author: THOMAS J. FRAWLEY, Special Judge.

text:
    Judith Ann SEGGELKE, Appellant, v. Raymond SEGGELKE, Respondent.
    No. ED 92857.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 17, 2010.

      Benicia Baker-Livoris, St. Charles, MO, for Appellant.
    Jane E. Tomich, St. Charles, MO, for Respondent.
   THOMAS J. FRAWLEY, Special Judge.

Judith Seggelke (“Wife”) appeals from a judgment dissolving her marriage to Raymond Seggelke (“Husband”). Wife claims the trial court erred in distributing the marital property and in failing to award her attorney’s fees. We reverse and remand.

I. BACKGROUND

Husband and Wife married in 1968; there is one emancipated child of the marriage. Wife filed her petition for dissolution of marriage on July 12, 2006. On October 19, 2006, the trial court entered a consent judgment pendente lite (“PDL”). The PDL, in relevant part, awarded Wife $750 per month in maintenance, retroactive to August 1, 2006, to be paid from the marital funds in her possession. The PDL also stated that Wife’s request for attorney’s fees would be determined in the dissolution proceeding.

The dissolution trial was spread over two days in April and October, 2008. By the trial’s conclusion, the parties had sold the marital residence and the marital farm and farm equipment. All sale proceeds were divided equally between the parties.

At the time of trial, Husband earned approximately $90,000 per year at his job with Boeing. Wife, then age sixty, was unemployed and requested $750 per month in maintenance until she became eligible for Social Security retirement benefits at age sixty-six. Wife further requested a disproportionate share of the marital property due to Husband’s misconduct, which included several affairs during the marriage.

The trial court entered its judgment of dissolution of marriage on November 12, 2008. The court awarded each party his or her half of the proceeds from sale of the marital home, marital farm and farm equipment as separate property. The court denied Wife’s request for maintenance but ordered Husband to reimburse her for half the maintenance payments made during the pendency of the dissolution proceeding from Wife’s share of the proceeds from sale of the marital residence, which the trial court determined to be $6,000.

With respect to Husband’s conduct, the trial court did not believe it warranted a disproportionate division of the marital property. The trial court’s initial judgment awarded Wife approximately 51%, and Husband approximately 49%, of the marital property valued by the parties. Both parties filed after-trial motions and alleged numerous errors in the division of the marital property. The trial court entered an amended judgment that resulted in Wife receiving approximately 49% of the marital property valued by the parties. Wife filed a second after-trial motion, which was denied by operation of law. Wife appeals.

II. DISCUSSION

We affirm the provisions of a dissolution decree unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court incorrectly declared or applied the law. Woodard v. Woodard, 201 S.W.3d 557, 560-61 (Mo.App. E.D.2006), and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We note that the attorneys involved in the trial of this case are not the attorneys involved in the appeal. We further note that many key exhibits which would have been helpful to our understanding of the case were not provided in the record on appeal.

In her first point on appeal, Wife alleges trial court error with respect to distribution of the marital property in that the trial court failed to (1) adjust its division of the marital property after amending its initial judgment to eliminate the award to Wife of the non-existent GMAC 401 (k) account; (2) enter judgment in accord with Husband’s request that Wife receive one-half of his Boeing pension; (3) award Husband’s stock and stock options received through his employment with APC to either party; and (4) take into account Husband’s admitted marital misconduct. We agree not only that the division of marital property must be revisited in light of the court’s error in “double counting” the GMAC 401(k) account but also that the value of Husband’s pension, Wife’s pension, and Seggelke and Pujji, Inc., LLC, must be determined and considered in the division of the marital property. Therefore, we reverse the trial court’s judgment and remand for further proceedings.

When dividing marital property, the trial court must consider the factors set out in section 452.330 and then divide the property in such proportions as it deems just. Workman v. Workman, 293 S.W.3d 89, 96 (Mo.App. E.D.2009). Per section 452.330.1, the trial court must consider the following relevant factors:

The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; (2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (3) The value of the nonmarital property set apart to each spouse; (4) The conduct of the parties during the marriage ...

“However, the trial court may attach the amount of weight to each of these it deems appropriate, and these factors are not exclusive.” Skaggs v. Skaggs, 301 S.W.3d 72, 76 (Mo.App. S.D.2009) (quoting Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App. S.D.2001)). Thus, the trial court is vested with great flexibility in dividing the marital property. Id.

Wife first alleges that the trial court erred when it failed to readjust the distribution of the marital property after it removed the non-existent GMAC 401 (k) account from Wife’s share of the marital property. We agree.

The trial court’s initial judgment included in Wife’s share of the marital property a GMAC Fidelity Investments 401 (k) account valued at $34,176.00. Wife filed a “Motion to Clarify and or Correct Judgment or in the Alternative Motion for a New Trial” which alleged that the trial court erred when it awarded her the GMAC 401 (k) account because she had previously “rolled over” the account into the Allianz Alterity IRA (# DA313211), an asset also awarded to Wife.

In its amended judgment, the trial court admitted it erred in awarding Wife the now “rolled over” 401 (k) account and removed it from Wife’s share of the marital property. However, the trial court did not amend its judgment to adjust “the distribution of property to match what it had found to be equitable when it thought Wife was receiving approximately $35,000 more than she did.”

The trial court is not required to divide marital property equally, Russum v. Russum, 214 S.W.3d 376, 384 (Mo.App. W.D.2007); rather, the distribution need only be fair and take into account the factors listed in section 452.330.1. Adair v. Adair, 124 S.W.3d 34, 39 (Mo.App. W.D.2004). The trial court found its initial division, which awarded Wife just over 51% of the marital property valued by the parties, to be fair; therefore, a reduction of over $34,000, which resulted in Wife receiving less than 49% of the marital property valued by the parties, due solely to the trial court’s own error requires reconsideration of the division of the marital property.

Wife also asserts trial court error in its failure to award to her half of Husband’s vested pension at Boeing because Husband asked the court during the trial to award Wife half of his pension and all of her own pension. “[Ojral agreements as to property division are binding when entered into in open court by parties represented by counsel and the agreement is ‘spread upon the record.’ ” Morse v. Morse, 80 S.W.3d 898, 904 (Mo.App. W.D.2002) (citing Carter v. Carter, 869 S.W.2d 822, 829 (Mo.App. W.D.1994)). Herein, as in Morse, the record reveals that the parties did not enter into a written agreement or binding stipulation concerning the division of Husband’s pension; rather, Husband merely testified that he agreed to Wife receiving half of his pension at Boeing and all of her own pension at GMAC.

Neither party provided the court with the value of various items of marital property. The dissolution judgment lists several items with a value of “?”; e.g., Husband’s pension, Wife’s pension, and Seggelke & Pujji, Inc., LLC. We sympathize with the dilemma facing the trial court, which was charged with effecting a fair division of the marital property, when the parties, who had an equal burden to present evidence of the value of the marital property, Nelson v. Nelson, 195 S.W.3d 502, 507 (Mo.App. W.D.2006), failed to present that evidence.

Though not required to assign a specific value to each marital asset absent a properly filed request for findings pursuant to Rule 73.01, the record before the trial court must contain evidence from which the value of the marital property set aside to each spouse can be determined. Waldon v. Waldon, 114 S.W.3d 428, 431 (Mo. App. E.D.2003), and Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App. W.D.1999). Therefore, the trial court is directed to hold a hearing to determine the value of each party’s pension and Seggelke & Pujji, Inc., LLC, and thereafter effect an equitable division of the marital property following the guidelines of Section 452.330. See Hoecker v. Hoecker, 188 S.W.3d 497, 502-503 (Mo.App. W.D.2006).

Wife next asks this Court to name an owner of Husband’s APC stock and APC stock options. The record reveals, however, that the trial court awarded the APC stock to Husband.

Husband testified that in 2007 he participated in a stock purchase plan with his employer’s parent company which allowed him to buy up to two and a half percent of his salary in stock. The options terminated in 2007, and Husband testified that the stock was transferred to a Fidelity Investments account in his name. The trial court awarded that account to Husband.

Wife also asserts that Husband’s misconduct during the marriage and dissolution proceeding justifies a disproportionate division of the marital property. At trial, Husband admitted to' an ongoing, two-year affair that began before Wife filed her petition for dissolution, as well as three other affairs during the marriage. Wife claims that, in addition to the extramarital affairs, Husband committed misconduct by dissipating and concealing marital assets. Husband testified to taking his current mistress on a fishing trip to Florida, buying her flowers, paying her utilities and satellite TV for a few months, and paying her 2007 property taxes. Further, Wife asserts that Husband did not take proper care of certain farm implements and allowed them to become damaged and worthless.

Marital misconduct is only one factor for the court to consider in dividing marital property. Martinez v. Martinez, 136 S.W.3d 886, 890 (Mo.App.W.D.2004); section 452.330.1(4). Even if the court believes the evidence of misconduct, it can still divide the property in equal fashion. Martinez, 136 S.W.3d at 890.

Furthermore, misconduct by one spouse cannot be used to punish that spouse by awarding a disproportionate share of the marital property to the other spouse. Wansing v. Wansing, 277 S.W.3d 760, 768 (Mo.App. S.D.2009). Rather, the rationale for considering the misconduct of one spouse in the division of marital property is that, “if one spouse is compelled to contribute more to the partnership endeav- or due to the other’s misconduct, he or she is entitled to have the errant spouse’s misconduct taken into consideration ... in dividing marital property.” Id. at 768-69 (quoting In re Marriage of Ballay, 924 5.W.2d 572, 578 (Mo.App. S.D.1996)). Not all marital misconduct, however, requires a disproportionate division of marital property. Id. at 769. “[I]t is only when misconduct of one spouse changes the balance so that the other must assume a greater share of the partnership load that it is appropriate that such misconduct can affect the distribution of property.” Id. (quoting Nelson v. Nelson, 25 S.W.3d 511, 519 (Mo.App. W.D.2000)).

