author: PATRICIA L. COHEN, Judge.

text:
    Anand BHAKTA, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 85608.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Cheryl Caponegro Nield, Assistant Attorney General, Jefferson City, MO,' for appellant.
    Carl M. Ward, Washington, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

The Director of Revenue appeals the judgment of the Circuit Court of St. Louis County reinstating Anand Bhakta’s (“Driver”) driving privileges after an administrative suspension. We reverse.

Statement of the Facts and Proceeding Below

On June 28, 2003, at 5:23AM, Officer Matthew Rovang of the Maryland Heights Police Department responded to the scene of a stranded motorist on 1-270. Officer Rovang found a minivan with heavy damage parked on the shoulder. Driver was in the driver’s seat, uninjured. Driver explained to Officer Rovang that the van hit a guardrail a few miles away causing his airbags to deploy, but he kept driving until the van stopped running. Driver stated that he had not consumed any alcohol since the accident.

While talking to Driver, Officer Rovang noticed that Driver slurred his speech and smelled of alcohol. Officer Rovang observed that Driver had bloodshot, glassy eyes and dilated pupils. After Driver performed poorly on several field sobriety tests, Officer Rovang arrested Driver for driving while intoxicated.

At 5:49AM, Officer Rovang handcuffed Driver and placed him in the back seat of the patrol car. Officer Rovang then searched Driver’s van for five to ten minutes. After the search, Officer Rovang transported Driver to the police station. At 6:01AM, Officer Rovang read Driver Miranda and implied consent warnings. At 6:07AM, Driver took a breath test which revealed a blood alcohol content (“BAC”) of .163 percent.

The Director of Revenue suspended Driver’s driving privileges and Driver filed a Petition for Trial de Novo. The trial was held November 3, 2004. At the start of the trial, the parties entered into two stipulations: (1) Officer Rovang had probable cause to arrest Driver; and (2) the instrument used to test Driver’s BAC was properly maintained and calibrated under Division of Health regulations. Thereafter, counsel for Driver advised the trial court that “the issue in this case will be whether or not the petitioner was properly observed during the 15-minute period immediately preceding the breath test and therefore, the admissibility of the breath test.”

With respect to the 15-minute observation period, Officer Rovang testified that Driver did not smoke, put anything into or take anything out of his mouth, spit or vomit during the time that Officer Rovang was with Driver from 5:23AM until the time of the breath test. However, Officer Rovang admitted for some portion of the time subsequent to 5:23AM Driver was handcuffed in the rear of the patrol car and not in Officer Rovang’s view. Officer Rovang testified that he did not keep liquor or cigarettes inside the patrol car. Driver did not testify and therefore offered no evidence that he smoked, spit, vomited or put anything into his mouth while in the back of the patrol car and out of Officer Rovang’s view.

Following the trial, the trial court found that Officer Rovang “failed to observe [Driver] for at least 15 minutes immediately preceding the breath test and that, therefore, the breath test results are not admissible evidence.” The trial court ruled in favor of Driver and reinstated Driver’s driving privileges. The Director appealed.

Standard of Review

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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Hinnah v. Director of Revenue, 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., McMurray v. Director of Revenue, 800 S.W.2d 820, 821 (Mo.App. E.D.1990).

Discussion

In Director’s sole point on appeal, Director contends that the trial court erred in setting aside the suspension of Driver’s driving privileges because Director established a prima facie case under Section 302.505 RSMo.2000 which Driver did not rebut. More specifically, the Director contends that the trial court erred when it refused to admit the breath test results.

To establish a prima facie case under Section 302.505, the Director must establish: (1) probable cause for the arrest; and (2) the driver’s blood alcohol level exceeded the legal limit. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). Once the Director has established a prima facie case, the burden is on the driver to rebut the prima facie case. Id. Because the parties stipulated that the Driver was arrested on probable cause, , the Director needed only to establish that Driver’s blood alcohol level exceeded the legal limit of .08 percent. See Martise v. Director of Revenue, 160 S.W.3d 407, 410-11 (Mo.App. E.D.2005).

To prove Driver’s blood alcohol level exceeded the legal limit, the Director offered Driver’s breath test results. Driver objected to the admission of his results on the basis that Officer Rovang did not observe Driver for 15 minutes prior to the breath test.

Prior to the admission of breath test results, the Director must demonstrate that: (1) the equipment and devices used for the breath test were approved by the Division of Health; (2) the operator held a valid permit; and (3) the test was performed by following approved techniques and methods of the Division of Health. Martise, 160 S.W.3d at 410. In this case, because the parties stipulated to the first two foundational requirements, the only issue was whether the test was performed by using the approved techniques and methods of the Division of Health as set forth in state regulations. The regulations require, in part, that: (1) the driver is observed for 15 minutes by a named person; (2) no smoking or oral intake of any material occurred during the observation period; and (3) if vomiting occurred during the observation period, the 15-minute observation period is started over. Coyle v. Director of Revenue, No. SC 86739, 2005 WL 3112128, at *2 (Mo. banc 2005).

During Driver’s cross-examination, Officer Rovang testified that Driver was sitting alone in the patrol car for five to ten minutes while Officer Rovang searched Driver’s van. At the earliest, Officer Ro-vang returned from searching the van at 5:54AM. He administered the breath test at 6:07AM, less than 15 minutes after returning from searching Driver’s van. Thus, Driver argued, for some time during the 15 minutes preceding the test, Officer Rovang did not observe him face-to-face in violation of Division of Health regulations.

The recent Supreme Court decision in Coyle v. Director of Revenue controls the disposition of this case. Coyle, 2005 WL 3112128. In Coyle, the Supreme Court reversed a trial court judgment reinstating a driver’s privileges because the Director failed to comply with the 15-minute observation period. Id. at *3. The Court held that evidence that the officer did not observe the driver during the requisite 15-minute period, without more, is insufficient to rebut Director’s prima facie case. Id. Rather, to rebut the Director’s prima facie case, a driver must demonstrate that: (1) he smoked, had oral intake of any material or vomited; (2) did something or was subject to some factor other than smoke, oral intake of any material or vomiting that affected the validity of the blood alcohol results; or (3) was not observed during the 15-minute period and an event occurred diming that period that affected the result. Id.

In this ease, Driver did not present evidence that an event occurred during the observation period that could have affected the results of the breath test. Driver established only that Officer Rovang did not observe him face-to-face while he searched his van, but not that he put anything in his mouth, smoked or vomited. Moreover, the record clearly demonstrates that Driver was handcuffed in a patrol car which contained no food, alcohol or cigarettes and had no opportunity to put anything into his mouth. Driver’s evidence is, as a matter of law, insufficient to rebut the Director’s prima facie case. See Coyle, at *3.

Conclusion

The judgment is reversed and the cause is remanded for entry of judgment in favor of Director.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edna CLAUNCH, Appellant, v. DEGREE OF HONOR PROTECTIVE ASSOCIATION, Respondent.
    No. ED 86185.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.

      Gretchen G. Myers, St. Louis, MO, for appellant.
    Duane Lee Coleman, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Edna Mae Claunch (“Claunch”) appeals from the final award of the Labor and Industrial Relations Commission (“Commission”) denying Claunch’s claim for workers’ compensation benefits from her employer, Degree of Honor Protective Association (“DOH”). Claunch contends the Commission erred in reversing the award of the Administrative Law Judge (“ALJ”) and denying benefits based on the notice requirement. Claunch also argues the Commission erred in finding the notice issue dispositive.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. After reviewing the whole record, we find the Commission’s award is supported by competent and substantial evidence and is not contrary the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). An opinion reciting the detailed facts and restating principles of law would have no precedential value. 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). The DOH’s motion to strike portions of Claunch’s brief referencing these allegations is hereby denied.


text:
    Eric DUNCAN, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    Nos. ED 85248, ED 85407.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Jefferson City, MO, for appellant.
    John M. Albright, Stephen E. Walsh, Poplar Bluff, MO, for respondent.
    Before GLENN A. NORTON, SR, C.J, NANNETTE A. BAKER, J„ and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant Director of Revenue, State of Missouri (“DOR”) appeals from the judgment of the Circuit Court of Cape Girar-deau County, reinstating Respondent Eric Duncan’s (“Duncan”) driver’s license, pursuant to Section 577.041.4 RSMo (2000) after his license had been revoked by the DOR, pursuant to Sections 577.041.3 and 577.020, following Duncan’s arrest for Driving While Intoxicated.

