author: PRICE, Chief Justice.

text:
    STATE ex rel. DIRECTOR OF REVENUE, STATE OF MISSOURI, Relator, v. The Honorable Gary M. GAERTNER, Jr., Judge, Circuit Court of St. Louis County, Div. 6, 21st Judicial Circuit, Respondent.

    No. SC 82436.
    Supreme Court of Missouri, En Banc.
    Dec. 5, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James Chenault, III, Sp. Asst. Atty. Gen., Jefferson City, Mo. Dept, of Revenue, for Relator.
    Kerry Aileen Simpson, David O. Danis, St. Louis, for Respondent.

      . We have substituted the Honorable Gary M. Gaertner, Jr., newly appointed Judge of Division 6 of the 21st Judicial Circuit, St. Louis County, as party respondent for the Honorable George W. Draper, who previously presided over this case. See Wenzel v. Holland-America Insurance Company Trust, 13 S.W.3d 643, 644 n. 2 (Mo. banc 2000); Rule 52.13(d).

   ORIGINAL PROCEEDING IN PROHIBITION.

PRICE, Chief Justice.

The Director of Revenue seeks a writ of prohibition to prevent the Circuit Court of St. Louis County from reviewing a driver’s license revocation. The Director contends that the Circuit Court of St. Louis County lacks subject matter jurisdiction to review a driver’s license revocation that arose when a driver refused to submit to a chemical test to determine blood alcohol content after being arrested in the City of St. Louis. Because the driver in such cases must petition for review in the county of his arrest, we make our preliminary writ of prohibition absolute and order transfer.

I. Facts

On September 2, 1999, law enforcement officers arrested Daniel Barnes for driving while intoxicated in the City of St. Louis, Missouri. The Director of Revenue subsequently issued Barnes a notice of revocation for refusing to submit to a chemical test to determine his blood alcohol content. On September 13, 1999, Barnes filed a “Petition to Review Revocation” in the Circuit Court of St. Louis County, the county in which he resides.

The Director filed a motion to dismiss the petition, asserting that the Circuit Court of St. Louis County lacked subject matter jurisdiction under section 577.041.4, RSMo Supp.1999. The Director argued that the statute required the driver to file his petition in the Circuit Court of the City of St. Louis, the county in which he was arrested. The court denied the Director’s motion on February 25, 2000. The Director then filed a petition for writ of prohibition in the court of appeals, which denied the writ on March 9, 2000. This petition followed.

II. Discussion

A.

“[Pjrohibition will lie only where necessary to prevent a usurpation of judicial power, to remedy an excess of jurisdiction, or to prevent an absolute irreparable harm to a party.” State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998).

B.

The Director argues that the Circuit Court of St. Louis County exceeded its jurisdiction when it set the underlying cause for trial. He contends that any suit to review the revocation of a person’s driver’s license because that person refused to submit to a chemical test is restricted to the circuit court of the county “in which the arrest or stop occurred.” The Director relies on section 577.041.4, RSMo Supp.1999, which states, in relevant part:

If a person’s license has been revoked because of the person’s refusal to submit to a chemical test, such person may petition for a hearing before a circuit court or associate circuit court [sic] in the county in which the arrest or stop occurred.

Section 577.041.4, RSMo Supp.1999.

The Respondent, citing the legislature’s use of the word “may,” argues that the language of section 577.041.4 is permissive. He further argues that section 577.041.4 should be read in pari materia with section 302.311, RSMo 1994, which states, in relevant part:

In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence....

Section 302.311, RSMo 1994. The Respondent contends that he is allowed to choose to bring his action either in the county in which the arrest occurred pursuant to section 577.041.4 or in the county of his residence consistent with section 302.311.

C.

The Respondent’s argument fails for two reasons. First, he misapplies the doctrine of in pari materia when he attempts to use it to graft the venue provision of section 302.311 onto section 577.041.4. “In pari materia” means “upon the same matter or subject.” Black’s Law Dictionary 791 (6th ed.1990). The doctrine requires that statutes relating to the same subject matter be construed together even though the statutes are found in different chapters and were enacted at different times. Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo. banc 1990). However, “[w]here one statute deáls with a subject in general terms and another deals with the same subject in a more minute way, the two should be harmonized if possible, but to the extent of any repugnancy between them the definite prevails over the general.” Id. (quoting State ex rel. Fort Zumwalt School Dist. v. Dickherber, 576 S.W.2d 532, 536-37 (Mo. banc 1979)). Though the statutory sections at issue deal with the same general subject, they are repugnant to the extent that each specifies a different- venue. Because section 577.041.4 specifically addresses “refusal” revocation cases, it must prevail over the general review statute.

The Respondent’s argument also fails when viewed in light of the 1991 amendments to section 577.041. Before amendment, section 577.041 allowed a driver to file for review in the county of his residence.

If a person’s license has been revoked because of his refusal to submit to a chemical test, he may request a hearing before a court of record in the county in which he resides or in the county in which the arrest occurred.

Section 577.041.2, RSMo Supp.1990. However, in amending the statute, the legislature deleted the language allowing the driver to request a hearing “in the county in which he resides.” Compare id. with section 577.041.4, RSMo Supp.1999. “When the legislature has altered an existing statute such change is deemed to have an intended effect, and the legislature will not be charged with having done a meaningless act.” Woolbright v. Director of Revenue, 891 S.W.2d 860, 863 n. 6 (Mo.App.1995) (citing State v. Sweeney, 701 S.W.2d 420, 423 (Mo.banc 1985)). The language of section 577.041.4 is permissive only to the extent that it allows the driver to choose whether to file a petition for review of revocation. The statute does not permit the driver to file his petition outside of “the county in which the arrest or stop occurred.” Section 577.041.4, RSMo Supp. 1999.

D.

The Respondent further argues that the Director is estopped from challenging the circuit court’s jurisdiction because the notice of revocation referenced both section 577.041 and section 302.311. Without specifically addressing whether jurisdiction may be conferred by estoppel in such cases, we find that the actions of the Director were insufficient as a factual matter to raise that issue. The notice stated:

Pursuant to Sections 302.311 and 577.041, RSMo, if you wish to contest the revocation of your privilege to drive, you must petition for a hearing before the Circuit or Associate Circuit Court in the county where the arrest/stop occurred. A petition for review must be filed within 30 days from the date this notice is issued (See date notice issued above).

Clearly, this notice informs the driver that he must petition for review in “the Circuit or Associate Circuit Court [sic] in the county where the arrest/stop occurred.” Though the Respondent contends that the citation to section 302.311 is confusing, we find that the citation is pertinent to the time limitation set out in the second sentence of the notice of revocation. As we stated in Romans, “[T]he thirty-day time limit of Section 302.311 applies to revocations under Section 577.041.” Romans, 783 S.W.2d at 896.

E.

Having determined that Barnes filed his petition in the wrong county, we must next decide upon an appropriate disposition for this appeal. In Collins & Associates Dietary Consultants, Inc. v. Labor and Indus. Relations Comm’n, 12A S.W.2d 243 (Mo. banc 1987), we held that a court which is not statutorily vested with review authority does not have subject matter jurisdiction.

Where a statute places the authority to judicially review’ an administrative decision in the circuit court of a particular county, a question of subject matter jurisdiction rather than venue is involved .... The only recourse of a court which lacks subject matter jurisdiction of a cause is dismissal of the cause.

