text:
    Gordon GOLDSBY, Appellant, v. George LOMBARDI, Director Missouri Department of Corrections, Respondent.
    No. WD 72183.
    Missouri Court of Appeals, Western District.
    Aug. 17, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.

      Gordon Goldsby, appellant pro se.
    Jennifer Redel-Reed, Jefferson City, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and GARY D. WITT, JJ.
   PER CURIAM:

Gordon Goldsby appeals a circuit court’s decision granting the defendant’s motion to dismiss his action requesting a declaration that section 217.175 RSMo is unconstitutional. He argues two Points on Appeal. His Point I on Appeal is that the trial court erred because RSMo 217.175 is vague and ambiguous in that it allows the Department of Corrections authority to make regulations that violate the First Amendment of the United States Constitution. In Point II, he argues that the trial court illegally delegated its judicial function by adopting a proposed judgment drafted by counsel for Lombardi. We dismiss the appeal as moot.

Factual and Procedural Background

On July 23, 2009, Gordon Goldsby, an inmate in the Missouri Department of Corrections (DOC), filed suit seeking declaratory and injunctive relief in the Circuit Court of Cole County. In his petition, Goldsby sought a declaration section 217.175 “violates the constitution(s) of Missouri and the United States, as being vague and ambiguous.” The injunctive relief Goldsby sought at that time was the return of his denim jacket in the event that the trial court ruled the statute unconstitutional.

Goldsby’s petition focused on the seizure of his denim jacket by the DOC. Goldsby painted on the back of the jacket a large picture of a man pointing a shotgun out toward the viewer. The DOC seized the jacket on February 12, 2009, citing that it violated two DOC policies, IS/SOP22-1.1 (III.D.3), which prohibits clothing that depicts or advocates violence, and IS19-1.1 (24.5), which prohibits items that have been altered.

Respondent George Lombardi, director of the DOC, filed a motion to dismiss Goldsby’s complaint under Rule 55.27(a) for failure to state a claim upon which relief could be granted. Lombardi argued that a request for a declaration that RSMo 217.175 was unconstitutional was improper because Goldsby had adequate remedies at law available to address his central complaint that his personal property was improperly taken from him.

After Goldsby responded to Lombardi’s motion to dismiss, the case was submitted to the court on the pleadings. The court entered an Order and Judgment that granted Lombardi’s motion to dismiss and denied Goldsby’s request for declaratory and injunctive relief.

Goldsby appeals.

Discussion

In Point I, Goldsby claims that Ms request for declaratory judgment was improperly dismissed because the statute granting the Missouri DOC the authority to make rules and regulations for the management of the corrections centers is unconstitutionally vague and ambiguous. The trial court found it unnecessary to consider any issue addressed to the constitutionality of any statute, instead finding that Goldsby failed to state a claim upon which relief could be granted.

Lombardi argues that Goldsby’s petition for declaratory judgment was rightfully dismissed because he had other adequate remedies to address his complaints of an alleged unwarranted seizure of his personal property. Lombardi also argued that an adjudication that section 217.175 was unduly vague would not get Goldsby the return of his jacket. Lombardi argues mootness.

Goldsby now makes much of the fact that he challenges only the constitutionality of section 217.175 on appeal and says that he is not now requesting his jacket back. The respondent argues that, if Goldsby is abandoning his claim for return of the jacket, or compensation therefore, Goldsby’s appeal is moot. We agree with the respondent.

The mootness of the controversy is a threshold question in any appellate review. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). “[C]ourts do not determine moot cases.” Kinsley v. Steiger, 109 S.W.3d 194, 195 (Mo.App.2003). A case is moot and generally should be dismissed when a court’s decision is unnecessary or granting effectual relief is impossible. Reed, 41 S.W.3d at 473 (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999)).

Section 217.197 allows the DOC to establish policy that regulates the “amount and type of personal property an offender housed in a correctional center may possess.” Oddly, Goldsby does not challenge 217.197. Instead, he argues that a different statute — a more general one empowering the DOC directors to adopt general rules and regulations (section 217.175)— should be held void for vagueness because the statute allowed the DOC to make policy that justified the seizure of his jacket depicting a man holding a gun, and such seizure was in violation of his free speech rights. This is an interesting but confusing argument, in that section 217.197 is the statute that specifically allows the DOC to regulate the possession of personal property by offenders. It would appear that even if there were no 217.175, the authority granted to the DOC by 217.197 would be sufficient to authorize the regulation in question. The specific statute would govern. See Parktown Imports, Inc. v. Audi of America, Inc., 278 S.W.3d 670, 673 n. 2 (Mo. banc 2009).

With Goldsby abandoning his claim for return of the coat, and with Goldsby declining to challenge the statute that specifically authorized the regulation of personal property by the DOC, it is impossible to see what remains for adjudication. There is nothing at stake here; there is no justi-ciable “case or controversy” involving 217.175 (because even if, hypothetically, the Supreme Court were to think that 217.175 were unconstitutional, it would make no practical difference). For one thing, Goldsby cannot get his coat back (having abandoned that claim). For another, section 217.197 would continue to fully authorize the DOC to adopt and enforce its regulations as to the possession of similar personal items; the DOC could continue to do that, regardless of the validity of section 217.175. Finally, because of the foregoing factors, the assertions of Goldsby’s Point II are moot. Because the matter is moot, it makes no difference whether the trial court “abdicated its judicial function,” as Goldsby contends in his Point II.

Because there is nothing here to be decided, we dismiss this appeal as moot.

      . RSMo 217.175 says, "The division directors shall make such rules, regulations and orders as are proper and necessary for the management of the correctional centers and programs under their control." All statutory references are to RSMo 2000, updated through the 2009 Cumulative Supplement, unless otherwise indicated.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    BETTER WAY, LLC, Appellant, v. Brenda HAYES; Division of Employment Security, Respondents.
    Nos. WD 71552, WD 71553.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.
    Michael G. Berry, Jefferson City, MO, for Appellant.
    Brenda Hayes, Dewitt, MO, Acting Pro Se.
    Ninion S. Riley, Jefferson City, MO, for Respondent, Division of Employment.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J., and JAMES W. VAN AMBURG, Sp. J.
   ORDER

PER CURIAM:

Better Way, LLC, appeals the Labor and Industrial Relations Commission’s decisions that (1) Better Way is an employer subject to Missouri’s employment security law, and (2) because Better Way is an employer, one of its employees, Brenda Hayes, is entitled to wage credits. We affirm. Rule 84.16(b).


author: KURT S. ODENWALD, Presiding Judge.

text:
    Robert LEGENDRE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93866.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.

      Scott Thompson, Missouri Public Defender Office, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Robert Legendre (Legendre) appeals the denial of his Rule 24.035 amended motion for post-conviction relief without an evidentiary hearing. The motion court denied Legendre’s motion finding that the grounds alleged were refuted by the record and did not entitle Legendre to relief. In his motion, Legendre claimed that his plea counsel (Plea Counsel) misled him into believing that she had filed pre-trial motions to suppress evidence, and that he would not have pleaded guilty had he known Plea Counsel had not filed the motions. The facts alleged in Legendre’s motion, if true, raise sufficient concern regarding the voluntariness of his plea. Because the facts alleged by Legendre are not refuted by the record, and if proven true could entitle Legendre to relief, the motion court clearly erred in failing to conduct an evidentiary hearing. We therefore reverse the motion court’s judgment and remand this matter for an evi-dentiary hearing.

Background

On November 19, 2005, the State charged Legendre with two counts of robbery in the first degree, in violation of Section 569.020, RSMo (2000), and two counts of armed criminal action, in violation of Section 571.015. Legendre later appeared with Plea Counsel to enter guilty pleas to all charged counts. During the plea hearing, Legendre testified that he had sufficient time to discuss his case with Plea Counsel, that he understood his right not to plead guilty and instead proceed to trial on the charges, and that he was waiving his right to trial by pleading guilty. Legendre acknowledged that he was not threatened or promised anything to convince him to plead guilty and that he was pleading guilty voluntarily. Legendre admitted that he committed the acts alleged and that he was guilty of the crimes charged by the State. Legendre further acknowledged that Plea Counsel did everything he asked of her and that he was satisfied with her overall services.

At his subsequent sentencing hearing, Legendre again testified that he had sufficient time to discuss the charges with Plea Counsel prior to pleading guilty, that Plea Counsel answered all his questions, that Plea Counsel did what he asked her to do, that Plea Counsel fully explained his rights, that he had no complaints with Plea Counsel, and that Legendre felt Plea Counsel did a good job. Legendre further testified that Plea Counsel did not make any threats or’promises to persuade him to plead guilty and that he had no reason to believe that Plea Counsel did not represent him to the best of her ability. Legendre was sentenced to 25 years of imprisonment on each count, to run concurrently with each other and all other sentences from other jurisdictions.

On October 23, 2008, Legendre filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence, pursuant to Rule 24.035. Post-conviction counsel was appointed and subsequently filed an amended post-conviction motion requesting an evidentiary hearing. Legendre’s amended motion alleged Plea Counsel was ineffective and that, but for Plea Counsel’s ineffectiveness, he would not have pleaded guilty.