In its sole point on appeal, the DOR argues that the trial court erred in finding that Trooper McDaniel lacked reasonable ground to arrest Duncan for Driving While Intoxicated. We have thoroughly reviewed the record and the video of the arrest, and it is clear why the trial court was compelled to reach the credibility determinations it reached. No error of law appears, and an opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).

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


author: SHERRI B. SULLIVAN, J.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Kevin A. JOHNSON, Defendant/Appellant.
    No. ED 85588.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Timothy Joseph Forneris, St. Louis, MO, for appellant.
    Deborah Daniels, Evan Joseph Buch-heim-co-counsel, Victor J. Melenbrink-co-counsel, Jefferson City, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Kevin A. Johnson (Defendant) appeals from a judgment of conviction of second-degree murder and armed criminal action. Defendant alleges the trial court plainly erred in failing to instruct the jury to disregard comments made by the prosecutor during closing argument regarding the use of Defendant’s hands and/or feet as dangerous instruments and challenges the sufficiency of the evidence to support his armed criminal action conviction. We affirm.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence adduced at trial revealed the following. Defendant was at a restaurant in the early morning hours. A dispute arose between a waitress and another customer who knew Defendant from school. Another customer, Michael Schnelle (Victim), attempted to intervene in the dispute. Defendant also became involved in the dispute. The waitress asked the customer who knew Defendant to leave, and he did.

As Victim was leaving the restaurant, Defendant stood up on his seat and started calling out “white power.” Defendant also gave a “Nazi salute” or a “sign for Hitler.” Defendant pulled up his pants leg to reveal tattoos, one of which was a swastika. Defendant followed Victim out the restaurant door and yelled “Come back here, Jew boy.” Defendant followed Victim across the street and pointed and yelled at him “You Jew m-f- — . You Jew.”

Defendant caught up to Victim and “slugged him in the back of the head,” knocking him to the ground. Defendant then kicked Victim “a few times” and did “a little jump up into the air and stomp on his head.” Another individual came over and attempted to intervene while Defendant was stomping on Victim. Eventually, Defendant attempted to return to his car, but other individuals prevented him from leaving.

Witnesses testified that Victim’s head was “almost totally caved in” and that he was “bleeding from the eyes, ears, nose, and mouth.” An ambulance took Victim to the hospital, where he died the next day as a result of severe blunt force trauma. Tests revealed that Victim suffered a sub-arachnoid hemorrhage, which is bleeding in and around the brain, and he had blood in his brain tissue and “snapped” nerve fibers in his brain. He also suffered a broken nose and a large number of facial abrasions and lacerations.

A laboratory analysis of Defendant’s boots revealed the presence of Victim’s blood around the right heel and along the inner side of the left sole.

Defendant was charged by indictment with murder in the first degree, a class A felony in violation of Section 565.020, and armed criminal action, a felony in violation of Section 571.015. The case proceeded to a jury trial, after which the jury found Defendant guilty of second-degree murder and armed criminal action.

Defendant moved for a motion for judgment of acquittal at the close of the State’s evidence and at the close of all the evidence. The trial court denied both motions. The trial court entered a judgment in accordance with the jury verdict and sentenced Defendant to concurrent terms of life imprisonment with the possibility of parole for the second-degree murder conviction and twenty years’ imprisonment for the armed criminal action conviction.

Discussion

Defendant raises two points on appeal. In his first point, Defendant argues that the trial court plainly erred in failing, sua sponte, to instruct the jury to disregard the following comments made by the prosecutor during closing argument:

And if he’s guilty of murder in the first degree, he’s guilty of armed criminal action, because there’s only two elements of armed criminal action, that he’s guilty of a murder and that he did it with a dangerous instrument, his hands and his feet. And, ladies and gentlemen, there can be no doubt that these are dangerous instruments, because the victim’s DNA ends up only not on his hands — not on his hands, not on his shirt, not on his pants, but on the boots.... Doesn’t have to be his feet though. Even if he beats him with his hands, under the circumstances that they were used.... So either circumstance, feet or no feet, fist and feet, fist alone, feet alone, armed criminal action.

Defendant did not object to the comments during trial nor did he file a motion for new trial raising this claim of error. Therefore, the claim is not properly preserved for appellate review. State v. Hagan, 113 S.W.3d 260, 267 (Mo.App. W.D.2003). A claim not properly preserved for appellate review may be considered for plain error at our discretion. Rule 30.20. Under this standard, reversal requires a plain error affecting a substantial right that results in manifest injustice or miscarriage of justice. Id. Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case. State v. Johnson, 150 S.W.3d 132, 136 (Mo.App. E.D.2004). Plain error review is to be used sparingly. State v. Knese, 985 S.W.2d 759, 770 (Mo. banc 1999). A defendant bears the burden of demonstrating manifest injustice or miscarriage of justice. State v. Tokar, 918 S.W.2d 753, 770 (Mo. banc 1996).

Defendant maintains that the prosecutor misstated the law when he commented during closing argument that Defendant’s hands and feet could constitute dangerous instruments for purposes of the armed criminal action charge. Misstatements of the law are impermissible during closing arguments and a duty rests upon the court to restrain such arguments. State v. Petty, 967 S.W.2d 127, 136 (Mo.App. E.D.1998).

Section 571.015.1 provides in relevant part:

[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action....

The State does not contend that Defendant used a deadly weapon to commit the murder. Therefore, we are only concerned with the definition of a dangerous instrument.

Section 556.061(9) provides:

‘Dangerous instrument’ means any instrument, article or substance, which, under the circumstances in which it. is used, is readily capable of causing death or other serious physical injury;....

We cannot conclude that the prosecutor’s comments clearly misstated the law. First, Section 556.061(9) does not specifically prohibit body parts from the definition of a dangerous instrument. Second, as both the State and Defendant acknowledge, Missouri courts have not conclusively held that body parts are not dangerous instruments as defined in Section 556.061(9). See, e.g., State v. Burch, 939 S.W.2d 525, 530 (Mo.App. W.D.1997) (elbow qualified as dangerous instrument); Setter v. State, 719 S.W.2d 141, 143-144 (Mo.App. E.D.1986) (declined to classify hands as dangerous instrument). The eases do stress, however, that the circumstances and facts of each case affected the determination of the court. The prosecutor argued that under the circumstances of this case, the jury should find that Defendant’s hands or feet were dangerous instruments. Accordingly, the trial court did not plainly err in failing, sua sponte, to instruct the jury to disregard the prosecutor’s comments.

We note that even if the prosecutor’s comments were improper, Defendant has not met his burden to show that the comments had a decisive effect on the outcome of the trial. To reverse a conviction under plain error review on a claim of improper closing argument, a defendant must establish not only that the argument was improper, but also that it had a decisive effect on the outcome of the trial and would amount to a manifest injustice or miscarriage of justice if the error was left uncorrected. State v. Jones, 128 S.W.3d 110, 113 (Mo.App. E.D.2003). For an argument to have had a decisive effect, there must be a reasonable probability that, in the absence of the argument, the verdict would have been different. State v. Williams, 145 S.W.3d 874, 878-879 (Mo.App. E.D.2004). Statements made during closing argument rarely amount to plain error. Jones, 128 S.W.3d at 113. We especially hesitate to find plain error in the context of closing argument because the decision to object is often a matter of trial strategy, and in the absence of objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention. State v. Edwards, 116 S.W.3d 511, 536 (Mo. banc 2003).

