author: JAMES EDWARD WELSH, Judge.

text:
    STATE of Missouri, Respondent, v. Harrell L. JOHNSON, Appellant.
    No. WD 70392.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Ruth Sanders, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   JAMES EDWARD WELSH, Judge.

Harrell Johnson appeals the circuit court’s judgment convicting him of murder in the first degree. Johnson contends that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt for murder in the first degree because the State failed to produce evidence that Johnson knowingly caused Erica Michelle Marie Green’s death after deliberation upon the matter. We affirm the circuit court’s judgment.

Viewing the evidence in the light most favorable to the verdict, the evidence established that, in April 2001, Johnson and Michelle Johnson were living in Kansas City in a house that belonged to Johnson’s cousin. Two children lived with the John-sons: three-year-old Erica Green and six-month-old Markeshia Johnson.

In the latter part of April 2001, the family arrived home one evening around 8:00 or 9:00 p.m. At some point after they arrived home, Michelle Johnson went into the back room and saw Erica and Johnson standing in the bedroom. At that tune, Johnson was high on PCP and alcohol. Michelle Johnson told Erica to go to bed. Michelle Johnson then left the room and took a bath. According to Johnson, Erica was “being bad” and was resisting their efforts to get her to go to sleep. Johnson believed that the victim was not obeying, and, after he told the victim five or six times to go to sleep, he became agitated.

When Michelle Johnson came back to the room, Erica was again out of bed and standing up. Michelle Johnson asked Johnson, “What is [Erica] doing standing up?” Johnson told Michelle Johnson that he told Erica to stand up. Michelle Johnson said that she then told Johnson, “Well, that’s my kid, I control her; that’s your baby over there (referring to Markeshia Johnson).” Michelle Johnson then again told Erica to lie down. At that time, Michelle was sitting on the bed, and Erica was standing a few feet from her, with Johnson behind her. According to Michelle Johnson, at that point, Johnson raised his foot up and kicked Erica in the head. Erica collapsed to the floor and immediately lost consciousness.

Michelle Johnson picked up the unconscious Erica and took her to the bathroom. Michelle Johnson placed Erica in some cold water and tried to revive her. Erica was unresponsive: she did not move her arms or legs, and her eyes were rolled back into her head. Michelle Johnson knew that something very serious had happened, and she knew that Erica was in need of medical assistance. Despite Michelle Johnson’s efforts in the bathroom, Erica did not respond or wake up. After about ten or fifteen minutes, Michelle Johnson took Erica back to the bedroom and laid her on the floor. Erica remained unconscious and unresponsive but her eyes were no longer rolled completely back into her head.

Johnson and Michelle Johnson knew that Erica was in serious medical trouble, and they discussed whether they should obtain medical assistance for her. They did not seek medical treatment for her because they both had outstanding warrants. They feared that, if they got help for Erica, their warrants would be discovered, and they would go to jail. Therefore, they decided not to get medical assistance for Erica. According to Michelle Johnson, she agreed not to call an ambulance, even though she thought that Erica would die without medical attention.

For the next ten to fourteen hours, Erica remained unconscious and unresponsive. The next morning, Michelle Johnson and Johnson attempted to feed Erica, but Erica died without ever regaining consciousness and without responding in any way.

After Erica died, Johnson and Michelle Johnson decided to get rid of Erica’s body. They waited until it got dark and then took Erica’s body out through a window of the house. They took hedge clippers with them and took Erica’s body to a nearby wooded area. Johnson took off Erica’s clothes and gave them to Michelle Johnson. Johnson then severed Erica’s head with the hedge clippers, put the head inside two garbage bags, and dumped the head into a dumpster at a nearby church. Johnson left Erica’s naked, decapitated body in the woods.

After Johnson threw Erica’s head into the church’s dumpster, Michelle Johnson told Johnson that people at the church would smell the head and find it. So, Johnson and Michelle Johnson retrieved the head, walked down the street, and threw the head into the wooded area where they had left the body. Johnson and Michelle Johnson then returned home and climbed into their room through the window.

The next day, when Johnson’s cousin asked about Erica, Michelle Johnson told her that Betty Brown had come and taken Erica to Oklahoma. This was not viewed with suspicion because Erica had been living with Brown shortly before Michelle Johnson brought her to Kansas City.

At about 6:45 p.m., on April 28, 2001, a police officer found Erica’s decapitated body in the woods. A search of the immediate vicinity did not reveal the location of Erica’s head. On May 1, 2001, Erica’s head was found in a garbage bag in the wooded area. Thereafter, the police began their investigation to determine the child’s identity. At first the police believed that the child would be quickly identified as a missing local child, but when no one came forward, and when the victim’s identity could not be established, the victim became known in the community and the media as “Precious Doe.”

The police continued searching for the child’s identity and investigating the circumstances of the child’s death for over four years. During this time, Johnson and Michelle Johnson lived in various places. When asked about Erica, they would say that she was living with some other family member. Johnson and Michelle Johnson continued to hear media reports about “Precious Doe,” but they never came forward. At some point, Johnson’s grandfather accused Johnson of the murder, and Johnson told him that Erica’s death had been an accident.

On April 30, 2005, the police received a tip about the child’s identity. On May 3, 2005, two officers traveled to Muskogee, Oklahoma, and, on the morning of May 4, 2005, they talked to Johnson’s grandfather. Johnson’s grandfather told the officers that he “wanted people to know the truth about who Precious Doe was before he should die.” He then identified “Precious Doe” as Erica Green.

Both Johnson and Michelle Johnson had been arrested on some warrants in Oklahoma and were in the Muskogee County Jail, so the police proceeded to the Muskogee Police Department to question both Michelle Johnson and Johnson. When questioning Michelle Johnson, the police showed her a photograph of the victim, and Michelle Johnson identified her. On the back of the photograph, Michelle Johnson wrote, “Moma is so sorry. You are always in my heart and soul. Love you always, ‘little E.’ ” Michelle Johnson then agreed to tell the police what had happened. After Michelle Johnson made her statement, she asked to meet with Johnson. Michelle Johnson then told Johnson that it was “over,” that she had “come clean,” and that he “should do the same.”

Johnson started to cry, became upset, and told Michelle Johnson that he was “going to do the right thing to get her off.” Johnson then made an oral and videotaped statement, describing how he had kicked Erica, withheld medical assistance, “disconnected” Erica’s head, and discarded Erica’s body and head in a wooded area. Johnson also identified a photograph of the victim, and on the back of the picture he wrote: “Pm so sorry that this happen, and I hope that you forgive me for I’ve done and I will always love you with my heart and my soul, Harrell Laron Johnson. I will always miss you. Harrell Johnson.”

An autopsy revealed that Erica had suffered multiple injuries to her head. There were several oval-shaped defects and some slit-like defects in various areas of her scalp and face. In the frontal scalp, on the top of the head, on the back of the head, and in the right temporal area, there was hemorrhaging, and in the right temporal area, there were also “areas of injury from blunt impact.” The skull was intact, but inside the skull there was a small amount of subdural hematoma (a small blood clot) and large areas of subarachnoid hemorrhage. The subdural hematoma is an indicator of brain injury where the brain is moving rapidly and stopping within the inside of the skull.

According to the forensic pathologist who performed the autopsy, the subdural hematoma and the subarachnoid hemorrhage were caused by a closed head injury or a blunt force head injury. He said that the injuries he found on Erica’s head were consistent with an act of severe kicking. He noted that the head bore multiple points of impact on different surfaces and said:

We have a situation in which there are areas of deep scalp injury that are on the front of the head, they’re on the top of the head, they’re in the back of the head, and they’re also in the right temple part of the head. These are areas that are just not simply on one surface, but there are areas of impact on multiple different surfaces indicating more than one impact.

