author: JEFFREY W. BATES, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kenneth WARE, Jr., Defendant-Appellant.
    No. SD 29794.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 16, 2010.

      Stuart P. Huffman of Springfield, MO, for Appellant.
    Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen. of Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Judge.

A jury convicted Kenneth Ware, Jr. (Defendant) of robbery in the first degree and armed criminal action. See §§ 569.020, 571.015. On appeal, Defendant presents eight points of alleged error. Finding no merit in any of these points, we affirm. For ease of analysis, we address Defendant’s points out of order.

Points II and III

Defendant’s second and third points challenge the sufficiency of the evidence to support his conviction. We view the evidence and all reasonable inferences derived therefrom in the light most favorable to the verdict; all contrary evidence and inferences are disregarded. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). “We defer to the jurors’ superior position to weigh and value the evidence, determine the witnesses’ credibility and resolve any inconsistencies in their testimony.” State v. Lopez-McCurdy, 266 S.W.3d 874, 876 (Mo.App.2008). Viewed from this perspective, the following evidence was presented at trial.

Shortly before 8:00 p.m. on December 18, 2004, Mary Strozewski (Victim) drove to the Wal-Mart in Ozark, Missouri to go shopping. After making her purchases, she walked through the parking lot to her car. Her purse contained her wallet, a small amount of cash, a credit card, a bank debit card, her reading glasses, an EBT card and the PIN needed to use it. Victim had opened the driver’s door to her car and placed her purse on the seat when someone yelled at her. As she turned to her left toward the voice, Defendant was standing about six inches away. He backed Victim against her door, so she could not move. Victim was able to see Defendant’s face and clothing. He was a black male approximately the same height as Victim, who was 5'6" tall. Defendant was wearing dark clothes and a black hooded sweatshirt. He displayed a steak knife with a serrated blade in his right hand. Defendant jabbed the knife toward Victim’s stomach and demanded her purse. Victim complied, and Defendant told her to get in her car and drive away. Defendant went behind Victim’s car and disappeared into a row of cars. Victim reported the theft to Wal-Mart employees, who called the police.

Officer Scott Forrester of the Ozark Police Department met Victim inside the store. She told Officer Forrester what had happened and gave him a description of the robber. Victim stated that “[s]he was sure that she got a good look at him and she could identify him.” After speaking with Victim, Officer Forrester reviewed Wal-Mart’s parking lot surveillance video. He observed a blue 1990’s model Chevrolet Cavalier (the Cavalier) one lane over from Victim. The Cavalier was driving very slowly and pacing Victim. The Cavalier stayed even with Victim as she was walking out toward her vehicle. The Cavalier then parked one row away from Victim. A dark figure got out of the vehicle, approached Victim and then returned to the Cavalier. As Officer Forres-ter watched the Cavalier on the videotape, he noticed three unusual features on the car: (1) it lacked regular license plates; (2) it had aftermarket chrome spoke wheels or hubcaps; and (3) there was something in the upper-back left window that might have been a temporary license plate.

After taking Victim’s statement, Officer Forrester returned to the police department. He described the suspect vehicle that he had seen in the surveillance videotape to other officers. Based upon information provided by Officer Jared Roderick, Officers Forrester and Roderick went to a residence in the Oak Hill subdivision in Ozark. The officers arrived approximately four hours after the robbery had occurred. The Cavalier, which lacked license plates and had aftermarket hubcaps and a temporary license plate in the upper left corner of the rear window, was parked in front of the house. Officer Justin Clamors, Officer Michael Bryan and Detective David Southard also arrived at the house to assist in the investigation.

Officer Forrester spoke with Brianne Coffman (Coffman), who was one of the residents of the house. Officer Forrester learned that the Cavalier was owned by Lunda Croney (Croney). She told Officer Forrester there was no black male in the home. Officers Clamors and Bryan were guarding the back of the house. From that vantage point, Officer Bryan could see into the living room, kitchen, hallway and back bedroom. He could see a female resident speaking with Defendant in the bedroom. Coffman refused to allow police to enter the residence. After a discussion with Detective Southard, however, Coff-man’s father as lessee of the house consented to a search of the premises. Detective Southard and Officers Forrester and Roderick entered the house. Officer Clamors radioed that there was a male running out the back. Officer Clamors apprehended Defendant in the back yard as he tried to flee. On December 28, 2004, Victim was shown a photographic lineup containing six pictures. Victim picked Defendant’s photograph from the lineup.

Defendant contends the trial court erred in denying his motions for judgment of acquittal filed at the close of the State’s evidence (Point II) and at the close of all of the evidence (Point III). Defendant argues that the State presented insufficient evidence to prove guilt beyond a reasonable doubt because the evidence against him was circumstantial. Appellate review is limited to determining whether there was sufficient evidence from which a reasonable trier of fact could have found each element of the offenses to have been established beyond a reasonable doubt. State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006).

The first charge against Defendant was first-degree robbery, which can be committed four different ways. § 569.020.1(l)-(4). Defendant was charged with a violation of § 569.020.1(4). In the context of this case, the required elements of that offense are: (1) Defendant forcibly stole property from Victim; and (2) in the course thereof, Defendant displayed or threatened the use of what appeared to be a deadly weapon or a dangerous instrument. State v. Woodson, 140 S.W.3d 621, 628 (Mo.App.2004). Victim testified that her purse was stolen at knife-point in the Wal-Mart parking lot by Defendant. During the encounter, Defendant jabbed the knife toward Victim’s stomach while demanding her purse. She positively identified Defendant as the robber during the photo lineup and again at trial. Victim’s eyewitness testimony alone is sufficient to support Defendant’s conviction for first-degree robbery. State v. Barnes, 693 S.W.2d 331, 332 (Mo.App.1985). Forcible stealing includes the use or threatened use of physical force to compel the owner to deliver up his or her property. § 569.010(1); State v. Merrick, 257 S.W.3d 676, 683 (Mo.App.2008). Victim’s testimony that Defendant used a steak knife with a serrated blade to commit the robbery was sufficient evidence from which the jury could find that forcible stealing had occurred. Martin v. State, 187 S.W.3d 335, 340 (Mo.App.2006) (defendant’s act of placing knife near victim’s throat and taking his property constituted forcible stealing). Victim’s testimony that Defendant displayed and threatened to use the knife was sufficient evidence from which the jury could find that Defendant used a dangerous instrument during the course of the robbery. See id. (a knife used in a threatening manner is a dangerous instrument).

The second charge against Defendant was armed criminal action. § 571.015.1. The elements of this crime are: (1) Defendant committed a felony; and (2) that crime was committed “by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon[.]” Id. First-degree robbery is a class A felony. § 569.020.2. “A knife used in a threatening manner is a dangerous instrument.” State v. Jackson, 865 S.W.2d 678, 680 (Mo.App.1998). Victim’s testimony-provided sufficient evidence from which the jury could find Defendant guilty beyond a reasonable doubt of armed criminal action. See, e.g., State v. Williamson, 836 S.W.2d 490, 495 (Mo.App.1992) (evidence that defendant used a knife during a robbery was sufficient for the jury to find him guilty of armed criminal action).

Defendant’s complaint that the evidence against him was “circumstantial” is unpersuasive. Victim’s eyewitness testimony constituted direct evidence of Defendant’s participation in these crimes. State v. Watkins, 804 S.W.2d 859, 860 (Mo.App.1991). This evidence alone was sufficient for the jury to find Defendant guilty. State v. Williams, 277 S.W.3d 848, 853 (Mo.App.2009). Moreover, a jury is enti tled to give circumstantial evidence the same weight as direct evidence when drawing reasonable inferences from the evidence presented. State v. Minner, 311 S.W.3d 313, 324 (Mo.App.2010); State v. Hagensieker, 299 S.W.3d 302, 305 (Mo.App.2009). The surveillance videotape showed that the Cavalier was used during the robbery. When police located the Cavalier about four hours later parked in front of a house, Defendant was found inside. He attempted to flee when police entered the residence. The jury could infer consciousness of guilt from Defendant’s flight. See State v. Eoff, 193 S.W.3d 366, 377 (Mo.App.2006). The circumstantial evidence connecting Defendant to these crimes was strong, and the jury was entitled to rely upon such evidence, as well as Victim’s testimony, to find Defendant guilty. Points II and III are denied.

Point VIII

Defendant’s eighth point relates to the judge’s denial of a request to quash the entire venire. The following facts are relevant to this allegation of error.