The jury was instructed on the definition of a dangerous instrument under Section 556.061(9). We presume the jurors followed this instruction. See State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999). The jury could have found from the evidence that Defendant used his boots to stomp or to kick Victim. Defendant concedes that such a finding would meet the dangerous instrument requirement to support a conviction for armed criminal action. See, e.g., State v. Dooley, 851 S.W.2d 683, 687-688 (Mo.App. E.D.1993) (steel-toed boots specific description for dangerous instrument in information); State v. Taylor, 645 S.W.2d 199, 202 (Mo.App. S.D.1982) (cowboy boot is a dangerous instrument). Therefore, we cannot reasonably conclude that in the absence of the prosecutor’s comments, the verdict would have been different. Thus, the prosecutor’s comments did not rise to the level of plain error requiring sua sponte intervention by the trial court. Defendant’s point one on appeal is denied.

In his second point on appeal, Defendant argues that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence because insufficient evidence existed from which a reasonable juror could find that Defendant used a deadly weapon or a dangerous instrument as required to support a conviction for armed criminal action.

In reviewing a challenge to the sufficiency of the evidence supporting a criminal conviction, we do not weigh the evidence but rather we determine whether there is sufficient evidence from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. State v. Shinn, 921 S.W.2d 70, 72-73 (Mo.App. E.D.1996). The evidence, including all reasonable inferences drawn therefrom, is viewed in the light most favorable to the verdict, and all evidence and inferences to the contrary are disregarded. Id. at 72. The trier of fact determines the credibility of the witnesses. Id. at 73. The trier of fact may believe all, some or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case. Id.

Again, the State does not contend that Defendant used a deadly weapon, and therefore, that element of Section 571.015.1 is not at issue. The key consideration in determining whether or not an object is a dangerous instrument under Section 556.061(9) is whether the object can kill or seriously injure “under the circumstances in which it is used.” State v. Tankins, 865 S.W.2d 848, 851 (Mo.App. E.D.1993). Unlike a deadly weapon, a dangerous instrument is not designed for use as a weapon and may have a perfectly normal function under ordinary circumstances. Id.

Witnesses testified seeing Defendant kick Victim a few times and jump in the air and stomp on his head. Victim’s head was “almost totally caved in” and he was “bleeding from the eyes, ears, nose, and mouth.” A laboratory analysis of Defendant’s boots revealed the presence of Victim’s blood around the right heel and along the inner side of the left sole. The forensic pathologist who conducted the autopsy on Victim testified that Victim’s injuries were consistent with a person being struck and kicked or stomped in the head multiple times. This evidence is sufficient evidence from which a reasonable juror could have found beyond a reasonable doubt that Defendant used his boots to stomp or to kick Victim. Again, Defendant concedes that such a finding would meet the dangerous instrument requirement to support a conviction for armed criminal action. See, e.g., Dooley, 851 S.W.2d at 687-688 (steel-toed boots specific description for dangerous instrument in information); Taylor, 645 S.W.2d at 202 (cowboy boot is a dangerous instrument).

Defendant argues that we should essentially disregard the testimony of the State’s witnesses because the doctrine of “destructive testimony” or “destructive contradictions” applies in that the State’s witnesses presented three different stories about what [Defendant] had done to [Victim].” Defendant’s argument is misplaced. Under this doctrine, a witness’s trial testimony that is marred by rampant inconsistencies and contradictions is not probative evidence. State v. Case, 140 S.W.3d 80, 92 (Mo.App. W.D.2004). However, the doctrine does not apply to inconsistencies between the testimony of one witness and another witness at trial, Id., as Defendant argues. The variances in witnesses’ testimonies are credibility issues for the jury.

Accordingly, Defendant’s point two on appeal is denied.

Conclusion

The judgment of conviction and sentence of the trial court is affirmed.

NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.

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

      . Defendant waived his right to jury sentencing.

      . All rule references are to Mo. R.Crim. P.2005, unless otherwise indicated.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Toni R. FLOOD, by and through her Next Friend Jeanine Oakley, and Jeanine Oakley, Individually, Plaintiffs-Respondents, v. Richard N. HOLZWARTH and Shepherd, Inc., Defendants-Appellants.
    No. 26307.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 28, 2005.
    Application for Transfer Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Gary R. Cunningham, Tamara F. De Wild, Kristoffer R. Barefield, Mark A. Fletcher, Lathrop & Gage, L.C., Springfield, for Appellant.
    Michelle Boehm O’Neal, Larry Nichols, The Hershewe Law Firm, P.C., Joplin, for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Richard N. Holzwarth (“Holzwarth”) and Shepherd, Inc. (“Shepherd, Inc.”) (collectively referred to as “Defendants”) appeal from a judgment entered on a jury verdict against them for compensatory and punitive damages in favor of Toni R. Flood (“Flood”), by and through her next friend Jeanine Oakley (“Oakley”) (collectively referred to as “Plaintiff’) stemming from a collision between a tractor trailer and a van. We affirm.

On January 18, 2002, at approximately 8:20 a.m., fourteen-year-old Flood was a passenger in a van driven by Chad Murphy (“Murphy”) that was traveling eastbound on U.S. Highway 60 in Newton County, Missouri. Holzwarth was operating a tractor trailer unit which he owned, but had leased to Shepherd, Inc., easterly on Highway 60 behind the van. At some point Holzwarth pulled into the westbound lane of Highway 60 in an attempt to pass the van. As Holzworth’s tractor trailer began to overtake the van, the van started to make a left-hand turn onto a side road. A collision occurred between the tractor trailer and the van, and Flood sustained disabling injuries.

A petition was filed on behalf of Flood seeking actual and punitive damages against Defendants. Plaintiff contended in an amended petition that Flood sustained a traumatic brain injury and had severe and permanent injuries to her mind and body including but not limited to oro-phryngeal dysphagia, vocal cord dysfunction, cognitive-linguistic deficit, aspiration without aspiration pneumonitis, and ambulation and balance difficulties, and that her injuries were permanent and disabling in nature. It was also alleged that Holz-warth believed he was being pursued by people attempting to repossess his truck, he was operating the tractor trailer while under the influence of drugs, and that he was distracted by a pet ferret playing in and around his lap area.

In a bifurcated trial to a jury, a verdict was returned finding for Plaintiff on the claim for compensatory damages against Defendants in the amount of one million, six hundred thousand dollars ($1.6 million), and also finding that Plaintiff was entitled to punitive damages. In phase two of the trial, the jury returned a verdict for punitive damages against Defendants in the sum of three million, four hundred thousand dollars ($3.4 million). This appeal followed.

Defendants raise seven points of error in this appeal. Except for one issue in Point I," none of the other claims of error have been preserved for appellate review. As such the only level of review available to Defendants on their remaining contentions is plain error under Rule 84.13(c), which provides:

Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

We should only exercise review under this rule if “we discern a substantial ground for believing that manifest injustice or miscarriage of justice has resulted from plain error.” Collins v. Hertenstein, 90 S.W.3d 87, 98 (Mo.App. W.D.2002). Plain error will rarely provide the basis for overturning the judgment of the trial court in civil cases. Davolt v. Highland, 119 S.W.3d 118, 135-36 (Mo.App. W.D.2003). Plain error review places a greater burden on appellants because plain error is more than prejudicial error. Id.

We review Points I, III and IV together. In Point I, Defendants argue that Plaintiff elicited testimony from Holz-warth, Eddie Shepherd (“Shepherd”) and Phillip Hayes’ (“Hayes”) concerning methamphetamine use and drug-related offenses that were not related to the January 18, 2002, accident. They argue that this testimony constituted improper impeachment, was irrelevant and prejudicial. In Point III, Defendants argue that it was plain error to allow the Lawrence County Prosecuting Attorney (“the Prosecutor”) to testify as to criminal charges against employees of Shepard, Inc. and the general methamphetamine use in Southwest Missouri, in that it was irrelevant to the January 18, 2002, accident and that its prejudicial impact outweighed any probative value it may have had. In Point IV, Defendants argue that testimony from Kevin Hackathorn (“Hackathorn”) regarding his methamphetamine use and drug-related offenses was not relevant to the January 18, 2002, accident, constituted improper impeachment and its prejudicial impact outweighed any probative value it may have had. In all the above points, Defendants argue that this evidence allowed the jury to consider acts unrelated to the January 18, 2002, accident. Defendants’ primary complaint in these points, is that Holzwarth, Shepherd, Hayes and Hackathorn were compelled to testify to their past criminal acts involving metham-phetamines, some of which were in connection with their employment with Shepherd, Inc. Defendants also argue that the trial court erred by admitting the criminal records pertaining to those acts into evidence. Those records are important to our decision on these points.

