author: GARY M. GAERTNER, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Terrance WREN, Defendant/Appellant.
    No. ED 92962.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 18, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Gwenda Renee’ Robinson, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Judge.

Introduction

Terrance Wren (Defendant) appeals from the trial court’s judgment entered upon a jury verdict convicting him of the class A felony of murder in the first degree, in violation of Section 565.020; two counts of armed criminal action, in violation of Section 571.015; five counts of the class A felony of unlawful use of a weapon, in violation of Section 571.030; and one count of the class A felony of assault in the first degree, in violation of Section 565.050. We affirm.

Factual and Procedural Background

Defendant challenges the sufficiency of the evidence to support his conviction. As pertinent to Defendant’s points on appeal, the evidence, viewed in the light most favorable to the verdict, reveals as follows.

On January 80, 2008, Keith Taylor (Taylor) and Roscoe Jefferson (Jefferson) were walking south on Sarah Street toward St. Louis Avenue in the City of St. Louis at around 3:30 p.m. This neighborhood block included St. Louis Avenue, North Sarah Street, East Maffit Avenue, and Laba die Avenue. As they walked, Taylor heard approximately five gunshots; the sound of the gunshots caused Taylor to believe two guns were being discharged. As he and Jefferson stood in front of Sarah’s Chicken and Waffles at the intersection of Sarah and St. Louis Avenue, Taylor saw a “tannish” four-door Intrepid with tinted windows and small rims slowly turning right on Sarah from the corner of St. Louis Avenue. Taylor saw two muzzle flashes coming from the car. The Intrepid pulled up slowly to within ten feet of Taylor and Jefferson. The car’s front passenger had a “low cut,” a goatee, and was wearing a fuzzy black skull cap and a black hoody. The driver of the Intrepid had dreadlocks. Taylor could not see the passenger sitting in the backseat of the Intrepid.

As the car slowly rolled by Taylor, he saw the Intrepid’s front passenger raise his hand out of the open front window. The rear passenger window was rolled down only halfway. The front passenger then stuck his head out of the window, pointed a black gun directly at Taylor, and started shooting as the car rolled slowly by Taylor. The back passenger also was shooting a gun. Taylor heard at least seven or eight gunshots. After the shooting began, Taylor tried to run behind a car, but a bullet hit him in his right thigh, and he fell in the middle of St. Louis Avenue where he ran to flag down help. When Jefferson attempted to help Taylor, he was shot in the back. The bullet entered Jefferson’s lung. Although Jefferson saw two people in a white or beige car out of the corner of his eye, he did not see anyone shooting.

As Taylor lay in the street, he saw a red car crash into another car. Taylor attempted to get up, and he saw that the Intrepid had driven around the block and was turning on to St. Louis Avenue from Whittier Avenue. Taylor again heard gunshots, and he could see muzzle flashes coming from the Intrepid as it drove down St. Louis Avenue toward Sarah Street. Taylor heard only two guns firing that day, and he did not see anyone else firing a weapon in the area.

Taylor sought help and was eventually taken to a hospital where he was treated for a gunshot wound to his right thigh. He underwent surgery to repair the wound, which left a scar on his right thigh. Jefferson’s injury also required a hospital stay and surgery, and Jefferson retained scars from the injury.

The next day, Taylor was taken to the police station, where he identified a vehicle as being the one involved in the drive-by shooting. When shown a photographic line-up, Taylor tentatively identified Defendant as the front passenger in the Intrepid who shot him. When he later viewed a live line-up, Taylor identified Defendant as the person who shot him, telling the detectives that he was one hundred percent certain of his identification. During trial, Taylor again identified Defendant as his shooter, stating that he did not have any doubt that Defendant was the front passenger who fired shots at him.

Rosalee Parks (Parks) was a backseat passenger in a red Mazda driven on St. Louis Avenue by Julia Steele (Steele) on January 30, 2008. Steele was driving Parks home from the Lumiere casino around 3:30 p.m. that afternoon. When Steele and Parks reached the intersection of St. Louis Avenue and Sarah, bullets entered the front seat of the car, striking Steele. Steele sustained a gunshot wound to the left side of her head, which resulted in her death. Parks, who was sitting behind Steele, ducked down and did not see who was shooting. Glass shattered, and some entered the back seat, striking Parks. When Parks looked up, Steele was leaning over. The car Steele was driving crashed into a green Camry. After the accident, Parks was treated at a hospital for fractured ribs and a fractured right leg. As a result of the crash, Steele additionally sustained rib fractures, a lacerated spleen, and a fractured right forearm.

Carlos Robinson (Robinson), who was visiting his cousin’s apartment at 4138 St. Louis Avenue on January 30, 2008, heard the sound of a car accident at about 3:30 p.m., and went outside to see what had happened. He saw that a red car had crashed into a green car on St. Louis Avenue. A few minutes later, Robinson heard gunshots close to him, so he turned around and started to run. A bullet grazed his back, but Robinson did not see where the shot came from or who shot him. Robinson was treated for the gunshot graze in the emergency room.

Approximately eleven hours after the incident, the police recovered a gold Intrepid matching Taylor’s description less than a mile from the scene. The Intrepid had been reported stolen the day before. Several items, including paperwork, were seized from the Intrepid for DNA and fingerprint analysis. The recovered paperwork included an envelope; the police lifted four fingerprints from the envelope, which were determined to be Defendant’s.

Numerous bullets, bullet fragments, .45 automatic shell casings, and nine-millimeter caliber cartridge casings were recovered from the scene of the shooting. The St. Louis Police Evidence Technician officer who preserved and collected evidence from the crime scene testified that the area consisted of a two-lane street, with numerous occupied houses. The street was littered with broken glass, and several buildings and cars had been struck by bullets. After Steele had been shot, her Mazda had traveled to the wrong side of the road before crashing into the Camry. The Camry had also been struck by a .45 caliber copper jacketed bullet, which was recovered from its trunk. Testing performed on a nine-millimeter cartridge casing recovered from the Intrepid revealed that it had been fired from the same firearm as had the nine-millimeter cartridge casings recovered from the scene of the shooting. Defendant was subsequently interviewed by the police in connection with the investigation of Steele’s death.

During a police interview on February 1, 2008, Defendant told the detective he had spent the afternoon of January 30 driving around with his girlfriend, first visiting his mother’s house, which was within a quarter of a mile from the intersection of St. Louis Avenue and Sarah, and eventually going to a White Castle restaurant and to the Lumiere Casino. Defendant stated that he and his girlfriend had also traveled to his girlfriend’s brother’s home on the south side of St. Louis to look at a car stereo. When he was shown a photograph of the Intrepid and told that his fingerprints had been recovered from an item found in the car, Defendant said that the fingerprints were not his and that he did not know anything about a gold Intrepid.

At Defendant’s request, the police again interviewed Defendant on February 3, 2008. Defendant indicated he wanted to talk about who had been inside the Intrepid and to discuss his innocence. During this interview, Defendant said that, although most of what he had previously told the police was true, Defendant had not told the police that his cousin Jeremy Lewis (Jeremy) had called him on his cell phone to ask Defendant to pick him up at Robert Davis’s house on St. Louis Avenue, between Whittier and Labadie. Defendant stated that when Jeremy came out to Defendant’s car, Marquis Davis (Marquis) was with him, and Marquis told Defendant that he had a CD player he would sell to Defendant. Jeremy and Marquis directed Defendant to drive to the 4200 block of Maffit Avenue, where Marquis retrieved a box from the truck of the gold Intrepid with tinted windows. Defendant said when he opened the box, however, it contained an old radio and not the CD player pictured on the box, so he got his money back from Marquis.

When the police told Defendant that his explanation did not account for his fingerprints being found inside the Intrepid, Defendant responded that he had been lying, but was ready to tell the whole story. In his third statement, also given on February 3, Defendant said that when they reached Maffit, Marquis Davis pointed out the Intrepid and told Defendant that he got it the night before. Marquis Davis then got into the Intrepid and drove it to the house of Jeremy’s cousin, who lived in the 4400 block of Cote Brilliante. Defendant and Jeremy followed the Intrepid. When Marquis parked the Intrepid behind the cousin’s house, he brought out the box containing the old radio and sold it to Defendant. Defendant stated that, after he discovered the box did not contain a CD player, Defendant started rummaging through the trunk, glove box, and interior of the Intrepid. After he retrieved his money from Marquis, Defendant and his girlfriend drove around to pass the time. Shortly after 2:00 p.m., however, Defendant received a phone call from another cousin, Jerrell Lewis (Jerrell), who asked Defendant to pick him up at the intersection of McMillan and Taylor. Defendant said he then picked up Jerrell; thereafter, they traveled to a McDonald’s on Lindell and a small Amoco station on Laclede and Boyle, before dropping Jerrell off in the 4400 block of Cote Brillante.

At the close of its case, the State indicated its understanding that Defendant would be calling Jeremy and Jerrell as witnesses, and requested to be allowed to ask Jeremy on cross-examination whether he, his cousin Jerrell, and Defendant were documented members of the North Market Gangsters to show their bias and willingness to testify for Defendant. Defendant objected to any mention of gang membership involving his witnesses, arguing that no evidence had been presented showing the shooting was gang related, and that bias could be shown through the witnesses’ family relationship to Defendant. Defendant further argued that evidence of gang relations constituted inadmissible character evidence, and that its prejudicial effect outweighed any probative value. The trial court ruled that the State could ask about the witnesses’ mutual gang membership, but could not inquire any further after receiving their initial answer.