After the venire panel was sworn by the clerk and MAI-CR 3d 300.02 was read, venireperson Maggard raised her hand and stated:

VENIREPERSON MAGGARD: I wanted to know something. This morning when we were sitting out here in the deal, he was talking to us.
THE COURT: He?
VENIREPERSON MAGGARD: The— the guy up there.
THE COURT: Okay.
VENIREPERSON MAGGARD: The defendant.
THE COURT: All right.
VENIREPERSON MAGGARD: And I know where he is from. I know what he is saying and everything. So I don’t feel like that I could—
THE COURT: Tell me your number, má’am.
VENIREPERSON MAGGARD: Fifteen.
THE COURT: Okay. And what’s your name?
VENIREPERSON MAGGARD: Judy Maggard.
THE COURT: Okay. We’ll probably ask you some more questions about that in a few minutes.
VENIREPERSON MAGGARD: Okay.

During the State’s voir dire, the prosecutor asked Maggard about this incident. The following colloquy occurred:

Now, Ms. Maggard, you explained to us a while ago that the defendant was talking to different people?
VENIREPERSON MAGGARD: I was sitting here and he was sitting over here and—
[PROSECUTOR]: Outside — outside in the hallway?
VENIREPERSON MAGGARD: Yeah. And he wanted to know something about if we was the jurors or something. I think is what he said. I couldn’t hear him very well. But he did tell me where he is from and he said “I didn’t do it.”
[PROSECUTOR]: Okay. Is that going to make it difficult for you to sit as a juror?
VENIREPERSON MAGGARD: Yes, it is. Because, I mean, if he says he’s not going to do it. I’m — you know, I feel like I already made up my mind one way or the other.
[PROSECUTOR]: Okay. Thank you, Ms. Maggard, I appreciate it. Is there anyone else that heard the defendant talking when you were out there? Yes, ma’am, state your name and number?
VENIREPERSON HOLT: Claudia Holt, 48. I heard the same thing.
[PROSECUTOR]: Did that — did you make up your mind with that?
VENIREPERSON HOLT: Yes, I did. He said that it’s been going on for five years.
[PROSECUTOR]: Four.
VENIREPERSON HOLT: Well, he said five. That he came down here for like a week, week and a half, and that’s been — he was accused of doing this.
[PROSECUTOR]: Okay. All right. Your name again, ma’am?
VENIREPERSON HOLT: Claudia Holt.
[PROSECUTOR]: Holt?
VENIREPERSON HOLT: Holt.
[PROSECUTOR]: All right. Anyone else that you heard what the defendant was saying, and it — you made your mind up? Or if you heard what he was saying, that’s what I want to find out first. Anyone else heard him or talk to him? Is there anyone here after hearing a couple of jurors saying, like Ms. Mag-gard and Ms. Holt, I’ve made my mind up? Is there anyone here who, because of what you heard, you made your mind up, and that’s it? All right. I see no response.

When the court took a recess, defense counsel moved to quash the panel:

[DEFENSE COUNSEL]: Judge, based on the comments of two jurors that the defendant may have had communication with them, including statements professing innocence and talking about how long the case had been going on, those statements were then addressed to the entire panel. Uh, my concern is at this point that panel itself should be quashed due to the taint of the individual. I understand the problem that I’m dealing with is it’s coming from the defendant’s own conduct. But my concern about it is that it makes it look like the defendant is out there almost in a panhandling or begging for sympathy from the jury. And obviously it concerns me that other jurors may have heard that information and would hold that against defendant at deliberations. Based on that type of conduct, I would request that at this time the Court quash the panel, um, for purposes of fair trial toward the defendant.
THE COURT: Comments, [prosecutor]?
[PROSECUTOR]: No. Other than the fact that I object to it and ask you to overrule it. This trial has taken four years plus to get to this point. And I can’t — you know, it is from the defendant’s own responsibility. And if anybody should be asking for a quashing of the panel it would be me, and I’m not.
THE COURT: Seems self-induced, [defense counsel]. Request is denied.

Maggard and Holt were struck for cause and did not serve on the jury.

Defendant contends the trial court erred by denying the motion to quash the venire. Defendant argues that this ruling deprived him of a fair and impartial jury. We disagree.

A trial court has broad discretion in determining whether a venire panel should be dismissed, and the court’s ruling will not be disturbed on appeal absent a clear abuse of discretion. State v. Evans, 802 S.W.2d 507, 514 (Mo. banc 1991). A trial court abuses its discretion only if its ruling is clearly against the logic of the circumstances then before the court, and the ruling is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Fassero, 256 S.W.3d 109, 115 (Mo. banc 2008). The trial court’s denial of the motion to quash the venire is presumed correct, and it is the defendant’s burden to demonstrate otherwise. State v. Stewart, 296 S.W.3d 5, 10 (Mo.App.2009). A comment made by a particular venireperson does not require dismissal of the entire venire unless the statement was so inflammatory and prejudicial as to infringe upon a defendant’s right to a fair trial. State v. Thompson, 985 S.W.2d 779, 789 (Mo. banc 1999).

Defendant has failed to demonstrate any prejudice resulting from the comments made by venirepersons Mag-gard and Holt. Neither venireperson expressed an opinion that Defendant was guilty of the charged crime. Based upon our review of the transcript, the trial court and other venirepersons reasonably could have concluded that Maggard and Holt believed Defendant’s statement that he was innocent. Because the comments by these two venirepersons did not create any negative connotation toward Defendant, he failed to meet his burden of proving any prejudice resulting from the remarks. Stewart, 296 S.W.3d at 10; Glasgow v. State, 218 S.W.3d 484, 488 (Mo.App.2007); State v. Taylor, 166 S.W.3d 599, 609 (Mo.App.2005). In addition, the prosecutor inquired of the venire whether anyone else had been affected by hearing the comments made by Maggard and Holt. No one responded. The trial judge was in the best position to determine the effect of these allegedly improper comments on other members of the venire. Stewart, 296 S.W.3d at 10. Finally, it is well-settled that a criminal defendant may not seek relief from a judgment based upon an error committed at his instance. State v. Knese, 985 S.W.2d 759, 775 (Mo. banc 1999). The trial court did not err in denying Defendant’s motion to quash the venire panel. Point VIII is denied.

Point I

Defendant’s first point posits error in the trial court’s decision to overrule a Batson objection to the prosecutor’s use of a peremptory challenge after voir dire was completed. The following facts are relevant to this allegation of error.

Miguel Montiel, a Hispanic male, was the 22nd person on the venire. He was the only minority on the venire. He did not respond to any of the questions asked by the prosecutor or defense counsel during voir dire. When the prosecutor sought to use one of his peremptory challenges against Montiel, defense counsel asserted a Batson objection. The prosecutor gave three reasons for peremptorily challenging Montiel: (1) the prosecutor got no information from Montiel because he did not respond to any of the questions asked by either attorney; (2) Montiel appeared unkempt; and (3) on his jury questionnaire, he stated that he had “been convicted of a crime other than a traffic ticket” that was not a felony. Both counsel agreed that the prosecutor had struck some other non-minority venirepersons who had not said anything during voir dire. The prosecutor said he did not ask Montiel about his conviction to avoid embarrassing him. The trial court overruled the Batson objection because there was no evidence of any discriminatory motive in the prosecutor’s decision to exercise a peremptory challenge against Montiel.

Defendant contends the trial court erred in overruling his Batson objection because the prosecutor had a discriminatory motive for using a peremptory challenge to remove the only racial minority from the panel. Defendant argues that the reasons given by the prosecutor for using a peremptory challenge against Montiel were pretextual, in that similarly situated veni-repersons were not struck by the prosecutor. We disagree.

In Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court reaffirmed the principle that the use of peremptory challenges to remove a venire-person based upon his or her race is unconstitutional. State v. Sutherland, 989 S.W.2d 373, 378 (Mo. banc 1997). The following procedure should be used to assert a Batson challenge:

First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state’s proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.

State v. Bateman, 318 S.W.3d 681, 689 (Mo. banc 2010). A trial court’s determination of whether the State’s use of a peremptory challenge resulted from a discriminatory motive is a finding of fact. State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987). Because this factual finding turns largely on the trial court’s evaluation of credibility, an appellate court should give such a finding great deference. Sutherland, 939 S.W.2d at 380. The finding stands unless it is clearly erroneous, which requires this Court to “have a definite and firm conviction that a mistake has been made.” State v. Martin, 291 S.W.3d 269, 277 (Mo.App.2009).

In the case at bar, defense counsel asserted a timely Batson objection to the prosecutor’s use of a peremptory challenge against Hispanic venireperson Montiel. The prosecutor offered three specific and clear race-neutral reasons for the challenge: (1) Montiel’s silence during the voir dire process; (2) his unkempt appearance; and (3) his prior criminal conviction. The trial court made a factual finding that none of these reasons were pretextual explanations hiding a discriminatory motive for the peremptory challenge. The court’s finding is not clearly erroneous.

