author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Terry HENRY, Claimant-Appellant, v. PRECISION APPARATUS, INC., Employer-Respondent, and Missouri State Treasurer, Custodian of the 2nd Injury Fund, Respondent.
    No. SD 29772.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 16, 2010.
    Motion for Rehearing or Transfer Denied March 9, 2010.
    Application for Transfer Denied May 25, 2010.
    Andrew S. Lyskowski, Camdenton, MO, for Appellant.
    Jared P. Vessell, Columbia, MO, for Employer-Respondent.
    Heather C. Rowe, Springfield, MO, for Custodian 2nd Injury Fund (No brief filed).
   NANCY STEFFEN RAHMEYER, Judge.

Terry Henry (“Claimant”) was seriously injured at his place of employment; however, the Labor and Industrial Relations Commission (“the Commission”) determined he failed to meet his burden of proof that he sustained an accident arising out of and in the course of employment in that he was injured prior to the inception of his “work shift” when he was volunteering his assistance to a friend engaged in a personal vehicle repair. Because of our limited standard of review on the factual matters, we affirm the Commission’s decision.

In light of the standard of review, we must accept the following facts as true. Claimant worked four ten-hour days per week, normally commencing work at 7:00 a.m., until 5:30 p.m.; he typically arrived fifteen to thirty minutes early for his work shift to put his tools in order and prepare for his day. Claimant’s employer is in the business of building ambulances and fire trucks. The employer allowed employees to work on their personal vehicles before work, during lunch hours, or after hours. On the date of the incident, Claimant arrived as usual fifteen to twenty minutes before 7:00 a.m. After he put his tools on his workbench and was to begin his time-sheet, a co-worker pulled his personal vehicle into a garage bay to fix a flat tire. Claimant heard someone say that the coworker’s truck was going to roll off the jack, so Claimant volunteered to get a rock to keep the truck from moving. As he was doing so, he tripped over something and heard a loud snap which resulted in a broken leg.

Claimant argues in his first point that the Commission erred in its application of section 287.020.2, RSMo Cum.Supp.2005, because it construed the “work shift” too narrowly as being on the “company clock.” The Commission did not make such a finding, nor would we. The Commission simply found that Claimant was not yet working for the employer when he was injured; the Commission could have found that Claimant was working for the employer when he was arranging his tools and at his workbench if the injury had occurred at that time. Had the Commission found a compensable injury occurred at his workbench, but prior to seven o’clock in the morning, we would accept the Commission’s factual determination of when the injury occurred and Claimant’s activities at the time of the injury. In other words, we must accept the factual determination that the injury occurred prior to the time that Claimant was engaged in work activities and while Claimant was engaged in a non-work activity. Point I is denied.

In his second point, Claimant contends that the Commission erred when it found that the accident occurred when Claimant was “volunteering his assistance to a friend engaged in personal vehicle repair.” Again, although Claimant argues that he was providing a benefit to employer because he was trying to prevent a dangerous situation and make sure the employer’s bay doors were clear of vehicles, the Commission, as the fact finder, did not find any benefit to the employer. We cannot find error with that determination. The Commission found that Claimant’s activity in retrieving a rock off a hill was to provide a benefit to a co-worker prior to the commencement of Claimant’s work shift. That determination is supported by sufficient competent evidence. Point II is denied.

The Commission’s award is affirmed.

SCOTT, C.J., and CORDONNIER, SP.J., concur.

      . We examine the whole record to determine if it contains competent and substantial evidence to support the Commission's award. K & D Auto Body, Inc. v. Div. of Employment Sec., 171 S.W.3d 100, 103 (Mo.App. W.D.2005). Even if there is evidence that would support a contrary finding, this Court should not substitute its opinion of the facts for that of the Commission. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Respondent, v. Antonio R. WHITE, Defendant/Appellant.
    No. ED 92776.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2010.
    Application for Transfer Denied May 25, 2010.
    Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Plaintiff/Respondent.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for Defendant/Appellant.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Defendant, Antonio R. White, appeals from the judgment entered on a jury verdict finding him guilty of assault in the first degree, in violation of section 565.050 RSMo (2000), and armed criminal action, in violation of section 571.015 RSMo (2000). The trial court found defendant to be a prior and persistent offender and sentenced him to thirty years imprisonment for assault and ten years imprisonment for armed criminal action, to be served concurrently. No error of law appears and no jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    In the ESTATE OF: Oklar WHITNEY, Appellant.
    No. ED 93269.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 22, 2010.
    Application for Transfer Denied May 25, 2010.
    Anthony Stevens, St. Louis, MO, Appellant Acting Pro Se.
    Gerard A. Nester, St. Louis, MO, Respondent Acting Pro Se.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR.
   ORDER

PER CURIAM.

Anthony Stevens appeals from the Judgment and Order of the Probate Division for the Circuit Court of the City of St. Louis dismissing his claim against the assets of the estate of the deceased Oklar Whitney. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Dominic BAUMHOVER, a minor, by next friend Craig BAUMHOVER, and Craig Baumhover, individually, Petitioners/Appellants, v. Shannon LABANCA, Respondent/Respondent.
    No. ED 92540.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2010.
    Application for Transfer Denied May 25, 2010.
    Lawrence G. Gillespie Clayton, MO, for Petitioners/Appellant.
    Joel B. Eisenstein, St. Charles, MO, for Respondent/Respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA COHEN, J.
   ORDER

PER CURIAM.

Craig Baumhover (Father) appeals from the trial court’s December 12, 2008 judgment granting Shannon LaBanca (Mother) sole legal and physical custody of their minor child, Dominic Baumhover (Child); Father’s visitation schedule as alternate weekends from Friday evening through Sunday evening, one weeknight visit each week, one half (1/2) of Child’s summer vacation and alternating holiday periods throughout the year; and monthly child support of $445.00 and total back child support of $16,506.00 to be paid by Father to Mother. We have reviewed Father’s brief and the record on appeal and conclude that the trial court’s judgment is not against the weight of the evidence nor did the trial court abuse its discretion. See Malawey v. Malawey, 137 S.W.3d 518 (Mo.App. E.D.2004); Forde v. Forde, 190 S.W.3d 521 (Mo.App. E.D.2006). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    George MYERS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 92779.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 23, 2010.
    Application for Transfer to Supreme Court Denied April 19, 2010.
    Application for Transfer to Denied May 25, 2010.
    Jessica Hathaway, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

George Myers (Movant) appeals from the judgment of the Circuit Court of Perry County denying his Rule 29.15 motion for post-conviction relief. Movant asserts that the motion court clearly erred in denying, without an evidentiary hearing, his claims of ineffective assistance of trial and appellate counsel and his claim that newly discovered evidence would have established his actual innocence. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Lonnie D. SNELLING, Appellant, v. Etta WILLIAMS, et al., Respondents.
    No. ED 93460.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 14, 2010.
    Application for Transfer Denied May 25, 2010.
    Lonnie Snelling, Saint Louis, MO, for Appellant Acting Pro-Se.
    Etta Williams, Saint Louis, MO, for Respondent Acting Pro-Se.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Lonnie D. Snelling appeals the judgment denying his motion for leave to file a second amended petition and dismissing his original petition with prejudice. No error of law appears. An extended opinion would have no precedential value. We affirm the judgment of the trial court under Rule 84.16(b).


author: CLIFFORD H. AHRENS, Judge.

text:
    COLLECTOR OF REVENUE, City of St. Louis, Appellant, v. DRURY DEVELOPMENT CORP., and Missouri Highway and Transportation Commission, and Sheriff of the City of St. Louis, Respondents.
    No. ED 93518.
    Missouri Court of Appeals, Eastern District, Division One.
    March 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 6, 2010.
    Application for Transfer Denied May 25, 2010.

      Anthony J. Sestric, St. Louis, MO, for appellant.
    Gordon D. Schweitzer Jr., St. Louis, MO, Philip E. Morgan Jr., Chesterfield, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

The Collector of Revenue of the City of St. Louis appeals the circuit court’s judgment setting aside a tax sale of real property to Drury Development Corporation. We affirm.

Background

In 1993, the Missouri Highway and Transportation Commission initiated a condemnation suit to acquire real property owned by the Convent of the Sacred Heart in the City of St. Louis. The Collector was a party to that suit. Pursuant to the applicable provisions of Chapter 523 RSMo and Supreme Court Rule 86, the following procedure occurred. Commissioners were appointed to determine the value of the property and their report was recorded with the Recorder of Deeds. The Commission acquired the property in September 1993 by paying the amount of the commissioners’ award into the registry of the circuit court. The circuit clerk sent notice of payment to all parties, including the Collector, who also received a portion of the proceeds to satisfy taxes on the property.

Despite the Commission’s acquisition of the property by condemnation, the city assessor continued to assess real estate taxes against the Convent, which did not pay the taxes. In 1997, the Collector sued the Convent for delinquency and obtained a judgment of foreclosure. S & P Properties acquired the property at a sheriffs sale in 1998 but thereafter failed to pay taxes. The Collector sued S & P and obtained another judgment of foreclosure in 2007. The Commission did not receive notice of either suit. Drury acquired the property at a sheriffs sale in May 2008. Three months later, Drury filed a motion to set aside the sale upon discovery that the Commission had superior title. The Commission intervened.

