author: VANMETER, Judge.

text:
    Robert BROZOWSKI; and Sharon Brozowski, Appellants, v. Carl M. JOHNSON, M.D.; James S. Gwinn, Jr., M.D.; Western Kentucky Heart & Chest Surgery Associates, PSC; and Western Baptist Hospital, An Unincorporated Division of Baptist Healthcare System, Inc., Appellees.
    No. 2004-CA-000256-MR.
    Court of Appeals of Kentucky.
    Nov. 18, 2005.

      Jack W. Flynn, Frankfort, KY, for appellants.
    E. Frederick Straub, Jr., James R. Col-tharp, Jr., Paducah, KY, for appellees Carl Johnson, M.D. and Western Kentucky Heart & Chest Surgery Associates, PSC.
    L. Miller Grumley, Paducah, KY, for Western Baptist Hospital, an Unincorporated Division of Baptist Healthcare System, Inc.
    Richard L. Walter, Paducah, KY, for James S. Gwinn, Jr., M.D.
    Before HENRY and VANMETER, Judges; MILLER, Senior Judge.

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

   OPINION

VANMETER, Judge.

Robert and Sharon Brozowski appeal from the McCracken Circuit Court’s order denying their motion to vacate the dismissal of their complaint and to reconsider their attorney’s motion for admission pro hac vice. For the following reasons, we affirm.

John E. Bradley, an Illinois attorney, filed a complaint alleging medical malpractice on the Brozowskis’ behalf in the McCracken Circuit Court on October 7, 2003. On the same day Louise Cook, an attorney licensed to practice law in Kentucky, filed a motion for Bradley’s admission pro hac vice along with Bradley’s affidavit stating that he was an Illinois attorney in good standing. Because no proposed order was tendered with the motion as required by the local rules, on October 15 appellee Western Baptist Hospital filed a motion to dismiss the Brozow-skis’ complaint pursuant to SCR 3.030(2) and CR 11. The court dismissed the Bro-zowskis’ complaint with prejudice, citing SCR 3.030(2), after Bradley failed to attend the November 7 hearing on the matter. .

On November 17, the Brozowskis joined with Kentucky attorney J. Boone Reed and moved the circuit court pursuant to CR 60.01 and 60.02 to vacate its order of dismissal, asserting that Bradley missed the hearing due to a clerical error. The Brozowskis further moved the court to reconsider Cook’s motion to admit Bradley pro hac vice, noting that Cook subsequently developed a conflict of interest. The circuit court denied the Brozowskis’ motion on January 7, 2004, citing SCR 3.030(2), local rule 5G, and CR 11. Ultimately, the circuit court found that the Brozowskis’ counsel did not present any evidence that would allow it to reconsider the dismissal under 60.02. This appeal from the circuit court’s judgment denying the Brozowskis’ Motion to Reconsider and Pro Hac Vice Admission followed.

Pursuant to CR 73.02, a party must appeal an order within 30 days of its entry, and a motion filed pursuant to CR 60.02 does not affect the running of the time for appeal. Thus, the Brozowskis’ February 5, 2004, notice of appeal was not timely filed from the circuit court’s November 7, 2003, dismissal of their complaint. However, the denial of relief under CR 60.02 itself is appealable, and the Bro-zowskis’ February 5 notice of appeal was timely filed from the January 7 denial of their motion for such relief.

The Brozowskis’ claims for CR 60.02 relief fall under subsections (a) and (f),- pertaining to “mistake, inadvertence, surprise or excusable neglect” or “any other reason of an extraordinary nature justifying relief.” Kentucky’s highest court has noted that

[t]he purpose of CR 60.02 is to bring before a court errors which (1) had not been put into issue or passed on, and (2) were unknown and could not have been known to the moving party by the exercise of reasonable diligence and in time to have been otherwise presented to the court.

Relief pursuant to CR 60.02 should only be granted in extraordinary situations, and the “[n]egligence of an attorney is imputable to the client and is not a ground for relief under ... CR 60.02(a) or (f).” Having reviewed all of the evidence, we do not believe that the circuit court abused its discretion in denying the Brozowskis’ CR 60.02 motion.

The Brozowskis nevertheless urge that their substantial compliance with SCR 3.030(2) compels a different conclusion. We disagree.

SCR 3.030(2) provides as follows:

A person admitted to practice in another state, but not in this state, shall be permitted to practice a case in this state only if that attorney subjects himself or herself to the jurisdiction and rules of the court governing professional conduct, pays a per case fee of $100.00 to the Kentucky Bar Association and engages a member of the association as co-counsel, whose presence shall be necessary at all trials and at other times when required by the court. No motion for permission to practice in any state court in this jurisdiction shall be granted without submission to the admitting court of a certification from the Kentucky Bar Association of receipt of this fee.

Moreover, the McCracken Circuit Court’s local rule 5G provides as follows:

Except for motions for summary judgment, no motion shall be filed without the tender of a proposed order in conformity therewith, excluding such orders that require findings of fact and conclusions of law. Such orders shall be by separate styled instruments and not on the same page as the motion in sufficient number for all parties.

Both of these rules use the mandatory directive “shall”, and there is no indication that the drafters intended anything less than absolute compliance. Thus, the Brozowskis’ substantial compliance is inadequate to fulfill the mandates of these rules.

Neither does Ward v. Housman compel a different result. In Ward, the circuit court granted summary judgment for the defendants and dismissed the plaintiffs’ complaint after the plaintiffs’ “failure to timely supply the name of an expert witness.” This court reversed, finding that the circuit court improperly sanctioned plaintiffs’ counsel under CR 56, that the court’s action instead amounted to an involuntary dismissal pursuant to CR 41.02(1), that dismissal was too harsh a sanction under this rule, and that the circuit court should consider alternate sanctions under the rule on remand.

Unlike the Ward case, the Brozowskis’ complaint was dismissed below because Bradley signed the complaint despite the fact that he was never admitted pro hac vice because he and Cook failed to follow the local rule requiring the tender of a proposed order with every motion. CR 11 provides in pertinent part as follows:

Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.... If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

The lack of a signature on a pleading is typically not a proper ground for dismissal. Rather, CR 11 provides that the remedy for “attacking such a deficient pleading ... is to have it stricken as sham and false.” When the pleading that is not signed is the complaint, however, striking the pleading has the practical effect bf ending the lawsuit, and dismissal is not improper. In any event, CR 60.02 relief “is not available for correction of an error or mistake of law by the court.”

The judgment of the McCracken Circuit Court is affirmed.

HENRY, Judge, concurs.

MILLER, Senior Judge, dissents.

      . The Brozowskis proffered CR 60.01 as a reason, for the circuit court to vacate its dismissal below and briefly mentioned it on appeal. Motions under this rule are used "to correct clerical errors, and may not be made to correct errors of law or relitigate a case." Prichard v. Bank Josephine, 723 S.W.2d 883, 885 (Ky.App.1987). The Brozowskis cannot gain any relief pursuant to CR 60.01, and the remainder of this opinion focuses on CR 60.02.

      . CR 73.02(l)(a).

      . See CR 73.02(1)(e).

      . Hackney v. Hackney, 327 S.W.2d 570, 571-72 (Ky.1959).

      . CR 60.02(a).

      . CR 60.02(f).

      . Young v. Edward Technology Group, Inc., 918 S.W.2d 229, 231 (Ky.App.1995).

      . Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky.1957).

      . Vanhook v. Stanford-Lincoln County Rescue Squad, Inc., 678 S.W.2d 797, 799 (Ky.App.1984).

      . Bethlehem Minerals Co. v. Church and Mullins Corp., 887 S.W.2d 327, 329 (Ky.1994).

      . KRS 446.010(29).

      . See generally Clark v. Riehl, 313 Ky. 142, 144, 230 S.W.2d 626, 627 (1950).

      . 809 S.W.2d 717 (Ky.App.1991).

      . Id. at 718.

      . Id. at 719-20.

      . Commonwealth Dept. of Highways v. Utley, 350 S.W.2d 698, 699 (Ky.1961) (internal citation omitted).

      . Id.

      . James v. Hillerich & Bradsby Co., 299 S.W.2d 92, 93 (Ky.1957).


source: Caselaw Access Project

author: WILLIAM RAY PRICE, JR., Judge. STEPHEN N. LIMBAUGH, JR., Judge, LAURA DENVIR STITH, Judge,

license: Public Domain

text:
    SIX FLAGS THEME PARKS, INC., Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 86519.
    Supreme Court of Missouri, En Banc.
    Nov. 22, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., James R. Layton, State Solicitor, Jefferson City, for Appellant.
    Edward F. Downey, Jefferson City, for Respondent.
   WILLIAM RAY PRICE, JR., Judge.

Petition for Review

I.

The Director of Revenue (Director) seeks review of the decision of the Administrative Hearing Commission (AHC) granting a refund of sales tax paid on fees collected by Six Flags Theme Parks, Inc. (Six Flags) on the rental of inner tubes. The inner tube rentals are not subject to Missouri sales tax, pursuant to Section 144.020.1(8), because sales or use tax was paid on the purchase of the inner tubes before they were rented to patrons. The AHC’s decision is affirmed.

II.

Six Flags is a Delaware corporation that operates a theme park (“the park”) in Eureka, Missouri. The park is a place of amusement containing rides, such as roller coasters and ferris wheels, and a water park area (“the water park”). Various rides in the water park require the use of an inner tube. Six Flags provides inner tubes for no charge at each ride for which an inner tube is required.

The water park also contains a wave pool. Patrons can, and often do, use the wave pool without an inner tube. Patrons may rent an inner tube for use in the wave pool. The free inner tubes and the rental inner tubes are the same, except in color.

Free inner tubes cannot be taken to the wave pool, but the rented inner tubes can be used on the rides that require an inner tube. Patrons using rented inner tubes on these other rides can avoid waiting in line to obtain a free inner tube.

Six Flags paid sales or use tax on all of its purchases of inner tubes used at the water park. Six Flags also paid sales or use tax on the fees charged for inner tube rentals during the period from June 2000 through September 2000. Six Flags filed a claim for a refund of the Missouri taxes paid on these rental fees pursuant to the double taxation avoidance provision of Section 144.020.1(8). The Director issued a final decision denying Six Flags’ claim for a refund. The AHC reversed the Director’s decision and granted a refund, relying on this Court’s decisions in Six Flags Theme Parks, Inc. v. Director of Revenue, 102 S.W.3d 526 (Mo. banc 2003), and Westwood Country Club v. Director of Revenue, 6 S.W.3d 885 (Mo. banc 1999). The Director appeals.

III.

