author: GEORGE W. DRAPER III, Judge.

text:
    Lisa MARKHAM, Appellant, v. Romulo J. FAJATIN, M.D., Respondent.
    No. ED 94201.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 14, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 26, 2010.
    Application for Transfer Denied Dec. 21, 2010.
    Todd N. Hendrickson, Clayton, MO, for Appellant.
    Brent W. Baldwin, St. Louis, MO, for Respondent.
   OPINION

GEORGE W. DRAPER III, Judge.

Lisa Markham (hereinafter, “Appellant”) appeals the trial court’s dismissal of her “lost chance of survival” claim against Romulo J. Fajatin, M.D., SSM Healthcare St. Louis, Donald G. Phillips, D.O., and Thomas A. Schneider, II, M.D. (hereinafter and collectively, “Defendants”). Appellant raises one point on appeal. Only Romulo J. Fajatin, M.D. (hereinafter, “Respondent”) filed a Respondent’s brief. We affirm.

On April 4, 2000, Appellant’s father, Elmer Lee Markham (hereinafter, “Decedent”), presented to Respondent complaining of right flank pain, which pain medication did not alleviate after three days. After conducting a straight leg raising test and asking Decedent to bend his leg, Respondent ordered a bone scan and X-ray, prescribed medication, and directed Decedent to return in thirty days. Later that evening, Decedent was admitted to St. Joseph’s Health Center and died of a ruptured abdominal aortic aneurysm during emergency surgery.

Appellant filed suit on April 3, 2003, against Defendants in her individual capacity and as plaintiff ad litem pursuant to Section 537.021 RSMo (2000) on behalf of Decedent. Specifically, Appellant filed an action for “lost chance of survival” pursuant to Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. banc 1992), and for wrongful death pursuant to Section 537.080. In response, Defendants filed motions to dismiss Appellant’s “lost chance of survival” claim against them as barred by the statute of limitations. Their motions asserted that an action for “lost chance of survival” must be filed within two years of the treatment and/or death of Decedent. The trial court granted these motions and subsequently ordered all claims for lost chance of recovery or survival be dismissed.

This Court reviews the dismissal of a claim as barred by the statute of limitations de novo. Rickner v. Golfinopoulos, 271 S.W.3d 32, 34 (Mo.App. W.D.2008). In reviewing the dismissal, we must “read the petition broadly, construe it in favor of the plaintiffs, and not allow dismissal unless it is clear from the face of the petition that the action is barred by the statute of limitations.” Heidbreder v. Tambke, 284 S.W.3d 740, 748 (Mo.App. W.D.2009); see also Kennedy v. Microsurgery and Brain Research Inst., 18 S.W.3d 39, 42 (Mo.App. E.D.2000).

In her sole point on appeal, Appellant claims the trial court erred in dismissing her “lost chance of survival” action as untimely. Specifically, Appellant asserts the three-year statute of limitations for a wrongful death action should apply to a “lost chance of survival” action rather than the two-year statute of limitations for a medical malpractice action. Conversely, Respondent claims the trial court correctly dismissed Appellant’s “lost chance of survival” claim because it was not brought within two years from the date of the alleged negligence.

In Wollen, the Missouri Supreme Court first recognized a cause of action for lost chance of recovery in medical malpractice cases. Wollen, 828 S.W.2d at 685. The Missouri Supreme Court described the cause of action as follows:

[T]he patient does suffer a harm when the doctor fails to diagnose or adequately treat a serious injury or disease. The harm suffered is not, however, the loss of life or limb. The harm is the loss of the chance of recovery. While, in the end damages can only be expressed by multiplying the value of a lost life or limb by the chance of recovery lost, the proper place for such an inquiry is in the damages stage rather than in the liability/causation determination.

Id. at 684. A lost chance of recovery action could be filed as a survivorship action, but not as a wrongful death action. Id. at 686. The Missouri Supreme Court explained a lost chance of recovery action cannot be filed as a wrongful death action because “regardless of whether the lost chance of survival is greater than or less than 50%, it is impossible to prove that decedent’s death resulted from the failure to properly diagnose and treat.” Id. at 686; see also Section 587.080.

Section 537.021.1(1) RSMo (1989) originally provided:

The existence of a cause of action for an injury to property, for a personal injury not resulting in death, or for wrongful death, which action survives the death of the wrongdoer or the person injured, or both, shall authorize and require the appointment by a probate division of the circuit court of:
(1) A personal representative of the estate of a person whose property is injured, or a person injured or a person entitled to maintain a wrongful death action upon the death of any such person[.]

The Missouri Legislature amended Section 587.021.1(1) in 1993. The 1993 Amendments provided for the appointment of a personal representative or a plaintiff ad litem in a lost chance of recovery or survival action. As amended, Section 537.021.1(1) provides, in pertinent part, the appointment of a personal representative “in only those cases involving loss chance of recovery or survival shall be made notwithstanding the time specified in section 473.050[sic], RSMo, for the exclusive purpose of pursuing a cause of action related to such injury or wrongful death.” Carter v. Pottenger, 888 S.W.2d 710, 714 (Mo.App. S.D.1994). Additionally, Section 537.021.1(1) directs the court in a lost chance of recovery or survival action to “appoint a plaintiff ad litem at the request of the plaintiff or other interested persons delineated in section 537.080 and such person shall be entitled to the proceeds of such action.” A plaintiff ad litem may maintain a lost chance of recovery or survival action instead of the personal representative, and a plaintiff ad litem may maintain the action as an alternative theory to any action under Section 537.080. Section 537.021.1(1) RSMo (1994).

Neither Wollen nor the 1993 Amendments establish the statute of limitations for a lost chance of recovery or survival action. However, Wollen described the lost chance of recovery or survival action as a “medical malpractice case [ ].” Wollen, 828 S.W.2d at 685. Section 516.105 provides:

All actions against physicians, hospitals, ... and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of[.]

Hence, since a lost chance of recovery or survival action may be brought against physicians and hospitals for failure to diagnose or adequately treat a patient pursuant to the holding in Wollen, the two-year statute of limitations governs a lost chance of recovery or survival action.

Despite Wollen’s characterization of a lost chance of recovery or survival action as a medical malpractice case, Appellant nevertheless claims the three-year statute of limitations for a wrongful death action should govern. See Section 537.100. The crux of Appellant’s argument is that the references in Section 587.021.1(1) to Section 537.080 convert a lost chance of recovery or survival action into a wrongful death claim. Appellant relies on the directive in Section 537.021.1(1) for the appointment of a plaintiff ad litem at the request of the plaintiff or other interested person delineated in Section 537.080. Appellant also relies on the characterization of a lost chance of recovery or survival action “as an alternative theory in any action under Section 537.080.”

These references to Section 537.080 are insufficient to make a lost chance of recovery or survival action a wrongful death claim. First, Section 537.080 merely serves to define the class of persons who may request the appointment of a plaintiff ad litem. Second, Section 537.021.1(1) clearly describes a wrongful death action as an alternative theory to a lost chance of recovery or survival action, not as the same theory. Third, the causation required to support a lost chance of recovery or survival action differs from the causation required to support a wrongful death action. See Wollen, 828 S.W.2d at 686. “In wrongful death actions, plaintiffs must establish that, but for the defendant’s actions or inactions, the patient would not have died.” Sundermeyer v. SSM Reg’l Health Servs., 271 S.W.3d 552, 554 (Mo. banc 2008); see also Section 537.080. Conversely, in a lost chance of recovery or survival action, it is impossible to establish the patient would have recovered or survived but for the defendant’s alleged failure to properly diagnose and treat the patient. See Wollen, 828 S.W.2d at 685. Accordingly, the two-year statute of limitations under Section 516.105 applies to lost chance of recovery or survival actions, rather than the three-year statute of limitations for wrongful death actions.

Finally, Appellant avers Missouri case law distinguishes between lost chance of recovery and lost chance of survival. Specifically, Appellant claims lost chance of recovery refers to cases resulting in injury, while lost chance of survival refers to cases resulting in death. Appellant further alleges a lost chance of recovery action should be governed by the two-year statute of limitations period under Section 516.105, and a lost chance of survival action should be governed by the three-year statute of limitations period under Section 537.100.

Appellant relies on LaRose v. Washington University, 154 S.W.3d 365 (Mo.App. E.D.2004) to support her argument. According to Appellant, LaRose is the “one of the few, if not the only, reported case involving a lost chance of recovery, as the most common injury in lost chance cases appears to be death.” In LaRose, this Court used the term “lost chance of recovery” exclusively in considering whether there was sufficient evidence for the jury to find the plaintiff lost a fifty-seven percent chance of recovery due to the defendant’s failure to diagnose her ovarian cancer. LaRose, 154 S.W.3d at 371. Conversely, Appellant claims the term “lost chance of survival” has been used consistently to reference those cases in which the patient died.

