author: REINHARD, Presiding Judge.

text:
    Robert Cornelius THOMPSON, Appellant, v. STATE of Missouri, Respondent.
    No. 39634.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 17, 1979.

      William J. Shaw, Public Defender, James W. Whitney, Patrick Sanders, Asst. Public Defenders, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Richard Thurman, Asst. Attys. Gen., Jefferson City, George R. Westfall, Pros. Atty., Fran Carpini, Asst. Pros. Atty., Clayton, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his jury conviction for the sale of a Schedule I controlled substance, to-wit: heroin. § 195.020, RSMo (1969). He was sentenced under the Second Offender Act to five years imprisonment, said sentence to run concurrently with the two year sentence for burglary he previously received.

On appeal, defendant does not challenge the sufficiency of the evidence. It is therefore unnecessary to recite the facts surrounding the alleged sale to St. Louis County narcotics agents.

Defendant’s first point on appeal is directed to the trial court’s sustaining of an objection to defense counsel’s following comment during the voir dire examination of prospective juror Horan:

“All right. One of the other things that might come into play here is an instruction concerning the range of punishment in this case.”

We find no error in the court’s ruling for while counsel is permitted reasonable latitude in examining prospective jurors, the trial court has considerable discretion in the control and conduct of the voir dire examination. An appellate court will interfere only when the exercise of that discretion shows a manifest abuse and a real probability of injury to the complaining party. State v. Mudgett, 531 S.W.2d 275[2] (Mo. banc 1975); State v. Hines, 567 S.W.2d 740[3] (Mo.App.1978). Counsel may not tell the veniremen what the court’s instructions will be, nor may counsel inform the jury of the law applicable to the case. State v. Knapp, 534 S.W.2d 465[4] (Mo.App.1975).

In the present instance, the jury panel had already responded affirmatively to the court and prosecuting attorney’s inquiries regarding their willingness and ability to follow the law. Although defense counsel made no record regarding the purpose of this question, defendant now claims the court’s ruling prevented him from ascertaining the views of the prospective jurors as to punishment. Defendant contends that since the allegations as to the Second Offender Act are matters to be properly pleaded and proved, and because the punishment issue is still within the jury’s province until the prior conviction has been proved by the State, that he had the right to know the prospective jurors’ views regarding punishment.

Even assuming a defendant is entitled to question the members of the panel regarding their views on punishment during voir dire, in order to intelligently make peremptory challenges and discover bias, counsel may not inform the jury of the court’s instructions. As the prior conviction was subsequently proved by the State without objection, the jury had no opportunity to determine punishment. It is evident that defendant was not prejudiced in any way by prohibiting defense counsel’s comment to the panel.

Defendant next contends that the trial court erred by admitting into evidence the heroin capsules exhibited at trial as those allegedly purchased from defendant and subsequently analyzed and found to contain heroin, because the State failed to establish an adequate chain of custody. Our review of the evidence convinces us otherwise. Following the heroin sale, St. Louis County Police Officer Woodland returned to the Department of Drug Abuse, packaged the heroin capsules in an envelope, wrote his name and defendant’s name on the envelope, sealed and taped the package and locked this evidence in his own evidence locker. Woodland testified that, on his next working day, he removed the envelope from his locker, noted that it was in the same condition as when he placed it there, and took the envelope to the laboratory for chemical analysis of the capsules. Woodland conveyed the envelope to a chemist at the laboratory who placed his initials on the envelope and assigned the evidence a laboratory number. Although this chemist did not testify at trial, Robert Roither, Director of the St. Louis County Police Laboratory, testified that he received the evidence that same day from the receiving chemist for purposes of analysis. Roither stated that the envelope was sealed when received by him, and that the name of defendant, Woodland, the chemist’s initials and the laboratory number, all appeared on the envelope.

Because the chemist to whom Officer Woodland had given the envelope (and from whom Roither had received the envelope for analysis) was not called to testify at trial, defendant argues that the envelope was not properly identified as containing the capsules seized from defendant so as to establish an adequate chain of custody. There is no merit to this claim. The state is not required to account for the hand to hand custody of evidence in order to establish the chain of custody, nor to exclude every possibility that an exhibit had been disturbed. State v. Lang, 536 S.W.2d 52[6] (Mo.App.1976); State v. McClain, 536 S.W.2d 45[3, 4] (Mo.App.1976); State v. Heather, 498 S.W.2d 300[10] (Mo.App.1973). Rather, it is sufficient if the evidence demonstrates with reasonable assurance that the exhibit was the same and in identical condition. State v. Baines, 394 S.W.2d 312[7] (Mo.1965); State v. Duncan, 540 S.W.2d 130[20] (Mo.App.1976). The evidence of continuous possession established by the testimony of Officer Woodland and Laboratory Director Roither provides such reasonable assurance. See State v. McCrary, 478 S.W.2d 349[2] (Mo.1972) and State v. Pernell (Mo.App.E.Dist. Feb. 27, 1979).

Judgment and sentence affirmed.

GUNN and CRIST, JJ., concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Lee LENZA, Defendant-Appellant.
    No. 39114.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 24, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Application to Transfer Denied July 17, 1979.

      Donald L. Wolff and Paul J. Passanante, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jeff W. Schaeperkoetter, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., James Hartenbach, Asst. Pros. Atty., Julius D. Cosentino, Clayton, for plaintiff-respondent.
   STEWART, Judge.

Defendant, Michael Lee Lenza, was convicted of the crime of murder in the second degree as a result of the death of his former wife, Tina Lenza. The jury fixed his punishment at life imprisonment. Defendant appeals from the judgment entered upon the jury verdict. We affirm.

Defendant presents eleven issues for our consideration. We will not consider the points in the order in the brief but will sometimes refer to them as numbered in the brief. We consider first defendant’s contention that “The State failed to make a submissible case in that it was not shown that the alleged victim died as a result of the criminal agency of the appellant.”

In determining this issue we view the evidence in the light most favorable to the verdict. We accept as true all of the evidence, circumstantial and direct, tending to prove defendant’s guilt, together with all favorable inferences that can reasonably be drawn from that evidence and disregard all evidence and inferences to the contrary. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977).

With these principles in mind we review the facts pertinent to this issue. The facts necessary to the determination to other issues will be related as those issues are discussed.

Tina Lenza died on Friday, December 12, 1975. Her body was found in a bathtub on the second floor of the home of her parents where she was living. The tub was full and Tina’s head was under the water face up.

An autopsy revealed a dark red hemorrhage or contusion to the right side of the head in the temporal parietal area; a three inch vertical fracture to the back of the skull in the left occipital area. There were also numerous contusions on the inferior surface of the brain along the base and on the cerebellum. The fracture was most likely caused by the head striking .something relatively flat while moving with a fair amount of force rather than something striking the head. The injury was consistent with the head striking a floor or the rounded surface of a bath tub. The injury would be more likely to occur if one were to fall without breaking the fall. There was no evidence that Tina had tried to break a fall. There were no bruises to her elbows, arms or hands. The contusion to the right side of the head resulted from a much less severe force than the force that caused the skull fracture.

The autopsy also revealed edema, fluid and congestion in the lower lobes of the lungs. The tracheal-bronchial tree was partially filled and contained a bloody mucous. It was the opinion of the medical examiner that the primary cause of death was drowning.

The defendant and Tina Lenza had been married and living in Columbia. They had two children, one of early school age and the other eight months of age. They returned to St. Louis prior to April of 1975 after marital problems developed. Household goods and personal items were brought to the home of Tina’s parents, Robert and Beverly Wolff, and stored in the basement. Defendant had been forbidden to enter the Wolff home. When he came to pick up the children he waited on the porch. During the summer Tina went through the items that were stored in the basement and set some things belonging to defendant out on the front porch where he picked them up.

A decree dissolving the marriage of Tina and defendant had been entered on November 14, 1975. A stipulation had also been filed. Tina was granted primary custody of the children and defendant was given some temporary custody of the children. The grant of temporary custody did not include Fridays. There was no provision giving him any of the household goods.

On Friday, December 12, Tina had planned to take her step-grandfather, Kenneth Nelson, Christmas shopping. Mrs. Wolff and the Lenza children were going to the Nelson home so that Mrs. Wolff could stay with Mrs. Nelson, her invalid mother, and watch the children while Tina and Mr. Nelson were shopping. Mr. Nelson spoke with Tina by telephone between 10:30 and 11:00 o’clock A.M. and was advised that Tina was waiting for her mother to return home; that they would “be right down.”

Mrs. Wolff had a job interview at 10:00 o’clock that morning. From the job interview she went to the home of a friend and neighbor, Mrs. Gravatt. She arrived there about 10:45 A.M. When Mrs. Wolff noticed it was 11:35 she hurried to leave because she was to pick up Tina and the children and be at the Nelson’s around noon. Mrs. Wolff was in ⅜ good mood as she backed out of the driveway and headed home. The Wolff home was just a few minutes away. Mrs. Wolff was wearing her leather coat.

About 10:20 A.M. defendant called his employer stating that he was sick and would not report for work. Because of shortage of help the supervisor had one of the other employees call defendant at home to see if he could possibly come to work. Defendant’s brother answered and said that defendant was not home. It was payday but defendant did not pick up his check.

Alicia, Tina’s sister was living at home. She was leaving for work at 7:45 A.M. when she last saw Tina alive. Tina and Mrs. Wolff were seated at the table in the family room. Tina had thick long black hair which went below her waist. She washed her hair every two or three days. It would take her about two hours to dry her hair using an electric dryer. She had washed her hair the night before and it was done up in a bun on top of her head.

