author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Frank FEAST, Appellant.
    No. 40169.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 4, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael Elbein, Asst. Attys. Gen., Jefferson City, Ronald L. Boggs, Pros. Atty., Charles E. Bridges, Asst. Pros. Atty., St. Charles, for respondent.
   CRIST, Judge.

A jury convicted defendant of assault with intent to kill with malice and set punishment at five years imprisonment. We affirm.

Defendant’s appeal maintains the court erred in giving the following instruction:

“As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about December 1, 1976, in the County of St. Charles, State of Missouri, the defendant, Frank Feast, shot at Major Melbourne Gorris, and
Second, that he did so with malice aforethought, that is, intentionally and without just cause or excuse and after thinking about it beforehand for any length of time, and
Third, that he did so with intent to kill Major Melbourne Gorris, then you will find the defendant guilty under Count II of assault with intent to kill with malice aforethought.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty under Count II of that offense.
If you do find the defendant guilty under Count II of assault with intent to kill with malice aforethought, you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than two years nor more than life imprisonment.”

Defendant argues the instruction is faulty because not supported by evidence the defendant “shot at” Major Gorris by shooting in his direction and because the use of the title “Major” may have misled and confused the jury by suggesting shooting at a major was a more serious offense than shooting at a private citizen. We disagree.

The evidence favorable to the state shows that the defendant “shot at” Major Gorris. On the night of December 1, 1976, Officer Rushing responded to a call to report to an address in O’Fallon, Missouri. He spoke momentarily with defendant’s wife and son. Shortly after Officer Rushing arrived, the defendant fired a revolver in the direction of the officer. Defendant held the revolver in his right hand, and he stood in the doorway of his home when he fired. Officer Rushing called for assistance and asked that Major Melbourne Gorris, the police administrator of O’Fallon, be notified. The defendant again fired in the direction of Officer Rushing before the episode concluded one to two hours later.

When Major Gorris arrived, he first went to talk with defendant’s wife and then took a position outside the defendant’s house. Major Gorris identified himself to the defendant and endeavored to speak with defendant through a bullhorn. During the episode, defendant would periodically appear at his door or step out of his door. On one occasion, defendant opened the door and fired a shot. Major Gorris heard the blast, saw the flash, and heard what sounded like a bullet go past and hit just behind him. Gorris had “heard that before.”

The police officers who testified maintained the shape of the flash produced when defendant fired his gun in the dark and the position of defendant’s arm when he fired indicated defendant pointed the gun with his right hand and fired in the direction of Major Gorris and another officer rather than into the air. A neighbor confirmed the shape of the flash from defendant’s gun. During the episode, defendant made threats to kill police if they did not kill him. One bullet did hit Gorris’s car, leaving a crease in the car. The police also recovered a spent .38 caliber slug from the area in which Major Gorris had been during the shooting episode. This slug was identified as having been fired from defendant’s gun.

The episode giving rise to the charges ended when Major Gorris wounded defendant in his leg and took defendant into custody. At the time defendant was shot, defendant was turning his right arm toward Major Gorris with a .38 caliber revolver in his hand.

It is axiomatic that an instruction must be supported by the evidence. State v. Carter, 559 S.W.2d 572, 574 (Mo.App.1977). However, we believe the foregoing evidence sufficiéntly proves defendant shot in the direction of Major Gorris and supports the instruction requiring the jurors to find defendant “shot at” Major Gorris. The evidence need not be indisputable that the defendant aimed and shot at the particular prosecuting witness. State v. Duncan, 568 S.W.2d 598 (Mo.App.1978) (evidence defendant discharged a shotgun in the direction of a police officer justified a conviction for an assault upon a different police officer also in that direction but unknown to defendant).

We also disagree with defendant’s contention that the instruction’s reference to the prosecuting witness as “Major Melbourne Gorris” misled and confused the jury. Throughout the trial, the witness in question was referred to as Major Gorris. Further, during the shooting episode, the witness had identified himself as Major Gorris to defendant over a bullhorn. Appellant’s contention has no merit.

Defendant’s appeal also contends the trial court erred in failing to instruct the jury upon the lesser included offense of assault with intent to kill without malice because sufficient evidence was before the court to show lack of malice.

