author: GEORGE W. DRAPER III, Judge.

text:
    Samantha JENKINS, Appellant, v. GEORGE GIPSON ENTERPRISES, LLC and Division of Employment Security, Respondents.
    No. ED 94611.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.

      John Ammann, St. Louis, MO, for appellant.
    George Gipson LLC, St. Louis, MO, pro se.
    Michael Pritchett, Jefferson City, MO, for respondents.
   GEORGE W. DRAPER III, Judge.

Samantha Jenkins (hereinafter, “Claimant”) appeals the decision of the Labor and Industrial Relations Commission (hereinafter, “the Commission”), denying her unemployment compensation benefits. Claimant raises one point on appeal. We reverse and remand.

Following a hearing on Claimant’s appeal, the Appeals Tribunal made the following findings of fact: Claimant worked for George Gipson Enterprises, LLC (hereinafter, “Employer”) as a crew member at Employer’s McDonald Restaurant. On October 2, 2009, Claimant worked from 7 a.m. to 3 p.m. operating a cash register. Toward the end of her shift, Claimant brought her cash register into the office for a shift manager to balance her cash register, which Employer alleged was short ten dollars. The Commission found “Claimant had never made a mistake in counting her cash register.”

On October 3, Christina McGee (hereinafter, “McGee”), Employer’s general manager, reviewed a surveillance tape from the previous day. McGee believed the surveillance tape showed Claimant taking a ten dollar bill out of her cash register and putting it in her sleeve. McGee asked Claimant whether she took a ten dollar bill and Claimant denied doing so. Claimant denied viewing the surveillance tape, but McGee testified she showed Claimant the surveillance tape. McGee subsequently terminated Claimant for stealing.

A deputy determined Claimant was disqualified from receiving unemployment compensation benefits because she was discharged for misconduct connected with her work. Claimant appealed to the Appeals Tribunal. The Appeals Tribunal reversed the deputy’s determination, finding Claimant not disqualified for unemployment compensation benefits by reason of her discharge from work. The Appeals Tribunal reasoned McGee’s testimony regarding what the surveillance tape showed was hearsay. Thus, the only competent evidence presented was Claimant did not steal ten dollars from her cash register as per her testimony. Employer appealed to the Commission. The Commission reversed, finding Claimant disqualified from receiving unemployment compensation benefits because Employer discharged her for misconduct connected to her work.

Our review of the Commission’s decision in this unemployment compensation matter is governed by Section 288.210 RSMo (2000). Rector v. Kelly, 183 S.W.3d 256, 258 (Mo.App. W.D.2005). On appeal, we may modify, reverse, remand for rehearing, or set aside the decision of the Commission on the following grounds and no other:

(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Section 288.210.

This Court’s review “is limited to deciding whether the Commission’s decision is supported by competent substantial evidence and authorized by law.” Korkutovic v. Gamel, Co., 284 S.W.3d 653, 656 (Mo.App. E.D.2009)(quoting Ewing v. SSM Health Care, 265 S.W.3d 882, 886 (Mo.App. E.D.2008)). The Commission’s findings of fact shall be conclusive if supported by competent and substantial evidence and in the absence of fraud. Taylor v. St. Louis Arc, Inc., 285 S.W.3d 775, 776 (Mo.App. E.D.2009)(quoting Section 288.210). However, “we are not bound by the Commission’s conclusions of law or its application of the law to the facts.” Korkutovic, 284 S.W.3d at 656.

In her sole point on appeal, Claimant alleges the Commission erred in finding she committed misconduct because the Commission’s decision was not based on competent and substantial evidence pursuant to Section 288.210. Essentially, Claimant asserts Employer failed to establish misconduct because the only evidence that she stole ten dollars was McGee’s hearsay testimony about what she viewed on the surveillance tape, and hearsay alone cannot constitute competent and substantial evidence.

Section 288.050.2 provides that “[i]f a deputy finds that a claimant has been discharged for misconduct connected with the claimant’s work, such claimant shall be disqualified for waiting week credit and benefits.” Misconduct is defined as:

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer....

Section 288.030.1(28). Each of these criteria for finding an employee engaged in misconduct has an element of culpability or intent. Williams v. Enter. Rent-A-Car Shared Sens., LLC, 297 S.W.3d 139, 142 (Mo.App.E.D.2009). “Willful misconduct is established by showing that the claimant’s actions amounted to a conscious disregard for the interests of the employer or constituted behavior contrary to that which an employer has a right to expect.” Id.

The burden of proving eligibility for unemployment benefits initially lies with Claimant. Hill v. Norton & Young, Inc., 305 S.W.3d 491, 493 (Mo.App. E.D.2010). However, once Employer alleges Claimant was discharged for misconduct connected with work, the burden shifts to Employer to show such misconduct. Id. “[T]he employer must show, by a preponderance of the evidence, that the claimant willfully violated the rules or standards of the employer or that the claimant knowingly acted against the employer’s interest.” Id. at 493-94.

The Missouri Code of State Regulations addresses the conduct of unemployment hearings and the use of hearsay evidence in those proceedings:

The hearing need not be conducted according to the common law or statutory rules of evidence or the technical rules of procedure. Hearsay evidence is generally admissible. Evidence is admissible if it is not irrelevant, immaterial, privileged or unduly repetitious. Hearsay which is timely objected to shall not constitute competent evidence which, by itself, will support a finding of fact. A party or his/her attorney may advise the hearing officer of a defect in the character of any evidence introduced by voicing an objection. The hearing officer shall rule on the admissibility of all evidence. Any evidence received without objection which has probative value shall be considered by the hearing officer along with other evidence in the case....

Mo.Code Regs. Ann. tit. 8, § 10-5.015(10)(B)4 (2002). Thus, if the only evidence presented of misconduct is hearsay that is “timely objected to,” the Commission’s findings of fact are not supported by competent and substantial evidence. Hill, 305 S.W.3d at 495; Mo.Code Regs. Ann. tit. 8, § 10-5.015(10)(B)4.

Parties to an administrative hearing may waive objections to hearsay “for reasons of trial strategy or other cause” and “such hearsay evidence may then be considered as substantial and competent for purposes of the agency’s findings.” Helfrich v. Labor and Indus. Relations Comm’n, Div. of Employment Sec., 756 S.W.2d 663, 666 (Mo.App. E.D.1988). However, a statement by a claimant that hearsay testimony is false “cannot in any way be interpreted as a waiver of claimant’s right to substantial and competent evidence” despite not rising to the level of an objection to hearsay or motion to strike. Id.; see also Hill, 305 S.W.3d at 495.

Here, Employer only offered McGee’s testimony to support its assertion Claimant was discharged for misconduct connected with work. McGee testified that on October 3, she reviewed a surveillance tape from October 2, in which she saw Claimant take a ten dollar bill out of her register and put it in her sleeve. The surveillance tape was not offered into evidence. During the hearing before the Appeals Tribunal, Claimant accused McGee of lying about the surveillance tape and not being honest. Further, Claimant denied stealing ten dollars from her cash register and maintained her cash register never came up short. Accordingly, Claimant’s objection to McGee’s hearsay testimony could be inferred. See Hill, 305 S.W.3d at 494 (finding the claimant, who was not represented by counsel at hearing, made statements during hearing from which objection to hearsay testimony could be inferred because he denied engaging in misconduct and stated the hearsay testimony was false).

Employer failed to meet its burden to show by a preponderance of the evidence Claimant was discharged due to misconduct connected with work. See Hill, 305 S.W.3d at 495. Accordingly, the Commission’s decision is not supported by competent and substantial evidence, and Claimant is not disqualified under Section 288.050.2 from receiving unemployment benefits. Point granted.

Conclusion

The Commission’s decision is reversed, and the case is remanded for further proceedings consistent with this opinion.

GLENN A. NORTON, P.J., and KATHIANNE KNAUP CRANE, J., concur.

      . All statutory references are to RSMo (2000) unless otherwise indicated.


source: Caselaw Access Project

author: KURT S. ODENWALD, Presiding Judge.

license: Public Domain

text:
    Calvin WEST, Jr., Appellant, v. BALDOR ELECTRIC COMPANY, and Division of Employment Security, Respondents.
    No. ED 94674.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 14, 2010.

      Jaclyn Roewe, John J. Ammann, Saint Louis University Law Clinic, St. Louis, MO, for Appellant.
    Amie E. Needham, Thompson Coburn LLP, St. Louis, MO, for Respondent Bal-dor Electric Company.
    Bart Anton Matanic, Department of Labor and Industrial Relations, Division of Employment Security, Jefferson City, MO, for Respondent Division of Employment Security.
   KURT S. ODENWALD, Presiding Judge.

Introduction

The issue presented by this appeal is whether an employee’s conduct of intentionally leaving his assigned work station while on the clock and subsequently engaging in conduct which included rubbing and kissing the naked breasts of a fellow employee and reaching down into her pants, all on company time and on the company’s premises, is conduct that disqualifies the employee from unemployment benefits. Calvin West, Jr. (West) appeals from the decision of the Labor and Industrial Relations Commission (the Commission), which denied him unemployment benefits because it found West was discharged from Baldor Electric Company (Baldor) for misconduct connected with work. The Commission found that West’s conduct in leaving his work station to engage in sexual conduct with a co-worker was a disregard of the standards of behavior an employer may expect of its employees at work and thus constituted misconduct connected with his work, disqualifying him from unemployment benefits. Finding no reversible error in the Commission’s decision, we affirm.