Alicia returned home for lunch at about 11:50 A.M. She parked her car in front of: the house and went along side of the house to the rear. As she started up the stairs to the back porch she saw defendant inside the house. He was near the rear door rolling a barrel toward the open door. This barrel was a cardboard or fiber drum about 36" in height and 22" in diameter. It had a steel lid with a rim or ring that locked the lid onto the barrel. Defendant rolled the barrel out the door. When he saw Alicia he said “Hi”. He struggled in lifting the barrel as if it was heavy. He then came down the steps carrying the barrel. He lost his balance but held onto the barrel and regained his balance. As he got to the bottom of the stairs Alicia went up the stairs and into the house. She went through the house looking for someone. When she got into the living room at the stairway leading to the second floor she heard the shower running. She went to the bathroom on the second floor. The bathroom door was standing open, the shower door was closed and the shower was running. She called for Tina and when there was no response she opened the shower door and saw her sister, apparently dead. Tina was nude, her hair was down covering her face, which was facing upward under the water. It was later learned that Tina was wearing earrings and had a ring on her hand. Alicia turned the water off and noticed that it was cool. She then closed the shower door and ran to a next door neighbor for help. As she was returning with the neighbor she saw defendant get into his van that was parked in the alley. The alley has only one exit and the van was faced toward the exit.

Tina’s body was removed by firemen who made attempts at resuscitation. The tub was then one-half to three-quarters full of water. A wash cloth had been forced into the drain. The water was clear and the soap dish was dry.

A search of the house revealed that the glass panel in the rear door nearest the knob and lock had been broken out. The glass was found in a trash bag. The baby was asleep in the dining room in a porta-crib with the sides down. His fresh clothing was laid out on the table in the family room. The baby’s diaper bag was on the couch in the living room. The leather coat that Mrs. Wolff had been wearing when she left Mrs. Gravatt was also on the couch. The light next to the chair in the family room and the television set were on and Tina’s knitting was on a table next to the chair. Tina’s glasses were found on the floor under the television set. A key to the apartment the Lenza’s had occupied in Columbia, Missouri was also found on the floor of the family room.

The clothes Tina had been wearing in the early morning were found on the bed in her bedroom on the second floor. Her shoes, socks and underwear were found on the bathroom floor. There were some clean clothes on the hamper in the bathroom.

A search of the basement revealed that fruit jars that had been stored in the barrel that defendant carried out were stacked in the basement. None of the household goods stored in the basement had been disturbed nor were any other objects missing from the Wolff household.

The defendant was arrested in Columbia, Missouri.

Neither Mrs. Wolff nor the barrel have been seen since the date of Tina’s death.

Defendant did not take the stand in his own behalf.

Where, as here, there are no eye witnesses and the State must rely on circumstantial evidence, the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt. They must also be inconsistent with and exclude every reasonable hypotheses of his innocence. The circumstances do not have to be absolutely conclusive of guilt nor do they have to demonstrate the impossibility of innocence. The existence of other possible hypothesis is not sufficient to remove the case from the jury. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977).

Defendant, relying primarily on State v. Lane, 497 S.W.2d 207 (Mo.App.1973), argues that his presence “at the scene of the crime and that he possessed the opportunity to commit the crime is not circumstantial evidence sufficient to justify a conviction.”

Contrary to defendant’s argument we find that there was sufficient circumstantial evidence to require submission of the case to the jury. We agree that mere presence at the scene is not ordinarily sufficient circumstantial evidence to warrant submission. State v. Lane, supra. However, in this case, defendant was present inside the Wolff home, a place that was forbidden to him. The marriage of the parties had just been dissolved; the settlement left him with none of the possessions acquired during the marriage. There is evidence from which the jury could find that there was ill feeling toward the victim. The fact that the glass was broken from the door tends to show a violent and unwelcome entry. Defendant, who was not ill, advised his employer that he was sick, indicates some purpose in going to the victim’s house. The circumstances surrounding the victim’s death indicate a violent death that was not self-inflicted. The side of her head showed signs of having been struck by a blow to the head. Her glasses were found on the floor under the television set, a place where they would not be expected to have been placed voluntarily. She had a fracture to the back of the skull and showed no sign of attempting to break a fall indicating a force other than an accidental fall.

Tina was expected to leave the house upon the arrival of her mother. The baby’s clothes were set aside preparatory to dressing him at the last minute. His diaper bag was placed on the couch where it could be taken on the way out indicating that Tina planned a hurried exit on the arrival of her mother. She would not have left the sides of the baby’s crib down while showering.

The jury could find that she did not get into the tub of her own volition. Her hair was down, she had washed it the day before and it required two hours to dry. Considering her plans for the day it is highly unlikely she would wet her hair. Her finger nails were freshly painted and she was wearing earrings, neither consistent with taking a shower. The jury was warranted in finding that the wash cloth was stuffed in the drain to prevent water from escaping and the shower was running. It is not likely that one would stop the drain while taking a shower. The bathroom door was standing open, an unlikely circumstance for a person occupying a bathroom.

When defendant was seen leaving the house he was rolling the barrel. He then lifted it with some difficulty and struggled with it as he negotiated the stairs. There was obviously something of considerable weight in the barrel. Aside from the barrel no personal items were missing from the Wolff home. There is evidence that Mrs. Wolff had entered the house 10 to 15 minutes before defendant was seen leaving with the barrel. Her ear was parked at the house and the coat she had been wearing when last seen was found on the couch in the living room. The jury could find that the burden in the barrel was Mrs. Wolff. Considering the above facts with the fact that defendant fled to Columbia, Missouri, there was sufficient evidence from which a jury could find that Tina Lenza was killed by drowning by the criminal agency of defendant. See State v. Lusk, 452 S.W.2d 219, 222 (Mo.1970).

Defendant asserts that the court erred in giving instruction Number 7, murder in the second degree, MAI-CR 6.06 and instruction Number 9, manslaughter, MAI-CR 6.08 for the reason that the evidence did not support the submission of these instructions. As we understand defendant’s point, this contention has been effectively answered under the first issue just discussed.

If it is defendant’s contention by this point that the 'court erred in “instructing down” after giving an instruction on murder in the first degree the issue has been answered by State v. King, 577 S.W.2d 621 (Mo.1979) and requires no further discussion.

Defendant contends that it was error to admit evidence of the disappearance of Beverly Wolff because it constitutes evidence of a crime other than the crime with which he was charged. Defendant cites State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 923 (1947) for the proposition that, “Evidence of other crimes, when not properly related to the cause on trial, violates defendant’s right to be tried for the offense for which he is indicted.” In Shilkett the defendant shot the victim under circumstances that were susceptible of innocent explanation of accident. The court held that it was not error to admit evidence of the belligerency of defendant and of his use of the gun on two occasions earlier in the day at places other than the place where the victim was killed. The court recognized the exception to the general rule “where the evidence of such other crimes tends to establish the absence of mistake or accident.” Id. 204 S.W.2d 923. In the case at bar, as in Shilkett, it was urged by defendant in the trial court that Tina’s death was accidental. The fact that defendant came out of the house heavily laden with the barrel along with the further facts that when last seen Mrs. Wolff was headed home at a time that would coincide with defendant’s presence in the house, her leather coat was found on the couch, her car was parked in front of the house and that she was not seen again would tend to show that the appearance of accident was contrived and that Mrs. Wolff’s disappearance would prevent discovery of the true facts.

From what we have said above the evidence was also admissible as part of a continuous occurrence intimately connected with the crime for which defendant was being tried. State v. Garner, 530 S.W.2d 420, 423 (Mo.App.1975).

Defendant next challenges the information in lieu of indictment upon which the case went to trial. The information in question was filed before our Supreme Court had ruled State v. Duren, 547 S.W.2d 476 (Mo.1977). The ease was tried thereafter. Before the trial began the court announced that in view of recent opinions the defendant, if found guilty as charged, would be assessed punishment in accordance with § 559.011. He referred to the charge as murder in the first degree.

The information upon which the case was tried states facts which bring it within the provisions of § 559.005, capital murder. By § 559.009 capital murder is punishable by death. The Supreme Court in State v. Duren, supra held that §§ 559.005 and 559.009 were unconstitutional. It also held that an indictment or information charging capital murder was viable under § 559.011 as charging murder in the first degree and that the crime was punishable as murder in the first degree, life imprisonment, except that a person convicted under the statute would not be eligible for probation or parole for fifty years. The statement of the trial court did not change the form or content of the information, it merely recognized the legal effect of Duren. See also State v. Thomas, 579 S.W.2d 145 (Mo.App.1979).

Defendant next complains that the court erred in permitting the State “to voir dire the jury panel on the issue of their ability to assess punishment for murder in the first degree at life imprisonment without probation or parole for fifty years for the reason that it was not a matter with which the jury would be concerned in deciding the case.” (emphasis added)

This issue was not presented to the trial court in the motion for new trial. The only reason given in the motion for new trial was that the comment of the State was inconsistent with Instruction No. 5. The issue now presented to us has not been preserved to our review. State v. Blankenship, 536 S.W.2d 520 (Mo.App.1976).

The next point relied on reads:
“The trial court committed prejudicial and reversible error in overruling appellant’s motion to suppress evidence relating to the search of his premises at 1015 Rayburn and allowing, over appellant’s objection, evidence obtained pursuant to that search to be admitted into evidence and considered by the jury.”

This point fails to tell us wherein and why it is claimed the motion to suppress should have been sustained, what evidence was admitted and wherein and why it was error to admit that evidence. The point does not comply with Rule 84.04(d) and will not be considered. Thummel v. King, 570 S.W.2d 679, 685 (Mo.1978).

Defendant complains of the admission of testimony of Officers Higgins and Wren. The officers testified that a surveillance was placed on defendant’s home after they learned of Tina’s death and the disappearance of Mrs. Wolff. They observed defendant’s brother, Douglas, go to the house and remove a large amount of clothing. They followed Douglas to a shopping center where he bought flashlights and a safety razor. They continued to follow Douglas until he appeared to sense that he was being followed. He took evasive action and eluded the officers.