The trial court granted Drury’s motion and ordered the sheriff to return the purchase price, finding that the Commission still owned the property and, therefore, the City of St. Louis lacked authority to levy taxes or foreclose upon the property. The Collector appeals.

Standard of Review

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32; In re Foreclosure of Liens for Delinquent Land Taxes, 226 S.W.3d 250, 254 (Mo.App.2007).

Discussion

In his sole point, the Collector contends that the circuit court erred as a matter of law by ignoring the statute of limitations contained in section 92.855 RSMo, which precludes challenges to a sheriffs deed after two years. Specifically, the Collector maintains that the statute of limitations expired in 2000, two years after S & P acquired the property, thus barring Dairy’s present disclaimer of ownership in favor of the Commission. The parties do not dispute that the Commission acquired the property in the 1993 condemnation suit and, as a state entity, is exempt from real estate taxes. The Collector nonetheless insists that his subsequent foreclosure on the property for unpaid taxes that were never owed, and the resulting sheriffs sale to S & P, were valid transactions that cannot now be challenged. Missouri law does not support the Collector’s position.

First, though collateral to his point relied on, the Collector implies that the sale of the property to the Commission-— and thus the Commission’s title and tax-exempt status — is not binding upon the Collector because notice of payment was not recorded with the Recorder of Deeds. We find no merit to this argument. It is well-settled under Missouri law that ownership and right of possession transfer to the condemnor upon payment of the commissioners’ award into the court. Mo. Const, art 1, sec. 26; section 523.055 RSMo; Rules 86.06 and 86.08; State ex rel. Broadway-Washington Associates, Ltd. v. Manners, 186 S.W.3d 272 (Mo. banc 2006); State ex rel. City of St. Louis v. Oakley, 354 Mo. 124, 188 S.W.2d 820 (1945); State Highway Comm’n v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025 (1940). The Collector conceded as much at oral argument and could offer no authority for his proposition that notice of payment must be recorded to perfect title. Chapter 523 and Rule 86 require recordation only of the commissioner’s report, which occurred here. The equitable tenor of the Collector’s argument is further undermined by the fact that he had actual notice of payment and even received part of the proceeds. Thus even if recordation were required, the Collector could not assert the defect here. Section 442.400 RSMo. See also Wilcox v. Phillips, 260 Mo. 664, 169 S.W. 55, 59 (1914), and Johnson v. Mervyn W. Jenkins, Inc., 904 S.W.2d 586 (Mo.App.1995), (both holding that, if a party relying on lack of notice had actual notice beyond the record, then record notice is unnecessary).

Second, returning to his point relied on, the Collector asserts that Drury’s motion is barred by a statute of limitations contained in the Municipal Land Reutilization Law, sections 92.700 through 92.920 RSMo. This statutory framework governs the collection of unpaid real estate taxes and the foreclosure and resale of delinquent properties. The trial court correctly noted that these provisions cannot apply to the Commission because, as a state entity, the Commission’s property is not subject to real estate taxation. Mo. Const, article X, sec. 6. The trial court did not “repeal” the two-year statute of limitations set forth in section 92.855, as the Collector alleges. Rather, the court simply recognized that the statute is not applicable to this case.

We find instruction in Wallis v. St. Louis County, 621 S.W.2d 720 (Mo.App.1981). There, the county acquired property burdened by a tax lien, but the collector purported to sell the property to a third party through a tax sale. The court held that, when a tax-exempt governmental entity acquires property, any subsequent proceeding to enforce and collect taxes is void. The collector had no authority to issue a deed to the third party purchaser because, once the county had acquired title to the property, outstanding taxes were not subject to collection and thus no basis existed for foreclosure or tax sale. As such, the tax deed was invalid and the county retained superior title. Id. at 725. Wallis informs our analysis here regarding the validity of the Collector’s proceedings subsequent to the Commission’s acquisition of the property. On that central issue, Wallis compels the conclusion that the 1998 sale to S & P was void, and the Commission retained title to the property. The trial court did not err. Point denied.

Conclusion

The judgment of the circuit court is affirmed.

KATHIANNE KNAUP CRANE, P.J., and NANNETTE A. BAKER, J., concur.

      . Sections 523.040 and 523.050, Rule 86.06.

      . Section 523.055, Rules 86.06 and 86.08.

      . Section 523.055.

      .Though owned by a religious institution, the property was nonetheless subject to taxation because it was not being used exclusively Cor religious or charitable purposes. Rather, the Convent was leasing the property to Viking Freight Company.


text:
    F.C., by and through F.J., his next friend, Respondent/Cross-Appellant, v. C.M., Appellant/Cross-Respondent.
    No. ED 92975.
    Missouri Court of Appeals, Eastern District.
    March 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2010.
    Application for Transfer to Denied May 25, 2010.
    Gary M. Siegel, Clayton, MO, for Appellant.
    Lawrence Wittels, Clayton, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

C.M. (“Father”) appeals from the judgment of the trial court granting F.J.’s (“Mother”) motion to modify. Mother cross-appeals from the trial court’s judgment finding her in contempt. Father contends the trial court erred: (1) in ruling that Mother established changed circumstances so substantial and continuing as to make the child support awarded in the 2002 paternity judgment unreasonable; (2) in granting Mother’s motion to modify because she had unclean hands; (3) in denying his motion for a directed verdict; and (4) in granting Mother attorney’s fees. Mother maintains the trial court erred in finding her in contempt and in failing to make the award of child support retroactive to the date her motion to modify was filed.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Laura BROWN, Claimant/Appellant, v. WAL-MART ASSOCIATES, INC., Employer, and Division of Employment Security, Respondent/Respondent.
    No. ED 92978.
    Missouri Court of Appeals, Eastern District, Division One.
    March 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 6, 2010.
    Application for Transfer Denied May 25, 2010.
    John J. Ammann, Saint Louis University Legal Clinic, St. Louis, MO, for appellant.
    Shelly A. Kintzel, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Claimant, Laura Brown, appeals from the Decision of the Labor and Industrial Relations Commission, disqualifying her from receiving unemployment benefits and affirming the decision of the Appeals Tribunal of the Division of Employment Security (the Division), with one member dissenting, that claimant left work voluntarily without good cause attributable to the work or her employer. The Decision of the Labor and Industrial Relations Commission is supported by competent and substantial evidence on the whole record. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. 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 Decision of the Labor and Industrial Relations Commission pursuant to Rule 84.16(b).


author: DON E. BURRELL, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tony A. BUFORD, Defendant-Appellant.
    No. SD 29601.
    Missouri Court of Appeals, Southern District, Division One.
    March 3, 2010.
    Rehearing Denied March 25, 2010.
    Application for Transfer Denied May 25, 2010.

      Ellen H. Flottman, Columbia, MO, Attorney for Appellant.
    Chris Koster, Attorney General, and Dora A. Fichter, Assistant Attorney General, of Jefferson City, MO, Attorney for Respondent.
   DON E. BURRELL, Judge.

Tony Buford (“Defendant”) was convicted, following a bench trial, of the class C felony of possession of a controlled substance and received a sentence of three years’ imprisonment in the Department of Corrections. Defendant now appeals that conviction, alleging the trial court should have granted his motion for judgment of acquittal because the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt. We agree and reverse his conviction.

Facts

The State’s evidence consisted solely of the testimony of Officer Nelson Kibby of the Springfield Police Department (“Officer Kibby”). On November 23, 2004, just before midnight, Officer Kibby conducted a traffic stop on a vehicle that was being operated with a “busted” taillight. Defendant was in the right front passenger seat of that vehicle. The owner of the vehicle, Ronald Lewis, was in the driver’s seat, and a third, unidentified individual was in the back seat.

Officer Kibby noted that all three occupants were acting very nervous, so he checked to see if any of them had outstanding warrants. That check revealed that all three had active warrants. Officer Kibby placed each occupant under arrest and searched their persons. Defendant did not have any drugs or drug paraphernalia on his person. Officer Kibby then searched the vehicle.

During that search, Officer Kibby found a “yellow and white rock, which is consistent with crack cocaine” inside a plastic bag located between the right front seat and the passenger door. He also found loose rocks of crack cocaine in plain view on the floorboard where Defendant’s feet would have been. Other than the drugs, the car was very neat and clean. Both the loose cocaine rocks on the floorboard and the rock found in the baggie between the seat and the door would have been within the reach of anyone seated in the front passenger seat. Officer Kibby had no way of knowing how long Defendant had been in the vehicle before it was stopped.

Officer Kibby Mirandized Defendant and interviewed him at the jail. During that interview, Defendant told Officer Kib-by either that Officer Kibby (1) “knew who those drugs belonged to” or (2) “knew where those drugs came from.” Defendant specifically denied that the drugs belonged to him.

When the State rested its case, defense counsel moved for a judgment of acquittal, which the trial court denied. Defendant presented no evidence. In its closing argument, the prosecutor admitted, “Even though he might not have bought the drugs or — they were probably not his drugs or not, I don’t know — but I know that he had knowledge and control of the drugs, which is possession.”

The trial court took the case under advisement and allowed the parties ten days to submit case law relevant to the question of whether the State had presented sufficient evidence to support a conviction. Just over four months later, the trial court announced a guilty verdict and thereafter sentenced Defendant as indicated above.

