author: CYNTHIA L. MARTIN, Judge.

text:
    David L. MOORE, D.D.S., Appellant, v. MISSOURI DENTAL BOARD, Respondent.
    No. WD 71065.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Audrey H. McIntosh, Jefferson City, MO, for appellant.
    Loretta L. Schouten, Columbia, MO, for respondent.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, KAREN KING MITCHELL, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

David L. Moore (“Moore”) appeals from a disciplinary order (“Order”) issued by the Missouri Dental Board (“Board”) revoking Moore’s dental license and barring reapplication for a period of not less than one year. The Order imposed additional discipline pursuant to section 324.042, formerly section 620.153, as Moore was found to have violated a previous disciplinary agreement. Moore complains that the Order is not supported by competent and substantial evidence because the Board improperly took official notice of records from the earlier disciplinary proceeding and relied on those records to enter the Order. Moore also complains that the additional discipline imposed by the Order is not supported by competent and substantial evidence. We affirm.

Factual and Procedural History

Moore is a licensed dentist in the State of Missouri. The Board filed a Probation Violation Complaint (“Complaint”) after Moore tested positive for cocaine following a drug test on August 31, 2007. The drug test had been required by the Board as a part of the discipline imposed on Moore following an earlier disciplinary proceeding.

Moore received the Complaint along with a Notice of Probation Violation Hearing (“Notice”). The Notice advised Moore that the Board would conduct a hearing on January 19, 2008, to determine whether Moore violated a previous disciplinary order, and if so, whether additional discipline should be imposed. Moore did not file an answer contesting the allegations in the Complaint. Moore attended the hearing with legal counsel. At the hearing, the Board’s President opened the proceedings by noting:

This is a hearing in the matter of the Missouri Dental Board versus David L. Moore, DDS, Case No. DB-08-028. The purpose of this hearing is to determine whether or not Dr. Moore violated the terms of his discipline as contained in the waiver of hearing, joint stipulation, request for consent order filed on January 16th, 2007, by the Missouri Dental Board and the consent order issued by the Administrative Hearing Commission on or about January 17, 2007, and if so, what discipline, if any, to impose on Dr. Moore’s dental license.

The proceedings were then turned over to the Board’s counsel. Counsel stated: “The parties have reached an agreement regarding the allegations in this case that are outlined in the Probation Violation Complaint.... ” Moore’s counsel did not contest this representation. Moore was then examined by the Board’s counsel. The extent of that questioning was as follows:

Q. And Dr. Moore let me ask you we have reached an agreement regarding the allegations in the probation violation complaint; is that correct?
A. Correct.
Q. Okay. Specifically that on August 31, 2007, you submitted to a urine drug screen for the board—
A. Yes.
Q. —pursuant to the terms of discipline?
A. Uh-huh.
Q. And that — and that you tested positive for cocaine; is that correct?
A. Correct.

Counsel for the Board then rested.

The proceedings were turned over to counsel for Moore. Moore’s counsel admitted three exhibits. Two of the exhibits related to rehabilitation efforts Moore had undertaken since his positive drug test on August 31, 2007. The third exhibit was a character reference. Moore’s counsel then examined Moore. Moore admitted his cocaine use and characterized the use as a “relapse.” Moore testified about the circumstances of his relapse and described the voluntary rehabilitation efforts he had undertaken since his relapse.

Moore’s counsel called Ira Davis, who runs the Missouri Dental Well Being Program, as a witness. Davis testified about Moore’s experience in the program prior to his relapse, about the relapse, about Moore’s rehabilitation efforts since the relapse, and about Moore’s voluntary cessation of his dental practice subsequent to his relapse. Davis opined that Moore should be permitted to return to the practice of dentistry.

Moore presented no evidence contesting the representation that the parties had reached an agreement regarding the allegations outlined in the Complaint. Rather, the evidence submitted by Moore was relevant to the issue of what additional discipline, if any, the Board should impose on Moore.

On April 4, 2008, the Board issued its Order. The Order revoked Moore’s license for a period of at least one year. On April 17, 2008, Moore filed a Petition for Judicial Review (“Petition”) in the Circuit Court of Cole County, alleging that the Order was unsupported by competent and substantial evidence.

At Moore’s request, the trial court issued a Stay Order (“Stay”) suspending the revocation of Moore’s license pending a decision on the Petition. The Stay directed Moore to conduct his practice in accordance with the probationary terms contained in the 2007 Stipulation and the 2007 Consent Order. Moore thereafter resumed his dental practice.

On July 9, 2008, Moore filed an Amended Petition. The Amended Petition added the assertion that the Board abused its discretion and utilized unlawful procedures resulting in its decision being unsupported by competent and substantial evidence upon the whole record because the Order took official notice of the 2007 Stipulation and the 2007 Consent Order though that did not occur on the record according to the transcript.

On May 7, 2009, the trial court entered its Judgment (“Judgment”) affirming the Order. Anticipating this appeal, the Judgment extended the Stay until further order of the court and again directed Moore to comply with the probationary terms contained in the 2007 Stipulation and the 2007 Consent Order, both of which were incorporated by reference into the Judgment. This appeal follows.

Standard of Review

In an action involving initial license discipline, the Board assesses an appropriate level of discipline after the Administrative Hearing Commission (“AHC”) has independently determined, “on the law and the evidence submitted by both the Board and the licensee, that cause for discipline exists.” Lacey v. State Bd. of Reg. for the Healing Arts, 131 S.W.3d 831, 836 (Mo.App. W.D.2004). In such a case, section 621.145 directs that we review the “AHC’s decision as to the existence of cause and the Board’s subsequent disciplinary order ‘as one decision,’ and proceed to review that combined decision, not the circuit court’s judgment.” Id. (quoting Dorman v. State Bd. of Reg. for the Healing Arts, 62 S.W.3d 446, 453 (Mo.App. W.D.2001)).

This case does not involve initial license discipline, however. This case involves the Board’s imposition of additional discipline pursuant to section 324.042, which authorizes the Board to determine both whether a licensee “has violated any disciplinary terms previously imposed or agreed to pursuant to settlement,” and what, if any, additional discipline to impose. As no statute specifically addresses the standard of review to be applied to administrative agency action under section 324.042, our standard of review is controlled by section 536.100, which authorizes judicial review of “a final decision in a contested case ... as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute.” Section 536.100; Lacey, 131 S.W.3d at 836. Thus, we review the Board’s Order, and not the judgment of the trial court. Section 536.140; Lacey, 131 S.W.3d at 837. “The Board’s decision is presumed valid, and the burden is on the party attacking it to overcome that presumption.” Lacey, 131 S.W.3d at 837 (citing Dorman, 62 S.W.3d at 453). We make a “ ‘single determination whether, considering the whole record, there is sufficient competent and substantial evidence to support’ ” the agency’s decision. Albanna v. State Bd. of Reg. for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). If the “agency’s decision involves a question of law, the court reviews the question de novo.” Id. (citing State Bd. of Reg. for Healing Arts v. McDonagh, 123 S.W.3d 146,152 (Mo. banc 2003)).

Analysis

Moore raises two points bn appeal. Moore first contends that the Order was not supported by competent and substantial evidence because, although the Order states that the Board took official notice of the 2007 Stipulation and the 2007 Consent Order, neither document was properly made a part of the record in the manner required by either section 536.070(5) or section 536.070(6). Moore next contends that the revocation of his license for a period of at least one year was not supported by competent and substantial evidence in light of Moore’s voluntary rehabilitation efforts and cessation of his dental practice following the failed drug test.

Point I

Imposition of additional discipline under section 324.042 required the Board to find that Moore violated the disciplinary terms previously agreed to pursuant to the 2007 Stipulation and the 2007 Consent Order. Moore contends that the 2007 Stipulation and the 2007 Consent Order were not properly made a part of the record pursuant to either section 536.070(5) or section 536.070(6), which describe the manner in which an administrative agency can either place its records or documents into evidence or take official notice of matters. Moore claims that the Order is not supported by competent and substantial evidence, because the documents essential to establish a prior agreed disposition of a disciplinary proceeding — the predicate to the Board’s ability to act under section 324.042 — were not made a part of the record.

The Board claims that it properly admitted the 2007 Stipulation and the 2007 Consent Order pursuant to section 536.070(5) by reference to both documents at the outset of the disciplinary hearing, or pursuant to section 536.070(6) by noting in the Order that the Board had taken official notice of its own records, specifically the 2007 Stipulation and the 2007 Consent Order. The Board also argues that the Order is otherwise supported by the admitted allegations in the Complaint and by Moore’s testimony at the hearing.

