author: BARNEY, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Robert E. CRAWFORD, Appellant.
    No. 23530.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 29, 2000.

      Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
   BARNEY, Chief Judge.

Appellant, Robert E. Crawford, (“Appellant”) was convicted of the Class C felony of statutory rape in the second degree, § 566.034, RSMo 1994, following a jury trial in the Circuit Court of Jasper County, Missouri. He was sentenced to four years imprisonment. Appellant now raises two points of trial court error, discussed below. We affirm.

Viewed in the light most favorable to the verdict, State v. Culbertson, 999 S.W.2d 732, 733 (Mo.App.1999), the record shows that the victim, K.R., a 15-year-old girl and neighbor of Appellant, visited Appellant’s home in February of 1999. She was asked by Appellant to join him in his bedroom where Appellant then disrobed. K.R. proceeded to disrobe also and the two engaged in oral and vaginal sexual intercourse. K.R. also testified that she and Appellant engaged in sexual intercourse a second time in February of 1999. On May 24, 1999, K.R. contacted the department of Family Services to report the incidents of sexual intercourse involving Appellant. A social worker contacted Detective Darren Gallup of the Joplin Police Department regarding KR.’s allegations. Detective Gallup contacted KR.’s father discussing a plan whereby KR.’s father would arrange a taped telephone conversation with Appellant, hoping Appellant would make incriminating statements. However, KR.’s father declined to participate in the scheme. Detective Gallup went to Appellant’s home to speak with Appellant regarding his purported involvement with K.R. Detective Gallup then arrested Appellant and took him to the police department where Appellant informed Detective Gallup that Appellant had been born on August 24, 1949, and during a videotaped interview he confessed to having sexual intercourse with K.R.

At trial, Appellant did not take the stand. Detective Gallup testified as to Appellant’s confession at the police station regarding having sexual intercourse with K.R., and testified that Appellant had given him a statement as to his age, i.e., 49 years. The jury was then allowed to watch a videotape of Appellant’s confession.

In his first point of trial court error, Appellant contends that the state had failed to prove him guilty of the crime of statutory rape in the second degree beyond a reasonable doubt because the state failed to prove Appellant’s age “without reference to [Appellant’s pre-trial videotaped] statement as to his age, which was inadmissible for this purpose, since the corpus delicti ... had not been established.” Appellant argues that absent independent proof, circumstantial or direct, of the essential elements of the corpus delicti, no extrajudicial admissions or confessions made by him, were admissible in evidence at trial. State v. Summers, 362 S.W.2d 537, 542 (Mo.1962). He reasons that since statements as to his age were improperly admitted at trial there was insufficient evidence presented at trial to sustain his conviction.

As support for the foregoing proposition, Appellant also refers this Court to City of Albany v. Crawford, 979 S.W.2d 574 (Mo.App.1998), involving a 19-year-old man who was charged and found guilty of violating a city ordinance prohibiting persons under the age of 21 from possessing intoxicating liquor. In reversing Crawford’s conviction, a panel of the Western District of this Court determined that “[p]roof of age is an essential element of an offense of possession of beer by a person under the age of 21.” Id. at 575. The Court reasoned that the city had not presented independent, corroborating proof of defendant Crawford’s date of birth, since the only evidence of defendant Crawford’s age was the arresting officer’s testimony that defendant Crawford had told him that he was 19 years of age. Id. The Court determined that this statement was insufficient to demonstrate the age of the defendant. Id.

We note that an issue as to the corpus delicti rule is distinguishable from an issue as to the sufficiency of the evidence, although they may overlap. The corpus delicti rule deals specifically with whether a defendant’s confession of guilt may be considered substantive evidence of guilt. Culbertson, 999 S.W.2d at 736. “Generally, the State must prove the commission of a crime with evidence independent of a confession of the accused.” Id. “The corpus delicti of a crime is established by proving that the crime charged was committed by someone.” Id. “Once evidence other than the defendant’s confession shows that a crime was committed by someone, then defendant’s confession is admissible.” State v. Hankins, 599 S.W.2d 950, 953 (Mo.App.1980)(affirming a judgment of conviction for the statutory rape of a 12-year-old girl). Furthermore, “[establishment of the identity of the defendant as the guilty party is not required before a confession is admitted in evidence.” Id. While the corpus delicti may not be presumed, and the burden is upon the state to prove the corpus delicti, the state may provide the corpus delicti of a crime through direct or circumstantial evidence. Culbertson, 999 S.W.2d at 736. Proof of the corpus delicti and an admission can be considered together and the sum of the two can go to prove the essential elements of the crime. Evans, 992 S.W.2d at 285. “Only slight corroborating facts are sufficient to establish the corpus delicti.” Id.

In the instant matter, unlike City of Albany v. Crawford, supra, there was ample evidence corroborating Appellant’s confession. The victim called the “hotline” at the Division of Family Services and factually reported incidents of sexual intercourse with Appellant during the month of February 1999, the same month her mother had died. She repeated these same facts at trial. The state also expressly proved that the victim was 15-years-old at the time of the sexual intercourse, having been born on July 5, 1983.

Appellant’s videotaped confession, which was shown to the jury, also corroborates Appellant’s confession that he was over 21 years of age. Unlike the factual scenario found in City of Albany— involving a 19-year-old man, an age very close to his age of majority — -the fact that the jury could view Appellant’s appearance on the videotape and observe that he was at least 21 years of age corroborates Appellant’s confession of his age. The foregoing, in conjunction with his statement admitting his age as 49 and his confession made to Detective Gallup of having sexual intercourse with K.R., supports the proposition that the corpus delicti was established. “If the evidence shows corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession are considered in determining whether the corpus delicti is proven.” Hankins, 599 S.W.2d at 953-54. Based on the foregoing, Appellant’s statement of his age was properly admitted and sufficient evidence was presented from which a reasonable jury could find Appellant guilty beyond a reasonable doubt. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc 1997); see also Culbertson, 999 S.W.2d at 736. Point denied.

In his second point, citing State v. Seiter, 949 S.W.2d 218 (Mo.App.1997), Appellant maintains that the trial court erred when — in the course of Appellant’s closing argument — the trial court sustained the state’s objection when Appellant sought to draw an adverse inference from the state’s failure to call KR.’s father. Appellant maintains where a witness at trial could reasonably be expected to testify in the State’s favor, the defendant may comment on the state’s failure to do so. While we agree that this is generally a correct statement of the law, we find no merit in Appellant’s point.

Trial courts have broad discretion in the control of closing arguments. State v. Barton, 936 S.W.2d 781, 783 (Mo. banc 1996); State v. Anderson, 867 S.W.2d 571, 576 (Mo.App.1993). Unless it clearly appears that the trial court abused its discretion its rulings will not be disturbed on appeal. State v. Walton, 920 S.W.2d 585, 587 (Mo.App.1996). This discretion is abused when a ruling is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997)(quoting Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976)). “[I]f reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Id. at 883-84.

“Where a witness is equally available to both parties or unavailable to either party, the trial court should not permit counsel to argue to the jury during closing argument that an adverse inference arises from the state’s failure to call the witness.” Anderson, 867 S.W.2d at 576. “Only when the missing witness is ‘peculiarly available’ to one party should the court consider whether the party’s failure to call the witness supports the inference that the witness could have testified adversely to that party if called.” Id. “ ‘Equally available’ means more than merely being susceptible to service of process and is determined by consideration of the following three factors: (1) one party’s superior ability to know or identify the witness; (2) the nature of the testimony expected to be given by the witness; and (3) a relationship between a party and the witness which indicates a likelihood that the witness would testify more favorably for one party than the other.” Id.

Here, we fail to discern how KR.’s father was “peculiarly available” to the state. Appellant was well aware of KR.’s father because he and K.R. had stayed with Appellant during a period of time that K.R. and her father had no place to live. Furthermore, the record shows that KR.’s father had been subpoenaed by Appellant to appear at trial and was endorsed as a witness by the state, however, neither party called KR.’s father to the stand. Additionally, Appellant does not maintain that K.R.’s father would be expected to corroborate his daughter’s testimony because the record shows that he was not present during the incidents nor in our review of the record can we discern that he had any knowledge that would have exonerated Appellant. While given the underlying charges in the instant matter, a father may be more likely to testify in favor of a daughter, it does not necessarily follow that a family relationship automatically gives rise to a judicial inference that a family member is more likely to testify favorably for another family member. See State v. Chunn, 784 S.W.2d 228, 231 (Mo.App.1989); see State v. Gilmore, 661 S.W.2d 519, 522-23 (Mo. banc 1983).