This Court recognizes the inconsistent terminology used by Missouri courts. However, we cannot support the proposition that a lost chance of recovery action involves only injury to the patient, whereas a lost chance of survival action involves the death of the patient. Missouri case law does not expressly distinguish between lost chance of recovery and lost chance of survival actions based on the outcome of the failure to diagnose or treat, nor are we willing to recognize a separate statute of limitations period based on this alleged distinction. As discussed above, the Missouri Supreme Court in Wollen characterized a lost chance of recovery action as a medical malpractice case, which is governed by the two-year statute of limitations period in Section 516.105. This precedent controls our decision unless the Missouri Legislature or the Missouri Supreme Court chooses to distinguish between lost chance of recovery and lost chance of survival actions and delineate them as separate. Appellant’s point is denied.

The trial court’s judgment is affirmed.

ROY L. RICHTER, C.J., and GLENN A. NORTON, P.J., concur.

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

      . The parties and the trial court used inconsistent terminology to refer to Appellant’s cause of action, including “lost chance of survival,” "lost chance of recovery,” “lost chance of recovery or survival,” and “lost chance of recovery and/or survival.” The Wollen decision titled the cause of action as "lost chance of recovery.” Wollen, 828 S.W.2d at 685. Wollen only used the term "survival” in describing the "statistical chance of survival” a patient loses when the doctor fails to diagnose or adequately treat a serious injury or disease; thus, giving rise to a lost chance of recovery action. See Wollen, 828 S.W.2d at 684-85. In amending Section 537.021.1(1), the Missouri Legislature titled the cause of action as "loss chance of recovery or survival.” This Court presumes the Legislature intended to change the title of the cause of action. See State v. Goebel, 83 S.W.3d 639, 646 (Mo.App. E.D.2002)(“When the legislature has altered an existing statute such change is deemed to have an intended effect, and the legislature will not be charged with having done a meaningless act.”). Accordingly, this Court will refer to the cause of action as "lost chance of recovery or survival” pursuant to the statutory amendments following Wollen.

      . The Southern District held in Caldwell v. Lester E. Cox Medical Centers-South, Inc., 943 S.W.2d 5 (Mo.App. S.D.1997), that a lost chance of survival action is a personal injury action that is barred after two years. Caldwell, 943 S.W.2d at 8. Appellant claims this holding must be repudiated, in part, because it relies upon the holding in Smith v. Tang, 926 S.W.2d 716 (Mo.App. E.D.1996), that "[a] lost chance of survival action is a personal injury action which belongs solely to the injured party_” Tang, 926 S.W.2d at 719 (citing Sauter v. Schnuck Markets, Inc., 803 S.W.2d 54, 55 (Mo.App. E.D.1990)). Specifically, Appellant alleges Tang erroneously relies upon Sauter in that Sauter: (1) was not a lost chance survival action, but rather was a survivorship action, and (2) was decided two years before the Missouri Supreme Court first recognized a lost chance of recovery action in Wollen. Appellant further claims this holding in Tang was dicta because the decisive issue was whether a pleading filed by the personal representative related back to a previous filing in her individual capacity. See Tang, 926 S.W.2d at 719 (holding plaintiff was not entitled to the protection of Section 516.230 RSMo (1994) because plaintiff as an individual and plaintiff as a personal representative were legally different plaintiffs). While Tang does appear to cite to Sauter for the proposition that a lost chance of recovery or survival action is a personal injury action, a citation to Wollen would lend greater precedential authority. Nevertheless, Caldwell reached the proper result, which established a two-year statute of limitations for a lost chance of recovery or survival action.


source: Caselaw Access Project

author: SHERRI B. SULLIVAN, P.J.

license: Public Domain

text:
    Karen LINDQUIST, Individually and as Personal Representative of the Estate of Michael Lindquist, Plaintiff/Appellant, v. MID-AMERICA ORTHOPAEDIC SURGERY, INC., Defendant/Respondent.
    Nos. ED 93583, ED 94209.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 14, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      James E. Hullverson, Jr., St. Louis, MO, for Appellant/Cross-Respondent.
    Kenneth W. Bean, Natalie J. Kussart, St. Louis, MO, for Respondent/Cross-Appellant.
   SHERRI B. SULLIVAN, P.J.

Introduction

In this consolidated appeal, Karen Lind-quist, Individually (Mrs. Lindquist) and as Personal Representative of the Estate of Michael Lindquist (the Estate) (collectively Appellant) appeals from the trial court’s July 24, 2009 amended judgment and its November 23, 2009 amended judgment. Both of these judgments are substantially the same, except the latter judgment corrected the date on which partial payment of $1,612,460.56 was made by Mid-America Orthopaedic Surgery, Inc. (Respondent) to Appellant from August 30, 2006 to the correct date of August 18, 2006, and also applied Respondent’s partial payment of $1,612,460.56 against the judgment, apportioning $1,000,000.00 of that partial payment between the Estate and Mrs. Lind-quist, and the rest amongst interest and costs, as detailed later in this opinion. These amended judgments were entered pursuant to this Court’s opinion in Lindquist v. Mid-America, Orthopaedic Surgery, Inc., 269 S.W.3d 508 (Mo.App. E.D.2008) (Lindquist III), affirming the trial court’s February 21, 2006 judgment awarding Appellant past economic damages and post-judgment interest on the original jury award against Respondent retroactive to the date of that original judgment successfully appealed from by Appellant, and ordering the trial court to perfect its February 21, 2006 judgment by (1) acknowledging Respondent’s partial payment of the total judgment awarded Appellant, and (2) apportioning the payment between Mrs. Lindquist and the Estate, respectively. We affirm.

Factual and Procedural Background

Mr. and Mrs. Lindquist sued Respondent and other entities for medical malpractice after physicians failed to detect Mr. Lindquist’s spinal cancer until he became paralyzed. On May 13, 2003, the jury returned a verdict awarding damages of $5.5 million to Mr. Lindquist and $1.35 million to Mrs. Lindquist. The jury apportioned 40% of the fault to Respondent. The trial court entered judgment on the verdict June 18, 2003, but later vacated that judgment, awarded judgment notwithstanding the verdict (JNOV) to defendant Scott Radiological Group, Inc., to whom the jury had assigned 5% fault, and granted a new trial to the remaining defendants. In Lindquist v. Scott Radiological Group, Inc., 168 S.W.3d 635, 640 (Mo.App. E.D.2005) (Lindquist I), this Court affirmed the JNOV, reversed the new trial orders, reinstated the jury’s award, and remanded for a new trial on the sole issue of past economic damages. During this appeal Mr. Lindquist died.

Mrs. Lindquist and the Estate proceeded with a bench trial against Respondent. On February 21, 2006, the trial court entered its judgment awarding past economic damages in addition to Respondent’s portion of the jury’s award, plus 9% interest on the latter retroactive to the court’s original judgment of June 18, 2003.

Respondent appealed the retroactivity of interest, and Mrs. Lindquist cross-appealed seeking to hold Respondent jointly and severally liable for Scott Radiological Group, Inc.’s assigned fault. In Lindquist v. Mid America Orthopaedic Surgery, 224 S.W.3d 593, 596 (Mo.banc 2007) (Lindquist II), our Supreme Court reversed the trial court’s judgment with respect to both issues, affirmed it in all other respects, and remanded the case for entry of judgment accordingly. Pursuant to the Court’s mandate, the trial court entered its judgment on November 30, 2007, assessing 45% of the jury’s verdict against Respondent plus interest from February 21, 2006.

Respondent appealed, alleging that the trial court erred in that: (1) interest accrues only from the most recent judgment, dated November 30, 2007; (2) Appellant waived her right to interest by appealing the 2006 judgment; and (3) the court failed to credit Respondent for earlier partial payments and also failed to specify what portions of the award are allocable to Mrs. Lindquist and to the Estate, respectively. In Lindquist III, we affirmed the trial court’s judgment awarding post-judgment interest from February 21, 2006, and remanded the case to enable the trial court to perfect its judgment by acknowledging Respondent’s previous partial payments and by apportioning the award to Mrs. Lindquist and to the Estate, respectively.