Further, on cross-examination, the forensic pathologist testified that the injuries to Erica were consistent with “a kick or kicks” to her head.

Dr. Gregory Horning, a pediatric neurosurgeon, examined the autopsy report and the deposition testimony of the forensic pathologist who performed the autopsy. Horning agreed with the forensic pathologist’s determination that the cause of Erica’s death was a closed head injury. Horning said that Johnson’s and Michelle Johnson’s descriptions of Erica’s initial symptoms — immediate loss of consciousness and immobility — were consistent with the closed head injury described in the autopsy report. Dr. Horning said that there would have been a progression of symptoms as a result of the injury. Horn-ing said that because Erica survived at least ten hours after being injured, she probably would not have died with medical intervention. Horning said that the decision not to obtain medical treatment caused Erica’s death.

On September 29, 2008, the State filed an information in lieu of indictment, charging Johnson with murder in the first degree, endangering the welfare of a child in the first degree, and abuse of a child resulting in death. After a trial, a jury found Johnson guilty of all three offenses. The circuit court sentenced Johnson to life imprisonment without probation or parole for murder in the first degree charge, four years imprisonment for endangering the welfare of a child, and twenty five years imprisonment for child abuse resulting in death. The circuit court ordered that the sentences be served consecutively. Johnson appeals.

In his sole point on appeal, Johnson contends that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt for murder in the first degree because the State failed to produce evidence that Johnson knowingly caused Erica’s death after deliberation upon the matter. To establish murder in the first degree, the State alleged that there were two causes for Erica’s death — the closed head injury and the failure to seek medical aid. Johnson asserts that, because the State offered evidence and argument that Johnson deliberated upon only the failure to seek medical aid and did not offer evidence that Johnson deliberated upon causing the closed head injury, the evidence was insufficient regarding deliberation. Johnson claims that, although the failure to seek medical aid was a factor in Erica’s death, it was not the cause of her death, and therefore, evidence that Johnson behaved deliberately in failing to seek medical aid could not establish that he committed murder in the first degree. Johnson insists, therefore, that the State had to establish that Johnson deliberated upon causing the closed head injury and that the evidence was insufficient regarding deliberation upon the closed head injury. Moreover, Johnson maintains that, at the very least, even if the failure to seek medical aid was a cause of Erica’s death, the State had to establish that he deliberated upon both asserted causes.

In reviewing the sufficiency of the evidence, we deem all evidence favorable to the State to be true. State v. Crawford, 68 S.W.3d 406, 407 (Mo. banc 2002). We do not reweigh the evidence, and we disregard all evidence and inferences contrary to the verdict. Id. at 408. Our review is limited to determining whether or not the State presented sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt. Id.

“A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.” § 565.020.1, RSMo 2000. In the information in lieu of the indictment, the State charged Johnson with first degree murder stating that Johnson “after deliberation, knowingly caused the death of Erica M. Green by causing a closed head injury to her and making the decision not to obtain medical aid for Erica M. Green[.]” Consistent with this charge, on the murder in the first degree charge, the circuit court instructed the jury:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 28, 2001, in the County of Jackson, State of Missouri, the defendant caused the death of Erica Green by causing a closed head injury and making the decision not to obtain medical aid for her, and
Second that defendant knew or was aware that his conduct was practically certain to cause the death of Erica Green, and
Third, that defendant did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,
then you will find the defendant guilty under Count I of murder in the first degree.

Johnson asserts that the evidence was insufficient because the State did not offer any evidence that Johnson deliberated upon causing the closed head injury. Johnson argues:

It is evident that the State did not establish that Mr. Johnson deliberated upon causing the closed head injury. The evidence was simply that Mr. Johnson raised his foot and kicked [Erica]. There was no evidence that he said or did anything before this act; nothing presented from which the jury could reasonably infer that Mr. Johnson coolly reflected on his actions.

We disagree.

Deliberation required for conviction for murder in the first degree is defined as “cool reflection for any length of time no matter how brief.” § 565.002(3), RSMo 2000; State v. Strong, 142 S.W.3d 702, 717 (Mo. banc 2004), cert. denied, 543 U.S. 1059, 125 S.Ct. 872, 160 L.Ed.2d 786 (2005). “Proof of deliberation must ordinarily be provided through the circumstances surrounding the crime. Deliberation may be inferred, but it must still be proved beyond a reasonable doubt.” Strong, 142 S.W.3d at 717 (internal citation omitted).

Sufficient evidence supported a finding that Johnson deliberated prior to kicking Erica in the head. The evidence showed that Erica suffered multiple injuries to her head. There were several oval-shaped defects and some slit-like defects in various areas on her scalp and face. In the frontal scalp, on the top of the head, on the back of the head, and in the right temporal area, there was hemorrhaging, and in the right temporal area, there were also “areas of injury from blunt impact.” The skull was intact, but inside the skull there was a small amount of subdural hematoma and large areas of subarachnoid hemorrhage. The subdural hematoma indicated that the victim’s brain had accelerated and stopped rapidly inside the skull. The injuries were consistent with an act of severe kicking, and the head bore multiple points of impact on different surfaces.

Additionally, the evidence showed that Johnson was “high” on PCP and alcohol and that the assault occurred after Johnson became “agitated” with Erica when she refused to obey him. The evidence showed that Johnson thought that Erica was being bad, that he thought Erica was not obeying, and that he told Erica five or six times to go to sleep. The evidence further showed that the assault upon Erica occurred immediately after Michelle Johnson made a point of telling Johnson that he should not be exercising control over Erica because Erica was her “kid” and not his.

This evidence shows that Johnson had time to think about what he was going to do. He had been contending with Erica for some period of time, trying to get her to go to bed. When that was unsuccessful, he resorted to kicking Erica. “Proof of deliberation does not require proof that the defendant contemplated his actions over a long period of time, only that the killer had ample opportunity to terminate the attack once it began.” State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997), cert. denied, 522 U.S. 1150, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998) (internal citation omitted). “The deliberation necessary to support a conviction of first-degree murder need only be momentary; it is only necessary that the evidence show that the defendant considered taking another’s life in a deliberate state of mind.” State v. Jones, 955 S.W.2d 5, 12 (Mo.App.1997).

Moreover, the evidence established that Johnson inflicted more than one blow on Erica’s head. From the number of injuries to Erica’s head, a reasonable juror could have concluded that Johnson severely kicked the victim multiple times, knowing that he would cause her death. Indeed, “ ‘[e]vidence of a prolonged struggle, multiple wounds, or repeated blows may ... support an inference of deliberation.’ ” State v. Tisius, 92 S.W.3d 751, 764 (Mo. banc 2002), cert. denied,, 539 U.S. 920, 123 S.Ct. 2287, 156 L.Ed.2d 140 (2003) (citation omitted).

Further, a jury could infer that Johnson intended to cause Erica’s death and that he deliberated upon it because Johnson prevented Michelle Johnson from telephoning for help and he refused to obtain medical assistance for Erica. The inference of deliberation can be strengthened by the fact that defendant failed to seek medical aid for the victim. Strong, 142 S.W.3d at 717.

Finally, that Johnson intended to kill the victim and deliberated upon the murder can be further inferred from his actions in concealing the identity of the victim. Indeed, as the record shows, Johnson was highly determined to conceal his crime, as he took the extraordinary step of decapitating the victim so as to prevent identification of the victim’s body. The inference of deliberation may be supported by a defendant’s conduct after the crime in attempting to conceal his involvement in the murder. State v. Moore, 949 S.W.2d 629, 632 (Mo.App.1997).

