author: LISA WHITE HARDWICK, Judge.

text:
    In re: Matthew D. HORNING, Appellant, v. Daniel WHITE, Prosecuting Attorney of Clay County, Respondent.
    No. WD 71206.
    Missouri Court of Appeals, Western District.
    June 22, 2010.

      Abe Shafer, V. Esq., Weston, MO, for appellant.
    Christina M. Lloyd, Esq., Liberty, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   LISA WHITE HARDWICK, Judge.

Matthew Horning appeals the denial of his petition to remove his name from the sexual offender registry. Horning contends the circuit court erred in applying the burden of proof under the sexual offender registry statute, Section 589.400.9, and abused its discretion in finding that he failed to prove a key element of his claim. For reasons explained herein, we find no error and affirm the circuit court’s judgment.

Factual and Procedural History

On January 27, 2009, Horning petitioned the circuit court to remove his name from the sexual offender registry pursuant to Section 589.400.7. At a hearing on the petition, Horning presented testimony from himself, his business coach, his fian-cée, and a letter from his psychotherapist.

Horning testified that he pled guilty to second-degree statutory rape on May 9, 1996, and was sentenced to five years of probation. He was twenty-four years old at the time of his offense, and the victim was thirteen years old. Horning did not otherwise know the victim, who was a friend of the family from which he rented a room.

Horning was required to register as a sexual offender in January of 1999 and thereafter complied with all registration requirements. Since the 1996 conviction, he has not been convicted of any other misdemeanors or felonies. Horning successfully completed probation in May of 2001, which required him to attend several counseling programs over a two-and-a-half-year period.

Horning testified that he is self-employed as a computer consultant. On his own accord, he began psychotherapy in 2005 with Mark McGonigle, a licensed clinical social worker, to further his business prospects.

Sherry Moertko, a licensed business coach, has worked with Horning since 2004. She testified that Horning’s computer consultant job requires him to meet with customers in their businesses and homes to assist with their computer needs. Moertko has never seen Horning act inappropriately, but she also has not seen him interact with young women. Moertko does not have any children of her own.

Isadora Chandra testified that she is Horning’s fiancée and has lived with him for approximately one year. During their nearly two-year relationship, Chandra has not seen Horning do anything that would cause her to believe he was a threat to society. Chandra does not have any children of her own.

Horning submitted to the court a letter from his psychotherapist, Mark McGoni-gle. McGonigle wrote that Horning demonstrates excellent insight into his past offense and has developed habits that amount to preventative strategies. He opined that Horning’s offense occurred during a time of intense personal struggle and was merely an example of poor decision-making brought on by extreme emotional stress. McGonigle concluded that Horning is currently stable and has “greatly reduced the risk of relapse by his participation in treatment and achievement of personal and therapeutic goals.”

Following the hearing, the circuit court entered a judgment denying Homing’s request to remove his name from the sexual offender registry. The court found that while Horning had demonstrated a reduced risk of relapse, he failed to prove that he is not a “potential threat to public safety” as required by Section 589.400.9(1).

Horning filed a motion to vacate the judgment and alternatively requested rehearing. The circuit court granted a hearing to allow the presentation of additional evidence. Horning submitted a second letter from McGonigle stating that “Horning does not currently present a threat to society.” The court also heard testimony from McGonigle, who opined that while it would be impossible to say Horning has zero risk of recidivism, he falls into the category of offenders who have the very lowest risk of reoffending. McGonigle acknowledged that such risk assessments are “often inaccurate.” He therefore declined to offer an opinion as to whether Horning is a potential threat to society.

On July 15, 2009, the circuit court denied the motion to vacate the judgment. Horning appeals the denial of his petition.

Standard of Review

On appeal of a bench trial, we must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “All evidence favorable to the judgment and all inferences to be drawn from the evidence are accepted as true, and all contradictory evidence is disregarded.” Underwood v. Hash, 67 S.W.3d 770, 774 (Mo.App.2002). We defer to the trial court’s determination of the credibility of witnesses and the weight to be given to their testimony. Murphy v. Holman 289 S.W.3d 234, 237 (Mo.App.2009). “The trial court may believe all, part, or none of any witness’s testimony.” Ortmann v. Dace Homes, Inc., 86 S.W.3d 86, 89 (Mo.App.2002).

Analysis

Statutory Burden of Proof

In Point I, Horning contends the circuit court erred in denying his request to remove his name from the sexual offender registry because it incorrectly applied the burden of proof under Section 589.400.9(1). Specifically, he argues the court misapplied the law in requiring him to prove each element of the statute by a preponderance of the evidence.

Pursuant to Section 589.400.7, a person convicted of second-degree statutory rape may file a petition in the civil division of the circuit court for the removal of his or her name from the sexual offender registry after ten years have passed from the date he or she was required to register. The court may grant relief “if such person demonstrates to the court that he or she has complied with the provisions of this section and is not a current or potential threat to public safety.” § 589.400.9(1).

Horning argues the word “demonstrate,” as used in Section 589.400.9(1), means the movant need only meet a burden of production for each element and not a burden of persuasion. He contends there is no implicit requirement in the term “demonstrate” that a movant must persuade the trial court that he is not a current or potential threat to public safety. Horning asserts his proffered construction of the statute is most reasonable because it would be impossible for any petitioner to prove he would never pose a threat to public safety in the future.

“The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning.” In re Boland, 155 S.W.3d 65, 67 (Mo. banc 2005). Statutory construction should be reasonable and logical. Id.

Based on the plain language of Section 589.400.9(1), we disagree with Horning’s contention that the statute merely imposes a burden of production on a movant seeking to remove his name from the sexual offender registry. Horning’s interpretation of the term “demonstrate” is inconsistent with common usage and unsupported by any reference to authority. The American Heritage Dictionary of the English Language, 484 (4th ed.2006) defines “demonstrate” as: “1: To show clearly and deliberately; manifest; 2: To show by true reasoning or adducing evidence; prove[.]” Random House Webster’s Unabridged Dictionary 530 (2nd ed.2001) provides a similar definition: “to make evident or establish by arguments or reasoning; prove[.]” These definitions indicate that “demonstrate” means more than merely presenting evidence. The term connotes the need to present evidence or reasoning as a means of clearly and deliberately establishing a fact or proposition. By requiring a movant to demonstrate eligibility for removal from the sexual offender registry, Section 589.400 imposes a burden of persuasion on the movant to prove that he has complied with the statutory provisions and that he is not a current or potential threat to public safety.

“The general standard of proof for civil cases is preponderance of the evidence.” Bonney v. Envtl. Eng’g, Inc., 224 S.W.3d 109, 120 (Mo.App.2007). “When the legislature is silent as to the standard of proof to be applied in a statutorily created cause of action, this is regarded as a signal that the legislature intended for the preponderance of evidence standard to apply.” Martinez v. State, 24 S.W.3d 10, 20 n. 10 (Mo.App.2000). To satisfy the preponderance standard, a party has the burden of proving that “a proposition is more likely true than not.” See Morgan v. State, 272 S.W.3d 909, 912 (Mo.App.2009). As further explained in State Board of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo.App.2000) (internal quotation marks omitted):

‘Preponderance of the evidence’ is defined as that degree of evidence that is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows the fact to be proved to be more probable than not.

Section 589.400 gives rise to a civil action to which the preponderance of the evidence standard applies. Contrary to Horning’s argument, this standard does not impose an impossible burden of proving that he would never be a threat to public safety in the future. Under the preponderance standard, Horning was only required to prove that it is more probable or more likely true than not that he is not a potential threat to public safety. The circuit court properly applied this standard in determining that Horning failed to meet his burden of proof under the statute to remove his name from the sexual offender registry. Point I is denied.

Abuse of Discretion

In Point II, Horning contends the circuit court abused its discretion in denying his petition because the decision is against the logic of the circumstances. The court ruled that Horning failed to prove he was not a potential threat to public safety, as required by Section 589.400.9(1). Horning argues he presented ample evidence to prove this element of his claim, and the State did not present evidence to the contrary.

