author: GARY M. GAERTNER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Fidel STEWART, Appellant.
    No. ED 76489.
    Missouri Court of Appeals, Eastern District, Division One.
    April 25, 2000.

      Thomas C. Antoniou, Antoniou, Goff-stein & Antoniou, L.L.C., Clayton, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellant, Fidel Stewart, (“defendant”), appeals the judgment of the Circuit Court of the City of St. Louis after a jury found him guilty of trafficking in the second degree, section 195.223, RSMo 1994, by possessing more than two grams of a mixture or substance containing a cocaine base. The trial court sentenced defendant as a prior and persistent offender, section 558.016, and a prior drug offender, section 195.295, to a term of eighteen years in prison. We reverse and remand.

The evidence, in the light most favorable to the verdict, is that on August 5,1998, at approximately 8:45 p.m., four plain clothes St. Louis Police Department detectives were travelling southbound in an unmarked car on routine patrol. The detectives saw defendant exit the driver’s door of a purple 1996 Mercury Sable parked by the curb at 1424 Hodiamont Avenue, in St. Louis. Defendant left his driver’s door open as he walked to the rear of his car and then approached an unidentified male standing on the sidewalk at the rear of the car. As the detectives approached in their car, the unidentified male fled on foot. As the detectives slowed down and pulled parallel to the rear of defendant’s car, they observed defendant look over his shoulder in their direction, then release a black pouch from his right hand and walk north on the sidewalk away from the detectives and his parked car. Detective Blase Pe-luso pursued the unidentified male on foot, but returned shortly without apprehending the suspect.

Detective Robert Lang, who was the only one of the four detectives to testify at defendant’s trial, retrieved the pouch discarded by defendant and found a knotted plastic bag containing one large crystal chunk which subsequently proved to be crack cocaine. Defendant was advised he was under arrest and was read his Miranda rights. Defendant then stated, “That motherf — er set me up, I know he did.”

Defendant was searched incident to the arrest and the detectives found a metal pill container in defendant’s right front pants’ pocket containing what subsequently proved to be crack cocaine. In defendant’s left pants’ pocket the detectives found four .32 caliber rounds of ammunition. A subsequent search of defendant’s car yielded an unloaded .32 caliber five-shot revolver which was wrapped in a towel under the driver’s seat. Defendant stated he had just bought the gun around the corner for fifty dollars.

Defendant was transported to the police station and interviewed. Subsequent laboratory tests established there was 3.45 grams of a substance containing cocaine base in the pouch and 1.43 grams of a substance containing cocaine base in the metal pill container.

At trial, defendant called two witnesses whose testimony conflicted with the testimony of the state’s witness, Detective Lang. Larry Wilkins, who resides in the neighborhood where defendant’s arrest took place, witnessed defendant’s arrest. Wilkins, who is a retired postal worker, testified he did not know defendant, but had seen him around the neighborhood. On the evening of August 5, Wilkins was headed home, travelling southbound on Hodiamont Avenue. Wilkins passed defendant’s car and was turning the corner on Ridge when he observed a “white car come out right behind me and pulled right in front of [defendant’s] car and cut [defendant] off in front.” Wilkins testified after the white car blocked defendant’s car, two detectives in the front seat exited the car, one went to the driver’s side and the other went to the passenger side of defendant’s car. Wilkins testified he never saw a flee-mg individual. After parking across the street, Wilkins observed the other two de- • tectives exit the white car and one went to the driver’s side and the other went to the passenger side of defendant’s car. Wilkins testified that defendant did not exit the car for five to ten minutes, until detectives opened the door, took defendant to the rear of the car, put his hands on the trunk and spread his feet. At this point, Wilkins could no longer see because of his vantage point, but he testified he later saw a detective handcuff defendant and put him in the white unmarked car. Wilkins testified he did not see the detectives pick up anything off the ground.

Ervin Miller, the other witness called by defendant, testified he knew defendant for twenty years. Miller’s testimony was substantially the same as the testimony given by Wilkins. Particularly, that defendant’s car was blocked off by the detectives, that defendant never exited the car until removed by police, and Miller never witnessed defendant drop any package or pouch to the ground.

Defendant requested the jury be instructed on the lesser included offense of possession of controlled substance. The trial court refused defendant’s proffered instruction. Subsequently, defendant was found guilty of trafficking in the second degree. Defendant appeals.

Defendant raises two points on appeal. In his first point, defendant alleges the trial court erred when it refused to submit defendant’s proposed instruction for the lesser included offense of possession of a controlled substance. Defendant argues there was evidence which would support a conviction of possession, a Class C felony, and acquittal of trafficking in the second degree, a Class B felony. We agree.

Trial courts are obligated to instruct on the lesser included offenses if there is a basis for the jury to: 1) acquit defendant of the offense charged; and 2) convict defendant of the lesser included offense. State v. Hibler, 5 S.W.3d 147,148 (Mo.banc 1999). “If in doubt, the trial judge should instruct on the lesser included offense.” Id. Under the facts of the case at bar, the state does not dispute that possession of a controlled substance is a lesser included offense of trafficking in the second degree.

A trial court should resolve all doubts regarding the evidence in favor of instructing on the lower degree of crime, leaving it to the jury to decide which of the grades of an offense a defendant is guilty. State v. Beck, 849 S.W.2d 668, 670 (Mo.App. E.D.1993). “Questions of the credi bility of witnesses and the effects of conflicts or inconsistencies in the testimony of any witness are questions for the jury.” Id. When defendant presents affirmative probative evidence which makes it a distinct possibility that the jury could believe or reasonably infer that defendant possessed less contraband than the amount charged, the court should instruct the jury on the lesser included offense. State v. Warrington, 884 S.W.2d 711, 717 (Mo.App. S.D.1994); See also State v. Mizanskey, 901 S.W.2d 95, 99 (Mo.App. W.D.1995); Beck, 849 S.W.2d at 670.

In Beck, the defendant’s conviction of possession of more than thirty-five grams of marijuana was reversed by this court because the trial court erred in failing to instruct on the lesser charge of possession of under thirty five grams of marijuana. Beck, 849 S.W.2d at 670. The state’s evidence showed that police found marijuana in three separate places: 1) in a box on the defendant’s person weighing 2.36 grams; 2) in bags on the floor of the car weighing 10.87 grams; and 3) in a briefcase in the backseat of the car weighing 108.64 grams. Id. at 670. The defendant presented two witnesses whose testimony conflicted with the state’s evidence. Id. at 670. The passenger in the car testified that the briefcase was not in the backseat on the day of the defendant’s arrest. Id. Another defense witness testified that she saw a police officer take the briefcase from a police car to the defendant’s car and back to the police car. Id. The court held the defendant was prejudiced because the jury had only the option of acquitting or convicting him of possession of over thirty-five grams of marijuana, when there was evidence presented that may have led the jury to believe that the defendant possessed less than thirty-five grams of marijuana. Id.

The element differentiating trafficking in the second degree, as charged by the state, and possession of a controlled substance, the instruction refused by the trial court, is whether or not the quantity of cocaine base defendant possessed was greater or less than two grams. A review of the entire record demonstrates there was a sufficient amount of evidence presented by the defense to support a conviction of possession and an acquittal of trafficking.

In the case at bar, there were multiple places where controlled substances were found. Also, like Beck, the defense witnesses’ testimony directly conflicted with the state’s witness’ testimony. Furthermore, as in Beck, the jury in this .case had only the option of acquitting or convicting defendant of the charged offense. Finally, like Beck, there was a possibility that the jury may have believed that defendant possessed less contraband than what defendant was charged. Both of the defense witnesses, if believed by the jury, make it a possibility that there was never a black pouch thrown onto the ground, because defendant remained in the car for the duration of the contact with the detectives. The evidence presented at trial justified defendant’s request for the lesser offense of possession instruction.

Thus, the trial court erred in failing to submit an instruction to the jury for the lesser included offense of possession of a controlled substance. Therefore, we reverse and remand.

In his second point, defendant alleges the trial court prejudicially erred in denying his motion to suppress evidence and statements as testimony adduced at trial, and the pretrial motion to suppress revealed that defendant had been illegally seized by the detectives without any obser-' vation of articulable suspicious facts. We disagree.

Despite defendant’s pretrial motion to suppress, defendant’s counsel needed to object to the testimony at trial. State v. Cosby, 976 S.W.2d 464, 467 (Mo.App. E.D.1998). Failure to object at the earliest opportunity to the admission of evidence constitutes a waiver of the claim. Id. During the testimony of the state’s witnesses, defendant did not object to the admission of any of the evidence mentioned in his pretrial motion to suppress. Therefore, our review is limited to plain error pursuant to Supreme Court Rule 30.20. Unless a claim of plain error establishes the alleged error has produced a manifest injustice, this court will decline to exercise its discretion to review for plain error. State v. Sloan, 998 S.W.2d 142, 145 (Mo.App. E.D.1999). Our review of the record reveals no plain error.