In either event, Appellant was not prejudiced by the trial court’s actions in sustaining the state’s objection as set out, supra. “On direct appeal we review the trial court ‘for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.’ ” State v. Clayton, 995 S.W.2d 468, 474 (Mo. banc 1999)(quoting State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182 (1998)). Here Appellant was given ample opportunity to bring before the jury the testimony of Detective Gallup that KR.’s father had refused to be involved in a scheme to get Appellant to make incriminatory statements. Although the trial court sustained the state’s objection to Appellant’s arguments relating to K.R.’s father’s refusal to engage in the scheme, the following remarks made by Appellant’s counsel were heard by the jury and were never stricken from the record, to-wit:

Detective Gallup’s first desire was that he wanted to get [K.R.] and her dad to call Mr. Crawford up on the phone, try to get them to have some kind of a conversation in which they would make an effort for Mr. Crawford to somehow say that he had committed this crime. And he didn’t want to do that. I guess nobody asked him whether [K.R.] wanted to do that or not, but he said he didn’t do it because [KR.’s] father, ... didn’t want that done.... First of all, these — you’ve heard that [K.R.] and [her father] were living there in the house with Mr. Crawford. Where is [KR.’s father]? You didn’t hear anything from him today. You’d have to assume that his testimony would be most available to the state. It’s his daughter. You’d have to assume that it would be favorable to the state. We didn’t hear from him.
[state’s counsel]: Objection, Judge.
[trial court]: Objection will be sustained.

Thus, we fail to see how the trial court either abused its discretion or created prejudice to Appellant by limiting Appellant’s closing argument in this respect. Point denied.

The judgment is affirmed.

PREWITT and CROW, JJ„ concur.

      . Section 566.034.1, RSMo 1994 reads as follows:
      A person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age.

      . Appellant gave his age in connection with Detective Gallup filling out an advice of rights form. In response to Detective Gallup’s question as to his date of birth, Appellant stated, "8-24 of '49,” which Detective Gallup acknowledged, at trial, as being 1949. We observe that " 'Out-of-court statements of a defendant in a criminal case relevant to a material issue are admissions.' " State v. Evans, 992 S.W.2d 275, 285 (Mo.App.1999) (quoting State v. Davis, 877 S.W.2d 669, 677 (Mo.App.1994)). "[A] statement need not be an express acknowledgement of guilt to qualify as an admission.” Id. Further, "[fjull proof of the corpus delicti need not be independent of the admission.” Id.

      . In both his point relied on and its attendant argument, Appellant makes reference to the state's failure to establish the corpus delicti that a crime of statutory rape occurred and also argues that the evidence is inadequate to show that he committed the offense charged. In our review, we address both issues. See State v. Duvall, 787 S.W.2d 798, 800 (Mo.App.1990); see also Culbertson, 999 S.W.2d at 736.

      . The videotape of Appellant’s confession was not included in the record on appeal. Parties seeking to reverse the trial court on appeal have the obligation to make a record demonstrating the error. State v. Naucke, 829 S.W.2d 445 460 (Mo. banc 1992). Since Appellant failed to include the videotape even though it was admitted into evidence and played for the jury, " ‘the intendment and content of the exhibit will be taken as favorable to the trial court's ruling and as unfavorable to [Appellant].' ” State v. Mitchell, 2 S.W.3d 123, 126 n. 2 (Mo.App.1999)(quoting State v. Creech, 983 S.W.2d 169, 171 (Mo.App. 1998)).

      . Appellant was attempting to show that the father rejected Detective Gallup’s request to tape record conversations between the father and Appellant in an attempt to obtain incriminating statements from Appellant.

        . However, the "state’s arguing an adverse inference in closing argument because a defendant failed to call a specific witness to testify is improper, generally.” State v. Hopkins, 947 S.W.2d 826, 829 (Mo.App.1997)(em-phasis added); State v. Crump, 875 S.W.2d 241, 242 (Mo.App.1994). "An exception to this general 'missing witness rule’ arises when a defendant fails to call a 'peculiarly available’ witness reasonably expected to testify in the defendant's favor.” Hopkins, 947 S.W.2d at 829(emphasis added).


source: Caselaw Access Project

author: PHILLIP R. GARRISON, Judge.

license: Public Domain

text:
    Phillip A. GREEN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 23665.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 30, 2000.

      Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
   PHILLIP R. GARRISON, Judge.

Phillip A. Green (“Movant”) appeals from the denial of his Rule 24.035 motion following an evidentiary hearing. On appeal, he contends that the trial court clearly erred in unilaterally modifying his sentence to remove any reference to Section 559.115.

On June 9, 1999, Movant pled guilty to one count of possession of a controlled substance with the intent to distribute in violation of Section 195.211, RSMo 1994. At the guilty plea hearing, the trial court accepted Movant’s plea, finding that it was made knowingly, voluntarily, and intelligently. The State recommended that Movant be sentenced to ten years imprisonment, subject to the callback provisions of Section 559.115, and with a recommendation that he be placed in a substance treatment program. The trial court sentenced Movant in accordance with the State’s recommendation, at which time the following colloquy occurred:

THE COURT: ... Now, [Movant], as [your attorney] has told you, what I’ve done is sentence you to prison for ten years. However, I’ve asked that you be placed at a substance treatment program that’s about 90 days in length and takes about 30 days to get to from the time you leave here. And I’ll tell you today if you go to that program and graduate from it and do well in it, on your graduation day I’ll make an order, release you from custody, and place you on probation on a number of conditions. Whereas, if you didn’t succeed in the program, I wouldn’t do that. Do you understand?
' [MOVANT]: Yes, sir.
⅜ >:< ⅜ ⅜ ⅜ ⅜
THE COURT: ... If you were to fail to appear when you’re supposed to or if [your attorney] were not able to get hold of you when he was trying to or if you were to get kidnapped and held against your will by somebody and unable to surrender or if you get arrested or charged with any new offense, if any of those things happened, I would take back the treatment center part of this and change this to a straight ten-year sentence. Do you understand that?
[MOVANT]: Yes, sir.
THE COURT: And on that basis and with that understanding, do you wish to remain free until you’re transported?
[MOVANT]: Yes, sir.

Movant thereby agreed to his release, subject to the condition that if he failed to surrender himself into custody as ordered, the Section 559.115 provision of his sentence would be withdrawn, and he would be sentenced to ten years imprisonment. The trial court then ordered that Movant be released from custody to reside with his brother in Malden, Missouri pending transport to the substance treatment cén-ter. The trial court also noted that the Board of Probation and Parole (the “Board”) would set a date when Movant should return to custody, and that the Board would “give it to the Sheriff and [Movant’s attorney], and [Movant’s attorney] w[ould] confer with the Sheriff as to when he want[ed] Movant and then notify [Movant] when to turn in.”

On June 22, 1999, the trial court deleted the portion of the judgment and sentence pertaining to Section 559.115, and ordered Movant to serve a straight ten-year sentence. Movant was arrested in Franklin County, Texas on July 21, 1999, and he waived extradition to Missouri on July 23, 1999. On July 27,1999, Movant was delivered to the Missouri Department of Corrections.

Movant filed a timely pro se motion for post-conviction relief pursuant to Rule 24.035, and on December 16, 1999, Mov-ant’s counsel filed an amended motion. An evidentiary hearing was held on March 31, 2000. At that hearing, Movant’s plea attorney testified that he was never informed of a prospective report date for Movant. He stated that he was not aware of any directive for Movant to return and that he never communicated any return date to Movant. Two probation and parole officers also testified that they had no notes indicating that Movant’s attorney was notified of the date that Movant was to report. They indicated, however, that a bed date of August 29, 1999 was set for Movant to enter the substance treatment center. They noted that typically, the sheriff’s department would set a report date, which would be roughly thirty days prior to the bed date, and it would notify the parties. The probation officers did not testify as to the exact date when Movant was supposed to report. In addition, Mov-ant testified that he was never notified by his attorney or anyone else as to the date when he was to report. Movant stated that he had resided with his brother in Malden, Missouri during his release, and that he was hitchhiking back to Missouri from a one-day trip to Texas when he was arrested on July 21, 1999. Movant testified that had he been informed of a report date, he would have shown up.

On April 11, 2000, the motion court entered its findings of fact and conclusions of law denying Movant’s motion for post-conviction relief. In its findings of fact and conclusions of law, the motion court stated:

The court finds from his own testimony that [M]ovant did not comply with the terms and conditions of his release from custody. The court was justified in de- ’ leting the provision in the judgment and sentence as to a callback'under Section 559.115. Movant was not prejudiced by the lack of a hearing before the sentencing court because his admissions at the evidentiary hearing show that he did not comply with the terms and conditions of his release. He did not prove by a preponderance of the evidence that he is entitled to relief, (citation omitted.)

Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). A motion court’s findings are clearly erroneous if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991); Vernor v. State, 894 S.W.2d 209, 210 (Mo.App. E.D.1995).

In his sole point on appeal, Movant argues that the trial court clearly erred in modifying his sentence to remove any reference to Section 559.115 without giving him notice and an opportunity to respond, and that he should have been permitted to withdraw his plea of guilty once the trial court modified his sentence.

In its brief, the State relies on Finley v. State, 891 S.W.2d 507 (Mo.App. E.D.1994), to support its contention that the trial court in modifying Movant’s sentence was “simply enforcing] the plea bargain between [Movant] and the State, and when [Movant] failed to fulfill a term of his bargain, the [trial] court imposed the agreed upon consequences.”

In Finley, the defendant, who failed to appear on the date set for sentencing, argued that the trial court erred in sentencing him to a more severe punishment than he had bargained for in plea negotiations and in failing to give him an opportunity to withdraw his plea. Id. at 508. The appellate court affirmed the denial of the Rule 24.035 motion, noting that the defendant was given “an option of accepting the condition or standing by the plea bargain without delay, and [the defendant] chose to accept the condition and risk enhancement of the sentence. [The defendant] made the agreement; it is only reasonable to hold him to his bargain.... There is no injustice in imposing the promised consequences after his undisputed misconduct.” Id. at 508-09.

The State’s reliance on Finley, however, is misplaced. In the instant case, unlike in Finley, there was no evidence presented as to the date upon which Movant was to return to custody. Additionally, if a date was set for Movant’s return, there is no evidence in the record that Movant or his counsel was informed of that date. At sentencing, the trial court informed Mov-ant that the sheriff would confer with Mov-ant’s attorney prior to the date he was to report. However, there is no indication in the record that such a communication ever occurred prior to the June 22,1999 amendment to Movant’s sentence, which deleted the Section 559.115 provision.

Nevertheless, the State argues that “[a]lthough it is not clear from the record on what date [Movant] failed to return to custody and surrender as directed, it can be inferred from the [trial] court’s actions in deleting the drug treatment program and the court’s reasons for deleting the program that [Movant] did in fact fail to appear or return to custody,” and that the trial court’s modification of Movant’s sentence was justified on the basis that Mov-ant failed to “fulfill a term of his bargain” in that he did not reside with his brother in Malden, Missouri, as directed by the trial court. The trial court, however, informed Movant that it would “take back the treatment center part of th[e] [sentence] and change [it] to a straight ten-year sentence” if he failed to surrender himself into custody as ordered. There is no evidence in the record that the failure to reside with his brother was a condition upon which the Section 559.115 provision of his sentence would be withdrawn. Additionally, even if Movant’s failure to reside with his brother was such a condition, there is no indication in the record that as of June 22, 1999, when the trial court amended its judgment, Movant had failed to abide by that condition. There is no evidence in the record that Movant was not residing with his brother in Malden, Missouri from the time of his release until June 22,1999.

The trial court clearly erred in modifying Movant’s sentence to remove any reference to Section 559.115. The judgment of the motion court denying Movant’s Rule 24.035 motion, therefore, must be reversed. This case is remanded with directions to give Movant the opportunity to withdraw his plea of guilty.

CROW, J., and BARNEY, C.J., concur.

      . All rule references are to Missouri Rules of Criminal Procedure (2000), and all statutory references are to RSMo Cum.Supp.1999, unless otherwise indicated.

      . Section 559.115.2 provides:
      A circuit court only upon its own motion and not that of the state or the defendant shall have the power to grant probation to a defendant anytime up to one hundred twenty days after such defendant has been delivered to the custody of the department of corrections but not thereafter. The court may request information and a recommendation from the department concerning the defendant and such defendant’s behavior during the period of incarceration. Except as provided in this section, the court may place the defendant on probation in a program created pursuant to section 217.777, RSMo, or may place the defendant on probation with any other conditions authorized by law.

      . The docket entry reads: "[Movant] having failed to return to custody and surrender as directed, by earlier agreement with [Movant], the [c]ourt now deletes that portion of its judgment and sentence of June 9, 1999, sentencing [Movant] pursuant to RSMo 559.115.”

      . It is noted, however, that Section 559.115.2 does not grant a defendant a right to request or otherwise cause a trial court to consider granting probation within 120-days after the defendant's delivery to the custody of the department of corrections. Section 559.115.2 clearly states that a circuit court shall have the right to grant probation as provided therein "only upon its own motion and not that of the state or the defendant.” The sentencing judge in the underlying criminal case to which this post-conviction proceeding was directed was not required to include any reference to the 120-day call back statute in the sentencing dialogue or formal sentence in order to invoke that statute. The sentencing judge did so by choice. By so doing, he established rights on which defendant was entitled to rely.


author: CROW, Judge.

text:
    STATE of Missouri ex rel. Darrell L. MOORE, Prosecuting Attorney of Greene County, Missouri, Relator, v. The Honorable J. Miles SWEENEY, Circuit Judge, Circuit Court of Greene County, Missouri, Respondent.
    No. 23753.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 30, 2000.

      Todd Myers, Asst. Pros. Atty., Springfield, for relator.
    Dee Wampler, Thomas D. Carver, Springfield, for respondent.
   CROW, Judge.

In this original proceeding in prohibition, Relator asks this court to bar Respondent from reducing the twelve-year prison sentence of Troy Gracey (“Inmate”). Respondent, relying on § 558.046, RSMo 1994, told Relator and Inmate’s lawyer July 7, 2000, that Respondent would order Inmate’s sentence reduced to six years.

Relator immediately commenced this proceeding. This court issued an order commanding Respondent not to proceed with the sentence reduction until further order of this court. Thereafter, this court issued a preliminary order in prohibition. Respondent filed an answer to Relator’s petition, and the parties subsequently filed briefs. Those filings establish the following facts.

On November 18, 1998, Inmate appeared with counsel before Respondent and pled guilty to robbery in the second degree, a class B felony. § 569.030, RSMo 1994. The information alleged Inmate forcibly stole sundry items of personal property from one Gandalf Sidio.

Asked by Respondent to recite facts justifying Inmate’s plea, the prosecutor said:

“[0]n July 16th of 1998, the victim in this case, Gandolf [sic] Sidio, had some people over to his home for an after-bars party....
The defendant and three others were part of a group that showed up to this party. Once the party ended and everyone left, the defendant and his three companions came back a little bit later and knocked on the victim’s door. Mr. Sidio let them in and once the group got inside, the victim noticed that one of the group had a baseball bat.
The defendant told Mr. Sidio to get down on the floor, which he did. He then struck Mr. Sidio with the baseball bat in the leg.
He was hog-tied with a stereo wire and a couch was placed on top of him. While he was confined, the defendant and others took various items....
Once the victim was able to get free, he called the police. The defendant was apprehended a couple days later and did admit to his participation in the crime.”

Inmate’s lawyer did not dispute the prosecutor’s narrative. Upon inquiry by Respondent, Inmate’s lawyer conceded the State “could make a submissible case.”

The transcript of the guilty plea proceeding contains this colloquy:

“THE COURT: Are you pleading guilty because you are in fact guilty and you did participate in this event that the prosecutor just told me about?
THE DEFENDANT: Yes, sir.”

At the conclusion of the guilty plea proceeding, Respondent accepted Inmate’s plea of guilty and scheduled sentencing for January 22,1999.

Inmate, his lawyer, and the prosecutor reappeared before Respondent on the appointed date. After comments by the prosecutor and Inmate’s lawyer, Respondent sentenced Inmate to twelve years in the Department of Corrections. After pronouncing sentence, Respondent said:

“I will encourage you to one other possibility. Since [your lawyer] says that your behavior in the course of this was related to substance abuse, I do know of a provision in the Department of Corrections where that if ... your conviction is related to substance abuse, if you do participate in substance abuse programs while you’re within the Department of Corrections, there is some statutory authority for you to then ask the Court to consider some reduction in your sentence based on your participation in substance abuse programs in the Department of Corrections.
I can’t say today that I would necessarily grant such a request, but I have seen requests like that and I think that that’s an incentive for people to deal with that kind of problem because it does give you some opportunity to seek some reduction in your sentence because of that.”

For convenience, the above-quoted remarks are henceforth referred to as “Respondent’s sentencing comments.”