Defendants argue that their objection to Hayes’ testimony at trial preserved this portion of Point I for appeal, thus we should review that claim of error for abuse of discretion. Assuming without deciding that Defendants are correct; their point is without merit. Hayes’ criminal records were admitted into evidence after the trial court asked Defendants if they had any objection, and Defendants said no. The admission of Hayes’ criminal records makes his testimony cumulative and therefore not prejudicial. See Porter v. Erickson Trans. Corp., 851 S.W.2d 725, 740-741 (Mo.App. S.D.1993). Therefore, regardless of the standard of review used, the fate of Hayes’ testimony is the same as that of Holzwarth’s, Shepherd’s, and Hackathorn’s.

Plaintiff reminds us that, just as with Hayes’ criminal records, not only did Defendants fail to object to the criminal records of Shepard, Holzwarth and Hacka-thorn, they affirmatively consented to their admission into evidence. Plaintiff correctly argues that an announcement of “no objection” when evidence is sought to be admitted, leaves no room for even plain error appellate review. McCormack v. Capital Elec. Constr. Co., Inc., 159 S.W.3d 387, 398 (Mo.App. W.D.2004). Given this rale, it is clear that Holzwarth, Shepard and Hackathorn’s drag use, in the form of their criminal records, would have been before the jury regardless of whatever live testimony was given by them. Defendants are “not entitled to assert prejudice by admission of evidence if such evidence is merely cumulative to other related admitted evidence.” Porter, 851 S.W.2d at 740-741. As such, we cannot say that it was plain error to allow testimony regarding this information from Holzwarth, Shepherd and Hackathorn.

The Prosecutor was allowed to testify, during the punitive damages phase of the trial, about the general methamphetamine problem plaguing Southwest Missouri, and Defendants argue in Point III, that this was irrelevant and allowed the jury to consider the criminal actions of others in determining the punitive damages to be awarded against Defendants. On its face, there are substantial questions about the relevance of this testimony and as such we will review for plain error.

Assuming without deciding that the trial court erred in allowing the Prosecutor’s testimony, a close inspection of the record reveals that such an error is not plain error. Based upon all the evidence, we can not say that the statements made by the Prosecutor rose to the level of a manifest injustice or a miscarriage injustice because evidence of methamphetamine use by Holzwarth and other drivers at Shepherd, Inc., was clearly before the jury. We also note that the trial transcript in this case is nearly 1500 pages in length and of that only about four pages is taken up by the Prosecutor’s testimony. Plain error places a greater burden on an appellant than does a review for prejudicial error. Davolt, 119 S.W.3d at 135-36. Plain error and prejudicial error are not synonymous terms. Id. (quoting State v. Reed, 21 S.W.3d 44, 47 (Mo.App. S.D.2000)). Because of the foregoing reasons, Points I, III and IV are denied.

In Point II, Defendants claim that the trial court erred in denying their Motion for Judgment Notwithstanding the Verdict (“JNOV”). They essentially argue that Plaintiff did not make a prima facie case to submit the issue of punitive damages to the jury. They assert that there was no evidence of erratic driving on the part of Holzwarth and there was no clear and convincing evidence that his methamphetamine use had a causal connection to the accident. We disagree.

The standard of review for a motion for JNOV is the same as that for denial of a motion for directed verdict; its denial will be affirmed unless the plaintiff failed to make a submissible ease. Balke v. Central Mo. Elec. Coop., 966 S.W.2d 15, 20 (Mo.App. W.D.1997). In determining whether a plaintiff has made a submissible case, we “accept all evidence and reasonable inferences favorable to the verdict, disregarding contrary evidence.” Id.

Plaintiff points out that Defendants have also not preserved this issue for review. Rule 72.01 governs a motion for a directed verdict as well as a motion for JNOV. In order to move for a JNOV, a party must have first requested a directed verdict before the case was submitted to the jury. Rule 72.01(a). The motion for a directed verdict “shall state the specific grounds.” Id. Defendants did move for a directed verdict at the close of the evidence, however, it was an oral motion in which Defendants’ counsel stated: “[a]t the close of all the [e]vidence, I would move orally for a[d]irected [vjerdict.”

In Dierker Associates, D.C., P.C. v. Gillis, 859 S.W.2d 737, 742 (Mo.App. E.D.1993), the eastern district of this court was faced with a similar situation in which an appellant orally moved for a directed verdict at the close of evidence, offering no rationale or support, and after the jury found against her, moved for a JNOV. On appeal she asserted that the trial court erred in not sustaining her motion for a JNOV, and the court held that because her oral motion failed to comply with Rule 72.01, nothing was preserved for appellate review, despite the fact that her motion for JNOV contained specific arguments. Id. at 743. The instant case presents this exact situation.

As discussed above, Rule 84.13(c) provides for plain error review of issues not properly preserved for appellate review. Although Defendants contend that we should grant relief for plain error, we do not find substantial ground to believe that a manifest injustice or a miscarriage of justice occurred when the trial court overruled Defendants’ motion for JNOV. See Collins, 90 S.W.3d at 98.

Even a cursory glance at the evidence supports the trial court’s decision to deny the JNOV. Punitive damages may be awarded if “the defendant ‘showed complete indifference to or a conscious disregard for the safety of others.’ ” Call v. Heard, 925 S.W.2d 840, 849 (Mo. banc 1996) (quoting Stojkovic v. Weller, 802 S.W.2d 152, 155 (Mo. banc 1991), overruled on other grounds by Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 109 (Mo. banc 1996)). Holzwarth admitted to having methamphetamine in his system on the day of the accident, January 18, 2002; there was evidence he had been traveling at upwards of eighty-five miles per hour in an attempt to escape the repossession company that he believed at the time was chasing him; and finally the events surrounding the accident itself, in which Holz-warth attempted to pass five automobiles at one time on a two lane road as they passed through an intersection.

Viewed in the light most favorable to the verdict, this evidence tends to show Holwarth’s complete indifference or conscious disregard for the safety of others. “This court will not reweigh the evidence.” Hoskins v. Business Men’s Assurance, 116 S.W.3d 557, 571 (Mo.App. W.D.2003) overruled on other grounds by Werremeyer v. KC. Auto Salvage Co., 134 S.W.3d 633, 637 (Mo. banc 2004). Based upon this we find no substantial basis to believe that either a manifest injustice or a miscarriage of justice has occurred and as such we decline to exercise plain error review. Point II is denied.

In Points V and VI, Defendants assert instructional error and we discuss them together. In Point V, Defendants assert that the verdict directing instruction effectively gave the jury a “roving commission” in that it did not limit the jury’s inquiry to whether Holzwarth’s methamphetamine use on January 18, 2002, caused or contributed to Plaintiff’s damages, nor did the instruction require the jury to find that use of methamphetamines while driving, in this instance, rose to the level of complete indifference or conscious disregard for the safety of others. In Point VI, Defendants argue that the verdict form improperly required the jury to assess punitive damages against both Holzwarth and Shepherd, Inc. as one, as opposed to allowing the jury to allocate some or all of punitive damages to one or the other. For reasons discussed below we do not reach the merits of either point.