We question whether defendant has preserved anything for review for the reason that the testimony of Officer Wren was received without objection and only a general objection was made to the testimony of Higgins. Defendant attacks the relevancy of the above evidence. A fact which tends to prove or disprove a fact in issue or to corroborate relevant evidence that bears on the principal issue is relevant. The question of relevancy is a matter to be determined by the trial court and if there is doubt concerning relevance the evidence should be admitted for evaluation by the trier of the facts. State v. Sanderson, 528 S.W.2d 527, 531 (Mo.App.1975).

Under the circumstances of this case the evidence was relevant because it had a tendency to show that defendant was attempting to elude the police. He did not go to his place of employment for his pay check. He also advised his employer that he was unable to work because of illness. He did not return to his living quarters, rather his brother was seen going into the house where defendant lived and obtained clothing from that house. Defendant was later found in Columbia, Missouri. Flight or concealment and the facts and circumstances surrounding are relevant and admissible to show consciousness of guilt. See State v. Cochran, 366 S.W.2d 360, 362 (Mo.1963). The trial court properly admitted the evidence of Officers Higgins and Wren.

We do not consider points numbered V, VI and VII in defendant’s brief. Points VI and V complain of testimony of Mr. Nelson and Mrs. Gravatt respectively as being “irrelevant, immaterial and incompetent.” These are not the same as the hearsay objections presented to the trial court in the motion for new trial. An appellant may not on appeal change or broaden the assertions of error as presented to the trial court. State v. Gilbert, 544 S.W.2d 595, 598 (Mo.App.1976). Further these points constitute mere general objections and are not sufficient to preserve alleged error for review. State v. Morrow, 541 S.W.2d 738, 741 (Mo.App.1976).

In point VII defendant complains of the admission of the testimony of Sgt. Lang-ford concerning tests made with respect to drainage of the water in the tub because the evidence was “irrelevant, immaterial and incompetent.” This is not the grounds stated in the motion for new trial and will not be reviewed for the same reason stated above. State v. Blankenship, supra. This point is also defective under Morrow, supra.

The defendant complains that the trial court erred in giving instruction Number 12 with respect to circumstantial evidence and in refusing instruction A offered by defendant on the same subject.

Instruction Number 12 given by the court is MAI-CR 3.42 which reads:

“Circumstantial evidence is the proof of facts or circumstances that give rise to a reasonable inference of other facts that tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you, together with all the other evidence in the case in arriving at your verdict.
“You should not find the defendant guilty unless the facts and circumstances proved are consistent with each other and the guilt of the defendant, and inconsistent with any reasonable theory of his innocence.”

Instruction A offered by defendant is MAI-CR 3.42 modified. The modification is found in the second paragraph of MAI-CR 3.42. With emphasis added to the additions made to the approved instruction, the paragraph reads as follows:

“You should not find the defendant guilty unless the facts and circumstances proved are consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with any theory of his innocence and with every reasonable hypothesis except his guilt.”

It is contended that MAI-CR 3.42 is a misstatement of the law which is correctly stated in defendant’s offered instruction A. Defendant relies on State v. Oliver, 520 S.W.2d 99 (Mo.App.1975). Oliver was tried before the effective date of MAI-CR and is not applicable. Defendant presents an intriguing argument on the issue, however, it is not the prerogative of this court or of the trial court to make the determination sought by defendant. Rule 20.02(c) provides:

“Whenever there is an MAI-CR instruction or verdict form applicable under the law to the facts, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other on the same subject.”

The failure to give the MAI-CR instruction applicable to the case constitutes error on the part of the trial court. Rule 20.02(e), State v. Dodson, 556 S.W.2d 938, 951 (Mo.App.1977). The trial court was required to give instruction Number 12 to the exclusion of instruction A and we may not convict the trial court of error in giving an instruction that it is required to give.

We have carefully reviewed the transcript of the trial and of the motion to suppress and the record as required by Rule 28.02 and find no prejudicial error.

The judgment of the trial court is affirmed.

STEPHAN, P. J., and KELLY, J., concur.

      . We have not been furnished with any of the exhibits.

      . “MICHAEL LEE LENZA on the 12th day of December, 1975 did wilfully, unlawfully and feloniously, knowingly, deliberately, premedi-tatedly and of his malice aforethought, make an assault upon one Tina Lenza, the said Michael Lee Lenza then and there unlawfully, wilfully, feloniously, knowingly, deliberately, premedi-tatedly and of his malice aforethought and with the intent to take the life of Tina Lenza, did drown the body of Tina Lenza thereby inflicting mortal injury from which Tina Lenza did die on December 12, 1975.”

      . “If the category of capital murder or the penalty prescribed herein is declared to be unconstitutional by the Missouri supreme court or the United States Supreme Court, all killings which would be capital murder under any of the circumstances specified in section [559.005] shall be deemed to be murder in the first degree and the offender shall be punished accordingly, except that he shall not be eligible for probation or parole until he has served a minimum of fifty years of his sentence.”


author: SNYDER, Presiding Judge.

text:
    Ronald DRAKE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 39892.
    Missouri Court of Appeals, Eastern District, Division One.
    May 15, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Application to Transfer Denied July 17, 1979.

      James C. Jones, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Sam C. Bertolett, St. Louis, for respondent-respondent.
   SNYDER, Presiding Judge.

Ronald Drake’s motion for post-conviction relief under Rule 27.26 was denied and he appeals.

Appellant was found guilty of first degree murder in October 1973- after a jury trial and sentenced to life imprisonment. His conviction was affirmed by this court on direct appeal, State v. Drake, 518 S.W.2d 335 (Mo.App.1975). Counsel was appointed to represent appellant after he filed his pro se Rule 27.26 motion in December 1976. Supplemental motions were then filed which alleged newly discovered evidence and ineffective assistance of counsel at the original trial. The trial court denied the motion after an evidentiary hearing, and this appeal followed. The judgment is affirmed.

The record of the original trial, a brief summary of which is necessary background to this determination, was introduced at the Rule 27.26 hearing. The essence of the state’s evidence was that the appellant met two men, Simms and Selvage, on the day of the homicide and spent the afternoon in their company. Late in the afternoon the trio visited the residence of one Newton, who allegedly owed Simms some money. They encountered the victim while there, and the victim joined their party as they left in an automobile driven by Simms. The victim sat in the front passenger’s seat, with appellant directly behind him. As the foursome proceeded to the residence of a Barbara Smallwood at appellant’s request, appellant shot the victim. When the victim fled the car, appellant pursued him and fired several more shots. Appellant then had to run to catch up to the car, which was proceeding slowly down an alley. A young woman who heard the shots saw an unidentified man running after a car in that alley following the gunfire. When asked later why he had shot the victim, appellant told Simms that the victim had testified against him “back about ’64 or ’65.”

At the original trial both Simms and Selvage testified essentially as outlined above. Both had criminal records. Appellant, who also had an extensive criminal record, did not take the stand in his own defense.

At his Rule 27.26 hearing, appellant produced a witness named Farmer, a fellow inmate at the state penitentiary, as the source of his newly discovered evidence. Farmer testified that, shortly after the incident, Simms (with whom Farmer was then residing) had told Farmer that Simms, Selvage and one Moore were the only persons present when the victim was killed, and that Simms had picked Moore up shortly after appellant left the car. Farmer said Simms told him Moore shot the victim during a struggle that developed out of an argument over a debt the victim owed Simms. Farmer also testified that he had told Simms’ story to certain police officers who investigated the homicide. These officers denied that Farmer had ever informed them of Simms’ alleged account of the incident.

Appellant testified that he had been in the company of Ms. Smallwood at the time the victim was shot, and that although he had asked counsel to produce her at his original trial, counsel failed to do so. Appellant also said that counsel had advised him not to testify, and that he had relied on that advice. Appellant further testified that once he and counsel had learned of the state’s evidence regarding appellant’s alleged motive in shooting the victim, he had requested counsel to disprove this evidence by introducing appellant’s prior court records at trial, but that counsel again failed to comply with his request.

Appellant’s present counsel testified he was unable to locate Barbara Smallwood prior to the hearing. Appellant introduced two court files from 1966, records of his convictions on two drug charges. Neither showed the victim as being a witness against appellant. Appellant’s other convictions were stipulated to before the hearing and included three for burglary in 1961 and one for shooting into a dwelling in 1971. Appellant had also been arrested on numerous other occasions, including once for murder, and had been before a grand jury, although no conviction resulted.

The deposition of appellant’s former counsel, who now resides on the east coast, was read into the record. Counsel stated that appellant had never mentioned an alibi defense, and that appellant in fact had given no satisfactory account of his whereabouts after leaving the company of the others. Counsel maintained that it was appellant’s idea not to testify in his own behalf and that counsel’s recollection of this matter was particularly clear because he found it very unusual for a criminal defendant to make the decision not to testify. Counsel, however, said he concurred in appellant’s decision in view of his extensive criminal record. Counsel also searched appellant’s prior court records after learning of the state’s motive evidence but decided, as a tactical matter, not to introduce those records because of their prejudicial nature, because of the difficulty of proving a negative and because they would not disprove any testimony by the victim against the appellant in a non-recorded preliminary hearing in a prior proceeding.

The trial court found factually, among other things, Simms had never told Farmer that appellant had no part in the killing; appellant had decided on his own not to testify at his trial; appellant had never asked counsel to obtain Barbara Small-wood’s testimony at trial; and that on learning of Simms’ testimony as to appellant’s motive in shooting the victim, counsel had declined as a matter of trial strategy, to introduce records of appellant’s prior convictions in which the victim did not appear as a witness. The court then concluded, as a matter of law, that there was no newly discovered evidence and that appellant had not been denied effective assistance of counsel.-

Appellant first urges error below on the basis that his newly discovered evidence mandated an award of the relief sought. Appellant concedes that new evidence tending to show that someone other than a Rule 27.26 movant committed the crime in question is not a proper ground for relief under the rule. Beishir v. State, 480 S.W.2d 883, 885[1] (Mo.1972). He would escape the operation of this rule, however, by analogy with a certain body of federal law that affords post-conviction relief where the new evidence is such as “[t]o undermine the entire structure of the [prosecution’s] case,” Kelly v. Ragen, 129 F.2d 811, 813 (7th Cir.1942), and it reveals “a wrong so fundamental that it made the whole proceeding a mere pretense of a trial,” Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682 (1936).

