author: PATRICIA BRECKENRIDGE, Judge.

text:
    STATE of Missouri, Respondent, v. Ronald S. DENNIS, Appellant.
    No. WD 62279.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.

      Sarah Weber Patel, Kansas City, MO, for appellant.

      Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., SMART and HOWARD, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Ronald S. Dennis appeals his convictions and sentences for aggravated rape, under section 566.030, RSMo 1986, and first degree assault, under section 565.050, RSMo 1986. On appeal, Mr. Dennis argues that the trial court erred in instructing the jury, accepting the jury’s verdict, and sentencing him for both first degree assault and aggravated forcible rape in violation of his right to be free from double jeopardy because first degree assault is a lesser-included offense of aggravated forcible rape. Mr. Dennis also contends that the trial court erred in denying his motion to suppress incriminating statements he made to police officers and in permitting his statements to be admitted into evidence at trial because his statements were involuntary. This court finds that first degree assault, under section 565.050, RSMo 1986, is not a lesser-included offense of aggravated forcible rape, under section 566.030, RSMo 1986, and Mr. Dennis’s statements were not involuntary. Accordingly, Mr. Dennis’s convictions and sentences are affirmed.

Factual and Procedural Background

On February 28, 1987, H.B., then twenty-seven years old, was found unconscious at her home in Independence. She was lying on the floor in front of a couch, wearing only a robe and suffering from severe head injuries. Pry marks and a shoe print on the windowsill indicated that H.B.’s attacker had entered her house through her bedroom window. Mud was also discovered on H.B. and tracked throughout her house.

At the hospital, an examination to determine if she had been sexually assaulted was performed on H.B. Semen was found in H.B.’s vagina in a “pooled state,” which indicated that she remained prone after ejaculation and the semen could have been in her vagina for a number of hours. H.B’s injuries were severe. She remained in a coma for over four months and was in need of a respirator for a significant period of time. Her injuries resulted in a protracted and significant loss of brain function and created a substantial risk of death. H.B. required retraining of all her bodily functions. Her injuries also caused spontaneous bone growth in her thigh, and she was required to wear leg braces to straighten out her legs. H.B. eventually had to undergo surgery on her legs. Since the attack, H.B. has not been able to read or write and her ability to speak and make judgments is severely impaired.

In January 1993, H.B. was attacked a second time and her face was severely beaten. H.B.’s injuries from this second attack required a three-week hospital stay and her limitations from the first attack were magnified. H.B.’s second attacker was eventually convicted. While the police were investigating the second attack, H.B. stated that she remembered who attacked her in 1987. She told a police officer that her 1987 attacker was someone with whom she had previously worked. Police officers located an Alonso Hannon, who fit H.B.’s description. DNA testing of Mr. Hannon’s blood, however, ruled out Mr. Hannon as a suspect. Thereafter, the vaginal swab obtained from H.B. was run through the Missouri CODIS database. In June 2000, it was determined that Mr. Dennis’s DNA profile matched the DNA profile of the semen found on the vaginal swab. Neither H.B. nor any of her family or friends knew Mr. Dennis.

Detective Michael Johann of the Independence Police Department was assigned to H.B.’s case. Detective Johann discovered that Mr. Dennis was incarcerated in Farmington, Missouri. On August 2, 2000, after obtaining a search warrant for Mr. Dennis’s blood, Detective Johann and Sergeant Kenneth Cavanah went to Farming-ton to interview Mr. Dennis. When the detectives arrived, Mr. Dennis was given his Miranda rights, which he waived, and he proceeded to talk to Detective Johann and Sgt. Cavanah. Mr. Dennis was cooperative and willing to talk.

During the interview, Detective Johann showed Mr. Dennis a picture of H.B. Mr. Dennis stated that he did not know H.B. and he denied ever having sex with her. He said that he would remember H.B. because she was pretty and had a pretty face. Mr. Dennis claimed that he had memory problems because of a stroke and heart surgery and, therefore, he could not remember if he attacked H.B. He stated that he could have been the person who attacked H.B., but he could not remember. Mr. Dennis did admit to being “a very bad person around 1987,” and that he “drank heavily” and “took pills.” In particular, he said that he did remember an incident in 1987 when he caught his wife in bed with his best friend. He said that this discovery “tore him up” and, because he could not hurt his wife, he could have hurt another person. He further stated that he had sexual problems that he did not know how to deal with, and he admitted that in 1987, he hit a woman who allegedly had sexually teased him and refused to have sex with him.

Detective Johann also asked Mr. Dennis if he thought that he would ever be confronted in this case. Mr. Dennis answered, “No.” Detective Johann told Mr. Dennis that it was important to H.B. for him to be sincere, that he should apologize to H.B., and that he should give them details of the attack. Mr. Dennis became emotional and cried during the interview and told the officers to tell H.B. that he was sorry and that he wanted to apologize to her in person. He, nevertheless, said that he could not give them details of the attack because he could not remember. He did, however, admit that the attack was a random event. The officers were forced to terminate the interview when Mr. Dennis had to return to his cell for a prisoner count. When this occurred, Mr. Dennis indicated that he wanted to continue to talk to the officers.

Detective Johann and Sgt. Cavanah returned to Independence with a sample of Mr. Dennis’s blood, which was drawn at one point during the interview. Subsequent testing on Mr. Dennis’s blood determined that the expected frequency that Mr. Dennis’s DNA profile was the source of the semen recovered from H.B. was one in one quadrillion. On May 15, 2001, Detective Johann returned to Farmington to conduct a second interview with Mr. Dennis. Mr. Dennis again waived his Miranda rights. When Detective Johann asked Mr. Dennis for more details of the attack, Mr. Dennis again said that he could not remember and was not even sure he was the one who committed the attack. When Detective Johann confronted Mr. Dennis with the DNA results, Mr. Dennis said that he was sorry for hurting the person but could not remember anything. After about two hours of questioning, during which Mr. Dennis continued to state that he could not remember the attack, Detective Johann stopped the interview and left.

Following Detective Johann’s second interview with Mr. Dennis, Detective Johann determined that, during late 1986 and early 1987, Mr. Dennis lived with his girlfriend approximately four to five tenths of a mile from H.B.’s house in Independence. Detective Johann took a picture of the house and obtained an arrest warrant and a writ ad prosequendam for Mr. Dennis. Thereafter, on July 20, 2001, Detective Johann and Detective Robert West went to Farmington with the picture of the house, the arrest warrant, and the writ. They intended to interview Mr. Dennis, arrest him, and bring him back to Independence.

Before beginning the third interview, Mr. Dennis once again waived his Miranda rights. Detective Johann told Mr. Dennis that H.B. and her mother were not satisfied with his prior responses and that this was the final time he was coming and Mr. Dennis needed to be truthful this time. Mr. Dennis, however, once again claimed he could not remember, although, in response to the officers’ questions, he was able to recall other events from both before and after the attack. When Detective Johann showed Mr. Dennis the photograph of Mr. Dennis’s prior residence in Independence, Mr. Dennis stated that he did not recognize the house and denied ever living there. Eventually, Detective Johann told Mr. Dennis that he was going to call H.B. and tell her that Mr. Dennis was not cooperating and was still not sorry. Detective Johann then stepped out of the room for five minutes, pretending to call H.B. After he returned to the interview room, Detective West told Detective Johann that Mr. Dennis was still unable to remember any details. Detective Johann also told Mr. Dennis that he was going to call the prosecutor and have him fax over a writ. Detective Johann stepped out of the room again for five minutes to pretend to do this.

After nearly three hours of Mr. Dennis claiming to not remember what happened, Detective Johann told Mr. Dennis that he was under arrest and that they were taking him back to Independence. Detective Johann opened the interview room door and told the prison guard to shackle Mr. Dennis because they had a writ and a warrant and were taking him back to Independence. At this point, Mr. Dennis stood up, placed his hands on Detective West’s arm, walked over to Detective Johann and put his hands on him, and then said that he would tell the truth about what happened. He also said, “I did it. I did this.”