“This Court has jurisdiction pursuant to Mo. Const, art. V, section 3 and reviews the AHC’s interpretation of revenue law de novo." Southwestern Bell v. Director of Revenue, 94 S.W.3d 388, 390 (Mo. banc 2002) (citations omitted). “This Court will uphold the AHC’s decision if authorized by law and supported by competent and substantial evidence upon the whole record.” Id. (internal quotations omitted).

IV.

Two statutes apply to this dispute. Section 144.020.1(2) levies “[a] tax equivalent to four percent of the amount paid for admission and seating accommodations, or fees paid to, or in any place of amusement.” Section 144.020.1(8) levies:

A tax equivalent to four percent of the amount paid or charged for rental or lease of tangible personal property, provided that if the lessor or renter of any tangible personal property had previously purchased the property under the conditions of “sale at retail” as defined in subdivision (8) of section 144.010 or leased or rented the property and the tax was paid at the time of purchase, lease or rental, the lessor, sublessor, renter or subrenter shall not apply or collect the tax on the subsequent lease, sublease, rental or subrental from that property.

The goal of statutory construction is to give effect to the legislature’s intent. Corvera Abatement Technologies v. Air Conservation Commission, 973 S.W.2d 851, 858 (Mo. banc 1998). When statutory language is “clear, unambiguous, and admits of only one meaning, there is no room for construction.” Id.

The plain, simple, and unambiguous terms of section 144.020.1(2), when read in isolation, would impose a tax upon the inner tube rentals, while the plain, simple, and unambiguous terms of section 144.020.1(8), when read in isolation, would not. This Court has previously addressed the interaction of these two sections for rentals or leases of property in places of amusement in Six Flags Theme Parks, Inc. v. Director of Revenue, 102 S.W.3d 526 (Mo. banc 2003), and Westwood Country Club v. Director of Revenue, 6 S.W.3d 885 (Mo. banc 1999). These cases hold “that section 144.020.1(8) is a more specific statute than section 144.020.1(2),” thus section 144.020.1(8) controls the situation when it is applicable. Westwood Country Club, 6 S.W.3d at 889; see also Six Flags Theme Parks, 102 S.W.3d at 529. A separate, but equally compelling rational that “the goal of taxing the property only once is met by not taxing the subsequent rental to customers” was also expressed. Id. at 530. This reading harmonizes the two sections and we reaffirm the holdings of these two cases.

V.

Blue Springs Bowl v. Spradling, 551 S.W.2d 596 (Mo. banc 1977), and Eighty Hundred Clayton Corp., d/b/a Tropicana Lanes v. Director of Revenue, 111 S.W.3d 409 (Mo. banc 2003) [hereinafter Tropicana Lanes], while similar, do not control this controversy. Blue Springs Bowl merely held that the “fees or charges paid for participating in the activity of bowling at a commercial bowling establishment” were included in the statutory language of section 144.020.1(2). 551 S.W.2d at 597, 602. The decision did not address the applicability of 144.020.1(8) to the rental of personal property.

Tropicana Lanes, refused to overrule Westwood Country Club and its progeny. It merely held that the doctrine of stare decisis required the application of Blue Springs Bowl to a controversy involving bowling shoes. 111 S.W.3d at 410-11. Tropicana Lanes is somewhat inconsistent with the eases that considered section 144.020.1(8). Westwood Country Club holds that fees paid to rent golf carts are not taxable and Six Flags Theme Parks holds that fees paid to rent arcade machines are not taxable. To some extent, fees charged for bowling shoes may be distinguished from fees charged for the rental of golf carts, arcade machines, or inner tubes. Bowling shoes are required to bowl. Id. at 410. Bowling shoes can also be brought from home, rather than rented from the bowling alley. Id. Golf carts are not required to play golf; arcade machines are not required to visit the Six Flags Theme Park; inner tubes are not required for the wave pool in Six Flags’ water park. Tropicana Lanes should be restricted to its facts.

VI.

The Director makes three other arguments, which we will address in turn.

A.

The Director argues that the use of these inner tubes was not a “rental or lease.” Webster’s provides that “rent” means “a piece of property that the owner allows another to use in exchange for a payment in services, kind or money.” Webster’s Third New International Dictionary 1923 (3d ed.1981). The Director argues that patrons did not obtain sufficient “use” to constitute a lease, because patrons did not obtain complete control over the inner tubes.

The fact that patrons could not remove the inner tubes from the water park or engage in any activity that they please with the rental inner tubes does not preclude a finding that they were rented. Patrons in Six Flags Theme Parks could not take the arcade games home with them, nor could guests of the golf course in Westwood Country Club drive their rented golf carts into the dining room of the country club. The patrons in all three of these controversies had sufficient possession, control, and use of the rented tangible personal property for which they paid a fee to constitute a rental or a lease.

B.

The Director argues that the “Boat and Outboard Motor” exception to section 144.020.1(8) shows a legislative intent that only boats and outboard motors be precluded from taxation under section 144.020.1(8). The Director’s argument is misguided, the “Boat and Outboard Motor” exception provides that:

In no event shall the rental or lease of boats and outboard motors be considered a sale, charge, or fee to, for or in places of amusement, entertainment or recreation nor shall any such rental or lease be subject to any tax imposed to, for, or in such places of amusement, entertainment or recreation. Rental and leased boats or outboard motors shall be taxed under the provisions of the sales tax laws as provided under such laws for motor vehicles and trailers.

This is not a situation for use of the maxim expressio unius est exclusio (or omissions shall be understood as exclusions), for that maxim “is to be used with great caution.” Pippins v. City of St. Louis, 823 S.W.2d 131, 133 (Mo.App.1992). The maxim should be invoked only when it would be natural to assume by a strong contrast that that which is omitted must have been intended for the opposite treatment. Springfield City Water Co. v. City of Springfield, 353 Mo. 445, 182 S.W.2d 613, 618 (1944). The “Boat and Outboard Motor” exception is merely intended to be sure that boats and outboard motors are taxed under the “laws for motor vehicles and trailers.” Section 144.020.1(8). The strong inference needed for the maxim expressio unius est exclusio is not present.

C.

Finally, the Director argues that Six Flags is not entitled to the refunded tax money because it was ultimately charged to its patrons. However, Missouri’s statutory scheme places the burden of remitting taxes to the Director on the seller. Section 144.021. Furthermore, we have long recognized the right of the seller to refunded tax money, even if the taxes were paid by the seller’s patrons. See e.g., Shelter Mutual Insurance Co. v. Director of Revenue, 107 S.W.3d 919 (Mo. banc 2003); Buchholz Mortuaries, Inc. v. Director of Revenue, 113 S.W.3d 192 (Mo. banc 2003); Galamet, Inc. v. Director of Revenue, 915 S.W.2d 331 (Mo. banc 1996). Any change in this scheme is for the legislature to make, not the courts.

VII.

For the foregoing reasons, the decision and judgement of the AHC is affirmed.

TEITELMAN, RUSSELL and WHITE, JJ., concur: LIMBAUGH, J., concurs in separate opinion filed.

LAURA DENVIR STITH, J., dissents in separate opinion filed; WOLFF, C.J., concurs in opinion of LAURA DENVIR STITH, J.

STEPHEN N. LIMBAUGH, JR., Judge,

concurring.

I concur in the outcome of the majority opinion and in all the analysis except that part that attempts to distinguish Eighty Hundred Clayton Corp., d/b/a Tropicana Lanes v. Director of Revenue, 111 S.W.3d 409 (Mo. banc 2003). I dissented in that case because I saw no principled distinction between the rental of bowling shoes in that case from the rental of golf carts in Westwood Country Club v. Director of Revenue, 6 S.W.3d 885 (Mo. banc 1999). Nor, for that matter, do I see any distinction between the rental of bowling shoes and the rental of arcade games in Six Flags Theme Parks, Inc. v. Director of Revenue, 102 S.W.3d 526 (Mo. banc 2003). The case at hand is no different: there is no way to distinguish between the rental of inner tubes from the rental of bowling shoes, golf carts, or video games.

LAURA DENVIR STITH, Judge,

dissenting.

I would reverse the decision of the Administrative Hearing Commission (AHC) granting a refund of sales tax paid on fees collected by Six Flags Theme Parks, Inc. (Six Flags) on the rental of inner tubes. I would hold that the proceeds of the inner tube rentals are subject to Missouri sales tax pursuant to section 144.020.1(2), because they constitute “fees paid to, or in any place of amusement, entertainment or recreation, games, and athletic events.”

As the principal opinion notes, Six Flags is a place of amusement. It contains various water rides, some of which permit use of an inner tube that Six Flags provides without charge. One ride, however, the wave pool, requires patrons to pay a fee in order to obtain a special inner tube that is the only type of tube that can be used in the wave pool. Six Flags collected tax from its patrons on the fees it charged them to use the special inner tubes during the period in question. It now seeks a refund of those taxes, alleging that because it had initially paid a tax on its original purchase of the inner tubes, it is excused from paying tax on the fees it charged its patrons for using the tubes.

In support, Six Flags cites, and the majority relies on, the portion of section 144.020.1(8) that states:

A tax equivalent to four percent of the amount paid or charged for rental or lease of tangible personal property, provided that if the lessor or renter of any tangible personal property had previously purchased the property under the conditions of “sale at retail” as defined in subdivision (8) of section 144.010 or leased or rented the property and the tax was paid at the time of purchase, lease or rental, the lessor, sublessor, renter or subrenter shall not apply or collect the tax on the subsequent lease, sublease, rental or subrental receipts from that property.

Id. I agree with the principal opinion that Six Flags would not owe tax on the fees it collects from its patrons from use of the tubes if only this portion of section 144.020.1(8) were considered and assuming for present purposes that Six Flags is considered to have rented or leased the tubes to its patrons (rather than merely licensing the patrons to use them). See Six Flags Theme Parks, Inc. v. Dir. of Revenue, 102 S.W.2d 526, 582-88 (Six Flags I) (Wolff, J., dissenting).

However, this portion of section 144.020.1(8) cannot be read in isolation. As the principal opinion recognizes, section 144.020.1(2) on its face requires that a tax be paid on the sums collected for the inner tubes, because it levies “[a] tax equivalent to four percent of the amount paid for admission and seating accommodations, or fees paid to, or in any place of amusement. ...” Id.

The principal opinion holds that such taxes are nonetheless not required to be paid because section 144.020.1(2) conflicts with section 144.020.1(8), in that one requires payment of a tax, and the other does not. Therefore, the principal opinion states, this Court should apply the more “specific” of the two statutory sections, which the principal opinion would hold is section 144.020.1(8). Accord, Six Flags I, 102 S.W.3d at 529-30; Westwood Country Club v. Dir. of Revenue, 6 S.W.3d 885, 889 (Mo. banc 1999). This reasoning is incorrect for multiple reasons.