Section 589.400.9(1) provides that a circuit court “ ‘may’ grant a petition to remove a name from the sexual offender registry if the movant demonstrates compliance with the statute and that he is not a current or potential threat to public safety.’ ” The use of the term “may” in a statute “implies alternate possibilities and grants the ones to whom power is conferred discretion in exercising that power.” M.G. v. G.M.B., 897 S.W.2d 218, 220 (Mo.App.1995). In an appeal asserting an abuse of discretion, we will reverse only upon a showing that the trial court’s decision “is so arbitrary, unreasonable, and clearly against the logic of the circumstances that it shocks the sense of justice and shows a lack of careful consideration.” Bussen v. Bussen, 273 S.W.3d 90, 92 (Mo.App.2008).

The record reflects that in addition to his own testimony, Horning presented testimony from his business coach, his fian-cée, and his psychotherapist in support of his petition. The State cross-examined each of the witnesses and made substantial efforts to refute Horning’s allegation that he was not a potential threat to public safety.

Horning initially testified that since 2005 he had attended more than fifty psychotherapy sessions with Mark McGonigle to “work through problems and issues.” Although the line of questioning suggested that Horning sought counseling regarding his sexual offense, he acknowledged on cross-examination that the purpose of the sessions was to “improve [his] business” as a computer consultant. Horning further admitted that he did not “concentrate” on his “past crime” during the many sessions with McGonigle, and he did not seek therapy in regard to his crime or past conviction. Based on this testimony, the court could reasonably conclude that Horning had not received specific counseling or treatment regarding his sexual offense since he was released from probation in 2001.

Direct examination testimony from Horning’s business coach and his fiancé established that neither witness had seen him act inappropriately or do anything to indicate that he was a threat to society. On cross-examination, Sheryl Moertko acknowledged that she only interacted with Horning in a business setting and had never seen him interact with young women. Moertko had no children of her own, much like Isadora Chandra, Horning’s fi-ancée with whom he lived in a childless home. Viewed in a light most favorable to the judgment, the testimony of Moertko and Chandra established only that they had no reason to believe Horning was a current threat to society.

Horning presented a letter and testimony from McGonigle regarding his psychotherapy treatment. McGonigle stated that Horning “currently is emotionally stable, has healthy self esteem, is successfully managing his business, and is engaged to be married in a healthy and satisfying relationship.” He further opined that “Horning has greatly reduced the risk of relapse by his participation in treatment.” But McGonigle acknowledged that such risk assessments are often inaccurate and declined to offer an opinion as to whether Horning is a potential threat to society. McGonigle only concluded that Horning is not “presently” a threat to public safety.

As discussed above, Horning was required to prove his claim under Section 589.400.9(1) by a preponderance of the evidence. Although Horning presented sufficient evidence to show that he is not a current threat to society, the record indicates he failed to meet the additional burden of proving that he is not a potential threat to society. Accordingly, the circuit court did not abuse its discretion in denying Horning’s petition to remove his name from the sexual offender registry. Point II is denied.

Conclusion

We affirm the circuit court’s judgment.

All Concur.

      . All statutory references are to the Revised Missouri Statutes 2000, as updated by the Cumulative Supplement 2009.

      . Section 589.400.7 only applies to convictions for second-degree rape that did not involve “physical force or threat of physical force.”


source: Caselaw Access Project

author: JOSEPH M. ELLIS, Judge.

license: Public Domain

text:
    Brian COLLAR, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
    No. WD 71362.
    Missouri Court of Appeals, Western District.
    June 22, 2010.

      Caroline M. Coulter, for Appellant.
    Brian Collar, pro se.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   JOSEPH M. ELLIS, Judge.

On April 4, 1983, Brian Collar was sentenced by the Circuit Court of St. Louis County to six concurrent terms of seventeen years imprisonment for offenses committed in St. Louis County. On September 17, 1987, he was released on parole.

On January 5, 1989, Collar was arrested and charged with six counts of robbery and six counts of armed criminal action related to crimes committed in St. Louis City. Collar remained in jail awaiting trial until his parole on the St. Louis County sentences was revoked on April 24, 1989, and he was returned to the custody of the Missouri Department of Corrections.

On October 4, 1989, Collar pled guilty to the six counts of robbery and six counts of armed criminal action in the Circuit Court of the City of St. Louis. The court sentenced him to twelve concurrent terms of 30 years imprisonment on those counts. The judgment reflected that those sentences were to run concurrent to a federal sentence but made no mention of the sentences imposed by the county. Subsequently, on April 27, 1990, as a result of a stipulation by defense counsel, the State, and the plea judge, the circuit court entered a “Corrected Sentence and Judgment” reflecting that Collar’s city sentences were also to be served concurrently with his county sentences.

After discovering that the Department of Corrections was denying him credit against his thirty-year sentences for the time he spent imprisoned between April 24, 1989, and October 27, 1990, Collar filed a petition in the Circuit Court of Cole County seeking a declaratory judgment stating that he was entitled to such credit. After the Department of Corrections filed its answer, Collar filed a motion for judgment on the pleadings which was ultimately granted by the trial court. The Department of Corrections brings two points on appeal.

“The party moving for judgment on the pleadings admits the truth of the well-pleaded facts in the opposing party’s pleadings for the purposes of the motion.” Dworaczyk v. Missouri Dep’t of Corrections, 250 S.W.3d 436, 438 (Mo.App. W.D. 2008). “A trial court properly grants a motion for judgment on the pleadings if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law.” Id. (internal quotation omitted). “When reviewing a judgment on the pleadings in favor of the plaintiff, we look to the defendant’s answer.” Garr v. Missouri Bd. of Probation & Parole, 211 S.W.3d 191, 192 (Mo.App. W.D.2007). We accept the facts pleaded in the answer as true and view them in the light most favorable to the defendant. Armstrong v. Cape Girar-deau Physician Associates, 49 S.W.3d 821, 824 (Mo.App. E.D.2001). We will affirm the grant of judgment on the pleadings “where, holding all facts alleged in the opposing party’s petition as true, the moving party was entitled to judgment as a matter of law.” Wallingford v. Missouri Dep’t of Corrections, 216 S.W.3d 695, 696 (Mo.App. W.D.2007).

In its first point, the Department of Corrections claims the trial court erred in declaring that Collar was entitled to credit against his city sentences for the 163 days he spent in prison between the date his parole was revoked on the county sentences and the date he entered his plea and was convicted on the city counts. In this regard, the Department is correct.

“[A] prisoner may bring a declaratory judgment action regarding entitlement to a credit for jail time under § 558.031.” Stinson v. Sharp, 80 S.W.3d 852, 854 (Mo.App. S.D.2002). Section 558.031, RSMo 1986, was the jail time credit statute in effect at the time Collar’s offenses were committed and, therefore, is the statute that must be considered in relation to his claim. Belton v. Moore, 112 S.W.3d 1, 2 n. 3 (Mo.App. W.D.2003) (noting that the statute to be applied in a jail time credit challenge was the one in effect at the time of the offense). That statute provided:

A person convicted of a crime in this state shall receive as credit toward service of a sentence of imprisonment all time spent by him in prison or jail both while awaiting trial for such crime and while pending transfer after conviction to the department of corrections or the place of confinement to which he was sentenced. Time required by law to be credited upon some other sentence shall be applied to that sentence alone, except that
(1) Time spent in jail or prison awaiting trial for an offense because of a detainer for such offense shall be credited toward service of a sentence of imprisonment for that offense even though the person was confined awaiting trial for some unrelated bailable offense; and
(2) Credit for jail or prison time shall be applied to each sentence if they are concurrent.

§ 558.031.1, RSMo 1986. Collar claimed in his motion that this second exception should apply since he was ultimately sentenced to serve his city sentences concurrently with the county ones.