On remand, the trial court entered a judgment on July 24, 2009, then in response to both sides’ post-trial motions, entered an amended judgment on November 23, 2009, applying Respondent’s partial payment of $1,612,460.56 against the judgment and apportioning $1,000,000.00 of that partial payment between the Estate and Mrs. Lindquist, and the rest amongst interest and costs. The trial court credited Respondent with $460,000.00 against the award of $1,848,796.76 to the Estate, thus reducing the principal balance owed the Estate to $1,388,796.76; and $540,000.00 against the award of $607,500.00 to Mrs. Lindquist, thus reducing the principal balance owed her to $67,500.00. The trial court ordered the statutory 9% post-judgment interest to run on the remaining principal balances.

Appellant has filed appeals from both the November 23, 2009 judgment and the July 24, 2009 judgment. These appeals have been consolidated in the appeal before us now.

Points on Appeal

In her first point, Appellant argues that despite Lindquist Ill’s language that interest continues to accrue on the entire award until full satisfaction is rendered, the trial court’s November 23, 2009 judgment applied post-judgment interest only on the unpaid balance of the award.

In her second point, Appellant asserts that the trial court’s July 24, 2009 judgment conflicts with Lindquist II because it subtracted Respondent’s partial payment from the original award and applied post-judgment interest only on the unpaid balance of the award.

In her third point, Appellant claims that the trial court’s July 24, 2009 judgment conflicts with Lindquist III and Section 408.040 RSMo 2000 and Section 408.040 RSMo Cum.Supp.2005 because it subtracted Respondent’s partial payment from the original award and applied post-judgment interest only on the unpaid balance of the award.

Standard of Review

Our standard of review of a court-tried case is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law. Id. We view the evidence and the reasonable inferences that may be drawn therefrom in the light most favorable to the judgment, disregarding evidence and inferences to the contrary. Id.

Discussion

The trial court’s November 23, 2009 judgment amends and corrects its July 24, 2009 judgment, in response to and in accordance with Respondent’s motion to amend, and therefore Appellant’s second and third points on appeal, asserting error in the July 24, 2009 judgment, are moot. If the trial court amends its judgment, the amended judgment becomes the new judgment for all purposes. Koppenaal v. Director of Revenue, 987 S.W.2d 446, 449 (Mo.App. W.D.1999). A case must be dismissed as moot whenever an event occurs that renders a decision unnecessary. Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 638 (Mo.App. W.D.1998). Points II and III are thus denied as moot.

Appellant’s remaining point on appeal asserts that the trial court erred in subtracting the amount of Respondent’s partial payment of the judgment to Appellant from the entire judgment and not ordering that post-judgment interest continue to run on the amount of the entire judgment, paid and unpaid, until the entire judgment is paid in full. This was not error.

The imposition of any interest from the date of judgment until payment is fixed and determined by statute. Robinson v. St. Louis Bd. of Police Com’rs, 212 S.W.3d 165, 167 (Mo.App. E.D.2006). Section 408.040 RSMo 2000, the version of the post-judgment interest statute in effect in 2004 and applicable to this case, see Lindquist II, 224 S.W.3d at 595, n. 2, provides:

1. Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than nine percent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear nine percent per annum until satisfaction made as aforesaid.

Post-judgment interest is awarded on the theory that it is a penalty for delayed payment of the judgment. Green Acres Enterprises, Inc. v. Freeman, 876 S.W.2d 636, 641 (Mo.App. W.D.1994). As such, when a portion of a judgment is paid, there is no longer a delay as to the payment of that portion. Therefore, logically, the accumulation of interest owed by the defendant stops running as to that portion as of the date of its payment. Otherwise, the payee would obtain double interest, at the payor’s expense.

Moreover, if a judgment debtor continues to be penalized for non-payment of a sum of money that he has in fact paid, as Appellant urges this Court to hold, the incentive for any payment is lost. Furthermore, once a sum is paid, it is the payee, not the payor, that has use of that sum paid. The theory of interest is compensation for use or loss of use of money to the person entitled thereto. Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 979 (1945). “ ‘It is almost an axiom in American jurisprudence that he who has the use of another’s money, or money he ought to pay, should pay interest on it.’ ” Id., citing 1 Sutherland, Damages, Sec. 324, p. 1016. Once partial payment is made, the debtor no longer has use of those monies, and thus the accrual of interest on those monies is no longer congruous.

The recent case of Burns v. Smith, 303 S.W.3d 505 (Mo. banc 2010) illustrates our point. Our Supreme Court stated the following with regard to the interplay of post-judgment interest and partial payments made toward a judgment:

Interest accrued on the full $2,044,278 until co-defendant Oak River paid $675,000, after which interest continued to accrue on the remainder of the judgment. The trial court, however, directed that Farmers pay post-judgment interest on the entire judgment even after Oak River’s payment. Interest accrues on unpaid monies. Once monies are paid, there is no debt on which interest can accrue. Here the trial court should have calculated interest on the entire judgment only up to the time of the Oak River payment and should calculate interest on the remainder of the judgment until the time Farmers pays the amount of the judgment that does not exceed its $1 million limit of liability.

Id. at 515. Such reasoning applies to the instant case. “Interest accrues on unpaid monies.” Id. Interest does not continue to accumulate on monies paid by Respondent to Appellant.

Appellant asserts that the sentence “Interest continues to accrue on the entire award until full satisfaction is rendered” in the Conclusion of Lindquist III dictates that interest is to accrue on the original award amount despite any partial payments made by Respondent. First, this language mirrors the current version of the statute, which is not applicable in this case. Second, in any event, the correct interpretation of this language does not support Appellant’s argument. The “entire” award is reduced upon each partial payment. Third, Appellant’s interpretation runs counter to the purpose of post-judgment interest, which is to encourage payment, including partial payments, and to recompense a judgment creditor for money due him of which he does not have the use. Laughlin, 189 S.W.2d at 979. Finally, Appellant’s argument runs counter to our Supreme Court’s instruction in Burns, 303 S.W.3d at 515.

For the foregoing reasons, Point I is denied.

Conclusion

The November 23, 2009 judgment of the trial court is affirmed.

CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J., concur.

      . The trial court apportioned the remainder of the partial payment as follows: $14,934.06 to court costs; $6,327.98 to post-judgment interest on the $143,374.89 in past economic damages awarded to the Estate; $4,091.00 to appellate costs assessed against Respondent; $348.92 to interest on appellate costs assessed against Respondent; and $586,758.60 to post-judgment interest on the $2,040,000.00 award and court costs.

      . The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. Supreme Court Rule 75.01. If a timely authorized post-trial motion is filed, as it was in the instant case, the thirty-day time period extends to ninety days. Rule 78.06; Rule 81.05; State ex rel. Toth v. Dildine, 196 S.W.3d 663, 664 (Mo.App. E.D.2006).

      . These two points were asserted in a brief filed in appeal No. ED94209, which was consolidated with the instant appeal.


author: DON E. BURRELL, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Lee KOPP, Defendant-Appellant.
    No. SD 29987.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 17, 2010.
    Rehearing Denied Oct. 12, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Margaret M. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

James Lee Kopp (“Defendant”) was convicted after a jury trial of the class C felony of possession of a controlled substance (methamphetamine). See section 195.202. Defendant now appeals his conviction, asserting two points: 1) that the trial court erred by denying his motion for judgment of acquittal because the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that Defendant knowingly possessed the methamphetamine; and 2) that the trial court plainly erred by admitting into evidence the syringe in which the methamphetamine was found because the search that led to its discovery was unlawful. Finding merit in Defendant’s first point, we reverse his conviction and order his discharge.

Standard of Review

Defendant’s specific assertion on appeal is “that the evidence was insufficient to establish beyond a reasonable doubt that [Defendant] had knowledge of the presence and nature of the unweighable, invisible residue inside the capped syringe that [Defendant] picked up from the kitchen counter in someone else’s house.” In reviewing a sufficiency of the evidence challenge, we must determine whether “there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.” State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). We “view the evidence in the light most favorable to the verdict and give the state the benefit of all reasonable inferences.” State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003). Inferences contrary to the verdict are disregarded “unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.” State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). However, the State does not get “ ‘the benefit of unreasonable, speculative or forced inferences.’ ” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)).

Facts

Viewed in the light most favorable to the verdict, the evidence demonstrated that on April 22, 2008, a search warrant was executed at Paul Barker’s Butler County residence. The warrant allowed the police to search for methamphetamine and evidence related to its manufacture. Upon arriving at Mr. Barker’s residence, the officers announced, “Police search warrant,” and one of them tried unsuccessfully to kick open the door. An individual inside the residence, Michael Sparkman, opened the door.

Mr. Barker was not at home. His adult son, Gregg Barker, was in the garage when he was found by officers and taken back into the living room, where Defendant and his 14-year-old daughter were located. The officers ordered the three adults (Gregg Barker, Defendant and Sparkman) to get down on the floor. The officers then conducted a “pat-down” search on each of them. Defendant’s minor child was allowed to remain seated on the couch and was not searched.