First, here the issue is the taxability of fees paid in and to a place of amusement for use of an inner tube. Section 144.020.1(2), which addresses the taxability of fees paid in or to places of amusement, is clearly more specifically applicable to this transaction than is section 144.020.1(8), which applies to all rentals or leases of tangible personal property. Accord, Six Flags I, 102 S.W.3d at 534 (Wolff, J., dissenting).

Even more basically, however, there simply is no conflict between the two sections. One imposes a tax on fees paid in or to places of amusement. The other imposes a tax on rentals and leases of personal property. Where personal property is rented or leased in a place of amusement, then the taxes set out in the two sections will overlap. The fact that the taxes may overlap does not mean they are in conflict. They would be in conflict only if one section said that transactions subject to both sections were taxable, and the other section said that transactions subject to both transactions were not taxable. Then, truly, they would be inconsistent and this Court would have to apply one or the other using principles of statutory construction.

Here, however, there is no conflict. That is, while section 144.020.1(2) specifically makes the fees paid for the inner tubes taxable, section 144.020.1(8) does not state that these fees are not subject to tax. It simply does not also make them taxable as rentals or leases. Thus, the two statutes can be harmonized by holding that the inner tube fees are taxable as fees paid to or in a place of amusement under section 144.020.1(2). As noted in J.B. Vending Co., Inc. v. Dir. of Revenue, 54 S.W.3d 183, 189 n. 2 (Mo. banc 2001), only when such harmonization is not possible will the court resort to the rule concerning application of the more specific of two conflicting statutes. Accord, Six Flags I, 102 S.W.3d at 534 (Wolff, J., dissenting).

The wording of the remainder of section 144.020.1(8) itself supports this manner of harmonizing the two statutes. After authorizing a tax on rentals and leases unless tax has previously been paid when the rented or leased item was purchased, section 144.020.1(8) goes on to provide a specific exemption from such taxation for the rental of “motor vehicles, trailers, boats and outboard motors.” If section 144.020.1(8) trumped other sections, then this is all that would need to be stated in order to avoid imposition of a tax on rentals or leases of such items. . The statute nonetheless goes on to state that, “In no event shall the rental or lease of boats and outboard motors be considered a sale, charge, or fee to, for or in places of amusement, entertainment or recreation nor shall any such rental or lease be subject to any tax imposed to, for, or in such places of amusement, entertainment or recreation ....” Id.

In other words, in addition to stating that sales of boats and outboard motors shall not be taxed as rentals, the legislature went on to state that neither shall they be taxed as a fee paid to or in such a place of amusement, i.e., nor shall they be subject to the tax imposed under section 144.020.1(2). Of course, the latter language would have no purpose, and would add nothing to the statute, unless, absent it, a tax would be collected on the fees charged for use of boats or motors in places of amusement.

The legislature is presumed not to have intended a pointless act and all of its words must be given meaning and effect. See, e.g., Blue Springs Bowl v. Spradling, 551 S.W.2d 596, 599 (Mo. banc 1977) (by stating that tax is due for all fees paid to or in a place of amusement the legislature is presumed to have meant what it said and each word must be given meaning). Therefore, since the legislature specifically exempted the fees paid for boats and outboard motors in places of amusement from being taxed, it follows that it did not exempt fees paid for the use of other items, such as the inner tubes in question here, from being taxed under section 144.020.1(2), under the maxim expressio unius est exclusio alterius.

The principal opinion recognizes this principle, but says that it should not apply here for the legislature probably merely wanted to be sure that boats and outboard motors were taxed only under sections 144.090 and 144.440. The latter purpose was accomplished by the preceding phrase stating that boats and outboard motors would be taxed under those statutes, however. There was no need to go on and list the various statutes under which boats and motors would not be taxed, and of course the list of statutes under which boats and motors are not taxed is long indeed.

Section 144.020.1(8) specifically says that rentals of boats and motors shall not be subject to tax as a fee paid to a place of amusement because absent such a specific exemption such fees would be subject to tax under section 144.020.1(2) on that basis. Section 144.020.1(8) does not list an inner tube as being exempt from the tax otherwise applicable under section 144.020.1(2) for fees paid in places of public amusement, however. It fails to do so even though an inner tube, like a boat, is something that is used to propel a person in water and for which a fee may be paid at a place of amusement. Boats and outboard motors are not subject to tax under section 144.020.1(2), but inner tubes are.

So holding would be consistent with this Court’s rulings in Blue Springs Bowl, 551 S.W.2d at 599; Eighty Hundred Clayton Corp., d/b/a Tropicana Lanes v. Dir. of Revenue, 111 S.W.3d 409, 410-11 (Mo. banc 2003); and Bally’s LeMan’s Family Fun Centers, Inc. v. Dir. of Revenue, 745 S.W.2d 683, 684 (Mo. banc 1988). To the extent that Westwood Country Club and Six Flags 1 hold to the contrary, they are incorrect and should be overruled.

      . All statutory references are to RSMo 2000.

      . The Director’s argument focuses on the fact that patrons could not remove the inner tubes from the water park or use them on certain rides in the water park.

      . All statutory references are to RSMo 2000.

      . Moreover, to the extent Six Flags is essentially asking for the last part of section 144.020.1(8) to be construed as an exemption, ambiguities as to an exemption from tax are to be strictly construed against the taxpayer. Branson Props. USA, L.P. v. Dir. of Revenue, 110 S.W.3d 824, 825 (Mo. banc 2003); Dir. of Revenue v. Armco, Inc., 787 S.W.2d 722, 724 (Mo. banc 1990); Spudich v. Dir. of Revenue, 745 S.W.2d 677, 682 (Mo. banc 1988).

      . See also Jones v. Dir. of Revenue, 832 S.W.2d 516, 517 (Mo. banc 1992) (statutory construction requires that words be given their plain and ordinary meaning); Staley v. Missouri Dir. of Revenue, 623 S.W.2d 246, 250 (Mo. banc 1981) ("[a]ll provisions of a statute must be harmonized and every word, clause, sentence, and section thereof must be given some meaning”); Kilbane v. Dir. of Dep't of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976) (legislative changes should not be construed as to have accomplished nothing and to have been useless); Gross v. Merchants-Produce Bank, 390 S.W.2d 591, 597 (Mo.App.K.C.1965) ("legislatures are not presumed to have intended a useless act”).

      . Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713 (Mo.1965) (when a statute enumerates certain subjects on which it operates, or forbids certain things, "it is to be construed as excluding from its effect all those not expressly mentioned”); State ex rel. O'Bannon v. Cole, 220 Mo. 697, 119 S.W. 424, 428-29 (banc 1909) (the maxim is to be applied with the sole purpose of determining "whether or not the legislative body intended by mentioning one thing to exclude all others").


author: ROBERT G. ULRICH, Judge.

text:
    STATE of Missouri, Respondent, v. Henry DANIELS, Appellant.
    No. WD 63642.
    Missouri Court of Appeals, Western District.
    Oct. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.

      Kent E. Gipson, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.

      Before EDWIN H. SMITH, C.J., ROBERT G. ULRICH and PATRICIA . BRECKENRIDGE JJ.
   ROBERT G. ULRICH, Judge.

Henry Daniels appeals his conviction following jury trial for the class A felony of murder in the second degree. Mr. Daniels was sentenced as a persistent offender to twenty-five' years imprisonment for the death of Linda Smith. In this direct appeal, Mr. Daniels contends (1) that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to prove beyond a reasonable doubt that a murder had occurred or that the defendant had committed it. Mr. Daniels further contends that the trial court erred in (2) overruling his motion to suppress his statements to investigating detectives; (3) overruling his pre-trial motions to preclude evidence of luminol testing; (4) overruling his objection to hearsay statements; and (5) precluding evidence of alternative perpetrators.

The judgment of conviction is reversed, and the case is remanded for a new trial with directions.

Facts

Linda Smith was first reported missing on Wednesday, June 11, 1997. That same day, Ms. Smith’s car was found abandoned near the Missouri River at 205 Holmes, Kansas City, Missouri. Her purse was found inside the vehicle without money- or credit cards. Her dismembered torso was discovered in the Missouri River on June 19, -1997, approximately 150 feet to the east of the Chouteau Bridge. Her head, arms, and legs had been severed, though the cause of death was listed as “undetermined violence.” Investigation ensued, and Mr. Daniels was ultimately charged with second-degree murder in the death of Ms. Smith, tried, and convicted.

Viewed in the light most favorable to the verdict, the evidence adduced at trial revealed' the following information about Ms. Smith’s death. Donald Smith, Ms. Smith’s ex-husband and the father of two of her three children, received a telephone call on Tuesday, June 10, from Annie Rogers, the woman who babysat Ms. Smith’s three children. Ms. Rogers told Mr. Smith that Mr. Daniels had left Ms. Smith’s children with her that day and had not returned for them. Mr. Daniels had also brought the children to Ms. Rogers the preceding morning of Monday, June 9, and returned for them the same evening. Mr. Smith told Ms. Rogers to call again if Ms. Smith did not come, for the children, and he proceeded to his place of employment where he worked nights. Mr. Smith testified that Ms. Rogers called him again at approximately 8:00 a.m. Wednesday morning, June 11, after he had arrived home.

After speaking to Ms. Rogers, Mr. Smith contacted Mr. Daniels by telephone. Mr. Daniels had been dating Ms. Smith, for approximately four years. Ms. Smith lived in a house in Kansas City that was owned by Mr. Daniels, for which she paid no rent, and, she and her children frequented Mr. Daniels’ home, another house located in Kansas City. In this initial conversation with Mr. Smith, Mr. Daniels said that he had not seen Ms. Smith since she left his home Sunday night, June 8, and that this was not the first time she had disappeared for a day or two. Mr. Smith made arrangements for Mr. Daniels to provide a key to permit his entry into Ms. Smith’s home.

Mr. Smith acquired the three children from Ms. Rogers and retrieved the key to Ms. Smith’s house. When he entered Ms. Smith’s house, Mr. Smith observed that the residence was in a very dirty condition, and it appeared that Ms. Smith had not been there for some time. Mr. Smith retrieved clothing and medication for the children; Ms. Smith’s work identification (ID) needed for her employment at UPS; and letters apparently sent to her by a man named Chris Van Perkins, stated to have then been incarcerated with the Missouri Department of Corrections.