In his amended motion, Legendre alleged that Plea Counsel was ineffective for failing to file motions to suppress incriminating statements made by Legendre to the police and two out-of-court identifications, and for misleading Legendre into believing such motions had been filed with the trial court. Legendre alleged Plea Counsel informed him that hearings on the motions were postponed indefinitely when, in fact, Plea Counsel had not filed any motions to suppress.

In support of his claims, Legendre alleged that he informed Plea Counsel in September 2006, that he wanted to litigate his case and that he “adamantly told [Plea Counsel] he wanted to contest both his statements and the out-of-court ID’s.” Legendre alleged that Plea Counsel initially refused to file the motions, but in June 2007, she “partially relented to Legendre’s requests,” and agreed to prepare a motion to suppress the statements and to depose one of the victims. Legendre further alleged that after a period of inactivity Plea Counsel wrote him a letter stating that she anticipated a hearing on the motion to suppress Legendre’s statements, and later wrote to him stating that the court may hear the motion in January 2008. Legendre claimed Plea Counsel told him in February 2008, that “because of the change to centralized docketing, it was unclear when or how the hearing would be conducted.” Legendre further alleged that when he was told of his upcoming trial date in April 2008, Plea Counsel noted that “If we are able to schedule the suppression hearing for an earlier date, we will do so.” Legendre claimed in his amended motion for post-conviction relief that neither Plea Counsel’s notes and files, nor the court’s minutes, reflected the filing of any motions to suppress.

In his amended motion, Legendre alleged that no hearing was held on any motion to suppress and that when he agreed to plead guilty, Legendre “assumed [Plea Counsel] had done everything in her power to litigate both his statement and the identifications.” Legendre claimed it was not until he was incarcerated that he concluded Plea Counsel failed to litigate the motions to suppress as she had represented. Legendre claimed he was misled into pleading guilty with the suppression issues unresolved.

On September 25, 2009, the motion court entered its Findings of Fact, Conclusions of Law and Order. The motion court denied both Legendre’s request for an evi-dentiary hearing and his amended motion for post-conviction relief. In denying Legendre’s request for an evidentiary hearing, the motion court found that Legendre failed to allege grounds which, if true, would entitle him to relief and that were not refuted by the record. The motion court reasoned that because Legendre repeatedly testified that he was satisfied with Plea Counsel and that she had done everything he asked of her, Legendre’s pleas of guilty were both knowingly and voluntarily made.

Legendre filed a Notice of Appeal to this Court on November 3, 2009. This appeal follows.

Point on Appeal

In his sole point on appeal, Legendre alleges that the motion court clearly erred when it denied his amended motion for post-conviction relief without an evi-dentiary hearing because Legendre alleged facts, not conclusively refuted by the record which, if proven, would entitle him to relief. Legendre claims Plea Counsel was ineffective for failing to diligently investigate and litigate pre-trial motions to suppress evidence although she assured Legendre she had done so. Legendre asserts that, but for his mistaken belief that the suppression issues had been raised before the trial court, he would not have pleaded guilty and would have instead proceeded to trial. Legendre posits that his expression of satisfaction with Plea Counsel’s representation at the time he pleaded guilty and was sentenced did not refute Legendre’s complaints that he was misled by Plea Counsel in a manner that affected the volun-tariness of his guilty plea.

Standard of Review

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

Discussion

Legendre is entitled to an evidentiary hearing on his amended motion because his allegations that Plea Counsel misled him as to the filing of motions to suppress evidence are not refuted by the record.

The salient issue before us is whether Legendre was entitled to an evidentiary hearing on his amended motion for post-conviction relief. Legendre alleges that Plea Counsel was ineffective because she failed to adequately investigate and litigate the admissibility of evidence, and, more importantly, that Plea Counsel misled Legendre into believing that she had filed motions to suppress evidence when she had not. Legendre claims he would not have pleaded guilty had he known the motions to suppress had not been filed. We agree with Legendre that the facts presented in his motion are not refuted by the record, and warrant an evidentiary hearing on his amended motion for post-conviction relief.

To warrant an evidentiary hearing, Legendre’s amended post-conviction motion must meet three requirements: (1) it must contain facts, not conclusions, which, if true, would warrant relief; (2) the alleged facts must not be refuted by the record; and (3) the matters complained of must have resulted in prejudice. Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). “An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief.” Lane v. State, 317 S.W.3d 125 (Mo.App. S.D.2010) (emphasis in original).

To prevail on a claim of ineffective assistance of counsel when the movant has entered a .plea of guilty, the movant “must show his counsel’s representation fell below an objective standard of reasonableness and that, as a result, he was prejudiced.” Hill v. State, 301 S.W.3d 78, 82 (Mo.App. S.D.2010); see also Roberts v. State, 276 S.W.3d 833, 836 (Mo. banc 2009). Where a claim of post-conviction relief of a guilty plea is premised upon a charge of ineffective assistance of counsel, “the [movant] must demonstrate a reasonable probability, that but for counsel’s errors, the [movant] would have insisted on a trial, rather than enter a guilty plea.” Buckner v. State, 995 S.W.2d 47, 49 (Mo.App. W.D.1999). Where, as here, there is a plea of guilty, a claim of ineffective assistance of counsel is “irrelevant except to the extent that it affects the voluntariness and understanding with which the movant made his plea.” Simmons, 100 S.W.3d at 146; see also Hill, 301 S.W.3d at 82. “A plea must be a voluntary expression of the defendant’s choice and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences of the act.” Roberts, 276 S.W.3d at 836. A guilty plea is not “voluntary” if it results from fraud, mistake, misapprehension, fear, persuasion, “or the holding out of hopes which prove to be false or ill founded.” Hill, 301 S.W.3d at 82. Misleading statements “affect the voluntariness of the plea, which implicates the pleader’s fundamental rights under the Missouri and United States Constitutions.” Samuel v. State, 284 S.W.3d 616, 619 (Mo.App. W.D.2009).

Given the procedural history of Legendre’s claim, we first consider whether Legendre is entitled to an evidentiary hearing on his amended motion. See Fisher v. State, 192 S.W.3d 551, 555 (Mo.App. S.D.2006). The motion court denied Legendre an evidentiary hearing because it found that Legendre’s testimony regarding Plea Counsel’s representation at his guilty plea and sentencing hearings refuted the claims Legendre later alleged in his motion. We disagree with the motion court’s reasoning and find that the record before us fails to conclusively show that Legendre is not entitled to relief.

Legendre claimed in his motion that he adamantly told Plea Counsel he wanted to contest both his statement to the police and the out-of-court identifications, and that after an initial resistance, Plea Counsel informed Legendre that she had prepared a motion to suppress. Legendre alleged that Plea Counsel told him that she anticipated having a hearing on the motion, but later claimed that the motion hearing was indefinitely postponed, and it was unclear to her when or how the hearing would be conducted. Legendre alleges in his motion that neither Plea Counsel’s notes or files, nor the court’s minutes, reflect the filing of any motion to suppress with the trial court. These factual allegations, if true, may be sufficient to support Legendre’s claim of ineffective assistance of counsel if the misinformation about the motions to suppress caused Legendre to enter a plea of guilty instead of taking his case to trial. Because “[a] plea must be a voluntary expression of the defendant’s choice,” a guilty plea cannot be “voluntary” if it is the result of fraud, mistake, misapprehension, fear, or persuasion. Roberts, 276 S.W.3d at 836; Hill, 301 S.W.3d at 82. Legendre’s allegations of misrepresentation by Plea Counsel are relevant to the voluntariness of his guilty plea, and, if proven true, could warrant relief by the motion court.

Notably, Legendre’s claims of misrepresentation by Plea Counsel regarding the motions to suppress are not refuted by the record. Although Legendre expressed satisfaction with Plea Counsel at his plea and sentencing hearings, Legendre alleged that he only learned that he had been misled by Plea Counsel regarding the motions to suppress after his sentencing. Legendre claimed that when he testified he was satisfied with Plea Counsel’s representation, he had no knowledge that she had misled him regarding the filings of the motions to suppress. Thus Legendre’s alleged facts are not refuted by the record.

The final requirement for an evidentiary hearing is that the matters complained of must have resulted in prejudice. Legendre claims that but for Plea Counsel’s misrepresentations, he would not have pleaded guilty. Certainly we cannot conclude, without evidence, what course of action Legendre would have taken had he known Plea Counsel had not filed any motions to suppress, nor is it within our province to do so. The determination of witness credibility and weighing of evidence lie within the exclusive realm of the motion court. But it is beyond the motion court’s authority to determine the credibility of testimony or other evidence which has not yet been presented or examined. See Fisher, 192 S.W.3d at 556. Without evidence, one can only speculate as to Legendre’s conduct had he known before his plea hearing that no motions to suppress evidence had been filed with the trial court. Legendre is entitled to a factual inquiry on his claim, which, if true, would entitle him to post-conviction relief. See id. at 557; Rule 24.035(h). While Legendre has alleged that he would not have pleaded guilty had he known of Plea Counsel’s deception, we do not assess the credibility of Legendre’s claim, and do not suggest that Legendre is entitled to post-conviction relief. The issue we resolve is simply whether the claim, if proven true by the evidence, constitutes ineffective assistance of counsel and whether the record, absent an evidentiary hearing on the motion, clearly refutes Legendre’s claim.