Mr. Dennis then proceeded to provide the details of the attack. Mr. Dennis said that he had a fight with his girlfriend on the night of the attack and left his house angry with women. He said that, as he was walking around his neighborhood, he found a big stick and eventually came upon H.B.’s house. Mr. Dennis stated that his original intentions were to rob her because he needed money. He claimed he entered H.B.’s house through the unlocked front door and startled H.B., who was lying down. Mr. Dennis could not remember, however, if she was in the living room or the bedroom. Mr. Dennis claimed that when H.B. saw him, she jumped up and screamed and cursed at him. He admitted that he hit her in the head several times, and when she was unconscious, he raped her and left. When the detectives asked Mr. Dennis what H.B. was wearing and what color her hair was, Mr. Dennis stated that she was wearing a robe, he thought she was wearing panties, and that he thought she had brown hair. Detective Johann also asked Mr. Dennis if he stole a gold charm necklace in the shape of a teardrop with a pearl in it from H.B.’s house. Mr. Dennis admitted that he might have.

Following Mr. Dennis’s confession, Detective Johann and Sgt. West drove Mr. Dennis to Independence. When they arrived in Independence, the officers took Mr. Dennis to an interview room and Detective Johann asked Mr. Dennis if he would give a videotaped statement. At this point, Mr. Dennis’s demeanor changed, he became quiet, stated that he was not sure what he should do, and he asked to speak to his son. At one point in the interview, Detective Johann left the room to activate the recording equipment. The videotaped interview lasted a little over twelve minutes. Mr. Dennis did not say much during this twelve minutes. When Mr. Dennis invoked his right to counsel, the interview was terminated. Detective Johann then called Mr. Dennis’s son. After Mr. Dennis talked to his son, Detective Johann took Mr. Dennis to detention, where he was “booked.”

On July 23, 2001, as Detective Johann was preparing to take Mr. Dennis to his arraignment, Mr. Dennis told Detective Johann that he was going to do the right thing and give a videotaped statement. Detective Johann took Mr. Dennis to an interview room and then contacted Sgt. Cavanah and Lieutenant Denny Jensen. Detective Johann told Mr. Dennis how serious H.B.’s injuries were and that Mr. Dennis needed to tell him everything he could remember. Detective Johann also told Mr. Dennis that Lt. Jensen was an officer from Texas and that he needed to tell Lt. Jensen the truth about a rape he committed in Beaumont, Texas, in 1981. Mr. Dennis said it was hazy, but he admitted to raping a woman in Beaumont. Mr. Dennis became emotional, cried, said that he was truly sorry for all the people he had hurt, and said that he wished he would not go to jail. Before a videotaped statement could be taken, however, Mr. Dennis invoked his right to counsel. Detective Johann then escorted Mr. Dennis to his arraignment.

On August 29, 2001, the State charged Mr. Dennis with the class A felony of assault in the first degree, under section 565.050, and the class A felony of aggravated forcible rape, under section 566.030. An information in lieu of indictment was subsequently filed, charging Mr. Dennis with the same two crimes and further alleging that Mr. Dennis was a prior and persistent sexual offender, which stemmed from an August 1984 guilty plea to sodomy in Lafayette County.

Mr. Dennis ultimately filed a motion to suppress the statements he made on August 2, 2000, May 15, 2001, July 20, 2001, and July 23, 2001. Specifically, Mr. Dennis asserted that his statements were involuntarily given because they were obtained by police coercion, in that he gave his statements based on the promise that he would not be prosecuted if he confessed to the crime. In addition, Mr. Dennis alleged that the statements he made on July 23, 2001, were involuntary because they were made without a Miranda warning and after he invoked his right to counsel on July 20, 2001. After hearing testimony on the motion to suppress, the trial court denied the motion. The trial court did not make any findings concerning its denial.

During a one-week trial, the State presented evidence that the DNA in the semen on the vaginal swab taken from H.B. matched Mr. Dennis’s DNA. The expert for the State, Darvene Duvenci, testified that DNA testing was scientifically reliable and generally accepted in the scientific community. She indicated that the odds of someone other than Mr. Dennis having the same DNA profile as that in the semen on the vaginal swab taken from H.B. were one in one quadrillion (i.e., a million billion). The State also presented evidence that the presence of Mr. Dennis’s semen was contemporaneous with H.B.’s head injuries. In particular, Dolores Windham, the emergency room nurse who obtained the vaginal swab, testified that the semen was pooled in H.B.’s vagina, indicating that H.B. was never upright after Mr. Dennis had sexual intercourse with her.

There was additional evidence that H.B. was not married to Mr. Dennis. H.B.’s mother and Don Sapp, a close friend of H.B., both testified that they did not know Mr. Dennis. H.B.’s mother also stated that her daughter never mentioned anyone by the name of Ronald Dennis. And there was evidence of the seriousness of H.B.’s injuries. H.B.’s mother and Ms. Windham testified extensively concerning H.B.’s injuries, which initially left her in a coma for four months. Ms. Windham testified that H.B.’s injuries created a substantial risk of death and her head injury caused a protracted and significant loss of brain function.

There was further evidence that, during the time period surrounding H.B.’s attack, Mr. Dennis lived only a few blocks from H.B. and had a habit of taking long walks, by himself, at night. The State also introduced evidence that before H.B. was attacked, she had a gold charm necklace in the shape of a tear-drop with a pearl in it. After her attack on February 28, 1987, H.B.’s mother was never able to locate the charm. Kathleen Stawarz, Mr. Dennis’s girlfriend, testified that in March 1987, Mr. Dennis gave her a charm matching the description of H.B.’s missing charm. At the conclusion of the trial, the jury found Mr. Dennis guilty on both counts.

Mr. Dennis filed a motion for judgment of acquittal or new trial in which he alleged, inter alia, that the trial court erred in admitting his statements to the police. Specifically, Mr. Dennis argued that his statements were involuntary because they were obtained by police coercion in the form of physical threats against him and on a promise that he would not be prosecuted if he gave a full confession. The trial court denied Mr. Dennis’s motion for new trial and sentenced him to consecutive life sentences on each count. Mr. Dennis filed this timely appeal.

Lesser Included Offense

In his first point, Mr. Dennis claims that the trial court erred in instructing the jury, accepting the jury’s verdict, and sentencing him for both first degree assault and aggravated forcible rape in violation of his right to be free from double jeopardy because first degree assault is a lesser-included offense of aggravated forcible rape. Mr. Dennis asserts that his due process rights were violated as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and by Article I, Sections 10 and 19 of the Missouri Constitution. Article I, Section 19 of the Missouri Constitution states, “nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury.” See also State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992) (“Since appellant was never acquitted by a jury, the double jeopardy clause of the Missouri Constitution is without application to his case.”). Because Mr. Dennis was never acquitted by a jury, his double jeopardy claim under Article I, Section 19 of the Missouri Constitution fails. Consequently, this court will address only his claim that his rights to due process under the United States Constitution and Article I, Section 10 of the Missouri Constitution were violated.

Mr. Dennis concedes that he failed to raise a claim of double jeopardy in the trial court, so he asks" this court to review the issue for plain error. “Missouri courts have long enforced the rule that a defendant must raise a constitutional attack at the earliest opportunity, and his failure to do so preserves nothing for appellate review.” State v. Elliott, 987 S.W.2d 418, 420 (Mo.App.1999). “[T]he constitutional protection to be free from double jeopardy is a personal right or privilege which is waived if not timely and properly asserted at trial....” Id. Nevertheless, the right to be free from double jeopardy is a constitutional right that goes “ ‘to the very power of the State to bring the defendant in the court to answer the charge brought against him.’ ” Id. at 421 (quoting Hagan v. State, 836. S.W.2d 459, 461 (Mo. banc 1992)). Thus, there is an exception to the general rule that the claim is waived when the court “can determine from the face of the record that the court had no power to enter the conviction.” Id. Therefore, Mr. Dennis’s claim is reviewed for plain error.

The double jeopardy clause of the United States Constitution protects defendants “from successive prosecutions for the same offense after an acquittal or conviction” and “from multiple punishments for the same offense.” McTush, 827 S.W.2d at 186. Protection from multiple punishments “ ‘is designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature.’ ” Id. (quoting Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425 (1984)). “Double jeopardy analysis regarding multiple punishments is, therefore, limited to determining whether cumulative punishments were intended by the legislature.” Id. Therefore, a defendant can be subjected to cumulative punishment in a single trial, without offending the double jeopardy clause, in those cases where “the legislature has specifically authorized cumulative punishment under two statutes proscribing the same conduct.” Id. The starting point in the analysis is a determination of whether the legislature intended to provide cumulative punishment for the .crimes with which Mr. Dennis was convicted. Id. at 187.