Mr. Smith spoke several times with Mr. Daniels over the next five or six days. The first time was Wednesday morning, June 11, when Mr. Smith telephoned Mr. Daniels immediately after Ms. Rogers telephoned him to say that Ms. Smith had not yet obtained her children from Ms. Rogers. Mr. Daniels had brought the children to Ms. Rogers Tuesday morning, June 10. Throughout these conversations, Mr. Smith testified that Mr. Daniels told him differing accounts of the last time he saw Ms. Smith. In one conversation, Mr. Daniels said that he had last seen her when he entered the bedroom, leaving her in the den. Another time he said that he saw her on Monday morning, June 9, and that she had left the house while he was sick in bed. During another conversation, Mr. Daniels said that he last saw Ms. Smith inside the house when he left with the children to take them to Ms. Rogers.

Mr. Daniels volunteered to Mr. Smith throughout these conversations that he had given Ms. Smith various sums of money in the days prior to her disappearance. Mr. Smith testified that he recalled being told of amounts that totaled more than a thousand dollars. Mr. Daniels neither indicated to Mr. Smith that he had reported Ms. Smith missing nor that he intended to. Mr. Daniels did not report Ms. Smith missing. She was reported missing by her parents after discussing her disappearance with Mr. Smith.

In a conversation with Wayne Wiley, Ms. Smith’s stepfather, Mr. Daniels said that the last time he saw Ms. Smith was Monday morning, June 9. Mr. Daniels said that he saw her in her car while he was in his own car with her children. He said that Ms. Smith told him she was going to work and to the beauty parlor after work. Mr. Daniels repeated this version of events again to Mr. Wiley at a later date. The owner of the beauty parlor frequented by Ms. Smith testified that his business and most beauty parlors in the city close on Mondays.

Adrian Smith, Ms. Smith’s son, was ten years old when his mother disappeared and sixteen years old when he testified at trial. He testified that Ms. Smith, he, and her other children had spent the Sunday night prior to her disappearance at Mr. Daniel’s home. The children and Ms. Smith had slept at Mr. Daniels’ home as many as three or four times a week during the several weeks preceding Ms. Smith’s disappearance. Ms. Smith and Mr. Daniels had slept in the den the night of June 9. Adrian Smith testified that Sunday evening was the last time he saw his mother and that Mr. Daniels took the children to Ms. Rogers’ home the next morning. Early Monday morning when Adrian’s two siblings asked Mr. Daniels where their mother was, Mr. Daniels told the children that she had left the house. Adrian observed that Ms. Smith’s ear was then parked in front of the house, however. Adrian also testified that his mother’s vehicle had been parked in the driveway of the house the evening of June 9. The vehicle was found on June 11 in the River Market area of Kansas City. Adrian said that Mr. Daniels acquired the children from the babysitter Monday afternoon. At trial, Adrian’s earlier deposition testimony was that he and the other children were taken by Mr. Daniels’ to his home but were told to stay out of the den. At trial, Adrian could not recall giving this deposition testimony and stated that the children were told to wait in the car while Mr. Daniels went into his house for a moment.

Monday evening, June 9, at approximately 8:00 p.m., Mr. Daniels contacted Anna Dameron. He told Ms. Dameron that he would need her help with something. She agreed to assist him, and Mr. Daniels said that he would call back within an hour. Mr. Daniels called again at around 10:15 or 10:30, at which time he asked Ms. Dameron to meet him at the overpass near the Flamingo casino, which was near her home, and to provide him transportation. Ms. Dameron stated that she was initially reluctant to assist Mr. Daniels, but she was persuaded when he assured her that he would assist her in the future. Ms. Dameron went to the location, where she waited for Mr. Daniels for 30 to 45 minutes.

When Mr. Daniels finally arrived at her car, he was wearing a brown jacket, blue shirt and pants, and tennis shoes. Mr. Daniels had dried mud on his pants and shoes, and a “real foul odor” about him. Mr. Daniels then asked Ms. Dameron to take him to his car, which was parked at a Country Mart on 31st and Prospect Streets in Kansas City, Missouri. Mr. Daniels fell asleep during the drive, which took about fifteen or twenty minutes, and he said nothing about why he was at the casino or what he had been doing. Ms. Dameron left him at his car, and upon exiting her vehicle, Mr. Daniels stated that he would remember her in his will.

Wednesday, June 11, Mr. Daniels was seen in the area of Admiral Boulevard and Paseo between 1:00 and 2:30 in the afternoon. Mattie Kyles, a co-worker of Mr. Daniels, was driving in the area when she heard someone call her name. She stopped her car, and Mr. Daniels approached the vehicle. He asked her if she would give him a ride to the Flamingo Casino, which she did. Ms. Kyles teased Mr. Daniels about gambling in the middle of the workday, and Mr. Daniels responded that his car had broken down at the casino when he and Ms. Smith had been there “the other night.” Ms. Kyles did not know which night or ear he was referring to. Ms. Kyles drove Mr. Daniels to the casino but was not aware of what he did afterwards.

Detectives Cline and Clough, Kansas City Police, interviewed Mr. Daniels on June 19, 1997. Although this was the same day that Ms. Smith’s body was recovered, her body had not yet been identified. The two detectives interviewed Mr. Daniels in the security office at the Western Missouri Mental Health Center, his place of employment. Mr. Daniels told the detectives that he had last seen Ms. Smith at his house on Monday, June 9, and that she was upstairs with the children while he was downstairs. He said that Ms. Smith was going to work that morning and to a hair appointment later in the day. Mr. Daniels also stated to the detectives that Ms. Smith would sometimes disappear for periods of twenty-four to forty-eight hours. Both detectives reflected that Mr. Daniels did not seem concerned that Ms. Smith was missing, although she had been missing for ten days.

Mr. Daniels was asked about his work schedule, and he told the detectives that he had called his place of employment and stated that he was ill and would not report for work on Monday, June 9, but he worked the next two days. Mr. Daniels communicated that he worked from 9:00 a.m.-5:00 p.m. on Wednesday, June 11. Mr. Daniel’s work records confirmed that he did not work on Monday, June 9, because he reported that he was sick.

During this conversation with the police detectives, Mr. Daniels consented to their search of the house where Ms. Smith lived but not to searches of his house or the Dodge Neon that he had leased for her. The police obtained warrants to search Mr. Daniels’ house and car and the Dodge Neon (Ms. Smith’s car). The warrants were executed on June 19.

Luminol detects the presence of iron and is used by law enforcement authorities as a precursor test to determine the presence of blood. Luminol tests were performed on locations within Mr. Daniels’ house and on portions of both Mr. Daniels’ and Ms. Smith’s cars. Positive reactions to luminol were detected on the floor mats of Mr. Daniels’ car, the back rear seat of Ms. Smith’s car, and in different locations throughout Mr. Daniels’ home. The carpeting in the den area of the house appeared newer to police than the rest of the carpeting within the house. This carpeting was removed, and the area below the carpeting tested positive when luminol was applied. Records from an area carpet store reflect that Mr. Daniels purchased carpeting on Thursday, June 12. Positive reactions also resulted from luminol testing of the sofa in the den, on the carpet in the dining room, and in the kitchen. Samples were taken from each of the areas that reacted positive to luminol testing.

Various cleaning supplies were found in Mr. Daniels’ home and in the trunk of Ms. Smith’s car. The mini-blinds in the den of the house appeared newer than a box of mini-blinds found in the house. A receipt on the box indicated that mini-blinds had been purchased on Thursday, June 12. Two credit cards, each issued to Linda C. Daniels, were found at Mr. Daniels’ home, and a plastic bag containing $1,300 was found in the rafters of the basement. Tire marks were discovered in the back yard of the house. The police recovered a piece of carpeting that could have been older carpet removed from the den. The police seized two hacksaws, a circular saw, and a chainsaw from Mr. Daniels’ basement. Various cleaning supplies were also seized from Mr. Daniels’ home along with pieces of furniture.

Laboratory tests to scientifically prove the presence of blood were performed on some of the samples seized by the police that had reacted positive to luminol. Chief Police Criminalist in the Trace Evidence Section, Kansas City, Missouri, Police Department Crime Laboratory and supervisor of the Chemistry Section of the Laboratory Frank Booth testified for the defense that all of the laboratory tests conducted at the Police laboratory on the samples tested proved- negative for the presence of blood. He said that no blood was present in the samples. All of the untested remaining samples taken from the' several locations were inadvertently destroyed by the police and were never tested. Mr. Booth further testified that his investigation of Mr. Daniels’ home using Hemastix on areas of the floor where the luminol had tested positive caused him to conclude that no blood was present in those locations except for three areas, which were later proven not to be blood by scientific laboratory testing. (The testimony regarding the luminol is developed more fully below.)

The jury found Mr. Daniels guilty of second-degree murder, and judgment was entered. This appeal followed.

Points on Appeal

Mr. Daniels claims as his first point on appeal that the evidence presented at trial was insufficient to sustain a conviction, and the trial court erred in overruling his motion for acquittal at the close of all the evidence. Mr. Daniels asserts four additional points, each.of which alleges an error in the admission of evidence. Only the third of the four additional points is considered because, of the four evidentiary issues, it is dispositive.

I. Luminol Evidence

In his third point on appeal, Mr. Daniels asserts that the trial court improperly allowed the State to present as evidence the positive test results obtained when luminol was sprayed in areas of his house and in the cars that he and Ms. Smith owned. No confirming tests for the presence of blood were presented at trial, and Mr. Daniels claims, therefore, that the positive luminol tests were improperly admitted because luminol testing is only scientifically valid as a preliminary test to show that blood may be present and is not scientifically conclusive. The essence of Mr. Daniel’s claim is that the introduction of the - luminol tests conducted in this case, none of which was corroborated by scientific laboratory testing, effectively represented that the positive test results proved that blood was present in the areas tested. He claims the pre-trial Frye hearing that he requested, which was denied, would have demonstrated that the evidence of the positive luminol tests, without subsequent conclusive scientific laboratory testing, were not scientific evidence proving the presence of blood, would have failed the Frye test, and would have been deemed inadmissible. Mr. Daniels claims that when the trial court did not grant him a Frye hearing as he requested, yet permitted the introduction as evidence of positive luminol tests despite the absence of confirming scientific test evidence that blood was present, the Frye standard was violated, and his right to a fair trial was prejudiced.