Section 536.070 (5) and (6) — The 2007 Stipulation and the 2007 Consent Order

Sections 536.070(5) and (6) describe the means by which an administrative agency can incorporate matters into the record:

In any contested case:
(5) Records and documents of the agency which are to be considered in the case shall be offered in evidence so as to become a part of the record, the same as any other evidence, but the records and documents may be considered as a part of the record by reference thereto when so offered.
(6) Agencies shall take official notice of all matters of which the courts take judicial notice.

Section 536.070(5) thus permits an agency’s records and documents to be treated as a part of the record “by reference thereto when so offered.” (Emphasis added.) There is no dispute that the Board referenced the 2007 Stipulation and the 2007 Consent Order at the beginning of the hearing to explain the purpose of the hearing. The Board did not, however, indicate that its reference to the 2007 Stipulation and the 2007 Consent Order was for the purpose of offering the documents into evidence.

In Hilke v. Firemen’s Retirement System of St. Louis, 441 S.W.2d 730 (Mo.App.1969), medical reports prepared at the behest of an administrative body charged with determining disability were referred to informally throughout an evidentiary proceeding, and were used to question the licensee by his own counsel. Though never formally offered into evidence or referred to as being offered by reference, the court concluded that the multiple references to, and use of, the reports throughout the proceeding sufficed to comport with section 536.070(5), as there was a generalized sense that both parties were treating the referenced records as a part of the evidence. Id. at 733. In contrast, there is no indication in the brief transcript of Moore’s proceedings that the parties, in putting on their evidence, referenced the 2007 Stipulation and the 2007 Consent Order at all, let alone in a manner sufficient to permit us to develop a generalized sense that the parties were treating the documents as a part of the evidence before the Board.

In Missouri State Highway Patrol v. Robertson, 648 S.W.2d 644, 645 (Mo.App. S.D.1983), a hearing officer stated at the outset of the hearing that he would be taking “official notice of all records pertaining to the permits issued to the respondent.” Our Southern District concluded that “[t]he announcement of the Hearing Officer was tantamount to compliance with section 536.070(5).” Id. The hearing officer’s specific statement of intent to make the permits a part of the record by reference is obviously distinguishable from the Board’s general reference to the 2007 Stipulation and the 2007 Consent Order where no intent to admit the documents in evidence was mentioned. This distinction is material. It was influential to the Southern District that the hearing officer’s specific pronouncement of an intent to treat the permits as a part of the record gave the licensee “the right to production and inspection of the records referred to and, upon proper grounds, to object to the admission of all or any part thereof.” Id.

In this case, Moore could not be reasonably expected to interpret the Board’s general reference to the 2007 Stipulation and the 2007 Consent Order as an indication of the Board’s intent to treat the documents as admitted in evidence by reference. The Board’s mention of the 2007 Stipulation and the 2007 Consent Order did not fairly alert Moore to a right or need to object to their admission in evidence. We conclude that neither document was properly made a part of the record in the manner required by section 536.070(5).

Section 586.070(6) permits an administrative agency to “take official notice of all matters of which the courts take judicial notice.” The 2007 Stipulation and the 2007 Consent Order were pleadings generated as a result of the disposition of an earlier disciplinary proceeding involving Moore. “It has long been the law that courts may (and should) take judicial notice of their own records in prior proceedings which are (as here) between the same parties on the same basic facts involving the same general claims for relief.” Hardin v. Hardin, 512 S.W.2d 851, 854 (Mo.App.1974); see also Schrader v. State, 561 S.W.2d 734, 735 (Mo.App.1978) (court per missibly referenced untranscribed notes of sentencing imposed at an earlier guilty plea hearing). Judicial notice of records from other related proceedings involving the same parties can be on the court’s own motion or at the request of a party. Hardin, 512 S.W.2d at 854 (citing Arata v. Monsanto Chem. Co., 351 S.W.2d 717, 721 (Mo.1961)) (other citations omitted).

Moore concedes a court can take judicial notice of its records from other related proceedings but discounts the applicability of Hardin, arguing the case refers only to courts and not to administrative agencies. This ignores that section 536.070(6) expressly permits administrative agencies to take official notice when and as courts are permitted to take judicial notice. Thus, cases defining the parameters where a court can permissibly take judicial notice necessarily define the parameters where an administrative agency can permissibly take official notice. We conclude, therefore, that the 2007 Stipulation and the 2007 Consent Order were eligible for admission in evidence by official notice as the documents related to a prior proceeding between the same parties on the same basic facts involving the same general claims for relief.

This does not conclude our inquiry, however. We must determine whether the Board took official notice of the 2007 Stipulation and the 2007 Consent Order in a manner sufficient to place those documents in evidence. Though the Order states that the Board took official notice of the 2007 Stipulation and the 2007 Consent Order, its intent to do so was not announced on the record. The Board contends that section 536.070(6) does not require official notice of an agency’s file, including a file from a prior proceeding, to be taken on the record. We disagree.

In State ex rel. Callahan v. Collins, 978 S.W.2d 471 (Mo.App. W.D.1998), the trial court’s judgment in a criminal forfeiture action included a finding that the defendant had been found guilty of the felony offense of possession of a controlled substance and unlawful use of a weapon in a specified prior proceeding. Id. at 473. The prior conviction was a necessary predicate to the forfeiture action. “ ‘[W]hen the record in another case forms an essential element of a party’s claim or defense, the record itself must be introduced in evidence, absent an admission of its contents by the opposing party.’ ” Id. at 473-74 (quoting Meiners Co. v. Clayton Greens Nursing Ctr., Inc., 645 S.W.2d 722, 724 (Mo.App. E.D.1982)). “ ‘The introduction of the other court file into evidence may ... be accomplished by the court taking judicial notice of the file if it is physically before it.’ Id. at 474-75 (emphasis added) (quoting State v. Hurst, 845 S.W.2d 669, 670 (Mo.App. E.D.1993)). Similar to the argument advanced by Moore, defendant contended “that there is no evidence to support the trial court’s finding that he was guilty of the underlying felonies” because the trial court’s docket entry did not note admission of the prior file or that official notice had been taken of same. Id. at 473. This court disagreed. The defendant had not provided a transcript of the proceedings. Id. at 474. Given the presumption that a trial court’s judgment is correct, this court was “not prepared to conclude that, by omission no additional evidence was received” other than the exhibit noted on the court’s docket entry. Id. “The trial court identified the court case file by its number. Thus it is apparent that the court’s file regarding Collin’s underlying felonies was before the trial court.” Id. (emphasis added). In Chandler v. Hemeyer, 49 S.W.3d 786 (Mo.App. W.D.2001), this court, citing Callahan, reemphasized that the record in a prior proceeding necessary to establish an essential element of a claim may be judicially noticed if the file is 'physically before the court. Chandler, 49 S.W.3d at 792 (citing Callahan, 978 S.W.2d at 474-75).

In State v. Dillon, 41 S.W.3d 479 (Mo.App. E.D.2000), another criminal forfeiture case, the records which evidenced conviction on the predicate criminal offense were not made a part of the forfeiture record, though the trial court found the defendant had pleaded guilty to the predicate offense. Id. at 482. The State filed a timely motion to supplement the record on appeal with a copy of the records from the prior proceeding. Id. The State argued the trial court had effectively taken judicial notice of the records from the previous proceeding during the forfeiture proceeding, and that the records of the prior proceeding should therefore be made a part of the record on appeal. Id. The Eastern District noted that “[t]he issue here is the degree of specificity that must be articulated by the trial judge to indicate that judicial notice of a previous proceeding has been taken.” Id. “We are mindful of the general rule that a court will take judicial notice of its own records.” Id. (citing State v. Pennick, 364 S.W.2d 556, 559 (Mo.1963)). “Further, a court will be presumed to have taken judicial notice of previous cases before it if justice required that [the] court take such judicial notice and there was no showing that [the] court refused to do so.” Id. at 483. In Dillon, the trial court made three specific references to the previous motion hearing on the record, including a reference at the outset of the forfeiture hearing that “there were two files,” a reference to an inter-pleader’s testimony “through both of these cases,’ ” and a reference when the State offered to put the defendant’s prior charges in evidence to the that fact this information was “in the other file.” Id. at 483. Based on the number and specificity of the trial court’s references to the records from the prior proceeding, the Eastern District concluded that “[w]hile the forfeiture action transcript is not as clear as we would like it to be, it is sufficient to demonstrate that the trial judge had and took judicial notice of the previous proceedings, and, therefore, they were part of the record below.” Id. (footnote call number omitted). However, the Eastern District noted that “[t]he better practice is for the State to still offer the previous record into evidence and/or formally request that the trial judge take judicial notice of the previous proceeding.” Id. n. 4 (citing Pen-nick, 364 S.W.2d at 559).

