author: MARY K. HOFF, Judge.

text:
    In re the Matter of: S.A.S. by her next friend, Z.J.S., Individually, Petitioners/Appellants, v. B.P., Respondent, and T.L.N., Third-Party Respondent/Appellant.
    No. ED 93765.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 6, 2010.
    Rehearing Denied July 14, 2010.

      Benicia Baker-Livorsi, The Family Law Group, LLC, St. Charles, MO, for Appellant.
    Michael Gross, St. Louis, MO, David B. Goroff, Joanne Lee, Charla Y. Strong, Foley & Lardner LLP, Chicago, IL, Amici Curiae brief for The National Association of Social Workers and The National Association of Social Workers, Missouri Chapter.
    Anthony E. Rothert, ACLU of Eastern Missouri, St. Louis, MO, Stephen Douglas Bonney, Kansas City, MO, John A. Knight, American Civil Liberties Union of Eastern Missouri, American Civil Liberties Union of Kansas and Western Missouri, and American Civil Liberties Union Lesbian, Gay, Bisexual, Transgender & AIDS Project, Chicago, IL, Amici Curiae brief for The American Civil Liberties Union of Eastern Missouri, The American Civil Liberties Union of Kansas and Western Missouri, and The American Civil Liberties Union Lesbian, Gay, Bisexual, Transgender & AIDS Project.
    Anthony D. Linson, Court Appointed Guardian Ad Litem for S.A.S.; Lampin, Kell, Fagras, Linson: Custer & Buehler, St. Peters, MO, Amicus Curiae.
    Jane Ellen Tomich, Knight <& Tomich, St. Charles, MO, for Respondent.

      Richard H. Sindel, Charles D. Sindel, Sindel, Sindel & Noble, P.C., Clayton, MO, for Third-Party Respondent.
   Opinion

MARY K. HOFF, Judge.

Z.J.S. appeals from the grant of summary judgment in favor of B.P. (Mother) regarding the issue of the legal parentage of S.A.S. (Child), pursuant to Section 210.834, RSMo 2000. We reverse and remand because there is an insufficient record for review to entitle Mother to summary judgment as a matter of law. We find Z.J.S.’s constitutional challenge to Section 210.834 was not properly preserved for appellate review.

Factual and Procedural Background

On February 28, 2005, Mother gave birth to Child. At the time of Child’s birth, Mother was in a relationship with Z.J.S. Approximately nine months prior to the birth of Child, Mother had sexual relations with both Z.J.S. and another man, T.L.N. Mother signed an Acknowledgment of Paternity (Acknowledgment) in the hospital, which stated Z.J.S. was Child’s biological father. Z.J.S. also signed this Acknowledgment.

On January 5, 2007, Z.J.S. filed a Petition for Declaration of Paternity and Order of Custody and Visitation (Petition). In his Petition, Z.J.S. alleged that neither he nor Child had submitted to DNA testing to determine whether he was in fact Child’s natural father. In his Petition, Z.J.S. requested that the trial court enter an order requiring paternity blood tests to determine the existence or nonexistence of a father-child relationship between himself and Child.

On January 28, 2008, Mother filed her Cross-Petition for Declaration of Paternity, Order of Support and Custody, and Pre-Petition Support (Cross-Petition), alleging that Z.J.S. was Child’s biological father.

On March 11, 2008, the parties entered into a Consent Judgment and Order for DNA Testing. The parties agreed to submit to DNA testing with Asure Test, Inc., (Asure) no later than March 21, 2008. On March 5, 2008, Mother and Child appeared at Asure and provided DNA samples. On March 12, 2008, Z.J.S. appeared at Asure and provided a DNA sample. The results of the testing concluded there was zero probability that Z.J.S. was the biological father of Child.

On March 18, 2008, Mother filed pleadings with the trial court requesting leave to file her First Amended Cross-Petition for Declaration of Non-Paternity alleging that Z.J.S. was not the biological father of Child, and the trial court granted Mother leave to amend her pleadings on March 28, 2008.

On March 28, 2008, on Mother’s motion, the trial court ordered the parties to submit to a second DNA test at Asure by March 31, 2008. Mother and Child went to Asure on March 28, 2008, and submitted DNA specimens for the second test. Z.J.S. refused to submit to the second DNA test, and Mother filed a Motion to Strike Pleadings Pursuant to Section 210.834.3.

On April 3, 2008, the trial court entered an order allowing Z.J.S. to depose a representative from Asure and gave Z.J.S. until May 2, 2008, to file a motion pursuant to Section 210.834.5. The trial court set the cause for bench trial on June 10, 2008. On April 16, 2008, counsel for Z.J.S. deposed Adrienne Fairbanks (Fairbanks), president of Asure. On April 29, 2008, Z.J.S. filed his Motion Challenging Chain of Custody of the DNA test. On May 2, 2008, the trial court allowed Z.J.S. to withdraw his request for a second DNA test.

On May 8, 2008, DNA testing concluded that T.L.N. was the biological father of Child, with a probability of paternity of 99.99998%. On May 14, 2008, Mother filed her Rescission of Affidavit Acknowledging Paternity. On July 21, 2008, the trial court ordered T.L.N. to be joined as Third-Party Respondent. On July 25, 2008, Z.J.S. filed his Motion for Leave to File First Amended Petition and Join a Necessary and Indispensable Party as well as First Amended Petition for Declaration of Paternity, Declaration of Non-Paternity; Petition for Custody; Petition for Necessaries (First Amended Petition). In his First Amended Petition, Z.J.S. alleged that Mother “informally” raised allegations that T.L.N. was the biological father of Child, that the Acknowledgment is a legal determination that Z.J.S. is Child’s father, and that it is in the best interests of Child that T.L.N. be declared not to be the father of Child.

On August 15, 2008, T.L.N. filed his Answer to Z.J.S.’s First Amended Petition stating his belief that “[Z.J.S.] has ... acted as father to and bonded with [Child] since her birth, that [Child] would be exposed to potentially damaging psychological trauma should it be declared that the only father she has known all her life is not in fact her father, and that therefore, ... it is in [Child’s] best interest that [Z.J.S.] is and should be declared to be [Child’s] legal father.”

On August 22, 2008, both parties filed Motions for Summary Judgment. On September 19, 2008, and September 22, 2008, both parties filed responses to the motions for summary judgment. On October 24, 2008, the trial court held a conference call with attorneys for both parties during which ZJ.S.’s motion challenging chain of custody was taken up and argued. No record was made. The trial court sustained ZJ.S.’s motion and gave Mother additional time, until December 1, 2008, to submit additional certified documentation regarding chain of custody. On October 28, 2008, the trial court scheduled oral arguments for the parties’ respective Motions for Summary Judgment for December 17, 2008.

On December 10, 2008, Mother filed her Motion for Admission of DNA Test Report into Evidence. On the same day, Mother filed her notice that she would call for hearing her Motion for Admission of DNA Test Report into Evidence on December 17, 2008. On December 17, 2008, the trial court entered its order finding that a proper chain of custody had been established as to the DNA results and admitted them into evidence. The trial court took up both parties’ motions for summary judgment, arguments were presented, and the trial court then took both motions under advisement. Also, on December 17, 2008, Z.J.S. filed his Motion to Declare Mo.Rev. Stat. Section 210.884 Unconstitutional, which the trial court overruled. Again, no record was made.

On December 29, 2008, the trial court denied ZJ.S.’s Motion for Summary Judgment and sustained Mother’s Motion for Summary Judgment finding there was no genuine dispute as to the facts of the case.

On January 29, 2009, Z.J.S. filed with the trial court his Notice of Appeal and Jurisdictional Statement Pursuant to Rule 81.08 with Suggestions in Support challenging the constitutionality of Section 210.834. On May 27, 2009, Z.J.S. filed his brief with the Supreme Court. On July 27, 2009, Mother filed her brief with the Supreme Court. On August 11, 2009, Z.J.S. filed his reply brief with the Supreme Court. On August 31, 2009, T.L.N. filed his Motion for Appeal by Special Order, pursuant to Rule 81.07. On September 8, 2009, the Supreme Court granted T.L.N. leave to file a late notice of appeal. On September 11, 2009, T.L.N. filed his Notice of Appeal in the trial court. On October 2, 2009, T.L.N. filed his Notice of Appeal in the Supreme Court. In his appeal, T.L.N. alleges that the trial court erred as a matter of law in entering summary judgment in favor of Mother because the trial court failed to consider the best interests of Child and in rescinding the Acknowledgment because the record does not support a finding of mutual mistake of fact. On October 20, 2009, the Supreme Court transferred the case to this court, where jurisdiction is vested. Mo. Const. Art. V, Sec. 11. This appeal follows.

Standard of Review

Summary judgment is designed to permit the trial court to enter judgment, without delay, when the moving party has demonstrated, on the basis of facts about which there is no genuine dispute, a right to judgment as a matter of law. ITT Commercial Finance v. Midr-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. Our review is essentially de novo. ITT, 854 S.W.2d at 376. We take as true the facts set forth by affidavit or otherwise in support of the moving party’s summary judgment motion unless contradicted by the non-movant’s response. Id. The non-moving party’s response must show the existence of some genuine dispute about one of the material facts necessary to the plaintiffs right to recover. Id. at 381. We may affirm a summary judgment under any theory that is supported by the record. Id. We must determine whether the moving party has demonstrated an “undisputed right to judgment as a matter of law” on the basis of the material facts about which there is no genuine dispute. Id. at 380.

