author: NANNETTE A. BAKER, Judge.

text:
    Delisa L. COLEMAN, Appellant, v. Duane L. COLEMAN, Respondent/Cross-Appellant.
    No. ED 92564.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Merle Silverstein, Clayton, MO, Michael Gross, co-counsel, St. Louis, MO, for appellant.
    Joanne Descher, St. Louis, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Duane and Delisa Coleman were granted a dissolution of marriage on November 12, 2008. Delisa appeals from the trial court’s award of monthly maintenance to her and its method of valuation of Duane’s interest in the Lewis Rice & Fingersh, L.C. (“Lewis Rice”) law firm. Duane cross appeals from the trial court’s award of attorney’s fees to Delisa and from the trial court’s division of marital property. We find no error and affirm.

Factual and Procedural Background

The Colemans married in 1991. At the time of their marriage, Duane was working as an associate attorney at Lewis Rice and Delisa was working full-time as a registered surgical nurse. The Colemans’ only child was born November 15,1998.

On September 24, 2005, Duane purchased an upgraded diamond engagement ring and gave it to Delisa as a reconciliation gift after she dismissed a previous petition for dissolution of marriage.

On July 18, 2007, Delisa filed the current petition for dissolution of the marriage. Duane timely answered her petition and filed a counter petition for dissolution of the marriage. Delisa stopped working full time to care for their daughter. She was working part-time when the marriage was dissolved and Duane was an equity partner at Lewis Rice.

The trial court’s judgment of dissolution awarded Delisa maintenance of $1,500 a month to begin December 1, 2008, and i ordered Duane to pay Delisa’s attorney $50,000 for attorney’s fees. It noted that in making the maintenance award, it considered the factors of her employability, Iher reasonable needs, the income produced [by the property awarded her and her previous standard of living. The trial court lilso considered her marital misconduct in Engaging in an extramarital affair that contributed to the breakdown of the mar-liage.

I On November 19, 2008, Delisa filed a motion for maintenance and support pend-iig post trial motions and appeal. In her motion, she stated her intention to file a motion to amend the judgment and possi-lly an appeal. Delisa argued that she Barrently had only part-time employment lid no liquid assets and sought the court’s Ider granting her maintenance and child Hipport and past amount of support from He Pendente Lite order (“PDL”) without Hopardizing her right to appeal.

HOn December 1, 2008, the trial court Hdered that the maintenance and child Hpport pending appeal “shall be the same ■ ordered in the judgment herein” except Bit maintenance was to increase by $500 Hr month until Delisa received or was Hidered liquid marital assets that had Hen awarded to her, and these awards Huid not jeopardize her appeal. On De-Hnber 5, 2008, Delisa filed a motion to ^|end the judgment or in the alternative for a new trial. On December 12, 2008, Duane filed a motion to amend the judgment. On January 26, 2009, the trial court amended the judgment of dissolution to allow Duane access to all family photographs in Delisa’s possession, but in all other respects, the trial court denied the motions.

On April 8, 2009, Delisa filed a motion asking the trial court to order Duane to pay the $50,000 for attorney’s fees awarded in the November 12, 2008 decree of dissolution and $10,000 for appellate attorney’s fees. Duane filed a motion to dismiss Delisa’s motion for any additional attorney’s fees. On April 27, 2009, the trial court sustained Delisa’s motion and awarded her $10,000 for attorney’s fees and costs pending appeal.

This appeal and cross appeal followed.

Standard of Review

The standard of review on appeal from a decree of dissolution of marriage is guided by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Fisk v. Fisk, 81 S.W.3d 1, 1 (Mo.App. E.D.2001). Accordingly, this court will affirm the judgment of the trial court if it is supported by substantial evidence, is not against the weight of the evidence and does not erroneously declare or apply the law. Id. Moreover, all evidence and permissible inferences therefrom are considered in the light most favorable to the trial court’s decision, and all contrary evidence and inferences are disregarded. Id. (internal citations omitted).

The trial court has broad discretion in dividing marital property and awarding child support, maintenance, and attorney’s fees. Hatchette v. Hatchette, 57 S.W.3d 884, 888, 890-91, 893 (Mo.App. W.D.2001). Likewise, the trial court has broad discretion in identifying property as marital or separate. In re Marriage of Looney, 286 S.W.3d 832, 837 (Mo.App. S.D.2009). “The trial court abuses its discretion only when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of careful consideration.” Manning v. Manning, 292 S.W.3d 459, 462 (Mo.App. E.D.2009) (quotation omitted).

Maintenance

We will discuss the points grouped together by topic and not necessarily in the order raised by each of the parties. In her first point relied on, Delisa claims that the trial court erred and abused its discretion in limiting her maintenance award to $1,500 per month because the award reflects a misapplication of Section 452.335. She further argues that the findings upon which the trial court based the limited award are not supported by substantial evidence and are against the weight of the evidence. Specifically, Delisa argues four points: 1) that the marriage was one of long duration; 2) that she would be unable to maintain a standard of living near her previous one; 3) that the trial court’s imputation of income to her was contrary to the parties’ wishes that she curtail her career to raise their child and that the imputation of income was not supported by and was against the weight of the evidence regarding employment available to her; and 4) that Duane’s income was sufficient to support a maintenance award that would have enabled her to meet her reasonable needs.

In her second point relied on, Delisa claims that the trial court erred to the extent that it limited maintenance to $1,500 per month due to her supposed marital misconduct because the court’s finding that the conduct contributed to the breakdown of the marriage was not supported by substantial evidence since Duane did not suspect that Delisa was cheating on him before July 2006, and he did not testify that her alleged extramarital affair was the cause of the marriage’s breakdown. Thus, she argues that the trial court’s limitation was punitive rather than remedial.

In his response to Delisa’s first point, Duane raises two new points that would more properly belong in his cross appeal, however, since they involve maintenance issues, we will address them here. First, he claims that the trial court erred in awarding any maintenance to Delisa because she has income available to her from employment and marital property awarded that is sufficient to meet her reasonable needs. Second, Duane claims that the trial court’s award of $500 per month post judgment maintenance should be reversed because uncontroverted evidence established that Delisa had immediate access to income producing marital property upon entry of the judgment as contemplated by the trial court.

Maintenance award of $1,500 per month

We begin by considering Delisa’s I first point that the trial court abused its discretion by limiting her monthly maintenance award to $1,500. Section 452.335 provides that in order to award mainte-l nance to a spouse, the trial court must find! that the spouse seeking maintenance: I

(1) Lacks sufficient property, includingl marital property apportioned to h[er], tol provide for h[er] reasonable needs; andl
(2) Is unable to support h[er]sel| through appropriate employment or i!
the custodian of a child whose conditio:! or circumstances make it appropriat! that the custodian not be required to seek employment outside the home.

Delisa argues that the court misapplied the statute when it failed to consider the relevant factors of the Colemans’ marriage. In particular, she contends that the trial court failed to recognize the long duration of the marriage and her standard of living during the marriage, and the opportunity Duane had to advance his career while she curtailed hers to be a “child-rearing and home-making spouse.”

Delisa contends that her monthly needs exceed her monthly income after the maintenance award and that she is unable to maintain a standard of living close to that which she enjoyed during the marriage. She alleges that the award does not reflect a balance of her reasonable monthly needs with Duane’s ability to provide support. She claims, therefore, that the award is arbitrary and unreasonable.

Even if the trial court accepted De-lisa’s estimated expenses and found that the amount was reasonable, the court is not required to award maintenance to cover all of her needs even if her husband has the resources to provide the additional support. Llana v. Llana, 121 S.W.3d 286, 291 (Mo.App. W.D.2003). It is not necessarily an abuse of discretion for the trial court to award maintenance insufficient to cover all of the needs of the spouse seeking support. Id.

In its findings concerning Delisa’s maintenance award, the trial court made the following factual findings: that Delisa was capable of working full time; that the parties stipulated to the expert report of Timothy Kaver regarding Delisa’s employability and probable annual income of $59,000; that Delisa could obtain additional income from some of the marital property awarded to her; and that Delisa was in need of maintenance to meet her reasonable needs and maintain her previous standard of living. The trial court also considered Deli-sa’s conduct during the marriage, finding that she was “involved in a long-standing, extensive and highly inappropriate relationship with another man.” Furthermore, the trial court found that this secret relationship constituted marital misconduct and contributed to the breakdown of the marriage.

Delisa argues that her actions, even if they could be considered misconduct, should not be considered, because there is no indication that her actions cost Duane additional money or interfered with his work. This argument fails to recognize that when a spouse engages in conduct that burdens the marital relationship, it is more significant than a matter of economics. McIntosh v. McIntosh, 41 S.W.3d 60, 68, (Mo.App. W.D.2001). Burdens on the relationship cause considerable stress and disappointment to the other party, not to mention the stress and insecurity often caused any children of the marriage, which in turn causes additional stress on the marriage partners. Id. at 68-9.

Because the trial court properly considered the factors under Section 452.335 and the evidence before it, along with the credibility of the witnesses, we find no abuse of discretion in its award of $1,500 monthly maintenance to Delisa. This point is denied.