“Where sentences imposed at different times or for different periods of time run concurrently, the sentences run together during the time that the periods overlap.” Mudloff v. Missouri Dep’t of Corrections, 53 S.W.3d 145, 150 (Mo.App. W.D.2001) (internal quotation omitted). An inmate “is not entitled to credit on the later sentence for the period served prior to such sentence, particularly where the sentences are imposed by different courts in different jurisdictions.” Id. (internal quotation omitted). For this reason, our courts have held that “under § 558.031(2) a defendant [is] not entitled to credit on a concurrent sentence that would give him credit for time spent in custody on an unrelated sentence prior to the imposition of the sentence for which credit was sought.” Id.; see also Roy v. Missouri Dep’t of Corrections, 23 S.W.3d 738, 745 (Mo.App. W.D.2000). Accordingly, the judgment must be reversed to the extent it affords Collar credit for the 163 days he spent in prison between the date his parole was revoked on the county sentences and the date he was convicted on the city counts.

In its second point, the Department claims that the trial court erred in concluding that Appellant was entitled to credit against the sentence entered on the city counts for the 204 days he spent in prison from the date of the initial sentencing on those counts until the date the corrected judgment was entered on April 27, 1990. The Department claims that, because the sentences were not made concurrent until the corrected judgment was entered, Collar was only serving time on the county counts during that period.

The relevant statutory language is found in § 558.031.3, RSMo 1986, which provided: “If a sentence of imprisonment is vacated and a new sentence is imposed on the defendant for the same offense, the new sentence is calculated as if it had commenced at the time the vacated sentence was imposed, and all time served under the vacated sentence shall be credited against the new sentence.” The Department argues that Collar did not serve any time on the initial sentence because it was deemed to be consecutive to the county sentences until the corrected judgment was entered.

In making this argument, the Department chooses to ignore the language requiring that the new sentence be “calculated as if it had commenced at the time the vacated sentence was imposed.” Based upon this language, Collar was entitled to receive credit against his city sentences from the date of his original sentencing onward. See Pettis v. Missouri Dep’t of Corrections, 275 S.W.3d 313, 319 (Mo.App. W.D.2008) (noting that under the pre-1995 version of § 558.031.3, “the concurrency of [the inmate’s] corrected sentence would be calculated as if it had commenced at the time his vacated consecutive sentence was imposed ... consequently requiring [the inmate] to receive credit during the time of his appeal”). Point denied.

For the forgoing reasons, the judgment is reversed to the extent it declares that Collar should be credited for the 163 days he spent in prison between the date his parole was revoked on the county sentences and the date he was convicted on the city counts. In all other respects, the judgment is affirmed.

All concur.

      . Collar was credited by the Department with the time he spent in jail from the time of his arrest on the city charges until the date his parole was revoked on the count sentences.


author: PER CURIAM.

text:
    Charlie SEALS, Appellant, v. CL SMITH COMPANY and Division of Employment Security, Respondents.
    No. ED 94186.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Charlie Seals, St. Louis, MO, pro se.
    Ninion Riley, Division of Employment Security, Jefferson City, MO, for respondents.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Charlie Seals (“Employee”) appeals pro se from the Labor and Industrial Relations Commission’s (“Commission”) decision finding that he was disqualified for unemployment compensation benefits. On appeal, Employee contends that the Commission erred in finding that he left work voluntarily without good cause.

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

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


text:
    Jose BORJA, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94072.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 22, 2010.
    Lisa Stoup, St. Louis, MO, for Appellant.
    Chris Foster, Terrence M. Messonnier, Jefferson City, MO, for Respondent.
    Before KENNETH M. ROMINES, C.J., ROY L. RICHTER, J., and THOMAS J. FRAWLEY, Sp. J.
   ORDER

PER CURIAM.

Jose Borja appeals the motion court’s denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Christopher DOREY, Appellant, v. Randy SIEMS, Respondent.
    No. ED 93888.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Steve Koslovsky, Maryland Heights, MO, for appellant.
    Jeffrey Weisman, Blake Hill, Co-Counsel Maryland Heights, for Respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Christopher Dorey (“Appellant”) appeals from the trial court’s grant of summary judgment in his dispute with Randy Siems (“Respondent”). In his sole point on appeal, Appellant claims that the trial court erred in granting Respondent’s motion for summary judgment.

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

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


text:
    Barbara DILWORTH, Appellant, v. Nathaniel MURDOCK, M.D., and Barnes-Jewish Hospital, Respondents.
    No. ED 93524.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Arthur Shivers, St. Louis, MO, for appellant.
    Theodore Agneil, Bobbie Moon, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Barbara Dilworth (“Ms. Dilworth”) brought a medical malpractice claim against Dr. Nathaniel Murdock and Barnes-Jewish Hospital (collectively “Defendants”) in the Circuit Court of the City of St. Louis. A jury returned a verdict in favor of Defendants and Ms. Dilworth appeals.

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

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


text:
    STATE of Missouri, Respondent, v. Reginald MILLER, Appellant.
    No. ED 93041.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 22, 2010.
    Emily N. Kaiser, St. Charles, MO, for Appellant.
    Christopher A. Koster, Attorney General, Jamie P. Rasmussen, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Reginald Miller (“Defendant”) appeals from the judgment upon his convictions by a jury of first-degree statutory sodomy, Section 566.062, RSMo 2000, and incest, Section 568.020, RSMo 2000. Defendant raises two points on appeal. Defendant claims (1) the trial court erred and abused its discretion in admitting testimony referencing Defendant’s uncharged sexual misconduct with the victim, and in failing to declare a mistrial sna sponte after the State made reference to uncharged sexual misconduct with the victim in opening statement, and (2) the trial court erred in admitting the testimony of Detective Robert Jauer (“Detective Jauer”) mentioning an interview that took place at the Child’s Advocacy Center. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    In the Matter of the Care and Treatment of Robert BRINKMAN. Robert Brinkman, Appellant, v. State of Missouri, Respondent.
    No. ED 91852.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Emmett D. Queener, Columbia, MO, for appellant.
    Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Appellant, Robert Brinkman, appeals from a judgment entered upon a jury verdict finding him to be a sexually violent predator (“SVP”), pursuant to sections 632.480 et seq. RSMo (2000). No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 84.16(b).


author: GLENN A. NORTON, Presiding Judge.

text:
    STATE of Missouri ex rel. Carol ECKELKAMP, et al., Relators, v. The Honorable David C. MASON, Respondent.
    No. ED 94859.
    Missouri Court of Appeals, Eastern District, Writ Division Five.
    June 22, 2010.

      Ronnie L. White and Thoms E. Schwartz, Saint Louis, MO, for Plaintiff, Denise Heimann.
    Stephen H. Ringkamp and Theresa A. Appelbaum, Saint Louis, MO, for Plaintiff/Relators, Carol Eckelkamp, Conservator of the Estates of Mitchell Heimann and Melanie Heimann, minors, and Louis and Mary Heimann.
    David C. Mason, Saint Louis, MO, Respondent.
    Thomas E. Jones and Harlan A. Haría, Belleville, IL, for Defendant, Burlington Northern Santa Fe Railway.
   OPINION

GLENN A. NORTON, Presiding Judge.

Relators, Louis Heimann, Mary Heim-ann, and Carol Eckelkamp as Conservator of the Estates of Mitchell and Melanie Heimann, seek a writ of prohibition, or alternatively, a writ of mandamus, disqualifying Respondent, the Honorable David C. Mason, from proceeding as trial judge on remand after appeal. We grant the writ of prohibition.

I. BACKGROUND

Plaintiffs (“Relators”) filed a wrongful death action against Burlington Northern Santa Fe Railway Company. At the conclusion of trial, Judge Mason entered judgment upon a jury verdict apportioning 90 percent fault to the decedent and 10 percent fault to the railroad. Relators appealed. On appeal, this Court reversed and remanded the case for a new trial because Judge Mason allowed a statute setting out a motorist’s duty when approaching a railroad grade crossing to be displayed to the jury. Eckelkamp v. Burlington Northern Santa Fe Railway Co., 298 S.W.3d 546 (Mo.App. E.D.2009).

The matter was remanded to the Circuit Court of the City of St. Louis, Division 1. Thereafter, the Presiding Judge, the Honorable David L. Dowd, issued an order placing the cause on the docket with a trial setting of May 17, 2010. Then, on April 22, 2010, the Presiding Judge entered an order assigning this matter to Judge Mason for trial.