“A ‘material fact’ is a fact of such significance or probative value as to control or determine the outcome of the litigation.” Premier Golf Missouri, LLC v. Staley Land Co., LLC, 282 S.W.3d 866, 871 (Mo. App. W.D.2009) (quoting Lewis v. Biegel, 204 S.W.3d 354, 356 (Mo.App.W.D.2006)). “If the record contains competent evidence that two plausible, but contradictory accounts of essential facts exist, then a genuine issue of material fact remains to be resolved, because fair minded people, exercising reasonable judgment could reach different conclusions on the issue in controversy.” Id. Thus, disputes over facts that might affect the outcome of a suit under governing law preclude the entry of summary judgment and the determination of such contradictory facts is for the finder of fact to determine. Biegel, 204 S.W.3d at 356.

Constitutional Challenge to Section 210.83⅛

In his first point, Z.J.S. argues the trial court erred as a matter of law in sustaining Mother’s motion for summary judgment, denying his motion for summary judgment, and denying his motion to declare Section 210.834 unconstitutional.

To properly preserve a constitutional issue for appellate review, the issue must be raised at the earliest opportunity and preserved at each step of the judicial process. Sharp v. Curators of University of Missouri, 138 S.W.3d 735, 738 (Mo.App. E.D.2003). To have properly preserved the constitutional issue, Z.J.S. should have raised it at the first opportunity, on March 18, 2008, as soon as Mother filed her Motion to Dismiss based on Section 210.834. See Curtis v. City of Hillsboro, 277 S.W.3d 707, 712 (Mo.App. E.D.2008). However, Z.J.S. raised the constitutional issue at the last possible moment, the day the trial court heard oral arguments on the parties’ motions for summary judgment on December 17, 2008. Because Z.J.S. failed to raise the constitutionality of Section 210.834 at the first available opportunity, he has not preserved this issue for appellate review. Point I is denied.

Chain of Custody

In his second point, Z.J.S. argues the trial court erred as a matter of law in interpreting Section 210.823 and Section 210.834 to require it to dismiss Z.J.S.’s case upon receipt of DNA evidence demonstrating he was not Child’s biological father. Z.J.S. contends that pursuant to the validly executed Acknowledgment, there was a conclusive legal finding of parentage.

Before we can address the merits of Z.J.S.’s point, we must first consider whether Mother properly adhered to the procedural requirements of Section 210.834.

Missouri’s Uniform Parentage Act details the procedure for requesting, obtaining, and admitting blood test results into evidence pursuant to Section 210.834. Section 210.834 provides in pertinent part:

1. The court may, and upon request of any party shall require the child, mother, alleged father, any presumed father who is a party to the action, and any male witness who testifies or shall testify about his sexual relations with the mother at the possible time of conception, to submit to blood tests.
4. Whenever the court finds that the results of the blood tests show that a person presumed or alleged to be the father of the child is not the father of such child, such evidence shall be conclusive of nonpaternity and the court shall dismiss the action as to that party....
5. Certified documentation of the chain of custody of the blood or tissue specimens is competent evidence to establish such chain of custody. An expert’s report shall be admitted at trial as evidence of the test results stated therein without the need for foundation testimony or other proof of authenticity or accuracy, unless a written motion containing specific factual allegations challenging the testing procedures, the chain of custody of the blood or tissue specimens, or the results has been filed and served on each party, and the motion is sustained by the court or an administrative agency not less than thirty days before the trial. [Emphasis added.]

On August 22, 2008, Mother filed her Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment in which she alleged that “[t]he DNA testing in the present case provides uncontroverted proof that [Z.J.S.] is not the biological father of [Child].” Mother further alleged that the evidence was admissible under the procedure detailed under Section 210.834, and, therefore, based on the conclusive nature of the DNA test, Mother was entitled to judgment as a matter of law. On the same day, Z.J.S. filed his Motion for Summary Judgment as to Parentage and Suggestions in Support in which he alleged that “there were flaws in the genetic testing and procedures and is not agreeing to their admission on both legal and eviden-tiary grounds.”

On September 19, 2008, Z.J.S. filed his Response to Mother’s Motion for Summary Judgment and Statement of Uncon-troverted facts denying that any admissible testing had been performed pursuant to Section 210.834. In his response, Z.J.S. specifically alleged:

There is no admissible blood test as to paternity in that there is no evidence establishing chain of custody as to all paternity tests; there is a lack of a proper evidentiary foundation concerning the methods employed by the testing laboratory and there is insufficient evidence of those who did genetic testing and those who interpreted the results as required under Mo.Rev.Stat. Sec. 210.834.

On October 24, 2008, the trial court held a conference call, with counsel for both parties, during which Z.J.S.’s motion challenging chain of custody was taken up and argued. The trial court sustained Z.J.S.’s motion and gave Mother additional time, until December 1, 2008, to submit additional certified documentation regarding chain of custody.

On December 3, 2008, Mother filed with the trial court the affidavit of Thomas M. Reid, Ph.D., (Reid) the Associate Laboratory Director of DNA Diagnostics Center, the laboratory that prepared the DNA report. Reid verified the DNA testing was in accordance with established standard laboratory procedures and guidelines. On December 10, 2008, Mother filed her Motion for Admission of DNA Test Report Into Evidence. Attached to the motion were the following relevant exhibits: the affidavit of Zachary Weber, an Asure employee who collected the DNA samples from Mother and Child; the affidavit of Florence Wehr, an Asure employee who collected DNA samples from Z.J.S.; the affidavit of accreditations duly sworn by Fairbanks, the president of Asure; and the affidavit of Mother detailing the DNA testing procedures performed on her and Child. On the same day, Mother filed her notice that she would call for hearing her Motion for Admission of DNA Test Report into Evidence on December 17, 2008.

On December 17, 2008, the trial court entered its order finding

that a proper chain of custody has been established as to the DNA [test results] and admits DNA results into evidence thereby overruling [Z.J.S.’s] motion to exclude DNA test results.... [ZJ.S.’s and Mother’s] motion for summary judgment were taken up and arguments were presented and the court takes both motions under advisement.

Here, there is no transcript documenting the evidence and argument made either at the October 24, 2008, evidentiary “hearing” or at the December 17, 2008, summary judgment hearing, both of which challenged the DNA evidence and the chain of custody. Without such a record, it is impossible for this court to determine what evidence was before the trial court, and this court will not speculate on the evidentiary basis for the trial court’s decision. We reverse and remand for a trial on the merits.

Acknowledgment of Paternity

In his third point, Z.J.S. argues the trial court erred in granting Mother’s motion to rescind the Acknowledgment and in granting Mother’s motion for summary judgment because there was a genuine dispute as to whether Mother knew that Z.J.S. was not Child’s biological father.

In its judgment rescinding the Acknowledgment and entering summary judgment in favor of Mother, the trial court found that

at the time the Affidavit was signed, the parties held a mutually mistaken belief that [Z.J.S.] was in fact the biological father of [Child] or depending on [Mother’s] knowledge and intentions, the Affidavit was signed as a result of fraud. The minor child certainly has an interest in seeing that this mistake is corrected and because the uncontroverted evidence shows that there was a mistake of fact, the Acknowledgment ... signed by the parties on Feb. 28, 2005, is hereby rescinded and the Missouri Department of Health and Senior Services, Bureau of Vital Records is directed to remove the name of ... Z.J.S. as father from the birth record of [Child].

In so concluding, the trial court was relying on Section 210.823, which provides in pertinent part:

1. A signed acknowledgment of paternity form ... shall be considered a legal finding of paternity subject to the right of either signatory to rescind the acknowledgment, in writing, by filing such rescission with the bureau within the earlier of:
(1) Sixty days from the date of the last signature; or
(2) The date of an administrative or judicial proceeding to establish a support order in which the signatory is a party. The acknowledgment may thereafter only be challenged in court on the basis of fraud, duress or material mistake of fact with the burden of proof upon the challenger. [Emphasis added.]

Section 210.823.1.

The phrase “material mistake of fact” is not defined in Section 210.823. As discussed under Point II, however, in the absence of a record establishing that there was an accurate and properly conducted DNA test, we are unable to determine whether the trial court erred in granting Mother’s motion to rescind the Acknowledgment. Point III is reversed and remanded for a trial to establish whether there was a proper chain of custody and to consider the requirements in Section 210.834.5.

Conclusion

Z.J.S.’s constitutional challenge to Section 210.834 was not properly preserved for appellate review. Due to the insufficient record, we cannot conclude that Mother was entitled to judgment as a matter of law. The trial court’s grant of summary judgment is reversed on the issues of chain of custody and rescission of the Acknowledgment for trial. Given our disposition of these points, we need not address T.L.N.’s appeal. The cause is remanded for further proceedings consistent with this opinion.

GLENN A. NORTON, Presiding Judge and LAWRENCE E. MOONEY, Judge, concur.

      . Unless otherwise indicated, all further statutory references are to RSMo 2000.

      . If Z.J.S.'s constitutional challenge had been preserved for appellate review, exclusive jurisdiction of this appeal would have been in the Missouri Supreme Court. Article V, Section 3, Mo. Const. As a result of finding that this issue was not preserved, jurisdiction is vested in this court and the point is without merit. State v. Bowens, 964 S.W.2d 232, 236 (Mo.App. E.D.1998).

      . No transcript of this evidentiary "hearing” appears in the record.

      . As mentioned above, on April 16, 2008, the parties deposed Fairbanks. The deposition is attached to Mother's Statement of Uncontro-verted Facts in Support of Her Motion for Summary Judgment.

