text:
    STATE of Missouri, Plaintiff/Respondent, v. Debra REYNOLDS, Defendant/Appellant.
    No. ED 84178.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 19, 2005.
    Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.
    Jessica Hathaway, Assistant Public Defender, St. Louis, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   PER CURIAM.

Defendant, Debra Reynolds, appeals from a judgment entered on a jury verdict finding her guilty of one count of possession of a controlled substance, in violation of section 195.202 RSMo (2000). The trial court found defendant to be a prior and persistent offender and sentenced her to seven years imprisonment to be served concurrently with another sentence. On appeal, defendant contends that the trial court plainly erred in submitting the verdict director on possession, erred in denying her motions for acquittal for insufficiency of the evidence that defendant’s possession was voluntary and intentional, plainly erred in failing to declare a mistrial sua sponte after the prosecutor made allegedly improper remarks about defense counsel, and plainly erred in finding that defendant was a prior and persistent offender.

We deny the claims made in points one, two, and three and affirm that part of the judgment constituting the conviction pursuant to Rule 30.25(b). No jurisdictional purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

This leaves defendant’s fourth point. Defendant contends that the trial court plainly erred in finding that she was a persistent felony offender because, the state did not prove beyond a reasonable doubt that defendant was convicted of two prior felonies occurring at different times as required by section 558.016.3. Section 558.016.3 provides:

3. A “persistent offender” is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.

The information charged that defendant was a persistent felony offender because she had pleaded guilty to three prior felonies.

The trial court conducted a separate hearing out of the jury’s presence on whether defendant was a prior and persistent offender. A circuit court clerk for the Twenty-Second Circuit testified that the court files showed that defendant pleaded guilty to stealing over $150, a class C felony, in Cause No. 881-856, in 1988, and to stealing over $150 by deceit, a class D felony, in Cause No. 881-976 on February 10, 1989. On cross-examination, defense counsel confirmed only that defendant received a suspended imposition of sentence on both charges. Without objection, the trial court found that defendant was a prior offender and that she also was a persistent offender in that she had pleaded guilty to two or more felonies committed at different times. The clerk’s files were not marked as exhibits or offered into evidence.

Defendant argues that the state did not prove that she was a persistent offender beyond a reasonable doubt because it did not present sufficient evidence that the two felonies occurred at different times. The state concedes that the transcript does not support a finding that defendant committed these felonies on different occasions.

Although the state argues that defendant was not prejudiced by the finding because her sentence was within the same range as for a prior offender, we have held that improper sentencing as a persistent offender results in a-manifest injustice that may be reviewed for plain error. State v. Dixon, 24 S.W.3d 247, 250 (Mo.App.2000).

At trial, the state adduced some evidence of defendant’s persistent offender status, and the trial court found it sufficient without any challenge or objection by defendant. Had defendant challenged the evidence at trial, a record could have been made showing whether or not the files of defendant’s previous convictions showed whether the crimes had been committed at different times. Accordingly, we vacate the sentence and remand to the trial court for a new evidentiary hearing on defendant’s persistent offender status. State v. Johnson, 150 S.W.3d 132, 139 (Mo.App.2004). After the hearing, the trial court should make a finding on whether defendant is or is not a persistent offender and resentence defendant accordingly.

      . Defendant did not object at trial to the insufficiency of the proof of her persistent offender status and she did raise this issue in her motion for new trial. She therefore did not preserve this issue for appeal. Compare State v. Coomer, 888 S.W.2d 356, 358 (Mo.App.1994). We may review only for plain error pursuant to Rule 30.20.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert BELL, Appellant.
    No. ED 84551.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Robert Bell (“Appellant”) appeals the trial court judgment finding him guilty of murder in the first degree in the strangulation death of Ms. Reba Cannon. The court sentenced him to life imprisonment without the possibility of probation or parole. Appellant claims that the trial court erred in overruling his request for a mistrial when evidence was introduced which showed Appellant’s propensity to commit crimes against women. Appellant also maintains that the trial court plainly erred in allowing the State to question a detective regarding the fact that Appellant was in custody when he was located for questioning in the death of Ms. Cannon.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for them information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Michael Earl RUCKER, Appellant.
    No. ED 84508.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Michael “Little Earl” Rucker (“defendant”) appeals from the judgment entered after a jury convicted him of one count of statutory rape in the first degree and two counts of statutory sodomy in the first degree. Defendant contends that the trial court erred in denying his motions, for acquittal in that there was insufficient evidence to convict him. Defendant also asserts that the trial court erred in refusing to submit his proposed instruction on the lesser included offense of child molestation in the first degree. Defendant further argues that the trial court erred in accepting a verdict of guilty on Count II, statutory sodomy in the first degree after the jury had returned an inconsistent verdict on that count indicating not guilty on Count II, but guilty of attempted statutory sodomy. Defendant also claims that the trial court abused its discretion in excluding evidence of prior allegations of sexual abuse made by the victim.

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

The judgment of the trial court is affirmed in accordance with Rule 80.25(b).


text:
    STATE of Missouri, Respondent, v. Donnie L. JACKSON, Appellant.
    No. ED 84467.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    S. Kristina Starke, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Donnie L. Jackson (“defendant”) appeals from the judgment entered after a jury convicted him of one count of attempted statutory rape in the first degree and two counts of attempted statutory sodomy in the first degree. Defendant contends that the trial court erred in denying his motion for acquittal at the close of all the evidence in that there was insufficient evidence to convict him. Defendant also asserts that the trial court erred by abusing its discretion in overruling his objections and permitting social workers Debbie Dineen-Velehek and Tijen Omurtag to testify as experts regarding child abuse and admitting their testimony on certain issues. Defendant further argues that the trial court plainly erred in sentencing him as a persistent felony offender.

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Floyd SAMPA, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84466.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 19, 2005.
    Amanda R. Schehr, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Floyd Sampa appeals from the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. He contends his attorney failed to inform him that he could receive life imprisonment as a result of his blind pleas of guilty on eighteen of the class A felony charges against him.

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


text:
    Miron TAYLOR, Movant, v. STATE of Missouri, Respondent.
    No. ED 84446.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 19, 2005.
    Jessica M. Hathaway, Assistant Public Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARYK. HOFF, J.
   ORDER

PER CURIAM.

Miron Taylor (Movant) appeals from the judgment denying his Rule 29.15 motion without an evidentiary hearing.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claim of error is without merit. The motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum, for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Kevin STRAUB, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84385.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 19, 2005.
    Maleaner R. Harvey, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamarar, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

Kevin Straub appeals from the judgment of the circuit court denying his Rule 29.15 motion for post-conviction relief after a hearing. We affirmed his conviction for possession of a controlled substance on the premises of a correctional institution on direct appeal. State v. Straub, 97 S.W.3d 537 (Mo.App. E.D.2003). He now argues on appeal that his trial counsel was ineffective for failing to inform him that it was ultimately his decision to testify at trial.