Collins, 724 S.W.2d at 244-45.

Subsequent to Collins, the legislature enacted section 476.410, which provides that “[t]he division of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought.” Section 476.410, RSMo 1994. This new section appears to grant a limited jurisdiction to the circuit court to transfer any case filed in an improper venue to any circuit court otherwise designated by the legislature to hear the particular matter. Accordingly, the Circuit Court of St. Louis County is vested with jurisdiction only to transfer this case to the Circuit Court of the City of St. Louis.

III. Conclusion

We make our preliminary writ of prohibition absolute and order the Circuit Court of St. Louis County to transfer this case to the Circuit Court of the City of St. Louis consistent with section 476.410, RSMo 1994.

All concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    James E. MAST, Jr., and Estate of Shirley Mast by James Mast as Personal Representative, Appellants, v. SURGICAL SERVICES OF SEDALIA, L.L.C., Dr. Stuart J. Braverman, M.D ., Sedalia Internal Medicine Specialists, P.C., David H. Wuellner, M.D. and City of Sedalia d/b/a Bothwell Regional Health Center, Respondents.
    No. WD 58136.
    Missouri Court of Appeals, Western District.
    Submitted Aug. 16, 2000.
    Nov. 28, 2000.
    Connie J. Clark, Osage Beach, for appellant.
    D. Bruce Keplinger, Overland Park, KS, for respondents Surgical Sendees and Dr. Braverman.
    John L. Roark, Columbia, for respondents Sedalia Internal Medicine Specialists and Dr. Wuellner.
    Ralph M. Humphreys, Jefferson City, for respondent City of Sedalia.
    Before HOLLIGER, P.J., BRECKENRIDGE and SMART, JJ.
   ORDER

PER CURIAM:

James E. Mast, Jr., appeals a judgment entered in favor of the City of Sedalia in a medical negligence action he brought against the City.

For the reasons discussed in the memorandum provided to the parties, the judgment of the trial court is affirmed. Rule 84.16(b). Respondent’s motion for sanctions is denied.


author: ROBERT S. BARNEY, Chief Judge.

text:
    Jess SMITH, Respondent, v. RICHARDSON BROTHERS ROOFING and Hartford Insurance Company, Appellants.
    No. 23460.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 18, 2000.
    Motion for Rehearing or Transfer Denied Oct. 6, 2000.

      Edward M. Vokoun, Evans & Dixon, L.L.C., St. Louis, for appellant.
    Rudy L. Veit, Darin J. Patterson, Carson <& Coil, P.C., Jefferson City, for respondent.
   ROBERT S. BARNEY, Chief Judge.

Jess W. Smith (“Claimant”) was injured at work when several drums or “sticks” of asphalt, weighing ninety two pounds each, fell off a pallet striking him across the back and knocking him down. The Administrative Law Judge (“ALJ”) who heard the case determined that as a result of his accident Claimant was permanently and totally disabled. Accordingly, the ALJ awarded compensation and, inter alia, awarded past and future medical benefits. The Labor and Industrial Relations Commission (“Commission”) affirmed and incorporated the award issued by the ALJ. Appellants, Richardson Bros. Roofing, the employer of Claimant, and Hartford Accident Indemnity Company, insurer for Richardson Bros. Roofing, now appeal the Commission’s decision, raising three major points of error, discussed below. We affirm.

“The fundamental purpose of the Workers’ Compensation Law is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment.” Cochran v. Industrial Fuels & Res., 995 S.W.2d 489, 492 (Mo.App.1999). “The law is to be broadly and liberally interpreted, extending its benefits to the largest possible class. Questions as to the right of an employee to compensation are resolved in favor of the employee.” Id.

The Commission “is charged not only with reviewing the record but, when appropriate, determining the credibility of witnesses and the weight to be given their testimony, resolving any conflicts in the evidence, and reaching its own conclusions independently of the ALJ’s findings.” Id. Where the Commission “attaches and incorporates the ALJ’s award and decision, this court considers the findings and conclusions of the Commission as including the ALJ’s award.” Id.

In our review of an appeal of a workers’ compensation claim, this Court engages in a two-step process. Id. at 494. First, we “examine the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award.” Cochran, 995 S.W.2d at 494. If it does not, then the Commission’s award must be reversed. Id. However, if there is competent and substantial evidence supporting the award, the court moves to the second step, where we view the evidence in the light most favorable to the award. Id. In doing so, we consider all the evidence in the record, including that which opposes or is unfavorable to the award and take into account the overall effect of all of the evidence and determine whether the award is against the overwhelming weight of the evidence. Id.; see Avery v. City of Columbia, 966 S.W.2d 315, 319-20 (Mo.App.1998).

We initially review Appellants’ Point Two, which asserts that the Commission erred in dismissing Appellants’ Amended Application for Review as untimely. While Appellants filed their Application for Review within twenty days of the ALJ’s award, they attempted to file an Amended Application for Review thirty-seven days after the ALJ’s award. We must decide whether the law in Missouri permits amendment of an Application for Review once twenty days have elapsed after the ALJ’s award.

The ALJ made his Award on February 9, 1999, finding Claimant permanently and totally disabled. Appellants filed their Application for Review on March 1, 1999, and — following Claimant’s response to the allegations — filed their Amended Application for Review on March 19, 1999. The amendment added claims of error not contained in the original application. The Commission cited section 287.480, RSMo Cum.Supp.1998, in holding that “[a]ny amendments to Applications for Review must be filed within the statutory 20 day time limit,” and dismissed the Amended Application for Review. Appellants contend that the Commission erred as a matter of law in dismissing their Amended Application- for Review because they fully complied with the procedure for appealing from a final award by an ALJ, as outlined in 8 CSR 20-3.030. Appellants also cite to section 287.480 in support of their argument. Section 287.480.1 states, in pertinent part: “[i]f an application for review is made to the commission within twenty days from the date of the [ALJ’s] award, the full commission ... shall review the evidence ... and shall make an award.... ” They asseverate that both the Workers’ Compensation Act and the Commission rules are silent with regard to a time period for amending an Application for Review. Therefore, they contend that since the original Application was timely filed, any amendments to the original filing should have been reviewed by the Commission. We disagree.

In Morris v. Christian Bd. of Publ’n, 943 S.W.2d 249 (Mo.App.1997), employee Morris filed his timely Application for Review and then sought to amend it by inter-lineation following a motion to dismiss filed by another party. Id. The attempt to amend came more than 20 days after the ALJ’s award; the Commission refused to accept the amendment; the motion to dismiss was sustained; and the Eastern District of this Court affirmed. Id.

In Smith v. Smiley Container Corp., 997 S.W.2d 126 (Mo.App.1999), it was the employer that sought to amend its Applieation for Review. This Court noted the twenty day time limit imposed by section 287.480 and followed Moms in holding that the “Commission had no statutory authority to grant Employer leave to amend its application for review once twenty days elapsed after the [ALJ’s] award.” Id. at 131.

Despite Appellants’ entreaties that we reconsider our holding in Smith, supra, we decline to do so. From our plain reading of section 287.480 and 8 CSR 20-3.030(1) and (3), we conclude that multiple applications for review or amendments to such applications outside of the twenty day time limit are not permitted. To hold otherwise would open the door to limitless amendments for an indeterminable period of time, a result that is contrary to the expeditious settlement of workers’, compensation claims. Point denied.