Although Johnson expressed remorse and stated that he had not intended to kill the victim, his “ ‘description of his mental state is not binding on the jury.’ ” State v. Smith, 185 S.W.3d 747, 759 (Mo. App.2006) (citation omitted). Indeed, a “jury is not bound by any self-serving claims made by [the defendant] and is entitled to reject any or all of his testimony as false.” Id. Likewise, insofar as both Johnson and Michelle Johnson testified as to a single kick by Johnson to Erica’s head, the jury was free to disbelieve such testimony. This is particularly true in light of the medical testimony confirming multiple injuries to various parts of Erica’s head.

Johnson argues that the State informed the circuit court that it did not think that it was required “to prove that when the kick occurred that [Johnson] intended to kill the child but that he deliberated thereafter in a way which did kill the child[.]” The State then told the jury during closing arguments that the closed head injury was not premeditated. The State asserted:

Was the first act premeditated? No. Is the word premeditation even in those instructions? Sometimes we think that what that means, and it’s not. You hear than on television, premeditated. That’s not what Murder in the First Degree is, and you will find that word nowhere in the instructions of the Court, not a single place.

Johnson asserts that “[t]he State did not even attempt to establish that [he] deliberated before he kicked Erica, and in fact [the State] expressly disavowed that argument” at trial. Johnson then points out that the State repeatedly argued at trial that Mr. Johnson deliberated upon his failure to seek medical aid for the victim.

But, in making this argument, Johnson confuses the prosecutor’s arguments with the evidence that was presented and the inferences that a rational finder of fact could have drawn from the evidence. The relevant question is not what arguments the prosecutor made; rather, the relevant question is what evidence could' the jury have credited and what reasonable inferences could the jury have drawn from that evidence. “The question of sufficiency arises before the case is put to the juiy and is really an issue of whether the case should have been submitted to the jury.” State v. Beggs, 186 S.W.3d 306, 312 (Mo.App.2005). The evidence was sufficient to

submit this case to the jury on murder in the first degree as to whether Johnson knowingly caused Erica’s death by a closed head injury after deliberation upon the matter.

Moreover, the circuit court instructed the jury prior to closing arguments that the attorneys would have the opportunity to argue the case to the jury and that the attorney’s arguments are not evidence. We presume that a jury properly follows the instructions as given by the circuit court. State v. Norman, 243 S.W.3d 466, 473 (Mo.App.2007).

Johnson contends that the State cannot “change its theory of criminal responsibility on appeal” and relies on State v. Logan, 645 S.W.2d 60, 63 n. 3 (Mo.App.1982), in support of its contention. Johnson’s reliance on Logan, however, is misplaced. In Logan, the theory of criminal liability that the State argued on appeal was not the same theory of criminal liability submitted to the jury. Here, by contrast, the possibility of guilt premised upon Johnson’s deliberating prior to the closed head injury was submitted to the jury.

The evidence was sufficient to support a finding of guilt beyond a reasonable doubt that Johnson knowingly caused Erica’s death by a closed head injury after deliberation upon the matter. We, therefore, affirm the circuit court’s judgment.

All concur.

      . Johnson was also convicted of one count of endangering the welfare of a child in the first degree and one count of child abuse resulting in death. Johnson does not appeal these convictions.

      . Because the Johnsons have the same last name, we will refer to the appellant as “Johnson” and use both the first and last name when referring to Michelle Johnson.

      . Erica was Michelle Johnson’s biological child but not Johnson’s biological child. We will refer to her as Erica hereafter.

      . Michelle Johnson's testimony and Johnson's statement suggest that Johnson only kicked Erica once, but the physical evidence establishes a more prolonged assault on the victim.

      . The autopsy also confirmed that Erica’s head was cut off after her death.

      . At oral arguments, Johnson argued that the other injuries may have been caused by Erica hitting her head when she fell. The forensic pathologist testified, however, that the severe nature of the injuries suggested "something beyond what would happen in just a simple fall.”

      . In this argument, we presume that the State is attempting to distinguish premeditation from deliberation. The State correctly notes that premeditation is not used in the instruction. Indeed, only "deliberation” is used and defined in the instruction.

      . Johnson states that the cause of death, in terms of Johnson's criminal liability for murder in the first degree, was the closed head injury. Thus, because we conclude that Johnson deliberated before causing the closed head injury, we need not address any of Johnson's arguments concerning whether or not the failure to seek medical treatment was a legal cause of Erica's death.


source: Caselaw Access Project

author: KAREN KING MITCHELL, Presiding Judge.

license: Public Domain

text:
    Robert R. WISDOM, Appellant, v. Nancy Jo WISDOM, Respondent.
    No. WD 70930.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    As Modified June 29, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Dennis Owens and Jonathan Sternberg, Kansas City, MO, for Appellant.
    Michael C. McIntosh, Independence, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   KAREN KING MITCHELL, Presiding Judge.

Robert R. Wisdom (“Husband”) appeals from the judgment of the trial court dissolving the marriage between Husband and Nancy J. Wisdom (“Wife”) and distributing the marital assets. In his single point on appeal, Husband claims that the trial court erred in exercising control over the assets of a company called Kansas City/River Market Produce, Inc., because the company was never properly made a party in that it was never served with a summons, nor did it appear in court voluntarily. We affirm the judgment of the trial court.

Factual and Procedural Background

Husband and Wife were married in 1984. All of their individual children, and the one child that they had together, are emancipated. In the Wisdoms’ early married years, Husband worked in the fuel business and Wife was a full-time mother to Husband’s three children, one of whom was disabled; Wife’s two children; and the child that Husband and Wife had together.

In 1992, Husband was incarcerated for conspiracy to commit arson and for a drug-related charge. Husband was incarcerated until 1998. During the time of Husband’s incarceration, Wife needed to support herself and the children, so, with her father, she became involved with produce sales in Kansas City’s river market area, or “City Market.” Husband’s son, Ben, who was about to finish high school, also began to work in the produce business for one of Wife’s cousins. In 1995, Ben went to college at the University of Missouri in Columbia, but would work selling produce when he was home on breaks. Wife continued to work in the produce business with her father and also sold some prepared foods. The family had success in the produce business, selling both wholesale, to area restaurants, and retail, in the City Market. When Husband was released from prison in 1998, he also entered the produce business. For at least some time, the family apparently worked together. Evidence was presented at trial showing that there was at one time a business in which Husband, Wife, Wife’s father, and Ben each owned twenty-five percent.

Eventually, Husband effectively took over the business. Wife stopped working at the market because Husband was openly hostile and disrespectful to her there. Wife’s father also became ill and, eventually, passed away in June of 2008. In July of 2003, tax documents show Husband owning fifty-five percent of the business and Ben owning forty-five percent, although neither Wife nor her father ever signed over any interest in the business to Husband or to Ben. Wife, who has an associate’s degree, began working as a paraprofessional in the Kansas City school district.

In November of 2005, Husband and Wife separated. Husband and his son David, who is disabled, left the couple’s home and lived in a hotel for “a while.” At the time of trial, David was living in a state-run residential facility and Husband had moved in with Ben and Ben’s daughter. Wife remained in the marital home.

At the time of trial, Kansas City/River Market Produce, Inc. had been administratively dissolved for failure to make appropriate filings. The trial court found that Husband essentially ran the business and that Ben was an employee. Evidence showed that the business paid for: the house in which Husband and Ben lived; the Hummer that Ben drove; the Lincoln Navigator that Husband drove; cell phones used by Husband and his children; Husband’s gambling activity; Husband’s personal credit card debt; furniture for Husband’s mistress and a deposit or application fee on her apartment; Husband’s vacations abroad; educational expenses for Husband’s children; and several vehicles driven by Husband’s children and Ben’s former girlfriend.

The trial court found that the business was marital property and awarded the business, which it found to have been valued at $283,501.00, to Husband. The court awarded Wife the marital home, along with the mortgage on the home. The court also ordered that two other properties in Husband’s name, including the one in which Husband and Ben were living, be sold, with any equity going to wife. Husband was awarded several vehicles and some other assets, and Wife was awarded an equalization of assets payment of $284,006.31, attorney’s fees and costs, and maintenance of $2,500 per month. Husband appeals.