Jeremy testified on Defendant’s behalf at trial. According to Jeremy, after he and Defendant followed the Intrepid driven by Marquis to Cote Brillante, they then followed Marquis to Jeremy’s backyard in the 4400 block of Garfield, where Defendant and Marquis searched the Intrepid for a CD player. When the search did not reveal a CD player in the Intrepid, Jeremy and Defendant got back into Defendant’s Cutlass Supreme, and Defendant dropped Jeremy off at a store called JB Liquors. Jeremy testified that he saw Defendant “all day off and on” because Defendant was riding around the neighborhood in the Cutlass with Defendant’s girlfriend and their newborn son.

During cross-examination, Jeremy further testified that he had observed Defendant driving the Cutlass around the neighborhood that afternoon about ten times, “probably every ten or twenty minutes.” The following exchange occurred when the State questioned Jeremy as to why he had not previously volunteered the information that would account for Defendant’s whereabouts on the day of the shooting, despite Jeremy’s awareness that Defendant had been accused of being the shooter.

[State]: You don’t say anything to anybody; right?
[Jeremy]: No.
⅜ * *
[State]: And you’ve been locked up since
July; correct?
[Jeremy]: Yes.
[State]: You haven’t written any letters?
[Jeremy]: No.
[State]: Are you, in fact, with the defendant’s family?
[Jeremy]: No.
[State]: Isn’t his family your family?
[Jeremy]: Yes.
[State]: You guys are cousins?
[Jeremy]: Yes.
[State]: You guys are more than cousins. You, the defendant, and your brother, Jerrell Lewis, are all documented members of the North Market Gangsters, isn’t that true?
[Defense Counsel]: Objection, your Honor.
[Court]: That will be overruled.
[State]: Isn’t that true, sir?
[Jeremy]: Yes.

Defendant submitted instructions for assault in the second degree and armed criminal action in connection with assault in the second degree, but the trial court refused these proposed instructions. The refused instruction for assault in the second degree provides as follows:

As to Count IV, if you do not find the defendant guilty of assault in the first degree as submitted in Instruction No. _, you must consider whether he is guilty of assault in the second degree as submitted in this instruction.
As to Count IV, if you find and believe from the evidence beyond a reasonable doubt:
First, that at about 3:30 p.m. on January 30, 2008, at or near 4100 St. Louis Avenue, in the State of Missouri, the defendant recklessly caused physical injury to Keith Taylor by means of discharge of a firearm, then you are instructed that the offense of assault in the second degree has occurred, and if your further find and believe from the evidence beyond a reasonable doubt:
Second, that with the purpose of promoting or furthering the commission of that assault in the second degree, the defendant acted together with or aided other persons in committing the offense, then you will find the defendant guilty of assault in the second degree under this instruction.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense under this instruction.
A person acts “recklessly” as to causing physical injury if he consciously disregards a substantial and unjustifiable risk that his conduct will result in physical injury and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
MAI-CR3d 819.12

During the jury instruction conference, Defendant argued that there were facts supporting the submission of his proposed assault-in-the-second-degree instruction because Taylor’s injury was not of a serious nature, as alleged in the first-degree assault instruction. In response, the State argued that there was no evidence that the physical injury was recklessly caused because Taylor testified that Defendant aimed and shot at him and numerous bullet holes were found in the area where Taylor was shot. The trial court noted that the only testimony concerning the assault was provided by Taylor when the court refused the instruction. Regarding the shooting of Steele, instructions for both murder in the first degree and murder in the second degree were submitted to the jury.

The jury returned its verdict convicting Defendant of one count of murder in the first degree; two counts of armed criminal action; five counts of unlawful use of a weapon; and one count of assault in the first degree. Defendant’s Motion for Acquittal or in the Alternative for a New Trial was denied.

This appeal follows.

Points on Appeal

In his first point, Defendant claims the trial court clearly erred in overruling his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to support Defendant’s convictions as to Count I of murder in the first degree; Count II of armed criminal action; and Counts III, VII, VIII, and IX of unlawful use of a weapon, in that the State failed to prove beyond a reasonable doubt that Defendant was one of the persons who committed the offenses, or that he acted together with or aided others in committing the offenses.

In his second point, Defendant claims the trial court clearly erred in overruling his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to support Defendant’s convictions as to Count I of murder in the first degree and the associated Count II of armed criminal action, as the State failed to prove beyond a reasonable doubt that Defendant acted with the conscious purpose of causing Ms. Steele’s death. Defendant argues the State’s evidence did not show that Defendant, or others with whom he allegedly acted, knew of, or were aware of Ms. Steele’s presence when the shooting that caused her death occurred.

In his third point, Defendant claims the trial court clearly erred and abused its discretion in refusing to submit his proposed instructions for assault in the second degree, and armed criminal action in connection with assault in the second degree, because the evidence provided a basis for acquittal of assault in the first degree and conviction of the lesser-included offense of assault in the second degree, as a reasonable jury could have found that Defendant or others acting with him recklessly caused physical injury to Mr. Taylor by means of discharge of a firearm.

In his fourth point, Defendant claims the trial court clearly erred and abused its discretion in overruling his objection to cross-examination of defense witness Jeremy Lewis about his gang affiliation with Defendant because this questioning permitted the State to introduce improper character evidence that was more prejudicial than probative.

Standard of Review

We review the denial of a motion for judgment of acquittal to determine whether the state adduced sufficient evidence to make a submissible case. State v. Sears, 298 S.W.3d 561, 563 (Mo.App. E.D.2009). When presented with a challenge to the sufficiency of the evidence, we review to determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). We view the evidence in the light most favorable to the State, drawing all reasonable inferences in its favor. Id. We disregard contrary inferences, unless they are such a natural and logical extension that no reasonable juror would be able to disregard them. Id.

The refusal to submit a tendered jury instruction is within the trial court’s discretion. State v. Leisure, 810 S.W.2d 560, 574 (Mo.App.1991).

Trial courts are afforded broad discretion in determining the permissible scope of cross-examination. State v. Oates, 12 S.W.3d 307, 312 (Mo. banc 2000). We will not reverse a criminal conviction absent an abuse of discretion. Id.

Discussion

Point I

In his first point, Defendant claims the trial court clearly erred in overruling his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to support Defendant’s convictions as to Count I of murder in the first degree; Count II of armed criminal action; and Counts III, VII, VIII, and IX of unlawful use of a weapon, as the State failed to prove beyond a reasonable doubt that Defendant was one of the persons who committed the offenses, or that he acted together with, or aided, others in committing the offenses. Defendant argues that the victims of these offenses were unable to identify their shooter, and that the State failed to prove identity through firearms evidence, DNA evidence, fingerprint evidence, or other testimony.

The verdict director for first-degree murder submitted to the jury required the jury to find that Defendant acted together with or aided other persons in causing the death of Steele by shooting her after deliberation on the matter. Because Defendant was tried on a theory of accomplice liability, the jury did not have to find that Defendant personally performed each act constituting first-degree murder, only that Defendant acted together with or aided another either before or during the commission of the crime, with the purpose of promoting the crime. State v. Ferguson, 20 S.W.3d 485, 497 (Mo. banc 2000).

In reviewing Defendant’s challenge to the sufficiency of proof establishing his identity, we view the evidence most favorably to the State, and draw all inferences in its favor. Whalen, 49 S.W.3d at 184. There was direct evidence from Taylor who testified that Defendant was the individual in the front seat of the Intrepid shooting a gun during the three bursts of gunfire at St. Louis Avenue and Sarah, at the time Steele was shot and killed, approximately 3:30 p.m. Ballistics testing of nine millimeter cartridge casings recovered from the scene showed that they were fired from the same gun that fired a nine millimeter cartridge casing recovered from the Intrepid. Taylor testified that he heard only two guns firing during the incident, that he saw two guns being fired from the Intrepid, and that he saw no one else firing a weapon in the area.

“The testimony of a single witness is sufficient to establish the identity of a defendant if the jury believes it beyond a reasonable doubt.” State v. Barnes, 917 S.W.2d 606, 607 (Mo.App. E.D.1996). Here, the testimony of Taylor, an eye witness to the shooting incident is sufficient to support inferences which, in turn, support the verdict. There was both direct and circumstantial evidence that, at approximately 3:30 p.m. on January 30, 2008, Defendant and another individual were firing guns from the Intrepid as their car slowly drove by the location where Steele was shot and killed, and that no one else was on the street shooting at the time Steele was shot and killed. Id.; Whalen, 49 S.W.3d at 184. Thus, the evidence was sufficient to establish Defendant or his co-actor fired multiple shots at Steele during the commission of the crime, thus establishing identity for purposes of the elements of Count I of murder in the first degree and Count II of armed criminal action.

Counts III, VII, VIII, and IX of unlawful use of a weapon were submitted to the jury in connection with the injuries suffered by Steele, Jefferson, Parks, and Robinson. The submitted verdict directors for these counts required the jury to find that Defendant or other persons knowingly shot a firearm from the Intrepid, and that as a result, these victims suffered injury or death. All four of these victims were injured in the same vicinity and during the same time frame as were Steele and Taylor; thus, our analysis for Counts I and II concerning the evidence of Defendant’s identity as one of the individuals Taylor observed firing a gun from the Intrepid as it drove applies equally to Defendant’s challenge to the unlawful-use-of-a-weapon counts. The evidence was sufficient to establish Defendant or his co-actor fired multiple shots from the Intrepid and that, as a result of this conduct, Steele, Parks, Jefferson, and Robinson were injured. Barnes, 917 S.W.2d at 607. Thus, sufficient evidence established Defendant’s identity for purposes of Counts III, VII, VIII, and IX.