Our review of the transcript does not reveal evidentiary support for defendant’s contention he was entitled to an instruction upon assault with intent to kill without malice. Defendant’s evidence shows: Defendant heard someone call to him to come outside to talk. When he opened the door to his home, gun shots were fired. Defendant is left-handed and could not fire a gun with his right hand. He had a gun but only shot it up into the air and after the police had fired upon him. Periodically, shots would hit his house. He spoke to the police from his doorway after the police threatened they were going to use tear gas. He then turned around in his doorway, and the next thing of which he was aware was that he was shot. At the time he was shot, he carried his .38 revolver in his left hand. Another gun was unloaded and laying on his couch. He had not exited his house upon police request because he was afraid to come out without the F.B.I. being present. He never aimed his gun at anyone, and he believed that the police framed him to avoid trouble for shooting defendant.

Defendant’s evidence would tend to support the finding that no assault occurred at all, and the trial court properly instructed on that point. Such was not evidence to support a submission of assault without malice. State v. Ingram, 568 S.W.2d 562, 563-64 (Mo.App.1978); State v. Webb, 518 S.W.2d 317, 321 (Mo.App.1975). A defendant is not entitled to an instruction upon assault with intent to kill without malice or assault with intent to do great bodily harm as lesser included offenses of assault with intent to kill with malice if the defendant’s evidence denies any assault. In such case, the defendant is either guilty of an assault with intent to kill with malice or he is not guilty of any offense. State v. Ingram, supra (defendant’s defense was alibi); State v. Webb, supra (defendant’s defense was that his gun accidently discharged when the uninjured victim struck defendant’s hand).

Finally, defendant’s appeal contends that the court erred in permitting Officer Anderson to testify as to his observations of the shooting for the reason that such testimony was not revealed to defendant in response to his discovery request.

O’Fallon Police Officer Anderson was called by the state as a witness. After testifying concerning the seizure and the chain of custody of two guns, he began to relate his observations of the shooting incident. Defendant objected upon the ground that he was not advised that Anderson was an eyewitness to the shooting. Out of the hearing of the jury, Anderson testified that he made no written report concerning what he witnessed at the shooting. However, he had told Major Gorris what he saw. Major Gorris’s written report, a copy of which had been received by defendant pursuant to discovery request, did list Officer Anderson as a witness. In addition, Anderson testified that, prior to trial, he had not informed the prosecuting attorney that he was a witness to the shooting. The prosecuting attorney confirmed this stating that the only thing he knew about Officer Anderson as an eyewitness was that he was listed on Gorris’s report as a witness. The prosecutor stated he possessed no statement by Anderson other than that which had been given to the defendant pursuant to the discovery rules. The trial court overruled the objection and Anderson testified as to what he saw on the night of the incident.

Rule 25.32 reads, in part, as follows:

“(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control designated in said request:
(1) The names and last known address of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memo-randa reporting or summarizing part or all of their oral statements;
(2) Any written or recorded statements and the substance of any oral statements made by the defendant or by a co-defendant, a list of all witnesses to the making, and a list of all witnesses to the acknowledgment, of such statements, and the last known addresses of such witnesses;”

It is clear that Officer Anderson’s statement was only made orally to his superior officer, and equally clear that the prosecutor first learned of this statement, and of the scope and importance of Anderson’s testimony, at trial. Rule 25.32(A)(1) does not require categorizing and summarizing of witnesses and their testimony. State v. Tate, 543 S.W.2d 514, 517-18 (Mo.App.1976). The Rule only requires the disclosure of existing statements or memoranda. See generally, State v. Buckner, 526 S.W.2d 387 (Mo.App.1975). In the instant case, the prosecutor possessed no written or recorded statement by Officer Anderson not disclosed to the defense and disclosed the only memoranda reporting Officer Anderson’s oral statement, Major Gorris’s report that Officer Anderson was a witness. No violation of the discovery rules occurred.

Judgment affirmed.

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


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Delbert LEWIS, Appellant, v. COLUMBIA MUTUAL INSURANCE CO., Respondent.
    No. 11099.
    Missouri Court of Appeals, Southern District, En banc.
    Sept. 10, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 3, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      William H. McDonald, Lynn C. Rodgers, Woolsey, Fisher, Whiteaker & Stenger, Springfield, for appellant.
    Hamp Ford, Marvin E. Wright, Knight, Ford, Wright, Atwill & Parshall, Columbia, for respondent.
   PER CURIAM:

Plaintiff appeals from an adverse judgment after a jury trial and verdict against him. His sole contention on appeal is that the court erred in giving an instruction, at the request of defendant, defining “windstorm”. No definition instruction for “windstorm” is provided in MAI.

