transmitted digitally or by a more antiquated process should not affect the fact that equipment used to transmit it is not used directly in manufacturing.

Even were it ambiguous whether transmission of voices could fit within these definitions, the statute would not apply to the telephone services at issue here. As we recognized in another Southwestern Bell case involving a related company, our first obligation would be to turn to the intent of the legislature in enacting the exemption, for:

If some ambiguity persists in the statute after consulting a dictionary, courts derive meaning from the intent of the legislature. Courts cannot add words to a statute under the auspice of statutory construction.

Southwestern Bell Yellow Pages, Inc. v. Director of Revenue, 94 S.W.3d 388, 390 (Mo. banc 2002) (citations omitted). Given this standard, it is important to determine the purpose for which the legislature enacted this exemption.

While Missouri does not have legislative history that expressly sets out the purpose of the manufacturing exemption, its purpose is apparent from the nature of the exemption itself. As this Court has previously recognized, “These statutes were enacted by the legislature to encourage the production of items ultimately subject to sales tax and to encourage the location and expansion of industry in Missouri.” Concord Publishing House, Inc. v. Director of Revenue, 916 S.W.2d 186, 190 (Mo. banc 1996). See also Heidelberg Central, Inc. v. Director of Revenue, 476 S.W.2d 502, 506 (Mo.1972) (per curiam) (“one purpose of the statute clearly was to promote manufacturing business in the State”). This makes the updating of old plants and equipment more economical and encourages businesses to locate and expand here.

The distance this Court’s construction of the word manufacturing has moved from the purposes for which the exemption was enacted is demonstrated by the principal opinion, which states that equipment used to give the company information needed to bill the customer for services, and equipment used to tell the customer that he or she has a call waiting or is being called by a private caller and so forth, is manufacturing. If this follows from the definition of “manufacturing” applied in Bell I, then Bell I itself was too far down the slippery slope; certainly this Court should not slide further down that slope, as it has here in holding that such services are exempt. The answer, rather, should be to acknowledge our eiTor in Bell I and climb back to the original meaning of the manufacturing exemption.

Looked at objectively, in light of the dictionary and common sense meaning of “manufacturing,” the fact that the telephone companies change the human voice into data and then transmit it and change it back into voice does not mean that equipment that is used to transmit telephone calls and to tell the caller that they have another call waiting, or who is making a call, or how much they will be billed, is directly used in manufacturing. It is equipment used in transmitting a voice, and certainly that equipment is needed the way many activities use technological devices to accomplish their intended purposes — here, to communicate to persons not within earshot. But, exempting such equipment from the use tax will not serve any of the purposes to be served by the statute — it will not encourage the location of jobs or factories here, it will not encourage the updating of equipment and so avoid the phasing out of jobs to other locations with newer plants, for the plain fact is that transmitting voices over the telephone does not require manufacturing the voice.

The legislature can, of course, enact a statute exempting the telecommunications industry from tax on the equipment it uses to transmit calls, print bills, and offer other services, if it so chooses. It has not yet done so, however, and it is not appropriate for this Court to effectively do so for it by expanding the definition of “manufacturing” so as to encompass industries that could not have been intended to be included within its compass when the legislature enacted the manufacturing exemption.

The machinery and equipment at issue here were not directly used in manufacturing, as required for the manufacturing exemption to apply. Accordingly, I would reverse so much of the decision as applies the exemption. I concur in the portion of the principal opinion that finds that pay telephone equipment is not exempt.

      . All further references are to RSMo Supp. 1992 unless otherwise indicated.

      . Section 144.030.2(4) provides an exemption for:
      Machinery and equipment, and the materials and supplies solely required for the installation or construction of such machinery and equipment, replaced and used for the same purposes as the machinery and equipment replaced by reason of design or product changes, which is purchased for and used directly for manufacturing or fabricating a product which is intended to be sold ultimately for final use or consumption[.]
      Section 144.030.2(5) provides an exemption for:
      Machinery and equipment, and the materials and supplies solely required for the installation or construction of such machinery and equipment, purchased and used to establish new or to expand existing manufacturing, mining or fabricating plants in the state if such machinery and equipment is used directly in manufacturing, mining or fabricating a product which is intended to be sold ultimately for final use or consumption[.]
      The current versions of these sections are not materially different as applicable to the issues in this case.