Background

West was employed as an auto punch press operator for Baldor until his employment was suspended and subsequently terminated on October 2, 2009. After his discharge, West filed an application for unemployment benefits. Baldor filed a Letter of Protest to West’s application with the Division of Employment Security (DES). In its protest letter, Baldor indicated that a female employee reported that she was sexually assaulted by West. The protest letter also stated that West was terminated for “several acts of improprieties,” including his admission that he was with the female who alleged the assault and that he was out of his work area. Attached to the protest letter was a copy of the Baldor company policies, which was signed by West. The company policy stated that leaving the building, premises, or work area during work hours without permission (except for lunch or authorized breaks) was unacceptable conduct which could lead to an employee’s suspension or termination.

The DES Deputy’s Determination Concerning Claim for Benefits (Deputy’s Determination) was issued on October 28, 2009. The deputy found West was disqualified for benefits because he was discharged from his employment for aggravated misconduct connected with work. The deputy reasoned that West was discharged for assaulting a co-worker.

West appealed the Deputy’s Determination and a hearing was held with the DES Appeals Tribunal on December 10, 2009. Glenda Bailey (Bailey), Baldor’s Human Resource Manager, testified on behalf of Baldor. Bailey testified that a female employee reported to her that she was sexually assaulted by West. Bailey further testified that while the police were involved, she did not have a copy of the police report. Bailey testified that West was initially suspended pending an investigation of the alleged sexual assault, and that at the conclusion of the investigation West was terminated. West testified on his own behalf that the incident between him and the female co-worker was consensual. West explained that he and the co-worker were walking together and decided to take the “long way” back to their job site when they stopped. West asked if he could see the co-worker’s breasts since she told him previously that she would show him her breasts. West testified that he asked his co-worker if he could touch her breasts and she said yes. West then testified that he asked the co-worker if he could kiss her breasts and she said yes. West explained that in the midst of kissing the co-worker’s breasts, she “didn’t say anything” so he stuck his hand down her pants. West testified that the co-worker then told him that they “shouldn’t be doing this here,” so he gave her a hug and they went back to work. West stated that he had been questioned by the police regarding the incident, but he had not heard anything else from the police.

After the hearing, the Appeals Tribunal issued its decision reversing the Deputy’s Determination. The Appeals Tribunal found that West was discharged, but not for misconduct connected with work. The Appeals Tribunal reasoned that West denied committing the sexual assault and that Baldor did not meet its burden of presenting substantial competent evidence to establish that West was discharged for an act or omission considered to be misconduct connected with work.

Baldor appealed the Appeals Tribunal’s ruling to the Commission. On March 2, 2010, the Commission issued its order reversing the Appeals Tribunal’s decision, and finding that West was discharged for misconduct connected with work. The Commission reasoned that “the act of leaving one’s work station to engage in sexual conduct with a co-worker amounts to a disregard of the standards of behavior an employer may expect of its employees at work.” Setting aside the issue of whether the sexual conduct was consensual or otherwise, the Commission found that West’s conduct demonstrated a wanton and willful disregard of the standards of behavior which Baldor had the right to expect of its employees.

West filed a Notice of Appeal to this Court and this appeal follows.

Discussion

In his sole point on appeal, West claims the Commission’s decision was in excess of its power and contrary to law because his consensual relationship with a co-worker was an error in judgment, not misconduct connected with work.

Article 5, Section 18 of the Missouri Constitution and Section 288.210, RSMo 2000 set forth the standard for reviewing decisions of the Commission in unemployment compensation cases. On appeal, this Court

may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Section 288.210.

While deference is given to the Commission’s factual findings and the credibility of witnesses, we do not give deference to the Commission’s determinations regarding questions of law. Ernst v. Sumner Group, Inc,, 264 S.W.3d 669, 671 (Mo.App. E.D.2008). Whether a claimant’s actions constitute misconduct connected with work is a question of law which this Court reviews de novo. Id.

West argues he should not be denied unemployment compensation benefits because his actions were simply poor judgment and not misconduct connected with his work. We disagree.

Section 288.050(2) provides for the disqualification of an employee from unemployment compensation benefits where there is “misconduct connected with the claimant’s work.” “Misconduct” is defined in Section 288.030(28) as

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer, (emphasis added)

“Work-related misconduct” must involve a willful violation of the rules or standards of the employer. Murphy v. Aaron’s Auto. Prods., 232 S.W.3d 616, 621 (Mo.App. S.D.2007); Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9, 13 (Mo.App. W.D.2005). Without evidence that a claimant “deliberately or purposefully erred, he cannot properly be found to have committed an act of misconduct.” Murphy, 232 S.W.3d at 621.

While employees generally bear the burden of proving they are entitled to unemployment benefits, when an employer claims an employee was discharged for misconduct, the burden shifts to the employer to prove by substantial and competent evidence that an employee was discharged for misconduct connected with work. Ernst, 264 S.W.3d at 671.

The Commission found West’s conduct came within the definition of “misconduct” because West’s conduct “demonstrated a wanton and willful disregard of the standards of behavior which the employer had the right to expect of its employees.” Willful misconduct can be established when a claimant, either by action or inaction, consciously disregards the interest of the employer or behaves in a way that is contrary to that which an employer has a right to expect from an employee. RPCS, Inc. v. Waters, 190 S.W.3d 580, 586 (Mo.App. S.D.2006).

We hold that the Commission did not err in determining that West’s behavior of engaging in sexual acts with a co-worker, consensual or otherwise, was “a disregard of standards of behavior which the employer has the right to expect of his or her employee.” Clearly an employer has a right to expect that its employees are engaging in meaningful work while being paid by the employer, and are not engaging in inappropriate sexual conduct while being paid and on company property. Given the nature of the business of this employer, engaging in sexual acts at work violates any reasonable definition of acceptable employee behavior. We are not persuaded that West’s conduct, even though allegedly a one-time incident, should be deemed anything less than employee misconduct. Nor is the employer required to have in place a precise work rule prohibiting such behavior in order for that behavior to rise to the level of misconduct. In stark contrast to the various cases cited by West, we see no possible argument that would allow us to consider West’s sexual interaction with his co-worker under these circumstances as anything less than a conscious disregard of the standards of conduct Baldor was entitled to expect of him. West did not have to be explicitly told not to feel and kiss the bare breasts of his co-worker while on the job in order for his conduct to be deemed misconduct. To suggest otherwise insults the intelligence of his employer, his co-workers, and is not supported by judicial authority. An employee acting in such a manner can anticipate a real possibility of being fired. See Simpson Sheet Metal, Inc. v. Labor and Indus. Relations Comm’n, 901 S.W.2d 312, 314 (Mo.App. S.D.1995) (finding that making derogatory references to the company president, along with threats of destruction and violence, was a disregard of the standard of behavior that an employer has a right to expect, and was thus misconduct); Acord v. Labor and Indus. Relations Comm’n, 607 S.W.2d 174, 176 (Mo.App. S.D.1980) (employee’s conduct in using foul language with a supervisor deemed “a disregard of the standard of behavior that an employer has the right to expect,” and thus misconduct). Under the circumstances presented in the record, this Court holds that the Commission could find that West’s conduct displayed a disregard for the standard of behavior that an employer has the right to expect, and thus constitutes misconduct. See Acord, 607 S.W.2d at 176.

Moreover, while West clearly displayed a “disregard of standards of behavior which the employer has the right to expect of his or her employee,” we also affirm the Commission’s decision because West’s conduct was a “deliberate violation of the employer’s rules,” and therefore constitutes misconduct. In Missouri, a deliberate violation of an employer’s reasonable work rules and policies constitutes disqualifying misconduct. Ernst, 264 S.W.3d at 672.

In this case, Baldor’s express work rules prohibited employees from leaving the building, premises, or work area without permission, except for approved breaks. This work rule qualifies as a reasonable rule because it serves to increase the efficiency, productivity, and professional work environment of the company. See Holly v. Tamko Bldg. Prod., Inc., 318 S.W.3d 284, 288 (Mo.App. S.D.2010); Ernst, 264 S.W.3d at 672.

West did not deny that he violated Bal-dor’s policy against leaving the building, premises, or work area during work hours (except for lunch or authorized breaks) without permission. Whether West left from his work area in order to engage in sexual conduct with a co-worker or for some other reason, his deliberate conduct in leaving his assigned work area without first obtaining permission constitutes a willful violation of Baldor’s work rules, and is misconduct disqualifying him from unemployment benefits. West’s violation was deliberate. West signed an acknowledgment form indicating his awareness of the policy, yet he admitted to purposefully taking the “long way” back to his work area after walking to another area of the building. West admitted that he was away from his work area without permission and presented no work related excuse for his absence.

West does not challenge the existence, content, applicability, or reasonableness of Baldor’s policy prohibiting employees from leaving the building, premises, or work area without permission, except for approved breaks. Nor does West challenge that he deliberately violated that policy when he, with knowledge of the policy and its possible consequences, decided to take an extended route back to his work area and intentionally absent himself from his assigned work area.

