author: HAROLD L. LOWENSTEIN, Judge.

text:
    Weldon W. PERRY, Jr., and J. Armin Rust, Respondents, v. Deana AVERSMAN, Circuit Clerk, Appellant.
    No. WD 63991.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Terrence M. Messonnier, Lexington, MO, for appellant.
    Weldon W. Perry, Jr., Lexington, pro se.
    James A. Rust, Richmond, pro se.
    Before LOWENSTEIN, P.J., SMART, J., and EDWIN H. SMITH, C.J.
   HAROLD L. LOWENSTEIN, Judge.

This is an appeal from a court-tried case dealing with the disposition of cash deposited for a bail bond pursuant to the Fifteenth Circuit Court’s Local Rule 67.1.4. The underlying issue is whether court costs and fines may be deducted from a pre-trial bail bond filed under Rule 33.01(d)(5).

Statement of Facts

The parties have stipulated to the following facts. Three defendants charged with criminal offenses in Lafayette County (Saline and Lafayette County comprise the Fifteenth Circuit) posted ten-percent cash bonds for pre-trial release pursuant to Rule 33.01(d)(5). The bonds required them to “attend all court hearings” and “to submit to any ... judgments” of the court. Each defendant assigned their respective interest in the bonds to their attorneys, the respondents, Weldon Perry and Armin Rust. All three defendants later pled guilty and were placed on probation, with one of them ordered to pay a fíne. Although the respondents made a demand for the release of the entire bond amount based on the assignments, the appellant, the Fifteenth Judicial Circuit Clerk, Deana Aversman, relying on Local Rule 67.1.4, denied the request. Instead, the appellant sought to deduct the unpaid court costs and the fine from the ten-percent cash bond.

The respondents subsequently filed a two-count petition seeking mandamus for the release of the entire bond amount and a declaration that the local rule was invalid. The trial court ruled in favor of the respondents on each count, stating that the local rule was “contrary to the letter and spirit of Rule 33.01(d)(5) and Rule 33.15” in cases where the defendant has appeared, entered a plea, and has been placed on probation. The judgment required the entire bond deposit be disbursed to the respondents and declared Local Rule 67.1.4 void and unenforceable.

Analysis

Appellants claim that the trial court erred in invalidating Local Rule 67.1.4 because there was no express prohibition on the rule’s adoption. The Missouri Constitution authorizes circuit courts to adopt local rules, so long as they are consistent with the rules of the Missouri Supreme Court. Mo. Const, art. V, § 15.1. A local rule is inconsistent if it specifically prohibits something the Supreme Court Rules permit, or vice versa. State ex rel. State of Missouri v. Riley, 992 S.W.2d 195, 196 (Mo. banc 1999).

Here, the trial court found that Local Rule 67.1.4 was contrary to Supreme Court Rules 33.01(d)(5) and 33.15. The local rule specifically allows the clerk to retain funds called for in the criminal judgment. Local Rule 67.1.4 provides:

The clerk shall not refund monies posted as bond other than upon tender of the bond receipt or order of the court. If the bond receipt is in the defendant’s name, the clerk shall first deduct and retain all unpaid fines and costs, after which the clerk shall refund any balance to either the defendant or the defendant’s designated payee. All bonds shall be retained until all fines and cost[s] have been paid.

By contrast, Rule 33.01 does not specifically address the retention of bond funds to pay costs and fines. Rule 33.01 covers the various conditions that are required or may be imposed for the pre-trial release of defendants charged with bailable offenses. In subsection (c), this rule states that the defendant “will submit to the orders, judgment and sentence” of the court as a condition for pre-trial release. Subsection (f) states that the court releasing the person must enter an order “stating the conditions imposed,” and so inform the person of the conditions and all “penalties applicable to violations.” Similarly, Rule 33.15 does not address bond retention, in that it provides, “When the conditions of the bond have been satisfied, the court shall release the obligors.” Consequently, the Supreme Court Rules have not specifically prohibited the local rule here.

The respondents counter that the only function of a pre-release cash bond is to reasonably ensure the defendant’s court appearance. They further argue that after the plea is accepted and the judgment and sentence entered, the purpose has been fulfilled.

A cash bail bond is defined as a sum of money posted by the defendant or another person “upon condition that such money will be forfeited if the defendant does not comply with the directions of a court requiring his attendance at the criminal action or proceeding involved and does not otherwise render himself amenable to the orders and processes of the court.” Black’s Law DictionaRY 142 (6th ed.1990). It would be safe to say that the common understanding of defendants or persons posting a cash deposit bail bond is that appearance of the defendant is the primary objective of posting the bond, and the money on deposit will be returned if the defendant appears at all times. What is not so clear is that the rule allows conditions to be contained in the bond that require the defendant to comply with orders of the court, which can include fines and court costs.

The ultimate question is not what the posted money is intended to be used for upon its return, but whether the person posting the money is given adequate notice that fines and costs may be deducted before the deposit is returned. Rule 33.01(f) (“The court shall inform such person of the conditions imposed and of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation.”).

In this case, the people posting the bond money for defendants’ pre-trial release were not made sufficiently aware of the potential deductions from the bail amount if the costs and fines were not paid by the defendant. (The same could be said had the defendant posted the amount of the bond).

Although case law and tradition indicate the primary purpose and condition of bail bonds and cash bail bonds is to reasonably assure the presence of the accused in court until the final disposition of the case, the trial court may impose additional conditions before releasing the defendant on bond, such as for subsequent payment of costs and fines. However, if the trial court wishes to do so, specific language to that effect must be made a part of the conditions of the pre-release bond or, at a minimum, an acknowledgment thereof made by the defendant, or person posting the cash deposit. Here, the procedures employed by Lafayette County do not provide sufficient notice to people who post the bail amount.

To be enforceable for the purpose of retaining all or a portion of deposited funds on a cash bail bond, the clerk of the circuit court must outline in the receipt given to the depositor that delineated unpaid costs, fines, and expenses may be deducted before a refund will be made. Although an argument can be made that such notice of what items can be deducted for reason of nonpayment by the defendant must be in the bond itself, substantial compliance may be had for implementation of a local rule similar to the one at bar by notice in the bond receipt or by written acknowledgment in an approved bond assignment.

Lafayette and Saline County’s, or any county having such a local rule may be accompanied by either a receipt or signed acknowledgment of the payor that if the defendant is found guilty, unpaid costs and fines may be paid from the sum. In the alternative, counties could use an assignment ensuring that the defendant understands and agrees items ordered by the judge (e.g., fines and court costs) may be deducted from the bond before any money is delivered to an assignee. The better practice for all circuits wishing to implement a local rule similar to the one in the case at bar would be to also include such a notice as a special condition in the bond itself.

This court affirms the portion of the judgment that requires a full refund of deposited funds be made to the respondents. The portion of the judgment declaring Local Rule 67.1.4 void is reversed. As outlined above, the local rule may be enforced when the depositor on a cash or ten-percent bond is so notified about unpaid costs or fines, in language contained as a condition of the bond, or who executes a receipt that spells out why a full refund may not be had.

All concur.

Appendix

      . At the outset, this court notes that this case neither involves a bond forfeiture pursuant to Rule 33.14, nor does it involve remedies available for violation of bond conditions while the defendant is on probation.

      . Supreme Court Rule 33.01(d)(5) states:
      (d) The court shall in cases release the accused upon his written promise to appear, unless the court determines that such release will not reasonably assure the appearance of the accused. If the court so determines it shall impose on or more of the following conditions for his release which will reasonably assure such appearance:
      (5) Require the execution of a bond in a stated amount and the deposit in the registry of the court of ten percent, or such lesser sum as the court directs, of such sum in case or negotiable bonds of the United States or the State of Missouri or any political subdivision thereof.

      . Lafayette County’s bond reads:
      I/We as principal/sureties agree to pay the State of Missouri the sum of $_unless the defendant abides by the conditions as set out below.
      BOND CONDITIONS AND CONSEQUENCES FOR FAILURE TO MEET CONDITIONS:
      Having been (charged with/convicted of) the criminal offense(s) shown above, the defendant (or his surety) has posted this bond in order to be released from the sheriff's custody.
      THE DEFENDANT IS REQUIRED TO:
      1. Attend all court hearings as set by this court or any court to which this case is transferred or appealed.
      2. Submit to any orders, judgments and sentences of this court or any court hearing this case.
      3. Inform the court of any change of address.
      4. OTHER CONDITIONS:
      a. Defendant shall not tamper with a witness or victim nor allow another person on his behalf to tamper with a witness or victim as described on the reverse of this form.
      If the defendant follows the above conditions, he will be released from this bond and any cash or securities deposited will be returned to the defendant or his assignee after the original receipt is presented to the clerk.
      THE DEFENDANT UNDERSTANDS that the consequences for failure to follow any of the above conditions are:
      1. Forfeit any cash or securities deposited with the court.
      2. The court has the authority to sell the defendant's property to collect the full amount of the bond.
      3. If the defendant fails to abide by condition 1, a warrant will be issued for his arrest and in addition to the above charges, a charge of failure to appear may be filed.