Analysis

Standard of Review

“In reviewing a challenge to sufficiency of the evidence, this Court must determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt.” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). “The standard of review in a bench-tried case is the same as in a jury-tried case.” State v. Burse, 231 S.W.3d 247, 251 (Mo.App. E.D.2007). “We disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.” State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). “The trier of fact determines the credibility of the witnesses, and may believe all, some or none of the testimony of a witness.” Burse, 231 S.W.3d at 251. “The Court may ‘not supply missing evidence, or give the [State] the benefit of unreasonable, speculative, or forced inferences.’ ” Whalen, 49 S.W.3d at 184 (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)). The function of this court “is not to reweigh the evidence, but only to determine if the [conviction] is supported by sufficient evidence.” Burse, 231 S.W.3d at 251.

Possession of a Controlled Substance

Section 195.202.1 provides that “it is unlawful for any person to possess or have under his control a controlled substance.” And, “[a]ny person who violates this section with respect to any controlled substance except thirty-five grams or less of marijuana is guilty of a class C felony.” Section 195.202.2.

Section 195.010(32) sets forth what constitutes possession:

a person, with the knowledge of the presence and nature of a substance, has actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it.[]Possession may also be sole or joint. If one person alone has possession of a substance possession is sole. If two or more persons share possession of a substance, possession is joint[.]

In order to sustain a conviction for possession of a controlled substance, “the state must prove two elements: (1) that [the defendant] had conscious and intentional possession of the controlled substance, either actual or constructive, and (2) that [he] was aware of the presence and nature of the substance.” State v. West, 21 S.W.3d 59, 63 (Mo.App. W.D.2000). It is necessary to prove “that the defendant both knew the nature of the presence of the substance and that he had some conscious control over it.” State v. Bowyer, 693 S.W.2d 845, 847 (Mo.App. W.D.1985). “The possession prong and the knowledge prong of the charged offense are not entirely independent, in that both require proof of the defendant’s knowledge of the presence of the controlled substance.” State v. Gonzalez, 235 S.W.3d 20, 26 (Mo.App. S.D.2007).

“In a case where an accused is in exclusive control of premises, the law makes the inference that a contraband substance found there also rests within his possession and control.” Bowyer, 693 S.W.2d at 847. However, in a case “where premises are shared, a like inference of possession of contraband does not arise in the absence of additional circumstances to inculpate the accused.” Id. “The State must present some incriminating circumstance that implies the accused knew of the presence of the drugs and the same were under his control.” State v. Smith, 11 S.W.3d 733, 736-37 (Mo.App. E.D.1999). “A joint control situation does not preclude a finding of possession so long as further evidence connects the defendant to the illegal substances.” State v. Millsap, 244 S.W.3d 786, 788 (Mo.App. S.D.2008). Because “[t]hese principles, developed in the context of premises, govern with a like validity to other occupants and enclosures — such as the driver and occupants of a motor vehicle[,]” Bowyer, 693 S.W.2d at 848, we will compare and contrast the evidence adduced in the instant case with that adduced in prior cases involving the possession of illegal drugs in both homes and automobiles.

“In cases involving joint control of an automobile, ‘a defendant is deemed to have both knowledge and control of items discovered within the automobile, and, therefore, possession in the legal sense, where there is additional evidence connecting him with the items.’ ” State v. Woods, 284 S.W.3d 630, 639 (Mo.App. W.D.2009) (quoting State v. Sanderson, 169 S.W.3d 158, 164-65 (Mo.App. S.D.2005)).

Additional incriminating circumstances that will support an inference of knowledge and control include the following: Finding a large quantity of drugs in the vehicle; Finding drugs having a large monetary value in the vehicle; Easy accessibility or routine access to the drugs; The odor of drugs in the vehicle; The presence of the defendant’s personal belongings in close proximity to the drugs; Making false statements in an attempt to deceive the police; The defendant’s nervousness during the search; The defendant’s flight from law enforcement; The presence of drugs in plain view; Other conduct and statements made by the accused; and the fact that the defendant rented the vehicle.

Woods, 284 S.W.3d at 640. “In determining whether the State has proven sufficient additional incriminating circumstances, we must consider the totality of the circumstances.” Id.

Proximity and Presence

“In cases involving joint control of an automobile, a criminal defendant is only deemed to have possession and control where sufficient additional evidence connects him to the controlled substance.” State v. Chavez, 128 S.W.3d 569, 574 (Mo.App. W.D.2004). In Gonzalez, it was held that “ ‘presence in the car and proximity to the drugs alone was insufficient in a joint possession case.’ ” 235 S.W.3d at 30 (citing State v. Bristol, 98 S.W.3d 107, 111-12 (Mo.App. W.D.2003)). “Superior access to contraband that is accessible by two or more people is an incriminating fact.” Millsap, 244 S.W.3d at 789. However, “[t]he mere fact that [the defendant] was present in the vehicle where the items were found is not sufficient to make a submissible case.” Chavez, 128 S.W.3d at 574. “Nor does proximity to the contraband, alone, even as to a substance in plain sight, tend to prove ownership or possession as among several persons who share the premises.” Bowyer, 693 S.W.2d at 847.

The cases that have affirmed convictions where the defendant was present in a vehicle with others and found in close proximity to the drugs all had additional incriminating facts that affirmatively demonstrated the defendant’s awareness of the presence and illegal nature of those drugs. For example, in Chavez, the driver of the vehicle testified that the defendant had drugs on him and had asked for a ride to get out of town. 128 S.W.3d at 575. In Millsap, syringes and a glass pipe were found intermingled with the contents of the defendant’s purse, which had spilled over onto the floor. 244 S.W.3d at 789. The defendant in Millsap was also the driver of the vehicle, the vehicle was rented in her name, and she was observed to have needle marks on her arm. Id.

In State v. Ames, 44 S.W.3d 825 (Mo.App. S.D.2001), the defendant was the driver of the vehicle and was deliberately slow in pulling over and stopping, presumably to give the passenger time to conceal the drugs — a fact that could be inferred from the officer’s observation of the passenger bending down toward his feet as the vehicle slowed to a stop. Id. at 829. In State v. Purlee, 839 S.W.2d 584 (Mo. banc 1992), our high court looked to the amount of time the defendant was present in the car with the drugs to establish his knowledge of the presence of the drugs. Id. at 588. Specifically, the defendant had spent twelve hours inside a van that exuded an extremely powerful marijuana smell. Id. In reaching its decision, the Court analogized to State v. Harris, 807 S.W.2d 528 (Mo.App. W.D.1991), in which the defendant testified he did not see a container with cocaine solution and a syringe sitting at his feet although he had been sitting in the parked vehicle for two hours and had been observed bending down toward his feet. Purlee, 839 S.W.2d at 588 (citing Harris, 807 S.W.2d at 530).

Cases of a similar nature where the evidence was held to be insufficient to support a conviction did not have these types of additional incriminating facts that made reasonable an inference that the defendant knew the drugs were present. For example, in State v. Ingram, 249 S.W.3d 892 (Mo.App. W.D.2008), a rock of cocaine was found in the driver’s seat during a search incident to an arrest. Id. at 896. Because no evidence was presented that the rock was on the seat when the defendant exited the vehicle and an additional officer had been searching the vehicle but did not testify, there was insufficient evidence to conclude that the defendant had constructively possessed the cocaine. Id.

In State v. Yarber, 5 S.W.3d 592 (Mo.App. S.D.1999), the defendant was convicted of possession of a controlled substance when a small baggie was found secured to a bolt beneath the passenger seat in which he was riding. Id. at 592-93. In that case, the defendant had hired the driver of the vehicle to take him to a location to meet someone who claimed the defendant owed him money. Id. at 594. This court held that the evidence was insufficient to support an inference that the defendant had knowledge and possession of the drugs or that the defendant had hired the driver to take him to purchase drugs. Id. Because the cocaine was in a difficult place to see or find, it was unknown how long it had been there, and it was unknown how often or how long the defendant had been in the car, no reasonable juror could have found beyond a reasonable doubt that the drugs belonged to the defendant. Id.

In State v. Ray, 747 S.W.2d 765 (Mo.App. E.D.1988), three people were inside a vehicle pulled over for erratic driving. Id. at 766. The defendant was in the back seat. Id. The officer searched the vehicle after everyone had exited it and found a syringe and a spoon “laying on the backseat” along with a “piece of snowpaper (paper used to pack cocaine) underneath the rear seat.” Id. A bottle cap and spoon were found on the front seat, and another spoon and some brown envelopes were recovered from the glove compartment. Id. Testing revealed “0.04 grams of cocaine on the snowpaper” and “cocaine residue on the spoons and bottle cap.” Id. The Eastern District reversed the conviction because there was “no evidence defendant owned the car, rode in it on a frequent basis, or even that he had been in the car prior to when it was stopped.” Id. Those circumstances were held insufficient to support an “infer[ence] [that] defendant was aware of the snowpaper underneath the rear seat of the car he was a passenger in” or that “he knew that particular spoon had been used for cocaine.” Id. In State v. Allen, 744 S.W.2d 865 (Mo.App. W.D.1988), the defendant’s conviction was reversed based on insufficient evidence to show constructive possession of marijuana. Id. at 868. There were two people in the vehicle, the defendant, who was driving, and a female passenger. Id. at 866. The defendant was evasive, “would mumble and stutter,” and a large trash bag full of marijuana was found in the trunk during the officer’s search. Id. at 866-67. The Western District reversed the defendant’s conviction because no belongings attributable to him were in the trunk and only women’s clothing was found near the marijuana. Id. at 868.