Missouri State Highway Patrol Sergeant Kevin Glaser searched Defendant. While patting Defendant down, Sergeant Glaser asked Defendant if he had any weapons on his person. Defendant replied that he had “a needle or a point ... in his pants pocket.” Sergeant Glaser viewed the needle or point “as a weapon” and removed a syringe with a capped needle from Defendant’s pocket. The syringe was later sent to the “SEMO Crime Lab” for analysis.

A forensic drug chemist with the lab, Amie Nix, analyzed the syringe by rinsing it and testing the contents of that rinse. She was able to determine by that process that the syringe contained methamphetamine residue, but indicated that the residue was not visible and had no measurable weight. Ms. Nix testified that methamphetamine is a schedule II controlled substance. Defendant testified in his own defense, but made no admissions that were helpful to the State.

Defendant preserved his challenge to the sufficiency of the evidence by including it in his motions for judgment of acquittal and post-trial motion for a new trial.

Analysis

Section 195.202 provides, absent certain express statutory exceptions not applicable here, that “it is unlawful for any person to possess or have under his control a controlled substance.” “[A] person, with knowledge of the presence and nature of a substance, has actual or constructive possession of the substance.” Section 195.010(34) RSMo, Cum.Supp.2006. “In order to sustain a conviction for possession of a controlled substance, the State must show (1) that the defendant consciously and intentionally possessed the substance; and (2) the defendant was aware of the presence and nature of the substance.” State v. Breese, 250 S.W.3d 413, 420 (Mo.App. S.D.2008) (citing State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992)).

Defendant argues that the evidence presented at his trial was insufficient to prove that he knew of the presence and nature of the controlled substance because other facts that might prove his knowledge were not present and “the methamphetamine [ ] was invisible and unweighable.”

Concerning quantity, “Missouri’s drug statutes do not establish a minimum amount necessary to support a conviction for possession of a controlled substance.” Breese, 250 S.W.3d at 422 (citing State v. Taylor, 216 S.W.3d 187, 192 (Mo.App. E.D.2007)). Although the amount in a given case may be small, “the focus is not just on the amount of the drug involved, but, based on all of the surrounding circumstances, whether the defendant knowingly possessed the drug.” Breese, 250 S.W.3d at 422.

The visibility of a drug is a factor that supports an inference that a defendant who saw it knew of its presence and nature. In Breese, “a white, powdery substance was visible on the scale and present in an amount sufficient to allow [the deputy] to field test it. If the powder was visible to [the deputy] it would also have been visible to [the defendant.” Id. However, the invisibility of a drug does not necessarily preclude knowing possession. In State v. McKelvey, 129 S.W.3d 456 (Mo.App. S.D.2004), the contraband was “a small piece of cotton weighing .01 grams that contained unmeasurable amounts of methamphetamine.” Id. at 458. The court did not limit its sufficiency analysis to whether the substance could be seen or weighed. Instead, it stated:

The test is not whether the drug is visible or measurable, although these facts can be used to show a defendant did not intentionally, knowingly, and consciously possess the substance. The test is whether the substance can be identified by chemical analysis as a controlled substance regardless of quantity. If the state can demonstrate that a substance is in fact a controlled substance, then it must also show that a defendant intentionally, knowingly, and consciously possessed it.

Id. at 460-61 (emphasis in original).

As a result, an analysis of whether sufficient evidence supports an inference that a particular defendant knew of the presence and nature of a controlled substance is fact-intensive and case-specific. In Breese, we noted that facts other than the drug’s visible residue sufficiently demonstrated the defendant’s knowledge of the presence and nature of the controlled substance he had been charged with possessing.

[The defendant first denied that the bag (and therefore the scale within) was his, next admitted that it did belong to him, and finally stated that his sister was the person who had packed the bag. [The defendant admitted that he had been using methamphetamine and that he was high when [the deputy] conducted his search. Perhaps more tellingly, [the defendant tells the officer he is not selling any methamphetamine when [the deputy] had not even mentioned that possibility. [The defendant also admits that he had actual possession of the bag.

250 S.W.3d at 422 (emphasis in original).

Evidence of knowledge has been held sufficient in other cases where the controlled substance was visible in some manner and other facts also demonstrated knowledge. See, e.g., State v. Smith, 808 S.W.2d 24 (Mo.App. E.D.1991), and State v. Mayabb, 43 S.W.3d 429 (Mo.App. S.D.2001). In Smith,

[t]he syringe with the cocaine residue was found in defendant’s front shirt pocket. The residue on the inside of the syringe was visible. Defendant was therefore in actual physical possession, as opposed to constructive possession, of the trace amount of the cocaine. In addition, defendant made two statements which indicated that he was aware of the presence and character of the substance. First, his statement that he had a “hit” of cocaine at 4:00 p.m. raises the inference that the syringe in question was used for that purpose. Second, his statement that there was nothing in the syringe raises the inference that he knew that there had been cocaine in it, at least at 4:00 in the afternoon. These statements by defendant also negate his argument on appeal that he didn’t have knowledge of the cocaine’s presence because it was only “left over” in the syringe and because he told the officer the syringe was empty.

808 S.W.2d at 26 (emphasis added). May-abb also involved methamphetamine that was too small to be measured — but still visible as residue — and testimony by a third-party concerning the defendant’s possession of it. 43 S.W.3d at 431-32.

A visible trace of methamphetamine was found on the ink barrel retrieved from [the defendant's pocket. In addition, two straws, an ink barrel, two plastic bag corners, a mirror, an art knife and a cigarette lighter were found in [the defendant's bedroom, an area over which she exercised control, and the methamphetamine residue on these items was visible to [the officer]. Further, the discovery of the methamphetamine residue corroborated [the defendant’s daughter’s] testimony that methamphetamine was present in [the defendant's home and the items found matched [the daughter’s] description of the drug paraphernalia.

Id. at 433.

It is possible to have sufficient evidence demonstrating knowledge even when the controlled substance is not visible. In McKelvey, proof of knowledge was not limited to an invisible substance on a cotton ball. Instead,

ample circumstantial evidence was adduced to prove [the defendant intentionally, knowingly, and consciously possessed methamphetamine. For instance, [the defendant ran from the police when he first saw [the officer] pull into the apartment complex. State v. Harris, 807 S.W.2d 528, 530 (Mo.App.1991) (flight from authorities can be used as evidence of consciousness of guilt). Additionally, [the officer] testified that [defendant was visibly “apprehensive.” State v. Mishler, 908 S.W.2d 888, 892 (Mo.App.1995) (visible nervousness can be used to show a defendant’s awareness of the controlled substance). Most importantly, [the d]e-fendant attempted to conceal and destroy the evidence by throwing the cotton ball and the container to the ground. State v. Powell, 973 S.W.2d 556, 559 (Mo.App.1998); Mishler, 908 S.W.2d at 892 (both cases holding that efforts of concealment or hiding drugs can be used to show consciousness of guilt).

129 S.W.3d at 459.

Breese, McKelvey, and Mayabb all distinguished two significant cases in which the evidence was held to be insufficient to support the verdict when the drug quantities at issue were too small to be measured: State v. Baker, 912 S.W.2d 541 (Mo.App. W.D.1995), and State v. Polk, 529 S.W.2d 490 (Mo.App.St.L.D.1975). 250 S.W.3d at 421-22, 129 S.W.3d at 459-60, 43 S.W.3d at 432-33. Defendant claims his case is like Polk and Baker and is devoid of the type of evidence present in Breese, McKelvey, and Mayabb.

Polk was a constructive possession case in which five of seven capsules discovered in a jewel box during the execution of a search warrant were found to contain traces of heroin. 529 S.W.2d at 491-92. The traces of heroin were consumed in the testing process and were too small to be measured. Id. at 494. At the time of the search, Polk told an officer that he lived alone in the apartment. At trial, Polk presented a witness who said that he (the witness) “occasionally” used Polk’s apartment and that yet a third individual, who also shared the apartment, owned the jewel box in which the pills were found. The witness had not seen the capsules in the box. Id. at 491-92. In addressing the sufficiency of the evidence, the court stated:

We have read no case where a finding of “traces” of a narcotic alone has been held sufficient to support a finding that the defendant had possession of the narcotic “in the legal sense of the word.” In every case we have read there has been at least a measurable quantity of the narcotic found. This defendant was charged with the possession of heroin on May 24,1973. The only evidence in this case was that someone at some time possessed some heroin as was evidenced by the results of the color test and mi-crocrystalline test conducted by an expert in the field. To find the defendant guilty under the facts of this case of a charge of knowledgeable possession would require the piling of one inference upon another and this is not permitted.