The cases cited by appellant involve blatant and shocking denials of due process, as exemplified by prosecutorial complicity in perjured testimony, or the use at trial of confessions admittedly extracted by torture. They are not in point. No due process objections were raised below regarding the allegedly newly discovered evidence, and none are before the court on review. The conclusion is inescapable that appellant is attempting to use these Rule 27.26 proceedings as a form for relitigating his guilt or innocence, and this he-may not do, Bradley v. State, 494 S.W.2d 45, 48[3] (Mo.1973).

Appellant next complains that the trial court erred in finding that he was not denied effective assistance of counsel. He bases his contention on the trial counsel’s failure to: (1) secure the testimony of Barbara Smallwood, the alleged alibi witness; (2)learn of the state’s motive evidence at the earliest possible time and to counter the motive evidence by the introduction of appellant’s prior court files; and (3) advise appellant to testify in his own defense.

In order to demonstrate ineffective assistance of counsel, appellant must show both the violation by counsel of some duty owed to appellant, and actual prejudice to him as a result. Walker v. State, 567 S.W.2d 398, 401[7] (Mo.App.1978).

There is a strong presumption in favor of competence of counsel, which appellant may overcome only with proof amounting to a preponderance of the evidence. Pickens v. State, 549 S.W.2d 910, 912[2, 3] (Mo.App.1977). Appellant has not met this burden of proof.

The trial court found that appellant never requested counsel to contact Small-wood, accepting counsel’s account of pretrial events to the exclusion of appellant’s. Counsel also testified that appellant did not say he was in Ms. Smallwood’s company at the time of the incident because he offered no explanation of where he was. Such straightforward questions of credibility, when raised in Rule 27.26 proceedings, are left to the determination of the trial judge. Pickens v. State, supra, 913[6]. This court defers to his finding.

Given the fact that appellant never requested counsel to secure the presence of Smallwood at trial, can it be said that counsel’s failure to produce her on his own constitutes a violation of his duty to appellant? Appellant cites several cases for the proposition that mere failure to investigate and interview every possible witness constitutes ineffective assistance. However, there has never been a hard and fast rule in Missouri requiring counsel to conduct an investigation and interview of every conceivable witness in all cases and under all circumstances, Aikens v. State, 549 S.W.2d 117, 121[9] (Mo.App.1977), and each case will ultimately turn on its own peculiar set of facts.

The record supports a finding that counsel never had any reason to think that appellant ever arrived at Ms. Smallwood’s residence on the evening in question, or that she would have had any useful information on the case at all.

Appellant maintains that counsel’s failure to learn of the state’s motive evidence in advance of trial, and to counter the same by introducing movant’s prior court files at trial, constituted ineffective assistance. However, appellant fails to show how he was prejudiced thereby, an affirmative showing of which is necessary to fulfill his burden under Walker, supra, 401.

Early discovery would not have resulted in its exclusion from the evidence at trial. Once the testimony was introduced, counsel investigated the court files in question.

Counsel declined to introduce the previous court records, even though they contained no indication of the victim having testified against appellant, because of their unavoidably prejudicial nature; because they involved drug-related offenses which would undermine counsel’s defense strategy of suggesting that Simms had actually killed the victim over a disputed drug debt; and because they would not disprove the fact of the victim’s involvement at some preliminary stage of the recorded proceedings, or in one of the other arrests of appellant that did not result in conviction.

Appellate courts “ ‘will not review or reassess by hindsight the judgment of defense counsel on questions of strategy, trial tactics, or trial decisions.’ [Citing cases].” Davis v. State, 552 S.W.2d 68, 69[4] (Mo.App.1977). Appellant has failed to carry his burden of demonstrating that he was prejudiced by the withholding of the court files.

Appellant argues that counsel was inadequate in failing to advise him to testify in his own defense because he was thus deprived of any opportunity to present his alibi defense and to counter the state’s motive evidence.

The trial court found that “[mjovant decided not to testify in his own defense at trial. The decision was his alone, although his defense counsel concurred in the decision . . . Counsel concurred in [this] decision not only because of movant’s prior record but also because Drake could not give a good account of his movements at the time of the incident.” This finding is fully supported by the record.

Counsel’s concurrence in mov-ant’s decision not to testify is a matter of trial strategy, Campbell v. State, 532 S.W.2d 844, 847[4] (Mo.App.1975), and, if it were an error, falls under the general rule that errors in strategy or judgment as proof of counsel’s ineffectiveness will not be considered. Campbell, supra, 847, citing McCarthy v. State, 502 S.W.2d 397, 405[14] (Mo.App.1973).

Appellant claims that the trial court erroneously denied relief because “an examination of the entire record requires a determination that movant was denied effective assistance of counsel.” Apparently appellant feels that, however counsel’s alleged derelictions may be viewed individually, taken cumulatively they have an impact sufficient to warrant relief.

This court does not agree. The standard governing our review of Rule 27.-26 proceedings requires a determination that findings below were “clearly erroneous” before they will be disturbed by this court. Davis, supra, 69. A finding is “clearly erroneous” only when the reviewing court, based on the entire record, has a “definite and firm conviction the trial court erred in finding movant was not denied effective assistance,” Davis, supra, 69, citing Crosswhite v. State, 426 S.W.2d 67[1] (Mo.1968).

The entire record has been reviewed. It supports a finding that each of the alleged omissions by counsel either resulted from appellant’s failure to fully apprise counsel of relevant facts and defenses, or from strategic dilemmas which required counsel to choose the lesser of two damaging courses of action. Viewed individually or cumulatively the facts in evidence relating to appellant’s allegations do not support a finding that he was denied effective assistance of counsel.

Finally, appellant urges that it was error to deny relief under Rule 27.26 in that his constitutional right to testify in his own defense was needlessly chilled by the prospect of impeachment through introduction of his prior convictions, as provided for by § 491.050, RSMo 1969.

This issue was neither raised nor considered in the proceedings below. Accordingly, it may not be considered in this appeal, Parton v. State, 545 S.W.2d 338, 341[1, 2] (Mo.App.1976).

The judgment is affirmed.

WEIER, C. J., and SMITH, J., concur.


text:
    REGER ROOFING & SIDING CO., a corporation, d/b/a Kirkwood Supply Company, Appellant, v. R & H ROOFING AND SUPPLY CO., a corporation, et al., Respondents.
    No. 40387.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 15, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Application to Transfer Denied July 17, 1979.

      David S. Purcell, Clayton, for appellant.
    John Hanlon, Richard Coughlan, Clayton, John M. Howell, Chesterfield, for respondents.
   REINHARD, Presiding Judge.

Plaintiff Reger Roofing and Siding Company appeals from the trial court’s granting of defendants’ motion for summary judgment. Plaintiff had filed a petition seeking enforcement of mechanic’s liens against the property of various defendant homeowners.

Plaintiff Reger Roofing and Siding Company, a corporation doing business under the registered fictitious name of Kirkwood Supply Company, is in the business of selling roofing materials to other building contractors. Defendant R & H Roofing and Supply Company (R & H) was a roofing contractor which often purchased materials from Kirkwood Supply Company in the years preceding this litigation.

As of July, 1975, R & H was an established customer of plaintiff, and plaintiff maintained a running account with R & H covering those materials purchased and utilized by the latter. At this time, R & H was performing a contract with Mason-Cas-silly, Inc., a corporation engaged in the development of residential subdivisions, and the construction and sale of homes. Under its agreement, R & H was to supply Mason-Cassilly with a portion of the roofing materials to be used on various roofs in developing Baxter Lakes Subdivision. R & H would purchase some of the roofing materials for the Baxter Lakes properties from plaintiff.

Sometime in late June or early July of 1975, plaintiff transmitted to its customers notice of a pending price increase. According to Mason-Cassilly and defendant R & H, they then agreed that such a cost increase might be avoided by ordering and prepaying for materials to be used in the Baxter Lakes Subdivision. Both R & H and Mason-Cassilly claim that plaintiff was cognizant of and party to this arrangement and had in fact helped compute the amount of the prepayment. Plaintiff denies that it was a party to this arrangement.

In early July, Mason-Cassilly transmitted two checks to R & H, allegedly pursuant to this prepayment agreement. The larger check, for $10,726.40, contained no notations keying its funds to materials for any particular lots in the Baxter Lakes Subdivision, although the check was accompanied by a list of colors, brands and quantities of materials to be ordered and held by R & H for use as directed by Mason-Cassilly. The smaller check of $4,475.20 was accompanied by a list of lot numbers, orders and color charts more specifically defining the intended application of those funds.

Gerald Revelle, the managing officer of R & H, took these two checks, along with a check from Kemp Homes, another contractor, and deposited all three in the checking account of R & H. On or about July 25, Revelle then drew a check for $26,754.45 with plaintiff as payee. In delivering this check of $26,754.45 to plaintiff, Revelle had no discussion with Richard Reger, president of Reger Roofing, who was absent at the time, and left no direction as to how plaintiff was to apply these funds to the R & H account.

At the time of the transmission of this check from R & H to plaintiff, R & H owed plaintiff approximately $31,702.13 for material, with $19,427.37 of that figure current and $12,274.76 from invoices with ages between 30 to 60 days. According to the general practice between plaintiff and R & H, upon the presentation of a check to plaintiff from R & H, without directions for application, plaintiff would apply the amount to the oldest existing accounts of R & H. Consistent with this practice, plaintiff applied the cheek for $26,754.45 to the oldest accounts of R & H, rather than applying it to the materials to be supplied to R & H for use in the Mason-Cassilly and Kemp Home projects.