We now turn to Appellants’ Point One. In consonance with their original Application for Review, Appellants generally assert that the Commission’s decision — affirming the ALJ’s award finding Claimant permanently and totally disabled from the date of his injury — was not supported by substantial and competent evidence, and was contrary to the overwhelming weight of the evidence and contrary to law. Appellants argue that certain physicians based their assessments of Claimant’s disability primarily upon his subjective complaints of pain, which were described as inconsistent with the clinical findings and periodically inappropriate in degree.

However, Appellants also seek to use their Point One to improperly expand their allegations of Commission error beyond those set out in their original Application for Review. They additionally contend:

1. That the Commission “Failed to Apply The Correct Standard of Review By Not Assessing Whether There Was Competent, Substantial Evidence Which Proved That [Claimant’s] Injuries And Resulting Disability Were So Severe That Employers Would Not Reasonably Consider Him For Any Employment Under § 287.020.7 ...; Failed To Consider Whether An Employer Would Reasonably Consider The Claimant For Hire In Any Type Of Employment Given His Age, Education, Past Industrial Skills, Physical Condition, And Injury; And Also Failed To Consider What Affect Claimant’s Unavailability Due To Imprisonment Had On His Employability.”
2. That the Commission improperly affirmed the ALJ’s award “where the Claimant failed to produce any vocational evidence that he was not employable except due to his criminal record and imprisonment.”

As noted in our discussion of the previous point of error, we need not and will not review these expanded allegations of Commission error not specifically brought before the Commission in Appellants’ original Application for Review. See supra. Accordingly, issues not raised before the Commission will not be considered on appeal to this Court. See Erickson v. Aaron’s Auto. Prods., Inc., 967 S.W.2d 661, 664 (Mo.App.1998); see also Duncan v. Springfield R-12 Sch. Dist., 897 S.W.2d 108, 115 (Mo.App.1995); Cahall v. Riddle Trucking, Inc., 956 S.W.2d 315, 321 (Mo.App.1997). We determine, nevertheless, that the Commission’s final award was supported by substantial and competent evidence and was not against the overwhelming weight of the evidence. See Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo.App.1995).

“Under Missouri law, a Workers’ Compensation claimant alleging permanent disability must adduce medical evidence demonstrating with reasonable certainty that the disability is in fact permanent.” Cochran, 995 S.W.2d at 497. “ ‘There is nothing talismanic about the phrase ‘reasonable certainty.’ The words a medical expert uses when testifying are important, not in themselves, but as a reflection of any doubts [one] may have about the permanence of the injury.’” /¿(quoting P.M. v. Metromedia Steakhouses Co., 931 S.W.2d 846, 849 (Mo.App.1996)). “Total disability means the inability to return to any reasonable employment.” Id. “It does not require that the claimant be completely inactive or inert.” Id. “The determination of whether [Claimant] was totally and permanently disabled was a question of fact for the Commission.” Id. “The Commission does not have to make its decision only upon testimony from physicians, it can make its findings from the entire evidence.” Cochran, 995 S.W.2d at 497.

We initially observe that Claimant testified that he had a ninth grade education but had not completed his GED. He stated that he could not score high enough on a preliminary exam to qualify for taking the GED exam. Further, he was 40 years old at the time of the hearing. He related that he was unable to sit in one position for any length of time and spent significant amounts of time lying down but changed positions often. He related that the pain interfered with his ability to concentrate and think and he felt he was unable to be employed in any occupation given his physical condition.

Additionally, we note Claimant’s long and detailed history of both in-depth and cursory medical treatments by numerous physicians, commencing with an emergency room treatment at St. John’s Regional Medical Center on November 16,1992, and continuing for at least five years.

An MRI performed shortly after the accident demonstrated a “herniated nucleus pulposus at L4-L5 with an extruded fragment.” Noting the failed conservative treatment of Claimant, Dr. Edward Cola-pinto, a neurosurgeon, performed surgery on April 19, 1993, and removed the disc herniation. Dr. Colapinto testified that Claimant “has chronic pain related to the injury that has rendered him disabled.” He further related that “[t]he muscles on either side of his lower spine were in spasm so that, when one feels them with your hand, they’re kind of stony hard because they’re just in — they’re in spasm. And so I felt this reflected, you know, considerable pain that he was enduring.” Dr. Colapinto also opined that Claimant had absence of knee jerk reflex, and very likely nerve damage injury to the L4 nerve root and that “the knee jerk reflex is absent means that there has been an injury to the nerve root.” Dr. Colapinto further opined that “it seems unlikely [Claimant is] going to get much better, and he’s probably going to need, you know, ongoing medical attention to deal with the pain.” Dr. Colapinto also related that Claimant “was precluded from working by his injury.”

Dr. David Scherr, an orthopedic surgeon with 37 years experience in his field, testified that Claimant’s symptoms seem to have been caused directly by the injury which ruptured his L4/5 disc on the left. He related that due to the surgical procedure the persistence of Claimant’s symptoms is probably due in large part to scarring. He related that scarring could constrict the nerves or squeeze the nerves in a similar manner as can two pieces of bone or a ruptured disc. He stated that if a nerve is squeezed, then its function is compromised; that is, the ability of that nerve to transmit impulses from the brain down to the muscles to make them move is compromised. Further, Dr. Scherr stated that a squeezed nerve often causes pain when there is no other cause for the pain coming into that nerve so that the victim of the squeezed nerve may have pain that would not be occurring if the nerves were not squeezed. Although he observed that the findings in certain tests may suggest an element of malingering, Dr. Scherr, nevertheless, opined that “the presence of extensive scar formation post-operatively demonstrated on two MRIs makes it probable that he, indeed, has disabling lumbar pain most of the time and left sciatica at least intermittently. These symptoms will be permanent.” Dr. Scherr also acknowledged evaluating people for working purposes throughout his career, including evaluations performed for Workers’ Compensation and for Social Security. He then noted his opinion in a previous report: “I therefore believe that [Claimant] is permanently and totally disabled for gainful employ”; and stated “I continue to believe that.”

While Dr. Ted Lennard determined Claimant had impairment of 20% of his body as a whole, he, nevertheless, observed that Claimant’s “functional limitations would include avoiding prolonged and repetitive bending, lifting greater than 20 lbs from the floor to the waist and the waist above the head, and walking greater than one block without a chance to rest. He will also need to change body positions at leisure.”

Dr. David White testified that Claimant had an ongoing problem of chronic pain syndrome from his back, and that in turn caused gastral problems which were a side-effect of the medication for his pain. And, Dr. George Lathrop’s diagnosis was that Claimant’s “fundamental condition is that of status post laminectomy with dis-cectomy with poor surgical results.”

In our review of the foregoing evidence, we have kept in mind that the “Commission is the sole judge of the credibility of the witnesses.” Reese v. Gary & Roger Link, Inc., 5 S.W.Sd 522, 525 (Mo.App.1999). “Additionally, the Commission has sole discretion to determine the weight given to expert opinions.” Id. “[T]he extent and percent of disability is a finding of fact within the Commission’s discretion and the Commission is not bound by the expert’s exact percentages.” Jones v. Jefferson City Sch. Dist., 801 S.W.2d 486, 490 (Mo.App.1990). “The Commission is free to find a disability rating higher or lower than that expressed in medical testimony.” Id. Hence, “‘when medical theories conflict, deciding which to accept is an issue peculiarly for determination of the Labor and Industrial Relations Commission.’ ” Grimes v. GAB Bus. Servs., Inc., 988 S.W.2d 686, 641 (Mo.App.1999)(quoting Hawkins v. Emerson Elec. Co., 676 S.W.2d 872, 877 (Mo.App.1984)).