      . The Supreme Court’s Operating Rule 6 for local rules does not contain any provision in Section 67.1 for a model local rule pertaining to use of retained funds from a pre-trial cash bond to pay costs and fines. A review of local rules of circuits in this court's district reveals that several courts do have a rule similar to the Fifteenth Circuit’s Rule 67.1.4. The Thirteenth Circuit (Boone and Callaway Counties), for example, by Rule 67.1.3 provides that where a cash bond is posted, and the receipt is assigned, costs and fines will be deducted before the money is delivered to the assignee. A form for this assignment is located in Vol. Ill Missouri Court Rules 442 (2004), and is made a part of the appendix to this opinion. Jackson County (Sixteenth Circuit) requires the person posting a cash bond to sign an acknowledgment with language similar Boone and Callaway’s that advises the person that if the defendant is found guilty the bond money will be used to pay for certain matters including fines and costs.

      . Supreme Court Rule 33.15 states:
      When the conditions of the bond have been satisfied the court shall release the obligors. When a forfeiture of the bond is set aside the court may release the obligors. Any surety may be released upon depositing cash in the amount of the bond or by a timely surrender of the defendant.

      . The following show a chronological progression of the law in this area. As may be noted, the emphasis on securing the court appearance of the defendant is the most significant condition of his or her pre-release bond. See, e.g., State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522, 524 (1954) (stating, that where defendant did not appear at trial and surety attempted to find him, recognizance was not accepted to enrich the treasury, but to instead enforce the criminal laws that the defendant appear for trial and sentence); Ex parte Chandler, 297 S.W.2d 616-17 (Mo.App.1957) (holding purpose of bail was not to punish defendant ahead of trial but to encourage appearance); State v. Batson, 765 S.W.2d 676, 677(Mo.App.1989) (holding that a surety on pre-trial bail bond was not liable when defendant did not appear for probation violation hearing); State v. Echols, 850 S.W.2d 344, 345-46 (Mo. banc 1993) (Grandfather and uncle posted full $100,000 in Jackson County for defendant. Stamped on back of pretrial release bond signed by defendant was an assignment and notice that money deposited was considered by court as belonging to defendant, and language that costs, fines and "various other fees,” would be deducted before any money was refunded. An acknowledgment signed by the grandfather stated he had read and understood that costs and fees could be deducted. Defendant failed to appear after jury verdict. Court stated(ing) that the law is clear that a difference exists between a cash bond and a surety bond, but that while the depositor of a cash bond is not obligated to produce the defendant at trial, the money deposited is considered property of the defendant is in the nature of insurance and is used when there is nonappearance.); State v. Riley, 992 S.W.2d 195, 196 (Mo. banc 1999) (permitting circuit to establish local rules that were not inconsistent with and did not conflict with Supreme Court rules or the statutes, explaining that local rules may establish "additional requirements ... not unreasonable ... nor unnecessarily burdensome”); Holleran v. Holleran, 998 S.W.2d 99, 104-05 (Mo.App.1999) (reiterating the principle that money deposited for a cash bail bond is deemed defendant's property and once defendant has appeared and the criminal action is complete, depositor has superior right to cash).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Don A. BELL-JOHNSON, Appellant.
    No. WD 64045.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Ruth Sanders, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Appellant, Don Bell-Johnson (Bell), was convicted for resisting arrest, Section 575.150, and driving with a revoked license, Section 302.321. He appeals his conviction, claiming the trial court erred in overruling his Batson objection to the State’s peremptory strike of a venireper-son and for insufficient evidence on the charge of resisting arrest. Rule 30.25(b).


author: JEFFREY W. BATES, Chief Judge.

text:
    In re the ESTATE OF Clayton Dean MOREAU, a Minor. Robert Scott Royster, Petitioner-Appellant, v. William and Marilyn Council, Respondents-Respondents.
    No. 26075.
    Missouri Court of Appeals, Southern District, Division Two.
    April 27, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied May 17, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Daniel R. Schramm, Chesterfield, MO, for appellant.
    Richard Anthony Skouby, St. James, MO, for respondents.
   JEFFREY W. BATES, Chief Judge.

In April 1999, William and Marilyn Council (“the Councils”) were granted letters of guardianship for their grandson, Clayton Dean Moreau (“C.D.”), by the probate division of the Circuit Court of Pulaski County, Missouri. These guardianship letters were issued to the Councils after a trial at which the court adjudged C.D.’s natural parents, Robert Royster (“Father”) and Mahealani Royster (“Mother”), unfit to act as the child’s guardians. Only Father appealed from this judgment. We affirmed the Councils’ appointment as C.D.’s co-guardians. In re Moreau, 18 S.W.3d 447 (Mo.App.2000) (“Moreau I”).

Insofar as pertinent here, § 475.083.2 states “[a] guardianship ... may be terminated by court order after such notice as the court may require: ... (3) If the court finds that a parent is fit, suitable and able to assume the duties of guardianship and it is in the best interest of the minor that the guardianship be terminated.” In March 2002, Father filed a third amended petition to terminate the guardianship of C.D. with the probate division of the Pulaski County Circuit Court. This petition alleged, inter alia, a guardianship was no longer necessary for any reason because Father “is a willing, able, and fit parent who can reas-sume custody of his son.” The Councils denied this allegation in their answer to the petition. Mother did not join in Father’s petition or otherwise seek to have the trial court reconsider or set aside its earlier adjudication that she was unfit to serve as C.D.’s guardian.

A second trial was held on July 9, 2003 to determine Father’s current fitness to serve as C.D.’s guardian. In January 2004, the trial judge entered a judgment denying Father’s petition to terminate the guardianship. The judgment included the following findings:

3. That [Father] and [Mother] have previously been adjudged unfit, unable and unwilling to assume the duties of guardianship over their son and that [the Councils] have had custody of [C.D.] for many, many years.
4. That [Father] has not substantially changed his behavior or associations that previously caused him to be adjudged unfit. [Father] is currently unfit to be the minor’s guardian.

This appeal followed.

Our review of this case is conducted pursuant to Rule 84.13(d). We will affirm the trial court’s judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Moreau, 18 S.W.3d at 449; Matter of T.A.P., 953 S.W.2d 638, 639-40 (Mo.App.1997). Father argues the trial court’s decision not to terminate the guardianship was erroneous for two reasons: (1) the trial court applied an improper evidentiary standard in determining the current fitness of Father and Mother to serve as C.D.’s guardians; and (2) the trial court’s decision is not supported by substantial ■evidence or is against the weight of the evidence because the Councils failed to offer sufficient evidence to overcome the presumption that Father is a fit person to assume guardianship of C.D. or to establish that continuation of the guardianship is necessary. Finding no merit in either contention, we affirm.

Because of the intertwined nature of the issues involved and to promote a better understanding of the rationale for this decision, our opinion in this second appeal should be read in conjunction with our earlier opinion in Moreau I. To avoid undue repetition, we will presume the reader is generally familiar with Moreau I and limit our recital of the facts from the prior appeal to those essential to our discussion of the issues addressed herein.

Point I

In Father’s first point, he contends the trial court misapplied the law in two respects: (1) by finding Father was still unfit because he had not substantially changed the behavior or associations that previously made him unfit; and (2) by not evaluating Mother’s current fitness to serve as C.D.’s guardian. The essence of Father’s argument is that, even though he and Mother previously had been adjudged unfit to serve as C.D.’s guardians, they both should have been afforded a rebuttable presumption of parental fitness once Father’s petition to terminate the guardianship was filed. In other words, Father argues the mere filing of the petition to terminate the guardianship essentially nullified the prior adjudication and placed upon the Councils the duty to prove, once again, both Father and Mother were unfit. We find this argument to be fundamentally flawed.

We agree with Father that letters of guardianship for a minor child can only be issued when “the parents or the sole surviving parent ... are unwilling, unable or adjudged unfit to assume the duties of guardianship ....”§ 475.030.4(3). Therefore, an award of custody to a third party, via letters of guardianship, “must be premised upon a finding that the natural parent is unfit, unable, or unwilling to care for his children.” Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998). We also agree with Father that, in a proceeding brought by a third party to obtain letters of guardianship for a minor child, a natural parent is initially entitled to the benefit of rebuttable presumption that the minor child’s best interest is best served by being in the custody of his or her parents. In re L.C.F., 987 S.W.2d 830, 834 (Mo.App.1999). ‘When this presumption is overcome by proof that the parent is unfit, unwilling or unable to take care of the child, then appointment of a statutory guardian is necessary.” Id.