West’s act of taking the “long way” back to his work area, in order to engage in sexual conduct with a co-worker, not only completely disregarded the standards of behavior that Baldor had the right to expect from its employees, but also constituted a deliberate violation of Baldor’s policy. West’s point on appeal is denied.

Conclusion

The judgment of the Commission is affirmed.

ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ., Concur.

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


author: PER CURIAM.

text:
    Lonnie SNELLING, Plaintiff/Appellant, v. ST. LOUIS DEVELOPMENT CORP., (LRA) et al., Defendants/Respondents.
    No. ED 94561.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    Lonnie Snelling, St. Louis, MO, pro se.
    Jane Berman Shaw, Assistant City Counselor, St. Louis, MO, for respondent City of St. Louis.
    Linda L. Hahn, Hahn, Enright & Hansen, St. Louis, MO, for respondent O’Fal-lon III, L.P.
    Leslie Yancy, St. Louis, MO, for respondent Land Utilization Authority of the City of St. Louis.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Plaintiff appeals from an adverse judgment. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    Wendell SIMMONS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94241.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 14, 2010.
    Alexandra Johnson, Missouri Public Defender Office, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Roster, Attorney General, John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Wendell Simmons (Simmons) filed a Rule 24.085 motion for post-conviction relief, arguing that his plea counsel was ineffective for failing to investigate his case. Simmons entered a guilty plea to burglary in the first degree, in violation of Section 569.160, RSMo 2000. He was sentenced as a prior and persistent offender to fifteen years of incarceration. We affirm the motion court’s decision to deny, without an evidentiary hearing, Simmons’s motion for post-conviction relief.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Mark BROOKS, Defendant/Appellant.
    No. ED 94256.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    Craig A. Johnston, Columbia, MO, for appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Defendant, Mark Brooks, appeals from the judgment entered on a jury verdict finding him guilty of forcible rape, in violation of section 566.030 RSMo (2000), and attempted forcible sodomy, in violation of section 566.060 RSMo (2000). The trial court sentenced defendant to fifteen years imprisonment on the forcible rape count and five years imprisonment on the attempted forcible sodomy count, to be served consecutively.

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

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


text:
    Darryl SMALLWOOD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94392.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    Jessica Hathaway, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

      Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Darryl Smallwood (hereinafter, “Mov-ant”) appeals from the trial court’s judgment entered after a jury found him guilty of trafficking in the second-degree, Section 195.223 RSMo (2000). The trial court sentenced Movant as a prior and persistent drug offender to twenty years’ imprisonment. This Court affirmed his conviction. State v. Smallwood, 272 S.W.3d 431 (Mo.App. E.D.2008).

Movant now appeals from the judgment denying his Rule 29.15 motion for postcon-viction relief without an evidentiary hearing. Movant alleges he received ineffective assistance of counsel in that his trial counsel failed to object to testimony by the arresting officers and when the State commented on his right to remain silent.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Rule 29.15(k); Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). An extended opinion reciting the facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment of the motion court. Rule 84.16(b).


text:
    John HAIDUL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94552.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 14, 2010.
    Jessica M. Hathaway, Missouri Public Defender Office, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Foster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

John Haidul (Haidul) filed a Rule 24.035 motion for post-conviction relief, arguing that his plea counsel was ineffective due to a conflict of interest. Haidul asserts that the trial court erred when it refused to allow plea counsel to withdraw his representation of Haidul based upon that conflict of interest. Haidul entered an Alford, guilty plea to three counts of the class A felony of first-degree robbery, in violation of Section 569.020, RSMo 2000. We affirm the motion court’s decision to deny, without an evidentiary hearing, Haidul’s motion for post-conviction relief.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

      . The plea was made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), under which a criminal defendant pleads guilty while maintaining his innocence.


text:
    STATE of Missouri, Respondent, v. Michael OWENS, Appellant.
    No. ED 94228.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    Edward S. Thompson, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Michael Owens (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury convicted him of one count of robbery in the first degree, Section 569.020 RSMo (2000). Appellant was sentenced to ten years’ imprisonment. Appellant raises one point on appeal, arguing the trial court abused its discretion when it overruled Appellant’s objection to the prosecutor’s comments during closing argument about Appellant’s prior conviction.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. The trial court did not abuse its discretion in overruling Appellant’s objection. State v. Williams, 277 S.W.3d 848, 853 (Mo.App. E.D.2009). An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Glenn MANSFIELD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94207.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    Jessica M. Hathaway, Saint Louis, MO, for Appellant.
    Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Glenn Mansfield appeals the judgment denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. We find the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    Robert R. REINER, Trustee of the Reiner Family Trust, Appellant, v. CITY OF EUREKA, et al., Respondents.
    No. ED 94634.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    Benicia Baker-Livorsi, Saint Charles, MO, for Appellant.
    Megan C. Appleby, Saint Louis, MO, for Respondents.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Robert R. Reiner, as trustee of the Reiner Family Trust, appeals from the grant of summary judgment in favor of the City of Eureka, Michael Weigand and Ronald Jones (collectively, “the City”). We find the trial court did not err in granting summary judgment in favor of the City. 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 84.16(b).


text:
    STATE of Missouri, Respondent, v. Kerry GREEN, Appellant.
    No. ED 93965.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 14, 2010.
    Craig A. Johnston, Assistant Public Defender, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Kerry Green (Defendant) appeals the judgment of conviction entered after a jury found him guilty of one count of murder in the second degree, one count of robbery in the first degree, and two counts of armed criminal action. Defendant claims the trial court erred in: (1) denying his motion for judgment of acquittal for first-degree robbery and felony murder; (2) denying his motion to sever Defendant’s trial from that of a codefendant; (3) overruling his objection to the admission of evidence relating to the circumstances surrounding Defendant’s arrest; and (4) prohibiting Defendant from presenting evidence that, a few days prior to the charged crimes, a code-fendant shot at the codefendant’s girlfriend.

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 30.25(b).


text:
    STATE of Missouri, Respondent, v. Carlos VAUGHN, Appellant.
    No. ED 93944.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 14, 2010.
    Timothy J. Forneris, St. Louis, MO, for Appellant.
    Chris A. Koster, Attorney General, Jefferson City, MO, for Respondent.

      Before KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Carlos Vaughn (“Defendant”) appeals from the judgment upon his conviction by a jury of second-degree felony murder, Section 565.021 RSMo 2000, first-degree robbery, Section 569.020, and two counts of armed criminal action, Section 571.015. Defendant argues the trial court: (1) clearly erred in overruling his motion for judgment of acquittal at the close of all of the evidence and in sentencing him for felony murder because the State failed to prove the victim was killed as a result of the perpetration of the first-degree robbery; (2) erred in overruling defense counsel’s motions for judgment of acquittal because the State’s evidence was insufficient to sustain the jury’s finding of guilt on the charges of first-degree robbery and armed criminal action; (3) erred and abused its discretion in overruling his motion for severance and permitting the State to try Ronald Halkmon (“Ronald”), Kerry Green (“Kerry”), and Defendant in a single trial because there was substantial and material evidence that was admissible against Ronald, but not Defendant; and (4) erred and abused its discretion in permitting the State to present the testimony of Marnesa Lewis (“Marnesa”) that Ave-dou Halkmon (“Avedou”) told her he saw Kerry and Defendant in the victim’s pockets.

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 30.25(b).

      . All further statutory references are to RSMo 2000.

      . Because some of the people involved in this case have the same last name, we will use first names to avoid confusion.


text:
    Dexter LEWIS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 95038.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    John K. Tucci, St. Louis, MO, for appellant.
    Chris Koster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Movant, Dexter Lewis, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author: PER CURIAM:

text:
    SAINT LUKE’S NORTHLAND HOSPITAL, Appellant, v. Joyce E. VETTER and Glenn Vetter, Respondents.
    No. WD 72128.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    Gwendelyn Garcia, Kansas City, MO, for Appellant.
    Joyce E. and Glenn Vetter, Clinton, MO, pro se.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

This case involves a suit on an account for medical services. The appellant argues that the trial court erred in entering judgment for the defendants in that the appellant (as plaintiff below) proved all the facts necessary to its recovery. We hold that the appellant’s evidence was not legally conclusive on the issue of whether the appellant charged a reasonable price for the services it provided. Therefore, we affirm. Rule 84.16(b).


text:
    Joni HAMILTON, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 72150.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    Joni Hamilton, Harrisonville, MO, pro se.
    Bart A. Matanic, Jefferson City, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Joni Hamilton appeals from a decision of the Labor and Industrial Relations Commission regarding overpayment of unemployment benefits. Hamilton argues that the Commission’s decision was not supported by competent evidence. We disagree and affirm in this per curiam order. A legal memorandum explaining our ruling today has been provided to the parties. Rule 84.16(b).


text:
    Garyl SAUNDERS, Respondent, v. Karen GAFFEY, Appellant.
    No. WD 72429.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    Clark L. Jones, Columbia, MO, for Appellant.
    Heidi Doerhoff Vollet, Jefferson City, MO, for Respondent.
    Before Division II: KAREN KING MITCHELL, Presiding Judge, and JAMES EDWARD WELSH and MARK D. PFEIFFER, Judges.
   Order

PER CURIAM:

Karen Gaffey appeals the judgment of the Circuit Court of Boone County awarding Garyl Saunders a judgment of $2,000. Gaffey claims that the trial court’s judgment was not supported by substantial evidence, was against the weight of the evidence, and erroneously declared or applied the law. We disagree and affirm in this per curiam order. A legal memorandum explaining our ruling today has been provided to the parties. Rule 84.16(b).


author: CYNTHIA L. MARTIN, Judge.

text:
    In the Matter of the Care and Treatment of Larry BEMBOOM, a/k/a Larry J. Bemboom, Jr., a/k/a Larry Joseph Bemboom, a/k/a Larry J. Bemboon, a/k/a Larry J. Bemboom, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71619.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Emmett D. Queener, Columbia, MO, for appellant.
    Jayne T. Woods and James S. Atkins, Jefferson City, MO, for respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Larry Bemboom (“Bemboom”) appeals from a judgment entered by the Boone County probate court committing Bem-boom to the custody of the Director of the Department of Mental Health as a sexually violent predator following a jury trial. In his sole point on appeal, Bemboom argues that the probate court erred because Dr. Kent Franks’s (“Dr. Franks”) testimony failed to clearly and convincingly establish the presence of a mental abnormality causing Bemboom serious difficulty controlling his behavior. We affirm.