“ ‘Decisions concerning the weight to be given expert opinions lie within the Commission’s sole discretion and cannot be reviewed by this court.’ ” Cochran, 995 S.W.2d at 494(quoting Avery, 966 S.W.2d at 320). “The Commission, as fact finder, has discretion to determine an expert’s qualifications to testify on specific matters.” Id. “It is within the province of the Commission to determine what weight it will accord expert testimony on medical causation.” Id.

Reiterating, we are unable to conclude that the portion of the award finding Claimant permanently and totally disabled was against the overwhelming weight of the evidence. Since it was also supported by sufficient, competent and credible evidence we affirm the Commission’s findings. Davis, 903 S.W.2d at 574. Point One is denied.

In Appellants’ Point Three, they challenge the Commission’s finding affirming the award of the AL J in his determination that Claimant’s weekly compensation rate was $449.80, based on an average weekly wage of $875.35. They assert that Claimant was engaged only in “seasonal” employment and that the rate of compensation is based upon the “hourly wage times 200 divided by 52 weeks pursuant to section 287.250(5), RSMo 1991.” This allegation of error was not timely raised in Appellants’ Application for Review and need not be reviewed by this Court. However, we have gratuitously exercised our right of review of Appellants’ point and find no manifest injustice or miscarriage of justice has resulted from the Commission’s findings. Rule 84.13(c), Missouri Court Rules (2000); see Decker v. National Accounts Payable Auditors, 993 S.W.2d 518, 522 (Mo.App.1999).

In our review, we first note that “a claimant has the burden of proving all of the material elements of the claim, and that includes sufficient proof for the Commission to determine the proper compensation rate.” Sanders v. St. Clair Corp., 943 S.W.2d 12, 18 (Mo.App.1997). Here, Claimant testified that he had been working for Richardson Bros. Roofing “[g]oing on just about two years I believe.” On cross-examination, he acknowledged that he worked “seventy to eighty hours every week for Mr. Richardson.” He also acknowledged that he worked for his employer for “Fifty weeks out of the year.” Claimant stated his rate of pay was $10.51 an hour. He also related that he worked overtime and “got a lot of comp checks too.” To the question, “But then after a while [the work] became seasonal?” he answered, “Not really. We pretty well worked - [The employer] got jobs in - out of the states where we could be working.” In response to the question, “Well, you can’t do roofing work when there’s snow or ice or rain outside, can you?” Claimant responded, “Yes.” He explained, “They had what they called goats, billy goats, that blow the snow off and dry it and you can lay it anyway.” He also related that even in the event of “ice on top” of the roof, “[y]ou can dry it and do it - lay it anyway” provided the ice was not falling from the sky.

Mr. Mahlon Richardson, Claimant’s employer’s representative, testified that Claimant was being paid about “Ten dollars per hour” and in response to the question, “And how many hours a week did he work?,” he answered, “Forty and then some.” (Emphasis added). In further testimony, Mr. Richardson acknowledged that he paid his workers overtime and that they “[m]ost usually,” worked between 50 to 60 hours a week on the job on which Claimant was injured.

“This court defers to the commission on issues involving credibility of witnesses and the weight given to their testimony.” Decker, 993 S.W.2d at 523. “On such questions, the reviewing court may not substitute its judgment on the evidence for that of the Commission.” Sanders, 943 S.W.2d at 16. Thus “[i]nquiry on questions of fact is limited to a determination of whether the commission could have reasonably reached the result it did.” Decker, 993 S.W.2d at 523. Adhering to these standards, we conclude that the Commission’s findings were not clearly contrary to the overwhelming weight of the evidence, were supported by substantial and competent evidence and, in either event, did not rise to the level of manifest injustice or miscarriage of justice. See id.; Sanders, 943 S.W.2d at 16. Point denied.

The Commission’s award is affirmed.

PREWITT, J., concurs.

CROW, J., concurs.

      . All statutory references are to RSMo Cum. Supp.1998, unless otherwise noted.

      . The pertinent provisions of 8 CSR 20-3.030 are set out below:
      (1) Review - Appeal. Any interested party in a contested case may appeal from a final award, order or decision made by an [ALJ] of the Division of Workers’ Compensation by making an application for review within twenty (20) days from the date of the award, order or decision with the commission as provided by section 287.480, RSMo....

      (3) Applications and Briefs.
      (A) An applicant for review of any final award, order or decision of the [ALJ] shall state specifically in the application the reason the applicant believes the findings and conclusions of the [ALJ] on the controlling issues are not properly supported. It shall not be sufficient merely to state that the decision of the [ALJ] on any particular issue is not supported by competent and substantial evidence.
      (B) If the applicant for review (known as the petitioner) desires to file a brief or memorandum of law in support of the application, it shall be indicated in the application. The petitioner's brief or memorandum of law shall be filed within thirty (30) days after the transmittal of the transcript of record. Parties to a claim who do not file an application for review may file reply briefs or memoranda of law within fifteen (15) days after receipt of the applicant's brief or memorandum of law. The commission shall have discretion, after notice to the parties, to extend or accelerate the briefing schedule.

      . Evidently Claimant was imprisoned on drug charges at some point following his accident.

      . We observe that the Claimant’s accident occurred on November 15, 1992.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. James WARD, Appellant.
    No. ED 76557.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 19, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 9, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL Jr., J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

James Ward appeals his conviction on one count of first degree murder, one count of first degree assault, and two counts of armed criminal action. Mr. Ward first argues that the trial court abused its discretion by denying a mistrial after the prosecution informed the jury of a witness without calling that witness to testify under oath. Mr. Ward next argues that the trial court erred by denying appellant’s challenge to the prosecution’s use of its peremptory strike, arguing that it was based on gender grounds in violation of the 14th Amendment.

We have examined the briefs and the record on appeal and find no error of law. An extended opinion reciting the detailed facts and restating the principles of law would serve no precedential or jurisprudential value.

The judgment is affirmed in accordance with Rule 30.25(b).


author: EDWIN H. SMITH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Danny Joe COTTON, Appellant.
    No. WD 57264.
    Missouri Court of Appeals, Western District,
    Oct. 3, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 2000.

      Michael P. O’Neill, James F. Crews, Tipton, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before EDWIN H. SMITH, P.J., and ULRICH and ELLIS, JJ.
   EDWIN H. SMITH, Presiding Judge.

Danny Joe Cotton appeals the judgment of his jury conviction in the Circuit Court of Cole County for the class C felony of possession of a controlled substance, methamphetamine, § 195.202, for which he was sentenced to one year imprisonment in the Missouri Department of Corrections.

The appellant raises six points on appeal. In Point I, he claims that the trial court erred in overruling his pre-trial motion and failing to suppress the methamphetamine and other items seized during a warrantless search of his person and motor vehicle pursuant to a traffic stop because the search and seizure were illegal. In Points II through VI, the appellant claims that the trial court erred, on various grounds, in allowing certain testimony and evidence at trial.

We affirm.