In the case at bar, the rebuttable presumption of parental fitness was overcome at the first trial by proof, which the trial court found credible, that both Father and Mother were unfit to serve as C.D.’s guardians and, consequently, letters of guardianship should issue to the Councils. Mother did not appeal from the judgment, and Father’s appeal was denied by this Court. Moreau, 18 S.W.3d at 453-54.

In the first prong of Father’s argument, he claims the presumption of his parental fitness was restored once he filed his petition to terminate the guardianship. Based on this premise, Father then argues the trial court erroneously required Father to prove he was fit, rather than requiring the Councils to rebut the presumption by proving, for a second time, Father was unfit. We find Father’s argument untenable and conclude that in a proceeding to terminate C.D.’s guardianship, the burden of proving Father’s fitness to assume custody of C.D. was imposed by statute upon Father.

We begin by noting § 475.010(18) defines the word “Ward” to include “a minor ... for whom a guardian ... has been appointed.” The next step in the analysis is to examine § 475.083. Subsection 4 of this statute authorizes a person, on behalf of a ward, to individually petition the court to decrease the powers of the guardian. Subsection 6 states, in pertinent part, “[u]pon the filing of a petition without the joinder of the guardian ..., the court shall cause the petition to be set for hearing with notice to the guardian. ... If the ward ... is not represented by an attorney, the court shall appoint an attorney to represent the ward ... in such proceeding. The burden of ‘proof by a preponderance of the evidence shall be upon the petitioner. Such a petition may not be filed more than once every one hundred eighty days.” (Underlining added.) Subsection 6 applies to a petition to terminate a guardianship. See In re W.L.B., 6 S.W.3d 408, 411 (Mo.App.1999).

Here, the trial court followed this statute precisely. Father’s petition to terminate the guardianship was made individually without the joinder therein of the Councils, who were C.D.’s co-guardians. The trial court set the matter for a hearing and appointed a guardian ad litem to represent C.D. in the proceeding. The trial court also required Father to prove the allegation in his petition that he was now a willing, able, and fit parent who could assume custody of C.D. That was the proper evidentiary standard for the trial court to apply pursuant to § 475.083.6.

Statutory construction aside, we would reach the same conclusion based solely on our review of applicable precedent. In Searcy v. Seedorff, 8 S.W.3d 113 (Mo. banc 1999), the trial court dissolved the marriage of Hannah and Ricky Searcy and granted third-party custody of their four children to the Seedorffs. Four months later, Hannah filed a motion to modify custody, alleging a substantial and continuing change in her circumstances had occurred because she was now gainfully employed and could provide the children with a stable and secure home. The trial court granted the motion to modify and transferred custody of the children to Hannah. Id. at 115. The Supreme Court of Missouri reversed the ruling and remanded the cause with instructions to deny the motion to modify because there had been no substantial change of circumstances of the children or their custodian to warrant a custody change. Id. at 118. The Supreme Court noted the trial court could not have initially awarded third-party custody to the Seedorffs unless the presumption in favor of parental custody had been rebutted. Id. at 118. In the Supreme Court’s discussion of the issue, it made the following statement that we believe is controlling here: “the parental presumption applies only where the appropriate custodian is first determined in a child custody proceeding and the parent is a party to the proceeding, and not in a subsequent proceeding to modify custody.” Id. at 117.

An action to have a guardian appointed for a minor child is one method by which child custody may be adjudicated in Missouri. See State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178, 180 (Mo. banc 1967); Chipman v. Counts, 104 S.W.3d 441, 446 (Mo.App.2003). Here, the issue of C.D.’s custody was first determined in the guardianship proceeding. Father and Mother were both parties, and the presumption in favor of parental custody was rebutted as to each one of them. The Councils were awarded custody of C.D. via the letters of guardianship issued by the probate division. Father’s petition to terminate the guardianship amounts to nothing more than a vehicle to modify C.D.’s custody. Once the presumption of Father’s parental fitness was overcome at the first guardianship trial, the presumption disappeared and did not apply to Father’s subsequent petition to terminate the guardianship. Searcy, 8 S.W.3d at 117; Cotton, 977 S.W.2d at 264; In re Marriage of Carter, 794 S.W.2d 321, 326-27 (Mo.App.1990).

In so holding, we acknowledge Father’s reliance on Flathers v. Flathers, 948 S.W.2d 463 (Mo.App.1997), but this case does not support Father’s arguments for two reasons. First, the issue in Flathers was whether “the parental presumption exists in a dissolution proceeding where a third party has previously been awarded letters of guardianship as to the minor child in question.” Id. at 467. The case at bar is not a dissolution action; it is a continuation of the existing guardianship proceeding in which the issue of C.D.’s custody was first adjudicated. Second, the mother in Flathers was awarded custody in the dissolution action only after the guardianship had been terminated. Id. at 465. A guardianship was no longer necessary because the trial court found the mother was a fit and proper person to have custody of her children, based on then-existing conditions. Id. at 469-70. Once the guardianship was terminated, we agree the mother in Flathers was entitled to a renewed presumption of fitness when she sought custody of her children in the dissolution action. In contrast, the trial court in the case at bar refused to terminate C.D.’s guardianship because Father was still unfit to be the child’s guardian. Under these circumstances, Father is not entitled to any presumption he is a fit parent so long as C.D.’s guardianship continues. Accordingly, Flathers is inappo-site.

In the second prong of Father’s argument, he claims the fifing of his petition to terminate the guardianship also restored Mother’s presumption of parental fitness. Based on this premise, Father then argues the trial court erred by failing to address Mother’s current fitness to serve as C.D.’s guardian. We disagree. In the guardianship action, the trial court assumed jurisdiction over C.D.’s custody pursuant to the Uniform Child Custody Jurisdiction Act, §§ 452.440-.550. Section 452.495 states:

A custody decree rendered by a court of this state which had jurisdiction under section 452.450 binds all parties who have been served in this state or notified in accordance with section 452.460, or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made, unless and until that determination is modified pursuant to law, including the provisions of section 452.410 and sections 452.440 to 452.550.

Mother participated in the first trial, was adjudged unfit, and did not appeal from the judgment. Accordingly, the ruling as to her fitness became res judicata because “the award of custody therein made is a conclusive adjudication in respect to the fitness and unfitness of the parents in respect to the over-all conditions then existing. Custody can later be changed only by proof of other further or different circumstances which call for such a change.” Garbee v. Tyree, 400 S.W.2d 193, 195 (Mo.App.1966). In deciding whether to grant or deny Father’s petition to terminate the guardianship, the trial court was not required to address Mother’s current fitness because she had already been adjudicated unfit, and she did not petition the trial court to modify its earlier decision. Father’s first point is denied.

Point II

In Father’s second point, he contends the trial court’s decision is not supported by substantial evidence or is against the weight of the evidence because the Councils failed to offer sufficient evidence to: (1) overcome the presumption that Father is a fit person to assume guardianship of C.D.; or (2) establish that continuation of the guardianship is necessary. This argument lacks merit because it is based on an unsound premise. For the reasons already stated in disposing of Father’s first point, the Councils did not bear the burden of proving either of these issues. Instead, Father bore the burden of proving that he was a fit parent and that the guardianship should be terminated. § 475.083.2(3); § 475.083.6.

We find In re Werner, 133 S.W.3d 108 (Mo.App.2004), dispositive of this point. There, an incapacitated adult ward filed a petition to terminate her guardianship, alleging she had been restored to capacity. After the trial court decided to continue the guardianship, Werner appealed. She argued the trial court’s judgment was not supported by substantial evidence because the guardian failed to prove Werner was still incapacitated. Her argument was rejected because, as the petitioner, she bore the burden of proving she had been restored to capacity. “The burden was on Werner to prove that she had capacity to meet her essential requirements without court-ordered assistance. Section 475.083.6. She does not meet her burden by arguing that Waddell failed to prove the lack of that capacity.” Id. at 111. Father’s second point is denied.

The judgment of the trial court is affirmed.

PARRISH, P.J., and SHRUM, J., Concur.

