author: LAURA DENVIR STITH, Judge. RICHARD B. TEITELMAN, Judge,

text:
    STATE of Missouri, Respondent, v. Tyrone C. BATEMAN, Appellant.
    No. SC 90528.
    Supreme Court of Missouri, En Banc.
    Aug. 3, 2010.

      Jessica M. Hathaway, Public Defender’s Office, St. Louis, for Appellant.
    Richard A. Starnes, Attorney General’s Office, Jefferson City, for Respondent.
   LAURA DENVIR STITH, Judge.

Tyrone Bateman was convicted of first-degree murder in the shooting death of his cousin Miles Bateman and sentenced to life in prison without parole. On appeal, Tyrone argues that the evidence was insufficient to allow the jury to find beyond a reasonable doubt that he deliberated before shooting the victim and that the trial court erred in overruling his challenge to the state’s peremptory strike of an African-American venireperson under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Finding no error, this Court affirms. Tyrone left the victim’s home after the two engaged in a physical altercation. He drove to his own house to retrieve his shotgun, drove back to the victim’s house, kicked down the door, shot and killed the victim, and then drove from the scene while exclaiming, “I got him. I got him.” This evidence, if believed, was sufficient to permit a reasonable juror to find the element of deliberation beyond a reasonable doubt.

This Court also finds no reversible error in the trial court’s rejection of Tyrone’s claim that the state’s strike of an African-American venireperson, B.T., violated Bat-son. In support, Tyrone argues the state’s explanation that it struck B.T. because he showed initiative and leniency in sua sponte asking about the degrees of murder was pretextual in that the state failed to exercise a peremptory challenge as to a Caucasian venireperson who also asked a question about punishment and because the questions were asked only after the prosecutor solicited questions from the ve-nire. The state argues that there was no similarly situated Caucasian juror, and, therefore, the strike was not pretextual.

The focus of some prior cases on the “crucial” nature of the presence of a similarly situated juror should be understood to mean that this evidence often is determinative of the presence of pretext; the presence of such a juror is not necessary to find pretext, however. Pretext is determined in light of the entirety of the circumstances, not by the presence of a single factor. See, e.g., State v. Parker, 836 S.W.2d 930 (Mo. banc 1992).

As discussed below, factors that have been identified as relevant, in addition to the presence of a similarly situated Caucasian juror, include, but are not limited to, the striking of a disproportionate number of minorities, the number of minorities left on the jury, the use of strikes against non-minority jurors, the logical relevance of the prosecutor’s proffered explanation, objective factors bearing on the state’s motive to discriminate, and the prosecutor’s pattern of practice such as his or her demeanor and history of making or not making pretextual strikes.

Tokenism in leaving some minorities on the jury or in striking some non-minorities will not prevent a strike from being found to be pretextual where other factors support a finding of pretext, and the determination of pretext must be made based on the prosecutor’s statement at the time of the Batson challenge; new reasons why a strike could have been made may not be offered on appeal.

Here, however, the challenge was made solely on the bases that there was a similarly situated Caucasian juror who was not stricken and that the prosecutor mischar-acterized the nature of a question asked by the stricken juror. The record shows that the Caucasian venireperson was not similarly situated and that his answers supported the prosecutor’s statement that he believed B.B. would be more favorable to the prosecution than would the B.T. The other minor misstatements by the prosecutor were not significant or dispositive, and the trial court did not clearly err in finding that the strike of B.T. was race-neutral.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Criminal Action

The evidence shows that Tyrone and Miles Bateman were cousins living on the same street. After a night out together, Miles slept at Tyrone’s house. When Miles awoke the next morning, he discovered Tyrone had borrowed his van and some amount of money. Tyrone later returned the van without gas. The money was not returned. Tyrone left a pair of shoes or boots in the van, which Miles kept until he could collect the missing money from Tyrone.

A few days later, on March 21, 2005, Miles was repairing a flat tire in front of his mother’s house, where he lived, when Tyrone drove up with a mutual friend to retrieve the shoes. When Miles refused to give back the shoes until Tyrone returned his money, an argument ensued and escalated into a physical confrontation. Tyrone struck or grabbed Miles, who then retaliated by hitting Tyrone in the head with the jack handle he was holding. Tyrone’s head began to bleed profusely, and the two wrestled on the ground until the fight was broken up by Miles’ mother. Tyrone told Miles, “... [W]hen you get off me, I’m going to hurt you real bad.” Miles went into his house and then the bathroom to wash his face.

Tyrone returned to his car and drove in reverse down a one-way street. Upon reaching his house, Tyrone retrieved a shotgun. Tyrone then returned to Miles’ house, kicked down the front door and shot Miles once in the area of his left chest. Tyrone did not try to help Miles or seek medical attention for him after the shooting. Instead, he got back into his car and drove away, exclaiming, “I got him. I got him.”

During a subsequent search of Tyrone’s house, police recovered a shotgun and shell consistent with the gun used to shoot Miles. Miles died as a result of the injuries inflicted by the gunshot. Police later apprehended Tyrone at an apartment where he was partially hidden in the closet of a child’s bedroom. Tyrone resisted arrest so aggressively that police subdued him with a Taser.

The state charged Tyrone with first-degree murder. At trial, Tyrone admitted he shot Miles but argued he was guilty only of voluntary manslaughter.

B. Jury Selection

At the start of the second day of voir dire, the prosecutor asked whether any of the venirepersons, after having the night to think about the previous day’s questions, had a “response” or a “rethought:”

[H]as anyone else had a chance to sleep on anything about what we talked about and have a response to anything we may have talked about yesterday or you rethought as of last night or today.

B.B., a Caucasian venireperson, replied:

Yesterday we were talking. And I’m not talking about presumption of innocence here or anything like that. But the State is not asking for the death penalty or it’s been ruled out completely. And I’m trying, in my mind, to justify why if we determine that there was guilt in this case that we wouldn’t be allowed to consider all possible punishment. Not that we would necessarily go for that, but why would we eliminate some of the punishment possibilities from the deliberation?

The prosecutor generally explained why the prosecutor might seek the death penalty in only certain types of murder cases and that the jury would not be involved in sentencing.

Later in voir dire, the prosecutor asked whether the venire members could follow the “instructions as to one of the elements in the case” even if “it may differ from what you thought was the law or what you think the law ought to be....” The prosecutor continued, “I want to know can you follow the Court’s instructions even if it differs from your own?” After five venire-persons answered in the affirmative, the prosecutor asked B.T., an African-American venireperson:

[Prosecutor]: Juror 217, can you follow the Court’s instruction even if it differs from your own personal thoughts or beliefs on the issue?
[B.T.]: Juror 217. I believe I can. But one question, when you say degree, what do you mean by that, First Degree, Second Degree?
[Prosecutor]: That will be entailed in the instruction that the Court gives you that there are elements that go into making a homicide a Murder in the First Degree. There are certain requirements, certain things that need to be sustained before it’s Murder in the First Degree or to make it Murder in the First Degree.
[B.T.]: I mean, is that like more of a harsher sentence?
[Prosecutor]: Murder in the First Degree is a higher charge, per se, than Murder in the Second Degree or even manslaughter. There’s a kind of ranging of them. Murder in the First Degree in some instances carries the death penalty. It does not in this case. Any of those questions that you have as far as degrees go, the Court will give you an instruction on.
Let me ask you this: If your personal belief is one thing but the Court’s instructions is another, will you be able to follow the Court’s instruction and apply it to the facts of the case?
[B.T.]: Yes.
[Prosecutor]: You’d be able to set aside even if you disagree with it?
[B.T.]: (Juror nods head.)
The Court: Is that a yes?
[B.T.]: Yes. I’m sorry.

The prosecutor did not initially include B.T. in his peremptory strikes, but when a Batson challenge was upheld as to one of the prosecutor’s original strikes, he struck B.T. After the defense made a Batson challenge, the prosecutor explained:

You honor, I struck [B.T.] for the sole reason that each — before I asked a question about following the Court’s instructions and [alluding] as to different degrees of murder or homicide shortly after reading the charge, it was a Murder in the First Degree case, [B.T.] beat me to that question and asked ff there are different degrees of murder charges and are there other things than First Degree to consider. And the reason I strike him ... is because I take that initiative that he showed as, you know, maybe a sign that he has a more lenient bend on his personal disposition in this matter or in criminal matters.

Defense counsel argued this explanation was pretextual in that B.T.’s question merely showed that he did not understand the differing degrees of homicide, and it was responsive to the prosecutor’s question whether he could follow the court’s instructions. Defense counsel also argued venireperson B.B. was similarly situated to B.T. because B.B. showed initiative in asking why the jury could not consider capital punishment in this case. The court denied the challenge, finding that the strike was race-neutral. Defense counsel later struck B.B. Another strike by defense counsel was disallowed by the Court for not being race-neutral. Tyrone was found guilty of first-degree murder and armed criminal action. The court sentenced Tyrone to life imprisonment without the possibility of probation or parole for first-degree murder and a consecutive term of 10 years for armed criminal action.

Tyrone appeals, raising two points: (1) the evidence was insufficient to support a finding of deliberation; and (2) the trial court clearly erred in overruling his objection to the prosecutor’s peremptory strike of B.T. under Batson, which violated the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 2 and 18(a) of the Missouri Constitution. Following a decision by the Missouri Court of Appeals, Eastern District, this Court granted transfer. Mo. Const. Art. V, § 10.

II. STANDARD OF REVIEW

In reviewing the sufficiency of the evidence, this Court’s “review is limited to whether the State has introduced sufficient evidence for any reasonable juror to have been convinced of guilt beyond a reasonable doubt.” State v. Grim, 854 S.W.2d 403, 419 (Mo. banc 1993), citing, Jackson v. Virginia, 443 U.S. 307, 319, n. 13, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[T]he 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) (internal citation and quotation marks omitted). “On review, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.” Grim, 854 S.W.2d at 404. “ ‘[T]his inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Chaney, 967 S.W.2d at 52, quoting, Jackson, 443 U.S. at 318-319, 99 S.Ct. 2781.