Mr. Dennis was convicted for offenses he committed in February 1987, so his convictions for first degree assault and aggravated forcible rape were for the crimes as they were defined by the law that existed at that time. State v. Edwards, 983 S.W.2d 520, 521 (Mo. banc 1999). The version of section 565.050.1 in effect in February 1987, under which Mr. Dennis was convicted of first degree assault, provides that “[a] person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.” Mr. Dennis’s conviction for aggravated forcible rape was based on the version of section 566.030 in effect in February 1987, which provides, in pertinent part:

1. A person commits the crime of forcible rape if he has sexual intercourse with another person to whom he is not married, without that, person’s consent by the use of forcible compulsion.
2. Forcible rape or an attempt to commit forcible rape as described in subsection 1 of this section is a felony for which the authorized term of imprisonment, including both prison and conditional terms, is life imprisonment or a term of years not less than five years, unless in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner or subjects the victim to sexual intercourse or deviate sexual intercourse with more than one person, in which cases forcible rape or an attempt to commit forcible rape is a class A felony.

There is no language in sections 565.050 and 566.030 that addresses whether the legislature intended to punish first degree assault and aggravated forcible rape cumulatively. When the specific statutes do not address this issue, the general statute regarding cumulative punishments in section 556.041 is controlling. See McTush, 827 S.W.2d at 187.

Section 556.041 provides that “[w]hen the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense,” but may not be convicted of more than one offense if “(1) [o]ne offense is included in the other, as defined in section 556.046[.]” Section 556.041. Subsection 1(1) of section 556.046 provides that an offense is an included offense when “[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” In other words, “[i]f each offense requires proof of a fact that the other does not, then the offenses are not lesser included offenses, notwithstanding a substantial overlap in the proof offered to establish the crimes.” McTush, 827 S.W.2d at 188. In determining whether multiple punishment is authorized under section 556.046.1(1), only the statutory elements of the offenses are relevant, not the evidence adduced at trial. Id.

The State argues that first degree assault is not a lesser-included offense of aggravated forcible rape because each offense contains an element not found in the other. In particular, the State asserts that the crime of rape requires proof of sexual intercourse, which is not required to prove first degree assault. Similarly, the State contends that first degree assault requires proof of intent to kill or knowingly cause serious physical injury, while aggravated forcible rape under section 566.030 contains no intent element. Thus, the State concludes that first degree assault is not a lesser-included offense of aggravated forcible rape and, therefore, the trial court did not error in convicting and sentencing Mr. Dennis for both crimes.

The crime of aggravated forcible rape includes the element of sexual intercourse, which is an element that is not included in the crime of first degree assault. As correctly contended by the State, first degree assault requires proof of intent to kill or knowingly cause serious physical injury. The question, then, is whether intentionally or knowingly causing serious physical injury is an element that is not necessary to establish the crime of rape. With regard to an element of intent for the crime of rape, the Missouri Supreme Court has held that “[i]n rape, purpose and motive are irrelevant.” State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). “ ‘If the evidence showed that there was carnal knowledge, force and the commission of the act, no intent is requisite other than that evidenced by the doing of the acts constituting the offense.’ ” Id. (quoting State v. Tompkins, 277 S.W.2d 587 (Mo.1955)). Therefore, the crime of aggravated forcible rape does not contain an intent element, which is an element included in the crime of first degree assault.

Nevertheless, Mr. Dennis contends that, even though section 566.030 does not contain a mens rea element, a culpable mental state is, nevertheless, required under section 562.021. Specifically, Mr. Dennis argues that because aggravated rape does not contain a culpable mental state, under section 562.021.3, the proper mens rea element is purposely or knowingly, which is the same mens rea element under first degree assault. Thus, Mr. Dennis concludes, first degree assault is a lesser-included offense of forcible aggravated rape and the trial court erred in convicting and sentencing him for both crimes.

Subsection 2 of section 562.021 provides:

Except as provided in section 562.026 if the definition of an offense does not expressly prescribe a culpable mental state, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly or recklessly, but criminal negligence is not sufficient.

(Emphasis added). This section was enacted in 1977, prior to the Court’s decision in Harris. And while the Court’s decision in Harris does not discuss section 562.021, the Supreme Court’s subsequent decision in State v. Beishir, 646 S.W.2d 74, 77 (Mo. banc 1983), clarifies that the exception noted in section 562.021, i.e., section 562.026, is applicable to the offense of rape. Subsection 2 of section 562.026 provides that “[a] culpable mental state is not required ... (2) If the statute defining the offense clearly indicates a purpose to dispense with the requirement of any culpable mental state as to a specific element of the offense.” Beishir reasoned that the decision in Tompkins, which held that the crime of rape was a crime of strict liability, survived the enactment of section 562.021 based on section 562.026. 646 S.W.2d at 78. Thus, contrary to Mr. Dennis’s argument, section 562.021 does not provide a culpable mental state for the offense of rape. Thus, as discussed above, first degree assault and aggravated forcible rape each contain an element not necessary for proof of the other offense. Accordingly, first degree assault is not a lesser-included offense of aggravated forcible rape and, therefore, double jeopardy did not prevent the trial court from convicting and sentencing Mr. Dennis for both crimes. Mr. Dennis’s first point is denied.

Mr. Dennis’s Statements Were Voluntary

In his second point, Mr. Dennis asserts that the trial court erred in denying his motion to suppress the incriminating statements he made to Detective Johann, Detective West, and Sgt. Cavanah and in permitting his statements to be admitted into evidence at trial because his statements were involuntary. Specifically, Mr. Dennis contends that he was compelled to “talk” by the implied promise that he would not be prosecuted because the case was too old and that he should confess because H.B. and her family just wanted closure.

Mr. Dennis challenged the admissibility of his statements by filing a motion to suppress and objecting to evidence of the statements at trial. “Once the admissibility of a statement has been challenged, the State bears the burden of demonstrating by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently made the statement.” State v. Bucklew, 973 S.W.2d 83, 87 (Mo. banc 1998). “The proper focus of such a challenge is whether coercive police activity occurred.” State v. Smith, 944 S.W.2d 901, 910 (Mo. banc 1997). “The test for whether a confession is voluntary is whether the totality of the circumstances created a physical or psychological coercion sufficient to deprive the defendant of a free choice to admit, deny or refuse to answer the examiner’s questions.” State v. Simmons, 944 S.W.2d 165, 173 (Mo. banc 1997). The waiver of Miranda rights, while not dispositive of the question of voluntariness, is an important consideration. State v. Feltrop, 803 S.W.2d 1, 13 (Mo. banc 1991). Other factors to consider include the “defendant’s physical and mental state, the length of questioning, the presence of police coercion or intimidation, and the withholding of food, water, or other physical needs.” State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998).

Moreover, it is well settled in Missouri that “[a] confession resulting from a direct or indirect promise of leniency is inadmissible.” Simmons, 944 S.W.2d at 175. In particular:

[Pjromises made must be positive in their terms or clear in implication ... if, even in general terms, they suggest an advantage to be gained by the confession, and if they are reasonably sufficient to induce and do causally induce an expectation or hope of worldly benefit as against the pending charge, it is enough to bar the confession.

State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, 79 (1936) (internal citation omitted). “[Promises must also be promises of ‘worldly advantage,’ as distinguished from adjurations of a moral or spiritual nature; and they must be direct, as distinguished from collateral.” Id. Promises “must have reference to the accused’s escape from punishment, or to the mitigation of his punishment, for the crime charged, and not offer merely an opportunity for the gratification of his personal desires, or for his greater comfort, or for the granting of a benefit to some third person.” Id.