In State v. Bristol, 98 S.W.3d 107 (Mo.App. W.D.2003), all three of the vehicle’s occupants were arrested. Id. at 110. The defendant was arrested for driving the vehicle while his license was revoked, and his passengers each had outstanding arrest warrants. The arresting officer conducted a search incident to the arrest and located beneath the driver’s seat a metal pipe, “pieces of a ‘blunt cigar’ — a cigar filled with marijuana — ” and a plastic baggie. Id. None of these items were in plain view. Id. The Western District found that the defendant did not have exclusive control over the vehicle because: 1) he was not the owner of the vehicle; 2) he had been in possession of the vehicle for less than twenty-four hours; and 3) the two other occupants of the vehicle also had access to the console area where the drugs were found. Id. at 111. The defendant did not appear nervous, did not make any incriminating statements, and was cooperative. Id. at 112. Under these circumstances, the Western District held that without an additional “incriminating circumstance” to show the defendant’s guilt, there was insufficient evidence to sustain the conviction. Id. at 111-12.

Nervousness

“While nervous conduct may be probative of the defendant’s awareness of [illegal] drugs, such conduct ‘alone is not sufficient evidence’ to prove the defendant’s unlawful possession.” State v. Villaneuva, 147 S.W.3d 126, 130 (Mo.App. W.D.2004) (quoting State v. Johnson, 81 S.W.3d 212, 216 (Mo.App. S.D.2002)). “Nervousness is one incriminating fact that will support a conviction only if consistent with the totality of the circumstances.” Villaneuva, 147 S.W.3d at 131.

Missouri cases have consistently held that nervousness alone is an insufficient “additional incriminating circumstance” to sustain a conviction for possession of a controlled substance. See e.g., State v. Mercado, 887 S.W.2d 688, 692 (Mo.App. S.D.1994); State v. Franco-Amador, 83 S.W.3d 555, 559 (Mo.App. W.D.2002).

When a defendant has another equally probable reason for marked nervousness, there must be evidence of an additional incriminating fact before a permissible inference can be drawn that the defendant had knowledge of and control over the drugs located in the vehicle. For example, an illegal alien’s fear of deportation is, in itself, a plausible explanation for a defendant’s nervousness and even flight. In Franco-Amador, the defendant was an illegal immigrant from Mexico who was attempting to get from Phoenix, Arizona to Atlanta, Georgia to find work. 83 S.W.3d at 556. He agreed to pay someone he met in a convenience store $400 to give him a ride, but was to have received a discount if he helped drive the vehicle. Id.

While the defendant was driving, he was pulled over for a minor traffic violation. Id. The officer gave the defendant a warning for the moving violation and asked to search the vehicle because the officer smelled a strong odor of air-freshener and spices and both occupants looked “extremely nervous.” Id. The owner of the vehicle consented to the search. Id. During his search of the vehicle, the officer found beneath the back seat cushion 1,113.08 grams of methamphetamine encased in plastic bags that were covered with pepper and other spices and wrapped in duct tape. Id. at 557. A roll of duct tape was lying on the front passenger-side floorboard. Id. at 558. After the officer had drawn his gun and ordered the defendant and the car’s owner to lie on the ground, they ran away from the officer in different directions. Id. at 557.

While acknowledging that nervousness is an “incriminating fact which will support a conviction if consistent with the totality of the circumstances,” the Western District noted that “[i]t could also be inferred from the circumstances that [the defendant] was nervous at being pulled over because he was an illegal alien.” Id. at 558. The strong odor coming from the vehicle was not incriminating because it was the odor of air freshener and pepper; not the odor of an illegal drug. Id. at 559. The Western District concluded that there was insufficient evidence to support an inference that the defendant had constructively possessed the drugs because “constructive possession of cocaine could not be found where there was no evidence the defendant owned the vehicle, rode in it on a frequent basis, or even that he had been in the car prior to when it was stopped.” Id. at 559 (citing Ray, 747 S.W.2d at 766).

Nervousness “Plus

Missouri courts have found sufficient evidence to sustain a conviction when the defendant was nervous and engaged in some additional affirmative action that, under the totality of the circumstances, demonstrated his knowledge of or control over the drugs at issue. In State v. Watson, 290 S.W.3d 103 (Mo.App. S.D.2009), the defendant was pulled over for speeding. Id. at 104. He was the only occupant of the vehicle and was acting very nervous, “stuttering his words” and “fidgeting with his hands on his lap” and sticking his hand underneath papers he held on his lap. Id. The officer observed a baggie while the defendant was shuffling the papers. Id. The officer retrieved the baggie and noted a “green leafy substance” inside. Id. Further search revealed a bag of methamphetamine in the driver’s floorboard, within the defendant’s reach. Id. at 104-05. The vehicle was not registered to the defendant, but belonged to a family who was known for having “contact with law enforcement authorities in the past in relation to drugs.” Id. at 105. In affirming the defendant’s conviction, this court distinguished BHstol, Ingram, Gonzalez, and Bo'ivyer, in that they “involved different factual scenarios and situations involving more than one occupant in the vehicle at the time of the defendant’s arrest, clearly implicating the possibilities of shared control and access to the illegal substances found in the vehicle.” Id. at 107 n. 5. The presence of marijuana in the defendant’s lap demonstrated a familiarity with drugs and supported an inference that the defendant was aware of the methamphetamine on the floorboard. Id. at 109. The presence of the marijuana in the defendant’s lap, in addition to the fact that he was very nervous and was the vehicle’s sole occupant, was enough to support the jury’s conclusion that, under the totality of the circumstances, the defendant constructively possessed the methamphetamine located at his feet. Id.

In State v. Shinn, 921 S.W.2d 70 (Mo.App. E.D.1996), the defendant, a passenger in a vehicle that had been stopped for speeding, did not own the car but had been in possession of it for most of the day. Id. at 72. The trooper observed both the driver and the defendant bending down toward their feet, “as if to hide something.” Id. After asking the driver to accompany him to the patrol car, the trooper again saw the defendant “bend forward in his seat as if to ‘put something under the seat or do something.’ ” Id. A cocaine pipe and cocaine were later found under the passenger-side floor mat. Id. at 72-73. The defendant was also visibly nervous and his answer “was not responsive” when the trooper asked if something illegal was in the vehicle. Id. at 72. The appellate court found this was not a “joint possession case,” like Bowyer, because “the evidence would not prove control by anyone but [the] defendant.” Id. at 73. The defendant’s conviction for possession of cocaine was held to be supported by sufficient evidence. Id. at 73.

These cases illustrate that Missouri courts have found sufficient evidence to support a conviction for possession of illegal drugs when the defendant had access to the drugs that was superior to that of the other occupants in the vehicle and there was additional evidence to show that the defendant had exercised some sort of control over the drugs. For example, in Chavez, the defendant was riding in the front passenger seat of a vehicle. 128 S.W.3d at 572. After the defendant was allowed to leave, the officers searched the vehicle and recovered a “plastic bag containing what appeared to be two rocks of crack cocaine and a scale lying between the passenger seat and the door.” Id. Although the defendant had superior access to the location where the drugs were found, “the State was required to present evidence, in addition to the fact that [the defendant] was sitting in a car in which a controlled substance was found, sufficiently connecting [the defendant] to the cocaine salts.” Id. at 574.

The State argued that the drugs were in “plain view,” as they were not pushed down under the seat, and anyone entering by the passenger side of the vehicle would have seen them. Id. at 575. The court noted that “[k]nowledge of the presence of a controlled substance alone, however, is insufficient to sustain a conviction based on possession, and the State must present evidence establishing that the defendant exercised control over the controlled substance.” Id. (citing State v. Morris, 41 S.W.3d 494, 498 (Mo.App. E.D.2000)). Assuming the defendant did see the drugs located between the door and seat, this evidence alone was held insufficient to sustain the conviction, and the Court looked to what other evidence had been adduced. Chavez, 128 S.W.3d at 575. The driver of the vehicle testified that the defendant had said that he “needed to get out of North-town” because he had “a lot of stuff on him,” which the driver understood to mean that the defendant “had drugs on him.” Id. Because the credibility of the testimony of the driver was a question for the trier of fact, the Western District ultimately held there was sufficient evidence to sustain the conviction under the totality of the circumstances. Id. at 576.

In Millsap, the female defendant was the driver of a rented vehicle that had been stopped by an officer. 244 S.W.3d at 789. Although another person also had access to the vehicle, the defendant had superior access to several syringes and a glass pipe that were found on the floor of the driver’s side of the car. Id. The officer testified that it looked as though the contents of the defendant’s purse had spilled over. Id. The items were in plain view and the defendant was also observed with needle marks on her arm. Id. This evidence was sufficient to sustain her conviction. Id.

The Case Against Defendant

The State presented no evidence that the drugs were possessed by Defendant. Because the vehicle in which Defendant was riding was jointly occupied, Defendant’s guilt could only be proven by establishing beyond a reasonable doubt that Defendant at least had “constructive possession with joint control, thus invoking the requirement of further evidence connecting the accused with the illegal drugs and — its threshold issue — Defendant’s knowledge of the presence of the [drugs].” Gonzalez, 235 S.W.3d at 27.