Unlike Callahan, we have the benefit of a transcript. It leaves no question that the Board did not take official notice on the record of its records from the prior proceeding with Moore. The presumption of a correct judgment afforded the trial court in Callahan offers no recourse to the Board, as the transcript rebuts the presumption as it relates to official notice having been taken on the record. Moreover, there was no mention on the record of the case number for Moore’s prior proceeding as to permit us to surmise that the prior file was even before the Board — a requirement for taking official notice of records from a prior proceeding. Unlike Dillon, the Board’s single reference to the 2007 Stipulation and the 2007 Consent Order was not sufficiently specific to warrant treating the reference as the functional equivalent of taking official notice. We cannot conclude that the Board took official notice of the 2007 Stipulation or the 2007 Consent Order in the manner required by section 536.070(6). Thus, neither document was permissibly before the Board for its consideration in determining whether to impose additional discipline pursuant to section 324.042. Other Competent and Substantial Evidence SuppoHing the Order

Though we conclude that the 2007 Stipulation and the 2007 Consent Order were not admitted in evidence by the Board pursuant to either section 536.070(5) or section 536.070(6), we are not bound to summarily accept Moore’s premise that the Order is not supported by competent and substantial evidence. If the Order is supported by other competent and substantial evidence found in the uncontested record, the Order will be affirmed. Alban-na, 293 S.W.3d at 428.

The Board’s certified record, assimilated for submission to the trial court as required by section 536.130, and then included by Moore as a part of the Record on Appeal, is very brief. Excluding the Order and a letter dated March 20, 2008, directing a copy of the Order to Moore, the Board’s record includes: (i) the transcript of the disciplinary hearing conducted on January 19, 2008, (ii) the three exhibits offered during the disciplinary hearing by Moore, (iii) a December 14, 2007 letter from the Board to Moore enclosing a copy of the Notice, (iv) a November 27, 2007 letter from the Board to Moore enclosing a copy of the Notice, (v) the Notice, and (vi) the Complaint.

We note that Moore did not complain about the Board’s inclusion of the Notice or the Complaint in the certified record assimilated for submission to the trial court. Section 536.130 permits inclusion in an agency record assimilated for submission to the reviewing court “[s]uch parts of the record, proceedings and evidence before the agency as the parties by written stipulation may agree upon.” Section 536.130.1(1). Though not a written stipulation, Moore did confirm on the record that the parties had reached an agreement about the allegations in the Complaint. If Moore disagreed with the Board’s treatment of the allegations in the Complaint as admitted, Moore should have timely objected to inclusion of the Complaint in the record certified by the Board as permitted by section 536.130.3. Moore did not do so. Instead, Moore has perpetuated the absence of any objection to inclusion of the Notice and the Complaint in the record certified by the Board and submitted to the trial court by his inclusion of both pleadings in the Record on Appeal. It is true that the Board did not formally offer by reference into evidence the Notice or the Complaint pursuant to section 536.070(5). Moreover, the Board did not take official notice of these pleadings during Moore’s disciplinary hearing pursuant to section 536.070(6). Unlike the 2007 Stipulation and the 2007 Consent Order, however, we are comfortable concluding that the Notice and Complaint were appropriately before the Board for its consideration, particularly given the absence of any objection by Moore, and given Moore’s acquiescence on the record to the fact that the allegations in the Complaint had been agreed upon. Though the better practice would have been for the Board’s counsel to introduce the Complaint into evidence at the point Moore confirmed by his testimony that the parties had reached an agreement on the allegations in the Complaint, we conclude that Moore’s testimony, coupled with the uncontested representation by the Board’s counsel that the allegations in the Complaint had been agreed to, were sufficiently specific to warrant treating the Complaint as effectively admitted in evidence by stipulation. We are thus per-raitted to consider the admitted allegations of the Complaint as we make a ‘“single determination whether, considering the whole record, there is sufficient competent and substantial evidence to support’ ” the Board’s Order. Albanna, 293 S.W.3d at 428 (citation omitted).

In Finding of Fact One, the Board concludes Moore was licensed, his license number, that his license is current and active. This corresponds with an almost verbatim allegation in paragraph 2 of the Complaint.

Finding of Fact Two concludes that the parties reached an agreement regarding the allegations in the Complaint at the hearing and, specifically, that Moore admitted that on August 31, 2007, he submitted to a urine drug screen which tested positive for cocaine in violation of the 2007 Joint Stipulation. With the exception of the phrase “in violation of the 2007 Joint Stipulation,” this finding of fact is drawn nearly verbatim from Moore’s testimony at the disciplinary hearing. The phrase “in violation of the 2007 Joint Stipulation” is found in paragraph 6 of the Complaint, where the Dental Board alleged that “on August 31, 2007, Dr. Moore tested positive for cocaine in violation of the parties January 16, 2007 Stipulation.”

Finding of Fact Three concludes that Moore relapsed by consuming cocaine approximately three to four days prior to the August 31, 2007 drug screen. This finding of fact is drawn directly from the examination of Moore by his own counsel during the disciplinary hearing.

Findings of Fact Four and Five summarize Moore’s conduct following his relapse with respect to seeking assistance from Davis and temporarily ceasing the practice of dentistry, and notes this was Moore’s second time for treatment for chemical dependency. These findings are drawn directly from the examination of Moore conducted by Moore’s counsel during the disciplinary hearing.

Finding of Fact Six concludes that Moore’s original clean and sober date was April 27, 2004, and that since his relapse, Moore’s clean and sober date is September 15, 2007. This finding is taken nearly verbatim from Moore’s response to questions from a member of the Board during the disciplinary hearing.

Findings of Fact Seven, Eight, and Nine reference and summarize, respectively, sections 195.017, 195.005 to 195.425, 195.202.1, and section 620.151. Section 490.080 states: “Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.” Section 536.070(6) permits administrative agencies to “take official notice of all matters of which the courts take judicial notice.” The Board’s findings were thus supported by taking official notice of the referenced statutes.

Finding of Fact Ten states as follows:
Cause exists to impose additional discipline on Dr. Moore’s dental license pursuant to paragraph 26 of the 2007 Joint Stipulation and Section 620.153, RSMo 2000, which states ‘... in the event the Board determines Licensee has violated any term or condition of this Agreement, the Board may, in its discretion, after an evidentiary hearing, vacate and set aside the discipline imposed herein and may suspend, revoke or otherwise lawfully discipline Licensee.’

The internally quoted text in this Finding of Fact is taken directly from section 324.042 (formerly section 620.153). As we have noted, the Board was entitled, and was in fact required, to take official notice of Missouri statutes. Section 490.080. Moore contests the corollary reference to paragraph 26 of the 2007 Joint Stipulation. However, though the 2007 Stipulation was not in evidence, paragraph 26 of the 2007 Stipulation was set forth as an allegation in the Complaint and was thus admitted by Moore. Specifically, paragraph 12 of the Complaint alleged:

12. Paragraph 26 of the January 16, 2007 Stipulation states:
[I]n the event the Board determines that Licensee has violated any term or condition of this Agreement, the Board may, in its discretion, after an evidentia-ry hearing, vacate and set aside the discipline imposed herein and may suspend, revoke or otherwise lawfully discipline Licensee.

Paragraph 26 of the 2007 Stipulation was nothing more than a restatement of Section 324.042.

Other admitted allegations in the Complaint, though not recited in the Board’s Order, are nonetheless relevant to our review to determine whether the record as a whole reflects that the Order is supported by competent and substantial evidence. Those admitted allegations included the following:

3. On January 16, 2007, the Board filed its First Amended Complaint at the Administrative Hearing Commission (‘AHC’) seeking to discipline Dr. Moore’s dental license based on Dr. Moore’s chemical dependency and related impairment, Case No. 05-1149DB.
4. On January 16, 2007, the Board also filed a Waiver of Hearing, Joint Stipulation and Request for Consent Order (‘Stipulation’) wherein the parties stipulated that cause to discipline Dr. Moore’s dental license existed based on violations of section 332.321.2(20), RSMo related to Dr. Moore’s chemical dependency and related impairment.
5.On January 17, 2007, the AHC issued its Consent Order finding cause to discipline Dr. Moore’s dental license. Dr. Moore’s dental license was suspended for 90 days immediately followed by 5 years probation with certain terms and conditions, including abstention from the possession and consumption of controlled substances unless pursuant to a valid prescription.