During the suppression hearing, Mr. Dennis testified that, in the first interview with Detective Johann and Sgt. Cavanah, Detective Johann told him that, if he would admit to the crime, he would not be arrested and he would never see them again. He also testified that Detective Johann told him that the reason they needed Mr. Dennis to admit to the crime was because they wanted to “wipe the slate clean,” “get this old case out of the way,” and “let [H.B.] and her mom know what happened to put their mind at ease.” Mi*. Dennis testified that Detective Johann told him that he could not be prosecuted for rape because the three-year statute of limitations had run and, therefore, he might as well tell them what happened. Mr. Dennis also indicated that he never told the detectives anything incriminating in this interview. Mr. Dennis further stated that, after the first interview, he thought the detectives were satisfied that he could not admit to the crime and he would never see them again.

During the second interview, Mr. Dennis testified that Detective Johann wanted him to admit to the assault to make H.B. and her mom happy and give them peace of mind and comfort. Mr. Dennis stated that, after he told Detective Johann he had already told him everything he knew, Detective Johann became very angry, slammed his fist on the desk, and began to threaten him. In particular, Mr. Dennis testified that Detective Johann told him that if he did not tell him everything he wanted to hear that Detective Johann would “come back down here with a writ and get [Mr. Dennis] out, and get [Mr. Dennis] out of the protection of the prison,” and that Mr. Dennis would “end up somewhere on a lonely dark road with a bullet in [his] head.” Moreover, Mr. Dennis testified that Detective Johann was mad, cussing at him “like a dog” and threatening that he would find a way to “make [Mr. Dennis] pay.”

During the third interview, Mr. Dennis testified that Detective Johann and Detective West told him that H.B.’s mom was unhappy that he had not admitted to the assault and that he might as well go ahead and admit to the crime because they were not going to arrest him. He further testified that Detective West told him that he was “going to crash and burn” if he did not tell them what they wanted to hear. Mr. Dennis stated that the detectives told him that if he would confess, they would go away, leave him alone, and that he “would not be arrested for anything connected with [H.B.’s] crime.” Mr. Dennis testified that, in all of the interviews, Detective Johann told him “dozens of times” that if he would admit to the crime, they would not arrest him and they would cause him no trouble.

Mr. Dennis also testified that at one point during the third interview, Detective Johann left the room to go and call H.B. and her mom. While Detective Johann was out of the room, Mr. Dennis testified that Detective West told him he had to satisfy Detective Johann because if Detective Johann was not satisfied with his answers, they were going to take Mr. Dennis back to Independence because there was no statute of limitations on assault, even if there was a three-year statute of limitations on rape. Mr. Dennis testified that he believed Detective West and thought that if he did not say what the detectives wanted to hear, they would “take [him] out” and he would not be able to get out of prison at his scheduled time.

Finally, Mr. Dennis testified that during the third interview he confessed to the crime after Detective Johann said they were going to have him shackled and taken out. Mr. Dennis testified that the reason he decided to confess at this point was because he had a “flashback” about the threat to his life that Detective Johann had previously made. In particular, Mr. Dennis testified that “since [Detective Johann] threatened my life and since he has the power to take me out of here, he could kill me.” He testified that he decided to confess at that point because “if [he] didn’t, [Detective Johann] could kill me.”

Mr. Dennis’s testimony of what happened during the three interviews, however, is directly contracted by the testimony of Detective Johann. While Detective Johann testified that he might have given Mr. Dennis the impression that the statute of limitations had run on the charge of rape, he never told Mr. Dennis that he would not be prosecuted if he confessed to the crime. Contrary to Mr. Dennis’s testimony, Detective Johann also testified that Mr. Dennis made incriminating statements in both the first and third interviews, prior to his detailed confession. For example, Detective Johann testified that Mr. Dennis admitted in the first interview that the assault on H.B. was a random act and that she did not do anything to provoke the attack. Detective Johann further testified that at no point did he ever make any threats to Mr. Dennis or use any force or coercion.

The evidence presented relating to the admissibility of Mr. Dennis’s statements is reviewed in the light most favorable to the trial court’s ruling. Smith, 944 S.W.2d at 910. Any conflicts in the evidence are for the trial court to resolve, and an appellate court must defer to the trial court’s credibility determinations. State v. Simms, 131 S.W.3d 811, 814 (Mo.App.2004). Based on the trial court’s ruling, it is clear that the trial court chose to believe Detective Johann’s testimony rather than Mr. Dennis’s testimony. The trial court was free to disbelieve Mr. Dennis’s testimony that Detective Johann told him “dozens of time” that he would not be arrested if he confessed and that Detective Johann threatened Mr. Dennis with physical violence. This court defers to the trial court’s credibility determinations and, therefore, that Mr. Dennis’s statements were voluntarily made and not made as a result of any promise of leniency, or because of any threats, force, or coercion. Id.

On appeal, Mr. Dennis recognizes that the trial court could have disbelieved his testimony, so he asserts, for the first time, that he confessed because of an implied promise of leniency based on Detective Johann’s testimony that he may have given Mr. Dennis the “impression” that the statute of limitations on rape had run, and he did so to get Mr. Dennis to “talk.” Mr. Dennis’s own testimony, however, refutes Mr. Dennis’s claim that any “impression” Detective Johann created that the statute of limitations had run on rape was an implied promise that Mr. Dennis would not be arrested if he confessed. In particular, Mr. Dennis testified that before he confessed, Detective West told him that there was no statute of limitations on assault. Thus, any hope that Mr. Dennis may have had that he could not be arrested because the statute of limitations had run on the crimes he committed, should he confess, would have sprung “ ‘from the seeds of [Mr. Dennis’s] own planting,’ ” and would be insufficient to render his resulting confession inadmissible. State v. Schnick, 819 S.W.2d 330, 336-37 (Mo. banc 1991) (citations omitted).

More importantly, however, the record refutes Mr. Dennis’s argument that any implied promise of leniency induced him to confess. Specifically, Mr. Dennis testified that at the point that he was shackled and finally decided to confess, he had a flashback about Detective Johann’s alleged threat. Specifically, Mr. Dennis testified that he decided to tell the detectives what they needed to know at this point because Detective Johann “threatened my life and since he has the power to take me out of here, he could kill me.” In addition, he testified that he needed to do what they wanted him to do “because if I don’t, he could kill me. So, I decided at that point that, yeah, I was going to say what they wanted me to say.” Thus, it is clear from Mr. Dennis’s own testimony that he confessed not based on a promise that he would not be arrested but, rather, because he was afraid for his life. The trial court did not believe Mr. Dennis’s testimony that Detective Johann physically threatened him, which it was free to do. State v. Howell, 143 S.W.3d 747, 752 (Mo.App.2004). Consequently, Mr. Dennis’s argument that he confessed based on an implied promise of leniency is without merit.

Finally, in addition to consideration of any direct or implied promise of leniency, Mr. Dennis’s confessions and statements must also be reviewed under the totality of the circumstances to determine if they were voluntary. Simmons, 944 S.W.2d at 173. On the first three occasions when the officers interviewed Mi*. Dennis, he was advised of his Miranda rights and voluntarily waived those rights. Feltrop, 803 S.W.2d at 13. During the fourth interview, the officers immediately terminated the interview when Mr. Dennis said that he needed to talk to an attorney. Even though he had previously invoked his right to counsel, Mr. Dennis initiated the fifth interview. Moreover, none of the interviews with Mr. Dennis lasted for any protracted length of time. In fact, when Detective Johann was forced to terminate the first interview because Mr. Dennis had to be returned to his cell for a prison count, Mr. Dennis indicated that he did not want Detective Johann to leave and wished to continue the interview. During each interview, Mr. Dennis’s physical needs were attended to; no requests for food, drink, or restroom breaks were denied. On the drive from Farmington to Independence, Mr. Dennis was given the opportunity to stop and use the restroom and was provided with food and medication. Detective Johann also allowed Mr. Dennis to speak with his son after he was transported to Independence. Based on the totality of the circumstances, the record does not support Mr. Dennis’s claim that his statements were involuntary. Mr. Dennis’s second point is denied.

Mr. Dennis’s convictions and sentences are affirmed.

All concur.

      . All statutory references are to the Revised Statutes of Missouri 1986, unless otherwise indicated. See State v. Edwards, 983 S.W.2d 520, 521 (Mo. banc 1999) (defendant is to be tried for an offense as defined by the law that existed at the time of the offense).