In early November of 1975, after certain cheeks from R & H had been dishonored, plaintiff, after seeking to identify the lots on which its materials had been used, sent mechanic’s lien notices to several owners of lots purchased from Mason-Cassilly in the Baxter Lakes Subdivision. These owners, named as defendants in plaintiff’s petition to enforce the mechanic’s liens and respondents herein, related their concern to Mason-Cassilly, which then contacted plaintiff to arrange discussions regarding the problem.

During the first two weeks in November, plaintiff met with representatives of Mason-Cassilly. At these meetings Mason-Cas-silly explained to plaintiff the arrangement under which it had provided the funds partially comprising the $26,000 and presented plaintiff with a statement by Gerald Re-velle outlining this arrangement. Mason-Cassilly also exhibited to plaintiff the checks Mason-Cassilly had given to R & H in July, and requested that the payments be credited to the proper account. The last of these meetings was completed prior to, though on the same day as, plaintiff’s filing of the first mechanic’s lien with the clerk of the circuit court.

Plaintiff later filed its petition to enforce the mechanic’s liens, naming as defendants, R & H, the respective named homeowners of the lots in Baxter Lakes, and various lending institutions. Defendants, other than R & H, subsequently filed a motion for summary judgment. As the basis for its motion, defendants contended that plaintiff knew prior to filing the lien that it had misapplied the funds from the $26,754.45 cheek and should have reapplied the funds to the proper account. According to defendants, by refusing such reapplication, plaintiff failed to file a “just and true account” under § 429.080 RSMo 1969, and was therefore precluded as a matter of law from enforcing a mechanic’s lien against the property. The filing of a just and true account “is a condition of the right to take advantage ... of the mechanic’s lien law.” Malott Elec. Co. v. Bryan Enterprises, Inc., 549 S.W.2d 558, 561 (Mo.App.1977). Defendants supported their motion for summary judgment with various depositions and affidavits. In responding to the motion, plaintiff denied that, at the time of payment, it had any knowledge of an agreement as to the source and intended application of the July 25 check for $26,754.45. However, for the purposes of summary judgment only, plaintiff concedes that, pri- or to filing the mechanic’s lien but after sending out notices of intention to file such liens, it was given notice that Mason-Cassilly had been a source of the funds for the July 25 check. The trial court granted defendants’ motion for summary judgment and plaintiff appealed.

As its sole point on appeal, plaintiff urges that the trial court erred in granting the motion for summary judgment, because the notice in November of the source and intended application of the $26,754.45 was not effective as a bar to plaintiff’s filing the mechanic’s liens. Plaintiff contends that the crucial issue, which is disputed, is its knowledge at the time of payment and application, not simply the state of its knowledge at the time of filing the mechanic’s liens.

We recognize the general rule that when a debtor owes various items on account he has a right to direct the application of a partial payment to a creditor; absent such direction, however, the creditor may apply a partial payment as he believes necessary and appropriate to protect his interests. General Plywood Corp. v. S. R. Brunn Const. Co., 511 S.W.2d 905, 908-909 (Mo.App.1974); Herrman v. Daffin, 302 S.W.2d 313, 315 (Mo.App.1957). However, an exception to this general rule is that when the creditor knows or is chargeable with knowledge of the source of the funds constituting that payment, and third party rights are involved, then that creditor has the obligation to apply the payment so as to protect the rights of the parties supplying those funds. General Plywood Corp. v. S. R. Brunn Const. Co., 511 S.W.2d at 909; Herrman v. Daffin, 302 S.W.2d at 315-316. Consequently, if the creditor-materialman has or is charged with knowledge of the source of a payment and fails to properly apply it, then the creditor will not have offered a just a true account of the demands due him and may not then enforce a lien against the properties that would have been protected by proper application of the payment. N. O. Nelson Mfg. Co. v. Doherty, 191 S.W. 983, 986 (Mo. banc 1917); Herrman v. Daffin, 302 S.W.2d 313; Holekamp Lumber Co. v. Skay, 65 S.W.2d 669, 671-672 (Mo.App.1933).

Considering plaintiff’s conceded knowledge of the source of the July 25 payment, in light of the above principles, our review of the propriety of summary judgment appears well-focused: was the November notice to plaintiff, that being the earliest uncontested notice, sufficient as a matter of law to preclude it from enforcing mechanic’s liens against the various lots in Baxter Lakes? If so, then the uncontested fact would reveal a bar to enforcement of plaintiff’s mechanic’s liens, and the granting of summary judgment was appropriate.

We have reviewed the cases cited to us by both parties, discovering a disconcerting lack of explication along our course. However, we have concluded that this cause is controlled by the decision in N. O. Nelson Mfg. Co. v. Doherty, 191 S.W. 983, an aging but significantly similar set of circumstances. In Nelson, N. O. Nelson Manufacturing Company, a dealer in plumbing supplies, had contracted with Charles Doherty, a contractor, to furnish and install the plumbing materials in a building owned by Charles Vrooman and the St. Regis Realty & Investment Company. Nelson brought the action to enforce a mechanic’s lien against the St. Regis building for a sum allegedly owed for materials provided for use in that building.

The evidence revealed that sometime during the work on the building, the owners gave Doherty a check for $2,000 for payment on account of their building. Doherty deposited the check, then drew on his own account a check for N. 0. Nelson Manufacturing, with a receipt directing that $1,000 be applied to the St. Regis materials, which receipt was signed by an officer of Nelson. However, that officer of Nelson later recovered the receipt and left another with Do-herty which recited only that $2,000 had been received on account of Doherty. Nelson applied no part of the $2,000 to the St. Regis materials. In the action to enforce the mechanic’s lien, the building owners contended that the $2,000 should have been credited to the St. Regis materials, because of Nelson’s knowledge of the source of the funds.

In holding against Nelson Manufacturing, the court, after referring to the conflicting testimony regarding Nelson’s knowledge of the source of the payment, stated as follows:

It conclusively appears from the testimony, however, that prior to the filing of the lien account herein, the officers and employees of plaintiff had actual notice that Vrooman had paid Doherty said $2,000 to be applied on the St. Regis account. It further appears that Vroo-man made a demand upon plaintiff, repeatedly before the filing of said account, to have the $2,000 aforesaid applied upon Doherty’s St. Regis account. After plaintiff’s employees had full notice that the $2,000 was the money advanced and paid by Vrooman ... on the St. Regis account, they should have corrected the credit which they gave Doherty on his old account, and placed the same to the credit of the St. Regis account for the $2,000. (Emphasis in original.)

191 S.W. at 986.

A similar situation is evident here. Whatever Reger’s knowledge at the time of payment, plaintiff admits receiving notice, “prior to the filing of the lien account here-f in,” that the funds had come from Mason-Cassilly, said notice including presentation of the checks Mason-Cassilly had given to R & H. Furthermore, it is uncontested that, again prior to plaintiff’s filing the first lien, Mason-Cassilly demanded that the earlier payments be credited to the proper account. On the authority of N. O. Nelson Mfg. Co. v. Doherty, plaintiff’s failure to so credit the proper account upon receiving notice of the source of the funds precludes it, as a matter of law, from maintaining its mechanic’s liens against the properties of defendant homeowners. N. O. Nelson Mfg. Co. v. Doherty, 191 S.W. at 986. Summary judgment was therefore appropriate, there being no genuine issue of material fact precluding the court’s action. Edwards v. Heidelbaugh, 574 S.W.2d 25, 27 (Mo.App.1978).

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . Mason-Cassilly and R & H contend that these checks were transmitted to Reger with the understanding that the funds were to be applied only to materials to be ordered and shipped for use by those parties providing the funds conveyed by Revelle’s check.

      . Plaintiff was granted a default judgment against R & H.


text:
    Judy Marie TERRELL, Petitioner-Appellant, v. Harry A. TERRELL, Respondent-Respondent.
    No. 39670.
    Missouri Court of Appeals, Eastern District, Division One.
    May 15, 1979.

      J. William Holliday, Kahoka, James P. Hoffman, Keokuk, Iowa, Charles E. Rend-len, Rendlen, Rendlen & Ahrens, Hannibal, for petitioner-appellant.
    J. Andy Zenge, Jr., Dennis Smith, Zenge & Smith, Canton, for respondent-respondent.
   SNYDER, Presiding Judge.

This is an appeal by the wife from a judgment which was entered pursuant to a motion to modify filed by the husband and which ordered the sale of residential real property. The residence in question had been marital property and was the subject of a court order in a 1975 dissolution of marriage decree which awarded the wife, as alimony in gross, a life estate in the residence with the remainder to be held one-half by the wife and one-half by the husband as tenants in common. The judgment here appealed from ordered a sale of the residence and an equal division of the net proceeds between the parties after payment of taxes, expenses and the value of her life estate to the wife.

The sole issue for determination on appeal is whether the trial court erred in ordering the sale, in a modification proceeding, of real property held, under the terms of the 1975 dissolution decree, by the wife as a life tenant with the remainder to the husband and wife as tenants in common, each with an undivided one-half interest.

The judgment is reversed.

The 1975 dissolution decree contained the following order relating to the family home:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be, and she hereby is allowed as alimony in gross a life estate in the house in Kahoka, Missouri with the remainder to be held as tenants in common, one half in the Petitioner and one half in the Respondent. In the event that Petitioner should at any time in the future desire to sell this property and if the Court so orders, the life estate shall be terminated and the property sold and the proceeds divided equally between Petitioner and Respondent. As a further part of the alimony in gross, the Respondent is ordered to make the monthly payments on the indebtedness on said house until such time as the debt is fully paid and he is to keep the property insured in the names of the Petitioner and Respondent and to pay the taxes thereon. Neither party shall in anywise encumber or attempt to sell his or her interest in the property without the written Order of this Court.