First, a venireperson’s silence can provide a valid, race-neutral reason for being peremptorily struck. State v. Koenig, 115 S.W.3d 408, 413 (Mo.App.2003); State v. Hughes, 944 S.W.2d 247, 248 (Mo.App.1997). “The state should not be required to take a risk on a prospective juror about whom little information is known.” State v. Barnett, 980 S.W.2d 297, 302 (Mo. banc 1998). At trial, defense counsel conceded that the prosecutor had used peremptory challenges to remove other non-minority venirepersons who had been silent throughout voir dire. See State v. Ashley, 940 S.W.2d 927, 931 (Mo.App.1997) (noting that the State also had used some of its peremptory challenges to remove Caucasian venirepersons who had remained silent throughout voir dire).

Second, the prosecutor stated that Montiel appeared unkempt. A venireper-son’s appearance can provide a valid, race-neutral reason for being peremptorily struck. See, e.g., Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (a juror’s long, unkempt hair, mustache and beard provided a race-neutral, nondiseriminatory reason for the strike); State v. Blankenship, 830 S.W.2d 1, 15 (Mo. banc 1992) (noting that the venireperson’s “appearance” was one of the nonpretextual, race-neutral explanations supporting the peremptory challenge); State v. Washington, 288 S.W.3d 312, 316-17 (Mo.App.2009) (holding that there was a race-neutral reason the State’s use of a peremptory challenge against a venireperson who had a very individualistic hairstyle).

Third, a venireperson’s prior criminal conviction can provide a valid, race-neutral reason for being peremptorily struck. State v. Deck, 994 S.W.2d 527, 537-38 (Mo. banc 1999) (holding that “a prior conviction is an appropriate and neutral basis for a peremptory strike”); State v. Payne, 958 S.W.2d 561, 565 (Mo.App.1997).

Giving appropriate deference to the trial court’s ability to judge the credibility of the prosecutor’s reasons for peremptorily challenging venireperson Montiel, this Court is not left with a definite and firm conviction that a mistake has been made. Accordingly, the trial court did not err in overruling Defendant’s Batson objection. See State v. Bateman, 318 S.W.3d 681, 693 (Mo. banc 2010). Point I is denied.

Point VII

Defendant’s seventh point contends the trial court erred in admitting Ex. 6A, which is the photographic lineup that was shown to Victim on December 23, 2004. The following additional facts are relevant to this point.

Detective Southard testified that he prepared the photo lineup for Victim to view. This photo spread was comprised of pictures of six black males. Detective South-ard obtained the photographs from Greene County. Nothing on the photographs disclosed their source or indicated why the pictures had been taken. No one referred to the photographs as mug shots in the jury’s presence. The photo array contained a picture of Defendant. During a conference held out of the presence of the jury concerning Ex. 6A, defense counsel stated: “Obviously the mug shots were from Greene County. We’ve already heard that. So the picture obviously is coming [from] Greene County. And I don’t think that the jury may have caught that in any way. And so I didn’t want to bring extra attention to it.” Officer Thomas Rousset testified that he showed the photo lineup to Victim at the Ozark Police Department on December 23rd. Officer Rousset had not been involved in the robbery investigation and did not know Defendant was the person suspected of committing the crime. Officer Rousset told Victim not to assume that the suspect was in the lineup. He asked Victim to review the six photographs and see whether there was anyone in the lineup that Victim recognized. She identified Defendant’s photograph.

When Ex. 6A was offered, one of defense counsel’s objections was that the exhibit was more prejudicial than probative because the individuals were shown in “mug shot” format, which revealed Defendant’s potential past criminal history. The trial court overruled the objection, and the exhibit was published to the jury. We review the trial court’s ruling on the admission of evidence for abuse of discretion. State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). A trial court has broad discretion in deciding what evidence to admit. Id. An evidentiary ruling will not be disturbed on appeal unless it is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. State v. Holden, 278 S.W.3d 674, 680 (Mo. banc 2009). Defendant contends the trial court erred in admitting Ex. 6A because this exhibit was more prejudicial than probative.

First, Defendant argues that the exhibit was cumulative and unnecessary in light of Victim’s in-court identification of Defendant. This was not the theory of Defendant’s objection as asserted in the trial court. “A point on appeal must be based upon the theory voiced in the objection at trial and a defendant cannot expand or change on appeal the objection as made.” State v. Cannady, 660 S.W.2d 33, 37 (Mo.App.1983). Because Defendant’s first argument is based upon a different objection than the one made at trial, we decline to consider it. State v. Goins, 306 S.W.3d 639, 647 (Mo.App.2010).

Second, Defendant argues that trial testimony about the photos in the array coming from a police agency other than the Ozark Police Department necessarily communicated to the jury that Defendant had a prior arrest record. We find no merit in this argument. The jury was not presented with any evidence revealing that Defendant had any prior arrests or convictions. Detective Southard’s testimony about where he got the pictures did include references to both the Greene County Sheriffs Department and Greene County. Defense counsel, however, later stated that he did not believe the jury-understood the reference to the Sheriffs Department, and counsel did nothing to bring any extra attention to that testimony. Although the photographs in Ex. 6A were described as mug shots in arguments presented to the trial court, the pictures were never so described to the jury. Nothing on Ex. 6A disclosed the source of the pictures or why they were taken. “[T]he mere fact that a police department previously had on file a photograph of a defendant does not lead to the inference that the defendant has committed prior crimes.” State v. Tivis, 933 S.W.2d 843, 846 (Mo.App.1996). “The admission of a mug shot constitutes prejudicial evidence of other crimes only when the mug shots or accompanying testimony discloses a defendant’s prior arrests or convictions.” Id. at 847. The admission into evidence of a mug shot is permissible “where all identifying information is masked, where a defendant’s identity is in issue and where admission of the mug shots will help a jury to determine the accuracy of the identification.” Id. All of these requirements were satisfied in the case at bar. Consequently, the trial court did not abuse its discretion in admitting Ex. 6A. Point VII is denied.

Point IV

Defendant’s fourth point posits error in the trial court’s decision to overrule Defendant’s motion to exclude Croney’s testimony based on an alleged Brady violation. The following facts are relevant to this allegation of error.

In December 2004, Croney was Defendant’s girlfriend. After Defendant was arrested, both he and Croney were charged with robbery. The prosecutor offered to drop the charges against Croney if she testified against Defendant.

This case was tried in March 9-10, 2009. During a bench conference on March 9th, defense counsel said he had been told there was a videotaped proffer from Cro-ney that was made in connection with her plea deal. Counsel had requested disclosure of such information, and he argued that the nondisclosure created a potential Brady violation. The prosecutor agreed to provide a copy of the videotape to defense counsel.

When trial resumed on the 10th, the prosecutor reported that he was unable to find any proffer videotape concerning Cro-ney. If such a tape ever existed, it would have been made during the 12 months prior to trial by Bob Alexander, an investigator for the prosecutor’s office. The usual procedure was to record a proffer statement, place it in the file, make a docket entry in the file noting that a proffer had been obtained and send a copy to defense counsel. No videotape was found in the criminal files of Defendant or Croney or anywhere else in the offices of the prosecutor or investigator Alexander. Neither criminal file contained any docket entries reflecting that a proffer statement had been obtained from Croney. Defense counsel had not received a copy of the videotape. The prosecutor had never reviewed any such videotape, and he did not know whether one existed. Defense counsel renewed his Brady motion and asked that Croney not be allowed to testify because the videotape might have contained exculpatory or impeaching material. The judge took the motion under advisement and permitted defense counsel to interview Alexander and Croney. Later that day, the court conducted another hearing on this issue out of the presence of the jury. Alexander and Croney were called as witnesses.

Alexander testified that he worked as an investigator for the prosecutor. The general procedure for a proffer was to videotape the statement in a question-and-answer format with the witness under oath. Alexander remembered taking a proffer from Croney. He failed to note the existence of the proffer on the file. The statement was no more than 10 minutes long. Alexander took no notes of what Croney said. He usually stored the original proffer videotape in his office and put a copy in the file. Alexander had searched for the videotape and was unable to find it. The videotape was lost. He recalled that, during the proffer, Croney said Defendant had intended to commit a robbery when they went to Wal-Mart. She did not see the robbery. Defendant told her where to park the car. He left, came back and told her where to go from there.

Croney testified that she remembered giving a recorded proffer statement the year before trial. She told Alexander what happened the night of the robbery. Croney told Alexander that Defendant wanted to “hit a lick” at Wal-Mart. He got out of the car and came back with a purse.

The court found that it was likely a proffer statement had been taken from Croney. The motion to exclude Croney’s testimony was denied. The court decided there was no evidence that the videotaped proffer statement contained any exculpatory or impeaching material. As the court noted, “the purpose of the proffer was to provide incriminating evidence.” The court also found that defense counsel would be able to cross-examine Croney and impeach her testimony using other witnesses.