      . Although not determinative in this matter, recently enacted legislation provides that a DNA test excluding a person as the father is usually conclusive on the issue of paternity and constitutes a "material mistake of fact” under Section 210.823. Section 210.854, RSMo Cum.Supp.2009, provides in pertinent part
      4. Upon a finding that the genetic test referred to herein was properly conducted, accurate, and indicates that the person subject to the child support payment order has been excluded as the child’s father, the court shall, unless it makes written findings of fact and conclusions of law that it is in the best interest of the parties not to do so:
      (1)Grant relief on the petition and enter judgment setting aside the previous judgment or judgements of paternity and support, or acknowledgment of paternity under section 210.823 only as to the child or children found not to be the biological child or children of the petitioner;
      (2) Extinguish any existing child support arrearage only as to the child or children found not to be the biological child or children of the petitioner; and
      (3) Order the department of health and senior services to modify the child’s birth certificate accordingly.

      6. A finding under subsection 4 of this section shall constitute a material mistake of fact under section 210.823.


source: Caselaw Access Project

author: NANCY STEFFEN RAHMEYER, Judge.

license: Public Domain

text:
    Duone Titus Ray HAIRSTON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. SD 30092.
    Missouri Court of Appeals, Southern District, Division Two.
    June 11, 2010.

      Mark A. Grothoff, Columbia, MO, for appellant.
    Chris Foster, Atty. General, Mary H. Moore, Jefferson City, MO, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Duone Titus Ray Hairston (“Movant”) was found guilty by a jury of one count of possession of a controlled substance with intent to distribute, a felony under section 195.211, and sentenced to ten years imprisonment to be served consecutive to any other sentence he was currently serving. Before trial, Movant filed a motion to suppress evidence seized from the execution of the search warrant, which led to the discovery of evidence used at trial, on the grounds that the search warrant did not accurately describe Movant’s residence. A hearing on the motion to suppress produced evidence that the application for the warrant, the affidavit in support of the application for the warrant, and the search warrant itself, all described the premises to be searched as “a two[-]story apartment building brick structure” at “209 West Center apartment # K, Sikeston, Scott County, Missouri.” While Movant’s residence was located at 209 West Center, Apartment K, his apartment was in a one-story building, located six to fifteen feet from the two-story structure referenced in the search warrant. The police officer who applied for and executed the search warrant testified at the hearing on the motion to suppress as follows: “It’s actually, the apartment complex, the brick two[-]story building is on the front of it and then there is a small apartment that’s still on the same property within maybe six or eight feet from the main structure that [Movant] actually lived in that was marked Apartment K.” Both buildings are a part of the same apartment complex.

The police searched Movant’s apartment and discovered a roll of plastic bags and a police scanner with local police frequencies programmed into it. After failing to find any controlled substances in the apartment, one of the detectives executing the warrant exited the one-story building and went into the apartment complex’s common laundry area, which was located in the basement of the two-story building described in the search warrant. A piece of Styrofoam that, to the executing detective, looked out of place between two rafters in the ceiling was discovered in the laundry area. The detective removed the Styrofoam and found 24.74 grams of marijuana inside. Movant was arrested and subsequently gave a recorded statement, which was transcribed, read into the record at trial, and included the following exchange:

[Movant]: I mean what you want to know?
[Detective]: Start off with the hidey hole.
[Movant]: What about it?
[Detective]: What up with that?
[Movant]: In the basement.
[Detective]: Where at?
[Movant]: A whole bunch of that Styrofoam.
[Detective]: Where was your dope at?
[Movant]: It wasn’t nothing but like a sack down there.
[Detective]: What are you doing with all of the money you got from selling weed then?
[Movant]: That is my money.

Movant’s motion to suppress the evidence was denied and the items seized as a result of the search were ultimately admitted into evidence at trial without objection.

After being found guilty, Movant appealed challenging the sufficiency of the evidence for his conviction. This Court, however, affirmed his conviction in State v. Hairston, 268 S.W.3d 471 (Mo.App. S.D. 2008). Movant timely filed a pro se motion for post-conviction relief and counsel thereafter filed a statement in lieu of filing an amended motion, adopting the claims alleged in the pro se motion.

Movant’s Rule 29.15 motion alleged that his conviction and sentence should be vacated, set aside, or corrected for the following reasons: (1) the affidavit used to obtain a search warrant for Movant’s residence was “fatally defective”; (2) the search warrant did not state with particularity the persons or places to be searched, which led to illegal search and seizure violations of Movant’s constitutional rights; (3) Movant was prejudiced by ineffective assistance of counsel in that counsel provided ineffective assistance by, among other things, “not objecting to allow into evidence this unknown confidential informant and illegal search warrant”; (4) there was insufficient evidence to support a conviction under section 195.211; (5) there was insufficient evidence to support the conviction of intent to distribute; and (6) that the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In total, Movant’s Rule 29.15 motion alleged fifteen different claims of ineffective assistance of counsel, in addition to the five alleged trial court errors. The motion court found that Movant did not receive ineffective assistance of counsel and denied his motion on all other points. Movant now appeals, his sole point challenging the motion court’s judgment denying one of the claims for ineffective assistance of counsel; he asks us to reverse the denial of post-conviction relief because “his trial counsel failed to object at trial to evidence seized as a result of the search conducted” as Movant claims the warrant was invalid for not accurately describing his residence.

On review, the motion court’s findings are presumed correct. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The motion court’s judgment will be overturned only when either its findings of fact or conclusions of law are clearly erroneous. Id. (citing Rule 29.15(k)). The findings of fact and conclusions of law will only be overturned where, after reviewing the entire record, we are left with a “ ‘definite and firm impression that a mistake has been made.’ ” Schmidt v. State, 292 S.W.3d 574, 576 (Mo.App. S.D.2009) (quoting Soto v. State, 226 S.W.3d 164, 166 (Mo. banc 2007)).

To prevail on a claim of ineffective assistance of counsel, Movant must (1) show that his trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances and (2) establish prejudice by showing a reasonable probability that but for counsel’s errors, the results of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by Movant as a result of the alleged deficiencies. Id. at 697, 104 S.Ct. 2052. We affirm because Movant has no standing to challenge the search of the unlocked laundry room, a common area at his apartment complex. Furthermore, the common area premises where the marijuana was actually found were accurately described in the search warrant.

Trial counsel does not provide ineffective assistance by failing to make a meritless objection. Forrest v. State, 290 S.W.3d 704, 717 (Mo. banc 2009). “[Before an individual can challenge a search and seizure, he or she must establish that he or she had a ‘legitimate expectation’ of privacy in the area searched or the items seized.” State v. Martin, 892 S.W.2d 348, 351 (Mo.App. W.D.1995) (citing Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). “[TJenants of multifamily dwellings have no legitimate expectation of privacy in common or shared areas.” U.S. v. Mendoza, 281 F.3d 712, 715 (8th Cir.2002); U.S. v. McGrane, 746 F.2d 632, 634 (8th Cir.1984) (holding that in a multifamily dwelling, where other residents had access to a basement storage locker, there was no legitimate expectation of privacy). Movant lived in an apartment complex where he and other tenants used a common laundry area in the basement of a building that was part of that complex. Accordingly, he had no legitimate expectation of privacy in that area.

Because Movant has no standing to challenge the search of the common area, he was not prejudiced by trial counsel’s failure to object to the admission of the 24.74 grams of marijuana found in the laundry room.

The judgment is affirmed.

LYNCH, P.J., and FRANCIS, J., concur.

      . All references to statutes are to RSMo Cum. Supp.2003, and all rule references are to Missouri Court Rules (2010), unless otherwise specified.


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

text:
    Kevin L. WHITE, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29920.
    Missouri Court of Appeals, Southern District, Division Two.
    June 14, 2010.

      Craig A. Johnson, Columbia, MO, for Appellant.
    Chris Koster, Atty. Gen. and Shaun J. Mackelprang, Assist. Atty. Gen., Jefferson City, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

This appeal comes to this Court on Kevin L. White’s (Movant) motion for post-conviction relief asserting that his guilty plea was not intelligently and voluntarily entered for the reason that he received ineffective assistance of counsel. The motion court entered an order denying Mov-ant’s relief. We affirm the motion court.

Factual and Procedural History

Movant was charged with six drug-related offenses in Greene County, Missouri: Count I, attempted manufacturing of a controlled substance, pursuant to section 195.211; Count II, possession of a controlled substance, pursuant to section 195.202; Count III, possession of a chemical with the intent to create a controlled substance, pursuant to section 195.420; Count IV, possession of drug paraphernalia with intent to use, pursuant to section 195.233; and Counts V and VI, unlawful use of a weapon, pursuant to section 571.030.1(1).

On June 3, 2005, Movant pled guilty to Counts I, II, and VI. Pursuant to a plea agreement, the State agreed to dismiss Counts III, IV, and V. The State also agreed not to charge Movant as a “persistent” offender in Count I, which allowed Movant to be eligible for parole and potential eligibility in the long-term substance abuse addiction program created by section 217.362. Movant had been evaluated and sentenced in another county on an unrelated charge, pursuant to section 217.362. During the plea proceedings in this case, Movant raised a question regarding whether the terms of his plea agreement adversely affected his eligibility for consideration in the 217.362 program prior to sentencing in this case. There was a break in the plea proceedings of undetermined length. The plea proceedings then went back on the record and Movant, apparently satisfied that he would be eligible for consideration in the section 217.362 program prior to sentencing, entered a plea of guilty.