On June 19, 2000, Inmate, by counsel, filed a “Motion for Reduction of Sentence.” The motion averred, inter alia, that Inmate “was not convicted of a crime that involved violence or the threat of violence.” The motion prayed Respondent to reduce Inmate’s sentence pursuant to § 558.046, RSMo 1994, which reads:

“The sentencing court may, upon petition, reduce any term of sentence ... pronounced by the court ... if the court determines that:
(1) The convicted person was:
(a) Convicted of a crime that did not involve violence or the threat of violence; and
(b) Convicted of a crime that involved alcohol or illegal drugs; and
(2) Since the commission of such crime, the convicted person has successfully completed a detoxification and rehabilitation program; and
(3) The convicted person is not:
(a) A prior offender, a persistent offender, a dangerous offender or a persistent misdemeanor offender as defined by section 558.016; or
(b) A persistent sexual offender as defined in section 558.018; or
(c) A prior offender, a persistent offender or a class X offender as defined in section 558.019.”

The prosecutor and Inmate’s lawyer appeared before Respondent July 7, 2000, and argued Inmate’s motion. As reported in the first paragraph of this opinion, Respondent announced he would reduce Inmate’s sentence to six years.

The first of Relator’s two points relied on reads:

“Relator is entitled to an order prohibiting Respondent from reducing the sentence of [Inmate], because Respondent’s actions were outside the jurisdictional authority conferred upon the sentencing court, in that the sentencing court only retains jurisdiction to reduce a sentence if the statutory requirements of section 558.046, RSMo, are satisfied and [Inmate] does not satisfy these requirements because he was convicted of a crime that involved violence or the threat of violence.”

Respondent’s brief maintains this court should not bar Respondent from re-during Inmate’s sentence because “the State waived its objection to the employment of section 558.046 ... at the time of •sentencing.” Respondent asserts, and the transcript confirms, that the prosecutor registered no objection to Respondent’s sentencing comments (quoted supra). Seizing upon the prosecutor’s silence, Respondent proclaims, “It is well settled in Missouri that when an objection is not made by a party to evidentiary and procedural matters, the party ... cannot later claim error.” Respondent cites a number of cases in an effort to support that proposition.

The flaw in Respondent’s position is that the cases on which he relies involve incidents where a party remained silent when a trial court allegedly erred and the error thereafter arguably affected the course of the case, to the prejudice of the mute party.

Here, Respondent’s sentencing comments did not affect Inmate’s sentence and did not address any issue then before Respondent. The possibility of a sentence reduction was not part of the plea agreement on which Inmate relied in entering his guilty plea. Respondent sentenced Inmate in accordance with the agreement, and Respondent’s sentencing comments did not' alter that sentence.

This court therefore holds the State did not waive its objection to Respondent’s attempt — six months after assessing Inmate’s twelve-year sentence — to reduce it to six years.

That brings this court to Relator’s contention that Inmate is ineligible for a sentence reduction under § 558.046 because he was convicted of a crime involving violence or the threat of violence. As we have seen, one of the requirements for a sentence reduction under that statute is that the convicted person be convicted of “a crime that did not involve violence or the threat of violence.” § 558.046(l)(a), RSMo 1994.

Respondent points out that § 558.046 does not define “a crime that did not involve violence or the threat of violence.” Therefore, argues Respondent, this court has “no guidance to determine who fits within [the] statute’s meaning.” Accordingly, insists Respondent, § 558.046 should be strictly construed against the State, as it is a penal statute.

This court rejects Respondent’s notion that § 558.046 is a penal statute. In Black’s Law Dictionary 1421 (7th Ed., West Group 1999), a penal statute is defined as “[a] law that defines an offense and prescribes its corresponding fine, penalty, or punishment.”

Section 558.046 defines no offense and prescribes no fine, penalty, or punishment. Instead, it confers authority on a sentencing court to reduce a sentence pronounced by that court if the convicted person satisfies certain criteria. Apparently, the purpose of vesting a sentencing court "with such authority is to allow the court to reduce a sentence imposed for a non-violent crime involving alcohol or illegal drugs if the offender meets the statute’s rehabilitation requirements and is not a recidivist.

Although § 558.046 supplies no definition of “a crime that did not involve violence or the threat violence,” § 569.030, RSMo 1994, provides a starting place for this court’s adjudication of Relator’s first point. Section 569.030 states a person commits robbery in the second degree “when he forcibly steals property.” The meaning of “forcibly steals” is found in § 569.010(1), RSMo 1994. It reads:

“ ‘Forcibly steals’, a person ‘forcibly steals’, and thereby commits robbery, when, in the course of stealing, as defined in section 570.030, RSMo, he uses or threatens the immediate use of physical force upon another person for the purpose of:
(a) Preventing or overcoming resistance to the taking of the property ... [.]”

The definition of physical force in Black’s Law Dictionary, supra, is the same as the definition of actual force: “Force consisting in a physical act, esp. a violent act directed against a robbery victim.” Id. at 656.

This court therefore concludes § 558.046(l)(a), in referring to “a crime that did not involve violence or the threat of violence,” is referring, inter alia, to a crime that did not involve the use of physical force or the threat of physical force against the victim (or someone else).

The record before this court establishes Inmate used physical force against the victim for the purpose of preventing the victim from resisting the taking of his property. Striking someone on the leg with a baseball bat is an act of physical force, i.e., violence, as is hog-tying someone with wire and placing a couch atop him. To claim otherwise borders on frivolity.

This court therefore holds Inmate is ineligible for a sentence reduction in that he does not meet the requirement of § 558.046(l)(a), RSMo 1994, as he cannot demonstrate the crime of which he was convicted was “a crime that did not involve violence or the threat of violence.” It follows that § 558.046 confers no authority on Respondent to reduce Inmate’s sentence.

In State ex rel. McCulloch v. Schiff, 852 S.W.2d 392 (Mo.App. E.D.1993), a judge announced he intended to grant probation to a defendant convicted of armed criminal-action. Id. at 393. The statute defining the crime provided that no one convicted of it would be eligible for probation for three years. Id. at 395. Upon petition by the prosecutor, the appellate court barred the judge from granting probation and commanded the judge to impose sentence in compliance with the statute. Id. at 396.

The instant case is similar to McCulloch in that Respondent intends to take action affecting Inmate’s sentence but possesses no authority for the intended action. Consistent with McCulloch, this court holds Relator is entitled to a peremptory writ in prohibition barring Respondent from his intended, unauthorized action.

Order

Pursuant to Rule 84.24(0, Missouri Rules of Civil Procedure (2000), this court orders that a peremptory writ in prohibition be issued commanding Respondent to desist from any action purporting to reduce Inmate’s sentence and to vacate any , order or amended judgment issued by Respondent purporting to reduce Inmate’s sentence.

PREWITT and GARRISON, JJ., concur.

      . The motion was filed by a different lawyer than the one who represented Inmate at his guilty plea and sentencing.

      . Rule 84.04(d)(3), Missouri Rules of Civil Procedure (2000), sets forth the requirements fer a point relied on in an “original writ proceeding.”

      .Respondent’s brief was authored by Inmate’s present lawyers.

      . Inmate was originally charged with robbery in the first degree. The agreement was that the State would (1) reduce the charge to robbery in the second degree, (2) recommend Inmate receive a twelve-year sentence, to run concurrently with “any existing sentences,” and (3) oppose probation. During the sentencing proceeding, Inmate’s lawyer asked Respondent to consider placing Inmate on probation, but no one mentioned the possibility of a sentence reduction under § 558.046 until Respondent did so in Respondent’s sentencing comments. As noted earlier, that occurred after Respondent pronounced sentence.

      . That holding makes it unnecessary for this court to consider Relator’s second point, which maintains Inmate is ineligible for a sentence reduction "because he is a prior and persistent offender.”


text:
    STATE of Missouri, Respondent, v. Charles CUNNINGHAM, Appellant.
    No. 23319.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 5, 2000.

      Ellen H. Flottman, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for Respondent.
   BARNEY, Chief Judge.

Charles Cunningham (“Appellant”) was convicted following a jury trial in the Circuit Court of Cedar County of delivery of a controlled substance, proscribed by Section 195.211, RSMo Cum.Supp.1998. He was sentenced to a term of imprisonment of ten years and he now appeals raising one point of trial court error. In his sole point of appeal, Appellant contends that the trial court abused its discretion in overruling his eoúhsel’s objection and request for mistrial during the course of the State’s closing argument. In particular, Appellant asserts that the remarks by the prosecutor were speculative, prejudicial, unsupported by the evidence and designed to inflame the passions and prejudices of the jury and that they deprived him of his rights of due process and fair trial as guaranteed by the State and United States Constitutions.