We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Larry SUTTON, Claimant/Respondent, v. VEE JAY CEMENT CONTRACTING CO., Employer/Appellant.
    No. ED 85689.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 19, 2005.
    Dale E. Gerecke, Cape Girardeau, MO, for Appellant.
    Harry J. Nichols, William R. Gallagher, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Vee Jay Cement Contracting Company (Employer) appeals the Labor and Industrial Relations Commission’s award of workers’ compensation benefits to employee Larry Sutton. Because. Employer’s notice of appeal was untimely, we dismiss the appeal.

Under section 287.495, RSMo 2000, Employer’s notice of appeal was due within thirty (30) days of the date of the final award of the Commission. Here, the date of the Commission’s award was December 7, 2004. Therefore, Employer’s notice of appeal was due thirty (30) days later on January 6, 2005. Section 287.495.

Employer sent a notice of appeal, which the Commission received on January 7, 2005. The notice of appeal was sent by Federal Express on January 5, 2005. The only exception for filing outside the thirty days is if the notice of appeal is endorsed by the United States post office. Section 287.480, RSMo 2000. However, this exception does not apply when the notice is sent by a private dispatching service and not the United States post office. Mansfield v. TG Missouri Corp., 149 S.W.3d 895, 896 (Mo.App. E.D.2004); See also, Patterson v. St. Louis University Hosp., 780 S.W.2d 106, 108 (Mo.App. E.D.1989), partially overruled on other grounds Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. banc 1991); Grice v. City of St. Robert, 824 S.W.2d 470 (Mo.App. S.D.1992). Therefore, Employer’s notice of appeal was considered filed the date it was received, January 7, 2005.

We issued an order directing Employer to show cause why its appeal should not be dismissed as untimely. Employer agrees its notice of appeal was sent by Federal Express on January 5, 2005 and should have been delivered on the due date of January 6, 2005. However, due to a routing error committed by Federal Express, the package was not delivered to the Commission in Jefferson City until January 7, 2005, one day out of time. Employer asks us to consider this as good cause, because the circumstances for late filing were beyond its control. However, there is no exception to section 287.495 for late filing for “good cause.” Compare, Grice, 824 S.W.2d at 472 (no provision for filing out of time for good cause or ignorance of law under section 287.480). Although we can sympathize with Employer’s plight, we are bound by the fact there is no statutory exception for late filing based on “good cause” in section 287.495. Because no exception applies, the filing date is considered the date the notice of appeal was received on January 7, 2005, which was untimely. Our only recourse is to dismiss the Employer’s appeal. Miller v. Missouri Highway and Transp. Com’n, 84 S.W.3d 133, 134 (Mo.App. E.D.2002).

The appeal is dismissed.

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


text:
    Tyrica FOWLER, et al., Plaintiffs/Appellants, v. Reverend Maurice NUTT, Mark Smith, Steven Roberts, and Edward Roth, in their official capacities as members of the Board of Police Commissioners of the City of St. Louis, Defendants/Respondents, and Terry Martin and Antonio Robinson, Defendants.
    No. ED 85182.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 19, 2005.

      Larry D. Coleman, Raytown, MO, for appellants.
    John M. Roodhouse, Jefferson City, MO, for respondents.
   GEORGE W. DRAPER III, Chief Judge.

Tyriea Fowler, individually and as next friend for her minor sons (Appellants), appeals from the trial court’s summary judgment entered in favor of the Board of Police Commissioners of the City of St. Louis (Board). Because there is no final, appealable judgment, we dismiss the appeal.

This case is a personal injury action for damages arising out of a car accident in which Appellant Tyriea Fowler’s son was killed and she and her two other sons were injured. Appellant’s car was hit by a car being driven by either Terry Martin or Antonio Robinson, suspects who were being chased by police. Appellants filed suit against the Board, as well as Martin and Robinson. On May 13, 2004, the trial court entered an order and judgment granting the Board’s motion for summary judgment, concluding that Appellants’ claims were barred by sovereign immunity. On June 14, 2004, Appellants filed a motion to vacate, re-open, correct, amend or modify the judgment, which the trial court never ruled upon. Appellants then filed this appeal.

In an unusual procedural posture, Appellants have filed a “Motion to Determine Jurisdiction of the Court of Appeals.” In their motion, Appellants assert this Court does not have jurisdiction of their appeal, because the trial court’s judgment failed to dispose of all parties in the case. Appellants point out that their claims against Terry Martin and Antonio Robinson have yet to be resolved. The Board has not filed any objection or response to the Appellants’ motion.

A party may only appeal from a final judgment, one that disposes of all parties and claims in the case and leaves nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). A judgment as to fewer than all claims maybe certified for appeal under Rule 74.01(b) if the trial court expressly designates that “there is no just reason for delay.” Id.

Here, Appellants brought suit against the Board of Police Commissioners, as well as Terry Martin and Antonio Robinson, who were the suspects being chased by police. The minute entries show both Martin and Robinson were served. It appears they have not filed an answer or appeared to defend the claims against them. However, there is nothing in the record on appeal to indicate that the claims against Martin and Robinson have been resolved either by default judgment or otherwise. Therefore, the trial court’s judgment of 5/13/04 is only a partial summary judgment in favor of the Board. In addition, the trial court did not certify its judgment for appeal under Rule 74.01(b) and there is no final judgment.

Without a final judgment, this Court is without jurisdiction to consider this appeal. Accordingly, the appeal is dismissed.

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

      . The minute entries also show entries of appearance for attorneys purporting to represent Martin and Robinson. However, those entries were for the attorneys from the City Counselor’s Office who were representing the Board. There is nothing in the record to indicate these attorneys were also representing Martin and Robinson.


text:
    Marie-Josephine ROYALL, f/k/a Marie-Josephine Lee, Respondent, v. Perry LEE, Appellant.
    No. ED 84605.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 19, 2005.
    Lawrence G. Gillespie, Michelle S. House-Connaghan, Clayton, MO, for appellant.
    John A. Turcotte, Jr., Clayton, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The father, Perry Lee, appeals from the trial court’s judgment modifying a prior dissolution decree, and finding that the father owed the mother, Marie-Josephine Royall, a total of $132,363.43 in unpaid maintenance and child support.

We have reviewed the parties’ briefs and the record on appeal. The trial court’s judgment is supported by substantial evidence. No error of law appears. No jurisprudential purpose would be served by an exposition of the detailed facts and law.