Croney was called as a witness by the State. On direct examination, she testified that she and Defendant have a child together and were in a relationship when the robbery occurred. Croney admitted that she had reached an agreement with the prosecutor to have the charge against her dropped if she testified truthfully against Defendant. She and Defendant drove to Wal-Mart in the Cavalier. They went there because Defendant wanted to “hit a lick” by getting some money. She parked the car in the Wal-Mart parking lot, and Defendant left the vehicle. Defendant got back in the car with a purse. They used an EBT card (which had the PIN with it) from the purse to buy groceries and then went back to the house in Ozark where they had been staying. When officers arrived and asked about the robbery, Croney said she had not been at Wal-Mart and knew nothing about the robbery. She admitted this story had been a lie. Croney also admitted to telling a different lie to an attorney representing Defendant in a civil case in order to get his bond money. She admitted having a prior conviction for passing bad checks. On cross-examination, Croney again admitted that she had lied repeatedly to police during the investigation. Croney acknowledged that she had been charged with a class A felony of robbery along with Defendant. She had not implicated Defendant until she was offered a plea deal that would result in the complete dismissal of the charge against her. Croney agreed that she did not remember a lot of the details of the event because it had happened five years earlier.

Defendant contends the trial court erred in denying his motion to exclude Croney’s trial testimony based upon Brady. Defendant argues that exclusion of Croney’s testimony was a proper sanction for this Brady violation because the videotape potentially contained exculpatory or impeaching evidence. We disagree.

Brady holds that due process is violated when the State suppresses evidence that is favorable to the defendant and material to either guilt or punishment. State v. Salter, 250 S.W.3d 705, 714 (Mo. banc 2008). “Evidence is material only when there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense.” Id. A true Brady violation occurs only if: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or because it was impeaching; (2) the State must have willfully or inadvertently suppressed the evidence; and (3) prejudice must have ensued. Taylor v. State, 262 S.W.3d 231, 240 (Mo. banc 2008). Although the trial court found that the State lost Croney’s videotaped proffer statement, Defendant failed to prove the first and third components necessary for a Brady violation.

After hearing the testimony of Alexander and Croney, the trial court decided there was no evidence that the proffer statement contained any exculpatory or impeaching material. That finding is supported by the record. The proffer statement was short. Its purpose was to provide inculpatory evidence against Defendant, and the statement appears to have done so. During the proffer, Alexander heard Croney say that Defendant intended to commit a robbery when they went to Wal-Mart. Croney testified that she told Alexander that Defendant wanted to “hit a lick” at Wal-Mart. He got out of the car and came back with a purse. Nothing about these statements is exculpatory or useful to impeach Croney’s trial testimony. Defendant produced no evidence of any other statements by Croney that could be used for either of those purposes. Therefore, Defendant failed to prove that the lost videotape was favorable to him because it contained exculpatory or impeaching evidence. State v. Martin, 291 S.W.3d 269, 289-90 (Mo.App.2009).

Defendant also failed to show how any prejudice ensued from the loss of the videotape. Croney did not actually witness the robbery, and nearly all of her testimony was cumulative of other evidence presented by the State. Croney’s credibility was vigorously challenged by defense counsel using information already at his disposal. Counsel was able to show that Croney initially denied involvement in the robbery and did not implicate Defendant until four years later when she was offered a plea deal. Croney admitted on direct and cross-examination that she had repeatedly lied to police during the investigation. She acknowledged a prior conviction for passing bad checks, which the jurors could consider in assessing her believability. Finally, she agreed that she did not remember a lot of the details of the event because it had happened five years earlier. The lost videotape was immaterial because there is no reasonable probability that the outcome of the trial would have been different if this evidence had been disclosed to the defense. State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000). Point IV is denied.

Point VI

Defendant’s sixth point contends the trial court erred in excluding testimony from an expert witness concerning the fallibility of eyewitness identification testimony. The following additional facts are relevant to this point.

Prior to trial, defense counsel disclosed his intention to call an expert witness to testify about human memory and factors that affect the reliability of identification. The prosecutor filed a motion in limine to exclude the testimony because it invaded the province of the jury. The trial court sustained the motion.

At the beginning of the trial, the court read Instruction No. 1 (pattern instruction MAI-CR 3d 302.01) to the jury. This instruction advised the jurors that it was up to them to decide the believability of the witnesses and the weight and value of the evidence. The instruction also stated:

In determining the believability of a witness and the weight to be given to testimony of the witness, you may take into consideration the witness’ manner while testifying; the ability and opportunity of the witness to observe and remember any matter about which testimony is given; any interest, bias, or prejudice the witness may have; the reasonableness of the witness’ testimony considered in the light of all of the evidence in the case; and any other matter that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness.

During opening statement, defense counsel told the jurors that they would hear evidence that: (1) Victim described the person who robbed her only as a short, black male; (2) she was shocked when the robbery occurred; and (B) the encounter did not take much time. From these and other facts, defense counsel suggested that jurors would conclude Defendant did not commit the crime of which he was accused.

After the State rested, the trial court allowed defense counsel to call Dr. John Gambon as an expert witness in order to make an offer of proof. Dr. Gambon was a psychology professor who had conducted classroom experiments with his students to demonstrate the fallibility of memory. Dr. Gambon testified that memories can be influenced by a person’s attitudes and concepts about other persons, and that individuals lose' memories over time. According to Dr. Gambon, many things go wrong with a person’s memory when a crime is committed. A witness believes what he or she is saying is correct, but the person’s level of stress can affect his or her ability to pick up on details. When a weapon is involved, a person tends to focus on the weapon and not pay attention to the facial features, height, weight and build of an assailant. A person often believes a memory is accurate when the event was never actually committed to memory in the first place. Delay in recalling a memory can affect the accuracy of one’s recollection. Dr. Gambon had watched the surveillance video of Victim’s robbery and gave the following testimony concerning the incident:

[I]n watching the video one of things that happened was that the — the whole sequence of events where when logic finally boiled down to the individual approaching the victim, seemed like it happened in all of a span of just a few seconds. It started and it finished and it was over. The shorter amount of exposure time the less time you tend to have paying attention to detail. And so being able to accurately say that, you know, this is the person, yes or no, is one thing. Another aspect is — is the time of day. It was nighttime. And once again, at night we find our [ability] to pick up on detail is not as good as it is during the daytime in the better lit situation. Also, if there is, as I said earlier, a weapon involved. We have what’s called weapons focus. People tend to focus on the weapon that is being displayed. They don’t know what’s about to happen. This is happening so fast, all right, that basically looking at the facial features, uh, hair, the color of the eyes, and so on, it’s not something that we tend to tell ourselves to do. There is just so much information hitting you so fast. It’s amazing that we can pick up on the important details and store them into memory at all.

According to Dr. Gambon, there had been research findings implying that cross-cultural identification was a little bit less accurate. Dr. Gambon opined that someone’s ability to accurately identify a perpetrator could be affected by factors present in this particular case, such as cultural issues, a short encounter and a weapon focus. After listening to the offer of proof, the trial court excluded Dr. Gam-bon’s testimony.

In closing argument, defense counsel challenged Victim’s identification of Defendant as the robber. Defense counsel argued that Victim was not really sure what she had seen and heard. Counsel asserted that the description of the robber Victim gave to police was vague and lacking in detail. He suggested that Victim’s testimony identifying Defendant was not believable.

On appeal, Defendant contends the trial court’s decision to exclude Dr. Gambon’s testimony was erroneous because the proffered evidence concerned a topic beyond the common knowledge of a lay person and would have been beneficial to the jury. We disagree.