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


text:
    STATE of Missouri, Respondent, v. Stephen G. BONE, Appellant.
    No. ED 83723.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 3, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Rosalynn Koch, Columbia, MO, for Appellant.
    Deborah Daniels, Leslie E. McNamara, Jefferson City, MO, for Respondent.
    Before GEORGE W. DRAPER III, C.J., BOOKER T. SHAW, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Stephen G. Bone (hereinafter, “Defendant”) appeals from the judgment entered after a jury found him guilty of assault of a law enforcement officer in the second degree, Section 565.082 RSMo (2000). The trial court sentenced Defendant to fifteen years imprisonment. Defendant raises four allegations of error. He claims the trial court erred in: admitting evidence that he refused to submit to testing for blood alcohol content; admitting testimony he failed the horizontal gaze nystagmus test; allowing the arresting officer to testify regarding each of the persons he arrested after administration of the horizontal gaze nystagmus test; and imposing his fifteen year sentence.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Jonathan BROCK, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85528.
    Missouri Court of Appeals, Eastern District, Division One.
    May 3, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Jonathan Brock, Charleston, pro se.
    Deborah Daniels, Evan Joseph Buch-heim-co-counsel, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Jonathan Brock (Movant) appeals from a judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that because Movant’s motion did not allege facts, not refuted by the record, showing that trial counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney, Movant was not entitled to an evidentiary hearing, and the motion court’s findings of fact and conclusions of law are not clearly erroneous. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

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


text:
    NORTH KANSAS CITY LEVEE DISTRICT, et al., Respondent, v. FOREVER GREEN OF MISSOURI, L.L.C., Appellant.
    No. WD 63527.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Joel B. Laner, Kansas City, MO, for Appellant.
    Jerome E. Brant, Liberty, MO, for Respondent.
    Before: HARDWICK, P.J., ULRICH and NEWTON, JJ.
   ORDER

PER CURIAM.

This appeal arises from a quiet title action filed by the North Kansas City Levee District concerning a property dispute against Forever Green of Missouri, L.L.C. The trial court determined that title to the disputed property was vested in the Levee District both by superior chain of title and adverse possession. Forever Green appeals, contending the judgment is unsupported by substantial evidence, against the weight of the evidence, and erroneously applies the law.

Upon review of the record, we find no error and affirm the trial court’s judgment. We have provided the parties with a Memorandum explaining the reasons for our decision because a published opinion would have no precedential value. Rule 84.16(b).


text:
    Elmer D. WILLIAMS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85103.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 17, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Daniel L. Viets, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Nicole L. Loethen, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The movant, Elmer Williams, appeals from the judgment denying his Rule 29.15 motion after an evidentiary hearing. The trial court’s findings of fact and conclusions of law are not clearly erroneous. An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed. Rule 84.16(b).


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

text:
    STATE of Missouri, Respondent, v. Earl HOPSON, Appellant.
    No. ED 84509.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    Application for Transfer to Supreme Court Denied June 30, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Craig A. Johnston, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Attorney General, Jefferson City, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Earl Hopson (Defendant) appeals from the judgment upon his conviction by a jury of resisting arrest, a class D felony, Section 575.150, RSMo 2000, endangering the welfare of a child in the first degree, a class D felony, Section 568.045, and possession of cocaine base, a class C felony, Section 195.202. Defendant was sentenced as a persistent drug offender, Sections 195.275 and 195.285, to concurrent terms of four years’ imprisonment for resisting arrest, four years’ imprisonment for first-degree endangering the welfare of a child, and ten years’ imprisonment for possession of cocaine base. On appeal, Defendant challenges the sufficiency of the evidence to support his convictions for resisting arrest and first-degree child endangerment. Defendant also contends the trial court abused its discretion in precluding Defendant from presenting evidence of police failure to conduct fingerprint test on the plastic baggies, and the trial court plainly erred in overruling Defendant’s objection to the State’s statement in closing argument that the jury had to believe all of Defendant’s testimony or none of it. We affirm.

On appeal, Defendant challenges the sufficiency of the evidence to support his convictions for resisting arrest and endangering the welfare of a child in the first degree. We view the facts in the light most favorable to the verdict. State v. Chaney, 967 S.W.2d 47, 49 (Mo. banc 1998). Viewed in the light most favorable to the verdict, the evidence presented at trial established the following relevant facts. Officer Paul Bachman was on patrol in the city of Jennings between 4:30 and 5:00 p.m. when he was called to respond to the area of Switzer and Jennings Station Road to investigate a complaint of children throwing rocks. When Officer Bachman arrived in the area, he did not locate any children. Officer Bachman, however, noticed Defendant driving a car with a license plate that looked like the tags had been torn away from another license plate. Officer Bachman pulled behind the car as it traveled west on Switzer and ran a check on the license plate. Upon checking, Officer Bachman discovered that no license plate was issued to the car driven by Defendant. Thereafter, Officer Bach-man activated his emergency lights in an effort to pull Defendant over.

Defendant slowed down over the length of the street in front of three or four houses and then threw three “off-white chunks” from the driver’s side window. Officer Bachman drove up to where Defendant had thrown the “off-white chunks,” exited his patrol car, and picked up the three “off-white chunks,” which were wrapped in individual plastic baggies. At this point, Defendant who had stopped the car sped off at a high rate of speed. Officer Bachman got back into his patrol car, turned on the siren, and pursued Defendant.

Defendant proceeded down the block to where some people were playing football in the street. The people were able to get out of the way of Defendant’s oncoming car after being alerted to the danger by Officer Bachman’s patrol car siren. Defendant came within ten to fifteen feet of hitting them. At the end of the block, Defendant turned right onto another street at a speed of about forty miles per hour, making the car appear “to almost go on the two wheels.” Once he was halfway down the street, Defendant stopped the car, got out, and ran down the street. Officer Bachman got out of his patrol car and pursued Defendant on foot. At the same time, Officer Bachman called for assistance and provided a description of Defendant. Defendant ran down the street before turning and running through backyards.

Officer Patrick Giratos responded to Officer Bachman’s call. When he arrived in the area, Officer Giratos saw Defendant, who matched Officer Bachman’s description, walking down the street heading towards the car he had abandoned. Officer Giratos apprehended Defendant and handcuffed him without resistance. Officer Bachman arrived and identified Defendant. At this point, Officer Bachman approached Defendant’s car and found Defendant’s eight-month-old son in the backseat of the car in a car seat drinking a bottle of formula. The baby started to choke on and spit up the formula, so Officer Bach-man removed the baby from the car and patted him on the back until he burped. Officer Bachman contacted the baby’s grandfather, who came to get him.

Forensic testing on the “off-white chunks” confirmed that they were cocaine base, weighing a total of .85 grams. Defendant was charged with felony resisting arrest, endangering the welfare of a child in the first degree, and possession of cocaine base.

At the trial, Defendant testified in his own defense. Defendant denied all of the offenses and claimed mistaken identity. Defendant claimed he was a passenger in the car and that the driver was the person who threw the plastic baggie out of the driver’s side window and ran from the car. In rebuttal, the State recalled Officer Bachman, who testified that Defendant was the only man in the car and no one was in the passenger seat.

After the presentation of all the evidence and arguments, the jury found Defendant guilty on all charges. The trial court sentenced Defendant as a persistent drug offender to concurrent terms of four years’ imprisonment for resisting arrest, four years’ imprisonment for endangering the welfare of a child, and ten years’ imprisonment for possession of cocaine base. Defendant now appeals.

In his first point, Defendant claims the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and entering judgment and sentence on the jury’s guilty verdict of felony resisting arrest because the State did not put forth sufficient evidence to prove all the elements of the crime. Defendant contends there was insufficient evidence to prove Officer Bachman was making an arrest of Defendant, and that Defendant reasonably should have known Officer Bachman was making an arrest of him. We disagree.

In examining the sufficiency of the evidence, our review is limited to a determination of whether there is sufficient evidence from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. Chaney, 967 S.W.2d at 52. In applying this standard, we accept as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. Id.

Section 575.150 sets forth the crime of resisting or interfering with arrest. Section 575.150 provides, in pertinent part:

1. A person commits the crime of resisting or interfering with arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer; ...

This section applies to “arrests, stops or detentions with or without warrants and to arrests, stops or detentions for any crime, infraction or ordinance violations.” Section 575.150.2. Resisting or interfering with an arrest for a felony is a class D felony. Section 575.015.5.

From the evidence the jury could properly find Officer Bachman was making an arrest of Defendant for felony possession of a controlled substance, and that Defendant fled from Officer Bachman for the purpose of preventing that arrest. The record indicates that Defendant stopped his car after throwing out the white chunks of cocaine base. It was not until Officer Bachman picked up the plastic baggies of cocaine that Defendant began to flee. Officer Bachman immediately got in his patrol car, turned on the siren, and pursued Defendant. Defendant then abandoned his car and fled on foot. Officer Bachman also got out of his car and pursued Defendant on foot. Once Defendant was apprehended, he was placed under arrest. The reasonable inference from the evidence was that Defendant was being arrested for possession of the cocaine base recovered by Officer Bachman.