“In reviewing a circuit court’s decision concerning a Batson challenge, a circuit court is accorded great deference because its findings of fact largely depend on its evaluation of credibility and demeanor.” Kesler-Ferguson v. Hy-Vee, Inc., 271 S.W.3d 556, 558 (Mo. banc 2008). Therefore, the “court’s findings on a Batson challenge will be set aside [only] if they are clearly erroneous, meaning the reviewing court is left with the definite and firm conviction that a mistake has been made.” State v. McFadden, 216 S.W.3d 673, 675 (Mo. banc 2007) (“McFadden II ”).

III. EVIDENCE SUFFICIENT TO SUPPORT FIRST-DEGREE MURDER

Tyrone challenges the sufficiency of the evidence to sustain the first-degree murder conviction. He argues the state failed to prove beyond a reasonable doubt that Tyrone knowingly caused Miles’ death after deliberation upon the matter. See § 565.020.1, RSMo 2000. “Deliberation” is defined as “cool reflection for any length of time no matter how brief....” § 565.002(3), RSMo 2000. “Proof of deliberation does not require proof that the defendant contemplated his actions over a long period of time....” State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997). “Deliberation, like most elements of mens rea, must ordinarily be proved through proof of the circumstances surrounding the killing.” State v. O'Brien, 857 S.W.2d 212, 218-19 (Mo. banc 1993). “Without evidence of deliberation, an intentional killing is second-degree murder.... ” State v. Cole, 71 S.W.3d 163, 169 (Mo. banc 2002).

Tyrone argues that “no other reasonable inference” can be drawn but that he was acting under the influence of a violent “anger or passion” when he shot Miles and was not acting out of deliberation. In support, he notes it was undisputed that he had just received a head injury and that he recklessly drove the car backward down the street toward his house to retrieve his shotgun.

While this evidence may have permitted the jury to determine that he shot and killed his cousin in the heat of anger or passion, it did not require the jury to reach this determination. The evidence was sufficient to support the jury’s determination beyond a reasonable doubt that he shot and killed Miles after deliberation, that is, after cool reflection, “no matter how brief.”

In particular, the state presented evidence that the fighting between Tyrone and Miles stopped once Miles’ mother separated them and Miles retreated into the house. Tyrone, therefore, had ample opportunity to terminate the confrontation. State v. Norman, 243 S.W.3d 466, 470 (Mo.App.2007) (deliberation may be inferred when a perpetrator has ample opportunity to terminate the crime). Instead, Tyrone threatened Miles, saying, “I’m going to hurt you real bad.” State v. Overkamp, 646 S.W.2d 733, 737 (Mo.1983) (“Previous threats by the accused to kill the deceased are admissible to show malice and premeditation or state of mind”). Tyrone then got in his car and drove home. Rather than staying in this safe location, Tyrone got his gun and drove back to the scene of the altercation. Such a “time lapse between the threat and the shooting would have established a period of deliberation.” Rhodes v. State, 157 S.W.3d 309, 313 (Mo.App.2005). “Where the defendant commits a murder which, because of the particular method of attack, required some time to complete, this Court has permitted an inference of deliberation.” O’Brien, 857 S.W.2d at 219.

Tyrone’s choice not to return empty-handed but to bring a deadly weapon with him as he went back to confront his cousin also supports the jury’s finding of deliberation. State v. Stacy, 913 S.W.2d 384, 387 (Mo.App.1996) (bringing a deadly weapon to the commission of a crime supports a finding of deliberation). Tyrone then kicked down his cousin’s front door and fired his shotgun directly at Miles from only 3 to 5 yards away. The shot caused serious injury to Miles’ left lung and major blood vessels of the left shoulder. It fractured facial bones, causing a disfiguration of Miles’ chin. Instead of calling for help when he saw how seriously Miles was injured, Tyrone fled the scene while exclaiming, “I got him. I got him.” “[F]ailure to seek medical help for a victim strengthens the inference that the defendant deliberated.” State v. Strong, 142 S.W.3d 702, 717 (Mo. banc 2004).

There was substantial evidence from which a reasonable juror could find the element of deliberation beyond a reasonable doubt.

IV. BATSON CHALLENGE

In 1880, the United States Supreme Court invalidated a state statute providing that African Americans could not serve as jurors. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). While Strauder had the effect of forcing states to abandon “statutes that expressly restricted jury service to whites,” local officials found ways around its holding. For example, “[i]n some jurisdictions, names of black residents were included on the lists from which jury panels” were drawn, but were placed on “color paper so they could be easily avoided during the supposedly random drawing of the venire.” Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 10 (2010). Such practices led the Supreme Court to find in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), that African Americans continued to be precluded from jury service after Strauder, often under the guise of prosecutorial peremptory challenges. To eliminate such conduct, Swain held that a defendant could show his or her equal protection rights were violated by showing the prosecutor “consistently and systematically exercised their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself.” Id. at 222-23.

Following the 1965 Swain decision, some state officials “turned to somewhat more subtle ways of keeping blacks off jury venires.” Batson v. Kentucky, 476 U.S. 79, 103, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Marshall, J., concurring). “Although the means used to exclude blacks ... changed[,] the same pernicious consequence” remained. Id. As a result, as this Court noted in State v. Parker, 836 S.W.2d 930, 933 (Mo. banc 1992), the “Swain burden of proof imposed a nearly insurmountable obstacle to the vindication of black persons’ equal protection rights as evidenced by the fact that in the twenty-one years after Swain, only two defendants were able to establish a case of discrimination.” See also Theodore McMillian & Christopher J. Petrini, Batson v. Kentucky: A Promise Unfulfilled, 58 UMKC L.Rev. 361, 365 (1990) (commenting on the pre-Batson effect of the Swain holding).

Batson removed “the crippling burden of proof imposed upon defendants by Swain,” Parker, 836 S.W.2d at 933, and made a significant stand against such patent injustice when it held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” 476 U.S. at 89, 106 S.Ct. 1712. Such “[pjurposeful racial discrimination in selection of the veni-re violates a defendant’s right to equal protection....” Id. at 86, 106 S.Ct. 1712. In Powers v. Ohio, 499 U.S. 400, 409-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Supreme Court subsequently recognized that criminal defendants have standing to assert not only the violation of their own rights but also the violation of the equal protection rights of excluded venireper-sons.

Parker set out the procedure to be followed in making 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.

836 S.W.2d at 939 (internal footnotes and citations omitted). Accord, State v. Edwards, 116 S.W.3d 511, 526-28 (Mo. banc 2003).

State v. McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006) (“McFadden I”), noted that one of the most telling and common means of showing pretext is by showing that similarly situated venirepersons are treated differently, stating:

To show pretext, the defense can present “side-by-side comparisons” of veni-repersons allegedly struck for racially discriminatory reasons with those who were allowed to serve. Evidence of purposeful discrimination is established when the stated reason for striking an African-American venireperson applies to an otherwise-similar member of another race who is permitted to serve.

Id. (emphasis added) (internal footnotes omitted).

While the presence of a similarly situated Caucasian juror usually is indicative of pretext, and for this reason sometimes has been referred to as “crucial,” see, e.g., State v. Taylor, 18 S.W.3d 366, at 374-75 (Mo. banc 2000), proof of a similarly situated Caucasian juror is not required in order to make a successful Batson challenge. As the United States Supreme Court noted in Miller-El, 545 U.S. at 247 n. 6, 125 S.Ct. 2317, “A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable.... ” McFadden II similarly noted that the presence of an identical white juror is not required. 216 S.W.3d at 676.

The ultimate issue to be decided under Batson is whether defendant has shown pretext, not whether there is a similarly situated Caucasian juror. This Court, in stating that pretext is to be determined by looking at “the plausibility of the prosecutor’s explanations in light of the totality of the facts and circumstances surrounding the case,” Parker, 836 S.W.2d at 939, has made it clear that the trial court may not conclude the prosecutor acted without pretext merely because one or more common means of establishing the existence of pretext is not borne out by the record. See also Batson, 476 U.S. at 98, 106 S.Ct. 1712; Miller-El, 545 U.S. at 231-232, 125 S.Ct. 2317. There is rarely a simple litmus test for examining pretext. Rather, the trial court should take “into account a variety of factors” “[i]n determining whether the defendant has carried the burden of proof and established the existence of purposeful discrimination.” Parker, 836 S.W.2d at 939. See also State v. Marlowe, 89 S.W.3d 464, 469-70 (Mo. banc 2002).

This does not mean, however, that the trial or appellate court is permitted to peruse the record to find legitimate reasons why the potential juror might have been stricken. To the contrary, the issue of pretext is determined by the prosecutor’s stated reasons for the strike at the time of the Batson inquiry. The trial and appellate courts cannot identify additional reasons why the prosecutor could have stricken the venireperson but rather must look at whether the reason or reasons given by the prosecutor are race-neutral and, if so, at whether the defendant has shown that the seemingly race-neutral reason or reasons are merely pretextual. Miller-El, 545 U.S. at 252, 125 S.Ct. 2317.

It would be error to conclude from the focus of some cases on the presence or absence of a similarly situated Caucasian juror that the presence of such a juror is necessary to find pretext. Emphasis (sometimes undue) on this single factor seems to have resulted from this Court’s use of the word “crucial” in cases such as Taylor, 18 S.W.3d at 374-75. See State v. Smith, 5 S.W.3d 595, 597-98 (Mo.App.1999); State v. Roberts, 948 S.W.2d 577, 601-02 (Mo.1997); State v. Carter, 889 S.W.2d 106, 108-09 (Mo.App.1994). While Taylor and other cases have turned on the presence of a similarly situated Caucasian juror, see e.g., Miller-El, 545 U.S. at 247, 125 S.Ct. 2317; Edwards, 116 S.W.3d at 525; Parker, 836 S.W.2d at 940; State v. Antwine, 743 S.W.2d 51, 65 (Mo. banc 1987), they have done so under the facts of each case. The lack of a similarly situated Caucasian juror is not dispositive.