On April 28, 2010, Relators filed an application for change of judge pursuant to Rule 51.05. During a hearing on Rela-tors’ application, Judge Mason stated: “I can tell you now that there was never any intent, policy, plan, [or] motive of the Presiding Judge at any time to put this case in a random assignment mode. You can ask [the Presiding Judge] to put it on the record on that [sic], if you wish.” Following the hearing, Judge Mason entered an order denying Relators’ application for change of judge. Judge Mason found that because he was the original trial judge for the cause there was no legal basis for “reinstating” Relators’ right to automatic change of judge under Rule 51.05, and therefore Relators’ application for change of judge was not timely under Rule 51.05.

In accordance with Judge Mason’s suggestion at the hearing on Relators’ application for change of judge, Relators filed a motion for clarification with the Presiding Judge. The Presiding Judge then clarified on the record the procedure by which he assigned the case to Judge Mason following remand: “... [T]here’s no question that it was a random assignment to Judge Mason.... So with due respect to Judge Mason ... he’s just incorrect.” Relators then filed a motion for reconsideration of their application for change of judge with Judge Mason, which he denied despite the Presiding Judge’s clarification. Subsequently, Relators filed a petition for writ of prohibition and/or mandamus with this Court. We previously issued a preliminary order in prohibition.

II. DISCUSSION

The issue in this case is whether Relators’ application for change of judge was timely filed. In denying Relators’ application for change of judge, Judge Mason reasoned that because he was the original trial judge for the cause there was no legal basis for “reinstating” Relators’ right to automatic change of judge under Rule 51.05. We disagree in light of the unique circumstances of this case.

Rule 51.05 provides in pertinent part:

(a) A change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by a party. For purposes of this Rule 51, motions to modify child custody, child support, or spousal maintenance filed pursuant to chapter 452, RSMo, are not an independent civil action unless the judge designated to rule on the motion is not the same judge that ruled on the previous independent civil action. The application need not allege or prove any cause for such change of judge and need not be verified.
(b) The application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge.

This Court has recognized that “the right to disqualify is a keystone of our judicial system, and Missouri courts follow a liberal rule construing it.” State ex rel. Walters v. Schaeperkoetter, 22 S.W.3d 740, 742 (Mo.App. E.D.2000). When an application for change of judge is timely filed under Rule 51.05, “the court has no jurisdiction to do anything other than to grant the application and transfer the cause.” Id. at 743 (internal quotations omitted.) Accordingly, a writ of prohibition is appropriate where a judge has improperly denied a timely filed motion for change of judge. See id. at 741-44.

We find determinative the fact that the Circuit Court of the City of St. Louis has adopted a central docketing system for the assignment of cases. This system is unique, in that when a case is remanded from this Court for a new trial, it is treated as a “new filing.” At the hearing on Relators' motion for clarification, the Presiding Judge explained to the parties that because the circuit court treated this cause as a new filing upon remand, Local Rule 6.2.1 governed the reassignment of the case for the new trial. On the record, the Presiding Judge explained “[i]t was purely random” that the case was assigned to Judge Mason upon remand:

The way the ... docketing system works in the Twenty-Second Circuit, upon a remand from the Court of Appeals ... there’s no specificity that it’s remanded to Judge Mason in Division 17.... [Historically, remands don’t go back to the same [j]udge.... [Tjhere’s no question that it was a random assignment to Judge Mason. ... [I]f you look at the Local Rules ... we would treat this as almost a new file. I think it’s actually given a new case number. ... Under Local Rule 6.2.1, “after filing, the clerk shall assign each case triable by a jury to Division 1.” That’s what happened to this case.... So with due respect to Judge Mason when he says that this case was sent back to him by the Court of Appeals, ... he’s just incorrect.

(emphasis added.)

Thus, it is clear from the record that the Presiding Judge’s designation of Judge Mason as trial judge on remand constituted a new designation under Rule 51.05. Accordingly, under the central docketing system in place in the Circuit Court for the City of St. Louis, the designation of Judge Mason as the new trial judge on remand started the running of the time for filing the application for change of judge under Rule 51.05. Because Relators’ application was filed within 30 days from the new designation of trial judge, their application was timely under Rule 51.05, and therefore they were entitled to an automatic change of judge.

III. CONCLUSION

Our preliminary writ is made permanent. Judge Mason is hereby prohibited from taking any action other than granting the application for change for judge and transferring the case pursuant to Rule 51.05(e).

KENNETH M. ROMINES and NANNETTE A. BAKER, JJ., concur.

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

      . The Presiding Judge's clarification is more fully set out below in Section II.

      . Pursuant to Local Rule 6.2.1 (2010) of the 22nd Judicial Circuit, "After filing, the clerk shall assign each case triable by a jury to Division 1. Thereafter, the presiding judge shall place each such case on the Division 1 trial calendar and assign such cases to general divisions for trial when appropriate.”

      . Rule 51.05(e) requires a judge to sustain a timely application for change of judge and, upon doing so: “The disqualified judge shall transfer the case to a judge stipulated to by the parties if the new judge agrees to take the case. If the case is not so transferred, the disqualified judge shall notify the presiding judge.”


author: ROY L. RICHTER, Judge.

text:
    Anna HARDNETT, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 93988.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 22, 2010.
    Anna Hardnett, St. Louis, MO, pro se.
    Jeannie Desir Mitchell, Jefferson City, MO, for Respondent.
   ROY L. RICHTER, Judge.

Anna Hardnett (“Hardnett”) appeals the Labor and Industrial Relations Commission’s (“the Commission”) decision to reduce her unemployment benefits. We dismiss Hardnett’s appeal for failure to comply with Missouri Supreme Court Rule 84.04.

I. BACKGROUND

Hardnett, a former employee for Western Union, filed a claim for employment benefits at a rate of $320 per week. However, on August 25, 2009, the Division of Employment Security (“the Division”) sent Hardnett a determination that her benefits would be reduced because she was receiving a pension from Western Union. Hard-nett appealed the reduction of benefits to the Division’s Appeals Tribunal (“the Appeals Tribunal”), and requested a hearing. After the hearing, the Appeals Tribunal upheld the decision to reduce Hardnett’s benefits. Hardnett appealed to the Commission which affirmed and adopted the decision of the Appeals Tribunal. Hard-nett appeals.

II. DISCUSSION

Hardnett argues that the Commission erred in affirming the decision of the Appeals Tribunal. However, Hardnett’s brief falls short of the requirements of Rule 84.04 and therefore we dismiss her appeal.

“Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made.” Ward v. United Eng’g Co., 249 S.W.3d 285, 287 (Mo.App. E.D.2008) (quoting Bridges v. Am. Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo.App. W.D.2004)). Failure to comply with the rules of appellate procedure is a proper basis for dismissing an appeal. Steltenpohl v. Steltenpohl, 256 S.W.3d 597, 598 (Mo.App. W.D. 2008).

Rule 84.04(c) requires that “the statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” However, Hardnett’s statement of facts is a paragraph that includes few of the facts in the case, but rather outlines the decisions of similar cases in the past against Union Electric where the outcome was different than that of her case.

Further, Rule 84.04(i) requires that both the statement of facts and the argument section have specific page references to the legal file or the transcript. “This requirement is mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if the factual assertions in the brief are supported by the record.” Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D.2008). “To do so would effectively require the court to act as an advocate for the noncomplying party.” Id. Hardnett has not included any specific page references in either her statement of facts or her argument section.

Finally, Hardnett cites no legal authority in her argument section. If a party does not cite legal authority and does not explain why it fails to do so, then the party is deemed to have abandoned that point. Donovan v. Temporary Help, 54 S.W.3d 718, 720 (Mo.App. E.D.2001).

III. CONCLUSION

Because of her substantial failure to comply with Rule 84.04, Hardnett’s brief preserves nothing for our review. The appeal is dismissed.

KENNETH M. ROMINES, C.J., and THOMAS J. FRAWLEY, SP. J„ concur.


author: ROBERT S. BARNEY, Judge.

text:
    Kenneth Keith ROUSSEL III, Appellant, v. STATE of Missouri, Respondent.
    No. SD 30022.
    Missouri Court of Appeals, Southern District, Division One.
    June 23, 2010.