11. Prior to August 31, 2007, at a date certain known only to Dr. Moore, Dr. Moore relapsed and consumed cocaine in violation of Paragraphs 9 and 21 of the January 16, 2007 Stipulation which states:

9. During the period of probation, Licensee shall comply with all provisions of Chapter 332, RSMo; all rules and regulations of the Missouri Dental Board and all federal and state laws, rules and regulations. ‘State’ here includes state of Missouri and all other states and territories of the United States.
21. During the disciplinary period, Licensee shall abstain completely from the personal use or possession of any controlled substance or other drug for which a prescription is required unless that use of the drug has been prescribed by a person licensed to prescribe such drug and with whom Licensee has a bona fide relationship as a patient. Licensee shall forward to the Board written documentation of any such prescription within ten days of issuance.... The presence of any controlled substance whatsoever in a biological fluid and/or hair follicle and/or breath sample for which Licensee does not hold a valid prescription or for a prescription or for a prescription that Licensee has not forwarded documentation to the Board as required herein shall constitute a violation of this Order.
13. Cause exists to impose additional discipline in Dr. Moore’s dental license pursuant to paragraph 26 of the January 16, 2007 Stipulation and section 620.153, RSMo 2000, which states ‘any board, commission or committee within the division of professional registration may impose additional discipline when it finds after a hearing that a Licensee [ ... ] has violated any disciplinary terms previously imposed or agreed to pursuant to settlement. The board, commission or committee may impose as additional discipline, any discipline it would be authorized to impose in an initial disciplinary hearing.’
14. Licensee’s conduct is in violation of the terms and conditions of the January 16, 2007 Stipulation, thus entitled the Board to impose additional discipline.

These admitted allegations establish the circumstances giving rise to Moore’s prior disciplinary proceeding, the nature of the prior disciplinary proceeding, the disposition of the prior disciplinary proceeding, and the prior terms of discipline imposed.

We conclude that the Order is supported by competent and substantial evidence drawn from the transcript and the admitted allegations in the Complaint. The 2007 Stipulation and the 2007 Consent Order were not the only evidence of the predicate disciplinary proceeding, such that their absence from the record necessitates a conclusion that the Order is without record support. Moore’s complaint that the Board did not properly admit either the 2007 Stipulation or the 2007 Consent Order in evidence, though correct, is a technical complaint that has no impact on our conclusion that the Order is supported by other competent and substantial evidence. Point One is denied.

Point II

Moore next contends that the Order’s imposition of additional discipline in the form of revocation of Moore’s license for at least one year is not supported by competent and substantial evidence as the Board failed to take into consideration the evidence of Moore’s rehabilitation subsequent to his relapse and Moore’s voluntary cessation of his practice following his relapse. The essence of Moore’s complaint is that the Board did not afford due weight to the testimony of Moore or Davis relating to Moore’s rehabilitation efforts following his admitted relapse, and his commitment to continued monitoring.

Moore argues that the only evidence the Board had to support discipline was Moore’s testimony at the hearing of one positive drug test. The premise underlying Moore’s second point on appeal is that Moore did not admit all of the allegations in the Complaint but only those allegations in the Complaint about which he was specifically asked. We have concluded otherwise. As a result, we are afforded a record that permits us to easily discard Moore’s objection to the discipline imposed by the Order.

We note again our standard of review is “ ‘whether, considering the whole record, there is sufficient competent and substantial evidence to support the [agency’s decision], This standard would not be met in the rare case when the [agency’s decision] is contrary to the overwhelming weight of the evidence.’ ” Albanna, 293 S.W.3d at 428 (quoting Lagud, v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d 786, 791 (Mo. banc 2004)). Here, Moore admits he was previously subject to discipline for cocaine use. He admits he relapsed. Moore admits that he violated the terms of probation previously imposed. Moore admits his use and/or possession of cocaine provides a statutory basis for discipline of his license. Notwithstanding, Moore suggests that the Board was bound to follow the recommendation of Davis, who opined that Moore was being successfully rehabilitated and should be permitted to continue practicing. We disagree.

Section 324.042 permits the Board to “impose as additional discipline any discipline it would be authorized to impose in an initial disciplinary hearing.” Moore does not contend the Board would have been unable to revoke his license in response to the initial disciplinary proceeding. Moore does not contend, therefore, that the additional discipline imposed in this case, revocation of Moore’s license, is unlawful. Moore simply disagrees with the Board’s decision to impose additional discipline — at least to the extent the additional discipline involves revocation of his license.

The role of the Board is not to punish misconduct but, rather, to protect the public. Johnson v. Bd. of Nursing Adm’rs, 130 S.W.3d 619, 645 (Mo.App. W.D.2004). Moore was given an opportunity following his first disciplinary proceeding to show that he could conform his conduct to probationary terms that would satisfy the Board Moore was not a threat to the public. Moore failed to satisfy the terms of his probation and expressly violated the most compelling term of his probation — to remain drug free. He had previously received treatment for his cocaine use following his first disciplinary proceeding, yet he relapsed. Though Moore, commendably, sought other rehabilitation after his relapse, little time had passed between the relapse and Moore’s hearing. The Board was not obliged to believe that Moore would not relapse again and, given its obligation to protect the public, acted prudently in revoking Moore’s license for at least one year. Though the Board could have elected not to impose additional discipline, or to impose additional discipline less punitive than revocation of Moore’s license, it was not obligated to do so. The Board had the authority to revoke Moore’s license for at least one year as additional discipline for Moore’s second involvement with illegal narcotics. The Board’s decision to impose additional discipline by revocation of Moore’s license is supported by competent and substantial evidence. Point two is denied.

Conclusion

Pursuant to section 536.070(5) or section 536.070(6), the Board did not properly admit in evidence either the 2007 Stipulation or the 2007 Consent Order from Moore’s prior disciplinary proceeding, the predicate for the Board’s ability to consider imposing additional discipline on Moore’s license pursuant to section 324.042. However, the Board’s Order revoking Moore’s license for a period of not less than one year was nonetheless supported by other competent and substantial evidence on the whole record given Moore’s testimony and his admission of the allegations in the Complaint which asserted violation of 2007 Stipulation and the 2007 Consent Order. The Board’s decision to revoke Moore’s license as additional discipline for Moore’s second disciplinary action involving the use of cocaine was supported by competent and substantial evidence, notwithstanding competing evidence of Moore’s voluntary attempts at rehabilitation and suggesting that Moore should be permitted to continue practicing dentistry. The Board’s Order is affirmed.

All concur.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated. In 2008, portions of the Missouri Revised Statutes were renumbered. Section 620.153 was repealed and renumbered as section 324.042. Section 324.042 and former section 620.153 are identical.

      . For ease of reference, the waiver of hearing, joint stipulation, request for consent order filed on January 16, 2007, will be referred to as “2007 Stipulation,” and the consent order issued by the Administrative Hearing Commission on January 17, 2007, will be referred to as "2007 Consent Order.”

      . Moore used the term "relapse” throughout his testimony, suggesting the incident which brought him before the Dental Board was not his first involving the use of cocaine.

      . At Davis's suggestion, Moore voluntarily ceased practicing dentistry after his failed drug test.

      . The phrase "records and documents” is not defined. As will be seen, there may be permissible overlap in the scope of section 536.070(5) permitting admission of an agency’s records and documents by reference and the scope of section 536.070(6) permitting an agency to admit certain evidence by official notice (which evidence may include agency records or documents).

      . It is unclear why the Southern District treated the hearing officer’s statement as an offer by reference under section 536.070(5) instead of an attempt to take official notice of agency records under section 536.070(6). The explanation, though elusive, is not material to our discussion.

      . It is revealing that the 2007 Stipulation and the 2007 Consent Order were not included in the record filed in the trial court and certified by the Board as required by section 536.130. Section 536.130.1(3) requires the certified record to include the "transcript of the entire record, proceedings and evidence before the agency.” If the Board believed it had admitted by reference or by official notice the 2007 Stipulation and the 2007 Consent Order in evidence, it is inexplicable that neither document would have been made a part of the certified record prepared by the Board. The same certified record was included as a part of the Record on Appeal filed by Moore in this court. The Board did not seek to file a Supplemental Record on Appeal to add the 2007 Stipulation and the 2007 Consent Order pursuant to Rule 81.12(c) or (e). The Board did attach the 2007 Stipulation and the 2007 Consent Order as an Appendix to its brief. As we have concluded that the 2007 Stipulation and the 2007 Consent Order were not admitted in evidence pursuant to either section 536.070(5) or section 536.070(6), we similarly conclude the documents would not have been properly a part of the Record on Appeal and should not have been attached as an Appendix to the Board's brief. We have, therefore, disregarded the Board's Appendix, rendering moot Moore's Motion to Strike which was taken with the case.