On August 5, 2005, Movant was sentenced. Movant was not referred to the section 217.362 program. The sentencing court commended Movant’s sentencing counsel for making a “strong argument” on his behalf, but offered the following explanation before it imposed Movant’s sentence:

[W]hat speaks louder ... is your history, sir, and your contact with the criminal justice system in the past. I have sat here and I wonder how many judges have listened to fíne attorneys argue on your behalf for leniency for a great variety of reasons and asked for treatment and other things over the years with all these multiple convictions and sometimes they listened to that obviously and sometimes they didn’t as I look through here, but I don’t believe that the long-term drug treatment program is the appropriate response at this point. The state struck the persistent language from Count 1 which it would have certainly been justifiable for them to keep that in place. I think they gave you an accommodation there and I don’t feel this court should do anything other than just follow the years that are left in the plea agreement in terms of the years to sentence you to, sir.

Movant was sentenced to 16 years for both Counts I and II, respectively, and 4 years for Count VI. These sentences were ordered to run concurrent with each other.

On August 31, 2005, Movant filed a “Motion to Vacate, Set Aside or Correct the Judgment or Sentence,” pursuant to Rule 24.035, on his own behalf. Movant was subsequently appointed counsel. On June 2, 2006, Movant’s counsel filed an amended motion on Movant’s behalf. The motion alleged that Movant’s plea counsel was ineffective for two reasons:

(a). [Plea] counsel unreasonably failed to request the Court to direct the pre-sentence investigator to assess and make findings as to Movant’s eligibility for long-term treatment pursuant to section 217.362. Movant pled guilty based on counsel’s assurance that he would be considered and assessed for long-term treatment.
(b). [Plea] counsel unreasonably advised movant to reject [the] state’s cumulative plea offer of eleven years and instead accept an offer of sixteen years because with the sixteen-year offer he could seek long-term treatment. However, movant was not prescreened (nor was pre-screening requested by counsel), such that movant was not eligible for long-term treatment.

On January 21, 2009, the motion court held an evidentiary hearing regarding Movant’s motion. Movant and Movant’s plea counsel, Gary Collins, both testified. Collins testified that the State offered Movant at least two different plea offers. The first plea offer included a maximum sentence of 11 years, but the State would not strike the “persistent” language in Count I; therefore, Movant would not be eligible for parole or the section 217.362 program. The second plea offer included a maximum sentence of 16 years, but the State would strike the “persistent” language in Count I; therefore, Movant would be eligible for parole or the section 217.362 program. Collins also testified that he did not think it was necessary to request Movant be pre-screened in this case because he had already been screened and accepted in another case, and Collins had other clients who were accepted into the program without being pre-screened under those circumstances. Movant admitted during his testimony at the eviden-tiary hearing for this case that he had already been pre-screened for the program in another case: “Q. And you were screened for long-term treatment; it was just in a different case, right? A. In Lawrence County, yeah.”

Movant testified that he wanted to be considered for the section 217.362 program in this case as he had in a previous unrelated case. Movant also testified that he would have wanted to be pre-screened if he knew that was required by statute, and he would have taken the 11-year plea agreement if he knew he was not going to be pre-screened. On cross-examination, the following exchange took place between Movant and the State at the evidentiary hearing:

Q. But you never did intend on taking this case to trial correct?
A. I — we could have went to trial on it if that’s what they wanted to do, you know.
Q. But you didn’t want to go to trial; you just wish you had taken a lesser sentence, correct?
A. I wish they had gave me what they offered me, yeah.
Q. Okay. So it’s not your request here today to have a trial?
A. Well, if we have to have a trial, I guess we’ll have to have one.
Q. But your complaint about the eleven-year sentence is you wish you had taken that as part of the plea offer, correct?
A. Yeah.

On February 25, 2009, the motion court issued an order denying Movant’s motion. Regarding Movant’s first claim, the motion court found that Movant’s plea counsel’s performance did not fall below an objective standard of reasonableness because Mov-ant was screened for and evaluated pursuant to section 217.362, in a previous case pending in another county. Therefore, there was no reason to request Movant be screened again in this case. The motion court also found that Movant was not prejudiced because the sentencing court’s decision not to refer him for the section 217.862 program was independent of his eligibility for it and that the court was not willing to refer him for the program. The motion court denied Movant’s second claim because it found that Movant only claimed that but for counsel’s ineffectiveness, he would have accepted the 11-year plea agreement. Thus, the motion court concluded that he failed to show prejudice, which the motion court stated required that “a movant must show that but for counsel’s alleged errors, he would not have pled guilty and would have insisted on going to trial.”

Standard of Review

Our review of the motion court’s disposition of a motion filed pursuant to Rule 24.035 is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k). Findings and conclusions are clearly erroneous if, “after reviewing the entire record, the appellate court is left with the definite and firm impression a mistake has been made.” State v. Nunley, 980 S.W.2d 290, 291-92 (Mo. banc 1998).

Analysis

To succeed on an ineffective assistance of counsel claim, Movant is required to prove two things: “first, [Movant] must show that his attorney failed to exercise the level of skill and diligence that a reasonably competent attorney would exercise in a similar situation and, second, that trial counsel’s failure prejudiced [Movant].” Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008). In general, “[prejudice means a reasonable probability of a different result but for counsel’s unprofessional errors.” Hardy v. State, 306 S.W.3d 159, 161 (Mo.App. S.D.2010). “If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and the movant’s claim of ineffective assistance of counsel must fail.” Eddy v. State, 176 S.W.3d 214, 217 (Mo.App. W.D.2005).

Movant presents two points. First, Movant alleged that the motion court erred in denying his 24.035 motion because his plea counsel was ineffective because he did not request that Movant be pre-screened for eligibility for section 217.362 prior to sentencing. Thus, it was not possible for the sentencing court to consider a section 217.362 referral. Therefore, Mov-ant concludes that his guilty plea was involuntary, unknowing, and unintelligent because if he had known he could not receive drug treatment that he would have either taken the 11-year deal or gone to trial. Second, Movant challenges the legal standard that the motion court applied in evaluating whether he suffered prejudice as a result of his plea counsel’s conduct.

Section 217.362

A brief overview of section 217.362 is appropriate because of its importance to understanding this case. Section 217.362.1 mandated the creation, by the Department of Corrections (“DOC”), of “an intensive long-term program for the treatment of chronic nonviolent offenders with serious substance abuse addictions who have not pleaded guilty to or been convicted of a dangerous felony as defined in section 556.061, RSMo.” Section 217.362.2 requires that “[p]rior to sentencing, any judge considering an offender for this program shall notify [DOC].” DOC is then required to screen the defendant to determine his eligibility for the program and notify the court of its findings. § 217.362.2. Depending on the defendant’s eligibility and the availability of space in the program, “the court may sentence” the defendant to the program, subject to some restrictions on the length of the sentence. Id.

Based on our review of the sentencing transcript, there is no evidence that the sentencing court’s refusal to refer Movant for a section 217.362 evaluation had anything to do with whether Movant had been pre-screened or his general eligibility for it. The sentencing court considered Mov-ant for referral pursuant to section 217.362, when it specifically discussed the long-term drug treatment program prior to imposing Movant’s sentence; however, it ultimately concluded that it did not “believe that the long-term drug treatment program is the appropriate response at this point” because of Movant’s history of “contact with the criminal justice system.” Whether Movant had been pre-screened was not a factor. Therefore, any failure on the part of Movant’s plea counsel to request pre-screening for the program was not the “but for” cause of the sentencing court’s refusal to refer Movant for section 217.362 evaluation, as described in Hardy, 306 S.W.3d at 161.

Second, Movant alleged that the motion court erred because it applied the wrong standard for prejudice when it found that Movant did not establish prejudice for the reason that he did not prove he would have gone to trial but for counsel’s ineffectiveness. Movant claims that he did establish prejudice:

(1) [Movant] did testify that if he had known that counsel would not have gotten him prescreened for [section 217.362 sentencing] he would have either gone to trial or taken the 11-year deal; and
(2) [Movant] established prejudice because as a result of counsel’s ineffectiveness he received 16 years in prison instead of the original 11-year deal and receiving an additional five years in prison establishes prejudice.

Movant’s second point also fails. Mov-ant has not shown that the alleged errors on the part of his plea counsel affected the outcome of his case. Movant took the 16-year plea because he wanted to be considered for the section 217.362 program and this plea held open the possibility of parole. The sentencing court made it clear that it was Movant’s own criminal history that persuaded it that application of the section 217.362 program was not appropriate in this case. The record established that it was not the conduct of Movant’s plea counsel that affected the outcome of his case; the cause of Movant’s alleged prejudice was his own criminal history.

The judgment of the motion court is affirmed.

LYNCH, P.J., and RAHMEYER, J., concur.

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

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

      . The Supreme Court of the United States stated that “in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Our Supreme Court first applied that standard in Hagan v. State, 836 S.W.2d 459, 463-64 (Mo. banc 1992) (questioned on other grounds by State v. Heslop, 842 S.W.2d 72, 75 (Mo. banc 1992)). Our Supreme Court has reiterated that standard for prejudice as recently as 2009, in Roberts v. State, 216 S.W.3d 833, 836 (Mo. banc 2009). However, the Western District has recently questioned whether the Hill standard is the exclusive test for prejudice following a guilty plea. See Frye v. State, 311 S.W.3d 350, 358-59 (Mo.App. W.D.2010) (stating that "[o]ur court does not construe Hill to bar other means of establishing prejudice when insisting on going to trial cannot possibly remediate ineffective assistance that has affected the outcome of the proceeding”). Based on the record in this case, however, Movant has failed to show how his plea counsel's alleged errors were the "but for" cause of his alleged prejudice. Therefore, it is unnecessary to address whether the standard in Hill is the exclusive test for prejudice under these circumstances.


author: GARY M. GAERTNER, JR., Judge.

text:
    CAPITAL ONE BANK (USA) NA SUCCESSOR IN INTEREST TO, CAPITAL ONE BANK, Respondent, v. Mary LARGENT, Appellant.
    No. ED 93823.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.

