text:
    Kirk Davis DOUGLAS, Plaintiff-Respondent, v. DIRECTOR OF REVENUE, STATE of Missouri, Respondent-Appellant.
    No. SD 30207.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 19, 2010.
    Chris Koster, Atty. Gen., Jonathan H. Hale, Jefferson City, for Appellant.
    Stephen E. Walsh, John M. Albright, Poplar Bluff, for Respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

The Director of Revenue (“the Director”) revoked the driver’s license of Kirk Davis Douglas (“Respondent”) for one year after he was arrested for driving while intoxicated. Respondent filed a petition for review with the trial court and, following a hearing, the trial court ordered the exclusion of testimony of the arresting Missouri State Highway Patrol Trooper as a sanction for the Trooper’s failure to produce video and audio recordings of the field sobriety tests and arrest. The trial court then entered a judgment finding that the arresting officer did not have probable cause to arrest Respondent and ordered the Director to reinstate Respondent’s driver’s license. On appeal, the Director contends the trial court erred in reinstating Respondent’s driving privileges because its judgment misapplied the law. We agree and reverse.

On April 24, 2008, Trooper Nathan Wheeles was dispatched to the scene of an accident. As a result of Respondent losing control of the car he was driving, the car went airborne twice, crossed oncoming lanes, and rolled end over end at least once before coming to rest. When Trooper Wheeles arrived at the scene, he began to suspect that Respondent was intoxicated. Trooper Wheeles asked Respondent to perform certain field sobriety tests, and believes the tests were performed in view of the patrol vehicle’s functional dashboard video camera. Trooper Wheeles eventually arrested Respondent for driving while intoxicated.

Before trial, Trooper Wheeles was served with a subpoena duces tecum to appear at a pretrial hearing and produce any video and audio recordings from the incident. Trooper Wheeles appeared and testified that he did not bring the recordings because he thought the recordings were deleted by the system, but conceded that the recordings might still exist. The recordings were never located despite the Highway Patrol’s official policy, which states “Members should ensure that recordings containing events associated with mandatory reportable criminal offenses are not destroyed until any such cases are closed.” Missouri State Highway Patrol General Order, No. 88-02-1129.

In preparation for trial, Respondent filed a motion for sanctions seeking to exclude the testimony and Alcohol Influence Report of Trooper Wheeles based on the recordings never being produced. The trial court, relying in part on the spoliation doctrine, granted the motion for sanctions and subsequently entered judgment finding that Trooper Wheeles did not have probable cause to place Respondent under arrest for driving while intoxicated and reinstated Respondent’s driver’s license. (The Director appeals on the ground that the trial court misapplied the law in excluding Trooper Wheeles’ testimony and the Alcohol Influence Report as sanctions for not producing any recording of the field sobriety tests and arrest.

This Court will overturn the judgment of the court below if there is no substantial evidence to support it, it is against the weight of the evidence, or the court erroneously declared or applied the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

We reverse for two reasons. First, Missouri law makes clear that the Director cannot be sanctioned for the failure to produce records not in the Director’s possession. Bedell v. Director of Revenue, 935 S.W.2d 94, 96 (Mo.App. W.D.1996); Lazzari v. Director of Revenue, 851 S.W.2d 68, 70 (Mo.App. E.D.1993); Richardson v. Director of Revenue, 725 S.W.2d 141, 142 (Mo.App. E.D.1987). This rule specifically extends to records in the custody of the Missouri State Highway Patrol, since such records are not in the Director’s possession. Lazzari, 851 S.W.2d at 70.

Second, the spoliation doctrine is limited to cases where a party, directly or indirectly, takes part in the destruction of evidence. Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 528 (Mo.App. E.D.1998). The purpose of the doctrine is to punish the spoliator. Id. at 526. Here, the Trooper is. not a party to the case. Baldridge v. Director of Revenue, 82 S.W.3d 212, 223 (Mo.App. W.D.2002). Even if the Trooper is an agent of the Director, where an agent of a party destroys evidence, for the spoliation doctrine to be applicable, there must be evidence that the “party in bad faith directed, encouraged, or in any other way took part in destroying evidence.” Schneider, 976 S.W.2d at 528. No evidence indicates that the Director played any role in the destruction of the recordings, which were never in the Director’s possession.

The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

BATES and FRANCIS, JJ., concur.

      . Driving while intoxicated is a mandatory reportable criminal offense. Section 302.510, RSMo Cum.Supp.2005, requires the arresting law enforcement officer to report a driving while intoxicated charge to the Department of Revenue.

      . Respondent filed a Motion to Suppress/Motion to Dismiss with Prejudice; however, by agreement of counsel, the court treated it as a motion for sanctions.

      . In doing so, we note that the trial court can believe all, part, or none of the officer's testimony. Morris v. Director of Revenue, 59 S.W.3d 654, 657 (Mo.App. S.D.2001). The court is certainly free to consider the failure to produce the video and audio recordings in its decision.


source: Caselaw Access Project

author: JEFFREY W. BATES, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald K. MCLARTY, Defendant-Appellant.
    No. SD 30044.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 29, 2010.

      Alexa Irene Pearson, Columbia, MO, for Appellant.
    Chris Koster, Atty. Gen., Daniel McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Judge.

Donald McLarty (Defendant) was charged by amended information with the class B felony of attempted manufacture of methamphetamine. See § 195.211. A jury found Defendant guilty of that crime. Defendant presents five points on appeal. Finding no merit in any of these points, we affirm. For ease of analysis, we address Defendant’s points out of order. The relevant facts will be provided in connection with our discussion of each point.

Point I

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

At approximately 11:00 a.m. on February 7, 2009, Detective Jeremy Yates of the Kennett Police Department received a call that two men were purchasing pseu-doephedrine pills at the Kennett Wal-Mart. The caller provided a description of the two men. Detective Yates went to Wal-Mart and parked outside. He observed two men, who matched the caller’s description, leave the store. Both men were carrying bags. They walked togeth-. er toward a white 2002 Dodge Stratus (the Stratus). Detective Yates provided this information to Lieutenant Tim Trowbridge of the Kennett Police Department. He arrived at the Wal-Mart while the two men were getting into the Stratus.

Lieutenant Trowbridge provided the license plate number on the Stratus to dispatch and was told that the plate was registered to another vehicle. The Stratus left the parking lot, and Lieutenant Trow-bridge followed it. When the Stratus pulled into a parking lot without making a' proper turn signal, Lieutenant Trowbridge initiated a traffic stop. He observed a 26 oz. box of table salt sitting in the back window. Christopher Barbre (Barbre) was sitting in the driver’s seat; Defendant was sitting in the front passenger seat.

Kennett Police Corporal Craig Moody arrived at the scene to assist. He went to the passenger side where Defendant was seated and asked him to get out of the vehicle. Defendant’s speech was slurred and incoherent, and his eyes were dilated. He was unable to maintain his balance without leaning on the Stratus. He was unable to be questioned by the .police at that point.

In the front passenger seat where Defendant had been sitting, there were some plastic Wal-Mart bags. One bag contained an unopened box of Sudafed brand pseudoephedrine cold medication and a bottle of hydrogen peroxide. Another bag contained lithium batteries and a receipt. There was another unopened box of .Su-dafed cold medication in the vehicle. Police also saw four empty boxes of Aleve-D, Claritin-D and Equate brand pseu-doephedrine cold medication in the front passenger compartment. Two of these empty boxes were lying on the floorboard between the car door and right side of the passenger seat where Defendant had been sitting. There were eight loose blister packs of pseudoephedrine pills (each containing 10 pills) on the front passenger seat. Some of these blister packs had been removed from the box and placed into a small paper sack. Barbre and Defendant were arrested. A bag of marijuana was found in Defendant’s right front pocket during a search incident to arrest. In addition to the pseudoephedrine, the following items were recovered from the Stratus during a subsequent inventory search: (1) a coffee grinder; (2) coffee füters; (3) lithium batteries; (4) receipts from various stores; and (5) a glass pipe with methamphetamine residue on it in the center console between the front seats. Some of the receipts were from various Wal-Mart stores and showed the purchase of cold medication on five different occasions in January and February 2009. One receipt from the Schnucks Supermarket in Cape Girardeau showed the purchase of three Ace instant cold compresses on January 15th. Another receipt showed that Barbre had purchased a coffee grinder and lithium batteries at the Malden Wal-Mart on February 7th.

The amended information charged Defendant with attempting to manufacture methamphetamine in violation of § 195.211 because he “knowingly compiled pseu-doephedrine, lithium batteries, filters, salt and hydrogen peroxide, and such conduct was a substantial step toward the commission of the crime....”

At trial, the jury was read a stipulation that Wal-Mart pharmacy records showed: (1) Barbre purchased a box of Equate pseudoephedrine 12-hour tablets containing 2.4 grams of pseudoephedrine at the Poplar Bluff store on February 6, 2007; (2) Defendant purchased one box of Clari-tin-D 120 mg. cold tablets containing 3.6 grams of pseudoephedrine at the Malden store on February 7, 2009 at 9:46 a.m.; (3) Barbre purchased another box of Equate pseudoephedrine 12-hour tablets containing 2.4 grams of pseudoephedrine at the Kennett store on February 7, 2009 at 10:58 a.m.; and (4) Defendant purchased a box of Aleve Cold & Sinus tablets containing 2.4 grams of pseudoephedrine at the Ken-nett store on February 7, 2009 at 11:06 a.m. All three brands of cold' medication were found in the Stratus when it was searched by police.