Standard of Review

In a dissolution proceeding, we affirm the decision of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Thomas v. Thomas, 199 S.W.3d 847, 851 (Mo.App. S.D.2006). As to the court’s division of marital property, we will reverse the trial court’s decision only when the division so unfairly favors one party that it amounts to an abuse of discretion. Id. We review all evidence in the light most favorable to the ruling of the trial court and find an abuse of discretion only when the 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.’ ” Id. (quoting In re Marriage of Holden, 81 S.W.3d 217, 225 (Mo.App. S.D.2002)).

Legal Analysis

Husband claims that the trial court erred in exercising control over the assets of Kansas City/River Market Produce, Inc., because the company was never properly made a party to the lawsuit in that it was never served with a summons nor did it appear in court voluntarily. Husband is correct that a court may not exercise control over property belonging to a corporation unless the corporation has been made a party to the action. Comninellis v. Comninellis, 99 S.W.3d 502, 508 (Mo.App. W.D.2003).

In this case, Wife filed a motion with the court to join Kansas City/River Market Produce, Inc., as a necessary party and for leave to file an amended counter-petition. The court granted the motion. At the time Wife sought to add Kansas City/River Market Produce, Inc. as a party, the corporation had been administratively dissolved. According to section 506.150.1(4), service upon a domestic corporation that has been dissolved may be accomplished by delivering a copy of the summons and petition to the last registered agent of the corporation or to the secretary of state. In its judgment, the trial court found that service upon Kansas City/River Market Produce, Inc., had been obtained “through the Registered Agent, Robert Wisdom, and his attorney of record.” Husband challenges this factual finding, claiming that the court’s order joining the corporation does not show that a summons was issued or served on the corporation and that the docket does not show issuance or service of summons or a return of summons from the corporation.

We find that regardless of whether service upon the corporation was ever obtained, the trial court’s judgment is proper with respect to the award of assets. Even if Husband is correct, and the corporation was never made a party to the dissolution action, the failure to join the corporation was not error, as the trial court did not exercise control over any corporate assets. In the cases cited by Husband, including Comninellis, it is the division of corporate assets or liabilities that requires the corporation be made party to the litigation. 99 S.W.3d at 508. The trial court in this case did not divide any corporate assets or liabilities. It did not, for example, award one party the office equipment and inventory and award the other party the trucks. It also did not assign the accounts payable to one party and the lease obligation to the other. It simply found that the corporation, as a whole, was a marital asset. It then assigned the entire corporation to Husband, including all of its assets and liabilities, and credited the value of the corporation as a marital asset awarded to Husband.

Further, although the evidence shows that Husband paid for his personal assets with company funds, including real property and several automobiles, the real property and automobiles were all titled to Husband personally, and not to the company, and were all primarily for personal use of either Husband or his children. Accordingly, these other assets were not assets of the business, and therefore, the court did not divide any corporate assets when it awarded the automobiles to Husband and the equity in the real property to Wife. Similarly, although Husband used company funds to pay his personal credit cards, which were used to purchase items for Husband’s use and for the use of his mistress and his children, the credit cards were issued in Husband’s name, not the name of the business, and the debt was not business debt. Therefore, the trial court did not err by assigning the debt to Husband separate from the debts of the business.

Conclusion

Because the trial court did not divide or otherwise exercise control over the assets or liabilities of Kansas City/River Market Produce, Inc., we find that the business was not required to have been made a party to the Wisdoms’ dissolution action. Accordingly, Husband’s point on appeal is denied, and the judgment of the trial court is affirmed.

LISA WHITE HARDWICK, Judge, and CYNTHIA L. MARTIN, Judge, concur.

      . We review the facts in the light most favorable to the judgment of dissolution. Coffman v. Coffman, 300 S.W.3d 267, 270 (Mo.App. W.D.2009).

      . Although the tax records indicated that Husband owned fifty-five percent of the business and that Ben owned forty-five percent, Wife’s expert, who testified at trial, staled:
      We have a tax theory known as the Rules of Attribution. I believe it's Section 318 of the Internal Revenue Code. Under the Rules of Attribution, stock ownership held by certain members of the family are attributed to one another.

      It was evident to me in my review of all of the documents and having seen hundreds of businesses, family businesses mostly. This is a family business and it is controlled by the patriarch of that family. From that experience that I have in looking at businesses, looking at family businesses, that alone suggested to me that I could and should attribute 100 percent of the stock ownership to Mr. Wisdom.
      The trial court apparently credited Wife's expert's analysis of the effective ownership and control of the corporation.

      . Although not addressed by the parties or by the trial court, we note that the corporate form may be disregarded to prevent injustice when the corporation is indistinct from the person that controls it. Comninellis, 99 S.W.3d at 514. Because of the extensive evidence that Husband comingled his personal finances with those of the business, the business might properly have been found to have been Husband’s alter ego and the corporate form thus disregarded for purposes of the litigation.

      . The effect is the functional equivalent of having awarded Husband 100% of the stock in, or ownership of, the corporation. See V.M. v. L.M., 526 S.W.2d 947, 952 (Mo.App. 1975).


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

text:
    J.C. BRYANT, III, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93270.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 3, 2010.

      Jo Ann Rotermund, St. Louis, MO, for appellant.
    Chris Koster, Daniel K. Jacob, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Judge.

Introduction

J.C. Bryant (Movant) appeals from the motion court’s judgment denying, without an evidentiary hearing, his amended motion under Rule 24.035 to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing. We affirm.

Background

In December 2005, Movant was indicted by a grand jury for assault of a law enforcement officer in the first degree, in violation of Section 565.081 (Count I); armed criminal action, in violation of Section 571.015 (Count II); and resisting arrest, in violation of Section 575.150 (Count III). Count I stated, as the basis of the indictment, that Elfonszo Hayes (Officer Hayes) was a law enforcement officer, and that Movant “knew [Officer Hayes] was a law enforcement officer and attempted to kill or to cause serious physical injury to him by trying to stab him with a large kitchen knife.”

On April 16, 2007, Movant pleaded guilty on all three counts. The State testified that it could prove the following beyond a reasonable doubt, as a basis for the plea.

[On September 29, 2005], police officers were dispatched over to [Movant’s] family’s home on Michigan. They were dispatched there because of a family disturbance .... Upon arrival, Officer Hayes and his partner, Officer Adams[,] tried to talk to [Movant].... At some point, [Movant] refused to leave the home at that point as the officers were suggesting. They decided to place him under arrest for a peace disturbance at that time. As they were going back, I believe to retrieve a coat or — -it was either a coat or shoes, something, so that they could take him out of the house, he broke away from the officers, making his way to the back of the home where the kitchen is. At that point, [Movant] was able to get into or closer to what was basically a walk-in pan try, covered type area. Officer Hayes, who is substantially bigger than — than—than [Movant] was able to pin him up against the wall. [Movant] was able to free a hand and grab from a large butcher block a knife approximately ... eight to ten inches in length and attempted to repeatedly stab Officer Hayes in such a manner that had he actually had contact, the knife was definitely sufficient to cause injury or internal damage such that Officer Hayes would have been seriously injured; possibly killed. At some point during this, Officer Hayes was trying to get [Movant] to cease resisting but once the knife came out and once those stabbing motions were in place, Officer Hayes felt he had no other option but to try and subdue [Movant] and he was shot one time through the shoulder.

The State then testified that Count I carried a prison sentence often years to thirty years or life; that Count II carried a prison sentence of three years to life; and that Count III carried a prison sentence of one day to one year. The State recommended concurrent terms of ten years incarceration in the Department of Corrections on Count I, three years on Count II, and six months on Count III.