Facts and Procedural History

Bemboom pleaded guilty to first degree sexual assault and deviate sexual assault in 2003. He was sentenced to five years in prison. Prior to his release from incarceration, Dr. Kimberly Weitl filed an end-of-confinement report wherein she opined that Bemboom appeared to meet the statutory definition of a sexually violent predator. Dr. Weitl diagnosed Bemboom with paraphilia, sexually attracted to non-consenting females, nonexclusive type, and antisocial personality disorder. Dr. Weitl also opined that Bemboom posed a high risk to re-offend. On August 22, 2008, the State filed a petition to civilly commit Bemboom as a sexually violent predator under section 632.486. Following the probate court’s determination of probable cause to proceed, the Department of Mental Health was ordered to conduct an evaluation of Bemboom.

Dr. Franks conducted the evaluation. He reviewed a number of Bemboom’s records, including: Department of Corrections’ records, Probation and Parole records, medical records, psychological records, treatment records, education records, police and sheriff department records from a number of jurisdictions, and court records from a number of jurisdictions. Dr. Franks opined that Bemboom suffered from two abnormalities: paraphi-lia not otherwise specified and antisocial personality disorder. Dr. Franks further opined that these mental abnormalities caused Bemboom serious difficulty controlling his behavior. Dr. Franks based this opinion in part on Bemboom’s frequent contacts with law enforcement and on his repeated engagement in criminal behavior despite detection, supervision, treatment, and incarceration. Dr. Franks opined that Bemboom was at a very high risk to reoffend based on actuarial measures and dynamic risk factors.

Following a three day jury trial where Dr. Franks testified as the State’s expert witness, Bemboom was found to be a sexually violent predator and was committed to the custody of the Director of the Department of Mental Health. Bemboom appealed.

Standard of Review

Our review in a sexually violent predator case is limited to determining whether there was sufficient evidence admitted from which a reasonable fact finder could find each necessary element under section 632.486. In re Care & Treatment of Barlow v. State, 250 S.W.3d 725, 733 (Mo.App. W.D.2008). Section 632.495.1 requires that each element necessary to establish that one is a sexually violent predator must be proven by clear and convincing evidence. “Matters of credibility and weight of testimony are for the fact finder to determine.” Barlow, 250 S.W.3d at 733. For that reason, the evidence is viewed “in the light most favorable to the judgment, accepting as true all evidence and reasonable inferences favorable to the judgment and disregarding all contrary evidence and inferences.” Id.

Analysis

In his sole point on appeal, Bem-boom claims that the probate court erred in having him involuntarily committed as a sexually violent predator because the testimony of Dr. Franks did not clearly and convincingly establish that his mental abnormalities caused him to have serious difficulty controlling his behavior. Bemboom maintains that Dr. Franks’s testimony at best established that he is a typical recidivist who is not subject to civil commitment. We disagree.

Under Missouri’s Sexually Violent Predators Civil Commitment Act, a sexually violent predator is defined at section 632.480(5) as “any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” A mental abnormality is defined at section 632.480(2) as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.”

The Missouri Supreme Court has determined that in instructing a jury, mental abnormality must be defined as “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.” In re Care & Treatment of Thomas v. State, 74 S.W.3d 789, 792 (Mo. banc 2002). The requirement that mental abnormalities cause an offender serious difficulty controlling his behavior was engrafted into the definition of mental abnormality in response to the United States Supreme Court’s decisions in Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), which combine to hold that sexually violent predator statutes are constitutional so long as the definition of mental abnormality distinguishes sexually violent predators from other dangerous persons more properly dealt with via traditional criminal proceedings. As noted in In re Care & Treatment of Murrell v. State, 215 S.W.3d 96, 104 (Mo. banc 2007), “to pass constitutional muster the statute must require a finding of future dangerousness and then link that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that causes the individual serious difficulty controlling his behavior.” This standard is necessary to “distinguish the dangerous sexual offender whose mental illness, abnormality or disorder subjects him to civil commitment from the dangerous but typical recidivist.” Thomas, 74 S.W.3d at 791-92.

Though the State must demonstrate by clear and convincing evidence that an offender has a mental abnormality causing the offender serious difficulty controlling his behavior, the State is not required to prove that the offender has an absolute inability to control his behavior. Crane, 534 U.S. at 411, 122 S.Ct. 867. “Hendricks set forth no requirement of total or complete lack of control.” Id. “The word ‘difficult’ indicates that the lack of control to which this Court referred [in Hendricks ] was not absolute.” Id. “Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.” Id. at 412, 122 S.Ct. 867.

The requirement that a mental abnormality causes an offender serious difficulty controlling his behavior has created a fertile ground for appellate review. Frequently, there is evidence of a pattern of behavior in the face of social and criminal consequences which forms the basis, at least in part, for an expert’s opinion that an offender’s mental abnormality causes the offender serious difficulty controlling his behavior. Equally frequently, offenders will claim that such evidence establishes no more than a pattern of recidivism, insufficient to establish by clear and convincing evidence a causal relationship between a diagnosed mental abnormality and serious difficulty controlling behavior. That is the precise tension presented by the single issue raised by Bemboom in this appeal.

However, several reported decisions out of our Eastern and Southern Districts have addressed this issue and have concluded that evidence of a pattern of sexually deviant behavior permits a reasonable inference that a mental abnormality has caused, and can be expected to cause, an offender serious difficulty controlling his behavior. See, e.g., In re Care & Treatment of Elliott v. State, 215 S.W.3d 88, 94 (Mo. banc 2007) (expert testified that defendant’s reoffending when released from jail and while on probation indicated that he could not control his behavior); In re Care & Treatment of Francis, 159 S.W.3d 873, 877 (Mo.App. S.D.2005) (“The mental abnormality of pedophilia causes Francis serious difficulty in controlling his behavior. Despite having served lengthy prison sentences, something is compelling him to reoffend regardless of the consequences.”); In re Care & Treatment of Collins, 140 S.W.3d 121, 125-26 (Mo.App. E.D.2004) (repeated failure in treatment programs and trouble with supervision while on probation sufficient evidence to establish serious difficulty controlling behavior); In re Care & Treatment of Pate, 137 S.W.3d 492, 498 (Mo.App. E.D.2004) (frequent arrests for both sexual and nonsexual offenses along with ongoing substance abuse problems sufficient evidence of serious difficulty controlling behavior).

Bemboom does not contest Dr. Franks’s medical opinion that he suffers from two mental abnormalities: paraphilia not otherwise specified and antisocial personality disorder. Bemboom also does not contest Dr. Franks’s opinion that Bemboom is at high risk to reoffend. Bemboom only argues that Dr. Franks’s testimony about Bemboom’s past pattern of deviant behavior and his high risk to reoffend prove merely that Bemboom may be a recidivist and do not establish by clear and convincing evidence that Bemboom’s mental abnormalities cause him to have serious difficulty controlling his behavior. Bemboom’s argument presupposes that evidence of a risk of reoffending and of a pattern of past offenses is not relevant to establish whether an offender has serious difficulty controlling his behavior. Unfortunately for Bemboom, Elliott, Francis, Collins, and Pate disagree.

At trial, Dr. Franks testified that, in his opinion, Bemboom suffers from mental abnormalities which make him more likely than not to engage in sexually predatory acts in the future if not confined in a secure facility. Dr. Franks testified that Bemboom’s mental abnormalities cause him to have serious difficulty in controlling his behavior. Dr. Franks opined that Bemboom is a sexually violent predator.