The admission or exclusion of expert testimony is a matter committed to the trial court’s sound discretion. State v. Davis, 814 S.W.2d 593, 603 (Mo. banc 1991). This discretion is abused only when the trial court’s ruling is arbitrary, unreasonable or clearly against the logic of the circumstances. State v. Wright, 247 S.W.3d 161, 165 (Mo.App.2008). Based upon this Court’s review of the offer of proof, it is clear that the sole purpose of Dr. Gambon’s testimony was to cast doubt on the credibility of Victim’s identification of Defendant as the robber. The trial court did not believe the admission of such testimony would aid the jury. In State v. Whitmill, 780 S.W.2d 45, 47 (Mo. banc 1989), the defendant tried to present expert testimony concerning the reliability of eyewitness identification. The testimony was excluded, and our Supreme Court affirmed that ruling:

Generally, expert testimony is inadmissible if it relates to the credibility of witnesses because this constitutes an invasion of the province of the jury. Lawhorn, 762 S.W.2d at 823; State v. Taylor, 663 S.W.2d 235 (Mo. banc 1984). In Lawhom this Court held that a trial court may, in its discretion, exclude expert testimony regarding the credibility of eyewitness identifications. The defendant in that case would have offered expert testimony as to alleged difficulties of cross-racial identifications. This Court stated, “[Sjuch matters are within the general realm of common experience of members of a jury and can be evaluated without an expert’s assistance.... The fact that in many instances identifications may be unreliable and that the state’s case and the subsequent determination of guilt or innocence may depend on the credibility of eyewitness identifications, does not leave a criminal defendant without protection if the trial court, in its discretion, denies the admissibility of expert testimony in this regard.” Lawhorn, 762 S.W.2d at 823.
In Whitmill’s trial several safeguards ensured that the defendant had an adequate opportunity to apprise the jury of the difficulties inherent in an eyewitness identification. The defendant fully cross-examined both Nivey and Theordis Mitchell, who identified the photograph of Whitmill as the man who shot them. Whitmill also had an opportunity to speak to the jury about the problem of identification in the opening statement and in the closing argument; and the court instructed the jury on the factors it should consider in determining whether the identification was reliable. MAI-CR 3d 302.01. Thus, the Lawhom protections, mentioned above, were present; and the trial court did not abuse its discretion in refusing to permit Professor Goldstein’s testimony.

Whitmill, 780 S.W.2d at 47. All of the trial safeguards mentioned in Whitmill were available to, and utilized by, defense counsel during Defendant’s trial. Victim was thoroughly cross-examined concerning her identification of Defendant as the man who committed the robbery. The reliability of Victim’s identification was challenged by defense counsel in opening statement and closing argument. Instruction No. 1, which was patterned after MAI-CR 3d 302.01, was read to the jurors and described the various factors they should consider in determining the credibility of Victim’s testimony. The exclusion of Dr. Gambon’s testimony was not an abuse of discretion. See, e.g., State v. Lawhorn, 762 S.W.2d 820, 822-23 (Mo. banc 1988) (affirming the exclusion of expert testimony that witnesses have difficulty identifying suspects of other races); Wright, 247 S.W.3d at 165-66 (affirming the exclusion of expert testimony concerning personality traits which make it more likely for a person to give a false confession); State v. Davis, 32 S.W.3d 603, 607-09 (Mo.App.2000) (affirming the exclusion of expert testimony on interrogation techniques, false confessions and coercive persuasion); State v. Biezer, 947 S.W.2d 540, 541-43 (Mo.App.1997) (affirming the exclusion of expert testimony offered to challenge a police officer’s interview techniques); State v. Edwards, 918 S.W.2d 841, 845-46 (Mo.App.1996) (affirming the exclusion of expert testimony that a child sex-abuse victim did not know the difference between truth and fantasy); State v. Donnell, 862 S.W.2d 445, 450 (Mo.App.1993) (affirming the exclusion of expert testimony on the reliability of cross-racial identification and psychological factors affecting eyewitness identification) abrogated on other grounds by State v. Williams, 936 S.W.2d 828, 831-32 (Mo.App.1996). Point VI is denied.

Point V

Defendant’s fifth point concerns alleged instructional error. The following additional facts are relevant to this point.

Instruction No. 6, which was based upon MAI-CR 3d 323.02, was the verdict-directing instruction for the first-degree robbery count. Instruction No. 8, which was based upon MAI-CR 3d 332.02, was the verdict-directing instruction for the armed criminal action count. Each instruction hypothesized that Defendant was the person who committed the specified offense. Defense counsel objected to each instruction as not being supported by the evidence. The court overruled these objections and gave the instructions.

On appeal, Defendant contends Instruction No. 6 and Instruction No. 8 should not have been given because they are not supported by the evidence. “A jury instruction must be supported by substantial evidence and the reasonable inferences to be drawn therefrom.” State v. Avery, 275 S.W.3d 231, 233 (Mo. banc 2009). Appellate review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt. State v. Brown, 246 S.W.3d 519, 531 (Mo.App.2008). We view the evidence and inferences in the light most favorable to the State, which was the party tendering the instruction. State v. Hartman, 224 S.W.3d 642, 648 (Mo.App.2007). All contrary evidence and inferences are disregarded. Id.

Defendant argues that he is entitled to a new trial because all of the evidence against him was circumstantial and unclear as to whether he was the individual who committed the offense. He asserts that: (1) Victim’s physical description of her assailant was vague; (2) during the brief encounter, she only focused on his eyes; (3) no physical evidence linked Defendant to the crime; and (4) Croney’s testimony, which was given in exchange for a complete dismissal of the charge against her, lacked credibility. All of these assertions ask this Court to reweigh the evidence, decide witness credibility and resolve conflicts in the evidence. This we cannot do. An appellate court only determines whether an instruction is supported by sufficient evidence; it is not our role to reweigh the evidence. Brown, 246 S.W.3d at 531. It was up to the jury to decide the credibility of the evidence presented. State v. Avery, 120 S.W.3d 196, 203-06 (Mo. banc 2003); State v. Deckard, 18 S.W.3d 495, 497 (Mo.App.2000). At trial, Victim positively identified Defendant as the person who robbed her while wielding a knife. Victim’s eyewitness testimony alone, which the jury was entitled to believe, is sufficient to support Defendant’s conviction for first-degree robbery and armed criminal action. State v. Williamson, 836 S.W.2d 490, 495-96 (Mo.App.1992); State v. Barnes, 693 S.W.2d 331, 332 (Mo.App.1985). Point V is denied.

The judgment of the trial court is affirmed.

BARNEY, J. and BURRELL, J., Concur.

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

      . EBT stands for "Electronic Benefit Transfer" and is the method by which eligible households receive and use food stamp benefits.

      . We address Points II and III together because the issue and relevant evidence is the same. Defendant moved for judgment of acquittal at the close of the State’s evidence. After that motion was denied, he attempted to call an expert witness to testify. Consistent with a pretrial ruling on a motion in limine, the court excluded the testimony and permitted defense counsel to make an offer of proof. Defendant rested without presenting any evidence, and there was no rebuttal evidence by the State. Therefore, the propriety of the trial court's rulings must be assessed by reviewing the evidence presented by the State during its case-in-chief.

      . Forcible stealing is defined in § 569.010(1). Stealing is defined in § 570.030. Because Defendant does not contend the evidence was insufficient to meet these requirements, no further discussion of either definition is required.

      . See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Detective Southard first testified that he obtained the photographs from the Greene County Sheriff's Department, but he later stated that he had gotten the pictures from Greene County.

      . Defense counsel also asserted a foundational objection which has not been carried forward on appeal.

      . Ex gratia review reveals no error. At trial, defense counsel challenged Victim’s identification of Defendant as the perpetrator of this crime. The fact that, during a photo lineup a few days after the incident, Victim identified Defendant as the robber corroborated her in-court identification of Defendant. Ex. 6A was logically relevant for that purpose because it tended to establish Defendant's guilt. State v. Colvin, 312 S.W.3d 436, 439 (Mo.App.2010). It was legally-relevant because the probative value of the exhibit as corroborative evidence outweighed any prejudicial effect. Id.; see also State v. Harris, 711 S.W.2d 881, 883 (Mo. banc 1986) (identifying witness may testify concerning his or her pretrial identification of suspect); State v. Blaney, 801 S.W.2d 447, 450 (Mo.App.1990) (evidence that a witness selected the defendant’s picture from a photographic display was corroborative of her in-court identification of defendant) abrogated on other grounds by State v. Withrow, 8 S.W.3d 75, 79 n. 3 (Mo. banc 1999).

      . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: DON E. BURRELL, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dale Dewayne BOOKWALTER Sr., Defendant-Appellant.
    No. SD 30013.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 17, 2010.

      Matthew Ward, Columbia, MO, for Appellant.
    Chris Koster, Attorney General and Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

A jury found Dale Dewayne Bookwalter Sr. (“Defendant”) guilty of statutory sodomy in the first degree. See section 566.062. Defendant was thereafter sentenced to a fifteen-year term of incarceration. Defendant’s sole point on appeal alleges the trial court erred in denying his motion for judgment of acquittal at the close of the evidence because “there was insufficient evidence from which a juror could find beyond a reasonable doubt that [the victim] was less than fourteen years old during the charged time period.”

This case painfully demonstrates that the prosecutor’s failure to ask and receive an answer to the simplest of questions— “What was your date of birth” — has created a serious question about whether the State sufficiently proved what should have been the easiest element of its case. Although it is a close question, we believe the jury’s finding regarding the victim’s age was supported by sufficient evidence and affirm Defendant’s conviction.