The wife on January 21, 1977 filed a motion to modify as to the husband’s visitation rights. On February 1, 1977, the husband filed a motion to modify asking for a change in child custody and sale of the residence. He argued that the sale was warranted by a change of circumstances; the wife had remarried and had moved with the children to the home of her second husband. The husband believed the residence would deteriorate because it was no longer occupied. The trial court denied both motions as to visitation and child custody but granted the husband’s motion as to the residence and ordered that it be sold at a sheriff’s sale.

Under Rule 73.01.3, this court reviews both the law and the evidence in non-jury trials. There are no evidentiary issues here. Therefore, the trial court’s judgment is to be sustained unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Section 452.330.4, RSMo Cum.Supp.1975 reads: “The court’s order as it affects distribution of marital property shall be a final order not subject to modification.” No point was raised, and no opinion is expressed by this court, as to the conclusiveness for appeal purposes of the 1975 decree or the authority of the trial court, in view of this statutory provision, to retain jurisdiction over marital property after dissolution has become final.

The dispute concerns the trial court’s authority to order the sale of the residence at the request of the husband. A careful reading of the 1975 decree reveals that: (1) a life estate as alimony in gross was awarded to the wife; (2) the court retained limited jurisdiction to order the sale of the home if the wife desired to sell; and (3) the husband and wife each were awarded a one-half remainder interest in the home as tenants in common.

The award of the life estate to the wife as alimony in gross precludes modification after the judgment has become final. Neither contractual support and maintenance nor alimony in gross is properly subject to judicial modification once the obligation has become final. Laney v. Laney, 535 S.W.2d 510, 512 (Mo.App.1976). Because no motion for a new trial was filed by either party following entry of the 1975 decree, it became final thirty days after entry of judgment. Rules 75.01 and 81.05; State ex rel. Nilges v. Rush, 532 S.W.2d 857, 859 (Mo.App.1975). Neither party appealed from the 1975 decree.

When the 1975 decree became a final order, the parties were bound by its language. The husband argues the trial court did not modify the decree by its order of sale but, rather, exercised the jurisdiction it retained over the sale of the home, found in the following words of the decree: “[I]f the Court so orders, the life estate shall be terminated and the property sold. ...” However, his interpretation is based on a partial reading of the pertinent sentence of the decree. When it is read in its entirety, the language is clear and unambiguous and refutes the husband’s contention. The sentence reads: “In the event that Petitioner [wife] should at any time in the future desire to sell this property and if the' Court so orders, the life estate shall be terminated and the property sold and the proceeds divided equally between Petitioner and Respondent. [Emphasis added].”

The meaning of this sentence is subject to only one interpretation. The trial court sought to retain limited jurisdiction over the residence to terminate the wife’s life estate and order a sale only if the wife wished to sell. No mention of the husband appears. The decree is explicit on this point. For the life estate to be terminated, two requirements must be met: (1) the petitioner-wife must “desire to sell” and (2) the court must “so order.” Obviously the wife did not “desire to sell.”

Therefore, whether viewed as a modification or a retention of jurisdiction, the trial court erred in ordering the sale. There was no jurisdiction under the 1975 decree because the requirement that the wife agree to the sale was not met. A modification of the decree would be an erroneous application of the law. Murphy, supra; § 452.330.-4, RSMo Cum.Supp.1975; Laney, supra.

The husband further contends that the trial court “interpreted” the 1975 decree when it ordered the sale. This argument is without merit. The requirements that must be met in order to terminate appellant’s life estate and order a sale of the home are explicitly set forth in the decree. If the language of the decree were ambiguous, then the husband’s argument might be tenable. The language is clear, however. The husband did not appeal from the judgment entered in 1975 and cannot now obtain modification of its provisions relating to marital property or alimony in gross.

It is unnecessary to rule on the point raised by the wife in which she contends that partition of real property cannot be had between a life tenant and the holder of a one-half undivided interest in the remainder.

The husband insisted upon the preparation of a supplemental transcript. The wife’s motion to tax the cost of this transcript against the husband was taken with the case. The only issue before this court is the propriety of the trial court’s order that the parties’ former residence be sold at a judicial sale. The supplemental transcript contained 94 pages. Only one page of the testimony related to the real property in question and the evidence adduced on that page was not necessary to the resolution of the purely legal question presented by this appeal. All of the other evidence contained in the transcript related to custody of the children. The judgment as to custody was not appealed. Therefore, the cost of the supplemental transcript is taxed against the husband. Rule 81.12(b).

The judgment is reversed. Appeal costs, including $131.30 for preparation of the supplemental transcript, are taxed against the husband.

SMITH and CRIST, JJ., concur.

      . Section 452.330.1(3) which specifies one of the factors to be considered in dividing marital property reads:
      The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; ....
      Section 452.330.1 in its entirety and the quoted subparagraph have been construed to permit the division of real property between the parties by awarding them shares as tenants in common only in unusual situations which are the exception rather than the rule. Davis v. Davis, 544 S.W.2d 259 (Mo.App. 1976). In these exceptional cases the trial court should specifically state the economic circumstances or reasons for ordering the joint tenancy. Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977). See also, Smith v. Smith, 561 S.W.2d 714 (Mo.App.1978); In re Marriage of Heddy, 535 S.W.2d 276 (Mo.App.1976). In Corder the appeals were dismissed because there was no economic justification for awarding the parties undivided interests as tenants in common and therefore no final appealable judgment. In Davis, the appeals court also held there was no economic reason for a tenancy in common order and reversed and remanded. In Smith and Heddy tenancies in common were approved but the trial courts’ orders were specific as to the final sale and no jurisdiction was retained. In none of the cases was a life tenancy as alimony in gross awarded.


author: WEIER, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Russell VINCENT, Defendant-Appellant.
    No. 40818.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 15, 1979.

      Lee, O’Hanlon & Brady, Walter L. Brady, Jr., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, St. Louis, for plaintiff-respondent.
   WEIER, Chief Judge.

I. Case Summary

Defendant Russell Vincent was charged with second degree murder. He appeals from a conviction of manslaughter and a sentence under the Second Offender Act to ten years in the Department of Corrections.

II. Facts Pertinent to This Decision

On October 25, 1977, Vincent became involved in an argument with one Charles Wynn in the Red Rooster Lounge located at 1220 North Vandeventer. Both were directed by the manager to leave and as the defendant left, Charles Wynn followed. One witness observed that Wynn had a knife in his hand. Once outside Wynn pushed the appellant up against a wall at 1212 Vandeventer Avenue. The testimony is conflicting as to whether appellant left the area to get a gun or had a gun in his pocket at that time. Within a few minutes thereafter Vincent approached Wynn at 1212 Vandeventer and fired a shot which struck Wynn. Wynn later died following surgery. Only police officers in the City of St. Louis participated in the investigation. The St. Louis Assistant Medical Examiner performed the autopsy.

III. Issue Submitted and Its Determination

Defendant contends that the trial court erred in denying his motion for directed verdict of acquittal at the close of all the evidence because venue was not established. He points out that the record is barren of any direct testimony that the incident alleged in the information occurred within the boundaries of the City of St. Louis, Missouri.

Although MAI-Cr 2.04 now requires the jury to find the crime occurred in the trial court’s jurisdiction, proof of venue may be made by circumstantial evidence. It may be inferred from facts and circumstances which taken together give the jury “of the county” (Art. 1, Sec. 18(a), Missouri Constitution) a factual basis upon which they may find the act, or acts, going to make up the offense had occurred within the boundaries of the “state and district” (Amend. VI, Constitution of the United States) where the prosecution is commenced. State v. Garrett, 416 S.W.2d 116, 118[4] (Mo.1967); State v. Twiggs, 553 S.W.2d 69, 70[4] (Mo.App.1977); State v. Rocha, 526 S.W.2d 834, 837[8, 10] (Mo.App.1975).

Facts and circumstances that place the venue of this case in the City of St. Louis supported by the authorities hereafter cited are: (1) Investigating officers were police officers of the City of St. Louis. State v. Valentine, 506 S.W.2d 406, 410 (Mo.1974); State v. Speedy, 543 S.W.2d 251, 254[3] (Mo.App.1976); Nelson v. State, 537 S.W.2d 689, 693[3] (Mo.App.1976). (2) An autopsy was performed on the victim by the Assistant Medical Examiner in the City of St. Louis. Nelson, supra at 694. (3) The offense occurred at 1212 North Vandeven-ter Avenue. The official highway map of the State of Missouri indicates that Vande-venter Avenue is contained entirely within the boundaries of the City of St. Louis, Missouri. Judicial notice is taken of official highway maps, Garrett, supra at 119; and geographical facts, Twiggs, supra at 70.

Alternatively, when Vincent went to trial in the City of St. Louis, Missouri, on an information which alleged that the offense charged occurred in the City of St. Louis with no challenge to the venue, defendant waived his right to object. Speedy, supra at 255.

IV. Disposition

The judgment is affirmed.

REINHARD, GUNN and, CRIST, JJ., concur.


text:
    Bobby WILSON, Appellant, v. STATE of Missouri, Respondent.
    No. 40755.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 22, 1979.

      Neal P. Murphy, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven Scott Clark, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., J. W. Gabriel, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant herein appeals from the denial of his Rule 27.26 motion. His motion requested that the court vacate his sentence of two years for the charge of felonious failure to appear on bail bond. On appeal, movant alleges that the trial court erred by failing to appoint counsel for him and, further in not making specific findings of fact nor conclusions of law.

In his motion, movant alleged coercion and ineffective assistance of counsel as grounds for relief. The Missouri Supreme Court in Fields v. State, 572 S.W.2d 477 (Mo.banc 1978) has adopted a per se rule which requires the appointment of counsel for all indigents who file pro se Rule 27.26 motions after its effective date. However, Fields is to be applied prospectively and hence, does not affect movant’s motion. We do not believe that movant is prejudiced by the refusal to apply Fields retrospectively.