Id. at 493. The court held that “the peculiar facts and circumstances” of the case were insufficient to demonstrate “that the accused was knowingly, intentionally and consciously in possession of the controlled substance in violation of the statute.” Id. at 494.

Baker involved a crack pipe discovered in the defendant’s jacket pocket diming a pat-down search. 912 S.W.2d at 542. The pipe contained burnt cocaine residue. Another crack pipe was found on the passenger side of the vehicle the defendant was driving when he was contacted by law enforcement. Id. As to the pipe in his jacket pocket, the defendant stated in a written statement, “[i]t was not mine. I had just bought it from a guy on Messanie for $10. I have smoked crack in the past. The last time I smoked was around 4:00 p.m., was when I smoked crack last.” Id. The residue in the pipe was too small to weigh. Id. The presence of cocaine in the residue was established by rinsing the pipe with a solvent and then testing the rinse. Id. at 542. The state conceded that “there was no visible or measurable unused or unburnt cocaine in or on the pipe, and that the conviction is solely based on the fact that a burnt residue of cocaine remained from past use of the pipe to burn cocaine.” Id. at 544.

The Baker court held:

While Smith indicates the amount of the drug need not be measurable or enough to give a “high” if it is visible and defendant is aware of what it is, here the amount of residue was so minuscule that to hold that Mr. Baker possessed cocaine would stretch the notion of “possession” beyond common sense, and beyond the meaning of possession as set out in Polk and [State v.] Young[ 427 S.W.2d 510 (Mo.1968) ]. The minimal amount of burnt residue present on the pipe indicated only that it had been used to smoke cocaine in the past; it could not serve as a basis for finding Mr. Baker in current possession of the drug. Moreover, here, unlike in Smith, the defendant did not concede that he had previously used the paraphernalia in question.

912 S.W.2d at 545.

Baker also argued that the definition of drug paraphernalia pursuant to section 195.010 “supports the conclusion that mere possession of an object, such as a pipe, which contains the burnt residue of a drug, does not qualify as possession of the drug itself.” Id. at 543. In considering Polk, the Baker court stated:

As in Polk, in which similar tests were used, we find the evidence was simply insufficient to support a charge of possession. Rather, the evidence instead supports the conclusion that the mere presence of such a small amount of burnt residue of a drug on an item such as a pipe does not constitute possession of the drug itself although it may well support a conviction for possession of drug paraphernalia.

Id. at 546. In regard to the statutory definition of paraphernalia, the court stated:

This inherent distinction between a drug itself, such as cocaine, as compared to an unmeasurable amount of charred residue left after such a drug is burned, is reflected in section 195.010(18), which sets out factors to be considered in determining whether an object should be considered drug paraphernalia. Two separate factors are the proximity of the object to a controlled substance and, separately, the existence of any residue of a controlled substance on the object. Were possession of all manner of residue, without regard to degree, considered to constitute possession of the controlled substance itself, then the presence of charred residue would ipso facto be proof of proximity of the object to the drug. By considering the effect of the presence of charred residue on an object, and by stating simply that it is an indicator that an object is drug paraphernalia, rather than stating that it constitutes possession of the drug itself, the legislature has indicated that, at least in cases involving negligible residue, it sees such residue as merely an indication of past drug use of the object, not as proof of present possession of the drug itself.

Id. The Baker court concluded that “the facts of this case present insufficient evidence to support the finding that Mr. Baker was knowingly, intentionally and consciously in possession of a controlled substance in violation of the statute.” Id.

Our case, then, is reviewed on its particular facts and the reasonable inferences that may be drawn from them, keeping in mind the principles laid down in the cases outlined above. Defendant is not entitled to prevail simply because the methamphetamine residue was invisible. McKelvey, 129 S.W.3d at 459-61. But, unlike the situations presented in Breese and May-abb, no inference of Defendant’s knowledge of the presence and nature of the methamphetamine can be drawn from the fact that he could see it. It was not visible. Defendant’s knowledge, if it may be inferred at all, must be inferred from other facts.

Unlike Breese, the evidence included no statement by Defendant that he had been using methamphetamine. 250 S.W.3d at 422. Unlike Mayabb, the record reveals no testimony by any third parties implicating Defendant in the use or possession of methamphetamine near the time of the search. 43 S.W.3d at 433. Unlike McKelvey, the officer did not describe facts in addition to concealment, such as attempted flight or extreme nervousness that would suggest that Defendant knew he was in possession of methamphetamine. 129 S.W.3d at 459.

Of all the cases cited by the parties, Defendant’s case is most like Baker. Baker had a crack pipe in his pocket that contained burnt residue, but the actual cocaine was not visible to him. 912 S.W.2d at 542. Defendant had a syringe in his pocket that contained residue of methamphetamine, but the residue was not visible to him. 912 S.W.2d at 542.

The state argues that Defendant’s knowledge of the presence of the methamphetamine is shown by the fact that Defendant placed the syringe in his pocket to hide it from view. Defendant admitted on cross-examination that he placed the syringe in his pocket “to get it out of sight.” But he did not say he was hiding it because he knew it contained illegal drugs and his nearly immediate disclosure of the presence of the syringe to Sergeant Glaser is significantly less indicative of a consciousness of guilt than that shown in McKelvey, where the defendant tried to get rid of the cotton ball by throwing it aside after the officer saw him. 129 S.W.3d at 459.

More importantly, the consciousness of guilt must be about “the presence and nature of the [controlled] substance.” Breese, 250 S.W.3d at 420. In other words, what did the defendant think he was hiding? If the matter to be proven was that Defendant knew he was concealing a weapon, we believe the jury could reasonably infer that knowledge from the presence of the hidden syringe plus Defendant’s response to Sergeant Glaser’s question during the pat-down search. But the State did not charge Defendant with wrongfully concealing a weapon. The question to be resolved in this case is whether, by itself, the fact that Defendant had hidden in his pocket what appeared to be an empty syringe was sufficient evidence to allow a reasonable juror to infer beyond a reasonable doubt that Defendant knew the syringe currently contained methamphetamine. Here, the substance later determined to be methamphetamine residue was invisible and unweighable. Unlike Breese, the record is devoid of any admission by Defendant that he had used or possessed methamphetamine near the time of the search. 250 S.W.3d at 422. Also lacking is any claim by the State that other evidence related to methamphetamine or its manufacture was found in Barker’s home as a result of the officers’ search.

While the State argues that Baker is distinguishable because there was no evidence that Baker tried to conceal the crack pipe, the opinion also does not reveal whether Baker told the officer he had the pipe in his jacket. 912 S.W.2d at 542-46. Defendant not only immediately revealed to Sergeant Glaser that he had the “needle or point,” but did so in response to the officer’s inquiry about whether Defendant had any weapons on his person, not in response to any question about whether he was in possession of any illegal drugs. And while Baker admitted using earlier that day the very substance later found on the pipe, 912 S.W.2d at 542, Defendant made no such admission. We cannot conclude that the evidence in the case at bar was any more substantial than the evidence found insufficient in Baker.

Under the evidence presented in this particular case, while there is no question that Defendant was in actual possession of the syringe and its invisible, unweighable contents, no reasonable juror could have found beyond a reasonable doubt that Defendant: (1) consciously and intentionally possessed methamphetamine; and (2) was aware of its presence and illegal nature. As a result, the trial court erred in refusing to grant Defendant’s motion for a judgment of acquittal. Defendant’s second point — that the syringe and its contents should have been suppressed as the fruit of an illegal search — is moot and will not be addressed.

The judgment of conviction is reversed, and the matter is remanded to the circuit court which is directed to vacate the judgment and discharge Defendant.

BARNEY, J., and BATES, P.J., concur.

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

      . The State concedes in its brief that the residue in the syringe was "invisible and of no measurable weight.”

      .Defendant testified that he was the person who actually opened the door. Because the testimony given by two officers that Spark-man answered the door is arguably more favorable to the State, we presume it true and disregard Defendant's contrary account.

      . For purposes of our review of the sufficiency of the evidence, we assume, without yet deciding, that the syringe was properly received into evidence.

      . The State also acknowledges in its brief that Defendant and his daughter moved into Barker’s residence the day before the search warrant was executed.

      . We should note that the result in Polk was at that time also supported by the now-abandoned "equally valid inferences rule” that "circumstantial evidence must be inconsistent and irreconcilable with the defendant’s innocence and point clearly and satisfactorily to his guilt so as to exclude every reasonable hypothesis of his innocence.” 529 S.W.2d at 493 (citing State v. Berry, 488 S.W.2d 667, 669 (Mo.App.K.C.D.1972)). "The equally valid inferences rule was effectively abolished by State v. Grim." State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998). The rule is now as we have stated above: the State is given the benefit of all reasonable inferences drawn from the evidence, State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003), and contrary inferences are disregarded unless a reasonable juror would be unable to disregard them. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993).