Again Defendants concede that they have not preserved these issues for review, and they ask us to review the submission of these instructions for plain error. The standard for plain error has been explained above and need not be repeated here. However, we note that not only did Defendants fail to preserve a claim for instructional error as required by Rule 70.03, the trial court specifically asked Defendants if they had any objection to the instructions to be submitted for both the compensatory phase, and the punitive damages phase of the trial, and in both instances Defendants said no.

While not necessarily the case in all circumstances, Defendants’ affirmative acceptance of these instructions here prevents us from finding any substantial grounds to believe that a manifest injustice or a miscarriage of justice resulted from the submission of these instructions to the jury. See Collins, 90 S.W.3d at 98. In this case we cannot say that the trial court erred in taking Defendants at their word when they said “no” when asked if they had any objection to any of the jury instructions. “Plain error is not a doctrine available to revive issues already abandoned by selection of trial strategy or oversight.” King v. Unidynamics Corp., 943 S.W.2d 262, 266 (Mo.App. E.D.1997).

Defendants’ Point V essentially focuses upon the trial court’s failure to place the date of the occurrence in the verdict directing instruction. While they raise the issue of causation, it is of no consequence because Defendants conceded that Holz-warth and Shepherd, Inc. caused the injuries to Flood. Therefore, the only issue contested regarding that instruction was whether Defendants’ conduct rose to the level that would justify imposing punitive damages. While the trial court’s failure to limit the jury’s consideration of when Holzwarth had driven his tractor trailer after using methamphetamine to January 18, 2002, may have been erroneous on its face, that error does not raise to the level of a manifest injustice or miscarriage of justice. As we have said, appellate courts rarely reverse for plain error in civil cases. We should only do so in those situations when the injustice is of the error is so egregious as to “weaken the very foundation of the process,” and “seriously undermine confidence in the outcome of the case.” Davolt, 119 S.W.3d at 136.

Likewise, in Point VI, Defendants claim that the trial court erred by not allowing the jury to consider the Defendants’ liability for punitive damages separately does not merit plain error review. Plaintiff argues that Rinker v. Ford Motor Co., is dispositive of this issue because it clearly states that “Missouri does not follow the ‘complicity rule.’ ” 567 S.W.2d 655, 669 (Mo.App.K.C.Dist.1978). Rather, when an employer is vicariously liable for the acts of his agent, all that is necessary to award punitive damages against the employer is for the agent to be acting in the scope of employment and that his actions meet the level justifying an award of punitive damages. See Id. In this case Defendants have conceded vicarious liability. Therefore the verdict form which simply allowed for the assessment of punitive damages against both Holzwarth and Shepherd, Inc. together was not erroneous. Accordingly, Defendants’ Points V and VI are denied.

In Point VII, Defendants assert that the trial court erred in not sustaining their motion for a new trial. In this point they essentially argue the same issues that were relied upon in Points I through VI. We have already addressed those issues above and each was resolved in favor of Plaintiff. Further elaboration is unnecessary, therefore Point VII is denied.

While there are questions about the relevance of much of the evidence at issue in this appeal, Defendants failed to preserve these issues for appellate review. It is justifiably rare for appellate courts to reverse a trial court on the basis of plain error in civil cases. Verbrugge v. ABC Seamless Steel Siding, Inc., 157 S.W.3d 298, 303 (Mo.App. S.D.2005). This case does not persuade us to depart from that tradition. Accordingly, the judgment of the trial court is affirmed.

PREWITT, J., and RAHMEYER, J„ concur.

      . While Oakley asserted a claim against Defendants in the amended petition, the judgment Defendants now appeal only pertains to the judgment entered in favor of Flood.

      . All references to rules are to Missouri Rules of Civil Procedure (2004) unless otherwise indicated.

      . Hayes did not actually testify, his deposition was read into the record by Plaintiff's counsel.

      . The accident happened in Newton County and the case was tried in Lawrence County.

      . We note that while the case was submitted to the jury on the theory of respondeat superi- or, Plaintiff also plead negligent retention of Holzwarth by Shepherd, Inc. in their First Amended Petition for Damages. We see no indication in the record that the negligent retention claim was dismissed prior to submission of the case.

      . Defendants also argue that the portion of the Prosecutor's testimony pertaining to the criminal records of the Shepherd, Inc. employees was erroneously allowed, however, for the reasons stated above, this is merely cumulative to the criminal records which were admitted into evidence.

      . We note that Defendants concede in the argument portion of Point I, that punitive damages were sought against Shepherd, Inc. on the basis of its agency relationship with Holzwarth.

      . Courts are more likely to review for plain error in criminal cases in which a defendant states that he has no objection to the proposed jury instructions. See State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001); State v. Beck, 167 S.W.3d 767, 776-77 (Mo.App. W.D.2005).

      . Defendants’ counsel on appeal was not trial counsel.


author: JOSEPH M. ELLIS, Judge.

text:
    In the Interest of L.E.C., J.I.C., and B.C., III, Plaintiffs, Missouri Children’s Division and Juvenile Officer, Respondents, v. B.C. (Father), Appellant, K.J.C. (Mother), Defendant.
    Nos. WD 65535-65537.
    Missouri Court of Appeals, Western District.
    Jan. 3, 2006.
    As Modified Jan. 31, 2006.

      Thomas Bolling, Marshall, MO, for appellant.
    Donald A. Willoh, Jr., Jefferson City, MO, for respondent, Missouri Children’s Division.
    Jill Harriman, Marshall, MO, for respondent, Juvenile Officer.
    George L. Stafford, Slater, MO, for defendant.
    Robert L. Alexander, Marshall, MO, for plaintiffs.

      Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Judge.

B.C. (“Father”) appeals a May 10, 2005 judgment of the Juvenile Division of the Circuit Court of Saline County terminating his rights, as well of those of K.J.C. (“Mother”), to parent their three minor children, L.E.C., J.I.C., and B.C. We hold that the trial court properly found grounds for termination of Father’s parental rights to all three children pursuant to section 211.447.4(4) and that termination was in the best interests of the children. Accordingly, we affirm the circuit court’s judgment.

Only an abbreviated summary of the facts of this case is necessary. Father and Mother are the natural parents of three minor children: L.E.C. (a female child born on August 24, 1989); J.I.C. (a female child born on September 12, 1990), and B.C. (a male child born on June 21, 1993). On February 26, 1997, J.I.C. was scratching between her legs during her kindergarten class. The school nurse removed a pubic louse from the inside of her labia and notified the Missouri Division of Family Services (“DFS”; now the Children’s Division). Social workers from DFS interviewed J.I.C. that day. She gave a graphic and detailed account of sexual abuse, implicating Father as the perpetrator. At the time, J.I.C. was six years old. Mother was also interviewed that afternoon by DFS. Mother was told not to discuss anything with J.I.C. and that the next day DFS would conduct a videotaped interview and a physical exam on J.I.C. J.I.C. was allowed to return home with Mother that evening because Father would not be home. In spite of these instructions, that evening Mother did discuss the allegations of sexual abuse with J.I.C. Mother clearly implied to J.I.C. that she did not believe her. Mother told J.I.C. that Father would go to jail if she lied and told her to tell “the truth.”

The next day (February 27, 1997), the Juvenile Court of Saline County assumed jurisdiction over J.I.C., L.E.C., and B.C. and temporarily placed them in the legal custody of DFS. A SAFE exam was conducted on J.I.C., which revealed that her hymeneal opening was double the normal size for a child her age, and that her vaginal vault showed signs of chronic irritation. Father was arrested, and DFS formally sought to have J.I.C., L.E.C., and B.C. removed from the home. On March 20, 1997, while incarcerated and awaiting trial on statutory rape charges involving J.I.C., Father was personally served with a Petition and Summons concerning the removal of the children from his home. The summons served upon Father advised him of his right to appointed counsel and his obligation to notify the Juvenile Court if he wished to have counsel appointed to represent him. Father took no subsequent action and initiated no communication whatsoever with the court concerning the matter until 1999, when he filed a pro se motion with the Juvenile Court requesting that counsel be appointed, which the court granted on April 16, 1999.