Defendant was riding in the front passenger seat when the vehicle was stopped. Defendant did not own the car. There was no evidence as to how long Defendant had been in the vehicle, and there was no evidence that he had ever been in the vehicle before. The officer pulled the vehicle over “seconds” after it had first drawn his attention. Being nearly midnight, it was dark outside, and there was no evidence that the inside of the vehicle had been illuminated at some time prior to its being pulled over. All three of the vehicle’s occupants were very nervous. All three had active warrants and were arrested as a result of the stop. A search of the vehicle revealed that a bag containing a single cocaine rock was located between the front passenger seat and the door and some loose cocaine rocks were on the floorboard of the front passenger seat.

Without additional incriminating evidence, Defendant’s presence in the car and proximity to the drugs is insufficient to support his conviction. See Chavez, 128 S.W.3d at 574-75. The drugs in this case were found in the exact same location as those discovered in Chavez, where it was held that the fact that the defendant was in close proximity to drugs in plain sight was, in itself, not enough to support his conviction. Id. at 574. In Chavez, the conviction was sustained because the driver testified that the drugs belonged to the defendant. Id. at 575. There was no such testimony in the instant case.

Unlike Millsap, Defendant had no personal belongings intermingled with the drugs. See Millsap, 244 S.W.3d at 789. Unlike Ames, 44 S.W.3d at 829, or Harris, 807 S.W.2d 528, Defendant was not seen bending toward his feet or to the side in what could be inferred as an attempt to conceal the drugs. Unlike Purlee, 839 S.W.2d at 588, there was no evidence of any powerful drug odor or that Defendant had spent an extended amount of time in the vehicle.

Rather, like Ingram, there was no evidence that the drugs were in the location where the officer found them at the time Defendant exited the vehicle. More specifically, there was no evidence as to which side of the back seat the car’s third occupant had occupied. If he had been seated behind Defendant, he would also have had easy access to the area between the front passenger seat and front passenger door. And, although Defendant would have had easier access to the front passenger floorboard, a rear-seat passenger could easily have tossed the cocaine rocks onto the front floorboard while exiting the vehicle. There was no evidence as to which passenger left the vehicle first. If the rear-seat passenger exited the vehicle after Defendant, he could have tossed the cocaine rocks on his way out and Defendant would have had no awareness of their presence. Like Yarber, 5 S.W.3d at 594, and Ray, 747 S.W.2d at 766, it was unknown how long the cocaine had been in those locations and how long or how often Defendant had been in the car, creating at least a reasonable doubt as to Defendant’s possession of the drugs.

The State argues that there was enough additional evidence to support the conviction because Defendant made an incriminating statement in addition to his being in the vehicle in close proximity to the drugs and exhibiting nervousness at the time of his arrest. The statement to which the State refers is Defendant’s statement that Officer Kibby “knew who those drugs belonged to,” or, phrased another way during Officer Kibby’s testimony, that the officer “knew where those drugs came from.” We cannot say that either version of this statement amounted to the equivalent of the statement, “You got me,” which has previously been held sufficient to support a finding of knowledge, but insufficient to show control. Bowyer, 693 S.W.2d at 849-50. As to the State’s claims regarding Defendant’s nervousness, we look to Franco-Amador, supra. As in Franco-Amador, Defendant had another plausible explanation for his nervousness: there was an active warrant out for his arrest. Furthermore, Defendant was not the only nervous occupant of the car — all three occupants were nervous.

The State argues that the instant case is distinguishable from Brown and Bowyer because here, “there was no evidence showing that the drugs belonged to anyone else.” This argument is essentially that Defendant did not meet his burden of showing that the drugs did not belong to him. Defendant has no such burden. State v. Reeder, 395 S.W.2d 209, 211 (Mo. banc 1965) (“The burden of proof is on the State throughout the trial to establish by evidence the guilt of the accused beyond a reasonable doubt”). A Defendant may, but is not required to, put on evidence that he did not commit the charged crime.

After a thorough analysis of prior Missouri cases dealing with the possession of illegal drugs found after an automobile stop and a complete review of the record, we conclude that the State did not present sufficient evidence from which a reasonable fact-finder could find Defendant guilty beyond a reasonable doubt.

The judgment of conviction is reversed, the sentence is vacated, and Defendant is discharged.

BARNEY, J., and BATES, P.J., Concur.

      . See section 195.202. Unless otherwise indicated, all statutory references are to RSMo 2000.

      . “When reviewing the sufficiency of the evidence, we review all evidence and inferences reasonably draw[n] from the evidence in the light most favorable to the verdict and disregard all contrary evidence and inferences.” State v. Burse, 231 S.W.3d 247, 251 (Mo.App. E.D.2007). Our recitation of the relevant facts is presented in accordance with that standard.

      .The parties stipulated to the admission of a lab report that revealed the substance to be cocaine base, a Schedule II controlled substance. See section 195.017.

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

      . In the instant case, a literal reading of the statute would indicate that Defendant would have had “actual possession” of the controlled substance because it was within his "easy reach and convenient control” in that the contraband was lying within an arm's reach of where he had been riding in the vehicle. However, our cases seem to blend the concepts of "actual” and "constructive” possession when there are multiple occupants inside a vehicle, presumably because a sole individual may easily be seen as actually possessing an item located next to him while actual possession might not exist when the item is located within the reach of two or more individuals. Also, the minimum amount of possession required to support a conviction is "constructive possession.” State v. Smith, 11 S.W.3d 733, 736 (Mo.App. E.D.1999) ("Constructive possession is adequate to support a conviction when other facts support an inference of defendant’s knowledge of the presence of the substance”); see also State v. Harris, 807 S.W.2d 528, 530 (Mo.App. W.D.1991); State v. Scott, 298 S.W.3d 913, 917 (Mo.App. E.D.2009); State v. Coleman, 263 S.W.3d 680, 684 (Mo.App. S.D.2008); State v. Chavez, 128 S.W.3d 569, 574 (Mo.App. W.D.2004).


author: NANNETTE A. BAKER, Judge.

text:
    Craig POPE, Appellant, v. CHILD ABUSE AND NEGLECT REVIEW BOARD, A Division of Missouri Department of Social Services, Respondent.
    No. ED 91988.
    Missouri Court of Appeals, Eastern District, Division One.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2010.
    Application for Transfer to Denied May 25, 2010.

      Daniel Haltenhof, Clayton, MO, for appellant.
    Gary Gardner, Jefferson City, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Dr. Craig Pope (“Appellant”) appeals from the trial court’s finding by a preponderance of the evidence that he abused his daughter, K.P. He raises three points on appeal. First, he claims that the trial court erred and misapplied the law in extending the PKA exception to the hearsay rule for out of court statements by a child concerning allegations of abuse to cases where child custody is not an issue. Second, Appellant claims that in the event that the PKA exception to the hearsay rule applies to non child custody cases, the trial court erred and improperly admitted said hearsay evidence because there was an improper foundation for its admission. Third, Appellant claims that the trial court erred and misapplied the law in affirming the findings and determination of the Child Abuse and Neglect Review Board (“CANRB”) in that it applied the wrong standard of review.

Factual and Procedural Background

On January 27, 2006, the Missouri Department of Social Services received two calls alleging that Appellant was sexually molesting his daughter, K.P. Dorothy Herbst (“Herbst”) was assigned to investigate the allegations. She went to the Popes’ house along with Detective Morrison. When they arrived, Mrs. Pope was outside the house. Herbst asked if she knew why they were there. Herbst and Morrison asked Mrs. Pope if K.P. was at home and explained that they were there in response to two hotline calls.

After giving Mrs. Pope the required documents describing the investigative process, Herbst and Morrison asked her basic questions about the structure of her family and the household. Next, Herbst and Morrison asked Mrs. Pope if she was aware that K.P. had disclosed what was alleged in their report and how she felt about it. Mrs. Pope indicated that she was aware that K.P. had disclosed sexual abuse. Herbst and Morrison told Mrs. Pope they still needed to talk to K.P. and waited at the Pope house for her to come home from school.

When K.P. arrived, Herbst and Morrison spoke to her alone. They told K.P. about the report, read her parts of the allegation and told her they needed to get more information from her. K.P. was reluctant to talk, stating that she did not think she had to since she had talked to others already about the allegations. K.P. also indicated that she was concerned about her safety. Herbst and Morrison told her that unless she told them what was going on and they could verify her safety, Morrison would have to take steps to place the children and the family into state custody and remove them from the household.

K.P. told Herbst and Morrison that she had told her sister first and that her mother found out the next day. K.P. described in detail what she told her mother and sister about her father’s actions, and stated that the abuse had been going on for five or six years. When asked about her safety, K.P. said she would feel safe if her mother were home. She also told Herbst and Morrison that her parents had split up for a couple of weeks and when her father came back, her mother moved her into a bedroom with a lock on the door where she now slept with one of her younger sisters.

After Herbst and Morrison finished interviewing K.P., they spoke with Mrs. Pope again and told her that Appellant would have to leave the house in order for the children to stay. Herbst and Morrison also spoke with K.P.’s two younger sisters and younger brother to determine the children’s knowledge or lack thereof regarding the abuse. Finally, Herbst and Morrison had Mrs. Pope sign a safety agreement that Appellant would leave the home for the remainder of the investigation.