Standard of Review

A trial court has broad discretion to admit or exclude evidence at trial. State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). This standard of review compels the reversal of a trial court’s ruling on the admission of evidence only if the court has clearly abused its discretion. Id. In determining whether the trial court abused its discretion, the applicable test for admission of expert testimony is considered. Despite application of the test for admission of expert testimony in civil cases articulated by section 490.065, RSMo 2000, and discussed in State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 160 (Mo. banc 2003),

Missouri courts, in criminal cases, still follow the test articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for the admission of scientific evidence. See Butler v. State, 108 S.W.3d 18, 26 (Mo.App. W.D.2003). To admit the testimony of an expert witness or the results of scientific procedures in a criminal case, “the testimony must be based on scientific principles that are generally accepted in the relevant scientific community.” Id. (quoting Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993)). See also State v. Davis, 814 S.W.2d 593, 600 (Mo. banc 1991), cert. denied, 502 U.S. 1047, 112 S.Ct. 911, 116 L.Ed.2d 812 (1992). Whether a procedure has gained acceptance in the relevant field and is admissible scientific evidence is established in a Frye hearing— that is a hearing held outside of the presence of the jury. State v. Salmon, 89 S.W.3d 540, 543 (Mo.App. W.D.2002).

Discussion

Mr. Daniels first raised an objection to the State’s presenting as evidence the positive luminol test results in a motion in limine, which the court took under advisement and then overruled without explanation. Mr. Daniels then requested a Frye hearing on the issue of whether the lumi-nol evidence scientifically proved the presence of blood, which the trial court also refused. Before each of the two investigating crime scene technicians testified about their use of luminol in Mr. Daniels’ house and two vehicles, Mr. Daniels renewed his objection, properly preserving for appeal his objections.

At trial, the two Crime-Scene Technicians (CST) who used luminol at the various places of investigation testified about the luminol test results. The State first presented the testimony of Kansas City Police Department CST Sam Willins, who executed the January 19, 1997, warrant allowing the search of Mr. Daniels’ and Ms. Smith’s cars. As described by CST Willins, “[l]uminol is a chemical that responds to blood. And you can’t wipe enough blood up to get where luminol won’t find it. You can clean an area a million times or years later [sic]. If blood was there, luminol will find it.” CST Wil-lins, when further questioned, clarified that luminol is a “presumptive test” for blood and that scientific testing in a laboratory is required to confirm the presence of blood. CST Willins testified that lumi-nol luminesces when it contacts blood and conclusively establishes the absence of blood when it does not luminesce.

Police investigators obtained no positive scientific confirmatory test results for the presence of any blood, human or otherwise, on any of the items that tested positive when luminol was applied. Although some of the items that tested positive when luminol was applied were tested in a laboratory using scientific tests, not all of the items were tested. The positive lumi-nol test items removed from Mr. Daniels’ house that were tested in the laboratory proved scientifically to not be blood. No confirmatory tests were ever performed on any of the items seized from Mr. Daniels’ and Ms. Smith’s vehicles. Yet, CST Wil-lins was permitted to testify that positive luminol reactions were found on the “whole interior” of Mr. Daniels’ car, most notably on the floor mats, as well as in several areas of his house, including the kitchen, hallway, and den. Positive luminol reactions were identified in the “rear interior,” the back seat, and the trunk of Ms. Smith’s car. CST Willins then testified that various cleaning supplies were located within the trunk, along with miscellaneous papers that were seized for further testing.- He acknowledged that no hemastix tests were ever performed on the two automobiles. CST Willins acknowledged during cross-examination that luminol does not conclusively demonstrate the presence of blood. He testified that he had not taken photographs of the areas tested; and he had no recollection of the size, pattern, or specific location of the areas that tested positive when luminol was applied.

The State also presented the testimony of the second crime scene technician, CST Diane Lutman, who conducted the initial luminol testing at Mr. Daniels’ home. CST Lutman had worked as a crime, scene technician for “almost 13 years,” and had used luminol in the field “a hundred times or more.” CST Lutman testified that lu-minol is generally accepted as a presumptive test for the presence- of blood. She then testified that positive luminol reactions occurred on the floor' of the den of Mr. Daniels’ home, on the underside of the carpeting, on the sofa, chair, and footstool of the same room. Positive luminol results were also found in the dining room and kitchen. For each of these rooms,' CST Lutman testified that the luminol tested positive “for blood.” Whén asked to clarify her conclusion that the luminol tested positive for blood, CST Lutman explained, “I wasn’t positively sure, but I was relatively sure.” Despite the necessity for scientific laboratory testing to confirm the presence of blood, CST Lutman explained that she took no confirmatory samples from any of the floors and that only carpet fibers were taken from the den for laboratory testing.

Each of the two testifying CSTs acknowledged that their expertise was limited to application of luminol and that neither was qualified to testify about the scientific certainty of luminol testing confirming the presence of blood. Each of the technicians also testified that Frank Booth, Chief Criminalist of the Trace Evidence. Section of the Kansas City, Missouri, Police Department Crime Laboratory, is an expert regarding the scientific confirmatory laboratory tests used to prove the presence of human blood.

Chief Criminalist Frank Booth was the only scientific expert to testify about confirmatory laboratory tests used to prove the presence of human blood at a crime scene. Mr. Booth was called by the defense. When asked to explain the concept of presumptive testing for blood, Mr. Booth responded:

[Presumptive tests are things that react with blood. But they also react with' other things. It’s not selective to blood. But since you can get a reaction with this presumptive test, you know blood is one of the things it could be. There’s a number of kinds of tests ...
Luminol is also a presumptive test for blood. What happens if you have a room full of darkness, in the dark, and you spray luminol over an area that has blood in it, it will react with the blood and produce a blue light. So I can see now I have got an area that is emanating this light. And I know that that area is something I need to investigate.
Other things also react with luminol. It’s actually reacting with the iron that’s in the blood. That’s what is reacting. That is what is causing the reaction. But bleach will react with luminol and it doesn’t have any iron in it. But the reaction is different. It’s kind of a bright light. It’s kind of a flashy kind of reaction. That’s positive. But it’s different from what you see with blood. If you’re experienced at spraying luminol on a scene, you would be able to differentiate that kind of a reaction.

Mr. Booth was further asked if luminol could be utilized to conclusively determine the presence of blood, and he replied, “I would say no; more testing would have to be done. And you’d have to take into account also the pattern.” Mr. Booth described the actual forensic operating procedure differently from the earlier crime scene technicians, stating that ordinarily two presumptive tests are required during field investigations before a conclusive laboratory test is conducted — the positive reaction to luminol as well as a positive reaction to hemastix. Mr. Booth described hemastix as a medical product used to detect blood in urine that is also widely used as a forensic tool. He said that to “presume” blood is present, crime scene technicians do a secondary hemastix test to areas that have tested in the luminol test. He asserted that only when both tests are positive is evidence presumed to be blood, and even then no scientific conclusions can be reached definitely indicating that blood is present. According to Mr. Booth, a scientific conclusion that blood is present where luminol has reacted positively requires scientific laboratory-testing confirmation, and luminol testing without appropriate confirmation does not conclusively determine the presence of blood. Thus, Mr. Booth’s testimony is that luminol is a chemiluminescent (gives off light via a chemical reaction) when it contacts iron. The iron in hemoglobin, the oxygen-carrying protein in red-blood cells, causes luminol to luminesce. Luminol reacts to other metals, paints, cleaning products, bleach, and plant matter, also, however. Luminol’s reaction to each differs in intensity. Luminol’s value is that it shows investigators where blood might be. Other tests are required to verify that the substance is blood and that the blood is human blood.

When the court considered before trial both the motion in limine and the motion for a Frye hearing, the State argued that luminol testing was widely accepted in the scientific communities as a preliminary test for the presence of blood. The court permitted introduction of the positive lumi-nol test results. The testimony of the two crime scene technicians and Chief Crimi-nalist Frank Booth substantiated that lu-minol testing is an initial test in determining the presence of blood. Mr. Booth, the only expert who testified regarding scientific laboratory testing to prove whether blood was present in any samples submitted, testified that luminol testing is preliminary only, and it is not administered to prove scientifically the presence of blood. Rather, he claimed that additional laboratory testing is required to make that conclusion. While a negative luminol test demonstrates the absence of blood, a positive luminol test indicates that blood may be present, and additional testing is required. No Missouri cases assert that lu-minol testing meets the Frye test when offered as conclusive proof of the presence of blood. Therefore, while positive luminol test results may satisfy Frye if offered only for the limited purpose of being a preliminary test for the presence of blood when additional scientific tests confirm the presence of blood, certainly a Frye hearing is necessary to determine whether a positive luminol reaction conclusively proves the presence of blood without scientifically accepted corroborative evidence.

In this case, the State introduced evidence through the testimony of CST Willins and CST Lutman that luminol tests were positive in Mr. Daniels’ house and in his and Ms. Smith’s cars for the presence of blood. No subsequent scientific tests were introduced to corroborate -the luminol test because several of the items removed from the various scenes were lost or misplaced by the police, and the items tested in the laboratory proved that blood' was not present. Despite the acknowledgments of CST Willins and CST Lutman that lumi-nol is only a preliminary test to show that blood may be present, both CSTs were allowed to opine that the positive luminol test results of items in Mr. Daniels’ home, his car, and Ms. Smith’s vehicle indicated that -blood was present. Introduction of this evidence could only have been offered to persuade the jury that blood was present, that it was the victim’s, and that the volume and the pattern that tested positive were evidence of the defendant’s guilt. Thus, the introduction of the luminol tests without corroborative test results implied to the jury that Ms. Smith’s blood was present at the locations tested. Introduction of .the positive luminol tests were offered to effectively prove the presence of human blood without first conducting a Frye hearing to determine whether such evidence satisfied the-Frye test and constituted an abuse of discretion and error that prejudiced Mr. Daniels.