Regarding the impact of Husband’s misconduct on the division of marital property, the court found as follows:

“Husband further testified he and Wife had not been intimate for the last four years and they have not conversed much in the last five years. Although Husband has spent some marital funds on his current mistress, those funds are de minimus in relation to the size of the marital estate set out above. While not condoning Husband’s adulterous behavior, this Court is not persuaded Husband’s marital misconduct placed such an undue burden upon the parties’ marital relationship as to justify a disproportionate division of the marital estate.”

We cannot say the trial court abused its considerable discretion in the weight it assigned to Husband’s misconduct in dividing the marital property. This sub-point is denied.

In her second point on appeal, Wife asserts that the Allianz Alterity account (# DA914594), valued at $121,767.73, contains $9,000 she inherited from her aunt and uncle in 1997 and $55,000 she received in 2000 from a bodily injury claim which arose in 1995 when she was hit by a tractor-trailer. Wife first claims the trial court lacked authority to award this account, which is titled in the name of the “J & R Seggelke Liv. Tr., DTD 03-30-95”, because the trial court did not join the Trust as a party to the litigation.

Wife is correct that the trustee, not either party individually, holds title to the Allianz Alterity account. Therefore, the trial court does not have authority to award the actual account to Wife or apportion the actual account between Husband and Wife. Dunnagan v. Dunnagan, 239 S.W.3d 181, 188 (Mo.App. S.D.2007). But see Baldwin v. Baldwin, 905 S.W.2d 521, 525 (Mo.App. E.D.1995), in which an award to husband of six investment accounts held in the name of his revocable trust was affirmed. However, the equitable interest in the trust is subject to classification and division by the trial court. See Moore v. Moore, 189 S.W.3d 627, 636 (Mo.App. W.D.2006).

Wife invited trial court error by requesting in her proposed division of marital property that the Allianz Alterity account be awarded to her. Moreover, neither party listed the “J & R Seggelke Liv. Tru., DTD 3/30/95”, on his or her statement of property. Wife’s statement of property identifies only two trusts — one in the name of Wife, and one in the name of Husband, both created on 3/30/95. • Husband’s statement of property does not mention any trusts.

Wife also claims the trial court should have awarded her the Allianz Alterity account because it consists of her separate property. Wife initially deposited the inherited funds and bodily injury settlement into an account in joint names at Edward Jones and later transferred the funds into an investment account, also in joint names, at First Financial Planners. Additionally, the statements in the record for the Allianz Alterity account reveal that both Wife and Husband are the trustees of the “J & R Seggelke Liv. Tr., DTD 3/30/95.”

Wife is correct that property acquired after marriage by gift, bequest, devise, or descent is not marital property under section 452.330.2(1). While her personal injury settlement could qualify as separate property if the payments compensated for separate, non-marital losses, Blydenburg-Dixon v. Dixon, 277 S.W.3d 815, 820 (Mo.App. W.D.2009), Wife presented no evidence of the breakdown of the settlement. Regardless, when separate property is placed in joint names, as Wife did here when she deposited the inherited funds and settlement proceeds in the accounts in joint names at Edward Jones and First Financial Planners and, in connection with the parties’ estate plan, put the Allianz Alterity account in the name of a trust of which both she and Husband were trustees, a presumption is created that the property becomes marital, and clear and convincing evidence is required to show that a gift was not intended. Winter v. Winter, 167 S.W.3d 239, 244 (Mo.App. S.D.2005). Wife did not overcome this presumption.

Non marital property does not become marital property solely because it has become commingled with marital property. Section 452.330.4. Wife not only testified that the funds in the account with First Financial Planners were commingled but also did not present clear and convincing evidence that an identifiable portion of the funds in the account can be traced to the funds inherited by her in 1997 or received in 2000 in settlement of her bodily injury claim. Meier v. Meier, 306 S.W.3d 692, 702 (Mo.App. E.D.2010). Because the inherited funds and bodily injury settlement were placed in accounts in joint names, both Wife and Husband are the trustees of the “J & R Seggelke Liv. Tr., DTD 3/30/95,” and the funds in the Allianz Al-terity account are inextricably commingled, the trial court did not err in finding that the Allianz Alterity account (#DA 914594) is marital property in its entirety.

The record contains a statement for an account with Edward Jones which is titled “U/A Dtd 3/30/95 Judith A. Seggelke Liv. Trust” and has a value of $40,000. This account was set aside to Wife as her separate property, and the judgment indicates it contained inherited funds. The judgment makes no mention of a trust in Husband’s name, and no value was assigned to such a trust. On remand, the trial court shall receive evidence concerning the existence and value of any trust in Husband’s name.

In her third point, Wife argues the trial court erred in failing to revalue the capital loss carryover awarded to her. Wife testified at trial that the remaining capital loss carryover was $22,000, and in its initial judgment, the trial court awarded Wife the capital loss carryover at her value. Wife claimed in her second post-trial motion that her estimation was incorrect and that, at the time of trial, the capital loss carryover had a value of only $9,222; however, the trial court did not amend that portion of its judgment.

Wife expended ample resources in investigating and presenting her case to the trial court, which awarded the capital loss carryover to Wife at her value. Having complied with Wife’s request, the trial court did not abuse its discretion when it failed to adjust the award to reflect Wife’s new valuation. However, tax consequences, if established with particularity, are a factor a trial court should consider when dividing marital property. Alongi v. Alongi, 72 S.W.3d 592, 597 (Mo.App. W.D. 2002), and Baldwin v. Baldwin, 905 S.W.2d 521, 524 (Mo.App. E.D.1995). Therefore, the trial court may wish to consider Wife’s evidence of the actual value of the capital loss carryover at the hearing on remand to determine the value of Husband’s pension, Wife’s pension, Seg-gelke and Pujji, Inc., LLC, and any other items for which no evidence of value was presented at trial.

In her fourth point on appeal, Wife argues the trial court erred in classifying the proceeds from the sale of the marital home and the marital farm and farm equipment as separate property. We agree.

The parties sold the marital home in November, 2007 and split the proceeds equally. Husband deposited his share of the sale proceeds, approximately $94,000, at Midwest Bank. During the pendency of the dissolution of proceeding, Wife invaded her share of the sale proceeds to pay from March through October, 2008 the PDL maintenance award and a portion of her attorney fees. By the second day of trial, Wife had expended $31,260.00 from her share of the sale proceeds.

Between the first and second day of trial, the parties sold the marital farm in Osage, Missouri, along with the farm equipment, and split the proceeds equally. Husband deposited his share of the proceeds from sale of the farm, approximately $90,000, in a Section 1031 exchange account, and his share of the proceeds from sale of the farm equipment, approximately $18,700, at Midwest Bank. Wife deposited her share of the proceeds from sale of the farm and farm equipment in a separate certificate at U.S. Bank.

The funds received from sale of the residence, the farm, and the farm equipment, all of which were marital assets, do not become non-marital because of an agreed upon division during the pendency of the dissolution proceeding. Preston v. Preston, 189 S.W.3d 685, 688 (Mo.App. W.D.2006). Notwithstanding each party’s receipt of one-half of the proceeds from sale of the marital home and the marital farm and farm equipment, all sale proceeds must be classified as marital property. Jezewak v. Jezewak, 3 S.W.3d 860, 864 (Mo.App. E.D.1999).

Wife also argues that the trial court failed to recognize in its division of marital property that she expended the marital funds in her possession when the dissolution proceeding commenced to pay the PDL maintenance award through February, 2008 and a portion of her attorney’s fees.

Marital property is valued as of the date of trial. Elrod v. Elrod, 144 S.W.3d 373, 379 (Mo.App. S.D.2004), and Morse v. Morse, 80 S.W.3d 898, 905 (Mo.App. W.D.2002). Moreover, funds used for reasonable living expenses are not to be included in the division of the marital property. Elrod, 144 S.W.3d at 379, and Petties v. Petties, 129 S.W.3d 901, 906(Mo.App.2004). On remand, the trial court is directed to classify as marital property the proceeds from sale of the marital home and marital farm and farm equipment and, in determining an equitable division of the marital property, even though Husband may not have expended any of his portion of the sale proceeds, take into account the marital funds expended by Wife to satisfy the PDL maintenance award and for her reasonable living expenses, including attorney’s fees. See Kolar v. Kolar, 114 S.W.3d 440, 443 (Mo.App. W.D.2003).

In her fifth point on appeal, Wife argues that the trial court erred in denying her request for attorney’s fees. Generally, the parties to a dissolution are responsible for their own attorney’s fees. Silcox v. Silcox, 6 S.W.3d 899, 905 (Mo. banc 1999). In determining whether to award attorney’s fees, the trial court must consider all relevant factors, including the parties’ financial resources, the merits of the case, and the actions of the parties during the course of the litigation. Adair v. Adair, 124 S.W.3d 34, 40 (Mo.App. W.D. 2004). The trial court has great discretion in this area, and its judgment will not be overturned absent an abuse of discretion. Silcox, 6 S.W.3d at 905. “The party challenging the award has the burden to prove an abuse of discretion, which will be found only where the decision is so arbitrary as to shock one’s sense of justice.” Id.

Wife asserts that she is entitled to attorney’s fees because Husband was non-compliant during discovery, and his behavior necessitated multiple orders to compel. Wife also claims that Husband has a greater ability to pay her attorney’s fees because she is unemployed and Husband earns $90,000 per year.

There is evidence in the record to support Wife’s contention that Husband acted uncooperatively during certain periods of the litigation. Such evidence, however, is not so overwhelming that we may conclude that the trial court abused its considerable discretion in denying Wife’s request for attorney’s fees. Furthermore, while Wife had amassed approximately $30,000 in attorney’s fees as of the second day of trial, she paid $29,000 toward those fees with marital funds, all which may on remand be considered a reasonable living expense. See Kolar v. Kolar, supra. Finally, with respect to the disparity in the parties’ incomes, the trial court found that Wife voluntarily terminated her employment with GMAC and “clearly has the ability to support herself through appropriate employment”. Therefore, the trial court did not abuse its considerable discretion in denying Wife’s request for attorney’s fees. Point five is denied.