Movant admitted to the truth of the State’s evidence during the following exchange with the trial court.

The Court: ... [Movant], did you hear the things that Mr. Minnegerode told us about the State’s evidence?
[Movant]: Yes, sir.
The Court: In general, are those things true?
[Movant]: Yes, sir.
The Court: Okay. Let’s look at some particulars. First of all, do you live at 6527 Michigan? Or did you at that time?
[Movant]: Yeah, I did at that time sir.
The Court: Okay. And the time we’re talking about, September 29th, 2000 and 5, is that right?
[Movant]: Yes, sir.
The Court: Okay. It looks like around 11:00 o’clock at night, did the police come to your home?
[Movant]: Yes, sir.
The Court: Did the police then have some conversation with you?
[Movant]: Yes, sir.
The Court: And at some point, did the police ask you to leave that home?
[Movant]: Yes, sir.
The Court: Did you tell the police that you were not going to leave; that you wanted to stay there?
[Movant]: Yes, sir.
The Court: And did the police then attempt to arrest you?
[Movant]: Yes, sir.
The Court: All right. When the police tried to start arresting you, did you run from them and go to another part of the house?
[Movant]: Yes, sir.
The Court: Okay. And as things unfolded from that point, did there turn out to be a struggle between you and one of the police officers who was trying to arrest you?
[Movant]: Yes, sir.
The Court: Did you grab a knife from the kitchen area where you were, at that point?
[Movant]: Yes, sir.
The Court: Did you use that knife to try to stab the police officer who was trying to arrest you?
[Movant]: Yes, sir.

Movant testified that his attorney had explained the ranges of punishment for the charges, and that he understood the ranges and the State’s recommendations. Movant stated he accepted the State’s recommendations. In response to questioning from the court, Movant confirmed that he had discussed with his attorney the option of continuing to trial, that he understood the trial rights he was waiving, that he was satisfied with his legal counsel, that he had not been threatened or promised anything to plead guilty, and that he was pleading guilty of his own free will with an understanding of the consequences. The court accepted Movant’s guilty plea.

Immediately following Movant’s April 16, 2007, guilty-plea hearing, the court sentenced Movant, in accordance with the plea agreement, to concurrent terms of ten years imprisonment on Count I, three years on Count II, and six months on Count III.

On October 11, 2007, Movant timely filed a pro se motion for post-conviction relief. Through appointed counsel, he filed an Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing (Amended Motion), in which he argued, as relevant for this appeal, that the trial court erred, first, in failing to inform Movant that the charge to which he was pleading guilty— assault of a law enforcement officer in the first degree — was a “dangerous felony,” as defined in Section 556.061, which required Movant to serve 85% of his sentence under Section 558.019.3. Second, Movant contended that the court erred in accepting Movant’s guilty plea for first-degree assault of a law enforcement officer without requiring the State to establish a factual basis for the plea. Specifically, Movant claimed the indictment filed against him did not state, nor did the court find during the plea hearing, that Movant “knowingly” attempted to cause serious physical injury to Hayes, which was a required part of the factual basis of the plea for Count I.

The court denied Movant’s request for an evidentiary hearing, determining, upon review of the case files and transcript, that Movant failed to allege facts warranting relief, not refuted by the record, which resulted in prejudice. In denying Mov-ant’s Amended Motion, the motion court concluded, first, that any failure to advise Movant of factors affecting parole eligibility did not render the guilty plea unintelligent or involuntary; parole is a collateral, not direct, consequence of a guilty plea, which the court was not required to discuss with Movant. Second, the court concluded that the record established a factual basis for the charge of first-degree assault of a law enforcement officer: namely, that Movant “attempt[ed] to kill or knowingly cause[d] or attempt[ed] to cause serious physical injury to a law enforcement officer.” Section 565.081. Specifically, the motion court determined that Movant, by admitting that he attempted to stab Officer Hayes, showed his actions were “knowing []•”

This appeal follows.

Standard of Review

Our review of the denial of a Rule 24.035 motion is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k); Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). This court will find error only if, after review of the entire record, we have a definite and firm belief that a mistake has been made. Weeks, 140 S.W.3d at 44. On review, the motion court’s findings and conclusions are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). After a guilty plea, our review is limited to a determination as to whether the underlying plea was knowing and voluntary. Loudermilk v. State, 973 S.W.2d 551, 553 (Mo.App. E.D.1998).

To warrant an evidentiary hearing, movant’s motion must meet three requirements: (1) it must contain facts, not conclusions, which if true would warrant relief; (2) the alleged facts must not be refuted by the record; and (3) the matters complained of must have resulted in prejudice to movant. Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). Where the guilty-plea proceedings directly refute that a movant’s plea was involuntary, then Movant is not entitled to an evidentiary hearing. Guynes v. State, 191 S.W.3d 80, 83 (Mo.App. E.D.2006); see also Rule 24.035(h) (where motion, files, and case records conclusively show that movant is not entitled to relief, evidentiary hearing is not required).

Discussion

Point I

In his first point on appeal, Movant argues the motion court clearly erred in denying his Amended Motion because no factual basis existed for Movant’s guilty plea, in that the indictment did not state, nor did the State establish, Movant “knowingly” attempted to kill or cause serious physical injury to Officer Hayes. We disagree.

Before accepting a guilty plea, the court must determine there is a factual basis for the plea. Rule 24.02(e); Wilder v. State, 301 S.W.3d 122, 130 (Mo.App. E.D.2010). A factual basis exists where the information or indictment clearly charges defendant with all elements of the offense, the nature of the charges are explained to defendant, and the defendant admits guilt. Id A trial court can determine the factual basis for a guilty plea from any facts included in the record before judgment. Huntley v. State, 204 S.W.3d 668, 674 (Mo.App. S.D.2006).

Movant’s argument that the failure to include “knowingly” in the indictment negated any factual basis for the charge, is unavailing. First, when a defendant challenges the sufficiency of an indictment for the first time following a guilty plea, the indictment will be held sufficient unless (1) it does not by any reasonable construction charge the offense to which defendant pleaded guilty, and (2) the defendant demonstrates actual prejudice as a result of the insufficiency. Brooks v. State, 242 S.W.3d 705, 709 (Mo. banc 2008); see also Section 545.030.1(18) (no indictment shall be deemed invalid for any defect which does not prejudice defendant’s substantial rights upon the merits); State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992) (applying our Statute of Jeofails, Section 545.030, omission of word “knowingly” from information was not fatal defect when it sufficiently charged defendant with offense of which he was convicted and defendant was not prejudiced by omission). Section 565.081.1 provides that “[a] person commits the crime of assault of a law enforcement officer in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.” Here, the indictment set forth that Movant “in violation of 565.081.1, RSMo, ... attempted to kill or to cause serious physical injury to [Officer Hayes] by trying to stab him with a large kitchen knife.” The indictment on its face sufficiently charged the offense, and, regardless, Movant has not demonstrated actual prejudice.

Second, the indictment language was not required to include the word “knowingly.” The Missouri Approved Charging Manual provides the following charging instruction for assault of a law enforcement officer in the first degree: “defendant knew [name of victim] was (a law enforcement officer) ..., and (knowingly caused) (attempted to kill or to cause) serious physical injury to him.” MACH-CR 19.32. Here, the indictment charged the second option, as specifically set forth in the Missouri Approved Charging Manual; and accordingly, the indictment charged Movant with all the elements of the offense. See Wilder, 301 S.W.3d at 130.

It is well settled that a person attempts to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards commission of the offense. Section 564.011.1; State v. Whalen, 49 S.W.3d 181, 186 (Mo. banc 2001). To act with purpose means that it is the actor’s conscious object to engage in certain conduct or to cause a certain result. Whalen, 49 S.W.3d at 186-87. Purpose is also defined as “specific intent.” Id. at 186. Thus, in the context of assault of a law enforcement officer in the first degree, conviction for attempt to Mil or to cause serious physical injuiy requires proof of specific intent. Id.