      . Not every successful challenge to the sufficiency of the evidence to support a conviction requires a discharge of the defendant. For instance, in State v. O’Brien, 857 S.W.2d 212, 220 (Mo. banc 1993) the Court stated:
      Where a conviction of a greater offense has been overturned for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense.
      Likewise, where the evidence was insufficient at trial, but other evidence was also erroneously excluded, a retrial may be possible without offending the double jeopardy clause. See State v. Hedrick, 637 S.W.2d 306, 308 (Mo.App. W.D.1982) (citing Burks v. United States, 437 U.S. 1, 15-16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). Here, the State has neither identified what any such lesser offense might be nor argued that Defendant’s request for relief (a discharge) would be inappropriate if we were to grant his point on appeal.


author: CLIFFORD H. AHRENS, Judge.

text:
    STATE of Missouri, Respondent, v. Henry HORTON, Appellant.
    No. ED 93475.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Kent Denzel, Columbia, MO, for appellant.
    Chris Koster, Jamie Pamela Rasmussen, Jefferson City, MO, for respondent.
   OPINION

CLIFFORD H. AHRENS, Judge.

Defendant Henry Horton appeals from the judgment of the trial court entered after a jury convicted him of abuse of a child, assault in the second degree, unlawful use of a weapon, and two counts of armed criminal action. Finding no error, we affirm.

Background

M.M. (Son) was born to D.M. (Mother) and Defendant on February 16,1992. Son had contact with Defendant “on and off” while growing up. Defendant moved in with Son and Mother in November 2006. Son and Defendant generally got along well with each other, with no arguments or physical altercations, until one Thursday when Son failed to perform his daily chore of cleaning the bathroom. In an argument with Defendant about disobeying this rule, Son told Defendant, ‘You get on my [expletive] nerves.” Defendant told Mother that he wanted to “whoop” Son for cursing him, but Mother forbade Defendant from doing so. Defendant then told Mother to “whoop” him herself, but she refused.

The following Tuesday, August 21, 2007, Son and Mother were at home when Mother received a phone call from Defendant, asking her to meet him at the auto repair shop. Approximately fifteen or twenty minutes later, Mother left for the auto repair shop. Almost immediately after Mother left, Son heard the door open violently, and Defendant came into the house. Defendant went into the basement and came back upstairs into Son’s room with a gun. He held the gun to Son’s head and told him to get on his knees or he would “blow [Son’s] head off.” Son did as he was told, and Defendant grabbed a small aluminum T-ball bat that was in Son’s room and proceeded to hit Son’s stereo system, television, and ceiling fan. Then Defendant told Son to look up at him, and when he did, Defendant struck him in the mouth with the bat, causing Son to pass out temporarily. When Son came to, Defendant ordered him to clean up the room. After watching Son clean up the room, Defendant told Son that he had to leave before he killed Son. He also told Son he would kill him if he told anyone what had happened.

Once Defendant was gone, Son walked over to his neighbor’s house because he did not feel safe at home. He told his neighbor what had happened, and the neighbor called the police. Son was taken to the hospital, where he was treated for a split lip and two fractured front teeth.

The State charged Defendant with abuse of a child, assault in the second degree, unlawful use of a weapon, unlawful possession of a concealable firearm, and two counts of armed criminal action. The prosecutor dismissed count six, unlawful possession of a concealable firearm, before trial. The jury found Defendant guilty of the remaining five counts. The trial court sentenced Defendant as a persistent offender to two consecutive life sentences, plus a consecutive term of seven years. Defendant appeals, arguing that the court erred in convicting him of both second degree assault and child abuse because these two convictions violate Defendant’s right to be free from double jeopardy.

Standard of Review

Whether one’s right to be free from double jeopardy has been violated is a question of law, which the appellate court reviews de novo. State v. Kamaka, 277 S.W.3d 807, 810 (Mo.App.2009) (citing State v. Glasgow, 250 S.W.3d 812, 813 (Mo.App.2008)). Like other constitutional claims, double jeopardy issues must be raised “at the earliest opportunity and preserved at each step of the judicial process.” Strong v. State, 263 S.W.3d 636, 646 (Mo. banc 2008) (quoting State v. Sumowski, 794 S.W.2d 643, 648 (Mo. banc 1990)). Defendant’s first mention of a double jeopardy violation was on appeal. The State argues that Defendant waived his double jeopardy claim by failing to raise it at the earliest opportunity. However, an appellant who has failed to raise a double jeopardy argument until his appeal may nevertheless request plain error review of such a claim. State v. Polson, 145 S.W.3d 881, 891 (Mo.App.2004). According to Rule 30.20, the appellate court is permitted, but is not required, to grant plain error review of allegations not properly preserved for appeal. Because Defendant admittedly failed to raise his double jeopardy claim in a timely manner, our review is limited to gratuitous plain error review. State v. Parker, 886 S.W.2d 908, 925 (Mo. banc 1994).

Plain error review is a two-step process. State v. Drudge, 296 S.W.3d 37, 40 (Mo.App.2009) (citing State v. Darden, 263 S.W.3d 760, 762 (Mo.App.2008)). First, the appellate court must determine whether the trial court committed an obvious error, which affected the appellant’s substantial rights. Id. at 40-41. Second, if error is found in the first step, the court must determine whether that error resulted in manifest justice or miscarriage of justice. Id. at 41.

Discussion

In his sole point relied on, Defendant argues that the trial court plainly erred in convicting Defendant of both second degree assault and child abuse because these two convictions violate Defendant’s right to be free from double jeopardy. Defendant alleges that the legislature did not intend cumulative punishment for the two offenses because 1) second degree assault is a lesser included offense of child abuse and 2) second degree assault prohibits a designated kind of conduct generally and child abuse prohibits a specific instance of such conduct.

An individual’s right to be free from double jeopardy derives from the Fifth Amendment to the United States Constitution. This right was made applicable to the states through the Fourteenth Amendment. State v. Bohlen, 284 S.W.3d 714, 717 (Mo.App.2009). Beyond protecting defendants from subsequent prosecutions for the same offense after an acquittal or a conviction, the Fifth Amendment also prohibits multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled, on other grounds. Alabama v. Smith, 490 U.S. 794, 798-803, 109 S.Ct. 2201, 2204-2206, 104 L.Ed.2d 865 (1989). Prohibition against multiple punishments for the same offense is designed to ensure that the courts comply with the sentencing limits established by the legislature. Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-2541, 81 L.Ed.2d 425 (1984).

Defendant claims that the trial court erred in convicting him of two crimes for the same act. When there is an allegation of multiple punishments for one offense, the question is whether cumulative punishment was intended by the legislature. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). If the legislature specifically authorizes cumulative punishment under two statutes that prohibit the same conduct, the court may impose multiple punishments without violating the double jeopardy clause. Id. To determine legislative intent with regard to cumulative punishments, the court must first look to the statutes under which Defendant was convicted. Id. at 187 (citing State v. Gottsman, 796 S.W.2d 27, 29 (Mo.App.1990)). Neither section 565.060, under which Defendant was convicted of assault, nor section 568.060, under which Defendant was convicted of child abuse, discusses whether the legislature intended cumulative punishment for the two offenses. If the statutes are silent on the issue of cumulative punishment, the court must then look to section 556.041, which expresses the legislature’s general intent with regard to cumulative punishments. Id. at 87. Section 556.041 states:

When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if
(1) One offense is included in the other, as defined in section 556.046; or
(2) Inconsistent findings of fact are required to establish the commission of the offenses; or
(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
(4) The offense is defined as a continuing course of conduct and the person’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

Defendant was convicted of second degree assault and child abuse based on the same conduct of hitting his son with a bat. According to this statute, Defendant can be legally prosecuted for each offense unless one of the exceptions in the subsections applies. Defendant contends that subsections (1) and (3) apply to the statutes under which he was convicted. As a result, he argues that the legislature does not intend cumulative punishment for these two offenses. Further, he claims that because the legislature does not intend cumulative punishment for child abuse and second degree assault, the single act of force rule applies to bar convictions of both offenses for the same act.

I. Lesser Included Offense

A person may not be convicted of more than one offense if one offense is included in the other. Section 556.041(1). A lesser included offense is an offense that is “established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Section 556.046.1(1).