      Ellen H. Flottman, Columbia, for Appellant.
    Chris A. Koster, Atty. Gen. and Dora A. Fichter, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Kenneth Keith Roussel III (“Movant”) appeals the motion court’s denial following an evidentiary hearing of his pro se “Motion to Vacate, Set Aside, or Correct the Judgment or Sentence” filed pursuant to Rule 24.035. In his sole point relied on, Movant asserts the motion court clearly erred in denying his Rule 24.035 motion because his guilty plea “was invalid” in that the plea court failed to set out an “adequate factual basis ... to support [his] plea.” We affirm.

On October 29, 2007, Movant pled guilty to one count of the unclassified felony of statutory rape in the first degree, a violation of section 566.032, RSMo. Cum.Supp. 2006. At the guilty plea hearing on November 14, 2007, Movant confirmed to the plea court that he understood the rights he was waiving by pleading guilty and that he and his attorney had discussed the charges pending against him. The following discussion then occurred:

THE COURT: Well, are you ready, then, to plead to the charge and if so, how do you plead?
MOVANT: Guilty, sir.
THE COURT: All right. Well, the State charges in this county on or about August 31st, you had sexual intercourse with a minor referred to as S.C. who was then less than 14. Did you do that?
MOVANT: Yes, sir.
THE COURT: Let the record reflect [Movant] fully understands his Constitutional rights, nature of the crime charged!,] range of punishment and consequences of his guilty plea and he knowingly, voluntarily and intelligently waives his Constitutional rights and enters [a] plea of guilty and it’s ordered that his plea be accepted and be entered in the records of the court.

Movant was then sentenced by the plea court to twelve years in the Missouri Department of Corrections.

Then on May 12, 2008, Movant filed his pro se Rule 24.035 motion and was thereafter appointed counsel by the motion court. Movant’s appointed counsel chose not to file an amended Rule 24.035 motion in this matter and, instead, filed a statement in lieu of an amended motion. See Rule 24.035(e).

Evidentiary hearings on Movant’s Rule 24.035 motion were held on March 23, 2009, and June 15, 2009. On July 7, 2009, the motion court then issued its Judgment and Findings of Fact and Conclusions of Law which denied the claims set out in Movant’s Rule 24.035 motion.

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

“Upon a plea of guilty, a criminal defendant waives his constitutional rights, including his Sixth Amendment right to trial and Fifth Amendment privilege against self-incrimination.” Id. “The due process clause of the Fourteenth Amendment precludes a finding of a valid waiver of those rights unless it is knowing, intelligent, and voluntary.” Id.

Rule 24.02(e) provides that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” Pri- or to accepting a plea of guilty, the trial court must “determine facts which defendant admits by his plea and that those facts would result in defendant being guilty of the offense charged.” Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993). “A defendant is not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists.” Brown v. State, 45 S.W.3d 506, 508 (Mo.App.2001). “Every element of a crime to which a defendant pleads guilty need not be explained as long as the defendant understands the nature of the charge.” Fee v. State, 283 S.W.3d 296, 298 (Mo.App.2009). “Furthermore, as long as the basis exists on the record as a whole, the factual basis need not be established by the defendant’s words or by an admission of the facts recited by the State.” Id. The recital of a factual basis for the charge helps to ensure the guilty plea is knowing and voluntary. Carmons v. State, 26 S.W.3d 382, 384 (Mo.App.2000). This Court’s ‘“focus is on whether the plea was made intelligently and voluntarily [and not on] whether a particular ritual is followed or every detail explained.’” Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002) (citation omitted). Furthermore, “[r]elief under [Rule 24.02(e) ] is available only for an error of law that is ... constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Schuerenberg v. State, 98 S.W.3d 922, 923-24 (Mo.App.2003). “Absent an abuse of discretion, this Court defers to the trial court’s determination as to whether a prisoner’s guilty plea was voluntary.” Jenkins v. State, 9 S.W.3d 705, 708 (Mo.App.1999).

In the present matter, Movant was charged with statutory rape in the first degree. Section 566.032, RSMo Cum. Supp.2006, states that “[a] person commits the crime of statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old.” “Statutory rape is a strict liability crime” such that “the intent of the perpetrator and the consent of the victim are irrelevant.” State v. Stokely, 842 S.W.2d 77, 81 (Mo. banc 1992). Accordingly, the factual basis need only show that Movant engaged in sexual intercourse with a person less than fourteen years old.

In the instant matter, at the guilty plea hearing, the plea court specifically asked Movant if he “had sexual intercourse with a minor referred to as S.C. who was then less than 14” and Movant confirmed that he committed that act. Further, Movant told the trial court that he had “gone over the meaning” of the charges against him with his counsel prior to his guilty plea. It is clear that “[a]s long as Movant understands ‘the nature of the charges against him, trial courts are not required to explain every element of the crime,’ ” Wilder v. State, 301 S.W.3d 122, 130 (Mo.App.2010) (citation omitted), and “Movant is ‘not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists.’ ” Id. (quoting Johnson v. State, 172 S.W.3d 831, 835 (Mo.App.2005)). As stated in Hoskin v. State, 863 S.W.2d at 639, the charge in the present matter was “simple, specific and sufficient to inform [Movant] in terms that a layman would understand what acts he was charged with committing, and the commission of which constituted the crimes charged.” The factual basis for Movant’s guilty plea was sufficient. The motion court did not err in denying Movant’s Rule 24.035 claim. Point denied.

The findings of fact and conclusions of law of the motion court are affirmed.

BATES, P.J., and BURRELL, J., Concur.

      . All rule references are to Missouri Court Rules (2008).

      . Movant was also originally charged with two counts of the class C felony of endangering the welfare of a child in the first degree, violations of section 568.045, RSMo Cum. Supp.2005, and one count of the class D felony of unlawful use of a weapon, a violation of section 571.030, RSMo Cum.Supp. 2003. These additional counts were dismissed by the State as part of Movant's plea agreement wherein he agreed to plead guilty to statutory rape and the State would recommend a sentence of twelve years in addition to dismissing the remaining charges.

      . Movant cites this Court to a number of cases that do not aid his argument, because they are factually and legally distinguishable from the instant matter. Chief among those is England v. State, 85 S.W.3d 103, 107-08 (Mo.App.2002). In England, the movant was charged with assault in the first degree, which is a specific intent crime. Id. At his guilty plea hearing, movant admitted "he shot randomly at the house without knowing for certain whether anyone was inside” such that the factual basis for the plea failed to show the requisite mental state upon which to base the movant's guilty plea. Id. at 109. Here, as previously related, the crime charged was also a strict liability crime.


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

text:
    Ricky E. DEAN, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29956.
    Missouri Court of Appeals, Southern District, Division Two.
    June 25, 2010.

      Craig A. Johnston, Columbia, for Appellant.
    Chris Koster, Atty. Gen. and James B. Farnsworth, Jefferson City, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

This appeal comes to this Court on Ricky E. Dean’s (Movant) motion for post-conviction relief asserting that his guilty plea was not intelligently and voluntarily entered for the reason that he received ineffective assistance of counsel. The motion court entered an order denying the relief requested by Movant. Movant does not ask us to review the merits of his motion, but asks us to determine whether he was abandoned by post-conviction counsel. We affirm the motion court.

Factual and Procedural History

On June 17, 2004, Movant was charged by felony information with three counts in Greene County, Missouri: Count I, assault of a law enforcement officer in the first degree pursuant to section 565.081.1; Count II, armed criminal action pursuant to section 571.015; and Count III, resisting an arrest pursuant to section 575.150.

Movant was represented by Dean Price. On September 27, 2005, Movant and the State reached a plea agreement. The State filed an amended information that charged Movant with two counts: Count I, assault of a law enforcement officer in the second degree pursuant to section 565.082; and Count II, resisting an arrest pursuant to section 575.150. Movant entered a plea of guilty to those two counts. On May 1, 2006, Movant received sentences of 15 years on Count I, and 4 years on Count II; the sentences were ordered to run concurrent with each other.