Facts

We here recite the evidence as viewed in the light most favorable to the jury’s verdict and give the State the benefit of all reasonable inferences that may be drawn from that evidence. State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003). We disregard any evidence or inference contrary to the verdict. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). In mid-August 2008, Defendant’s son (“Victim”) was living with Defendant in a house where several other persons were also living. Defendant and Victim’s mother (“Mother”) had divorced a few months earlier and shared custody of Victim. At some point, Mother moved out of the house and left Victim with Defendant. Victim remained with Defendant until he left to live with Mother after a storm caused a power loss at Defendant’s home.

At some point between mid-August 2008 and when Victim left to live with Mother on September 14 or 15, 2008, an adult, male friend who was living with Defendant woke Victim during the night and told Victim to go to Defendant’s room. Once Victim did so, the men told Victim to take his boxer shorts off. Defendant then put his penis in Victim’s anus and “moved around.” Victim told Defendant to stop, but Defendant did not stop. Defendant eventually told Victim to go back to bed. A few nights later, Victim was again awakened by Defendant’s friend and told to go to Defendant’s room. On that occasion, after Defendant told Victim to take of his clothes, Defendant’s friend “did the same thing [ ]” to Victim. Victim testified that Defendant had a gun this time and told Victim that he would hurt Victim and his family if he told anyone. Victim testified that “this” happened again on six-to-eight other occasions while he was still living with Defendant.

Victim’s special education teacher noticed changes in Victim’s behavior toward the end of August. Previously, “he was very well-behaved.” She noticed that Victim began to have trouble getting along with others, he “cried a lot,” had “outbursts” and began to suffer from “very, very bad hygiene.”

In his opening statement to the jury, the prosecutor stated that Victim was “a 13-year-old boy” and in his closing argument that Victim “was less than 13 when it happened,” and “[a] 12-year-old boy.” Although Victim, Mother, Victim’s teacher, and Victim’s half-brother (“Half-Brother”) all testified at trial, none of them were asked when Victim was born or even how old he was. Victim’s teacher testified that Victim was a seventh-grader when school started around August 15, 2008. Mother testified that she had two children besides Victim: Half-Brother — who was fifteen years old — and Victim’s sister (“Sister”)— who was fourteen years old — at the time the case was tried on June 11, 2009. Defendant was the father of Sister but was not the father of Half-Brother.

Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we “must determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt.” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). The verdict may be supported by all reasonable inferences to be drawn from the evidence, but “[t]he Court may ‘not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.’ ” Id. (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)). “Reasonable inferences may be drawn from both direct and circumstantial evidence.” State v. Dixon, 70 S.W.3d 540, 544 (Mo.App. W.D.2002) (citing State v. Grim, 854 S.W.2d 403, 412-13 (Mo. banc 1993)).

“This court is charged with the responsibility of determining whether all of the evidence, direct and circumstantial, is sufficient to provide any rational juror with proof beyond a reasonable doubt as to each element of the crime.” State v. Smith, 108 S.W.3d 714, 718 (Mo.App. W.D.2003). The question is whether all elements of the crime were supported by the facts presented. Id. “When reviewing the sufficiency of evidence supporting a criminal conviction, the Court does not act as a ‘“super juror’” with veto powers,’ but gives great deference to the trier of fact.” State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998) (citations omitted). If a fact is proven by circumstantial evidence, those circumstances are no longer required to be inconsistent with any reasonable theory of innocence. Grim, 854 S.W.2d at 406-08.

Analysis

Defendant now challenges for the first time on appeal the evidentiary support for the State’s claim that Victim was less than fourteen years old at the time of the charged conduct. Defendant did not raise the issue of Victim’s age in either his motion for directed verdict at the close of the evidence or in his subsequent motion for new trial. While the failure to raise an allegation of error with the trial court is usually fatal on appeal, an appellate challenge to the sufficiency of the evidence supporting a criminal conviction may be made under Rule 29.11(d)(3) even if the claim was not raised in a motion for new trial. Our high court has held that “[i]f the evidence is insufficient to sustain a conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted.” State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999).

“A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.” Section 566.062.1. Under the verdict directing instruction submitted in this case, the jury was informed that to find Defendant guilty of the charge brought against him, it must find beyond a reasonable doubt that the conduct occurred “between the dates of August 20th and September 18, 2008” and “that at that time [Victim] was less than fourteen years old.... ” The prosecutor’s statements about Victim’s age in opening and closing were, of course, not evidence. See State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006). Although the State notes in its brief that “[VictimJ’s age did not appear to be a contested issue at trial[,]” “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also Smith, 108 S.W.3d at 718.

Defendant cites Dixon, 70 S.W.3d 540, as a case in which the evidence was held insufficient to prove that the victim was less than fourteen years old when the offenses of first-degree statutory sodomy and first-degree statutory rape were alleged to have been committed. In Dixon, as in the instant case, no evidence of the victim’s birth date was presented. “Instead, [the victim] testified that on the date of the trial, April 13, 2000, she was fifteen years old.” Id. at 545. Other evidence demonstrated that the victim must have turned fifteen before June 1, 1999, because she turned fifteen while she was still living with her mother and the defendant and she went to live with her grandmother after the defendant was arrested on June 1, 1999. Id. As a result, the Western District found:

From this information, the reasonable inference is that [the victim’s] fifteenth birthday occurred sometime between April 13 and June 1, 1999. Therefore, she must have turned fourteen between April 13 and June 1, 1998. Based on this evidence, a reasonable juror could find that [the victim] was “less than fourteen years of age” only before April 13, 1998. The jury, therefore, could not have found that she was less than fourteen “on or between July 1, 1998 and May 14, 1999,” the period specified in the instruction as that during which the offenses were committed.

Id. (emphasis in original). Because there was no possibility that the victim could have been less than fourteen years old at the time of the alleged conduct, the defendant’s convictions for statutory rape and statutory sodomy were reversed, and the case was “remanded for retrial of [the defendant] on the lesser offenses of second degree statutory rape and second degree statutory sodomy.” Id. at 551.

Here, the only evidence relating to Victim’s age was: 1) Victim’s physical appearance and manner while testifying at trial; 2) that Victim was just starting the seventh grade at the time the charged offense was committed; and 8) the ages of Victim’s siblings on the date of trial.

Victim’s Appearance and Manner at Trial

In regard to Victim’s appearance, the State cites State v. Hahn, 35 S.W.3d 393 (Mo.App. E.D.2000). The victim did not testify in Hahn but the jury was permitted to see her. The Eastern District stated that the jury could properly conclude from that observation that the victim was less than fourteen years of age. However, as the State admits, the parties had stipulated to the victim’s age — which was four years old. Id. at 396. By simple observation, a jury could easily determine that a four-year-old was less than fourteen years old but have a much more difficult time doing so if the child at issue was a seventh-grader.

In the case at bar, the jury was able to do more than simply observe Victim’s appearance. It was also able to gauge Victim’s age based on his manner while testifying and the amount of sophistication (or lack thereof) he displayed when answering questions put to him by both the prosecutor and defense counsel.

Victim’s Grade in School

The State next points out that “[Victim] was in the first part of seventh grade at the time of the abuse.” While Victim would certainly be younger at the start of school than he would be later in the year, there was no evidence before the jury as to the month of Victim’s birth. There was also no evidence presented as to the typical age of a student entering the seventh grade. Whether a student just entering the seventh grade is less than fourteen years old might well depend on the age at which he started school and whether he had ever skipped or repeated any grades.

In reviewing a delinquency case, In re V.F.S., 172 S.W.3d 887 (Mo.App. S.D.2005), we had to determine whether there was sufficient proof that a juvenile offender knew his victim was under 17 years of age. In that context, we found and held,

Here, the most that can be said about Victim’s age is that he was in high school. This fact does not prove that Victim was under the age of seventeen. Moreover, there is absolutely no evidence indicating that [the juvenile offender] knew Victim’s age. Due to this failure of proof, the judgment must be reversed.

Id. at 889. But here, the jury knew Victim’s specific grade, not just that he was “in high school” — a period of schooling that typically spans four years.

The Ages of Victim’s Siblings at Trial

The State next notes that the jury heard testimony that Half-Brother was fifteen years old at the time of trial on June 11, 2009. Assumed as true, this testimony proved that Victim was fifteen years old or younger at the time of trial. The jury also heard that Sister was fourteen at the time of trial, but did not hear whether Sister was older, younger, or the same age as Victim. They also heard no evidence of the date of birth for either Half-Brother or Sister.

A 280-day gestation period has been recognized as within the common knowledge and understanding of judges and jurors in the context of a civil paternity case. State ex rel. K.R. by May v. Brashear, 841 S.W.2d 754, 759 (Mo.App. E.D.1992). In paternity cases, “[cjourts take judicial notice of the normal 280-day gestational period and the party having the burden of proof must present evidence to support a finding of a shorter or longer gestational period.” State ex rel. Dep’t of Soc. Servs., Div. of Child Support Enforcement v. Miller, 218 S.W.3d 2, 6 n. 4 (Mo.App. S.D.2007).