The trial court did not clearly err in overruling Defendant’s motion for judgment of acquittal at the close of all the evidence because the evidence was sufficient to support Defendant’s convictions as to Count I of murder in the first degree; Count II of armed criminal action; and Counts III, VII, VIII, and IX of unlawful use of a weapon.

Point denied.

Point II

In his second point, Defendant claims the trial court clearly erred in overruling his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to support Defendant’s convictions as to Count I of murder in the first degree and the associated Count II of armed criminal action, as the State failed to prove beyond a reasonable doubt that Defendant acted with the conscious purpose of causing Ms. Steele’s death. Defendant argues the State’s evidence did not show that Defendant or others with whom he allegedly acted knew of, or were aware of Ms. Steele’s presence when the shooting that caused her death occurred. Defendant argues that this Court must reverse Defendant’s convictions on Counts I and II and discharge him, claiming that the trial court’s ruling violated his right to due process of law.

In considering whether sufficient evidence supported the jury’s verdict, we consider each of the elements of the charged crime. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). Viewing the evidence in the light most favorable to the State, and granting the State all reasonable inferences from the evidence, we consider whether a reasonable juror could find each of the elements beyond a reasonable doubt. Id.

“A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.” Section 565.020. As previously discussed, the verdict director submitted to the jury required the jury to find that Defendant acted together with or aided other persons in causing the death of Steele by shooting her after deliberation on the matter. Consequently, to convict Defendant of murder in the first degree, the jury had to find that he or another person knowingly caused the death of Steele, after deliberation on the matter. Ferguson, 20 S.W.3d at 497.

Defendant need not have personally performed each act constituting the crime’s elements, but in order to be responsible for the other person’s acts, he must have acted together with or aided that person either before or during the commission of the murder, with the purpose of promoting the crime. Id. To be convicted as an accomplice, Defendant must have personally deliberated upon the murder. Id. Deliberation is “cool reflection upon the matter for any length of time, no matter how brief.” Section 565.002(3). Generally, deliberation is proved through the circumstances surrounding the crime. Ferguson, 20 S.W.3d at 497.

Defendant claims the State failed to prove that he acted with the conscious purpose of causing Steele’s death because the evidence did not show that Defendant or another with whom he acted knew of, or were aware of, Steele’s presence when she was shot and killed. Defendant further argues that the evidence failed to demonstrate a motive for shooting Steele, to show her murder was premeditated or planned, or to prove Steele knew Defendant. Defendant’s argument that the State showed no motive for the shooting of Steele is irrelevant as the State is not required to prove motivation. See State v. Randolph, 698 S.W.2d 535, 540 (Mo.App. E.D.1985).

The jury was instructed on both first-degree murder and murder in the second degree. The element of deliberation distinguishes these two offenses. State v. Beal, 966 S.W.2d 9, 12 (Mo.App. W.D.1997). The record provides sufficient evidence for the jury to find beyond a reasonable doubt that Defendant deliberated. The circumstances surrounding the crime amply establish deliberation: Defendant and another shooter fired multiple shots at street level from the slowly-moving Intrepid, striking multiple victims in a neighborhood block, with time elapsing between three separate bursts of gunfire from their guns. Defendant aimed point-blank at Taylor, firing several shots. “The culpable mental state necessary for a homicide offense may be found to exist if the only difference between what actually occurred and what was the object of the offender’s state of mind is that a different person or persons were killed.” Section 565.003. Thus, even if the jury believed that Defendant did not intend to kill Steele, but rather, did so when firing at Taylor, his cool reflection upon shooting Taylor supplies the necessary culpable mental state for murder in the first degree.

Although Defendant attempts to argue that the evidence did not show that he knew of or was aware of Steel’s presence when the shooting that caused her death occurred, we find his argument specious. A person acts with knowledge with respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that certain circumstances exist. Section 562.016.3(1). As well, an individual acts knowingly when he is aware that his conduct is practically certain to cause a result. Section 562.016.3(2). From the evidence adduced, it is reasonable to infer that Steele was shot during the first or second burst of gunfire as she approached the Intrepid at the intersection of Sarah and St. Louis Avenue, and that the red Mazda she was driving was clearly visible to the occupants of the Intrepid as they opened fire. Evidence that a murder was committed by means of a deadly weapon and that an accomplice was aware that the deadly weapon was to be used in the commission of a crime is a circumstance permitting the inference of accessory liability for first degree murder. State v. Gray, 887 S.W.2d 369, 376-77 (Mo. banc 1994).

Moreover, the impact when Steele’s car crashed made a noise loud enough to be heard by Robinson inside a building; consequently, the accident, which occurred when Steele’s car crashed into parked cars on the opposite side of the street, could hardly go unnoticed by Defendant as he slowly rode by in the Intrepid. Nor can Defendant claim ignorance of Taylor’s injury, given Taylor’s prone body in the middle of St. Louis Avenue. Yet, Defendant and his co-shooter returned to the scene of mayhem they created — not to render help — but to open fire yet again. Accomplice deliberation has also been found to exist where there is evidence that the accomplice either participated in the homicide or continued in the criminal enterprise after it was apparent that a victim was to be killed. Id.

The jury’s determination that Defendant knew that the moving car was occupied when he shot into it is supported by the evidence. “Deliberation requires only a brief moment of ‘cool reflection’ and may be inferred from the fact that a defendant had the opportunity to terminate an attack after it began.” State v. Donahue, 280 S.W.3d 700, 704 (Mo.App. W.D.2009) (finding deliberation where defendant fired five to six shots into parking lot, stopping to “unjam” weapon between shots) (internal quotations and citation omitted). Significantly, Defendant and his co-shooter did not satisfy themselves with one pass by the victims; they returned to the scene only moments after Taylor was wounded, and opened fire again. Defendant’s conduct after the murder also supports a finding of deliberation. State v. Tisius, 92 S.W.3d 751, 764 (Mo.2002).

The trial court did not err in overruling Defendant’s motion for judgment of acquittal. The evidence supports a verdict that Defendant deliberated and knowingly took actions practically certain to kill Steele.

Point denied.

Point III

In his third point, Defendant claims the trial court clearly erred and abused its discretion in refusing to submit his proposed instructions for assault in the second degree, and armed criminal action in connection with assault in the second degree, because the evidence provided a basis for acquittal of assault in the first degree and conviction of the lesser-included offense of assault in the second degree, as a reasonable jury could have found that Defendant or others acting with him recklessly caused physical injury to Mr. Taylor by means of discharge of a firearm. Defendant argues that the trial court’s refusal violated his rights to due process of law, to present a defense, and to a fair trial and asserts that this Court must reverse Defendant’s convictions on Counts IV and V and remand for a new trial.

Trial courts are not required to instruct on lesser included offenses unless a basis exists for the jury to acquit the defendant of the charged offense and convict him of the lesser offense. State v. Hibler, 5 S.W.3d 147, 148 (Mo. banc 1999). “A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.” Section 565.050. In contrast, a person commits assault in the second degree when he recklessly causes physical injury to another by discharging a firearm. Section 565.060.5 A person acts recklessly if he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow from his action. Section 562.016.4.

To acquit Defendant of assault in the first degree here, the jury needed to reasonably doubt whether he attempted to kill, or knowingly caused, or attempted to cause, serious physical injury to Taylor. Hibler, 5 S.W.3d at 148-19. Taylor testified that, after the Intrepid slowly pulled up to within ten feet of Taylor, Defendant stuck his head out of the Intrepid’s front passenger window, pointed a black gun directly at Taylor, and started shooting. A passenger in the back seat of the Intrepid was also shooting a gun. Although Taylor tried to run for cover, a bullet stuck him in his right thigh. The gunshot wound Taylor sustained from the shooting required hospitalization and surgery, and left a permanent scar; thus, no reasonable jury could have concluded that Taylor did not suffer a serious physical injury. Given Defendant’s close proximity to Taylor and Defendant’s direct aim at Taylor while shooting multiple rounds of ammunition, a jury could not reasonably doubt that Defendant attempted to kill or cause serious physical injury to Taylor; nor could it conclude that Defendant’s actions were merely reckless.

An individual is guilty of purposely causing or attempting to cause physical injury to another when that individual consciously engages in conduct that causes such injury. Whalen, 49 S.W.3d at 187. Accordingly, there was no basis here for acquittal of assault in the first degree and conviction of the lesser offense. Hi-bler, 5 S.W.3d at 148-49. “Where proof of defendant’s guilt is strong, where the evidence clearly indicates the commission of the more serious crime, and where there is no evidence to support an adverse finding on an element of the charged crime, it is not necessary to instruct on a lesser included offense.” State v. Toran, 878 S.W.2d 913, 914 (Mo.App. E.D.1994). The trial court did not clearly err or abuse its discretion in refusing to submit Defendant’s proposed instructions for assault in the second degree, and armed criminal action in connection with assault in the second degree.

Point denied.

Point TV

In his fourth point, Defendant claims the trial court clearly erred and abused its discretion in overruling his objection to cross-examination of defense witness Jeremy Lewis about his gang affiliation with Defendant because this questioning permitted the State to introduce improper character evidence that was more prejudicial than probative. Defendant asserts that there is a reasonable probability that the jury would have reached a different conclusion about his guilt, if the trial court had prohibited this line of cross-examination. Defendant argues that the trial court’s ruling violated his rights to due process of law, to be tried only on the charged offenses, and to a fair trial, and he claims this Court must reverse his convictions and remand for a new trial.