The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Michael BOX, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84869.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    S. Paige Canfield, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Michael Box (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 on the merits without an evidentiary hearing. Movant claims he was denied effective assistance of counsel because his counsel failed to investigate and present evidence from a witness.

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

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Joseph ALEXANDER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84590.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 19, 2005.
    Jo Ann Rotermund, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Movant, Joseph Alexander, appeals from the denial of his Rule 24.035 motion -without an evidentiary hearing. He contends that the motion court erred in finding that there was a factual basis for his guilty plea to possession of a controlled substance.

We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 24.035(k). An extended opinion would have no prece-dential value. We have, however, provided a memorandum for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Owen CALDWELL, Timothy Frieberg, Donald Radford, and Kim Shaw, Plaintiffs/Appellants, v. Kenneth and Linda SHAW, d/b/a “Linny’s Kennel”, Defendants/Respondents.
    No. ED 84597.
    Missouri Court of Appeals, Eastern District, Division One.
    April 19, 2005.
    Leneigha Sue Lake Downs, Union, MO, for Appellants Owen Caldwell, Kim Shaw, Timothy Frieberg, and Donald Radford.
    Mark S. Vincent, Union, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Owen Caldwell, Timothy Frieberg, Donald Radford, and Kim Shaw (Plaintiffs) appeal from the judgment of the trial court denying their request to enjoin Kenneth Shaw and Linda Shaw (Defendants) from operating a dog kenneling and boarding business on Defendants’ property. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the trial court’s judgment is supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). An extended opinion would have no precedential value. We have, however, provided the parties with a brief memorandum opinion, for them information only, explaining the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Dante HOLLIAM, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84794.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 26, 2005.
    Timothy Forneris, Assistant' Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Dante Holliam (Movant) appeals from the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In the underlying case, Movant was convicted of two counts of selling a controlled substance, Section 195.211, RSMo 2000; one count of selling a controlled substance near a school, Section 195.214, RSMo 2000; one count of trafficking in the second degree, Section 195.228, RSMo 2000; and one count of misdemean- or possession of a controlled substance, Section 195.202, RSMo 2000. Movant was sentenced to a total of four terms of 10 years’ imprisonment and one term of 1 year imprisonment, all to run concurrently. On appeal, Movant argues the trial court erred in denying his Rule 24.085 motion without an evidentiary hearing because (1) Movant’s guilty plea was involuntary, unintelligent, and unknowing as a result of defense counsel’s alleged promise that Movant would receive 120-days shock incarceration and probation, and (2) defense counsel failed adequately to investigate the scene of the drug sales or to interview any fact witnesses. We affirm.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Samantha L. YOUNG, Defendant/Appellant.
    No. ED 84714.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 26, 2005.
    Rosalynn Koch, Columbia, MO, for appellant.
    Debra Daniels, Daniel N. McPherson, Assistant Attorneys General, Jefferson City, MO, for respondent.

      Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, J.
   ORDER

PER CURIAM.

Defendant appeals from the judgment entered by the trial court on a jury verdict finding her guilty of felony stealing, in violation of section 570.030 RSMo (2000). The trial court sentenced her to three years imprisonment, suspended the execution of the sentence, and placed her on five years probation.

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

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


text:
    In the Interest of E.N.C. and D.C. Juvenile Office of the 24th Judicial Circuit, Petitioner/Respondent, v. Carla COX, Respondent/Appellant.
    No. ED 85072.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 26, 2005.
    Jill Colson Mackay, Farmington, Park Hills, for Appellant.
    Jack L. Duncan, Park Hills, for Guardian Ad Litem.
    Brent D. Newman, Farmington, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Mother appeals from the judgment terminating her parental rights to her daughter, E.N.C., and her son D.J.C., under Section 211.447, RSMo 2000. Mother contends the circuit court erred in terminating her parental rights pursuant to Section 211.447.4, RSMo 2000, because the findings for termination were not supported by clear, cogent, and convincing evidence, and in finding termination was in the best interest of the children.

We have reviewed the briefs of the parties and the record on appeal and find Mother’s claims of error to be without merit. The judgment of termination is supported by substantial clear, cogent, and convincing evidence and is not against the weight of the evidence. In re C.N.W., 26 S.W.3d 386, 393 (Mo.App. E.D.2000). 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).


text:
    Frances Helen STEVENS, Plaintiff/Appellant, v. Michael Craig STEVENS, Respondent/Respondent.
    No. ED 84932.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.
    Susan K. Roach, Clayton, MO, for appellant.
    W. Morris Taylor, Clayton, for respondent.
   ORDER

PER CURIAM.

Frances Helen Stevens (Wife) appeals from the trial court’s Judgment, Order and Decree of Dissolution (judgment), which dissolved her marriage to Michael Craig Stevens (Husband) by incorporating the oral settlement agreement (agreement) of the parties into the judgment, on the basis that the agreement was not supported by sufficient evidence and was, therefore, unconscionable.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . Husband’s motion for frivolous appeal is denied.


text:
    Ronny Otis REED, Movant, v. STATE of Missouri, Respondent.
    No. ED 84930.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.
    Amanda R. Schehr, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer; Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Ronny Otis Reed (Movant) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief (motion) without an evidentiary hearing.' Movant pleaded guilty in Causé No. 031-978 to two counts of first-degree burglary in violation of Section 569.160 RSMo 2000, seven counts of second-degree burglary in violation of Section 569.170, four counts of stealing under $500 in violation of Section 570.030, and two counts of stealing over $500 in violation of Section 570.030. The trial court sentenced Mov-ant, as a prior and persistent offender, to a total term of eighteen years, to be served concurrently with a sentence Movant was already serving. Movant thereafter timely filed his pro se motion for post-conviction relief pursuant to Rule 24.035. The motion court denied Movant’s motion without an evidentiary hearing, but corrected the sentences on the Class C felonies that exceeded fifteen years by a nunc pro tunc amended sentence and judgment per Rule 29.12(c). This appeal follows. We affirm.

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. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. 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 84.16(b).

      . All subsequent statutory citations are to RSMo 2000, unless otherwise indicated.


author: PATRICIA L. COHEN, Presiding Judge.

text:
    Anthony FINERSON, Appellant, v. Donald P. ROPER, Respondent.
    No. ED 85481.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 26, 2005.

      Anthony Finerson, Bowling Green, MO, pro se.
    Lisa J. Berry, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Anthony Finerson (“Defendant”) appeals from the judgment of the Circuit Court of Washington County dismissing his Petition for Declaratory Judgment. Because we do not have jurisdiction to consider this appeal, we dismiss.

Statement of the Facts and Proceedings Below

Defendant was convicted in the Circuit Court of the City of St. Louis of first-degree robbery and armed criminal action for robbing a St. Louis paint store while brandishing a weapon. Upon his conviction, the court sentenced Defendant as a prior and persistent offender to concurrent terms of fifteen years’ imprisonment. Defendant filed a post-conviction appeal, which we affirmed with a published opinion in State v. Finerson, 826 S.W.2d 367 (Mo.App. E.D.1992).