Accordingly, we reverse the judgment and remand the case for further proceedings consistent with this opinion.

PAUL J. SIMON, J., and JAMES R. DOWD, J., concur.

      . All statutory references are to RSMo 1994.

      . Defendant walked away from his car even ’ though his driver’s door was open and his lights were on.

      .The samples were retested over ten months later and contained 3.04 grams and 1.34 grams respectfully. An expert witness testified that he believed the difference in the weights were due to the drying out process over the ten months and to the portion of the sample removed for testing.


source: Caselaw Access Project

license: Public Domain

text:
    OCWEN FEDERAL BANK, FSB, Appellant, v. David BYERS, Jr., et al., Respondents.
    No. ED 75862.
    Missouri Court of Appeals, Eastern District, Division One.
    April 25, 2000.

      William H. Leyhe, III, Lehye, Meyer, Leyhe & Lobel, St. Louis, for appellant.
    Laurence Gavin Schmidt, Festus, for respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellant, Ocwen Federal Bank, FSB, (“appellant”), appeals from the Jefferson County Circuit Court’s judgment in favor of respondents, David Byers, Jr., et al., (“respondents”), in an action for unlawful detainer. We affirm.

According to appellant’s brief, on November 15, 1995, respondent David K. Byers, Jr., (“Byers”), executed a deed of trust in favor of Transamerica Financial Services. On February 4, 1998, the deed of trust was foreclosed and at foreclosure, appellant purchased the property. On February 26, 1998, appellant initiated this action in unlawful detainer against respondents. The trial court ruled against the appellant. Appellant appeals.

Appellant raises three points on appeal. Appellant argues that the trial court erred: 1) in failing to grant it judgment in that the court found Byers was entitled to a notice of foreclosure from appellant, prior to the filing of unlawful detainer action; 2) in holding that respondents were entitled to thirty days’ prior written notice to terminate Byers tenancy prior to the filing of the unlawful detainer action; and 3) in finding that Byers was not holding over because he did not live on the premises.

In a court-tried case, the judgment of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). This court does not engage in an appellate review when the matter complained of is not present in the record. State ex rel. Callahan v. Collins, 978 S.W.2d 471, 474 (Mo.App. W.D.1998). “An appealing party desiring review of an issue has the duty to furnish all records relating thereto, and in the absence of such there is nothing for review.” Heifner v. Synergy Gas Corp., 883 S.W.2d 29, 36 (Mo.App. S.D.1994). See also York v. Missouri Pacific R. Co., 813 S.W.2d 61, 62 (Mo.App. E.D.1991).

In its three points, appellant summarily claims that the deed of trust executed by Byers creates the requisite landlord-tenant relationship in order to bring an action for unlawful detainer against former owner on property. According to appellant, “the tenancy of Byers described in the deed of trust expired upon Byers’ default.” Further, “having become a holdover tenant, no demand for possession is necessary prior to filing of an unlawful detainer.” Appellant’s argument is primarily based on a deed of trust, which is not in the record before this court. We do not have enough information to review appellant’s points. It is appellant’s burden to provide such a record for us to review. Without the record, we have no basis to find any error of fact or law.

As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).

PAUL J. SIMON, J., and JAMES R. DOWD, J., concur.


author: CLIFFORD H. AHRENS, Judge.

text:
    STATE of Missouri, Appellant, v. Charles LEWIS, Respondent.
    No. ED 77332.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 25, 2000.

      Jane M. Boardman, Asst. Cir. Atty., St. Louis, for appellant.
    William Goldstein, St. Louis, for respondent.
   CLIFFORD H. AHRENS, Judge.

The State of Missouri (“State”) appeals an order of the Circuit Court of St. Louis City suppressing evidence in a case against Charles Lewis (“Defendant”). The State claims the trial court’s order was erroneous because the evidence was seized during a lawful consensual search of defendant’s residence. We reverse and remand.

On March 9, 1999, a St. Louis City police officer received a tip from a reliable confidential informant that drugs were being stored at defendant’s residence and would soon be moved elsewhere. The informant also told the officer that a female and her daughter would be present at the residence that evening.

Later that evening, several police officers proceeded to defendant’s residence and knocked on the front door. A woman opened the door and identified herself as defendant’s wife (“wife”). She explained she lived there with defendant and her daughter. One of the officers told wife they wished to search the house for drugs and requested her consent to do so. Wife consented and signed a written consent form.

The police asked wife whether any drugs were in the house; she replied she believed drugs were present upstairs in a shoebox in her room. She escorted the police to an upstairs bedroom containing a double bed and men and women’s clothing, shoes and colognes. Upon entering the room, she pointed to a shoe box near the right side of the bed and stated she believed the “dope” was in the box. An officer retrieved the box and promptly opened it. Ten large chunks of crack cocaine base, five bags of marijuana, an electric scale, and personal papers with defendant’s name written on them were found inside the box. The officers continued to search the house but did not find any weapons or other drugs. Wife was not arrested but was taken to the police station for further questioning.

After a probable cause hearing, defendant was charged by information with one count of trafficking drugs in the second degree, section 195.223 RSMo (Supp.1999), and one count of possession or control of a controlled substance, section 195.202 RSMo (1994). Defendant filed a motion to suppress the evidence found during the March 9, 1999 search of the house. The trial court granted the motion, .finding that although wife had authority to consent to the search of their house, the State adduced no evidence that she had any interest in, use of, or common authority over the shoebox and its contents. Pursuant to section 547.200.1(3) RSMo (Supp.1999), the State appeals the granting of the motion. The only issue in question is whether it was proper for the police to search the shoebox without a warrant.

In its sole point on appeal, the State argues the trial court erred in granting defendant’s motion to suppress because wife voluntarily consented to the search of the premises and she had sufficient interest, access, and control over the premises and its effects to grant consent. The State claims that because the parties were married and the shoebox was found in their shared bedroom, the idea of the shoebox being the husband’s personal and private domain was incomprehensible.

At a hearing on a motion to suppress, the State bears both the burden' of producing and presenting evidence, and the risk of non-pursuasion to show' by a preponderance of the evidence that the motion should be overruled. State v. Franklin, 841 S.W.2d 639, 644 (Mo.1992). Review of a trial court’s ruling on a motion to suppress is limited to determining whether the evidence is sufficient to' support the trial court’s ruling. State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo.App.1999). We view the facts and any reasonable inferences therefrom in a light most favorable to the ruling of the trial court and disregard any contrary inferences. Id. If the trial court’s ruling is plausible in light of the record viewed in its entirety, this court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. However, when there is no factual dispute, determination of the reasonableness of a search under the Fourth Amendment is a question of law. State v. Rodriguez, 904 S.W.2d 531, 534 (Mo.App.1995).

As a general rule, searches conducted without a seaz-ch warrant are unreasonable and violate a defendant’s Fourth Amendment rights. State v. Jones, 959 S.W.2d 829, 834 (Mo.App.1997). However, a search conducted pursuant to a valid consent is constitutionally permitted. Id. The law is well settled that the consent to search of one person who possesses “common authority” over the premises is valid as against the absent, nonconsenting person with whom authority is shared. State v. Smith, 850 S.W.2d 934, 941 (Mo.App.1993). A consent to search must be voluntary and not induced by fraud or coercion. Jones, 959 S.W.2d at 834.

Illinois v. Rodriguez, 497 U.S. 177,110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) sets forth the standard in determining the validity of a consensual search. Law enforcement officers may carry out a valid warrantless search based on consent if the officers reasonably believed the person giving consent had authority to do so, regardless of whether the officer’s belief is later proved to be erroneous. State v. Moore, 972 S.W.2d 658, 660 (Mo.App.1998), See Rodriguez, 497 U.S. at 185-86, 110 S.Ct. at .2800, 111 L.Ed.2d at 148. “[Determination of consent to enter must ‘be judged against an objective standard: would the' facts available to the officer at the moment...’’warrant a [person] of reasonable caution in the belief’ ’ that the consenting party had authority over the premises?” Rodriguez, 497 U.S. at 188-89, 110 S.Ct. at 2801, 111 L.Ed.2d at 161.