On July 11, 2006, Movant, self represented, filed a motion to vacate, set aside or correct the judgment or sentence pursuant to Rule 24.035. Movant’s motion alleged that “[t]he prosecutor provided the Sentencing Court with inaccurate information in regards to Movant’s background history,” and “[cjounsel misled and confused Movant in exchange for a guilty plea.”

On September 26, 2006, the motion court appointed counsel for Movant, and on October 16, 2006, Cinda Eichler filed an entry of appearance on Movant’s behalf. On April 18, 2007, Eichler declined to file an amended motion and instead filed a statement pursuant to Rule 24.035(e):

In the preparation of Movant’s postcon-viction relief case, counsel has discussed this case with Movant over the telephone and has reviewed the following: the underlying guilty plea and sentencing transcript, relevant court documents from Movant’s criminal case, the files maintained by Movant’s former attorney including discovery from the underlying criminal case, and the pro se motion filed by Movant in the postcon-viction case. Based on this review, counsel has determined that she will not file an amended motion in the above-captioned matter in that there are no potentially meritorious claims known to counsel, or facts in support thereof, that have been omitted from Movant’s pro se motion.

On April 23, 2007, Movant filed a handwritten reply to Eichler’s statement, pursuant to Rule 24.035(e). Movant’s reply contained a narrative, which alleged that Eichler failed to properly investigate his case. Specifically, Movant alleged that Eichler failed to obtain “mitigating information,” complained that Eichler only consulted with him one time, alleged that Ei-chler was misinformed regarding a police recording, and complained that Eichler failed to obtain certain video recordings from law enforcement.

On August 4, 2008, Movant filed an amended motion on his own. Movant’s amended motion alleged that he was abandoned by Eichler because she “did nothing in furtherance of movant’s pro se motion for post-conviction relief....” Movant’s amended motion also included three “new” claims: (1) plea counsel misrepresented to Movant that he would receive 120 day shock probation, (2) plea counsel failed to fully and adequately investigate and prepare Movant’s defense, and (3) plea counsel was ineffective for allowing the prosecutor to give false information regarding Movant’s criminal history at Movant’s sentencing hearing.

On February 11, 2009, the motion court held an evidentiary hearing regarding Movant’s motion. Movant was represented by Eichler. The motion court heard testimony from both Movant and Price regarding Movant’s decision to plead guilty. On June 24, 2009, the motion court issued an order denying Movant’s Rule 24.035 motion.

Movant’s sole point relied on alleges that the motion court erred because it failed to hold a hearing to determine whether Mov-ant had been abandoned by his court-appointed post conviction counsel. Movant had filed a motion pursuant to Rule 24.035. The motion court appointed counsel. Appointed counsel opted to file a statement pursuant to section 24.035(e) instead of filing a motion amending Movant’s motion. Movant claims that he is prejudiced because, contrary to Eichler’s statement, his original motion did not contain meritorious claims. He asserts this is supported by the fact that he filed “new” claims in the amended motion that he subsequently filed on his own.

Standard of Review

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

Analysis

Rule 24.035(e) is set out below.

When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed.

Generally, “[tjhere is no constitutional right to counsel in a post conviction proceeding”; therefore, “[cjlaims of ineffective assistance of post-conviction counsel are categorically unreviewable.” State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1992) (internal citation omitted). However, claims of ineffective assistance of counsel directed towards post-conviction counsel are reviewable to the extent that a movant alleges that he was been abandoned in the legal sense of the word. Shirley v. State, 117 S.W.3d 187, 189 (Mo.App. S.D.2003). Our Supreme Court has recently described three scenarios where abandonment may be found: (1) when the record reflects that a movant has been denied meaningful review because counsel took no action regarding the filing of an amended motion; (2) when counsel does not file a timely amended motion when he is aware of the need to do so; and (3) when “counsel overtly acts in a way that prevents the movant’s timely filing of a postconviction motion.... ” Gehrke v. State, 280 S.W.3d 54, 57 (Mo. banc 2009).

There is no allegation that post-conviction counsel failed to file a timely amended motion or overtly acted to prevent Movant from filing a timely post-conviction motion. Thus, the first category — that Movant’s counsel took no action regarding the filing of an amended motion — is the only category left under which to evaluate Movant’s claim of abandonment. This category of claims is based on our Supreme Court’s decision in Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991). Luleff stands for the proposition that if post-conviction counsel determines there is no legal need to file an amended motion “counsel should make that determination a part of the record”; otherwise, the court must presume that counsel has abandoned movant if the record is so lacking. Id. at 498.

We must, therefore, determine if Eichler properly made her decision not to file an amended motion part of the record. We find two cases addressing similar abandonment claims dispositive in this case: Shirley v. State, 117 S.W.3d 187 (Mo.App. S.D. 2003) and Waserman v. State, 100 S.W.3d 854 (Mo.App. S.D.2003). The movant in Shirley “argue[d] that he was ‘abandoned’ by post-conviction counsel when, contrary to his wishes, counsel filed a statement waiving the right to amend the Rule 24.035 motion.” Shirley, 117 S.W.3d at 188. Specifically, he argued that abandonment should be recognized “ ‘where appointed counsel determines that there are no meritorious issues and files a waiver of an amended motion without first getting the client’s permission or input and without doing the necessary investigation which would make that determination reasonable.” Id. at 189. The Court in Shirley stated that the record indicated, via counsel’s statement pursuant to Rule 24.035(e), that movant’s counsel had fully investigated movant’s case because counsel had a telephone discussion with movant regarding his case, and “reviewed ‘the underlying guilty plea and sentencing transcript, relevant court documents from movant’s criminal case, the files maintained by movant’s former attorney including discovery from the underlying criminal case, and the pro se motion filed by movant in the post-conviction case.’ ” Id. at 190. The Court noted that movant filed a timely reply statement. Id. The Court held that, in light of the record, movant was not abandoned. Id. at 191.

In Waserman, post-conviction counsel also filed a statement instead of filing an amended motion. Waserman, 100 S.W.3d at 862. The statement included representations that post-conviction counsel “reviewed the court file, transcripts, plea counsel’s files, and documentation from Movant and determined Movant’s pro se motion contained all claims and pertinent facts known to him.” Id. The movant in Waserman claimed that he was abandoned by his post-conviction counsel because she failed to file an amended motion that contained two meritorious claims that were left out of his pro se motion. Id. The Court found that the movant was not abandoned for two reasons: (1) “[post-conviction counsel] made a part of the record his determination that no amended motion was required, via his statement in lieu of amended motion,” and (2) “[post-conviction counsel] participated in an evidentiary hearing on Movant’s motion.... ” Id. at 863. The Court further stated that its review was limited to “the narrow construction of the concept of abandonment ...” and stated that “[t]o the extent [Mov-ant] complains of counsel’s failure to file an amended motion with claims supplemental to those included in his pro se motion, Movant’s third point is founded on a claim of ineffective assistance of post-conviction counsel and is not reviewable in this [C]ourt.” Id.

Here, Eichler filed a statement pursuant to Rule 24.035(e), in which she announced her decision that an amended motion was not required because Movant’s pro se motion did not omit any meritorious claims. The statement also indicated that her decision was based on a telephone interview with Movant and her review of “the underlying guilty plea and sentencing transcript, relevant court documents from Movant’s criminal case, the files maintained by Movant’s former attorney including discovery from the underlying criminal case, and the pro se motion filed by Movant in the postconviction case.” Eichler’s statement is similar to the statements made in Shirley and Waserman, which were found to create a proper record regarding counsel’s decision not to file an amended motion to show that Movant was not abandoned. Also, like in Waser-man, Eichler participated in an evidentia-ry hearing on Movant’s motion. Therefore, Eichler’s statement satisfied the in-the-record determination required by Lu-M.