III. CONCLUSION

The cause is reversed and remanded. The trial court shall hold an evidentiary hearing to determine (a) the value of Husband’s pension, Wife’s pension, Seggelke and Pujji, Inc, LLC, and any other item of property for which a value was not provided at trial, and (b) the amount expended by Wife from marital funds, including the proceeds from sale of the marital home and marital farm and farm equipment, to satisfy the maintenance obligation under the PDL judgment and for Wife’s reasonable living expenses. Thereafter, the trial court shall make the adjustments to the division of marital property necessitated by the (1) erroneous allocation of the nonexistent GMAC 401(k) account to Wife; (2) designation of the proceeds from sale of the marital home and marital farm and farm equipment as separate property instead of marital property, (B) failure to value all items of marital property, especially Husband’s pension, Wife’s pension and Seggelke and Pujji, Inc., LLC, (4) failure to consider the assets in and, therefore, value of Husband’s trust, (5) failure to credit against the marital property existing at separation the amounts expended by Wife to satisfy the maintenance obligation under the PDL judgment and pay her reasonable living expenses, and (6) failure to divide between Husband and Wife all marital assets identified in the parties’ testimony and exhibits.

ROY L. RICHTER, C.J., and KENNETH M. ROMINES, J., concur.

      . Trial courts are encouraged to hear cases on consecutive days and to confine attorneys to the time the attorneys indicate is necessary for trial. The six month gap between hearing dates may have contributed to the errors discussed herein.

      . Unless otherwise noted, all statutory citations are to RSMo 2000.

      . The value of a party’s pension may not be required if each party is awarded one-half of the marital share of the monthly benefit received, or to be received, by the other party under his or her pension. See Redlinger v. Redlinger, 111 S.W.3d 413 (Mo.App. E.D.2003), and Muenz v. Muenz, 99 S.W.3d 4 (Mo.App. E.D.2002).

      . We are unclear from Husband's testimony whether the airplane, which Husband sold at a significant loss after he was served with Wife's dissolution petition, was an asset of Seggelke & Pujji, Inc., LLC, and, if so, whether there exists a capital loss in the name of Seggelke & Pujji, Inc., LLC.

      .As with his Boeing pension, Husband asked the court during trial to award Wife half the account holding the APC stock.

      . The trial court may disregard the trust form for purposes of a dissolution of marriage proceeding if the spouse who is the settlor is also a trustee and has commingled his or her personal finances with those of the trust. See Wisdom v. Wisdom, #70930, ftnt. 3 (W.D.2010), which involved the failure of the trial court to join husband’s corporation as a party to the dissolution of marriage proceeding.

      . Dividends and interest earned on separate property during marriage are marital. See Coleberd v. Coleberd, 933 S.W.2d 863, 868 (Mo.App. S.D.1996).

      . Assets in a trust of which one spouse is the sole trustee can be marital properly. See Selby v. Selby, 149 S.W.3d 472, 487-88 (Mo.App. W.D.2004).

      . We cannot determine with certainty from Wife’s post-trial motion or her brief whether Wife's alleged over-estimation is merely a mathematical error or the product of a post-trial expert opinion of the value of the capital loss carryover to Wife.

      . Wife’s brief identifies in the Statement of Facts numerous marital assets not disclosed by Husband prior to the evidentiary hearing, one or more of which the trial court may conclude, in examining on remand the division of the marital property, were not awarded to either party in the initial and amended dissolution judgment.

      . On the second day of trial, less than $200 remained from the $30,000 withdrawn at separation by Wife from U.S. Bank.


source: Caselaw Access Project

author: GARY W. LYNCH, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Daniel E. PHILLIPS, Defendant-Appellant.
    No. SD 29960.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 19, 2010.

      Matthew Ward, Columbia, MO, for Appellant.
    Chris Roster, Attorney General, and John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY W. LYNCH, Presiding Judge.

Daniel E. Phillips (“Defendant”) appeals the trial court’s judgment convicting him of two counts of statutory sodomy in the first degree, pursuant to section 566.062. Defendant contends that the trial court plainly erred in denying his motion to suppress and admitting his oral and written confessions to law enforcement into evidence at trial. Finding no plain error as alleged, we affirm.

Factual and Procedural Background

We “consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences.” State v. Lloyd, 205 S.W.3d 893, 898 (Mo.App.2006). Viewed in this light, the following evidence was adduced at trial.

Victim is the adopted son of Defendant and B.P. The three of them lived together at their home in Rolla, Missouri, until July 2005, when Defendant and B.P. were divorced. For a year and a half, beginning in 2002 when Victim was seven years old, Defendant would routinely go into Victim’s bedroom about an hour after he had gone to bed at night. While in the room, Defendant would fondle Victim’s genitalia by cupping his hand around Victim’s penis and testicles and moving them up and down in a circular motion. This occurred three to four nights a week.

In July 2005, B.P. and Victim moved in with B.P.’s daughter in Springfield for one year. Then, in the summer of 2006, B.P. and Victim moved to Michigan to live with B.P.’s sister. After moving to Michigan, Victim told B.P. about the sexual abuse he received from Defendant. B.P. called a police station in Michigan and the Rolla Police Department, and Lieutenant Jason Smith of the Rolla Police Department began an investigation.

As part of his investigation Lieutenant Smith personally interviewed Defendant. After the interview, Lieutenant Smith asked Rick Hope, a detective at the Phelps County Sheriffs Department, to conduct an interview of Defendant. During the subsequent interview between Defendant and Detective Hope, which occurred at the sheriffs department on November 1, 2006, Lieutenant Smith was present in an adjoining room that had a one-way glass he could see through, and he listened to the interview with headphones.

On that day, before Defendant entered the interview room at the sheriffs department, Detective Hope made it clear to Defendant that he was free to leave the room at any time. Defendant was not placed in handcuffs and was seated in a chair located next to an unlocked door. Detective Hope advised Defendant of his Miranda rights. He then asked Defendant a series of questions related to those rights and the waiver of those rights from a written form to make sure Defendant understood them. He recorded Defendant’s answers on that form, and then Defendant signed it. Defendant acknowledged to Detective Hope that he could request an attorney “any time I want.”

In gathering background information from Defendant during the interview, which was audio-recorded, Detective Hope asked him, “What grade did you go to in school?” Defendant replied, “Eighth grade, I think, is the last one I went to. I can do high school work, used to be able to. A lot of my schooling was one[-]room classes.”

Hope administered several polygraph examinations during the interview when he questioned Defendant about Victim’s abuse allegations, which Defendant initially denied. Before giving him the polygraph test, Detective Hope informed Defendant that he did not have to be there, and if for any reason he did not want to take the polygraph test, Detective Hope would refuse to test him. Defendant stated he wanted to take the polygraph test. After administering the test, Detective Hope told Defendant that he could tell from the polygraph results that he was lying about his behavior toward Victim.

At points in their discussions during this interview, Detective Hope appealed to Defendant’s religious beliefs in order to encourage him to tell the truth. He told Defendant, “When you sin, God forgives .... and that’s why he died on that cross for us[.]” Detective Hope also told Defendant that he was sick and needed treatment, and that “the only way you can get that help ... is if you’re straight-up and honest with not only me, but yourself, and the Good Lord himself, because he forgives. He forgives.”

Defendant eventually confessed to Detective Hope that he rubbed Victim’s penis and testicles between 75 and 125 times when Victim was seven and eight years old. According to Defendant, this occurred in Victim’s bedroom at nighttime while they were living at their house in Rolla. At Detective Hope’s suggestion, but while Hope was outside the interview room, Defendant wrote a letter of apology to Victim. When Detective Hope returned, Defendant signed the letter and added by his signature the sentence “This is the truth.”

After the interview, Lieutenant Smith spoke briefly with Defendant. He confirmed Victim’s age during the period of abuse, and asked Defendant how many times he had fondled Victim’s penis, which Defendant said was between 75 and 90 times.

Defendant was charged with two counts of statutory sodomy in the first degree for the periods of January 1, 2002, to December 31, 2002, and January 1, 2003, to December 31, 2003. Before trial, Defendant filed a motion to suppress in which he requested that the trial court suppress evidence of his confession because Detective Hope “bullied and coerced” him into confessing. The parties stipulated that the trial court could decide the motion based solely on the partial transcript of the November 1 interrogation attached to it. The trial court denied the motion.

At trial, Detective Hope testified, without objection, that Defendant confessed to him during the November 1 interview that, “he rubbed [Victim’s] penis at least 75 times but not more than 125 times[,]” that “not only did he rub his penis, but he also rubbed his testicles!,]” and that Victim “had a rather large penis for an eight-year-old child, and that he was fascinated with the size of his penis.” Detective Ford further testified, again without objection, that Defendant admitted during the November 1 interview that this sexual contact occurred at their home in Rolla when Victim was eight years old. Following this testimony during Detective Ford’s direct examination, the portion of the audio recording containing Defendant’s confession during the November 1 interview and Defendant’s letter of apology, written and signed by him during the November 1 interview, were admitted into evidence. The audio tape was played for the jury, and the letter was published to the jury. The only objection made by Defendant to the admission into evidence of any of the statements made by Defendant during the November 1 interview was related to the foundation for the audio recording. Believing that Detective Ford had stated that the audio recording exhibit was of the entire interview, Defendant’s trial counsel objected to its admission “on foundation.” In defense counsel’s voir dire of the witness on this issue, Detective Ford testified that the offered exhibit was not the entire interview, but rather only the confession portion of it. The trial court overruled Defendant’s objection and admitted the audio tape into evidence.