Defendant contends the evidence that Officer Bachman was actually arresting Defendant was insufficient because there was no testimony from Officer Bachman that he was arresting Defendant for the possession of cocaine charge. Defendant cites two cases in support of his argument that such testimony was required, State v. Long, 802 S.W.2d 573 (Mo.App. S.D.1991), and State v. Wanner, 751 S.W.2d 789 (Mo.App. E.D.1988). Those cases, however, are inapposite to this case. There was no evidence that the defendants in either case had committed the offense for which they would be arrested prior to their flight. Long, 802 S.W.2d at 574-77; Wanner, 751 S.W.2d at 790-91. In both eases, the officers specifically denied an intention to arrest the defendants until after they fled, and then admitted that they decided to arrest only because the defendants fled. Long, 802 S.W.2d at 575; Wanner, 751 S.W.2d at 791.

Here, while Officer Bachman never specifically testified he was arresting Defendant for possession at the time Defendant fled, he also never testified that he was not arresting Defendant for possession or that he was only arresting Defendant for fleeing. The reasonable inference from Officer Bachman’s actions following the discovery of the cocaine and Defendant’s subsequent flight was that Officer Bachman was arresting Defendant for possession of cocaine. It is not necessary for the officer to say “you are under arrest” when the circumstances indicate the officer is attempting an arrest. State v. Chamberlin, 872 S.W.2d 615, 619 (Mo.App. W.D.1994).

Moreover, Defendant admitted at the trial that he had twice been convicted of possession of a controlled substance, one of the convictions with the intent to deliver. Based on his own experience, Defendant would have known that the possession of a controlled substance, in this case cocaine, would result in his arrest. Defendant knew, or at the very least, reasonably should have known, that he was being arrested for possessing the cocaine base he threw out of the window of his car, and fled in an effort to avoid that arrest. The evidence was sufficient to support Defendant’s conviction for felony resisting arrest. Point one is denied.

In his second point, Defendant contends the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and entering judgment and sentence on the jury’s guilty verdict of felony first-degree endangering the welfare of a child because the State did not put forth sufficient evidence to prove all the elements of the crime. Defendant maintains there was insufficient evidence from which a reasonable juror could find beyond a reasonable doubt that Defendant “knowingly” created’ a “substantial risk” to his child’s life, body, or health. We disagree.

A person commits the crime of endangering the welfare of a child in the first degree if “[t]he person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old.” Section 568.045.1(1). In determining whether actions rise to this level, we look at the totality of the circumstances as presented by the evidence. State v. Kuhn, 115 S.W.3d 845, 849 (Mo.App. E.D.2003). The mental elements of the defendant’s knowledge may be proven by direct or circumstantial evidence and reasonable inferences drawn from the circumstances surrounding the event. Id. The statute does not require severe injuries that endanger a child’s welfare, but rather that the act of the defendant himself creates a substantial risk of harm. Id.

Here, the jury had to find sufficient evidence to support that Defendant knowingly created a substantial risk to the life, body, or health of his eight-month-old son when he led “police on a car chase and exited the vehicle to run whole [his son] was in the vehicle.” We find there was sufficient evidence to support the jury’s verdict.

Here, Defendant created an actual risk of substantial harm to his child’s life, body, or health by knowingly engaging in a car chase with police while his son was in the back of the car. According to Officer Bachman, Defendant was driving his car at a “high rate” or “rapid rate” of speed. Officer Bachman stated Defendant’s speed got up to about fifty miles per hour and that Defendant had to slow down to forty miles per hour prior to turning. Although there was no indication of the posted speed limits in the area, the jury could have made a reasonable inference that the area where the chase took place was a residential neighborhood where the streets were lined with houses and there were pedestrians playing football in the streets. Thus, the jury could reasonable infer that in residential areas the speed limits would have been lower than fifty miles per hour.

Defendant drove in a manner practically certain to result in an accident, thus placing the child in a substantial risk of injury. Defendant was actively fleeing from police. Defendant did not slow down as he approached the pedestrians in the street, and due to his high speed came within ten to fifteen feet of striking them. Furthermore, Defendant turned the corner at about forty miles per hour, nearly causing his car to go on two wheels. Turning at such a high speed in such a manner made it practically certain that Defendant would lose control of his car and wreck, causing injury to the child in the car. There was sufficient evidence that Defendant knowingly drove his car in an attempt to flee from police that created a substantial risk to the life, body, or health of his son. Defendant’s conviction for endangering the welfare of a child in the first degree is supported by the evidence. Point two is denied.

In his third point, Defendant argues the trial court abused its discretion in precluding Defendant from presenting evidence that the police failed to perform any fingerprint analysis on the plastic baggies containing the cocaine. Defendant maintains the evidence was relevant. We disagree.

Prior to trial, Defendant filed a motion to allow questioning about the lack of fingerprint testing on the plastic baggies. Defendant contended that he did not possess the baggies, that the baggies belonged to another person, and that the other person’s fingerprints might have been left on the baggies. At trial, during cross-examination of Officer Bachman, Defendant asked if the police performed any test or analysis in order to connect Defendant to the plastic baggies containing the cocaine. The State objected, noting the trial court had earlier overruled Defendant’s motion concerning the lack of fingerprint testing. The trial court sustained the objection. Defendant made an offer of proof with Bachman’s testimony. Bachman stated that no fingerprint analysis had been done on the baggies, but that the crime lab could have conducted such an analysis. The trial court again sustained the State’s objection. Finally, prior to closing argument, Defendant again requested the trial court to reconsider its ruling and allow Defendant to argue the lack of fingerprint testing. The trial court denied Defendant’s request.

The trial court has broad discretion in ruling on the admission or exclusion of evidence at trial. State v. DeClue, 128 S.W.3d 864, 868 (Mo.App. S.D.2004). Absent a clear abuse of discretion, we will not disturb the trial court’s ruling regarding the admission or exclusion of evidence. Id. An abuse of discretion occurs when the trial court’s evidentiary ruling is clearly against the logic of the circumstances before the court, and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful and deliberate consideration. State v. Wilson, 105 S.W.3d 576, 583 (Mo.App. S.D.2003). If reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id.

Here, the police did not conduct fingerprint analysis on the plastic baggies. The State, however, is not required to take fingerprints from objects allegedly touched by a defendant. State v. Holmes, 389 S.W.2d 30, 34 (Mo.1965); State v. Schneider, 736 S.W.2d 392, 402 (Mo. banc 1987). The State is not bound to gather and present all physical evidence conceivably germane to its case in chief. Schneider, 736 S.W.2d at 402. More precisely, the State is not required to account for its failure to gather or present such evidence. Id. Thus, a defendant is not entitled to argue an adverse inference from the State’s failure to take fingerprints. Schneider, 736 S.W.2d at 402; State v. Hope, 954 S.W.2d 537, 546 (Mo.App. S.D.1997). We cannot say the trial court abused its discretion in following pri- or case law and logic and refusing to admit evidence of the lack of fingerprint testing. Point three is denied.

In his fourth and final point, Defendant asserts the trial court plainly erred in overruling Defendant’s objection to the State’s statement in closing argument that the jury could not just believe part of Defendant’s testimony, but rather the jury had to believe either all or none of it. Defendant argues the statement misstates the law and the comment had a decisive effect on the jury. We disagree.

During the rebuttal portion of the State’s closing argument, the following occurred:

[PROSECUTOR]: [Defense counsel] asked you not to disbelieve [Defendant] because he’s not polished. If you call lying being not polished, okay. But you can’t believe part of it, just pick and choose portions that you want to believe and don’t want to believe.
[DEFENSE COUNSEL]: Misstates the jury’s obligation.
THE COURT: Overruled. [PROSECUTOR]: If you don’t believe it all, you can’t believe any of it.

While Defendant objected to statement at trial, he did not include the allegation of error in his motion for new trial and therefore, did not preserve the issue for appeal. State v. Jones, 128 S.W.3d 110, 113 (Mo.App. E.D.2003). Thus, we review for plain error only. Rule 30.20. To reverse a conviction under plain error review on a claim of improper closing argument, a defendant must establish not only that argument was improper, but also that it had a decisive effect on the outcome of the trial and would amount to manifest injustice or miscarriage of justice if the error was left uncorrected. Id. Statements made during closing argument will only rarely amount to plain error. Id.