      . CODIS is an acronym for Combined DNA Index System.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . To the extent that this court's decisions in State v. Bryant, 756 S.W.2d 594, 597 (Mo.App.1988), and State v. Dighera, 617 S.W.2d 524, 533 (Mo.App.1981), find that the crime of rape under section 566.030 requires that the culpable mental state be as set forth in section 562.021, they should no longer be followed.

      . At the time Mr. Dennis committed the offense of forcible rape, the statute of limitations on forcible rape was three years and there was no statute of limitations for aggravated forcible rape. Sections 566.030, 556.036, RSMo 1986. The offenses committed in this case occurred in February 1987. Therefore, the statute of limitations on forcible rape expired in February 1990. Mr. Dennis was not charged until August 2001. In March 2002, section 556.036 was amended to include forcible rape in the provisions allowing a prosecution to commence at any time.

      . It is not necessary to analyze the significance of Mr. Dennis's failure to receive Miranda warnings during the last two interviews because he made no incriminating statements during either of those interviews.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Timothy A. McELROY, Appellant.
    No. WD 63444.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before: BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Timothy McElroy challenges the sufficiency of the evidence to support his convictions for second-degree assault and armed criminal action. We affirm, finding the testimony of McElroy and the' victim was sufficient to prove he caused serious injury by recklessly discharging a firearm. The parties have been provided with a Memorandum explaining the reasons for our decision, because no jurisprudential purpose would be served by a published opinion.

AFFIRMED. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Billy Lee PHELPS, Appellant.
    No. WD 63716.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.

      Irene C. Earns, Public Defender Office, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Assistant Attorney General, Jefferson City, for respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge.
   ORDER

Billy Lee Phelps appeals the circuit court’s judgment convicting him of statutory sodomy in the second degree. We affirm. Rule 30.25(b).


text:
    Cardell D. BROWN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63633.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before: ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Cardell D. Brown appeals the judgment of the motion court denying his Rule 24.035 motion for postconviction relief following an evidentiary hearing.

For reasons stated in the Memorandum provided to the parties, the judgment is affirmed. Rule 84.16(b).


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Bruce ARRINGTON, Appellant, v. Anita HAMPTON, Respondent.
    No. WD 63725.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.

      John L. Williams, Kansas City, MO, for appellant.
    Tracey T. Chappell, Kansas City, MO, for respondent.
    Before: NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Bruce Arrington (Father) appeals from the trial court’s judgment on his motion to modify child custody and child support. The trial court ordered that Anita Hampton (Mother) and Father have joint legal and physical custody with Mother’s address designated as the child’s mailing address for mailing and educational purposes. This appeal follows.

Facts

Father and Mother had one child, Abrea, born on April 7, 1995. The parties never married. Father filed a paternity action approximately ten months after the child’s birth. The judgment of paternity declared Father to be the child’s natural father and provided that Father and Mother would have joint legal custody, although Mother was to be the child’s primary custodian.

During the summer of 2003, when the child was visiting Father pursuant to the judgment of paternity, Father learned that Mother’s husband had improper sexual contact with the child. As a result, Father filed a motion to modify child custody and child support. The trial court modified the custodial arrangement, granting both parents joint legal and physical custody but ordered that Mother’s address be used as the child’s address for mailing and education purposes.

Standard of Review

The trial court’s judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Furthermore, greater deference is given to the trial court’s determination in child custody proceedings than in any other type of case. Newell v. Rammage, 7 S.W.3d 517, 521 (Mo.App.1999). It is presumed that the trial court reviewed all evidence and based its decision on the child’s best interests. K.J.B. v. C.A.B., 883 S.W.2d 117, 122 (Mo.App.1994).

I.

Although Father’s first point on appeal contends that the trial court “erred in designating the respondent’s address as the mailing address of the minor child for mailing and educational purposes,” his true complaint lies in the fact that the trial court did not modify the child custody arrangement to allow Father a greater period of custody. In other words, Father complains that there was insufficient evidence to support the trial court’s judgment.

Section 452.410.1 provides the requirements that must be satisfied before the trial court may modify a child custody decree:

[T]he court shall not modify a prior custody decree unless ... it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

§ 452.410.1. In determining custody in accordance with the child’s best interest, the trial court must consider eight factors:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any histo-
ry of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.

§ 452.375.2.

Here, the trial court did find that there had been a significant change in circumstances in that there were substantiated allegations of sexual contact between the child and Mother’s husband. However, the trial court found that it would be in the child’s best interest for Mother to retain custody of the child for a greater portion of the year. The trial court noted that Mother had no knowledge of the abuse and had since moved out of the home she shared with her husband. The court also found that Mother had made arrangements for her husband to not have any further contact with the child. As such, the trial court was satisfied with the efforts made by Mother to assure the child’s safety.

Father notes in his argument that the trial court placed a significant emphasis on the fourth factor enumerated in Section 452.375.2 concerning “[wjhich parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent.” Mother testified that Father would sometimes “snatch” the phone away and interrupt conversations between Mother and child. Furthermore, Father even testified that he had tape-recorded such conversations when the child was staying with him. Accordingly, the trial court found that Father interfered with the “unfettered communications” between Mother and child and, therefore, would be less likely to allow the child less frequent, continuing and meaningful contact with Mother.

Father argues that the evidence clearly shows that such a finding was erroneous. He specifically points to Mother’s testimony at trial indicating that she did not want the child to see Father again. Mother testified that “[she] would not like for [the child] to leave the State of Missouri again.” However, Mother further elaborated that “[i]f those papers say that she has to go, then I don’t have any choice. I never tried to keep my daughter from her father, ever.” It would appear that despite her wishes, Mother would not prevent Father from exercising his parental rights and would obey the court’s judgment. As such, the trial court did not err in finding this factor in favor of Mother, nor did it err by finding that it was not in the child’s best interest for Father to have custody for a greater portion of the year.

II.

Father’s second point claims that the trial court erred in ordering that Mother be granted the income tax exemption for the child for the 2003 tax year. He argues that there was no request made or any evidence heard at trial regarding the income tax exemption.

Unless there is a contrary court order or a written declaration to not claim the exemption, the custodial parent is entitled to the tax exemption for a dependent child under the Internal Revenue Code. Rogers v. Rogers, 923 S.W.2d 381, 385 (Mo.App.1996); 26 U.S.C. § 152(e) (1994). Here, there is no dispute that Mother was the custodian of the child during 2003. Accordingly, Mother was already entitled to the tax exemption for the child. Point denied.

III.

Father’s final point claims that the trial court erred in ordering him to pay the entire amount of fees assessed by the guardian ad litem in representing the child. Specifically, he points to the trial court’s oral pronouncement that both he and Mother be equally responsible for such fees and that the amount of $1250 be divided equally. Mother concedes that the fees should have been divided equally. Therefore, pursuant to Rule 84.14, the trial court’s judgment is amended to reflect the Father’s obligation to pay $625, one-half of the guardian ad litem fees, rather than the full amount. In all other respects, the judgment is affirmed.

All concur.

      . Although this court recognizes that the term "primary physical custody” is no longer used in child custody cases, See Loumiet v. Loumiet, 103 S.W.3d 332 (Mo.App.2003), the term is used only to reflect the trial court's language in issuing the judgment of paternity.

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


text:
    Lonnie R. GADDIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64191.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Ruth B. Sanders, Office of Public Defender, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Assistant Attorney General, Jefferson City, for Respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge.
   ORDER

Lonnie R. Gaddis appeals the circuit court’s judgment denying his motion to vacate judgment and sentence without an evidentiary hearing pursuant to Rule 24.035. We affirm. Rule 84.16(b).


text:
    Jason POPE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63839.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Craig A. Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before: PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Jason Pope appeals from the judgment of the motion court, which denied his Rule 24.035 motion for post-conviction. For the reasons explained in the memorandum furnished to the parties, we affirm. Rule 84.16(b).


text:
    Nikisha Necole PRESTON, et al., Appellant Pro Se, v. Rahman POUNDS, Respondent Pro Se.
    No. WD 63610.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Nikisha N. Preston, Germantown, MD, appellant pro se.
    Rahman Pounds, Inglewood, CA, respondent pro se.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ,
   ORDER

PER CURIAM.