On June 18, 1998, Father was found guilty by a jury of the first-degree statutory rape of his daughter J.I.C. and was sentenced, as a persistent sexual offender, to life imprisonment. Extensive efforts to reunite the children with Mother failed, and in November 2001, the juvenile officer for Saline County filed a motion for a permanency hearing as to all three children to determine whether they should continue in foster care or be returned to Mother. After conducting such a hearing and receiving evidence, on March 14, 2002, the court terminated Mother’s visitation rights and changed the permanency plan from reunification with Mother to adoption. Mother appealed, but the judgment was affirmed. See In the Interest of L.E.C., 94 S.W.3d 420 (Mo.App. W.D.2003). On January 16, 2004, the Missouri Children’s Division, through counsel, filed a petition seeking termination of the parental rights of Father and Mother as to all three children. On February 11, 2004, while incarcerated in the custody of the Missouri Department of Corrections due to his 1998 conviction for the first-degree statutory rape of J.I.C., Father was personally served with a Petition and Summons concerning the termination of his parental rights. On October 7, 2004, the Children’s Division filed its second amended petition for termination of parental rights, which included, among many other things, allegations that Father had been declared to be a persistent sexual offender and that he had been convicted of forcible rape in 1990 and of statutory rape of one of his daughters in 1998. On December 14, 2004, Father filed his answer to the second amended petition, in which he admitted the 1990 and 1998 rape convictions.

Father also filed a “Motion to Dismiss, and In Alternative, Motion to Litigate Core Issue In Trial.” In his answer, his supplemental response, and his motion to dismiss, Father claimed that he was prejudiced by a lack of legal representation for a period of roughly two years after being served with the original juvenile court summons. He also claimed that his criminal conviction for the statutory rape of his daughter was obtained through “false evidence” and “false testimony.” The Children’s Division then filed a motion in li-mine on January 12, 2005, arguing that Father was collaterally estopped from re-litigating, in the termination of parental rights proceeding, his previous convictions based on allegedly false information, false testimony, or fraud on the court. The motion specifically requested that no evidence of “false evidence,” “false testimony” or “fraud” be permitted on the issue of Father’s criminal convictions.

At a motion hearing held on February 2, 2005, the trial court overruled Father’s motion and granted the Children’s Division’s motion in limine. On March 24, 2005, the court also took up and sustained the Children’s Division’s “Motion to Apply Law of Case Doctrine,” in which the Division asked that Mother be prevented from revisiting any of the factual findings made by the trial court after the 2001 and 2002 permanency hearings, as described by this court on appeal in In the Interest of L.E.C., 94 S.W.3d 420 (Mo.App. W.D.2003).

The termination hearing finally began on April 20, 2005. Father asked to proceed pro se and was granted leave to do so, but the trial court ordered his attorney to remain. Father once again asked the trial court to consider evidence regarding “false evidence and false testimony,” but the trial court told him that the court would not “open up the — the facts of that criminal case.” Father also complained that he was not represented by counsel from March 1997 to April 1999 because the notification of his right to counsel was on the back of his summons, and once again argued that he should be allowed to present “documentations and witnesses” to prove fraud and perjury in his criminal cases, but the trial court denied him any relief.

After receiving evidence from a number of witnesses, including Father and Mother and the childrens’ guardian ad litem, the court took the matter under submission. On May 10, 2005, the trial court entered a detailed 39-page judgment terminating the parental rights of both Father and Mother as to all three children, concluding that the Children’s Division had proven, by clear, cogent, and convincing evidence, the statutory grounds for termination under sections 211.447.4(2) (Father and Mother); 211.447.4(3) (Father and Mother); 211.447.4(4) (Father), and 211.447.4(6) (Father and Mother). After making these determinations, the trial court made the further finding, under section 211.447.5, that termination would serve the children’s best interests. In doing so, the court made additional findings adverse to both Father and Mother as to each of the applicable factors set forth in section 211.447.6. Father brings this appeal.

Our Supreme Court recently summarized the required findings, standard of proof, and standard of review for judgments terminating parental rights as follows:

The standard of review for judgments terminating parental rights is based on the requirements of section 211.447.5 that 1) the trial court must find by clear, cogent, and convincing evidence that one or more grounds for termination exists under subsections 2, 3 or 4 of section 211.447 and 2) the trial court must find that termination is in the best interests of the children. Whether statutory grounds under section 211.447.2, .3 or .4 have been proven by clear, cogent and convincing evidence is reviewed under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); in other words, the trial court’s judgment will be affirmed unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Proof under this standard of only one of the statutory grounds alleged is sufficient to sustain the judgment. Then after determining that one or more statutory grounds have been so proven, the court must consider the question of whether termination also is in the best interests of the child. On that question, the standard of proof at trial is a preponderance of the evidence, and the standard of review on appeal is abuse of discretion. In all of these determinations, the reviewing court is deferential to the fact-findings of the trial court and considers all the evidence and reasonable inferences from the evidence in the light most favorable to the judgment.

In the Interest of P.L.O., 131 S.W.3d 782, 788-89 (Mo. banc 2004) (internal citations omitted). “Clear, cogent and convincing evidence in an action for termination of parental rights is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In the Interest of R.K., 982 S.W.2d 803, 806 (Mo.App. W.D.1998).

Father brings three points on appeal. In his first point, Father argues that he was denied his right to appointed counsel for two years during the pendency of the earlier juvenile proceedings which ultimately culminated in the Children’s Division’s separate action seeking termination of his parental rights. We disagree.

Although the record shows that counsel was promptly appointed for Father upon request, Father claims counsel should have been appointed earlier under Rule 116.01(d) and section 211.211.4, which are nearly identical. Rule 116.01(d) states: When a petition has been filed and the juvenile’s custodian appears before the court without counsel, the court shall appoint counsel for the custodian if it finds:

(1) that the custodian is indigent; and
(2) that the custodian desires the appointment of counsel; and
(3) that a full and fair hearing requires appointment of counsel for the custodian.

The fatal flaw in Father’s argument is that Father never “appeared] before the court without counsel” before he finally requested that counsel be appointed because he was incarcerated when he was served with the summons on March 20, 1997 and had not filed an answer or other responsive pleading but was actually in default. Moreover, the trial court found (and Father admits in his brief) that the summons advised him of his right to appointed counsel and his obligation to notify the Juvenile Court if he wished to have counsel appointed to represent him. Nevertheless, Father took no subsequent action and initiated no communication with the court concerning the matter until 1999. Under these circumstances, “it was not asking too much of [Father] (who now strenuously insists that his right to counsel was violated) to require that he make known to the trial court his desire to be represented by appointed eounsel[.]” In the Interest of B.M.P., 704 S.W.2d 237, 248 (Mo.App. S.D.1986). Indeed, “[t]o reverse the trial court in this case would be to reward [Father] for his indolence in failing to request the appointment of counsel[.]” Id.

Anticipating this result, Father further claims that the notice contained in the summons with which he was served on March 20, 1997 was deficient because it “was contained on the reverse of the summons” rather than on its face and, was, therefore, “obscure” and “not readily discoverable” by him. Here, he points to Rule 128.15, which provides a form to be used for the summons and notice in juvenile cases, claiming that it requires that “the notice of the right to counsel must be contained on the face of the summons.”

The form is of no assistance to Father, because it expressly states that ‘You should make known to the court your desire to have an attorney appointed for you.” Moreover, while it contains an explicit and detañed notice of an indigent parent’s right to appointed counsel, nowhere does Rule 128.15 require, as claimed by Father despite his faüure to cite any case law so holding, that this notice appear “on the face of the summons.”

Father was not denied his timely right to appointed counsel. Rather, he waived that right by choosing to ignore the plain language of the summons and negligently faüing to request counsel earlier than he did, even though he was properly and fully notified of his right to appointed counsel when he was served with the summons on March 20,1997. Point denied.