Defendant filed a “Petition for Declaratory Judgment Pursuant to Mo.S.Ct. Rule 87” on October 10, 2003 naming Donald Roper, the superintendent of the Potosi Correctional Center, as the Respondent. In his prayer for relief, Defendant asked that the court declare his right to a writ of habeas corpus and a new trial based on his allegation that the trial court lacked jurisdiction to impose sentence and judgment because it failed to have the jury’s verdict rendered in open court as required by Section 532.070 RSMo 1986.

Respondent, Donald Roper, answered the Petition on November 17, 2003 with a denial that “he [was] the correct party respondent for the relief sought by the petitioner.” The court agreed and, in a Judgment dated December 10, 2004, dismissed Defendant’s Petition finding, “the named Respondent is not the correct party Respondent for the relief sought by the Petitioner.” This appeal followed.

Discussion

On appeal, Defendant contends that the trial court abused its discretion when it denied his Petition for Declaratory Judgment based on the fact that Respondent was not the proper party respondent for the action. In support of this contention, Defendant argues that the trial court erred because his Petition for Declaratory Relief named Donald Roper, Superintendent of the Potosi Correctional Center, as the party respondent and “§ 532.080 RSMo 2000 requires every habeas corpus shall be directed to the person by whom the party to be relieved is restrained of his liberty.” In a separate point, Defendant contends that Section 532.080 is unconstitutionally vague. In response, Respondent argues: (1) Respondent was not the proper party respondent because he does not have the power to grant Defendant the relief requested in his Petition; and (2) this court does not have jurisdiction to consider this appeal.

We first consider the threshold issue of jurisdiction. Notably, in its Judgment dismissing Defendant’s Petition for Declaratory Judgment, the trial court did not indicate whether the dismissal was with or without prejudice. Rule 67.03 of the Missouri Rules of Civil Procedure provides that “any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify”

Accordingly, in light of the trial court’s failure to indicate that the dismissal was with prejudice, we presume that the trial judge dismissed Defendant’s Petition without prejudice. Mo.R.Civ.P. 67.03; State v. Honeycutt, 96 S.W.3d 85, 90 (Mo. banc 2003). Generally, a dismissal without prejudice is not an order from which appeal can be taken. Nolan v. State, 959 S.W.2d 939, 940 (Mo.App. E.D.1998); Honeycutt, 96 S.W.3d at 90. Of course, appeal can be taken in a case where the trial court’s dismissal of a cause without prejudice “effectively terminates the litigation ‘in the form in which it is cast or in the ... chosen forum.’” Nolan, 959 S.W.2d at 940, quoting Skaggs v. Skaggs, 938 S.W.2d 302 (Mo.App.1997). This case does not fit that narrow exception.

Here, the trial court’s dismissal of Defendant’s “Petition for Declaratory Judgment Pursuant to Mo.S.Ct. Rule 87” did not mark a definitive end to the litigation. Although Defendant’s Petition requested the trial court to declare his right to a-writ of habeas corpus, the ultimate relief requested in the Petition was a new trial. The court dismissed in light of the fact that, as superintendent of a correctional center, Respondent did not have the authority to order a new trial for Defendant. As Respondent suggests, Defendant retained several avenues through which to pursue either habeas relief or a new trial, i.e., a state habeas petition naming the superintendent of his present correctional facility or another petition for declaratory judgment naming the proper respondent. Under these circumstances, we do not have jurisdiction. The appeal is dismissed.

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


text:
    Marcia V. HANSEN, Respondent, v. Gregory S. HANSEN, Appellant.
    No. ED 84079.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.
    Joseph Porzenski, St. Charles, MO, for Appellant.
    The Roach Law Firm, Clayton, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Gregory S. Hansen (Husband) appeals from the trial court’s judgment and decree (judgment) dissolving his marriage to Marcia V. Hansen (Wife). Husband alleges the trial court erred in its award of maintenance, allocation of debt, and award of attorney’s fees on appeal.

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. The judgment is supported by competent and substantial evidence and is not against the weight of the evidence. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. Judgment affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


author: LAWRENCE G. CRAHAN, Judge.

text:
    Amil BEQUETTE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84289.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.

      Michelle M. Rivera, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for Respondent.
   LAWRENCE G. CRAHAN, Judge.

Amil Bequette (“Movant”) appeals the judgment denying his Rule 24.035 motion for post-conviction relief without an evi-dentiary hearing. We reverse and remand.

Movant was charged with three counts of criminal non-support. After the State agreed to various conditions, including an agreement to dismiss two of the three counts, Movant pled guilty to one count of criminal non-support. The trial court sentenced Movant to three years’ imprisonment.

Movant filed his pro se motion for post-conviction relief after sentencing. Mov-ant’s appointed attorney filed an amended motion alleging that his plea counsel (“Counsel”) was ineffective in failing to adequately explain defense theories available to Movant or to interview witnesses who could testify in Movant’s defense. In particular, Movant contended that he informed Counsel that his children had not lived with their mother, to whom Movant owed child support, for quite some time, since the children had instead lived at different times with their maternal grandmother and Movant’s mother. Movant also told Counsel that he directly contributed to the children’s support by providing food, clothing, and lodging for the children during this time. According to Movant, Counsel responded that the court records indicating lapses in payment of decretal support to the children’s mother were enough to convict him and that he could not present a defense to the charges of criminal non-support. Movant asserted that Counsel incorrectly believed that Movant had no possible defense to his charges of non-support, in that even though the records showed that he missed decretal payments, he could produce evidence that he provided adequate support to the children directly. Consequently, Movant urges that his guilty plea was not voluntary and intelligent because it was based on erroneous advice from Counsel.

The motion court entered its findings of fact and conclusions of law denying Mov-ant’s motion without an evidentiary hearing. This appeal follows.

When reviewing a motion court’s denial of post-conviction relief, this court is limited to a determination of whether the motion court’s findings, conclusions, and judgment are clearly erroneous. Willoughby v. State, 81 S.W.3d 676, 679 (Mo.App.2002). Because the findings of the motion court are presumed to be correct, they are deemed clearly erroneous only if, after a review of the entire record, this court is left with the definite and firm impression that a mistake has been made. Id. Absent an abuse of discretion, we defer to the trial court’s determination as to whether a defendant’s guilty plea was voluntary. Id.