Legendre may be unable to prove the facts he has alleged. But such a determination cannot be made without an eviden-tiary hearing. The record before us does not conclusively demonstrate that Legendre was not entitled to relief. Should the evidence support Legendre’s allegations that he was misled by Plea Counsel into believing one or more motions to suppress evidence were filed with the trial court, such misinformation may have rendered Legendre’s guilty plea unknowing and involuntary. If Plea Counsel’s misrepresentations induced Legendre to plead guilty when he would have otherwise proceeded to trial, Legendre was prejudiced. Legendre is entitled to an evidentiary hearing on his amended motion for post-conviction relief because he has alleged facts, not conclusions, which if true, warrant relief. These alleged facts raise matters that are not refuted by the record, and which, if true, resulted in prejudice to Legendre.

Given these facts, we find that the motion court’s denial of Legendre’s Rule 24.035 motion without an evidentiary hearing was clearly erroneous.

Conclusion

The judgment of the motion court is reversed and the cause remanded for an evidentiary hearing on Legendre’s amended motion.

ROBERT G. DOWD, JR., and NANNETTE A. BAKER, JJ., concur.

      . Unless otherwise stated, all rule referenced are to Missouri Court Rules (2008).

      . Unless otherwise stated, all further statutory references are to RSMo (2000).


author: PER CURIAM.

text:
    Myron WEST, Appellant, v. PRINT PACK, INC., and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondents.
    No. ED 94503.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 21, 2010.
    Edward A. Gilkerson, St. Louis, MO, for Appellant.
    Amanda J. Burroughs, Jennifer Y. Weller, Toni L. Camp, St. Louis, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Myron West (“Employee”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) dismissing Employee’s claims for failure to prosecute. Employee contends there was not sufficient competent and substantial evidence to support the Commission’s decision and the decision was contrary to the overwhelming weight of the evidence.

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. However, 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 84.16(b).


text:
    STATE of Missouri, Respondent, v. Carlos PERRY, Appellant.
    No. ED 98406.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 21, 2010.
    Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, and GEORGE DRAPER III, JJ.
   ORDER

PER CURIAM.

Carlos Perry (hereinafter, “Appellant”) appeals from the trial court’s judgment following a jury trial finding him guilty of two counts of possession of a controlled substance, Section 195.202 RSMo (2000), and resisting arrest, Section 575.150 RSMo (Cum.Supp.2007). The jury found Appellant not guilty of unlawful use of a weapon, Section 571.030. Appellant was sentenced to three years’ imprisonment on one of the possession of a controlled substance counts and the resisting arrest count to run concurrent with one year imprisonment on the possession of a controlled substance conviction.

Appellant raises three points on appeal. First, Appellant claims the trial court erred in overruling his motion to suppress the controlled substances found on his person, and in admitting that evidence at trial because that evidence was the fruit of an unlawful seizure. Second, Appellant asserts the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to find Appellant guilty of resisting arrest. Third, Appellant alleges the trial court abused its discretion in accepting the jury’s guilty verdict on resisting arrest because he claims resisting arrest “requires a felony or something more than flight.”

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. We find no error of law. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).

      . All statutory references are to RSMo (2000) unless otherwise indicated.


text:
    Maurice J. HOBSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93736.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 21, 2010.
    Scott Thompson, Office of State Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, JR, P.J., MARY K. HOFF, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Maurice J. Hobson (Movant) appeals from the motion court’s findings of fact, conclusions of law, and judgment denying Movant’s motion for post-conviction relief and request for an evidentiary hearing, filed pursuant to Rule 24.035. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. An extended opinion would have no precedential value or serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    James HUNT, Movant/Movant, v. STATE of Missouri, Respondent.
    No. ED 93872.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 21, 2010.
    Jessica M. Hathaway, Office of State Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, John Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

James Hunt (Movant) appeals from the judgment denying his Rule 24.035 motion for post-conviction relief without an evi-dentiary hearing. Movant sought to vacate his conviction for robbery in the second degree, in violation of Section 569.030, RSMo 2000. Finding no error, we affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. An extended opinion would have no precedential value or serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).

      . Unless otherwise indicated, all further statu-lory references are to RSMo 2000.


text:
    MR. GREEN JADE, INC., Appellant, v. UNDERWRITERS AT LLOYD’S OF LONDON, Respondent.
    No. ED 93814.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Donald V. Nangle, St. Louis, MO, for appellant.
    Bradley R. Hansmann, St. Louis, MO, David E. Walker, Kristine M. Sorenson, Mark R. Schmidt, Chicago, IL, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The plaintiff, Mr. Green Jade, Inc., appeals from the trial court’s entry of summary judgment in favor of the defendant, Underwriters at Lloyds of London, on the plaintiffs claim to recover for fire loss. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(5). And we deny all pending motions before this Court.


text:
    Daniel E. DUNCAN, Respondent, v. Bonnie L. DUNCAN, Appellant.
    No. ED 93966.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 21, 2010.

      Bonnie L. Duncan, Hillsboro, MO, for appellant.
    Daniel E. Duncan, House Springs, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   PER CURIAM.

Bonnie Duncan (Appellant) appeals from the trial court’s judgment granting a full order of protection after Daniel E. Duncan filed a petition for protection, pursuant to the Adult Abuse Act, Sections 455.010 through 455.085 RSMo 2004. Appellant’s brief fails to comply with the rules of appellate procedure so substantially that we cannot review this appeal, and we therefore dismiss it.

Rule 84.04 sets forth various requirements for appellate briefs, and compliance with these 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.” Brown v. Ameristar Casino Kansas City. Inc., 211 S.W.3d 145, 147 (Mo.App. W.D.2007). Pro se appellants are held to the same standards as attorneys regarding Rule 84.04’s mandatory appellate briefing rules. See Pointer v. State, Dep’t of Social Servs., 258 S.W.3d 453, 454 (Mo.App. E.D.2008). While this court recognizes the problems faced by pro se litigants, we cannot give preferential treatment to non-lawyers. It is not for lack of sympathy, but rather is “necessitated by the requirement of judicial impartiality, judicial economy, and fairness to all parties.” Elkins v. Elkins, 257 S.W.3d 617, 618 (Mo.App. E.D.2008) (citation omitted).

Rule 84.04 sets forth certain requirements for an appellant’s brief, including (1) a jurisdictional statement, (2) a statement of facts, (3) the points relied on, and (4) argument. Rule 84.04(b)-(e). Here, Appellant failed to comply with Rule 84.04 in several respects. First, Appellant’s brief fails to either include a jurisdictional statement or identify points on appeal. Rule 84.04(b), (d).

Second, Appellant’s one-page statement of facts does not contain a “fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). Rather, Appellant’s statement is argumentative, incomplete, and references matters outside the record on appeal. See Johnson v. Buffalo Lodging Assocs., 300 S.W.3d 580, 581 (Mo.App. E.D.2009) (dismissing appeal when, among other things, statement of facts violated Rule 84.04(c) in that it was argumentative, incomplete, and referenced matters outside record); Perkel v. Stringfellow, 19 S.W.3d 141, 146 (Mo.App. S.D.2000) (statement of facts should afford appellate court “accurate, complete and unbiased understanding of the facts of the case”).

Last, Appellant’s brief violates Rule 84.04(e), because it fails to set forth the applicable standard of review, presents no legal arguments for reversal, and contains no citations to legal authorities. Appellant does not develop her claim of error “by showing the interaction between the relevant principles of law and the facts of the particular case.” Johnson, 300 S.W.3d at 582 (dismissing appeal for failure to comply with Rule 84.04(e)’s requirements). Significantly, Appellant does not provide a single reference to any legal authority. If a party does not support her arguments with relevant authority or present arguments beyond conclusory statements, the point is deemed abandoned. Id.

Rule 84.04 violations are “grounds for a court to dismiss an appeal.” Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App. E.D.1999). To determine whether Appellant is entitled to relief would require this court to interpret her point, issues, and arguments, placing us in the untenable position of acting as Appellant’s advocate. Schultz v. Warren County, 295 S.W.3d 237, 238 (Mo.App. E.D.2009).

Conclusion

Appellant’s brief so substantially fails to comply with the briefing requirements of Rule 84.04 that it preserves nothing for appellate review. The appeal is dismissed.

      . On this same date, we also dismiss a companion appeal filed by Bonnie Duncan for failure to comply with Mo. Rule Civ. P. 84.04. Rachel Evette Duncan-Anderson v. Bonnie Duncan, No. ED93975.


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

text:
    Rasheed MUHAMMAD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93883.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 21, 2010.

      Scott Thompson, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Evan J. Buch-heim, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Presiding Judge.

Introduction

Movant, Rasheed Muhammad, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. We affirm in part, reverse in part and remand for findings of fact and conclusions of law for one of movant’s claims.