We now consider Duane’s contention on cross appeal that the trial court abused its discretion in awarding any maintenance to Delisa. As we addressed above, the trial court found that with income from a full-time job imputed to Delisa, child support and the income generated by the marital property she was awarded in the dissolution, her reasonable monthly needs exceeded her income. Thus, it was not an abuse of discretion for the trial court to award $1,500 maintenance per month to Delisa. Point denied.

Post Judgment PDL Maintenance Award

Next, Duane claims that the trial court’s award of $500 per month post-judgment PDL maintenance should be reversed. He contends that “uncontroverted evidence” established that Delisa had immediate access to income-producing marital property as soon as the judgment of dissolution was entered and therefore, had no need for temporary maintenance.

Under Section 452.315, a temporary maintenance award is made in conformity with Section 452.335. Colquitt v. Muhammad, 86 S.W.3d 144, 150 (Mo.App. E.D.2002). Therefore, the factors to be considered in awarding maintenance under Section 452.315 are the same as those set out in Section 452.335. Id.

In the trial court’s order awarding Deli-sa temporary maintenance, it ordered her regular maintenance increased by $500 per month until she received or was tendered liquid marital assets. Despite Duane’s contention that Delisa had immediate access to income-producing marital property as soon as the judgment of dissolution was entered, there was no evidence before the trial court that this allegation was true. Because the trial court took into account the monthly income from the marital assets it awarded to Delisa in its maintenance award of $1,500 per month, it was not an abuse of discretion to award temporary maintenance until that income from investments was available to her. This point is denied.

Partner Interest Valuation

In her third point relied on, Delisa claims that the trial court erred in concluding that it was required to find the value of Duane’s interest in Lewis Rice in accordance with the firm’s operating agreement because that conclusion precluded the court from considering evidence relevant to the true value of the asset. She contends that the trial court’s valuation was a violation of Section 452.330 since the undervaluation skewed the division of marital property and rendered the decree inequitable.

Duane argues that the trial court considered the testimony of his expert and of Delisa’s expert before making its determination of the value of the Lewis Rice ownership. “In a dissolution proceeding, the object of any valuation of a business is, of course, to determine its fair market value for purpose of application of the equitable distribution rules to arrive at a fair property division.” Tarneja v. Tarneja, 164 S.W.3d 555, 559 (Mo.App. S.D.2005). The judicial determination of value must be an informed judgment, but fair value is not susceptible of determination by any precise mathematical computation. Id. Generally, the trial court can accept the opinion of one expert as to value over another and can prefer one method of valuation over competing methods based on the particular facts of the case and the circumstances of the entity involved. Id. (internal quotations and citations omitted).

In this case, the trial court heard testimony from each party’s valuation expert. The trial court was free to weigh credibility of the testimony of both experts and adopt the expert’s method and conclusion it found most credible. The trial court’s decision was supported by substantial evidence. Thus, under Murphy v. Carron, we cannot say it was error for the trial court to accept Duane’s expert’s valuation over that of Delisa’s expert. 536 S.W.2d at 32. Point denied.

Attorney’s Fees

In his first point on cross appeal, Duane alleges that the trial court erred in awarding Delisa $50,000 in attorney's fees in light of the overwhelming evidence of her marital misconduct. Duane argues that since the trial court found and considered the marital misconduct in its award of maintenance and division of property, it should have also considered it in the award for attorney’s fees. Similarly, he contends that the award of $10,000 for attorney’s fees for her appeal should be reversed.

Marital misconduct does not alone establish the trial court abused its discretion in awarding attorney’s fees. Tomasovic v. Tomasovic, 845 S.W.2d 661, 665 (Mo.App. E.D.1992). While this may be a factor for the court to consider, the trial court also considers all relevant factors under Section 452.355(1). Id. at 664. “All relevant factors” includes the financial resources of both parties. Bakula v. Bakula, 926 S.W.2d 65, 67 (Mo.App. E.D. 1996). One spouse’s greater ability to pay is sufficient to support an award of attorney’s fees to the other spouse. Id.

In the case before us, the trial court had overwhelming evidence of Duane’s substantially higher income and thus, his greater ability to pay attorney’s fees. Therefore, we cannot say the trial court’s order for Duane to pay $50,000 to Delisa’s attorney was an abuse of discretion.

Duane also contends that the trial court erred in awarding Delisa $10,000 for her attorney’s fees on appeal. Specifically, he argues that the trial court did not make the required finding of need for Delisa as she failed to present any evidence of her post dissolution financial status to the court. He argues that under Andrews v. Andrews, Delisa needed to show evidence of her financial condition at the time of the appeal. 290 S.W.3d 783, 787 (Mo.App. E.D.2009). In Andrews, the trial court awarded the wife $10,000 in appellate attorney’s fees approximately a year after the dissolution hearing with no updated financial information from the wife and without allowing the husband to present testimony and evidence of his subsequent bankruptcy since the dissolution. Id. at 785. On appeal, the husband claimed that the wife failed to present evidence of her own income and financial history since the judgment of dissolution, as required by Section 452.355.1, and that the trial court disallowed testimonial evidence of his lack of financial resources since the judgment of dissolution. Id. This court found that the trial court abused its discretion in ordering the husband to pay the wife’s appellate attorney fees because it was against the weight of the evidence. Id. at 787-88.

In the case at bar, Duane filed exhibits with the trial court, including a month old statement of property of Delisa’s. On April 27, 2009, the trial court called and heard arguments on Delisa’s petition for attorney’s fees. The trial court granted her motion and awarded her $10,000 for attorney’s fees and costs pending appeal. In its order and judgment, the trial court said it considered all the relevant factors under Section 452.355, including the greater ability of the Respondent to pay attorney’s fees. Unlike in Andrews, the trial court had before it both parties’ recent financial information. It heard arguments from both sides and made its determination based on relevant factors, including the financial resources of both parties. Thus, the trial court’s award to Delisa of $10,000 of attorney’s fees and costs for her pending appeal was not an abuse of discretion nor was it against the weight of the evidence. Point denied.

Property Division

In his second point on cross appeal, Duane combines three claimed errors. First, he claims that the trial court erred in its division of marital property and debt because the National City money market account awarded to him placed a significant marital tax burden on him that the trial court did not consider or allocate. Therefore, he argues that the division of property does not comply with Section 452.330.1, and the judgment is not final or appealable.

Second, Duane argues that the additional household goods that the trial court awarded to Delisa were not valued as they are required to be under Section 452.330.1. Duane also argues that it was fundamentally unfair to award Delisa additional personal property after she had selected what she wanted when she moved out of the marital home without his knowledge or consent.

Third, Duane contends that the trial court erred in awarding Delisa the upgraded diamond ring that he purchased and gave to her as a gift in 2005 because she testified in her deposition that she told him that he could keep the ring.

Since all of these claims involve the same legal proposition, we examine them together. Section 452.330, Disposition of property, lists the following factors to be considered:

1. In a proceeding for dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse such spouse’s nonmarital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors including:
(1)The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.

Duane relies on a case from the Western District, Rogers v. Rogers, for the proposition that because the trial court failed to take into account the taxes due to Duane on the National City account, the judgment is not final and therefore, not appealable. 253 S.W.3d 134, 138 (Mo.App. W.D.2008). But in Rogers, the trial court failed to mention or account for an American Express credit card debt in the dissolution decree. Id. at 138. Despite evidence that the debt was the separate property of one party, because the trial court failed to address the item, the Western District held that the Judgment Entry was not final or appealable, and dismissed the appeal. Id.

Unlike in Rogers, the trial court here did not omit a debt. Duane contends that the trial court ignored the fact that the National City account was earmarked for the previous year’s taxes due on his partner draw from Lewis Rice. Andrew Rothschild, head of the litigation department at Lewis Rice, testified that the income draws from Lewis Rice had no tax withheld and the taxes were to be paid quarterly by each member the following year. Duane testified that the National City account was set aside to pay the taxes due from those draws the following calendar year. The trial court weighed the credibility of the testimony with the evidence before it when it awarded the National City account to Duane. Duane presented no evidence that the trial court failed to account for any tax burden due from the National City account or from the previous year’s income draws. Thus we cannot determine that the trial court abused its discretion when making the award.

Similarly, Duane claims that the trial court erred in not assigning value to the household items it awarded to Deli-sa. When examining the trial court’s division of personal property to the parties, appellate review presumes that the trial court’s property division is correct, and the party challenging the division bears the burden of overcoming the presumption. Travis v. Travis, 163 S.W.3d 43, 47 (Mo.App. W.D.2005). Although a court is ordinarily not required to assign property values, meaningful review of the division of marital property requires evidence from which a fair and accurate valuation can be made. Id.

In the present case, both Duane and Delisa testified about the various items of personal property that they possessed. Delisa also requested a few additional items that were still in the marital house in which Duane lived. The trial court awarded both parties the items in their possession and awarded Delisa some of the additional items she requested. While there was no specific value assigned to those items, a review of the record reveals abundant testimony about the items and their provenance. Also, despite Duane’s allegations that the lack of assigned values and additional personal property awarded to Delisa skewed the property division, he presents no evidence of the value of the items in contention. Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App. W.D.1999) (“With respect to the valuing of marital property, both parties in the dissolution proceeding bear an equal burden to present evidence”). Therefore, “absent a clear showing of abuse of discretion,” the trial court’s division of marital property will not be disturbed. Travis, 163 S.W.3d at 48-49.