      . Moore did not contest the Board's counsel's statement at the beginning of the disciplinary hearing that “agreement had been reached” regarding the allegations in the Complaint. When asked generally, Moore confirmed that an agreement had been reached regarding the allegations in the Complaint. That general question was followed by three specific questions where Moore confirmed (i) submitting to a urine test on August 31, 2007, (ii) pursuant to the terms of discipline, and (iii) testing positive for cocaine in the Complaint. Moore argues the specific follow up questions effectively limited the scope of Moore’s general acknowledgement that agreement had been reached to just those allegations in the Complaint about which specific inquiry was made. We do not agree. We easily conclude that Moore’s collective testimony, which followed almost immediately after the Board's counsel's representation to the Board, confirmed that the parties had reached an agreement stipulating to each of the allegations in the Complaint.

      . The Board contends that Moore also admitted the allegations in the Complaint by not filing an Answer to the Complaint. Though section 536.068 advises any responsive pleading, including an Answer, "shall be filed within the time limits specified for filing an answer under the rules governing civil practice in circuit courts in Missouri,” section 536.063(1) provides "that no answering instrument shall be required unless the notice of institution of the case states such requirement.” The Notice in this case did not advise Moore that an Answer was required. Therefore, Moore’s failure to file an Answer admitted nothing.

      . As previously noted, Moore resumed his dental practice following entry of the Order pursuant to the terms of the Stay entered by the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Vincent Keith MINNER, Appellant.
    No. WD 70338.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Kent Denzel, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, RUSSELL E. STEELE, Special Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Vincent Minner appeals from a judgment of conviction entered following a jury verdict. Minner was convicted of first degree murder, first degree assault, first degree burglary, and two counts of armed criminal action. On appeal, Minner claims the trial court erred in permitting an officer to testify to statements made at the scene of the crime by the murder victim, which implicated Minner, as a dying declaration. Minner also claims the jury could not have found beyond a reasonable doubt that the murder victim died as a result of the gunshot wounds inflicted by Minner or that Minner acted with deliberation. Finally, Minner alleges the trial court committed plain error in failing to intercede when the State in closing argument characterized a statement made by Minner’s counsel during closing argument as deception. We affirm.

Factual and Procedural History

During the overnight hours of December 4-5, 2006, Michael Terry (“Terry”) and Jennifer Terry (“Jennifer”), then husband and wife, were at home, sleeping, in their apartment in Sikeston, Missouri. Jennifer was in the bedroom. Terry was in the living room, because he was suffering from pain following a recent hospitalization. Jennifer was awakened by a knock on the door. She looked out her bedroom window. She saw Minner and another man at the door. Jennifer heard Terry ask who was at the door. Jennifer heard Minner respond, “It’s V.” Jennifer knew this to be a nickname used by Minner. Jennifer heard a gunshot followed immediately by an exclamation from Terry consistent with having been shot.

Jennifer then heard the sound of the front door being kicked in. She opened her bedroom door and saw Minner in the apartment. There was no sign of the second man she had seen when she first looked out her bedroom window. Terry screamed at Jennifer to get back into the bedroom. Jennifer closed and locked the bedroom door. She picked up the phone to dial 911, but the phone was not working. Jennifer called 911 from her cell phone.

Jennifer heard Minner ask Terry, “Where’s the bitch at?” Terry asked Min-ner why he was doing this, to which Min-ner responded he was doing it for Brandon Johnson, Orlando Sheron, Travis Williams, and others. Jennifer heard sounds of a struggle and then two or three gunshots. Minner then kicked in the bedroom door. Minner punched Jennifer and stabbed her in the neck with a knife.

Minner headed towards Jennifer’s grandmother’s room. Jennifer was afraid for her grandmother’s safety. She left the bedroom and saw Minner and Terry fighting in the kitchen. Jennifer picked up a knife lying on the floor and began stabbing Minner. As the three struggled, Minner attempted to pick up the gun which had also fallen to the floor. Jennifer grabbed the gun and put it up in a kitchen drawer. By this time, the struggle between Minner and Terry had taken its toll. Spent and seriously injured, both men lay in different locations in the apartment. Jennifer sat on top of Minner to prevent him from leaving. Minner said to Terry, “Just die with me, man. Just die with me.”

When officers arrived at the scene, they found Jennifer bloody, disheveled, and disoriented. The apartment was in complete disarray. Blood spatter and broken glass and furniture were found throughout the apartment. Terry was kneeling on the living room floor. Minner was lying on his back in front of the refrigerator. Both men were bleeding heavily. EMTs arrived. Jennifer was placed in an ambulance and was being treated for a laceration to her neck. Jennifer told officers on the scene that Minner shot Terry through the apartment door.

EMTs on the scene initially treated Terry where he lay in the apartment. Captain James Hailey (“Hailey”) then spoke with Terry. Hailey testified that Terry had gunshot wounds to his chest and head and that Terry was weak, ashen, and lying in blood. After conferring with a supervising officer, Hailey told Terry that it looked like he was dying and asked Terry who had shot him. Terry responded that the medics had told him that he was dying and that he knew that he was dying. Hailey again asked Terry who had shot him. Terry indicated to Minner.

During their investigation, officers observed a bullet hole in the front door of the apartment with a burn pattern and stippling on the door. The bullet had gone all the way through the door. The officers also observed damage to the door indicating the door had been forced open. Several live .45-caliber rounds and spent .45-caliber shell casings were found in the apartment. The gun Jennifer had placed in the kitchen drawer was a .45-caliber semiautomatic handgun. Ballistics tests confirmed the gun found in the kitchen could have fired the bullets that were recovered.

Terry was transported to the hospital. Two bullets were recovered from Terry after he underwent surgery, one from his chest and the other from his back. Though Terry initially showed signs of recovery, his condition soon thereafter deteriorated. Terry died on January 2, 2007. Dr. Deidiker performed an autopsy. The autopsy revealed three healing gunshot wounds. One gunshot wound was to the right shoulder. One shot grazed Terry’s skull. One shot lacerated a section of Terry’s liver, pierced his diaphragm and ended up in his abdominal wall. The autopsy also revealed that Terry had a very cirrhotic liver and signs of heart failure— such as an enlarged heart, lungs that were congested by a buildup of fluids, and congestion of the spleen and adrenal glands. Dr. Deidiker testified that, to a reasonable degree of medical certainty, the primary cause of Terry’s death was multiple organ failure as a complication of multiple gunshot wounds. Though Dr. Deidiker testified that Terry was already in poor health due to having cirrhosis of the liver and liver cancer, Dr. Deidiker opined that the gunshot wounds created an additional stress on Terry’s body that Terry could not withstand.

Following a jury trial, Minner was convicted on Count I — Murder First Degree under section 565.020, on Count II — Assault First Degree under section 565.050, on Count IV — Burglary First Degree under section 569.160, and on Counts VI and VII — Armed Criminal Action under section 571.015. Minner was acquitted on Count II — Assault First Degree, on Count V — Tampering with a Victim/Witness, and on Count VIII — Armed Criminal Action. Minner was determined to be a prior offender. Minner was sentenced to life imprisonment without possibility of probation or parole on Count I. He was sentenced to ten years on each of Counts II, IV, VI, and VII, with his sentences on Counts II and IV to run concurrent with the sentence on Count I, and with his sentences on Counts VI and VII to run concurrent with each other but consecutive to the sentence on Count I. This appeal follows.

Point One

In his first point on appeal, Minner contends that the trial court erred in admitting, over Minner’s objection, the hearsay testimony of Hailey relaying the statement made by Terry, which implicated Minner as his assailant. Minner’s point relied on actually raises two separate arguments. First, Minner contends that Terry’s statement did not qualify as a dying declaration because the totality of the circumstances did not objectively demonstrate that Terry’s death was imminent. Second, Minner contends that Terry’s statement was testimonial hearsay deemed inadmissible in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because a defendant has the right to confront his accuser pursuant to the Confrontation Clause.

During trial, Minner’s counsel objected to Hailey’s testimony regarding a statement made to him by Terry “based on a previous motion.” The previous motion was a motion in limine that the court had just reviewed and had before it. In order to preserve an objection for appellate review based on a motion in limine, it is necessary to object at trial when the relevant evidence is being presented, because a “motion in limine, in and of itself, preserves nothing for appeal.” State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). Although, Terry’s counsel did timely object at trial when Hailey was asked about Terry’s dying declaration, trial counsel did not specifically state the basis for the objection but, instead, cross referenced the motion in limine. The motion in limine argued that Terry’s statement was inadmissible hearsay. The specific basis for the hearsay objection raised in the motion in limine was a lack of foundation to warrant treating Terry’s statement as a dying declaration. We conclude that Minner’s objection at trial preserved this issue, which is the first argument asserted by Minner in his first point on appeal, for appellate review. As to this claim of error, we will afford the trial court broad discretion in assessing the admissibility of evidence, and we will not interfere with the trial court’s determination absent a clear abuse of discretion. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006).