The law in existence prior to Fields was such that if an evidentiary hearing was not required, an attorney need not have been appointed. Winston v. State, 533 S.W.2d 709[6—12] (Mo.App.1976). In order to become entitled to an evidentiary h'ear-ingj movant must have pleaded facts, not conclusions, which if true, would afford the basis for relief and, further, must have shown that the factual allegations contained in his motion were not refuted by the record. Winston, supra. However, if no evidentiary hearing was required, a summary denial of a Rule 27.26 motion is equivalent to findings of fact and conclusions of law in opposition to the grounds stated in the motion. Tillman v. State, 570 S.W.2d 844[6] (Mo.App.1978).

Herein, the record revealed that movant entered a plea of guilty to the charge of stealing property of a value of at least $50 in the Circuit Court of the City of St. Louis on September 13, 1977. He was subsequently freed on $1,500 bond pending imposition of sentence. Sentencing was set for November 4, 1977, but movant failed to appear. He was arrested by St. Louis Police on November 30, 1977; twenty-six days after the date set for sentencing.

Movant was thereafter charged with felonious failure to appear on bail bond. Mov-ant was again appointed counsel, a trial date set and a jury ordered. Movant then opted to plead guilty. At the hearing on his guilty plea, movant was questioned extensively as to his understanding of the nature of the charge, advised of his rights, and asked whether his desire to plead guilty was the result of threats, promises or duress. His response was in the negative. He was also asked if he was satisfied with the advice of his court-appointed counsel. Mov-ant stated that he was so satisfied; acknowledged that the facts leading to the charge, as enumerated by the prosecuting attorney, were true; and, reiterated his desire to plead guilty. The trial court found that movant had knowingly and intelligently entered his plea of guilty and had committed the crime with which he was charged beyond a reasonable doubt.

The trial court specifically found, “based upon the transcript the court finds that movant was not coerced into entering said plea by his counsel; that his counsel did not fail to effectively represent movant.” We agree with the court that the record refutes his allegations. Furthermore, they are con-clusory.

Since the allegations are both con-clusory and refuted by the record there was no requirement for an evidentiary hearing and, therefore, no requirement for the appointment of counsel. Winston, supra. Summary denial of movant’s motion was proper in such an instance and as such was equivalent to findings of fact and conclusions of law in opposition to the grounds set out in the motion. Tillman, supra. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

GUNN and CRIST, JJ., concur.

      . Twenty-nine days after the court’s ruling on the original motion, the movant filed a motion to amend his previous motion. The court granted the request 3 days later and denied the amended motion. The court lacked jurisdiction to permit the amendment. The movant makes no challenge to the action on the amendment, but attacks only the original ruling.

      . Movant filed his Rule 27.26 motion on April 28, 1978. The Fields decision was handed down (and thus became effective) November 6, 1978.


author: GREENE, Judge.

text:
    CITY OF NEW MADRID, Missouri, Plaintiff-Appellant, v. ASSOCIATED ELECTRIC COOPERATIVE, INC., Defendant-Respondent.
    No. 10850.
    Missouri Court of Appeals, Southern District, Division Three.
    June 1, 1979.

      David E. Blanton, James D. Sickal, Sike-ston, for plaintiff-appellant.
    Eugene E. Andereck, Allen W. Baker, Jefferson City, for defendant-respondent.
   GREENE, Judge.

Plaintiff is a city of the fourth class, incorporated under the laws of the state of Missouri. Defendant is a co-operative formed for the purpose of generating or transmitting electrical energy.

Plaintiff issued and sold revenue bonds for the construction of a 600,000 kilowatt coal-fired generating plant and related facilities. In 1968, plaintiff entered into a “Power Sales, Interconnection and Operating Agreement” with defendant, under which it was agreed that defendant was to supervise construction of the plant; to furnish, maintain and operate certain transmission lines; and to perform other functions necessary to the operation of the power plant. In return, defendant was to receive the usage for sale of all of the electrical power generated by the plant, with the exception of such power that was reserved by the plaintiff under an agreement with defendant.

The parties further agreed, by written contract, that plaintiff reserved, but was not obligated to take, a maximum of 25,000 kilowatts for use in its distribution system. In 1971, an amended agreement was consummated, whereby an additional amount of power, not exceeding 30,000 kilowatts, was reserved by plaintiff for sale to its customers. The agreements were subject to certain prerequisites, including formal written notice of intention to take the power, mutual agreement as to a delivery point and a sliding scale of costs.

In 1974, plaintiff began negotiations with the city of Kennett, Missouri, with the purpose being the proposed sale of 10,000 kilowatts from the 30,000 kilowatt power block that had been reserved to plaintiff by reason of the amended agreement. Plaintiff advised defendant of its intention to sell the power in question to the city of Kennett. After considerable discussion and negotiations, defendant advised plaintiff that it would not deliver the power to plaintiff for the reasons that the city of Kennett was not a “customer” of plaintiff and that there had never been a mutual agreement as to a delivery point. Kennett then obtained the power that it needed from another source.

Plaintiff then filed a three count lawsuit against defendant. After a recital of the alleged facts, plaintiff, in count one, prayed for a declaratory judgment, requesting that the court declare the rights and duties of the parties based on the facts and the law; that the court state whether the notice provision of the contract had been complied with or waived; whether the contract, as amended, restricted plaintiff’s right to sell power to customers outside of its corporate boundaries; and for such other relief on count one as the court deemed just.

In count two, plaintiff requested specific performance of the contract and prayed that defendant be required to deliver the 10,000 kilowatts in controversy to plaintiff. In count three, plaintiff prayed for damages for breach of contract.

The case was tried before the trial court on October 5, 1976. On October 21, 1976, the court entered findings of fact, conclusions of law, and a judgment. The findings of fact, 41 in number, need not be set out here, as a verbatim recital would not be germane to the issues. It suffices to say that the findings of fact do not contain any directives or pronouncements regarding the rights and duties of the parties under the contracts in question. The court’s conclusions of law and judgment are as follows.

‘CONCLUSIONS OF LAW

1. This court has jurisdiction of the parties and the subject matter of this lawsuit.
2. There is a justiciable controversy between the parties regarding the construction of the Original Power Sales, Interconnection and Operating Agreement of 1968, and the Amended Agreement of 1971, and particularly Section 6 of the Amended Agreement.
3. Sections 91.010, 91.020 and 91.030, R.S.Mo, 1969 do not prohibit the City from selling electric power to another city, that is to the City of Kennett in this case. State ex rel. Mitchell, et al. v. City of Sikeston, et al., Supreme Court of Missouri in Case No. 59963 filed on September 12, 1977 [555 S.W.2d 281] (opinion has not yet been printed), but rather is authority for the City to sell electric power to Kennett. The Supreme Court stated: .In Missouri, municipalities are authorized to construct energy plants and supply energy pursuant to sec. 91.010, RSMo 1969. Furthermore, sec. 91.020, RSMo 1969, authorizes municipalities to sell to other municipalities, while sec. 91.-030, RSMo 1969, allows other municipalities to purchase power from vendor municipalities. There is also no question that a municipality may sell surplus power to nonresidents or other municipalities without violating the proscription against expending public funds for other than public purposes. Taylor v. Dimmitt, [336 Mo. 330] 78 S.W.2d 841 (Mo.) (1934); Speas v. Kansas City [329 Mo. 184] 44 S.W.2d 108 (Mo.) (1931).’
In discussing the case of Taylor v. Dimmitt, the Court stated that in that case the question of the erection of transmission facilities outside of the city was a controlling factor. The Court stated that the municipality was given express authority to sell power to others, including municipalities and that there was no limit on the amount to be sold.
4. The City of Kennett is not a ‘customer of the City’ as that term is used in Section 6.2(h) of the Amendment.
5. In order to constitute a ‘mutually agreed upon’ ‘Point of Delivery’, as provided for in Section 6.6 of the Amended Agreement, action by both the City Council of the City of New Madrid and the Board of Directors of Associated would be necessary, together with approval thereof by the Administrator of the Rural Electrification Administration.
6. The City Council of the City of New Madrid and the Board of Directors of Associated did not take action which would result in a ‘mutually agreed upon’ ‘Point of Delivery’ as provided for in the Amended Agreement of 1971 in regard to the 30,000 kw block of power; and never has the Administrator of the Rural Electrification Administration approved any such agreement.
7. The City of New Madrid is expressly denied consequential damages or damages for loss of anticipated profits under Section 33.3 of the Agreement and the City did not prove compensable damages.
WHEREFORE, IT IS HEREBY ORDERED AND DECREED that judgment be and same is hereby entered in favor of the defendant, Associated Electric Cooperative, Inc., and against the plaintiff, City of New Madrid, Missouri; that Section 6.2(h) of the contract and Section 6.6 of the amended power sales, interconnecting and operating agreement between the parties do not authorize the recovery by the plaintiff; that the approval of the Rural Electrification Administration as to the ‘Point of Delivery’ was not obtained and the plaintiff did not sustain its burden of proof for recovery and for damages.

The costs are taxed against the plaintiff, City of New Madrid, Missouri.” Plaintiff then appealed, alleging four major areas of trial court error.

The right to appeal is purely statutory. A judgment, to be appealable, must be final, and must dispose of all of the issues raised by the pleadings, unless an exception to such rule is specifically authorized by statute § 512.020, RSMo 1969, V.A. M.S. No such exception to the finality rule appears here. Regardless of whether the litigants raise the question, the appellate court has a duty to ascertain, ex mero motu, if a final appealable judgment has been rendered, and to dismiss the appeal, sua sponte, if such judgment does not dispose of all of the issues raised by the pleadings. Jones v. Washburn, 560 S.W.2d 604, 605-606 (Mo.App.1978); Coonis v. Rogers, 413 S.W.2d 310, 313 (Mo.App.1967); Collier v. Smith, 292 S.W.2d 627, 629-631 (Mo.App.1956).