Finally, Duane’s claim that the trial court erred in awarding Delisa the upgraded diamond ring is without merit. The evidence before the trial court was that Duane purchased the ring in September 2005 as a gift for Delisa when she withdrew her first petition for dissolution. “The identification of property as marital or separate is in the broad discretion of the trial court.” Looney, 286 S.W.3d at 837. Section 452.330.3 creates a presumption that all property acquired by either spouse after the marriage and before a decree of legal separation or dissolution is marital, regardless of whether title is held individually or jointly. Section 452.330.3. This presumption can be overcome, however, by showing that the property was acquired by one of the exceptions listed in Section 452.330.2. Looney, 286 S.W.3d at 837. The applicable exception in this case is “[p]roperty acquired by gift, bequest, devise, or descent[.]” Section 452.330.2(1). This exception must be proven by clear and convincing evidence, meaning “evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.” Looney, 286 S.W.3d at 887. (internal citations and quotations omitted).

Here, Delisa testified that Duane gave her the upgraded diamond ring after she dismissed her first petition for dissolution of marriage and the couple attempted to reconcile. Duane does not dispute that the ring was a gift to Delisa; he argues that because of her marital misconduct and “the part the ring played in it,” the trial court should not have awarded the ring to her. However, under Section 452.330.2, the ring was a gift to Delisa, making it separate property under the gift exception. The trial court did not err in awarding the ring to her as separate property.

Accordingly, we deny this entire point.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

KATHIANNE KNAUP CRANE, P.J., and CLIFFORD H. AHRENS, J., concur.

      . All statutory references are to RSMo.2000, unless otherwise indicated. I

      . That deposition was filed in an exhibit before this court.

      . These items were denoted on a separate exhibit and included a family bedroom set and various smaller items such as books, a wine rack, a vase, china and crystal stemware, the elliptical machine, and other small décor pieces.

      . Duane relies on portions of Delisa’s testimony from an earlier deposition that was filed as an exhibit before us. He alleges that in the deposition, she offered to give the ring back, and the trial court should have been bound by that.


source: Caselaw Access Project

author: KATHIANNE KNAUP CRANE, Presiding Judge.

license: Public Domain

text:
    Andre MOORE, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93295.
    Missouri Court of Appeals, Eastern District, Division One.
    July 6, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.

      Jo Ann Rotermund, Asst. Public Defender, St. Louis, MO, for appellant.
    Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Movant, Andre Moore, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing after he pleaded guilty to possession of a controlled substance, in violation of section 195.202 RSMo (2000); felony resisting arrest, in violation of section 575.150 RSMo (Cum. Supp.2005); and felony driving while revoked, in violation of section 302.321 RSMo (Cum.Supp.2005). We affirm the judgment of the motion court. However, we remand to the motion court to order entry of a nunc pro tunc order to conform the written judgment in the underlying case to the oral disposition at sentencing.

Movant pleaded guilty to charges in two separate actions. In Case No. 22041-2535, the indictment charged movant with possession of a controlled substance (cocaine base) on June 22, 2004. In Case No. 22061-1353, the indictment charged mov-ant with the class D felony of resisting arrest, and the class D felony of driving while revoked, both on April 26, 2001. After accepting these pleas, the court sentenced movant to seven years imprisonment on the possession of a controlled substance conviction in Case No. 22041-2535, and seven years imprisonment on the resisting arrest conviction and four years imprisonment on the felony driving while revoked conviction in Case No. 22061-1353, all sentences to be served concurrently.

Thereafter, movant timely filed a pro se Rule 24.035 motion for post-conviction relief, and appointed counsel filed an amended motion and request for an evidentiary hearing. The motion court denied the request for an evidentiary hearing and entered findings of fact, conclusions of law, and an order denying movant’s motion for post-conviction relief. Movant appeals from this judgment.

DISCUSSION

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

In order to receive an evidentiary hearing on a post-conviction motion, a “movant must meet three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts' alleged must raise matters not conclusively refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant.” Peiffer v. State, 88 S.W.3d 439, 445 (Mo. banc 2002). A hearing is not required if the motion, files, and records of the case conclusively show that the movant is not entitled to relief. Rule 24.035(h).

Claims of error that first appear in the argument portion of a brief but are not included in the point relied on are not preserved for review. Stevenson v. State, 299 S.W.3d 762, 765 (Mo.App.2009).

I. Prior and Persistent Offender Finding

For his first point, movant asserts that the motion court erred when it denied relief without an evidentiary hearing on his claim that the state failed to adequately establish movant’s status as a prior and persistent offender at the change of plea hearing. We disagree.

At the change of plea hearing, the state listed the following prior convictions in support of a finding that movant was a prior and persistent felony offender:

[PROSECUTOR]: ... [0]n July 22nd, 1998, the defendant pled guilty to the felony of trafficking second degree in Cause Number 971-4374 in the Circuit Court, City of St. Louis, State of Missouri.
And on February 2nd, 1996, the defendant pled guilty to the felony of possession of a controlled substance, cocaine base, in Cause Number 951-1599B in the Circuit Court of the City of St. Louis, State of Missouri.
And on March 21st, 1995, the defendant pled guilty to the felony of distribution of a controlled substance near a school in Cause Number 941-3513A in the Circuit Court, City of St. Louis, State of Missouri.
And do you want me to mention the fourth one?
THE COURT: Go ahead.
[PROSECUTOR]: On March 21st, 1995, the defendant pled guilty to felony of possession of controlled substance, cocaine base, Cause Number 951-553B in the Circuit Court, City of St. Louis, State of Missouri.

In his motion, movant alleged that the court lacked “jurisdiction” to sentence him to seven years for resisting arrest because the state failed to prove that movant’s prior convictions used to enhance movant’s sentence as a prior and persistent offender occurred at different times. In denying this claim, the motion court concluded that movant’s claim was without merit because the court could infer that movant’s prior convictions were committed at different times.

Section 558.016.3 RSMo (Cum.Supp. 2005) defines a persistent offender as “one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.” Section 558.021.1 RSMo (2000) requires the court to find a defendant to be a persistent offender if: (1) the indictment or information pleads all essential facts warranting a finding that the defendant is a persistent offender; (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a persistent offender; and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a persistent offender.

When it may be clearly inferred from the dates of the convictions that the prior felonies were committed at different times, the defendant is required to come forward with evidence that the crimes were, in fact, committed at the same time. State v. Thornton, 651 S.W.2d 164, 168 (Mo.App.1983); State v. Cullen, 646 S.W.2d 850, 854 (Mo.App.1982); State v. Leake, 608 S.W.2d 564, 565-66 (Mo.App.1980). If a defendant does not do so, the state is not required to offer additional evidence that the felonies were committed at different times. See Cullen, 646 S.W.2d at 854; Leake, 608 S.W.2d at 565-66.

Here, the state’s evidence showed that movant was convicted of prior felonies in 1998, 1996, and 1995, and movant acknowledged that he had been convicted of these crimes. These dates allow a clear inference that two or more of movant’s prior felonies were committed at different times. See, e.g., Thornton, 651 S.W.2d at 168; Cullen, 646 S.W.2d at 854; Leake, 608 S.W.2d at 565-66. Movant did not come forward with any evidence to refute that inference. Accordingly, the evidence sufficiently established that two or more of movant’s prior felonies were committed at different times.

Movant’s reliance on Matthews v. State, 123 S.W.3d 307 (Mo.App.2003), is misplaced. In that case, unlike this one, the state failed to present any evidence of the movant’s prior felony convictions.

The record in this case conclusively refuted movant’s claim that the state failed to adequately establish his status as a prior and persistent offender at the change of plea hearing. The motion court did not err in denying relief without an evidentia-ry hearing on this claim. Point one is denied.

II. Felony Driving While Revoked

For his second point, movant asserts the motion court erred when it denied relief without an evidentiary hearing on his claim that the state failed to plead and prove (1) that movant was represented by counsel or waived his right to counsel in his prior ‘driving while revoked convictions, and (2) that movant served ten days on each of his prior driving while revoked convictions. He contends that the state was required to plead and prove these facts in order to charge and sentence him for felony driving while revoked. We disagree.

At the change of plea hearing, the state listed movant’s prior convictions for driving while revoked:

[PROSECUTOR]: And furthermore, on March 14th, 2005, the defendant was convicted of driving while revoked in the 22nd Judicial Circuit, City of St. Louis, and for events which occurred January 24th, 2005; and again on March 10th, 2005, the defendant was convicted of driving while license revoked in this circuit for events which occurred on May 25th, 2004; again, on November 27th, 2001, the defendant was convicted of driving while license revoked in this circuit for events which occurred on September 14th, 1998, and sentenced to serve sentence of ten days or more. And furthermore, the defendant is a pri- or persistent offender as already stated in the previous case that he plead guilty to.