In Movant’s sole point on appeal, he argues that the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing because he alleged facts not conclusively refuted by the record that would entitle him to relief based on Counsel’s ineffectiveness. Specifically, Movant argues that Counsel was ineffective in failing to inform him that he had a possible theory of defense and for fading to investigate witnesses who could support his defense. According to Movant, had Counsel further investigated and informed him of his defense, he would have refused to plead guilty.

In order to obtain an evidentiary hearing on claims of ineffective assistance of counsel, (1) the movant must raise facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the record; and (3) the matters complained of must have resulted in prejudice to the movant. Morrison v. State, 65 S.W.3d 561, 563 (Mo.App.2002).

A claim of ineffective assistance of counsel requires that Movant show: (1) that Counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and (2) that Movant was prejudiced thereby. Rice v. State, 988 S.W.2d 556, 558 (Mo.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In reviewing Movant’s ineffective assistance of counsel claim, there is a strong presumption that Counsel’s conduct was reasonable under the circumstances. McVay v. State, 12 S.W.3d 370, 373 (Mo.App.2000). In order to overcome the presumption, Movant must establish a serious dereliction of duty by plea counsel that substantially affected his rights. Id. Prejudice exists in a guilty plea case where a movant proves that, but for counsel’s ineffectiveness, he would not have pled guilty and would have demanded a trial. Rice, 988 S.W.2d at 558.

A guilty plea generally waives any future complaint the movant might have about plea counsel’s failure to investigate his case. Simmons v. State, 100 S.W.3d 143, 146 (Mo.App.2003). In fact, a guilty plea renders a claim of ineffective assistance of counsel irrelevant except to the extent that is affects the voluntariness and understanding with which the . movant made his plea. Id. A plea must not only be a voluntary expression of the defendant’s choice; it must also be a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences of the act. State v. Hunter, 840 S.W.2d 850, 861 (Mo. banc 1992). “A plea of guilty is not made voluntarily if the defendant is misled, or is induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded.” Drew v. State, 436 S.W.2d 727, 729 (Mo.1969) (internal citations omitted).

The motion court found that the record refuted Movant’s claims that Counsel was ineffective. In particular, the motion court noted that during the plea hearing, Movant repeatedly assured the court that he was satisfied with Counsel’s representation, specifically including Counsel’s investigation of witnesses and explanation of defenses available. However, Movant argues that although he did not express dissatisfaction with Counsel at the plea hearing or mention Counsel’s ineffectiveness for failing to further investigate his defense at the sentencing hearing, he failed to make such claims because he was not aware that the defense was available at that time. He also asserts that even though he testified at the plea hearing that he neglected to pay his child support as charged in the State’s complaint, Movant merely meant that he did not make payments to the court. Movant states that Counsel failed to inform him that other forms of support, such as providing food and clothing, can constitute support under the criminal nonsupport statute. See section 568.040.2(3) (defining “support” as food, clothing, lodging, and medical or surgical attention); State v. Nichols, 725 S.W.2d 927, 929 (Mo.App.1987) (stating that court records showing a defendant’s failure to pay decre-tal support payments were relevant to the issue of the defendant’s failure to meet his common-law duty of support, but were not determinative of whether the State made a submissible case against the defendant for non-support because the evidence did not establish whether the defendant paid child support in other ways within the statutory meaning of “support”). Therefore, Mov-ant argues that he had no reason to know at the time of his guilty plea that Counsel was ineffective for misinforming him that the court records of nonpayment were determinative of his guilt.

We find the motion court erred in denying Movant an evidentiary hearing. Assuming that Movant’s allegations that he adequately contributed to his children’s support are true, they constitute facts, not conclusions, which could constitute a defense. Movant’s allegations that Counsel was ineffective in misinforming him about the possibility of a defense are not refuted by the record because they are based on information Movant obtained subsequent to his plea and sentencing testimony. If Movant can prove that Counsel misinformed him as to the possibility of a defense and failed to investigate that defense, Movant’s guilty plea may be vacated and set aside. Rule 24.035®. The motion court erred in denying his Rule 24.035 motion without an evidentiary hearing. Movant’s point is granted.

The judgment is reversed and remanded for further proceedings consistent with this opinion.

LAWRENCE E. MOONEY, P.J., and MARY K. HOFF, J., concur.

      . Unless otherwise indicated, all references to Rules are to Mo. R.Crim. P.2005.

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


text:
    Arthur M. BUCKOWITZ, Respondent, v. Phyllis L. BUCKOWITZ, Appellant.
    No. ED 84293.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.
    James J. Leightner, Robert E. Faerber, Clayton, MO, for Appellant.
    Lake, Gantz & Lake, L.L.C., Thomas H. Lake, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Phyllis L. Buckowitz appeals from the judgment reducing Arthur M. Buckowitz’s maintenance obligation. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would have no prece-dential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Lindsay Rachel BRANDON, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 84675.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Kathleen Fitzgerald, Jefferson City, MO, for appellant.
    Jones & Rath, L.L.C., Jeffrey K. Rath, Clayton, MO, for respondent.
   LAWRENCE G. CRAHAN, Judge.

The Director of Revenue for the State of Missouri (“Director”) appeals the judgment reinstating Lindsay R. Brandon’s (“Driver”) driving privileges after an administrative suspension or revocation. We reverse and remand.

In the early morning of July 29, 2003, Officer Paul Bastean (“Officer”) arrested Driver for driving while intoxicated. Officer transported Driver to the police station and informed her of her rights under the Missouri implied consent, law. Driver then consented to providing a breath sample. Officer had observed Driver for at least fifteen minutes prior to testing her breath and noted that she did not consume anything, spit up, or vomit during the fifteen-minute period. He used a DataMaster machine to administer the breath test after following the seven steps on the DataMas-ter operation checklist for proper use of the DataMaster and was able to obtain a printout. According to the breath analysis test, Driver had a blood alcohol level of .141%.

At trial, Officer testified regarding administration of the breath analysis test without objection, although Director did not question Officer regarding the actual results of the breath test and did not offer exhibits containing the results at that time. On cross-examination, Driver’s attorney asked Officer whether he remembered asking Driver to take gum out of her mouth prior to administering the test. Officer responded that although he could not specifically recall when he asked Driver to take gum out of her mouth, he typically checks for gum at the scene since the presence of gum in a driver’s mouth was an issue in a Department of Revenue proceeding several years before. Driver’s attorney asked whether Driver would be telling the truth if she testified that she took the gum out of her mouth right before she took the test. Officer responded that she would not be telling the truth. Driver then read the following passage from Officer’s report and asked whether the passage indicated that Driver removed her gum just prior to taking the test:

Q. [By Driver]: Okay, what if — now, I’m going to read the section of the report; you tell me if this sounds familiar.
A reading of point one four one BAC was obtained using the department’s Da-taMaster breath analysis instrument. Before the breath cancel — sample was obtained, I requested [Driver] remove her gum and any other objects from her mouth.