Lieutenant Trowbridge, who was part of the Bootheel Drug Task Force, gave the following testimony. He had been trained about how methamphetamine was clandestinely manufactured. He was familiar with various methods and techniques that were used to make the drug. Pseu-doephedrine is the principal ingredient that is necessary to manufacture methamphetamine. One method of acquiring this pseudoephedrine is to have someone purchase and accumulate the necessary pseu-doephedrine pills. Law enforcement officers refer to such persons as “ingredients getters[.]” It is illegal for a person to purchase more than '3.6 grams of pseu-doephedrine in a 24-hour time period. One method of making the drug, known as the “Shake-and-Bake” recipe, uses lithium batteries to get the reaction going. A coffee grinder is commonly used to crush the pseudoephedrine pills. Ace instant cold compresses contain ammonium nitrate, which is one the main ingredients in the “Shake-and-Bake” method of producing methamphetamine. Ammonium nitrate, table salt, muriatic acid and hydrogen peroxide are used during the “shake” part of the recipe. Coffee filters are used to filter out the methamphetamine.

Crime lab technician Joanna Sides also had received significant training -with respect to the various methods used in the clandestine manufacture of methamphetamine. She had observed large numbers of items seized from clandestine labs. She gave the following testimony:

Q. And in this case, the police have testified that they seized a number of pseudoephedrine pills or pills containing pseudoephedrine, lithium batteries, table salt, coffee grinder, coffee filter, hydrogen peroxide. Are those all items that are normally associated by you in connection with the clandestine manufacture of methamphetamine?
A. Each of those items can be used to make methamphetamine.
Q. And together would indicate to you that that was something that was occurring or going to occur if those things were all assembled in one place?
A. If they were all assembled in one place, yes, it would be suspicious.

At the close of all of the evidence, defense counsel filed a motion for judgment of acquittal. The trial court denied the motion.

On appeal, Defendant contends the evidence was insufficient to support his conviction for attempting to manufacture methamphetamine in violation of § 195.211. Defendant argues the State failed to prove that: (1) Defendant or Bar-bre compiled each of the items listed in the information; and (2) Defendant or Barbre actually or constructively possessed such items. Appellate review is limited to determining whether there was sufficient evidence from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt. State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006). Methamphetamine is a Schedule II controlled substance. See § 195.017.4(3)(c). Except as authorized by §§ 195.005-195.425, it is unlawful for any person to attempt to manufacture a controlled substance. § 195.211.1. The definition of “manufacture” includes the production, preparation, compounding or processing of a controlled substance. § 195.010(23). Conviction on a charge of attempting to manufacture methamphetamine requires proof that: (1) the defendant took a substantial step toward commission of the offense; and (2) the defendant engaged in such conduct with the purpose of committing the offense. Tilley v. State, 202 S.W.3d 726, 737 (Mo.App.2006); State v. White, 14 S.W.3d 121, 126 (Mo.App.2000). A “substantial step” is defined as “conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” § 564.011.1 RSMo (2000). “Therefore, an attempt to manufacture methamphetamine requires conduct strongly corroborative of the act of producing methamphetamine.” White, 14 S.W.3d at 127.

Because the State presented evidence implicating Barbre in the commission of the charged offense, it is important to note that all persons who act in concert to commit a crime are equally guilty under Missouri law. State v. Wurtzberger, 40 S.W.3d 893, 895 (Mo. banc 2001). “A person is criminally responsible for the conduct of another when ... [e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.” § 562.041.1(2) RSMo (2000). The State is not required to show that the defendant personally committed each element of the crime. Wurtzberger, 40 S.W.3d at 896. Any evidence showing affirmative participation by aiding another to commit the crime is sufficient to support a conviction. Id.

Lieutenant Trowbridge testified that pseudoephedrine is the principal ingredient in methamphetamine. Persons acting as “ingredients getters” purchase and accumulate pseudoephedrine pills to be used in the manufacture of methamphetamine. Receipts found in the Stratus showed prior purchases of pseudoephedrine pills on January 12th and 15th. Barbre purchased a box of pseudoephedrine pills at the Poplar Bluff Wal-Mart on February 6th. Defendant purchased a box of pseudoephedrine pills at the Malden Wal-Mart on February 7th. Barbre and Defendant each purchased a box of pseudoephedrine pills at the Kennett Wal-Mart on February 7th. Defendant’s two purchases within a 24-hour period was a violation of § 195.417. This evidence supports the reasonable inference that both Barbre and Defendant were purchasing and accumulating pseu-doephedrine pills.

There also was ample circumstantial evidence from which the jurors could reasonably find that Defendant and Barbre were accumulating these pills for the purpose of manufacturing methamphetamine. One receipt in Barbre’s vehicle showed that pseudoephedrine cold medication had been purchased on January 15th. That same day, another receipt documented the purchase of three Ace instant cold compresses. This product contains ammonium nitrate, which is one of the main ingredients necessary for the “Shake-and-Bake” method of manufacturing methamphetamine. Other items used in this manufacturing method include a coffee grinder, coffee filters, lithium batteries, table salt and hydrogen peroxide. All of these items were found in the Stratus. The hydrogen peroxide was found in a plastic bag with an unopened box of Sudafed. The Wal-Mart pharmacy records showed that Barbre had purchased a box of Sudafed the previous day. A receipt from the Stratus showed that Barbre also had purchased a coffee grinder and lithium batteries on the morning of February 7th at the Malden Wal-Mart. Other than muriatic acid and a heat source, all of the components necessary for the “Shake-and-Bake” method of manufacturing methamphetamine were recovered from the Stratus after Barbre and Defendant were arrested. In addition, a glass pipe containing methamphetamine residue was found in the center console of the vehicle.

In sum, the State presented sufficient evidence from which the jury could have found beyond a reasonable doubt that: (1) acting together, Defendant and Barbre took a substantial step toward the manufacture of methamphetamine; and (2) they engaged in such conduct for that purpose. Such evidence is sufficient to support Defendant’s conviction. See Tilley, 202 S.W.3d at 737; White, 14 S.W.3d at 126. Their conduct was strongly corroborative of the firmness of their purpose to manufacture methamphetamine. See § 564.011.1 RSMo (2000); White, 14 S.W.3d at 127. Defendant was in actual possession of the pseudoephedrine pills, hydrogen peroxide and lithium batteries in his seat because the items were within his easy reach and convenient control. State v. Agee, 37 S.W.3d 834, 836 (Mo.App.2001). Intent to manufacture methamphetamine could be inferred from Defendant’s prior purchases of pseudoephedrine in amounts exceeding the statutory maximum and the discovery in the Stratus of nearly all of the items necessary for the “Shake-and-Bake” manufacturing method. See State v. Rollett, 80 S.W.3d 514, 523 (Mo.App.2002). In order to convict Defendant on this attempt offense, it was not necessary for the State to prove that Defendant personally accumulated or possessed all of the items necessary to manufacture methamphetamine. See Wurtzberger, 40 S.W.3d at 895-96. There was ample evidence from which the jurors could find that, for the purpose of manufacturing methamphetamine, Defendant aided Barbre in accumulating the necessary ingredients and other items required for the manufacturing process. This was sufficient to support Defendant’s conviction. See Rollett, 80 S.W.3d at 523-24; § 562.041.1(2) RSMo (2000). Point I is denied.

Point III

Defendant’s third point relates to the admission of evidence concerning the glass pipe containing methamphetamine residue that was recovered during the inventory search of the Stratus. Prior to trial, defense counsel filed a motion in limine to exclude any reference to the pipe. The motion asserted that evidence concerning the pipe was irrelevant to the charged offense, and its admission would prejudice Defendant. The trial court overruled the motion. At trial, evidence concerning the pipe was admitted without objection. Defendant’s motion for new trial contained no reference to this matter. On appeal, Defendant contends the admission of this evidence was so prejudicial that a new trial should be granted.

Rule 30.20 authorizes an appellate court, in its discretion, to review for plain error affecting a defendant’s substantial rights “when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Id. “Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case.” State v. Johnson, 182 S.W.3d 667, 670 (Mo.App.2005). Defendant bears the burden of establishing that the trial court committed an evident, obvious and clear error. State v. Thurman, 272 S.W.3d 489, 498 (Mo.App.2008). Defendant also bears the burden of proving the existence of a manifest injustice or a miscarriage of justice. State v. Stanley, 124 S.W.3d 70, 77 (Mo.App.2004). “A claim of plain error places a much greater burden on a defendant than an assertion of prejudicial error.” State v. Wright, 216 S.W.3d 196, 199 (Mo.App.2007). “Plain error and prejudicial error are not synonymous terms, and mere allegations of error and prejudice will not suffice for reversal under plain error review.” Id. Plain error can serve as the basis for granting relief on direct appeal only if the error was outcome determinative. State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006). Defendant argues that the trial court committed plain error in overruling the motion in limine because there was insufficient evidence to show that Defendant had actual or constructive possession of the pipe. We find no merit in this argument.