Prior cases have identified a non-exclusive list of factors that may be relevant in any particular case. For example, a court also should look at “[t]he degree of logical relevance between the proffered explanation and the case to be tried in terms of the kind of crime charged, the nature of the evidence to be adduced, and the potential punishment if the defendant is convicted.... ” Parker, 836 S.W.2d at 940. The prosecutor’s “patterns of practice,” e.g., questions and explanations and history of pretextual strikes, may be relevant, Miller-El, 545 U.S. at 233-34, 253, 125 S.Ct. 2317; Parker, 836 S.W.2d at 940, as may both the prosecutor’s “demeanor” while engaging with venirepersons, Antwine, 743 S.W.2d at 65, and the demeanor of excluded venirepersons. Parker, 836 S.W.2d at 940. “Objective factors bearing on the state’s motive to discriminate on the basis of race, such as the conditions prevailing in the community and the race of the defendant, the victim, and the material witnesses, are also worthy of consideration.” Id. See also Antwine, 743 S.W.2d at 65.

The prosecutor’s disproportionate number of strikes against other minority venirepersons and/or the number of minority venirepersons remaining after peremptory strikes in the case before the court, is significant. Miller-El, 545 U.S. at 240-41, 125 S.Ct. 2317. Not using every strike against African-Americans or other minorities does not necessarily demonstrate a lack of racial motivation as to the challenged strike or strikes—it merely shows a probability that every strike was not racially motivated.

Similarly, the fact a prosecutor has left one or more than one African-American or other minority on the jury does not insulate the prosecutor from a claim of pretext, nor does the fact that some strikes were used against Caucasian venirepersons or that there was no substantially similar Caucasian juror who was not stricken. Parker, 836 S.W.2d at 940; see State v. Hunter, 802 S.W.2d 201, 203 (Mo.App.1991). Therefore, while some prior cases have found no pretext after noting that a prosecutor failed to use all of his or her “challenges against blacks” as “relevant to show that race was not the motive for the use of peremptory strikes,” State v. Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993); see also State v. Johnson, 207 S.W.3d 24, 37 (Mo. banc 2006), these cases should not be understood to mean that tokenism will protect the prosecutor from a finding of pretext if the prosecutor’s explanations of the challenged strike or strikes indicates pretext or if the disproportionate nature of the strikes does so. See Miller-El, 545 U.S. at 240-41, 125 S.Ct. 2317.

Indeed, “to hold that mere tokenism satisfied Batson would fly in the face of its purpose.” Hunter, 802 S.W.2d at 203. Because equal protection rights extend to excluded venirepersons, see Powers, 499 U.S. at 409-11, 111 S.Ct. 1364, the racial composition of the jury is an ineffective shield against prosecutorial animus if even one venireperson is stricken for racially motivated reasons. Parker, 836 S.W.2d at 940.

Turning to the case at hand, the defense raised a Batson challenge arguing that B.T. had been stricken because he was African-American. As required by Parker and similar cases, the prosecutor then came forward with a reasonably specific and race-neutral reason for the strike, stating that he believed that B.T. had shown initiative by asking about the degrees ' of murder and that his concern about the lesser degrees of murder caused the prosecutor to think that he might be lenient. It was then defendant’s burden “to show that the state’s proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.” Parker, 836 S.W.2d at 939. Accord, Taylor, 18 S.W.3d at 371.

The only grounds for pretext raised by Tyrone below were that B.T. was stricken while a similarly situated Caucasian veni-reperson who asked a question about the death penalty, B.B., was not stricken, and that the prosecutor mistakenly stated that B.T. had initiated the conversation about degrees of murder whereas he was in fact prompted to do so by the prosecutor. This Court does not find the trial court’s rejection of these allegations of pretext was clearly erroneous.

While Tyrone is correct that both B.T. and B.B. asked facially similar questions in response to a query from the prosecutor, the content of their statements varied in substance. When the prosecutor asked the venirepersons whether they could follow the court’s instructions on the difference between first- and second-degree murder, B.T. responded by asking, “... [Wjhen you say degree, what do you mean by that, First Degree, Second Degree?” Not quite understanding the prosecutor’s somewhat obscure initial response, B.T. asked him to clarify it, saying — “I mean, is that like more of a harsher sentence?” This evoked a more detailed response from the prosecutor.

Conversely, when asked whether he had any thoughts about the day before’s questions, B.B. asked:

Yesterday we were talking. And I’m not talking about presumption of innocence here or anything like that. But the State is not asking for the death penalty or it’s been ruled out completely. And I’m trying, in my mind, to justify why if we determine that there was guilt in this case that we wouldn’t be allowed to consider all possible punishment. Not that we would necessarily go for that, but why would we eliminate some of the punishment possibilities from the deliberation?

The prosecutor generally explained why the prosecutor might seek the death penalty in only certain types of murder cases and that the jury would not be involved in sentencing.

As is evident from the nature of B.T.’s and B.B.’s comments, the two are not comparable. While both showed some minor initiative by asking questions regarding punishment (albeit in both cases they did so in response to an invitation from the prosecutor to ask questions), B.T.’s comments showed confusion as to the difference between first-degree murder and lesser degrees of murder. While it is questionable whether this curiosity about the degrees of murder showed a tendency toward leniency as opposed to showing a proper desire to better understand the court’s instructions, it is evident that B.B.’s question about the death penalty tended to show that he was interested in the higher degrees of murder. A reasonable prosecutor may have concluded from these facts that B.B. would be a more favorable juror for the prosecution than would B.T. Apparently, the defense thought so also; it used one of its peremptory strikes to remove B.B. from the jury after the prosecutor struck B.T.

Tyrone did not argue to the trial court that any of the other factors identified in the above cases were present here, and the record does not demonstrate the existence of any of those indicia of pretext. Therefore, nothing in the record shows the prosecutor used inappropriate or subjective grounds such as the excluded venire-person’s demeanor, occupation as a postal worker or similar factors to strike B.T. or other venirepersons. Neither has any evidence been presented that the prosecutor had an inappropriate demeanor, questioned minorities differently than he did Caucasians or had a history of pretextual strikes. While the judge below did find that the prosecutor’s strike of another ven-ireperson was pretextual in this case, the judge also found a strike by defense counsel to be pretextual, and defense counsel did not argue below, nor does he in this Court, that the prosecutor’s strikes constituted a pattern of pretext or a ground for finding pretext as to B.T. This further shows that the trial court understood its obligation to disallow pretextual strikes but did not find the strike of B.T. to be pretextual. In addition, the defense did not claim below, and does not claim in this Court, that the prosecutor used a disproportionate number of strikes against minorities, engaged in mere tokenism or that other objective factors supporting pretext were present.

In sum, for all of the reasons stated above, and giving appropriate deference to the trial judge’s ability to judge the credibility of the prosecutor’s reasons, the trial court did not err in finding that the strike was race-neutral in “light of the totality of the facts and circumstances.” Parker, 836 S.W.2d at 939. This Court is not “left with the definite and firm conviction that a mistake has been made.” McFadden II, 216 S.W.3d at 675.

V CONCLUSION

For all of the reasons stated above, this Court finds that the evidence supported the jury’s finding of deliberation beyond a reasonable doubt and that the trial court did not clearly err in finding that B.T. and B.B. were not similarly situated and that the prosecutor’s strike of B.T. was race-neutral. The judgment is affirmed.

PRICE, C.J., RUSSELL, BRECKENRIDGE and FISCHER, JJ„ concur.

TEITELMAN, J., dissents in separate opinion filed; WOLFF, J., concurs in opinion of TEITELMAN, J.

RICHARD B. TEITELMAN, Judge,

dissenting.

The principal opinion provides an excellent synopsis of the courts’ 130-year struggle to minimize racial bias in jury selection. During this time, the legal standards protecting the right of all jurors to serve gradually have grown more stringent for the simple reason that prior standards fell short. Yet, despite the fact that Batson was decided nearly a quarter century ago, recent cases demonstrate that the bias still exists. Therefore, to this day, prosecutors attempt to justify peremptory strikes of black jurors based on inconsequential matters such as “crazy looking” hair or being employed by the United States Postal Service. The persistence of bias in jury selection demands that the courts continue to enforce the promise of Batson vigorously. This is a close case and, as a result, I would ensure that Bateman’s trial is conducted free of any taint of racially biased jury selection. Therefore, I respectfully dissent from the principal opinion to the extent that it finds no Batson violation with respect to the state’s peremptory strike of B.T.

The principal opinion notes, correctly, that while the presence of similarly situated white jurors is a crucial factor, it is not necessarily dispositive because the proper analysis of a Batson claim requires consideration of the totality of the circumstances. However, after recognizing that Batson requires a multi-factor analysis, the principal opinion focuses almost exclusively on a single factor — the conclusion that the black and white jurors at issue are not similarly situated. By focusing on this single factor, the principal opinion overlooks three suspect aspects of this case that, when considered together, indicate a strong likelihood that the state’s justifications for striking juror B.T. were pretextual.

First, the state struck B.T. for the “sole reason” that B.T. allegedly asked about the different degrees of murder before the prosecutor asked the prospective jurors if they could follow the court’s instructions. According to the state, B.T.’s “initiative” in raising the issue demonstrated that B.T. had a “more lenient bend” on matters of crime and punishment. The record conclusively refutes the factual basis for the prosecutor’s justification. B.T. did not raise the issue on his own initiative; he was responding to a direct question by the prosecutor. In common discourse, few people would be persuaded by an argument premised on inaccurate facts. Therefore, when the factual basis underlying the prosecutor’s explanation of a strike is demonstrably inaccurate, the explanation appears more like an after-the-fact justification.