Dr. Franks’s opinions followed his examination of numerous records which revealed the following:

• In approximately 1983, when Bem-boom was thirteen years old, he fondled the breasts and vagina of an eight year old girl and forced her to perform oral sex on him.
• In approximately 1983, Bemboom fondled and orally copulated a twelve year old boy while another person photographed the incident.
• In approximately 1984, while in the seventh grade, Bemboom went to counseling after he was discovered soliciting boys to perform oral sex for him in the bathroom.
• In approximately 1985, Bemboom exposed his penis to a thirteen year old girl, and on approximately five occasions, to girls from his church. In or around the same time, Bemboom exposed himself to a younger female relative. In response, his mother placed him in the Burrell Behavioral Health Center in Springfield, Missouri, for psychological treatment.
• While at Burrell Behavioral Health Center for treatment, Bemboom fondled the buttocks of a fourteen year old girl.
• By approximately 1988, Bemboom was exposing himself to strangers frequently and was engaging in oral sex with numerous, random partners. He was suspended from high school following an incident in which he exposed himself to another student. Bemboom blamed his behavior on his teachers.
• In approximately October 1989, Bem-boom was arrested in Nixa, Missouri, for exposing himself to three young girls at a bus stop. Bemboom was found guilty of three counts of indecent exposure and placed on probation.
• In approximately December 1989, Bemboom exposed his genitalia to a group of junior high girls in Springfield, Missouri. Bemboom was again found guilty of three counts of indecent exposure and placed on probation. His probation was revoked in December 1990.
• In approximately 1990, Bemboom again underwent sex offender treatment of Burrell Behavioral Mental Health in Springfield, Missouri. He admitted to exposing himself and to molesting a younger female relative.
• In approximately 1993, the police were called when two women caught Bem-boom looking into the window of their trailer.
• In approximately 1995, Bemboom moved in with a sixteen year old girl whom he repeatedly raped. Bemboom also engaged in oral sex with her eleven year old brother on more than one occasion.
• In approximately 1996, Bemboom reported that he forced a nineteen year old girl to have sex with him for drugs.
• In approximately 1997, Bemboom developed an addiction to drugs. He sought inpatient treatment at the Salem Treatment Center. While at the Center, Bemboom was sleeping with, and performing oral sex on, other male patients.
• In approximately 1998, Bemboom reported having oral sex with a fourteen year old girl. Bemboom said that he moved in with two girls, fourteen and sixteen years old, and slept in the same bed with them and a young boy. He also reported that he raped a fifteen year old girl and fondled a fourteen year old girl.
• In approximately June 2000, Bemboom was arrested in Greene County, Missouri, and charged with forcible sodomy of a twelve year old girl. He was convicted of endangering the welfare of a child. Bemboom gave the child marijuana to smoke, then fondled her and inserted his penis into her anus. Bem-boom was sentenced to five years, with the imposition of sentence suspended, and three years probation.
• In approximately 2001 and 2002, and while on probation, Bemboom stated that he sexually assaulted a number of victims for which he was never detected. Bemboom reported that he molested boys and girls, ages eight to seventeen, at the Salvation Army. Bemboom specifically reported multiple rapes of an identified girl and an identified boy.
• In approximately 2003, Bemboom reported that he held a nineteen year old girl and an eighteen year old girl captive, abusing both sexually. Over the time Bemboom held the girls in captivity, he physically assaulted them daily and forced them to perform oral sex on him. The girls were restrained in order to prevent them from leaving his residence.
• In the same time frame, Bemboom reported that he frequented adult theaters where he performed oral sex on men.
• In 2008, Bemboom pleaded guilty to the charges which resulted in the incarceration immediately preceding the State’s effort to secure his civil commitment as a sexually violent predator. These charges stemmed from Bemboom picking up a thirty-nine year old woman for the purported purpose of giving her a ride home. Instead, Bemboom took the woman to his house where he forced her to perform oral sex on him and vaginally raped her. During the assault, Bemboom insisted that the victim call him “master,” made racially denigrating comments to the victim, and informed the victim that his grandparents once owned slaves. The victim escaped and fled nude from Bemboom’s residence.
• Over much of the aforesaid time frame, Bemboom was continually molesting a younger female relative. Bem-boom would sneak into her room during the night, cover her mouth, and have sex with her. He would take her into the family shed, remove her clothes, spread her legs, and penetrate her vaginally with a variety of foreign objects. To insure her silence, Bemboom threatened to kill her if she reported him. The younger female relative did not report Bemboom until many years later, approximately five or six years before Bemboom’s commitment trial.
• While incarcerated for the 2003 convictions, Bemboom was offered the chance to participate in the Missouri Sexual Offenders Program (MOSOP), a prison-based sex offender treatment program. Bemboom failed MOSOP after just three months.

Relying on the above information and other information obtained from the records he reviewed, Dr. Franks discussed his diagnosis of paraphilia and antisocial personality disorder, illustrating the events from Bemboom’s history which fulfilled the required criteria necessary for each diagnosis. Dr. Franks testified that the facts on which he relied to reach his diagnosis were consistent with those used by, and reasonably relied on by, experts in his field.

Dr. Franks testified that Bemboom had a mental abnormality that caused him to have serious difficulty controlling his behavior such that, if not confined, Bemboom would be more likely than not to engage in future acts of predatory sexual violence. Specifically, Dr. Franks testified that:

after detection, supervision, treatment, the individual who continues to engage in the same behavior after its clearly been shown to them they’re going to get into a lot of trouble for that and lose their liberty as a result of that, and they still continue to engage in the same behavior, in my opinion that suggests an inability to control that behavior in question.

Dr. Franks also testified that Bemboom had never successfully completed a sex offender’s treatment program, despite three attempts, and that this indicated that he posed a “high risk of reoffending.”

Dr. Franks did testify that based on the use of actuarial instruments and other tests reasonably relied on by experts in his field, he believed that Bemboom is “going to be much more likely to reoffend either violently or sexually” and that offenders like Bemboom “don’t respond to any conventional or known form of psychological treatment.” Bemboom claims this testimony merely established the likelihood that Bemboom would be a recidivist. Bemboom also claims that Dr. Franks’s testimony simply demonstrated that Bem-boom has chosen not to control his behavior and not that Bemboom cannot control his behavior. Bemboom’s arguments ignore, as discussed above, that evidence of a pattern of deviant behavior is relevant to establish that an offender has had, and will have, serious difficulty controlling his behavior. Bemboom’s arguments also ignore Crane, which held that an offender’s absolute inability to control his behavior is not the standard required to establish that an offender is a sexually violent predator. 584 U.S. at 411, 122 S.Ct. 867. Here, in addition to hearing about the long pattern of deviant sexual behavior engaged in by Bemboom, the jury also heard Dr. Franks testify “that because of the paraphilia and the anti-social personality disorder, [Bem-boom] does experience serious difficulty controlling his behavior.” In fact, Dr. Franks testified that an attribute of antisocial personality disorder is a lack of impulse control. Expert witness testimony is admissible on the issue of whether an offender has “serious difficulty controlling his behavior.” Elliott, 215 S.W.3d at 94. The jury was free to believe Dr. Franks’s expert testimony. Id.; Barlow, 250 S.W.3d at 733.

We find that the State presented sufficient evidence from which a reasonable jury could conclude that clear and convincing evidence established that Bemboom suffers from mental abnormalities which cause him to have serious difficulty controlling his behavior and that Bemboom is a sexually violent predator.

Conclusion

The judgment of the probate court is affirmed.

All concur.

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

      . The particulars of Dr. Franks’s testimony and of the testimony of other witnesses will be addressed in our discussion.


text:
    STATE of Missouri, Respondent, v. Vernon L. YOUNG, Appellant.
    No. WD 70632.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    Laura G. Martin, for Appellant.
    Evan J. Buchheim, for Respondent.
    Before Division One: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM:

Vernon L. Young was found guilty by a jury of second-degree murder, first-degree assault, and two counts of armed criminal action, and he was sentenced to four concurrent terms of twenty-five years’ imprisonment. Young appeals from his conviction and sentence and argues that the trial court plainly erred in allowing evidence of Young’s gang affiliation to be admitted into evidence. Finding no evident, obvious, or clear error, we decline plain error review.

Judgment affirmed. Rule 30.25(b).


author: MARK D. PFEIFFER, Presiding Judge.

text:
    STATE of Missouri, Appellant, v. Patrick D. CONNELL, Respondent.
    No. WD 72643.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    Mark A. Richardson, Prosecuting Attorney for Cole County, Missouri, Goldie L. Tompkins, Assistant Prosecuting Attorney, Jefferson City, MO, Attorneys for Appellant.
    Margaret M. Johnston, Assistant State Public Defender, Columbia, MO, Attorney for Respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and JAMES EDWARD WELSH and KAREN KING MITCHELL, Judges.
   MARK D. PFEIFFER, Presiding Judge.

The State appeals from a “judgment” granting a “suppression of evidence” by the Circuit Court of Cole County (“trial court”). Because we conclude that the trial court’s “judgment” was a “judgment of acquittal” and not an “interlocutory suppression order,” we lack authority to hear the State’s “interlocutory” appeal and the same is dismissed.

Summary of Facts and Procedural History

On December 3, 2008, Patrick Connell (“Connell”) was pulled over by Officers Marsey and Flessa on the suspicion that there was an existing warrant for Connell and for a lane-change violation. Connell was handcuffed and placed in the back of Officer Flessa’s patrol car so that Flessa could ascertain Connell’s warrant status. While Officer Flessa checked Connell’s warrant status, Officer Marsey, a K-9 officer, walked the exterior of Connell’s truck with his canine. The dog alerted on Con-nell’s door and Officer Marsey, after opening the door, discovered a marijuana cigarette in a pack of cigarettes on the driver’s seat. A further search of the interior of the truck revealed a plastic bag of marijuana hidden in the fuse box. Connell was arrested and subsequently charged with the class A misdemeanor of possession of a controlled substance.