The State further compounded the prejudice by commenting in its closing argument that the several positive luminol test results were proof that blood was present in Mr. Daniels’ house and his and Ms. Smith’s cars, the natural implication being that the blood was Ms. Smith’s. The trial court had admonished the prosecutor before closing argument to restrict his comments from exceeding what the positive luminol tests proved. Yet, the prosecuting attorney said: . • ■

Mr. Booth can certainly tell you that from the few carpet fiber samples that he took in that one small area of a long stretch of carpeting in the dining room, he saw no particles of blood microscopically.
But he can’t tell you that there is no blood or was no blood in the defendant’s house because he can’t tell you that there are no atoms of blood present. Atoms are smaller than the particles he can see under the microscope. He can’t see the atoms but the luminol is so sensitive that it can show us the blood atoms that are present or were present after a surface has been cleaned. Mr. Booth, Sam Willins, and Diane Lutman all told you how sensitive luminol is. You learned from Mr. Booth that the atoms of iron in blood can be realized by using luminol where a microscope cannot.
They all told you that blood can be cleaned away, but you can’t hide from luminol, whether it be blood on a surface like this or blood on a surface like carpeting. It.can be cleaned away such that, particles are gone. But the smaller, undetectable, microscopically undetectable atoms are still present and those react to luminol ...
' Now lastly, Mr. Booth told you that he didn’t think it was a crime' scene because he found no blood. That’s just plain ridiculous. It’s more likely than not that what the luminescence reveals is blood. But if there is no blood at the defendant’s house, it’s very plausible that it had all been washed away with the cleaning chemicals and supplies that he had at his house, (emphasis added)

Reasonable inference from the State’s closing argument is that the luminol testing in this case is not simply a presumptive test to-determine that blood may be present; it is a conclusive test demonstrating the presence of Ms. Smith’s blood. Introduction of the positive luminol tests without a Frye hearing as Mr. Daniels requested to determine the scientific viability of a positive luminol test without confirming scientific testing as proof of the presence of blood was prejudicial. Indeed, the few laboratory tests conducted on items that had responded positively to luminol proved to a scientific certainty that blood was not present. And the State’s closing argument effectively encouraging the jury to rely on the presumptive positive luminol tests as proof for the presence of blood and to disregard the evidence that the conclusory laboratory tests proved scientifically the absence of blood exacerbated the errant and prejudicial introduction of the positive luminol test results. The only rational purpose for the introduction of the uncorroborated luminol tests and in presenting the argument made by the State was to persuade the jury that the tests demonstrated Ms. Smith’s blood was present in Mr. Daniels’ house and in his and her vehicles in quantities and in a pattern that demonstrated Mr. Daniels’ guilt in Ms. Smith’s murder.

The evidence of the positive luminol tests absent confirmatory scientific testing without satisfying Frye that a positive lu-minol test, without scientific corroboration, proves the existence of blood prejudiced Mr. Daniels’ right to a fair trial. The trial court abused its discretion in failing to conduct a Frye hearing as requested by Mr. Daniels and in permitting the introduction of the positive luminol test results, effectively as proof for the presence of human blood in Mr. Daniels’ house, his and Ms. Smith’s cars. The point is granted.

II. Sufficiency of the Evidence

Mr. Daniels contends as his first point on appeal that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to prove beyond a reasonable doubt that a murder had occurred or that the he had committed it. Because Mr. Daniels’ right to a fair trial was prejudiced, if substantial evidence was presented by which a reasonable juror could find Mr. Daniels’ guilty of the crime charged, the case will be remanded for a new trial. If substantial evidence was not presented, Mr. Daniels is entitled to reversal of the conviction and is not required to sustain a second trial.

When reviewing the sufficiency of the evidence, all the evidence and its inferences are considered in a light most favorable to the verdict. State v. Myszka, 963 S.W.2d 19, 22 (Mo.App. W.D.1998). Inferences contrary to the verdict are rejected unless they are such a logical extension of the evidence that no reasonable juror could disregard them. State v. Strong, 142 S.W.3d 702, 717 (Mo. banc 2004), cert. denied, 285 U.S. 1059, 125 S.Ct. 872, 160 L.Ed.2d 786 (2005). Great deference is given to the trier of fact, and an appellate court is not to act as a “super juror” with veto power over a verdict. State v. Ellison, 980 S.W.2d 97, 98 (Mo.App. W.D.1998). The reviewing court does not weigh the evidence nor determine the reliability or credibility of witnesses, but limits its review to whether the jury had substantial evidence from which to find the defendant guilty beyond a reasonable doubt. Myszka, 963 S.W.2d at 22.

All of the elements of a homicide case, including the corpus delicti, may be proved through circumstantial evidence. See Id. at 23. “Even where evidence of a defendant’s guilt is solely circumstantial, the evidence is sufficient to support a conviction if the evidence is such that a reasonable juror would be convinced beyond a reasonable doubt of the defendant’s guilt.” State v. Bragg, 867 S.W.2d 284, 290 (Mo.App. W.D.1993)(citing State v. Grim, 854 S.W.2d 403, 406 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993)).

Mr. Daniels first argues that the State failed to meet its burden in that it failed to prove the corpus delicti of the crime. “The corpus delicti in a homicide case consists of two elements: (1) proof of the death of the victim and (2) evidence that the criminal agency of another was the cause of the victim’s death.” State v. Edwards, 116 S.W.3d 511, 544 (Mo. banc 2003), cert. denied, 540 U.S. 1186, 124 S.Ct. 1417, 158 L.Ed.2d 92 (2004). The State presented ample evidence proving each of these elements. The body of Ms. Smith was discovered and recovered in a mutilated condition after being thrown into the Missouri River. Evidence of concealment of a homicide is sufficient to create the inference that the victim died as the result of a criminal agency instead of an accident, even in cases where the cause of death is indeterminable. See e.g. State v. Ellison, 980 S.W.2d 97, 101-02 (Mo.App. W.D.1998).

Mr. Daniels next claims that the State failed to prove him guilty of Ms. Smith’s murder beyond a reasonable doubt. Proof of the corpus delicti alone does not suffice for conviction, as evidence must still be presented tying decedent’s death to an act of the defendant. State v. May, 689 S.W.2d 732, 735 (Mo.App. W.D.1985). The evidence, excluding the lumi-nol tests and its inferences that favor the verdict of Mr. Daniels’ guilt, is that he had an amorous relationship with Ms. Smith for about four years. Ms. Smith and her children were with Mr. Daniels in his house the night before her disappearance, and he apparently was the last person to see her alive. When Ms. Smith’s children asked Mr. Daniels where their mother was when they awakened Monday morning, Mr. Daniels told him that she had gone to work. Yet, Ms. Smith’s ten year old son saw his mother’s car parked near the house that same morning, and the vehicle was found several days later in the River Market area of Kansas City, an area principally of commercial shops and businesses within about a quarter mile of the Missouri River. Additionally, Ms. Smith’s employment ID, needed for her employment was found at her residence on Wednesday, June 11 when Mr. Daniels provided a key to the residence to Mr. Smith. Mr. Daniels made several inconsistent statements to Ms. Smith’s ex-husband regarding the last time he saw Ms. Smith. Mr. Daniels also stated to Ms. Smith’s ex-husband that Ms. Smith had informed him she was going to the hair stylist Monday afternoon. The hair stylist is closed on Mondays. Monday evening, Mr. Daniels called an acquaintance and asked for and later received a ride from the Flamingo Casino. The Flamingo Casino is within short walking distance from the Missouri River and is west and “up-river” (the current flows east) from the location where Ms. Smith’s torso was found several days later. When he entered his friend’s car, Mr. Daniels apparently was tired, his pants and shoes had dried mud on them, and he emitted a foul odor. He was driven to his car, which was parked about forty blocks south in Kansas City.

On June 11, Mattie Kyles, a co-worker, observed Mr. Daniels walking on Admiral Blvd. in Kansas City, Missouri. He was within a mile or two of the River Market area of Kansas City, where Ms. Smith’s car was found a few days later. Mr. Daniels told Ms. Kyles that his car had broken down at the Flamingo Casino “the other night” when he and Ms. Smith were at the casino and requested a ride to that location. Despite his relationship with Ms. Smith and her children, Mr. Daniels failed to report Ms. Smith’s disappearance to police authorities any time before the police confronted him, and he appeared unconcerned to the inquiring detectives on June 19 when they interviewed him, ten days after Ms. Smith’s disappearance. Finally, Mr. Daniels replaced the carpeting and mini-blinds in the den of his house while Ms. Smith was missing. Two of Ms. Smith’s credit cards were obtained from Mr. Daniels’ home.

Considering the totality of the evidence, the State presented substantial evidence by which a reasonable juror could find Mr. Daniels guilty of the crime charged. The point is denied.

Conclusion

The trial court abused its discretion by permitting the introduction of the luminol tests effectively to prove the presence of Ms. Smith’s blood in Mr. Daniels’ home and in his and Ms. Smith’s vehicles without having first conducted a Frye hearing, as requested by Mr. Daniels, prejudicing his right to a fair trial. The judgment of conviction is reversed, and the case is remanded for a new trial. Mr. Daniel’s motion for a Frye hearing before trial was to contest the introduction of positive luminol test results at trial to prove the presence of blood without corroborating scientific evidence. Should the State intend to introduce a positive luminol test result at trial to prove the presence of blood, absent corroborating scientific evidence, the trial court is directed to conduct a Frye hearing. Mr. Daniels is not limited to the objection previously made, and he may assert any relevant objection to the introduction of the luminol test results on the basis that the Frye standard is not satisfied.

EDWIN H. SMITH, C.J. and PATRICIA A. BRECKENRIDGE, J. concur.

      . Ms. Rogers was deceased at the time of trial, but her deposition had been videotaped and was played for the jury.

      . Mr. Smith’s wife had died a month before these events, and he had not worked since her death. He was not returning to work but ■ went to his place of employment for other reasons.

      .This description of the events was the one provided by Mr. Smith. Ms. Rogers' video testimony was substantially similar, although she testified that the children had been left with her on Monday and that no one had come to pick them up until Mr. Smith arrived on Tuesday or Wednesday.

      . Adrian gave inconsistent accounts of which child asked to see Ms. Smith, indicating that it was either his older brother Shaun (who was deceased at the time of trial) or his younger sister Jaloni.

      . The Flamingo Casino is presently the Isle of Capri Casino, located on Frontage Road. The Casino is geographically near the Missouri River and is between the locations where Ms. Smith’s car and body were found.

      .Mr. Daniels possessed a piece of property that Ms. Dameron believed she was entitled to, and she testified that she assumed this is what he was referring to.

      . The State presented numerous witnesses who indicated that they never perceived this to be correct.

      . The carpet store was near the location of Mr. Daniels’ doctor, and evidence adduced at trial indicated that he had attended a doctor’s appointment on that day.

      . Hemastix, like luminol, is used by criminol-ists as a precursor test to indicate the possible presence of blood.

      . The State also presented the testimony of Detective Ray Staley, who provided the foundation for photographs taken of the luminol pattern discovered in Ms. Smith’s car.


text:
    Phillip RUTH, Appellant Pro Se, and Gary Dieckhoff, Appellant Pro Se, v. Gary KEMPKER, Respondent.
    No. WD 64548.
    Missouri Court of Appeals, Western District.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Phillip Anthony Ruth, Gary Dieckhoff, pro se.
    Jeremiah W. (Jay) Nixon, Attorney General, Shaun Mackelprang & R. Ryan Harding, Office of Attorney General, Jefferson City, for Respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Inmate Phillip Ruth appeals the circuit court’s dismissal of his suit for injunctive relief alleging that a Missouri Department of Corrections visitation rule violates inmates’ rights under the United States and Missouri constitutions. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Judgment affirmed. Rule 84.16(b).


author: KENNETH W. SHRUM, Presiding Judge.

text:
    Robert O. SAUNDERS, Petitioner, v. Michael BOWERSOX, Respondent.
    No. 27068.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 15, 2005.