Facts

On July 6, 1998, at around 8:30 p.m., Deputy Marc Miller pulled in behind the appellant’s truck while patrolling on the outskirts of Russellville, Cole County, Missouri. Deputy Miller noticed a defective driver’s side taillight and decided to stop the vehicle. He activated his overhead lights, and then his siren, but the appellant drove some distance before finally stopping. Deputy Miller observed that the appellant’s vehicle had a gun rack on which were hung two rifles. He also observed the appellant making shoulder and torso movements inside the truck’s cab.

After stopping the appellant’s truck, Deputy Miller had the appellant exit and stand at the back of the truck, while he called for backup. Having radioed for backup, he received a “caution indicator” dispatch, indicating that the appellant had a history of assaulting police officers. Once backup arrived, Deputy Miller issued the appellant a warning ticket for the defective taillight. He then asked the appellant if he had any narcotics on his person or in his vehicle, to which the appellant responded, “No.” Deputy Miller asked the appellant if he would mind emptying the contents of his pockets. The appellant did so, revealing $150 in cash, a 22-caliber bullet, and some small pipes of aluminum foil.

Before allowing the appellant to reenter his truck, Deputy Miller conducted a protective search of the truck for weapons. During the course of the protective search, Deputy Miller discovered what he believed to be drug paraphernalia in the floorboard of the truck, and placed the appellant under arrest for possession of the same. A further search of the truck revealed a zi-plock plastic bag containing a white, powdery substance, later determined to be methamphetamine. Deputy Miller seized all the items discovered during the course of his protective search.

On November 20, 1998, the appellant was charged with the class C felony of possession of a controlled substance, in violation of § 195.202. On February 16, 1999, he filed a motion to suppress all the evidence seized during the course of the traffic stop, alleging that it was the product of an illegal search and seizure. On March 1, 1999, the trial court held a hearing on the appellant’s motion and overruled it the next day.

The appellant’s case proceeded to a jury trial. He was found guilty as charged and later sentenced to imprisonment in the county jail for a term of one year and fined $46, after the trial court had overruled his motion for a new trial.

This appeal follows.

I.

In Point I, the appellant claims that the trial court erred in overruling his pre-trial motion and failing to suppress the methamphetamine and other items seized during a warrantless search of his person and motor vehicle pursuant to a traffic stop because the search and seizure were illegal. For the reasons discussed, infra, we find that we are unable to review his claim raised in this point.

When the objection to evidence at trial is the same as that raised by a pretrial motion to suppress, in our review of the same we are necessarily required to review the transcript of the hearing on the pre-trial motion. State v. Adams, 927 S.W.2d 488, 484 (Mo.App.1996); State v. Hummel, 652 S.W.2d 749, 750 (Mo.App.1988). In this regard, Rule 30.04(a) provides that

the record on appeal shall contain all of the record, proceedings, and evidence necessary for a determination of all questions to be presented. It further provides that the transcript to be filed with the appellate court "shall contain the portions of the proceedings and evidence not previously reduced to written form.”

Adams, 927 S.W.2d at 484. As such, to enable us to adequately review the appellant’s claim in Point I, that the trial court erred in overruling his pre-trial motion to suppress evidence, it was the appellant’s responsibility to provide the requisite record on appeal, which would include the transcript of the hearing on his motion. Id.; Hummel, 652 S.W.2d at 750.

The record reflects that the appellant’s pre-trial motion to suppress was heard on March 1, 1999, and overruled on March 2, 1999. However, the record further reflects that the appellant failed to file a transcript of the hearing. As such, we are unable to review the appellant’s claim raised in Point I. Id.

Point denied.

II.

In Points II through VI, the appellant claims that the trial court erred, on various grounds, in allowing certain testimony and evidence at trial. Due to the substantial deficiencies in the appellant’s briefing of these points, which we discuss, infra, the claims of error raised therein are not properly preserved for review.

The appellant’s Points II-VT read as follows:

II.
The Court erred in allowing the testimony of the “aggressive Deputy,” Marc Miller, as to the value of the mixture of methamphetamine and amphetamine, in that no foundation was shown as to the chemical composition of the exhibit or that the chemist even knew the quantitative analysis of said compound and that it was impossible for Deputy Miller to know the street value of an unknown compound.
III.
The Court erred in allowing a 35-millim-eter film canister into evidence that was testified to as being full of pills in that the canister and pills would have been evidence of another crime.
IV.
The Court erred in allowing testimony from Deputy Miller as to a piece of straw and film canister as being drug paraphernalia.
V.
The Court erred in allowing Sidney Po-pejoy to testify as to the degrees and qualifications of Misty Rushing as an employee over which he had supervising authority.
VI.
The Court erred in allowing Sidney Popejoy to testify as to scientific tests performed on the exhibits when he did not testify as to actual knowledge of the steps taken in chemically handling the exhibits.

These points do not comply with Rule 84.04(d)(1), made applicable to criminal cases via Rule 30.06, in that they fail to: “(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, these legal reasons support the claim of reversible error.” Neither Point IV nor V states the legal reasons why the trial court erred. Both are merely bald allegations of error, which do not comply with Rule 84.04(d)(1)(B). Points II, III, and VI, although arguably stating legal reasons why the trial court’s ruling was in error, nonetheless violate Rule 84.04 in that they make no attempt to “explain in summary fashion why, in the context of the case, these legal reasons support the claim of reversible error.” Rule 84.04(d)(1)(C).

All six points relied on further violate Rule 84.04 in that they are not substantially in the form set out in the rule for a proper point relied on. In this respect, Rule 84.04(d)(1) provides: “The point shall be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].’ ” “A point relied on written contrary to the mandatory requirements of Rule 84.04(d), which cannot be comprehended without resorting to other portions of the brief, preserves nothing for appellate review.” State v. Dodd, 10 S.W.3d 546, 556 (Mo.App.1999).

Even if we were to look to other portions of the appellant’s brief in an attempt to comprehend the claims of error raised in Points II-VI, we would not be successful. This is so in that Point II only contains two short paragraphs of argument, while the other four contain only a single paragraph. The appellant’s truncated arguments add little, if anything, in helping us to decipher his claims. Moreover, even if we were to speculate as to the claims being raised, the argument as to each is so lacking that the claims would be left totally undeveloped such that they would be deemed abandoned on appeal. See State v. Oswald, 14 S.W.3d 678, 680 (Mo.App.2000) (holding that if a point is not developed in the argument portion of the brief, it is deemed abandoned).

In further violation of Rule 84.04, the appellant cites no authorities upon which his arguments rest, Rule 84.04(d)(5), and offers no explanation as to why none was available. Rule 84.04(d)(5) provides, in pertinent part, that, “[i]n support of each ‘Point Relied On,’ and immediately following the statement of the Point, the appellant or relator shall cite all authorities upon which the argument rests.” Because the appellant cites no authorities and offers no explanation as to why none were available, we consider his Points II-VI waived or abandoned. Dodd, 10 S.W.3d at 556.

Finally, with respect to appellant’s briefing deficiencies, we would note that, although Rule 30.06(e) requires the argument to have “specific page references to the legal file or the transcript,” there is not one citation to the record in his Points II-VI. This constitutes a further waiver of his claims of error in those points. State v. Flint, 26 S.W.3d 178, 179 (Mo.App.2000). “It is improper for [this court) to comb through the record searching for the facts.” Id.