In his amended motion, movant alleged that the court lacked “jurisdiction” to sentence him for the class D felony of driving while revoked because the state failed to prove that movant was represented by counsel or waived his right to counsel in the prior cases and failed to prove that movant served ten days on each of the prior driving while revoked convictions, which, he contends, is required by section 802.321.2 RSMo (Cum.Supp.2005). The motion court concluded that movant’s claim had no merit because section 302.321.2 RSMo (Cum.Supp.2005) did not require that movant have served ten days on each of his prior convictions or that he was represented by counsel in each of those cases in order to be charged with felony driving while revoked. We agree.

Section 302.321.2 RSMo (Cum.Supp. 2005) specifies when a driving while revoked conviction is enhanced to a felony:

2. Any person convicted of driving while revoked is guilty of a class A misdemeanor. Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted a fourth or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the defendant was represented by or waived the right to an attorney in writing, and where the prior three driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense; and any person with a prior alcohol-related enforcement contact as defined in section 302.525, convicted a third or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the defendant was represented by or waived the right to an attorney in writing, and where the prior two driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses is guilty of a class D felony. No court shall suspend the imposition of sentence as to such a person nor sentence such person to pay a fine in lieu of a term of imprisonment, nor shall such person be eligible for parole or probation until such person has served a minimum of forty-eight consecutive hours of imprisonment, unless as a condition of such parole or probation, such person performs at least ten days involving at least forty hours of community service under the supervision of the court in those jurisdictions which have a recognized program for community service. Driving while revoked is a class D felony on the second or subsequent conviction pursuant to section 577.010, RSMo, or a fourth or subsequent conviction for any other offense.

A. Representation by or Waiver of Counsel

We first consider movant’s claim that the phrase “where the defendant was represented by or waived the right to an attorney in writing,” which is in the second sentence of the statute, applies to him. When we interpret a statute, our primary task is to ascertain the intent of the legislature from the language used and give effect to that intent if possible. State v. McLaughlin, 265 S.W.3d 257, 266 (Mo. banc 2008); Rothschild v. State Tax Com’n of Missouri, 762 S.W.2d 35, 37 (Mo. banc 1988); Nelson v. State, 250 S.W.3d 386, 391 (Mo.App. E.D.2008). To accomplish this task, we give the words used in the statute their plain meaning. McLaughlin, 265 S.W.3d at 266; Rothschild, 762 S.W.2d at 37. We presume the legislature did not intend to use superfluous, meaningless, and redundant language. Nelson, 250 S.W.3d at 392; State v. Sparks, 916 S.W.2d 234, 236 (Mo.App.1995). We also may consider how a statute has been amended over time. Sparks, 916 S.W.2d at 236. Here, when considered together, the legislative history, plain meaning of the words used, and the presumption against redundant and superfluous language support the conclusion that the state was not required to plead or prove that movant was represented by or waived the right to an attorney in his prior convictions in order to charge and convict him of the class D felony of driving while revoked.

Prior to 2002, section 302.321.2 did not allow the state to use a defendant’s county or municipal ordinance convictions to enhance the offense of driving while revoked to a felony. Rather, the 2000 version of section 302.321.2 covered only state law violations and did not require allegations or proof that the defendant was represented by or waived the right to counsel, or that the defendant had received and served a sentence of at least ten days:

Any person convicted of driving while revoked is guilty of a class A misdemeanor. Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted a fourth or subsequent time of driving while revoked and any person with a prior alcohol-related enforcement contact as defined in section 302.525, convicted a third or subsequent time of driving while revoked is guilty of a class D felony. No court shall suspend the imposition of sentence as to such a person nor sentence such person to pay a fine in lieu of a term of imprisonment, nor shall such person be eligible for parole or probation until such person has served a minimum of forty-eight consecutive hours of imprisonment, unless as a condition of such parole or probation, such person performs at least ten days involving at least forty hours of community service under the supervision of the court in those jurisdictions which have a recognized program for community service. Driving while revoked is a class D felony on the second or subsequent conviction pursuant to section 577.010, RSMo, or a fourth or subsequent conviction for any other offense.

Section 302.321.2 RSMo (2000).

In 2002, the use of county or municipal ordinance violations for enhancement purposes was added to the statute, among other amendments. The statute as fully amended read as follows:

Any person convicted of driving while revoked is guilty of a class A misdemeanor. Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted of a fourth or subsequent time of driving while revoked [or a county or municipal ordinance of driving while suspended or revoked where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney in writing, and where the prior three driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses;] and any person with a prior alcohol-related enforcement contact as defined in section 302.525, convicted a third or subsequent time of driving while revoked [or a county or municipal ordinance of driving while suspended or revoked where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney in writing, and where the prior two driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses] is guilty of a class D felony. No court shall suspend the imposition of sentence as to such a person nor sentence such person to pay a fine in lieu of a term of imprisonment, nor shall such person be eligible for parole or probation until such person has served a minimum of forty-eight consecutive hours of imprisonment, unless as a condition of such parole or probation, such person performs at least ten days involving at least forty hours of community service under the supervision of the court in those jurisdictions which have a recognized program for community service. Driving while revoked is a class D felony on the second or subsequent conviction pursuant to section 577.010, RSMo, or a fourth or subsequent conviction for any other offense.

Section 302.321.2 RSMo (Cum.Supp.2002) (new provisions in brackets).

In 2005, section 302.321.2 was amended again to its present form. This is the version applicable to defendant. We repeat it here, showing the changes, all of which were deletions:

2. Any person convicted of driving while revoked is guilty of a class A misdemeanor. Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted a fourth or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the judge in such case was an-attorney and the defendant was represented by or waived the right to an attorney in writing, and where the prior three driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense and where the-psrson received and - serve-a-sentence of ten days- or-more on such previous-offenses; and any person with a prior alcohol-related enforcement contact as defined in section 302.525, convicted a third or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the judge- in such case was an-attorney-and the defendant was represented by or waived the right to an attorney in writing, and where the prior two driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses is guilty of a class D felony. No court shall suspend the imposition of sentence as to such a person nor sentence such person to pay a fine in lieu of a term of imprisonment, nor shall such person be eligible for parole or probation until such person has served a minimum of forty-eight consecutive hours of imprisonment, unless as a condition of such parole or probation, such person performs at least ten days involving at least forty hours of community service under the sup ex-vision of the court in those jurisdictions which have a recognized program for community sex-vice. Driving while revoked is a class D felony on the second or subsequent conviction pursuant to section 577.010, RSMo, or a fourth or subsequent conviction for any other offense.

Our analysis focuses on the second sentence of this statute, which sets out circumstances in which prior driving while revoked or similar offenses may be used for enhancement. Movant falls under the beginning part of the second sentence because he was a person with no prior alcohol-related contacts and was convicted a fourth time of driving while revoked. The issue is whether the phrase “where the defendant was represented by or waived the right to an attorney in writing,” in the clause “or a county or municipal ordinance of driving while suspended or revoked where the defendant was represented by or waived the right to an attorney in writing,” modifies only county and municipal ordinance convictions or if it also modifies the state law offense of driving while revoked.

We first observe that the 2000 version of the Revised Statutes of Missouri included only state law driving while revoked offenses. Section 302.321.2 RSMo (2000). That version of the statute did not require allegations or proof that a defendant was represented by an attorney or waived representation in writing. Id. These requirements were added with the 2002 amendment to this section, the same amendment that added county and municipal ordinances to the enhancement offenses. Section 302.321.2 RSMo (Cum.Supp.2002).

Further, the words “convicted a fourth or subsequent time of driving while revoked” are followed by the word “or,” which ordinarily denotes an alternative to the preceding phrase. See Stonger ex rel. Stonger v. Riggs, 85 S.W.3d 703, 708 (Mo.App.2002). Thus, “a county or municipal ordinance of driving while suspended or revoked” is a category of violation that is an alternative to the state violation of driving while revoked.

Moreover, it is this alternative that is modified by the words “where the defendant was represented by or waived the right to an attorney in writing.” There is no comma or other punctuation separating the phrase beginning with “where” from the language immediately preceding it. The long recognized “last antecedent rule” instructs that: ‘“relative and qualifying words, phrases, or clauses are to be applied to the words or phrase immediately preceding and are not to be construed as extending to or including others more remote.’” Rothschild, 762 S.W.2d at 37 (quoting Citizens Bank & Trust v. Director of Revenue, 639 S.W.2d 833, 835 (Mo.1982)). Accordingly, the phrase, “where the defendant was represented by or waived the right to an attorney in writing,” modifies only the alternative beginning with “or” and not the more remote “driving while revoked.” Thus, the plain language of the statute only requires the state to allege or prove that a defendant was represented by or waived his or her right to an attorney when the defendant’s prior convictions were for violations of county or municipal ordinances.

In addition, we presume

that the legislature intended for every word, clause, sentence, and provision of a statute to have effect. Civil Service Commission of the City of St. Louis v. Members of the Board of Aldermen of the City of St. Louis, 92 S.W.3d 785, 788 (Mo. banc 2003). Indeed, “a presumption exists ‘that the legislature does not insert idle verbiage or superfluous language in the statute.’ ” Id. In construing statutes, we are required to give meaning to each word or phrase of the statute whenever possible. State ex rel. BP Products North America Inc. v. Ross, 163 S.W.3d 922, 927 (Mo. banc 2005).