The transcript on appeal contains none of the evidence. Rule 81.16 provides a procedure for omitting evidence in the transcript when an appellant desires only to have reviewed legal questions with respect to instructions. This rule provides that a statement be filed showing the points relied on by the appellant and what material fact or facts the evidence tended to prove. The respondent has the option of admitting that the statement is correct, or denying it and requiring that evidence be included. No such statement is shown in the transcript.

On the present record, we conceivably could determine if the instruction was improper. That would be but a portion of our duties. If we determine that the instruction is erroneous, then we must decide its prejudicial effect. Rule 70.02(c). We cannot reverse, unless we find error was committed against the appellant “materially affecting the merits of the action”. Rule 84.13(b). This determination cannot be made on conjecture. Farrar v. Moore, 416 S.W.2d 711 (Mo.App.1967). In the absence of evidence or the statement required by Rule 81.16, any determination as to how the error affected the merits would be based on conjecture. It was the duty of the appellant to furnish a transcript conforming to the rules of civil procedure and containing information sufficient for this court to determine the questions on appeal. Rules 81.-12 and 81.14; Empire Gas Corp. v. Randolph, 552 S.W.2d 82 (Mo.App.1977). As the transcript does not contain evidence necessary for a determination of the issues or the statement provided for in Rule 81.16, it does not comply with Rules 81.12, 81.14 or 81.16. Scarato v. Hayward, 446 S.W.2d 135 (Mo.App.1969).

We recognize the holding in cases such as Murphy v. Land, 420 S.W.2d 505 (Mo.1967), that deviations from MAI will be presumed prejudicially erroneous, and the burden of establishing lack of prejudice is on the proponent of the instruction. Even if we find that “windstorm” should not be defined or that the instruction was not drafted in keeping with Rule 70.02(e), as plaintiff contends, we should not reverse when we have no record before us to determine if prejudice could have occurred. To reverse, based only upon such a presumption or burden of proof, would not be a finding that error was committed materially affecting the merits of the action and would be in violation of Rule 84.13(b). Appellant had the responsibility to furnish us a sufficient transcript to make that determination. This was not done. We do not have the information before us to determine the materiality of any error. We cannot speculate on the effect of the instruction, if it was error. Therefore, we must affirm the judgment.

The judgment is affirmed.

All concur.

      . All references to Rules are to V.A.M.R.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Danny Ray CHOATE, Appellant.
    No. 41139.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 11, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 15, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Gary L. Robbins, Public Defender, Jackson, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   DOWD, Presiding Judge.

Danny Ray Choate pleaded guilty on June 3rd, 1974, to Second Degree Burglary and Stealing, pursuant to a plea bargaining agreement with the prosecutor. Upon accepting the plea, however, the court rejected the prosecutor’s recommended sentence of four years with suspended execution of sentence and credit for time served. Rather, the judge suspended imposition of sentence and placed the appellant on four years probation.

Approximately one year after the sentencing hearing, the appellant was convicted and sentenced on two charges unrelated to the original burglary charge. His probation was revoked after it was determined in a hearing that he had violated its terms. On March 11, 1976, the appellant was sentenced on the 1974 burglary plea to a term of five years. Over two and one-half years later, on October 13, 1978, appellant filed a motion to vacate or correct his sentence under Rule 27.26 VAMR. Judge Stanley Grimm denied appellant’s motion without an evidentiary hearing, holding that the record conclusively showed that appellant was entitled to no relief. Choate appeals Judge Grimm’s denial.

Appellant’s sole contention on appeal is that the trial judge erred in denying his 27.26 motion without holding an evidentiary hearing. He argues that such a hearing should have been held since he had raised issues of fact which were not a part of the record. Appellant contends that his plea was involuntary due to the trial court’s failure to fully explain the sentence after rejecting the plea bargain agreement. He claims that he believed the maximum sentence he could receive was four years and would not have pleaded guilty if he believed he would receive more than a four year sentence.

This court will presume that findings of fact and conclusions of law by a trial judge are correct unless they are clearly erroneous. Such findings and conclusions are clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Anderson v. State, 487 S.W.2d 455, 460 (Mo.1972). The appellant argues that the court’s denial of his motion without an evidentiary hearing was such a mistake.