During Defendant’s case, Defendant testified that he felt pressured into confessing and that he felt intimidated by the detective. Defendant claimed that at one point Detective Hope began pecking him in the chest with his knuckles, but Lieutenant Smith contradicted this, stating there was never any aggressive physical contact between Defendant and Detective Hope.

The jury found Defendant guilty as charged on the two counts of first-degree statutory sodomy. The trial judge sentenced Defendant to consecutive terms of ten years’ imprisonment.

This appeal timely followed, wherein Defendant’s sole contention is that the trial court plainly erred in denying his motion to suppress and admitting his November 1 oral and written confessions into evidence at trial. In particular, Defendant argues that the length of the interrogation and the “improper tactics” used by Detective Hope in appealing to Defendant’s religious beliefs and exploiting his lack of education made his confession involuntary, in violation of the Fifth and Fourteenth Amendments of the United States Constitution, as well as article I, section 19 of the Missouri Constitution.

Standard of Review

Where evidence is challenged by a motion to suppress that is later denied by the trial court and that evidence is thereafter admitted at trial, we review only the admission of that evidence and not the denial of the motion to suppress. State v. Barriner, 210 S.W.3d 285, 296 (Mo.App.2006). A motion to suppress is interlocutory in nature, and therefore not binding on the trial court. State v. Edwards, 280 S.W.3d 184, 188 (Mo.App.2009). A specific objection must be made when the evidence is offered at trial in order to preserve the issue for appellate review. Id.

In our review of the trial court’s ruling, allowing the appellant’s confession over the appellant’s objection that it was involuntary, we consider not only the trial record, but also the record of the prior suppression hearings. Our review is limited to determining whether the trial court’s ruling is supported by substantial evidence. We will not overturn the trial court’s ruling absent manifest error. In our review, we are to pay deference to the trial court’s factual and credibility determinations in making its ruling, viewing the facts in a light most favorable to the ruling. Hence, the fact that there is support in the record for a contrary ruling is immaterial.

Barriner, 210 S.W.3d at 299 (internal citations and quotations omitted).

Counsel’s failure to object to the admission of the evidence at the earliest opportunity constitutes a waiver of the claim. Id.; see also State v. Evenson, 35 S.W.3d 486, 491 (Mo.App.2000). Unpre-served issues, like the one Defendant raises in this appeal, may be reviewed only for plain error, pursuant to Supreme Court Rule 30.20. Edwards, 280 S.W.3d at 188.

Rule 30.20 is no panacea for unpre-served error, and does not justify review of all such complaints, but is used sparingly and limited to error that is evident, obvious, and clear. [N]ot all prejudicial error — that is, reversible error — can be deemed plain error. A defendant’s Rule 30.20 burden is much greater — not merely to show prejudice, but manifest injustice or a miscarriage of justice — ■ which in this context means outcome-determinative error.
We are not required to review for plain error; to do so is within our discretion. The two-step analysis is (1) did the trial court commit evident, obvious, and clear error affecting the defendant’s substantial rights; and (2) if so, did such plain error actually result in manifest injustice or a miscarriage of justice? Unless a defendant gets past the first step, any inquiry should end.

State v. Smith, 293 S.W.3d 149, 151 (Mo.App.2009) (internal citations and quotations omitted).

Discussion

The Due Process clause of the Fourteenth Amendment prohibits convictions based in whole or in part on involuntary confessions. State v. Brown, 246 S.W.3d 519, 528 (Mo.App.2008). See also Miller v. Fenton, 474 U.S. 104, 109-10, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). “The test for voluntariness is whether, under the totality of the circumstances, the defendant was deprived of free choice to admit, to deny, or to refuse to answer and whether physical or psychological coercion was of such a degree that defendant’s will was overborne at the time he confessed.” Brown, 246 S.W.3d at 528; see also State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). Factors we consider in evaluating the totality of the circumstances include, but are not limited to, whether the defendant was advised of his rights and understood them, the defendant’s mental and physical state, the length of questioning, and the withholding of food, water, or other physical needs. Rousan, 961 S.W.2d at 845. Evidence of police coercion is necessary to find that a confession is involuntary and thus inadmissible. Id.

The length of the interrogation, one of the relevant factors mentioned above, is one of the bases for Defendant’s claim that his confession was involuntarily made. At the point in the trial when the confessions were offered and admitted into evidence, however, there was no evidence before the trial court from which it could made a reasonable estimation as to the interview’s length. The stipulated partial transcript of the interview before the trial court in the hearing on Defendant’s motion to suppress has no time markings or references either by the transcriber or in any of the questions and answers with which to indicate its length. The fact that it was a partial transcript also obscures any method by which the trial court could glean from it the total length of the interview. Likewise, the only evidence at trial related to the November 1 interview up to the point of admission of the confessions into evidence was Detective Hope’s partially completed direct testimony. Nothing in that testimony related to the length of the interview.

Rather, Defendant is claiming that the trial court plainly erred by failing to sua sponte deny admission of Defendant’s November 1 confessions into evidence because after they were admitted into evidence and published or played to the jury, Detective Hope testified on cross-examination that Defendant’s interrogation lasted approximately four and a half hours. Initially, we question whether the trial court’s lack of clairvoyance as to the length of the interview can ever rise to the level of being an evident, obvious, and clear error.

We need not answer that question because, even assuming the trial court had known the length of the interview at the time Defendant’s confessions were admitted into evidence, we do not believe that the length played a substantial part in creating a hostile or oppressive atmosphere in the interview room such that Defendant’s confession was involuntary. Missouri courts have found confessions to be voluntary which resulted from interrogations that lasted as long as or longer than Defendant’s. See State v. Smith, 735 S.W.2d 65, 68 (Mo.App.1987) (holding defendant’s confession to be voluntary when it came after six and a half hours in custody with intermittent interrogation); State v. Simpson, 606 S.W.2d 514, 517 (Mo.App.1980) (holding that continuous questioning for four hours is not coercive). Furthermore, there is no evidence that Defendant was subjected to oppressive, uncomfortable, or coercive conditions during the interrogation. Detective Hope did not place Defendant in handcuffs or otherwise restrain him, did not touch him in an aggressive way, and at least once during the interview, he gave Defendant the opportunity to get a drink and use the restroom. Also, Detective Hope made clear at the outset of the interrogation that Defendant could terminate the interview at any time. Accordingly, Defendant’s interrogation was not overly long. Likewise, there is no evidence to suggest that the interview’s length considered in combination with the nature and setting of the interrogation otherwise made Defendant’s confessions involuntary.

Defendant also claims that Detective Hope’s “improper tactics,” including his appeal to Defendant’s religious faith, rendered the confession involuntary. This allegation is also without merit. Only “threats of harm or promises of worldly advantage,” as opposed to moral and spiritual entreaties, can yield involuntary confessions. State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, 79 (1936); see also State v. Johnson, 207 S.W.3d 24, 45 (Mo. banc 2006) (holding that in order to yield an involuntary confession, a promise must be for “worldly advantage” and not just moral or spiritual gain). In particular, the promise by law enforcement must directly relate to the mitigation of the accused’s punishment; it is not sufficient that it “offer merely an opportunity for the gratification of his personal desires, or for his greater comfort[.]” Williamson, 99 S.W.2d at 79.

Here, Defendant objects to Detective Hope’s exhortation that he be honest so that God would forgive him of his sins. While the cynic may question the sincerity of the Detective’s spiritual advice, these remarks clearly did not represent promises of worldly benefit, nor did they suggest that by confessing Defendant would be able to escape punishment or incur a lesser one. Similarly, in Johnson, there was a discussion between the murder suspect in custody and a detective where the detective told the suspect that in order to be forgiven of his wrongdoing he would have to be completely truthful about what he had done. Johnson, 207 S.W.3d at 33. Soon after, the defendant confessed to law enforcement of his crimes. Id. On appeal, the Supreme Court of Missouri, citing to Williamson, held that the detective’s comments were not “improperly coercive” because they promised no worldly benefit. Id. at 46. Likewise, Detective Hope’s remarks to Defendant about forgiveness did not amount to improper coercion. An appeal to a suspect’s religious beliefs does not render his confession involuntary unless other circumstances indicate that his will was overborne, and Defendant in this case has put forth no such evidence.

Defendant also argues that Detective Hope took unfair advantage of the fact that Defendant has just an eighth-grade education when he told Defendant that he could not remember abusing Victim because he suffered from “repressed metamorphism,” a term that Detective Hope admitted he made up. The issue of whether Defendant’s limited education had anything to do with him being unable to understand this fabricated diagnosis, however, is entirely speculative. It is also not evident that there was a causal connection between the detective’s “repressed metamorphism” remark and Defendant’s eventual confession, since Defendant continued to deny wrongdoing after Detective Hope’s comment.

It is worth noting that Detective Hope read Defendant his Miranda rights at the start of the interview, and Defendant indicated repeatedly that he understood them, which is another relevant consideration that suggests Defendant’s confession was voluntary. Additionally, Defendant chose to speak with law enforcement knowing that he was not required to be there and that he could leave anytime, and he knew that if he chose to stay he could request an attorney at any time.

For the foregoing reasons, from the totality of the circumstances, we cannot conclude that Defendant confessed involuntarily. Defendant has presented no evidence of police coercion, and the points he raises about the length of the interrogation and Detective Hope’s “improper tactics” are without merit.

Therefore, we do not find that Defendant has shown that the trial court committed any error, much less an “evident, obvious, and clear” error, as required in the first step of a plain-error analysis, in admitting Defendant’s November 1 confessions into evidence. Smith, 293 S.W.3d at 151. Because we do not find that the trial court committed any error, plain or otherwise, our inquiry ends. Id. Defendant’s point is denied.

Decision

The trial court’s judgment is affirmed.

SCOTT, C.J., and FRANCIS, J., concur.