In closing argument, the prosecutor is permitted to comment on the evidence and the credibility of witnesses, and in doing so, may even belittle and point to improbability and truthfulness of specific evidence. State v. Storey, 40 S.W.3d 898, 910 (Mo. banc 2001). When the remarks at issue here are viewed in the context of the entire argument, clearly the prosecutor was challenging Defendant’s credibility. Here, the prosecutor’s comments were not an attempt to define the law regarding the jury’s evaluation of witness credibility, but was a rhetorical device to explain that because Defendant was obviously lying about some things, none of his testimony should be believed. This is evident from the context in which the comment was made.

During his closing argument, defense counsel made the following argument:

Now, you’ll say, well, I don’t know if I can believe a lot of the things that [Defendant] said. Well I’m not asking you to believe everything that [Defendant] said. I’m asking you to believe that he didn’t have the drugs. That’s what I’m asking you to believe.

In response, the prosecutor started his rebuttal argument as follows:

[Defense counsel] just said — I’m trying to get this right — he just told you he’s not asking you to believe everything that [Defendant] said, just the fact that he wasn’t possessing the drugs. Ladies and gentlemen, it can’t happen like that. If you don’t believe — if there’s something you don’t believe, you can’t believe any of his testimony. If he lied once, he lied over and over and over again, and [defense counsel] says that I’m asking to you [sic] believe everything the police officer says. Well, yeah, he’s telling you the truth. If he was making something up and trying to put a case on [Defendant], why would it have been throwing it on the street and picking it off the street? Why wouldn’t he have found it in his pocket when he arrested him, if he was going to make up a story. He could make up a tighter case than that. Do you understand he’s not lying. He’s telling you what it was.

Shortly thereafter, the prosecutor made the challenged comment, immediately followed by the following:

If you don’t believe it all, you can’t believe any of it. I submit to you his story was changing right in front of your very eyes. He kept rambling on and a person who rambles like that is making it up as he goes along. You all heard him. He’s not credible.

The context surrounding the comments demonstrates that the prosecutor’s comment was not a statement on the law, but a factual statement based on the nature and quality of Defendant’s testimony. We find no error plain or otherwise in the trial court’s overruling Defendant’s objection to the statements. Point four is denied.

The trial court’s judgment and sentence is affirmed.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J„ concur.

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

      . Defendant does not raise any challenge to the sufficiency of the evidence to support his conviction for possession of cocaine base.

      . Defendant attempts to focus on the initial stop of Defendant. At the time of the initial stop, Officer Bachman had no intent of arresting Defendant for a felony, nor would Defendant have reasonably believed that he was being arrested. However, the crime was committed after the initial stop when Defendant threw cocaine out of the window and Officer Bachman recovered the cocaine. At that point, Defendant fled from Officer Bach-man in an effort to resist arrest for possession of cocaine base.

      . This is the language contained in the verdict-directing instruction for endangering the welfare of a child in the first degree.

      . While there is no Missouri case directly on point, the State cites to two cases where other states with similar child endangerment statutes have found that engaging in a high speed chase in an attempt to evade police with children in the car created a substantial risk of harm. State v. Anspach, 627 N.W.2d 227 (Iowa 2001); Snow v. Commonwealth, 33 Va. App. 766, 537 S.E.2d 6 (2000). Although these cases can be distinguished on some factual grounds, we find their logic persuasive to the case at hand. In Anspach, the Iowa Supreme Court held evidence that the defendant, while attempting to flee from police, was driving nearly twenty miles per hour over the speed limit with four small children scattered in the cab of his truck not properly restrained was sufficient to support substantial risk to the children’s physical health or safety. Anspach, 627 N.W.2d at 232-34. In Snow, the Virginia Court of Appeals held the defendant’s action of driving at speeds at over one hundred miles per hour with children in the car in an attempt to avoid police was "willful” and "so gross, wanton and culpable as to show a reckless disregard for human life.” Snow, 537 S.E.2d at 9-11.

      . The record does not clearly reflect when this motion was denied.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    David MARTINEZ, Claimant-Appellant, v. NATIONWIDE PAPER, Employer-Respondent, and International Paper Co., Insurer-Respondent.
    No. 26261.
    Missouri Court of Appeals, Southern District, Division One.
    May 18, 2005.
    Application for Transfer Denied June 9, 2005.

      Randy Charles Alberhasky, The Albe-rhasky Law Firm, Springfield, MO, for appellant.
    J. Sean Dumm, Bart E. Eisfelder, Fo-land, Wickens, Eisfelder, Roper & Hofer, P.C., Kansas City, MO, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

David Martinez (“Appellant”) appeals from the final award of the Labor and Industrial Relations Commission (“Commission”) denying compensation for an injury suffered on the premises of Nationwide Paper (“Respondent”). We reverse and remand for further proceedings.

Respondent utilized a warehouse in Springfield, Missouri for its business as a regional distributor of paper products. Appellant’s claim arises from an injury sustained at that warehouse as he was unloading products being delivered to Respondent from one of its suppliers. Appellant claims that Respondent’s liability is as a statutory employer. His claim was initially heard and denied by an administrative law judge (“ALJ”). Thereafter, on review, the Commission affirmed the ALJ’s award, incorporated it into the final award denying compensation, and found that it was supported by competent and substantial evidence. This appeal followed.

On appellate review of an award by the Commission,

[a] court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence. Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.

Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003) (citations omitted). “In reviewing a workers’ compensation award, we review the findings of the Commission and not those of the ALJ,” unless the Commission incorporates the ALJ’s award and decisions, in which event we consider the findings and conclusions of the Commission as including the ALJ’s award. Loven v. Greene County, 63 S.W.3d 278, 282 (Mo.App. S.D.2001). On appeal, “in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding.” Section 287.495.1. We defer to the Commission on credibility issues and the weight given to conflicting evidence, but we independently review questions of law without deference to the Commission’s findings. Henley v. Tan Co., Inc., 140 S.W.3d 195, 198 (Mo.App. S.D.2004). ‘Whether a workers’ compensation claimant is an employee is a question of law, not a finding of fact, and is subject to correction by an appellate court.” Chouteau v. Netco Const., 132 S.W.3d 328, 332 (Mo. App. W.D.2004).

Section 287.040.1 provides:
[a]ny person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

The General Assembly adopted Section 287.040 to prevent employers from circumventing the requirements of the Workers’ Compensation Act by hiring independent contractors to perform work the employer would otherwise perform. Bass v. Nat’l Super Markets, Inc., 911 S.W.2d 617, 619 (Mo. banc 1995). The statute clearly provides that “statutory employment exists when three elements co-exist: (1) the work is performed pursuant to a contract; (2) the injury occurs on or about the premises of the alleged statutory employer; and (3) the work is in the usual course- of business of the alleged statutory employer.” Id. at 619-620.

Here, the ALJ made the following findings of fact, among others:

[Respondent’s] distribution center would have products delivered to the warehouse. The suppliers they bought from would contract with a number of trucking companies to deliver the products to [Respondent]. When the products arrived the truck driver was responsible for unloading the merchandise at the loading dock. These truck drivers would hire “lumpers” to unload the trucks for a fee. Steve McPhetridge, [sic] was the warehouse manager for [Respondent] at the time of the alleged injury in May 1999. He testified that the truck drivers were responsible for unloading the trucks and that any lum-pers that were hired were hired and paid by the individual drivers. [Respondent] never hired or paid any of the lumpers.
[Appellant] had begun lumping at the [Respondent’s] warehouse as well as other locations several weeks before the accident. His friend and fellow lumper Joe Hart contacted the claimant. Mr. Hart would receive calls from someone saying that there was a truck at [Respondent’s] that needed unloading. [Appellant] did not know who called Mr. Hart. He would immediately go down to the warehouse and negotiate a price with the truck driver to unload the goods. Once the goods were unloaded the truck driver would pay him. The truck driver would usually call his company and get approval to do this in advance of hiring the lumpers. Often, the company would send a comcheck made out directly to Mr. Hart and [Appellant] ....
On May 26, 1999, [Appellant] went to [Respondent’s] by himself as Mr. Hart could not go that day. A driver for U.S. Express, a common carrier, hired him. The truck driver had to call U.S. Express for authority before hiring him. [Appellant] was hired and began unloading the truck. [Appellant] was allowed to use a [Respondent] pallet jack to use [sic]. A worker at [Respondent] would show him where to put the product on the dock. During the process of one trip with the pallet jack [Appellant] was backing up and felt himself hit something. He stepped to the left and his right foot got stuck on another jack. He could not stop and his foot became caught between the two jacks....
Susan Antrim, ... the custodian of records for [Respondent] testified that [Appellant] was not listed on any payroll record for [Respondent]. She said lum-pers would not be on their payroll records. She said that they would hire companies, rather than individuals, to deliver goods to the warehouse. These independent drivers would be responsible for unloading the truck or hiring a lumper if they did not want to unload the truck.