Second, despite being fully apprised of B.T.’s supposed leniency, the state originally did not strike B.T. from the venire panel. Instead, the state struck B.T. after the trial court sustained Bateman’s Batson challenge to another prospective black juror. The assertion that B.T. may exhibit leniency because he took initiative in asking about degrees of murder was apparently not a concern until the state was unsuccessful in attempting to strike a different black venireperson from the jury. The principal opinion notes this fact but does not account for it in considering the totality of the circumstances of this case. These circumstances detract substantially from the credibility of the state’s explanation for striking B.T.

Finally, the principal opinion notes that the trial court previously rejected an earlier strike as pretextual and that this fact indicates the trial court was not hesitant to invoke Batson. No one is arguing that the trial court was unwilling to follow the law. The trial court’s state of mind is not at issue. What is at issue is the prosecutor’s state of mind; specifically, whether B.T. was stricken because of his race or because of a race-neutral reason that logically is related to assessing the evidence at trial. Accordingly, the fact that the trial court previously sustained a Batson challenge is most relevant to showing that, in this case, the prosecutor demonstrated a tendency to utilize pretextual peremptory strikes.

When the foregoing facts are considered, this Court is left with a factually inaccurate justification for a strike made only after the state unsuccessfully attempted to exercise a pretextual strike against another prospective black juror. Given these circumstances, I conclude that the state’s justification for striking B.T. was pretextual. The Batson violation requires the judgment to be reversed and the case to be remanded.

      . To avoid confusion, this Court refers to both the victim and the defendant by their first names, as both have the last name of Bate-man. No disrespect is intended.

      . For example, a recent study found that after Swain, but before Batson, "a decades-long policy of systematically excluding African Americans from jury service in criminal cases ... was [actually] codified in a training manual" in one Texas county. Equal Justice Initiative at 16. In 1968, a manual containing an article authored by a Texas prosecutor under the direction of his superiors in the district attorney’s office outlined the reasoning for excluding minorities from jury service. The manual, titled "Jury Selection in a Criminal Case” was distributed to prosecutors and remained in circulation until at least 1976. Its use was strongly condemned in Miller-El v. Dretke, 545 U.S. 231, 264, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (finding this manual in use post-Batson).

      . Even after these decisions, however, a recent study by the Equal Justice Initiative reports that peremptory strikes still often are used to remove minorities from jury service. Equal Justice Initiative at 14-18.

      . See note 2.

      . See, e.g., Miller-El, 545 U.S. at 233-34, 240-41, 125 S.Ct. 2317; McFadden I, 191 S.W.3d at 651; Edwards, 116 S.W.3d at 526-28; Parker, 836 S.W.2d at 940; Antwine, 743 S.W.2d at 65.

      . Batson v. Kentucky, 476 U.S. 86 (1987).

      . State v. McFadden, 216 S.W.3d 673, 676 (Mo. banc 2007)(state unsuccessfully justified peremptory strike by noting a prospective juror's “crazy looking red hair”); State v. Edwards, 116 S.W.3d 511, 525-28 (Mo. banc 2003)(state unsuccessfully justified peremptory strike by noting a prospective juror worked for the post office).


source: Caselaw Access Project

author: MICHAEL A. WOLFF, Judge.

license: Public Domain

text:
    STATE ex rel. Dwight LAUGHLIN, Petitioner, v. Michael BOWERSOX, Respondent.
    No. SC 90542.
    Supreme Court of Missouri, En Banc.
    Aug. 23, 2010.
    Rehearing Denied Aug. 26, 2010.

      Ginger Gooch, Husch Blackwell Sanders LLP, Springfield, for Petitioner.
    Andrew W. Hassell, Attorney General’s Office, Jefferson City, for Respondent.

      . Section 12.020, RSMo 2000, provides:
      The jurisdiction of the state of Missouri in and over all land acquired as provided in section 12.010 is granted and ceded to the United States so long as the United States owns the land; except that there is reserved to the state of Missouri, unimpaired, full authority to serve and execute all process, civil and criminal, issued under the authority of the state within the lands or the buildings.
      Current section 12.020 originally was enacted with slightly different language in 1883. See 1883 Mo. Laws 129, section 1.

   MICHAEL A. WOLFF, Judge.

Introduction

Dwight Laughlin was convicted and sentenced to prison in 1993 by the Newton County circuit court for burglary and property damage crimes occurring in the United States post office in Neosho. Under the United States Constitution, if a state cedes jurisdiction over federal property in the state, the United States has exclusive jurisdiction to hear cases involving offenses committed on that federal property.

When the United States acquired the land to build the Neosho post office, the state of Missouri by statute ceded jurisdiction over the land to the federal government. Article I, section 8, clause 17 of the United States Constitution deprives Missouri’s courts of the authority to enforce state laws on this federal property.

Following his conviction, Laughlin filed a Rule 29.15 post-conviction motion, alleging that the circuit court lacked jurisdiction over him. He argued that his crimes occurring in the Neosho post office were within the exclusive jurisdiction of the United States. His claim was denied, and his counsel at the time did not raise the claim on appeal. More than fifteen years later, Laughlin, pro se, petitioned for a writ of habeas corpus. This Court issued a writ of habeas corpus to determine whether the criminal conviction was void because the state court lacked jurisdiction of the subject matter.

The state asserts that the issue of jurisdiction was litigated years ago and that Laughlin is bound by the judgment and by his failure to raise the matter on appeal. In a criminal case in which the court lacked the authority to try the defendant, the defendant’s failure to appeal the issue in the earlier proceeding cannot confer subject matter jurisdiction on a court whose jurisdiction was void from the beginning.

Laughlin is ordered discharged.

Facts and Procedural History

Dwight Laughlin is currently serving an aggregate 40-year sentence for his 1993 convictions for first-degree burglary and first-degree property damage. As to the burglary count, the prosecutor charged that Laughlin “knowingly entered unlawfully in a building, located at 101 E. Hickory, Neosho, Missouri and owned by the United States Postal Service-” As to the property damage count, the prosecutor charged that Laughlin “knowingly damaged a safe, which property was owned by the United States Postal Service.... ” Laughlin also was charged as a prior and persistent offender. A jury found Laugh-lin guilty of the charged crimes, and Laughlin was sentenced to the department of corrections for 30 years on the burglary count and 10 years on the property damage count, with the sentences to be served consecutively.

Laughlin appealed his conviction, and while that appeal was pending, he filed a motion to vacate the judgment pursuant to Rule 29.15. In his Rule 29.15 motion, Laughlin raised the issue of lack of jurisdiction, arguing that “the trial court did not have jurisdiction to try [his] case since it was a federal offense thereby preempting state court jurisdiction.” The Newton County circuit court denied this claim because “[n]o evidence was adduced showing the offense was not a state offense or that the federal government had pre-empted jurisdiction.” Laughlin then appealed the overruling of his Rule 29.15 motion. The court of appeals consolidated Laughlin’s original appeal and the appeal of his Rule 29.15 motion, addressing each appeal separately. See State v. Laughlin, 900 S.W.2d 662, 664 (Mo.App.1995). On appeal of the Rule 29.15 motion, the sole point raised was that Laughlin received ineffective assistance of counsel. His appeal did not raise the issue of jurisdiction, and the court of appeals affirmed the order denying post-conviction relief. Id. at 668.

Laughlin filed a petition for writ of ha-beas corpus challenging the circuit court’s jurisdiction in November 2009. After Laughlin sought relief in the circuit court and in the court of appeals, this Court granted a writ of habeas corpus in March 2010.

The Circuit Court’s Lack of Subject Matter Jurisdiction

Subject matter jurisdiction is the authority of a court to hear and decide a case. Missouri circuit courts have subject matter jurisdiction over criminal cases under article V, section 14 of the Missouri Constitution. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 n. 6 (2009). But no state, including Missouri, can grant subject matter jurisdiction to its courts to hear matters that federal law places under the “exclusive” jurisdiction of the federal courts. Id.

The United States purchased the Neo-sho post office in 1933 and continuously has owned it since then. Under Article I, section 8, clause 17 of the United States Constitution, the United States gains exclusive authority over the land if that jurisdiction is ceded by the state; this provision grants to the federal government:

To exercise exclusive Legislation [i.e., jurisdiction] in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

By enacting section 12.010, RSMo 2000, the state of Missouri consented to the federal government’s purchase of the land to establish and maintain a post office in Neo-sho. Section 12.020, RSMo 2000, granted and ceded jurisdiction over that land to the United States, reserving to the state the right to serve process but not to prosecute crimes committed on the property.

Missouri does not have jurisdiction over land or a building that is under the exclusive jurisdiction of the United States. As James Madison explained in The Federalist No. ⅛3, Article I, section 8, clause 17, in addition to providing for purchase of land for the “seat of government,” also explicitly provided for other land to be purchased for federal purposes for “needful buildings” and that the state in which the land was located had to agree by cession of the land. The necessity for federal jurisdiction of such land and buildings, Madison said, “is not less evident” than the need for federal control of the seat of government. “The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State,” he said. The federal-state, or federalist, principle is preserved by the need for the state’s agreement. “All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.” The Federalist No. 43 (James Madison).

Article I, section 8, clause 17 has since been interpreted by state and federal courts in the manner envisioned by Madison. The United States Supreme Court has noted that a state must cede jurisdiction to the United States for the state no longer to have jurisdiction; it is not enough for the United States simply to purchase land within the state. “The consent of the states to the purchase of lands within them for the special purposes named, is, however, essential, under the constitution, to the transfer to the general government, with the title, of political jurisdiction and dominion,” the Court said in Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 531, 5 S.Ct. 995, 29 L.Ed. 264 (1885). “Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor.” Id. (emphasis added).

The United States Supreme Court has held a state’s cession of jurisdiction does not have to be absolute. See, e.g., Surplus Trading Co. v. Cook, 281 U.S. 647, 652, 50 S.Ct. 455, 74 L.Ed. 1091 (1930) (“[T]he state undoubtedly may cede her jurisdiction to the United States and may make the cession either absolute or qualified as to her may appear desirable, provided the qualification is consistent with the purposes for which the reservation is maintained and is accepted by the United States. And, where such a cession is made and accepted, it will be determinative of the jurisdiction of both the United States and the state within the reservation.”).