Although we find that Minner’s objection preserved the hearsay objection based on a lack of foundation to support a dying declaration, we conclude the objection did not preserve the alleged constitutional claim for our review. “A hearsay objection does not preserve constitutional claims relating to the same testimony.” State v. Chambers, 891 S.W.2d 93, 104 (Mo. banc 1994) (citations omitted). “To preserve appellate review, constitutional claims must be made at the first opportunity, with citations to specific constitutional sections.” Id. at 103-04 (quoting State v. Parker, 886 S.W.2d 908, 925 (Mo. banc 1994)). The motion in limine failed to address the second argument raised by Minner in his first point on appeal — the constitutional impermissibility of admitting Terry’s statement, even if properly determined to be a dying declaration, because of the protections afforded Minner by the Confrontation Clause. Although the motion in limine mentioned the Confrontation Clause, the motion mistakenly cited Crawford for the proposition that “absent some exception to the rule against hearsay, the admission of such is improper.” This is not what Crawford holds. Crawford holds that testimonial hearsay (a subsection of all evidence that is hearsay), even if qualified as an exception to the hearsay rule, cannot be admitted in a criminal case, as a general rule, because of the Confrontation Clause. Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354. The Confrontation Clause provides that “[i]n all criminal prosecutions the accused shall enjoy the right ... to be confronted with witnesses against him.” U.S. Const, amend. VI. Minner’s hearsay objection was limited to the argument that Terry’s statement did not qualify as an exception to the hearsay rule and, thus, should not have been admitted. Minner never argued that Terry’s statement, even if qualified as an exception to the hearsay rule, should not have been admitted because to do so would violate Minner’s rights under the Confrontation Clause. Minner is not permitted to “ ‘broaden the objection he presented to the trial court; [and] he cannot [on appeal] rely’ ” on this new theory. State v. Clark, 280 S.W.3d 625, 628 (Mo.App. W.D.2008) (quoting State v. Phillips, 939 S.W.2d 502, 505 (Mo.App. W.D.1997)). Minner’s claim that admission of Terry’s statement to Hailey violated his rights under the Confrontation Clause has not been preserved.

Had Minner’s claim been properly preserved, we would have reviewed the trial court’s admission of Terry’s dying declaration de novo. State v. Nabors, 267 S.W.3d 789, 793 (Mo.App. E.D.2008). However, as Minner’s claim has not been preserved, our review is for plain error. Review of plain error involves a two-step process:

First, we must determine if the claim on its face establishes substantial grounds to find that manifest injustice or miscarriage of justice has resulted. Not all prejudicial error can be deemed plain error. Plain error is evident, obvious, and clear error. If plain error is evident on the face of the claim, then we may proceed to consider whether or not a miscarriage of justice or manifest injustice will occur if left uncorrected. Where no plain error appears on the face of the claim, we should decline to exercise our discretion to review the claim.

State v. Nibarger, 304 S.W.3d 199, 201 (Mo.App. W.D.2009) (internal citations omitted) (quotation marks omitted).

Analysis

Dying Declaration

We will first address Minner’s contention that the trial court abused its discretion by permitting admission, as a dying declaration, of Hailey’s testimony regarding Terry’s statement implicating Minner. “Our review of the trial court’s decision to admit hearsay testimony ... is limited to a determination of whether such admission amounted to an abuse of discretion.” State v. Costa, 11 S.W.3d 670, 678 (Mo.App. W.D.1999). A trial court abuses its discretion when its ruling is “‘clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ ” Id. at 678-79 (quoting Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992)). “The evidence is viewed in the light most favorable to the result of the trial court.” Id. at 679.

Hearsay is an out of court statement offered to prove the truth of the matter for which it is asserted. State v. Wallingford, 43 S.W.3d 852, 854 (Mo.App. W.D.2001). One exception to the hearsay rule is the dying declaration. “In order for hearsay testimony to be admissible under that exception, the State is required to demonstrate that the hearsay statements were made while the declarant believed that his or her death was imminent and that there was no hope of recovery.” State v. Hayes, 88 S.W.3d 47, 63 (Mo.App. W.D.2002) (emphasis added). The declar-ant’s subjective belief of death “ ‘may be inferred from the declarant’s condition and other circumstances which indicate his apprehension of imminent death.’ ” Id. (quoting State v. Mahone, 699 S.W.2d 60, 62 (Mo.App. E.D.1985)). If the declarant believes, based on his condition, that he will die almost immediately, that is sufficient to demonstrate the dying declaration exception to hearsay. Id.

Viewing the evidence in the light most favorable to the trial court’s decision, the trial court did not abuse its discretion in allowing Hailey to testify to Terry’s statement implicating Minner. At the time Hailey testified, the jury had previously heard testimony from Officer Tim Bartlett (“Bartlett”), who was one of the first officers to arrive at the scene, regarding the nature of the crime and the physical state of Terry. Bartlett testified, without objection, that the apartment was in total disarray, blood was spattered everywhere, and that in his nearly fourteen years of working in the law enforcement field he had never seen a crime scene like this one before. Bartlett also testified that Terry was bleeding heavily and appeared to be severely injured. This testimony permitted the trial court to reasonably infer Terry had an apprehension of imminent death.

Hailey also testified regarding his observations about the severity of Terry’s injuries:

Q: When you got there, again, who did you see when you first went into the residence? Who did you see there?
A: When I first went into the room, there was two people laying in the front — one in the front room. He was identified as Mr. Terry. And then there was one laying in front of the refrigerator in the kitchen that was identified as Mr. Minner.
Q: All right. When you first went in there, what kind of condition was Mr. Terry in at that time?
A: He was wounded. He had a gunshot wound to the chest and then a wound to the head that later learned to be a gunshot wound. He was lying in blood.
Q: All right. How would you describe the condition of his appearance at that point in time?
A: He looked like he had been wounded severely. He was weak and he had kind of an ashen color.

This testimony corroborated Bartlett’s testimony and also supported a reasonable inference that Terry believed his death was imminent. Hailey’s testimony continued with a discussion of his efforts to secure information from Terry about his assailant:

Q: And did you approach Mr. Terry?
A: Yes, I did.
Q: And what was your discussion with him at that time?
A: I told him that it looked like he was dying and that — asked him who — who shot him.
Q: When you asked him that question what did he tell you about his—
A: He said
Mr. Kenyon: Excuse me. I’ll object based on the previous motion.
The Court: Pardon?
Mr. Kenyon: I’m just offering a contemporaneous objection.
The Court: Objection will be overruled.
Q: What did he tell you about his— what he knew about his condition?
A: He said that the medics told him that he was dying and that he knew it. Q: And what question did you ask him? A: I asked him who shot him or who did this to him.
Q: And what — how did he respond?
A: He indicated the person in front of the refrigerator. I asked him if he knew his name and he said, No. And I said, Who did it? And he indicated the gentleman over there.

This testimony indicated Terry subjectively believed that his death was imminent and that there was no hope of recovery.

Minner contends that Terry “was not a man near death, whether he thought he was or not.” To support this argument, Minner points to the fact that medics were not providing frantic treatment to Terry, they were not even with Terry at the time his statement was made to Hailey, and Terry did not volunteer statements to loved ones. Though Terry was severely wounded, Minner argues the scene described by Hailey was calm, more in keeping with a traditional interrogation. Based on these circumstances, Minner contends that it was not reasonable for Terry to believe he was dying. Of paramount importance to Minner’s argument is the fact that Terry did not die soon after his statement. Minner essentially argues that a declarant’s stated belief that death is imminent must be objectively reasonable. Min-ner also argues that even if Terry reasonably believed his death was imminent, there was no evidence Terry believed there was no hope of recovery. Minner’s arguments are without merit.

A declarant’s subjective belief that death is imminent is all that need be shown. Hayes, 88 S.W.3d at 63. It is true a trial court must evaluate whether the “declarant believed that his or her death was imminent and that there was no hope of recovery.” Id. (citing State v. Smith, 32 S.W.3d 532, 547 (Mo. banc 2000)). However, “ ‘[t]hese beliefs, if in fact they are two separate beliefs rather than the same belief expressed differently, may be inferred from the declarant’s condition and other circumstances which indicate his apprehension of imminent death.’ ” Id. (quoting Mahone, 699 S.W.2d at 62) (emphasis added). The circumstances Minner described about the scene, along with testimony from officers about their observations regarding Terry’s serious injuries and ashen appearance, were collectively relevant to the trial court’s evaluation of the condition of Terry’s state of mind at the time of the declaration. Absent more, the trial court’s determination that this evidence supported a reasonable inference that Terry believed he was dying would not have been an abuse of discretion. Here, however, the trial court had more— an affirmative statement from Terry that he believed his death was imminent. The trial court did not need to rely merely on the circumstances of the crime scene or on third party observations to attempt to discern Terry’s state of mind. “ ‘The best method of proving the state of mind of the declarant, and one frequently not available, is his express statement concerning that state of mind.’ ” Hayes, 88 S.W.3d at 64 (quoting State v. Liggins, 725 S.W.2d 75, 76 (Mo.App. E.D.1987)).