During the State’s closing argument, the prosecutor told the jury:

I am going to suggest to you that a 15 year sentence is not too much to give to somebody who’s going to go out and bring dope into this [community] and then let it be distributed potentially to be gotten by your children....

Appellant does not challenge the sufficiency of the evidence supporting his conviction. This Court accepts as true all evidence supporting the verdict, including all favorable inferences therefrom and disregards all contrary evidence and inferences. State v. Dunn, 21 S.W.3d 77, 79 (Mo.App.2000); State v. Carlile, 9 S.W.3d 745, 746 (Mo.App.2000).

The record shows that a confidential informant for the El Dorado Springs police department, Staci Gardner, was wired with a recording device and given six one hundred dollar bills in an attempt to purchase cocaine from one Richard Jackson. The serial numbers of the currency were recorded so the bills could be tracked. Pursuant to a pre-arranged drug deal with Jackson, Gardner went to Jackson’s home' in El Dorado Springs and officers followed Gardner and observed the transaction from a distance. When Gardner arrived at Jackson’s home she observed that Jackson, his son and Appellant were in the yard as she drove up. Gardner testified that Appellant got into her truck. She testified that she inquired of Appellant “is this a quarter ounce, and he said yes.” Gardner testified that Appellant tossed a bag containing the cocaine into the seat and that she then paid Appellant $600.00. Gardner then departed and delivered the drugs and the recorded tape to the officers. The next day, officers obtained a search warrant and executed the warrant on the Jackson home, where police seized a wallet found under a mattress containing the six one hundred dollar bills with serial numbers matching the money given Gardner to make the drug purchase. During the course of the search, Appellant told Officer Stevens that he had been living in the Jackson home “one month or two months.”

At trial, Appellant testified that he had been living in the Jackson home only on a temporary basis and that Jackson had told him to take the bag containing the cocaine out to Gardner’s truck. He stated he felt threatened by Jackson and did as he was told by delivering the bag with the cocaine because Jackson had previously told him that if people owed him money, he would shoot them. Appellant admitted delivery to Gardner of the bag containing two baggies of white powder, but testified that he didn’t know cocaine was in the bag.

In reviewing Appellant’s sole point on appeal, we observe that the “trial court has broad discretion in controlling the scope of closing argument, and the court’s rulings will be cause for reversal only upon a showing of abuse of discretion resulting in prejudice to the defendant.” State v. Ferguson, 20 S.W.3d 485, 498 (Mo. banc 2000). “Absent abuse of discretion resulting in prejudice to the defendant, the trial court’s rulings on such issues should not be overturned on appeal.” State v. Hibbert, 14 S.W.3d 249, 254 (Mo.App.2000). “To find an abuse of discretion, the prosecutor’s statements must be ‘plainly unwarranted.’ ” State v. Kriebs, 978 S.W.2d 460, 466 (Mo.App.1998). “[E]ven if the prosecution’s argument was improper, reversal is appropriate only if it is established that the comment of which Appellant complains had a ‘decisive effect on the jury’s determination.’ ” State v. Armentrout, 8 S.W.3d 99, 111-112 (Mo. banc 1999), cert. denied, — U.S.-, 120 S.Ct. 1986, 146 L.E.2d 813 (2000) (quoting State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998), cert. denied, 526 U.S. 1151, 119 S.Ct. 2034, 143 L.Ed.2d 1043 (1999)); see also Hibbert, 14 S.W.3d at 254. “Additionally, this state has not adopted a per se rule of mandatory reversal in all cases in which objectionable comments are made by a prosecutor.” Hibbert, 14 S.W.3d at 254.

The granting of a mistrial is a drastic remedy that should be used only when necessary to cure grievous prejudice, and in extraordinary circumstances where the prejudice to the defendant cannot be removed by other means. State v. Myers, 997 S.W.2d 26, 35 (Mo.App.1999). “The trial court’s discretion to overrule a motion for mistrial will not be overturned absent a finding that it abused its discretion.” Id Lastly, “ ‘[credibility of witnesses and the weight and value to be given their testimony are matters within the province of the jury and are not for review on appeal.’ ” State v. Groves, 886 S.W.2d 675, 678 (Mo.App.1994) (quoting State v. Jenkins, 776 S.W.2d 59, 63 (Mo.App.1989)).

It has been held that an abuse of discretion may occur when the trial court allows an attorney to argue matters not in evidence or to otherwise misstate or pervert the evidence. Kriebs, 978 S.W.2d at 466. Furthermore, the prosecutor may not make an inflammatory appeal to the jurors to arouse their personal hostility toward or personal fear of the defendant, such as implanting in their minds the fear that the defendant’s acquittal will endanger their own personal safety or that of one of their family members. Id; State v. Evans, 406 S.W.2d 612, 616-617 (Mo.1966); State v. Steward, 564 S.W.2d 95, 99 (Mo.App.1978); State v. Heinrich, 492 S.W.2d 109, 114 (Mo.App.1973). In State v. Sumlin, 915 S.W.2d 366, 368 (Mo.App.1996), this Court determined that a query addressed to the jury “about whether the jury had ever wanted to do something to protect their children and grandchildren was improper.” Id. at 370; see generally State v. Raspberry, 452 S.W.2d 169, 172-73 (Mo.1970); State v. Groves, 295 S.W.2d 169,173-74 (Mo.1956).

Nevertheless, the State is permitted to argue such propositions as the prevalence of crime in the community and the personal safety of the community’s inhabitants. Kriebs, 978 S.W.2d at 466. The State may also argue that conviction of the defendant is part of the jury’s duty to prevent crime and may refer to the need for strong law enforcement as a deterrent to crime and infer the effect of the jury’s failure to perform its duty and uphold the law. Id.; see also Hall, 982 S.W.2d at 684. Also, it has been held that “[a]n argument is not personalized where it does not suggest a personal danger to the jury or their families if the defendant were to be acquitted.” State v. Lyons, 951 S.W.2d 584, 596 (Mo. banc 1997); State v. Copeland, 928 S.W.2d 828, 842 (Mo. banc 1996).

More to the point, in State v. Williams, 747 S.W.2d 635, 638 (Mo.App.1988), the appellate court found that a prosecutor’s closing argument did not impermissibly arouse fear and personal hostility on the part of the jurors where the prosecutor argued: “Drugs are ruining this country. They’re going to be the downfall of this country. Kids with ruined lives....” Id; see also State v. Olds, 603 S.W.2d 501, 511 (Mo. banc 1980). Also, in State v. Hatcher, 835 S.W.2d 340, 344 (Mo.App.1992), the prosecutor stated in closing argument: “I would ask you to convict this defendant and show the people that we don’t want to tolerate cocaine in our community, that we don’t want our families exposed to this kind of thing. We don’t want our children growing up with cocaine.... ” Id. In Hatcher the appellate court determined that the prosecutor’s argument was not of the character condemned because it was not an argument that suggested personal danger to the jurors or their families; rather it was a permissible argument that merely argued the necessity for law enforcement, the prevalence of crime in the community, the personal safety of its inhabitants, and the duty of the jury to convict the defendant to prevent crime. Id. at 344-45.

Lastly, in Kriebs, supra, the following arguments were found not to be specifically oriented toward the jurors’ children:

Ladies and gentlemen, there’s a war out there. There’s a war out there in our streets and our schools and our parks. There’s a war and our children are the victims.
This battle in this courtroom is very important to the citizens of Dade County. It’s important for our children. It’s important to our lives and our homes.
This is your chance as Dade County citizens to send a message: We don’t like marijuana growers. We won’t tolerate it in Dade County. We will protect our children.

Kriebs, 978 S.W.2d at 465.

In the instant matter, we are not directed to any evidence expressly demonstrating that Appellant, in fact, sold or intended to sell drugs to children. However, there was evidence presented that the drug sale took place within 2000 feet of a “Parent’s as Teachers building,” arguably a school facility where, presumably, school children could be located. Furthermore, in the context that the argument was made it is clear that the prosecutor was not directing his remarks specifically to the jurors’ children. See id. The argument here is more akin to those arguments set out in cases such as Kriebs, Hatcher and Williams, supra.

Furthermore, “[e]rror which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.” Kriebs, 978 S.W.2d at 467. In the instant case, the evidence of guilt, as previously set out, is sufficiently strong. The trial court did not abuse its discretion in overruling Appellant’s objection to the State’s closing argument nor did the trial court abuse its discretion in denying Appellant’s motion for a mistrial. Point denied.

The judgment is affirmed.

PREWITT and GARRISON, JJ.