      .A basic overview of the mechanics of the telephone system can be found in Bell I, 78 S.W.3d at 764-65.

      . The AHC’s decision first cites the contested amount as $242,328.63', but later concludes that Director contested only $242,241.96, having conceded $356,702.18 of Bell’s refund claim.

      . The "integrated plant” theory was first developed in Niagara Mohawk Power Corp. v.

        Wanamaker, 286 A.D. 446, 144 N.Y.S.2d 458 (1955), aff'd, 2 N.Y.2d 764, 157 N.Y.S.2d 972, 139 N.E.2d 150 (1956).

      . This Court had already established that organizing information through computer technology is "manufacturing.” Bridge Data Co., 794 S.W.2d at 206.

      . Concord adopted the reasoning of Central Paving Co. v. Idaho Tax Commission, 126 Idaho 174, 879 P.2d 1107, 1110 (1994), which found: "If the statute’s purpose is to exempt materials and equipment used in the manufacture of items ultimately sold at retail then it makes no difference whether the manufac-taring process is contracted out to various parties who never obtain title to or ownership of the product being manufactured and items ultimately sold.”

      .Entities work together to manufacture a single product when their equipment and machinery is integrated and synchronized for the purpose of manufacturing a product intended to be sold ultimately for final use or consumption. DST Sys., 43 S.W.3d at 803.

      . Bell I discusses that "manufacturing” has been defined as changing something unsuitable for common use to something of such common use or changing raw materials into products with intrinsic and merchantable value. 78 S.W.3d at 767. It notes that the manufacturing exemption applies to equipment that modifies a raw product to something of use and value, but not equipment that is used after the finished product reaches the consumer. Id. In holding that even an intangible product like telephone service qualifies for the manufacturing exemption, Bell I expressly overruled GTE Automatic Electric v. Director of Revenue, 780 S.W.2d 49 (Mo. banc 1989), which had held that telephone services were not products for the purposes of the use tax exemption. Bell I, 78 S.W.3d at 768.

      . These pay telephone components included the "little shelf where people can lay their belongings while they’re talking on the phone” and “a sign that designates a pay phone that is belonging to [Bell].”

      . " 'The basic questions are the following: (1) Is the disputed item necessary to production? (2) How close, physically and causally, is the disputed item to the finished product? (3) Does the disputed item operate harmoniously with the admittedly exempt machinery to make an integrated and synchronized system?’ " Floyd Charcoal, 599 S.W.2d at 177 (quoting Niagara, 144 N.Y.S.2d at 461).

      . Bell’s vertical services are optional and are offered to customers for an additional charge. Customers pay sales tax on the vertical services they choose to purchase. Bell offers the following vertical services: Bill Plus, Customer Billing Report, Detailed Billing of Local Measured Service, CABS Bills on Floppy Disk, Caller ID, Anonymous Call Rejection, Auto Redial, Call Blocker, Call Forwarding, Selective Call Forwarding, Remote Access to Call Forwarding, Call Return, Call Trace, Call Waiting, Priority Call, Speed Call, and Three-Way Calling.

      . Director states that the vertical services of Call Forwarding and Three-Way Calling merely redirect signals.

      . Director states that the vertical services that send no signals to customers are Priority Call, Call Blocker, and Call Trace.

      . Bell I discussed that vertical services operate similarly to basic telephone service in that "[vjarious electrical signals and data are transported from one telephone, through the network, and received by another telephone [and] [a]long the way, the information is manipulated by computers to provide various services, such as call-waiting or Caller ID.” 78 S.W.3d at 765.

      . Bell’s vertical services related to billing are: Bill Plus, Customer Billing Report, Detailed Billing Local Measured Service, and CABS Bills on Floppy Disks. Bill Plus collects data from the billing system and puts it on a floppy disk provided to the customer on a monthly basis. The customer may also get software that can read the disk and organize it into reports and graphs. Customer Billing Report is a service similar to Bill Plus, but Bell prints the report according to the customer's specifications.

      . The accounting category relating to Bell's billing equipment includes mainframe computers that are used in maintaining billing and customer service records, as well as providing the vertical billing services. It also includes licenses for software found at Bell’s centralized accounting center that uses and manipulates data from Bell's central office equipment to prepare billing reports.