“The specific intent element is generally shown by circumstantial evidence, as it is not readily susceptible to proof by direct evidence.” State v. Mann, 129 S.W.3d 462, 466 (Mo.App. S.D.2004). “Intent may be inferred from surrounding facts, such as evidence of defendant’s conduct before the act, from the act itself, and from the defendant’s subsequent conduct, ... as well as ‘the type of weapon used, manner and circumstances under which it is used, results, and other relevant factors.’ ” Id. (citation omitted).

Here, there is no question that Movant attempted to evade arrest; that he ran from the police despite knowing their identity; or that while pinned against a wall by Officer Hayes, Movant grabbed an eight-to-ten-inch knife and repeatedly attempted to stab Officer Hayes. Given the natural consequences of stabbing at Officer Hayes with an eight-to-ten-inch knife, it is undeniable that Movant’s purpose — or specific intent — was to engage in conduct that could cause serious physical injury, and that his actions were a substantial step towards committing the offense. Wluden, 49 S.W.3d at 186; see also Section 564.011.1 (“substantial step” is conduct which corroborates actor’s intent to commit offense). While stabbing at Officer Hayes was enough on its own for a conviction for first-degree assault of a law enforcement officer, Movant’s flight from the officers moments after they attempted to place him under arrest, further bolsters Movant’s specific intent to Mil or cause serious physical injury to Officer Hayes. See Mann, 129 S.W.3d. at 467 (flight from police officers coupled with other factors demonstrated intent). Under these admitted facts, the motion court clearly did not err in inferring a factual basis for the charges.

Last, the motion court did not err in denying Movant an evidentiary hearing on this claim, because the facts he alleged were refuted by the record. Guynes, 191 S.W.3d at 83.

Point denied.

Point II

In his second point, Movant contends the motion court clearly erred in characterizing parole eligibility as a collateral, rather than direct, consequence of the plea; and thus clearly erred in failing to advise Movant that he was pleading guilty to a dangerous felony, obligating him to serve 85% of his prison term. Movant claims this failure to advise rendered his guilty plea unknowing, involuntary, and unintelligent. We disagree.

Movant’s argument that parole eligibility is a direct, rather than collateral consequence of his plea, is foreclosed by Reynolds v. State, 994 S.W.2d 944 (Mo. banc 1999). The Missouri Supreme Court in Reynolds held that “eligibility for parole is considered to be a collateral consequence of the plea; thus, information about eligibility for parole is not among those direct consequences about which a defendant must be informed in order for the plea to be entered voluntarily and intelligently.” Id. at 946. Thus, the motion court here was under no “affirmative obligation” to inform Movant of any parole consequences of his guilty plea. Id.; State v. Rowan, 165 S.W.3d 552, 555 (Mo.App. E.D.2005) (trial court has no obligation to inform defendant of collateral consequence of guilty plea).

Further, the Reynolds Court specifically noted that any restriction to parole eligibility, such as a requirement that the defendant serve a percentage of his sentence, is not a “mandatory minimum penalty” of which the court would be required to inform a defendant. Reynolds, 994 S.W.2d at 946. Rather, a “mandatory minimum penalty” refers to the low end of the range of punishment, not to any a specific percentage of the sentence that must be served before becoming eligible for parole. Id. Here, because Movant was advised of the range of punishment for his crimes, Rule 24.02’s requirement was satisfied. See Rule 24.02(b)(1) (before accepting guilty plea, court must inform defendant of mandatory minimum penalty provided by law); Reynolds, 994 S.W.2d at 946-47. Movant’s argument on appeal that the 85% requirement of Section 558.019.3 is a mandatory minimum penalty of which the motion court was obligated under Rule 24.02 to inform Movant, is unavailing. Thus, the motion court did not clearly err, either in neglecting to inform Movant of the 85% requirement, Weeks, 140 S.W.3d at 44; or in denying Movant an evidentia-ry hearing on this argument. Guynes, 191 S.W.3d at 83.

Point denied.

Conclusion

The judgment of the motion court is affirmed.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J., concur.

      . All rule references are to Mo. R.Crim. P.2010, unless otherwise indicated.

        . All statutory references are to RSMo 2004, unless otherwise indicated.

      . See also MAI-CR 3d 319.32 (assault of law enforcement officer in first degree requires that jury must find that defendant either "[1] attempted to (kill) (or) (cause serious physical injury to) ... [or][2] knowingly caused serious physical injury to ...” the law enforcement officer (emphasis added)).

      . To act with purpose, however, does not require that a defendant act with malice, or that the defendant specifically decided to injure each particular victim. State v. Whalen, 49 S.W.3d 181, 186-87 (Mo. banc 2001).


author: MARK D. PFEIFFER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth P. VARNELL, Appellant.
    No. WD 70957.
    Missouri Court of Appeals, Western District.
    July 6, 2010.
    As Modified Aug. 31, 2010.

      Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Daniel E. Hunt, Jefferson City, MO, for Appellant.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   MARK D. PFEIFFER, Presiding Judge.

Kenneth P. Varnell (“Varnell”) appeals the ruling of the Circuit Court of Cole County (“trial court”) denying Varnell’s Motion for Judgment of Acquittal. On appeal, Varnell argues that there was insufficient evidence to support his conviction. We affirm.

Factual and Procedural Background

On August 19, 2008, an overcast but dry day, Varnell was involved in a single-vehicle accident on Route D, in Cole County, Missouri. At 7:40 p.m., Deputy James Flessa (“Deputy Flessa”) of the Cole County Sheriffs Department was dispatched to the scene of the accident. Deputy Flessa arrived ten minutes after being dispatched and noted that an ambulance and fire trucks were already present, and firemen were working on extricating Var-nell from his mangled pickup truck.

Following extrication from the vehicle, emergency personnel strapped Varnell to a stretcher and began treating his severe head wounds. Deputy Flessa approached Varnell while personnel were attending to his medical needs, and the deputy detected a strong odor of alcohol coming from Var-nell’s person and noticed that his speech was slurred. Deputy Flessa questioned Varnell about whether he was alone in the vehicle and whether he had been drinking. Varnell responded that he had consumed two beers earlier in the evening and that no one else was in the vehicle. No alcohol containers were found in or near the vehicle. Because Varnell was injured and receiving medical treatment, the deputy did not perform field sobriety tests on Varnell.

In the ambulance, Deputy Flessa informed Varnell that, based on the deputy’s observations and conversation with him, Varnell was being placed under arrest for driving while intoxicated. Deputy Flessa asked Varnell to provide a blood sample, and Varnell consented. At the hospital, Varnell’s blood was drawn, and chemical tests were performed. The toxicology report indicated that Varnell’s ethyl alcohol concentration was .234%. The exact times at which Varnell was transported to the hospital, admitted into the hospital, and blood extracted for chemical tests did not come into evidence.

Around 10:00 p.m., while Varnell was at the hospital, Corporal M.A. Halford (“Corporal Halford”) arrived at the scene of the accident and spoke with Deputy Flessa. Corporal Halford examined the accident site and found only one set of scuff marks on the pavement. Based upon the evidence available at the accident scene, he determined that Varnell committed a lane violation and crashed into a culvert causing the vehicle to nose into the ground and roll multiple times. Ultimately, Corporal Hal-ford concluded that Varnell was involved in a one-vehicle accident.