The trial court relies heavily upon State v. Pinegar, 583 S.W.2d 217 (Mo.App.1979), where the court found that the defendant, who lived in a bedroom in his mother and stepfather’s house, had a reasonable expectation of privacy in an unlocked footlocker located in his room. Id. at 220. Consequently, his mother and stepfather had no authority to consent to a search of the footlocker. Id. However, Pinegar predates Rodriguez ⅛ modification of the standard in determining the validity of consent searches. Missouri cases subsequent to Rodriguez have applied the “reasonableness” test in determining the validity of consent searches. State v. Smith, 966 S.W.2d 1 (Mo.App.1997) (Reasonable to search house upon girlfriend’s consent and assertions that she lived at the address with defendant and had bought house with money from parents; however, not reasonable to pry open defendant’s locked safe located within the house). State v. Moore, 972 S.W.2d 658 (Mo.App.1998) (Reasonable to search “drug” house based upon consent of an individual whom officers had run into “quite often” at the house and was only person at house who responded to their knock).

Viewing the details in a light most favorable to the defendant, we cannot say the officers conducting the search acted unreasonably in believing wife had authority to consent to a search of the shoebox. When the police inquired about the presence of drugs, wife stated the drugs were upstairs in a shoebox in her room by the bed. She led the police into a room containing a double bed and filled with men and women’s clothing and shoes. The shoebox was located in this bedroom which appeared to be shared by her and her husband. The shoebox was sitting at the side of the bed in open view, and wife knew exactly the contents of the shoebox. She pointed at the shoebox and stated she believed the “dope” was in the shoebox. The police’s belief that wife had authority to consent to the search of the shoebox was reasonable.

Defendant argues the State never presented evidence that wife used the shoebox for her own purposes or that she had prior access or control over the shoebox. Moreover, defendant claims the police knew the drugs were not the wife’s property as she was never arrested. However, the State is not required to present evidence that the paraphernalia was the property of wife. The issue is not whether the drugs were hers or her husband’s; the issue is whether the police’s belief that she had authority to consent to a search of the shoebox was reasonable.

It was reasonable for the police to search the shoebox based upon the consent of wife, the ostensible occupier of the bedroom in which the shoebox was located. Consequently, the State met their burdens, and the drugs, personal papers, and scale found in the shoebox should not have been suppressed. The case is reversed and remanded for further proceedings consistent with this opinion.

RICHARD B. TEITELMAN, P.J., concurs.

LAWRENCE E. MOONEY, J„ concurs.


author: ROBERT G. DOWD, Jr., Judge.

text:
    Coy STRANGE, Claimant/Respondent, v. SCI BUSINESS PRODUCTS, Employer/Appellant, and Sentry Insurance Company, Insurer.
    No. ED 76810.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 2, 2000.

      ' Thomas E. Fagan, St. Louis, for appellant.
    Robert G. Kister, Hillsboro, for respondent.
   ROBERT G. DOWD, Jr., Judge.

SCI Business Products (Employer or SCI) appeals from a final award of the Labor and Industrial Relations Commission (Commission) which affirmed the award of the Administrative Law Judge (ALJ) granting Coy Strange’s (Claimant) claim for temporary or partial award. Employer asserts the Commission erred when it (1) acted arbitrarily in not approving the compromise settlement between Claimant and Employer, and (2) awarded compensation because there was no substantial and competent evidence to support the Commission’s finding. We reverse and remand.

, [1] Appellate review of a workers’ compensation claim is governed by Section 287.495, RSMo 1994. We may only review questions of law and we will modify, reverse, remand or set aside an award only where: (1) the Commission acted without or,-in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4).there was not sufficient evidence in the record to warrant the making of the award. Section 287.495.1, RSMo 1994; Conley v. Treasurer of Missouri, 999 S.W.2d 269, 271 (Mo.App. E.D.1999).

The record reveals that Claimant, age 32 at the time of the injury, completed 7th grade. His prior work experience included a job in a scrap yard and various types of security jobs. Claimant worked at SCI as a delivery driver and warehouse man.

On the day of the injury, a Thursday, Claimant hit a deer -with his car on his way to work. Claimant and an unknown man who stopped to help, carried the deer up out of a ditch and put it in Claimant’s trunk. When Claimant got to work, he and a co-worker took the deer out of the trunk of the car and put it behind one of the buildings at work.

Later while at work, Claimant and his co-workers were unloading copy paper from a truck. There was not a loading dock at SCI so the workers would move the paper in the truck to the back of the truck. Then, other workers would use a forklift to lower the paper to ground level. Workers would then push and pull the load to move it into the warehouse. The ground was uneven concrete. The holes in the concrete made the load difficult to move.

After work, Claimant dragged the deer into a wooded area to gut. Claimant then carried the deer back to his car and put it back into the trunk of the car. WTien Claimant arrived home he asked a friend to hang the deer in Claimant’s tree to drain. The next day Claimant and his cousin butchered the deer.

Claimant went to the emergency room the following Tuesday complaining of back pain. Claimant told the doctor the injury occurred the Thursday before while loading paper. Claimant had back surgery two months after the injury.

There was a hearing and the ALJ awarded Claimant a temporary or partial award. Then, Claimant and Employer reached a settlement agreement. The Commission rejected this settlement because a representative of the Second Injury Fund had not signed the settlement agreement. The Commission affirmed the ALJ’s award and granted Claimant’s claim for a temporary or partial award. This appeal follows.

In its first point, Employer argues the Commission erred when it acted arbitrarily in not approving the compromise settlement between Claimant and Employer. The Commission reasoned it could not accept the settlement because the Second Injury Fund was not included in the settlement. Employer argues it was not necessary to include the Second Injury Fund in the settlement agreement.

Where issues involve matters of law, we review independently. Conley, 999 S.W.2d at 271. A settlement agreement must be approved by the ALJ or the Commission to be binding. Section 287.390.1. The Stipulation For Compromise Settlement here was signed by the Claimant and the Employer, but not a representative of the Second Injury Fund. The Commission found the settlement deficient because of this and stated:

Employee and employer/insurer did not include the Second Injury Fund in the proposed settlement. Employee and employer/insurer have failed to provide any explanation for excluding the Second Injury Fund from the proposed settlement. We exercise our discretion to disapprove the proposed settlement between employee and employer/insurer.

Section 287.220.1 provides for a separate liability of the employer and the Second Injury Fund. Grant v. Neal, 381 S.W.2d 838, 842 (Mo.1964). The employer is liable only for the degree or percentage of disability for the last injury had there been no preexisting disability; the Second Injury Fund is liable for the balance of the disability found to exist above that found for the last injury alone. Id. The employer and employee are authorized to compromise and settle the claim under Section 287.390.1. Id. Significantly, the State Treasurer, on behalf of the Second Injury Fund, with the advice and consent of the Attorney General under Section 287.220.2, may also enter into compromise settlements as contemplated by Section 287.390. Id.

We find the Commission’s reasons for denying the settlement are unsupported by the law. We find no statutes or case law requiring the Second Injury Fund to be included in settlement agreements between employers and employees. The employee’s claims against the employer and against the Second Injury Fund are separate proceedings. We reverse and remand to the Commission to approve the settlement unless it is not in accordance with the rights of the parties in this claim, the Claimant and Employer, as set out in Chapter 287. Section 287.390.1. It is unnecessary for us to consider Employer’s second point.

Judgment reversed and remanded.

CRANE, P.J., and SULLIVAN, J., concur.

      . All further statutory references are to RSMo 1994 unless otherwise indicated.

      . We note Respondent has not filed a brief in this case.


author: ROBERT G. ULRICH, Judge.

text:
    Rosetta L. LASLEY, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 57639.
    Missouri Court of Appeals, Western District.
    May 9, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept, of Revenue, Jefferson City, for appellant.
    Jeffrey S. Eastman, Gladstone, for respondent.
    Before LAURA DENVIR STITH, P.J., ULRICH, J. and SMART, J.
   ROBERT G. ULRICH, Judge.

The Director of Revenue appeals from the judgment of the trial court setting aside the suspension of Rosetta Lasley’s driving privileges. The Director argues that he established his prima facie case and, specifically, that he established that Ms. Lasley’s blood alcohol concentration was .10% or greater. The judgment of the trial court is affirmed.

On September 18, 1998, at approximately 10:45 p.m., an officer of the Smithville Police Department stopped Ms. Lasley’s vehicle on 169 Highway for speeding. The officer observed that Ms. Lasley’s eyes were bloodshot, that her speech was confused, and that she had difficulty maintaining her balance and walking. The officer also noticed an odor of alcohol emanating from Ms. Lasley and asked her if she had been drinking. Ms. Lasley admitted that she had had a few drinks. The officer then administered four field sobriety tests, all of which Ms. Lasley failed. Consequently, Ms. Lasley was arrested and transported to the police station. At the station, Ms. Lasley consented to a breath analyzer test. The result of the test showed that Ms. Lasley had a blood alcohol concentration of .206%.