For a 27.26 movant to be entitled to an evidentiary hearing, he must plead facts, not conclusions, which if true, and not refuted by the record, would warrant relief. Breeland v. State, 568 S.W.2d 564, 569 (Mo.App.1978). If the files and records are conclusive in showing as a matter of law the movant is entitled to no relief an evidentia-ry hearing is unnecessary. Childers v. State, 502 S.W.2d 249, 251 (Mo.1973).

In a claim such as this, where it is contended that the trial court failed to fully explain the sentence after rejecting the plea bargain agreement, the record of the sentencing proceeding would generally be determinative of the claim. From our review of the record, we cannot say the trial court erred in finding that the record conclusively showed that the appellant was entitled to no relief.

The court specifically told the appellant that by pleading guilty, he faced “the possibility of two to ten years in the Missouri State Penitentiary”. The judge repeatedly warned the appellant that the court was not bound by the plea agreement. The judge said that if he determined that appellant should go to prison, he would send him to prison. The judge also warned appellant if the presentence investigation was unfavorable he would send appellant to prison. The appellant consistently answered that he understood the judge’s statements. Appellant said that he was willing to take the calculated risk of being sent to prison. The judge then said that he was not going to sentence appellant that day, that he was going to suspend imposition of sentence and put appellant on probation for four years, subject to a favorable presentence report.

Nothing in this would indicate to the appellant that the maximum sentence he could receive would be four years. A plea is not involuntary merely because of an unreasonable expectation or disappointed hope of a lesser sentence. McMahon v. State, 569 S.W.2d 753, 758 (Mo.1978).

Here the judge carefully apprised the appellant of the risks he ran by pleading guilty. The record conclusively refuted the appellant’s claim of involuntariness. As such, a hearing was unnecessary and the judge was within the bounds of his discretion in denying appellant’s motion without holding a hearing. This point is ruled against the appellant.

Judgment affirmed.

REINHARD and CRIST, JJ., concur.

      . It must be noted that since this guilty plea was entered on June 3rd, 1974, the cases of Scheilert v. State, 569 S.W.2d 735 (Mo. banc 1978) which requires that the defendant be given an opportunity to withdraw a guilty plea when the court has rejected the plea bargain agreement, and Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978) which requires the appointment of counsel to assist indigent pro se 27.26 movants, are prospective in application and therefore do not apply to this appeal.


author: SATZ, Judge.

text:
    In re the MARRIAGE OF Norman E. HAYDEN and Penny L. Hayden. Norman E. HAYDEN, Petitioner-Appellant, v. Penny L. HAYDEN, Respondent.
    No. 40691.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 11, 1979.

      John L. Oliver, Jr., Oliver, Oliver & Jones, P. C., Cape Girardeau, for petitioner-appellant.
    Michael A. Price, Richey & Price, Cape Girardeau, for respondent.
   SATZ, Judge.

In this cause, the trial court entered an order dissolving the marriage of appellant (husband) and respondent (wife) and awarded custody of their eight year old son, Scott, to the husband and custody of their four year old daughter, Amy, to the wife. The court also devised a temporary custody and visitation plan and divided the marital property. On appeal, the husband raises the single issue: whether the trial court erred in awarding custody of Amy to his ex-wife instead of him. We affirm the judgment of the trial court.

At trial and on appeal, the husband attempted to show that his ex-wife had demonstrated a pattern of emotional inability to cope with the children, had physically and verbally abused them, had consistently neglected their physical well being, had been guilty of moral indiscretions while the children were in their home, had no definite plans for the care of the children, and could not cope with everyday life without large doses of a tranquilizing drug. From this record as construed by the husband, he contends that the trial court had no alternative but to award the custody of Scott to him; and, further, he argues, there were no exceptional circumstances requiring separation of Amy from Scott and, thus, the custody of both Amy and Scott should have been awarded to him. We do not agree.

Our review of this court-tried case is defined by Rule 73.01, which directs us to review the case upon both the law and evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. We are to sustain the trial court’s decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Blessing v. Blessing, 539 S.W.2d 699, 702 (Mo.App.1976). More specifically, the trial court’s determination of child custody is not to be lightly cast aside and we are to defer to that determination unless we are firmly convinced that the welfare of the children requires some other disposition. Johnson v. Johnson, 526 S.W.2d 33, 36-37 (Mo.App.1975); Ackfeld v. Ackfeid, 483 S.W.2d 614, 616 (Mo.App.1972). We also keep in mind that the child’s best interest is the cardinal principle controlling child custody issues. It is not a factor which itself is placed on the legal balance scales but rather it is the single standard by which all relevant factors are to be measured.