On June 11, 2009, Connell filed a motion to suppress evidence in which he argued that, in light of the United States Supreme Court decision in Arizona v. Gant, — U.S.-, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Officer Marsey’s search of his vehicle was a violation of his Fourth Amendment rights. After a hearing on August 28, 2009, Judge Thomas Sodergren overruled the motion. Subsequent to his ruling on the motion to suppress, Judge So-dergren recused himself, and the case was transferred to Judge Patricia Joyce. Con-nell re-filed his motion to suppress evidence on January 27, 2010. Judge Joyce overruled the renewed motion to suppress on March 3, 2010.

On April 15, 2010, a bench trial was held. Without objection, the State presented the testimony of Officers Flessa and Marsey and introduced the marijuana obtained from the search of Connell’s truck (i.e. the evidence was not suppressed). Connell presented no evidence in his defense. After the State’s closing argument, Connell’s trial counsel argued that the State had not met its burden of proof because the only evidence tying Con-nell to the charged crime was “the fruit of an illegal search.” After closing arguments, the trial court requested and received additional legal suggestions regarding the legality of the search that resulted in the discovery of marijuana in Connell’s truck. Thereafter, on June 18, 2010, the trial court signed a document with its summary of facts and law relating to the search; additionally, the document that was signed by the trial court stated: “Judgement [sic] — Defendant’s Motion to Suppress Evidence is sustained.” On June 22, 2010, the State filed this “interlocutory” appeal, contesting the trial court’s “suppression order.”

Double Jeopardy and Appellate Jurisdiction

Connell argues that the trial court’s judgment was not an interlocutory order but, instead, a judgment of acquittal. As a result, Connell argues that the State’s appeal is not interlocutory but, instead, a post-trial appeal. Consequently, Connell moves to dismiss the State’s appeal on the basis that the State’s right to appeal ends where Connell’s right to be free from double jeopardy begins. § 547.200.2. We agree.

In Missouri “‘[t]he right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists.’ ” State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 859 (Mo. banc 2008) (quoting Riverside-Quindaro Bend Levee Dist. v. Intercont’l Eng’g Mfg., 121 S.W.3d 531, 532 (Mo. banc 2003)). While section 547.200.1(3) provides the State the right of interlocutory appeal from any order or judgment having the substantive effect of suppressing evidence, the State’s right to appeal terminates when “the possible outcome of such an appeal would result in double jeopardy for the defendant.” § 547.200.2. In a bench-tried case, jeopardy attaches once evidence has been presented. State v. Shaon, 145 S.W.3d 499, 503 (Mo.App. W.D.2004). Double jeopardy prevents (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after a conviction; and (3) punishing the defendant multiple times for the same offense. Id.

In evaluating the trial court’s judgment for double jeopardy implications, we do not rely upon the trial court’s characterization of its action but “must examine and consider the language of the judgment in its entirety.” Id. (quoting Woodfill v. Shelter Mut. Ins. Co., 878 S.W.2d 101, 103 (Mo.App. S.D.1994)). Both parties rely upon Shaon. In Shaon, by agreement of the parties, a hearing on Shaon’s motion to suppress evidence was argued in combination with Shaon’s trial for misdemeanor marijuana possession. Id. at 502. At the close of all the evidence, but before closing arguments, the trial court recessed the case to rule on the motion to suppress. Id. at 503. The trial court granted the motion and the State appealed. Id. On appeal, Shaon argued that the trial court’s order granting the motion to suppress functioned as an acquittal. Id. In rejecting Shaon’s argument, we examined the procedural context of the grant of the motion to suppress to conclude that the trial court’s order was not tantamount to an acquittal because the trial court continued the trial after ruling on the motion to suppress for a sufficient amount of time to enable the State an opportunity to appeal the trial court’s evidentiary suppression ruling; and, once the State filed its interlocutory appeal, the trial court expressly continued the trial until further order from the court of appeals. Id. at 502-03.

Although there are obvious similarities between the procedural history in Shaon and the instant case, we find significant and controlling differences between the two cases. In Shaon, both parties had agreed to submit argument on the motion to suppress in combination with the trial. Consequently, after the evidence was submitted, the trial court considered the separate issue of evidentiary suppression before continuing with the guilt phase of the trial. In the instant case, the motion to suppress had previously been overruled on multiple occasions by the trial court prior to the trial. Connell did not renew his motion when the marijuana evidence was admitted and did not even object to the introduction of the evidence during the trial. Instead, in Connell’s closing argument, Connell’s trial counsel argued that the only evidence tying Connell to a crime was evidence obtained in an illegal search. Connell’s trial counsel essentially intertwined the validity of the search with the question of Connell’s culpability: If the search was valid, Connell was guilty; if the search was invalid, the State could not meet its burden of proof and Connell must be acquitted.

While it is possible that the defendant in Shaon made a similar argument, it is the timing of Connell’s argument that distinguishes the procedural history of this case from Shaon. In Shaon, the trial court recessed the case to consider the motion to suppress after hearing all the evidence but before final arguments of counsel, clearly separating the issue of the motion to suppress from the determination of Shaon’s guilt. In contrast, in the instant case, the entire trial — including final arguments— had concluded and the case had been submitted to the trial court. In Shaon, in recognition of the agreement of counsel to jointly submit both the evidentiary suppression issue and the trial of the defendant at the same time, the trial court postponed the trial to first rule on the motion to suppress. Here, the trial court was not asked to postpone anything and the trial court did not do so. In Shaon, the trial court purposefully indicated that the trial was continued until an appellate court could review the trial court’s ruling on the motion to suppress. Here, there is no such docket entry — only a judgment after the trial court had heard all of the evidence and closing arguments of counsel.

Consequently, the practical effect of the trial court’s judgment is that the trial court, after hearing all of the evidence and argument of the parties, had concluded— as a matter of law — that the State could not meet its burden of proving the crime charged and Connell was, thus, acquitted. More importantly, we conclude that, in light of the trial court’s actions, jeopardy has attached, and this court does not have the authority to review the State’s “interlocutory” appeal. § 547.200.2. Accordingly, the State’s appeal is dismissed.

JAMES EDWARD WELSH, Judge, and KAREN KING MITCHELL, Judge, concur.

      . This is nonsensical. To suppress evidence is to prevent its admission into evidence at trial. To the contrary, in this case, the evidence in question was admitted at trial without objection.

      . Unless otherwise indicated, statutory references are to RSMo 2000, as updated through the 2009 Cumulative Supplement.

      . See State v. Seuferling, 238 S.W.3d 217, 223 (Mo.App. W.D.2007) (“[W]hen a trial court enters a final judgment of acquittal, the State is barred from appealing either the judgment itself or any of the courts [sic] actions leading to that judgment, no matter how erroneous those actions may have been.”) (relying on Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)) ("[W]hen a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.”) (citing State v. Vaida, 1 Neb.App. 768, 510 N.W.2d 389, 392 (1993)) (" ‘[Suppressing the contested statement after submission of all the evidence, denies the State its statutory right to appeal,’ but ..., nevertheless, ... a second trial was barred by the double jeopardy clause....").

      . In so ruling, it has not escaped our attention that the trial court had not one, but two, opportunities to rule upon the motion to suppress before the presentation of evidence. Based upon the record before us, the facts do not appear to have changed since the trial court’s previous rulings on the motion to suppress. Nonetheless, by waiting until after the presentation of evidence and after final arguments of counsel to reverse its conclusions as to the legality of the search in question, the trial court has effectively prevented appellate review of its conclusion regarding the legality of the search. We presume that the trial court is aware that evidentiary suppression via motion should be ruled upon before, not after, evidence has been admitted at trial. We presume the trial court, instead, simply recognized that this was a bench-tried case in which the trial court permitted all evidence to come in and ultimately concluded that the State had not met its factual and/or legal burden of proof to convict Connell and, hence, its "judgment” in favor of Connell.


text:
    STATE ex rel. OFFICE OF PUBLIC COUNSEL, Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE of Missouri and Southern Union Company, Respondents.
    No. WD 72625.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Marc D. Poston, Jefferson City, MO, for appellant.
    Steven C. Reed and Jennifer Heintz, Jefferson City, MO, for respondent Public Service Commission of the State of Missouri; Diana C. Carter and James C. Swearengen, Jefferson City, MO, for respondent Southern Union Company.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

The Office of the Public Counsel (“OPC”) appeals from the trial court’s judgment dismissing its petition for writ of review. OPC contends: (1) the trial court erred because its petition was not premature as it was properly filed after the Public Service Commission (“PSC”) orally denied OPC’s application for rehearing in its agenda meeting; (2) the trial court misinterpreted the law because although section 386.510 requires petitions for writ of review to be filed no later than thirty days after the PSC denies rehearing, it does not prohibit the filing of a petition for writ of review before rehearing is denied; and (3) the trial court misinterpreted the law in that premature petitions for writ of review should be considered filed when the PSC denies rehearing. We affirm.