“When the United States acquires title to lands, which are purchased by the consent of the legislature within which they are situated, ... the Federal jurisdiction is exclusive of all State authority.” United States v. Unzeuta, 281 U.S. 138, 143, 50 S.Ct. 284, 74 L.Ed. 761 (1930) (emphasis added). “[T]he state may impose conditions which are not inconsistent with the carrying out of the purpose of the acquisition.” Id. Under section 12.020, “the state retained only the right to serve civil and criminal processes within the land.” United States v. Heard, 270 F.Supp. 198, 200 (W.D.Mo.1967). The United States, therefore, has exclusive jurisdiction for all crimes occurring on the Neosho post office’s land. See 21 Am. Jur.2d section 445: Offenses committed within state on land owned by federal government (citing state as well as federal cases, e.g., State v. Mack, 23 Nev. 359, 47 P. 763 (Nev.1897) (holding that the state had no jurisdiction to prosecute crimes where the United States had exclusive jurisdiction); People v. Mouse, 203 Cal. 782, 265 P. 944 (Ca.1928) (same)).

The Federalist No. ⅛3 and these cases make it clear that the state of Missouri could have chosen not to cede criminal jurisdiction to the United States. If the state had not done so, the state of Missouri could prosecute Laughlin for burglary and property damage just as if he had committed his crimes on any other property in the state. See Lowe, 114 U.S. at 531, 5 S.Ct. 995. By enacting section 12.020, however, the state chose to give exclusive federal jurisdiction over the Neosho post office, reserving only the right to serve civil and criminal process. See Heard, 270 F.Supp. at 200. No reservation was made for crimes occurring on the land. Therefore, the state of Missouri had no jurisdiction to prosecute Laughlin in this case.

The state argues that it has jurisdiction over Laughlin because his mens rea to commit his crimes was formed before he stepped onto the Neosho post office’s land and because the results of his crime affected events in the state of Missouri. Section 541.191.1, RSMo Supp.1993, provides:

This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:
(1) Conduct constituting any element of the offense or a result of such conduct occurs within this state....

The state asserts that Laughlin’s possession of the instrumentalities of his crime — ■ a scanner set to the Neosho police frequency, a flashlight, a. crowbar, a pipe wrench, screwdrivers, a hammer and a metal punch — shows that he formed the “knowingly” element of burglary and property damage while in the state of Missouri. But the statute requires “conduct constituting any element of the offense,” and a defendant’s mens rea is not conduct, nor is possession of the instrumentalities of his crime an element of the offense. The state also notes that Laughlin’s crimes resulted in the local police being summoned to the post office to arrest Laughlin and that the burglary would have affected the state of Missouri.

Under the Supremacy Clause of the United States Constitution, no state can enact a law that infringes on the supremacy of the federal government. In this case, the federal government has been given exclusive jurisdiction over the land of the Neosho post office. This jurisdiction extends to all crimes committed on such land. The state’s reading of section 541.191.1 as allowing the state of Missouri to prosecute Laughlin — simply because he may have acquired the instrumentalities of his alleged acts while in Missouri and formed the “knowingly” mens rea to violate the law while in Missouri or because Laughlin’s actions affected the state of Missouri in some way — usurps the federal government’s exclusive jurisdiction of the post office’s land.

A Missouri statute cannot grant subject matter jurisdiction to its courts for cases that are within the exclusive jurisdiction of the federal courts. The circuit court had no jurisdiction to try Laughlin for these crimes.

Laughlin’s Habeas Claim is Not Procedurally Barred

“Relief in habeas corpus is available ‘when a person is held in detention in violation of the constitution or laws of the state or federal government.’ ” State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. banc 2010) (quoting State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001)). Rule 29.15 and Rule 24.035 post-conviction motions for relief are “designed to provide a ‘single unitary, post-conviction remedy, to be used in place of other remedies,’ including the writ of habeas corpus.” Jaynes, 63 S.W.3d at 214 (quoting Wiglesworth v. Wyrick, 531 S.W.2d 713, 715-16 (Mo. banc 1976)) (emphasis omitted). However, subsequent ha-beas relief is not barred when the petitioner can demonstrate:

(1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a) that the procedural defect was caused by something external to the defense — that is, a cause for which the defense is not responsible — and (b) prejudice resulted from the underlying error that worked to the petitioner’s actual and substantial disadvantage.

Zinna, 301 S.W.3d at 516-17 (quoting Brown v. State, 66 S.W.3d 721, 725 (Mo. banc 2002)) (emphasis added).

The state, however, argues that because Laughlin previously raised his jurisdictional claim in a Rule 29.15 motion, he now is barred from bringing his claim through a subsequent petition for habeas corpus. Rule 29.15(b) (1993), however, states that the rule “provides the exclusive procedure by which such person may seek relief in the sentencing court.” (Emphasis added.) This Court is not the sentencing court. Further Rule 91.06, the rule for habeas corpus, allows for a judge to issue a writ of habeas corpus for any person who illegally is confined or restrained of liberty. In this case, Rule 29.15(b) (1993) required that if a Rule 29.15 movant also was seeking an appeal of his or her conviction, then his or her Rule 29.15 motion was required to be filed within 30 days after filing the transcript in the appeal. When Laughlin chose to challenge the circuit court’s judgment during this time period, a Rule 29.15 motion was his exclusive means of relief in the sentencing court at that time. Now that this time period has passed, he may seek a writ of habeas corpus under Rule 91.06 to challenge his illegal confinement under the judgment of a court that lacked subject matter jurisdiction.

The parties do not cite, and the Court is unable to find, any criminal case that has held that the parties in the litigation — the state and its defendant— can confer subject matter jurisdiction on a court that does not have it. If it were otherwise, habeas claims alleging lack of jurisdiction would never be allowed to proceed. Lack of jurisdiction, of course, is precisely what habeas corpus originally was intended to remedy. See Ex parte Kearney, 20 U.S. 38, 7 Wheat. 38, 5 L.Ed. 391 (1822). If a criminal judgment was entered by a court without jurisdiction to do so, such a proceeding always should be found to be void, whether determined on direct appeal or in a habeas proceeding.

Conclusion

Under the applicable law, the Neosho post office is within the exclusive jurisdiction of the United States. Laugh-lin’s previous post-conviction motion on the matter does not preclude him from habeas relief here. A collateral attack of a state court’s subject matter jurisdiction is allowed when the federal courts had exclusive jurisdiction over the matter. No preclusion doctrine can confer jurisdiction on a state court whose judgment was void from the beginning.

Laughlin was convicted by a state court without the jurisdiction to do so. Neither the passage of time nor his previous counsel’s failure to raise the issue in an earlier appeal can suffice to confer jurisdiction on the Newton County circuit court. Laugh-lin is ordered discharged.

All concur.

      . After it issued the writ on Laughlin's pro se petition, this Court appointed Ginger K. Gooch of Springfield to represent Laughlin in this Court. The Court thanks counsel for this pro bono service.

      . Section 12.010, RSMo 2000, provides:
      The consent of the state of Missouri is given in accordance with the seventeenth clause, eighth section of the first article of the Constitution of the United States to the acquisition by the United States by purchase or grant of any land in this state acquired for the purpose of establishing and maintaining post offices....
      Current section 12.010 originally was enacted with slightly different language in 1889. See 1889 Mo. Laws 51, section 39.
      For lands purchased prior to February 1, 1940, the United States is presumed to have accepted jurisdiction. See 40 U.S.C. section 3112(c) (formerly 40 U.S.C. section 255), which sets out a presumption against acceptance of jurisdiction by the United States. However, this statute does not apply to land acquisitions by the United States prior to February 1, 1940. See United States v. Heard, 270 F.Supp. 198, 200 (W.D.Mo.1967) (citing Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264 (1885)) ("Since the lands were acquired by the United States pri-or to February 1, 1940, acceptance of the jurisdiction by the United States is presumed.”).

      . See also Op. Atty. Gen. No. 24, Donnelly, Jan. 19, 1953 (sections 12.010 and 12.020 divest the state of Missouri of jurisdiction of criminal violations occurring on land condemned for purpose of establishing a hospital); Op. Atty. Gen. No. 24, Donnelly, Feb. 20, 1953 (sections 12.030 and 12.040 give the United States exclusive criminal jurisdiction of crimes committed on Weldon Springs area and Synthetic Fuels Demonstration Plant acquired partially by condemnation and partially by purchase); Op. Atty. Gen. No. 93, Waldo, Mar. 6, 1953 (sections 12.030 and 12.040 indicate that the land area embraced by Fort Leonard Wood, including a portion of Highway 17, is under the exclusive criminal jurisdiction of the United States).

      . The Supremacy Clause of the United States Constitution provides:
      This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.
      U.S. Const. Art. VI, cl. 2.

      . Missouri statutes cannot apply in an area under the exclusive jurisdiction of the federal government. If Laughlin’s state of mind was to violate the law, it was to violate federal statutes making it a crime to burglarize and damage federal property. As such, the state's argument, which asserts that Laughlin’s actions while in the state of Missouri constituted at least attempted first degree burglary, also must fail. The federal statutes are 18 U.S.C. section 2115 (1993) (burglary, punishable by up to five years in a federal prison); 18 U.S.C. section 1361 (1993) (federal property damage, punishable by up to one year if the damage is less than $100 and up to ten years in federal prison if the damage exceeds $100).