Unlike Shirley and Waserman, Movant’s point relied on contained the additional claim that by filing a reply as permitted by Rule 24.035(e) the motion court was required to hold a hearing to determine whether counsel’s decision not to file an amended motion constituted abandonment. Movant, in his brief, “suggests that the reply must trigger some duty upon the motion court otherwise the reply is rendered meaningless.” Movant appears to rely on Brown v. State, 968 S.W.2d 725 (Mo.App. E.D.1998), as the source of this argument: “Where the record fails to show that appointed counsel has made the necessary determinations as required by Rule 24.035(e), then the motion court has a duty to make its own inquiry into the performance of post-conviction counsel.” Id. at 727. However, this quotation from Brown is based on the standard announced in Luleff. As discussed above, the contents of Eichler’s statement in this case satisfied her duty to make a proper record regarding her decision not to file an amended motion. Although Movant suggests that the motion court was compelled to review Movant’s pro se motion, that argument is incorrect. Eichler’s statement, and Movant’s reply to that statement, point us to Waserman which makes clear that review of whether Eichler should have filed an amended motion with supplemental claims is beyond the scope of the analysis on the issue of abandonment and constitutes an unreviewable post-conviction ineffective assistance of counsel claim.

The judgment of the motion court is affirmed.

SCOTT, C.J., and RAHMEYER, J., Concur.

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

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


author: VICTOR C. HOWARD, Judge.

text:
    STATE of Missouri, Respondent, v. Jeffrey Wayne THOMPSON, Appellant.
    No. WD 71009.
    Missouri Court of Appeals, Western District.
    June 29, 2010.

      Craig A. Johnston, for Appellant.
    Daniel N. McPherson, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   VICTOR C. HOWARD, Judge.

Jeffrey Thompson appeals the trial court’s judgment upon a jury verdict finding him guilty of stealing by deceit. On appeal, Mr. Thompson claims that there was insufficient evidence to support his conviction and that the trial court erred in overruling his motion to dismiss the case on the basis that Buchanan County was not the proper venue. The judgment of the trial court is affirmed.

Factual and Procedural Background

The State charged Jeffrey Thompson with the class C felony of stealing by deceit in violation of section 570.030. A jury found Mr. Thompson guilty of the charge, and the trial court sentenced him, as a prior and persistent offender, to ten years of imprisonment.

In early 2006, Kenneth and Sarah Siemens were building a home in Buchanan County in St. Joseph, Missouri. When Mrs. Siemens decided that she wanted granite countertops in the kitchen, the Sie-menses’ general contractor, Craig Whit-acre, recommended Mr. Thompson to do the job. Mrs. Siemens called Mr. Thompson, and he directed her to a business in Kansas City called Stone and Beyond where she could choose the granite she wanted for the countertops. Mrs. Siemens went to Stone and Beyond in February 2006 and selected the type of granite she wanted. She then met Mr. Thompson at a work site close to the store where they discussed options for the edging of the countertops.

After the Siemenses had chosen the granite, Mr. Siemens asked Mr. Thompson to submit a written bid for the job. Mr. Thompson faxed a bid to Mr. Whitacre’s office, which was located in Buchanan County. The bid quoted a price of $4,198 for the granite and the fabrication. Mr. Whitacre faxed the bid to Mr. Siemens’s office, which was also located in Buchanan County. The Siemenses decided to accept the bid, and Mrs. Siemens called Mr. Thompson to discuss a payment arrangement. Mr. Thompson said that he wanted a down payment of $2,800 to cover the cost of the granite and part of the labor. He told Mrs. Siemens to make the check out to his company, Southeast Holding Company, and to mail the check to a post office box in Florida.

Mr. Siemens wrote the check and mailed it to Florida, but it was later returned as undeliverable. The Siemenses talked to Mr. Thompson, and they agreed to meet him at Stone and Beyond to give him the check. Mr. Siemens met Mr. Thompson at Stone and Beyond and gave him the same check that he had previously mailed to Florida. The check was later deposited in the bank account of Southeast Holding Company. While he was at Stone and Beyond, Mr. Siemens asked for and received a copy of the sales order showing that the granite had been paid for. Mr. Thompson signed the document, and it was stamped as “paid” at the request of Mr. Siemens so he could have a receipt showing that the granite had been paid for. However, the granite was not actually purchased that day.

When it was time for the countertops to be installed, Mr. Whitacre began contacting Mr. Thompson. On three or four occasions, Mr. Thompson said he would come on a weekend and do the work, but he never did. At the time, Mr. Whitacre and the Siemenses thought that Mr. Thompson was living in the Kansas City area, although he was doing some work in Florida. They were not aware that Mr. Thompson had moved to Florida. During this time period, Mr. Whitacre made dozens of phone calls to Mr. Thompson. Mr. Thompson never initiated contact or called Mr. Wdiitacre back. Eventually, Mr. Thompson stopped answering Mr. Whit-acre’s phone calls, and the phone number that Mr. Thompson had given Mr. Whit-acre went out of service. When the Sie-menses moved into their home, the coun-tertops had not been installed. Because Mr. Thompson never purchased the granite from Stone and Beyond or installed the countertops, the Siemenses had to buy additional granite and hire someone else to fabricate the granite and install the coun-tertops.

Mr. Siemens contacted the Buchanan County Sheriffs Department and asked it to investigate the matter. After investigators talked to Mr. Thompson, he called Mr. Siemens and offered to repay the $2,800. In October 2006, Mr. Thompson borrowed money from a relative for the purpose of repaying the Siemenses but never repaid the money the Siemenses had given him. After an investigation, Mr. Thompson was charged with the class C felony of stealing by deceit. Prior to trial, the court heard evidence on Mr. Thompson’s motion to dismiss for reason of improper venue. Mr. Thompson argued that none of the elements of the crime occurred in Buchanan County and that, therefore, Buchanan County was not the proper venue for the trial. The court denied the motion, finding that the State established by a preponderance of the evidence that the elements of representation and reliance occurred, at least in part, in Buchanan County.

The trial proceeded in Buchanan County, and the jury found Mr. Thompson guilty of stealing by deceit. The trial court sentenced him, as a prior and persistent offender, to ten years of imprisonment. This appeal by Mr. Thompson followed.

Sufficiency of the Evidence

In his first point on appeal, Mr. Thompson contends that the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence. He claims that the evidence was insufficient to establish beyond a reasonable doubt that he committed the crime of stealing by deceit because the State presented no other evidence beyond his failure to perform the work on the Siemenses’ home.

When a defendant challenges the sufficiency of the evidence to support a conviction, our review is limited to “‘a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.’ ” State v. Karl, 270 S.W.3d 514, 515 (Mo.App. W.D.2008) (quoting State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998)). We accept as true all evidence favorable to the State, including all favorable inferences drawn therefrom, and disregard all evidence and inferences to the contrary. Id. “A jury may believe all, some or none of a witnesses] testimony, and the jury must resolve any contradictions or conflicts in that testimony.” State v. McMellen, 872 S.W.2d 508, 510 (Mo.App. W.D.1994).

Mr. Thompson was charged with stealing by deceit in violation of section 570.030, which provides that “[a] person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” § 570.030.1. Section 570.010(7) defines “deceit” as “purposely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind.” However, “[deception as to the actor’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” § 570.010(7). The State must establish that the defendant had the intent to cheat or defraud at the time the false representation was made to cause the victim to part with his or her property. State v. Morris, 699 S.W.2d 33, 36-37 (Mo.App. W.D.1985). Because the subjective intent of a defendant can rarely be established by direct evidence, intent may be proven by circumstantial evidence. McMellen, 872 S.W.2d at 510. As noted in the statutory definition of “deceit,” such circumstantial evidence must include more than the fact that the promise was not performed. Id.

Mr. Thompson argues that the only evidence the State offered in order to prove that he committed the offense of stealing by deceit was that he did not perform the granite work as promised. Mr. Thompson contends that, because the State only presented evidence of non-performance, the jury could not find, based on that fact alone, that he had the intent to steal by means of deceit. The State argues that it presented additional evidence beyond mere non-performance and points to a nearly identical case in which this court held that there was sufficient evidence of intent to steal by deceit. See McMellen, 872 S.W.2d 508.