Factual and Procedural History

The following facts are undisputed. On February 10, 2010, the PSC entered its Report and Order in case number GR-2009-0355 regarding Missouri Gas Energy’s (“MGE”) filing of tariff sheets to implement a general rate increase for natural gas service. Prior to entry of the Report and Order, the PSC held local public hearings in Joplin, Jasper County and eviden-tiary hearings in Jefferson City, Cole County. On February 19, 2010, both OPC and MGE separately filed applications for rehearing. On February 24, 2010, at approximately 1:16 p.m., the PSC orally voted during an agenda meeting to approve a proposed order denying the applications for rehearing filed by both OPC and MGE. Following the vote, an OPC representative that was present at the PSC’s agenda meeting immediately instructed another OPC representative who was stationed at the Cole County courthouse to file OPC’s petition for writ of review. OPC’s petition for writ of review was filed at 1:18 p.m.

At 2:18 p.m., a written order denying both applications for rehearing and signed by the secretary for the PSC (“Order”) was posted to the PSC’s Electronic Filing and Information System. At 2:24 p.m., MGE filed its petition for writ of review in Jasper County.

On March 24, 2010, the PSC filed a motion in Cole County requesting transfer of the Cole County petition for writ of review to Jasper County. MGE filed a motion to intervene and a motion to dismiss the Cole County petition. After a hearing held on April 20, 2010, the Cole County Circuit Court found that OPC’s petition for writ of review was filed prematurely and thus “was not effective for any purpose.” In so finding, the trial court found that the PSC’s written order was the operative act constituting denial of the pending applications for rehearing, not its voice vote. The trial court therefore dismissed OPC’s petition for writ of review “for lack of subject matter jurisdiction and in deference to the first properly filed petition for review which was filed in Jasper County.” OPC appeals.

Rule 84.04 Violations

OPC’s brief is deficient and in violation of Rule 84.04(e) in that OPC’s argument does not include the applicable standard of review. Moreover, there is not a single reference to the legal file in either OPC’s statement of facts or its argument as required by Rule 84.04(i). The requirements in Rule 84.04 are mandatory and must be met by appellants. Brown v. Wheatley, 306 S.W.3d 664, 665 (Mo.App. S.D.2010). Nonetheless, we have elected to exercise our discretion to entertain OPC’s appeal, as we are able to discern the nature of the issues raised by OPC on appeal.

Standard of Review

Normally, an appellate court reviews the decision of the administrative agency, not the circuit court. State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003). In this case, however, we are reviewing the trial court’s dismissal of OPC’s petition for writ of review for lack of subject matter jurisdiction independent of the merits of the underlying PSC Report and Order. State ex rel. AG Processing, Inc. v. Public Service Comm’n, 276 S.W.3d 303, 307 (Mo.App. W.D.2008). “Generally, this court reviews a dismissal for lack of subject matter jurisdiction for an abuse of discretion.” Ladd v. Mo. Board of Prob. & Parole, 299 S.W.3d 33, 36 (Mo.App. W.D.2009). “Where, however, ‘the facts are uncontested, a question as to subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo.’ ” Id. (quoting Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003)).

Although the trial court dismissed OPC’s petition for writ of review for lack of subject matter jurisdiction because it found the prematurely filed petition for writ of review was not effective for any purpose under section 386.510, we question whether this alleged defect in OPC’s petition reflects the absence of subject matter jurisdiction. In Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), the Supreme Court held that “Missouri courts recognize two kinds of jurisdiction: subject matter jurisdiction and personal jurisdiction.” Id. at 252. The court continued to describe the breadth of a circuit court’s subject matter jurisdiction as described in article V, section 14 of the Missouri Constitution as including “original jurisdiction over all cases and matters, civil and criminal.” Id. at 253-54. As in Webb, the present case is a civil case. “Therefore, the circuit court [had] subject matter jurisdiction and, thus, [had] the authority to hear this dispute.” Id. at 254.

The essence of Webb was to distinguish from truly jurisdictional issues the “separate issue of the circuit court’s statutory or common law authority to grant relief in a particular case.” McCracken v. Wal-Mart Stores E., L.P., 298 S.W.3d 473, 477 (Mo. banc 2009). Under the combined authority of Webb and McCracken, we believe the trial court’s dismissal of OPC’s petition for writ of review should not have been based on a lack of subject matter jurisdiction but, rather, on a lack of statutory authority to entertain a prematurely filed petition under section 386.510. However, the trial court’s assignment of an erroneous “label” to its determination does not warrant reversal. We will simply treat the trial court’s determination as grounded in the legal conclusion that section 386.510 deprived it of the authority to entertain OPC’s prematurely filed petition for writ of review, a question of law we review de novo.

Analysis

In its first point on appeal, OPC argues that the PSC’s denial of all pending applications for rehearing by voice vote during a public agenda meeting constituted a “denial” sufficient to trigger the right to file a petition for writ of review under section 386.510. The trial court held that the voice vote of the PSC did not constitute a “denial” of the applications for rehearing and that the applications were not denied until issuance of the PSC’s written Order. The trial court held that “the PSC acts by its orders and other written instruments alone, and not by its voice votes or other procedures.” As such, the trial court found that when OPC filed its petition for writ of review, there had not been a ruling on the applications for rehearing, rendering the petition premature.

Sections 386.500 and 386.510 govern procedures concerning the ability to seek circuit court review of an order or decision of the PSC. Section 386.500.1 provides that after an order or decision has been made by the PSC, interested parties shall have the right to apply to the PSC for a rehearing. Section 386.500.2 provides that “[n]o cause or action arising out of any order or decision of the commission shall accrue in any court” to any party “unless that party shall have made ... application to the commission for a rehearing.”

Once an application for rehearing has been denied by the PSC, or if granted, upon disposition of the rehearing, section 386.510 permits review of the PSC order or decision by a circuit court. Section 386.510 provides in pertinent part:

Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office for a writ of certiorari or review (herein referred to as a writ of review) for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined. The writ shall be made returnable not later than thirty days after the date of the issuance thereof, and shall direct the commission to certify its record in the ease to the court.

Here, both MGE and OPC filed applications for rehearing. Both applications for rehearing were simultaneously denied. Because public hearings had been conducted in Jasper County, venue for circuit court review of the PSC’s Report and Order was proper, according to section 386.510, in either Jasper County or Cole County.

Both MGE and OPC filed a petition for writ of review of the PSC Report and Order, with OPC filing first in Cole County and MGE filing second in Jasper County. Where more than one petition for •writ of review is filed, venue is proper only in the county of the first filing. State ex rel. Pub. Serv. Comm’n v. Dally, 50 S.W.3d 774, 777 (Mo. banc 2001). This principle necessarily presumes, however, that the first filed application is of lawful import.

OPC argues that its petition for writ of review was of lawful import because it was filed after the PSC’s voice vote denial of the pending applications for rehearing. OPC cites to no authority for the proposition that the oral disposition of a matter by the PSC constitutes an official act of the PSC. We note in contrast that section 386.280.1 provides that “[e]very order, authorization or certificate issued or approved by the commission under any provision of this chapter shall be in writing and entered on the records of the commission.” This statute requires us to conclude that notwithstanding the voice vote of the PSC during its agenda meeting, the PSC did not officially deny the pending applications for rehearing until it issued its written Order signed by its secretary. The record does not advise precisely when the Order was signed, though we note it was publicly disseminated by posting on the PSC’s website at 2:18 p.m. on February 24, 2010.

We acknowledge that the posting of the Order on the PSC’s website was a ministerial step in the process of notifying the public of the PSC’s action and does not represent the precise point at which the Order became an official act of the PSC pursuant to section 386.280.1. Coffer v. Wasson-Hunt, 281 S.W.3d 308, 310 (Mo. banc 2009) (holding that judgment was entered when it was signed by the trial judge, and not upon the ministerial act of its entry on the record by the court clerk more than six weeks later). OPC relies on Coffer to support its claim that the posting of the Order to the website did not constitute entry of the Order. Though that is true, it does not follow that the PSC’s verbal announcement of its ruling on the pending applications for rehearing constituted entry of its Order, a conclusion that would require us to disregard the clear and unambiguous language of section 386.280.1. In fact, Coffer counsels that it was the signed written order of the trial judge that resulted in the entry of judgment as to satisfy the requirement of Rule 74.01(a) that “[a] judgment is entered when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.” Section 386.280.1 is of similar import to Rule 74.01(a). We thus conclude that until the Order was signed by the PSC’s secretary, the PSC had not denied the applications for rehearing in a manner sufficient to constitute an order under section 386.280.1.

Section 386.510.1 provides that “[w]ithin thirty days after the application for a rehearing is denied ... the applicant may apply to the circuit court” for writ of review. (Emphasis added.) Read in conjunction with section 385.500.2’s directive that “no cause of action” for judicial review “shall accrue” unless a petition for rehearing has previously been filed, section 386.510.1 thus expresses that denial of an application for rehearing is a condition to the right to seek circuit court review. It follows that in the absence of a denial of pending applications for rehearing, a petition for writ of review is premature and cannot invoke the circuit court’s statutory authority under section 386.510. Here, there is no evidence to suggest that the written Order denying the pending applications for rehearing had been signed by the PSC’s secretary before OPC filed its petition for writ of review in Cole County. We cannot conclude, therefore, that the trial court erred as a matter of law when it held that OPC’s petition for writ of review was premature and thus not the first filed, requiring its dismissal. Point One is denied.