      Melissa Cates, St. Louis, MO, for appellant.
    Pamela P. Patton, St. Louis, MO, for respondent.
   GARY M. GAERTNER, JR., Judge.

Introduction

Mary Largent (Largent) appeals from the trial court’s judgment denying her Motion to Set Aside Default Judgment following entry of Judgment in Default for Capital One Bank (USA) N.A. (Capital One). We reverse and remand.

Factual and Procedural Background

On May 30, 2008, Capital One filed a Petition for Breach of Contract (Petition) against Largent, alleging that Largent had breached a contract for the extension of credit, and praying for damages in the amount of $7,807.02, interest, reasonable attorney’s fees, and court costs. On August 13, Largent was personally served with the Petition. Thereafter, Largent’s husband (Husband) appeared for trial on November 3, and filed a Motion to Dismiss with Prejudice. That same date, the trial court entered Judgment in Default for Capital One, awarding Capital One $7,807.02 in damages, $1,533.88 in interest, and $1,401.14 in attorney’s fees for a total of $10,742.04, plus court costs. This November 3, 2008 Judgment further indicated that the award would bear interest at the rate of 19.90% per annum.

On July 7, 2009, Largent filed her verified Motion to Set Aside Default Judgment, alleging, among other things, the Default Judgment was entered to her surprise and due to an excusable misunderstanding of Largent and Husband, as Lar-gent believed that Husband could appear pro se for her because the debt was incurred during their marriage. Largent further averred that prior to the entry of the default judgment, Husband, without objection from Capital One or the trial court, had previously appeared on her behalf at two court proceedings in this matter. As a meritorious defense, Largent alleged that: she did not incur the debt charged in the Petition; she had notified Capital One on multiple occasions that the card activity was fraudulent; and Capital One had failed to respond reasonably to her communications.

Capital One filed its Response to Lar-gent’s Motion to Set Aside on September 29, 2009, arguing that Wife’s eight-month delay in filing her motion was unreasonable, and disputing Wife’s claimed meritorious defense. On October 8, Largent responded to Capital One’s response. On October 14, 2009, the trial court, after hearing arguments and taking judicial notice of the file and the parties’ response memorandums, denied Largent’s Motion to Set Aside Default Judgment and declared that the November 3, 2008 judgment remained in full force and effect.

This appeal follows.

Standard of Review

Our review of a trial court’s denial of a motion to set aside a default judgment is for abuse of discretion. Brungard v. Risky’s Inc., 240 S.W.3d 685, 686-87 (Mo. banc 2007). Although broad discretion is afforded to trial court decisions granting motions to set aside, the trial court’s discretion in denying such motions is narrowed, because public policy favors resolution on cases on the merits and default judgments are regarded with distaste. Id.

Discussion

In her sole point on appeal, Largent claims the trial court erred in denying, without an evidentiary hearing, her Motion to Set Aside Default Judgment, because her motion sufficiently met the pleading requirement of Rule 74.05 and established both: 1) good cause for default, in that Largent and her spouse were under the impression the credit card debt was marital, and Largent’s spouse had appeared twice previously in the matter for Largent, without objection; and 2) a meritorious defense, in that a portion of the credit card debt resulted from identity theft and fraud.

To be entitled to an evidentiary hearing on a motion to set aside a default judgment, the moving party must meet the pleading requirements of Rule 74.05(d), which provides that a default judgment can be set aside “[u]pon motion stating facts constituting a meritorious defense and for good cause shown.... ” Rule 74.05(d). To determine compliance with the pleading requirements, we examine the allegations in the defaulting party’s motion, and such other matters as affidavits, exhibits, and proposed answers. Bredeman v. Eno, 863 S.W.2d 24, 25 (Mo.App. W.D.1993).

We first address Capital One’s argument that Largent’s motion was not filed in a timely fashion. Rule 74.05 requires that motions to set aside default judgments “shall be made within a reasonable time not to exceed one year after the entry of the default judgment.” Rule 74.05(d). Here, the default judgment was entered on November 3, 2008. Largent filed her motion to set aside on July 7, 2009. As Largent’s eight-month delay in filing does not exceed the one-year maximum, our determination focuses on the reasonableness of the delay. Id.

In determining whether a motion to set aside a default judgment was filed within a reasonable time, we examine the circumstances surrounding the delay. First Bank of the Lake v. White, 302 S.W.3d 161, 168 (Mo.App. S.D.2009). In her October 8 response, Largent alleged that after the default judgment was entered against her, she sought and obtained legal counsel. Largent further alleged that after this attorney failed to take action on her behalf for six months, Largent retained her current counsel. Under these facts, undisputed before the trial court and on appeal, we cannot say that Largent’s eight-month delay in challenging the default judgment was unreasonable.

Next, we examine Largent’s motion to determine if it sufficiently states facts demonstrating good cause for setting aside the default judgment. As the party moving to set aside the default judgment, Largent has the burden to prove good cause. Bnmgard, 240 S.W.3d at 688. The rule clarifies that good cause “includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.” Rule 74.05(d).

Largent’s verified motion alleges that Largent mistakenly believed that, as the debt was incurred during the marriage, Husband could appear on her behalf as a pro se litigant. The motion further avers that Husband had appeared on two previous occasions in the matter for Largent, who worked full-time, and that neither Capital One nor the trial court had objected to these appearances. Capital One first objected during Husband’s third appearance, claiming Husband was unable to appear for Largent and proceed pro se because the credit card was a “single use card” and the suit was only against Lar-gent.

“Prompt action by a movant assists in establishing the defendant’s good faith required under Rule 74.05(d).” Tinsley v. B & B Engines, Inc., 27 S.W.3d 859, 862 (Mo.App. E.D.2000). Despite Lar-gent’s failure to act more promptly to set aside the judgment, we conclude Largent’s motion contained sufficient allegations of good cause for setting aside the default. “Failure to appear is not by itself sufficient grounds for taking a judgment by default. The failure to appear must be ‘inexcusable’ for that to justify such a judgment.” Sastry v. Sastry, 302 S.W.3d 264, 267 (Mo.App. E.D.2010) (citation omitted). Significantly, the motion’s allegations show this is not a situation where the defaulting party simply ignored the summons or completely failed to respond to the proceedings in any manner. Rather, Largent’s spouse appeared on three occasions, and even filed a Motion to Dismiss in the matter. We do not find Largent’s and Husband’s belief that he could appear and defend against the Petition, and Husband’s attempt to do so pro se, constitutes a mistake or conduct intentionally or recklessly designed to impede the judicial process. Rule 74.05(d). Moreover, the fact that Husband appeared to defend the charges on two prior occasions without objection from Capital One, lends support to a conclusion that Largent’s belief was held in good faith. We conclude that Largent made no attempt of any kind to impede the judicial process, and that therefore good cause exists for setting aside the default judgment. J.E. Scheidegger Co. Inc. v. Manon, 149 S.W.3d 499, 501-02 (Mo.App. S.D.2004).

Finally, we must determine if the motion sufficiently pleaded a meritorious defense. To plead facts constituting a meritorious defense, Largent must demonstrate an arguable theory that would defeat Capital One’s claim. Bredeman, 863 S.W.2d at 26. Here, Largent’s verified motion alleged the following facts, supported by exhibits, that could materially affect the outcome of Capital One’s litigation: 1) Largent was the victim of identity theft; 2) Largent had not incurred the charged debt; and 3) although Largent had informed Capital One that she disputed the credit card charges on this basis, Capital One had failed to reasonably respond to her communications. A defaulting party satisfies the meritorious-defense requirement if his motion sets forth allegations that, if supported by credible evidence, would defeat the plaintiffs claim. Sastry, 302 S.W.3d at 266-67.

We find Largent's verified motion and supporting exhibits demonstrate an arguable theory that could defeat Capital One’s breach-of-contract claim. Accordingly, the trial court abused its discretion in denying Largent’s motion to set aside the default judgment without an evidentiary hearing. Point granted.

Conclusion

The order denying the motion to set aside is reversed and the cause is remanded with instructions to set aside the prior judgment and proceed with the litigation.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J., concur.


author: KURT S. ODENWALD, Presiding Judge.

text:
    GASCONADE COUNTY COUNSELING SERVICES, INC., Respondent, v. MISSOURI DEPARTMENT OF Mental HEALTH, Appellant.
    No. ED 93672.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.

      Chris Koster, Attorney General, J. Scott Stacey, James R. Layton, Assistant Attorney General, Jefferson City, MO, for Appellant.
    Lawrence J. Altman, Paul W. Lore, St. Louis, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Who may receive compensation under the Community Mental Health Services Act for providing mental health services to county residents is the issue presented in this appeal. The Missouri Department of Mental Health, Division of Comprehensive Psychiatric Services (the Department) appeals from the trial court’s judgment declaring that for-profit corporations are not disqualified under Section 205.981, RSMo 2000 from being eligible to receive compensation from a Missouri county’s community mental health fund for mental health services rendered to the county’s residents. The Department contends that eligibility to receive compensation from the community mental health fund is limited to public facilities and not-for-profit entities, and argues that the trial court erroneously interpreted Section 205.981. Following a thorough review of the enabling legislation, we affirm the trial court’s judgment.

Statutory Background,

Because Missouri’s statutory scheme under the Community Mental Health Services Act significantly informs the facts of this case, we begin with a brief discussion of how the Missouri legislature has authorized Gasconade County, and other similarly situated counties, to raise and administer public funds for community mental health services. See Sections 205.975-205.990.