In McMellen, the defendant was convicted of stealing by deceit after he gave a bid on a roofing job, took $2,000 as a down payment to cover the cost of materials, and then failed to purchase materials or perform the work. Id. at 509. Additional evidence showed that the victim spoke to the defendant several times about completing the work, and the defendant promised to do the job soon but never did. Id. The defendant then moved away from the area without informing the victim. Id. After the victim filed a complaint with the police, the defendant called him and offered to return the $2,000 or repair the roof. Id. The victim rejected the defendant’s offer, and the defendant did not refund the money or repair the roof. Id.

On appeal, this court found that there was sufficient evidence to support the jury’s conclusion that the defendant intended to deceive the victim. Id. at 510. The evidence showed that the defendant took $2,000, and never performed the work, bought supplies, contacted the victim about the job until the victim contacted the police, or returned the money to the victim. Id. The court also noted that the defendant claimed that he had stored materials for the job at an associate’s house, but he could not tell the jury the associate’s name. Id. Additionally, when the victim contacted the defendant about fixing the roof, he always had an excuse for not doing the job. Id. Lastly, the court noted that the fact that the defendant left town without informing the victim supported the conclusion that the defendant never intended to work on the victim’s roof. Id.

As this court found in McMellen, there was sufficient evidence to support Mr. Thompson’s conviction for stealing by deceit. The evidence in this case, as viewed under the applicable standard of review, is indistinguishable from the set of facts presented in McMellen. Like the defendant in McMellen, Mr. Thompson made a bid for the job and took money from the Sie-menses to buy material but did not buy the material or perform the job. Although Mr. Thompson received the check and signed a document showing that the granite had been paid for, he did not purchase the granite that day. On several occasions when Mr. Whitaere contacted Mr. Thompson, he said that he would do the job but never arrived to do the work. Mr. Thompson never initiated contact with Mr. Whitacre or the Siemenses and would not return Mr. Whitacre’s phone calls. Eventually, the phone number Mr. Whitacre had been calling to reach Mr. Thompson went out of service. During this time period, Mr. Whitacre and the Siemenses were not aware that Mr. Thompson had permanently moved Florida. The officer who investigated the matter testified that Mr. Thompson said he had a business partner in Florida but that he could not remember his last name or his contact information. After the police contacted him, Mr. Thompson called Mr. Siemens and offered to refund the money, but Mr. Thompson never paid the $2,800 back to the Siemenses. Finally, a relative of Mr. Thompson testified that Mr. Thompson borrowed money from him in order to repay the Siemenses. However, Mr. Thompson did not use this money to repay the Siemenses.

We find that the aforementioned evidence is sufficient to support Mr. Thompson’s conviction for stealing by deceit. Contrary to Mr. Thompson’s argument, the State provided evidence of facts beyond mere non-performance. Rather, the totality of the circumstances surrounding the transaction with the Siemenses and his non-performance provides sufficient evidence from which the jury could have inferred that Mr. Thompson intended to appropriate the Siemenses’ money with the purpose to deprive them thereof by means of deceit at the time he offered to perform the granite work. See McMellen, 872 S.W.2d at 510 n. 1 (stating that the court’s finding that the evidence was sufficient to support the conviction was based “on the totality of the circumstances — not just [the defendant’s failure to perform”). Mr. Thompson’s first point is denied.

Venue

In his second point on appeal, Mr. Thompson contends that the trial court erred in denying his motion to dismiss for improper venue. He claims that Buchanan County was not the proper venue for the trial because none of the elements of the alleged crime of stealing by deceit were committed in Buchanan County.

Section 541.033 provides that, where elements of a crime occur in more than one county, a defendant shall be prosecuted in any of the counties where any element of the alleged offense occurred. § 541.033.1(2). Therefore, we review an issue of venue on the basis of whether the trial court “could reasonably infer from the facts and circumstances that any element of the crime with which the defendant is charged occurred within the trial court’s jurisdiction.” See State v. Holmes, 978 S.W.2d 440, 442 (Mo.App. E.D.1998). If the defendant challenges the correctness of venue prior to trial, the prosecution must prove by a preponderance of the evidence that an element of the crime occurred in the county where the case is filed. See State v. Taylor, 238 S.W.3d 145, 150 (Mo. banc 2007).

The essential elements of stealing by deceit are: (1) an appropriation; (2) of property or services of another; (3) with the purpose to deprive the individual thereof; (4) accomplished without the individual’s consent or by means of deceit or coercion. State v. Sielfleisch, 884 S.W.2d 422, 427 (Mo.App. E.D.1994); § 570.030.1. The element of deceit involves the making of a false representation upon which the victim relies. Sielfleisch, 884 S.W.2d at 427; § 570.010(7). Mr. Thompson was charged with stealing by deceit as follows:

[O]n or about April 14, 2006, in the County of Buchanan, State of Missouri, the defendant appropriated U.S. currency of a value of at least five hundred dollars, which property was owned by Kenneth and Sarah Siemens, and the defendant appropriated such property from Kenneth and Sarah Siemens and with the purpose to deprive them thereof by deceit in that the defendant represented to Kenneth and Sarah Siemens that he would complete home construction to their home, specifically granite work and that he would supply granite product, which representations were false and known by the defendant to be false and Kenneth and Sarah Siemens relied on the representations and [were] thereby induced to part with such property.

Mr. Thompson argues that, because he finalized the deal, had his only meeting with Mr. Siemens, and took possession of the check from Mr. Siemens in Jackson County, none of the elements of stealing by deceit occurred in Buchanan County. He claims that, therefore, no crime could have been committed until he accepted the check from Mr. Siemens in Jackson County. However, “[v]enue is not governed by where the crime is completed; rather, venue is proper in any county where at least one element of the crime occurs.” State v. Dailey, 53 S.W.3d 580, 585 (Mo.App. W.D. 2001).

The State argues that the element of reliance occurred in Buchanan County because the Siemenses received the bid from Mr. Thompson there, which induced them to write the check for $2,800. The evidence shows that Mrs. Siemens was in Buchanan County when she discussed payment terms with Mr. Thompson over the phone, Mr. Siemens received Mr. Thompson’s bid at his office in Buchanan County, the Siemenses decided to accept the bid in Buchanan County, and Mr. Siemens wrote the check for $2,800 and mailed it from Buchanan County. Although the Siemens-es ultimately gave the check to Mr. Thompson in Jackson County, they received and accepted the bid in Buchanan County, and they wrote and initially mailed the check from Buchanan County. Therefore, the State proved by a preponderance of the evidence that, while in Buchanan County, the Siemenses received the bid and were thereby induced to part with their property. Because an element of the crime of stealing by deceit occurred in Buchanan County, venue was proper, and the trial court did not err in overruling Mr. Thompson’s motion. Mr. Thompson’s second point is denied.

The judgment of the trial court is affirmed.

All concur.

      . All statutory references are to RSMo Cum. Supp.2005 unless otherwise noted.

      . Stone and Beyond is a wholesaler of granite from which fabricators can purchase granite and then cut, polish, and install it for their customers, such as the Siemenses.

      . Mrs. Siemens testified at trial that Mr. Thompson said he was doing some work in Florida but that she was under the impression that he lived in Kansas City.

      . Mr. Thompson also notes that evidence of his non-performance was consistent with the defense he presented at trial. At trial, he claimed that he was unable to perform the job because he had a falling out with his business partner in Florida. Because the money given by the Siemenses was deposited in his partner’s account, to which he claimed to not have access, he could not retrieve the funds and purchase the granite. However, the jury was not required to believe the testimony Mr. Thompson presented in his defense. Furthermore, under our standard of review, we disregard all evidence and inferences contrary to the jury's verdict.

      . Mr. Thompson claims that, because he faxed the bid to Mr. Whitacre, who then faxed it to Mr. Siemens, Mr. Thompson did not make a representation to Mr. Siemens outside of Jackson County. However, the evidence shows that Mr. Siemens requested the bid and that, based on phone conversations with Mrs. Siemens, Mr. Thompson was aware that the Siemenses, rather than Mr. Whitacre, would be paying him directly based on the bid. Therefore, it would have been reasonable for the jury to infer that Mr. Thompson knew his bid would be forwarded to the Siemenses.

      . As noted previously, the check the Siemens-es gave Mr. Thompson in Jackson County was the same check that they had initially mailed to Florida.