Assuming, without determining, that a presumption of a 280-day gestational period could be applied in a criminal case, the question becomes what a reasonable juror could infer about Victim’s age at the time of the charged conduct from the ages of Half-Brother and Sister at the time of trial. Those applicable facts were: 1) all three children shared the same mother (but not the same father); 2) Half-Brother was fifteen and Sister was fourteen on the day of trial (June 11, 2009); and 3) Half-Brother was older than Victim. In addition to these facts, we will also assume for the moment that a reasonable juror could also find beyond a reasonable doubt that each of Victim’s siblings were in Mother’s womb for 280 days. Cf. K.R., 841 S.W.2d at 759.

Based on the facts before the jury, and an assumed gestation period of 280 days, the following calculation sets forth the range of the children’s possible birthdates and the resulting age of Victim:

This chart reveals that under most of the possibilities, Victim would indeed have been less than fourteen years of age at the time of the charged conduct. But to reach that conclusion, the jury would have to assume as true either of two scenarios. The first scenario would place Victim as the third child born (as shown by possibilities numbered 7, 8, or 9). However, there was no evidence before the jury that Victim was born third. Based on the evidence presented to the jury, Victim could have been born second and Sister could still have been fourteen at the time of trial (as illustrated by possibilities numbered 5 and 7).

The second scenario would place Victim as Sister’s twin with a birthday between 12/24/94 and 6/11/95 (as illustrated by possibilities numbered 4 and 6). If Victim and Sister were twins and were born at the earliest date possible to allow Sister to have been fourteen years old on the date of trial, that would, of course, mean that Victim was also fourteen years old at the time of the charged conduct (as illustrated by possibility number 3). This second scenario also assumes that the twins’ birth date fell within a particular window of time. There was, however, no evidence before the jury to support either of these underlying assumptions.

The critical question then becomes whether it would have been reasonable or speculative for the jury to have assumed a birth order and/or a particular window of time for Victim’s birth date given his relationship to Half-Brother and the ages of Victim’s siblings at trial. In other words, could the jury have reasonably found that Victim was less than fourteen years old at the time he was sexually abused because it would be true under most of the possibilities?

Unlike in Dixon, 70 S.W.3d at 545, where there was no possibility that the victim could have been less than fourteen years of age at the time of the charged conduct, such a possibility was not excluded by the evidence presented in this case. That Victim was less than fourteen years old at the time of the charged conduct, as found by the jury, is certainly possible based on the evidence presented. In fact, it might be said that it was even probable, in that it would be true under almost all of the possible factual scenarios. But such a conclusion would have to be based on multiple assumptions — not on actual facts. Finding that Victim was less than fourteen years old based purely on the evidence of his siblings ages at trial would seem to be prohibited by the rule that “a verdict cannot rest upon the piling of an inference upon an inference when there are no facts supporting the first inference.” State v. McMullin, 136 S.W.3d 566, 573 (Mo.App. S.D.2004).

In McMullin, the defendant was charged with two counts of violating a full order of protection. Id. at 569. The portion of the form used by the sheriff to indicate his method and time of service of the order was blank. Id. The defendant sent a letter to the victim after the date of the first charged offense indicating that he had not been served with the order and could write the victim until he was served. Id. This court held that the defendant’s letter could not be used to prove his knowledge of the issuance of the first order because “what he said in the April letter was not proof he knew about the order in March.” Id. at 572. The State argued, however, that other evidence of notice was presented via testimony that the clerk “oftentimes” sent the orders via certified mail, and that it could be presumed that the clerk sent the notice because it was the clerk’s legal obligation to do so. Id. at 572-73. We rejected those arguments, along with any resulting presumption that the defendant would have received the mailed notice, stating, “[a]n appellate court cannot infer a fact (receipt of the order) when that inference is based upon another inference (presumption the clerk properly mailed the order) that is not based upon a fact.” Id. at 573 (emphasis in original).

A similar problem with determining Victim’s age based solely on the age of his siblings at trial exists in the case at bar. As we stated in McMullin,

it is highly unlikely that [the defendant gained knowledge of the order in April, but somehow did not possess that knowledge in March. The State, however, did not adduce any evidence of this. As aptly stated by our supreme court: “An ‘inference’ is a conclusion drawn by reason from facts established by proof; ‘a deduction or conclusion from facts or propositions known to be true.’ A supposition is a conjecture based on the possibility that a thing could have happened. It is an idea or a notion founded on the probability that a thing may have occurred, but without proof that it did occur.” Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626, 630 (1941) (citation omitted) (emphasis supplied). A criminal conviction cannot be based upon probabilities and speculation. State v. Boyd, 91 S.W.3d 727, 734 (Mo.App.2002).

Id.

Fortunately, we do not have to determine whether a reasonable juror could have found beyond a reasonable doubt that Victim was less than fourteen years old at the time of the charged conduct based solely on the ages of his siblings at trial. The question we must answer is whether the totality of the evidence adduced regarding Victim’s age at the time of the charged conduct was sufficient for the task; not whether each piece of evidence, viewed in isolation, might be sufficient. To that question, we answer, ‘Tes.” We are persuaded that the combination of: 1) the jury’s ability to view first-hand Victim’s physical appearance and manner while testifying at trial; 2) the fact that Victim was just entering the seventh grade at the time of the charged conduct; and 3) the probability that Victim was then less than fourteen based on the age of his siblings at trial was sufficient evidence from which a reasonable juror could be firmly convinced that Victim was less than fourteen years old at the time of the charged conduct.

Defendant’s point is denied, and his conviction is affirmed.

BARNEY, P.J., and LYNCH, J„ Concur.

      . Unless otherwise indicated, all statutory references are to RSMo, Cum.Supp.2006.

      . The applicable degree of statutory sodomy is determined by the victim’s age at the time of the charged conduct. Although the State notes that the charging instrument contained an alleged date of birth for the victim that would have resulted in his being under the age of fourteen at the time of the alleged offense and that the victim's mother testified to the child's age at a pretrial section 491.075 hearing, the charging instrument is not evidence and Mother’s 491.075 hearing testimony was not presented to the jury.

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

      . Deviate sexual intercourse includes “any act involving the genitals of one person and the ... anus of another person ... done for the purpose of arousing or gratifying the sexual desire of any person_” Section 566.010(1).

      .The defendant in Dixon was also charged with abuse of a child, incest, and endangering the welfare of a child. His convictions on those offenses (which did not require proof that the victim was less than 14 years of age at the time of the alleged conduct) were affirmed. Id. at 542-43.

      . In this particular case, the fact that Victim had a special education teacher suggests the possibility that he may not have progressed through school at the same pace as a typical student.

      . In addition to presuming that each of the children was born after the presumed gestation period, our calculations also presume that if Victim and Sister were twins, they were born on the same day and that one or the other was not delivered prematurely.

      . Although McMullin has not been overruled, and its "rule” prohibiting "inference stacking” has been applied in many Missouri cases, it has also been criticized in others. Id. at 572 n. 5. As best we can tell, the Supreme Court of Missouri has not yet taken a position on the matter. See State v. Feger, 340 S.W.2d 716, 722 (Mo. banc 1960) ("Appellant's ‘inference on an inference’ argument, if such a rule actually exists as contended, misinterprets the rule that several inferences may properly be drawn from the same proved facts, if each inference is supported thereby”) (citing State v. Ring, 346 Mo. 290, 141 S.W.2d 57, 64-65 (Mo.1940)). "While several inferences properly may be drawn from the same proven facts provided each inference is supported thereby (State v. Feger, 340 S.W.2d 716, 722(4) (Mo.1960), it is impermissible to draw an inference which is dependent upon another inference drawn from some other fact shown only by inference. State v. Ring, 346 Mo. 290, 304, 141 S.W.2d 57, 64-65(16) ( [Mo. banc 1940); State v. Gonzales, 533 S.W.2d 268, 272(4) (Mo.App.1976).” State v. Brown, 542 S.W.2d 789, 792 (Mo.App. Spfld.D.1976). We will continue to follow the "rule” prohibiting the stacking of inferences as set forth in McMullin until our high court chooses to address the issue directly.


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

text:
    In the Matter of: Sandra Lee KILE. Sandra Lee Kile, Appellant, v. Judy K. McGuire, Public Administrator of Dade County, Missouri, Respondent.
    No. SD 30168.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 18, 2010.
    R. Lynn Myers, Springfield, for Appellant.
    Michael D. Mayes, Springfield, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

Sandra Lee Kile (“Appellant”) seeks review in this Court of an order denying her motions to void an emergency appointment of a temporary guardian and temporary conservator and to void appointment of the guardian and conservator. This Court dismisses the appeal as moot and lacking in ease or controversary.