The trial court’s admission of Hailey’s testimony concerning Terry’s statement was not an abuse of discretion. The trial court’s conclusion that Terry’s statement was a dying declaration did not clearly go against the logic of the circumstances before the court. Minner’s first argument under point one is denied.

Confrontation Clause

We will now address for plain error Minner’s contention that allowing Hai-ley to testify about Terry’s dying declaration violated Minner’s constitutional right to confront witnesses pursuant to the Confrontation Clause. As previously noted, plain error review first requires a showing that Minner’s claim, on its face, establishes a substantial ground to find that manifest injustice or miscarriage of justice has resulted. We conclude Minner cannot establish this threshold prong for plain error review.

Crawford held that “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ” 541 U.S. at 61, 124 S.Ct. 1354. The United States Supreme Court thus concluded that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69, 124 S.Ct. 1354. Thus, in examining hearsay in a criminal case, the first inquiry must be whether the hearsay is “testimonial.” The definition of “testimonial” was purposefully not addressed by the court in Crawford. Id. at 53 n. 4, 124 S.Ct. 1354. The Court nonetheless comfortably concluded that “interrogations by law enforcement officers fall squarely within [the] class” of testimonial hearsay. Id. at 53, 124 S.Ct. 1354. Terry’s statement to Hailey was in response to Hailey’s interrogation, or questioning, of him and was likely “testimonial hearsay.” However, this does not end our inquiry under Crawford, because Terry’s statement was a dying declaration.

To determine whether the Framers’ intended to permit certain testimonial hearsay to remain admissible, the Court analyzed whether exceptions permitting testimonial hearsay against an accused in a criminal case existed prior to 1791, the year the Sixth Amendment was adopted. Crawford, 541 U.S. at 38-55, 124 S.Ct. 1354. The court noted:

The one deviation we have found involved dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.

Id. at 56 n. 6, 124 S.Ct. 1354 (internal citations omitted). Thus, Crawford does not support exclusion of Terry’s dying declaration to Hailey, even if that dying declaration is deemed to be testimonial hearsay. Minner acknowledges in his brief “that most, in fact nearly all, courts that have considered the impact of Crawford ... have held that dying declarations do not violate the Confrontation Clause.” In fact, the United States Supreme Court had occasion in Giles v. California, — U.S. -, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) to discuss the dying declaration exception once again. Though Giles involved the scope of admissible hearsay under the forfeiture by wrongdoing doctrine in light of the Confrontation Clause, in addressing the dying declaration hearsay exception as a possible means of admitting the objectionable testimony, the court noted:

We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying. [Witness] did not make the unconfronted statements admitted at Giles’ trial when she was dying, so her statements do not fall within this historic exception.

Giles, 128 S.Ct. at 2682-83 (internal citations omitted) (emphasis added). There is certainly nothing is this recent pronouncement which permits us to conclude that the United States Supreme Court has determined testimonial dying declarations to be inadmissible under the Confrontation Clause. We conclude that Minner’s claim on its face does not establish substantial grounds to find that manifest injustice or miscarriage of justice has resulted. It is not plain error. Thus, we need not assess whether or not a miscarriage of justice or manifest injustice will occur if the alleged plain error is left uncorrected. Minner’s second argument under point one is denied.

Point Two

In Minner’s second point on appeal, Minner contends that the trial court erred in overruling his motion for judgment of acquittal and by entering judgment on the verdict of guilty of first degree murder. Minner contends that the evidence presented at trial was insufficient to establish beyond a reasonable doubt that Minner caused Terry’s death, because the evidence reflects that Terry had recovered from the gunshot wounds and died of an infection that was unrelated to the gunshot wounds.

“When considering a claim that alleges insufficient evidence to support a conviction, an appellate court’s review is limited to determining whether the evidence is sufficient for a reasonable juror to find each element beyond a reasonable doubt.” State v. Blair, 298 S.W.3d 38, 43 (Mo.App. W.D.2009). We must view the evidence and all reasonable inferences in the light most favorable to the verdict and disregard any evidence to the contrary. Id. We do not weigh the evidence, nor do we judge witness credibility, as those are matters left to the jury. State v. Redifer, 215 S.W.3d 725, 730 (Mo.App. W.D.2006).

Analysis

“The elements of first degree murder are: (1) knowingly (2) causing the death of another (3) after deliberation on the matter.” Blair, 298 S.W.3d at 44. Each element may be proved by circumstantial evidence, which is given the same weight as direct evidence. Id. at 45. In his second point on appeal, Minner contends that there was insufficient evidence from which a reasonable juror could have concluded that Minner caused Terry’s death beyond a reasonable doubt. We disagree.

At trial Dr. Deidiker, the doctor who performed Terry’s autopsy, testified to a reasonable degree of medical certainty that Terry’s primary cause of death was due to complications from multiple gunshot wounds which resulted in multiple organ failure. Dr. Deidiker testified that the cirrhosis of Terry’s liver, as well as his other health problems, weakened his body. He went on to testify that trauma, such as Terry’s, in a relatively healthy individual may not be fatal, but the same trauma in “someone who has a significant amount of natural disease” could be fatal. He said that such individuals with disease may not have the capacity to take on additional physical injury. The doctor testified that he believed that is what happened to Terry: “The gunshot wounds added to the physiologic stress of someone who already had severe natural disease and that resulted in his organs failing and ultimately his death.” Dr. Deidiker testified that “while the gunshot wounds themselves did not cause direct fatal injury to the organs the [sic] added stress to his body from those injuries ultimately pushed him over the edge — and his body was not able to compensate and recover from that.”

Dr. Deidiker’s testimony supports the conclusion that Terry caused Minner’s death, and the jury was free to believe this testimony. As Minner concedes, “ ‘[t]he unlawful act need not be the immediate cause of death. It is enough that it be a contributing proximate cause.’ ” State v. Black, 50 S.W.3d 778, 785 (Mo. banc 2001) (citations omitted). A person proximately causes the death of another, and hence is criminally culpable, where “ ‘the deceased was in feeble health and died from combined effects of the injury and of his disease, or if the injury accelerated the death from the disease ... although the injury alone would not have been fatal ... [and] although the disease itself would probably have been fatal, if the injury accelerated death.’ ” State v. Hanes, 729 S.W.2d 612, 617 (Mo.App. E.D.1987) (citations omitted).

Minner offered testimony from Dr. Nya-chome who posited alternative explanations for Terry’s death which he claimed were unrelated to and not exacerbated by Terry’s multiple gunshot wounds. Principally, Dr. Nyachome testified that Terry’s cause of death was infection unrelated to the gunshot wounds. Dr. Nyachome testified that Terry had, for all intents and purposes, recovered from the gunshots. Minner maintains that Dr. Nyachome’s testimony proves that the second element of first degree murder — causing the death of another — was not established beyond a reasonable doubt.

Minner’s argument ignores the fact that the jury was free to disbelieve the testimony of Dr. Nyachome or to view his testimony as less persuasive than the competing testimony of Dr. Deidiker. This is not a case where no evidence that Minner caused the death of Terry was presented to the jury. It is a case where competing evidence of Terry’s cause of death was presented to the jury. Credibility and the weighing of conflicting evidence are matters for the jury to determine. Redifer, 215 S.W.3d at 730. Because we view the evidence and all reasonable inferences in the light most favorable to the verdict and disregard any evidence to the contrary, we are left with the inescapable conclusion that the jury reasonably concluded that Minner caused Terry’s death. Point two is denied.

Point Three

In Minner’s third point on appeal, Min-ner contends that the trial court erred in overruling Minner’s motion for judgment of acquittal and by entering a judgment on the verdict of guilty of first degree murder. Minner contends that the evidence presented at trial was insufficient to establish beyond a reasonable doubt the third element of a first degree murder charge— deliberation. Blair, 298 S.W.3d at 44. Minner maintains that there was no cool reflection which would show deliberation because based on the State’s theory Min-ner went to the home to kill or bribe Jennifer and not Terry. Our standard of review is the same as that employed in addressing Minner’s second point on appeal.

Analysis

“ ‘Deliberation’ means cool reflection for any length of time no matter how brief.” Section 565.002(3). Whether deliberation exists is a matter for the jury to decide. State v. Davis, 914 S.W.2d 21, 22 (Mo.App. E.D.1995). Viewing the evidence in the light most favorable to the verdict there was sufficient evidence to permit a reasonable juror to conclude beyond a reasonable doubt that Minner deliberated on Terry’s death.