      . Appellant was charged with the violation of "Section 195.211 and 195.214” by committing the class a felony of delivery of a controlled substance within 2000 feet of a school. The jury, however, found Appellant guilty of delivery of a controlled substance. § 195.211, RSMo Cum.Supp.1998.


text:
    Kerry WHITAKER, Plaintiff-Appellant, v. WHIRLPOOL CORP., Jim Teasley, Doug Hagewood, Clara Vaughn, Debra Derby, Dr. Vaughn Allen, and Lynn England, Tennessee Department of Labor, Division of Workers’ Compensation, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    March 16, 2000.
    Permission to Appeal Denied by Supreme Court Sept. 25, 2000.

      Kerry Whitaker, pro se.
    Hooper & Zinn; David T. Hooper, Brentwood, for appellee, Whirlpool, Hage-wood, Teasley, Vaughn and Derby.
    C.J. Gideon, Jr.; Joe W. Ellis, II, Gideon & Wiseman, Nashville, for appellee, Allen.
    Paul G. Summers, Attorney General and Reporter, E. Blaine Sprouse, Assistant Attorney General, for appellee, England.
   W. FRANK CRAWFORD, Presiding Judge, W.S.

On August 14, 1998, plaintiff, Kerry Whitaker, acting pro se, filed his complaint against defendant, Whirlpool Corporation, Tim Teasley, Doug Hagewood, Clara Vaughn, Debra Derby, Dr. Vaughan Allen, and Lynn England of the Tennessee Department of Labor Division of Workers Compensation. Plaintiff appeals the trial court’s order dismissing his complaint.

The complaint styled, “Fraud, Fraudulent Concealment, Misrepresentation of the Facts to the Chancery Court and Government Agency” sets out multiple facts, most of which appear to be quotations from various documentary evidence and testimony introduced in Whitaker’s previous workers compensation lawsuit against Whirlpool. The complaint is somewhat disjointed and at times incoherent to the extent that it is quite difficult to determine the specific allegations against the named defendants. In addition to the complaint, Whitaker has filed numerous other pleadings with an enormous amount of exhibits. From a review of the record, we determine that on May 24, 1993, Whitaker sustained a work-related back injury while employed by Whirlpool Corporation at the Laverne, Tennessee plant. While undergoing treatment for his injuries, Whitaker was seen on September 10,1993, for an independent examination and evaluation by Dr. Vaughn Allen. Dr. Allen diagnosed his condition as lumbar strain and recommended a chronic exercise program. Dr. Allen put no restrictions on Whitaker’s ability to work and sent a copy of his office note to Whirlpool’s workers compensation carrier and to Winston Griner, M.D., who apparently was Whitaker’s treating physician. It appears that Whitaker failed to report to work by September 27, 1993, and Hage-wood, a manager for Whirlpool, informed Whitaker by registered letter that his failure to report to work had been treated as a “quit.”

Whitaker filed his workers compensation suit in January, 1994, and on June1 22, 1995, the Davidson County Chancery Court, after a nonjury hearing, found in favor of Whitaker and awarded him twenty-five percent permanent partial impairment to the body as a whole but denied an award of $25,000.00 in unauthorized medical expenses. This order was not appealed and became a final judgment. Whirlpool satisfied the judgment in full.

On August 17,1998, Whitaker filed a pro se pleading in the Davidson County Chancery Court, under the same docket number as the workers compensation case, in which he sought to reopen his case against Whirlpool. The assertions in the pleading are essentially that due to fraud, fraudulent concealment and misrepresentation of the facts by Whirlpool, plaintiffs attorney and the chancery court, Whitaker was entitled to reopen the case. This pleading was dismissed by the court by order entered on September 25,1998.

The complaint in the instant case is virtually the same as the August 17, 1998 pleading with the exception of allegations concerning Whitaker’s attorney and the involvement of the chancery court in connection with the alleged fraud.

Giving Whitaker’s complaint the most liberal construction possible, the allegations against Whirlpool and the four employees, Teasley, Hagewood, Vaughn, and Derby, are to the effect that Whirlpool falsified records which were used in the defense of the workers compensation case resulting in a fraud committed against the court. The allegations against Dr. Allen are that he participated in committing a fraud against the court and gave false testimony. The allegation against Lynn England, the workers compensation specialist with the Tennessee Department of Labor, is apparently that she, based upon the information furnished to her, determined that Whitaker bore the responsibility of losing his job by failing to return to work when he was able- to do so. The complaint seeks additional lost wages, medical expenses, job reinstatement and punitive damages.

Dr. Allen filed a motion for summary judgment. Whirlpool, its four employees, and Lynn England filed motions to dismiss pursuant to Tenn.R.Civ.P. 12. Whirlpool and the four employees also filed a counterclaim against Whitaker, seeking damages and to enjoin Whitaker from further actions based on the May 1994 injury.

On December 21, 1998, the trial court entered its memorandum and order dismissing Whitaker’s complaint. The memorandum and order states:

Background
The genesis of the above-captioned lawsuit is another lawsuit: Kerry Whitaker v. Royal Insurance Company, Civil Action No. 94-1245-111(11) filed in Davidson County Chancery Court. In that lawsuit the plaintiff filed a complaint against Royal Insurance Company for workers’ compensation benefits allegedly attributable to an on-the-job injury on May 24, 1993, at Whirlpool Corporation. On June 22, 1995, the Honorable Robert S. Brandt entered an order in Part III Chancery Court awarding Mr. Whitaker 25% permanent partial impairment to the body as a whole. Chancellor Brandt refused to award the plaintiff some $25,000.00 for unauthorized medical expenses. Additionally pertinent to the matters before this Court is that Chancellor Brandt noted in his memorandum that the plaintiff was “a long-term and apparently valued employee, and an effort was made to have the plaintiff communicate with the company. But, he did not. So he was terminated.” The benefits awarded by Chancellor Brandt were paid in full and the judgment was satisfied by Whirlpool Corporation.
On August 17, 1998, the plaintiff filed a pleading pro se under the same docket number 94-1245 III(II) in which he asked the court to reopen his case against Whirlpool. The plaintiff alleged perjury, fraud, misrepresentation and fraudulent concealment in connection with Chancellor Brandt allegedly “wrongly overlooking facts in favor of Whirlpool Corporation” and alleged wrongful conduct of the plaintiffs attorney. The motion was heard by the Honorable Carol McCoy on September 18, 1998. The motion was determined to be without merit and was dismissed.
On August 14, 1998, the petitioner filed the complaint in the above-captioned action against Whirlpool and four of its current employees as well as an action against Dr. Vaughan Allen who examined the petitioner as requested by his physician Dr. Winston Griner, and Lynn England of the Department of Labor, Worker’s Compensation Division. The complaint asserts fraud, fraudulent concealment and misrepresentation of facts to the chancery court and “government agency.” The plaintiff asserts a claim for lost wages, payment of his medical expenses, a desire to return to his job, back child support, bills owed to third parties and punitive damages in the amount of $6 million. Mr. Whitaker claims that Whirlpool falsified records to have Dr. Allen state that Mr. Whitaker failed to return to work when released to do so by Dr. Allen. Mr. Whitaker’s claim against Lynn England is that she found Mr. Whitaker was responsible for failing to return to work and she relied upon Whirlpool’s allegedly falsified records.
As noted above, the plaintiff filed a motion to reopen the prior case which was dismissed by Chancellor McCoy. The complaint in the above-captioned matter differs from the motion to reopen only in two ways: (1) the present complaint does not contain allegations of wrongdoing by Chancellor Brandt and the plaintiffs attorney and (2) the prayer for relief and ad damnum have been expanded.
Presently before the Court are the motions of defendant Vaughan A. Allen, Lynn England and Whirlpool Corporation and its four employees for dismissal in the above-captioned matter. Defendant Allen seeks dismissal on a motion for summary judgment. Defendants England, Whirlpool and the Whirlpool employees seek dismissal on a motion to dismiss.
Mr. Whitaker has argued vehemently in response to the motions that the statements in Dr. Allen’s records and depositions concerning his failure to return to work were false and were used wrongfully by Whirlpool, its employees, Dr. Allen and Lynn England such that Mr. Whitaker was terminated from his job at Whirlpool.
After reviewing the entire record, the Court grants the motions as follows.
Dr. Allen
First, with respect to Dr. Vaughan Allen, the Court determines that the plaintiffs complaint is barred by the applicable statute of limitations and certainly by the statute of repose. In his memorandum, Chancellor Brandt finds that Dr. Allen examined the plaintiff once on September 10, 1998. Assuming the plaintiff is alleging malpractice by Dr. Allen, the action is barred by Tennessee Code Annotated section 29-26-116 which provides a one-year statute of limitations for malpractice cases. In that the above-captioned matter was tried before Chancellor Brandt on January 31, 1995, the memorandum opinion adjudicating the issues was filed April 27, 1995, and a final order was entered on June 22, 1995, the plaintiff knew or should have known, based on Dr. Allen’s deposition which was used in the trial of this matter, of the malpractice he alleges in connection with the worker’s compensation lawsuit. Additionally, Tennessee Code Annotated section 29-26-116(3) provides a three-year statute of repose. The plaintiff did not file the above-captioned matter until August 14, 1998. Thus, the statute of repose also bars this action.
Lynn England
With respect to defendant England, the Court grants the motion to dismiss. The complaint references actions taken by Ms. England in writing a letter dated January 18, 1994. It is clear from the face of the complaint that Ms. England was acting within the scope of her employment as a workers’ compensation specialist for the Department of Labor. The complaint contains no allegation of wilful, malicious, criminal acts or omissions or acts for personal gain by Ms. England. Under Tennessee Code Annotated section 9-8-307(h), article I, section 17 of the Tennessee Constitution, and Tennessee Code Annotated section 20-13-102(a), Ms. England is immune from suit under the circumstances alleged by the plaintiff. The complaint against Ms. England should additionally be dismissed because the plaintiff has failed to state allegations concerning intentional or negligent misrepresentations of facts and reliance and damages on which to premise his claim of fraud and misrepresentation. No such allegations are contained in the complaint. Simply stated, the complaint fails to state a claim upon which relief can be granted as to fraud, misrepresentation or fraudulent concealment by Lynn England.
Finally, as to Ms. England, the statute of limitations for tortious activity resulting in injury to the person is one year after the cause of action has accrued. Tenn.Code Ann. § 28-3-104(1). The action which the plaintiff complains of is Ms. England writing her letter on January 18, 1994. Any cause of action which would arise from Ms. England’s writing the letter expired before the date of the filing of the complaint in this matter-August 14,1998.
Whirlpool and Employees
As to Whirlpool and its employees, the Court dismisses the plaintiffs claims as barred by the one year and/or three year statutes of limitation, Tennessee Code Annotated sections 28-3-104, 105. The most recent events described in the plaintiffs complaint occurred no more recently than the spring of 1995. This case was filed in August 1998. The complaint appears to allege injury to the person, but even if it were construed to allege injury to property, both are barred by the one or three year statute of limitations.
The Court further grants the motion of Whirlpool and its employees to dismiss on the grounds of res judicata and collateral estoppel. The parties and the issues of damages resulting from the on the job injury were litigated before Chancellor Brandt in the worker’s compensation case and then considered by Chancellor McCoy in the motion to reopen.
Finally, this action is barred by the exclusive remedy doctrine of Tennessee Code Annotated section 50-6-108.
It is therefore ORDERED that the motion for summary judgment as to Dr. Vaughan Allen is granted and the plaintiffs cause of action against Dr. Vaughan Allen is dismissed with prejudice.
It is further ORDERED that the motions to dismiss filed by defendant Lynn England, Whirlpool Corporation, Tim Teasley, Doug Hagewood, Clara Vaughn and Debra Derby are granted, and the plaintiffs causes of action against these individuals are dismissed with prejudice.
Still pending before the Court is the counterclaim of Whirlpool and its employees seeking damages and injunctive relief to bar Mr. Whitaker from filing further actions arising out of the on the job injury. The plaintiff has served on all defendants interrogatories and requests for production of documents. The Court rules that defendants England and Allen are not required to respond to the discovery in that the Court has determined, as a matter of law, that the plaintiffs causes of action against these defendants require dismissal. No information sought in the interrogatories or requests for production of documents would alter or affect that the causes of action against these defendants are barred as a matter of law. However, as to the discovery served on defendant Whirlpool and its employees, they are required to respond to that discovery given the pendency of the counterclaim.

Subsequently, the four Whirlpool employees voluntarily dismissed their counterclaim and the trial court dismissed Whirlpool’s counterclaim for failure to state a claim upon which relief can be granted.

Mr. Whitaker has appealed pro se, and although he fails to articulate an issue in his brief, we perceive the issue to be:

Whether the trial court erred in dismissing plaintiffs complaint against defendants, Whirlpool, Doug Hagewood, Jim Teasley, Clara Vaughn, Deborah Derby, Dr. Vaughan Allen, and Lynn England?

Whirlpool also appeals and presents the issue for review:

Whether the trial court erred in dismissing the counterclaim of Whirlpool Corporation against Kerry Whitaker?

We note at the outset that Whitaker represented himself in the trial court and is representing himself in this Court. Pro se litigants are entitled to fair and equal treatment. See Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir.1983). Pro se litigants are not, however, entitled to shift the burden of litigating their case to the courts. See Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C.Cir.1988). Pro se litigants are not excused from complying with the same substantive and procedural requirements that other represented parties must adhere to. See Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn.Ct.App.1988). From our review of this record, it appears abundantly clear that the trial court was extremely liberal in the construction of Whitaker’s pleadings. This Court will do likewise in considering his brief, which often fails to comply with the rules concerning correct citations to the record. Although we have no duty to exhaustively search this record to verify unsupported allegations in a brief, See McReynolds v. Cherokee Ins. Co., 815 S.W.2d 208, 211 (Tenn.Ct.App. 1991), we have been liberal in our interpretation of Whitaker’s brief.

We will now consider the issues as to the individual defendants.

DR. VAUGHAN ALLEN

The trial court granted Dr. Allen’s motion for summary judgment. A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn.R.Civ.P. 56.03. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. See Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

The trial court construed the complaint to be a charge of medical malpractice against Dr. Allen and that the claim was barred by the'provisions of T.C.A. § 29-26-116(a)(l) and (3) (1980) which provide:

29-26-116. Statute of limitations— Counterclaim for damages. — (a)(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104.
⅜ ⅜ *
(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.

Whitaker knew or should have known of any alleged malpractice on the part of Dr. Allen at least by the time the final order was entered under the workers compensation case on June 22, 1995. The complaint in the instant case was filed August 14, 1998, well beyond the one-year limitation period and the three-year statute of repose. The trial court correctly found this cause of action barred. We will comment later in this opinion on perhaps a more compelling reason to sustain the trial court’s granting of summary judgment to Dr. Allen.

LYNN ENGLAND

This defendant filed a motion to dismiss pursuant to Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can granted. In Humphries v. West End Terrace, Inc., 795 S.W.2d 128 (Tenn.Ct.App.1990), this Court said:

A motion to dismiss pursuant to Rule 12.02(6), Tenn.R.Civ.P., for failure to state a claim upon which relief can be granted is the equivalent of a demurrer under our former common law procedure and, thus, is a test of the sufficiency of the leading pleading. Compropst v. Sloan, 528. S.W.2d 188, 190, 93 A.L.R.3d 979 (Tenn.1975). Such a motion admits the truth of all relevant and material averments contained in the complaint but asserts that such facts do not constitute a cause of action. Cornpropst, 528 S.W.2d at 190. A complaint should not be dismissed upon such motion “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848 (Tenn.1978). In considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court should construe the complaint liberally in favor of the plaintiff taking all of the allegations of fact therein as true. Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn.1975).

Id. at 130. See also Riggs v. Burson, 941 S.W.2d 44 (Tenn.1997).

The complaint with its exhibits shows on its face that England wrote a letter on behalf of the department of labor in her position as a workers compensation specialist. There is no allegation of willful, malicious, or criminal acts on her part, and she is entitled to the immunity pursuant to T.C.A. § 20-13-102(a) (1994), which provides:

20-13-102. Actions against state prohibited. — (a) No coui't in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.

A suit against a state official in his or her official capacity is a “suit against the state,” and therefore must be brought in compliance with Article I, Sec. 17 of the Tennessee Constitution. See Cox v. State, 399 S.W.2d 776, 778 (Tenn.1965). Exclusive jurisdiction for Whitaker’s claim against the state is vested in the Tennessee Claims Commission. T.C.A. § 9-8-307 (1999). The trial court correctly dismissed the claim against England.

WHIRLPOOL CORPORATION AND THE INDIVIDUALLY NAMED EMPLOYEES

The trial court dismissed Whitaker’s complaint as to these defendants because the action is barred by the one-year and/or three-year statutes of limitations. T.C.A. § § 28-3-104, 105. We agree with the trial court concerning this reason for dismissal except as to allegations of fraud. Thus, if we construe the complaint as a claim for retaliatory discharge, clearly the one-year statute of limitation bars the action. See Headrick v. Union Carbide Corp., 825 S.W.2d 424, 426 (Tenn.Ct.App.1991).