Factual and Procedural History

On March 1, 2006, the Public Administrator of Dade County, Missouri, Judy K. McGuire (“Respondent”), filed a “Petition for Appointment of a Guardian of the Person and Conservator of the Estate” of Sandra Lee Kile in the “Circuit Court Probate Division Dade County, Missouri” (“Probate Division”). On that same date, an “Application for Appointment of Temporary Guardian and Temporary Conservator” was filed. Thereafter, the Probate Division signed an order appointing Respondent as the temporary guardian and temporary conservator of Appellant. An attorney was appointed for Appellant at the same time. Notice of the action was served upon Appellant on March 3, 2006.

On March 27, 2006, a hearing on the appointment of guardian and conservator was held. Appellant was in attendance. Her attorney announced on the record that Appellant was waiving a jury trial. At the conclusion of testimony, Appellant, through her attorney, declined the opportunity to testify and voiced an understanding that she was in need of a guardian and conservator to help her take care of her personal, medical and financial needs. The Probate Division then entered its order appointing Respondent as guardian and conservator. No issues regarding appointment of the guardian/conservator were raised prior to the final settlement.

On October 8, 2008, a petition for restoration was filed by an independent attorney for Appellant. After an independent psychiatric evaluation, a hearing on the petition for restoration was held on February 2, 2009. The Probate Division granted the petition for restoration with regard to the guardianship but left the conservator-ship in place until certificates of deposit matured. The terms of the judgment and order terminating the guardianship/conser-vatorship granted complete restoration to Appellant effective upon the return of the certificates of deposit to her. Respondent was ordered to provide an annual settlement after the certificates of deposit matured.

On June 15, 2009, a petition to approve final settlement and a final settlement were filed. The Probate Division approved the final settlement after Appellant’s attorney verified there was no objection. No issues were raised at that time concerning any appointment of the guardian or conservator. The final settlement was approved on October 8, 2009.

On October 14, 2009, more than three years after the order appointing Respondent as temporary guardian and temporary conservator, Appellant filed a motion to void that appointment and the appointment of the guardian/conservator made on March 27, 2006. Following a hearing on October 26, 2009, the motion was denied. This appeal was subsequently filed.

Appellant contends the Probate Division erred in denying her motion because: (1) the court did not have personal jurisdiction when the temporary appointments were made in that she was not served with the petition or notice of action prior to the appointment of the temporary guardian/conservator; (2) a separate notice and hearing concerning the appointment of a temporary guardian or conservator is required and there was none; and (3) there was not an adequate waiver of the right to a jury trial. Respondent seeks to dismiss the appeal as moot and untimely. The motion is well taken and this appeal is dismissed.

Analysis
“A threshold question in any appellate review of a controversy is the mootness of the controversy.” Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999). “Because mootness implicates the justiciability of a case, an appellate court may dismiss a case for mootness sua sponte.” Id.
In terms of justiciability, “ ‘[a] cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy.’ ” Shelton v. Farr, 996 S.W.2d 541, 543 (Mo.App.1999) (quoting Bank of Washington v. McAuliffe, 676 S.W.2d 488, 487 (Mo. banc 1984)). “The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.’ ” Armstrong, 990 S.W.2d at 64 (quoting State ex rel. Wilson v. Murray, 955 S.W.2d 811, 812-13 (Mo.App.1997) (citation omitted)). “When an event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed.” Id.; In re C.A.D., 995 S.W.2d 21, 28 (Mo.App.1999).

State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001).

It is doubtful Appellant would prevail on her appeal if we chose to address her claims on the merits. Appellant’s appeal is an attempt to challenge a guardianship/conservatorship that no longer exists. The relief requested is to set aside the letters of guardianship and conservator-ship and return this matter to the Probate Division for further proceedings, although a final settlement has been filed and approved without any challenge.

This Court, when faced with similar facts, dismissed the appeal in Murray v. Hunter, 321 S.W.3d 447 (Mo.App. S.D.2010). In Murray, Appellant sought to challenge orders of the probate division of the circuit court as to a guardianship/con-servatorship which was no longer in existence.

Here, the Probate Division’s restoration judgment terminated the letters of guardianship and conservatorship. That action constituted “an event [ ] that makes [this] court’s decision unnecessary or makes granting effectual relief ... impossible[.]” Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. W.D.1999). Appeal dismissed.

SCOTT, C.J., and BATES, J., Concur.

      . Appellant did not file any response to Respondent’s motion to dismiss, nor did she file any reply brief addressing mootness or timeliness of the appeal.

      . Two of Appellant’s points challenge orders that were interlocutory in nature and are now moot because the temporary orders entered pursuant to section 475.075(11) RSMo (2000) terminated with the appointment of the guardian and conservator on March 27, 2006. The third point challenges the adequacy of Appellant's waiver of jury trial. The legal file contains a docket sheet reciting the waiver, the transcript reflects waiver in open court, and Appellant’s acquiescence in the entire procedure. We are satisfied as to compliance with section 510.190 RSMo (2000) addressing waiver of jury trial.


text:
    Peter J. SABATUCCI, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. SD 30380.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 19, 2010.

      Melinda K. Pendergraph, Columbia, for Appellant.
    Chris Koster, Atty. General, Mary H. Moore, Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

Peter J. Sabatucci (“Movant”) seeks judicial review of the dismissal of his Rule 24.035 motion for post-conviction relief.

A person seeking post-conviction relief under Rule 24.035 is required, among other things, to timely file a motion in the sentencing court. Rule 24.035(b). The motion court dismissed Movant’s post-conviction motion after finding that the circuit court of Newton County was not Movant’s sentencing court. Movant had pled guilty to, and was sentenced for, the underlying charges in the circuit court of McDonald County. Movant contends the trial court erred by dismissing his Rule 24.035 post-conviction motion instead of transferring the motion to McDonald County. The State agrees, as do we.

Missouri’s rules of civil procedure apply to Rule 24.035 motions “insofar as applicable.” Rule 24.035(a). Section 476.410 provides that a “court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought.” This statute gives a circuit court “ ‘limited jurisdiction ... to transfer any case filed in an improper venue to any circuit court’ ” where venue is proper. Nicholson v. State, 151 S.W.3d 369, 370 (Mo. banc 2004) (quoting State ex rel. Director of Revenue v. Gaertner, 32 S.W.3d 564, 567-68 (Mo. banc 2000)). The court to which an action is transferred is required to treat the action “as if it had originated in the receiving court.” Rule 51.10.

The correct procedure for disposing of a Rule 24.035 motion that is timely filed in an improper venue is transfer of the case to the correct venue, where the cause will relate back and be treated as if it originated in the correct venue. See Nicholson, 151 S.W.3d at 370-71 (using identical analysis as applied to Rule 29.15 post-conviction motions).

The judgment is reversed and remanded with instructions to transfer the case to the circuit court of McDonald County.

SCOTT, C.J., and BATES, J., concur.

      . All references to rules are to Missouri Court Rules (2010), and all references to statutes are to RSMo 2000, unless otherwise specified.


author: PER CURIAM.

text:
    Michael WEBB, Respondent, v. TREASURER OF MISSOURI as Custodian of Second Injury Fund, Appellant.
    No. ED 94462.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 23, 2010.
    Mary Sommers-Getz, Attorney Generals Office, St. Louis, MO, for appellant.
    Dean Christianson, St. Louis, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

The Second Injury Fund (“SIF”) appeals from an award of the Labor and Industrial Relations Commission (“Commission”), pursuant to Section 287.220 RSMo. Supp.1998 awarding Michael Webb (“Claimant”) permanent total disability. In its sole point on appeal, the SIF claims the Commission erred as a matter of law when it held that Claimant was entitled to permanent total disability.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


text:
    Heather M. ROBISON, Plaintiff/Appellant, v. Ron SCHULZE, Gene Schulze, Lois Schulze, and Schulze Property Management, LLC, Defendants/Respondents.
    No. ED 94428.
    Missouri Court of Appeals, Eastern District.
    Nov. 23, 2010.
    David G. Bandre, Jefferson City, MO, for Plaintiff/Appellant.
    John R. Hamill, III, Eddie Bond Collier, II, St. Charles, MO, for Defendants/Respondents.

      Before ROY L. RICHTER, P.J., KATHIANNE KNAUP CRANE, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Heather M. Robison appeals from the trial court’s judgment denying her relief on Count I of her breach of contract petition against Ron Schulze, Schulze Property Management, LLC, and Gene and Lois Schulze. We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the trial court was supported by substantial evidence and was not against the weight of the evidence. Heritage Roofing, LLC v. Fischer, 164 S.W.3d 128, 132 (Mo.App. E.D.2005). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).