As a general proposition, we are naturally reluctant to decline appellate review in a criminal case for briefing deficiencies because to do so has the practical effect of punishing the appellant for the failures of his appellate counsel. However, where, as here, the briefing deficiencies are so substantial that the appellate court, in order to conduct any review, would be forced to speculate not only as to the claims being raised, but as to the facts and arguments being relied on in support of the same, we have no choice but to decline review, including plain error review under Rule 30.20. Id.; Koenig v. State, 17 S.W.3d 911, 912 (Mo.App.2000).

Conclusion

For the foregoing reasons, we affirm the judgment of the appellant’s jury conviction for the class C felony of possession of a controlled substance, methamphetamine, § 195.202.

ULRICH and ELLIS, JJ., concur.

      . We assume from the judgment that the proper spelling of the appellant's last name is Cotton, not Cotton, although numerous documents in the record reflect the latter spelling.

      . All statutory references are to RSMo 1996, unless otherwise indicated.

      . All rule references are to Missouri Rules of Criminal Procedure (2000), unless otherwise indicated.


text:
    Leron HORNADAY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76949.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 3, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    Mary S. Choi, Asst. Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, P.J., LAWRENCE G. CRAHAN, J„ and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Appellant, Leron Hornaday, (“appellant”), appeals the judgment of the Circuit Court of the City of St. Louis wherein it denied his Rule 29.15 motion for post conviction relief after an evidentiary hearing. Appellant seeks to vacate his convictions and sentences for murder in the first degree, section 565.020 RSMo 1994, armed criminal action, section 571.015, and first degree robbery, section 569.020, for which he was sentenced to life imprisonment without the possibility of parole, and two consecutive thirty year terms of imprisonment, respectively. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcripts, and find the judgment was not clearly erroneous. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).

      . All statutory references are to RSMo 1994, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Frederick SHEARS, Appellant.
    No. ED 76693.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 3, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 9, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before ROBERT G. DOWD, Jr., P.J., MARY RHODES RUSSELL and RICHARD B. TEITELMAN, JJ.
   ORDER

PER CURIAM.

Defendant, Frederick Shears, appeals from the judgment entered on a jury verdict finding him guilty of two counts of first-degree robbery in violation of section 569.020 RSMo 1994, on which he was sentenced to concurrent twenty-year prison terms.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    Cortez L. WRAGGS, Appellant, v. The STATE of Missouri, Respondent.
    No. ED 77252.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 3, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 9, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    David C. Hemingway, Asst. Sp. Public Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Mazza Follett, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

      Before GARY M. GAERTNER, P.J., LAWRENCE G. CRAHAN, J., and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Cortez Wraggs (“Movant”) challenges the denial of his Rule 24.035 motion whereby he sought to vacate his guilty plea and conviction of stealing $150 or more and stealing third offense. Movant claims that the motion court clearly erred in denying his motion and request for an evidentiary hearing in that his trial counsel failed to investigate the factual basis for the underlying conviction. Movant also claims the motion court abused its discretion in invoking the escape rule. We have reviewed the briefs of the parties, the legal file, and the transcripts and find no error. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed. Rule 84.16(b).


text:
    Donna MILLER, Appellant, v. FMA, INC., Respondent, and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Respondent.
    No. ED 77456.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 3, 2000.
    Application for Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    John C. Healy, St. Louis, MO, for appellant.
    Evans & Dixon, George T. Floros, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, P.J., LAWRENCE G. CRAHAN, J., and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Appellant, Donna Miller, appeals from the decision of the Labor and Industrial Relations Commission unanimously affirming the Administrative Law Judge’s decision denying her temporary total disability benefits from February 20, 1992 until July 23, 1996, and permanent total disability entered in favor of FMA, Inc., and The Treasurer of the State of Missouri as Custodian of the Second Injury Fund, respondents. We affirm.

We have reviewed the briefs of the parties and record on appeal, and find the judgment is supported by competent and substantial evidence. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).


author: JOHN E. PARRISH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph S. BURRIS, Defendant-Appellant.
    No. 22075.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 4, 2000.
    Motion for Rehearing or Transfer to Supreme Court Denied Oct. 26, 2000.

      Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Joseph S. Burris (defendant) was convicted of murder in the first degree, § 565.020.1, and armed criminal action, § 571.015.1. He was sentenced to life imprisonment without possibility of probation or parole for the offense of murder in the first degree and imprisonment for a term of 50 years for the offense of armed criminal action. This court affirms.

Defendant had been placed in the Mountain Park Baptist Church and Boarding Academy (the academy) in Wayne County, Missouri, in October 1995. He was residing there in March 1996. He was 15 years old.

Trent Matthews was a teacher/supervisor at the academy. On March 25, 1996, he was working in the school office. He noticed defendant and two other students, Anthony Rutherford and Jonathan Moore, sitting in a learning center adjacent to the office. Anthony Rutherford asked to speak to the academy’s assistant pastor and principal, Sam Gerhardt. Mr. Ger-hardt was not available. Mr. Matthews asked what the problem was. Defendant told him he would “read about it in the morning paper.” Defendant handed Mr. Matthews a leather sheath that contained a knife. There appeared to be bloodstains on it. Mr. Matthews asked if he had hurt someone with the knife. Defendant answered, “[Y]es.”

Mr. Matthews interrupted the principal, Mr. Gerhardt. Mr. Gerhardt went to the boys and asked what had happened. Defendant answered that they had “killed him.” Mr. Gerhardt testified:

Q. [by the prosecuting attorney] Did you know what — did you know what [defendant] meant at that time?
A. No, sir. And then I said, who? What do you mean? And they said, Will, we killed him.
Q. And by Will, you understood that to mean who?
A. Will Futrelle.
Q. He was also a resident, but of shorter duration than [defendant]?
A. Yes, sir.

The boys took Mr. Gerhardt and Mr. Matthews to Will Futrelle’s body. Mr. Matthews was asked the following questions and gave the following answers about the area where they observed the body:

Q. ... Before you got to the body, did you observe anything else unusual about the area?
A. Well, as I came down the trail, there’s a fork there in the trail, there was a glove laying, and there was some blood stains [sic]. And, I guess, kind of marks as if the body had been drug from the trail.
Q. Did that drag trail end anywhere?
A. Yes. It ended off to the left of the trail there in the woods, probably about 15, 20 feet.
Q. And what was at the end of the drag trail?
A. Will’s body.

Mr. Matthews, Mr. Gerhardt and the three boys returned to the school office. The county sheriff, Nathan Hale, was called. The sheriff arrived shortly after the call was placed. He took defendant and the other two boys into custody.

A deputy juvenile officer, James Bear-den, arrived. Anthony Rutherford was 18 years old. The other two were juveniles. They were separated from Rutherford. The three were later taken to the Wayne County Sheriffs office. After arriving there, Mr. Bearden contacted defendant’s mother in California. Mr. Bearden told her that a young man had been killed at the academy; that her son and two others were present at the time he was killed. Mr. Bearden testified at a hearing on a motion to suppress evidence filed by defendant. He told the trial judge:

I told [defendant’s mother] that this was a very serious matter and that [defendant] could go into the juvenile court, have a hearing there and that a certification process could be filed against him — and would be filed because it was mandatory by law — and that he would end up — could end up in the adult court.