We afford the trial court broad discretion in determining the permissible scope of cross-examination, and will not reverse a criminal conviction absent an abuse of that discretion. Oates, 12 S.W.3d at 313. Evidence of a defendant’s affiliation with a gang is normally improper character evidence. Beal, 966 S.W.2d at 13. “Such evidence, however, may be probative and admissible if it tends to prove a motive for the crime, the possible bias of defense witnesses who are shown to be members of the defendant’s gang, a common design or purpose in crimes committed by a group, or the identification of the defendant.” Id. (emphasis ours). Here, evidence of Defendant’s and Jeremy’s gang membership was solicited by the State during cross-examination to demonstrate Jeremy’s bias in providing a belated alibi for Defendant and, as such, was probative and admissible. The trial court limited the State’s cross-examination to only a brief acknowledgment by Jeremy of his and Defendant’s mutual gang affiliation, and did not include any follow-up questioning, or solicitation of information concerning gang activity. The trial court did not abuse its discretion in overruling Defendant’s objection to cross-examination of defense witness Jeremy Lewis concerning his gang affiliation with Defendant. Oates, 12 S.W.3d at 313.

Point denied.

Conclusion

The judgment of the trial court is affirmed.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J., concur.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John M. SISK, Jr., Appellant, v. UNION PACIFIC RAILROAD COMPANY, Respondent.
    No. ED 93757.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 18, 2010.
    Application for Transfer to Supreme Court Denied July 14, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Joseph L. Bauer, Jr., James E. Hopkins, Jr., St. Louis, MO, for appellant.
    Stephen M. Buckley, Ann E. Buckley, St. Louis, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The plaintiff, John M. Sisk, Jr., appeals the judgment of the Circuit Court of St. Louis County dismissing his suit under the Federal Employers’ Liability Act against the defendant, Union Pacific Railroad Company, based on forum non conveniens. Finding no error, we affirm.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision. We affirm the trial court’s judgment. Rule 84.16(b)(5).


author: DON E. BURRELL, Judge.

text:
    Kenyatta D. LANE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. SD 30116.
    Missouri Court of Appeals, Southern District, Division One.
    May 21, 2010.
    Rehearing denied June 14, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Nancy A. McKerrow, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

Kenyatta Lane (“Movant”) appeals the motion court’s denial without an evidentia-ry hearing of his Rule 24.035 motion for post-conviction relief. Movant’s motion alleged that he unknowingly and involuntarily entered a guilty plea due to ineffective assistance of counsel. Because Movant’s motion raised a claim not conclusively refuted by the record, we reverse the motion court’s order denying relief and remand the matter for an evidentiary hearing.

Factual and Procedural Background

On December 17, 2007, a criminal complaint was filed against Movant, alleging he had committed the class B felony of sale of a controlled substance, a violation of section 195.211, and a warrant was issued for his arrest. On January 30, 2008, Movant, who was already incarcerated in the Missouri Department of Corrections on an unrelated conviction, filed a request that the instant charge be disposed of within 180 days, “[i]n accordance with section 460 RSMo 1978” (the Uniform Mandatory Disposition of Detainers Law (“UMDDL”)). A copy of that request was given to the prosecuting attorney the same day it was filed.

On August 8, 2008, a date Movant asserts was more than 180 days after Mov-ant had properly filed his UMDDL request, a motion for habeas corpus ad prosequendum was mailed to the prison where Movant was incarcerated. On September 2, 2008, Movant filed a memorandum in support of his request for disposition under the UMDDL. His memorandum specifically cited the UMDDL and asserted that “any indication or notice to the D.O.C. of a wanted, a warrant of untried complaints or pending charges serves as a de facto detainer sufficient to permit petitioner to invoke the provisions of the Uniform Mandatory Disposition Law (UMDDL).” Movant sent a second, notarized copy of that same memorandum on September 10, 2008.

On October 14, 2008, Movant, accompanied by counsel, pled guilty to the charge against him. At the plea hearing, Movant assured the court that he wanted to plead guilty and was doing so after sufficient consultation with his lawyer. The plea court did not specifically advise Movant that he would be giving up his right to a speedy trial by pleading guilty, but did advise Movant that he would be “giving up [his] constitutional rights relating to trial[.]” Movant indicated that he understood he was waiving his rights by pleading guilty. Movant also indicated that he was completely satisfied with his plea counsel.

After the court explained Movant’s rights under Rule 24.035, Movant again affirmed that he was completely satisfied with his attorney’s services — that his attorney had done everything Movant had asked him to do, and that Movant had been given ample time to talk with his attorney about his case. Movant further indicated that no force, promises, or threats had been made to coerce his guilty plea and that he was pleading guilty of his own free will. After Movant confirmed that he was, in fact, guilty of the crime charged, the plea court accepted Movant’s guilty plea and found no probable cause to believe that Movant had received ineffective assistance of counsel. The court thereafter sentenced Movant to a seven year term of incarceration to be served concurrently with the sentence he was already serving.

Movant timely filed a pro se Rule 24.035 motion on March 9, 2009, alleging ineffective assistance of counsel. He attached to that motion a copy of his request for a speedy trial under the UMDDL. Post-conviction counsel was then appointed to represent Movant, and an amended motion was filed. The amended motion alleged that Movant’s plea counsel misinformed him about the effect of his UMDDL motion, which prejudiced Movant by rendering his guilty plea involuntary in that absent such misinformation from his counsel, Movant would not have pleaded guilty but would have insisted on going to trial. As earlier indicated, the motion court thereafter denied relief without holding an eviden-tiary hearing.

Analysis

Our review of a motion court’s ruling on a Rule 24.035 motion is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k). Our review is not de novo; “rather, the findings of the motion court are presumptively correct.” Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). “The motion court’s findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made.” Soto v. State, 226 S.W.3d 164, 166 (Mo. banc 2007).

Movant asserts two points on appeal. Movant’s first point asserts that his plea counsel was ineffective for failing to file a motion to dismiss with prejudice the charges against Movant because they had not been disposed of within 180 days as required by the UMDDL. Movant’s second point alleges plea counsel was ineffective for failing to advise Movant that if he pled guilty he would be waiving his right to demand that the charges against him be dismissed with prejudice pursuant to the UMDDL. Because “a movant who has pled guilty to an offense [and] files a motion for post-conviction relief [ ] waives all errors regarding ineffective assistance of counsel except those that affect the volun-tariness and knowledge of the plea,” we need only consider Movant’s second point. Rivera v. State, 106 S.W.3d 635, 638 (Mo.App. S.D.2003).

“To show he was entitled to an evidentiary hearing on his Rule 24.035 motion, Movant must show that[:] (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and record of his case; and (3) the matters complained of resulted in prejudice to him.” Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). “If the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held.” Rule 24.035(h). “An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief.” Roberts v. State, 276 S.W.3d at 835 (emphasis in original) (quoting Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002)) (other citations omitted).

Rule 24.035(j) requires the motion court to “issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” Rule 24.035(j). “The motion court is not required to issue itemized findings and conclusions and there is no precise formula to which findings and conclusions must conform, but they must be sufficient to permit ‘meaningful’ appellate review.” Weekley v. State, 265 S.W.3d 319, 322 (Mo.App. S.D.2008). The motion court here issued such findings and conclusions.

In those findings and conclusions, the motion court found that “[t]he amended motion does not state whether the alleged ineffectiveness violated his rights under section 217.450, et seq., the Uniform Mandatory Disposition of Detainers Law (UMDDL), or section 545.780[.]” The motion court found that Movant had waived his rights under the UMDDL by pleading guilty. Finally, the motion court opined that the filing of a complaint does not implicate the right to a speedy trial provided by section 545.780 — that this right becomes applicable only when an information is subsequently filed.

While Movant’s amended motion specifically alleged ineffective assistance of counsel, the motion court addressed only the effect Movant’s UMDDL motion would have had on the plea court’s authority to hear and accept Movant’s guilty plea. The Norton and Schmidt cases only addressed whether the trial court had the authority to accept a guilty plea after the 180 day time period permitted under the UMDDL had run. Neither of these cases involved a claim of ineffective assistance of counsel— a separate ground for relief provided by Rule 24.035(a). By mistakenly concluding that the principles set forth in Norton and Schmidt were directly applicable to Mov-ant’s claim, the motion court failed to consider and address whether Movant’s ineffective assistance of counsel allegation was conclusively refuted by the record.

After a negotiated guilty plea, a movant’s “claim of ineffective assistance of counsel is immaterial except to the extent it impinges upon the voluntariness and knowledge with which the guilty plea was made.” Roberts, 276 S.W.3d at 836; Hicks v. State, 918 S.W.2d 385, 386 (Mo.App. E.D.1996). The gravamen of Movant’s amended post-conviction motion is that his plea was unknowing and involuntary because his counsel misinformed him as to the effect of his guilty plea and his rights under the UMDDL.

Section 217.450.1 states:

Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a detainer has been lodged against him while so imprisoned. The request shall be in writing addressed to the court in which the indictment, information or complaint is pending and to the prosecuting attorney charged with the duty of prosecuting it, and shall set forth the place of imprisonment.

Section 217.455 states:

The request provided for in section 217.450 shall be delivered to the director, who shall forthwith:
(1) Certify the term of commitment under which the offender is being held, the time already served, the time remaining to be served on the sentence, the time of parole eligibility of the offender, and any decisions of the state board of probation and parole relating to the offender; and
(2) Send by registered or certified mail, return receipt requested, one copy of the request and certificate to the court and one copy to the prosecuting attorney to whom it is addressed.

Section 217.460 then provides that:

Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the indictment, information or complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.