The Director suspended Ms. Lasley’s driving privileges under section 302.505, RSMo Cum.Supp.1997, for driving with a blood alcohol concentration in excess of .10%. The suspension was upheld after an administrative hearing. Ms. Lasley filed a petition for trial de novo in the trial court on January 4, 1999. The case was submitted to the trial court on stipulations, and the Director offered Exhibit 1, which included, among other documents, the breath analyzer test results showing Ms. Lasley’s blood alcohol concentration to be .206%, the maintenance report for the Da-taMaster breath analyzer that tested Ms. Lasley, and the certificate of analysis for the simulator solution used to verify and calibrate the breath analyzer. Ms. Lasley objected to the admission of the test results arguing that the breath analyzer used to test her was not properly maintained. Specifically, Ms. Lasley claimed that the simulator solution had expired on April 21, 1991, as indicated on the maintenance report. The trial court overruled the objection and admitted the documents, subject to argument by the parties regarding the expiration date. The Director explained that although an expiration date of April 21, 1991, was noted on the maintenance report, the certificate of analysis from the manufacturer of the simulator solution indicated an expiration date of April 21, 1999. Ms. Lasley argued to the court that an insufficient foundation was laid to admit the test results without live testimony to explain the discrepancies in the documentation. The trial court agreed and entered its judgment setting aside the suspension of Rosetta Lasley’s driving privileges holding:

the Court specifically finds that the expiration date of the Standard Simulator Solution indicated on the maintenance report to be 4/21/91 and the expiration date indicated on the Standard Simulator Solution Certificate to be 4/21/99 and, therefore, finds the maintenance to be improper in this case; however, all other .issues are found in favor of Director or Revenue.

This appeal by the Director followed.

. [1] In the sole point on appeal, the Director claims that the trial court erred in setting aside the suspension of Ms. Las-ley’s driving privileges because he established his prima facie case. Specifically, the Director argues that he established that Ms. Lasley’s blood alcohol concentration was .10% or greater. The Director contends that after Ms. Lasley’s objection to the admission of the breath analyzer test results, he met his burden of proving that the breath analyzer used to test Ms. Lasley was properly maintained in compliance with the current controlling state regulations and that, therefore, the results, which showed Ms. Lasley’s blood alcohol concentration to be .206%, were admissible.

The decision of the trial court will be affirmed on appeal unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). • At trial, the Director has the burden of establishing by a preponderance of the evidence a prima facie case for suspension of a driver’s license. Endsley v. Director of Revenue, State of Missouri, 6 S.W.3d 153, 158 (Mo.App. W.D.1999). To meet this burden, the Director must present evidence that at the time of the arrest (1) there was probable cause for arresting the driver for driving while under the influence, and (2) the blood alcohol concentration level in the driver’s blood was .10% or greater. §§ 302.505 and 302.530, RSMo Cum.Supp.1997; Endsley, 6 S.W.3d at 158. Once the Director has established a prima facie case, the burden shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Endsley, 6 S.W.3d at 158.

When a timely objection is made to the admission of the blood alcohol analysis, the Director has the burden of proving compliance with the regulations regarding maintenance checks. Lasley v. Director of Revenue, State of Missouri, 954 S.W.2d 327, 331 (Mo. banc 1997); Sellenriek v. Director of Revenue, State of Missouri, 826 S.W.2d 338, 341 (Mo. banc 1992). To establish a proper foundation for admission of breath analyzer test results, the Director must show that (1) the test was performed by following approved techniques and methods of the Division of Health, (2) the operator held a valid permit, and (3) the equipment and devices were approved by the Division. Sellenriek, 826 S.W.2d at 340-341. These foundational requirements are found in 19 CSR 25-30 of the Code of State Regulations. Specifically, a maintenance check of the breath analyzer by a Type II permit holder must be made within 35 days of the blood alcohol test. 19 CSR 25-30.031(3). Nineteen CSR 25-30.031(7) specifies the maintenance report form that must be used for the maintenance check. 19 CSR 25-30.031(7). The only requirement under the current regulations regarding the standard simulator solution that is used in verifying and calibrating the breath analyzer is that the solution be from an approved supplier. 19 CSR 25-30.051; Blechle v. Director of Revenue, State of Missouri, 11 S.W.3d 655, 658 (Mo.App. E.D.1999). A certificate of analysis containing the lot or batch number of the solution, the ethanol concentration in aqueous solution and vapor solution, and the expiration date of the solution is no longer required. Id.

In this case, Ms. Lasley timely objected to the admission of the breath analyzer test results claiming that the breath analyzer was not properly maintained. The Director then had the burden of proving that the machine used in the test had been checked by a Type II permit holder within thirty-five days of the date the test was administered. Lasley, 954 S.W.2d at 331. While the maintenance report indicated that the breath analyzer had been inspected by a Type II permit holder on September 1, 1998, within 35 days of the blood alcohol test and that the simulator solution used to calibrate the machine was from an approved supplier, Guth Laboratories, Inc., the trial court concluded that the Director failed to meet his burden of showing the breath analyzer was properly maintained. Although the court found all other issues in the Director’s favor, it based its decision on a discrepancy between the maintenance report and the certificate of analysis regarding the expiration date of the simulator solution. The officer who inspected the breath analyzer on September 1, 1998, also noted on the report the lot number of the simulator solution, 98010, and the expiration date, April 21, 1991. The supplier’s certificate of analysis for the solution also introduced at trial by the Director showed that the expiration date of the solution was April 21, 1999. Although the expiration date of the simulator solution need no longer be proven to establish the foundation for admission of the test results, the expiration date of the solution may be relevant if the contention is that the breath analyzer falsely reported the percentage of blood alcohol in the person’s blood being tested because the effectiveness of the solution expired and the solution can no longer function properly. The trial court did not accept without additional evidence that the last number of the year reflecting the expiration date of the simulator solution appearing on the supplier’s certificate of analysis, the number “9,” was erroneously copied by the law enforcement officer as a “1” onto the maintenance report. The Director bore the burden of proof and the burden of presenting evidence that the simulator solution was not deficient and, thus, that the breath analyzer did not provide a false reading when the issue of whether the solution’s effectiveness was raised. The Director offered no evidence additional to the documents previously provided. The Director, therefore, failed to show that the breath analyzer used in this case was maintained according to the operational procedures established by the Department of Health.

The judgment of the trial court is, therefore, affirmed.

LAURA DENVIR STITH, P.J. and SMART, J. concur.

      . 19 CSR 25-30.051; Blechle, at 658.


author: KENNETH W. SHRUM, Judge.

text:
    Mary Dean THOMAS, Plaintiff-Respondent, v. Eubert Gayle LLOYD, Jr., Defendant-Appellant, Richard H. Hoffman and Carolyn Hoffman, Defendants.
    No. 22733.
    Missouri Court of Appeals, Southern District, Division One.
    May 16, 2000.

      Brian L. Harvell, St. Louis, for appellant.
    Timothy M. Evans, Cuba, for respondent.
   KENNETH W. SHRUM, Judge.

The disintegration of the romantic and business relationship between Mary Dean Thomas (Plaintiff) and Eubert Gayle Lloyd, Jr., (Defendant) led to this suit. In her petition, Plaintiff asked the court to annul the parties’ purported marriage, impose a constructive trust on real estate, quiet title to real estate, partition real estate, award damages for fraud, order an accounting, enter an order of replevin, and award damages for assault and battery. Via counterclaim, Defendant sought dissolution of a partnership and an accounting, damages based on a fraud theory, damages for malicious prosecution, and damages for assault and battery.

The trial court found that the subject real estate could not be partitioned in kind, ordered the same sold at public auction, and ordered the net sale proceeds to be distributed in the following ratios: Ninety-eight percent to Plaintiff and two percent to Defendant. After it adjudged the parties’ cattle business was a partnership, the court dissolved the partnership, directed that certain partnership assets be sold at public auction, ordered the net sale proceeds to be dispersed in the ratio of sixty-six percent to Plaintiff and thirty-four percent to Defendant, and ordered in-kind division of other partnership personal property. The court denied all other relief sought by the parties , and entered judgment “against them respectively on their prayers.” Defendant appeals. Richard and Carolyn Hoffman were defendants because they held a deed of trust on the real estate that was the subject of the partition count. They have not appealed.

We affirm.

FACTS

Plaintiffs husband of thirty years died in February 1988. In February 1989, Plaintiff met Defendant in Mobile, Alabama, while traveling. Their chance meeting quickly blossomed into a romantic relationship. When Plaintiff returned to her home in Maryland in late February 1989, Defendant accompanied her and they began living together.