Upon approval by a majority of its qualified voters, Gasconade County may levy and collect taxes for the establishment and maintenance of community mental health services. Section 205.977. All monies collected pursuant to this tax must be deposited in a special fund called the “Community Mental Health Fund” (the Fund). Section 205.980. The Missouri legislature has enumerated three purposes for monies in the Fund:

(1) Providing necessary funds to establish, operate, and maintain community mental health centers, mental health clinics, or any comprehensive mental health services;
(2) Providing funds to supplement existing funds for the operation and maintenance of community mental health centers, mental health clinics, or any comprehensive mental health services;
(3) Purchasing any of the comprehensive mental health services from community mental health centers, mental health clinics, and other public facilities or not-for-profit corporations which are designated by the [Department.

Section 205.977 (emphasis added). The Gasconade County Community Mental Health Fund Board of Trustees (the Board) is vested with the responsibility of administering the Fund. Section 205.975(1). As such, the Board may purchase comprehensive mental health services from certain entities. Sections 205.981.1, 205.975(1). Payment from the Board to the service-providing entity is “appropriated out of the county’s community mental health fund.” Section 205.981.2.

Though the Board enjoys discretion to enter such contracts, the Missouri legislature has proscribed limits with whom it may contract. Section 205.981.1 provides:

The [Bjoard ... may contract with a community mental health center, mental health clinic, or other public facility or not-for-profit corporation as designated by the [DJepartment for such comprehensive mental health services for the residents of such county as may be mutually agreeable between the ... officials of such center, clinic, facility, or corporation and the [Bjoard ... of the county requesting the services for the residents thereof.

(emphasis added). The phrase “as designated by the [Djepartment” operates in conjunction with Section 205.987 to charge the Department with the development and promulgation of certain qualitative standards that a service-providing entity is expected to meet. Sections 205.981, 205.987. Chronologically speaking, this framework envisions that, before the Board may contract with an entity to provide mental health services, such an entity must be deemed eligible to be compensated from the Fund by first complying with the Department’s standards and certification requirements and then by obtaining the Department’s designation. See Sections 205.975-205.990.

Factual Background

Gasconade County Counseling Services, Inc. (Corporation) is a for-profit corpora tion conducting business in Hermann, Gas-conade County, Missouri. Corporation is in the business of providing mental health services to individuals. The Department contends that Corporation is not eligible to contract with the Board and receive compensation from the Fund, and that it has never designated Corporation as eligible for Fund compensation. However, the Department admits that in 2001 it certified Corporation’s compliance with the qualitative standards established by the Department for mental health programs.

Presumably in reliance on a determination by the Department in 2001 that certain services Corporation provided were potentially eligible for Fund compensation, the Board entered a contractual relationship with Corporation. As a result, Corporation, under contract with the Board, has provided mental health services for qualified Gasconade County residents since 2001. The most recent contract between the Board and Corporation took effect January 1, 2008 and provided for two annual renewals in 2009 and 2010. In return for these mental health services, the Board agreed to pay Corporation up to $51,000 from the Fund. Since 2001, Corporation has been compensated from the Fund for the mental health services rendered to Gasconade County residents.

In April 2007, the Department and Corporation began to exchange correspondence regarding the eligibility of for-profit entities to receive compensation pursuant to mental health service contracts authorized under Section 205.981. On October 29, 2007, the Department sent a letter informing both the Board and Corporation that, although the Department had certified Corporation to provide mental health services to the public, the Department had not yet designated Corporation as eligible to receive compensation from the Fund. Furthermore, the Department explained its interpretation of Section 205.981, which permitted the Department to designate only public or not-for-profit entities as eligible to receive compensation from the Fund. Due to Corporation’s for-profit status, the Department’s interpretation of Section 205.981 necessarily precluded the Board’s authority to contract with Corporation. In response, Corporation contended that the Department’s interpretation was too narrow, and that Section 205.981 does not restrict eligibility for the Department’s designation to only public or not-for-profit entities.

Unsure of whether its contract with Corporation was permissible under the legislature’s statutory scheme, the Board ultimately advised Corporation in May of 2008 that it could not renew its current contract for the year 2009 until and unless Corporation obtained either the Department’s designation or a court order finding it eligible to receive compensation from the Fund. In so advising Corporation of its action, the Board made clear that the decision not to renew its contract with Corporation was not related to the quality of the services provided. The Board’s letter to Corporation opened with the following statement: “Please be assured that this non-renewal has nothing to do with the quality of care being provided by [Corporation].” In its letter, the Board informed Corporation that if it were to “seek ‘designation,’ the Board [was] willing to go on record and affirmatively state that [it was] pleased with the services [Corporation] provide[d].”

Thus, on May 16, 2008, Corporation wrote to the Department formally requesting designation. On June 30, 2008, the Department notified Corporation that it received the request but re-iterated its position that only public or not-for-profit entities were eligible for such designation. The Department added that it would not review Corporation’s eligibility to receive compensation from the Fund until it received documentation of Corporation’s non-profit status.

Procedural Background

On July 21, 2008, Corporation filed a declaratory judgment petition against the Department, requesting the trial court to declare that Section 205.981 does not limit the entities eligible for the Department’s designation to only public or not-for-profit entities. Corporation moved for summary judgment on January 2, 2009.

The trial court found that Section 205.981 listed four types of designation-eligible entities: (1) community mental health centers, (2) mental health clinics, (3) public facilities, or (4) not-for-profit corporations. In so finding, the trial court declared that, to the extent that the Department refuses to designate an entity for purposes of Section 205.981 merely because such an entity is not a public or not-for-profit entity, the Department’s interpretation of Missouri law is incorrect. The trial court held that, even if an entity does not fall under Section 205.981’s “public facility” or “not-for-profit corporation” classification, such an entity may still be designation-eligible if the entity may be properly categorized as a “community mental health center” or “mental health clinic” as provided under Section 205.981. The trial court additionally declared that any reading of Department regulation 9 CSR 30-2.010 contrary to the court’s interpretation of Section 205.981 was invalid. For these reasons, Corporation’s motion for summary judgment was sustained. This appeal follows.

Points on Appeal

The Department raises two points on appeal. First, the Department claims that the trial court erred by wrongly interpreting Section 205.981. Second, the Department asserts that, because the trial court erroneously, interpreted Section 205.981, the trial court further erred by invalidating 9 CSR 30-2.010 to the extent such regulation conflicted with its interpretation of Section 205.981.

Standard of Review

Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id.

Statutory interpretation is an issue of law that appellate courts review de novo. Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008); In re G.F., 276 S.W.3d 327, 329 (Mo.App. E.D.2009) (holding that on issues of statutory interpretation, we “reach our own conclusions ... without deference to the trial court’s conclusions”).

Because the trial court sustained Corporation’s summary judgment motion on accord of its interpretation of Section 205.981, our review in this ease is de novo. Conseco Fin. Servicing Corp. v. Mo. Dep’t of Revenue, 195 S.W.3d 410, 414 (Mo. banc 2006).

Discussion

I. Point One — Interpretation of Section 205.981

In this case, the question presented to us inquires whether Section 205.981 disallows a for-profit corporation from eligibility for the Department’s designation, thus foreclosing the Board’s authority to use community mental health funds to purchase mental health services for its county’s qualified residents from a for-profit entity, like Corporation.

We approach the task of statutory interpretation mindful that it is the function of the courts to construe and apply the law and not to make it. Renner v. Dir. of Revenue, 288 S.W.3d 763, 765 (Mo.App. E.D.2009). The goal of statutory interpretation is to ascertain the intent of the legislature, as expressed in the words of the statute. United Pharmacal Co. of Mo., Inc. v. Mo. Bd. of Pharmacy, 208 S.W.3d 907, 909 (Mo. banc 2006). We achieve this goal by giving the language used its plain and ordinary meaning, id. at 910, and by applying any “statutory definitions” provided in the statute itself. Gash v. Lafayette County, 245 S.W.3d 229, 232 (Mo. banc 2008). Only when the legislative intent cannot be determined from the plain meaning of the statutory language may rules of construction be applied to resolve any ambiguity. United Pharmacal Co., 208 S.W.3d at 910; Hardt v. Vitae Found., Inc., 302 S.W.3d 133, 138 (Mo.App. W.D.2009) (holding that “[wjhere the language of a statute is clear and unambiguous, there is no room for construction”). The construction of statutes is not to be hyper-technical, but instead is to be reasonable and logical. Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo. banc 2007).

Pursuant to the principles of statutory interpretation referenced above, our analysis must concentrate on the language contained in Section 205.981. In pertinent part, the statute provides:

The [Bjoard ... may contract with a community mental health center, mental health clinic, or other public facility or not-for-profit corporation as designated by the [DJepartment for such comprehensive mental health services for the residents of such county as may be mutually agreeable between the ... officials of such center, clinic, facility, or corporation and the [Bjoard ... of the county requesting the services for the residents thereof.

Section 205.981.1 (emphasis added). Both “community mental health center” and “mental health clinic” are terms defined earlier in Chapter 205. The term “[cjom-munity mental health center” is defined as “a legal entity through which comprehensive mental health services are provided to individuals residing in a certain service area.” Section 205.975(2). The term “[mjental health clinic” is defined as “a health entity offering community services delivered from a fixed place or from various places within a service area on an outpatient and consultative basis for the prevention, diagnosis, and treatment of emotional or mental disorders, alcoholism, or drug abuse.” Section 205.975(6).