We have reviewed the present record in the light of these principles and guidelines with, we believe, the same painstaking concern and meticulous care shown by the parties and, hopefully, with the same sensitivity and perspicacity shown by the objective and sensible trial judge, who heard evidence in this case for an approximate three-day period.

The trial judge awarded a child to each parent and, thus, implicitly found both husband and wife to be fit parents. E.C.S. v. J.D.L., 529 S.W.2d 423, 425-426 (Mo.App.1975). No useful purpose would be served by restating in detail the specific evidence the trial court could have chosen to believe in reaching the implicit finding that the wife was a fit parent. However, without intending to place greater weight on the following evidence by singling it out, we do note, for example, that the children’s pediatrician saw no evidence of child abuse or neglect and, aside from Scott’s diagnosed hyperactive condition, he considered both children to be healthy and normal. In addition, a six year friend of the family, who, as a close neighbor, spent a good deal of time with the family, collectively, and the wife and children, individually, described the family, in detail, as a normal household and the children as being properly cared for and nurtured by the wife as well as the husband. With this and additional evidence, the trial court could and did properly find no support for the husband’s complaints about his ex-wife’s fitness. On the present record, then, neither the wife nor the husband were demonstrably unfit to be custodian, and, with both of them seeking custody, the wife sensibly could be considered to be a better custodian for a child as young as Amy. In re Marriage of Zigler, 529 S.W.2d 909, 913 (Mo.App.1975); S.G.E. v. R.L.J., 527 S.W.2d 698, 703 (Mo.App.1975).

Having agreed with the trial judge’s decision that the wife was a fit parent and, thus, a fit custodian for Amy, we are not directly confronted with the separation of Scott from Amy for, as indicated, that issue has not been directly raised in this appeal. However, Scott’s separation from Amy may well affect Amy’s interest and welfare, and, addressing this issue, we do find that Scott’s separation was proper in the present case.

While we have often stated that absent exceptional circumstances the children of divorced parents should not be separated, we have repeatedly emphasized that the trial court has the power to decree such separation as long as the separation serves the best interests of the children. E.C.S. v. J.D.L., supra; J. v. E, 417 S.W.2d 199, 203 (Mo.App.1967). As noted, Scott has been diagnosed as a hyperactive child. He and Amy resided with their father, the husband, from the filing of the petition for dissolution, in September, 1977, through the completion of the hearings in February, 1978. During this period, Scott’s behavior and scholastic ability showed marked improvement. It is not clear from the record whether Scott’s improvement was due to his separation from his mother, or to his continuing medical care and treatment, or to a specific change in his medication, or to the interest, concern, training and teaching of an exceptionally able first grade teacher; or whether his improvement was the synergistic effect of all these factors. However, given these facts, the trial court followed the sensible and rational path of allowing Scott to remain with the husband and, at the same time, insured Scott’s and Amy’s continued sibling association through the court’s thoughtful custody and visitation plan.

The facts of this ease presented no clear choice to the trial court. The wife was not shown to be guilty of child abuse, neglect or serious moral impropriety; nor, for that matter, was the husband. Therefore, upon this record, we cannot say the best interests of the children, and, in particular Amy, would be served by a different disposition of their custody; and we affirm the judgment of the trial court.

DOWD, P. J., and SMITH, J., concur.


author: SMITH, Judge.

text:
    ST. LOUIS HOUSING AUTHORITY, a municipal corporation, Appellant, v. Yvette SELFE, Respondent.
    No. 40271.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 11, 1979.
    Klutho, Cody & Kilo, Edward C. Cody, Warren W. Friedman, St. Louis, for appellant.
    Richard D. Chase, Legal Services of Eastern Mo., St. Louis, for respondent.
   SMITH, Judge.

Plaintiff appeals from an adverse judgment in an unlawful detainer suit tried to the court. The court found that on the evidence before it the plaintiff had failed to establish that defendant had violated the terms of her lease.

We have reviewed the transcript and exhibits and find the judgment is supported by substantial evidence and that no error of law appears. We also determine that an opinion would have no precedential value and affirm the judgment pursuant to Rule 84.16(b).