Initially, Defendant told Plaintiff he worked for a major oil company, had been outside the country for the past three years, was independently wealthy, and was not married. As Plaintiff later learned, none of these statements was true. In truth, Defendant had recently been released from prison. He had multiple criminal convictions, including convictions for counterfeiting and stealing. Further, Defendant’s assets at the time were no more than $2,000, and he was legally married to Patricia Lloyd.

Evidence as to when Plaintiff learned of Defendant’s deceptions was contradictory. The trial court found that Plaintiff first learned of Defendant’s criminal history and lack of wealth soon after she returned to Maryland in February 1989. It found that Plaintiff discovered Defendant was not single “soon after her void marriage to Defendant.” The parties’ “void marriage” occurred July 10,1989, in Canada.

Except for occasional vacations, Plaintiff and Defendant resided in Plaintiffs home in Maryland from late . February 1989 through October 1990. During that period, Defendant made repairs and renovations to Plaintiffs house. In October 1990, Plaintiff sold her Maryland home in an “owner-finance” arrangement.

The parties then moved to Missouri. After looking at several farm properties, they bought a 600-acre farm in Crawford County, Missouri, for $150,000. The deed was dated March 8, 1991. The grantees named in the deed and the type of tenancy created were as follows: Plaintiff, a single person, and Defendant, a single person, as joint tenants with right of survivorship. The $150,000 purchase price was paid as follows: $100,000 cash downpayment and a $50,000 purchase money note that called for 120 monthly installments of $633.38.

After buying the farm, Plaintiff and Defendant bought cattle and farm machinery, then began operating a cattle business on the property. The parties also made improvements to the farm, including remodeling an old farm house in which they lived. In June 1992, they began construction on a 4,200 square-foot house. Later, the house was expanded to 6,500 square feet. By the time of trial, Plaintiffs expenditures for labor and materials on the home exceeded $201,000.

A progressive deterioration in the parties’ relationship led to the filing of this multiple-count lawsuit in October 1995. After entry of the judgment outlined above, Defendant appealed.

STANDARD OF REVIEW

Our standard of review in this court-tried case is explained in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). The decision of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 32[1], The power to set aside a trial court’s judgment on the ground that it is against the weight of the evidence will be exercised with caution and only when the reviewing court has a firm belief that the decree or judgment is wrong. Searcy v. Seedorff, 8 S.W.3d 113, 116[2] (Mo.banc 1999). “In reviewing a contention that the evidence is insufficient, the evidence is viewed in the fight most favorable to the verdict, and deference is accorded to the trial court’s assessment of credibility.” Id. at 116[3].

DISCUSSION AND DECISION

Point VII: Failure to Include Real Estate as Partnership Asset

We first consider Defendant’s seventh point relied on, in which Defendant charges the trial court with reversible error for not classifying the farm real estate as a partnership asset. Defendant claims he was prejudiced by such error because if the farm was properly classified as partnership property, any proceeds (after proper offsets) from a sale thereof would be divided in accordance with the partners’ interests. He insists that exclusion of the real estate from the partnership assets is “clearly not supported by the evidence.” We disagree.

“The true method of determining whether, as between partners themselves, land standing in the names of individuals is to be treated as partnership property is to ascertain from the conduct of the parties and their course of dealing, the understanding and intention of the partners themselves, which, when ascertained, unquestionably should control.” State Auto. and Cas. v. Johnson, 766 S.W.2d 113, 122[5] (Mo.App.1989); Hudson v. French, 211 Mo.App. 175, 241 S.W. 443, 446[5] (1922). Whether real estate titled in the names of individual partners is partnership property is a question of fact and the burden of proof is on the one alleging that the ownership does not accord with the legal title. 68 C.J.S. Partnership § 75, at 277 (1998).

In attempting to demonstrate that the parties intended for the real estate to be a partnership asset, Defendant points to the joint ownership of the farm and the fact that the parties operated the partnership cattle business on the farm as evidence that the two understood and intended for the farm to be a partnership asset. His reliance on those facts is misplaced, however. A joint purchase of real estate by two individuals does not, in and of itself, prove the land is a partnership asset. See Hudson, 241 S.W. at 446; 68 C.J.S. Partnership § 73, at 274-75 (1998). On the contrary, when land is conveyed to partnership members without any statement in the deed that the grantees hold the land as property of the firm, there is a presumption that title is in the individual grantees. 68 C.J.S. Partnership § 75, at 277 (1998). Moreover, “[e]vidence that the land is used by the firm is of itself insufficient to rebut the presumption.” Id. The mere use of land by a partnership does little to show the land is owned by the partnership. 1 Bromberg and Ribstein on Partnership, § 3.02(b), at 3:7 (Release No. 7 — 1999-2 Supp.). Standing alone, evidence of partnership usage does not compel a finding that the land is a partnership asset. Mischke v. Mischke, 247 Neb. 752, 530 N.W.2d 235, 240 (1995); In re Estate of Schreiber, 227 N.W.2d 917, 925[9] (Wis. Sup.1975). See Shawneetown Feed and Seed Co. v. Ford, 468 S.W.2d 54, 56 (Mo.App.1971).

Defendant points to evidence that some real estate taxes and promissory note payments for the farm came from partnership funds. He argues such evidence indicates the parties intended the farm to be a partnership asset. We agree that such evidence is a factor to be considered, but it is not determinative of the issue, especially, when, as here, the partnership payment evidence is viewed in context. For instance, none of the $100,000 downpayment for the farm came from partnership funds. Instead, it all came from Plaintiffs separate funds. Plaintiff was never reimbursed by either the partnership or Defendant for her downpayment. Of eighty-four monthly farm note payments, only three were paid from the parties’ joint account. Seventy-seven of the monthly farm note payments, a total of $48,770.26, were paid from Plaintiffs separate funds. Plaintiff also spent $201,927.87 of her separate money to build a new house on the farm. None of the house construction costs came from partnership funds. Of the seven years’ worth of state and county real estate taxes that had been paid on the farm property, only one year was paid out of partnership funds. On the whole, the evidence is that Plaintiff invested over $350,-000 of her own funds in this farm while less than $2,400 of partnership funds were used to pay the farm note and real estate taxes. Such minimal partnership expenditures is more indicative of the tendency of people — particularly in family or quasi-family businesses — to intermingle personal and partnership affairs, than it is an indication of the parties’ intent to include the farm as a partnership asset. See 1 BROM-berg and Ribstein on PartneRship, § 3.02(b), at 3:6 (Release No. 7 — 1999-2 Supp.).

■ Other evidence from which the parties’ intent can be gleaned includes the following: (A) Plaintiff and Defendant signed as individuals on the $50,000 purchase money note and deed of trust securing the same, without a recital of partnership status; (B) neither party filed a partnership income tax return; (C) Plaintiff filed income tax returns as an individual; (D) Defendant never filed an income tax return after the farm was purchased; (E) Plaintiff wrote checks on her individual account for materials and labor for farm improvements; and (F) Plaintiff repeatedly testified she never intended nor agreed to a partnership with Defendant. We find these circumstances sufficient to support the implicit finding and judgment of the trial court that a partnership agreement did not exist regarding the land and it was not a partnership asset. The trial court did not commit reversible error when it faded to include the farm as a partnership asset. Point VII is denied.

Point III: Failure to Give Credit to Defendant for Improving Farm

Defendant’s third point urges reversal because the trial court ordered the farm sold pursuant to Plaintiffs request for partition without giving Defendant credit for his “contributions of time and labor expended on improvements to” said real estate. In support, Defendant cites, inter alia, this excerpt from Hartog v. Siegler, 615 S.W.2d 632 (Mo.App.1981).

“[W]e undertake our review of this decree by taking cognizance of the rule of law that a tenant in common’s right to contribution from his co-tenant may extend to payments made for repair and improvements, taxes and other expenses, depending upon the nature and circumstances of the particular expenditures. Upon partition, advances for repairs made in good faith for the substantial benefit of all co-tenants, may be allowed. Decisions of Missouri Appellate Courts hold that a co-tenant in possession may be compensated in equity for improvements to co-tenancy property where he has a good faith belief that he has full title to the property ... or where the other co-tenants expressly or impliedly consent to the improvements.”

Id. at 636 (citations omitted).

Defendant points to his testimony that his time, labor, and services for the period 1991 through 1994 were worth at least $35,000 per year. Based on that evidence and the principles set out in Hartog, Defendant argues the court was required, as a matter of law, to consider his “in-kind” contribution of $140,000 along with his other capital contributions in determining his interest in the real estate. Defendant asserts that “[b]y failing to calculate the party’s [sic] relative interests appropriately, the trial court’s judgment is not supported by the facts and misapplies the law.” Defendant’s argument fails, however, because of an evidentiary deficiency.