The Department claims that it may not designate Corporation as eligible to receive community mental health funds because Section 205.981.1 permits it to designate only public facilities or not-for-profit corporations, and Corporation fits neither of those categories. In arriving at this position, the Department reads the phrase “or other public facility or not-for-profit corporation” in Section 205.981.1 to restrictively modify the characteristics that community mental health centers and mental health clinics must possess before they are designation-eligible. That is, the Department maintains that (1) a community mental health center must be properly categorized as either a public facility or not-for-profit corporation in order to be designation-eligible, and (2) a mental health clinic must be properly categorized as either a public facility or not-for-profit corporation in order to be designation-eligible. To support this interpretation, the Department relies on the case of Norberg v. Montgomery, 351 Mo. 180, 173 S.W.2d 387 (1943) and the fact that the evolution of Section 205.981’s language since 1969 neglects to include the phrase “for-profit.” We discuss these two items in turn.

First, the Department argues that the Missouri Supreme Court’s statutory analysis in Norberg instructs us to acquiesce to the Department’s reading of Section 205.981. While we acknowledge that the statutory provision at issue in Norberg bears a structural similarity to Section 205.981, Norberg’s actual holding sheds little light on the precise question before us here. In Norberg, the Court was faced with deciding who, among two persons, was entitled to Jackson County’s statutory title of “accounting officer” under the county budget law. 173 S.W.2d at 388. Both the county accountant and the county clerk claimed that a certain statutory provision rightfully vested the title in them. Id. at 388-89. The provision at issue read: “Whenever in this act the term of ‘accounting officer’ shall appear, it shall be deemed to mean the county clerk, county controller, county auditor, accountant or other officer or employee keeping the principal records of the county.” Id. at 388-89 (emphasis added). The Court held that the phrase “keeping the principal records of the county” modified each preceding noun in the list such that it “applie[d] to the first noun ‘county clerk’ as well as to the last noun ‘employee.’ ” Id. at 391. Thus, because only the county clerk of Jackson County was responsible for keeping the county’s principal records and the county accountant was responsible for other matters, Norberg concluded that the county clerk fell within the statutory definition of “accounting officer.” Id. at 391. We are not persuaded that Norberg’s interpretation of the phrase “keeping the principal records of the county” necessarily instructs us to read Section 205.981’s words “or other public facility or not-for-profit corporation” as a restrictive clause modifying the terms “community mental health center” or “mental health clinic.” At best, analogical reasoning permits us to use Norberg’s analysis of “keeping the principal records of the county” to aid in our interpretation of the subsequent Section 205.981 phrase, “as designated by the [Department.” Tracking Norberg’s inclination to set aside the last antecedent rule, we read the phrase “as designated by the [Department” to modify each noun in the preceding list, thereby requiring community mental health centers, mental health clinics, public facilities, and not-for-profit corporations to be designated by the Department before they may contract with the Board. However, we do not find in Norberg a clear direction to this Court to accept the Department’s limiting interpretation of the phrase “or other public facility or not-for-profit corporation” as it relates to the terms “community mental health centers” and “mental health clinics.”

Second, the Department relies on Section 205.981’s legislative history to argue that for-profit entities are precluded from eligibility for the Department’s designation. The Department’s reliance is misplaced. As the Department correctly notes, Sections 205.975 through 205.990 derive from a Senate bill enacted in 1969. In that bill, the analogue to what is now Section 205.981 stated that “[n]othing in this act shall preclude a board of trustees from contracting with an existing not-for-profit organization to provide [mental health] services for the residents of the county or of the area to be served.” 1969 Mo. Laws 334. Nine years later in 1978, this portion of the Missouri Code underwent significant statutory changes, and the legislature repealed most of the language from the 1969 law. Most notably, the 1978 law created definitional provisions for the terms “[cjommunity mental health center” and “[m]ental health clinic,” and permitted counties to “contract with a community mental health center, mental health clinic, or other public facility or not-for-profit corporation as designated by the [Department-” 1978 Mo. Laws 537-39. We find that these revisions illustrate both the legislature’s expansion of the list of those entities with whom the Board was authorized to contract and the legislature’s intention to further define the scope of two of the entities included on that list. The Department argues that the legislature could have expressly added the term “for-profit corporations” to its expanded list of entities with whom the Board is authorized to contract, but by choosing not to do so, it necessarily precluded for-profit corporations from eligibility for compensation from the Fund. Though we acknowledge the sound logic of the Department’s premise, as it echoes the familiar rule of statutory construction termed expressio unius est exclusio alterius, we nevertheless must reject the Department’s argument. We utilize rules of statutory construction to assist us in our task of ascertaining legislative intent only when an ambiguity arises from the words themselves. Grubbs v. Treasurer of Mo. as Custodian of the Second Injury Fund, 298 S.W.3d 907, 911 (Mo.App. E.D.2009). Because we find the meaning of Section 205.981 to be plain and clear to a person of ordinary intelligence, see Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988) (defining ambiguity), we need not resort to the maxim of expressio unius est exclusio alterius or to any other any rule of construction; rather, we must give effect to the statute’s words as they are written. City of Bridgeton v. Titlemax of Mo., Inc., 292 S.W.3d 530, 536 (Mo.App. E.D.2009).

We again emphasize that our function is to construe and apply the law, not make it. Renner, 288 S.W.3d at 765. The plain and ordinary meaning of the words chosen by the legislature drives our statutory analysis. State v. McLaughlin, 265 S.W.3d 257, 267 (Mo. banc 2008) (holding that “[i]n the absence of [a] guiding case or other authority, the language of the statute itself provides the best guide”). When examining the phrase, “[t]he [B]oard ... may contract with a community mental health center, mental health clinic, or other public facility or not-for-profit corporation,” we find that a plain reading of these words reveals that the legislature created a list comprised of four separate entities, each of whom are alternatively eligible for the Department’s designation to receive compensation from the Fund for services rendered. Though the Department contends that the words “or other” signify the beginning of a clause that restrictively modifies the characteristics that a community mental health center or mental health clinic may possess, our interpretation better incorporates the plain meaning of the word “or.” That is, the word “or” is typically used as a function word to indicate a choice between alternative things, states, or courses. Webster’s Third International Dictionary 1585 (1981); see Council Plaza Redevelopment Corp. v. Duffey, 439 S.W.2d 526, 532 (Mo. banc 1969) (acknowledging that “or” is typically disjunctive); see Norberg, 173 S.W.2d at 390 (“The word ‘or’ is ordinarily used as a disjunctive to mean ‘either’ as ‘either this or that.’ ”); see State v. Graham, 149 S.W.3d 465, 467 (Mo.App. E.D.2004) (“The disjunctive ‘or’ in its ordinary sense marks an alternative generally corresponding to the term ‘either.’ ”). This conventional meaning of the word “or” rings in harmony with our interpretation that its place in Section 205.981 denotes alternative items in a list rather than a limiting phrase.

Even more critical to our analysis is the legislature’s careful decision to define the terms it used in Section 205.981 — “community mental health center” and “mental health clinic” — in Section 205.975’s definitional provision. Our interpretation gives appropriate regard to the legislature’s inclusion of these precise definitions. State v. Seuferling, 238 S.W.3d 217, 220 (Mo.App. W.D.2007) (“The statutory definition should be followed in the interpretation of the statute to which it relates and ... is binding on the courts.”). Section 205.975 defines “[cjommunity mental health center” as “a legal entity through which comprehensive mental health services are provided to individuals residing in a certain service area.” Section 205.975(2) (emphasis added). Section 205.975 defines “[mjental health clinic” as “a health entity offering community services delivered from a fixed place or from various places within a service area on an outpatient and consultative basis for the prevention, diagnosis, and treatment of emotional or mental disorders, alcoholism, or drug abuse.” Section 205.975(6) (emphasis added). Neither of these definitions espouses a legislative directive that such centers and clinics necessarily fall under the umbrella classification of either a public facility or not-for-profit corporation. To constrict these definitions further than the language set forth in Section 205.975 would require us to add language to the legislature’s carefully crafted definitions. This we cannot and will not do.

We read Section 205.981 to list four separate entities, each of whom are alternatively eligible for the Department’s designation to receive compensation for the Fund. Accordingly, the failure of an entity to fall within the classification of either a public facility or not-for-profit corporation is not fatal to that entity’s eligibility to contract with the Board to provide mental health services and receive corresponding compensation from the Fund. So long as an entity may be appropriately classified as one of those four separate entities, said entity is eligible for the Department’s designation. For-profit corporations are not per se disqualified. Point one is denied.

II. Point Two — 9 CSR 30-2.010

As previously mentioned, Section 205.987 charges the Department with the development and promulgation of certain technical and qualitative standards that an entity must satisfy before said entity will be designated by the Department to receive county funds as compensation for mental health services provided to county residents pursuant to Board authorized contracts. Specifically, Section 205.987 provides that “the [Department shall develop and promulgate standards of construction, staffing, operations, and services which any public or private entity providing any comprehensive mental health services shall meet before funds collected pursuant to [the Community Mental Health Services Act] may be disbursed.” Section 205.987 (emphasis added). In furtherance of this charge, Department regulation 9 CSR 30-2.010 addresses these so-called designation pre-requisites. For example, this regulation requires that, before an entity is eligible to be designated to receive county funds, said entity must submit proof that, inter alia, it has fiscal management policies in accordance with generally accepted accounting principles ; that its personnel meet any local, state or federal requirements for their profession; that it has written policies detailing how medications are prescribed, obtained, stored, dispensed, and administered ; and that it has been certified by the Department to provide comprehensive mental health care services under the applicable program certification standards.