Herbst attempted to interview Appellant, which is voluntary on the part of the alleged perpetrator, but he declined to talk to her. Morrison spoke with Appellant and confirmed that he would leave the house and not return during the investigation. After the case was opened, Morrison sent officers out to the house to check periodically that Appellant was not living there.

At the conclusion of the investigation, Herbst determined by a preponderance of the evidence that Appellant had sexually abused his daughter, K.P. Herbst based her finding on the consistency of K.P.’s statements to her and her statements to others she talked to. Herbst testified that she also relied on K.P.’s acknowledgement that her father admitted the abuse to her and said he was ashamed and apologized. Also, Herbst considered that Appellant refused to speak to her. Herbst’s supervisor reviewed her determination of Appellant’s action and signed off on it. This placed Appellant’s name on the Central Registry, a registry of persons where the division has found by a preponderance of the evidence that the individual has committed child abuse or neglect.

After receipt of a letter dated February 22, 2006, Appellant filed a request for an administrative review of Herbst’s determination by the Circuit Manager of the Department of Social Services. The review board, CANRB, heard Appellant’s review and upheld the finding of preponderance of the evidence from Herbst’s report.

Pursuant to Section 210.152.5, Appellant filed a petition for de novo judicial review in St. Louis County. At trial, Herbst testified regarding her investigation. Appellant objected to her testimony concerning what K.P. had told her as hearsay. The trial court overruled the objection, stating that it would allow Herbst to testify subject to that objection. It ordered both sides to prepare a brief memorandum of law in support of their position at the conclusion of the hearing. Appellant did not put on any evidence. Based on the evidence heard and adduced, the trial court issued its order and judgment sustaining and affirming the findings and determination of the CANRB. This appeal followed.

Standard of Review

The decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong. Id. We view the facts in the light most favorable to the trial court’s decision and defer to the trial court’s superior ability to determine the credibility of witnesses. In re A.A.T.N., 181 S.W.3d 161, 166 (Mo.App. E.D.2005). We accord the trial court’s ruling on admissibility of evidence substantial deference, and we will not disturb the trial court’s ruling absent an abuse of discretion. Kroeger-Eberhat v. Eberhart, 254 S.W.3d 38, 44 (Mo.App. E.D.2007).

Exception to Hearsay Rule

In his first point relied on, Appellant claims that the trial court erred and misapplied the law in extending the PKA exception to the hearsay rule for out of court statements by a child concerning allegations of abuse to cases where child custody is not an issue. Specifically he contends that every court case in Missouri that has applied the hearsay exception set forth in PKA was a case to determine child custody.

The PKA exception is set forth in In re Marriage of P.K.A. and J.E.A., 725 S.W.2d 78 (Mo.App. S.D.1987). In PKA, the trial court held that the necessity to have statements of a child indicating abuse considered for their truth called for a special hearsay exception. Id. at 81. The court held that:

Where the best interest of the child is the primary concern, we believe that the courts should consider those statements for their truth. Although it may be an unfavorable reflection on the father if he has not been abusing the child, the paramount consideration must be the welfare of the child.
Flexibility is needed in these cases, even where the child might be qualified to testify, because of the emotional trauma that such an experience may cause. It is desirable to avoid the necessity of forcing a young child to testify as to abuse, particularly when the abuser is the victim’s parent. This exception should support efforts to prevent child abuse. It is to be used only where abuse may have occurred, or has been threatened, and the child might not be competent or reasonably expected to testify to it.

Id.

Over the years since PKA was decided, we have examined and expanded the holding to include cases in which the best interest of the child was at issue that were not focused solely on sexual abuse in the context of a custody issue. See AATN, 181 S.W.3d at 169-70 (holding, in a termination of parental rights case, that evidence of any child abuse whether sexual, physical or emotional may be established by hearsay under the PKA exception); Hord v. Morgan, 769 S.W.2d 443 (Mo.App. W.D.1989) (extending the hearsay exception to non-sexual child abuse).

Appellant argues that the PKA hearsay exception applies only to cases in which custody of the child is at issue. However, the Southern District did not restrict the hearsay exception to only child custody cases. It explicitly held that “where the best interest of the child [wa]s the primary concern,” courts should consider out of court statements made by the child for their truth. The Missouri Supreme Court, in Jamison v. Dep’t. of Soc. Serv., examined the role of the Central Registry as it related to the State’s interest in protecting children from abuse and neglect. 218 S.W.3d 399 (Mo. banc 2007). The Children’s Division of Social Services noted that listing perpetrators of abuse in the Registry provided a means to protect both victims of child abuse and other children with whom a perpetrator of abuse or neglect might come into contact by ensuring that information about cases of abuse is available to individuals and entities responsible for caring for and protecting children. Id. at 410.

In the case at bar, the alleged victim was Appellant’s daughter. She told Herbst that her father had admitted the abuse to her and apologized to her for it. Forcing her to confront him and testify against him in a trial setting is precisely the situation that the PKA exception is meant to avoid. Given the State’s overriding interest in protecting K.P. and other children from abuse and neglect at the hands of Appellant, we find no abuse of discretion in the trial court’s admission of the hearsay evidence under the PKA exception. Point denied.

Foundation

In his second point relied on, Appellant claims that even if the PKA exception applies to non child custody cases, the trial court erred and improperly admitted said hearsay evidence because there was an improper foundation for its admission. More specifically, he claims that the alleged victim, K.P., was 18 years old at the time of the hearing, and thus by definition, not a child under Section 210.110.4. He asserts that therefore, the best interest of the child was not the primary concern. We disagree.

Section 210.110.4 defines a child as “any person, regardless of physical or mental condition, under eighteen years of age.” Despite Appellant’s argument in his brief, however, there is nothing in the record to support his allegation that K.P. was no longer a child as defined in the statute. Moreover, this assertion was not raised during his objection to the hearsay evidence at trial. Nothing in the record indicates that the trial court had any information before it as to K.P.’s age.

A party may not advance on appeal an objection to evidence different from the one presented to the trial court. Rogers v. B.G. Transit Corp., 949 S.W.2d 151, 153 (Mo.App. S.D.1997). Nor may the party alter or broaden the scope of the objection on appeal. Id. We have held that the PKA exception allowing hearsay evidence applies where the best interest of the child is the primary concern, sexual abuse may have occurred or has been threatened, the child might not be competent or reasonably expected to testify to the abuse, and a substantial basis exists that the statements are true. In the Interest of S.M., 750 S.W.2d 650, 654 (Mo.App. E.D.1988).

Here, the trial court properly considered all of the factors, and found them present: K.P.’s best interest in ensuring her father did not continue the abuse, the fact that two other tribunals had already found by a preponderance of the evidence that the sexual abuse had occurred, the unreasonableness of expecting K.P. to testify against her father, and Herbst’s finding that all of the statements K.P. made to her and others were substantially the same. Additionally, the court had evidence of the two separate telephone calls to the child abuse hotline that were made in January 2006, alleging Appellant’s sexual abuse of K.P. The trial court had a proper foundation on which to admit the hearsay evidence that Appellant sexually abused K.P. This point is denied.

Improper Standard of Review

In his third point relied on, Appellant claims that the trial court erred and misapplied the law in affirming the findings of the CANRB in that it applied the wrong standard of review, judicial review, instead of the correct standard of review, trial de novo. In support of his argument, he cites the trial court’s statement at the beginning of the hearing, “we are here this morning to take up Plaintiffs Petition for Judicial Review of a decision of the Child Abuse Neglect Review Board,” as evidence that the court was reviewing the decision and not conducting an independent hearing. What Appellant fails to clarify is that the trial court was reciting the title of his petition in its opening statement.

Section 210.152.5 reads in pertinent part:

If the alleged perpetrator is aggrieved by the decision of the child abuse and neglect review board, the alleged perpetrator may seek de novo judicial review in the circuit court in the county in which the alleged perpetrator resides and in circuits with split venue, in the venue in which the alleged perpetrator resides,.... The case may be assigned to the family court division where such a division has been established. The request for a judicial review shall be made within sixty days of notification of the decision of the child abuse and neglect review board decision. In reviewing such decisions, the circuit court shall provide the alleged perpetrator the opportunity to appear and present testimony. The alleged perpetrator may subpoena any witnesses except the alleged victim or the reporter. However, the circuit court shall have the discretion to allow the parties to submit the case upon a stipulated record.

Appellant’s point relied on, that the trial court applied judicial review instead of trial de novo, makes no sense in the context of this provision. It appears that Appellant is trying to argue that the trial court based its decision on a review of the CANRB’s findings rather than conducting its own hearing.

The trial court’s Order and Judgment reads in its entirety: “This matter was called for hearing on 7-10-08. Based on the evidence heard and adduced, the Court hereby sustains and affirms the findings and determination of the Child Abuse and Neglect Review Board.” Based on this, Appellant argues that the trial court merely adopted the CANRB report and made no independent determination of the issue. There is nothing in the record to indicate that the trial court had the CANRB report in evidence. It heard Herbst’s direct testimony, her cross-examination by Appellant’s counsel, redirect testimony and recross-examination. During Herbst’s testimony, the court occasionally asked questions to clarify its understanding of her statements. We are not persuaded that the trial court based its finding that Appellant sexually abused his daughter, K.P., by a preponderance of the evidence on anything other than the evidence it had before it. This point is denied.