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

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

      . Although Detective Hope chose to read Defendant his Miranda rights, it is not entirely clear this was necessary since the circumstances do not clearly indicate that Defendant was in "custody” during the interview. See State v. Taylor, 109 S.W.3d 190, 192 (Mo.App.2003) (discusses the six factors we will consider when determining custody). In any event, Defendant does not raise any alleged Mzrawda-related violations on appeal.


author: GARY W. LYNCH, Judge.

text:
    Jayson THEODORAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. SD 30211.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 19, 2010.

      Kent Denzel, Assistant Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY W. LYNCH, Judge.

Jayson Theodoran (“Movant”) appeals the denial of his amended Rule 24.035 motion for post-conviction relief. following an evidentiary hearing. Applying the escape rule, we dismiss his appeal.

Factual and Procedural Background

The State charged Movant as a prior felony offender with first-degree tampering and failure to return rented property, pursuant to sections 569.080 and 578.150. By separate information, Movant was also charged with felony stealing. In May 2004, Movant pleaded guilty to all three charged offenses, and the court sentenced him to seven years’ imprisonment on each count in this case and the felony stealing charge in the separate case, with the sentences to be served consecutively. The court suspended execution of all three sentences and placed Movant on five years’ supervised probation.

Thereafter, a probation violation report was filed against Movant on February 7, 2005, and a hearing was scheduled for that month. Movant, however, failed to appear, and the court issued a warrant for his arrest. The sheriff was not able to serve the warrant until October 27, 2006, a year and half after it was issued, because Movant had been in the country of Mexico. At the probation revocation hearing on November 20, 2006, Movant admitted that he had originally violated his probation by testing positive for the use of marijuana. He subsequently fled to Mexico, where he said he remained for almost two years before being deported and then arrested. The sentencing court, stating that it would give Movant “one more chance,” continued Defendant’s probation.

Movant violated his probation again soon after the first revocation hearing; additional violation reports were filed on January 22, 2007, and May 14, 2007. On November 26, 2007, the court conducted another probation revocation hearing. Movant admitted he had again violated the terms of his probation by failing to report to his probation officer, failing to maintain employment, and changing residence without communicating with his probation officer. Movant said he had returned to Mexico just about a week after the last probation revocation hearing a year earlier, and that he had returned to the United States in October 2007 before turning himself in to his probation officer. Mov-ant requested that probation be continued, but the sentencing court revoked his probation on his two sentences in this case and ordered that he serve them consecutively as originally imposed.

Movant filed a timely pro se Rule 24.035 motion for post-conviction relief, and appointed counsel subsequently filed an amended motion, in which Movant alleged his plea counsel was ineffective. Following an evidentiary hearing, the motion court denied post-conviction relief. Mov-ant now appeals.

Discussion

On appeal, Movant challenges the motion court’s ruling on the grounds that he was denied effective assistance of counsel during the plea process. The State, however, urges that we dismiss Movant’s appeal in accordance with the escape rule. For the reasons set forth below, we conclude that the escape rule applies, and we dismiss the appeal without reaching the merits of Movant’s point.

The escape rule is a judicially created doctrine that “operates to deny the right of appeal to a criminal defendant who escapes justice.” Stevens v. State, 306 S.W.3d 175, 176 (Mo.App.2010). See also Crawley v. State, 155 S.W.3d 836, 837 (Mo.App.2005). A movant’s escape from supervised probation has been held to justify dismissal of an appeal under the escape rule. See Hicks v. State, 824 S.W.2d 132 (Mo.App.1992) (dismissing movant’s appeal for post-conviction relief after finding mov-ant knowingly violated the terms of his five-year probation by absconding to Colorado). This rule applies equally to direct appeals and appeals arising from the disposition of post-conviction motions under Rule 24.035 and Rule 29.15. Stevens, 306 S.W.3d at 176. See also Holmes v. State, 92 S.W.3d 193, 195 (Mo.App.2002). However, the escape rule “only applies to errors occurring up to the time of an appellant’s escape.” State v. Marsh, 248 S.W.3d 648, 650 (Mo.App.2008). Because the ineffective-assistance-of-counsel claim that Movant raises on appeal involves matters that occurred before he twice absconded from probation, the escape rule would serve to bar Movant’s appeal if it applies.

The decision of whether to dismiss an appeal for this reason is one left to the sound discretion of the appellate court. Stevens, 306 S.W.3d at 177. The pertinent inquiry in deciding whether to apply the escape rule is “whether the escape adversely affected the criminal justice system.” Id. There is no threshold amount of time that a defendant must have escaped before dismissal is allowed. Holmes, 92 S.W.3d at 196. Dismissing the appeal of an escaping defendant has been justified on numerous policy grounds, including: curtailing administration problems caused by a defendant’s long absence; preventing a defendant from selectively abiding by court orders; discouraging escape; preserving respect for the criminal justice system; and promoting the dignified operation of the appellate courts. Pradt v. State, 219 S.W.3d 858, 862 (Mo.App.2007); State v. Ore, 192 S.W.3d 723, 726 (Mo.App.2006).

The application of the escape rule in this case is logical and warranted by all of these policy justifications. Movant twice escaped to a foreign country without notifying his probation officer, in clear violation of the terms of his probation. On the first occasion, Movant absconded to Mexico for almost two years after testing positive for drug use. This caused Movant to miss a scheduled probation revocation hearing and led law enforcement to search for him for a year and a half before catching him only after he was deported from Mexico. If that was not enough, Movant then fled to Mexico again almost immediately after the court showed him leniency by continuing his probation following his first escape.

Movant demonstrated complete disrespect for the judicial system by neglecting to show up at his initial revocation hearing in February 2005 and then failing to report to or communicate with his probation officer for an extended length of time while residing in a foreign country. The only reason the authorities were able to eventually arrest him is because he was deported from that country. In fleeing to Mexico a second time after the court continued his probation, Movant demonstrated his defiance toward the courts to be unremitting. Like the appellant whose appeal was dismissed in Hicks, Movant “attempted to place himself beyond the control of the department of corrections and demonstrated his contempt for the very system of justice that granted him probation in lieu of incarceration.” Hicks, 824 S.W.2d at 134. Release of a convicted defendant on probation is a matter of grace to begin with, and Movant should not be free to abuse that grace with impunity.

Allowing Movant to pursue an appeal after two south-of-the-border escapes would diminish respect for the justice system and serve as an affront to the dignity of the appellate courts. A defendant who shows such blatant disregard for the rules and decisions of the judicial system should not be permitted to then seek relief from that same system. See State v. Wright, 763 S.W.2d 167, 168 (Mo.App.1988) (holding that “those who seek the protection of this legal system must ... be willing to abide by its rules and decisions”). Finally, if we do not bar this appeal, the absence of any penalty for Movant’s actions would encourage other defendants to escape probation.

For all the foregoing reasons, we determine that Movant’s multiple escapes from probation adversely affected the criminal justice system. Applying the escape rule, we dismiss Movant’s appeal.

BARNEY, P.J., and BURRELL, J., concur.

      . All rule references are to Missouri Court Rules (2010).

      . Any reference to section 578.150 is to RSMo. Cum.Supp.2002, and all other statutory references are to RSMo 2000.

      . We note that after the State requested dismissal of the appeal in its respondent’s brief on the basis of the escape rule, Movant did not file a reply brief as allowed by Rule 84.05(a). As "[t]he sole purpose of a reply brief is to rebut the arguments raised in the respondent's brief[,]” State v. Harrison, 213 S.W.3d 58, 77 (Mo.App.2006), we assume Movant had no rebuttal to the State’s argument supporting its request for dismissal.


author: WILLIAM W. FRANCIS, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Robert BENEDICT, Appellant.
    No. SD 29822.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 20, 2010.

      Margaret M. Johnston, Columbia, for Appellant.
    Chris Foster, Attorney General and John M. Reeves, Assistant Attorney General, Jefferson City, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

A jury convicted Robert Benedict (“Appellant”) of second-degree statutory rape in violation of section 566.034 and second-degree statutory sodomy in violation of section 566.064. Appellant was sentenced to two concurrent terms of five years’ imprisonment. This appeal followed. We affirm the trial court’s judgment.

Factual and Procedural History

In January, 2006, Appellant, age 40, began engaging in sexual intercourse and oral sex with K.W., a minor. K.W. was fourteen years old when the relationship began. K.W. specifically told Appellant her age. Appellant engaged in sexual activity with K.W. approximately once a week, which ultimately stopped in the fall of 2006. During this time, Appellant and K.W. communicated with each other via emails, text messages, and cell phones. K.W.’s mother notified the police after she discovered emails and pictures on K.W.’s phone indicating Appellant had a sexual relationship with K.W. Appellant was then charged with statutory rape and statutory sodomy in the second degree.

On January 11, 2008, Appellant’s counsel viewed and copied the prosecutor’s file pursuant to its open-file policy. Under the open-file policy, defense counsel may inspect and copy the prosecutor’s file at any time. On February 20, 2008, Appellant’s counsel filed a discovery request for any documents or objects originally belonging to Appellant that the State planned to introduce into evidence at trial. In the same month, Appellant’s counsel was informed that evidence from Appellant’s computers was still in the possession of the Springfield Police Department and counsel was given the procedure to obtain copies of the evidence there. On March 21, 2008, at Appellant’s felony arraignment, Appellant’s counsel was again informed of the procedure to access the file materials pursuant to the open-file policy. On March 27, 2008, Appellant’s counsel filed a motion to suppress evidence, including Appellant’s two laptop computers that were seized from Appellant’s residence on the day of his arrest. Computer disks (“CDs”) containing results of the forensic examination of Appellant’s computer were placed in the prosecutor’s open file in April, 2008.

At a suppression hearing on July 14, 2008, John Henderson, a computer forensic investigator for the Springfield Police Department, testified that he conducted a forensic examination of both laptop computers. Mr. Henderson had a hard copy of the results and stated the results were also contained on CDs. The trial court denied the motion to suppress after the hearing.