The complaint does not appear to comply with Tenn.R.Civ.P. 9.02, requiring that the circumstances constituting fraud must be stated with particularity. However, if we, by extreme liberalism, construe Whitaker’s allegations to comply with the rule, the complaint still must fail in its entirety. Whitaker seeks in his complaint lost wages and medical expenses. Therefore, what Whitaker is seeking is additional relief pertaining to his workers compensation suit. This suit is, in essence, a suit to set aside or modify a final judgment in the workers compensation suit and is governed by the law applicable to such a proceeding. See Tigrett v. Union Planters Nat’l Bank, 973 S.W.2d 208, 212 (Tenn.Ct.App.1997); Schorr v. Schorr, 1996 WL 148613 (Tenn.Ct.App.1996).

Generally, a party may file an independent action to set aside a judgment only under unusual and exceptional circumstances and then only where no other remedy is available or adequate. See Jerkins v. McKinney, 533 S.W.2d 275, 281 (Tenn.1976). In an independent action to set aside a judgment on the basis of fraud, the complaining party must prove extrinsic as opposed to intrinsic fraud. See New York Life Ins. Co. v. Nashville Trust Co., 200 Tenn. 513, 517-21, 292 S.W.2d 749, 751-53 (1956), Medlock v. Ferrari, 602 S.W.2d 241, 245-46 (Tenn.Ct.App.1979); Noll v. Chattanooga Co., 38 S.W. 287, 290-91 (Tenn.Ch.App.1896)(aff'd. orally Oct. 28, 1896). The distinction between intrinsic and extrinsic fraud existed at common law, id., and is maintained today, both under the Rules of Civil Procedure and in case law. See Tenn.R.Civ.P. 60.02 (Michie 1999); Stacks v. Saunders, 812 S.W.2d 587, 592 (Tenn.Ct.App.1990); Brown v. Raines, 611 S.W.2d 594, 597 (Tenn.Ct.App.1980).

In discussing the fundamentals of intrinsic fraud and extrinsic fraud and the application of these principles to cases such as the case at bar, this Court in Schorr v. Schorr, 1996 WL 148613 (Tenn.Ct.App.1996) said:

Prior to the adoption of the Tennessee Rules of Civil Procedure, a party seeking to set aside a judgment on the basis of intrinsic fraud was required to prove the fraud either at trial, in a motion for a new trial, or on appeal. Noll, 28 [38] S.W. at 290-91. Upon completion of the appellate process, a party could no longer seek to set aside a judgment on the basis of intrinsic fraud:
The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy.
Id. at 291. This rationale is consistent with fundamental principles of jurisprudence, which state: “Material facts or questions which were in issue in a former action and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and such facts or questions become res judicata and may not again be litigated in a subsequent action brought between the same parties or their privies.” Medlock, 602 S.W.2d at 246.
When the Tennessee Rules of Civil Procedure were adopted, the requirement that proof of intrinsic fraud be raised during trial or appeal was softened. Under the current rule, a party may seek to set aside a former judgment on the basis of intrinsic fraud during the first year following entry of the final judgment. Tenn.R.Civ.P. 60.02(2).
Proof of extrinsic fraud, on the other hand, is not now required, nor has it ever been required, to be proven during the initial trial or appeal of the case. Although the characteristics of intrinsic and extrinsic fraud are somewhat amorphous, it is generally held that extrinsic fraud “consists of conduct that is extrinsic or collateral to the issues examined and determined in the action,” Thomas v. Dockery, 33 Tenn.App. 695, 702, 232 S.W.2d 594, 598 (1950), while intrinsic fraud is fraud within the subject matter of the litigation, such as forged documents produced at trial or perjury by a witness. Id. at 702, [232 S.W.2d at 598]. In Noll, the court further examined the distinctions between these different types of fraud:
What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in the books are such as these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat; or, being regularly employed, corruptly sells out his client’s interests. U.S. v. Throckmorton, 98 U.S. [61,] 65, 66 [8 Otto 61, 25 L.Ed. 93], and authorities cited.
Id. at 291(quoting Pico v. Cohn, 91 Cal. 129, 133, 25 Pac. 970, 271 [971], 27 Pac. 537 (1891)). In Noles [Nobes] v. Earhart, 769 S.W.2d 868, 874 (Tenn.1988), this Court stated “extrinsic fraud involves deception as to matters not at issue in the case which prevented the defrauded party from receiving a fair hearing.” (Emphasis supplied). See also, Keith v. Alger, 114 Tenn (6 Cates) 1, 24-25 [, 85 S.W. 71] (1904); Stacks, 812 S.W.2d at 592; Brown, 611 S.W.2d at 597; Thomas, 33 Tenn.App. at 702-03, 232 S.W.2d at 598 (1950).
The reason for the common law distinction between intrinsic and extrinsic fraud, and the reason that the distinction is maintained in Tenn.R.Civ.P. 60, is grounded in the need for finality of judgments:
The wrong [caused by intrinsic fraud] in such a case is, of course, a most grievous one; and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischief far worse that the evil being remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be overruled merely because it can be shown to have been based on perjured testimony, for if this could be done once, it could be done again and again, ad infinitum.
Noll, 38 S.W. at 291. We emphasize that, although the purpose of Tenn. R.Civ.P. 60 is to “alleviate the effect of an oppressive or onerous final judgment,” Killion v. Tennessee Department of Human Services, 845 S.W.2d 212, 213 (Tenn.1992), the rule is equally aimed at striking a balance between the competing interests of justice and finality. Banks v. Dement Constr. Co. Inc., 817 S.W.2d 16, 18 (Tenn.1991).

Id. at ⅞3, 4.

If we construe Whitaker’s complaint as allegations of fraud, we must from the contents of the complaint consider the fraud as intrinsic fraud.

As early as 1896, the courts of this state recognized that under the common law a judgment may be set aside only for extrinsic fraud. We find instructive a statement made by the Tennessee Court of Chancery Appeals:

And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that jurisdiction of the court has been imposed upon, or that the prevailing party has, by some extrinsic or collateral fraud, prevented a fair submission of the controversy.

Noll v. Chattanooga Co., 38 S.W. at 290-91 (orally aff'd. by S.Ct. Oct. 28,1896).

Insofar as Whitaker’s complaint might be construed to allege a cause of action for perjury in the workers compensation proceeding, this cause of action must also fail. “The law in this jurisdiction does not recognize a civil action for perjury or conspiracy to commit perjury.” Lackey v. Carson, 886 S.W.2d 232 (Tenn.Ct.App.1994). See also Medlock, 602 S.W.2d at 245.

Defendant, Whirlpool, asserts in its issue for review that the trial court erred in dismissing its counterclaim for failure to state a claim upon which relief can be granted. The counterclaim seeks to enjoin Whitaker from filing any further proceeding against Whirlpool arising out of his injury in May of 1994. The trial court dismissed the counterclaim for injunctive relief finding that it failed to allege that Whitaker had created a history of vexatious litigation for the purpose of annoyance or embarrassment to Whirlpool and that his action was not likely to lead to a practical result. The trial court also declined to award Whirlpool damages in this action for failure of the counterclaim to allege improper motive or intent.

43A C.J.S. Injunctions, § 47 (1978) states:

It is generally held, whether the litigation complained of is numerous actions between the same parties or numerous actions brought by many against one, that equity may enjoin vexatious suits, not brought in good faith and instituted for annoyance or oppression or to cause unnecessary litigation, and such power exists independently of the power to prevent a multiplicity of actions.
Actions, however, are not necessarily vexatious because they are numerous, and a clear and substantial case must be established to authorize a court of equity to enjoin suits on the grounds that they are vexatious and oppressive. One may not be enjoined from protecting and enforcing his rights by lawful means, unless his acts to that effect are done or threatened unnecessarily, not really for the purpose of protecting his rights, but maliciously to vex, annoy, and injure another.

We agree with the trial court in its dismissal of the counterclaim. In the first place, we are not sure at this point that Whitaker’s action would constitute “numerous lawsuits.” Moreover, the trial court found the pleading deficient as to its failure to allege malice, vexation, and a willful attempt to annoy and injure Whirlpool. Should the decision of this Court become the final decision in this matter, future action on the part of Whitaker concerning the same matter could produce an undesirable result for Whitaker if pursued by Whirlpool.

The order of the trial court dismissing plaintiffs complaint is affirmed, and this case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed against the appellant, Kerry Whitaker.

FARMER and LILLARD, JJ., concur.