Defendant presented evidence about the value of his time and labor contribution on an “all or nothing basis;” that is, he valued his time and labor at $35,000 per year for his collective efforts (including buying cattle, caring for and managing the cattle herd, doing routine maintenance on the farm, and improving the farm through construction projects). However, Defendant’s claim for time and labor contributions in buying and managing the cattle herd are not chargeable as liens against the real estate or against the funds received from its sale. See Richardson v. Kuhlmyer, 250 S.W.2d 355, 360[4] (Mo.1952). This follows because we have al ready rejected Defendant’s claim that the. farm real estate was a partnership asset. Consequently, Defendant’s claim .for time and labor expended on the cattle operation is not connected with the common property, i.e., it is not a claim for effort expended to preserve or improve the farm. Id. at 360. Although a trial court is accorded wide latitude in adjusting equities and claims among parties to a partition suit, “[t]he equities to be adjusted ... must of necessity be those which have arisen from or are in some way connected with the real estate to be partitioned; they must be claims relating to the common property.” Id. at 360[5]; Grunden v. Nelson, 793 S.W.2d 569, 574[4] (Mo.App.1990).

Defendant adduced no separate evidence on the value of his time and labor contribution to the common property, i.e., the farm real estate. Because Defendant’s only evidence regarding value included sums for labor unrelated to real estate, it lacked the requisite foundational basis from which the court could separately evaluate his claims relating to that property. See State v. Vorhof-Duenke Co., 366 S.W.2d 329, 340 (Mo.banc 1963). Since Defendant did not meet his evidentiary burden on this issue, the trial court did not commit reversible error when it failed to credit Defendant for his time and labor in improving the farm.

Point III is denied.

Point I: Equal Land Division via Gift or Equitable Estoppel

Where an appellate court is asked to review the decision of a trial court, procedural rules require that an appellant’s brief contain points relied on. Rule 84.04(a)(4). Each point relied on “shall ... identify the trial court ruling or action that the appellant challenges!.]” Rule 84.04(d)(1)(A). See In re Mamage of DuBois, 875 S.W.2d 223, 226[1] (Mo.App.1994). In his first point, Defendant describes the ruling that he challenges as follows:

“WHETHER THE TRIAL COURT ERRED IN ENTERING ITS FINDING AND JUDGMENT THAT [DEFENDANT’S] CONTRIBUTION OF LABOR TOWARD IMPROVEMENTS TO CERTAIN REAL ESTATE IN' CRAWFORD COUNTY WERE PROVIDED AS A GIFT IN THE CONTEXT OF A QUASI-MARITAL RELATIONSHIP, ■ BUT NOT DIVIDING SAID REAL ESTATE, WITH IMPROVEMENTS, IN THE SAME CONTEXT, BECAUSE THE JUDGMENT IS AGAINST THE WEIGHT OF THE EVIDENCE AND MISAPPLIED THE LAW, IN THAT [DEFENDANT] AND [PLAINTIFF] HELD THEMSELVES OUT TO BE HUSBAND AND WIFE AND ACCUMULATED PROPERTY JOINTLY TITLED WITH RIGHT OF SURVIVORSHIP, AS SINGLE PEOPLE, EVIDENCING DONATIVE INTENT WITHIN SAID SPECIAL RELATIONSHIP, AND THUS THE COURT SHOULD HAVE ESTOPPED [PLAINTIFF] FROM CLAIMING A GREATER INTEREST IN SAID REAL ESTATE THAN [DEFENDANT].” (Emphasis added.)

Defendant’s point and his argument in support mischaracterize the record. The trial court did not make the finding italicized above, and such a finding does not inexorably follow from any fact findings that were made. Nor does such conclusion or finding follow as an inevitable consequence of the court’s’ failure to credit Defendant for time and labor he spent improving the farm.

By mischaraeterizing the trial court’s findings, Defendant is essentially asking us to convict the trial court of an error it did not commit. This we will not do. See Greene County v. Pennel, 992 S.W.2d 258, 261 (Mo.App.1999). In reviewing a court-tried case, “the trial court judgment is presumed valid,” and the burden is on the appellant to show the incorrectness of the judgment. Delaney v. Gibson, 639 S.W.2d 601, 604[4] (Mo.banc 1982). Defendant does not carry this burden by mischaracterizing the trial court’s findings and relying on such mischaracteri-zations as a basis for arguing reversible error.

Defendant’s first point also urges reversal on theories never presented to the trial court. First, Defendant argues the trial court should have divided the real estate as if it were marital property. In support, Defendant asserts the trial court should have applied equitable estoppel principles to preclude Plaintiff from escaping the consequences of holding herself out as a married person. However, neither party pled nor advanced equitable estoppel as a theory at trial. Second, Defendant argues the trial court should have divided the real estate equally because Plaintiff gifted an interest therein to him. However, Defendant neither pled inter vivos gift as a theory of recovery nor advanced that theory at trial. Defendant pled and proceeded at trial on the theory the parties formed a partnership and all assets (including the farm) belonged to the partnership. Appellate courts will not, on review, convict a trial court of error on issues that were not put before it to decide. State ex rel. Mayberry v. City of Rolla, 970 S.W.2d 901, 908[5] (Mo.App.1998). Issues raised for the first time on appeal are not preserved for review. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 462[8] (Mo. banc 1998).

Point I is denied.

Point II: Defendant’s Alleged Contribution to Farm, Purchase Price

Defendant’s second point claims reversible error resulted from the trial court’s finding Defendant contributed nothing toward the purchase price of the farm. Specifically, Defendant claims he “transferred $25,000 of his separate capital to [Plaintiff] in anticipation of the purchase of said real estate[,]” and by failing to account for his contribution, the court misapplied the law and rendered a judgment unsupported by evidence.

In a partition suit involving the division of real estate titled in the names of persons living in a meretricious relationship, the division is ordinarily based on the respective contributions of each grantee to the purchase price and improvements. Anderson v. Stacker, 317 S.W.2d 417, 421[3] (Mo.Sup.1958); Bass v. Rounds, 811 S.W.2d 775, 780[14] (Mo.App.1991). The parties agree this is a correct statement of the law, but differ about the applicable facts.

In his counterclaim, Defendant conceded Plaintiff paid the $100,000 downpayment on the farm, and the remainder of the purchase price of $50,000 was paid via a purchase money note given to the sellers. Regarding the source of the downpayment, Plaintiff testified she raised all of it by selling mutual funds and tax-free funds from her separate property. These securities were sold in January 1991. Plaintiff produced documents to support her testimony. These included (a) checks received from the sale of her individually-owned mutual funds, (b) a statement from the mutual fund company verifying the sale, (c) statements from her credit union account where she deposited the proceeds from the sale of mutual funds, and (d) a receipt from the law firm that handled the farm real estate closing showing Plaintiff had paid the $100,000 downpayment.

Evidence relating to Defendant’s claim that he made a $25,000 contribution to the farm purchase price included the following: In August and October of 1989, Plaintiff transferred $25,000 to Defendant while the parties lived in Plaintiffs Maryland home. Defendant put the money in his separate single-name account. He characterized this as a $25,000 gift, stating they never “discussed” he would have to pay it back. Plaintiff testified otherwise by asserting she merely loaned the $25,000 to Defendant and always expected repayment. The $25,000 was returned to Plaintiff in October 1990 because she needed it to “close” the sale on her Maryland house. Plaintiff testified Defendant’s return of the money was merely repaying “what he owed me.” Defendant testified differently, stating: “I told her ... I’d give it back — it could go toward whatever place we bought in the future.” Defendant also testified that as they talked about the $25,000, Plaintiff said: “[W]ell, if we go to Missouri and buy a place out there, you can consider that as part of the down payment.”

Issues such as credibility of witnesses, weight of evidence, and resolution of conflicts in testimony are for the trial court to resolve and are not matters that appellate courts can review. Choate v. Natvig, 952 S.W.2d 730[15] (Mo.App.1997). A trial court is free to believe none, part, or all of a witness’s testimony. Dukes v. Dukes, 859 S.W.2d 264[4] (Mo.App.1993). A trial court may disbelieve testimony even when it is uncontradicted. Matter of T.A.P., 953 S.W.2d 638, 642[8] (Mo.App.1997). A reviewing court’s deference to a trial court’s resolution of credibility is not limited to the issue of witness credibility, but also to conclusions of the trial court. Kitchens v. Missouri Pacific R.R. Co., 737 S.W.2d 219, 222 (Mo.App.1987). The trial court obviously believed Plaintiff and disbelieved Defendant regarding the $25,000 contribution claim. That was its prerogative. When we take as true all the evidence in this record favorable to the trial court’s finding, there is sufficient evidence to support the trial court’s implicit finding Defendant did not contribute $25,000 to the purchase price of the farm. Point II is denied.