Movant’s amended motion alleges that he filed a proper motion requesting disposition within the 180 day limit; that the 180 days had passed before he was tried or entered his guilty plea; and that his trial counsel failed to raise this issue with the court. The question is thus whether the record before the motion court conclusively refuted those claims. White v. State, 939 S.W.2d 887, 893 (Mo. banc 1997) (“no evidentiary hearing will be required unless the motion meets three requirements: ‘(1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant.’ ”) (quoting State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993)).

In Sams v. State, 980 S.W.2d 294 (Mo. banc 1998), the defendant filed a pro se request pursuant to the UMDDL after learning of his charges. Id. at 295. Two days before the one hundred eighty-day period set forth in the UMDDL would have expired, the defendant, his counsel, and the prosecutor had a hearing before the court, during which the parties stipulated to a trial date that was beyond the one hundred eighty-day time limit. Id. Months after the statutory time period had run, the defendant entered a guilty plea and was sentenced pursuant to that plea. Id. He thereafter filed a Rule 24.035 motion, alleging ineffective assistance of counsel based on his counsel “stipulating to a continuance beyond the one hundred eighty-day limitation” and “failing to argue that his stipulation did not waive the one hundred eighty-day requirement” and “failing to move for a dismissal.” Id. The motion court granted an evidentiary hearing. Id.

At that evidentiary hearing, the mov-ant’s plea counsel testified that he “was unsure or unable to recall whether he and [the defendant] had discussed the pro se motion for a speedy trial” and that it was “unrealistic” to think he could get the defendant’s matter ready for trial within that time period due to the “enormous amount of paperwork” produced by the State. Id. The UMDDL specifically grants an exception to the running of the one hundred and eighty days when the defendant or his counsel requests or stipulates to a continuance. Id. at 296 (citing Section 217.460). The defendant in Sams thus did not prove that his counsel failed to perform like a reasonably competent attorney when he stipulated to a continuance, because cross-examination revealed that Sams’ trial counsel would not have been prepared to try the case. Sams, 980 S.W.2d at 296. The court also denied the defendant’s claim for ineffective assistance of counsel for failure to file a motion to dismiss because trial counsel had already stipulated to a continuance, making the filing of a motion to dismiss “futile.” Id. at 297.

In Rivera, the defendant filed a pro se motion requesting disposition of his detain-er under the Intrastate Agreement on De-tainers (IAD) and pled guilty after the time had run. 106 S.W.3d at 636-37. Pri- or to sentencing, his counsel engaged in a discussion with the trial court regarding the IAD motion and the existence of a dispute as to whether or not the prosecutor’s office had received the motion. Id. at 637. The defendant decided to plead guilty, even though he and his counsel specifically stated that they understood the guilty plea would waive any right to a direct appeal based on the defendant’s IAD motion. Id. This court affirmed the motion court’s denial of a hearing on the defendant’s post-conviction claim for ineffective assistance of counsel, finding that the record conclusively showed the defendant had not successfully invoked the IAD statute and that, based on the questioning by the trial court regarding the defendant’s IAD rights, his guilty plea was voluntary, knowing, and understanding. Id. at 638^0.

The defendants in Sams and Rivera had an opportunity to testify regarding their respective counsel’s advice to plead guilty rather than seek a disposition of their claims brought under the UMDDL or IAD. “The hearing on [the defendant’s] Rule 24.035 motion was his opportunity to present evidence to prove these necessary elements.” Sams, 980 S.W.2d at 296. Here, as in Sams, Movant should have been granted an evidentiary hearing to determine whether his counsel was ineffective or had engaged in reasonable trial strategy by advising Movant to plead guilty after Movant had invoked the protection of the UMDDL. Movant filed his motion requesting disposition under the UMDDL on January 30, 2008, and a copy was forwarded to the prosecutor that same day. According to Movant, the 180 day period set forth in the UMDDL would have expired on July 29, 2008. Movant again filed a copy of his UMDDL request on September 10, 2008. Neither of Mov-ant’s attorneys ever addressed on the record Movant’s filing of these motions, or his possible right to a dismissal of the charges against him.

An evidentiary hearing may reveal that Movant’s counsel had good reasons for recommending that Movant plead guilty. As in Sams and Rivera, there may be evidence showing that Movant’s UMDDL motion was defective or that counsel had other sound reasons for making such a recommendation. “It is not ineffective assistance of counsel to make a reasonable trial strategy decision.” Sams, 980 S.W.2d at 296. But such a determination cannot be made without a hearing. The record before us does not conclusively demonstrate that Movant was not entitled to relief. If the motion court finds that Movant’s counsel did, in fact, misinform Movant about the effect of his UMDDL motion, such misinformation may have rendered Movant’s plea unknowing and involuntary.

The courts in Sams and Rivera also had an opportunity to assess whether or not the defendants in those cases were prejudiced by their counsels’ alleged errors. If Movant’s counsel induced him to plead guilty when he had a right to a dismissal under the UMDDL, Movant was prejudiced. Because the record before us does not refute Movant’s claim, the motion court clearly erred in refusing to grant Movant a hearing on his amended motion.

The motion court’s denial of relief is reversed and the matter is remanded for an evidentiary hearing on Movant’s amended motion.

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

      . Unless otherwise noted, all rule references are to Missouri Court Rules (2009).

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

      . While Movant frequently refers to his rights under the UMDDL as his "right to a speedy trial" and his "speedy trial” motion, the context in which these terms are used indicates that he is referring to his specific statutory rights under the UMDDL and not to his constitutional right to have his case tried without unreasonable delay.

      . Section 545.780 states:
      1. If defendant announces that he is ready for trial and files a request for a speedy trial, then the court shall set the case for trial as soon as reasonably possible thereafter.
      2. The provisions of this section shall be enforceable by mandamus. Neither the failure to comply with this section nor the state's failure to prosecute shall be grounds for the dismissal of the indictment or information unless the court also finds that the defendant has been denied his constitutional right to a speedy trial.

      . As noted by the motion court, it is well settled that a plea of guilty waives all non-jurisdictional claims of the defendant. State v. Norton, 7 S.W.3d 459, 460 (Mo.App. E.D.1999). “The general rule in Missouri is that a guilty plea waives all nonjurisdictional defects, including statutory and constitutional guaranties.” Schmidt v. State, 292 S.W.3d 574, 577 (Mo.App. S.D.2009) (quoting State v. Sexton, 75 S.W.3d 304, 309 (Mo.App. S.D.2002)).

      . As earlier indicated, this court does not reach the issue of whether Movant properly met all of the requirements set forth in the UMDDL necessary to acquire the right to have his charges either disposed of within 180 days or dismissed. If Movant is unable to prove at his evidentiary hearing his entitlement to such relief, he would have suffered no prejudice as a result of his counsel’s alleged misinformation about the effects of his UMDDL motion.


author: GARY W. LYNCH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Allan S. MCCAULEY, Defendant-Appellant.
    No. SD 29723.
    Missouri Court of Appeals, Southern District, Division Two.
    May 25, 2010.
    Motion for Rehearing and Transfer Denied June 15, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Ellen H. Flottman, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY W. LYNCH, Presiding Judge.

Appellant, Allan McCauley (“Defendant”), appeals the trial court’s judgment, following a jury trial, convicting him of three counts of aggravated stalking. See § 565.225.3. Defendant claims insufficient evidence was presented to the jury that he made a “credible” threat to the victim, as required by § 565.225.3 and as defined by § 565.225.1(2), and that, because his actions were a single, continuing course of conduct over a four-day period, convicting him of three separate offenses during that time period violated § 556.041 and constituted double jeopardy. Finding no merit in Defendant’s claims, we affirm.

Background

Over the course of four days, January 30, 2006, through February 2, 2006, Defendant called the victim numerous times at her place of employment. According to the victim, during some of these calls, Defendant threatened that she would “never make it home that evening,” that Defendant would cut her up, bust open her head, take a baseball bat after her and beat her to a pulp, and that Defendant would punch her in the face and make a tumor, which the victim had from birth, explode in her head. Also, according to the victim, Defendant threatened her saying, “I’m going to get you,” “I’m going to kill you,” and ‘You won’t make it home alive.” The victim, however, was unable to correlate any particular threat to any specific day during the four-day period.

On occasion, during these four days, the victim was unavailable to answer the phone when Defendant called, in which event his calls were transferred to the victim’s voice-mail. In those instances, Defendant left voice-mail messages that included some of his threats toward the victim. Seventeen of those messages, along with one live telephone conversation between Defendant and the victim, were captured on a digital recorder and preserved on a compact disc by an investigating law enforcement officer, Detective Chris Barb with the Springfield Police Department. That compact disc was marked as State’s Exhibit 2 during trial, admitted into evidence, and played for the jury. According to Detective Barb, these messages were left beginning on January 30, “all the way up through the 2nd of February,” and were typically left in the afternoon hours. Apparently, the voice-mail messages were both date-stamped and time-stamped.

Defendant’s telephone records, Exhibits 1 and 1A, were admitted into evidence and published to the jury. Detective Barb testified that he reviewed these exhibits and found that the dates and times of some calls shown being made to the telephone number of the victim’s place of employment from Defendant’s telephone correlated with the dates and times of the recorded voice-mail messages contained in Exhibit 2.

Defendant was charged by information and convicted on three counts of aggravated stalking, in violation of § 565.225.3: Count I for conduct on January 30, 2006; Count II for conduct on January 31, 2006; and Count III for conduct on or between February 1, 2006, and February 2, 2006. After Defendant was found guilty by a jury, he was sentenced to four years’ imprisonment on each count, with the sentences under Count I and Count II to be served consecutive to each other and concurrent to the sentence under Count III.