Defendant asserts that second degree assault is a lesser included offense of child abuse because it is impossible to commit child abuse without committing second degree assault. While Defendant is correct that it may have been impossible, in his particular situation, to be convicted of child abuse without also being convicted of second degree assault, it does not follow that it is always impossible to commit child abuse without also committing second degree assault. Analysis of a lesser included offense under section 556.046.1(1) focuses on the statutory elements of the offenses rather than upon the evidence offered at trial. McTush, 827 S.W.2d at 188. “The elements of the two offenses must be compared in theory without regard to the specific conduct alleged.” State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002) (citing State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994)). If each offense requires proof of an element not required by the other offense, then neither is a lesser included offense within the meaning of section 556.046.1(1). McTush, 827 S.W.2d at 188.

The elements of assault in the second degree are (1) knowingly (2) causing physical injury to another person (3) by means of a deadly weapon or dangerous instrument. Section 565.060.1(2). The elements of child abuse are (1) knowingly (2) inflicting cruel and inhuman punishment (3) upon a child less than seventeen years old. Section 568.060.1(1). Second degree assault requires proof of physical injury to another person by means of a deadly weapon or dangerous instrument; child abuse does not. Child abuse requires proof of cruel and inhuman punishment upon a child less than seventeen years old; second degree assault does not. Because each crime requires proof of elements not required by the other, neither second degree assault nor child abuse is a lesser included offense.

II. Specific Instance of General Conduct

Defendant also contends that, because child abuse is a specific instance of second degree assault, the trial court erred in punishing him for both offenses. A person cannot be subject to cumulative punishment for two crimes if one offense is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct. Section 556.041(3). Although we found no Missouri case directly deciding whether child abuse is a specific instance of second degree assault, a similar argument has been made with regard to child abuse and endangering the welfare of a child. In State v. Dunson, the defendant argued that child abuse is a specific instance of endangering the welfare of a child. 979 S.W.2d 237, 242 (Mo.App.1998). The appellate court rejected this assertion, holding that, regardless of whether the offenses were based on the same conduct, endangering the welfare of a child and child abuse are not the same for double jeopardy purposes. Id. at 243. The court stated that while child endangerment prohibits conduct which creates a substantial risk to the life, body or health of a child, child abuse is “intended to prevent abusive and punitive conduct which causes serious emotional injury to a child.” Id. (citing Bass v. State, 950 S.W.2d 940, 946 (Mo.App.1997)). Because child abuse and child endangerment are intended to prohibit different types of conduct, they are separate and independent offenses. Id.

Defendant criticizes the State’s use of State v. Dunson, arguing that it was taken out of context. Dunson borrowed a quote from Bass that was specifically referring to subsection 3(1) of section 568.060, while the present case refers to criminal conduct which primarily falls under subsection 1(1). Subsection 1(1) states that child abuse is a class C felony if one knowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old, whereas subsection 3(1) states that child abuse is a more serious felony if the person inflicts serious emotional injury on the child. But the fact that the State did not allege serious emotional injury under subsection 3(1) is irrelevant to the determination of whether child abuse is a specific instance of second degree assault. Even if there was no serious emotional injury alleged in this case, there are many other child abuse situations where such an injury could be proven. When determining whether one offense is a specific instance of another, one must examine the language and interrelationship of the two statutes, not the factual application of the statutes in a given case. State v. Pilousek, 747 S.W.2d 766, 769-770 (Mo.App.1988).

If child abuse were truly a subset of second degree assault, every instance of child abuse would have to meet the statutory definition of second degree of assault, and it does not. Id. at 770. Proof of physical injury is an essential element of the second degree assault statute. On the other hand, although the majority of child abuse cases involve some sort of physical injury, and physical injury occurred in this case, it is not required to be proven by any provision of the statute. See State v. Esker, 658 S.W.2d 49 (Mo.App.1983) (finding Defendant guilty of child abuse for locking a seven-year-old child in a basement for four months); State v. Foster, 838 S.W.2d 60 (Mo.App.1992) (finding Defendant guilty of child abuse for allowing fourteen-year-old daughter to be photographed in the nude). Second degree assault is defined to prohibit conduct which results in physical injury; child abuse is defined to prevent cruel and inhuman punishment toward children, whether it results in physical injury or not. Because these offenses are intended to prohibit different types of behaviors, neither is a specific instance of the other.

III. Single Act of Force Rule

Defendant contends that the single act of force rule prohibits convictions for both child abuse and second degree assault. We disagree. The single act of force rule, which was adopted by the Missouri Supreme Court in State v. Richardson, 460 S.W.2d 537, 540 (Mo. banc 1970), prevents a single act of force from being used as the basis of prosecution for two separate offenses. McTush, 827 S.W.2d at 186-187. McTush confined the single act of force rule in double jeopardy analysis regarding cumulative punishment solely to the extent of its consistency with legislative intent. Id. at 187 (citing Missouri v. Hunter, 459 U.S. 359, 368-369, 103 S.Ct. 673, 679-680, 74 L.Ed.2d 535 (1983)). Since Missouri v. Hunter, legislative intent, not the single act of force rule, controls the issue of whether one can be cumulatively punished for the same conduct under the double jeopardy clause. Id. at 188.

To determine legislative intent, one must first look to the individual statutes by which the defendant was convicted, and, if they are silent, then one must look to Missouri’s general cumulative punishment statute. Section 556.041 specifically allows multiple punishments for the same conduct unless the statutory exceptions apply. Defendant claims that because the legislature did not authorize cumulative punishment for assault and child abuse, the single act of force rule applies to prohibit convictions for both offenses based on the same conduct. As discussed supra, we find that the legislature has authorized multiple punishments for child abuse and second degree assault based on the same conduct. Defendant’s convictions of both child abuse and second degree assault do not violate his right to be free from double jeopardy. Point denied.

The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J., concur.

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


author: KENNETH M. ROMINES, J.

text:
    Deborah THOMAS and Philip Thomas, Appellants, v. Michael BRANDT, James Loehrer, Respondents, and Community Fire Protection District, Defendant.
    No. ED 94414.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 21, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Doreen Ann Graham-Powell, Steven Dennis Rineberg, Stephen Frank Meyer-kord, St. Louis, MO, for appellant Deborah Thomas.
    Ryan Christopher Mielcarek, Clayton, MO, for appellant Philip Thomas.
    Philip Louis Willman, Angela Elaine Pozzo, Robyn Greifzu Fox, St. Louis, MO, for respondents Michael Brandt/James Loehrer and defendant Community Fire Protection District.
   KENNETH M. ROMINES, J.

Introduction

Deborah and Philip Thomas (“Appellants”), survivors of decedent Anthony Thomas, appeal the judgment of the Circuit Court of St. Louis County, the Honorable John A. Ross, presiding, granting summary judgment in favor of publicly-employed emergency medical personnel Michael Brandt and James Loehrer (“Respondents”). In granting summary judgment, the trial court concluded that Brandt and Loehrer were entitled to official immunity. On appeal, Appellants argue that Respondents’ actions were not shielded by official immunity because they exercised discretion in a non-emergency situation. Because we find that the trial court improperly granted summary judgment, we reverse and remand.

Background and Procedural History

On the evening of 10 July 2008, Anthony Thomas (“decedent”) called 9-1-1 complaining of chest pains and difficulty breathing. Three minutes after the call, an ambulance unit was dispatched from the Community Fire Protection District to decedent’s home. The unit was manned by Michael Brandt, a licensed emergency medical technician, and James Loehrer, a licensed paramedic. Both were employed by Community Fire Protection, a public-entity.

The unit arrived at decedent’s home and Respondents performed a primary survey of the decedent ten minutes after the initial call was placed. Respondents followed up on their primary survey with a secondary survey a minute later. They then obtained a set of vital signs. Based on their examination, Respondents diagnosed decedent with acid reflux and recommended a treatment of over-the-counter Maalox/Gaviscon. Believing decedent was in no immediate medical danger, Respondents left the home fifteen minutes after arriving.

The next morning at approximately 10:30 a.m. decedent again called 9 — 1—1, still complaining of difficulty breathing and chest pains. An ambulance unit from Community Fire Protection District was again dispatched to decedent’s home arriving five minutes later. This unit was manned by a different two-person team than had responded the night before. After finding the decedent was experiencing pain across the chest and into the back, shortness of breath, diaphoresis and nausea, the team began administering emergency treatment with oxygen, aspirin and EKG. At 10:55 a.m. the team initiated emergency transport of decedent to De-Paul Health Center where he was admitted ten minutes later. At the Health Center decedent was diagnosed with cardiac arrest and pulmonary embolism and began receiving treatment. The treatment was unsuccessful and decedent died at 4:00 p.m. on 11 July 2008.