Officer agreed that the report did not sound as if he told Driver to remove her gum at the scene and that it would be improper for Driver to remove her gum right before the test because gum may contain alcohols that would disrupt the results. However, Officer testified on redirect examination that Driver did not have any gum in her mouth in the patrol car or at the police station. Driver did not offer any evidence.

Before the conclusion of the hearing, Director asked the judge to admit Exhibit A, which contained the DataMaster checklist, Department of Revenue records, and the printout from the DataMaster, and Exhibit B, which contained the maintenance reports for the DataMaster machine and the Type II permit of the maintenance officer. Driver objected to admission of the “breath test itself’ based on improper foundation since Officer did not testify in fact that during the 15-minute observation period prior to administration of the test he asked Driver to remove the gum from her mouth. The trial court accepted the exhibits but took Driver’s objections under advisement.

In its judgment, the trial court explained that it reinstated Driver’s driving privileges because there was no positive proof that all objects had been removed from Driver’s mouth prior to administration of the breath test. This appeal follows.

We will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We defer to the trial court’s determination of credibility. Id. If the parties do not request findings of fact and the court makes no finding on a specific issue, we assume that such determination of fact was made consistent with the judgment entered by the trial court. McCarthy v. Director of Revenue, 120 S.W.Sd 760, 761 (Mo.App.2003). However, in license revocation cases, a trial court is not free to disregard unequivocal and uncontradicted evidence that supports the director’s contentions. Id. Moreover, our standard of review does not permit us to disregard uncontroverted evidence supporting the fact that all elements of the director’s case were met. Id.

In Director’s sole point on appeal, Director argues 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, which Driver did not rebut. In particular, Director argues that she established that Officer had probable cause to believe Driver was driving while intoxicated and that Driver’s blood alcohol content was above the statutory limit. In addition, Director maintains that Driver presented no evidence to rebut or raise a genuine issue of fact with respect to Director’s evidence but merely speculated on other possibilities.

To support a revocation or suspension of a driver’s license, Director must establish the following elements: (1) that Driver was arrested upon probable cause for violating an alcohol-related offense; and (2) that Driver’s blood alcohol concentration exceeded the legal limit of .08%. Section 802.505.1. Once Director has established by a preponderance of evidence that both elements are met, Driver is then entitled to produce rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results. Verdoorn, 119 S.W.3d at 546. The rebuttal evidence should challenge the presumption of validity raised by Director’s prima facie case, and Driver’s burden is one of production, not persuasion. Id. Director retains the burden of proof throughout the proceeding. Id.

In her brief, Driver concedes that she was arrested upon probable cause. Thus, we only need to consider whether Director established by a preponderance of evidence that Driver’s blood alcohol concentration exceeded the legal limit of .08%. When a breathalyzer test is the method used to establish a prima facie case on blood alcohol content, the proponent for its admission usually has to meet all foundational prerequisites for its admission. Krieger v. Director of Revenue, 14 S.W.3d 697, 701 (Mo.App.2000). These foundational requirements consist of the following: (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 of Health. Id.

Director initially argues that she satisfied all three foundational requirements and established her prima facie case, requiring Driver to raise a genuine issue with regard to Director’s evidence. In response, Driver argues that because the trial court did not admit Director’s test results, Director did not establish a prima facie case. In particular, Driver contends that because Director did not demonstrate that Officer kept substances from going into or coming out of Driver’s mouth during the 15-minute observation period, Director did not prove that Driver’s blood alcohol content exceeded .08%. See 19 C.S.R. 25-30.060(7); Duing v. Director of Revenue, 59 S.W.3d 537, 539-40 (Mo.App.2001), overruled on other grounds by Verdoorn, 119 S.W.3d at 547.

Although the trial court did not specifically rule on the admissibility of Driver’s test results at trial, it reinstated Driver’s driving privileges because there was no positive proof that all objects had been removed from Driver’s mouth prior to administration of the breath test. From this ruling, we may infer that the trial court determined that Driver’s breath test results were inadmissible based on lack of foundation. However, in the alternative, we may also infer that the trial court determined that Director established a pri-ma facie case but that Driver successfully rebutted Director’s case. Since we may affirm the trial court’s judgment on any reasonable theory supported by substantial evidence, we will consider both possibilities to determine whether the trial court erred. Testerman v. Director of Revenue, 31 S.W.3d 473, 477 (Mo.App.2000), overmled on other grounds by Verdoorn, 119 S.W.3d at 546.

Assuming that the trial court found that Director did not establish a prima facie case, Driver is correct in arguing that she was not required to offer evidence that raised a genuine issue of fact with respect to Director’s prima facie showing. Nevertheless, we may reverse if the trial court erred in refusing to consider Driver’s test results based on lack of foundation. See Coyle v. Director of Revenue, 88 S.W.3d 887, 896 (Mo.App.2002). Here, the trial court presumably refused to admit Driver’s breath test results because Director did not positively show that all objects were removed from Driver’s mouth prior to administration of the test. Based on our review of the record, however, Director did provide positive evidence that all objects were removed from Driver’s mouth at the appropriate time. As stated above, while we defer to a trial court’s determination of the credibility of witnesses, a trial court is not free to disregard unequivocal and uncontradicted evidence that supports an element of Director’s prima facie case. McCarthy, 120 S.W.3d at 761. Here, Officer unequivocally stated that he removed any objects from Driver’s mouth at the scene and well before administration of the test.

Driver argues that Officer equivocated with respect to when he asked Driver to remove her gum because his report could be read to indicate that Driver did not remove her gum at the scene, contrary to Officer’s testimony on direct and re-direct examination. While Driver attempted to diminish Officer’s credibility during cross-examination, we disagree that Officer’s answers rendered the test results inadmissible. Although the trial court in a civil case is free to rely on inferences from the evidence in determining whether a party has met its burden of proof, they must be reasonable in nature, and the trial court cannot rely on guesswork, conjecture, and speculation. Testerman, 31 S.W.3d at 483. The evidence should have a tendency to exclude every reasonable conclusion other than the one desired. Id. Although an inference need not be justified beyond all doubt and is not precluded by a mere possibility that the contrary may be true, the law does not approve the drawing of forced and violent inferences which do not arise from a reasonable interpretation of the facts as actually shown. Id. We find that the trial court’s conclusion that Director did not present positive proof that all objects were removed from Driver’s mouth was an unreasonable inference in light of Officer’s testimony to the contrary.