First, the State’s theory of the case was that, acting together, Barbre and Defendant took a substantial step toward the manufacture of methamphetamine, and they engaged in such conduct for that purpose. Thus, it was up to the jury to decide whether Defendant’s conduct demonstrated an intention to aid Barbre in the manufacture of methamphetamine. Rollett, 80 S.W.3d at 524. The ingredients and other items used in the “Shake-and-Bake” method of manufacturing methamphetamine (e.g., coffee grinder, filters, hydrogen peroxide) have other lawful uses. An important question for the jury to answer was whether Barbre and Defendant intended to use these items for the unlawful purpose of manufacturing methamphetamine. The testimony of Lieutenant Trowbridge and crime lab technician Sides supported the reasonable inference that these common household items were going to be used for that purpose. The admission of evidence that a glass pipe containing methamphetamine residue was found in the center console of Barbre’s car supported that inference. Thus, the evidence relating to this drug paraphernalia was admissible on the issue of Defendant’s intent. See, e.g., State v. Yahne, 943 S.W.2d 741, 746 (Mo.App.1997) (evidence that police found drug paraphernalia and drug residue during a search of the premises was admissible to prove defendant’s intent to manufacture methamphetamine); State v. Steward, 844 S.W.2d 31, 34-35 (Mo.App.1992) (evidence that police found Demerol and a drug pipe during a search of the premises was properly admitted on the issue of the defendant’s intent to possess cocaine); State v. Hall, 687 S.W.2d 924, 929 (Mo.App.1985) (evidence that police found hashish and drug paraphernalia during a search of the premises was admissible to prove intent) declined to follow on other grounds by State v. Schneider, 736 S.W.2d 392, 402 n. 7 (Mo. banc 1987).

Second, we note that Defendant has cited no authority, and we are aware of none, holding that the admission of similar evidence constituted plain error. Assuming arguendo that the trial court erred in admitting evidence concerning the glass pipe, this alleged error was not outcome determinative. Defendant does not complain on appeal about the trial court’s admission of evidence that Defendant was grossly intoxicated when arrested or that police found marijuana in Defendant’s pocket. The jurors could consider this evidence on the issue of intent as well. If the admission of evidence concerning the glass pipe was error, it was harmless because it was cumulative of other evidence admitted for the same purpose. State v. Franks, 228 S.W.3d 607, 610 (Mo.App.2007). Point III is denied.

Point TV

Defendant’s fourth point relates to the giving of Instruction No. 9, which stated:

If you find and believe from the evidence that the defendant was involved in an offense other than the one for which he is now on trial, you may consider that evidence on the issue of knowledge or intent of the defendant. You may not consider such evidence for any other purpose.

At the instruction conference, defense counsel acknowledged that this instruction would benefit Defendant by not permitting the jurors to misuse evidence that he possessed the glass pipe containing methamphetamine residue, possessed marijuana or purchased more than the legal daily limit of pseudoephedrine. Counsel argued, however, that the instruction should not be given because it called attention to offenses for which Defendant was not on trial. The prosecutor responded that the instruction, which aided the jury in only drawing the permissible inferences from evidence of uncharged crimes, should be given if requested by either party. The court overruled the objection and gave the instruction.

Defendant contends the trial court erred in giving Instruction No. 9 because it should only be given when there is evidence that the accused was involved in a related offense. Defendant argues that Instruction No. 9 should not have been given in the case at bar because there was no proof that he actually or constructively possessed the glass pipe, and his possession of marijuana was unrelated to the charged crime.

The first issue we must address is the applicable standard of review. A party is prohibited from assigning as error the giving of an instruction “unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Rule 28.03; State v. Edwards, 116 S.W.3d 511, 545 (Mo. banc 2003). Because the objections Defendant is attempting to assert on appeal were not presented to the trial court at the instruction conference, they are not preserved for review. State v. Carney, 195 S.W.3d 567, 570 (Mo.App.2006); State v. Biggs, 170 S.W.3d 498, 503 (Mo.App.2005). Accordingly, Defendant is not entitled to relief on appeal unless the giving of Instruction No. 9 constituted plain error. State v. Grice, 914 S.W.2d 360, 369 (Mo.App.1995).

“An instructional error rises to the level of plain error only when the appellant demonstrates that the instruction so misdirected or failed to instruct the jury that it is apparent that the error affected the jury’s verdict.” State v. Johnson, 207 S.W.3d 24, 48 (Mo. banc 2006). Consequently, an erroneous instruction seldom results in plain error. State v. Merrick, 257 S.W.3d 676, 680 (Mo.App.2008).

Defendant has failed to meet his burden of establishing plain error here. Instruction No. 9 was patterned after MAI-CR 3d 310.12. Notes on Use 2 states that this instruction must be given if requested by either party. Id. In determining whether this pattern instruction should given, the Notes on Use in MAI-CR 3d 310.10 must be consulted. In relevant part, that instruction’s Notes on Use 3(1) states:

(a) Prior crimes committed by the defendant will be referred to as either “related” or “unrelated.” “Related crimes” are those that may go to show intent, motive, etc. Such crimes may be shown by the state as substantive evidence of guilt of the crime on trial, whether the defendant testifies or not. See MAI-CR 3d 310.12....

MAI-CR 3d 310.10, Notes on Use 3(l)(a). For the reasons already discussed in disposing of Defendant’s third point on appeal, the evidence relating to the glass pipe and Defendant’s possession of marijuana was properly admitted on the issue of Defendant’s intent. See State v. Dowell, 25 S.W.3d 594, 603 (Mo.App.2000) (because defendant was charged with knowingly manufacturing methamphetamine, evidence relating to his possession of a syringe and a baggie of methamphetamine was admissible to prove his intent). Therefore, Instruction No. 9 was properly given in order to instruct the jury on how it should use this evidence of prior related crimes. See State v. Vivone, 63 S.W.3d 654, 658 (Mo.App.1999). Point IV is denied.

Point V

Defendant’s fifth point contends the trial court committed plain error in giving Instruction No. 5, which stated:

A person is responsible for his own conduct and he is also responsible for the conduct of other persons committing an offense if he acts with the other persons with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other persons in committing it.

If you find and believe from the evidence beyond a reasonable doubt:

First, on or about February 7, 2009, in the County of Dunklin, State of Missouri, the defendant and/or Christopher Barbre compiled pseudoephedrine, lithium batteries, filters, salt, and hydrogen peroxide, and
Second, that such conduct was a substantial step toward the commission of manufacturing methamphetamine, a controlled substance, and Third, that the defendant or Christopher Barbre engaged in such conduct for the purpose of manufacturing a controlled substance,
[T]hen you are instructed that the offense of attempt to manufacture a controlled substance has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or furthering the commission of that attempt to manufacture a controlled substance, the defendant acted together with or aided or encouraged Christopher Barbre in committing the offense, then you will find the defendant guilty [of] attempt to manufacture a controlled substance.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of the propositions, you must find the defendant not guilty of that offense.
A person commits the crime of manufacturing or producing a controlled substance if he knowingly manufactures or produces a controlled substance and he knew or was aware that it was a controlled substance.
As used in this instruction, the term “substantial step” means conduct which is strongly corroborative of the firmness of the defendant’s purpose to complete the commission of the offense of manufacturing a controlled substance.

Defense counsel did not object to Instruction No. 5 at trial, and the motion for new trial contained no reference to this instruction. For the first time on appeal, Defendant contends the trial court committed plain error in using the word “compiled” in paragraph First of the instruction. Citing State v. Farris, 125 S.W.3d 382 (Mo.App.2004), Defendant argues that “compiled” is the equivalent of “possessed,” so the latter word should have been used in paragraph First and defined for the jury.

As noted in our discussion of Point IV, instructional error rises to the level of plain error only when an appellant demonstrates that the instruction so misdirected or failed to instruct the jury that it is apparent the error affected the verdict. Johnson, 207 S.W.3d at 48. Consequently, appellate courts seldom find that an erroneous instruction resulted in plain error. Merrick, 257 S.W.3d at 680.

In Farris, a citizen drove by a parked automobile. One man was in the car, and two others were standing outside. The citizen smelled ether, suspected she had passed a methamphetamine lab and called the police to report the description of the car. Police passed the vehicle on the way to the scene, and it sped away. While in pursuit, the officers smelled ether. When the vehicle was stopped, police arrested all three men: Zike, the car’s owner; Roe, a passenger; and Farris, another passenger. Glassware was found in the passenger compartment. During a search of the area where the car had been parked and the road over which it had traveled, police found various items used in the manufacture of methamphetamine (anhydrous ammonia, coffee filters, a muriatic acid generator, etc.) and methamphetamine residue. In the trunk of Zike’s car, police found a cooler containing coffee filters, hoses, duct tape and a glass Pyrex dish. Farris was charged with attempting to manufacture methamphetamine by “possessing” items used to manufacture that controlled substance. Id. at 386. At trial, the State presented no evidence tending to prove that Farris had been involved in obtaining any of the items found by police. The State also did not rely upon an accomplice liability theory as a basis for conviction. Id. The only substantial step hypothesized in the verdict-directing instruction was that “[Farris] possessed items used in the manufacture of methamphetamine.... ” Id. at 389. Defense counsel objected to the instruction because it did not include the definition of possession found in MAI-CR 3d 333.00. At that time, however, the Notes on Use for MAI-CR 3d 325.06.2 did not require or authorize the use of that definition. The trial court overruled the objection and gave the verdict-directing instruction without the definition. Defense counsel did not raise the issue in the motion for new trial. Id. at 389-90.