With reference to whether Appellant was a statutory employee of Respondent, the ALJ found, in her conclusions of law:

While [Appellant] was working under contract of U.S. Express as a lumper, and could possible be a statutory employee of the trucking company for which he was unloading the product, he was not under any contract with [Respondent]. I do not find he was a statutory employee of [Respondent].

For the reasons that follow, we reverse and remand.

It appears from the ALJ’s conclusions of law that the lack of liability of Respondent as a statutory employer was determined based on the fact that there was no direct contract between itself and Appellant. As further support for this inference, we note the absence of any mention in the findings of fact or conclusions of law about whether the work being done by Appellant was or was not work that was in the usual course of Respondent’s business, one of the elements of statutory employment.

A direct contractual relationship between the injured employee and a statutory employer is not required by Section 287.040.1. See Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 118 (MoApp. W.D.2004) (there was no direct contractual relationship between a statutory employee/truck driver and the statutory employer which leased the truck, along with the driver, from the owner). The fact that statutory employment may exist in the absence of a direct contractual, relationship between the injured employee and a statutory employer is also clear by the provisions of Section 287.040.4, which provides, in pertinent part:

In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily hable may be recovered from those primarily liable, ... No such employer shall be hable as in this section provided, if the employee was insured by his immediate or intermediate employer.

“Under this subsection, all contractors or subcontractors are hable under the Workers’ Compensation Act to all employees immediately or remotely under it.” Chouteau, 132 S.W.3d at 335.

We also note some confusion arising from the findings of fact in this case. The Commission found both that the suppliers of the products would contract with the trucking companies delivering the products and it was the responsibility of the truck driver to unload the truck; and also found that Susan Antrim said that “they would hire companies, rather than individuals, to deliver goods to the warehouse.” The ALJ was not clear, with reference to the latter findings, whether “they” referred to the supplier of the products or Respondent. As her testimony was summarized by the ALJ, Ms. Antrim was testifying about Respondent’s payroll records when she said “they” would hire companies, thus indicating that it was Respondent she was referring tó. Viewed in that fashion, the finding could be interpreted as concluding that Respondent hired the trucking companies to deliver the product. A review of the record demonstrates that Ms. Antrim, in testifying about Respondent’s practice of sometimes hiring independent contractors to deliver products from its warehouse to customers, gave the following testimony:

Q. You are contracting these companies to come and pick up supplies—
A. Right.
Q. —and take them — or to bring them supplies to you?
A. That is my understanding.

Consequently, we are unable to determine from the findings of fact whether the ALJ found that Respondent did or did not hire carriers to bring the product to its warehouse from suppliers.

Section 287.460.1 requires that an award be accompanied by findings of fact and rulings of law. In doing so, the Commission should make a sufficient finding to show whether the basis of their decision was an issue of fact or a question of law. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 142 (Mo. banc 1952). “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” Id. at 143.

To the extent the Commission’s award denied Appellant’s claim of statutory employment with Respondent based on the lack of a direct contractual relationship between the two, it was a misapplication of the law. Because the Commission’s findings were not sufficient to permit us to determine what it found with reference to the elements of statutory employment, the award must be reversed and the matter remanded to the Commission for further proceedings not inconsistent with this opinion.

PREWITT, J., and RAHMEYER, J., concur.

      . Nationwide Paper was purchased by XPEDX, a wholly owned subsidiary of International Paper, after Appellant’s injury. At the time of this claim, Nationwide Paper was the alleged employer and International Paper was shown as the insurer. We refer to "Respondent” as encompassing all for purposes of clarity.

      . Loven was overruled, in part, by Hampton as to the appropriate standard of review. ■ See Hampton, 121 S.W.3d at 225. Hampton did not disturb the principle for which we cite Loven.

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


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jackie D. BLACKBURN, Defendant-Appellant.
    No. 25805.
    Missouri Court of Appeals, Southern District, Division Two.
    May 23, 2005.
    Motion for Rehearing and Transfer to Supreme Court Denied June 13, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Irene Earns, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for respondent.
   JEFFREY W. BATES, Chief Judge.

Jackie Blackburn (“Defendant”) was charged by amended information with committing the class C felony of attempted arson in the first degree, in violation of § 564.011 (“Count One”); and with a second count of committing the class C felony of domestic assault in the second degree, in violation of § 565.073 (“Count Two”). A jury found Defendant guilty of each offense, but made no sentencing recommendation because Defendant was a prior and persistent offender. See § 557.036.4(2). The trial court sentenced Defendant to a term of 10 years imprisonment for each offense and ordered the sentences to run consecutively. Defendant appeals. He contends the trial court committed plain error by: (1) failing to give Defendant’s proffered Instruction No. A submitting the offense of domestic assault in the third degree for the jury’s consideration; and (2) imposing a sentence in excess of the statutory maximum for the crime of second degree domestic assault. Because neither of Defendant’s asserted claims of plain error facially establish substantial grounds for believing a manifest injustice or miscarriage of justice has occurred, we decline to engage in plain error review. See Rule 30.20. Therefore, the judgment is affirmed.

I. Summary of the Facts

Given the narrow scope of the issues presented by Defendant’s appeal, an exhaustive recitation of the facts is unnecessary. Defendant does not challenge the sufficiency of the evidence to support his conviction on either offense. Viewed in a light most favorable to the verdict, the following facts were adduced at trial.

Defendant and Carrie Elson (“Elson”) were involved in an intimate relationship for approximately 12 years. During that time, Defendant fathered two children with Elson. In October 2001, Defendant and Elson lived in a trailer in Stoutland, Missouri. Their daughter, Ashley Brown (“Ashley”), and John Melton (“Melton”) also lived in the trailer. There was only one door through which persons could enter and exit the residence. On October 30, 2001, Elson asked Defendant to leave because of his drug use. Defendant left the home and went to stay with his mother, who also lived in Stoutland.

At 2:30 a.m. on November 3, 2001, Defendant called Elson and asked to come home. Melton and Ashley, who was then one year old, were in the trailer with Elson when Defendant called. Elson told him to go back to his mother’s house.

After being rebuffed by Elson, Defendant flagged down his cousin, Shannon Pinion (“Pinion”). Pinion was riding around in his Blazer with an acquaintance, Donna Stradt (“Stradt”). Defendant said he had just gotten off the phone with his girlfriend and wanted to be taken to their trailer. Pinion drove himself, Defendant and Stradt there. Once they arrived, Defendant got out of the Blazer and cut the telephone wires to the residence. He then grabbed a two-gallon jug of gasoline and began pouring gasoline all over the outside of the trailer. When Pinion tried to stop Defendant, he said he was going to “burn the house down.” After Defendant set the porch and the only door in and out of the trailer on fire, Pinion successfully extinguished the blaze with a wet rug. While Pinion was putting out the first fire, Defendant grabbed another gas jug and placed a rag in the spout. Defendant set the rag on fire. Pinion was able to get the jug away from Defendant and stomp out the burning rag. He persuaded Defendant to get in the Blazer, and they drove away. Pinion took Defendant to his mother’s house, where he was later arrested. Additional facts necessary to our analysis of the case are included below as we address Defendant’s two points on appeal.

II. Standard of Review

In order to be entitled to relief under the plain error rale, “[a] defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant’s rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected.” State v. Deckard, 18 S.W.3d 495, 497 (Mo.App.2000). The burden of proving the existence of such a manifest injustice or miscarriage of justice rests on defendant. See State v. Cole, 844 S.W.2d 493, 500 (Mo.App.1992).

“A request for plain error review requires us to go through a two-step analysis.” State v. Stanley, 124 S.W.3d 70, 77 (Mo.App.2004). We first determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Id. If facially substantial grounds are found to exist, we then determine whether a manifest injustice or a miscarriage of justice has actually occurred. Id.

Since Defendant’s first point on appeal alleges instructional error, we believe the following observations are apropos. “Instructional error seldom rises to the level of plain error.” State v. O’Toole, 83 S.W.3d 622, 630 (Mo.App.2002); State v. Thomas, 75 S.W.3d 788, 791 (Mo.App. 2002). In order for Defendant to carry his burden of establishing plain error relating to jury instructions, merely demonstrating prejudice is insufficient. State v. Hagan, 113 S.W.3d 260, 267 (Mo.App.2003). Instead, Defendant must meet the higher burden of demonstrating “that the trial court so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury’s verdict.” State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003); State v. Nolan, 872 S.W.2d 99, 103 (Mo. banc 1994).