In his third point, Father contends that the trial court erred in refusing to allow him to show that certain witnesses who testified against him at his criminal trial committed perjury and that his first-degree statutory rape conviction was the result of the State’s knowing use of false testimony, arguing that had the trial court heard his arguments and seen his evidence in this regard, it might “have decided not to terminate his parental rights despite the conviction.”

Section 211.447.4 provides that a county juvenile officer may file a petition to terminate the parental rights of a child’s parent when it appears that one or more of six specified grounds for termination exists. Section 211.447.4(4) states that one of those grounds is when:

The parent has been found guilty [of] or pled guilty to a felony violation of chapter 566, RSMo [sexual offenses], when the child or any child in the family was a victim, or a violation of section 568.020, RSMo [incest], when the child or any child in the family was a victim. As used in this subdivision, a “child” means any person who was under eighteen years of age at the time of the crime and who resided with such parent or was related within the third degree of consanguinity or affinity to such parent[.]

While “not every criminal act committed by the parent is severe enough to be abuse or neglect,” In the Interest of K.A.W., 133 S.W.3d 1, 11 (Mo. banc 2004), “[a] parent’s sexual violation of one of his own children raises a grave challenge to the issue of whether that parent should retain parental rights[.]” In the Interest of E.C.H.J., 160 S.W.3d 815, 818 (Mo.App. W.D.2005). Indeed, such crimes are so severe that in 2004, a year before this case was tried, the General Assembly enacted section 211.038, which provides, in relevant part, that when such a child was the victim, “[n]o child under the jurisdiction of the juvenile court shall be reunited with a parent or placed in a home in which the parent or any person residing in the home has been found guilty of, or pled guilty to, a felony violation of chapter 566, RSMo, ... or a violation of section[ ] 568.020[.]”

As noted supra, the record demonstrates that in June 1998, Father was found guilty by a jury of the first-degree statutory rape of his daughter J.I.C. and was sentenced to life imprisonment. The record further shows that at the time Father committed this crime, J.I.C. was under eighteen years old and resided with Father. Father’s conviction was affirmed on appeal, State v. Costa, 11 S.W.3d 670 (Mo.App. W.D.1999), cert. denied, 530 U.S. 1282, 120 S.Ct. 2758, 147 L.Ed.2d 1019 (2000), as was the denial, after an eviden-tiary hearing, of his subsequent motion for post-conviction relief under Rule 29.15, Costa v. State, 85 S.W.3d 758 (Mo.App. W.D.2002). Therefore, the Children’s Division proved all of the statutory grounds for termination of Father’s parental rights under section 211.447.4(4) by clear, cogent, and convincing evidence. Accordingly, the trial court properly declared and applied the law in expressly finding that those grounds for termination existed.

Moreover, when determining whether to terminate the parent-child relationship pursuant to section 211.447.4(4), “[s]ection 211.447.6(6) provides for consideration of the ‘conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years[.]’ ” K.A.W., 133 S.W.3d at 11 (quoting § 2im,7.6(6) ). As properly found by the trial court, that factor weighed heavily against Father, since the nature of his felony conviction (and associated sentence of life imprisonment) is such that all of his children will be deprived of a stable home with Father for many years to come. In reaching its ultimate conclusion that termination of Father’s parental rights was in all the childrens’ best interests, the trial court also made findings adverse to Father on the other applicable factors set forth in section 211.447.6, all of which are amply supported by the record and none of which he contests on appeal.

In his brief, Father does not deny (or even attempt to deny) any of this. Instead, he claims he should have been allowed to call or cross-examine several opposing witnesses who had also testified against Father at his criminal trial for the purpose of showing that they had committed fraud on the court and perjured themselves in the criminal proceedings “so that the court could properly evaluate the case in deciding whether to terminate [his] parental rights.” In particular, he asserts that “his conviction does not mean that all witnesses against him were truthful and honest with the court” and that a “witness who can be shown to have lied in the criminal trial might not be believed by the trial court in the separate, termination of parental rights action.”

Father’s argument, which he fails to support with any applicable case law whatsoever, is utterly devoid of merit. To begin with, as noted supra, under section 211.447.4(4), “termination is appropriate where the parent has been found guilty of or pleaded guilty to (1) a Missouri Chapter 566 felony violation (sexual abuse) where one of his children was the victim or (2) a violation of Missouri section 568.020 (incest) where one of his children was the victim.” E.C.H.J., 160 S.W.3d at 817. During his criminal trial for the first-degree statutory rape of his daughter J.I.C., Father had a full and fair opportunity to litigate the issue of his guilt of a felony violation of chapter 566 when any child in the family was a victim, see Costa, 11 S.W.3d at 672-85, and such a finding of guilt is all that is required to establish adequate grounds for termination under section 211.447.4(4). Moreover, the record demonstrates that in his separate civil action under Rule 29.15, Father was also given a full and fair opportunity to litigate the issue of whether “the State knowingly used false testimony to convict him of the charged offense,” as well as whether his conviction was the result of “perjured testimony.” Costa, 85 S.W.3d at 758. In both cases, the factual issues Father attempted to raise in the termination of parental rights proceeding were conclusively resolved against him.

Under the circumstances presented in this case, the trial court did not err by precluding Father from attempting to re-litigate any of those factual issues in the subsequent termination of parental rights proceeding. The trial court’s “application of offensive non-mutual collateral estoppel in this case is consistent with the underlying principles of protecting litigants from the burden of relitigating issues and the promotion of judicial economy,” In re Caranchini, 956 S.W.2d 910, 914 (Mo. banc 1997), “as well as promoting the other policies of finality [and] consistency[.]” James v. Paul, 49 S.W.3d 678, 688 (Mo. banc 2001). Indeed, to fail to apply the doctrine in favor of the Children’s Division here would be “virtually certain to encourage continued legal stratagems designed to create inconsistent factual adjudications.” Id. at 687. Point denied.

In his second (and final) point, Father contends the trial court improperly applied the law of the case doctrine in preventing him from presenting evidence to contradict the facts stated in In the Interest of L.E.C., 94 S.W.3d 420 (Mo.App. W.D.2003). We need not address this point, because a judgment terminating parental rights will be affirmed on appeal if any one of the statutory bases found by the court is adequately supported by the record, In the Interest of N.M.J., 24 S.W.3d 771, 777 (Mo.App. W.D.2000); In the Interest of L.T., 989 S.W.2d 673, 677 (Mo.App. W.D.1999), and the claimed error raised in Point II does not pertain to or otherwise affect the trial court’s findings under sections 211.447.4(4) or 211.447.5.

The judgment of the trial court terminating Father’s rights to parent his three minor children, L.E.C., J.I.C., and B.C. is affirmed.

All concur.

      . Mother did not appeal.

      . All statutory references are to RSMo 2000.

      .Father had been convicted of the felony of forcible rape in 1990. The victim of this crime was the childrens’ aunt (Mother's sister).

      . In his brief, Father mistakenly cites to section 211.462.2, which provides that "[t]he parent or guardian of the person of the child shall be notified of the right to have counsel, and if they request counsel and are financially unable to employ counsel, counsel shall be appointed by the court. Notice of this provision shall be contained in the summons.” This statute is not implicated here inasmuch as it only governs the appointment of counsel in actions to terminate parental rights. In the Interest of J.D., 34 S.W.3d 432, 434 (Mo.App. W.D.2000); In the Interest of M.A.J., 998 S.W.2d 177, 181 (Mo.App. W.D.1999).

      . As used in Rule 116.01, the "custodian” of a juvenile includes a parent. Rule 110.05(a)(5).

      . Statutory rape in the first degree is a felony violation of Chapter 566 for which the maximum sentence is imprisonment for life. § 566.032.2. Father was found to be a persistent sexual offender under section 558.018 and was sentenced to a term of life imprisonment.

      . Indeed, under section 211.038, the children can never be reunited with Father or be placed in any home in which he resides.


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Hung NGUYEN and Jennifer T. Ngo, Respondents, v. Shy Yung WANG and Miao Ling Zhou, Appellants.
    No. ED 85878.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 17, 2006.