On appeal, the western district of this Court found that the trial court committed plain error by giving the verdict-directing instruction without defining “possession.” To prove the crime of attempted manufacture of methamphetamine, the State had to prove that the defendant had the intent to manufacture methamphetamine and that he performed an act that was a substantial step toward manufacturing methamphetamine. The substantial step hypothesized in the verdict-directing instruction was that the defendant possessed items used in the manufacture of methamphetamine. Id. at 391. That element was contested at trial. Id. at 394. The prosecutor argued that the defendant possessed the items because they came out of the vehicle in which he was a passenger, which the appellate court noted is “an incorrect statement of the law as to the standard for possession.... ” Id. Therefore, the giving of the verdict-directing instruction without a definition of possession was plain error. Id. at 394-95.

Farris does not support Defendant’s argument that the giving of Instruction No. 5 in this case was plain error. In Farris, there was no evidence that the defendant had been involved in any way in obtaining the recovered items which could be used to manufacture methamphetamine. In addition, the case did not involve the issue of accomplice liability, by which the actions of others could be imputed to Farris. The only substantial step presented to the jury was Farris’ possession of the items, which he disputed. The absence of a definition permitted the State to argue that Farris possessed the items simply by being in proximity to them, which was not a correct statement of the law. In contrast, the State did present evidence in the case at bar that Defendant was actively involved in purchasing pseudoephedrine. The jurors could infer an illicit purpose for the purchases because Defendant was violating the law by purchasing amounts in excess of the daily limit. Moreover, Defendant was with Barbre when he bought pseudoephedrine and other items (e.g., lithium batteries, a coffee grinder) that could be used to manufacture methamphetamine. The accomplice liability theory permitted Barbre’s conduct to be imputed to Defendant if the jury believed the two men were acting together. There also was a significant difference in the language of the verdict-directing instructions in Farris and the case at bar. Instruction No. 5 did not hypothesize that Defendant “possessed” items used to manufacture methamphetamine. Instead, the instruction hypothesized that “the defendant and/or Christopher Barbre compiled pseu-doephedrine, lithium batteries, filters, salt, and hydrogen peroxide....” As relevant here, the dictionary definitions of “compile” include gradually building up, putting together, piling up or gathering into a mass. See Merriam-WebsteR’s Collegiate Dictionary 253 (11th ed.2005); Webster’s Third New International Dictionary 464 (1986); Funk & Wagnalls New “Standard” Dictionary 542 (1952).

As discussed in our disposition of Point I, the' State presented evidence from which the jury could reasonably infer that Defendant and Barbre were acting together to gradually build up pseudoephedrine and other materials with .the intent to use such items to manufacture methamphetamine. The instruction hypothesized such conduct as the basis for Defendant’s criminal liability, and the State argued those facts to the jury. For example, the prosecutor argued that “[w]e can’t go into what’s inside their heads but we can see what their actions were. They got those things together.” The prosecutor’s argument was a correct statement of the law of accomplice liability. Thus, Defendant was not improperly convicted based only upon his disputed possession of items used to manufacture methamphetamine, as in Farris. Notes on Use 8 for MAI-CR 3d 325.06.2 only requires the use of the word “possessed” and an accompanying definition “if the conduct constituting the substantial step consisted of possession of certain items....” Id. The trial court committed no error, plain or otherwise, in giving Instruction No. 5. Point V is denied.

Point II

Defendant’s second point involves an allegedly improper closing argument by the State. During the rebuttal portion of the State’s closing argument, the prosecutor stated:

[Prosecutor]: We can — the police can investigate these cases and arrest people and bring me reports and I can file charges and we can call witnesses and come in here and the Clerk can administer an oath and I can — they can testify and the Judge can instruct you on the law and Ms. Odom can take it all down. But when you talk to your friends and they talk to you and say, why don’t people do something about all this meth cooking that’s going on[?]

Defense counsel objected that the prosecutor was improperly arguing the jury should send a message about the war on drugs by convicting Defendant. The trial court overruled the objection. The prosecutor then said:

You hear people talk about why they didn’t do something about this. Well, all these things can go on but in the final analysis that you are the “they” that can do something about this. You can tell people in Dunklin County that it’s not acceptable to cook meth here. You can hold [Defendant] responsible for the conduct he engaged in and the things that he assisted Mr. Barbre in doing. I submit to you when you consider the evidence, the testimony, the exhibits and the instructions of the law that the Judge gave you, that there is one inescapable conclusion about what was going on on the morning of February 7th of this year out here at Wal-Mart and that is that they were gathering ingredients to cook meth. That it was their purpose to cook meth. And, again, I can’t tell you which one of them was going to do it. But I submit to you that the evidence leads you to the inescapable conclusion that this Defendant, at the very least, was aiding, assisting, helping, he was gathering those ingredients with Mr. Barbre. There is no other possible reasonable explanation for what they were doing other than to cook meth. And I urge you to consider the evidence, consider the law, look at the exhibits, look at the records, discuss it, find him guilty of the offense that he has committed: Attempting to manufacture methamphetamine.

On appeal, Defendant contends this argument was improper because it was designed to arouse the jurors’ prejudice and hostility, and thereby obtain a verdict not based upon the facts. We disagree.

“[T]he trial court is best able to assess the prejudicial effect of the prosecutor’s statements.” State v. Kriebs, 978 S.W.2d 460, 466 (Mo.App.1998). Accordingly, the trial court is afforded broad discretion in controlling closing argument, and its rulings are reversed only for an abuse of discretion prejudicing the defendant. State v. Biggs, 91 S.W.3d 127, 135 (Mo.App.2002). “A trial court abuses that discretion when it allows statements or arguments by the prosecutor that are plainly unwarranted and clearly injurious to the defendant.” Id. We find no such abuse of discretion here.

It is “permissible for a prosecutor to argue the necessity for law enforcement, the duty of the jury to convict the defendant to prevent crime and the results to society of a failure to uphold the law.” State v. Collins, 150 S.W.3d 340, 353 (Mo.App.2004). In the case at bar, the prosecutor did no more than appeal to the jurors to uphold the law and protect then-community from the danger of drugs and drug-related crime. Such an argument is permissible. See, e.g., State v. Roper, 268 S.W.3d 392, 399-400 (Mo.App.2008); State v. Burton, 219 S.W.3d 778, 781-82 (Mo.App.2007); State v. Smith, 849 S.W.2d 677, 680-81 (Mo.App.1993); State v. Hatcher, 835 S.W.2d 340, 344 (Mo.App.1992). The prosecutor specifically urged the jurors to consider the evidence, exhibits and instructions in reaching their verdict, and he explained why the evidence supported a decision to convict Defendant of the charged crime. Point II is denied.

The judgment of the trial court is affirmed.

RAHMEYER, P.J., and FRANCIS, J., concur.

      . All references to statutes are to RSMo Cum. Supp. (2009) unless otherwise specified. All references to rules are to Missouri Court Rules (2010).

      . The glass pipe with residue on it was admitted as Exhibit 10. Laboratory tests confirmed that the residue was methamphetamine.

      . The receipts were separately marked and admitted in evidence. Exhibit 5 was a Wal-Mart receipt showing the purchase of cold medication on February 7th at 11:07 a.m. Exhibit 7 was a Wal-Mart receipt showing the purchase of cold medication on February 7th at 9:46 a.m. Exhibit 8 was a Wal-Mart receipt showing the purchase of cold medication on February 6th. Exhibit 9 contained three different receipts. Two receipts showed the purchase of cold medication on January 12th and 15 th.

      . Lieutenant Trowbridge was' referring to § 195.417, which makes it illegal for a person to purchase more than 3.6 grams of pseu-doephedrine in a 24-hour period or more than 9 grams of pseudoephedrine in a 30-day period.

      . Rollett was superseded by statute on other grounds as stated in State v. Young, 139 S.W.3d 194, 198 n. 4 (Mo.App.2004).

      . No party asked that the jury be given a definition of the word "compiled." In the absence of such a request, no definition was required because this word is generally understood and has no specialized definition. See, e.g., State v. Neal, 685 S.W.2d 271, 276 (Mo.App.1985).


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

text:
    In the ESTATE OF: Ray L. PENCE, deceased. Linda Pence, Appellant, v. Sheila Gay Haddock, as Personal Representative of the Estate of Ray L. Pence, Respondent.
    No. SD 30378.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 30, 2010.

      Robert P. Warden, Joplin, for Appellant.
    John J. Podleski, Joplin, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

Linda Pence (“Linda”) appeals an order of the Circuit Court of Jasper County, Missouri, Probate Division (“probate division”), revoking all provisions in the “Joint and Mutual Last Will and Testament of Ray L. Pence and Linda C. Pence” (“the Will”) in favor of Linda, by operation of section 474.420. This appeal was timely filed pursuant to section 472.160(9). Although the probate division labeled its findings as a “Judgement [sic], Including Findings of Fact and Conclusions of Law,” and recited it as final and appealable, this was not a final judgment which would conclude administration of the estate. Because the findings of the probate division are final as to Linda, and effectively revoke her “Application for Letters Testamentary,” section 472.160(9) is the section most closely identified with this interlocutory appeal and we decide the merits of this appeal under authority of that section. We affirm the order of the probate division.

Factual and Procedural History

Linda married Ray L. Pence (“Ray”) on August 23, 1978. Linda and Ray each had a daughter by a prior marriage. Linda’s daughter, Lisa, was four years old when the parties married and she then lived with them. Sheila Gay Haddock (“Sheila”) is Ray’s daughter by his prior marriage.

On December 22, 1988, Linda and Ray signed the Will, which included a provision not to revoke the Will unless both parties agreed. The Will directed their property would be left to the surviving spouse and named the survivor as the personal representative.