Discussion

On appeal, Defendant brings two points. First, Defendant claims that the trial court plainly erred in sentencing Defendant on three separate counts of aggravated stalking because this violated § 556.041, and constituted double jeopardy, in violation of the Fifth and Fourteen Amendments of the United States Constitution. Second, Defendant claims that the trial court erred in denying Defendant’s motion for judgment of acquittal at the close of the evidence because the evidence was insufficient to support a finding that Defendant made a “credible” threat to the victim as required by § 565.225.3. For ease of analysis, we address these claims in reverse order.

Sufficiency of the Evidence

When reviewing the sufficiency of the evidence, this Court must consider the evidence and all reasonable inferences reasonably drawn from the evidence in the light most favorable to the verdict. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). The test is whether the evidence, so viewed, was sufficient to make a sub-missible case from which rational jurors could have found beyond a reasonable doubt that the defendant was guilty. State v. Hopkins, 841 S.W.2d 803, 804 (Mo.App.1992). To support the conviction, the State must prove beyond a reasonable doubt that the defendant committed each element of the offense charged. State v. Johnson, 741 S.W.2d 70, 73 (Mo.App.1987).

On the relevant dates, § 565.225.3 provided that “[a]ny person who purposely and repeatedly harasses or follows with the intent of harassing or harasses another person, and makes a credible threat with the intent to place that person in reasonable fear of death or serious physical injury, commits the crime of aggravated stalking.” The making of a credible threat is the only element of the charged offenses that Defendant claims is unsupported by sufficient evidence.

A “credible threat” was defined, on the relevant dates, in § 565.225.1(2) as,

a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause physical injury to, a person and may include a threat communicated to the targeted person in writing, including electronic communications, by telephone, or by the posting of a site or message that is accessible via computer[.]

Yet, in his point and argument, Defendant has failed to identify any element in this definition that he claims is not supported by sufficient evidence. Rather, Defendant argues that “in this case, there was nothing other than the phone calls. Nothing to show that the threats made on the telephone were ‘credible.’ Nothing to show that [Defendant] was even in the State of Missouri where he could act on the threats.” This argument implicitly asks this Court to read into the credible-threat definition a requirement that is not present in the statute, i.e., a defendant’s actual present ability to perform the threatened action. While a victim’s knowledge of a defendant’s ability or inability to carry out a threat may be relevant as to whether or not the threat caused the victim to “reasonably fear for his or her safety” (emphasis added), nothing in the language of the definition requires proof that a defendant actually possessed that ability at the time the threat was made. Defendant’s second point is denied.

Multiple Counts

Defendant’s first point is reviewed for plain error.

We are not required to review for plain error; to do so is within our discretion. The two-step analysis is (1) did the trial court commit evident, obvious, and clear error affecting the defendant’s substantial rights; and (2) if so, did such plain error actually result in manifest injustice or a miscarriage of justice? Unless a defendant gets past the first step, any inquiry should end.

State v. Smith, 293 S.W.3d 149, 151 (Mo.App.2009) (internal citations omitted). Defendant has the burden of demonstrating plain error. State v. Marshall, 302 S.W.3d 720, 725 (Mo.App.2010).

In attempting to meet that burden, Defendant argues that “the three counts of aggravated stalking were a continuing course of conduct prosecuted in separate parts[.]” This is so, Defendant contends, because

the corpus of the offense was 124 telephone calls over the course of four days, the offense is defined as a course of conduct in the statute, and dividing that course of conduct into three separate parts is an artificial distinction, as illustrated by the fact that Count III covered two days while Counts I and II covered one day each.

The State, while acknowledging that aggravated stalking under § 565.225.3 defines a course-of-conduct offense, counters Defendant’s argument, asserting that, under the facts presented to the jury in this case, Defendant engaged in three separate courses of conduct each separated by a period of time in which Defendant had the opportunity to reconsider his actions. See State v. Barber, 37 S.W.3d 400, 404 (Mo.App.2001). Such separation by time, argues the State, coupled with Defendant’s making of a credible threat on each date charged, gives rise to three separate offenses.

Given these competing theories, any § 556.041 and double jeopardy analysis must start with a review of the underlying facts. Unfortunately, all of the evidence presented to the jury as to those underlying facts is not before us in the record on appeal. Defendant has not deposited Exhibits 1, 1A, or 2 with this Court, in accordance with Rule 30.05 or this Court’s special rule 4. The latter rule provides, in part, that “[a]n appellant is responsible for ensuring that all exhibits necessary for the determination of any point relied on are deposited or filed with the Court.” “Defendant had the duty to ‘file a complete record including all evidence necessary to determine all questions presented to this Court for review.’ ” State v. Tanner, 220 S.W.3d 880, 883 (Mo.App.2007) (quoting State v. Mann, 873 S.W.2d 858, 867 (Mo.App.1994)). In the absence of these exhibits, this Court infers that they would be favorable to the State’s three separate courses-of-eonduct theory and the trial court’s sentencing of Defendant on three separate offenses, and they would be unfavorable to Defendant’s theory that all of his actions over this four-day period were only one continuous course of conduct. State v. Brumm, 163 S.W.3d 51, 56 (Mo.App.2005); State v. Mitchell, 2 S.W.3d 123, 126 n. 2 (Mo.App.1999).

The application of this adverse inference precludes this Court from finding that the trial court’s sentencing of Defendant for three separate instances of aggravated stalking was the commission of evident, obvious, and clear error affecting Defendant’s substantial rights. In other words, Defendant has failed in his burden of demonstrating to us that his actions over the course of this four-day period were one continuous course of conduct. Having failed the first step in securing plain error review, our discretionary inquiry into Defendant’s claim comes to an end. Smith, 293 S.W.3d at 151. Defendant’s first point is denied.

Decision

The trial court’s judgment is affirmed.

SCOTT, C.J., and RAHMEYER, J., concur.

      . All references to statutes are to RSMo 2000, unless otherwise indicated. All references to § 565.225 are to RSMo Cum.Supp.2005.

      . Defendant concedes that he made at least 124 telephone calls to the victim during this four-day period. Defendant does not challenge that these calls purposely and repeatedly harassed victim. See § 565.225.3.

      . No verbatim record of the messages in Exhibit 2 is contained in the transcript. At the point in the trial when this exhibit was played for the jury, the transcript merely notes: "State's Exhibit 2 played.”

      . Section 556.041 provides:
      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 concedes this issue was not properly preserved for appellate review in that it was not included in his motion for new trial. See Rule 29.11(d); State v. Stephens, 88 S.W.3d 876, 880 (Mo.App.2002).

      . Defendant does not even mention the existence of these exhibits or any facts from these exhibits in his brief.

      .Because these exhibits establish the exact times of Defendant’s calls and the exact wording, tenor, and timing of some of the threats made by Defendant on each of the three days at issue, they are necessary to our determination of the validity of Defendant’s theory that his calls over this four-day period were only one continuing course of conduct, as opposed to the State's theory that his actions on each of the three days constituted three separate courses of conduct.

      . The State claims in its respondent's brief that these exhibits show that Defendant called the victim at her place of employment forty-nine times on January 30, forty-three times on January 31, starting at 1:14 p.m., and thirty-two times on February 2, starting at 1:08 p.m.; that on January 30, Defendant threatened the victim saying, "I’m gonna punch you so many times in the fuckin' face, that deal in your head’s gonna explode and I'm gonna laugh[;]” that on January 31, Defendant threatened to follow the victim home that night and said that when he caught up with her, he would use a baseball bat on her; and, that on February 2, Defendant threatened the victim by saying, "I'll blow your goddamn head right off." While we cannot verify these factual assertions without reviewing Exhibits 1, 1A, and 2, we note that Defendant filed no reply brief or in any other manner denied them. If true, these facts support the State’s three separate courses-of-conduct theory.


author: LAWRENCE E. MOONEY, Judge.

text:
    STATE of Missouri, Respondent, v. Kevin E. CARSON, Appellant.
    No. ED 91955.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 25, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 14, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Frank K. Carlson, Union, MO, for appellant.
    Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., John W. Grantham, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

The defendant appeals his judgment of conviction for the class-D felony of driving while intoxicated (“DWI”). The trial court used his prior municipal-court conviction for driving with excessive blood-alcohol content (“BAC”) to enhance the penalty he faces for DWI. The defendant challenges the use of this municipal-court BAC conviction, citing Turner v. State, 245 S.W.3d 826 (Mo. banc 2008). The defendant argues that the Missouri Supreme Court’s reasoning in Turner compels us to conclude, by logical extension, that the use of his prior municipal-court BAC conviction to enhance the penalty for DWI was in error. We agree with his argument and reverse the judgment as to the defendant’s sentence for DWI. We also conclude that he is entitled upon remand to a jury-recommended sentence.

The State charged the defendant with one count of DWI in violation of section 577.010 RSMo. (2000) in the Circuit Court of Franklin County, for events occurring on November 17, 2005. The defendant had two previous intoxication-related traffic offenses. In 1994, the defendant pleaded guilty to BAC in the St. Louis County Municipal Court, and in 1995, he pleaded guilty to BAC in the Circuit Court of Jefferson County. As a result, the State charged the defendant with a class-D felony as a persistent offender pursuant to section 577.023.1(4)(a) RSMo. (Supp.2005). The jury found the defendant guilty on July 24, 2008 of DWI, and the trial court sentenced the defendant to three years’ imprisonment.