Point V: Alleged Error in Ordering Sale of Land

Defendant’s fifth point urges reversal of that part of the judgment which ordered the real estate sold. Defendant asserts the trial court erred by ordering the farm sold without an explicit finding that partition in kind cannot be made without great prejudice to the owners.

A trial court may order a sale in partition without appointing commissioners where partition in kind cannot be made without great prejudice to the parties in interest. Heald v. Erganian, 377 S.W.2d 431, 443[12] (Mo.1964). See § 528.030; Rule 96.11. “In partition, division in kind is favored unless it would result in great prejudice to the owners.” Von Behren v. Oberg, 902 S.W.2d 338, 340[1] (Mo.App.1995).

Defendant correctly notes the trial court ordered the land sold without expressly making a finding the parties would be “greatly prejudiced.” However, judgments are to be construed with reference to the record as a whole, including the pleadings. Tracy v. Tracy, 961 S.W.2d 855, 865[23] (Mo.App.1998); Margolin v. Margolin, 796 S.W.2d 38, 47[9] (Mo.App.1990); Massey v. Massey, 594 S.W.2d 296, 298 (Mo.App.1979). Here, Plaintiffs second amended petition asked the trial court “to find that partition in kind of said real estate, cannot be made without great prejudice to the owners [and] ... order said real estate sold.” In its findings, the trial court concluded “[t]he real estate ... is not capable of dividing fairly” and “because the real estate ... is not capable of division in accordance with the contributions of the parties ... it should be sold in accordance with Plaintiffs claim in partition.” (Emphasis supplied.) This is an obvious reference and response by the court to Plaintiffs pleading request to sell the land because partition in kind would greatly prejudice both parties. When read in context the judgment contains a sufficient, albeit implicit, finding of “great prejudice.” See Sears v. Norman, 543 S.W.2d 300, 304 (Mo.App.1976) (holding a judgment without legal description was nevertheless sufficient as it did recite that judgment was granted “in accordance with the prayer of the petition” which did describe the claimed alleyway). We reject Defendant’s argument to the contrary.

In this point, Defendant makes the additional claim that the judgment is against the weight of the evidence because the court “failed to set forth a sufficient basis for its conclusion that [the real estate] is not capable of division.” Even charitably read as a claim that insufficient evidence exists to order the land sold, the argument made in support thereof is strikingly sparse. The only mention of a “sufficiency of evidence” issue in the argument part of the brief is the following:

“There is no mention that an in-kind partition would greatly prejudice the owners, nor any basis in fact for making such a finding. In fact, [Plaintiffs] own testimony acknowledges that partition in kind might be possible.”

“An appellant must develop the contention raised in the point relied on in the argument section of the brief.” Luft v. Schoenhoff, 935 S.W.2d 685, 687[5] (Mo.App.1996). “Arguments raised in the point relied on which are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review.” Id. at 687[4]. This court does not view the excerpt above as sufficient “development” of or “support” for the contention that the evidence was insufficient to support a finding of “great prejudice” if division in kind was ordered. We, therefore, deem that issue abandoned. Point VII is denied.

Point VI: Alleged Failure to Undertake “Proper Accounting”

In Point VI, Defendant asserts the trial court misapplied the law and that its judgment was “against the weight of the evidence” because the court “apparently attempted to account for the relative partnership interests without the benefit of a second trial.” Defendant contends once the trial court found the cattle business partnership existed, what must inexorably follow is he is entitled to an “accounting” per § 858.220, RSMo 1994. He argues, however, his request for an accounting should have been tried in two stages, i.e., first, a trial to determine whether an accounting was required and, second, a trial at which the accounting would be conducted. As authority for this notion, Defendant cites McCord v. Sisco, 897 S.W.2d 194, 197 (Mo.App.1995) (holding that an accounting suit is tried in two stages).

The use of a two-stage trial in an “accounting” lawsuit is “a rule of practice developed by the courts to spare a defendant the trouble and expense of preparing unnecessarily for and then trying an accounting which may or may not be ordered.” State ex rel. Rowlett v. Wilson, 574 S.W.2d 376, 378 (Mo.banc 1978). See Larson v. Crescent Planing Mill Co., 218 S.W.2d 814, 822 (Mo.App.1949).

To state the purpose for the rule explains its inapplicability here. Defendant is the one who alleged the existence of a partnership and sought an accounting from Plaintiff. Consequently, Plaintiff is the one entitled to the protection afforded by this “rule of practice.” However, Plaintiff has not complained—either at trial or on appeal—about the trouble and expense of preparing for an accounting before her liability to account had first been judicially established.

Moreover, the trial court’s action was consistent with the position taken by Defendant at trial. Defendant presented evidence regarding his claim for an accounting and then urged the court to decide all issues in the case. For instance, during closing remarks, Defendant’s lawyer recommended to the court it “not grant the constructive trust [as urged by Plaintiff], that it divide the assets, ... and grant relief as pled in our counter-claim and submitted to the Court.” (Emphasis added.)

Whatever the merits of Defendant’s argument concerning a bifurcated trial, the procedure followed here was that urged by Defendant. A party cannot complain on appeal about an alleged error created by his or her own conduct or in which such party joined or acquiesced at trial. In re Marriage of Gardner, 973 S.W.2d 116, 126[8] (Mo.App.1998); In Interest of R.M.M., 902 S.W.2d 355, 358[4] (Mo.App.1995). Point VI is denied.

Points IV: Unpreserved Claim of Trial Court Error

Each point relied on in an appellant’s brief shall “(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (c) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Rule 84.04(d)(1). “The requirements of Rule 84.04(d) are mandatory.” Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 217[7] (Mo.App.1999).

Defendant’s fourth point states:

“WHETHER THE TRIAL COURT ERRED IN ENTERING ITS FINDING AND JUDGMENT DETERMINING, VALUING, AND ACCOUNTING OF [DEFENDANT’S] INTEREST IN [THE SUBJECT FARM] BECAUSE SAID FINDING AND JUDGMENT IS AGAINST THE WEIGHT OF THE EVIDENCE AND MISSTATES AND MISAPPLIES THE LAW, IN THAT THE COURT FAILED TO PROPERLY APPORTION [DEFENDANT’S] INTEREST IN SAID REAL ESTATE TITLED JOINTLY, WITH RIGHT OF SURVIVORSHIP, AS SINGLE PEOPLE.”

This point does not comply with Rule 84.04(d)(1)(C), i.e., it does not “explain why the legal reasons, in the context of the case, support the claim of reversible error.” As framed, the point is little more than an abstract statement of law, and “[a]bstract statements of law, standing alone, do not comply with this rule.” Rule 84.04(d)(4). See Carroll, 6 S.W.3d at 218. Additionally, framing a point in terms of “whether” an action is error is not a proper briefing practice. Chancellor Development Co. v. Brand, 896 S.W.2d 672, 674[2] (Mo.App.1995).

With exceptions not relevant here, “failure to substantially comply with Rule 84.04 preserves nothing for appellate review.” Libberton v. Phillips, 995 S.W.2d 66, 67[4] (Mo.App.1999). Alegations of error not properly briefed “shall not be considered in any civil appeal.” Rule 84.13(a).

Under the circumstances, we are left to look at the argument part of the brief to determine if there was plain error which would permit relief under Rule 84.13(c). Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 339 (Mo.App.1991). Here, we find no manifest injustice or miscarriage of justice has occurred. Defendant’s argument under this point is based on claims earlier rejected, i.e., his alleged $140,000 contribution in the form of his labor and his purported $25,000 contribution to the purchase price. Accordingly, relief under the plain error doctrine is not an option under Defendant’s fourth point.

Point VIII: Unpreserved Claim of Error

We reproduce Defendant’s eighth point as follows:

“WHETHER THE TRIAL COURT ERRED IN ENTERING ITS FINDING AND JUDGMENT REGARDING [DEFENDANT’S] CAPITAL CONTRIBUTIONS TO THE PARTNERSHIP, BECAUSE THE FINDING AND JUDGMENT IS AGAINST THE WEIGHT OF THE EVIDENCE, IN THAT [DEFENDANT] DEPOSITED SEPARATE FUNDS INTO THE PARTNERSHIP ACCOUNT FOR THE BENEFIT OF THE CATTLE OPERATION AND [PLAINTIFF] AS COPARTNER, BUT WAS NOT ATTRIBUTED THE CREDIT IN THE TRIAL COURT’S DETERMINATION OF THE PARTY’S [sic] RELATIVE INTERESTS IN THE PARTNERSHIP.”