The State charged Varnell with one count of driving while intoxicated, and because Varnell was guilty of two previous alcohol-related offenses, he qualified as a persistent DWI offender, pursuant to section 577.023 RSMo Cum.Supp.2007. As such, the State charged Varnell with committing one count of a Class D Felony DWI, section 577.010. Varnell did not put on any evidence but instead submitted a motion for entry of judgment of acquittal at the close of the State’s evidence. Rule 27.07(a). The trial court in this bench-tried case denied Varnell’s motion, found him guilty and sentenced him to two years at the Department of Corrections. However, the trial court suspended the execution of the sentence and placed Varnell on supervised probation. This timely appeal follows.

Standard of Review

In reviewing the sufficiency of the evidence in a court-tried criminal case, the same standard is applied as in a jury-tried case. Rule 27.01(b); State v. Niederstadt, 66 S.W.3d 12, 13 (Mo. banc 2002). The appellate court’s role is limited to determining whether the State presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty beyond a reasonable doubt. State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008). We accept as true all evidence and inferences favorable to the State while disregarding all contrary evidence and inferences. Id.

Legal Analysis

In his sole point on appeal, Varnell argues that because the State failed to establish the exact time at which his accident occurred and his blood was drawn, the evidence was insufficient to support a finding that, beyond a reasonable doubt, the appellant was intoxicated while driving.

“ ‘The offense of driving while intoxicated, section 577.010.1, requires proof of two elements: (1) that the defendant operated a motor vehicle, and (2) was intoxicated while doing so.’ ” State v. Ollison, 236 S.W.3d 66, 68 (Mo.App. W.D.2007) (quoting State v. Davis, 217 S.W.3d 358, 360 (Mo.App. W.D.2007)). In the instant case, Varnell does not dispute that the State’s evidence was sufficient to establish the first element of the offense: that he operated the vehicle that crashed into the culvert on Route D. However, Varnell argues that because the evidence did not establish precisely when the accident occurred or when his blood was drawn, the State failed to prove the second element: that Varnell was intoxicated at the time he operated his vehicle. “ ‘Proof of intoxication at the time of arrest, when remote from the operation of the vehicle, is insufficient in itself to prove intoxication at the time the person was driving.’ ” Id. (quoting Davis, 217 S.W.3d at 360). “In this remote circumstance, ‘[t]ime [is] an element of importance’ that the State must establish to meet its burden of proving that the defendant drove while intoxicated.” Davis, 217 S.W.3d at 360 (quoting State v. Dodson, 496 S.W.2d 272, 274 (Mo.App. W.D.1973)). “Remoteness,” as used in drunk driving cases, has two dimensions: remoteness in time from operating a vehicle, and remoteness in distance from the vehicle.

Because Varnell was trapped in his pickup, there existed no remoteness from the vehicle, and consequently, only remoteness in time is relevant to the instant case. When the defendant is arrested at a remote time from the operation of the vehicle, the State must show further evidence than a test that reveals the defendant is drunk at the time of arrest Dodson, 496 S.W.2d at 274. There are two rationales for this requirement, but both have the same foundation: the longer the interval between driving and testing, the less accurately the test reflects the state of the driver at the time of the arrest. Meyer v. Dir. of Revenue, 34 S.W.3d 230, 235 (Mo.App. E.D.2000) (overruled on other grounds by Verdoom v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003)).

The first reason that an extended interval between driving and testing can result in an inaccurate test is that the defendant may have had time to drink alcohol after driving.

The second rationale for requiring additional evidence is rooted in the nature of how alcohol is processed by the human body. Intoxication does not occur immediately upon the ingestion of alcohol. Davis, 217 S.W.3d at 361. Instead, alcohol must be absorbed into the bloodstream before it affects a person, and it can take thirty to ninety minutes before the maximum blood alcohol level is reached. Id.; 2 Donald H. Nichols & Flem K. Whited III, Drinking/Driving Litigation: Criminal and Civil §§ 14.3, 14.27 (1998). Consequently, it is theoretically possible for a driver who quickly ingests alcohol immediately prior to taking a short drive to be in a sober condition when driving, but, due to the process of absorption of alcohol into the bloodstream, to exceed the limit after-wards. Id.

In the instant case, Varnell does not articulate which theory is the basis for his appeal. However, neither theory, when applied to the facts of this case, undermines the State’s case to a sufficient level to reverse the conviction.

The limited timeline provided in the record consists of the following: (1) Deputy Flessa was dispatched to the scene at 7:40 p.m. on August 19, 2008; (2) Deputy Fles-sa arrived at the scene about ten minutes later when emergency personnel were already there; (3) Corporal Halford arrived at the scene and created an accident report around 10:00 p.m.; (4) at an undefined point between the times Deputy Flessa arrived and Corporal Halford arrived at the scene, Varnell was placed under arrest and transported to the hospital for wound treatment and blood alcohol concentration testing; and (5) the hospital’s examination of Varnell’s blood established that his ethyl alcohol concentration was .234% (i.e. almost three times the legal limit).

Varnell contends that the record is insufficient to create the timeline essential to a showing that his intoxication was contemporaneous with operating the vehicle. See Dodson, 496 S.W.2d at 274 (quoting State v. Creighton, 201 N.W.2d 471, 473 (Iowa 1972)) (articulating that “the fact a defendant was under the influence of an alcoholic beverage at the time of arrest, without a showing of more, will not support a finding that he was in that condition when driving a motor vehicle at some earlier time”).

Although the time periods when Varnell consumed alcohol and crashed his vehicle are not specifically defined, circumstantial evidence in this case provides the “showing of more” necessary to support Varnell’s conviction beyond a reasonable doubt, to-wit: (1) when emergency personnel arrived at the scene, Varnell was trapped in his vehicle and required assistance of emergency personnel to be extricated; (2) immediately after Varnell was extricated, law enforcement searched VarneU’s vehicle and found no evidence of alcohol containers; (3) Varnell admitted to drinking alcohol (i.e. two beers) prior to the accident; (4) the manner in which the accident occurred was consistent with the trial court’s conclusion that Varnell was intoxicated at the time of the crash; (5) Varnell appeared inebriated at the scene and smelled strongly of alcohol; (6) Varnell’s blood alcohol level was almost three times the legal limit; (7) the accident took place on a frequently traveled thoroughfare; and (8) Varnell was seriously injured in the crash, and his wounds were still bleeding when Deputy Flessa arrived.

As an initial matter, there is no support for the proposition that Varnell became intoxicated between the operation of the vehicle, Deputy’s Flessa observation of his intoxicated state, and his positive blood test. Varnell was trapped in his pickup truck and had to be extricated by emergency personnel. The uncontroverted testimony of Deputy Flessa was that there were no alcohol containers found in or near the vehicle. Furthermore, Varnell was in the presence of law enforcement or emergency personnel from the time he was removed from the vehicle until his blood was drawn. Consequently, Varnell did not have access to alcohol and could not have become intoxicated after he wrecked his vehicle. The facts demonstrate that the alcohol consumption, which led to Varnell’s displaying symptoms of intoxication to Deputy Flessa and Varnell’s positive blood test, occurred before he began driving.

However, the State must not only show that Varnell consumed alcohol before he drove, but that such consumption led to his blood alcohol level being over the legal limit when he was driving, not merely at the time of his arrest or subsequent blood test. As past cases have noted, when the blood test is administered at a time that is distant from the operation of the vehicle, there must be additional evidence to support a conviction. State v. Wilson, 273 S.W.3d 80, 82 (Mo.App. W.D.2008); Ollison, 236 S.W.3d at 68; Davis, 217 S.W.3d at 360.