Nelson, 250 S.W.3d at 392. Further, we presume that the legislature does not intend for a statute to be redundant. Id.; Sparks, 916 S.W.2d at 236. “Every word in a statute should be given effect and it should be presumed that the legislature did not enact meaningless provisions.” State v. Stewart, 113 S.W.3d 245, 249 (Mo.App.2003). State law requires that any defendant who faces imprisonment have the assistance of counsel if the defendant desires such assistance. See Mo. Const. art. 1, section 18(a); Rule 31.02(a). It would be redundant and would serve no further purpose in protecting a defendant’s rights for the legislature to require the state to prove that the defendant was represented by or waived representation of counsel when prior convictions for state law offenses are used to enhance driving while revoked to a felony. See Sparks, 916 S.W.2d at 236.

For all of the above reasons, we conclude that the language requiring attorney representation or waiver does not apply to the state law violations. The state was not required to plead or prove that movant was represented by or waived his right to an attorney in his prior convictions in order to charge and convict movant of the class D felony of driving while revoked because all of movant’s prior convictions were based on violations of state law.

B. Ten Day Sentences

We next consider movant’s claim that the state was required to prove that he received and served ten days on each conviction used for enhancement. As seen in the passages set out above, the 2002 amendments to section 302.321.2 expressly required defendants who had no prior alcohol-related enforcement contacts and those who did have alcohol-related contacts to have received and served ten-day sentences on the prior driving while revoked offenses. However, the 2005 amendment to section 302.321.2 removed the ten-day sentence language from the provision covering defendants who had no prior alcohol-related enforcement contacts. See Section 302.321.2 RSMo. (Cum.Supp.2005). Since movant did not have prior alcohol-related enforcement contacts, the ten-day sentence requirement did not apply to movant’s pri- or convictions.

Movant’s claims that (1) the state failed to plead and prove that movant was represented by counsel or waived his right to counsel in his prior driving while revoked convictions, and (2) that movant served ten days on each of his prior driving while revoked convictions did not allege facts warranting relief. The motion court did not err in denying an evidentiary hearing on these claims. Point two is denied.

III. Felony Resisting Arrest

For his third point, movant contends that the motion court erred in denying post conviction relief because the court lacked a factual basis to accept movant’s guilty plea to felony resisting arrest. He contends the state failed to prove that the underlying offense was a felony or that movant created a substantial risk of serious injury or death when he fled from the police.

In his amended motion, movant alleged that there was no factual basis for his guilty plea to felony resisting arrest because the state failed to prove that the underlying charge, driving while revoked, was a felony. In addition, movant alleged that the state failed to plead or prove that he created a substantial risk of serious physical injury or death to any person as required by section 575.150 RSMo (Cum. Supp.2005).

The motion court found these claims had no merit. It rejected movant’s claim that the underlying offense was a misdemeanor because the state had established a factual basis for the enhancement of the underlying offense to felony driving while revoked. It also found that movant had admitted that he refused to stop, that he drove erratically at a high rate of speed, and that he violated stop signs at a high rate of speed. It concluded that this evidence was sufficient to find that movant created a substantial risk of injury to other persons.

Section 575.150.5 RSMo (Cum.Supp. 2005) lists the circumstances that make the offense of resisting or interfering with an arrest a class D felony:

5. Resisting or interfering with an arrest is a class D felony for an arrest for a:

(1) Felony;
(2) Warrant issued for failure to appear on a felony case; or
(3) Warrant issued for probation violation on a felony case.

The statute also allows a defendant to be charged with felony resisting arrest if the defendant “[fled] in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person.... ” Section 575.150.5 RSMo (Cum.Supp.2005). Thus, a defendant may be charged with the class D felony of resisting or interfering with an arrest if that defendant was arrested for committing a felony or if that defendant fled in a way that created a substantial risk of serious physical injury or death.

Movant argues that because the state failed to prove that the crime for which he was being arrested was a felony, it needed to show that movant fled in a way that created a substantial risk of serious injury or death to another person, which, he contends, it failed to do. We disagree. In our discussion under point two, we held that the state showed that movant was being arrested tor felony driving while revoked when he fled from the police. Movant’s arrest for a felony made the offense of resisting arrest a felony and constituted a factual basis for the court to accept movant’s guilty plea for felony resisting arrest.

Movant failed to allege facts warranting relief on this claim, and therefore was not entitled to an evidentiary hearing. Point three is denied.

IV. Remand

Although movant did not raise this issue in his brief on appeal, the state has asked us to remand this case so that the written judgment in Case No. 22061-1353, which included the felony driving while revoked charge, can be corrected. The record shows that in that case,.movant was charged with and pleaded guilty to the class D felony of driving while revoked, and the court sentenced movant to four years imprisonment on that offense during the change of plea hearing, which is the maximum penalty for a class D felony. Section 558.011.1(4) RSMo (Cum.Supp. 2003). However, the sentence and judgment form in that case records that mov-ant pleaded guilty to the “class A misdemeanor” of driving while revoked. A court’s failure to properly memorialize the class of crime that a defendant has been found guilty of on the sentence and judgment form is considered a clerical mistake. State v. Pruitt, 192 S.W.3d 512, 514-15 (Mo.App.2006).

In addition, at the change of plea hearing, the court found that movant was a prior and persistent felony offender and sentenced movant as a prior and persistent felony offender. However, the court did not check the boxes reflecting that finding on the sentence and judgment form. A court’s failure to check the appropriate boxes on a sentence and judgment form memorializing its finding that the defendant is a prior or persistent offender is also considered a clerical mistake. State v. Scott, 298 S.W.3d 913, 918 (Mo.App.2009); McDonald v. State, 141 S.W.3d 526, 529-30 (Mo.App.2004).

Rule 29.12(c) provides that “[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time after such notice, if any, as the court orders.” Where there is a basis in the record to support an amendment to the judgment, and the trial court’s intentions about the defendant’s sentence are clear from the record, clerical mistakes can be corrected through a nunc pro tunc order, which is used to make the record conform to what was actually done. Scott, 298 S.W.3d at 918. The motion court has the power to correct the judgment in the underlying criminal case. Rule 24.035(j); McDonald, 141 S.W.3d at 530. We may consider the clerical mistake in the judgment to be plain error. McDonald, 141 S.W.3d at 530. In these circumstances, we can remand to the motion court to order entry of a corrected judgment and sentence in the underlying criminal case that complies with what the trial judge announced in open court. Id.

Conclusion

The judgment of the motion court is affirmed. The case is remanded with directions that the motion court order entry of a nunc pro tunc order to conform the written judgment to the oral disposition at sentencing.

CLIFFORD H. AHRENS, J. and NANNETTE A. BAKER, J., concur.

      . As amended this sentence now reads:
      Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted a fourth or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the defendant was represented by or waived the right to an attorney in writing, and where the prior three driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense ... is guilty of a class D felony.


author: ROYL. RICHTER, Chief Judge.

text:
    Noneeka MASSEY, Respondent, v. Marsha and Frank SPASSER, Appellant.
    No. ED 94060.
    Missouri Court of Appeals, Eastern District, Division Five.
    July 13, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.

      Joseph A. Monticello, St. Louis, MO, for Appellant.
    Matthew J. Sauter, St. Louis, MO, for Respondent.
   ROYL. RICHTER, Chief Judge.

Marsha and Frank Spasser (collectively “the Spassers”) appeal the Labor and Industrial Relations Commission’s (“the Commission”) decision to award Noneeka Massey (“Massey”) disability benefits and medical expenses. We reverse.

I. BACKGROUND

Marsha Spasser (“Mrs. Spasser”) hired Massey in November 2004 to help care for her husband Frank Spasser (“Mr. Spas-ser”), who was sick and confined to the Spassers’ house. Massey’s duties consisted of taking care of Mr. Spasser, feeding him, clothing him, changing him, keeping him dry, transferring him from bed to a chair, providing preventative skin care so that Mr. Spasser did not develop bed sores, administering medication, providing bathroom assistance, and seeking emergency care when necessary. Massey was not responsible in any way for cleaning the house, shopping, cooking meals, or performing laundry services.

In hiring Massey, Mrs. Spasser formally interviewed Massey herself. Mrs. Spasser required that Massey have a Certified Nursing Assistant (“CNA”) certificate as a condition of employment. Massey had obtained her CNA certificate in 1996. Massey worked a set shift determined by the Spassers and was paid by the Spassers.

While caring for Mr. Spasser on May 7, 2006, Massey attempted to move Mr. Spas-ser from his wheelchair to his recliner. During the transfer, Mr. Spasser’s knees buckled, and, as a result, Massey “pulled her back out.” Massey called Mrs. Spas-ser and told her that she had to go to the hospital and could not return to work. Massey underwent medical treatment and also saw a chiropractor. Massey sent her medical bills to Mrs. Spasser. Mrs. Spas-ser sent a letter after the accident informing Massey she had been terminated. Further, Mrs. Spasser refused to pay for or provide medical care.