The collective testimony of Bartlett, Hailey, and Jennifer established that Min-ner had, on several occasions prior to Terry’s murder, approached Terry, not Jennifer, to attempt to pressure Terry into persuading Jennifer not to testify against Travis Williams. In addition to this testimony, Minner showed up at Terry’s apartment with a gun. Minner shot through the front door of the apartment after Terry inquired about who was knocking. Once Minner broke through the front door, he confronted an injured Terry and proceeded to fight with him, shooting him two more times. Minner and Terry struggled again after Minner attacked Jennifer. Minner never withdrew and offered no evidence that he attempted to withdraw, unlike the second man Jennifer saw outside the apartment who apparently fled after Minner shot through the front door.

For purposes of first-degree murder, “ ‘[deliberation may be inferred from the circumstances surrounding the murder.’ ” State v. Miller, 220 S.W.3d 862, 868 (Mo.App. W.D.2007) (quoting State v. Jones, 955 S.W.2d 5, 12 (Mo.App. W.D.1997)). Deliberation may be inferred from the fact that the defendant had the opportunity to terminate an attack after it began. State v. Cole, 71 S.W.3d 163, 169 (Mo. banc 2002). “A prolonged struggle is evidence of deliberation. Deliberation may also be inferred when there are multiple wounds or repeated blows.” State v. Johnston, 957 S.W.2d 734, 748 (Mo. banc 1997) (citations 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.’ ” Miller, 220 S.W.3d at 868 (quoting Jones, 955 S.W.2d at 12). “ ‘A deliberate act is a free act of the will done in furtherance of a formed design to gratify a feeling of revenge or to accomplish some other unlawful purpose and while not under the influence of violent passion suddenly aroused by some provocation.’ ” Id. (quoting Jones, 955 S.W.2d at 12).

Minner suggests that since the State claims his altercation with Terry was motivated by a desire to silence Jennifer, the State cannot establish that Minner coolly reflected on killing Terry. This argument is not persuasive. Minner’s intent to kill Jennifer does not foreclose the presence of deliberation, as supported by the reasonable inferences drawn from the evidence, in connection with Terry’s death.

Viewing the evidence in the light most favorable to the verdict, we find that the evidence was sufficient to support the jury’s conclusion that Minner acted with deliberation. Point three is denied.

Point Four

In Minner’s final point on appeal, Min-ner contends that the trial court plainly erred in failing to sua sponte instruct the jury to disregard the prosecutor’s improper closing argument impugning defense counsel’s honesty. Minner concedes that he did not properly preserve this point on appeal and, therefore, requests plain error review pursuant to Rule 30.20. We have already described the two-step process for reviewing plain error. Nibarger, 304 S.W.3d at 201 .

Analysis

Minner contends that, during closing arguments, the prosecutor made improper references to defense counsel and impugned his honesty by stating that defense counsel was using deception. The three objectionable references are:

Facts have to be proven beyond a reasonable doubt, not credibility. Credibility is something you decide based on everything you’ve heard. Don’t get confused. That, folks, when it was suggested to you was deception.
And another thing you need to be wary of is when you are listening to someone who’s putting on a case, when you’re listening to the defense, watch out for the tactics of deception. Those things— people exaggerate.
So as you’re looking at this — I’ll make one last point and sit down. As you’re looking at this case, what you must understand is that you must decide who’s lying to you. Who has a reason to lie? Who’s used the tactics of deception?

Personal attacks on defense counsel by the prosecutor are improper and objectionable, though such statements do not always require reversal. State v. Reyes, 108 S.W.3d 161, 170 (Mo.App. W.D.2003). However, when statements are “ ‘directed at the tactics or techniques of trial counsel rather than counsel’s integrity or character’ ” the arguments are permissible. Id. (quoting State v. O’Haver, 33 S.W.3d 555, 563 (Mo.App. W.D.2000)). We conclude that the statements about which Minner complains were comments on the tactics and techniques of Minner’s counsel and were, therefore, permissible.

The prosecutor’s first statement rebutted Minner’s counsel’s argument concerning the burden of proof for determining the credibility of a witness. Minner’s counsel told the jury during closing argument that in order to believe Jennifer’s testimony, they had to find Jennifer was telling the truth beyond a reasonable doubt. The State countered that this comment was not consistent with the jury instruction addressing determination of the credibility of witnesses. The State’s suggestion that defense counsel’s statement was deceptive was a comment on counsel’s tactic, not counsel’s integrity. See, e.g. State v. Petary, 781 S.W.2d 534, 541 (Mo. banc 1989), rev’d on other grounds, Petary v. Missouri, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) (characterizing defense counsel as a magician distracting the jury from the facts permitted); State v. O’Haver, 33 S.W.3d 555, 563 (Mo.App. W.D.2000) (reference to “slick lawyering” directed to tactics and techniques, not counsel’s character or integrity). Moreover, a “prosecutor has considerable leeway to make retaliatory arguments at closing.” State v. Sanchez, 186 S.W.3d 260, 265 (Mo. banc 2006). “By attacking the credibility of the state’s witnesses defense counsel invited a response from the state.” State v. Castillo, 853 S.W.2d 381, 386 (Mo.App. E.D.1993).

The prosecutor’s second and third statements responded to defense counsel’s arguments in closing. Counsel argued that Terry had been lying when he identified Minner as his assailant. Counsel had also argued that there was cocaine in the Terry’s apartment — cocaine that was never located. The State’s second and third statements were made in the context of assisting the jury in using common sense as it attempted to sort out credibility issues. We do not believe the State’s comments suggest anything about the character of defense counsel but are, rather, a mere comment on the strategy or tactics employed by the defense.

We conclude the State did not personally attack defense counsel during closing argument. There is no plain error. Even if the State’s comments had been improper, we would be unable to conclude that the comments had a decisive effect on the outcome of the trial as to amount to manifest injustice given the overwhelming evidence of Minner’s guilt. State v. Edwards, 116 S.W.3d 511, 536-37 (Mo. banc 2003). Point four is denied.

Conclusion

We affirm the trial court’s judgment entered following a jury verdict convicting Minner of first degree murder, first degree assault, first degree burglary, and two counts of armed criminal action. The trial court did not abuse its discretion in admitting Terry’s dying declaration, which implicated Minner. Affording plain error review, the admission of the dying declaration did not violate Minner’s rights under the Confrontation Clause. The jury could reasonable infer from the evidence beyond a reasonable doubt that Minner caused Terry’s death and acted with deliberation as to support his conviction for first degree murder. Affording plain error review, the State did not personally attack defense counsel or improperly comment on defense counsel’s character during closing argument. We affirm.

All concur.

      . We view the facts in the light most favorable to the jury's verdict. State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993).

      . By the time of trial, Jennifer Terry had remarried and had taken the name Jennifer Anderson. To avoid confusion, we refer to Jennifer by her first name.

      . On Minner’s motion for change of judge and for change of venue, this case was transferred to the Circuit Court of Boone County.

      . Terry had been recently released from the hospital following liver surgery, where a cancerous piece of his liver had been removed.

      . Jennifer had been working as an informant with the Sikeston police department since the fall of 2005 making controlled drug buys. Jennifer had made controlled buys from Travis Williams and Orlando Sheron. Jennifer had never made controlled buys from Minner. Jennifer was scheduled to testify against Travis Williams on December 11, 2006. Though it is unclear Minner’s relationship with Travis Williams, Minner had previously approached Terry on several occasions to persuade Terry to convince Jennifer not to testify against Williams. On one such occasion, Minner had offered to pay Jennifer $1,000 in exchange for her refusal to testify.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . These charges primarily related to allegations that Minner had pointed a gun to Jennifer's head that misfired.

      . The Eighth Circuit recently concluded that the Minnesota Supreme Court’s holding that testimonial dying declarations are an exception to the Crawford analysis was not erroneous. Martin v. Fanies, 365 Fed.Appx. 736, 739, 2010 WL 582614 (8th Cir.2010).

      . Even if Minner had adequately preserved his objection to admission of Terry’s dying declaration as a violation of his 6th Amendment rights pursuant to Crawford, our conclusion regarding the admissibility of the dying declaration would have been the same, notwithstanding the required de novo review, in light of our construction of Crawford and Giles.

      . Minner argues that this cannot be a case where his intent to kill Jennifer can be “transferred” to Terry. However, the State did not argue or instruct on transferred intent. The only question is whether the evidence, viewed in the light most favorable to the verdict, supported the jury’s finding of deliberation in connection with Terry's death.