Mr. Bearden testified that defendant’s mother was made aware that anything defendant told law enforcement officials could be used against him later in a trial. He said defendant’s mother thought defendant should be questioned. After talking to Mr. Bearden, defendant’s mother talked to defendant.

Later, defendant was advised of his Miranda rights by Sheriff Hale and said he wanted to make a statement. Defendant told Sheriff Hale he killed Will Futrelle so Futrelle would not interfere with his and two other students’ plans to break into a girls dormitory. Defendant said he took a knife from Anthony Rutherford and used it to cut Will Futrelle’s throat. Defendant said Will Futrelle fell to the ground but did not die immediately; that defendant bent over the victim and cut his throat again, “two or three more times.” Sheriff Hale took a written statement and a videotaped oral statement.

Defendant filed a motion “to suppress all evidence of statements made by the Defendant, and any evidence derived as a result thereof,.... ” The motion was denied following an evidentiary hearing. Defendant’s trial attorney objected to evidence concerning defendant’s statements at trial. The objection was overruled.

Four of defendant’s five points on appeal are directed to the denial of defendant’s motion to suppress evidence and the admission of his statements in evidence. The fifth point is directed to the admission of a photograph.

Defendant’s Statements

The first two points on appeal relate to the voluntariness of defendant’s statements. Point I is directed to the content of the warning given defendant about his rights as an accused and the totality of circumstances surrounding the giving of the statements. Point II relates to § 211.059.

Point I asserts the trial court erred in denying defendant’s motion to suppress evidence and admitting his statements in evidence because defendant was 15 years old, was not provided an “adult friend” during his interrogation, was not advised that his statements could be used against him in an adult prosecution and a juvenile officer participated in the investigation and questioning.

After an individual has been advised of his Miranda [] rights, no statement he makes may be used against him unless he makes a knowing, intelligent, understanding and voluntary waiver of those rights. “The test for ‘voluntariness’ is whether under the totality of the circumstances defendant was deprived of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that defendant’s will was overborne at the time he confessed.” State v. Lytle, 715 S.W.2d 910 (Mo. banc 1986).

State v. Pierce, 749 S.W.2d 397, 401-02 (Mo. banc 1988).

The fact that defendant was 15 years old does not, standing alone, disqualify him from waiving his right to remain silent. Id. at 402. Adolescents may voluntarily waive their rights. Id. Whether a juvenile’s confession is voluntary is determined by the facts and circumstances of the particular case. Id. Minority is a factor for consideration. Id.

Defendant was advised of his Miranda rights before he gave his statements to Sheriff Hale. Sheriff Hale read a form he obtained from Mr. Bearden, the deputy juvenile officer who was called to the academy. The form is entitled “JUVENILE RIGHTS WARNING.” It states:

Before any questions are asked, you must understand your rights:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
4. If you are unable to afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
CERTIFICATION WARNING — (Strike Those Not Applicable)
6. a) A juvenile of any age alleged to have committed first or second degree murder, first degree assault, forcible rape, forcible sodomy, first degree robbery or distribution of drugs may be certified by the court to be tried as an adult. (Certification hearing is required.)
b) A juvenile of any age who has previously been adjudicated for two or more unrelated felonies and is now alleged to have committed a felony offense, may be certified by the court to be tried as an adult. (Certification hearing is required)
c) A juvenile, twelve (12) years of age or older, alleged to have committed a felony offense, may be certified by the court to be tried as an adult. (Certification hearing is discretionary.)

The “certification warning” on the form is followed, on the same page, by a paragraph entitled “WAIVER.” It states:

I have read the above statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
Do you understand your rights as set out above?_
Having these rights in mind, do you wish to talk to us now?_

There are places for signatures below the “waiver” portion of the form. Lines for signatures are provided for the juvenile, the investigating officer and parents. Lines are provided for writing the date and time. There are lines to the left of each numbered paragraph for initials. The form was signed by defendant as “Juvenile”; by Nathan Hale as “Investigating Officer”; and by Sam L. Gerhardt as “Custodian.” (Mr. Gerhardt’s signature appears on a line for a parent’s signature. “Parent” is lined out and the word “Custodian” is handwritten beneath the line.) Defendant’s signature is also written perpendicularly across the text of the form.

The initials “JB” are on each line by the paragraph numbers. Subparagraphs a) and c) under paragraph 6, the “Certification Warning,” are circled. The word “Yes” followed by the initials “JB” are handwritten following the questions, “Do you understand your rights as set out above?” and, “Having these rights in mind, do you wish to talk to us now?”

A two-page handwritten statement on lined paper is attached to the form. Defendant’s signature is written across the face of each page of the statement, perpendicular to the text of the statement. His signature is also written at the bottom of the second page of the statement. The signatures of James W. Bearden, “Wayne County CDJO,” Nathan Hale, “Sheriff,” L.W. Plunkett, Sr., and Sam L. Gerhardt appear at the bottom of the second page of the statement below defendant’s signature.

Defendant was 15 years old when he was placed in the custody of the deputy juvenile officer and when he gave the statements in question. He was described as “a quiet fellow, but hard working in school, good student, good personality.” His Miranda rights were read to him before he gave any statement. It was read again before defendant gave the statement that was videotaped. Sheriff Hale, Sam Gerhardt and James Bearden were present when the statements were given. They testified defendant appeared to understand his rights.

Defendant’s assertion that he was not advised his statements could be used against him in an adult prosecution is refuted by the written rights form that was read to him, given to him, and signed by him. Paragraph 2 of the form told him anything he said could be used against him in a court of law. Defendant’s initials were placed alongside that paragraph. Defendant’s initials were also placed to the side of paragraph 6. Two of its subpara-graphs are circled, subparagraphs a) and c). Subparagraph a) explains that a juvenile of any age alleged to have committed certain offenses, including first or second degree murder and first degree assault, may be certified by the court to be tried as an adult. Subparagraph c) explains that a juvenile who is twelve years of age or older and who is alleged to have committed any felony offense may be certified by the court to be tried as an adult.

Section 211.059 provides that a child taken into custody for criminal conduct is to be advised of certain rights prior to questioning. Section 211.059.1 states that the child shall be advised:

(1) That he has the right to remain silent; and
(2) That any statement he does make to anyone can be and may be used against him; and
(3) That he has a right to have a parent, guardian or custodian present during questioning; and
(4) That he has a right to consult with an attorney and that one will be appointed and paid for him if he cannot afford one.

Both Point I and Point II allude to the right to have a parent, guardian or custodian present. Circumstances that Point I asserts precluded defendant’s statements from being voluntary include that “he was not provided an ‘adult friend’ during his lengthy interrogation” and that defendant’s “supposed ‘adult friend’, ‘Brother Sam [Gerhardt]’ did not feel as though it was his place to advise [defendant] one way or the other on speaking to the authorities.” Point II asserts defendant’s statements were not voluntary because “he was not advised prior to questioning that he had the right to have a parent, guardian or custodian present during questioning as required by § 211.059; and, although the principal of the school that [defendant] attended was present during the interrogation, that person did not qualify as an ‘adult friend,’ because of a conflict of interest since the principal helped run the school where the victim was killed and also had custodial duties over the victim”; that “instead of advising [defendant], the principal told [defendant] that it was not his place to advise [defendant] on whether [defendant] should speak to the authorities without first speaking to an attorney.”