Background

Movant was charged with murder in the second degree and armed criminal action. Movant pled guilty to the two crimes. The court sentenced movant to concurrent terms of twenty-five years’ imprisonment for each conviction.

Movant filed a pro se Rule 24.035 motion. The motion court appointed counsel and an amended motion was filed. In the amended motion, movant raised two claims. Movant alleged that plea counsel rendered ineffective assistance: 1) by promising him that he would not be sentenced to more than twenty years; and 2) by not advising him that he could defend the charges based on self-defense and that the crime he committed “was no more than manslaughter.” The motion court denied the motion without an evidentiary hearing. Movant appeals.

Discussion

Appellate review of a motion court’s ruling on a Rule 24.035 motion is limited to determining whether the motion court’s findings and conclusions are clearly erroneous. Rule 24.035(k); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). The motion court’s findings and conclusions are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Roberts, 276 S.W.3d at 835.

In his sole point on appeal, movant argues that the motion court clearly erred by not issuing findings of fact and conclusions of law for his second claim in the amended motion. The motion court did issue findings and conclusions for movant’s first claim regarding his twenty-year sentence. But the court failed to issue findings and conclusions for movant’s second claim regarding self-defense and committing a lesser crime, manslaughter.

Rule 24.035(j) requires the motion court to “issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” There is no ambiguity in the requirement that a motion court issue findings and conclusions on all issues in a Rule 24.035 motion and the “ ‘directive and its requirements are not a mere formality.’ ” Clayton v. State, 164 S.W.3d 111, 115 (Mo.App. E.D.2005) (citation omitted). Further, a motion court’s findings of fact and conclusions of law must be sufficiently specific to permit meaningful appellate review. Belcher v. State, 299 S.W.3d 294, 296 (Mo. banc 2009); Melton v. State, 260 S.W.3d 882, 886 (Mo.App. E.D.2008).

However, there are certain recognized exceptions to reversing and remanding for the motion court to issue findings of fact and conclusions of law: (1) if the only issue is one of law, the motion court is not required to make findings of fact but must still make conclusions of law; (2) if the motion court conducted an evidentiary hearing for the post-conviction motion and no substantial evidence was presented to support the allegation for which the court failed to make findings; (3) if the court fails to issue a proper conclusion of law on an isolated issue and it is clear that the movant is not entitled to relief as a matter of law and will suffer no prejudice if remand is denied; (4) if the issues were not properly raised or are not cognizable in a post-conviction motion; and (5) if the motion was insufficient. Grimes v. State, 260 S.W.3d 374, 375-76 (Mo.App. W.D.2008); Mitchell v. State, 192 S.W.3d 507, 509 (Mo.App. E.D.2006).

Review of the record reflects that none of these exceptions to issuing findings of fact and conclusions of law applies in this case. If we were to furnish findings of fact and conclusions of law for movant’s second claim, we would be engaging in de novo review and this is not permitted under Rule 24.035(k). Grimes, 260 S.W.3d at 376; Mitchell, 192 S.W.3d at 510.

Conclusion

The judgment is affirmed in part, reversed in part and remanded for the motion court to issue findings of fact and conclusions of law for movant’s second claim.

MARY K. HOFF and PATRICIA L. COHEN, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Michael SUTTON, Appellant.
    No. ED 93223.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 21, 2010.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Chris Koster, Atty. Gen., Terrence M. Messonnier, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Presiding Judge.

Introduction

The defendant, Michael Sutton, appeals his convictions after trial for forcible sodomy, felonious restraint and two counts of armed criminal action. Sections 566.060 RSMo 2007, 565.120 RSMo 2000, and 571.015 RSMo 2000. The defendant raises two points on appeal: 1) the State did not establish a proper chain of custody for the admission of DNA and fingerprint evidence because the State failed to show that the items had not been tampered with or contaminated; and 2) the verdict subjected the defendant to double jeopardy as felonious restraint was incidental to the commission of forcible sodomy and was not a crime in and of itself. We affirm.

Factual Background

We view the facts in the light most favorable to the verdict. On February 26, 2008, the then twenty-five year old victim worked as a property manager at an apartment complex (hereinafter, “Complex”) in O’Fallon Missouri. At about 9:30 a.m., the defendant went to the Complex’s office and spoke with the Victim. The Victim had never previously met the defendant. The defendant told the Victim that he was getting a divorce and needed an apartment for himself and his children. As is her practice, the Victim asked the defendant for an ID. The Victim wrote down the defendant’s information on a sheet of paper called an “information card.” The Victim showed the defendant an apartment, but he wanted to think about it over lunch.

At about 1:00 p.m., the Victim went to a hospital after learning that her grandmother had a heart attack. The Victim returned to the Complex at 4:00 p.m. The Complex’s service manager told the Victim that the defendant had stopped by shortly after 1:00 p.m. to see another apartment. The service manager offered to show an apartment to the defendant, but he indicated that he would come back when the Victim returned.

The defendant returned to the Complex about 5:00 p.m. The Victim then showed him a different apartment. When the Victim and the defendant were in the apartment’s master bedroom, the door slammed and the defendant pulled out a black-handled folding knife. The defendant said to the Victim, “now you are going to do something for me, bitch.” The defendant put the knife to the Victim’s throat and pushed her toward the back wall. The Victim reminded the defendant about her grandmother and asked him why he was doing this. The defendant then lowered his pants and pushed the Victim to her knees.

The defendant told the Victim to perform oral sex, and if she did not, he would either slit her throat or rape her. The Victim complied; the defendant ejaculated. The Victim spit the sperm on her hand, wiped it on her pant’s leg, and threw it on the carpet. The defendant then ran out of the apartment. The Victim, in hysterics, went to a neighbor’s apartment, who called 911. A police officer arrived and secured the apartment.

The Victim was taken to the hospital by ambulance. Detective James Klingler asked a paramedic to put a glove on the Victim’s hand to “protect potential evidence.” At the hospital, the sexual assault nurse examiner, Sandra Miederhoff, performed a rape kit on the Victim. Ms. Miederhoff also collected oral and hand swabs, an oral floss, a blood sample from the Victim, and the Victim’s clothing. After packaging and sealing everything, Ms. Miederhoff turned the evidence over to Detective Klingler.

The Victim told Detective Klingler at the hospital about the “information card” she completed when the defendant first came to the Complex. Another detective prepared a photographic array. The Victim and the Complex’s service manager identified the defendant from this array.

At around 8:00 p.m., Detective Klingler received a call from an individual claiming to be the defendant in response to the officers having gone to the defendant’s parents’ residence. The defendant gave his date of birth and social security number. The defendant then claimed that he was over 500 miles away and would have to drive through two states to get back. The defendant claimed his wife or his mother-in-law was behind the allegations, even though the Victim did not know the defendant’s wife.

The following morning, Sergeant Larry Ellard saw the defendant’s minivan near his wife’s residence. Sergeant Ellard began following the defendant’s minivan. Sergeant Ellard apprehended the defendant after he tried to “shake” or evade the officer.

The day of the crimes, Tiffany Fischer, a crime scene investigator, processed the crime scene and was able to recover the defendant’s fingerprint from the bedroom door. Ms. Fischer also cut out and seized a part of the carpet and took a swab of a “chunky, whitish substance” from the carpet. Another crime scene investigator, Amy Pratt, examined the intact and un-compromised carpet seized by Ms. Fischer and used a fluorescent light to determine what part might have body fluids. Ms. Pratt cut out a section of the carpet that appeared to contain fluids and sealed this section in an evidence bag.

Scott Schroeder, a forensic scientist working for the St. Charles County Sheriffs’ Department, received the sealed rape kit and made a blood stain card from the blood sample, that he sealed. Mr. Schroeder also examined the clothing and carpet and made cuttings based upon a color test for possible body fluids. The evidence was packaged and sealed before being sent to the Missouri Highway Patrol. Subsequently, Detective Klingler took buccal swabs from the defendant and these were also sealed by Mr. Schroeder.

Ruth Montgomery, a criminalist working for the.Missouri Highway Patrol Crime Laboratory, performed DNA analysis on the blood stain card, the buccal swabs, and the cuttings from the Victim’s pants and carpet. The analysis showed that the DNA developed from the sperm on the pants and carpet was consistent with the defendant’s DNA profile. Ms. Montgomery did not test the other items. After the defendant was indicted for forcible sodomy, felonious restraint and two counts of armed criminal action, the trial court granted the defendant’s motion to conduct his own testing by independent lab, Genetic Technologies, Inc.

At trial, the defendant testified that he went to the Complex on February 26, 2008. The defendant also testified that when the Victim showed him an apartment the morning of February 26th, that he agreed with the Victim to return later to the Complex with some vicodin pills in exchange for “a sexual act.” The defendant acknowledged returning to the Complex at about 1:00 p.m. and 5:00 p.m. The defendant further testified that after he returned to the Complex at 5:00 p.m., he went to an apartment with the Victim and then masturbated and ejaculated in anticipation of having oral sex. The defendant stated that after he heard a man’s voice, he got scared and ran out of the apartment because he had vicodin pills with him. The defendant denied putting his penis in the Victim’s mouth, using any force or that he had a weapon. The defendant admitted writing a letter to the prosecutor giving his version of the facts, but he did not mention the Victim’s alleged agreement to exchange sex for pills.