More than a month before trial, Appellant’s counsel requested a review of the prosecutor’s file. Due to scheduling conflicts, a meeting could not be set until two weeks before trial. However, the scheduled meeting never occurred. The record before us contains no explanation why the meeting did not take place.

On February 17, 2009, Appellant’s counsel filed a motion to compel discovery claiming the State possessed “a recorded statement of [Appellant] thus far not disclosed” and that upon contacting the prosecutor’s office, he was referred to the Springfield Police Department. Appellant’s counsel further alleged that the Springfield Police Department informed him that its computers had a “virus attack” and thus the police department had been unable to access the recordings for the two weeks prior to February 17, 2009. Appellant’s counsel again asked to review the prosecutor’s file on February 23, 2009, the day before trial.

On February 24, 2009, the morning of trial, Appellant’s counsel filed a motion for continuance. He argued the prosecutor was unavailable to review the file during the months preceding trial, and that new inculpatory information blocked out an area of research that Appellant had developed to challenge the admissibility of KW.’s cell phone text messages. Appellant’s counsel stated he believed there was no intent by the prosecutor to deprive him of this information; rather, it was “a question of schedules, a missed meeting, which I’m not sure why it didn’t come out, but it was off my calendar as well.” The prosecutor responded that Appellant’s counsel had: (1) access through the prosecutor’s open-file policy; (2) been informed in February, 2008, that the police department possessed the evidence; (8) the procedure to obtain the evidence; and (4) knowledge that CDs containing the computer examination results were placed in the open file by April, 2008. Appellant’s counsel conceded to possessing the CDs, but claimed he was unable to examine them because the Springfield Police Department’s computer system was infected with a virus. The prosecutor responded that the virus had only infected the police department’s email system, not the CDs containing the computer analysis results. The trial court denied Appellant’s request for continuance.

At a pretrial hearing on February 24, 2009, the trial court sustained Appellant’s motion in limine to exclude evidence of text message conversations between Appellant and K.W. discussing his desire for a sexual tryst with KW. and one of her female friends (a “threesome”), and ordered the State to approach the bench before mentioning that type of evidence.

During K.W.’s trial testimony, the State handed K.W. Exhibits 1 through 28, photocopies of instant messages from her phone. Several messages referenced Appellant’s desire to have a threesome with K.W. and her friend. The State asked K.W.:

Q. And you also briefly just mentioned that you would talk' — you were talking about things that you would talk about [Appellant] in person about?
A. Yes.
Q. What do you mean by that?
A. Like the ones that ask about—
Q. Without telling me exactly what it says, what do you mean by that?
A. We would talk about like threesomes with my friend, Stephanie.

After this answer, Appellant’s counsel objected and requested a mistrial, or alternatively, that a limiting jury instruction be given. The trial court sustained Appellant’s objection to exclude Exhibits 1, 2, 3, 4 and 8, instant messages which referenced Appellant’s desire to have a threesome. The trial court denied Appellant’s request for mistrial and instructed the jury to disregard K.W.’s last answer. During K.W.’s testimony, she also testified she had vaginal and oral sex with Appellant.

During trial, the State introduced into evidence Exhibit 49, a redacted video recording of an interview between Appellant and Officer Hampton. Appellant’s counsel made no specific objection to the exhibit. It was admitted into evidence and played for the jury. On the videotape, Officer Hampton read text messages sent from Appellant to K.W. that referenced threesomes at two places in the video. When the jury took a recess halfway through the playing of Exhibit 49, Appellant’s counsel objected to the evidence of threesomes. Appellant’s counsel believed all references to threesomes had been redacted in accordance with the pretrial motion in limine. The trial court overruled the objection and noted that the exhibit had already been admitted without objection.

On this video, the Appellant also admitted that K.W. performed oral sex on him, that he could in fact be the father of K.W.’s baby if she was pregnant, and that he was the author of the text messages sent to K.W. expressing concern she might be pregnant and that he took her a pregnancy test. These admissions came into evidence without objection.

The jury convicted Appellant on one count of statutory rape and one count of statutory sodomy. He was acquitted on the other statutory sodomy count. This appeal followed.

Appellant contends the trial court abused its discretion in (1) denying Appellant’s request for a continuance based on the prejudicial effect of the late disclosure of the State’s expert computer analysis; (2) denying Appellant’s request for mistrial after K.W. volunteered that she and Appellant talked about having threesomes; and (3) overruling Appellant’s objections to evidence in Exhibit 49 referencing threesomes. In response, the State contends there was no abuse of discretion because (1) the computer examination results were available via its open-file policy more than a year before the requested continuance and no prejudice resulted; (2) Appellant suffered no prejudice from KW.’s statement about threesomes after the trial court issued a limiting instruction and the State adduced overwhelming evidence of Appellant’s guilt; and (3) Appellant suffered no prejudice from the threesome references in Exhibit 49 in that the State adduced overwhelming evidence of his guilt. The issues presented for determination here are:

1. Was there late disclosure of computer forensic examination evidence and if so, did prejudice result from late disclosure?
2. Was it an abuse of discretion to deny a mistrial after K.W. volunteered a reference to threesomes?
3. Was it an abuse of discretion to overrule Appellant’s objection to the limited portion of Exhibit 49 referring to threesomes?

Standard of Review

We review each of Appellant’s points on appeal for abuse of discretion. The decision to grant a continuance “is within the sound discretion of the trial court.” State v. Wolfe, 13 S.W.3d 248, 261 (Mo. banc 2000). “A trial court’s decision not to grant a mistrial is given ‘enormous discretion’ on appeal.” State v. Hahn, 37 S.W.3d 344, 354 (Mo.App. W.D.2001). The lower court’s rulings on admissibility of evidence are also reviewed for abuse of discretion. State v. Bennett, 218 S.W.3d 604, 610 (Mo.App. S.D.2007). Abuse of discretion only occurs if “a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). If reasonable minds could differ on the propriety of the ruling, no abuse of discretion has occurred. Heritage Warranty Ins., RRG, Inc. v. Swiney, 244 S.W.3d 290, 292 (Mo.App. S.D.2008).

Analysis

Point I: Denial of Motion for Continuance

First, Appellant asserts that his defense was materially prejudiced after he requested discovery one year prior to trial and did not receive computer forensic examination evidence until February 23, 2009, the day before trial. He alleges the State was unavailable to review the file for updates during the months preceding trial. The State argues that the trial court did not err as the State’s “open-file policy” made all the seized materials on Appellant’s laptop computers available to Appellant more than a year before the requested continuance.

At issue here is whether computer forensic examination evidence was disclosed late and if it was, whether prejudice resulted from it.

“A continuance for counsel’s trial preparation is not warranted when counsel had adequate time to prepare”; rather, “[r] ever sal is warranted only upon a very strong showing that the court abused its discretion and prejudice resulted.” State v. Christeson, 50 S.W.3d 251, 261-62 (Mo. banc 2001). Rule 25.07 provides that disclosure shall be accomplished either in a manner agreed to by the State and the defendant, or by the party making disclosure notifying the opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied, or photographed at a specified time and place. “Where the defendant has pri- or knowledge of the state’s possession of evidence[ ... ] so as not to have been surprised by its introduction there is no abuse of discretion.” State v. Sykes, 628 S.W.2d 653, 657 (Mo. banc 1982). Moreover, “[t]he prosecution has no obligation to disclose evidence of which the defense is already aware and which the defense can acquire.” State v. Brooks, 960 S.W.2d 479, 494 (Mo. banc 1997).

In this case, the trial court did not abuse its discretion in denying the motion for continuance. The trial court, in announcing its denial of the motion, observed that the materials seized on Appellant’s computer were both known and available to Appellant’s counsel more than a year before trial. Appellant’s counsel was aware of the prosecutor’s open-file policy as counsel initially viewed and copied the State’s open file on January 11, 2008, and was again reminded about the policy on March 21, 2008. In February, 2008, Appellant’s counsel was reminded that the Springfield Police Department possessed computer evidence not yet in the open file and counsel acknowledged he was familiar with the appropriate procedure for obtaining this information. Additionally, the trial court noted that Appellant presumably knew what was on the computers and, in fact, he knew that they were seized on November 5, 2006. The trial court noted that Appellant’s counsel had previously filed a motion to suppress the information contained on the computers. The testimony of Mr. Henderson at the suppression hearing further put the Appellant on notice as to the existence of the forensic examination results. Accordingly, there was no late disclosure and Appellant had adequate time to prepare.

Furthermore, Appellant does not show any prejudice resulting from disclosure in this manner. He merely argues that granted more time to prepare, “Appellant might have found a defense to the evidence.” (emphasis added). However, the computer evidence was cumulative in nature: the conversation in Exhibit 45 (computer printout where Appellant expresses concern K.W. might be pregnant and advises her to terminate the pregnancy) matched the conversations in Exhibits 23 through 27, and Appellant admitted to Officer Hampton that Appellant was the one who talked to K.W. in that text message conversation. Appellant has not shown what evidence he would have developed had a continuance been granted; thus, he has also not made the required strong showing of prejudice to warrant a reversal. See State v. Christeson, 50 S.W.3d 251, 261-62 (Mo. banc 2001). There is no showing that the trial court’s ruling was against the logic of the circumstances and was so unreasonable as to indicate a lack of careful consideration.

We find there was no late disclosure of computer forensic examination evidence, and that Appellant failed to show any prejudice by the timing of the disclosure. Point I is denied.

Point II: Denial of Request for Mistrial

In Appellant’s second point on appeal, he argues the trial court abused its discretion by not granting a mistrial after K.W. volunteered that she and Appellant talked about having threesomes with her friend. Appellant argues this evidence was irrelevant and inflammatory and that the trial court’s limiting instruction was insufficient relief to dispel its prejudicial effect. The State responded that Appellant suffered no prejudice from K.W.’s testimony based on the trial court’s limiting instruction and the overwhelming evidence the State adduced regarding Appellant’s guilt.