      . Bell’s central office switch equipment extracts information about customers' calls and use of vertical services that "is manipulated, processed, and organized by other machinery and equipment to produce a variety of information based products which [Bell] sells to retail customers.” The information extracted by the switch equipment is used to determine charges and that data is stored in a computer until the customer’s billing day, at which point the information is sent to the billing department to generate billing services such as Bill Plus and customer billing reports.

      . The AHC stated:
      [Bell's billing services] computers manipulate data from the central office switch; thus, their function is integrated with the manufacturing function of Bell’s system as a whole. In addition, they produce a tangible product in the form of printed billing reports or disks. This is similar to the function of computers at issue in DST, 43 S.W.2d[3d] 799, which processed data from the mutual fund industry and produced printed reports. These computers are large mainframe computers that are highly integrated with the rest of Bell’s manufacturing plant, as opposed to PCs; we do not suggest that businesses may qualify for manufacturing exemptions by purchasing PCs for office functions such as accounting and customer billing. While the AHC’s conclusion that Bell’s vertical services equipment can be exempt is correct, the AHC’s holding as to vertical billing services again raises concerns that the AHC attempted to apply the "integrated plant" doctrine without accessing all three of its prongs. In using the "integrated plant” doctrine to determine whether the claimed vertical services equipment is "used directly” in manufacturing a product, the AHC should have considered that the product of vertical services differs from the product of basic telephone service.

      . I also disagree that the "manufacture” of the telephone service can be considered to take place at an "integrated plant,” as it, in fact, takes place in various parts at numerous locations, including at its customers’ homes, which are in no way part of an "integrated plant.”


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Del F. CLEMENT, Appellant.
    No. WD 64513.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Jeffrey S. Eastman, Gladstone, MO, for appellant.
    Robert R. Shepherd, Oregon, MO, for respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

Del F. Clement appeals his conviction for driving while intoxicated, under section 577.010, and careless and imprudent driving, under section 304.012, RSMo 2000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


author: PAUL M. SPINDEN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Fuller CHRISTIAN, Appellant.
    No. WD 64955.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.

      Fuller Christian, Mineral Point, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Paul Harper, Office of Attorney General, Jefferson City, for Respondent.
   PAUL M. SPINDEN, Presiding Judge.

Fuller Christian appeals the circuit court’s judgment finding him liable for the' costs of his care while serving his prison sentence pursuant to Sections 217.825-217.841, RSMo 2000 (Incarceration Reimbursement Act). We affirm the circuit court’s judgment.

Christian is incarcerated, serving a 50-year sentence for second-degree murder. Christian receives approximately $2000 a year as beneficiary of a trust. The state petitioned the circuit court, requesting that Christian reimburse the state for his care. The circuit court issued an order to Christian to show cause why it should not rule in the state’s favor. Christian responded by asserting that application of the reimbursement act to him violated the ex post facto clauses of the Missouri and United States constitutions and that he uses the money to satisfy moral and legal obligations to his wife and three children. The circuit court convened a hearing as required by Section 217.835, but, because Christian was incarcerated, he was not permitted to attend. The circuit court entered judgment for the state.

In this appeal, Christian argues that a spendthrift provision prevents the trust’s assets from being used for reimbursement purposes under the reimbursement act. Section 217.833 authorizes the state to seek up to 90 percent of an inmate’s assets as reimbursement of the costs incurred in caring for him. Section 217.827(1) defines assets in this context as “property, tangible or intangible, real or personal, belonging to or due an offender or a former offender, including income or payments to such offender from Social Security, workers’ compensation, veterans’ compensation, pension benefits, previously earned salary or wages, bonuses, annuities, retirement benefits, or from any other source whatsoever.”

The trust’s spendthrift provision does not aid Christian. “[Sjpendthrift trusts prevent the alienation of trust property a beneficiary is entitled to receive only until the beneficiary actually receives the property or the beneficiary’s right to receive the property accrues.” State ex rel. Nixon v. Turpin, 994 S.W.2d 53, 59 (Mo.App.1999). After the trustee, in exercise of his or her discretion, determines that money is due to the beneficiary, the money becomes property “belonging to” or “due” the beneficiary under Section 217.827(l)(a). Id. at 58-59. “[A] proposed or actual distribution becomes an asset for purposes of [the reimbursement act].... ” Id. at 59.