Defendant’s entire argument on this point reads:

“[Plaintiff] paid $38,000.00 of her separate money to [Defendant], for “ranch management” services he rendered on a full time basis, which he deposited into the partnership account for the benefit of the cattle operation. The trial court determined and fixed the parties’ relative interests in the partnership assets based on their respective capital outlays, and traced [Plaintiffs] expenditures, but failed to attribute [Defendant] with his capital outlay of $38,000.00.” (Citations to the record omitted.)

Contrary to Defendant’s assertion, the trial court did not fail to credit him with his capital outlay of $38,000. The court specifically found “Plaintiff paid ... Defendant $38,000 ... for ranch management and Defendant deposited those funds into the joint ranch account.” Also, the court found “Defendant provided the partnership his ‘farm management’ wages and labor.” At the same time, however, the trial court found “Plaintiff provided the majority of the cash capital for the partnership account” and “the appropriate ratio, for return on investment is ... 66% for Plaintiff and 34% for Defendant.”

Other than mischaracterizing the court’s findings, Defendant advances no argument as to how the trial court erred in finding that “66% for Plaintiff and 34% for Defendant” was the “appropriate ratio for return on investment.” Once more, Defendant has mischaracterized the trial court’s findings and reasoning in an apparent effort to have us convict the trial court of an error it did not commit. As noted earlier, this we will not do. See Fennel, 992 S.W.2d at 261. The trial court’s judgment is presumed valid, and Defendant bears the burden of demonstrating the judgment is incorrect. See Delaney, 639 S.W.2d at 604[4]. As stated above, Defendant does not meet this burden by mischaracterizing the trial court’s findings and relying on such mischaracterizations as a basis for a finding of reversible error.

Furthermore, we note Defendant’s failure to develop any argument other than that based on mischaracterizations of the court’s findings suggests the trial court was correct in its analysis. TriState Motor Transit Co. v. Holt, 921 S.W.2d 652, 656 (Mo.App.1996) Any attempt by this court to analyze the record to see if the trial court correctly apportioned the partnership capital investment would be inappropriate. Id. This court should not and will not become an advocate for Defendant by looking for a reason to challenge the trial court’s findings. Id. at 656[6]. Nor does Plaintiff have the burden on appeal to establish the correctness of the judgment. Id. at 656[7].

Even if Defendant’s point and argument are liberally read as presenting the partnership capital contribution issue, Defendant does not cite case authority to support such argument nor does he explain its absence. A point of error left unsupported by citation of relevant authority need not be considered. Tindall v. Holder, 892 S.W.2d 314, 327[29] (Mo.App.1994). Point VIII is denied.

The judgment of the trial court is affirmed.

CROW, P.J., concurs.

PARRISH, J., concurs.

      . The following is a summary of the trial court findings that form the basis for what Defendant, in Point I, casts as a trial court finding:
      (1) Defendant’s work on Plaintiffs Maryland home was a gift from Defendant to Plaintiff as evidenced by his testimony he neither asked for nor expected pay for that work;
      il) Plaintiff and Defendant had no written contract for payment of his services as general contractor for the Crawford county farm home, "other than the joint tenancy of the real estate!;]” and
      (3) Defendant did not plead a claim in quantum meruit regarding the farm real estate, "but rather fraudulent inducement to enter into a partnership, which the Court finds no fraud.”

      . To sell her Maryland home, Plaintiff agreed to "owner-finance" part of the purchase price. Accordingly, she had to satisfy her home loan in order to conclude the sale.


text:
    Robert Glen COE, Respondent, v. STATE of Tennessee, Movant.
    Supreme Court of Tennessee, at Jackson.
    Dec. 15, 1999.
    Michael E. Moore, Solicitor Gen., Glenn R. Pruden, Asst. Atty. Gen., Nashville, for State.
    James H. Walker, Nashville, for Robert Glen Coe.
   ORDER

This cause came on to be heard upon the motion of the State of Tennessee requesting that an execution date be set in the above-styled case.

On December 9, 1999, the respondent, Robert Glen Coe, filed a “Response to Motion to Set Execution Date,” in which he alleged that the State’s motion should be denied because he is presently pursuing remedies in the federal and state courts. In the response, the respondent attempted to reserve the right to raise the issue of his competency to be executed until a later time. On Friday, December 10, 1999, this Court entered an order directing the respondent to supplement his response to the state’s motion on the issue of his present competency by Monday, December 13, 1999, 4:30 p.m. C.S.T., or the issue would be waived.

In accordance with this Court’s order, the respondent has filed a “Motion to Reconsider December 10, 1999 Order Requiring Supplemental Response and/or Supplemental Response to Motion to Set Execution Date.” Respondent again alleges that, because he has claims pending before the state and federal courts, any claim of present incompetency under this Court’s decision is not ripe under Van Tran v. State, 6 S.W.3d 257 (Tenn.1999), and the State’s Motion to Set Execution Date should be denied. In the alternative, the respondent alleges that the motion to set execution date should be denied because he is mentally ill and has a long history of mental illness. The respondent also alleges that, faced with an imminent execution date, his mental stability will deteriorate so that he will become incompetent to be executed. Finally, the respondent requests, that if the issue of present competency to be executed is litigated, this Court appoint James Holt Walker to represent him in any future state court proceedings regarding the claim of present incompetency and that the Court provide the respondent sufficient funding and time to secure expert services in order to establish the required threshold showing of present incompetency under Van Tran.

Upon due consideration, the respondent’s Motion to Reconsider this Court’s December 10, 1999, Order Requiring Supplemental Response is DENIED. While it appears to the Court that respondent has proceedings currently pending in both state and federal court, as of this date he has pursued at least one unsuccessful challenge to his conviction and sentence through direct appeal, state post-conviction and federal habeas corpus proceedings. Coe has thus exhausted the standard three-tier appeals process when the United States Supreme Court rejected his petition to rehear on November 29, 1999. This satisfies the ripeness and imminency requirements of Van Tran and triggers the duty of the prisoner to raise a challenge to his present competency to be executed.

It further appearing to the Court that the respondent has raised the issue of his present competency to be executed in accord with the procedures adopted by this Court in Van Tran v. State, it is hereby ORDERED, ADJUDGED and DECREED that the issue is remanded to Division III of the Criminal Court of Shelby County, where the respondent was originally tried and sentenced, for an expeditious determination of respondent’s present competency, including the initial determination of whether the respondent has met the required threshold showing. These proceedings shall be conducted in accord with the procedures and time limits set forth in Van Tran v. State, which provides no more than fifty-five (55) calendar days for the conclusion of the trial court proceedings and the filing of an appeal in this Court.

It further appearing to the Court that the Federal Public Defender, who has previously represented the respondent, cannot engage in extended litigation in state court and that Supreme Court Rule 13, § 3(b) requires that at least two attorneys must be appointed to represent a defendant in a capital case, the Court hereby appoints the Public Defender’s Office for the 30th Judicial District and James Holt Walker, 601 Woodland Street, Nashville, Tennessee 37206, to represent the respondent in the competency proceedings in this case. The Public Defender’s Office and James Holt Walker shall act as co-counsel.

Furthermore, the respondent’s request for funding to secure expert services to establish the required threshold showing of present incompetency under Van Tran is more appropriately considered by the trial court. This Court, therefore, remands the issue of funding to secure expert services to the trial court for its consideration and determination. The respondent’s request for “time to secure expert assistance” is hereby DENIED. However, because of the appointment of new counsel, the respondent is given until Wednesday, December 29, 1999, to file his petition in the trial court. The time limits set out in Van Tran shall be strictly followed in all other respects.

Furthermore, after due consideration, the State’s motion to set an execution date is GRANTED. It is hereby ORDERED, ADJUDGED and DECREED by this Court that the Warden of the Riverbend Maximum Security Institution, or his des-ignee, shall execute the sentence of death as provided by law on the 23rd day of March, 2000, unless otherwise ordered by this Court or other appropriate authority. Counsel for Robert Glen Coe shall provide a copy of any order staying execution of this order to the Office of the Clerk of the Appellate Court in Nashville. The Clerk shall expeditiously furnish a copy of any order of stay to the Warden of the River-bend Maximum Security Institution.

FOR THE COURT:

/s/ Riley Anderson Riley Anderson, Chief Justice.

      . In computing the time periods set out in Van Tran v. State, the day' of the event, i.e. entry of the Order of Remand, filing of the petition, or response to the petition, is not to be included in the computation. Moreover, if the last day of the period for filing is a Saturday, a Sunday, a legal holiday, or a day when the clerk’s office for filing is closed, the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday, or. a day when the clerk’s office is closed for filing. Cf. Tenn. R. Civ. P. 6.01; Term. R.App. 21(a). In all other circumstances, Saturdays, Sundays, legal holidays, and days when the clerk’s office is closed for filing are included in the computation of the time periods set forth in Van Tran v. State.