Ms. Nikisha Necole Preston appeals the trial court’s judgment granting Mr. Rah-man Kafele sole legal and physical custody of their daughter; the visitation plan including the travel expenses; the child support award retroactive to the date of the Temporary Order; the court order for her to pay Mr. Kafele’s attorney’s fees; and allowing Mr. Kafele to change their daughter’s last name to Kafele.

Mr. Kafele filed a motion to dismiss asserting that this court does not have jurisdiction to hear this case and for Ms. Preston’s failure to comply with several rules, most particularly Rule 84.04.

For the reasons explained in the memorandum furnished to the parties, we affirm. Rule 84.16(b).

      . At the time that this case started, Mr. Ka~ fele's last name was Pounds. Sometime during these proceedings before the trial court he changed his name to Kafele and that is the name by which we will refer to him.


text:
    Cindy FAHLGREN and Catherine Schembri, Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Respondent.
    No. WD 63180.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.

      Rhonda Smiley, Kansas City, MO, for appellants.
    William J. Gotfredson, Kansas City, MO, for respondent.
    Before BRECKENRIDGE, P.J., and SMART and HOWARD, JJ.
   Order

PER CURIAM.

Appellants Cindy Fahlgren and Catherine Schembri (“plaintiffs”) appeal from a summary judgment granted in favor of respondent St. Paul Fire and Marine Insurance Company (“St. Paul”) in the Circuit Court of Jackson County. Plaintiffs argue two points on appeal. In Point I, plaintiffs argue the circuit court erred in granting summary judgment to St. Paul because (A) St. Paul failed to establish its affirmative defense of exclusion due to intentional harm; (B) St. Paul failed to negate coverage as to the corporate defendants’ negligence, negligent retention and negligent supervision; and (C) St. Paul failed to establish its affirmative defense based on the employer’s liability exclusion. In Point II, plaintiffs argue the circuit court, erred in granting summary judgment to St. Paul because (A) St. Paul failed to establish its affirmative defense based on the sexual abuse exclusion; (B) St. Paul failed to negate coverage under the Umbrella policy; (C) St. Paul failed to negate coverage for lack of notice of cooperation; and (D) St. Paul’s motion for summary judgment did not comply with Rule 74.04. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Earl HAYNES, Appellant.
    No. ED 84071.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2004.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Daniel N. McPherson, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Earl Haynes (Defendant) appeals from the judgment upon his conviction by a jury for two counts each of sexual abuse in the first degree, Section 566.100, RSMo Supp. 1993 (Counts I and III); statutory sodomy in the first degree, Section 566.062, (Counts Y and VI); child molestation in the second degree, Section 566.068, (Counts VII and VIII); and statutory sodomy in the second degree, Section 566.064, RSMo 2000 (Counts IX and X) for which Defendant was sentenced to concurrent sentences of five years on each of the sexual abuse counts, twenty years on each of the first degree statutory sodomy counts, one year on each of the child molestation counts, and seven years on each of the second degree statutory sodomy counts. Defendant contests the sufficiency of the evidence to support his conviction on Counts III, IX, and X. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for them information only, setting forth the reasons for this order pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Charles DAILEY, Appellant.
    No. ED 82775.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 21, 2004.
    S. Paige Canfield, St. Louis, MO, for appellant.
    Deborah Daniels, Daniel McPherson, Dora Fichter, (co-counsels), Jefferson City, MO, for respondent.
    Before GEORGE W. DRAPER III, C.J., CLIFFORD H. AHRENS, J. and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Charles Dailey appeals the judgment entered on his convictions for murder in the first degree and armed criminal action.

We have reviewed the parties’ briefs and the record on appeal and find no error. No jurisprudential purpose would be served by a written opinion. The parties have, however, been provided a memorandum setting forth the reasons for our decision in accordance with our local Rule 405. The judgment is affirmed under Rule 30.25(b).


author: WILLIAM H. CRANDALL, JR., Judge.

text:
    John E. HANNA and John E. Hanna Oldsmobile, Inc., Plaintiffs/Appellants, v. Donald DARR and Don Darr Pontiac, Inc., d/b/a Don Darr Chevrolet, Defendants/Respondents.
    No. ED 84229.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 21, 2004.

      Timothy Patrick O’Mara, Brian N. Burns, St. Louis, MO, for appellants.
    Martin M. Green, Allen Patrick Press, Clayton, MO, for respondents.
   WILLIAM H. CRANDALL, JR., Judge.

Plaintiffs, John E. Hanna and John E. Hanna Oldsmobile, Inc., appeal from the trial court’s grant of summary judgment in favor of defendants, Donald Darr and Don Darr Pontiac, Inc., d/b/a Don Darr Chevrolet, in a breach of contract action. We reverse and remand.

The evidence established that in December 1997, Hanna and Darr entered into an oral agreement to own and operate a Chevrolet dealership jointly, with Darr owning a 55 percent interest and Hanna owning a 45 percent interest. They also entered into an agreement to purchase property on which to operate them dealership. Both parties previously owned car dealerships which they were selling. The purchase of the property for the new dealership resulted in tax benefits to Hanna. In February 1998, the parties incorporated Darr-Hanna Chevrolet, Inc. in Missouri. In May 1998, Darr alone acquired a franchise for a Chevrolet dealership from General Motors and operated the dealership as Don Darr Chevrolet (hereinafter “the dealership”). He also leased the property that he and Hanna originally agreed to purchase. Hanna had no ownership interest in the dealership.

In June 2001, Hanna brought the present action against Darr for breach of contract. In his petition, he alleged that Darr breached the agreement with him to own and operate the dealership jointly and to purchase property on which to operate the dealership. He sought damages as follows: (1) for his expenses associated with starting up the dealership, including those for the purchase of the property on which to locate the dealership, totaling $57,082.14; (2) for his income tax liabilities of $111,152.13 incurred because he did not reinvest the money obtained from the sale of his previously-owned car dealership; (3) for his lost salary of $11,000.00 per month; and (4) for his “lost profits.” In June 2003, Hanna amended his petition to include as damages “the loss of [his] percentage of the value of the Chevrolet franchise.” Hanna also retained an accountant, Barbara Thibodeau (hereinafter “the expert”), to furnish an opinion regarding the value of the dealership. The expert prepared a report and was deposed by Darr’s counsel.

In January 2004, Darr filed a motion in limine to bar the expert from testifying. Darr challenged the expert’s testimony because (1) Hanna had not pleaded the value of the dealership as damages, (2) the time to measure damages was at the time of the breach, not at the time of trial, and (3) the expert was not qualified. The court granted Darr’s motion in limine and barred the expert from testifying concerning the fair market value of the dealership. After a hearing on Hanna’s motion to set aside the court’s order barring the expert’s testimony, the parties agreed to treat Darr’s motion in limine as a motion for partial summary judgment. The trial court granted Darr’s motion for summary judgment, finding that the expert’s testimony, as expressed in her report and in her deposition, was “not relevant.” The court entered judgment in favor of Darr on Hanna’s claim for a percentage of the value of the dealership. Hanna dismissed without prejudice his other claims against Darr, making the summary judgment final. See Rule 74.01(b). Hanna appeals from the trial court’s grant of summary judgment on the basis of the exclusion of the expert’s testimony.

In his sole point on appeal, Hanna contends that the trial court erred in excluding the testimony of his expert regarding the fair market value of the dealership, which formed the basis for the trial court’s grant of summary judgment on Hanna’s claim for a percentage of the value of the dealership.

Appellate review of a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will uphold the grant of summary judgment on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. We view the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. We accept as true facts contained in affidavits or otherwise in support of a party’s motion unless contradicted by the non-moving party’s response to the summary judgment motion. Id.

Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.

We first note that Darr’s motion in li-mine, which the trial court treated as a motion for summary judgment, did not comply with Rule 74.04. Rule 74.04(c)(1) requires in relevant part that the movant “state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.... ”

First, Darr’s motion did not summarily state the legal basis for the motion. Darr’s motion did not allege that material facts relevant to the case were uncontro-verted. For example, the motion did not state that the issues either of breach of contract or of liability for such breach were uncontroverted. The only issue raised in Darr’s motion was the propriety of the admission of the expert’s testimony.