III. Discussion and Decision

In Defendant’s first point, he contends the trial court committed plain error by failing to give Defendant’s proffered Instruction No. A, which would have submitted the offense of domestic assault in the third degree for the jury’s consideration. The facts relevant to this point are set forth below.

The amended information charged Defendant with committing the class C felony of domestic assault in the second degree because he “attempted to cause physical injury to Carrie L. Elson by setting fire to a residence occupied by Carrie L. Elson, and Carrie L. Elson and defendant were family or household members in that Carrie L. Elson and defendant were adults who had resided together in the past and have a child in common.” These facts, if proven, would constitute a violation of § 565.073.1(1), which states:

A person commits the crime of domestic assault in the second degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor, as defined in section 455.010, RSMo, and he or she: (1) Attempts to cause or knowingly causes physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation ....

At the close of the evidence, the State tendered Instruction No. 7, a verdict-directing instruction submitting the offense of domestic assault in the second degree. This instruction was based upon MAI-CR 3d 319.74 and stated:

INSTRUCTION NO. 7

As to Count Two, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about November 3, 2001, in the County of Camden, State of Missouri, the defendant, attempted to cause physical injury to Carrie El-son by setting fire to a residence occupied by Carrie Elson, and
Second, that, Carrie Elson and defendant were adults who had resided together in the past, had been in a continuing social relationship of a romantic or intimate nature, and have a child in common,

then you will find the defendant guilty under Count Two of domestic assault in the second degree under this instruction.

A person attempts to cause physical injury when, for the purpose of causing that result, he does an act which is a substantial step towards causing that result. A substantial step is conduct which is strongly corroborative of the firmness of the person’s purpose to cause that result.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Defendant’s counsel did not object to Instruction No. 7, but he did tender Instruction No. A. This instruction states:

INSTRUCTION NO. A
As to Count II, if you do not find the defendant guilty of domestic assault in the second degree, you must consider whether he is guilty of domestic assault in the third degree.
As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about November 3, 2001, in the County of Camden, State of Missouri, the defendant, attempted to cause physical injury to Carrie El-son by setting fire to a residence occupied by Carrie Elson, and
Second, that, Carrie Elson and defendant were adults who had resided together in the past, had been in a continuing social relationship of a romantic or intimate nature, and have a child in common,
then you will find the defendant guilty under Count II of domestic assault in the third degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense under this instruction.
A person attempts to cause physical injury when, for the purpose of causing that result, he does an act which is a substantial step towards causing that result. A substantial step is conduct which is strongly corroborative of the firmness of the person’s purpose to cause that result.

Defense counsel described Instruction No. A, which was based on MAI-CR 3d 319.76, as submitting a lesser-included offense of domestic assault in the third degree. See § 565.074. The prosecutor objected to Instruction No. A on the ground that “[t]he elements in the lesser included instruction are identical to the instruction for second degree domestic assault. Since there is no difference, I think it’s improper and incorrect application of the law to submit the defendant’s proposed lesser included instructions in this case.” In response, defense counsel said that “the statutes are both second degree domestic assault, and domestic assault third degree lists these elements; and they are the same, but they list them in both the felony and the misdemeanor charge.” The trial court sustained the State’s objection to Instruction No. A and gave Instruction No. 7.

On appeal, Defendant has abandoned his contention that Instruction No. A should have been given as a lesser-included offense of second degree domestic assault. Instead, he argues the trial court should have applied the rule of lenity and only given Instruction No. A. “The rule of lenity gives a criminal defendant the benefit of a lesser penalty where there is an ambiguity in the statute allowing for more than one interpretation.” State v. Rowe, 63 S.W.3d 647, 650 (Mo. banc 2002). The premise of Defendant’s argument is that § 565.073.1(1) is ambiguous because it proscribes the same conduct as § 565.074.1(1), but punishes that behavior as a class C felony rather than a class A misdemeanor. After reviewing the two statutes, we disagree.

The differences among classes of assault turn on the mental state involved and the nature of the injury. State v. Schnelle, 7 S.W.3d 447, 451 (Mo.App.1999); State v. Garrison, 975 S.W.2d 460, 461 (Mo.App.1998); State v. Johnson, 770 S.W.2d 263, 266 (Mo.App.1989).

Insofar as pertinent here, a person commits the class C felony of domestic assault in the second degree when he or she “[attempts to cause or knowingly causes physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation .... ” § 565.073.1(1) (underlining added). The culpable mental state required for conviction is “knowingly,” and this requirement applies whether physical injury is merely attempted or actually accomplished. See State v. Thomas, 972 S.W.2d 309, 312-13 (Mo.App.1998) (since § 565.050 specifies that the crime of first degree assault can be committed by attempting to kill, knowingly causing or attempting to cause serious physical injury to another person, the culpable mental state of “knowingly” applies to all three ways of committing this offense); see also § 562.021.2 (if the definition of an offense prescribes a culpable mental state with regard to a particular element, the required mental state shall only be required as to the specified element).

In contrast, insofar as pertinent here, a person commits the class A misdemeanor of domestic assault in the third degree when he or she “attempts to cause or recklessly causes physical injury to such family or household member ....” § 565.074.1(1) (underlining added). The culpable mental state required for conviction is “recklessly,” and this requirement applies whether the physical injury is either merely attempted or actually aecom-plished. See Thomas, 972 S.W.2d at 312-13; § 562.021.2. A mental state of recklessness involves less culpability than conduct that is knowing. Schnelle, 7 S.W.3d at 451.

Defendant’s argument that the elements of the two offenses are identical ignores the difference between the culpable mental states required for conviction under the two statutes. Accordingly, we find no ambiguity in § 565.073.1(1) that required the trial court to apply the rule of lenity and give Instruction No. A instead of Instruction No. 7. Since Defendant has failed to establish facially substantial grounds for believing the trial court’s refusal to give Instruction No. A constituted instructional error that affected the jury’s verdict, we deny Defendant’s first point on appeal.

In Defendant’s second point, he argues the trial court plainly erred by imposing a sentence in excess of the statutory maximum for the crime of second degree domestic assault. Defendant’s argument is based on the premise that “[t]he trial court plainly erred and exceeded its jurisdiction in sentencing [Defendant] to a term of ten years for the Class D felony of second degree domestic assault, Section 565.073, RSMo Cum.Supp.2002 ... because the maximum sentence for the offense, as enhanced for a persistent felony offender status, was seven years.” This argument has no merit because the premise is false.

Count Two of the amended information charged Defendant with committing “the class C felony of DOMESTIC ASSAULT IN THE SECOND DEGREE” in violation of § 565.073. The information also alleged Defendant was a prior and persistent offender, based on four prior felony convictions. Section 565.073, which was first adopted in 2000, states that “[d]omestic assault in the second degree is a class C felony.” § 565.073.2. There have been no amendments to the statute to downgrade the felony classification of the offense. At trial, the State presented evidence to prove Defendant’s status as a prior and persistent offender. Based on that evidence, the judge made a finding beyond a reasonable doubt that Defendant was a prior and persistent offender because he had been convicted of two or more felonies committed at different times in the state of Missouri. This finding ⅛ not challenged on appeal. The judgment correctly reflects that Defendant was convicted of the class C felony of domestic assault in the second degree and that he is a prior and persistent offender.

The maximum term of imprisonment for a class C felony is seven years. § 558.011.1(3). Because Defendant was found to be a prior and persistent offender, however, the trial court was authorized to impose an enhanced sentence of up to the maximum term of imprisonment for a class B felony. § 558.016.7(3). The maximum sentence for a class B felony is 15 years. § 558.011.1(2). The 10-year sentence imposed by the trial judge is within the authorized range of punishment. Therefore, Defendant has failed to establish facially substantial grounds for believing the sentence imposed by the trial court resulted in a manifest injustice or miscarriage of justice. Defendant’s second point is denied.

The judgment of the trial court is affirmed.

PARRISH, P.J., and BARNEY, J., Concur.

      . All references to statutes are to RSMo (2000), unless otherwise specified.

      . All references to rules are to Missouri Court Rules (2005).

      . Domestic assault in the third degree is a class A misdemeanor unless the defendant has pled guilty or been found guilty of this same offense more than two times. § 565.074.2; § 565.074.3.

      . In addressing Defendant’s first point relied on, we confined our review to the sole issue presented: whether there was an ambiguity in § 565.073.1(1) that required the trial court to apply the rule of lenity. Consequently, we express no opinion on the issue of whether Instruction No. A accurately recites the substantive law elements necessary to submit domestic assault in the third degree based on a reckless attempt to cause physical injury.