The pertinent language in the Will provides:

ARTICLE I
We, RAY L. PENCE and LINDA C. PENCE, the Testators herein, have jointly and mutually agreed to enter into a contract to make this Last Will and Testament and not to revoke it. We do not know which of us will survive the other.... We desire that the survivor should have the property unencumbered for his or her use, benefit, and need, with full powers to sell or otherwise dispose of any property, either real or personal, during his or her lifetime, and to use the proceeds of any sale or disposition of such property as he or she sees fit. At the same time, at the death of the survivor, we wish to make a division of the property whereby our children, SHIELA [sic] GAY HADDOCK and LISA A. FLORES, receive the rest and remainder of our estate in equal shares. Under our contract, each of us promises that if he or she is the survivor, he or she will neither revoke this Will so as to defeat the rights of our heirs nor to make any transactions during his or her lifetime which would defeat the intents of this Will.

After living together continuously. for twenty-eight years, Linda and Ray separated on December 11, 2006, and were divorced on February 29, 2008. The dissolution of marriage decree divided all non-marital and marital property, and respectively awarded the property to Ray and Linda free and clear of any claims from each other. Ray was awarded approximately $31,900 more in property than Linda because the trial court found she had squandered money.

Neither Linda nor Ray remarried after their divorce in February 2008.

Ray died on April 22, 2009. On April 27, 2009, Linda filed an “Application for Probate of Will” and “Application for Letters Testamentary”; the Will was filed with the probate division. On June 4, 2009, Sheila filed a motion to dismiss, asserting Linda had no standing in the estate, and an “Application for Letters Administration [sic].” Linda’s “Motion for an Order to Secure and Protect the Assets of the Estate and to Take an Inventory of the Contents of the Real Property,” filed May 13, 2009, was heard on June 5, 2009. A hearing on all pending applications, motions and objections was conducted on June 22, 2009. Linda testified, over objection, that she and Ray discussed making a will and had an oral agreement concerning the terms in the Will. This discussion was before the Will was executed. Linda testified the basic terms of their oral agreement were that the Will should protect both of them in their old age and, in the case of their death, it should take care of their daughters. The probate division took all pending issues under advisement.

On December 3, 2009, the probate division entered an order labeled “Judgement [sic], Including Findings of Fact and Conclusions of Law.” The probate division “determined that a contract to make a will and not to revoke the will prior to the death of either party has been established in accordance with 474.155, but that there was no agreement regarding any potential divorce between the parties.” The probate division ordered that all provisions concerning Linda in the “Last Will and Testament of Ray Pence,” including her right to serve as personal representative, were revoked by operation of Section 474.420. The probate division sustained Sheila’s motion to dismiss. The order of December 3, 2009, further provided:

Although RSMo. 474.155 contains specific provisions for the establishment of a contract not to revoke a will, it contains no provision allowing a trial court to ignore the provision of 474.420 where the contractual provisions are contained in a will and the parties are subsequently divorced. This court is obliged to consider the application of both 474.155 and 474.420.

The Will was admitted to probate and Sheila’s oral request to amend her application to be appointed personal representative was sustained. The Application for Letters Testamentary, on behalf of Linda, was denied by the probate division. Sheila was appointed personal representative of the Estate of Ray L. Pence. Linda filed her “Motion for New Trial and/or to Set Aside Judgment Pursuant to Rule 75, Rule 78 and to Amend the Judgment Pursuant to Rule 78.07(e)” on December 31, 2009. On February 9, 2010, the probate division denied that motion. Linda filed her notice of appeal on February 17, 2010.

Linda’s first point relied on contends the probate division erred in finding all provisions of the Will in favor of Linda revoked by operation of section 474.420, and Linda could not prevail under section 474.155 because section 474.155 fails to address the issue of divorce and, therefore, does not allow the court to ignore its clear and unambiguous language. Linda’s second point relied on alleges error in the probate division’s finding that a written contract, separate and apart from provisions in the Will, was required for all benefits in favor of Linda to survive because it misapplies the law in that an oral contract conforms to the requirements of section 474.155 if the oral contract is embodied within the will.

Sheila contends the probate division did not err because section 474.420 clearly revokes all provisions in a will executed before dissolution of marriage in favor of the ex-spouse of the testator, and the application of sections 474.155 and 474.420 must both be considered because they do not contradict each other. Because our analysis on each of Linda’s points is interrelated, we address both of Linda’s points relied on together.

Standard of Review

This Court’s review is governed by Rule 84.13(d) and the principles set out in Murphy v. Carton, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32.

Relevant Statutes

The following statutes contained in the probate code are relevant to our analysis. Section 474.420 “Change in circumstances — divorce” states:

If after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse had died at the time of the divorce. With this exception, no written will, nor any part thereof, can be revoked by any change in the circumstances or condition of the testator.
Section 474.155 provides:
A contract to make a will or devise, to revoke or not to revoke a will or devise, or to die intestate, if executed after January 1, 1981, can be established only by:
(1) Provisions of a will stating material provisions of the contract;
(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(3) A writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Analysis

The probate division found that although the Will contained an otherwise valid provision not to revoke the Will, the Will did not specifically contemplate whether the parties’ agreement would survive a divorce. In applying sections 474.420 and 474.155, the probate division concluded all provisions of the Will in favor of Linda were revoked by operation of section 474.420. Linda contends that because the probate division itself recognized the parties had fulfilled the requirements of section 474.155 in establishing a contract which could not be revoked, the probate division erred in not giving effect to this provision. Linda is essentially arguing that section 474.155 allows her to circumvent section 474.420 in this case. We find no support for this contention.

Section 474.420 clearly provides that “[i]f after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse so divorced are thereby revoked.” § 474.420. “The divorce activates a ‘constructive death’ of the testator’s spouse vis-a-vis the will.” Matter of Bloomer’s Estate, 620 S.W.2d 365, 367 (Mo. banc 1981). Each pertinent provision of the will is to be construed as though the divorced spouse predeceased the testator. In the Estate of Beare, 880 S.W.2d 562, 566 (Mo.App. E.D.1993). The Supreme Court of Missouri further explained:

The legislature decided that a divorce should wipe the slate clean as to the divorced spouse, without the testator having to go to the time and expense of making a new will. We can be sure that in almost every instance a divorced person does not desire a bequest to the former spouse to remain in effect. The legislature realized this, too, and wrote the statute to accomplish what was perceived to be the desired outcome in most divorces.

Matter of Bloomer, 620 S.W.2d at 366. The language of section 474.420 is “plain and unambiguous and, therefore, requires no construction, liberal or otherwise.” Id. at 367.

“In construing a statute, the Court must presume the legislature was aware of the state of the law at the time of its enactment.” Nicolai v. City of St. Louis, 762 S.W.2d 423, 426 (Mo. banc 1988) (internal citation omitted). Section 474.420 became effective January 1, 1956, while section 474.155 became effective in 1981, decades after section 474.420 was codified. Consequently, we must assume the legislature was aware of section 474.420 when it enacted section 474.155. If the legislature had intended to exclude the application of section 474.420 when applying section 474.155, it easily could have added such an exception. It did not.

In support of her position, Linda cites to Moran v. Kessler, 41 S.W.3d 530 (Mo.App. W.D.2001), which interpreted the application of section 474.155 after a party to a joint and mutual will had died. We find, however, the facts and issues presented in Moran are distinguishable from this case as the parties’ marriage in Moran was intact at the time of the wife’s death and the application of section 474.420 was not considered by the court.

The probate division also found Linda’s reliance on Rookstool v. Neaf, 377 S.W.2d 402 (Mo. banc 1964), to be misplaced. Linda argues the probate division misapplied the law in requiring a written contract, separate and apart from the provisions in the Will, in that an oral contract conforms to the requirements of section 474.155 if the oral contract is embodied within the Will. Here, Linda misinterprets the court; it did not require a written contract separate and apart from the provisions in the Will for Linda’s benefits to survive section 474.155.

The probate division noted Linda’s reliance on dicta from Rookstool, where the Supreme Court of Missouri held an alleged oral contract not to revoke reciprocal wills was within the statute of frauds, and that the provisions in the decedent’s will in favor of the divorced spouse were revoked by the operation of section 474.420. The probate division then quoted Rookstool: “The only thing which would save the benefits of these statutorily revoked wills to either the decedent (had he been the survivor) or to the plaintiff is an enforceable contract made between them not to revoke the wills.” (Emphasis in original.) Although the probate division did recognize the absence of a written contract separate and apart from the provisions in the Will in the case at hand, in the next sentence, the probate division acknowledged “that a contract to make a will and not to revoke the will prior to the death of either party has been established in accordance with 474.155....” It was not requiring a written contract separate and apart from the provisions of the Will. Rather, what the probate division found to be significant was the fact that “there was no agreement regarding any potential divorce between the parties.” In contrast to the contract between Linda and Ray, the alleged oral contract between the parties in Rookstool not to revoke the will clearly contemplated divorce; it was reached during a conversation regarding their divorce settlement the day before their decree of divorce was granted. 377 S.W.2d at 405.

Finally, we note “[t]he law favors a statutory interpretation that tends to avert unreasonable results.” Miles v. Lear Corp., 259 S.W.3d 64, 75 (Mo.App. E.D.2008). If Linda’s interpretation of the two statutes is permitted, then Linda would be able to keep the property the court awarded her in the divorce, and also receive the entirety of Ray’s remaining estate, unencumbered. This would result in an inequitable windfall in favor of Linda because she already received her share of marital property in the original divorce decree.