Driver also argues that Testerman and the other cases Director cites are not applicable because they concern whether a driver rebutted the director’s prima facie case and not whether the director established a prima facie case initially. Although in Testerman the court was considering whether the driver’s evidence rebutted the director’s prima facie case, we disagree that the principles set forth above do not apply here. Significantly, the court cited Herberholt v. dePaul Cmty. Health Ctr., 625 S.W.2d 617, 623 (Mo. banc 1981), a case that did not involve an administrative license suspension, as authority for its discussion of reasonable inferences. We hold that the reasoning in Testerman applies to the trial court’s findings in this case notwithstanding the procedural distinctions.

Driver does not dispute whether Director established the second two foundational prerequisites for admitting breath analysis test results. Accordingly, because Director produced evidence in support of all three foundational elements, the trial court erred in failing to admit Driver’s breath analysis test results.

On the other hand, if we assume that the trial court found that Director did establish a prima facie case but that Driver successfully rebutted its case, we again look to Testerman. In Testerman, the driver challenged the director’s prima facie case by presenting evidence that she had a peppermint in her mouth during the required observation period. 31 S.W.3d at 480. The appellate court reversed the trial court’s reinstatement of the driver’s license because the trial court’s inference that the driver had a peppermint in her mouth was unreasonable based on the evidence she presented and the evidence presented by the director. Id. at 483. In particular, the court stated that the driver’s testimony indicated at best that the driver placed a peppermint in her mouth at some point before she gave her consent to take the breath analysis test and that the peppermint was still in her mouth when she gave her consent. Id. Relying on the principles regarding unreasonable inferences cited above, the court reasoned that there was no way to determine whether the mint was still in the driver’s mouth during the observation period without engaging in pure speculation. Id. Thus, for the trial court to find that the driver rebutted the director’s prima facie case, the trial court clearly had to resort to an inference that was unreasonable in that it relied on speculation. Id.

As in Testerman, for the trial court to conclude here that Driver had gum in her mouth immediately prior to taking the breath analysis test, it would have to rely on pure speculation. Driver presented no evidence to support her contention that she had gum in her mouth during the observation period other than Officer’s responses on cross-examination. However, as discussed above, without resorting to pure speculation, Officer’s responses did not indicate that Driver had gum in her mouth during the observation period. Moreover, to rebut Director’s prima facie case, Driver is required to present evidence that raises a genuine issue of fact regarding the validity of the test results. Verdoom, 119 S.W.3d at 546. Inconclusive testimony is not sufficient to rebut the presumption of intoxication established by Director’s prima facie case. Id. at 547. Director’s point is granted.

The judgment is reversed and the cause is remanded for reinstatement of Driver’s revocation.

LAWRENCE E. MOONEY, P.J., and MARY K. HOFF, J., concur.

      . Director argues that when Driver read this portion of the report during cross-examination, Driver essentially admitted Driver’s blood alcohol content into evidence. However, Director cites no authority and our research has found none indicating that reading this language as part of Driver’s question on cross-examination constitutes an admission of the test results in light of Driver’s clear intent to show that the results were inadmissible.

      . All statutory references are to RSMo Supp.2004 unless otherwise indicated.

      . We acknowledge that Testerman cited an improper framework for the extent of the driver’s burden of proof. See Verdoorn, 119 S.W.3d at 546. However, we find that the court’s reasoning in Testerman is consistent with the proper burden-shifting framework, i.e., that the driver's burden is one of production and not persuasion. Verdoorn, 119 S.W.3d at 546. The court in Testerman did not find that the driver's evidence failed to show by a preponderance of the evidence that her blood alcohol level did not exceed the statutory limit. Rather, it held that the trial court made unreasonable inferences from the driver's evidence, which would also render the driver’s rebuttal insufficient under the framework set forth in Verdoorn. See Testerman, 31 S.W.3d at 483.


text:
    Terry L. WILLIAMS, Appellant, v. Michelle M. WILLIAMS, Respondent.
    No. ED 84341.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 26, 2005.
    Charles P. Todt, St. Louis, MO, Daniel R. Schramm, Chesterfield, MO, for Appellant.
    Ray Dickhaner, Hillsboro, for Guardian Ad Litem.
    Michelle S. House-Connaghan, Clayton, MO, Michelle J. Spirn, St. Louis, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J., and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, Jr., JJ.
   ORDER

PER CURIAM.

Terry L. Williams (Husband) appeals from the judgment dissolving his marriage to Michelle M. Williams (Wife). Husband challenges the trial court’s (1) award of primary physical custody of the parties’ child (Child) to Wife, (2) award of retroactive child support, (3) award of attorney fees to Wife, and (4) the division of marital assets. We find no trial court error and affirm.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. David GRIFFIN, Defendant/Appellant.
    No. ED 84382.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.

      Scott Thompson, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

David Griffin (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 as a prior offender to concurrent terms of life imprisonment without probation or parole and thirty years.

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 have no jurisprudential value. 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:
    Charles THORNTON, Appellant, v. CITY OF KIRKWOOD and Ken Yost, Respondents.
    No. ED 84580.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 26, 2005.

      Charles L. Thornton, Kirkwood, MO, for Appellant.
    John Hessel, Philip Mackey, Jennifer Behm, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   PER CURIAM.

Charles Thornton (“Plaintiff’) appeals from the trial court’s judgment granting summary judgment in favor of defendants City of Kirkwood (“City”) and Ken Yost (“Yost”) (collectively “Defendants”) on Plaintiffs claims of malicious prosecution and civil rights violations under 42 U.S.C. section 1983. We dismiss.

The lawsuit arises from a series of citations Plaintiff received for committing violations of the City’s municipal ordinances relating to construction and Plaintiffs attempts to fight these citations in court. Yost is the Director of Public Works for the City, a municipal corporation, and he is responsible for the enforcement of the Building, Property Maintenance, Health, Nuisance and Zoning Codes for the City. According to Yost’s affidavit filed in connection with Defendants’ motion for summary judgment, he exercises discretion in determining whether a violation of the City’s ordinances has occurred or whether to initiate a charge based upon the violation. He is not required to initiate a charge if he concludes that an ordinance has been violated; instead, he may issue a verbal or written warning or take no action, depending on what he considers appropriate under the circumstances.

Plaintiff is apparently a subcontractor who had been performing some construction or plumbing work on property at 299 McCullough Avenue, which is located in the City and owned by one William Allen. In May 2001, Yost cited Plaintiff for numerous violations of the City’s ordinances relating to various building codes and allowing unlawful conditions or activities to exist on the property. After Plaintiff was issued the citations, he returned to the property to continue working and was arrested by the City police for working without an approved site plan. A two-day bench trial was ultimately held in the City’s municipal court, and Plaintiff was found guilty of 34 of the 38 counts and assessed fines.