      Guang Ming Li, Attorney at Law, St. Louis, MO, for appellants.
    Llynn K. White, Ryan J. Mason, Polsi-nelli Shalton Welte Suelthaus, PC, St. Louis, MO, for respondents.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellants, Shy Yung Wang and Miao Ling Zhou, appeal the judgment of the Circuit Court of the City of St. Louis denying their motion to set aside the default judgment which had been entered in favor of Respondents, Hung Nguyen and Jennifer T. Ngo. On April 28, 2004, the trial court entered a default judgment holding that Appellants shall vacate certain premises and pay Respondents $44,943.54 for past rent and damages. We affirm.

On February 4, 1999, Appellants executed a commercial lease agreement (“the agreement”) with Wei Chen Chang, predecessor in interest to Respondents, for the lease of property located at 3159-3161 South Grand in the City of St. Louis (“the property”) for a term of five years beginning March 1, 1999 and ending February 28, 2004. Pursuant to the agreement, Appellants were obligated to pay $30,000 in annual rent payable in monthly installments of $2,500. The agreement also provided that Appellants would pay the property taxes from the year 2001 and thereafter, limited to a one percent increase from the 2000 property tax amount. Finally, the agreement provided that if Appellants failed to pay any installment of rent on time or failed to satisfy any other covenant set out in the agreement, Respondents have the option the cause the forfeiture of the lease.

According to Respondents, Appellants defaulted under the agreement for, among other reasons, failing to make their monthly rent payments for September, November and December of 2003. An affidavit indicates that on February 1, 2004 Appellant Shy Yung Wang was personally served with a termination of tenancy and notice to vacate dated January 30, 2004. It was indicated in this notice that the lease would be terminated on February 15, 2004. A reply was never filed by Appellants.

On February 26, 2004, Respondents filed an unlawful detainer suit seeking possession of the property, past due rent, $4,923.70 for unpaid 2003 real estate taxes, and various other damages. On March 23, 2004, Respondents filed an affidavit evidencing that Appellant Miao Ling Zhou was served with the summons via personal service on March 7, 2004 at the property. A court date was originally set for March 25, 2004 at which Appellants failed to appear. The court date was continued to April 22, 2004. Appellants again failed to appear at the April 22, 2004 court date.

On April 28, 2004, the trial court entered a default judgment (“the default judgment”) holding that Appellants shall vacate the property when the judgment is final and pay Respondents $44,943.54 for past due rent and damages under the agreement. The trial court mailed a copy of the default judgment to Appellants at the property. On May 21, 2004, the trial court issued a writ of execution in response to Respondents’ execution/garnishment application, which was filed to gain possession of the property. On or about June 1, 2004, the eviction of Appellants from the property was carried out while Appellants were present at the property.

On November 12, 2004, Appellants filed a motion to set aside the default judgment. On January 26, 2005, this motion was heard by the trial court. On February 4, 2005, the trial court entered a judgment denying Appellants’ motion to set aside the default judgment. This appeal followed.

' In Appellants first point on appeal, they argue that we have no personal jurisdiction over them as the alleged service of summons shown in court files was improper and defective or fraudulently procured without knowledge of Appellants. We assume Appellants intended to say that the trial court, rather than this court, did not have jurisdiction over them.

Jurisdiction is a question of law that we review de novo. City of Sullivan v. Truckstop Restaurants, 142 S.W.3d 181, 191 (Mo.App. E.D.2004). A default judgment entered against a person over whom personal jurisdiction is lacking is void. Cook v. Polineni, 967 S.W.2d 687, 690 (Mo. App. E.D.1998).

Return of service is prima facie evidence of the facts recited therein. Rule 54.22(a). The party alleging that it was never served must provide clear and convincing evidence corroborating the lack of service allegation in order to impeach the veracity of the return. Century Financial Services v. First Bank, 996 S.W.2d 92, 93 (Mo.App. E.D.1999).

Appellants claim they never received a summons for the suit filed by Respondents and that service was improper, but they do not provide facts to support these conclusions. Rather, Appellants only provide bare con,elusions. The record indicates that Appellant Miao Ling Zhou was personally served with a summons on March 7, 2004. Furthermore, the trial court believed the testimony of special process server, Bonnie Lewis (“Lewis”). Lewis testified that she served a summons for the unlawful detainer suit on March 7, 2004 at the property to a male and female who responded positively when she stated the names of Appellants. Therefore, the trial court did not err in finding it had personal jurisdiction over Appellants. Point denied.

For purposes of this appeal, we will merge Appellants’ final three points on appeal into one point on appeal. All three points on appeal consist of an argument that the trial court erred in failing to set aside the default judgment.

The discretion not to set aside a default judgment is narrower than the discretion to set a default judgment aside. Crain v. Crain, 19 S.W.3d 170, 174 (Mo. App. W.D.2000). Nevertheless, we review a trial court’s decision to deny a motion to set aside a default judgment for abuse of discretion. Id.

Upon a motion stating facts which constitute a meritorious defense and for good cause shown, a default judgment may be set aside. Rule 74.05(d). A motion to set aside a default judgment “shall be made within a reasonable time not to exceed one year after the entry of the default judgment.” Id.

In determining whether a motion to set aside a default judgment was filed within a reasonable time, we look at the underlying circumstances surrounding the delay. Hopkins v. Mills-Kluttz, 77 S.W.3d 624, 626 (MoApp. E.D.2002). One of the underlying circumstances we consider is whether the delay resulted in substantial harm to the plaintiff. Id.

The trial court found that Appellants failed both the good cause and reasonable time requirements of Rule 74.05(d). We will address the issue of whether the reasonable time requirement was met by Appellants.

There is evidence in the record that the trial court mailed a copy of the default judgment to Appellants at the property within a day of the April 28, 2004 default judgment. Moreover, even though the sheriff physically evicted Appellants on or about June 1, 2004, they still failed to take any legal action until November 12, 2004. Appellants even concede they were present at the property during the eviction and that, at the least, they received knowledge of the default judgment at this time. However, they proceeded to wait over five months from the time of the eviction to file their motion to set aside the default judgment. Appellants fail to provide a sufficient explanation as to why it took them this long to file their motion to set aside the default judgment.

Furthermore, it is undisputed that Respondents have already taken action in reliance on the default judgment by- re-letting the property and paying the outstanding bills owed by Appellants. As a result, Respondents would suffer substantial harm if the default judgment was set aside. Thus, considering the underlying circumstances surrounding the delay, Appellants did not file their motion to set aside the default judgment within a reasonable time. Therefore, the trial court did not abuse its discretion in denying Appellants’ motion to set aside the default judgment. Point denied.

Based upon the foregoing, we affirm the judgment of the trial court.

GEORGE W. DRAPER III and KENNETH M. ROMINES, JJ., concur.

      . Respondents’ motion to dismiss the appeal is denied.

      . Appellants assert in their affidavits that the eviction took place on May 18, 2004, but other evidence in the record indicates that the ■ eviction did not occur until June 1, 2004.


text:
    Ronnie BOONE, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 86175.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 17, 2006.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SAW, JJ.
   ORDER

PER CURIAM.

The movant, Ronnie Boone, appeals the motion court’s order denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 24.035(k). An opinion would have no prec-edential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 24.035 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Anthony HOWELL, Defendant/Appellant.
    No. ED 85312.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 17, 2006.
    S. Kristina Starke, Assistant public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Roger Johnson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Anthony Howell (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of one count of first-degree murder, in violation of Section 565.020 , and one count of armed criminal action, in violation of Section 571.015. The trial court sentenced Defendant to two concurrent terms of life imprisonment without parole.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.


text:
    Paul A. WIBBENMEYER, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 85762.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 17, 2006.
    Zainab S. Smith, St. Louis, MO, for appellant.
    Michael K. Kielty, St. Charles, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

The Director of Revenue appeals the judgment reinstating the driving privileges of Paul A. Wibbenmeyer after an administrative suspension. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).