      Robert O. Saunders, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Jefferson City, for respondent.
   ORIGINAL PROCEEDING IN HABEAS CORPUS

KENNETH W. SHRUM, Presiding Judge.

This is a habeas corpus case in which Robert Saunders (“Petitioner”) seeks release from imprisonment in Missouri’s south central correctional center. The premise of his claim of unlawful confinement is that the sentencing court lacked authority to revoke his probation and order him to serve a ten-year sentence on a first-degree assault charge; that this is so because the purported probation revocation and order of confinement came after his probationary term had expired. This court orders Petitioner discharged from confinement.

FACTS

On May 28, 1997, the State of Missouri charged Petitioner with unlawful use of a weapon, case 971-1365 (“Case l”). The State indicted Petitioner for first-degree assault on August 4, 1997. This was case 971-2417 (“Case 2”).

Petitioner pled guilty to both offenses on March 17, 1998. On that date, the court sentenced Petitioner to a two-year term in Case 1 and ten years in Case 2. The court ran the sentences concurrently and committed Petitioner to the department of corrections. This was done “pursuant to section 559.115.”

Later, the trial court exercised its section 559.115 discretion to recall Petitioner from incarceration and placed him on probation. This occurred on August 19, 1998. The term of probation was three years in both cases. Supervision by the board of probation and parole began September 4, 1998.

Once released, Petitioner violated his probation conditions repeatedly by, inter alia, using illicit drugs and failing to report. As part of this, Petitioner’s probation officer issued a violation report dated January 31, 2001, in which she recommended an order of suspension, issuance of a capias warrant and revocation of Petitioner’s probation. The docket sheets in both Case 1 and 2 recite that a probation violation notice was filed January 31 and a capias warrant was ordered that date. However, there is neither a docket entry showing an order of suspension of Petitioner’s probation in conjunction with that ca-pias, nor is there an order to that effect in either case.

By March 23, 2001, Petitioner had been apprehended and jailed. He then posted bond and was released from custody on that same day. Almost immediately, however, Petitioner tested positive for marijuana and opiates. This triggered another probation violation report dated April 10, 2001. Again, Petitioner’s probation officer recommended probation revocation; consequently, the trial judge again directed the issuance of a capias warrant.

Inexplicably, however, the capias warrant was issued only in Case 1. There were no docket entries and no orders made in Case 2 between March 30 and September 28, 2001. On the latter date, the court entered an order suspending Petitioner’s probation in Case 2 and directed issuance of a capias warrant.

A revocation hearing in Case 1 was held August 28, 2001, i.e., seven days before Petitioner’s probationary term ended. At the conclusion of the hearing the court revoked probation via a written judgment and committed Petitioner to the custody of the department of corrections for a term of two years. This judgment and sentence pertained to Case 1 only.

Since Petitioner was incarcerated only on the two-year sentence and because Petitioner had jail time credit, the department of corrections determined Petitioner had a conditional release date of October 1, 2001. Before his release, however, the trial court issued its September 28, 2001, order suspending his Case 2 probation. This happened twenty-four days after Petitioner’s probationary term expired in Case 2. Later, on November 8, 2001, the court revoked Petitioner’s probation in Case 2. Petitioner was then delivered to the department of corrections to serve the remainder of his ten-year sentence.

Petitioner filed a petition for writ of habeas corpus with the proper circuit court which was denied. Petitioner then filed this original action here requesting habeas corpus relief.

DISCUSSION AND DECISION

Petitioner’s writ application alleges the twenty-second judicial circuit court was without jurisdiction to revoke his probation in Case 2 after September 4, 2001. Petitioner correctly notes that, “[n]ormally, the circuit court’s jurisdiction to revoke probation ends when the probationary period expires.” Cline v. Teasdale, 142 S.W.3d 215, 221[4] (Mo.App.2004). He asserts that this rule governs here and he is entitled to immediate release from the department of corrections.

Respondent counters with three arguments. The first two of these rely on a document dated January 31, 2001, which Respondent attached to his answer to the writ application. This document, reproduced in an appendix to this opinion, purports to be an unfiled trial court order suspending Petitioner’s probation in Case 2 as of January 31, 2001. Relying on that, Respondent argues Petitioner’s probation was suspended January 31 and was “never reinstated;” consequently, the “three-year term” of probation in Case 2 did not expire September 4, 2001, nor had it expired by November 8, 2001, when it was finally revoked.

Respondent’s second argument is based on that same January 31 document and section 559.036. This statute allows the circuit court to revoke probation after the term has ended in certain circumstances. Subsection 6 of section 559.036 reads:

“The power of the court to revoke probation shall extend for the duration of the term of probation ... and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.”

Relying on section 559.036(6), Respondent asserts that the trial judge made manifest his intent to revoke probation in Case 2 on January 31, 2001, by issuing a capias warrant and ordering probation suspended on that date. He then claims there was no unreasonable or prejudicial delay in conducting Petitioner’s revocation hearing because Petitioner was in “absconder status” or in the penitentiary serving time on Case 1 for much of the period between January 31, 2001, and November 8, 2001.

Respondent’s first and second arguments fail, however, because they rely on matters wholly outside the record, i.e., the January 31 document.

To explain, on August 15, 2005, this court ordered Respondent

“to file copies of the following in this court on or before August 22, 2005:(1) Any and all probation violation reports filed in City of St. Louis Circuit Court Case Nos. 971-1365 and/or 971-2417; (2) any notice, warrant or other process issued by the circuit court to petitioner ... in connection with any alleged probation violations in City of St. Louis Circuit Court Case Nos. 971-1365 and/or 971-2417; and (3) complete docket sheets in City of St. Louis Circuit Court Case Nos. 971-1365 and 971-2417. All such documents shall be certified by the clerk of the Circuit Court of the City of St. Louis. ”

Respondent complied with this order and, in addition, filed with this court numerous pages of records from the Missouri board of probation and parole pertaining to Petitioner. The latter was accompanied by an affidavit of the custodian of such records, which said affidavit complied with section 490.692. None of these records, however, contained the January 31 document.

The first appearance of the January 31 document in our court came when Respondent filed his answer. It does not bear a file stamp, nor has it been authenticated, nor has its authenticity been supported by affidavit or other means. The only attempt at identification of this document is in footnote 3 of Respondent’s brief, where the following is found: “This document was not in the certified documents supplied by the St. Louis City Circuit Clerk’s office. The document was faxed and mailed to Respondent by [the trial judge], as it was in the court’s file on the case but apparently not the clerk’s file.”

Respondent’s attempted use of the subject document runs afoul of two well-established principles. First, when the inquiry in a habeas case is whether the judgment or sentence is void, the habeas court will normally not look beyond the judgment of the sentencing court. 39 C.J.S. Habeas Corpus, § 148 (2003). “The record imports verity, and is not open to contradiction or impeachment in the habe-as corpus proceedings.” Id. In a similar vein, Missouri courts generally limit habe-as corpus proceedings to determining the facial validity of the confinement. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624[1] (Mo.banc 2002); Taylor v. State, 51 S.W.3d 149, 161[2] (Mo.App.2001); Rule 91.01; § 532.010.

Second, Respondent’s attempted reliance on the January 31 document fails because it was not authenticated. Before a writing can be admitted into evidence, whether it be a private document or public record, it must be authenticated, i.e., the proponent thereof must show that it is, in fact, what it is claimed to be. Partney v. Reed, 889 S.W.2d 896, 901[12] (Mo.App.1994); Schmitz v. Dir. of Rev., 889 S.W.2d 883, 887 (Mo.App.1994). See Cummins v. Dixon, 265 S.W.2d 386, 394[7] (Mo.1954). See also William A. Schroeder, 23 Missouri Practice: Missouri Evidence, § 900.1 (2000). Whatever classification is given the January 31 document, the fact remains it was not authenticated. Absent a connection between it and the material issues in the case, the document is simply irrelevant and should not be considered by this court. Partney, 889 S.W.2d at 901.

Without the January 31 document as support, Respondent’s first two arguments fail. They simply do not support Respondent’s request that we deny Petitioner relief.

More than that, however, Respondent’s first two arguments would fail even if we accepted Respondent’s explanation about the source of the January 31 document, treated it as authentic, and considered it as admissible evidence. As noted before, Respondent’s first argument is that the January 31 suspension order tolled the time that Petitioner was to serve on probation, i.e., probation did not end on September 4 and was in limbo when probation was revoked on November 8. However, the notion that probation can be suspended indefinitely was answered adversely to Respondent in State ex rel. Limback v. Gum, 895 S.W.2d 663 (Mo.App.1995). As such, Respondent’s first argument also fails for this reason.

As to Respondent’s second argument (based on section 559.036.6), it is refuted by what the record shows. This follows because even if'we found the January 31 document manifested an intent by the trial court to conduct a revocation hearing in Case 2, we could only conclude that it was unreasonable to wait until November 8 to do so. Petitioner was before the court on August 28 and the court could easily have conducted a hearing and revoked probation in Case 2 at that time. He was also in custody at least twice after January 31, but before August 28, 2001. These incarcerations were on warrants issued by the trial judge; consequently, the judge could have conducted a Case 2 revocation hearing during those periods. However, he did not do so. As such, the court did not make “every reasonable effort ... to conduct [a] hearing prior to the expiration of the [probationary] period.” § 559.036.6. Moreover, if the court intended to manifest its intent on January 31, why did it issue another warrant and suspension in Case 2 on September 28? Respondent provides no reasonable explanation for these discrepancies. For these reasons, Respondent’s second argument lacks merit even if the January 31 document is treated as part of the record this court should consider.

Respondent’s third argument is that probation was actually revoked in Case 2 on August 28 during the revocation hearing on Case 1; that even though revocation in Case 2 was not memorialized by the order that came out of that hearing, the trial judge’s comments (as revealed by the transcript) indicated an intent to revoke probation in Case 2. Continuing, Respondent says what happened here “is analogous to a sentencing hearing in a criminal case at which a sentence is ordered imposed or executed, and the principal[sic] that the sentencing court’s intent, made manifest in the sentencing transcript, controls over the written judgment applies making the revocation in ease 971-2417 [Case 2] timely.”