Pursuant to Rule 37.71 of the Missouri Rules of Criminal Procedure, Plaintiff requested a trial de novo and all 34 of the municipal court convictions were certified to the circuit court. At trial, Plaintiff presented the testimony of Thomas Klocke, who stated that Plaintiff was working as a subcontractor for him on May 17, 2001, at the subject property that was the location of two of the charges against Plaintiff. Plaintiff apparently had never previously notified any City employee that he was working as a subcontractor on that date. The cause was submitted to the circuit court on only 32 counts, and Plaintiff was found guilty of 27 of the counts and fined.

In May 2002, Plaintiffs attorney filed a claim in the circuit court against Defendants alleging malicious prosecution and a violation of 42 U.S.C. section 1983. Plaintiff claimed that because he was found not guilty on a few of the charges after trial, the charges were initiated or prosecuted maliciously or in bad faith. Specifically, he claimed that he was charged with a violation of City ordinances 10-58 and 20-168(c) but that he was found not guilty of those charges. Plaintiff also alleged that he was taken into police custody and incarcerated for a period of time during which he suffered substantial monetary losses. In his amended petition, he prayed for judgment for compensatory damages in the amount of $10,000 and for punitive damages in the amount of $12,000,000, in addition to other costs and reasonable attorney’s fees.

Defendants moved for summary judgment on the basis that Plaintiff could not show all of the elements needed to pursue a claim for malicious prosecution in that he failed to show that the relevant proceedings terminated in his favor and the absence of probable cause for the prosecution. Defendants also argued that the City is protected from suit by the doctrine of sovereign immunity and that Yost is protected from suit by the doctrine of official immunity.

The trial court granted Defendants’ motion for summary judgment. The court found that Defendants were entitled to judgment as a matter of law on all of Plaintiffs claims because Plaintiff failed to properly plead sufficient facts proving that the relevant proceedings terminated in Ms favor and failed to rebut uncontroverted facts to assert that the relevant charges were issued without probable cause. Thus, the malicious prosecution claims failed. In its order, the court also noted that based on the uncontroverted material facts, the Defendants were both entitled to immunity on the claim for malicious prosecution. The court had granted Plaintiff leave to file amended pleadings regarding the section 1983 claim, but it found that the pleadings failed as a matter of law in that Plaintiff did not state a claim because he failed to allege any deprivation of constitutional rights resulting from a policy or custom of the City and he otherwise failed to allege sufficient facts to support a cause of action under the federal statute. This pro se appeal followed.

Plaintiffs brief does not comply with the requirements of the rules of appellate procedure. It is well settled that pro se appellants are held to the same standards as attorneys and must comply with the Supreme Court Rules, including Rule 84.04, which sets out the requirements for appellate briefs. Davis v. Coleman, 93 S.W.3d 742, 742 (Mo.App.2002). We hold pro se appellants to the same procedural rules as attorneys, and we do not grant them preferential treatment regarding compliance with those rules. Hardin v. State, 51 S.W.3d 129, 130 (Mo.App.2001). It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties. Perkel v. Stringfellow, 19 S.W.3d 141, 145 (Mo.App.2000).

Failure to follow Rule 84.04 can result in error not being preserved on appeal and thus constitutes grounds for the dismissal of Plaintiffs appeal. See, e.g., Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978); Perkel, 19 S.W.3d at 145-46. Substantial compliance with the rule is required. Gray v. White, 26 S.W.3d 806, 815 (Mo.App.1999). There is both sound policy and purpose for Rule 84.04 in facilitating appellate review. Am-paran v. Martinez, 862 S.W.2d 497, 499 (Mo.App.1993). Compliance with the rule is required in order that the appellant may give notice to the party opponent of the precise matters which must be contended with and answered. Id. Compliance is also mandatory so that unnecessary burdens are not imposed on the appellate court and to ensure that appellate courts do not become advocates for the appellant by speculating facts and arguments that have not been made. Lane v. Elliott, 102 S.W.3d 53, 55 (Mo.App.2003).

Here, Plaintiffs brief fails to comply with Rule 84 in almost every respect. In particular, the statement of facts does not comply with Rule 84.04(c), which requires a fair and concise statement of facts “relevant to the question presented for determination without argument.” While it makes some citations to the record, the brief statement of facts is incomprehensible, does not accurately represent the record on appeal, and fails to inform the court of the procedural facts or history of this case. In addition, Plaintiff fails to provide this court with the standard of review applicable to his claims of error as required under the rules. See Rule 84.04(e) (stating that the argument section “shall include a concise statement of the applicable standard of review for each claim of error”). The only reference to the standard of review comes in each of Plaintiffs points relied on, but he incorrectly states that the trial court erred by committing an abuse of discretion in granting the summary judgment motion.

The argument section also fails to comply in almost any respect with Rule 84.04. Although Plaintiff states the legal reasons for his claims of reversible error, the points relied on do not state clearly why, in the context of this case, the legal reasons support his claims of error. Additionally, Plaintiff fails to properly argue his points relied on in that he cites only minimal authority in his entire seven points relied on. Plaintiffs argument under each point fails to cite appropriate legal authority, and he does not explain his failure to do so. Failure to cite relevant authority supporting the point or to explain the failure to do so preserves nothing for review. Patterson v. Waterman, 96 S.W.3d 177, 179 (Mo.App.2003). Thus, because Plaintiffs brief does not conform to the rules of appellate procedure, none of his arguments are properly preserved for appeal. Appeal dismissed.

      . Plaintiff also filed a complaint under the Civil Rights Act in the United States District Court for the Western District of Missouri, 04-0018-CV, on January 9, 2004.

      . Allen pled guilty to 18 counts of municipal ordinance violations in August 2001 relating to the activities and conditions at his property-

      . Altogether, Plaintiff has been charged with 114 violations of the City's ordinances since March 1996, and he has pled guilty or been convicted of over 100 of them.

      . The charges against Plaintiff mostly arise from his unlawful operation of a construction business in Me City, but he has also been convicted of various municipal ordinance violations, including assault and battery of Yost.

      .Plaintiff had originally retained an attorney, Irwin Roitman, to represent him, but the attorney withdrew as counsel for Plaintiff in December 2003 after Plaintiff filed documents with the court without the attorney’s knowledge or approval.

      . Plaintiff originally filed an appeal with the Missouri Supreme Court. The Supreme Court subsequently transferred the cause to this court. Plaintiff incorrectly argues in his jurisdictional statement that the circuit court judge ordered the invalidation of the federal statute 42 U.S.C. section 1983.

      . Plaintiff previously filed two briefs with this court. Both briefs were incomplete and failed to comply with the applicable rules of appellate procedure, and they were returned to him due to their failure to conform so that Plaintiff could file an amended brief.

      . Plaintiff s jurisdictional statement contains numerous citations to case law and other legal authority, but his argument does not. In his argument, he relies on only one federal case and a few Missouri rules,