The jury found the defendant guilty of forcible sodomy, felonious restraint, and two counts of armed criminal action. The trial court sentenced the defendant to consecutive terms of thirty years for the sodomy conviction, seven years for the felonious restraint conviction, and fifteen years for each armed criminal action conviction. The defendant raises two points on appeal.

Discussion

Point 1

Defendant argues that the trial court erred in admitting the rape kit, buccal swabs taken from the defendant, the victim’s shirt and pants, carpet from the crime scene and the defendant’s fingerprint also found at the crime scene. The defendant contends that the State did not establish a proper chain of custody for the admission of this evidence because the State failed to show that the items had not been tampered with or contaminated. The record is unclear if the defendant properly preserved his objections to the evidence. This court will review the trial court’s rulings as if the defendant had properly preserved his objections.

“The standard of review for the admission of evidence is abuse of discretion.” State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). For an evidentiary error to cause reversal, “prejudice must be demonstrated.” Id An abuse of discretion in admitting challenged evidence is reversible error only if the admission was so prejudicial that it deprived the defendant of a fair trial. State v. Dizer, 119 S.W.3d 156, 164 (Mo.App. E.D.2003).

A trial court’s ruling “whether a sufficient chain of custody has been established for the admission of an exhibit is a matter within the sound discretion of the trial court.” State v. Link, 25 S.W.3d 136, 146 (Mo. banc 2000). Proving up the chain of custody of an exhibit provides the court with the assurance “that the exhibits were in the same condition when tested as when the exhibits were originally obtained.” Id.; State v. Dawson, 985 S.W.2d 941, 953 (Mo.App. W.D.1999)(proponents of exhibit must provide court with reasonable assurance that exhibits were not tampered with or contaminated). “[PJroof of a chain of custody does not require proof of hand-to-hand custody of the evidence, nor proof that eliminates all possibility that the evidence has been disturbed.” Link, 25 S.W.3d at 146. “The trial court may assume, absent a showing of bad faith, ill will or proof, that officials having custody of exhibits properly discharged their duties and that no tampering occurred.” Id.

We note initially that the Victim in this case clearly identified her shirt and pants, and Ms. Fischer identified the carpet that she cut out and seized from the apartment. When an exhibit is clearly identified at trial even as modified as the exhibits here were by the officers cutting out patches, chain of custody is irrelevant. State v. Gott, 191 S.W.3d 113, 117 (Mo.App. S.D.2006); State v. Spencer, 62 S.W.3d 623, 627 (Mo.App. E.D.2001)(no reason to point out all persons who had custody of the evidence under police custody when victim identified garment). A defendant can cross-examine the State’s witnesses as to any weaknesses with a victim’s identification of the exhibits and the final determination is for the jury to weigh such evidence. Id.

Missouri has long recognized the legal principle that reversible error cannot be predicated upon the admission of evidence that is later confirmed by the defendant’s own testimony. State v. Williams, 948 S.W.2d 429, 431-32 (Mo.App. E.D.1997); State v. Holland, 781 S.W.2d 808, 811 (Mo.App. E.D.1989)(no error in admitting copies of checks as defendant admitted depositing them). In Williams, the defendant was not entitled to complain about prejudice in the admission of a videotaped deposition of the burglary victim, where he admitted committing the burglary. 948 S.W.2d at 431-32. See State v. Sanders, 473 S.W.2d 700, 703-04 (Mo.1971)(error cannot be predicated upon evidence of a defendant’s escape when confirmed by defendant’s own testimony); State v. Eastburn, 950 S.W.2d 595, 604-05 (Mo.App. S.D.1997)(double hearsay testimony of murdered victim confirmed by defendant’s testimony); State v. Swigert, 852 S.W.2d 158, 163 (Mo.App. W.D.1993)(authenticity of letter confirmed by defendant); State v. Cannady, 655 S.W.2d 826, 827 (Mo.App.1983)(no error for allowing witness to testify that she identified defendant’s accomplice where defendant admitted accomplice committed crime as he was merely a bystander).

At trial, the defendant testified in part as follows:

Q. What was your understanding of what you and [the Victim] were going to do when you came back?
A. I was supposed to bring pills back for a sexual act, that she never did. Mainly, the Vicodin pain killers.
Q. What happened when you [and the Victim] got into the apartment [where the crimes occurred]?
A. She showed me the entire apartment. When we got to the back room that’s when I assumed we were going to do what we had discussed.
Q. And what did you do?
A. I wanted oral sex. I started to masturbate in anticipation for what she was going to do. And I ejaculated. I heard a male’s voice outside the door and I left....

Even assuming that the State’s chain of custody failed to provide a reasonable assurance that the seized evidence had not been tampered with or contaminated, this court still finds no prejudice in the admission of the challenged evidence. The defendant directly confirmed by his testimony that: 1) he was physically present in the apartment which confirmed evidence of his fingerprint; and 2) he ejaculated in the apartment which confirmed evidence of his semen in the apartment. The defendant cannot now predicate error upon the admission of evidence that he confirmed by his own testimony. E.g., Williams, 948 S.W.2d at 431-32.

Here, the defendant’s consent defense in essence neutralized the previously disputed evidence. State v. McKee, 811 S.W.2d 498, 500 (Mo.App.1991)(sexual consent defense neutralized prejudice of bed sheet and photograph of apartment). “The evidence establishes precisely what the defendant conceded.” Id. As the court finds no prejudice under these facts, the defendant’s first point is denied.

Point 2

In his second point, the defendant argues that the trial court erred in accepting the jury’s guilty verdicts for felonious restraint and the associated armed criminal action charge because the verdict subjected the defendant to double jeopardy as felonious restraint was incidental to the commission of forcible sodomy and was not a crime in and of itself. The defendant concedes that he failed to raise this objection either at trial or in his motion for a new trial. Rule 29.11(d).

Generally, a defendant must raise a constitutional issue at the earliest opportunity. State v. Dennis, 153 S.W.3d 910, 918 (Mo.App. W.D.2005). “Nevertheless, the right to be free from double jeopardy is a constitutional right that goes ‘to the very power of the State to bring the defendant in the court to answer the charge brought against him.’” Id. Because there is an exception to the general waiver rule “when the court ‘can determine from the face of the record that the court had no power to enter the conviction,’ ” we review for plain error. Id. See Rule 30.20.

“The Double Jeopardy Clause guarantees that one will not be subjected to multiple punishments for the same offense, and it prevents the state from splitting a single crime into separate parts and pursuing several prosecutions.” State v. Garnett, 298 S.W.3d 919, 922 (Mo.App. E.D.2009). “In determining double jeopardy, Missouri follows the separate or several offense rule rather than the same transaction rule.” Id. If the legislature intended to punish the conduct under more than one statute, “a defendant may be convicted of more than one offense based on the same conduct” without offending the double jeopardy clause. State v. White, 14 S.W.3d 121, 125 (Mo.App. W.D.2000)(citing, State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992)). Because the statute for forcible sodomy, Section 566.060, and the statute for felonious restraint, Section 565.120, are silent as to whether the legislature intended to punish this same conduct under both statutes, we must look to Section 556.041 RSMo 2000, the general cumulative statute. Id.

Section 556.041 provides that when the same conduct by a person may establish the commission of more than one crime, the person may be prosecuted for each such offense. However, this statute does set forth four exceptions for permitting the State to prosecute a defendant for each offense. Section 556.041(1)(2)(3)(4). The first exception, at issue for the present case, provides that a defendant may not be convicted of more than one offense if “[o]ne offense is included in the other, as defined in section 556.046.” Section 556.041(1).

Section 556.046(1) codifies the lesser included offense definition set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and is referred to as the same elements test. Peiffer v. State, 88 S.W.3d 439, 443 (Mo. banc 2002); McTush, 827 S.W.2d at 188. Under this test, “[i]f each offense requires proof of a fact that the other does not, then the offenses are not lesser included offenses, notwithstanding a substantial overlap in the proof offered to establish the crimes.” McTush, 827 S.W.2d at 188. The application of this review is straightforward as the elements of the offenses are compared. Id. “If each offense is established by proof of an element not required by the other offense, then neither offense is an included offense within the meaning of Section 556.046.1(1) and the limitation on convictions for multiple offenses codified at Section 556.041(1) does not apply.” Id.

Even if, as suggested by the defendant, the facts of this case show that the defendant’s forcible compulsion also created a substantial risk of serious physical injury for the Victim, the elements and not the facts in the case, determine whether double jeopardy was violated. The analysis “focuses on the statutory elements of the offenses rather than upon the evidence actually adduced at trial.” McTush, 827 S.W.2d at 188. See State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002)(“[t]he elements of the two offenses must be compared in theory, without regard to the specific conduct alleged”).