Massey filed a claim under the Missouri Workers’ Compensation Act (“the Act”) against the Spassers. An administrative hearing was held, and the Administrative Law Judge (“ALJ”) ruled that Massey’s injury was not compensable under the Act because Massey was not covered by the Act pursuant to the exemption in Section 287.090.1 RSMo Cum. Supp. 2005.

Massey appealed to the Commission, which reversed the ALJ’s decision and ruled that the exemption in Section 287.090.1 did not apply to Massey as a .CNA, and therefore the injury was com-pensable. The Commission awarded unpaid medical expenses, temporary total disability benefits, and $9,600 in permanent partial disability benefits. The Spas-sers appeal.

II. DISCUSSION

Under Workers’ Compensation law, the employee shall receive, and the employer shall provide, such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial care, ambulance, and medicines as may reasonably be required to cure and relieve the effects of the injury. Section 287.140. An employer, as used here, includes every person using the service of another for pay. Section 287.030.1(1). Such employer must have five or more employees to be deemed an employer for purposes of Section 287. However, certain employees are specifically excluded from coverage by the law. One such category of laborer is a domestic servant employed in a private home. Section 287.090(1).

The Spassers’ first point on appeal states that the Commission erred in allowing compensability because it did not strictly construe Section 287.090.1 in finding that Appellant was not an exempt employer. The Spassers’ second point seeks to show that the legislature distinguishes between CNAs who work in a private household with those that work for a care facility. The Spassers argue that Massey was a domestic servant employed in a private home and that therefore she is excluded from coverage by the Missouri Workers’ Compensation Law. The Spas-sers’ third and fourth points are moot as we find the injury not compensable.

On appeal, we may modify, reverse, remand for rehearing, or set aside the decision of the Commission on the following grounds and no other: (1) that the commission acted without or in excess of its powers; (2) that the decision was procured by fraud; (3) that the facts found by the commission do not support the award; or (4) that there was no sufficient competent evidence in the record to warrant the making of the award. Clement v. Kelly Servs., Inc., 277 S.W.3d 327, 329 (Mo.App. E.D. 2009). The fact findings of the commission, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. Id.

In finding that Massey was not a domestic servant, and thus not excluded from coverage of the Missouri Workers’ Compensation law, the Commission looked to ease law from other States, as well as to Black’s Law Dictionary, in order to establish a definition. The Commission looked to McCallister v. Workers’ Compensation Appeals Board, 61 Cal.App.3d 524, 132 Cal.Rptr. 527 (Ca.App.1976), and Viola v. Workman’s Compensation Appeal Board, 121 Pa.Cmwlth. 47, 549 A.2d 1367 (1988) in determining whether Massey was a domestic servant. These cases are not controlling in the current matter and this Court does not find these out-of-state opinions to be compelling or persuasive. The California and Pennsylvania courts fail to strictly construe the definition of domestic servant contained in Section 287.090.1.

Black’s Law Dictionary defines a domestic servant as, “a household servant.” Black’s Law Dictionary 501 (7th ed.1999). A “servant” is defined as “a person who is employed by another to do work under the control and directions of the employer.” Massey was employed by the Spassers to take care of Mr. Spasser. She was formally interviewed by Mrs. Spasser. Mrs. Spasser required that Massey be a CNA in order to be hired. After being hired, Massey worked a set shift as designated by Mrs. Spasser and was paid by the Spassers. Clearly Massey was under the control and directions of the Spas-sers. Missouri Workers’ Compensation law, strictly construed, was not intended to apply to work done in private homes to care for the members of private households.

In finding that Massey was not a domestic servant the Commission did not strictly construe the Missouri Workers’ Compensation Law as required by Section 287.800. Massey’s injury is non-compensable under the Workers’ Compensation Act by virtue of statutory exemption in Section 287.090.1.

III. CONCLUSION

The Commission’s decision is reversed. We find that Massey is a domestic servant and therefore ineligible for benefits under the Act.

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

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


author: VICTOR C. HOWARD, Judge.

text:
    Kenneth G. CHARRON, Appellant, v. Jeremiah W. (Jay) NIXON, Respondent.
    No. WD 72315.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.

      Kenneth G. Charron, pro-se.
    Michael J. Spillance, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   VICTOR C. HOWARD, Judge.

Kenneth Charron appeals the trial court’s grant of summary judgment in favor of respondent Jeremiah Nixon (hereinafter referred to as “the State”) on Charron's petition for declaratory judgment regarding “good time” credit on his sentences. In four of his six points on appeal, Charron contends that the trial court erred in finding that section 558.041, RSMo 2000, is not unconstitutionally vague. In his remaining points, Charron contends that the trial court erred in adopting the proposed findings of the State and in denying David Bullock and Charles Rentschler’s motions to intervene. The judgment of the trial court is affirmed.

Factual and Procedural Background

Kenneth Charron is currently serving a life sentence for a forcible rape conviction as well as three consecutive thirty-year sentences as a result of his convictions of two counts of second-degree robbery and one count of first-degree burglary. This appeal arises from the trial court’s grant of summary judgment in favor of the State on Charron’s petition for declaratory judgment purporting to seek a determination of the constitutionality of section 558.041, which permits an offender to be rewarded with credit on his sentence.

Charron has pursued similar claims previously. See Rentschler v. Crawford, 263 S.W.3d 708 (Mo.App. W.D.2008); Charron v. Crawford, 285 S.W.3d 362 (Mo.App. W.D.2009). In Rentschler, Charron unsuccessfully litigated a declaratory judgment action seeking a declaration that his life sentence contained a conditional release date. Subsequently, Charron unsuccessfully litigated a claim alleging that he was entitled to receive good time credit on his sentences under section 558.041. This court affirmed the denial of relief in Charron, 285 S.W.3d 362.

The subject of this appeal concerns another petition for declaratory judgment in which Charron claims to seek a determination of the constitutionality of section 558.041. Inmates David Bullock and Charles Rentschler filed motions to intervene in the case. The trial court denied both motions to intervene. The State filed a motion for summary judgment in which it argued that Charron was essentially claiming that he is entitled to receive good time credit under section 558.041 and that his claim failed as a matter of law. The trial court granted the motion, finding that Charron had no entitlement to be considered for good time credit. The court further found that there is no liberty interest in receiving consideration for good time credit, that section 558.041 is not a contract or agreement between the Department of Corrections and inmates entitling them to good time credit, that the statute is not unconstitutionally vague, and that inmates with life sentences may properly be excluded from consideration for good time credit. This appeal by Charron followed.

Standard of Review

An appellate court’s review of an appeal firnrn summary judgment “is essentially de novo.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Whether or not summary judgment should be granted is an issue of law, and “an appellate court need not defer to the trial court’s order granting summary judgment.” Id. We review the record in the light most favorable to the party against whom summary judgment was entered. Id. “Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.” Id. (citations omitted). “Summary judgment is appropriate where the moving party establishes a right to judgment as a matter of law and that no genuine issue of material fact exists.” United Mo. Bank, N.A. v. City of Grandview, 105 S.W.3d 890, 895 (Mo.App. W.D.2003).

Application of Section 558.041

Charron characterizes four of his points on appeal as challenges to the constitutionality of section 558.041. While he alleges that the trial court erred in finding that section 558.041 is not vague and ambiguous, the substance of his arguments focuses on the trial court’s purported misapplication or misunderstanding of section 558.041, rather than the constitutionality of the statute.

Section 558.041 provides in pertinent part:

3. The director of the department of corrections shall issue a policy for awarding credit. The policy may reward an inmate who has served his sentence in an orderly and peaceable manner and has taken advantage of the rehabilitation programs available to him. Any violation of institutional rules or the laws of this state may result in the loss of all or a portion of any credit earned by the inmate pursuant to this section.
4. The department shall cause the policy to be published in the code of state regulations.

Section 558.041.3 gives the director of the Department the ability to create and implement a policy for awarding good time credit. The Department exercised this authority though 14 CSR 10-5.010, which provides in pertinent part that inmates serving life sentences are not eligible for time credit. 14 CSR 10-5.010(2)(B)(3).

In his first point on appeal, Char-ron contends that section 558.041 and 14 CSR 10-5.010 violate Missouri’s prohibition on retrospective laws. This court addressed a similar issue when an inmate argued that an amendment to the conditional release statute was improperly applied retroactively to his case. See Cooper v. Holden, 189 S.W.3d 614, 619 (Mo.App. W.D.2006). This court held that, where the inmate did not have an established conditional release date when the amendment took effect, the procedural change in the statute did not affect a substantive right of the inmate and could be applied to him. Further, this court noted that good time credit applies only as to a conditional release date and that 14 CSR 10-5.010 states that an inmate serving a life sentence is not eligible for good time credit. Id. Because the inmate in Cooper was serving a life sentence and did not have a conditional release date, he could not be awarded good time credit. Id.

Similarly, Charron is serving a life sentence and had no specific conditional release date or entitlement to good time credit when 14 CSR 10-5.010 was promulgated. An amended law may be applied retroactively if the change is procedural in nature and does not affect a substantive right of the party. Id. Where Charron did not previously have a conditional release date or an entitlement to good time credit, the policy enunciated in 14 CSR 10-5.010 did not affect a substantive right of Charron. Additionally, this court has noted that the application of good time credit is procedural. Cooper, 189 S.W.3d at 619 n. 5.Therefore, section 558.041 and the policy in 14 CSR 10-5.010 may properly be applied to Charron without violating Missouri’s ban on retrospective laws. Char-ron’s first point is denied.