“Unless two statutes are irreconcilably inconsistent, both must stand.” Nicolai, 762 S.W.2d at 426 (internal citation omitted). Sections 474.420 and 474.155 are not in conflict; section 474.420 deals with the revocation of will provisions regarding a divorced spouse, while section 474.155 speaks to contractual provisions that may be irrevocable. Therefore, this Court must enforce the law as it is written.

Here, the Will contemplated two possible outcomes — either Linda would survive Ray or she would not. The Will did not contemplate divorce and, in cases like this one, the legislature has given clear direction in section 474.420 that all provisions relevant to the divorced spouse are revoked, and the effect of the revocation upon the Will is that the divorced spouse, Linda, is considered to have predeceased the testator. See Estate of Beare, 880 S.W.2d at 566. The divorce of Linda and Ray in February 2008 had the effect of cutting off all of Linda’s claims to Ray’s estate under section 474.420. Thus, the probate division did not err in finding Linda, as the divorced spouse of Ray, is treated as if she predeceased him pursuant to section 474.420 and, consequently, she has no standing in relation to Ray’s estate. There is no showing the probate division’s order is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Points I and II are denied.

The probate division’s order of December 3, 2009 is affirmed.

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

      . Because a portion of the involved parties share the same surname, for ease of reference we refer to the parties by their first names. We mean no familiarity or disrespect.

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

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

      . The probate division wrote: "In this case, there is no purported written contract separate and apart from the provisions in the will.”


author: ROBERT S. BARNEY, Presiding Judge.

text:
    Eddie L. BEEBE, Appellant, v. James A. NAVIAUX, d/b/a Longhorn Inn, and Division of Employment Security, Respondents.
    No. SD 30315.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 30, 2010.

      Eddie L. Beebe, pro se.
    Jeannie D. Mitchell, Asst. Atty. Gen., Jefferson City, for Respondent, Missouri Dept, of Labor and Industrial Relations.
   ROBERT S. BARNEY, Presiding Judge.

Eddie L. Beebe (“Claimant”) appeals from the Labor and Industrial Relations Commission’s (“the Commission”) “Order” dismissing his “Application for Review” of the Appeals Tribunal’s (“the Tribunal”) decision which found him ineligible for unemployment compensation benefits following Claimant’s act of “voluntarily leaving] work.” We affirm the Commission’s decision.

The record reveals Claimant filed his claim for unemployment benefits on November 13, 2008. On December 10, 2008, a deputy for the Division of Employment Security (“the Division”) determined Claimant was disqualified from receiving unemployment benefits “because [he] left work ... voluntarily without good cause attributable to his work or employer....” Claimant appealed to the Tribunal and telephone hearings were held on January 22, 2009, and February 6, 2009. Following the hearings, on February 11, 2009, the Tribunal’s referee affirmed the finding of the Division’s deputy that Claimant was disqualified from receiving benefits. The Tribunal’s decision, a copy of which was provided to Claimant, contained the following statement;

[t]his decision will become the final decision of the Division unless a further appeal is filed as set out below.
APPEAL RIGHTS
If you disagree with this decision of the ... Tribunal, you may appeal the decision by filing an application for review ... to the [Commission]. No [s]pecial form is needed to file an application to the [C]ommission. An application for review must be filed within thirty (30) days from the date of this decision. The [a]pplication may be filed by mail or by fax to the address or number shown below....

However, Claimant did not file his appeal with the Commission until November 10, 2009. On December 9, 2009, the Commission entered its Order dismissing Claimant’s appeal “pursuant to [section] 288.200 ..., because it was neither postmarked nor received within thirty (30) days after the ... Tribunal’s [d]ecision was mailed.” This appeal by Claimant followed.

“Absent fraud, the Commission’s findings of facts are conclusive so long as they are supported by substantial and competent evidence.” Comeaux v. Convergys Customer Mgt. Group, Inc., 310 S.W.3d 759, 762 (Mo.App.2010); § 288.210. “To determine whether the facts are supported by substantial and competent evidence, we examine the record as a whole.” Id.; see Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).

As best we discern the allegations of error asserted here, it appears Claimant is primarily asserting the Commission erred in dismissing his appeal, which was filed in excess of the thirty days allowed under section 288.200. Section 288.200.1 sets out:

[a]ny of the parties ... to any decision of [the Tribunal], may file with the [Commission within thirty days following the date of notification or mailing of such decision, an application to have such decision reviewed by the [Commission. The [Commission may allow or deny an application for review.... If an application for review is denied, the decision of the [Tribunal] shall be deemed to be the decision of the [Commission for the purpose of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to decisions of the [Commission except that the time limitations shall run from the date of notice of the order of the [Commission denying the application for review.

In the instant matter, the Tribunal mailed its decision to Claimant on February 11, 2009, therefore, Claimant’s notice of appeal to the Commission “was due within thirty days following the date of notification or mailing of such decision.” § 288.200.1. Yet, Claimant filed his notice of appeal on November 10, 2009, which was approximately eight months after the expiration of this statutory time period. Unemployment benefits are solely a creature of statutory provision. Martinez v. Lea-Ed, Inc., 155 S.W.3d 809, 810 (Mo.App.2005). Section 288.200 “ ‘does not provide for late filing and does not recognize any exceptions for filing out of time.’ ” Grissom v. Div. of Employment Sec., 303 S.W.3d 626, 627 (Mo.App.2010) (quoting McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App.2000)). Claimant’s only relevant issue in this appeal is whether the factual determinations made by the Commission as to the timeliness issue are supported by substantial evidence upon the whole record and whether the Commission correctly applied the law as to those facts. See Comeaux, 310 S.W.3d at 762; Hampton, 121 S.W.3d at 223. We find the Commission’s ruling was correct and there is competent and substantial evidence to support the Commission’s order dismissing Claimant’s appeal. § 288.210. Claimant’s allegation of error lacks merit.

The Order of the Commission dismissing Claimant’s appeal is affirmed.

LYNCH, and BURRELL, JJ., concur.

      . We note Claimant appears before this Court pro se. His brief is profoundly deficient in that it virtually ignores the Missouri Rules of Court; has no discemable structure; has no recognizable points relied on; is overly lengthy; contains documentation that was almost certainly not presented to the Commission; and presents this Court with little to effectively evaluate. “As a pro se litigant, Claimant is bound by the same rules of procedure as a party represented by a licensed attorney.” Ragan v. Fulton State Hosp. and Div. of Employment Sec., 188 S.W.3d 473, 475 (Mo.App.2006).

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

      . We note the Division has filed a motion to dismiss Claimant's appeal for lack of jurisdiction maintaining that Claimant's late application for review to the Commission deprived both the Commission and this Court of jurisdiction. The Division's motion was taken with the case and is hereby denied. See J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 252-54 (Mo. banc 2009).

      . Pursuant to section 288.240, the notice of appeal is deemed filed on the date endorsed by the United States Post Office on the envelope.


author: DON E. BURRELL, Judge.

text:
    Todd BLANKENSHIP, Claimant-Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. SD 30341.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 1, 2010.

      Todd Blankenship, Nixa, pro se.
    Ninion S. Riley, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

A deputy of the Division of Employment Security (“the Division”) determined that Todd Blankenship (“Claimant”) had been overpaid $1,433 on his claim for unemployment benefits because Claimant had willfully failed to disclose wages he had earned that disqualified him from receiving benefits. Claimant appealed the deputy’s determination to the Division’s Appeals Tribunal.

The Appeals Tribunal designated a referee to hear Claimant’s appeal and set the matter for a hearing to be held by telephone on Tuesday, November 10, 2009 at 1:15 p.m. The Appeals Tribunal mailed notice of the hearing to Claimant on October 29, 2009. On the designated date, the referee placed calls to Claimant at 1:15 p.m. and 1:20 p.m. On each occasion, Claimant did not answer, and the calls went to voicemail. The referee left a message after each call. When the referee was unable to reach Claimant, he dismissed Claimant’s appeal (in an order dated November 13, 2009) for failing to appear at the telephone hearing.

After receiving notice of the dismissal, Claimant filed an application for review with the Labor and Industrial Relations Commission (“the Commission”). A letter attached to Claimant’s application for review indicated Claimant was “unable” to attend the telephone hearing due to “personal reasons[;]” that he fully intended to continue to dispute the referee’s determination; and that he “regret[ted] the unavoidable circumstances of which [sic][he] was unavailable for the telephone hearing[.]” Claimant’s application gave no indication of what those “personal reasons” and “unavoidable circumstances” were.

The Commission affirmed the Appeals Tribunal’s decision to dismiss Claimant’s appeal and adopted it as its own. That decision stated: “After due notice to the interested parties[,] the appeal was set for a telephone conference hearing originating from Jefferson City, Missouri, before an Appeals Tribunal on November 10, 2009, at 1:15 p.m. The appellant did not participate in the hearing to pursue the appeal.” Claimant now appeals the decision of the Commission to this court.

Claimant is representing himself on appeal. “Although we are mindful of the difficulties that a party appearing pro se encounters in complying with the rules of procedure, we must require pro se appellants to comply with these rules. We must not grant a pro se appellant preferential treatment.” Brown v. Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 146 (Mo.App. W.D.2007) (unemployment benefits appeal dismissed due to briefing deficiencies). “This is not a matter of our personal preference, but rather the demands placed upon us by our oaths of office, our commitment to uphold the rule of law, and the very nature of the adversarial process which requires fair, impartial and disinterested decision makers.” Bishop v. Metro Restoration Servs., Inc., 209 S.W.3d 43, 45 (Mo.App. S.D.2006) (unemployment benefits appeal dismissed for briefing deficiencies) (footnotes omitted).