      . In civil cases, courts have allowed collateral attacks in some cases involving jurisdictional issues but not in others. For example, the United States Supreme Court has allowed a civil state court judgment to be attacked collaterally where a federal court had exclusive jurisdiction over the area. See Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940) (holding that where Congress had given exclusive jurisdiction to a federal bankruptcy court, the state court's judgment in that area is subject to collateral attack). See also 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure sec. 4428 (2d ed. 2002) ("State judgments may prove somewhat more vulnerable than federal judgments to defeat in subsequent federal litigation. So long as the lack of subject-matter jurisdiction is simply a matter of state law, it is clear that a federal court should accord the res judicata effects dictated by state law. Violation of exclusive federal jurisdiction, however, may leave a state judgment vulnerable to collateral attack.”).
      In Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963), the United States Supreme Court held that a state court civil judgment resolving a property dispute between two private parties could not be attacked collaterally by one of the parties who fully had litigated the matter. Durfee involved a fully litigated factual finding by a Nebraska court that it had subject matter jurisdiction because the disputed land was in Nebraska; this finding precluded Missouri courts from considering a collateral attack on the Nebraska court’s jurisdiction on the factual basis that the disputed river-bottom land was in Missouri. This is not an exception that would apply in this case, nor is there any such exception found in criminal cases. Neither Durfee, nor this Court’s decision in Sexton v. Jenkins & Assocs., Inc., 152 S.W.3d 270 (Mo. banc 2004), can be applied to subject matter jurisdiction in criminal cases. Durfee and Sexton were civil cases, where it was appropriate to apply a preclusion doctrine to private parties who had engaged the court system fully on the question of jurisdiction. Laughlin’s case, by contrast, was a criminal case. As between the civil parties, Durfee and Duke, enough is enough. The same cannot be said of Laughlin’s case in which the state is characterizing the feeble attempt by Laughlin's counsel as full and fair litigation of an issue that is not subject to preclusion. The authority of a criminal court to deprive Laughlin of his liberty cannot be granted by a litigant's consent as inferred from his counsel's failure to appeal. Further, the Durfee court recognized the limitations of its decision by noting that any decision a court rendered as between the private parties did not affect any future litigation between the states. Durfee, 375 U.S. at 115, 84 S.Ct. 242 ("Nothing there decided, and nothing that could be decided in litigation between the same parties or their privies in Missouri, could bind either Missouri or Nebraska with respect to any controversy they might have, now or in the future, as to the location of the boundary between them, or as to their respective sovereignty over the land in question.").


author: GARY W. LYNCH, Presiding Judge. PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jason D. OSBORN, Defendant-Appellant.
    No. SD 29677.
    Missouri Court of Appeals, Southern District, Division Two.
    May 14, 2010.
    Motion for Rehearing and Transfer Denied May 27, 2010.
    Motion for Rehearing and Transfer Denied June 4, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Craig A. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Attorney General and Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY W. LYNCH, Presiding Judge.

Jason D. Osborn (“Defendant”) appeals the trial court’s judgment convicting him of three counts of endangering the welfare of a child, pursuant to section 568.045, one count of enticement of a child, pursuant to section 566.151, and two counts of felony murder in the second degree, pursuant to section 565.021. Defendant claims that he was erroneously denied his right to self-representation and that the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence for insufficiency of the evidence as to each count. We affirm in part and reverse in part.

Factual and Procedural Background

We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court’s judgment and disregard all contrary evidence and inferences. State v. Power, 281 S.W.3d 843, 845 (Mo.App.2009). In that light, the following was adduced at trial.

During the relevant time period, May 2003 to August 2003, Defendant was thirty-six years old and an employee at the Beachhouse Café in Rockaway Beach. He is the first cousin of the stepfather of J.S., one of the victims in this case. That spring, J.S. introduced three of his friends — B.B., J.M., and D.R., all of whom are also victims in this case — to Defendant. In May 2003, all four boys were either fourteen or about to turn fourteen.

The first night the boys met Defendant, he asked them to help him clean up at the restaurant; the group cleaned the counters, took out the trash, and crushed some boxes. While in the basement crushing boxes, Defendant “made some pretty vulgar statements” and “kind of spooked” the boys. B.B., in particular, thought that Defendant was “weird” and “perverted.” Yet the group of boys hung around Defendant fairly often that summer, primarily because Defendant bought the boys alcohol, “horny goat weed pills,” and cigarettes. Defendant never imbibed himself, however, and told the boys that he was a preacher. In that regard, Defendant referenced Bible verses that he claimed said “it was okay to be gay or something like that.”

Early in the summer, B.B.’s older brother caught Defendant buying the boys beer. B.B.’s brother and a friend physically pushed Defendant and told him to stay away from the boys, and Defendant “disappeared” for a few weeks. Defendant then resumed hanging around the boys and buying them alcohol.

While hanging out with Defendant, the boys would skateboard and play basketball; Defendant never participated in those activities but would simply watch the boys. Although when in public Defendant would babble and effect a “nervous twitch,” when it was only Defendant and the four boys, Defendant “wasn’t slow[,]” and acted “highly intelligent.”

At some point that summer, B.B. was alone with Defendant, who had offered to drive B.B. to Galena, Missouri, to visit a friend. On the way there, Defendant pulled over at a construction site and offered B.B. “a quantity of money,” somewhere between $150.00 and $200.00, to give B.B. oral sex. B.B. responded that he wanted to leave and that he was “just really scared.” After sitting at the site for ten minutes or so and asking at least once more that he be allowed to give B.B. oral sex, Defendant drove the two of them away from the construction site. The trip then continued as planned.

Also that summer, Defendant asked B.B. and J.M. to take a picture of them with their shirts off, in exchange for a carton of cigarettes. The boys refused to cooperate.

On four or five occasions that summer, Defendant let the boys drive a car. While one of the boys drove, Defendant sat in the front passenger seat of the vehicle, and would “try to grab [the driver’s] legs” and “lean over and try to kiss [the driver.]” The boys would always push Defendant away. When one of the boys was driving, the other boys would sit on the window sills of the car, with their upper bodies outside of the vehicle. Occasionally, other individuals would be hanging around with Defendant, too, but usually it was just Defendant and the four boys. Sometimes, while a boy was driving the vehicle, Defendant would, without explanation or apparent reason, jerk the steering wheel, causing the car to go sideways.

On August 11, 2003, B.B., J.M., and J.S. were hanging out at J.S.’s house in Rocka-way Beach. D.R. had just come to visit when Defendant pulled up in his fíancée’s car and asked the boys to come help him deliver some boxes. Once the boxes had been delivered, Defendant drove the group to Blansit Road, a one-lane, winding dirt road in Taney County. Once at Blansit Road, Defendant pulled off to the side near a bridge and asked the boys if they wanted to drive. At some point that day, all four boys drove the vehicle. During each boy’s turn, he would drive the car straight down Blansit Road and turn around. They never encountered any other cars that day.

While each boy drove, the remaining boys rode either on the hood of the car or on the passenger-side windowsill, with two boys riding on the same windowsill. Defendant never told the boys such activity was dangerous or that they should get down from either location.

When B.B. got behind the wheel for a second time, J.M. was riding on the hood of the car, while J.S. and D.R. were sitting on the passenger windowsill. B.B. drove from the bridge to the end of the road, turned the car around, and began heading back toward the bridge. Defendant told B.B. to “quit driving like a granny.” The ear was traveling around thirty miles per hour. Defendant reached over and grabbed the steering wheel, jerking it to the side. J.M. slid across the hood and fell off the car, landing in the road. The car ran off the road, and the passenger side of the vehicle hit a tree.

B.B. blacked out on impact. When he came to, he was disoriented. He got out of the car and saw J.M. walking down the road, covered in blood. The two boys walked to a nearby creek to wash J.M.’s wounds. At that point, Defendant got out of the car, grabbed something from the trunk, and told B.B. and J.M. that “he wasn’t taking the heat for it.” When B.B. asked Defendant if everyone was alright, Defendant replied that “they were dead.” Defendant then left the scene, heading away from the highway. B.B. finished splashing water on J.M.’s wounds and then ran toward the highway to a nearby construction site for help. From there, B.B. was taken to a store where he called the police. J.M. walked to a nearby swimming hole, and people who were swimming there gave him a ride back to the crash site.

At some point after the crash, but before help arrived on the accident scene, the car caught fire.

Corporal Mark Green of the Missouri State Highway Patrol was the lead investigator for the accident. He arrived on the accident scene just after 3:00 p.m. and saw the car “fully engulfed in flames.” He waited until the fire department extinguished the flames and then approached the vehicle. Once up close, he realized that the bodies of two teenagers were inside. At that point, there were no witnesses or bystanders at the site, so Corporal Green began to piece together what had happened from the accident scene itself. From tire marks, he was able to tell that the car had initially swerved to the right, then to the left, where it partially left the road, and then swerved back to the right, where it left the road completely and hit the tree. From there, the car rotated around and ended up near the creek that bordered Blansit Road. Corporal Green also determined that the car had to be traveling relatively fast, both because of the marks left by the vehicle and because the car had ricocheted off of the tree and across to the creek on the other side of the road.

While Corporal Green was investigating the scene, J.M. returned to the site of the crash. J.M. told Corporal Green what had happened and was taken by ambulance to the hospital. Shortly thereafter, B.B. returned to the scene with his mother and also related to Corporal Green the events leading up to the accident.

It was later determined that, after leaving the scene of the accident, Defendant eventually went to a nearby residence, arriving there some two hours after the crash. The homeowner transported Defendant to Skaggs Hospital. Following his investigation at the accident scene, Corporal Green went to Skaggs to see Defendant. At that point, when asked what had happened, Defendant stated that all he remembered was “waking up in the woods.”

The following day, Corporal Green arrested Defendant at his fíancée’s house. Corporal Green read Defendant his Miranda rights and again asked Defendant what had happened. Defendant again stated that the only thing he remembered was waking up in the woods.

Right after Defendant was released from the hospital, however, Defendant told his fiancée that he and the boys were at a park picking up trash when two of the boys got out of the car, “cold-cocked [Defendant] over the head and [threw him] in the passenger seat of the car[.]” One boy then took the wheel while the other one jumped on the hood of the car and then they crashed.

Following autopsies and examination by a forensic pathologist, the coroner determined that D.R. and J.S. — the two boys who were seated on the passenger windowsill at the time of the crash — both died as a result of blunt trauma injuries to the chest, neck, and head. Although the boys’ bodies sustained serious burns as a result of the car catching fire after the crash — one boy was so badly burned that he was only identified by his wristwateh — the coroner determined that the boys were already dead when the fire erupted. The two deaths were officially ruled to be homicides.