In his second point, Charron claims that the policy in 14 CSR 10-5.010 was not properly promulgated. This court previously addressed the same issue in Cooper. See 189 S.W.3d at 619. This court noted that the regulation was promulgated under the authority of section 558.041, which “provides freedom for the Department of Corrections to create and implement a ‘good time’ credit policy it deems appropriate.” Cooper, 189 S.W.3d at 619. The court found that the policy set forth in the regulation fell “squarely within the discretion given to the Department by the General Assembly in section 558.041” and was, therefore, valid under the authority granted by the General Assembly. Id. Because the policy in 14 CSR 10-5.010 was properly promulgated by means of the authority granted by the General Assembly, Char-ron’s second point is denied.

Next, Charron claims that the language in section 558.041 creates a contract or agreement by which inmates have an entitlement to good time credit. Charron cites the language of section 558.041.3, claiming that it states that an inmate will receive time credit if he meets certain requirements. This court has previously interpreted the language of section 558.041.3 and found that the language vests the Department with discretionary authority. See Badgley v. Mo. Dep’t of Corr., 977 S.W.2d 272, 276 (Mo.App. W.D.1998). While section 558.041.3 requires the Department to issue a policy for awarding credit, the language of the statute does not indicate that the policy must award inmates with time credit; rather, it states that the policy may reward an inmate with time credit. See Badgley, 977 S.W.2d at 276. Charron further claims that, based on the language of section 558.041.1, inmates have the right to expect time credit. This subsection provides that inmates may receive additional credit when they meet the requirements for such credit as provided in subsections 3 and 4 of the statute. As noted in Badgley, this language is discretionary and nothing in section 558.041 creates an entitlement to time credit. Charron’s point is denied.

Charron next appears to contend that the trial court improperly declared that the Missouri Supreme Court is bound by the decision of a lower appellate court, ie., this court’s decisions in Cooper and Badg-ley. The trial court did not make such a declaration but, rather, properly applied binding precedent from this court in its decision. Charron’s point is without merit and is therefore denied.

Trial Court’s Adoption of the State’s Proposed Judgment

In his next point, Charron argues that the trial court illegally delegated its judicial function by adopting a proposed judgment drafted by counsel for the State. However, adopting a proposed judgment submitted by a party “has become a common practice in Missouri courtrooms and raises no constitutional problems so long as the court, after independent reflection, concurs with the contents of the proposed findings and conclusions.” Skillicorn v. State, 22 S.W.3d 678, 690 (Mo. banc 2000). Although drafted by counsel for the State, there is no evidence that the judgment is not the result of independent reflection by the trial court. The trial court did not err in adopting the State’s proposed judgment. Charron’s point is denied.

Motions to Intervene

In his final point, Charron contends that the trial court erred in denying David Bullock and Charles Rentschler’s motions to intervene as of right pursuant to Rule 52.12(a). The denial of a motion to intervene as of right is appealable. State ex rel. Webster Cnty. v. Hutcherson, 199 S.W.3d 866, 872 (Mo.App. S.D.2006). However, we must address whether Charron has standing to appeal the trial court’s denial of Bullock and Rentschler’s motions.

The Southern District addressed similar circumstances in a recent case. See In re P.G.M., 149 S.W.3d 507 (Mo.App. S.D. 2004). In that case, the prospective adoptive parents filed a petition to adopt P.G.M. and terminate the parental rights of the natural parents. Id. at 509-10. On appeal from the judgment terminating his parental rights, the natural father argued that the trial court had erred in denying his sister’s motion to intervene in the adoption petition. Id. at 516. The court noted that the father’s sister was not a party to the appeal and that she was the party who would be aggrieved by the trial court’s ruling. Id. Because only the party aggrieved by an action of the trial court may appeal and raise a claim of error, the court found that the natural father lacked standing to appeal the denial of his sister’s motion to intervene. Id. (citing § 512.020, RSMo 2000).

Neither Bullock nor Rentschler filed a notice of appeal or a brief in the present case. As was the case in P.G.M., Bullock and Rentschler, rather than Charron, were the parties aggrieved by the trial court’s denial of their motions to intervene. Therefore, Charron does not have standing to appeal the trial court’s denial of Bullock and Rentschler’s motions to intervene and his point is denied.

The judgment of the trial court is affirmed.

All concur.

      . Charron’s claim is likely based on his assertion that his points on appeal concern the constitutionality of section 558.041. However, while Charron characterizes his claims as constitutional challenges, Charron is in fact merely claiming that the trial court misinterpreted or misapplied the statute.


author: JAMES M. SMART, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Jewell SAUNDERS, Appellant.
    No. WD 70174.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.

      S. Kate Webber, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Mary H. Moore, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   JAMES M. SMART, JR., Judge.

Jewell Saunders appeals his conviction of one count of kidnapping, one count of first-degree robbery, and one count of armed criminal action. He claims on appeal that a jury instruction coerced the guilty verdicts. The judgment is affirmed.

Background

Saunders does not challenge the sufficiency of the evidence to support his convictions. The victim of the crimes charged in this case was a part-time real estate agent who will be referred to as “Ms. Agent” for purposes of this opinion. In early August 2006, Ms. Agent was contacted by a man who said his name was Ronald Pruitt. The man, later identified as Appellant Jewell Saunders, said he wanted to see some homes. Ms. Agent agreed to pick him up at a store in Grandview, and they rode together in her car to look at several properties. On the way to view the last property, Ms. Agent saw something shiny out of the corner of her eye. She looked over and saw that the man had a gun in his lap pointed toward her, with his hand on the trigger.

The man told Ms. Agent that he would not kill her if she did what he instructed. The man said that he needed about $1,000 or else “some guys” were going to kill him. The man told Ms. Agent to drive to her ATM. Ms. Agent was afraid to give the man money while she was still in the car with him, so she entered the wrong PIN several times and told him that her card would not work. The man became angry, said he needed to think, and they parked in an adjacent Price Chopper parking lot.

Ms. Agent suggested going into the grocery store, purchasing something with her debit card, and obtaining cash back to give to the man. The man made Ms. Agent turn her cell phone off and instructed her to drive to a different grocery store that was about a mile away. The man told Ms. Agent not to “pull anything” or he would kill her and made her walk hand-in-hand with him into the liquor section of the store. Ms. Agent saw the man place the gun in the back of his waistband.

Ms. Agent was unable to get cash back at the grocery store, so they left. The man had her go to another liquor store, but that store did not give cash back, either. They returned to the Price Chopper, where the man instructed Ms. Agent to park some distance from the store. The man held Ms. Agent’s hand as they entered the store. He had the gun in the back of his pants. After deliberately putting in the wrong PIN a few times, Ms. Agent was able to obtain only $50. She gave that money to the man.

Ms. Agent and the man went to make a second purchase at the Price Chopper in an effort to obtain more money. The manager informed them that they could receive cash back only once per day. When the man went to the end of the check-out conveyor belt to retrieve a Pepsi, Ms. Agent yelled “see you later” in a very loud voice. Several people turned to look at them, and the man left the store.

Ms. Agent left the store and did not immediately report the incident to the police. The next day, she told her real estate broker about the incident, and the broker convinced her to go to the police. The police subsequently released the Price Chopper surveillance video to news media. A caller identified the man as Jewell Saunders and gave his address. After police arrested Saunders, Ms. Agent identified him as the man who had kidnapped and robbed her.

Saunders proceeded to jury trial on one count of kidnapping, one count of first-degree robbery, and one count of armed criminal action. The jury subsequently announced that it had reached a verdict of not guilty in all three counts. At the request of the prosecutor, the court polled the jury. The court stated: “[Wjhat I’m going to do is ask each of you starting at the back, Is this your verdict?” One juror responded: “Yes,” ten jurors responded: “No,” and one juror responded: ‘Tes, but I’m totally confused. I’m sorry.” Needless to say, at that point everyone was confused.

The court consulted at the bench briefly with counsel. The judge stated that he was “at a total loss for words.” The attorneys stammered. After considering, out of the presence of the jury, what to do about the results of the polling, the court indicated to counsel that it would ask the jury to continue deliberating and would provide it with new guilty and not guilty verdict forms. Defense counsel objected and asked the court to accept the not guilty verdicts and to declare a mistrial. The court denied the requests. The court brought the jury back in and gave the following instruction:

Ladies and gentlemen of the jury, I’ve had the opportunity to confer with counsel. The Court received the verdict forms. However, when asked to poll the jurors individually, in doing so it seemed not to comport with the verdict forms in which the Court received, and I cannot accept this verdict.
What I have done is to prepare new or blank verdict forms, and it’s the Court’s intent that we continue with deliberations until an unanimous verdict is reached, all 12 jurors. With that said, the Court is — will be in recess. The jurors are instructed to go back to the jury room to continue with deliberations.

The jury retired to continue deliberations.