Although the defendant asserts that “the State was not required to prove anything but the forcible sodomy to obtain a conviction for felonious restraint,” the defendant does concede that “forcible sodomy and felonious restraint do not have identical elements.” Section 566.060.1 RSMo 2007 provides that “[a] person commits the crime of forcible sodomy if such person has deviate sexual intercourse with another person by the use of forcible compulsion.” Whereas, “[a] person commits the crime of felonious restraint if he knowingly restrains another unlawfully and •without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury.” Section 565.120.1 RSMo 2000.

This court has previously rejected a double jeopardy argument for forcible sodomy and felonious restraint convictions. State v. Hill, 817 S.W.2d 609, 610 (Mo.App. E.D.1991). This court held that review of the elements of forcible sodomy and felonious restraint demonstrates that felonious restraint requires proof of facts not required to prove forcible sodomy and forcible sodomy requires proof of facts not required to prove felonious restraint. Id. (citing sections 565.120 and 566.060 RSMo 1986). See also State v. Smith, 902 S.W.2d 313, 314-16 (Mo.App. E.D.1995) (reversing conviction for felonious restraint because the state failed to present sufficient evidence that defendant’s actions, including sodomy, exposed the victim to a substantial risk of serious physical injury).

To convict a person of forcible sodomy, that person must engage in deviate sexual intercourse. This element is not required for a felonious restraint conviction. To convict a person of felonious restraint, the restraint must expose the victim to a substantial risk of serious physical injury. This element is not required for a forcible sodomy conviction. Forcible sodomy and felonious restraint each has a requisite element not required by the other respective crime.

The defendant’s convictions for forcible sodomy and felonious restraint did not violate his protection against double jeopardy. The defendant’s second point is denied.

Conclusion

The judgment is affirmed.

MARY K. HOFF, and PATRICIA L. COHEN, JJ., concur.

      . State v. Johnson, 284 S.W.3d 561, 567 n. 2 (Mo. banc 2009).

      . The statute for sodomy, section 566.060.1 RSMo 1986, provided that a person commits the crime of sodomy if "[h]e has deviate sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion.” The difference between the language of section 566.060 RSMo 2007 quoted above and the statute's language in 1986 does not alter the applicability of Hill to the present case. The statute for felonious restraint, section 565.120, has not been amended since its effective date of January 1, 1979.

      . Under section 566.060.2(1), the authorized term of imprisonment for forcible sodomy is increased to life or not less than ten years’ imprisonment if in the course of committing forcible sodomy the actor displays a deadly weapon or dangerous instrument in a threatening manner. In the present case, the defendant was charged and found guilty of displaying a dangerous instrument in a threatening manner.


text:
    Michael MARTIN, Appellant, v. CITY OF ST. ANN, and Missouri Rural Workers’ Compensation Insurance, Respondents.
    No. ED 94403.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Rick Barry, St. Louis, MO, for appellant.
    Paul D. Huck, St. Louis, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Michael Martin, the claimant in this workers’ compensation action, appeals from the final award of the Labor and Industrial Relations Commission denying compensation. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(4).


text:
    David MISSEY, Sr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 94238.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Chris Koster, Atty. Gen., John M. Reeves, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The movant, David Missey, Sr., appeals the motion court’s order denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 29.15(k). An opinion would have no prece-dential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    Scott Dale PORTER, Respondent, v. Darlene Angela PORTER, Appellant.
    No. ED 94056.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 21, 2010.
    Jon F. Althauser, Union, MO, for appellant.
    Taylor D. Goodale, Union, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Darlene Angela Porter appeals from the trial court’s Judgment Modifying Child Support, which lowered the amount of child support that Scott Porter (Father) had to pay on behalf of the minor child, and allowed Father continued use of tax exemptions for the minor child. We have reviewed the briefs of the parties and the record on appeal, and we conclude the trial court’s decision is supported by substantial evidence and does not erroneously declare the law, Hern v. Hern, 173 S.W.3d 653, 655 (Mo.App. E.D.2005), and is not an abuse of discretion, Spencer v. Spencer, 126 S.W.3d 770, 772 (Mo.App. E.D.2004). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2010).


text:
    Gregory CHAMBERS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93994.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Timothy Forneris, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Terrence M. Messonnier, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J„ and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Gregory Chambers (“Movant”) appeals from the judgment of the motion court denying his motion for post-conviction relief under Rule 29.15 without an evidentia-ry hearing. Movant contends that the motion court clearly erred in denying his motion for post-conviction relief.

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 opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Reginald RILEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93992.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.

      Jessica M. Hathaway, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The movant, Reginald Riley, appeals the motion court’s order denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 24.035(k). An opinion would have no prec-edential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 24.035 motion for postcon-viction relief is affirmed. Rule 84.16(b)(2).


text:
    Travis RATLIFF, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93985.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Timothy Forneris, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Jamie Pamela Rasmussen, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Travis Ratliff (“Movant”) appeals from the judgment of the motion court denying his amended motion for post-conviction relief pursuant to Rule 24.035 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 opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Donna Ann THIELE, Plaintiff/Appellant, v. Ronald G. THIELE, Steven D. Thiele, and Dennis Thiele, Defendants/Respondents.
    No. ED 93755.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.

      Marcus A. Glass, Bloomfield, MO, for appellant.
    R. Howard Dillard, Cape Girardeau, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The plaintiff, Donna Ann Thiele, appeals the judgment entered by the Circuit Court of Franklin County, dismissing with prejudice her petition against her three brothers — Ronald, Steven, and Dennis Thiele— contesting the will of her mother, Anna Bell Thiele. Finding no error, we affirm.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision. The trial court’s judgment is affirmed. Rule 84.16(b)(5).


text:
    STATE of Missouri, Respondent, v. Maurice DAVENPORT, Appellant.
    No. ED 93543.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Chris Foster, Atty. Gen., Robert J. Bartholomew, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ.
   ORDER

PER CURIAM.

Maurice Davenport (Defendant) appeals the trial court’s judgment and sentence after a jury convicted him of third-degree domestic assault and attempted forcible rape.

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 opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Jerome MORRIS-BEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94451.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.

      Brocea Smith, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The movant, Jerome Morris-Bey, appeals the motion court’s order denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 29.15(k). An opinion would have no prece-dential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    STATE of Missouri, Respondent, v. Howard C. LAKE, Appellant.
    No. WD 71306.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2010.
    Craig A. Johnston, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., John W. Grantham, Esq., Jefferson City, MO, for respondent.
    BEFORE DIVISION FOUR: LISA WHITE HARDWICK, C.J. Presiding, JAMES E. WELSH and KAREN K. MITCHELL, JJ.
   Order

PER CURIAM.

Following a jury trial, Howard Lake appeals his conviction for driving while intoxicated. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the conviction.

AFFIRMED. Rule 30.25(b).


author: GARY D. WITT, Judge.

text:
    Nicole L. HOWERY, Respondent, v. Roger William HOWERY, Appellant.
    No. WD 71596.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2010.

      Leonard K. Breon, Warrensburg, MO, for respondent.

      James P. Barton, Jr., Marshall, MO, for appellant.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Roger Howery (“Roger”) appeals the trial court’s denial of his Motion for New Trial and/or to Amend Judgment concerning the division of property pursuant to a dissolution of marriage between Roger and the Respondent Nicole Howery (“Nicole”). This appeal is dismissed and the cause is remanded.

I. Factual Background

This appeal pertains solely to the trial court’s classification and division of non-marital and marital property pursuant to a dissolution of marriage action between Roger and Nicole. Nicole filed a Petition for Dissolution and Custody on July 18, 2008. Roger responded with an Answer and Counter-Petition for Dissolution of Marriage. Nicole served First Interrogatories and First Request for Production of Documents upon Roger who failed to respond, which then prompted the court to take up a Motion to Compel and/or to Impose Sanctions. Following the hearing on that motion, Roger avoided having his pleadings stricken by partially responding to Nicole’s discovery requests on the very last day before sanctions were to be imposed.

With respect to the division of property, Nicole filed an Amended Statement of Marital and Non-Marital Assets and Debts on March 17, 2009. Roger never filled out, filed or provided to Nicole or her counsel, a Statement of Marital and Non-Marital Assets and Debts. The matter came to trial on April 3, 2009, by which time the parties had reached an agreement regarding the care, custody and control of the parties’ child as well as the child support issues. The only remaining issue for trial was the classification and division of property. Nicole testified at trial regarding the value and ownership of specific assets and Nicole’s Amended Statement of Marital and Non-Marital Assets and Debts was received into evidence without objection. Part way through Roger’s testimony, as a sanction for his failure to fully respond to discovery and failure to comply with local Rule 68.4(a), the court refused to allow him to testify further as to the classification, value, and division of the property.

After trial and before the entry of judgment, the parties filed a joint stipulation acknowledging that Roger had falsely testified (before the court imposed the above referenced sanctions) as to the source of funds for a certificate of deposit (CD). Roger testified that the CD was purchased with non-marital funds he inherited from his mother’s estate. However, the parties later stipulated that the CD was purchased with funds withdrawn from their daughter’s educational account and the CD belonged to the daughter.

The trial court issued its Judgment Order and Decree of Dissolution (“Judgment”) which divided the property between the parties. The court adopted Nicole’s Amended Statement of Marital and Non-Marital Assets and Debts, attached it to and incorporated it into its Judgment.