Defendant was charged with three counts of endangering the welfare of a child in the first degree, pursuant to section 568.045, one count each for J.M., J.S. and D.R.; two counts of enticement of a child, pursuant to section 566.151, one count each for J.M. and B.B.; and two counts of murder in the second degree, pursuant to section 565.021, one count each for J.S. and D.R.

On May 30, 2006, Defendant filed a “request to proceed as pro se.” Thereafter, the trial court twice found Defendant incompetent to stand trial, first on November 29, 2006, and again on November 9, 2007. Both determinations were made following competency hearings, the first of which took place on October 16, 2006, and the second on November 2, 2007.

On August 18, 2008, the State filed a motion to proceed. Following a hearing on September 4, 2008, the trial court found Defendant competent to stand trial and set the case for trial the following January.

After a bench trial on January 20 and 21, 2009, at which Defendant was represented by counsel, the trial court found Defendant guilty of all three counts of first-degree child endangerment; one count of enticement of a child, with regard to B.B.; and both counts of felony murder in the second degree. The trial court acquitted Defendant of the enticement-of-a-child charge with respect to J.M. The trial court sentenced Defendant to five years’ imprisonment for each count of child endangerment, five years’ imprisonment for the enticement of a child count, and fifteen years’ imprisonment for each count of felony murder in the second degree. The trial court specified that the five-year sentences were to run consecutively to the fifteen-year sentences.

This appeal timely followed.

Discussion

Defendant raises three points on appeal. We address them in the order presented.

Right to Self-Representation

In his first point, Defendant contends that

[t]he trial court clearly erred in not granting [Defendant’s] requests to represent himself without the court’s determining whether [Defendant] was knowingly and intelligently waiving his right to counsel, because this deprived [Defendant] of his right to conduct his own defense and to represent himself at trial, as guaranteed by the 6th and 14th Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, in that [Defendant] filed an unequivocal, timely request to go pro se, and evidence was adduced from [Defendant] and other witnesses that [Defendant] wanted to represent himself, but the trial court failed to have a hearing on the record concerning [Defendant’s] assertion of his constitutional right to represent himself and never ruled on [Defendant’s] unequivocal request.

We disagree.

A defendant has a constitutional right to represent himself, a right that is “necessarily implied by the structure of the [Sixth] Amendment.” Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This federal right is extended to defendants charged in state courts through the Fourteenth Amendment. State v. Gilmore, 697 S.W.2d 172, 174 (Mo. banc 1985). The right to represent one’s self is not, however, absolute. State v. Parker, 890 S.W.2d 312, 315 (Mo.App.1994). “ ‘[T]he right of self-representation is a qualified right and its exercise is subject to reasonable restrictions designed to further two important considerations: protection of other fundamental rights guaranteed the accused by the Constitution, and protection of the orderly administration of the judicial process.’” Id. at 315-16 (quoting State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173, 187 (1983)). Thus, the exercise of one’s right to self-representation “is conditioned on a knowing and intelligent waiver of the right to counsel.” Parker, 890 S.W.2d at 316 (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). In deciding whether a waiver of counsel has been made knowingly and intelligently — a decision resting soundly within the discretion of the trial court — “a determination must be made as to whether the defendant is mentally competent to understand the ramifications of a waiver.” State v. Blackmon, 664 S.W.2d 644, 648 (Mo.App.1984) (citing State v. Nicolosi, 588 S.W.2d 152, 156 (Mo.App.1979)). Finally, the right to self-representation must be asserted before trial, and the assertion must be both unequivocal and clear. State v. Wilson, 750 S.W.2d 560, 564 (Mo.App.1988).

In the instant case, Defendant filed a request to proceed pro se on May 30, 2006. On October 16, 2006, the trial court held the first of three competency hearings. At that hearing, Defendant orally reiterated his desire to represent himself:

Q. Do you disagree with the doctor’s opinion that you are not competent to stand trial right now?
A. I have no problem over that, I could care less, I just want to be my own attorney.

These are the only assertions by Defendant of his right to self-representation in the record before us.

While a defendant may be mentally competent to stand trial, but not competent to self-represent, see Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 2386, 171 L.Ed.2d 345 (2008); State v. Baumruk, 280 S.W.3d 600, 610 (Mo. banc 2009), Defendant here has failed to cite us to any authority for his implied converse argument that a defendant who is not mentally competent to stand trial may, nevertheless, be mentally competent to self-represent. Contrary to Defendant’s position, Edwards treats mental competency to stand trial as a threshold issue to consideration of a defendant’s mental competency to self-represent at trial. See Edwards, 128 S.Ct. at 2385-87.

According to the Court in Edwards:

The two cases that set forth the Constitution’s “mental competence” standard, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam), and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), specify that the Constitution does not permit trial of an individual who lacks “mental competency.” Dusky defines the competency standard as including both (1) “whether” the defendant has “a rational as well as factual understanding of the proceedings against him” and (2) whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” 362 U.S. at 402, 80 S.Ct. 788 (emphasis added; internal quotation marks omitted). Drope repeats that standard, stating that it “has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” 420 U.S., at 171, 95 S.Ct. 896 (emphasis added).

Id. at 2383. This standard is juxtaposed by the Edwards Court to the “constitutional right to proceed without counsel when” a criminal defendant “voluntarily and intelligently elects to do so” as announced in Faretta. Edwards, 128 S.Ct. at 2383.

The Edwards Court referred to the latter as being “the higher standard at issue here” and referred to Edwards as a “gray-area defendant,” describing a defendant in an area demarcated on one side by having the mental competence to stand trial, and on the other side by having the mental competence to self-represent at trial. Id. at 2385. The Supreme Court further noted that a defendant having the mental competency to stand trial can by definition assist counsel at trial, “yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel.” Id. at 2386. The Court later referenced this dichotomy as “the defendant’s ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.” Id. at 2387 (emphasis added). Finally, as relevant here, the Court observed the following:

An amicus brief reports one psychiatrist’s reaction to having observed a patient (a patient who had satisfied Dusky) try to conduct his own defense: “[H]ow in the world can our legal system allow an insane man to defend himself?” Brief for Ohio et al. as Amici Curiae 24 (internal quotation marks omitted). See Massey [v. Moore], 348 U.S. [105] at 108, 75 S.Ct. 145, 99 L.Ed. 135 [(1954)] (“No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court”). The application of Dusky’s basic mental competence standard can help in part to avoid this result. But given the different capacities needed to proceed to trial without counsel, there is little reason to believe that Dusky alone is sufficient.

Id. Consistent with the analysis in Edwards, we conclude that a trial court’s finding that a defendant is not mentally competent to stand trial in accordance with the basic Dusky standard subsumes the issue of the defendant’s mental competency to knowingly and intelligently self-represent and precludes an affirmative finding on that issue.

In its ruling on November 29, 2006, the trial court found “that Defendant lack[ed] mental fitness to proceed, in that, as a result of mental disease or defect, he lacks the capacity to understand the proceedings against him or to assist in his own defense.” This finding has not been challenged by Defendant in this appeal. Contrary to Defendant’s contention otherwise and for the reasons discussed previously, this finding also implicitly includes a determination that Defendant lacks the mental competency to knowingly and intelligently self-represent.

Defendant argues that even though the trial court held a hearing on his mental competence and found him mentally incompetent to stand trial at that time, it was, nevertheless, required to conduct a separate hearing specifically directed toward determining whether Defendant was able to execute an intelligent and voluntary waiver of counsel. In support of this contention, Defendant cites us to Rodriguez v. State, 982 So.2d 1272 (Fla.App.2008). Defendant, however, misreads the nature of the Rodriguez ruling and its application to the instant case. In Rodriguez, the defendant made an oral statement in court the morning his trial was set to begin that “[he would] prefer to represent [him]self.” Id. at 1273. The trial court simply denied his “request” without adducing any relevant information from the defendant. Id. The Florida Third District Court of Appeal held the trial court in error for failing to conduct a “Faretta inquiry” to determine the defendant’s ability to “knowingly and intelligently waive[ ] his constitutional right.” Rodriguez, 982 So.2d at 1274.

Unlike in Rodriguez, here the Defendant’s request to proceed pro se was filed with the court well in advance of any courtroom proceedings, and after the motion was filed the trial court conducted a competency hearing, which inquired into the mental status of Defendant, including his mental competency to knowingly and intelligently self-represent. We have found no authority, and Defendant has cited us to none, mandating a separate, distinct hearing be held strictly to ascertain if a defendant is mentally capable of waiving his right to the assistance of counsel at a time when the court also has before it the issue of a defendant’s mental incompetency to stand trial and decides that issue adversely to a defendant. Moreover, even if the ruling in Rodriguez was binding on this Court, rather than merely persuasive, the competency hearing held on October 16, 2006, for the reasons discussed previously, was an adequate inquiry into Defendant’s mental competency to waive his right to counsel and satisfied the hearing requirement in Rodriguez.

Defendant’s two requests to proceed pro se were appropriately subsumed in and denied by the trial court’s November 29, 2006, commitment order finding that Defendant was mentally incompetent to stand trial. After Defendant was later found competent to stand trial on September 4, 2008, he did not make any request to self-represent or for reconsideration of his previous requests to proceed pro se. Without such action, the trial court properly proceeded under the assumption that Defendant either acquiesced with the trial court’s previous determination that he was mentally incompetent to stand trial and, thus, lacked the mental competence to self-represent, or after becoming mentally competent to stand trial, Defendant knowingly and intelligently decided to proceed with the assistance of counsel. Defendant’s first point is denied.

Sufficient Evidence that Defendant Knew Victims were Under Seventeen

In his second point, Defendant contends that the trial court erred in overruling his motion for acquittal at the close of all the evidence because the State did not present sufficient evidence to demonstrate that Defendant knew J.M., J.S., and D.R. were under the age of seventeen, which is one of the elements of endangerment of the welfare of a child in the first degree. Thus, Defendant argues that his three convictions of first-degree child endangerment should be reversed. Furthermore, Defendant asserts that, if his three convictions for first-degree child endangerment are overturned, his two convictions of felony second-degree murder as to J.S. and D.R. must also be reversed, as those two convictions were premised on the underlying felony of child endangerment. We disagree.