After his death, Deborah Thomas, surviving spouse of decedent, and Philip Thomas, surviving son of decedent, filed a wrongful death suit against Respondents and their employer. Count I alleged that Respondents were negligent in the care they provided when responding to decedent’s first 9-1-1 call on 10 July 2008. Defendants Michael Brandt, James Loehrer and Community Fire Protection filed a Motion for Summary Judgment. The Honorable John A. Ross granted summary judgment in favor of all three defendants. The trial court found that Community Fire Protection District was immune to Appellant’s suit based on sovereign immunity pursuant to Mo.Rev.Stat. § 537.600.1 (2009). The trial court found that Respondents were immune to Appellant’s suit based on official immunity pursuant to the principles established in Richardson v. City of St. Louis, 293 S.W.3d 133 (Mo.App. E.D.2009). Appellants filed a notice of appeal on 10 February 2010 as to the ruling in favor of Respondents.

Standard of Review

We review a trial court’s grant of summary judgment de novo. Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008). Summary judgment is appropriate when the moving party demonstrates there is no genuine issue of material fact and they are entitled to judgment as a matter of law. Id. The movant bears the burden of establishing this right and we review the record in the light most favorable to the non-moving party. Id.

Discussion

The sole issue for consideration by this Court is whether the acts of Respondents in the circumstances of this case were shielded by official immunity. Official immunity is a judicially-created doctrine designed to protect public employees from liability for allegedly negligent acts committed during their performance of official duties. Id. at 610 Generally, whether public employees are protected turns on the type of act involved; the court must determine whether the challenged act was discretionary or ministerial. Davis v. Lambert-St. Louis Intern. Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). Acts which are discretionary are protected, while acts which are ministerial are not. Id. A discretionary act is one that requires “ ‘the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued.’” Id. (quoting Kanagawa v. State, 685 S.W.2d 831, 836 (Mo. banc 1985)). A ministerial act is a clerical duty performed pursuant to a mandate with no exercise of judgment involved. State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 765 (Mo.App. E.D.1981). The doctrine is intended to encourage a “vigorous and effective government” where public officials can make decisions free of fear of personal liability. Southers, 263 S.W.3d at 611; Eli Lilly, 619 S.W.2d at 763.

When the issue of official immunity involves a publicly-employed medical professional, there is a second step to the analysis. Two different approaches have been used as to the second step. In Eli Lilly, this Court held that whether a state-employed doctor’s actions are discretionary or ministerial turns on whether those actions “go to the essence of governing.” Eli Lilly, 619 S.W.2d at 765. The Court found that when doctors were treating patients they were not acting as the “titular head[s] of any department” or making administrative policy decisions such that their acts did not go the essence of governing. Id. Therefore, doctors were not protected by official immunity when treating patients. Id.

In Richardson, this Court held that whether the actions of emergency medical responders are protected turns on the circumstances of the situation. Richardson, 293 S.W.3d at 142. When emergency responders are acting in a rapidly-evolving emergency situation with limited information, they are protected by official immunity. Id. This Court in Richardson reasoned that in emergency situations, emergency responders’ actions are more like those of a police officer responding to an emergency, whose actions are protected, than like a doctor treating patients in a hospital setting, whose actions are not. Id.

The Richardson court also questioned the vitality of Eli Lilly’s “essence of governing” approach after our Supreme Court’s opinion in Southers. The Southers opinion included a clarification of the doctrine of official immunity. Southers, 263 S.W.3d at 610-11. As that discussion did not include any reference to the “essence of governing” approach, the Richardson court concluded that Southers rejected that approach. Richardson, 293 S.W.3d at 140.

Without commenting on the vitality of Eli Lilly, we reaffirm the approach advanced in Richardson. When publicly-employed emergency medical personnel are treating patients, their negligent acts are protected by official immunity only if they are acting in a true emergency situation. This true emergency situation is a strict requirement. A true emergency is one involving rapidly-evolving circumstances where the medical personnel have limited information. The court should determine whether the situation involved a true emergency on a case-by-case basis by evaluating the totality of the circumstances.

The facts in this case show that Respondents were not acting in a true emergency situation. Unlike the decedent in Richardson who was in respiratory distress and had to be immediately intubated, the decedent in this case was stable when the Respondents arrived. Decedent was able to effectively communicate with the Respondents about his symptoms. Respondents had time to perform a primary and secondary survey and obtain vital signs. Decedent survived for almost 20 hours after Respondents’ apparent misdiagnosis. The time and information available to Respondents was more like that of a doctor treating a patient in a hospital than that of an emergency responder arriving to find a patient in critical and devolving condition. Given that Respondents were not acting in a rapidly-evolving emergency situation, the defense of official immunity in not available to them.

Respondents argue that failing to provide blanket official immunity to publicly-employed emergency responders in all situations will cause hesitancy by those responders resulting in an increase risk to patients. We believe that the strict emergency requirement adequately addresses this concern. Responders acting in a true emergency situation will be protected by official immunity, allowing them to act without fear of civil liability. Responders acting in non-emergency situations will be held to the same standard of care as their privately-employed counterparts. Quite the opposite of causing hesitancy in their treatment, this approach encourages responders to spend more time with patients and be more thoughtful in their diagnosis — to not act rashly when time is not of the essence.

Conclusion

Respondents are not immune from Appellant’s wrongful death action based on official immunity. Official immunity is available to publicly-employed emergency responders only if they are acting in a true emergency situation. In this case, Respondents were not acting in a true emergency situation. Summary judgment in favor of Respondents is reversed and the case is remanded to trial court for proceedings consistent with this opinion.

ROY L. RICHTER, C.J., and MICHAEL BULLERDIECK, Sp, J., concur.

      . Without addressing whether there are any substantive differences between the two job titles, for purposes of this opinion we will refer to both as emergency responders.

      . Count II, alleging vicarious liability of the employer, and Count III, challenging the constitutionality of Missouri’s tort reform provisions, were not appealed and thus are not addressed in this opinion.


author: ROY L. RICHTER, C.J.

text:
    Andrew PRESTON and Rebecca Preston, Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
    No. ED 94294.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 21, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Brian S. McChesney, Craig M. Ort-werth, St. Louis, MO, for Appellant.
    Kimberly A. Maschmeyer, St. Louis, MO, for Respondent.
   ROY L. RICHTER, C.J.

Andrew Preston (“Preston”) appeals the trial court’s decision granting American Family Mutual Insurance Co.’s (“American Family”) Motion for Summary Judgment (“motion”). We reverse and remand.

I. BACKGROUND

On September 27, 2003, Preston, 13 years old at the time, was riding his bicycle at the intersection of Fee Fee Road and Midland. Preston, wanting to cross Fee Fee Road on his bicycle, looked for an opportunity to cross. A northbound elderly female motorist on Fee Fee Road stopped her car and waved to Preston to cross the street. Preston began to cross, but was struck by a southbound car driven by Timothy Leyes (“Leyes”). Preston sustained a brain injury and multiple orthopedic injuries, including complex fractures of the left leg, which required multiple surgeries.

Preston filed suit against Leyes and American Family on March 17, 2003. Preston dismissed his claim against Leyes on July 7, 2009. Preston’s claim against American Family was an uninsured motorist claim, alleging that the unidentified elderly female motorist who waved to Preston to cross the street acted negligently, and that Preston was injured as a direct and proximate result of that unidentified motorist. American Family filed its motion for summary judgment on January 13, 2009, and the trial court granted it on December 31, 2009. Preston appeals.

II. DISCUSSION

In Preston’s sole point on appeal, he argues that the trial court erred by entering summary judgment in favor of American Family because the uninsured motorist was the proximate cause of Preston’s injures. We agree.

Review on appeal of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

In order to succeed on an unidentified uninsured motorist claim, a plaintiff must show that: (1) the unidentified motorist was uninsured; (2) causation; (3) the amount of damages. Bryan v. Peppers, 175 S.W.3d 714, 721 (Mo.App. S.D.2005).

We find that there is a genuine issue of material fact as to element (2) causation. It is unclear if the unidentified motorist was the cause of Preston’s injuries, or if Preston’s own negligence was the cause. Preston has presented sufficient evidence that the unidentified motorist could have been negligent in gesturing for him to cross a busy street with traffic approaching from the opposite direction. Because there is a genuine issue of material fact, causation is a question best left to the jury, and therefore summary judgment was improper. Point granted.

III. CONCLUSION

We reverse and remand.

KENNETH M. ROMINES, and MICHAEL BULLERDIECK, SP., JJ„ concur.

      . An unidentified motorist is deemed to be an uninsured motorist. Section 379.203(1) RSMo sup 2002