Roger filed a Motion for New Trial and/or to Amend Judgment with Supporting Suggestions (“Motion for New Trial”). As it pertains to this appeal, Roger argued that the trial court’s determinations of marital and non-marital property were against the weight of the evidence. The motion also argued that the trial court impermissibly awarded to Nicole premarital or non-marital property belonging to Roger. Finally, the motion argued the trial court failed to distribute a number of items of personal property. There was no evidence presented regarding these items of personal property during the trial. The trial court held a hearing on the motion which was overruled. Roger now appeals.

II. Standard of Review

“The standard for reviewing a judgment of dissolution is the same as in any court-tried action.” Vanderpool v. Vanderpool, 250 S.W.3d 791, 794 (Mo.App. S.D.2008). “ ‘In a court-tried case, the decree of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.’ ” Potts v. Potts, 303 S.W.3d 177, 184 (Mo.App. W.D.2010) (quoting Kester v. Kester, 108 S.W.3d 213, 218 (Mo.App. S.D.2003)). “The reviewing court defers to the trial court’s determination of credibility and views the evidence and inferences therefrom in the light most favorable to the decree disregarding all contrary evidence and inferences.” Jordan v. Jordan, 984 S.W.2d 878, 880 (Mo.App. W.D.1999).

Analysis

Although not properly raised in his point on appeal, Roger argues that the trial court has not yet distributed all marital and nonmarital property, and therefore, the trial court still has jurisdiction over this action. See Crawford v. Crawford, 31 S.W.3d 451, 453 (Mo.App. W.D.2000) (“Unless and until all marital property has been distributed, the trial court’s judgment is not final.”). It is the duty of this court to determine its own jurisdiction sua sponte, and therefore, a deficiency in the briefing of the point is inconsequential. Id. (citing Spauldin v. Spauldin, 945 S.W.2d 665, 668 (Mo.App. W.D.1997)).

In his Motion for New Trial, Roger claimed that a number of “marital and non-marital assets ... were not divided or set aside by the court.” The items consisted of multiple pieces of jewelry and two computers. The court did not amend its judgment, and those specific pieces of property were never disposed of by the court. “If the undistributed property is discovered before the time for appeal has run, the appellate court, when presented with an appeal raising the issue of undistributed property, must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not rendered a final judgment from which an appeal can be taken.” State ex rel. McClintock v. Black, 608 S.W.2d 405, 406 (Mo. banc 1980).

The following items were identified as undistributed before the time for appeal passed: solitaire ring; men’s diamond ring; 1960 class ring; small diamond solitaire ring; blue pearl necklace; two pearl rings; sapphire tennis bracelet; five or six gold chain necklaces; one set diamond stud earrings; desktop computer; and laptop computer. We are sympathetic to the trial court, having properly imposed sanctions against Roger for his intentional and contemptuous failure to comply with the general rules of discovery, local court rules, and the orders of the trial court, now is faced with Roger’s sudden interest, post judgment, in listing personal property that he argues should have been divided. However, we are bound by the Supreme Court precedent regarding the authority of the appellate courts. Id. Because there is allegedly undivided property that was brought to the attention of the trial court before the time for appeal had expired, the judgment in this case is not final and the trial court retains jurisdiction. We must dismiss the appeal. Rogers v. Rogers, 253 S.W.3d 134, 138-39 (Mo.App. W.D.2008) (citations omitted) (quoting Jonusas v. Jonusas, 168 S.W.3d 117, 121 (Mo.App. W.D.2005)).

In order to promote judicial economy and save time and expense for the parties and the courts, we exercise our discretion and address Roger’s points on appeal to provide the parties and the trial court with guidance on how to proceed. Iowa Steel & Wire Co. v. Sheffield Steel Corp., 227 S.W.3d 549, 557-558 (Mo.App.2007).

In Point One, Roger argues the trial court erred in refusing to sustain his Motion for New Trial and/or to Amend Judgment with Supporting Suggestions (“Motion for New Trial”) in that the court misapplied the law by failing to classify property as marital or nonmarital and then allocated nonmarital assets to equalize the division of marital assets. Roger frames this issue as an appeal of the court’s ruling on a new trial motion or motion to amend the judgment. This court is charged with review of the judgment. Accordingly, Roger’s framing of the issue is improper.

Section 452.330 provides the procedures the trial court must follow to classify property in a dissolution proceeding and provides guidance how to achieve an equitable distribution. Section 452.330 says the trial court shall “set apart to each spouse such spouse’s nonmarital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors.”

First, Roger contends that the trial court failed to specify which assets were marital and which were nonmarital or premarital. This argument is perplexing in that the Judgment adopted and incorporated the Amended Asset Analysis and Proposed Division of Marital Property form. That form clearly divides the property into different categories. Relevant to our inquiry here is that the form includes separate categories for marital and non-marital property and sets forth the value of each item. Roger’s suggestion that the trial court failed to classify the property as either marital or nonmarital is unsupported by the record.

Second, Roger argues that the trial court improperly awarded his non-marital or premarital assets to Nicole. Roger references a number of such alleged items contained in his Motion for New Trial and includes the following: 1975 MG Midget; 1995 Seadoo; antique books; school bell; antique rocker; antique plates; glass top table; patio set; Singer sewing machine; and quilts. However, Roger never submitted any evidence to the trial court to support his contention that these items were nonmarital or premarital property. Roger intentionally and contemptuously failed to fill out an asset and liability statement as requested by Nicole in discovery and as is required by local court rule 68.4. As a sanction, the trial court refused to hear testimony from Roger on the specific classifications, value, and ownership of items of property. The trial court specifically found that Roger lacked credibility, which was at least partially due to his stipulation that he lied under oath regarding the source of funds for the daughter’s CD. Nicole submitted an Amended Statement of Marital and Non-Marital Assets and Debts, in which she classified the property as being marital or nonmarital and listed the alleged owner. She also testified to the accuracy of that document, and it was received into evidence by stipulation of the parties.

“The trial court is accorded broad discretion in distributing marital property.” Rodieck v. Rodieck, 265 S.W.3d 877, 380 (Mo.App. W.D.2008) (citing Henning v. Henning, 72 S.W.3d 241, 245 (Mo.App. W.D.2002)). “ “When characterizations of property as marital or separate rest on an assessment of witness credibility, this court defers to the trial court’s determination of that credibility.’ ” Hernandez v. Hernandez, 249 S.W.3d 885, 888 (Mo.App. W.D.2008) (quoting Beckham v. Beckham, 41 S.W.3d 908, 911-12 (Mo.App. W.D.2001)). Accordingly, the trial court operated well within its discretion to find Roger not credible and, subsequently, to rely on the only evidence before the court on these issues — Nicole’s testimony and exhibits.

Point Denied.

In Point Two, Roger specifically contests the classification as marital property a piece of real estate located at Route 4, Box 301, Marshall, Missouri (“the Marshall Property”). He contends this finding was not supported by the greater weight of the evidence or was against the weight of the evidence. In its Judgment, the court found “both parties have a marital interest” in the Marshall Property “and that neither party has provided the Court with appropriate evidence concerning the amount of marital interest in the residence, but because the Court finds [Roger] to lack credibility, the Court is adopting [Nicole’s] evidence on this issue.”

The trial court has considerable discretion in its classification of property as marital or non-marital. Rodieck, 265 S.W.3d at 380. When that discretion is exercised based upon the trial court’s determination of credibility, this court will give deference to that determination. Hernandez, 249 S.W.3d at 888. The evidence adduced from Nicole at trial with respect to this property was as follows: Nicole testified that the home was owned by Roger prior to their marriage; although her name was not initially on the deed, shortly after they married the property was refinanced and Nicole’s name was added to the deed; finally, Roger and Nicole throughout their marriage made many improvements to the property and used marital funds to do so.

Considering the evidence in a light most favorable to the trial court’s judgment, we cannot say that the trial court’s finding that the Marshall Property was marital property was erroneous or against the weight of the evidence. The only credible evidence presented on this issue was the testimony of Nicole. This evidence suggests that Nicole’s name was added to the deed of the Marshall Property after the marriage. “Placing separate property into the names of both spouses creates a presumption that the property has been transferred to the marriage ‘and clear and convincing evidence is required to show that the transfer was not intended as a gift.’ ” Blydenburg-Dixon v. Dixon, 277 S.W.3d 815, 819 (Mo.App. W.D.2009) (quoting In re Marriage of Tullier, 989 S.W.2d 607, 612 (Mo.App. S.D.1999)). Therefore, Nicole’s testimony created a re-buttable presumption that the house was marital property, and Roger would have had to rebut the presumption by clear and convincing evidence. Since Roger failed to present any credible evidence on the issue, the trial court’s determination that the Marshall Property was marital property was not a misapplication of the law and was supported by substantial evidence.

Point Two is denied.