In response to Claimant’s initial brief, the Division filed a motion to strike the brief and dismiss the appeal, alleging Claimant failed to claim that the Commission erred and noting that “Rule 84.13(a) provides that, ‘[a]llegations of error not briefed or not properly briefed shall not be considered in any civil appeal[.]’ ” We took the Division’s motion with the ease and it filed a responsive brief. Because Claimant’s briefing deficiencies substantially impede appellate review, we grant the Division’s motion and dismiss Claimant’s appeal.

Although the deficiencies are pervasive, the most serious flaw in Claimant’s brief is that it fails to state a point relied on. Rule 84.04(d)(2) provides:

Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:
(A) identify the administrative ruling or action the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The [name of agency ] erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review ], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error ].”

“The intent of Rule 84.04(d) is to give notice to the opposing party of the exact claim being made and to what it specifically must respond, and to advise this court of the questions presented for review.” Nicholson v. Transamerica Occidental Life Ins. Co., 144 S.W.3d 302, 306 (Mo.App. W.D.2004) (unemployment benefits appeal dismissed for briefing deficiencies). No administrative ruling is identified by Claimánt and he identifies no legal reason(s) that might support any claim of reversible error. See Bishop, 209 S.W.3d at 47. “Without any point relied on in [the claimantj’s brief, [the claimant] has failed to preserve anything for appellate review.” Id.

In support of its position that “[w]here a claimant does not contest the dismissal of his case for failing to appear at a hearing, the courts consider that issue abandoned[,]” the Division cites Lewis v. Fort Zumwalt School Dist., 260 S.W.3d 888, 890 (Mo.App. E.D.2008). In Lewis, as in this case, the hearing referee reached an answering machine in his two attempts to reach the claimant for the telephone hearing. Id. at 889. The claimant subsequently failed to provide the Commission with any reason for her failure to attend the hearing. Id. The claimant also “failed to allege any reviewable point of error on the part of the Commission.” Id. at 890. In affirming the Commission’s decision upholding the dismissal of the claimant’s case, the Eastern District stated:

Because [claimant’s] appeal does not contest the dismissal of her case for failing to appear at the hearing, that issue has been abandoned. Having failed to address the grounds upon which her claim was dismissed, [claimant] presents no appealable issue for this Court to review. Accordingly, [claimant’s] appeal must be dismissed.

Id.

Here, Claimant informed the Commission in the letter attached to his application for review that his “attendance [at the telephone hearing] was prevented by personal reasons and by no means was it intended to disregard [the] matter.” Despite this stated reason for his request for review by the Commission, Claimant’s brief makes no mention of his failure to attend the telephone hearing and presents no point asserting that the Commission erred in affirming the Appeals Tribunal’s dismissal of his appeal on the grounds that Claimant abandoned his appeal by failing to appear. Instead, Claimant’s brief deals with factual averments we presume he intended to present to the hearing referee as proof refuting the deputy’s determination that Claimant had received wages that disqualified him from receiving unemployment benefits — a matter never addressed by the Commission.

Claimant’s first mention of his failure to appear before the Appeals Tribunal is contained in the “second brief’ Claimant filed after the Division had submitted its brief and moved to dismiss Claimant’s appeal. In a section entitled “Introductory Statement,” that brief claimed:

[Claimant] has appealed by appropriate measures to the Missouri Court of Appeals to review the Division of Employment Security and its Labor and Industrial Relations Commission’s decision of its Appeals Tribunal in accordance to the rights given and explained by documentation provided by the Commission itself. In addition, [Claimant’s] failure to appear in the telephone hearing set by the Appeals Tribunal was due to unintentional and unavoidable circumstances of a personal nature and said [Claimant] requests the Commission reconsider the case and its dismissal due to the evidence provided.

Even if we were to treat Claimant’s “second brief’ as a supplemental brief and consider his “Introductory Statement” as constituting a point relied on, Claimant would still have failed to make any specific allegation of Commission error. Without an assertion as to why a particular ruling was erroneous, impartial appellate review cannot occur. “The argument should develop the claim of error by showing the interaction between the relevant principles of law and the facts of the particular case. If a party does not support contentions with relevant authority or argument beyond conelusory statements, the point is deemed abandoned.” Johnson v. Buffalo Lodging Assoc’s, 300 S.W.3d 580, 582 (Mo.App. E.D.2009) (internal citations omitted).

Because of the inadequacy of Claimant’s briefs, it would be impossible to verify his claims and consider any relevant legal authority without first constructing an argument on his behalf. A reviewing court should not speculate as to the claims, relevant facts, or controlling authority that would best comprise a claimant’s appeal. See Nicholson, 144 S.W.3d at 308. “If the court were to take the time on its own initiative to comb the record for support of factual assertions in a brief, we would, in effect, become an advocate for the noncomplying party.” Carlson v. Healthcare Servs. Group, Inc., 275 S.W.3d 382, 384 (Mo.App. S.D.2009). By failing to provide us with any legal reasoning for his claim of error, Claimant has “fail[ed] to satisfy the fundamental requirement of an appellate argument.” Johnson, 300 S.W.3d at 582.

If Claimant believed the Commission’s ruling violated the law, it was incumbent upon him to state the legal authority supporting that claim. Although we are not insensitive to the difficulties self-represented claimants face when attempting to appeal a denial of unemployment benefits, it would be unfair to the other parties involved and the system of impartial appellate review itself to step outside our proper role by constructing on Claimant’s behalf a point relied on, seining the record for any relevant facts that might support it, and, finally, finding and applying the appropriate legal authority to produce a result.

Claimant’s appeal is dismissed.

BARNEY, P.J. and LYNCH, J., Concurs.

      . Unless otherwise indicated, all rule references are to Missouri Court Rules (2010).

      . Claimant’s brief also contains no table of cases and authorities in violation of Rule 84.04(a)(1); the jurisdictional statement does not state the provision of law relied upon as the basis for appellate jurisdiction in violation of Rule 84.04(b); the argument does not restate a point relied on and contains no statement of the standard of .review in violation of Rule 84.04(e); the pages of the appendix are not numbered consecutively in violation of Rule 84.04(h)(3); and while the brief cites to certain sections of the appendix, it does not cite the legal file or the transcript in violation of Rule 84.040). The jurisdictional statement and conclusion are single-spaced in violation of Rule 84.06(a)(7); the brief is not paginated in violation of Rule 84.06(a)(5) even though there is a table of contents that refers to page numbers; and there is no certification or signature in violation of Rule 84.06(c). A "second brief” later filed by Claimant made no attempt to correct these shortcomings, except that its jurisdictional statement and conclusion are double-spaced.

      . A dismissal may be set aside upon a demonstration of good cause for failure to attend the hearing. See Miller v. Rehnquist Design & Build, Inc. 311 S.W.3d 382, 384 (Mo.App. E.D.2010). In Miller, the Commission abused its discretion in dismissing the appeal because good cause was shown. Id. at 386. However, the "[claimant assert[ed] the Commission erred in dismissing [claimant’s appeal because [claimant provided evidence of good cause for failing to appear.” Id. at 383. Here, Claimant acknowledged that, beyond stating "personal reasons,” he did not disclose the actual circumstances that prevented him from presenting the evidence of his case. On appeal, he asserts that he missed the call “because his wife was making outrageous threats and demands on their marriage that day over what was only supposed to be lunch.” He goes on to talk about the strain on his marriage, but he does not argue that he demonstrated "good cause” for missing the hearing to the Commission.

      . Claimant did not seek leave to correct his first brief, or otherwise supplement it, so his "second brief," is treated as a reply brief. See Rule 84.05(a). To the extent that Claimant attempted to address new matters in his reply brief that were not raised in his opening brief, they are not preserved for review. See Russell v. Division of Emp’t Sec., 43 S.W.3d 442, 444 (Mo.App. S.D.2001) ("Claimant’s initial brief, as aforementioned, lacked both points relied on and . an argument. Claimant’s points and arguments omitted from her initial brief may not be supplied by a reply brief”).


author: DON E. BURRELL, Judge. WILLIAM W. FRANCIS, JR., Judge,

text:
    Randy A. DAVIDSON, Claimant-Appellant, v. MISSOURI STATE TREASURER AS CUSTODIAN OF the SECOND INJURY FUND, Respondent.
    No. SD 30536.
    Missouri Court of Appeals, Southern District, En Banc.
    Dec. 7, 2010.

      Jeffrey P. Gault, Clayton, MO, for Appellant.
    Chris Koster, Attorney General, Jefferson City, MO, and, Frank A. Rodman, Assistant Attorney General, Cape Girar-deau, MO, for Respondent.
   DON E. BURRELL, Judge.

Randy Davidson (“Claimant”) was the owner-operator of a dump truck. He was also a volunteer fireman. While responding to a fire call, Claimant fell onto some concrete blocks and injured his head, neck, shoulders, and hip. Those injuries left him unable to work for a period of just over five weeks. After settling his workers’ compensation claim against the fire protection district, Claimant filed a claim against the Second Injury Fund (“the Fund”) for second job wage loss benefits under section 287.220.9, based on income he would have earned operating his dump truck but for the injury he suffered while responding to the fire call.