Conclusion

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

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

      . In re marriage of P.K.A. and J.E.A., 725 S.W.2d 78 (Mo.App. S.D.1987).

      . K.P. is the second of four daughters, the oldest of which no longer lives at home. She did not specify which sister she told about her father's abuse.

      . According to Herbst, the agreement is not legally binding.

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


text:
    STATE of Missouri, Respondent, v. Fabrice LEWIS, Appellant.
    No. ED 93012.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 14, 2010.
    Application for Transfer Denied May 25, 2010.
    John M. Simpson, Special Public Defender, Kansas City, MO, for Appellant.
    Chris Koster, Atty. Gen., Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Fabrice Lewis appeals the judgment entered upon a jury verdict convicting him of felony possession or control of a controlled substance (Count I) and misdemeanor possession of marijuana less than 35 grams (Count II). The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 30.25(b).


author: KURT S. ODENWALD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Landers PAGE, Appellant.
    No. ED 92706.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2010.
    Application for Transfer to Denied May 25, 2010.

      Lisa M. Stroup, Office of the Missouri Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Landers Page (Defendant) appeals from the trial court’s judgment, following a jury trial, of one count of class C felony stealing, in violation of Section 570.030, RSMo Cum.Supp.2006, and one count of class A misdemeanor stealing, in violation of Section 570.030. Finding Defendant to be a prior and persistent offender as defined in Section 558.016, the trial court sentenced Defendant to fifteen years on the first count and a concurrent one year term on the second count. We affirm Defendant’s conviction and sentence but remand the case to correct a clerical mistake in Defendant’s sentence and judgment form.

Background

The State of Missouri (State) charged Defendant with two counts of stealing, in connection with his alleged actions on December 19, 2007. On Count I, a class C felony, the State averred that Defendant stole Jeanne Silvestrini’s (Silvestrini) credit card without her consent and with the purpose to deprive her thereof. On Count II, a class A misdemeanor, the State averred that Defendant stole Silvestrini’s purse, an item valued at less than $500, without her consent and with the purpose to deprive her thereof. Furthermore, the State’s indictment charged Defendant as a prior and persistent offender, in that Defendant pleaded guilty to two counts of felony stealing on February 23, 2005, and pleaded guilty to first degree felony robbery on January 26,1987.

Defendant’s jury trial took place January 21-22, 2009. During trial, Defendant presented no witnesses on his behalf. The State’s evidence consisted of the following:

Silvestrini testified that she worked as an administrative coordinator at Washington University School of Medicine. Her office was located on the seventh floor of the Clinical Science and Research Building (CSRB) in the Barnes Jewish Hospital medical complex. On the morning of December 19, 2007, she stepped out of her office for a moment to retrieve a document from printer in a nearby office. Upon her return, she saw a man whom she did not recognize quickly leave her office and exit into the seventh floor stairwell. She approximated the distance between herself and the man to be three feet, observed that the man was wearing a “very recognizable” blue sweater with multi-colored stripes, and believed the man to be concealing something that he was holding. Silvestrini then immediately checked her office and noticed that her purse, which she kept in her desk drawer, was missing. She followed the man into the stairwell, saw him a flight below her, and yelled for him to give her purse back. At this point, the man “immediately started running at a pretty fast pace.” She initially continued after the man, but then returned to her office and called the building’s security officers. After she got off the phone with security, one of her co-workers, Nathan Felix (Felix), went down the stairwell to look for the man. In court, Silvestrini identified Defendant as the man she saw exiting her office and running down the stairwell.

Greg Farnham (Farnham), a security response officer for the Washington University School of Medicine, testified that, around 10:00 a.m. December 19, 2007, he received a dispatch regarding a suspected theft at the CSRB. The dispatch described the suspect as a black male wearing a dark colored sweater with bright stripes who was approximately six feet tall. Farnham and fellow response officer Daniel Chettle (Chettle) canvassed the area around the CSRB. Chettle encountered a man fitting the dispatch’s description in the lobby which connects the CSRB with the Pediatrics Building. Chettle and Farnham took the man into their custody. In court, both Chettle and Farnham identified Defendant as the man they apprehended.

While Chettle detained Defendant, Felix, who had followed Defendant into the lobby, led Farnham to a trash can located in the CSRB’s third floor men’s restroom. Because the stairwell exits on both the first and second floors were blocked, the third floor was the lowest floor from which a person could exit the stairwell. Farn-ham emptied the trash can and sorted its contents. Inside, he found Silvestrini’s driver’s license, a purse, and other items which apparently had been removed or had fallen out of the purse. Farnham then placed the items which he believed to come from the purse in another trash bag, and he carried the trash bag and purse to Silvestrini’s office. Silvestrini identified the purse as belonging to her. When Sil-vestrini looked in the purse, she noticed that her credit card had been removed from her wallet but was still in the purse. Though every item within her purse appeared out of place, Silvestrini testified that no item was missing.

Farnham then escorted her to the Protective Services office, where security personnel were detaining Defendant. At that time, Silvestrini identified Defendant through a two-way mirror as the man she saw emerging from her office and running down the stairwell. At trial, she repeated that she was “[o] ne hundred percent positive” that the man detained at the Protective Services office was Defendant.

On January 21, 2009, before the case was submitted to the jury and outside the jury’s presence, the trial court held a hearing to determine Defendant’s prior and persistent offender status. On the record at this hearing, the State alleged that Defendant had previously pleaded guilty to three felonies. The State listed each felony, each cause number, and each date that the Defendant pleaded guilty. Thereafter, the trial court asked Defendant under oath and on the record if the convictions read by the State were indeed his prior convictions, to which Defendant affirmatively agreed. The trial court then found “[Defendant to be a prior and persistent offender for the sake of punishment.”

On January 22, 2009, the jury found Defendant guilty of the charges of stealing a credit card (Count I) and stealing an item under $500 (Count II). Defendant filed a Motion for Judgment of Acquittal, which the trial court denied. On February 6, Defendant filed a Motion for Acquittal or in the Alternative for a New Trial, which the trial court denied. The trial court sentenced Defendant on February 27, ordering Defendant to serve a term of fifteen years for Count I and a concurrent one year term for Count II.

Defendant filed his Notice of Appeal on March 5, 2009. This appeal follows.

Points on Appeal

Defendant raises two points on appeal. In his first point, Defendant claims that the trial court erred in finding him to be a prior and persistent offender because the State did not establish sufficient facts to warrant a finding beyond a reasonable doubt that he was a prior and persistent offender.

In his second point, Defendant claims that the trial court erred in denying his motion for judgment of acquittal at the close of the evidence because there was insufficient evidence to support the verdicts. Defendant alleges that the State failed to establish beyond a reasonable doubt that he stole a credit card and a purse.

We will review each of Defendant’s points separately.

Discussion

1. Point 1 — Trial Court’s Finding That Defendant Was a Prior and, Persistent Offender

In Defendant’s first point, he argues that the trial court erred in finding him to be a prior and persistent offender because the State did not establish sufficient facts to warrant a finding beyond a reasonable doubt that he was a prior and persistent offender. Specifically, Defendant contends that the State failed to establish his prior felony convictions because the State did not introduce into evidence any certified and authenticated convictions, because the trial court did not take judicial notice of court records physically before it, and because Defendant never consented to the contents of any of his records being admitted into evidence.

A. Plain Error Standard of Review

Defendant concedes that, because he failed to object to the trial court’s finding that he was a prior and persistent offender at trial and in his motion for new trial, his first point was not properly preserved. He asks that we exercise our discretion to review for plain error. Rule 30.20. Plain errors consist of errors that are evident, obvious, and clear. State v. Nesbitt, 299 S.W.3d 26, 28 (Mo.App. E.D.2009). We shall reverse only where a plain error affecting a substantial right results in a manifest injustice or a miscarriage of justice. State v. Wurtzberger, 265 S.W.3d 329, 339 (Mo.App. E.D.2008). If it appears that the trial court improperly sentenced the defendant as a prior or persistent offender, plain-error review is appropriate, Nesbitt, 299 S.W.3d at 28, because a court may not impose a sentence which is in excess of that authorized by law. State v. Anderson, 294 S.W.3d 96, 98 (Mo.App. E.D.2009). We will review Point I for plain error.

B. Merits of Appeal

Missouri defines a “prior offender” as “one who has pleaded guilty to or has been found guilty of one felony.” Section 558.016.2. A “persistent offender” is defined as “one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.” Section 558.016.3. The State must plead all essential facts in the information or indictment to warrant a finding that the defendant is a prior or persistent offender. Section 558.021.1. These facts must be pleaded, established, and found before the trial court submits the case to the jury. Section 558.021.2; State v. Teer, 275 S.W.3d 258, 261 (Mo. banc 2009) (holding the timing requirement to be mandatory). If the trial court finds beyond a reasonable doubt that a defendant is a prior and persistent offender, then the judge sentences the defendant, rather than allowing the jury to recommend a sentence. Section 557.036.4(2). A defendant found to be a persistent offender becomes subject to an enhanced maximum term of imprisonment. Section 558.016.7.