Second, Darr’s motion did not meet the particularity requirements of Rule 74.04(c)(1) in that all material facts relevant to this case were not addressed in separately numbered paragraphs. In addition, with the exception of Darr’s statements regarding Hanna’s claim for damages for a percentage of the value of the dealership, Darr did not provide specific references to the pleadings, discovery, exhibits, or affidavits that demonstrated the lack of a genuine issue as to the facts. A summary judgment motion which fails to set forth each material fact in separately numbered paragraphs and fails to specifically reference supporting documentation is defective. Siemens Building Technologies, Inc. v. St. John’s Regional Medical Center, 124 S.W.3d 3, 8 (Mo.App. S.D.2004). Furthermore, Hanna did not comply with Rule 74.04(c)(2) in that he did not respond and “admit or deny each of mov-ant’s factual statements in numbered paragraphs that correspond to movant’s numbered paragraphs.”

Darr’s failure to comply with the particularity requirements of Rule 74.04 and failure to give specific references to supporting documentation impedes proper appellate review. Non-compliance with these requirements is not a matter subject to waiver by a party. Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App. E.D.1995).

Third, Darr did not establish that he was entitled to summary judgment as a matter of law. In order to recover for breach of contract, Hanna had to prove: (1) the existence of a valid contract; (2) the rights and obligations of each party; (3) a breach; and (4) damages. See Evans v. Werle, 31 S.W.3d 489, 493 (Mo.App. W.D.2000). As the defending party, Darr was not required to controvert each element of Hanna’s breach of contract claim in order to establish a right to summary judgment, but only needed to show that the facts negated any one of the elements of the claim. See ITT Commercial, 854 S.W.2d at 381. Yet, Darr did not attack any of the breach of contract elements in his motion, but merely challenged the admission of the expert’s evidence regarding the fair market value of the dealership. This cannot be construed as a negation of the element of damages, because if breach was established, there may have been other ways for Hanna to measure damages and, at the very least, Hanna would be entitled to nominal damages. Thus, Darr did not directly negate any one element of Hanna’s breach of contract claim and did not establish that he was entitled to judgment as a matter of law. In essence, Darr attempted to convert the trial court’s ruling on an evidentiary issue into a summary judgment on the issue of damages.

Because Darr’s motion did not comply with Rule 74.04 and because he did not establish that he was entitled to summary judgment as a matter of law, the trial court erred in granting summary judgment in favor of Darr.

Accordingly, the trial court’s grant of summary judgment is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.

CLIFFORD H. AHRENS, Presiding Judge, KATHIANNE KNAUP CRANE, Judge: Concur.

      . Although each party’s previously-owned dealership was included as a party to this action, we refer to each of the parties in the singular for ease of understanding.

      . In Missouri, it is a fundamental precept of contract law that nominal damages are available where a contract and its breach are established. Carter v. St. John’s Regional Medical Center, 88 S.W.3d 1, 12 (Mo.App. S.D.2002). Proof of the existence of a contract and its breach make a submissible case on damages, no matter whether actual damages have been proven. Id.


author: LAWRENCE G. CRAHAN, Judge.

text:
    James MORGAN, Plaintiff/Cross-Appellant, v. CITY OF ST. LOUIS, et al., Defendants/Respondents.
    No. ED 84267.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 21, 2004.

      Charles W. Bobinette, St. Louis, MO, for appellant.
    Patricia A. Hageman, Carl W. Yates III, St. Louis, MO, for respondents.
   LAWRENCE G. CRAHAN, Judge.

The City of St. Louis (“City”) and its Civil Service Commission (“Commission”) appeal the judgment reversing the decision of the Commission upholding dismissal of Captain James Morgan (“Morgan”) for violation of a City drug policy and reinstating him to the St. Louis Fire Department (“Department”). The circuit court ruled that the finding of the Commission that Morgan had tested positive for drugs after completing a random drug test was not supported by substantial and competent evidence. Morgan cross-appeals from the circuit court’s denial of his motion to remand the case to the Commission to calculate the amount of back pay, interest, and benefits due to him for the wrongful termination of his employment. We affirm the judgment of the circuit court as modified with directions to remand to the Commission to calculate the amount of back pay and any other benefits Morgan lost as a result of his wrongful termination, together with interest as provided by law.

Our scope of review is limited to a review of the administrative ruling and not the decision of the circuit court. Lagud v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d 786, 791 (Mo. banc 2004). Pursuant to article V, section 18 of the Missouri Constitution we are to determine whether the agency’s action is “supported by competent and substantial evidence upon the whole record.” Under section 536.140.2, when the court reviews the record to determine if the findings of the agency are supported by substantial and competent evidence, the court must look to the whole record and not merely the evidence that supports the decision. Lagud, 136 S.W.3d at 791. Thus, a reviewing court is no longer required to view the evidence in a light most favorable to the agency’s decision. Id. For evidence to be substantial, it must be competent and support the Commission’s discretionary determination. Mertzlufft v. Civil Service Comm’n, 85 S.W.3d 63, 66 (Mo.App.2002). Substantial evidence is competent evidence that would have probative force upon the issues if believed. Id.

The evidence before the Commission showed the following. Morgan has been a member of the Department since 1978. In 1990, he became the first from his class to be promoted to Captain. A lifelong resident of St. Louis, Morgan has received numerous awards and distinctions including the “Meritorious Service Award,” the “Departmental Image Award” and “Firefighter of the Year.” St. Louis City Fire Chief Sherman George and two Battalion Chiefs attested to Morgan’s work ethic and good character. He served in many voluntary positions over the years, including working to increase public education about fire safety. He has been tested numerous times for drugs and always passed.

In April 2002, Morgan sought further promotion within the Department. As part of the promotion process, the Department required Morgan to submit to drug testing. On April 11, he was selected for random drug testing and was required to provide urine samples at BJC Health Services. Four days later, Morgan was informed that he had tested positive for earboxy — THC, the marijuana metabolite. Except for inhaling smoke during a fire a week or so before the test or a mistake in the collection or testing processes, he could not think of a reason for a positive test result. As was his right under City of St. Louis Department of Personnel Administrative Regulation No. 120 (“Regulation 120”), Morgan requested that his split sample be tested by an independent laboratory, MedTox. MedTox confirmed the presence of the marijuana metabolite in the specimen, but the results were not quantified and there was no indication whether or not the presence of the marijuana metabolite reached or exceeded the cut-off level for a positive test under the guidelines adopted by the City in Regulation 120.

A pretermination review hearing was called, and Morgan appeared before a three-member Fire Department Review Board (“Board”) in May 2002 to respond to the allegations of drug use. Morgan denied that he had used marijuana, and in his defense he produced the results of an additional independent drug test and a polygraph examination conducted at his expense. The Board felt that it had no other option but to recommend Morgan’s termination to his Appointing Authority, Chief George. Morgan offered to submit to an additional independent polygraph test, but his offer was refused. The Appointing Authority believed he had no discretion and was required to terminate Morgan because of the positive drug test, so Morgan was terminated for violating the City’s drug policy regulations.

Morgan then appealed to and requested a hearing by the Commission. Healings were held in August 2002 before a hearing officer. Morgan moved the Commission to order the urine sample to be provided to a DNA expert for testing prior to the introduction of evidence and briefed the Commission on this issue at the close of the evidence, but no action was taken.

The keeper of records at BJC testified for the Department as to the records regarding the specimen collected from Morgan, records of the delivery of a specimen to MedTox, and a computer-generated laboratory report. The Department did not introduce any evidence concerning the chain of custody of the split sample. Dr. Kammerer, the Director of Toxicology at the Clinical Reference Laboratory that performed the first test, testified, based on the records of his lab and identified the sample bottle. Although Dr. Kammerer did not personally perform the drug test, he described the testing process, including the possibility of false positives, especially when lower levels of the drug are found to be present in a specimen. Dr. Kammerer noted that the initial specimen, tested by the Clinical Reference Laboratory, was found to contain 25 nanograms per milliliter (ng/mL) of the marijuana metabolite upon confirmation testing. Dr. Kammerer stated that if the donor had drank a glass of water before the specimen was given, it very possibly would have been below the cutoff level.