This argument has two parts. First, Respondent references two excerpts from the August 28 transcript which he says show the judge’s intent to revoke probation in Case 2. The first is this: “[By the Judge] Sentence set by this Court pursuant to its decision on 3-17, 1998 will hereby be carried out with respect to all counts in this case.” (Emphasis supplied.) Respondent points out that Case 1 and Case 2 each had only one count. He argues, therefore, that the “all counts” comment “only makes sense if the Court thought it was revoking the counts in both cause numbers.” In a similar vein, Respondent cites to the transcript where the judge specifically rejected defense counsel’s request to revoke probation in Case 1 only, and leave Petitioner on probation as to Case 2. According to Respondent, this colloquy would make “no sense if the assault probation [Case 2] was not viewed by the Court and parties as being before the Court.”

Respondent starts the second prong of his third argument by pointing out that in criminal cases, the oral pronouncement of sentence will govern over the written judgment when the two are in material conflict. State v. Patterson, 959 S.W.2d 940, 941[1] (Mo.App.1998). He insists that this criminal law principle should attend here, even though this is a civil case. To support this, Respondent relies on older civil cases which hold that there is a distinction “between the judicial act of rendering a judgment and the ministerial act of entering it on the record,” i.e., the rendition controls because it is the actual judgment. State ex rel. State Farm v. Murray, 438 S.W.2d 300, 301 (Mo.App.1969). See Allen v. Gibbons, 425 S.W.2d 243, 245-46 (Mo.App.1968); Rehm v. Fishman, 395 S.W.2d 251, 255 (Mo.App.1965).

The fallacy in Respondent’s argument becomes apparent when the Murray rule is examined in context. To start with, the Murray rule was used in civil cases when the judgment entered on the record was ambiguous or wholly lacking in detail. See, e.g., Murray, 438 S.W.2d at 301-02; Allen, 425 S.W.2d at 245-46. Moreover, the Murray rule gives way to another rule that still attends, namely, that other parts of a record, such as oral statements by the trial judge, cannot be used to contradict an unambiguous judgment. State v. Haney, 277 S.W.2d 632, 635-36 (Mo.1955); Estate of Rogers v. Battista, 125 S.W.3d 334, 341 (Mo.App.2004).

In contrast, the rule in criminal cases, i.e., that oral pronouncement of sentence governs over the written judgment if there is material conflict in the two, is a rule that attends even when the written judgment is unambiguous. Patterson, 959 S.W.2d at 941. This stems from the accused’s right to be present at the time of sentencing. Id. at 941[5]. Imposition of a ■written sentence that materially differs from the oral one would violate such a right as it would be a “new” sentence entered in the absence of the accused. Id.

The rule in criminal cases (that the “oral pronouncement prevails”) has no place in probation revocation cases, as they are civil matters. Turner v. State, 784 S.W.2d 342, 344 (Mo.App.1990). Moreover, probation is not considered a “sentence” as judgments are in criminal matters. McCulley v. State, 486 S.W.2d 419, 423 (Mo.1972). Consequently, when Respondent characterizes a “probation revocation hearing [as] analogous to a sentencing,” he is simply wrong.

When the quote from the Murray case (which is the basis of Respondent’s argument) is considered in the context of this case, we find it has no application. Here, the judgments or order issued by the trial court are unambiguous. The initial judgment revoked probation in Case 1 on August 28, 2001, and the second revoked probation in Case 2 on November 8, 2001. Respondent points to no ambiguity in either of these judgments and we find none. In effect, Respondent asks this court to create an ambiguity by looking beyond the four corners of the documents. This we will not do.

Courts typically disregard a trial court’s oral statements made in ruling on an issue because such statements are not part of the trial court’s order or judgment. Battista, 125 S.W.3d at 341. “The court may consider such comments so long as they do not oppose, dispute, or impeach the judgment and are not used as a substitute for the judgment.” Id. at 341 [10]. “[W]here the language of the judgment is plain and unambiguous, we do not look outside the four corners of the judgment for its interpretation.” Lombardo v. Lombardo, 120 S.W.3d 232, 244 (Mo.App.2003). Construction of an order revoking probation is a question of law, and the test for ambiguity is whether the order is reasonably susceptible to different constructions. State ex rel. Beaird v. Del Muro, 98 S.W.3d 902, 909[16,18] (Mo.App.2003).

Since the two judgments here are unambiguous, we will not look to the transcript of the August 28 hearing to interpret those orders. As such, we reject Respondent’s third argument.

In sum, we conclude that the circuit court was without jurisdiction to revoke Petitioner’s probation on November 8, 2001, and order him incarcerated pursuant to the original ten-year sentence. Cline, 142 S.W.3d at 221. Accordingly, the judgment and sentence in Case 2 is void and Petitioner’s request for habeas corpus relief is granted.

Petitioner is ordered discharged.

GARRISON and BARNEY, JJ., Concur.

      . Michael Bowersox (''Respondent” herein) is superintendent of the facility where Petitioner is confined.

      . Both underlying cases were filed in the twenty-second judicial circuit, City of St. Louis.

      .Under section 559.115, the circuit court has the power to grant probation "anytime up to one hundred and twenty days after such defendant has been delivered to the custody of the department of corrections.”

      . In answer to defense counsel's request, the trial judge said: "Well you know me well enough, Mr. Sotille [defense lawyer] to know it isn’t very likely.”

      . All of this ignores what Respondent candidly admits in his brief, namely, his lawyer interviewed the judge who held the August 28 probation revocation hearing. When asked what he intended to do on August 28, 2001, the judge answered: "[I]f 971-1365 [Case 1] was the only number mentioned on the docket sheet, and at the hearing, and on the August 28, 2001 order then he [the judge] probably viewed case 971-1365 [Case 1] as the only cause before him on that date and did not mean to revoke both cause numbers on that date.”

      . Questions about the continued viability of the Murray rule, or its possible scope under current civil procedure rules, need not be answered to resolve this case. See Rule 74.01(a).


author: JAMES K. PREWITT, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robin Lee PETTRY, Defendant-Appellant.
    No. 26631.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 28, 2005.
    Melinda K. Pendergraph, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen., Jefferson City, for respondent.
   JAMES K. PREWITT, Presiding Judge.

Following a non-jury trial, Robin Lee Pettry (“Defendant”) appeals his convictions on two counts of criminal nonsupport, pursuant to § 568.040, RSMo 2000.

The marriage between Defendant and Angel Cole produced two children: Mary, born December 21, 1984; and Raymond, born August 20,1986. Their marriage was dissolved on December 1, 1993. The decree did not award child support. Upon Cole’s request, the State of Missouri’s Division of Child Support Enforcement (“Division”) ordered Defendant to pay $295 in monthly child support effective September 15,1995.

With the exception of two payments Defendant tendered in June of 1998 and September of 1999, the monthly payments made by Defendant between 1995 and 2000 were less than the court-ordered amount. In 2000, Defendant paid only $800.50, which was withheld from his unemployment compensation payments. The State charged that Defendant “knowingly failed to provide support in each of six individual months within January 1, 2000 and January 1, 2001.”

Division case worker Sherrie Wojtowicz testified that the agency did not receive payment from Defendant for January, February, August, September, October, November, and December of 2000. Cole testified she had no contact with Defendant during the year of 2000. Defendant offered the dissolution decree and his medical records as evidence.

The trial court found Defendant guilty on both counts, suspended imposition of sentence and placed him under five years’ supervised probation on the condition that he make monthly child support payments. On October 14, 2004, Defendant appeared at a probation violation hearing after failing to make payments subsequent to April 5, 2004. The trial court revoked Defendant’s probation, suspended execution of a four-year sentence, ordered supervised probation for a period of five years and 120 days of shock incarceration. Defendant filed his Notice of Appeal on October 25, 2004.

Defendant contends that his convictions were not supported by sufficient evidence, as evidence of his back injury “injected the issue of good cause for nonsupport,” and, since the State failed to produce evidence of Defendant’s ability to work and support his children, the trial court erred by improperly shifting the burden of proving “good cause” to the defense.

On review of criminal matters tried by the court without a jury, the standard of review is the same as in cases tried by a jury. State v. Pollard, 941 S.W.2d 831, 833 (Mo.App.1997). “We accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding, and all contrary evidence and inferences are ignored.” Id. We determine whether there was sufficient evidence from which a trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Phillips, 940 S.W.2d 512, 520 (Mo.banc 1997). “Great deference is given to the trier of fact.” State v. Sellers, 77 S.W.3d 2, 4 (Mo.App.2002).

Defendant was charged with two counts of a class D felony, pursuant to § 568.040.4, for “nonsupport in each of six individual months within any twelve-month period[J” Section 568.040.1 states “a parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his ehild[.]” Good cause is defined as “any substantial reason why the defendant is unable to provide adequate support.” Section 568.040.2(2), RSMo 2000. The defendant has the burden of injecting the issue of good cause. Section 568.040.3, RSMo 2000. When such a requirement is imposed, “the issue [of good cause] is not submitted to the trier of fact unless supported by evidence[.]” Section 556.051.1, RSMo 2000.

Defendant maintains that he injected the issue of good cause by presenting evidence that he suffered a back injury in 1996, subsequently re-injured his back, and “requested disability.” Defendant contends that it was the State’s burden to prove that his failure to provide support was without good cause.

On August 16, 1996, Defendant’s physical therapist listed “return to work” as a long-term goal for his recovery. Four days later, St. John’s Medcenter recommended Defendant take ten days off from work. Later that same month, medical doctors indicated Defendant could do desk work until his therapy was completed. Other than an exam in 1997, there is no further evidence regarding this injury until 2001, when a physician recommended therapy but said nothing about employability. Nothing is offered on Defendant’s condition during the year of 2000.

In State v. Morovitz, 867 S.W.2d 506 (Mo.banc 1993), the Court determined that the defendant failed to meet his burden of injecting the issue of good cause for failure to provide adequate support, as provided in § 568.040.3, in that defendant’s evidence of a situation existing in 1986 was irrelevant to the issue of defendant’s failure to provide support during 1988 as charged. Id. at 509. Here, Defendant’s evidence on his ability to work, including his medical records, is similarly irrelevant.

Defendant has failed to inject the issue of good cause. Therefore, the State is not required to prove Defendant’s failure to provide adequate support for his children was without good cause. State v. Degraffenreid, 877 S.W.2d 210, 214 (Mo.App.1994). Defendant’s only point has no merit.

The judgment is affirmed.

PARRISH, J., and RAHMEYER, J., concur.