The right of a child to be advised that he or she has a right to have a parent, guardian or custodian present during questioning is derived from § 211.059.1(3), a statutory provision that is part of this state’s juvenile code, rather than from the Miranda interpretation of a suspect’s constitutional rights. Section 211.059.1(3) provides that the child is to be advised that he or she has the “right to have a parent, guardian or custodian present during questioning.” It is not a right to have an “adult friend” available to advise a child concerning the exercise of his or her rights. It is a right “to confer with a friendly adult” (i.e., one whose mindset is not antagonistic or adverse to the child) “because juveniles may not be able to assess their rights adequately.” State v. Barnaby, 950 S.W.2d 1, 3 (Mo.App.1997). “The rationale is that an adult’s presence helps to insure that the juvenile understands the consequences of his confession and his rights.” Id.

Defendant conferred with his mother by telephone before making any statement. His mother was aware of the nature of the charges defendant faced; she had been advised of the circumstances by the deputy juvenile officer. The principal of defendant’s school, Sam Gerhardt, was present with defendant when he was interviewed by law enforcement officers. Defendant had been voluntarily placed with the academy. He was under its physical custody. As such, the administrators who exercised control over defendant occupied the position of “custodian.” As principal, Sam Gerhardt was defendant’s custodian.

The record on appeal does not disclose that defendant was advised prior to questioning that he had the right to have a parent, guardian or custodian present during questioning. However, defendant was afforded that right. Defendant’s custodian was present during questioning. Defendant consulted with his custodian before being questioned. Defendant was not prejudiced by not being advised he had a right he was otherwise provided.

The remaining complaint included in Point I is that the deputy juvenile officer participated in the investigation and questioning that produced the statements defendant asserts should have been suppressed. The record does not corroborate defendant’s claim that the deputy juvenile officer participated in defendant’s interrogation. The deputy juvenile officer’s involvement in the investigation was not inconsistent with any duty owed defendant. He monitored the investigation and interrogation undertaken by the sheriff and highway patrol personnel without directly participating in it.

The record on appeal, including the videotaped statement that was admitted in evidence and which has been filed with this court, does not support the claim that the deputy juvenile officer participated in defendant’s interrogation. The deputy juvenile officer was present when statements were obtained from defendant and provided the sheriff with a form used in advising defendant of his Miranda rights. The presence of a juvenile officer when law enforcement officers obtain statements from a juvenile does not render a confession by the juvenile inadmissible. State v. Perry, 954 S.W.2d 554, 563-64 (Mo.App.1997), cert. denied, 524 U.S. 905, 118 S.Ct. 2062, 141 L.Ed.2d 139 (1998).

Defendant was 15 years old when he was questioned. Defendant’s videotaped statement reveals him physically mature. His demeanor was that of an emotionally mature person. He had been permitted to speak privately, by telephone, with his mother before he was interviewed. The principal of his boarding school, his custodian, was present before and during interrogation by law enforcement officers. The trial court’s finding that defendant’s statements were voluntary, under the totality of the evidence, was not an abuse of discretion. Point I is denied.

Point II is an allegation that the trial court committed plain error in denying defendant’s motion to suppress statements and in admitting his statements in evidence because he was not advised prior to questioning . of his right under § 211.059.1(3) to have a parent, guardian or custodian present. For the reasons heretofore given, no manifest injustice or miscarriage of justice occurred. Point II is denied.

Point III asserts the trial court committed plain error in denying the motion to suppress evidence, the motion for new trial, and in admitting defendant’s statements in evidence because the juvenile officer who was called when the crime was discovered participated in the custodial investigation by law enforcement officers. Defendant .asserts this was contrary to § 211.271; that it resulted in manifest injustice to him. Section 211.271.3 provides that after a child is taken into custody “all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel” are not to be used in any proceeding against the child other than proceedings under the juvenile code. Since defendant was tried under the general law, he contends the use of the statements in his prosecution constituted plain error.

This claim was addressed in Point I. The record on appeal does not support defendant’s claim that Mr. Bearden, the deputy juvenile officer, interrogated defendant. Point III is denied.

Point IV asserts the trial court erred in denying defendant’s motion to suppress evidence, motion for new trial, and in admitting his statements in evidence because defendant was subjected to custodial interrogation without being advised of his rights by a juvenile officer or a designee trained by the juvenile officer as set forth in Rule 122.05. Rule 122.05 specifies that prior to in-custody interrogation, a juvenile is to be advised of his rights “by the juvenile officer or by a designee trained by the juvenile officer.” The comment to Rule 122.05 explains the purpose of the rule “is to provide that a juvenile in custody shall be advised of certain rights and the scope of such advice.” Defendant again recognizes he raised no claim that Rule 122.05 had been violated at trial or in his motion for new trial. He requests plain error review.

The record on appeal discloses that the deputy juvenile officer provided the sheriff with the form that was read to defendant by the sheriff and signed by the defendant. Arguably, furnishing the form with the language to be used in advising defendant of his rights was a means of providing the sheriff with the requisite training required by Rule 122.05 and sufficed to designate the sheriff as the one who would advise defendant of those rights. Regardless, this court concludes under the facts in this case, as disclosed by the record on appeal, that defendant was advised of his rights as an accused and as a juvenile and that he understood those rights. This court finds no miscarriage of justice or manifest injustice. Point IV is denied.

The Photograph

Point V asserts trial court error in admitting an autopsy photograph of the victim. It asserts the trial court abused its discretion in admitting the photograph, State’s Exhibit No. 10, and in denying a request for mistrial “when a juror was visibly shaken and almost in tears after seeing the autopsy photo.”

The trial court is afforded broad discretion in determining the admissibility of demonstrative evidence, such as a photograph, and the admission of such evidence is error only upon a showing of an abuse of discretion. State v. Holtkamp, 588 S.W.2d 183 (Mo.App.1979); State v. Mattingly, 573 S.W.2d 372 (Mo.App.1978); State v. Love, 546 S.W.2d 441, 452 (Mo.App.1976). A photograph, generally speaking, is superior to words as a means of description, State v. Blair, 531 S.W.2d 755 (Mo.App.1975), and it should not be rejected because by presenting an accurate portrayal it tends to be inflammatory. State v. Swenson, 551 S.W.2d 917 (Mo.App.1977); State v. Clark, 494 S.W.2d 26 (Mo. [banc] 1973).

State v, Burnfin, 606 S.W.2d 629, 630 (Mo.1980).

State’s Exhibit No. 10 depicts the nature, location and degree of the injury inflicted on the victim. Insofar as the photograph may be shocking or gruesome, it is because the crime is of that sort. “[G]ruesome crimes produce gruesome, yet probative, photographs.” State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). Point V is denied. The judgment is affirmed.

SHRUM and MONTGOMERY, JJ., concur.

      . References to statutes are to RSMo 1994.

      . See Miranda v. Arizona, 384 U.S. 436, 475-76, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Rule 110.05(5) of the Rules of Practice and Procedure in Juvenile Court provides, "Custodian includes parent, guardian of the person, and any person having legal or actual custody of a juvenile.”

      . Defendant concedes that the issue raised in Point II was not preserved for appellate review because it was not raised at trial or in his motion for new trial. See State v. Guidorzi, 895 S.W.2d 225, 228 (Mo.App.1995). He requests plain error review as permitted by Rule 30.20.

      . As with respect to the issue in Point II, this claim was not perfected for appellate review and is, therefore, considered only for plain error as permitted by Rule 30.20.