The circuit court’s order said:

1. Judgment is entered in favor of the state of Missouri and against the defendant, Fuller L. Christian, ... in the amount of $72,779.43 for the cost of care incurred for his incarceration[.]
2. The Trustee for the Malissa Fuller Trust shall make all distributions to Fuller Christian, C/O Rodney Kueffer, Inmate Treasurer, Missouri Department of Corrections, ... for so long as Fuller Christian remain in the custody of the Missouri Department of Corrections.
4. Rodney Kueffer, Inmate Treasurer, shall pay [90 percent] of any deposit from the Malissa Fuller Trust into Fuller Christian’s Inmate account to plaintiff State of Missouri!.]

Christian misinterprets the circuit court’s order to the extent that he describes it as requiring the trust to distribute funds. The circuit court did not order the trust to distribute money to Christian, and it did not characterize undistributed trust assets as assets seizable under the reimbursement act. The circuit court’s order simply required that any distributions to Christian be made in the care of the inmate treasurer, and 90 percent of any deposits from the trust to Christian’s inmate account must be paid to the state. Thus, the order reaches only property “belonging to” or “due” Christian. Turpin, 994 S.W.2d at 58-59. The circuit court did not err in ordering that 90 percent of any distributions from the trust to Christian be directed from his inmate account to the state under the reimbursement act.

Christian also raises several constitutional arguments. Aside from an ex post facto challenge, Christian did not present these arguments to the circuit court. Constitutional arguments not raised at the first opportunity are waived. Hatfield v. McCluney, 893 S.W.2d 822, 829 (Mo. banc 1995). When the circuit court ordered Christian to “show cause why an order should not be entered appropriating and applying [his] assets to reimburse the State,” Christian should have presented his varied constitutional arguments. He did not do so and, thus, waived them.

As for Christian’s ex post facto challenge, Christian does not develop it on appeal or present authority in support of his position. Regardless, we have considered and rejected this argument before. State ex rel. Nixon v. Taylor, 25 S.W.3d 566, 568-69 (Mo.App.2000).

Christian also argues that his due process rights were violated because, presumably, he was not present at the Section 217.835 hearing. Inmates are specifically excluded from appearing personally in civil cases except under specific circumstances, Section 491.230.2, RSMo 2000, and “due process is not implicated in the absence of a showing that alternative means are inadequate to secure meaningful access to the courts.” State v. Scott, 933 S.W.2d 884, 886-87 (Mo.App.1996) (footnote omitted). The circuit court’s docket sheet indicates that it convened a hearing on November 22, 2004. Although Christian was not allowed to attend, it was his burden to demonstrate that he was denied meaningful access to the courts or that he was “substantially and irreparably prejudiced by his failure to attend.” See Section 491.230.2. He has not done so. Christian does not indicate that he lacked an adequate alternative to appearing personally in court, and the record does not indicate that Christian presented this issue to the circuit court in a post-trial motion. Christian was not deprived of due process.

Christian further argues that the circuit court erred in not considering his moral and legal obligations to his wife and three minor children. Section 217.835.4 says:

At the hearing on the complaint and order and before entering any order on behalf of the state against the defendant, the court shall take into consideration any legal obligation of the defendant to support a spouse, minor children, or other dependents and any moral obligation to support dependents to whom the defendant is providing or has in fact provided support.

In his response to the circuit court’s show cause order, Christian argued that he used distributions from the trust to support his wife and children, and we find no indica tion that the circuit court failed to consider Christian’s legal and moral obligations.

Finally, we address Christian’s claim that the circuit court lacked subject matter jurisdiction over the trust, which was created in Arkansas. Christian again misconstrues the circuit court’s order. It does not purport to assert jurisdiction over the trust or the trustee. Instead, the order reaches Christian’s assets, which, as discussed above, include distributions from the trust fund. The circuit court’s order does not purport to seize control of the trust’s funds before their distribution. The circuit court had jurisdiction to enter its order.

For the foregoing reasons, we affirm the judgment of the circuit court.

VICTOR C. HOWARD and RONALD R. HOLLIGER, Judges, concur.

      . The trust's spendthrift provision says, "Except as otherwise provided herein, all payments of principle [sic] and income payable, or to become payable, to the beneficiary of any trust created hereunder shall not be subject to anticipation, assignment, pledge, sale or transfer in any manner, nor shall any said beneficiary have the power to anticipate or encumber such interest, nor shall such interest, while in the possession of the Trustee, be liable for, or subject to, the debts, contracts, obligations, liabilities or torts of any beneficiary.”