An administrative law judge (“ALJ”) ruled in Claimant’s favor, awarding him $8,378.70. After the Fund filed an application for review, the Labor and Industrial Relations Commission (“the Commission”), in a 2-1 decision, reversed the award. Claimant now appeals the decision of the Commission.

Because Claimant failed to prove the existence of a “second employer” as required by section 287.220.9, the Commission correctly applied the law in denying Claimant’s claim.

Factual and Procedural Background

Claimant settled his claim against the Butler County Fire Protection District for $205.71 ($40 per week for 5 1/7 weeks). At the time of his injury, Claimant hauled asphalt and building materials to road-construction sites for Hester Trucking (“Hester”) under a written lease agreement. The lease arrangement between Hester and Claimant (which had been in effect for several years prior to Claimant’s injury) was Claimant’s primary source of income. Claimant received payment from Hester based on the amount of asphalt hauled and mileage traveled. No taxes were deducted from the amounts Hester paid Claimant, and Claimant paid all registration fees and taxes for his truck. For the thirteen-week period immediately preceding his injury, Claimant earned an average of $1,510.74 per week leasing his dump truck to Hester; an amount that exceeded the then-maximum weekly temporary total disability rate of $696.97. No evidence was presented by Claimant as to how many employees Hester had or whether it had voluntarily acquired workers’ compensation insurance.

The parties have stipulated that if the Fund is obligated to pay benefits to Claimant at all, Claimant would be entitled to receive the amount awarded by the ALJ— $3,378.70.

Standard of Review

We must affirm the Commission’s decision unless it “acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant making the award.” Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 491 (Mo.App. S.D.2007); section 287.495.1. Generally, we review the findings of the Commission and not those of the ALJ. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 852 (Mo.App. S.D. 1995).

As noted by the parties in their briefs and at oral argument, the resolution of this case is a matter of statutory interpretation as the facts of the case are not in dispute. An issue that involves the interpretation or application of a statute is a question of law we resolve de novo without deference to the Commission’s judgment. Booth v. Trailiner Corp., 21 S.W.3d 869, 871 (Mo.App. S.D.2000); Jones v. Lico Steel, 280 S.W.3d 713, 714 (Mo.App. W.D.2009). Further, “[t]he legislature’s own construction of its language by means of definition of the terms employed should be followed in the interpretation of the statute to which it relates[.]” State v. Hermanns, 641 S.W.2d 768, 769 (Mo. banc 1982).

Analysis

In his sole point on appeal, Claimant argues the Commission misapplied the law in denying his claim against the Fund because his employment status as an “employee” “was already established by his primary injury status as a volunteer fireman which does not preclude second job wage loss benefits from [the Fund], under R.S.Mo. § 287.220.9[.]” The relevant findings of the Commission were as follows:

Section 287.220.9 RSMo specifically states that in order to be eligible for second job wage loss benefits, an employee who suffers a compensable work-related injury must be “employed by more than one employer.” Further, in discussing [the Fund]’s liability, § 287.220.9 RSMo states that [the Fund’s] liability shall be derived from “any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur....”
While there is no [dispute] that [Claimant] was an “employee,” as defined by § 287.020.1 RSMo, of Butler County Fire Protection District when injured, the aforementioned statutory language clearly requires that an individual be an employee of a second employer in order to qualify for second job wage loss benefits. [Claimant] did not prove that he was employed by a second employer. Further, § 287.020.1 RSMo unequivocally excludes owner operators of motor vehicles from the definition of “employee.”
Giving plain meaning to the language in § 287.220.9 RSMo[] makes clear that the legislature intended for second job wage loss benefits to only apply to individuals that meet the definitional requirements of “employee,” as defined by § 287.020.1 RSMo[.] ... In this case, [Claimant] only proved an employment relationship with one employer and, therefore, is not entitled to second job wage loss benefits from [the Fund].

(Bolding in original). We agree.

This appears to be a matter of first impression. Prior Missouri cases have addressed the owner-operator exemption from workers’ compensation only in situations where the claimant was attempting to recover benefits for injuries sustained while doing the type of work the exemption covers. See, e.g., Booth v. Trailiner Corp., 21 S.W.3d 869 (Mo.App. S.D.2000); Nunn v. C.C. Midwest, 151 S.W.3d 388 (Mo.App. W.D.2004). It is undisputed that, in his capacity as the owner-operator of the dump truck Claimant leased out to Hester, Claimant was not an “employee” of Hester under the workers’ compensation law and could not have received workers’ compensation benefits from an injury he suffered while driving his dump truck for Hester.

Three sections of the workers’ compensation law are applicable to this appeal. Section 287.220.9 provides:

Any employee who at the time a com-pensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer’s employment and the injured employee shall be enti-tied to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250. The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury.

(Emphasis added).

Section 287.020.1 defines “employee” for purposes of workers’ compensation.

The word ‘employee’ as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations ... The word ‘employee’ shall not include an individual who is the owner and operator of a motor vehicle which is leased or contracted with a driver to a for-hire ... motor carrier operating within a commercial zone [.]

(Bolding in original; italics added).

Section 287.030.1 provides, in pertinent part:

The word “employer” as used in this chapter shall be construed to mean:
(1) Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay;
(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter unless election is made to become subject to the provisions of this chapter as provided in subsection 2 of section 287.090, except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for the purposes of this chapter if they have one or more employees.

(Bolding in original; italics added).

When interpreting a statute, our primary aim is to ascertain the intent of the legislature from the language used and give effect to that intent, remembering that “every word of a statute is presumed meaningful.” Gott v. Director of Revenue, 5 S.W.3d 155, 158 (Mo. banc 1999). “Where the language of a statute is unambiguous and clear, this Court will give effect to the language as written, and will not engage in statutory construction.” Dubinsky v. St. Louis Blues Hockey Club, 229 S.W.3d 126, 130 (Mo.App. E.D.2007).

The plain language of section 287.220.9 states that an employee with “more than one employer ” can recover additional wage loss benefits “attributed to loss of earnings from the employment or employments where the injury did not occur[J” (Emphasis added). Under section 287.030.1, any person or entity listed in subsection (1) is deemed to be an “employer” for workers compensation purposes if he or it: 1) is a particular type of construction industry employer and has at least one employee; 2) is any other type of employer and has at least five employees; or 3) has voluntarily elected to become subject to the workers’ compensation law pursuant to section 287.090.2.

“The claimant in a workers’ compensation proceeding has the burden of proving all elements of the claim to a reasonable probability.” Cooper v. Medical Ctr. of Independence, 955 S.W.2d 570, 574-75 (Mo.App. W.D.1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Even if we were to assume as true Claimant’s argument that because he was an “employee” of the fire protection district he was also thereby an “employee” of Hester for' purposes of section 287.220.9— a dubious proposition at best in light of the fact that section 287.020.1 directs that for purposes of the entire workers’ compensation chapter ‘employee’ shall not include an individual who is the owner and operator of a motor vehicle which is leased or contracted with a driver to a for-hire ... motor vehicle carrier operating within a commercial zone .... ” — in this particular case there was no evidence that Hester had any employees or had purchased workers’ compensation insurance. In the absence of such evidence, Claimant could not establish that Hester was a second “employer” for workers’ compensation purposes — a necessary element of his claim under section 287.220.9. As a result, the Commission did not misapply the law when it ruled that Claimant was ineligible for second job wage loss benefits because he was not “employed by more than one employer.”

The Commission’s Final Award Denying Compensation is affirmed.

SCOTT, C.J., BARNEY, RAHMEYER, BATES, and LYNCH, JJ„ concur.

FRANCIS, J., Concurs in separate opinion.

WILLIAM W. FRANCIS, JR., Judge,

concurring.

I concur. While the circumstances of Mr. Davidson’s earnings loss from his trucking job may suggest application of section 287.220(9) and the benefits therefrom, I concur for the reason the record before us is insufficient to determine whether Hester was an employer as that term is defined in section 287.030.

      . Unless otherwise indicated, all statutory references are to RSMo 2000.

      . We wish to express our thanks to the parties and their attorneys, who graciously agreed to have their case argued to the court en banc in front of an audience of students, judges, members of the bar and media, and other members of the public at the historic Scott County Courthouse in Benton, Missouri. We also wish to thank 33 rd Circuit Presiding Judge David Dolan for his efforts in coordinating the event.

      . In 2005, the legislature amended section 287.800 to require strict, as opposed to liberal, construction of the workers’ compensation statutes. Although both parties agree that this case is governed by the former version of section 287.800, whether liberal or strict construction applies makes no difference because the term "employer” is specifically defined in section 287.030. That term is not ambiguous, and no statutory construction is required. C.f. In re Estate of Bloomer, 620 S.W.2d 365, 367 (Mo. banc 1981) (when the language of a statute is "plain and unambiguous[,] ... no construction, liberal or otherwise!)]” is required).

      . This is usually accomplished by purchasing a qualifying workers' compensation insurance policy.

      . This does not mean that Claimant would have been entitled to recover on his claim against the Fund if he had presented evidence showing that Hester was an "employer” for purposes of the workers’ compensation law. Claimant would still have had to establish that he was entitled to recover "additional wage loss benefits attributed to loss of earn-tags from the employment or employments where the injury did not occurf.]” Section 287.220.9 (emphasis added). Because neither the term "employment” nor "employments” is statutorily defined in Chapter 287, whether that omission would thereby trigger a liberal construction of the statute in favor of coverage is a matter we are not required to reach and express no opinion on in light of the specific facts of this case.