Here, to prove Defendant was a prior and persistent offender, the State alleged that Defendant pleaded guilty to three pri- or felonies. On the record at the Prior and Persistent Offender Hearing, the State proffered the following:

The defendant is a prior offender in that on February 23rd of 2005 he pleadfed] guilty to the felony of stealing over 500 dollars and that was in Cause Number 22031-02218 here in the Circuit Court of St. Louis, Missouri. On February 23rd, 2005, he also plead[ed] guilty in a separate case to a separate incident ... to the felony of stealing in Cause Number 22031-02855 here in the Circuit Court of St. Louis, Missouri. And also, on January 26, 1987, he [pleaded] guilty to the felony of six counts of robbery in the [first] degree in Cause Number 22861-1304C. That was also here in the Circuit Court of St. Louis Missouri. In all three matters, he was represented by an attorney.

The trial court then asked Defendant if he agreed those guilty pleas were in fact his prior felony convictions, to which Defendant responded, “yes.” Having heard this admission, the trial court found Defendant to be a prior and persistent offender.

In State v. Johnson, we held that “certified and properly authenticated copies of records of a defendant’s prior convictions constitute admissible and sufficient evidence for purposes of sentence enhancement.” 150 S.W.3d 132, 137 (Mo.App. E.D.2004). Additionally, we acknowledged that trial courts “may take judicial notice of their own records of a defendant’s prior convictions in other previous proceedings to establish the essential facts warranting a finding that the defendant is a persistent offender, but only if the court’s records of those convictions are physically before the court.” Id, We explained that “the existence of a court record containing proof of a defendant’s prior convictions is essential to the State’s burden of proving whether the defendant is a prior or persistent offender ... unless the defendant consents to the admission of its contents.” Id. Defendant argues that these methods of proof are exclusive.

However, contrary to Defendant’s argument, in an unrelated case also named State v. Johnson, we held that where a defendant “admitted on the record that he committed the previous felony crimes and the date and the cause numbers for each guilty plea, ... [those] admissions reheve the State of the burden of proving all of the matters that ordinarily would be required to establish prior convictions.” 237 S.W.3d 277, 284 (Mo.App. E.D.2007); see State v. Johnson, 837 S.W.2d 39, 41 (Mo.App. W.D.1992) (holding that “a defendant’s admission in court of prior convictions may properly be relied upon for purposes of enhancement of punishment”). As such, Defendant’s own admissions in this case provided a sufficient basis for the trial court to find him to be a prior and persistent offender beyond a reasonable doubt. The trial court did not err. Point one is denied.

Defendant also contends that, at the Prior and Persistent Offender Hearing, “[he] was forced to become a witness against himself because the [trial] court questioned him under oath even though [he] chose not to testify on his own behalf at trial.” This contention wholly lacks merit. The privilege against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and Article I, section 19 of the Missouri Constitution. State v. McKeller, 256 S.W.3d 125, 127 (Mo.App. S.D.2008). This privilege protects an individual from being an involuntary witness against himself in any proceeding where his answers might incriminate him in future criminal proceedings. Id. However, to receive Fifth Amendment protection, one desiring to avail himself of the privilege it affords must claim that protection. Id. And, the privilege applies only to the particular proceeding in which it is claimed. Id. In this case, the record before us contains nothing to suggest that Defendant, who was represented by counsel throughout trial, attempted to avail himself of the Fifth Amendment’s protections during the course of the Prior and Persistent Offender Hearing. Furthermore, nothing in the record even remotely suggests that the trial court compelled Defendant to be an involuntary witness against himself at this hearing. Defendant’s argument that his subsequent decision not to testify at trial somehow taints his prior testimony at the Prior and Persistent Offender Hearing is unavailing.

Lastly, though not raised by either party, we find sua sponte that the trial court failed to record its finding as to Defendant’s status as a prior and persistent offender on the written judgment and sentence form. A mistake in a judgment and sentence form regarding the marking of boxes designated for memorializing a finding of a defendant’s prior and persistent offender status is considered a clerical mistake. State v. Carroll, 207 S.W.3d 140, 142 (Mo.App. E.D.2006). Such a mistake can be corrected by a nunc pro tunc order, so long as the trial court’s intentions regarding the defendant’s sentence is clear from the record. Id. Here, as mentioned above, the record clearly reflects the trial court’s intention that Defendant be sentenced as a prior and persistent offender. Thus, the omission of a mark in the box designated for memorializing the trial court’s finding that Defendant was a prior and persistent offender may be corrected by a nunc pro tunc order conforming the record to the trial court’s actual findings.

II. Point 2 — Trial Court’s Finding That Evidence Was Sufficient to Support Jury Verdict

In his second point, Defendant claims that the trial court erred in denying his motion for judgment of acquittal at the close of the evidence because there was insufficient evidence to support the verdicts. Defendant alleges that the State failed to establish beyond a reasonable doubt that he stole a credit card and a purse.

A. Sufficiency of Evidence Standard of Review

Appellate review of a challenge to the sufficiency of evidence supporting a criminal conviction is limited to a determination of whether sufficient evidence was presented at trial from which a reasonable juror might have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt. Wurtzberger, 265 S.W.3d at 335 (citing State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993)). In applying this standard of review, we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregard all evidence and inference to the contrary. Id. We do not act as a “super juror” with veto powers over the conviction, but rather give great deference to the trier of fact. State v. Jones, 296 S.W.3d 506, 509-10 (Mo.App. E.D.2009).

B. Merits of Appeal

We must look to the elements of each offense charged because, when we consider the sufficiency of the evidence to support a conviction, there must, be sufficient evidence of each element of the offense. Wurtzberger, 265 S.W.3d at 335. The elements of an offense are derived from the statute establishing the offense or, where relevant, common law definitions. Id.

Here, Defendant was convicted of two counts of stealing, the elements of which are found in Section 570.030. “The elements of stealing are: (1) an appropriation; (2) of property or services; (3) of another; (4) with the purpose to deprive the other thereof; and (5) accomplished either without the owner’s consent or by deceit or coercion.” State v. Presberry, 128 S.W.3d 80, 91 (Mo.App. E.D.2003) (citing Section 570.030). If the appropriated property is proven to be a credit card, the crime of stealing is classified as a class C felony. Section 570.030.3(3)(c). If the appropriated property fails to fall under any other section of the stealing statute enumerating specific penalties and is worth under $500, the crime of stealing is classified as a class A misdemeanor. Section 570.030.8.

In this case, Defendant argues that a reasonable juror could not have found beyond a reasonable doubt that he stole Sil-vestrini’s purse and credit card with an intent to permanently deprive her thereof. We disagree.

Just moments before Silvestrini noticed that her purse and credit card were missing from her office desk, she saw Defendant, a man who did not work in her building and who appeared to be concealing something in his hands, emerge from her office and proceed to the stairwell. When Silvestrini followed Defendant into the stairwell and shouted at him to return her purse, Defendant fled. Defendant failed to offer any explanation as to why he was in the CSRB, why he was in Silvestri-ni’s office, or why he ran away when Sil-vestrini yelled for him to return her purse. As such, it is reasonable for a juror to infer from these circumstances that Defendant stole Silvestrini’s purse and credit card, intending not to give them back. See State v. Prier, 634 S.W.2d 197, 200 (Mo. banc 1982) (holding that if there is no reasonable explanation for flight from a crime scene, a defendant’s presence at the crime scene and his flight therefrom might be sufficient to support a conviction, so long as the State demonstrates a substantial nexus between the defendant and the commission of the crime); see State v. Simpson, 778 S.W.2d 705, 707 (Mo.App. E.D.1989) (holding that a “defendant’s presence, opportunity, ... and flight are circumstances from which his purpose or intent may be inferred”).

Furthermore, because the stairwell exits to the first and second floors were blocked, the lowest floor from which Defendant could exit the stairwell was the third floor. As such, a reasonable juror could infer that these circumstances placed Defendant in the vicinity of the third floor men’s restroom, the site where the thief abandoned Silvestrini’s purse and credit card shortly after the theft. See State v. Martin, 211 S.W.3d 648, 651-52 (Mo.App. W.D.2007) (holding that “[cjontrol of property in a manner adverse to the property rights of an owner, even for an instant, is sufficient to demonstrate an intent to deprive the owner of his property permanently”).

Taking these circumstances as a whole, we find that a reasonable juror could conclude beyond a reasonable doubt that Defendant appropriated Silvestrini’s purse and credit card with the intent to steal them. As such, the trial court did not err in denying Defendant’s motion for judgment of acquittal at the close of the evidence. Point II is denied.

Conclusion

Based on the foregoing, we conclude that both the trial court’s conviction and prior and persistent offender finding are to be affirmed, but we remand for the trial court to correct the clerical mistake in the written sentence and judgment form.

GEORGE W. DRAPER III, and GARY M. GAERTNER, JR., JJ., concur.

      . All subsequent statutory citations are to RSMo Cum.Supp.2006, unless otherwise indicated.

      . The trial court granted Defendant ten additional days in which to file a motion for new trial.

      . All subsequent rule references are to Mo. R.Crim. Pro.2009, unless otherwise indicated.

      . "An act resembling an effort to conceal constitutes evidence reasonably implying consciousness of guilt.” State v. Burnett, 955 S.W.2d 785, 786 (Mo.App. E.D.1997).