Conclusion

Because the judgment is not final, the appeal must be dismissed, and the case must be remanded to the trial court to classify and distribute the remaining undistributed items. Nothing in this opinion should be construed as requiring the trial court to allow the parties to re-litigate the issues previously decided by the trial court. It will remain in the trial court’s discretion whether to allow Roger to present evidence regarding the categorization and value of any of the previously undistributed items of property. It will also remain in the trial court’s discretion to determine if either party should bear any portion of the attorney fees of the other party for the additional hearing required by this remand.

All concur.

      . "In all cases for dissolution of marriage, legal separation, paternity, and any motion to modify a decree with respect to support or maintenance, questionnaires entitled “Income and Expense Statement” and "Statement of Marital and Non-Marital Property” in the form established by the Court shall be completed by each party under oath and shall be filed with the Circuit Clerk on the day of trial and served upon opposing counsel or opposing party three (3) days prior to trial. These requirements are waived by the Court in settled cases.” 15th Cir. Mo Ct. R. 68.4(a).

      . All statutory citations are to RSMo 2000 as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . Roger, in his brief, inappropriately focuses on the soliloquy by the trial judge during the hearing on his Motion for New Trial, rather than the language of the judgment. In a civil matter, this court reviews the written judgment and not the oral pronouncements of the judge. State ex rel. Euclid Plaza Assocs. L.L.C. v. Mason, 81 S.W.3d 573, 576 n. 1 (Mo.App. E.D.2002).

      . Roger does not challenge on appeal this sanction against him.


author: JOSEPH M. ELLIS, Judge.

text:
    Susie BROWN, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71636.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2010.
    Samuel I. McHenry, for Appellant.

      Ninion S. Riley, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   JOSEPH M. ELLIS, Judge.

Susie Brown appeals from a decision issued by the Labor and Industrial Relations Commission denying her request for unemployment benefits. For the following reasons, the Commission’s decision is reversed, and the cause is remanded for further proceedings.

Brown was employed as a referral coordinator by Kansas University Physicians, Inc. in Kansas City, Kansas from May 5, 2008, until February 17, 2009. Brown resigned from that position after having been beaten by her husband the previous evening and deciding to move from their home in Lenexa, Kansas, to Rockville, Missouri, where her daughter and brother live, to get away from him.

On March 8, 2009, Brown applied for unemployment benefits in the State of Kansas. A Kansas unemployment insurance judge ultimately determined that Brown was entitled to benefits in that state because, under Kansas law, an individual is not disqualified from receiving benefits if the individual left work due to circumstances resulting from domestic abuse, including the need to relocate to another geographic area in order to avoid future domestic violence.

When she was no longer eligible for benefits in Kansas, Brown filed a claim for unemployment benefits in Missouri. The Division of Employment Security denied her claim, concluding that she had left her employment without good cause attributable to her employer. That determination was upheld by the Appeal’s Tribunal. Brown appealed that decision to the Commission, which affirmed the decision of the Appeals Tribunal and adopted that opinion as its own. Brown brings one point on appeal from that decision.

This Court’s review of a decision entered by the Commission is governed by Section 288.210, which provides:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Hoover v. Community Blood Ctr., 153 S.W.3d 9, 12 (Mo.App. W.D.2005) (internal quotations omitted). “ ‘[Wjhether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.’ ” Dolgencorp, Inc. v. Zatorski, 134 S.W.3d 813, 817 (Mo.App. W.D.2004) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). ‘“An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.’ ” Id. (quoting Hampton, 121 S.W.3d at 223).

“In considering the whole record, this court defers to the Commission’s determination as to the credibility of witnesses.” Id. On the other hand, “on appeal, we are ‘not bound by the Commission’s conclusions of law or the Commission’s application of law to the facts.’” Hoover, 153 S.W.3d at 12 (quoting McClelland v. Hogan Pers., LLC, 116 S.W.3d 660, 664 (Mo.App. W.D.2003)).

The Commission’s decision contained the following findings of fact and conclusions of law:

FINDINGS OF FACT:
The claimant was employed by Kansas University Physicians as a referral coordinator from January 30, 2008 to February 17, 2009, when she resigned to relocate to another state. The claimant relocated due to domestic violence. The claimant’s husband blackened her eye, and beat her to the point she had red and purple bruises covering her body. The claimant had divorced her husband in 1996 due to abuse. Since they remarried, the episodes of abuse have become worse. The claimant has not contacted her husband since she left Kansas.
* * *
CONCLUSIONS OF LAW:
The issue is whether the claimant is disqualified for benefits, by reason of her separation from work on February 17, 2009. A claimant shall be determined disqualified for benefits when the claimant had left employment voluntarily without good cause attributable to the work or to the employer.
To be “attributable” the circumstance motivating the employee to leave work must be work related. See Bussmann Manufacturing Co. v. Industrial Commission of Missouri, 327 S.W.2d 487 (Mo.App.1959).
The claimant resigned her position due to domestic violence, which is a circumstance unrelated to the job. So, the claimant did not leave work for good cause attributable to the work or to the employer.
Therefore, the Appeals Tribunal must conclude that the claimant is disqualified for benefits, by reason of her voluntary separation from work on February 17, 2009.

In her sole point on appeal, Appellant claims that the Commission erred in finding that she voluntarily left her employment without good cause related to her employer because she was coerced into leaving her employment due to domestic abuse. She argues that her continued employment with Kansas University Physicians and her presence in the Kansas City area threatened her safety in light of death threats made by her husband.

Section 288.050.1(1) states that a claimant is disqualified from receiving benefits if “the claimant has left work voluntarily without good cause attributable to such work or to the claimant’s employer.” The Missouri Supreme Court has defined “voluntary” as “proceeding from the will: produced in or by an act of choice,” and held that “[t]his meaning requires a court to make a factual determination regarding voluntariness.” Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 598 (Mo. banc 2008) (internal quotation omitted). The Supreme Court noted that unemployment benefits were “for the benefit of persons unemployed through no fault of their own” and held that “those who leave work involuntarily are never disqualified from eligibility under [§ 288.050.1(1) ].” Id. (internal quotation omitted). In so holding, the Missouri Supreme Court reversed a large volume of case law that had held employees were per se disqualified for benefits in any case in which their reason for unemployment was a physical condition not attributable to the employer, i.e. pregnancy or illness. Id. at 598 n. 7. Difattar-Wheaton found that the employee’s unemployment in that case was not voluntary because “[i]t cannot be said that she made a choice or was otherwise responsible for her ovarian cancer, its complications, or the timing of their occurrence. And, she took the steps necessary to preserve her employment given these uncontrollable factors.” Id. at 599; see also Korkutovic v. Gamel Co., 284 S.W.3d 653, 657-58 (Mo.App. E.D.2009).

Certainly there can be instances where the factual circumstances surrounding a case of domestic abuse are such that the victim has no choice but to resign or temporarily leave their employment and relocate in order to escape serious physical harm. In its decision, however, the Commission, despite finding credible Brown’s claims of abuse, failed to enter any finding of fact addressing whether Brown’s resignation was voluntary or whether she had any other real choice in the matter. Likewise, the Commission’s conclusions of law focused entirely upon the issue of whether her reason for unemployment was attributable to her employer and included no analysis of voluntariness of her resignation as required by Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 598 (Mo. banc 2008).

While the Division of Employment Security generally argues that this case should be differentiated from Difattar-Wheaton because “there were other steps [Brown] could have taken to end the abuse while preserving her employment,” the Division cites no evidence or authority supporting that proposition, and the Commission made no factual findings related thereto. Certainly, on remand, in determining whether Brown’s resignation was voluntary, the Commission will be afforded an opportunity to consider whether Brown’s claim that she had no other reasonable options available to her is credible, and whether she acted reasonably with respect to her employment in light of the difficult circumstances she faced.

For the foregoing reasons, the Commission’s decision is reversed, and the cause is remanded for further proceedings consistent with this opinion.

All concur.

      . The Division argues that the General Assembly's later enactment of § 288.501(2)(c), RSMo Cum.Supp.2009, which provides that a claimant shall not be disqualified for unemployment benefits if he or she leaves employment due to domestic violence, indicates that the termination of employment due to such circumstances was not previously addressed by § 288.050. Section 288.501 was enacted by the General Assembly to enable the State to receive payments under the federal American Recovery and Reinvestment Act of 2009, and apparently never took effect due to the failure of the condition specified in § 288.501(8). We have previously recognized that similar state statutes enacted as a condition of participation in federal grant or other cooperative programs do not necessarily reflect that the matters addressed were not otherwise subject to Missouri statutes, but that such new federal-counterpart statutes may instead merely be intended to clarify the scope of existing Missouri law. See Self v. Midwest Orthopedics Foot & Ankle, P.C., 272 S.W.3d 364, 369-70 (Mo.App. W.D.2008) (quoting Mo. Comm'n on Human Rights v. Red Dragon Rest., Inc., 991 S.W.2d 161, 167 (Mo.App. W.D.1999)). Section 288.501(2)(c) does not prevent this Court from determining, consistently with Difatta-Wheaton, that unemployment related to domestic violence may be involuntary under § 288.050.

      . The Commission made no finding as the credibility of Appellant’s testimony that her husband had made death threats to her or the reasonableness of her belief of any such threats.