The Department argues that 9 CSR 30-2.010 also provides a threshold limitation on which types of entities are eligible to be compensated from the Fund. Specifically, the Department maintains that 9 CSR 30-2.010 has long limited designation-eligibility to only public facilities or not-for-profit corporations.

“The well established rule is that [a] regulation [ ] may be promulgated only to the extent of and within the delegated authority of the statute involved.” Parmley v. Mo. Dental Bd., 719 S.W.2d 745, 755 (Mo. banc 1986); Termini v. Mo. Gaming Comm’n, 921 S.W.2d 159, 161 (Mo.App. W.D.1996) (“An administrative agency enjoys no more authority that that granted by statute.”). Because Section 205.981 plainly articulates with whom the Board may contract and because the Department’s rule-making authority is limited by Section 205.987’s charge to merely “develop and promulgate standards of construction, staffing, operations, and services which any [service-providing entity] shall meet before [county funds] may be disbursed,” the language of 9 CSR 80-2.010 does not control our analysis of an entity’s eligibility to receive compensation under Section 205.981 of the Community Mental Health Services Act.

In addition, “[w]hen there is a direct conflict or inconsistency between a statute and a regulation, the statute which represents the true legislative intent must necessarily prevail.” Parmley, 719 S.W.2d at 755; Dep’t of Labor and Indus. Relations, Div. of Labor Standards v. Bd. of Pub. Utilities, 910 S.W.2d 737, 741 (Mo.App. S.D.1995). Thus, to any extent that 9 CSR 30-2.010 contradicts this Court’s interpretation of Section 205.981 by introducing an entity’s for-profit status as a condition of eligibility for compensation from the Fund, it is a nullity. Point two is denied.

Conclusion

Based on the foregoing, we affirm the trial court’s judgment that for-profit corporations are not disqualified because of their for-profit status under Section 205.981 from eligibility to receive the Department’s designation and to receive compensation from a Missouri county’s community mental health fund.

GEORGE W. DRAPER, III and GARY M. GAERTNER, JR., JJ„ Concur.

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

      . This designation requirement has been reiterated in an opinion letter issued by the Attorney General of the State of Missouri, dated April 28, 1981.

      . These services included outpatient consultation for the prevention, diagnosis, and treatment of emotional disorders, mental disorders, alcoholism, and drug abuse.

      . It is worth noting that the record before us indicates that in 2001 Corporation requested that the Department designate its “[o]utpa-tient psychotherapy office and home based services ... as eligible for Mental Health Board funding.” The record also indicates that, in response to this request, the Department made the following determination on January 31, 2001: “[T]he Department hereby designates [such] services as eligible to apply for Mental Health Board funding.” Our review of the record and the Department’s reply brief reveals that the Department maintains that this 2001 determination did not equate to the "designation” envisioned by Section 205.981. Rather, the Department's position is that in 2001 it merely determined that certain mental health services that Corporation provides were "potentially eligible” for compensation from the Fund.

      . Norberg’s holding illustrates a scenario in which the Missouri Supreme Court decided not to utilize the last antecedent rule of statutory construction. 173 S.W.2d at 390-91. By what is known as the last antecedent rule, a "limit[ing] or restrictive clause contained in [a] statute is generally construed to refer to and limit and restrict an immediately preceding clause or antecedent.” 2A Sutherland Statutory Construction § 47:26 (7th ed.). However, "[t]he rule is an aid to construction and will not be utilized where the extension to the more remote antecedent is required.” Id. (explaining that "if something in the subject matter or dominant purpose of the statute requires a different interpretation, the modifying clause is not confined to the last antecedent”).

      . Significant portions of the statutory language crafted pursuant to the 1978 revision— including the statutory definitions of "[c]om-munity mental health center” and '*[m]ental health clinic” and the provision authorizing the Board to contract with certain entities— have remained virtually unchanged in the current version of Missouri Code sections 205.975 through 205.990.

      . The maxim of expressio unius est exclusio alterius creates "an inference that all omissions [in an individual statute] should be understood as exclusions.” 2A Sutherland Statutory Construction § 47:26 (7th ed.); see Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195, 205 (1935) (holding that expressio unius est exclusio al-terius is a general rule of statutory construction which acknowledges that "the mention of one thing implies the exclusion of another thing”).

      . CSR 30-2.010(4)(E).

      . CSR 30-2-010(4)(H).

      . 9 CSR 30-2.010(4X0).

      . 9 CSR 30-2.010(5).

      . In its initial brief, the Department acknowledged that "regulation 9 CSR 30-2.010 was memorialized pursuant to the Department’s interpretation of [Section] 205.981.1.” It interpreted Section 205.981.1 to provide that "only public facilities or not-for-profit corporations can be designated by the Department to be eligible for county mental health funds.”


author: DANIEL E. SCOTT, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Darrell TIPTON, Appellant.
    No. SD 29820.
    Missouri Court of Appeals, Southern District, Division Two.
    June 17, 2010.

      Ellen H. Flottman, Columbia, MO, for Appellant.
    Chris Koster, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

Darrell Tipton seeks plain error review of his double jeopardy challenge to two of five convictions he received in a jury trial. We affirm the judgment and convictions because plain error relief is inappropriate.

The sufficiency of the evidence is not at issue, and Tipton’s sole point is a narrow one, so we decline to detail the sometimes grisly trial evidence. Suffice it to say that Tipton, a drifter from Tennessee, was living temporarily in a small backyard shed in Springfield. He had become acquainted with a woman whose badly decomposed body was discovered several days after Tipton skipped town, falsely claiming that his mother had died. Crime scene evidence and an autopsy indicated the victim had been stabbed with a knife and beaten in the head with a cast-iron skillet.

Tipton fled to Tennessee, stayed a few days with his mother, and then had his brother drop him off in the woods 15-20 miles away, where he lived in hiding four months before authorities apprehended him after a stakeout. He was brought back to Missouri and ultimately charged with, tried for, and found guilty of two first-degree assaults on the victim (Counts I & III), two counts of armed criminal action (Counts II & IV), and unlawful use of a weapon (Count V). Only the Count III and IV convictions are challenged on appeal.

Claim and Analysis

Tipton claims the trial court “plainly erred in entering judgment of conviction and sentence on Counts III and IV in addition to Counts I and II,” thus violating Tipton’s right to be free from double jeopardy, “in that the state failed to prove beyond a reasonable doubt that this was not a single continuous and uninterrupted assault allowing the formulation of new intent on the part of appellant simply because two different weapons were involved.”

The double jeopardy clause bars multiple punishments for the same offense, but is not violated by punishing a defendant for more than one offense arising from the same set of facts. State v. Tyler, 196 S.W.3d 638, 641 (Mo.App.2006). Separate assault offenses can arise from a single set of facts “ ‘each time the defendant forms an intent to attack the victim.’ ” State v. Harris, 243 S.W.3d 508, 511 (Mo.App.2008)(quoting Tyler, 196 S.W.3d at 641). “ ‘If the defendant has an opportunity to reconsider his actions, each assault separated by time is considered a separate offense.’ ” Id. Factors to consider in determining whether multiple instances of physical contact constitute multiple crimes include time, place of commission, and the defendant’s intent as evidenced by his conduct and utterances. Id.

Tipton cites and relies primarily on Harris and State v. Garnett, 298 S.W.3d 919 (Mo.App.2009). In each of these cases, there was no evidence of a separation of time sufficient to provide the defendant with an opportunity to reconsider his actions; thus, the attack had to be considered as a single assault. Garnett, 298 S.W.3d at 923-24; Harris, 243 S.W.3d at 511, 512. “Here,” Tipton likewise argues, “there was no evidence presented by the state, which carried the burden of proof, that this assault was any more than one continuous event.”

This burden of proof assertion is a de facto case of sandbagging, even if not so intended by Tipton or his counsel. Double jeopardy is an affirmative defense. State v. Barriner, 210 S.W.3d 285, 310 (Mo.App.2006); State v. Mullenix, 73 S.W.3d 32, 34 (Mo.App.2002). Tipton admits he did not plead or raise it in the trial court, so the state had no “burden of proof’ or other evidentiary obligation on that matter. Tipton cannot fairly complain that the state should have offered more evidence against an affirmative defense Tipton never raised.

This case differs from Harris and Garnett because Tipton is claiming plain error. Plain error review is discretionary, used sparingly, limited to cases of strong and clearly demonstrated manifest injustice or a miscarriage of justice, and Tipton had the burden of proof. See State v. Campbell, 122 S.W.3d 736, 739-40 (Mo. App.2004); State v. Leivan, 103 S.W.3d 425, 429 (Mo.App.2003). To grant Tipton’s claim under these circumstances is more likely to cause than to relieve a manifest injustice or miscarriage of justice.

Plain error relief is inappropriate; we decline to consider it and thus need not reach the state’s alternative arguments for affirmance. Tipton’s sole point is denied. The judgment and convictions are affirmed.

RAHMEYER and FRANCIS, JJ., concur.

      . Missouri Court Rule 30.20 grants appellate courts discretion to consider "plain errors affecting substantial rights” if “manifest injustice or miscarriage of justice has resulted therefrom."

      . Although we might surmise a reason from the record, we find no explanation for the decision to prosecute an assault case instead of a homicide. The charging decision, per se, is not before us, and in noting it, we do not mean to express or suggest any opinion about its propriety.

      . The state urges that the record and inferences, which we must view favorably to the judgment, support a finding of two distinct acts of assault against the victim. Even if we believed otherwise, we would not reverse because the state might have offered more proof if it knew it needed to do so. We are not inclined to reverse these convictions for plain error based on an affirmative defense Tipton did not plead, try to prove, or warn the state to disprove in the trial court.