A positive drug test that would result in the dismissal of a City employee is defined in Regulation 120 as “a test result that confirms the presence of drugs or drug metabolites at the level that equals or exceeds the limits established by the United States Departments of Transportation and Health & Human Services.” Under the federal regulations in effect here at all relevant times, the cutoff concentration for a confirmation drug test of marijuana was 15 ng/mL.

Dr. Kammerer also identified records showing the split sample was sent to Med-Tox. There was no evidence from Dr. Kammerer or from anyone at the MedTox lab showing the receipt of the split sample by MedTox. The records do show, however, that a split sample was sent from the Clinical Reference Laboratory to MedTox, and MedTox reported back its test results on the split sample. The records of both companies indicate that the sample had the same patient identification number associated with Morgan. The report from Med-Tox, admitted over Morgan’s objection to the lack of foundation, confirmed the presence of the marijuana metabolite, but it did not quantify the results or otherwise report whether it equaled or exceeded the cutoff concentration of 15 ng/mL specified by Regulation 120 as constituting a positive drug test.

Morgan testified on his own behalf. The hearing officer sustained City’s objection to the introduction of the independent polygraph examination report on the basis of relevancy. At the end of the hearings, the hearing officer prepared a written report that was delivered to the Commission.

By a vote of 2-1, the Commission upheld the termination of Morgan’s employment and denied his request for DNA testing. Morgan then filed a petition for judicial review of the Commission’s decision with the circuit court. The circuit court reversed the decision of the Commission and reinstated Morgan to his former position as Captain in the Department. The circuit court ruled that the City did not provide substantial and competent evidence of the chain of custody of the split sample, the validity of the testing procedures used by MedTox, or the condition of the split sample when received by MedTox. Although the MedTox lab report confirmed the presence of the marijuana metabolite, it did not quantify the results or otherwise report whether it equaled or exceeded the criterion for a positive drug test under the regulations adopted by the City. Accordingly, the court found that the finding of the Commission that Morgan had violated the City’s drug policy was not supported by competent and substantial evidence.

The circuit court entered its order restoring Morgan to the rank of Captain with the Department on December 23. This judgment was silent with respect to Morgan’s back pay. On January 20, 2004, the City filed its notice of appeal. Morgan subsequently filed a motion to amend the judgment by remanding the cause to the Commission for the purpose of calculating his back pay, plus interest, and lost benefits. The circuit court refused to amend, stating that it had no jurisdiction to amend judgment since the notice of appeal was previously filed. On March 2, Morgan filed his own notice of appeal and cross-appealed in order to ensure his right to the remedy of appellate review of the trial court’s refusal to amend the judgment to include back pay and interest.

On appeal, Morgan asserts six points of error. In his first point, Morgan claims the Commission erred in upholding his termination from City service because its finding that he tested positive for the marijuana metabolite is unsupported by competent or substantial evidence because: (1) no evidence was offered to establish the qualifications, training or experience of the employees of Clinical Reference Laboratory who performed the test on the initial mine sample; and (2) no evidence was offered to establish the chain of custody of the split sample, its condition when received by MedTox, the validity of Med-Tox’s testing- procedures, or the cutoff levels used by MedTox Laboratory. We find it unnecessary to address the qualifications and chain of custody issues because Med-Tox’s failure to quantify the level of the marijuana metabolite detected is disposi-tive of the appeal.

As discussed above, Morgan was terminated from his position pursuant to the City’s Regulation 120, which mandates the dismissal of employees who test positive for drugs. Regulation 120 further specifies that a “positive drug test” is “a test result that confirms the presence of drugs or drug metabolites at the level that equals or exceeds the limits established by the United States Departments of Transportation and Health & Human Services.” Regulation 120 (emphasis added). At all relevant times, that level was 15 ng/mL.

The level of the marijuana metabolite that was confirmed to be present in the first sample tested by Clinical Reference Laboratory was 25 ng/mL, which exceeds the threshold set forth under Regulation 120 for a positive drug test. However, Regulation 120 also grants City employees the right to have the split sample tested by a second, independent laboratory if the employee makes the request within 72 hours after notification of a positive test result. Morgan timely requested independent testing of his split sample, which was forwarded to MedTox with instructions to test the sample “to the level of detection.” This is not the criterion specified in Regulation 120. MedTox provided the City with a report indicating that the split sample tested positive for the marijuana metabolite “to the limit of detection,” which likewise is not the criterion specified in Regulation 120. Because the MedTox report does not reveal the level of the marijuana metabolite detected, it does not constitute a “positive drug test” as defined in Regulation 120.

The Appointing Authority had the burden of proving that Morgan tested positive for drugs as defined in Regulation 120. Although the testing of the initial sample can constitute substantial and competent evidence if the employee does not timely .request independent testing of the split sample, we find that if an employee does timely request independent testing of the split sample, Regulation 120 imposes upon the Appointing Authority the additional burden of establishing that the split sample also meets the criteria specified for a “positive drug test.” To hold otherwise would render the employee’s right to request independent testing of the split sample meaningless.

Because the City did not provide substantial and competent evidence that the split sample tested by MedTox met the criteria specified in Regulation 120 for a “positive drug test,” the Commission’s determination that Morgan violated Regulation 120 is likewise not supported by substantial and competent evidence. Accordingly, the circuit court’s judgment ordering Morgan reinstated to the position of Captain is affirmed. In view of this determination, we need not address Morgan’s remaining points alleging error by the Commission.

In his cross-appeal, Morgan claims the circuit court erred in failing to remand the case to the Commission to determine the amount of back pay, interest and benefits to which he was entitled by reason of his wrongful termination. The City claims that Morgan is not entitled to back pay or other benefits because he failed to present any evidence of the amounts due at the hearing before the Commission. We disagree. The amount of back pay, interest and benefits due is not in issue and is not susceptible to proof unless and until the Commission orders reinstatement.

Missouri law is clear that an employee who is wrongfully terminated is entitled to reinstatement with full back pay. See, e.g., Stovall v. Civil Service Comm’n of City of St. Louis, 636 S.W.2d 364, 367-68 (Mo.App.1982). An improperly dismissed public employee is entitled upon reinstatement to recover his lost back pay from the date of termination to the date of his reinstatement. See Edmonds v. McNeal, 596 S.W.2d 403, 408 (Mo. banc 1980). The employee should be reimbursed for lost salary from the date of termination to reinstatement minus any deductions for income received during that time from both private and public employment or from unemployment benefits. Moreland v. Paule, 659 S.W.2d 609, 614-15 (Mo.App.1983). In determining the amount by which the lost salary should be mitigated, credit is also given for reasonable attorney’s fees and expenses incurred in vindicating the right to reinstatement. Id. If the Commission determines that Morgan was paid unemployment benefits or wages subsequent to his termination, then such sums should be reduced by the expenses and attorney’s fees Morgan has incurred. See Bates v. City of St. Louis, 728 S.W.2d 232, 235 (Mo.App.1987). Any excess expenses and attorney’s fees over what Morgan earned or should have earned shall be disregarded and may not be used to increase the damage award. Id. Thus, Morgan is not entitled to an award of attorney’s fees in addition to his reimbursement for lost salary, but he is entitled only to have those fees and any reasonable and necessary expenses incurred in connection with this lawsuit credited against the amount of income that the Commission determines he earned or should have earned between the time of his termination and reinstatement. See Moreland, 659 S.W.2d at 614-15.

We affirm the judgment of the circuit court as modified and remand with directions to order the Commission to determine the amount of back pay, calculated as set forth above, seniority, and any other benefits Morgan lost as a result of his wrongful termination, together with interest as provided by law.

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

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

      . The original specimen is initially divided into two separate vials in the presence of the employee prior to testing. The first sample is screened to determine the presence of drugs in an employee's system. If the test is positive upon confirmation testing, the employee may request that the split sample be provided to an independent certified laboratory for additional analysis.

      . The Appointing Authority is the person, here the Fire Chief, having the power to make appointments to any position in the city service under his control. The Appointing Authority is charged with deciding disciplinary matters for the City over its firefighters, subject to review by the Commission.

      . In an order dated June 7, 2004, this Court denied the City’s motion to dismiss Morgan’s appeal and ruled that the trial court in fact had jurisdiction to consider the merits of the motion, to amend the judgment and that Morgan’s notice of appeal was timely filed.