“In reviewing a challenge to sufficiency of the evidence, this Court 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 standard of review in a bench-tried case is the same as in a jury-tried case.” State v. Burse, 231 S.W.3d 247, 251 (Mo.App.2007). We accept as true any and all evidence and inferences supporting the trial court’s decision and reject all evidence and inferences to the contrary. State v. Hall, 201 S.W.3d 599, 602 (Mo.App.2006). We will affirm the trial court’s judgment if any substantial evidence supports the trial court’s findings. State v. Adams, 163 S.W.3d 35, 36-37 (Mo.App.2005).

Section 568.045 provides that “[a] person commits the crime of endangering the welfare of a child in the first degree if ... [t]he person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old[.]” Section 568.045.1(1). There are, thus, four elements the State must prove in order to convict a defendant of first-degree child endangerment: “(1) the defendant engaged in conduct, (2) in so doing, the defendant created a substantial risk to the life, body, or health of a child, (3) the victim was less than seventeen years old, and (4) the defendant acted knowingly with respect to the facts and circumstances.” State v. Short, 186 S.W.3d 828, 830-31 (Mo.App.2006). This means that a defendant must actually be aware that the child involved is under the age of seventeen. See State v. Hopkins, 873 S.W.2d 911, 912 (Mo.App.1994) (requiring a showing that the defendant knew the victim was under seventeen for second-degree child endangerment). As it is difficult to acquire direct evidence of the requisite state-of-mind of a defendant, it is permissible to infer a defendant’s knowledge of the age of a victim from indirect and circumstantial evidence. State v. Gaver, 944 S.W.2d 273, 277 (Mo.App.1997).

The State presented the following evidence at trial relevant to Defendant’s knowledge that J.M., J.S., and D.R. were less than seventeen: Defendant was related to J.S.’s step-father; Defendant spent a total of approximately four months interacting with the boys; Defendant purchased alcohol and cigarettes for the boys; Defendant allowed the boys to drive his car in unpopulated areas; and Defendant had an altercation with B.B.’s older brother, during which the brother confronted Defendant about buying the boys alcohol. In addition, the latest school pictures of J.S. and D.R. were both received into evidence without objection.

While this evidence is the basis for the trial court’s and this Court’s consideration of the totality of the circumstances, we think it is particularly important to note that Defendant allowed the boys to drive in secluded unpopulated places. Such action gives rise to a reasonable inference that Defendant not only knew that the boys did not have driver’s licenses, but also, coupled with the significant amount of time he spent with them during that summer, that they were not eligible to get licenses as they were under the age of sixteen. See 302.060, RSMo 2000.

Moreover, the appearances of J.S. and D.R. in their latest school pictures, as they would have appeared to Defendant, provided the trial court vital information in drawing an inference as to Defendant’s knowledge that they were under the age of seventeen. Yet, these exhibits were not deposited with this Court and made a part of the record in accordance with Rule 30.05 or this Court’s special rule 4, which provides, in part, that “[a]n appellant is responsible for ensuring that all exhibits necessary for the determination of any point relied on are deposited or filed with the Court.” “Defendant had the duty to ‘file a complete record including all evidence necessary to determine all questions presented to this Court for review.’ ” State v. Tanner, 220 S.W.3d 880, 883 (Mo.App.2007) (quoting State v. Morin, 873 S.W.2d 858, 867 (Mo.App.1994)). In the absence of these exhibits in the record, this Court infers that these pictures would be favorable to the trial court’s denial of Defendant’s motion for judgment of acquittal and unfavorable to Defendant’s insufficiency-of-the-evidenee argument. State v. Brumm, 163 S.W.3d 51, 56 (Mo.App.2005).

From the totality of the above-described circumstantial evidence, the trial court could have reasonably inferred that Defendant knew J.M., J.S., and D.R. were under seventeen years of age. State v. Nations, 676 S.W.2d 282 (Mo.App.1984), cited by Defendant, is easily distinguishable in that the defendant in that case had only known the sixteen-year-old victim for less than a day. Id. at 285. Likewise, State v. Hopkins, 873 S.W.2d 911 (Mo.App.1994), also cited by Defendant, provides Defendant no aid. In Hopkins, there was no evidence that the defendant had known the victim for any longer than the day in question nor was there any evidence of victim’s appearance on that day. Id. at 912. Defendant’s second point is denied.

Insufficient Evidence Presented that Defendant Knew B.B. was Under Fifteen

In his final point, Defendant claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence for the count of enticement of a child involving B.B. because the State presented insufficient evidence that Defendant knew B.B. was under fifteen years of age. As such, Defendant argues that his conviction of enticement of a child must be reversed. We agree.

A person at least twenty-one years of age or older commits the crime of enticement of a child if that person persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the Internet or any electronic communication, any person who is less than fifteen years of age for the purpose of engaging in sexual conduct.

Section 566.151.1. Although the statute itself does not contain a requirement that a defendant know that his victim is under the age of fifteen, the State acknowledges and concedes that the approved jury instruction pertinent to this charge provides that, to be found guilty, a defendant must have (1) known or been aware that the victim was under fifteen, or (2) intended to pursue sexual conduct with a person under fifteen. MAI-CR 3d 320.37. The State does not argue that this instruction inaccurately reflects the elements of this offense.

The State’s response to Defendant’s claim on this issue is to “incorporate[ ] the relevant portions of that evidence and argument [presented on Point II] into this Point.” Its argument on Point II, however, only addresses the issue as to whether Defendant knew that J.M., J.S., and D.R. were under the age of seventeen and does not address how that evidence supports that Defendant knew B.B. was under fifteen years of age or that Defendant intended to engage in sexual conduct with a person under fifteen.

The crux of the State’s argument in the preceding point, and that which convinced this Court that Defendant knew the boys were under seventeen years of age, is that Defendant used cigarettes, alcohol, and, most importantly, driving to bribe the boys to spend time with him. Each of these activities has a required minimum age, the lowest of which is sixteen for driving. As discussed in the preceding point, by allowing the boys to drive his car in the manner as previously described, it is reasonable to infer that Defendant knew the boys were under sixteen years of age and thus could not drive on their own. Knowing that the boys could not legally drive has no bearing, however, on whether Defendant knew that B.B. was under fifteen years of age.

A review of the record in this case finds it lacking any evidence whatsoever aimed at demonstrating that Defendant knew B.B. was under fifteen, or that Defendant had a general intent to engage in sexual conduct with someone under fifteen. Furthermore, the difference between fourteen and seventeen is much more significant

than that between fourteen and fifteen, and both fourteen- and fifteen-year-olds are equally unable to legally drive. Thus, omitting the driving evidence from the circumstantial-evidence analysis as discussed in the preceding point and noting the lack of any evidence of B.B.’s appearance on the date in question, see Hopkins, 873 S.W.2d at 912, we conclude that the remaining circumstantial evidence — Defendant was related to J.S.’s step-father; Defendant spent a total of approximately four months interacting with the boys including B.B.; and Defendant had an altercation with B.B.’s older brother, during which the brother confronted Defendant about buying the boys alcohol — is insufficient to support a reasonable inference that Defendant knew that B.B. was under fifteen years of age or that Defendant had an intent to engage in sexual conduct with someone under fifteen. Defendant’s third point is granted.

Decision

The trial court’s judgment as to Count V convicting Defendant of enticement of a child is reversed, but in all other respects, the judgment is affirmed.

SCOTT, C.J., and RAHMEYER, J„ concur.

ON MOTION FOR REHEARING OR TRANSFER TO THE SUPREME COURT

PER CURIAM.

In its motion for rehearing or to transfer to the Supreme Court of Missouri, the State argues for the first time that MAI-CR 3d 320.37 does not accurately reflect the elements of the enticement of a child offense, as provided in § 566.151. The State claims that § 566.020.3 shifts the burden of proof on the issue of a defendant’s knowledge of a person’s age from the State to the defendant as an affirmative defense to be raised by the defendant on an offense under § 566.151. The State’s argument assumes, without any explanation or citation to relevant legal authority, that the provisions of § 566.020.3 directed toward the criminality of conduct depen-dant “upon a child being under seventeen years of age,” subsumes the conduct proscribed under § 566.151 related to “any person who is less than fifteen years of age.”

While we question the State’s assumption, we need not address it because “[respondents in motions for rehearing or to transfer will not be heard on afterthoughts nor on propositions or complaints concerning the disposition of original appeals which were not raised or made in their briefs.” State v. Oliver, 520 S.W.2d 99, 101-02 (Mo.App.1975) (citing Ackerman v. Globe-Democrat Publishing Co., 368 S.W.2d 469, 480(12) (Mo.1963), cert. denied, 375 U.S. 949, 84 S.Ct. 353, 11 L.Ed.2d 276 (1963)). The State’s motion is denied.

      . All references to section 568.045 are to RSMo Cum.Supp.2003.

      . All references to section 566.151 are to RSMo Cum.Supp.2002.

      . All references to section 565.021 are to RSMo 2000.

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

      . On Defendant’s motion, venue was moved from Taney County to Wright County.

      . Section 566.020, RSMo 2000, provides:
      1. Whenever in this chapter the criminality of conduct depends upon a victim's being incapacitated, no crime is committed if the actor reasonably believed that the victim was not incapacitated and reasonably believed that the victim consented to the act. The defendant shall have the burden of injecting the issue of belief as to capacity and consent.
      2. Whenever in this chapter the criminality of conduct depends upon a child being thirteen years of age or younger, it is no defense that the defendant believed the child to be older.
      3.Whenever in this chapter the criminality of conduct depends upon a child being under seventeen years of age, it is an affirmative defense that the defendant reasonably believed that the child was seventeen years of age or older.