At issue is whether the trial court abused its discretion in denying a mistrial after K.W. volunteered a reference to threesomes.

“A trial court’s decision not to grant a mistrial is given ‘enormous discretion’ on appeal.” Hahn, 37 S.W.3d at 354. “Unresponsive voluntary testimony that indicates an accused was involved in offenses other than the one for which he is on trial does not mandate a mistrial.” State v. Bringleson, 905 S.W.2d 882, 888 (Mo.App. S.D.1995). Rather, an appellate court considers the “promptness of the trial court’s action in directing the jury to disregard, the offensiveness of the conduct referred to, the isolated nature of the statement, and the lack of evidence that the prosecutor connived to adduce the testimony.” Id. Additionally, “[i]t is normally presumed that the jury follows the instructions given it by the trial judge.” Hahn, 37 S.W.3d at 354 (citing State v. Lyons, 951 S.W.2d 584, 598 (Mo. banc 1997)).

Here, the trial court promptly issued a limiting instruction. It ordered the jury to disregard KW.’s last statement. We presume the jury in fact followed this instruction. See Hahn, 37 S.W.3d at 354. The statement was isolated; K.W. did not mention it again during her testimony, the State did not attempt to use or emphasize the response during the trial, and it was not mentioned in the State’s closing argument. Finally, there was no indication that the statement was invited by the State. To the contrary, the prosecutor explicitly instructed K.W. not to recite the content of the text messages as a preface to the question.

The factors set out in Bringleson direct us to examine the promptness of the limiting instruction, the offensiveness of conduct referenced, the isolated nature of statement, and the prosecutor’s intent to invite the evidence. In considering those factors, we conclude there is no showing the trial court’s denial of Appellant’s request for a mistrial was clearly against the logic of the circumstances and so unreasonable as to indicate a lack of careful consideration. The trial court did not abuse its discretion in denying a mistrial after K.W. volunteered a reference to threesomes. Point II is denied.

Point III: Overruling Objection to Evidence in Exhibit 49

Finally, Appellant claims the trial court abused its discretion by overruling Appellant’s objection to evidence referring to threesomes contained in State’s Exhibit 49, the video interview of Appellant with police. In support, Appellant asserts the trial court previously held “such evidence was probably irrelevant and should not be introduced without the State first approaching the bench” and the ruling was confirmed when K.W. inadvertently mentioned it during her trial testimony and the trial court gave a limiting instruction. The Appellant further argues that because the prejudicial evidence remained in Exhibit 49, the effect was compounded when the jury viewed it again during deliberation.

The State asserts the trial court did not abuse its discretion in overruling the Appellant’s objection to the threesome content of Exhibit 49 because Appellant suffered no prejudice from this ruling based on the overwhelming evidence adduced by the State.

The issue for determination is whether the trial court abused its discretion in overruling Appellant’s objection to the limited portion of Exhibit 49 referring to threesomes.

We review the lower court’s rulings on admissibility of evidence for abuse of discretion. Bennett, 218 S.W.3d at 610. Reversal is appropriate “ ‘only if the error was so prejudicial that it deprived the defendant of a fair trial.’” State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999) (internal citation omitted). “ ‘A finding of outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have [reached a different conclusion] but for the erroneously admitted evidence.’ ” State v. Chism, 252 S.W.3d 178, 185 (Mo.App. W.D.2008) (quoting State v. Blakey, 203 S.W.3d 806, 814 (Mo.App. S.D.2006) (internal quotation marks omitted)). Factors used in determining prejudice include the amount of the erroneously admitted evidence and “ ‘the extent to which the evidence was [referenced] during the trial.’ ” Id. (quoting Blakey, 203 S.W.3d at 815) (internal quotation marks omitted).

In this case, the record shows the trial court did not abuse its discretion and there was no showing of outcome-determinative prejudice. The trial court noted that Exhibit 49 had already been admitted without objection, the jury was halfway through viewing it, and that it was too late to go back and edit it. Importantly, the trial court found that “in the context of this lengthy interrogation of this Defendant [the references to threesomes] it is not of great significance.” The trial court went on to consider the nature of the statements referencing threesomes and concluded that there was no way to parse them out so the videotape would be played the way it was. The record shows that trial court’s decision was carefully considered and logical in the circumstances.

This evidence was not so prejudicial as to require reversal. Only one minute of the eighty-three-minute-long interrogation video referenced evidence of Appellant’s desire for a threesome. Again, this evidence was not relied upon to support the State’s case and was not mentioned in the State’s closing argument. It is unlikely this evidence influenced the jurors to create a reasonable probability that the jury would have acquitted but for its admission as overwhelming evidence of Appellant’s guilt was adduced during trial. This evidence was: K.W.’s testimony that she performed oral sex on Appellant; had intercourse with him; Appellant’s admission that K.W. performed oral sex on him; Appellant’s admission that he could be the father of KW.’s baby if in fact she was pregnant; Appellant’s admission that he was the author of the text messages sent to K.W. expressing concern that she might be pregnant; and Appellant’s action in obtaining a pregnancy test for K.W. After considering the brief references to threesomes in the video with, and balanced against the overwhelming evidence of Appellant’s guilt, we find it unlikely the jury would have reached a different conclusion but for this evidence. There is no showing that the trial court’s ruling was against the logic of the circumstances and so unreasonable as to indicate a lack of careful consideration.

The trial court did not abuse its discretion in overruling Appellant’s objection to the limited portion of Exhibit 49 referring to threesomes. Accordingly, Point III is denied.

The trial court’s judgment is affirmed.

SCOTT, C.J. and RAHMEYER, JJ., concur.

      . All references to statutes are to RSMo 2000, unless otherwise indicated.

      . All rule references are to Missouri Court Rules (2010).

      . The Appellant does not claim the open-file policy is an inappropriate means for the prosecutor to provide discovery.


author: ROBERT S. BARNEY, Presiding Judge.

text:
    Jason L. MCCOLLUM, Appellant, v. STATE of Missouri, Respondent.
    No. SD 30051.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 24, 2010.
    Margaret M. Johnston, Columbia, for Appellant.
    Chris Koster, Atty. Gen., Richard A. Starnes, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Presiding Judge.

Appellant Jason L. McCollum (“Mov-ant”) appeals the motion court’s denial following an evidentiary hearing of his “First Amended Motion to Vacate, Set Aside or Correct the Judgment or Sentence” filed pursuant to Rule 24.035. We affirm the judgment of the motion court.

The record reveals Movant was charged by “Information” on March 3, 2008, with one count of the Class D felony of driving while intoxicated, a violation of section 577.010, RSMo 2000. As Movant had two prior “intoxication-related traffic offenses,” he was charged as a persistent offender under section 577.023.1(4)(a), RSMo Cum. Supp.2005. His prior charges stemmed from a guilty plea on December 6, 2007, to driving while intoxicated in Stoddard County and a guilty plea on April 27,1999, in St. Louis County Circuit Court, Chesterfield Municipal Division, to driving with excess blood alcohol content. On March 5, 2008, pursuant to a plea agreement, Mov-ant pled guilty to the charged offense of driving while intoxicated.

At the guilty plea hearing, Movant stated he understood the charges against him; that he had discussed pleading guilty with his attorney; that he did not desire to proceed to trial; and that he understood he was waiving certain rights by pleading guilty. The State then set out the factual basis for the plea and noted he was also charged as a persistent offender because “he pled guilty to DWI ... in Stoddard County on December 6th of 2007 and in the Circuit Court of St. Louis County, Chesterfield Municipal Division, on April the 27th of 1999.” Movant agreed with the facts as stated by the State. The plea court then accepted Movant’s guilty plea and sentenced him per the plea agreement to four years in the Department of Corrections pursuant to section 577.023.3, RSMo Cum.Supp.2005, with placement in an Institutional Treatment Center under section 559.115, RSMo Cum.Supp.2005. Appellant was later released from the Department of Corrections “effective July 10, 2008, and placed on supervised probation for a period of three (3) years from the date of release, subject to the terms and conditions in the attached order.”

On July 14, 2008, Movant filed a pro se Rule 24.035 motion. Thereafter, the motion court appointed counsel to represent Movant and an amended Rule 24.035 motion was filed on October 31, 2008. In his motion Movant alleged that “the prior alcohol related offenses used did not qualify for enhancement purposes” due to the decision in Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), and “the State failed [t]o certify any of the prior offenses for enhancement purposes.”

An evidentiary hearing was held on Movant’s Rule 24.035 motion on June 25, 2009. On direct examination Movant testified that in relation to his previous Chesterfield conviction he had received probation and was not incarcerated. However, on cross-examination, the State produced a certified copy of his Chesterfield conviction and Movant then testified that he paid a $500.00 fine, court costs in the amount of $106.00, and “the judge entered a conviction on [his] record.” Movant then admitted that he “knew [he had] been convicted twice of prior either DWI or excess BAC.”

His plea counsel, Russell Oliver (“Mr. Oliver”), testified that the Supreme Court’s opinion in Turner was released the day before Movant pled guilty and was sentenced in the present matter. He also related he read the opinion “about a week or maybe two after [Movant] pled guilty” and he “immediately” thought of Movant’s case. He related he went to the courthouse, reviewed Movant’s file again, and noted there was nothing in the record stating either the Stoddard County conviction or the Chesterfield conviction involved an SIS. He stated the file clearly indicated Movant paid a fine in the Chesterfield case and “if he had paid a fine, unless it was entered into the certified record wrong, that a fine would not be imposed on a SIS, that there would only [have been] court costs.” He stated he interpreted Turner to apply “only to municipal SIS convictions” and since there was no municipal SIS conviction in Movant’s history he found it was inapplicable to Movant’s situation.