On appeal, the defendant asserts the trial court erred in sentencing him as a persistent offender under the sentence-enhancement provisions of section 577.023. He contends that section 577.023.16 does not identify a municipal-court BAC conviction as a prior conviction for enhancement purposes. He further maintains that, if he is not a persistent offender, he cannot be a prior offender pursuant to section 577.023.1(5) because his remaining alcohol-related offense occurred more than five years before the charged offense.

The issues presented are purely legal. We review matters of statutory interpretation and whether a statute applies to a given set of facts de novo. White v. Tariq, 299 S.W.3d 1, 3 (Mo.App. E.D.2009).

The Defendant’s Municipal BAC Conviction

The defendant argues that Turner requires us to reverse the defendant’s conviction and remand for jury sentencing as a class-B misdemeanor. In Turner, Judge Stephen Limbaugh, writing for a unanimous Supreme Court, determined that provisions of section 577.023 RSMo. (2000 and Supp.2004) governing the proof of pri- or offenses conflicted with each other, creating an ambiguity that the Court could not resolve through application of other canons of statutory construction. 245 S.W.3d at 828-29. Therefore, the Court resorted to the rule of lenity, and interpreted the statute in the defendant’s favor. Id. at 829. The Court held that prior municipal offenses resulting in a suspended imposition of sentence (“SIS”) could not be used to enhance punishment under then-section 577.023.14 RSMo. (2000 and Supp.2004). Id.

At the time of the offense charged in this case, section 577.023 contained these definitional provisions, which clearly include a municipal-court BAC conviction:

1. For purposes of this section, unless the context clearly indicates otherwise:
* * *
(3) An “intoxication-related traffic offense” is driving while intoxicated, driving with excessive blood alcohol content, involuntary manslaughter pursuant to subdivision (2) or (3) of subsection 1 of section 565.024, RSMo, murder in the second degree under section 565.021, RSMo, where the underlying felony is an intoxication-related traffic offense, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo, assault of a law enforcement officer in the second degree pursuant to subdivision (4) of subsection 1 of section 565.082, RSMo, or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing;
(4) A “persistent offender” is one of the following:
(a) A person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses;
(5) A “prior offender” is a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged.

(Emphasis added).

But the same statute also contained this subsection, which makes no mention of a municipal-court BAC conviction:

16. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon. A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.

(Emphasis added).

Thus, section 577.023.1(3), defining “intoxication-related traffic offense,” and section 577.023.1(4)(a), defining “persistent offender,” purport to permit the use of municipal-court BAC convictions to enhance punishment, while section 577.023.16 does not include such a conviction among those that a court can use for that purpose. Sections 577.023.1(3) and (4)(a) expressly address the offense in question— the defendant’s 1994 guilty plea to BAC in the St. Louis County Municipal Court. Section 577.023.16 also addresses the municipal BAC offense, “albeit by necessary implication.” See Turner, 245 S.W.3d at 828.

“The last sentence of subsection [16] delineates those offenses that ‘shall be treated as a prior conviction’ in order to enhance punishment.” Id. The list expressly includes “[a] conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated.” Section 577.023.16 (emphasis added). The list does not include a plea of guilty to BAC in municipal court. See id. The necessary implication is that a guilty plea to BAC in municipal court cannot be treated as a prior conviction in order to enhance punishment. See Turner, 245 S.W.3d at 828. The Turner Court reasoned that:

[T]he list does not include a plea of guilty or a finding of guilty followed by a suspended imposition of sentence in municipal court, which is not a conviction. The necessary implication, then, is that a municipal plea of guilty followed by a suspended imposition of sentence cannot be used to enhance punishment.

Id. (Emphasis in original). Therefore, we follow the Supreme Court’s decision in Turner, and likewise apply the rule of lenity to conclude that a municipal-court BAC cannot be treated as a prior conviction under section 577.023.16 for punishment-enhancement purposes.

We note that our Western District colleagues reached a congruent conclusion in Denbow v. State, 309 S.W.3d 831 (Mo.App. W.D.2010). In Denbow, the Court concluded that the pre-2008 version of section 577.023 plainly allowed use of a state-court BAC conviction for punishment-enhancement purposes. 309 S.W.3d at 833-35. But the Court also observed that subsection 16 limits prior municipal-court convictions available for sentence enhancement to those for DWI. Id. at 834-36. The Denbow Court concluded that “[A]s in Turner, we assume that the legislature intentionally chose to define the prior convictions which justified sentence enhancement differently, depending on the court in which those prior convictions were entered.” Id. at 836.

The State advances numerous attacks on this extension of Turner ’s reasoning. We shall address each in turn.

The State initially contends that Turner does not govern this case because Turner did not deal with municipal-court BAC convictions. While this rather narrow observation may be true, we are bound to follow Turner ⅛ reasoning, which is that a disposition not expressly delineated in section 577.028.16 cannot, by necessary implication, be treated as a prior conviction in order to enhance punishment. Because section 577.023.16 does not include municipal-court BAC offenses among the dispositions a court can use to enhance punishment, Turner requires us to conclude that prior municipal-court BAC offenses cannot be used to enhance punishment under section 577.023, as in effect at the time of the offense charged in this case.

Second, the State argues that Turner’s holding should not be expanded to apply to municipal-court BAC convictions because the legislature amended the statute shortly after the Turner decision. The State asserts that the legislature’s 2008 amendment, made soon after Turner, “demonstrate[s] that Turner is not a reliable guide to the statutory construction of section 577.023.” The legislature amended the last sentence of section 577.023.16 RSMo. (Supp.2008) to provide that:

A plea of guilty or a finding of guilt followed by incarceration, a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in any intoxication-related traffic offense in a state, county or municipal court or any combination thereof, shall be treated as a prior plea of guilty or finding of guilt for purposes of this section.

The State asks us to presume that the 2008 amendment was a direct response to Turner. But we do not know whether the legislature intended to abrogate Turner’s holding or simply to change the law. The State points to nothing in the legislative record to cause us to draw the inference the State urges. Therefore, we decline to do so.

Third, the State seeks to escape the holding of Turner by arguing that other canons of statutory construction resolve the statute’s ambiguity, so the rule of lenity should not apply. While Turner addressed a clear conflict between the terms “suspended imposition of sentence” and “conviction,” the State first asserts, no such clear conflict exists in this case in reading “driving while intoxicated” to include “driving with excessive blood-alcohol content.” But we have already identified a clear conflict. Section 577.023.1(3), defining “intoxication-related traffic offense,” and section 577.023.1(4)(a), defining “persistent offender,” purport to permit the use of municipal-court BAC convictions for sentence enhancement, while section 577.023.16 does not include such a conviction.

Third, the State urges us to resolve any ambiguity by looking at the statute as a whole, and specifically at the definition of intoxication-related traffic offense. However, the Supreme Court has already concluded that examination of the whole act does not allow us to discern the legislature’s intent with regard to section 577.023. In Turner, the Supreme Court specifically determined, “But these [other canons of construction], too, are fruitless, because the purpose of the act and the problem to be remedied are the essence of the ambiguity itself.” 245 S.W.3d at 829. The statute as a whole sets forth conflicting solutions, one that includes all intoxication-related traffic offenses in determining persistent-offender status and one that does not. As the Turner court remarked it is “difficult to ascertain the problem to be remedied where the statute sets out conflicting solutions.” Id.

Fourth, the State argues that we must presume the legislature did not intend absurd results by allowing the use of municipal-BAC convictions to determine persistent-offender status while simultaneously prohibiting their use to prove persistent-offender status for punishment enhancement. Yet the Turner Court concluded with regard to municipal SIS dispositions what we conclude as regard municipal BAC convictions. And the Turner court expressed no concern that its resolution was absurd. The Court here, as in Turner, is faced with an ambiguous statute. The fact that a statute is inexact is certainly unfortunate. But that misfortune is not of the judiciary’s making. The Court must resolve the ambiguity, here by the rule of lenity. It is not absurd for a Court to choose between the two ambiguous meanings present in a statute. In essence, the State fails to distinguish between an absurd result, which this is not, and an undesirable result, which this may be.

The State grasps for its flimsiest straw by contending that BAC is merely a species of DWI. The State urges us to construe the intoxication-related offense statutes in pari materia. Given that a blood-alcohol content greater than .10 percent constitutes prima facie evidence of intoxication, the State argues, BAC is simply a type of driving while intoxicated. We reject this novel contention. If it were true, then the legislature would have had no reason to separately identify both “driving while intoxicated” and “driving with excessive blood alcohol content” as “intoxication-related traffic offense” in section 577.023.1(3).

We do find, however, one canon of construction that proves helpful. The maxim expressio unius est exdusio alterius means the expression or inclusion of one thing implies the exclusion of the other or of the alternative. Black’s Law Dictio-naky 602 (7th ed.1999). The maxim teaches that where a statute designates a form of conduct, its manner of performance and operation, and the persons and things to which it refers, there is an inference that all omissions are understood as exclusions. 2A NoRman J. SingeR & J.D. Shambie Singer, Statutes and Statutory Construction sec. 47:23 at 398-404 (7th ed.2007). When the items expressed are members of an associated group or series, they justify the inference that the legislature deliberately excluded items not mentioned. 2A id. at 405-12. A statute that provides a thing shall be done in a certain way — such as counting municipal convictions for DWI as prior convictions for punishment enhancement — implicitly prohibits doing that thing any other way — such as counting municipal convictions for BAC as prior convictions. 2A id. at 412-13.