In its second point on appeal, OPC argues in the alternative that it was entitled to file a petition for writ of review at any time, even prematurely, so long as it filed a petition no more than thirty (30) days after applications for rehearing are denied. In other words, OPC argues that the thirty day reference in section 386.510 describes only an outside date for filing a petition for writ of review. This point is defeated by the plain language of sections 386.500.2 and 386.510, which, as we have noted, clearly combine to require the denial of a pending application for rehearing as a condition to the right to file a petition for writ of review. If a pending application for rehearing has not been denied, then the statutory trigger authorizing the circuit court to conduct review has not occurred, rendering any petition for writ of review premature, requiring dismissal of the petition. See, e.g., State ex rel. AG Processing, Inc., 276 S.W.3d at 309; State ex rel. Cnty. of Jackson v. Pub. Serv. Comm’n, 14 S.W.3d 99, 102-03 (Mo.App. W.D.2000). The plain intent of sections 386.500.2 and 386.510, read together, distinguishes this case from Estate of Schler v. Benson, 947 S.W.2d 495 (Mo.App. W.D.1997), which held as a general principle that when action “is required ‘within’ a certain time after a specified event, it simply means that notice must be given not later than the time specified.” Id. at 499. See also, e.g. Kleim v. Sansone, 248 S.W.3d 599, 602 (Mo. banc 2008). Common sense thus dictates that until an application for rehearing is denied in the manner required by section 386.280.1 — i.e. by written order — it remains pending, rendering any prematurely filed petition for writ of review insufficient to invoke the circuit court’s authority under section 386.510. The trial court did not error as a matter of law by holding that “OPC’s petition for writ of review in this case was premature because it was filed prior to the PSC’s denial of all applications for rehearing.” Point Two is denied.

In its third point on appeal, OPC alternatively argues that if its petition for writ of review was prematurely filed, it should be considered timely filed at the point the written Order was issued and, thus, prior to the filing of the petition for writ of review filed by MGE in Jasper County. This argument is diametrically opposed, however, to the outcome required by State ex rel. AG Processing and State ex rel. County of Jackson, where prematurely filed petitions for writ of review were ordered dismissed because they were ineffective to invoke the circuit court’s review authority under section 386.510.

Notwithstanding, OPC points out that section 536.110.1, which provides that any proceeding for review of an administrative agency decision under the Administrative Procedures Act (“APA”) must be instituted by filing a petition in the circuit court within thirty days of notice of the agency’s final decision, has been construed to treat a prematurely filed petition for review as “filed immediately after the issuance of the agency decision.” Knapp v. Mo. Local Gov’t Emps. Ret. Sys., 738 S.W.2d 903, 909 (Mo.App. W.D.1987). OPC argues the same analysis should apply to a prematurely filed petition for writ of review under section 386.510.

In Knapp, we equated the premature filing of a petition for review with the effect of Rule 81.05(b), which provides that a prematurely filed notice of appeal shall “be considered filed immediately after the time the judgment becomes final for purposes of appeal.” Id. We note that Rule 81.05(b) expressly affords an appellant the relief of treating a prematurely filed notice of appeal as timely filed upon finality of an underlying judgment. In the absence of Rule 81.05(b), there would arguably be no such relief. See, e.g., discussion of Rule 81.05(b) in State ex rel. State Highway Comm’n v. Tate, 576 S.W.2d 529 (Mo. banc 1979). Under the APA, there is no statutory equivalent to Rule 81.05(b). Moreover, section 386.500.2 provides that “[n]o cause or action” for judicial review “shall accrue” unless and until a petition for rehearing has been filed, and section 386.510 provides that a petition for review may be filed “[wjithin thirty days after the application for rehearing is denied.” In contrast, section 536.110.2 gives an aggrieved party the option of filing for rehearing and words the time limitation following denial of rehearing differently. It provides that petitions for review “may be filed without first seeking a rehearing, but in cases where agencies have authority to entertain motions for rehearing and such a motion is duly filed, the thirty day period aforesaid shall run from the date of ... notice of the agency’s decision on such motion.” (Emphasis added.)

Given the differences in the relevant statutes and our prior decisions in State ex rel. AG Processing and State ex rel. County of Jackson, we decline, therefore, to read Knapp to hold that in every case where a petition for review is prematurely filed, the petition will be treated as filed upon the subsequent occurrence or entry of the agency act or decision statutorily designated as the required predicate to trigger the circuit court’s authority to conduct review. We also note that the court in Knapp was expressly influenced in its holding by the city’s withdrawal of a motion to dismiss the prematurely filed petition, and by the city’s stipulation that the prematurely filed petition should be held in abeyance, because of “the confusing wording of the board’s letter advising plaintiff of its summary denial of disability benefits and instructing him to appeal that decision notwithstanding the fact that plaintiff had another administrative remedy to pursue — a hearing before the board.” Knapp, 738 S.W.2d at 909. Knapp expressly held that “[ujnder the circumstances, the defendants waived any right they had to dismissal of the original petition.” Id.

Moreover, there is a compelling reason to treat petitions for- writs of review filed under section 386.510 as subject to strict compliance with the requirement that an application for rehearing be denied by written order, in the manner required by section 386.280.1, as a precursor to seeking review. Section 386.510 expressly envisions a scenario where several circuit courts could present the proper venue for entertaining a petition for writ of review. Yet, case law directs that where multiple petitions for writ of review have been filed, venue is only proper in the county where the first petition for writ of review was filed. Dally, 50 S.W.3d at 777. If prematurely filed petitions for writ of review are deemed timely filed upon the subsequent denial of pending applications for rehearing, parties will be encouraged to file petitions for writ of review before applications for rehearing have been disposed, creating, as the trial court noted, “an irresolvable tie ... in every case with multiple parties preferring different venues.” This would not serve the purpose of Rule 81.05(b) “to preserve appeals for litigants whose counsel in an abundance of caution or by mistake file premature notices of appeal” under circumstances where it can be difficult to discern when a final judgment has been entered. Tate, 576 S.W.2d at 531. As OPC has not demonstrated that judicial review of a prematurely filed petition for writ of review is authorized by statute, the trial court did not error by concluding that OPC’s petition for writ of review “did not retroactively become ‘proper’ or ‘timely’ under any rule or statute.” Point Three is denied.

Conclusion

The trial court’s judgment dismissing OPC’s petition for review is affirmed.

All concur.

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

      . Though not relevant to the disposition of this case, we note for the curious reader that the race to the courthouse was apparently the result of the fact that the Western District Court of Appeals (which has jurisdiction over appeals from Cole County) and the Southern District Court of Appeals (which has jurisdiction over appeals from Jasper County) have issued conflicting opinions with respect to the propriety of the formula employed by the PSC to authorize the rate increase for MGE.

      . The trial court noted that if prematurely filed petitions for writ of review are deemed timely upon entry of a subsequent PSC order denying the applications for rehearing, then all prematurely filed petitions would be deemed filed at precisely the same moment, making it impossible to discern who "first filed.”

      . Section 386.490.3 provides that “[e]very order or decision of the commission shall of its own force take effect and become operative thirty days after service thereof, [in the manner described in section 386.490.1] except as otherwise provided." (Emphasis added.) It is common practice, therefore, for PSC orders and decisions to expressly note their "issuance date” and "effective date.” In fact, the Missouri Code of State Regulations 4 CSR 240-2.050 addresses the computation of effective dates for PSC orders. 4 CSR 240-2.050(2) provides that "[i]n computing the effective date of any order of the commission, the day the order was issued shall not be included, and the order is considered effective at 12:01 a.m. on the effective date designated in the order.” Here, the date of issuance of the written Order denying the applications for rehearing was February 24, 2010, which, according to 4 CSR 240-2.050(2) would not be considered in computing the effective date of the order. However, the Order also expressly stated that its effective date was February 24, 2010, which, according to 4 CSR 240-2.050(2) means it was effective as of 12:01 a.m. on that date. 4 CSR 240-2.050(2) does not advise how to resolve the conflict where the specified effective date and issuance date are the same. In any event, OPC has not argued that its prematurely filed petition for writ of review should be deemed timely filed because, by application of this regulation, the written Order denying the applications for rehearing should be treated as effective at 12:01 a.m. on February 24, 2010, and thus before OPC's petition for writ of review was filed. We need not resolve, therefore, the conflict inherent in the regulation where the issuance date and effective date of a PSC order are the same.

      . We observe that the motion filed by the PSC and ruled by the trial court sought transfer, not dismissal, of OPC's petition for writ of review. If two parties file timely petitions for writ of review in competing venues, then transfer of the last filed petition to the county where the first petition was filed would be proper. See, e.g., Rule 51.045(a) (addressing transfer of an action brought in an improper venue to a county with proper venue). We do not believe, however, that transfer of OPC’s prematurely filed petition for writ of review to Jasper County would have been appropriate here, as the petition was not effective for any purpose, requiring its dismissal. OPC is not without recourse. OPC is free to seek leave to intervene in the proceeding initiated by MGE in Jasper County and to file its own petition for writ of review, if it has not already done so.