In Wilson, the defendant and a passenger were involved in single-car accident. Id. at 81. A state trooper was dispatched to the scene, but Wilson had already been taken to the hospital when the trooper arrived. Id. The trooper followed Wilson to the hospital, interviewed him there, and eventually obtained Wilson’s permission to conduct a blood test. Id. Wilson’s blood alcohol concentration was .15%. Id. In finding that the State did not provide sufficient additional evidence to convict Wilson once the blood test evidence was demonstrated to be too remote in time, this Court noted:

A review of the evidence surprisingly shows only that Wilson drove a vehicle, was involved in an accident, and was intoxicated at the hospital sometime during a 24-hour period on December 17, 2006. There is no testimony as to when the accident occurred. There is no testimony as to when the trooper arrived at the scene. There is no testimony as to when the trooper arrived at the hospital, what time he observed the defendant who was undergoing treatment, or what time the blood sample was drawn. The State elicited none of this information from the trooper. The State did not call the paramedics who took Wilson to the hospital to establish any time parameters or his condition at the scene. The State did not call any hospital workers either.

Id. at 82.

The facts of the present case are clearly distinguishable and provide sufficient additional evidence from which a trier of fact could have reasonably found Varnell guilty beyond a reasonable doubt.

When determining whether the State provided sufficient evidence, apart from the blood test, to show that Varnell drove while intoxicated, we note that the required additional evidence need not be direct evidence; rather, “ ‘circumstantial evidence can supply the “driving” and “while” elements when driving is not observed.’ ” State v. Neal, 979 S.W.2d 223, 225 (Mo.App. S.D.1998) (quoting Wilcox v. Dir. of Revenue, 842 S.W.2d 240, 242-43 (Mo.App. W.D.1992)).

In the present case, the details provided regarding the manner of the accident distinguish our facts from Wilson and support the inference that Varnell was intoxicated when driving. The undisputed testimony of Corporal Halford was that Varnell committed an unnecessary lane-change violation, crossed Route D, and crashed into a culvert on the opposite side of the road. The absence of any skid marks or scuff marks other than Varnell’s vehicle confirmed that Varnell’s truck was the only vehicle involved in the accident. The single-vehicle accident occurred on a dry road with daylight still remaining. In addition, Varnell admitted to the deputy that he had been drinking prior to the accident. We note that the manner of a crash does not, on its own, provide sufficient evidence to support a conviction. However, the circumstances of an accident, when coupled with other supporting evidence and interpreted in the light most favorable to the judgment, can provide additional competent evidence of drunk driving. See Morris v. Dep’t of Revenue, 800 S.W.2d 806, 808 (Mo.App. E.D.1990) (“Although her behavior arguably could be attributed to a severe head injury sustained during the accident, the noticeable odor of intoxicants as well as the type of one-car accident in which Morris had been involved were further indicia that she had been driving while intoxicated.”) (emphasis added). By admitting to alcohol use after veering off a dry road into a culvert, with no external factors present to explain the crash, Varnell provided the court with substantial circumstantial evidence to support a conviction.

Furthermore, “a brief lapse of time between a defendant’s driving and being seen in an intoxicated condition requires less exacting evidence of the defendant’s intoxication.” State v. Davis, 226 S.W.3d 927, 929 (Mo.App. W.D.2007). An interval of less than thirty minutes between when the defendant was seen driving and when he was observed to be intoxicated has been found to be sufficiently brief. Id. The circumstances of this case support the conclusion, beyond a reasonable doubt, that the interval of time between the defendant’s accident and arrest was relatively brief.

The defendant’s accident occurred on Route D just outside Jefferson City. The uncontroverted evidence was that this is a frequently traveled thoroughfare, and the defendant’s vehicle was overturned, in obvious distress, on the side of the road. Consequently, the likelihood of the defendant being trapped inside his vehicle for an extended period of time without aid being called was minimal. This inference is supported by the fact that the defendant suffered substantial injuries in the accident. When emergency personnel arrived the bleeding had not clotted; but instead, Varnell was still bleeding profusely. Whether a defendant is still bleeding can be a factor in determining how long ago the accident occurred. Davis, 217 S.W.3d at 361. However, despite this significant and ongoing blood loss, Varnell was conscious and responsive when they extricated him from the wreck. Deputy Flessa was able to testify at trial to Varnell’s condition on removal from the wreck because, unlike the trooper in Wilson, he arrived ten minutes after dispatch notified him of the accident, while emergency personnel were still removing Varnell from the wreck.

Consequently, unlike the facts in Wilson, in this case there is substantial evidence to support the inference that the interval between the accident and the deputy’s arrival was limited in duration. Also in contrast to Wilson, upon arrival, the deputy noted that Varnell smelled of alcohol and that his speech was slurred. The deputy concluded that Varnell was intoxicated. The observations of law enforcement personnel can be sufficient to support a finding of intoxication. State v. Davison, 668 S.W.2d 252, 253-54 (Mo.App. S.D.1984). In addition, Varnell admitted at the scene that he had been drinking, providing further support for the deputy’s observations and the trial court’s verdict. Consequently, because the State was able to establish evidence that supported a finding that the accident was not remote in time from the observation of Deputy Fles-sa, the facts of this case are distinguished from Wilson and the totality of the circumstantial evidence was sufficient to support the trial court’s finding that Varnell was intoxicated when operating his vehicle.

While not necessary to our ruling today, we also note that Varnell’s blood alcohol level, when taken at the hospital, was found to be almost three times the legal limit — .234%. Despite the fact that the specific time of the blood draw was not entered into evidence, Varnell’s highly elevated blood alcohol level constitutes additional competent evidence of Varnell’s intoxication at the time of operation of the vehicle.

As noted earlier, the accepted finding that alcohol’s effects do not reach their maximum potency until thirty to ninety minutes after it is consumed means that Missouri courts typically require the State to establish the time that has elapsed between when the defendant drove and when the test was administered. Davis, 217 S.W.3d at 361. However, the delayed effects of alcohol only are delayed as to the maximum potency. The Davis court cited to Drinking/Driving Litigation: Criminal and Civil to establish that maximum intoxication does not occur until thirty to ninety minutes after a final drink. 2 Donald H. Nichols & Flem K. Whited III, Drinking/Driving Litigation: Criminal and Civil §§ 14.3, 14.27 (1998). The same source notes that while maximum absorption on average does not occur until the thirty- to ninety-minute window, absorption begins soon after the alcohol is consumed. Id. at 14-28 fig.' 14-7.

In other words, the thirty- to ninety-minute window is not a dividing line between when an individual is affected by alcohol consumption and when the individual is sober. Instead, maximum blood alcohol is a single point on an intoxication continuum that does not occur immediately after alcohol consumption. However, the higher the blood alcohol level on this continuum is when tested, the more likely that a defendant was impaired earlier, even thirty to ninety minutes earlier. Consequently, in cases such as this one, where the defendant’s blood alcohol level was almost three times the legal limit, and he was at a temporal and geographical distance from a source of alcohol, it strains credulity to suggest that he was not intoxicated at the time of driving.

The State is not required to disprove every possible theory under which a defendant could be innocent, but instead must present sufficient evidence from which a trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Johnson, 244 S.W.3d at 152. The State did so in this case.

The judgment of the trial court is affirmed.

VICTOR C. HOWARD and ALOK AHUJA, Judge, concur.

      . "We consider the evidence and inferences in the light most favorable to the verdict, ignoring all contrary evidence and inferenees." State v. Ollison, 236 S.W.3d 66, 68 (Mo.App. W.D.2007).

      . All citations are to RSMo 2000 unless otherwise indicated.

      . This "admission” is, of course, in the context of a blood alcohol concentration test by the hospital within hours of the wreck in which the result of the test was a .234% blood alcohol concentration level.

      . We recognize that Varnell’s head injury provides a possible explanation of his slurred speech. However, in the instant case, there is no evidence on the record that the type of head injury Varnell suffered would lead to this symptom. Furthermore, the inference that Varnell's slurred speech was a result of excessive alcohol consumption is consistent with and supports the other evidence on the record. Morris, 800 S.W.2d at 808. Consequently, in this case, when examined in the light most favorable to the judgment, Var-nell's slurred speech is probative evidence supporting the verdict.