The motion court subsequently denied Movant’s amended Rule 24.035 motion on July 1, 2009. This appeal followed.

In his sole point relied on, Movant asserts the motion court “clearly erred in denying [his] Rule 24.035 motion after a hearing, because [Movant] was given a sentence in excess of the maximum sentence authorized by [section] 577.023, [RSMo Cum.Supp.2005], in violation of his rights ... and ... due process of law....” Specifically, he asserts the motion court’s decision was in error because

one of the alleged prior intoxication-related offenses was a municipal BAC, and the record does not conclusively prove that it did not presuit in a [SIS], which cannot be used under Missouri case law and the statute in effect at the time of the charged offense; [Movant] was prejudiced because without the prior municipal offense, the most that [Movant] could be convicted of and sentenced for was a class A misdemeanor, punishable by only jail time, yet [Movant] received a felony conviction with a four-year prison sentence.

“Appellate review of the denial of a Rule 24.035 motion for [postconviction] relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous.” Boyd v. State, 205 S.W.3d 334, 338 (Mo.App.2006); see Rule 24.035(k). “Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the ‘definite and firm impression that a mistake has been made.’ ” Morehead v. State, 145 S.W.3d 922, 927 (Mo.App.2004) (quoting Rice v. State, 988 S.W.2d 556, 558 (Mo.App.1999)). We presume the motion court’s findings and conclusions are correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002). Movant bears the burden of proving the grounds asserted for postconviction relief by a preponderance of the evidence. Morehead, 145 S.W.3d at 927; Huth v. State, 976 S.W.2d 514, 516 (Mo.App.1998).

Here, Movant’s entire argument centers on his assertion that the State failed to prove he did not receive a SIS on the Chesterfield conviction. However, Movant misunderstands the fact that it was it was his burden, not the State’s, to prove that he did receive an SIS on the Chesterfield conviction and that his sentence was improperly enhanced. See Morehead, 145 S.W.3d at 927. Movant presented no such evidence. In fact, he ultimately admitted he received a fine and a conviction. Likewise, the documentation supplied by the State relating to the Chesterfield conviction is absent of a reference to an SIS being imposed, and Movant did not provide any documentation to the contrary. Mov-ant has failed to overcome the presumption that the motion court’s ruling was correct in that he has failed to meet his burden of proof. See Butts, 85 S.W.3d at 134. The motion court’s determination was not erroneous. Point denied.

The judgment and findings of the motion court are affirmed.

LYNCH, and BURRELL, JJ., concur.

      . All rule references are to Missouri Court Rules (2009).

      . We note that in his brief Movant argues section 577.023.1(4), RSMo Cum.Supp.2007, is the statute under which Movant was charged; however, this Court was unable to locate any such statute. The statute at issue was altered in 2005 such that those changes went into effect on September 15, 2005, and it was again changed in 2008 with those changes going into effect on July 3, 2008. As Movant was charged in early March of 2008, the 2005 amendment to section 577.023.1(4) is the applicable statute in the present matter.

      . Turner was decided on March 4, 2008, the day prior to Movant’s guilty plea. In Turner, the Supreme Court of Missouri held that "the use of prior municipal offenses resulting in a[suspended imposition of sentence ("SIS”)] cannot be used to enhance punishment under section 577.023.” Id. at 829.

      . The certified copy of this conviction, which was entered into evidence at the evidentiary hearing, reflects the following disposition: "[Movant] entered a plea of guilty to the amended charge of Excessive B.A.C. [Movant] paid fine of $500.00 and court costs of $106.00. Conviction entered on record.”


author: KURT S. ODENWALD, Presiding Judge.

text:
    John L. CHAPPEL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94166.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.
    Brocea Smith, Missouri Public Defender Office, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

John Chappel (Chappel) appeals from the motion court’s denial, without an evi-dentiary hearing, of his Rule 24.035 amended motion for post-conviction relief. Following his plea of guilty and sentencing, Chappel filed a motion for post-conviction relief seeking to set aside his plea. The parties later entered into an agreement whereby Chappel dismissed his motion for post-conviction relief in exchange for the plea court setting aside Chappel’s sentence and allowing him the opportunity to present additional evidence at a new sentencing hearing. Following the second sentencing hearing, Chappel filed a second motion for post-conviction relief, alleging that his waiver of the earlier post-conviction motion was not voluntarily, knowingly, and intelligently made. The motion court denied Chappel’s second motion noting that Chappel failed to set forth facts to form a basis for his claim. Finding that Chappel’s claim was improperly brought as a Rule 24.035 motion, we find no clear error in the motion court’s ruling and affirm.

Background

On February 21, 2007, Chappel pleaded guilty to one count of robbery in the first degree, in violation of Section 569.020, RSMo (2000), and one count of armed criminal action, in violation of Section 571.015. Chappel was sentenced to two concurrent terms of thirty years of imprisonment.

After his sentencing, Chappel filed a pro se Rule 24.035 motion for post-conviction relief. Thereafter, post-conviction counsel was appointed and filed an amended motion for postconviction relief, requesting an evidentiary hearing. In his amended motion, Chappel alleged that he was denied effective assistance of counsel because his plea counsel failed to investigate his defense of not guilty by reason of mental disease or defect, and his plea counsel advised him to enter a blind plea of guilty under the misapprehension that Chappel would receive a reduced sentence as a result of his mental disease or defect. Pri- or to a ruling by the motion court, the parties agreed that Chappel would dismiss his pending amended motion for post-conviction relief and the court would set aside his sentence and allow Chappel to present mitigating witnesses at a new sentencing hearing. Under this agreement the court entered a “consent judgment” noting that, “By stipulation of the parties, [Chappel] hereby waives his request to set aside his plea of guilty. By consent of the parties, the court hereby sets aside [Chappel’s] sentence.”

On December 18, 2008, a second sentencing hearing was held and ChappeFs sentence was reduced to two concurrent terms of twenty-five years of imprisonment.

Chappel filed a second pro se motion for post-conviction relief pursuant to Rule 24.035 on April 9, 2009. Post-conviction counsel was again appointed and filed an amended motion challenging Chappel’s new sentence. The second post-conviction motion alleged that ChappeFs agreement to dismiss his earlier motion for post-conviction relief was not voluntarily, knowingly, and intelligently made. Chappel claimed that the record did not conclusively show that he voluntarily waived his right to challenge his sentence and therefore the waiver was invalid. Chappel asserted that his original amended post-conviction motion should be reinstated and his current sentence vacated.

Both parties appeared before the motion court on October 9, 2009, at which time the motion court denied ChappeFs second amended post-conviction motion without an evidentiary hearing. The motion court entered its Findings of Fact, Conclusions of Law, Order and Judgment on November 16, 2009, noting that the facts alleged by Chappel were refuted by the files and the record in ChappeFs plea and sentencing hearings.

Chappel filed a timely Notice of Appeal to this Court on December 22, 2009. This appeal follows.

Point on Appeal

In his sole point on appeal, Chappel alleges that the motion court clearly erred when it denied his amended motion for post-conviction relief without an evidentia-ry hearing because Chappel alleged facts, not conclusively refuted by the record, which, if proven, would entitle him to relief. Chappel claims his waiver of his right to challenge his sentence under Rule 24.035 was not voluntarily, knowingly and intelligently made. Chappel claims that because the record does not conclusively show he voluntarily entered into the waiver, the motion court’s findings leave a definite and firm impression a mistake was made.

Standard of Review

Appellate review of a motion court’s denial of a post-conviction motion under Rule 24.035 “shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k); Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). Findings and conclusions are “clearly erroneous” if, after a review of the whole record, we are “left with the definite and firm impression that a mistake has been made.” Weeks, 140 S.W.3d at 44. This court “presume[s] that the motion court’s findings and conclusions are correct.” Johnson v. State, 172 S.W.3d 831, 834 (Mo.App. S.D.2005).

Discussion

After filing his original motion for post-conviction relief, Chappel agreed to waive “his request to set aside his plea of guilty,” in exchange for a second sentencing hearing. Chappel now claims this waiver was not voluntarily, knowingly, and intelligently made and thus the motion court erred in denying him post-conviction relief. Because we find that a post-conviction motion under Rule 24.035 is not the proper avenue to pursue this grievance, we affirm the motion court’s denial of Chap-pel’s claim.

Missouri Supreme Court Rule 24.035 states that,

A person convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035. (emphasis added)

Chappel’s second amended post-conviction motion attacked neither his conviction nor his sentence, but rather the waiver of his “request to set aside his plea of guilty.” As Rule 24.035 clearly states and this Court has noted, “Rule 24.035 allows only challenges to the validity of judgments of conviction or sentences, and then only on specified grounds.” Wood v. State, 853 S.W.2d 369, 370 (Mo.App. E.D.1993). Chappel’s claim does not challenge the validity of a judgment of a conviction or sentence on the grounds specified in Rule 24.035.

While Chappel has a right to file a second Rule 24.035 motion for post-conviction relief challenging his second sentence, he did not present such a challenge to that sentence in his second amended motion. See Kniest v. State, 133 S.W.3d 70, 71 (Mo.App. E.D.2003) (holding that if a second motion for post-conviction relief is directed to claims relative to re-sentencing, it is not considered “successive”). Instead Chappel challenges the validity of the waiver of his “request to set aside his plea of guilty” in his second post-conviction motion, neither contesting nor alleging any error with regard to his sentence or conviction on the grounds enumerated in Rule 24.035.

Although the motion court reviewed Chappel’s amended motion on its merits and issued its findings and conclusions, Chappel’s motion challenging the volun-tariness of his waiver is not cognizable under Rule 24.035. Thus the motion court did not clearly err in denying Chappel’s amended motion without an evidentiary hearing.

Conclusion

The judgment of the motion court is affirmed.

ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ„ Concur.

      . Unless other stated, all further statutory references are to RSMo (2007).

      . All further statutory references are to RSMo (2000), unless otherwise noted.