In conclusion of law number two, the trial court found that there was a justicia-ble controversy between the parties arising out of their respective interpretations of the original “Power Sales, Interconnection and Operating Agreement” of 1968, and the 1971 amendment of the agreement. This finding is a predicate for relief under the declaratory judgment act. Travelers Indemnity Company v. Beaty, 523 S.W.2d 534, 536 (Mo.App.1975); § 527.010 et seq. RSMo 1969, V.A.M.S. Having made such a finding, it was incumbent upon the trial coúrt to make a declaration of the rights of the parties and to enter such declaration as a part of the judgment. Smith v. Worsham, 552 S.W.2d 367, 370 (Mo.App.1977).

The judgment in this case does not contain a declaration of rights of the parties. While we recognize that the scope of our review is governed by Rule 73.01(3), V.A.M.R., as construed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we conclude in this case that the law (declaring the rights of the parties in the judgment) was erroneously applied by the trial court here, by omitting such prerequisite from the judgment.

Plaintiff has recognized the problem in his brief by contending that since the trial court failed to set out the specific rights of the parties in its judgment, the parties cannot determine with any certainty what their rights are with reference to plaintiff taking and selling its reserve power supply. Plaintiff further contends that we should rectify the deficiency by declaring the rights of the parties on the theory that the appellate court has a duty, in cases of this type, to render such judgment as the trial court should have given. Plaintiff poses twelve questions it deems necessary for us to answer to accomplish that purpose, citing as its authority for such request City of Creve Coeur v. Huddleston, 405 S.W.2d 536, 538 (Mo.App.1966), and Bell v. Bell, 538 S.W.2d 733, 735 (Mo.App.1976).

Neither decision supports plaintiff’s plea. The Creve Coeur case does state that we should review the case upon both the law and the evidence, weigh the evidence, and render such judgment as the trial court should have given, but as correctly pointed out by Titus, J., in Bell v. Bell, supra, such scope of review is no longer appropriate, citing Murphy v. Carron, supra.

An appellate court has no business and, in fact, no right to act as a legal advisory board to the parties in situations where the trial court has failed to dispose of all issues raised by the pleadings, as is the case here.

Except for our comments on count one of the petition (the declaratory judgment count), we avoid discussion or determination of whether the judgment accommodated all of the formalities required by law as to the remaining two counts of the petition. Any questions that are raised in that area, as well as the problem in the judgment concerning count one, can be resolved by the trial court when it is revested with jurisdiction, so that all issues in the case can be disposed of, leaving nothing for further trial court determination.

Since the judgment here did not dispose of all of the issues raised in all counts of the petition, there is no final appealable judgment. The appeal is therefore premature, and we have no alternative but to dismiss the appeal, Claspill v. Craig, 546 S.W.2d 202 (Mo.App.1977), which action has the effect of reinstating the cause in the trial court for further proceedings and determinations consistent with this opinion. Haller v. Shaw, 555 S.W.2d 703, 704-705 (Mo.App.1977).

Plaintiff’s appeal is dismissed.

MAUS, J., recused.

FLANIGAN, C. J., and BILLINGS, J., concur.


author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sylvester SMITH, Defendant-Appellant.
    No. 10744.
    Missouri Court of Appeals, Southern District, Division Two.
    June 5, 1979.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Scott B. Tinsley, Anderson & Tinsley, Springfield, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant Sylvester Smith was tried and convicted by a Greene County jury of second degree burglary and stealing. The court found defendant was a prior felon and imposed sentences. Defendant contends the evidence was insufficient to support his convictions and avers prejudicial error arose from prosecutorial misconduct. We affirm.

In reviewing the sufficiency of the evidence to support the verdict of the jury, we consider as true only the evidence and inferences therefrom which support the verdict and reject contrary evidence and inferences. State v. Reed, 453 S.W.2d 946 (Mo.1970).

Defendant was identified by a witness as being one of the two men that were seen inside the burgled apartment during the course of the crime. The witness saw defendant and his companion carrying stolen items from the apartment to a described vehicle and wrote down the license number of the automobile. Defendant and his companion were apprehended in the described automobile about an hour after the burglary and theft. The victim’s checkbook was found in the glove compartment of the car. Other items stolen from the apartment were found in defendant’s apartment and at a location he described to police. His point concerning the sufficiency of the evidence is wholly without merit and we find substantial evidence to support his convictions.

We have examined defendant’s charge that he was prejudiced by a question propounded to him by the prosecutor on cross-examination. He says the question left the impression he had committed other crimes. His direct examination revealed he had been convicted of prior felonies and it developed on earlier cross-examination that he had appeared as a state’s witness in other prosecutions. Defendant objected to the instant question before it was completed. The objection was sustained and the jury instructed to disregard the question. Defendant’s motion for a mistrial was denied and we find no abuse of discretion by the trial court in this ruling. State v. Camper, 391 S.W.2d 926 (Mo.1965).

The judgment is affirmed.

HOGAN and MAUS, JJ., concur.

       “. . . [Y]ou think that all you have to do is go out and knock over as many places as you want to and all you have to do . . . .”


author: BILLINGS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard SULLINS, Defendant-Appellant.
    No. 11026.
    Missouri Court of Appeals, Southern District, En Banc.
    June 5, 1979.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Jay White, Rolla, for defendant-appellant.
   BILLINGS, Judge.

Defendant Richard Sullins was convicted by a Texas County jury of stealing a motor vehicle and his punishment assessed at nine months incarceration in the county jail and a fine of $500. He complains in this appeal the evidence was insufficient to support his conviction and prejudice resulted from a statement by the trial judge in connection with ruling an objection. We affirm.

Defendant’s brief violates Rule 84.-04, V.A.M.R. The statement of facts does not approach the required standard of “fair and concise” and is argumentative. Neither do we find transcript page references in the argument section of the brief as required by the rule.

Because of the brevity of the transcript, we have reviewed the evidence and find it to be sufficient to support the jury verdict. Detailing the evidence would serve no useful purpose nor have any precedential value. The point is ruled against defendant pursuant to Rule 84.16(b), V.A.M.R.

Defendant’s second point is not preserved for review because no trial objection was made to the statement of the trial court. State v. Ray, 554 S.W.2d 596 (Mo.App.1977). Further, it appears the statement falls within the rule set forth in State v. Phelps, 478 S.W.2d 304 (Mo.1972), that where the remarks of a judge are directed to counsel in ruling upon the admissibility of evidence and embodying the reasons on which the ruling is based ordinarily they are held not to be prejudicial

The judgment is affirmed.

All concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Willie McCURRY, Appellant.
    No. 39822.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 5, 1979.

      Robert A. Hampe, P.C., St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Illegal possession of Controlled Substances: heroin, amphetamine, and marijuana.

Defendant was convicted by a jury of illegal possession of heroin (Count I), amphetamine (Count II), and marijuana (Count III). He was sentenced to prison terms of fifteen years, five years, and five years respectively; the sentences to run consecutively. We affirm.

On July 28, 1976, the police obtained a valid search warrant for the premises at 2525 North Market, St. Louis, Missouri. A few hours later, they placed the premises under surveillance. They observed "defendant walk to the front door, insert a key, and open the door. The officers identified themselves and announced they had a search warrant. Defendant hurriedly opened the door, went inside, and shut the door. The officers immediately forced the door open and saw defendant running through the house from the living room into the “first bedroom.” After defendant had entered the “first bedroom,” he halted at the command of the officers. The officers observed the defendant holding a bottle of heroin tablets. The defendant was then arrested.

The officers then searched a “second bedroom.” From beneath the mattress of a bed in that room the officers seized: a pellet gun, a .38 caliber pistol, and a 30-30 caliber rifle with two cartridge loads. From beneath the bed they seized two calculators and a C B transceiver. The defendant stated that he received some of the items found under the bed and under the mattress in exchange for some heroin and some of the items so found were obtained from an unknown person for a very cheap price. From the top of a dresser in the bedroom the officers seized: a brown paper bag containing marijuana; several bottles containing a tan powder; several bottles containing pills; several measuring spoons; and a telephone bill addressed to defendant at 2525 North Market, St. Louis, Missouri, first floor.

Defendant complains the court below erred by admitting into evidence the telephone bill. When the bill was admitted into evidence the defendant objected that the bill was irrelevant because it was for a one-month period a year prior to the offense. He now contends the bill was hearsay evidence and that this court should reverse under the “plain error” rule. Rule 27.20(c). We find no error in its admission.

Defendant’s reliance on the hearsay rule is misplaced. The telephone bill was not offered to show the truth of the matters asserted on the face of the bill. It was offered because it was a personal effect of the defendant and it was located in the “second bedroom.” Since the amphetamine and the marijuana were found in a jointly controlled residence, further evidence connecting the defendant with those illegal drugs was required. State v. Wiley, 522 S.W.2d 281, 292 [20-21] (Mo.banc 1975). The telephone bill and the other personal effects of the defendant found in the “second bedroom” were admissible to show that connection. Annot., 56 A.L.R.3d 948 (1974).

Defendant next complains the trial court erred in failing to sustain his motion for judgment of acquittal at the close of the state’s case because the state did not prove control. He again asks us to invoke “plain error.” First, by putting on evidence in his case, defendant waived any objection to the overruling of the motion. State v. Covington, 559 S.W.2d 78, 79 (Mo.App.1977); State v. Parcel, 546 S.W.2d 571, 573 (Mo.App.1977). Second, there was ample evidence to show control. Not only were the drugs found in a room which contained some of the defendant’s personal effects, but also the defendant was seen hurrying ahead of the officers toward the room in question when the officers entered. We find no manifest injustice or miscarriage of justice in overruling the motion for judgment of acquittal at the close of the state’s case.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.