The jury eventually announced it had reached a verdict. The verdicts, as read aloud by the court, indicated that the jury had found Saunders guilty of kidnapping and first-degree robbery but not guilty of armed criminal action. The foreperson then said: “That’s a mistake. I must have marked it wrong.” The court patiently resubmitted a blank guilty verdict form and a blank not guilty form to the jury on the armed criminal action count. The jury then indicated to the court and parties that there were apparently typographical errors in the blank verdict forms that had been sent up to the jury. Corrected blank verdict forms were provided to the jury. The jury ultimately indicated it had reached a verdict as to the armed criminal action count and found Saunders guilty on that count. At the request of defense counsel, the court again polled the jury. The court asked each juror: “Is this your verdict?” Each juror responded: “Yes.”

The judge sentenced Saunders to twenty-five years’ imprisonment for kidnapping, twenty-five years’ imprisonment for first-degree robbery, and fifteen years for armed criminal action, all to be served concurrently.

Saunders appeals.

Discussion

In his sole Point on Appeal, Saunders claims the trial court plainly erred and abused its discretion when it instructed the jury to continue to deliberate until all twelve jurors reached a unanimous verdict. He says the court’s instruction coerced the guilty verdicts because it virtually directed that a verdict be reached and implied that the court would hold the jury until a verdict was reached.

Standard of Review

The assertion of instructional error is an issue of law, which we review de novo. Powderly v. S. Cnty. Anesthesia Assocs., Ltd., 245 S.W.3d 267, 276 (Mo.App.2008). Here, the allegation is that the instruction to continue deliberations constituted error. Because there was no objection at the time to the court’s instruction, the issue is before us as a request for relief based on plain error pursuant to Rule 30.20. The question of whether a verdict is coerced may be considered on a request for plain error review. State v. Campbell, 147 S.W.3d 195, 202 (Mo.App.2004). Coercion of a verdict necessarily is a matter affecting substantial rights and would ordinarily involve issues of manifest injustice or miscarriage of justice. See id.

Analysis

The jury retired to deliberate at 3:13 p.m. At 4:39 p.m., the jury asked to view the Price Chopper surveillance videotape and the lineup. The court then adjourned for the evening at the request of the jury. The next morning, the jury began deliberations at 8:30 a.m. The jury viewed the videotape in the courtroom with both counsel present but without the court present. At 8:47 a.m., the jury asked to see a closer version of the portion of the surveillance tape that they viewed. The jury viewed a clearer version of the Price Chopper surveillance tape at 9:19 a.m. At 10:31 a.m., the jury asked to see the listing for the homes the agent showed Saunders. The court provided those exhibits.

At 1:30 p.m., the jury announced that it had reached a verdict of not guilty in all three counts. After the inconclusive polling, the jury was sent back to the jury room while the court discussed the situation with counsel. The court instructed the jury to “continue with deliberations until a unanimous verdict is reached, all 12 jurors.” The jurors resumed deliberations at 2:04 p.m.

At 2:25 p.m., an individual juror made a request to speak with the trial judge. The judge sent back a response that it is the juror’s duty to remember the evidence and follow the instructions and that it would be improper for the judge to talk to any of the jurors while the jury is deliberating. The court’s response was delivered to the jury at 2:80 p.m. At 4:27 p.m., the jury asked to see the Price Chopper video again. The jury viewed the video in the courtroom as it had viewed it earlier. It resumed deliberations at 4:43 p.m.

At 6:01 p.m., the jury again announced it had reached a verdict. The verdicts, read aloud by the court, indicated that the jury had found the defendant guilty of kidnapping and first-degree robbery but not guilty of armed criminal action. The foreperson then said, “That’s a mistake. I must have marked it wrong.” The jury returned to the jury room and returned at 6:30 p.m. with a guilty verdict as to all three counts. Upon being polled, the jury agreed that the three guilty verdicts were correct.

Rule 29.01(d), provides that if, upon polling a jury, “there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged.” “A verdict is considered coerced when under the totality of the circumstances it appears that the trial court was virtually directing that a verdict be reached and by implication indicated it would hold the jury until a verdict was reached.” Campbell, 147 S.W.3d at 202. “There are several factors that aid the courts in determining whether a jury’s verdict was coerced,” including: “(1) the amount of time the jury deliberates before and after the reading of the hammer instruction, (2) whether the trial court knows numerically how the jury is split and the position of the majority, and (3) whether the giving of the hammer instruction conforms with the Notes on Use.” Id.

Coercion of a guilty verdict constitutes error. State v. Burns, 808 S.W.2d 1, 3 (Mo.App.1991). “A reversal is required if it is conceivable the challenged instruction coerced the jury into returning a verdict and nothing in the record is available to find otherwise.” Id. “The rights of both parties to a fair trial and defendant’s right to due process cannot be served if a verdict is coerced.” Id.

Saunders complains that the jury was told that it would be detained until a unanimous verdict, agreed upon by all twelve jurors, was reached. He says the court should have told the jury that a hung jury was a possible and permissible outcome. Many of the cases Saunders cites involve situations where the jury indicated it could not agree on a verdict and was given an instruction responding to that inability. See State v. Hayes, 563 S.W.2d 11 (Mo. banc 1978); Campbell, 147 S.W.3d 195; Johnson, 948 S.W.2d 161; Burns, 808 S.W.2d 1 (Mo.App.1991). This case, however, does not involve a circumstance of the jurors having indicated that they could not agree on a verdict.

The jury indicated it had reached a verdict, but the polling indicated confusion about whether they had reached a verdict, or at least as to what the verdict was. The judge’s statement that “it’s the Court’s intent that we continue with deliberations until a unanimous verdict is reached, all 12 jurors,” read in isolation, could be construed as a directive that the jury had to reach a unanimous verdict. But in the light of the surrounding circumstances, it is inconceivable that the jury would believe that it was being told that it must return a unanimous verdict. Rather, it is clear the jury was being directed to return to the jury room and figure out where they had gone wrong in communicating their verdict, and further to determine whether in fact everyone was on board with the same verdict. The judge naturally and quite properly wanted them to try to reach a verdict if they could do so after discussing the matter. He was not calling for any of them to set aside their convictions if, after discussion and reflection, they remained convinced of their position.

It is routine to instruct jurors that they must all agree on a verdict. The quoted statement, viewed through the lens of plain error review, was not a command that the jury was not permitted to be a hung jury. If the defendant had believed at that time that the judge’s comments were improper, he could have said so. The court, in response, could have taken extra pains to make sure the jury did not misunderstand. The court’s instruction to the jury certainly did not suggest that the court preferred a particular verdict. This case falls more with the “line of cases [finding] no error when the judge makes a comment not requiring the jury to find a verdict, but merely to continue its deliberations.” Campbell, 147 S.W.3d at 203. Because the jury’s actions created an inconsistency, the judge sent the jury back to deliberate and resolve the inconsistency.

The jury deliberated for an additional four hours before reaching its verdict. The total time the jury deliberated in this case, while lengthy, was not unreasonably so: about eleven hours over two days. Compare Burns, 808 S.W.2d at 3 (factors suggesting a verdict may have been coerced included: inconsistent verdicts for the first and second count, the possibly coerced verdict being delivered quickly after the challenged instruction, the oral instruction contained a misstatement of fact and law, and the use of a non-MAI instruction).

This was an active jury that often communicated with the court. On the first day of deliberations, it requested permission to go home and continue deliberations the following day. After it was sent back for further deliberations, the jury asked to see additional evidence. It never asked the court whether it could be a hung jury. It never asked whether it would be made to continue deliberating if the jurors could not come to agreement. Nothing suggests that the jury felt it would be forced to deliberate or that any inconvenience would be visited upon them until a verdict was rendered.

Saunders notes that the only juror to unequivocally state that the not guilty verdicts were her verdicts asked to speak individually with the judge shortly after being sent back for further deliberations. He suggests that she wanted to ask the judge whether she had to vote guilty so that the jury could reach a verdict or whether she could disagree with the rest of the jury. This is pure speculation on Saunders’s part. The jurors had their instructions to which they were to refer. Each juror, including this juror, affirmed his or her verdict when polled. “This court is aware of no case holding that an initial lack of unanimity among jurors in a criminal case bars the jurors from later reaching a unanimous verdict.” State v. Barnett, 16 S.W.3d 699, 705 (Mo.App.2000).

Despite the unusual occurrences in this case, Saunders has failed to meet his substantial burden to show that the judge mishandled the juror confusion or coerced a verdict. We see no indication of a manifest injustice or miscarriage of justice. The Point is denied.

Conclusion

The judgment is affirmed.

All concur.

      . For this reason, it would not have been appropriate for the judge to give the "hammer” instruction, which may be appropriate "when the length of deliberation or communication from the jury causes the court to believe that the jury may be deadlocked.” MAI-CR3d 312.10, Notes on Use 2.


author: PER CURIAM:

text:
    Kenneth CHARRON, Appellant, v. Pat SMITH, et al., Respondent.
    No. WD 72057.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.
    Rehearing Denied Sept. 28, 2010.
    Kenneth G. Charron, pro se.
    Emily A. Dodge, Esq., for Respondent.
    Before VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Mr. Kenneth Charron appeals the summary judgment granted in the State employees’ favor.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).