The maxim’s force is strengthened where a thing is provided in one part of the statute and omitted in another, 2A id. at 417, which is precisely the conflict we confront. On one hand, section 577.023.1(3) lists the specific offenses that constitute intoxication-related traffic offenses, including BAC. On the other hand, section 577.023.16 omits municipal-court BACs from those offenses it identifies as prior convictions for punishment enhancement. Turner, 245 S.W.3d at 828. Thus, the canon of expressio unius est exclusio alterius reinforces our conclusion that pri- or municipal-court BAC offenses cannot be used to enhance punishment under section 577.023.16.

Essentially, the Supreme Court decided Turner on the basis of expressio unius est exclusio alterius. The logic of the maxim underlies the Supreme Court’s determination that certain dispositions, there a municipal-court SIS, were excluded by necessary implication from subsection 14, now subsection 16, because such dispositions were not listed therein. Id.

Finally, arguing that section 577.023.16 is procedural only, the State asserts that the 2008 version of subsection 16 applied to the defendant’s trial in July 2008. We disagree. Section 1.160 RSMo. (Supp. 2009) provides that:

No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except that all such proceedings shall be conducted according to existing procedural laws.

(Emphasis added.) Thus, only if section 577.023.16 is a procedural provision can the 2008 amendment apply to the defendant’s trial and allow for enhanced punishment. Subsection 16, however, contains both procedural and substantive elements. But Turner construed the last sentence of what is now subsection 16 to be substantive when it declared that it “delineates those offenses that ‘shall be treated as a prior conviction’ in order to enhance punishment.” 245 S.W.3d at 828. We are bound by the Supreme Court’s interpretation, and cannot apply the 2008 amendment to the defendant’s case.

Because section 577.023.16 excludes by necessary implication municipal-court BACs and thus conflicts with other parts of section 577.023, the statute is ambiguous. In accordance with Turner, we apply the rule of lenity, and hold that the defendant’s 1994 municipal-court BAC cannot be treated as a prior conviction in order to enhance his punishment pursuant to section 577.023.16. Without consideration of the municipal-BAC offense, the defendant does not qualify as a persistent offender pursuant to section 577.023.1(4)(a). Likewise, the defendant does not qualify as a prior offender pursuant to section 577.023.1(5) because his remaining intoxication-related traffic offense occurred more than five years before the charged DWI.

The Defendant’s Remedy

We have determined that section 577.023.16 does not allow the trial court to treat the defendant’s municipal-court BAC as a conviction for punishment-enhancement purposes as a persistent offender. We have also determined that, without consideration of the municipal-court BAC, the defendant does not qualify as a prior offender under section 577.023.1(5). We now must resolve the question of the proper remedy.

Two principal consequences accompany a repeat-offender finding for intoxication-related traffic offenses. A defendant becomes subject to an enhanced sentence for a second or subsequent intoxication-related traffic offense. Section 577.023. Here, the defendant was charged with, and sentenced for, a class-D felony rather than for a elass-B misdemeanor. A prior- or persistent-offender also loses the right to a jury-recommended sentence. Section 577.023.13. Injury-recommended sentencing, the jury sets the ceiling on the sentence that a defendant will receive. State v. Emery, 95 S.W.3d 98, 102 (Mo. banc 2003). The judge can impose a lesser sentence, but cannot exceed the punishment the jury recommends. Id.

The defendant requests that we remand for jury-recommended sentencing. He argues that he repeatedly objected to the use of the municipal-court BAC to enhance the instant DWI charge to a class-D felony along with the corresponding exposure to felony penalties. The State counters that, in the event this Court reverses the judgment and remands for sentencing, then the trial court is entitled to sentence the defendant without a jury recommendation. Citing Emery, the State argues that the defendant waived his right to a jury-recommended sentence because he neither asserted a right to jury-recommended sentencing nor objected to judge-imposed sentencing without a jury recommendation.

In Emery, the State charged the defendant as a prior and persistent offender pursuant to sections 558.016 and 557.036.4 RSMo. (2000), but then failed to present any evidence of the defendant’s alleged prior felony DWI offenses. Id. at 100. Nonetheless, the trial court sentenced Emery without a jury recommendation as to sentence, in the manner prescribed for a prior or persistent offender. Id. at 99. The defendant did not address either the prior- and persistent-offender issue or his right to jury-recommended sentencing in the trial court. Id. at 102-03. The Supreme Court remanded the case for resen-tencing, but held that the State could not have a second chance to prove Emery’s prior- or persistent-offender status because to do so would violate the timing requirements of section 558.021.2 RSMo. (2000). Id. at 101-02.

The Court further determined that Emery was not entitled to jury-recommended sentencing on remand because he waived that right when he allowed the judge to determine his sentence without raising his right to a jury recommendation. Id. at 102-03. The Court reasoned that had Emery timely raised the issue of the State’s failure to offer evidence of his prior- and persistent-offender status, the State could have offered appropriate evidence, which if proved, would have subjected Emery to a greater sentence. Id. at 103. Emery, however, “chose to sit on his statutory right,” and thus waived his right to jury-recommended sentencing. Id.

But in State v. Teer, 275 S.W.3d 258 (Mo. banc 2009), the Supreme Court remanded for resentencing in accordance •with the jury’s recommendation where the trial court made an untimely prior-offender finding. Id. at 262. The State moved to amend the information during trial to charge Teer as a prior felony offender. Id. at 260. Unlike the defendant in Emery, but like the defendant in the instant appeal, Teer objected to the State’s efforts to classify him as a prior offender. Id. at 263 (Fischer, J., concurring). The trial court sustained the State’s motion while the jury deliberated. Id. at 260. The jury then returned its verdict and recommended sentences on each of five counts. Id. Thereafter, the trial court found that Teer was a prior offender and sentenced him to far longer terms of imprisonment on each count. Id. The Supreme Court reversed the judgment as to Teer’s sentences because section 558.021.2 RSMo. (1994) provided that prior-offender status must be pleaded and proved before the court submitted the case to the jury. Id. The Court reversed and remanded for re-sentencing consistent with the jury’s recommendation, and free from the sentence enhancement applicable to a repeat offender. Id. at 262.

The instant case is distinguishable from Emery and more akin to Teer. In Emery, the defendant failed to present to the trial court either the State’s lack of evidence of prior- and persistent-offender status or his right to jury-recommended sentencing. Id. at 102-03. Thus, Emery waived his right to jury-recommended sentencing and failed to preserve the issue for appellate review. But here, the defendant, like Teer, objected in the trial court to the sufficiency of the State’s evidence to support a persistent-offender finding. Indeed, he repeated his objections. The defendant moved to strike that portion of the information charging him as a persistent offender based on his municipal-court BAC. He maintained a continuing objection during trial. He included the issue in his motions for judgment of acquittal at the close of the State’s evidence and at the close of all the evidence. He raised the issue in his motion for new trial, wherein he expressly objected to the use of the municipal offense to enhance the charge against him and to expose him to felony penalties. Again, one of the two principal consequences resulting from enhancing the charge against the defendant from a class-B misdemeanor to a class-D felony was the loss of jury-recommended sentencing. We construe his objection to the proof of his prior- and persistent-offender status to include an objection to his loss of jury-recommended sentencing. The defendant did not sit on his statutory rights and did not waive his right to a jury-recommended sentence. Furthermore, the defendant clearly suffered prejudice because the court sentenced him to three years’ imprisonment for class-D felony DWI rather than for a term not to exceed six months for class-B misdemeanor DWI. Section 558.011. Thus, we conclude that the defendant is entitled to a jury-recommended sentence on remand.

Conclusion

We reverse the judgment as to the defendant’s sentence for class-D felony DWI, and remand for jury-recommended sentencing within the range of punishment for the class-B misdemeanor of driving while intoxicated. In all other respects, we affirm the judgment.

GLENN A. NORTON, P.J. and MARY K. HOFF, J., concur.

      . All statutory references are to RSMo. (Supp 2005) except as otherwise indicated.

      . At the time of the offense charged in Turner, section 577.023.14 RSMo. (2000 and Supp.2004) contained language identical to section 577.023.16 RSMo. (Supp.2005).

      . The legislature again amended this sentence in 2009 to add the words “a fine,” after the word "incarceration." Section 577.023.16 RSMo. (Supp.2009). The amended language remains confusing. First, this last sentence is out of place in subsection 16, which otherwise is procedural in instructing the court when and in what manner to hear evidence to make its repeat-offender determination. Second, it serves no discernible purpose. The relevant offenses are listed in the definitional instructions for "intoxication-related traffic offense," "persistent offender,” and "prior offender.” Third, the statute remains ambiguous. Subsection 16’s current language indicates that a plea of guilty or a finding of guilt, when "followed by” certain dispositions, triggers the enhancement of sentences. But the definitional instructions make clear that it is only the plea or finding of guilty that is relevant. The definitional instructions make no mention of the disposition of the prior charge. Thus, a defendant who pleaded to DWI and then committed a new DWI while awaiting sentencing on the first DWI could be properly charged as a prior offender under the definitional instructions. But such a defendant, given the wording of Subsection 16, would not be a prior offender because the disposition of his prior plea of guilty had not occurred before he committed the new offense. Previous sentences or other dispositions are immaterial to the prior- and persistent-offender determination and resulting sentence enhancement in the general felony context, from which section 577.023 borrowed its procedural subsections. See sections 558.016 RSMo. (Supp.2009) and 558.021 RSMo. (2000).

      . Section 577.037.1 RSMo. (Supp. 1993), the version of the statute in effect at the time of the defendant’s municipal-BAC offense.

      . The legislature adopted the current version of section 1.160 in 2005, and this language was in effect at the time of the defendant’s 2008 trial.

      . We thank both counsel for the State and the defense for the superior quality of their briefs and argument.