Judgment affirmed.

SNYDER, P. J., and PUDLOWSKI, J., concur.


author: PREWITT, Judge.

text:
    Donald Ray TRIMBLE, Movant, Appellant, v. STATE of Missouri, Respondent.
    No. 11263.
    Missouri Court of Appeals, Southern District, En Banc.
    Sept. 13, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 9, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      John R. Sims, Ruyle & Sims, Neosho, for movant, appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   PREWITT, Judge.

Appellant appeals from the trial court’s denial of his motion, filed under Rule 27.26, V.A.M.R., to vacate his conviction and sentence. Appellant pled guilty on March 8, 1977 to first degree robbery. Section 560.-135 RSMo 1969. He was sentenced to seven years imprisonment.

Appellant contends that his conviction and sentence should be vacated because he was incorrectly advised before his plea that the range of punishment included the death penalty. His plea was entered after § 560.-135, RSMo 1969 had been amended to delete the possibility of the death penalty. Appellant also contends that the trial court erred in making insufficient findings of fact to support the determination that the plea was voluntarily made. He further claims that his plea was not voluntarily entered because his attorney gave him assurance of receiving a parole in January, 1978, which he did not receive.

Appellant testified that he had been told by other inmates, while in jail before his plea of guilty, that he could receive the death penalty. He contends that it was the fear of this possibility that caused him to enter into a plea bargain arrangement which resulted in the guilty plea. Appellant testified that his attorney never discussed the range of punishment or mentioned the possibility of a death sentence to him. When he appeared to enter his plea, he was told by the court that he could receive five years to life with the possibility of death. This was apparently caused by the method his attorney used in filling out a form required before the plea. The range of punishment was copied from the bound volume of Vernon’s Annotated Missouri Statutes without looking at the pocket part. The attorney testified that the form was prepared after the plea bargain arrangement had been worked out and appellant had agreed to it. The attorney also made agreements regarding charges in Jasper and Lawrence Counties as a part of the plea bargain.

The trial court made findings by entries on the court’s docket sheet, and in a formal findings of fact. The court found that appellant had been incorrectly advised of the range of punishment but that the possibility of a death sentence did not influence appellant’s decision to enter a plea of guilty. The trial judge found that appellant’s attorney had not told appellant that he would be paroled in January, 1978, or on any date. The judge further found that appellant made the guilty plea voluntarily, with a full understanding of the implications and consequences of the plea.

Our review is to determine if the trial court’s findings, conclusions and judgment are clearly erroneous. Rule 27.26(j), V.A. M.R.

We first consider the question raised regarding the erroneous sentencing information. The trial court found that the possibility of a death sentence was never an issue which influenced the plea. It was after his attorney was able to successfully obtain an agreement on pending cases in Jasper, Newton, and Lawrence Counties, with sentences to run concurrently, that the defendant decided to enter a plea of guilty. The arrangement was found by the trial court as “an excellent disposition” for appellant of this charge. At the time that appellant decided to plead guilty, he says that the range of punishment had not been discussed with his attorney, and he was relying on what inmates in the jail had told him. It was not until after the plea bargain arrangement was made and agreed to, that someone else told him of the range of punishment. Appellant testified that he thought if he went to trial he might get the death penalty, and if he pled guilty, he could be out in January of 1978. His thoughts were apparently not communicated to anyone else. These thoughts are not consistent with the facts as they appear and as found by the trial court. Even if appellant’s testimony was partially undisputed, it was for the judge to determine, and the judge could disbelieve the testimony, even when uncontradicted. Labor Discount Center, Inc. v. State Bank & Trust Co. of Wellston, 526 S.W.2d 407, 420-421 (Mo.App.1975).

Under the facts as found, no prejudice is shown due to appellant receiving the erroneous sentence information. He was not threatened with death, and the possibility of a death sentence was never discussed by appellant and his attorney. It was not an issue which influenced his decision. He got the sentence agreed. No prejudice to him having occurred, he is not entitled to vacate the conviction. Keel v. United States, 585 F.2d 110 (5th Cir. 1978). In Keel, a similar question was presented. There a plea bargain was agreed to, and petitioner received the sentence agreed. In the process of entering the plea he was erroneously advised by the court that the sentence could be as much as forty-five years, when the maximum was twenty-five years. It was held that as no prejudice occurred, he was not entitled to relief.

Appellant contends that the court’s findings of fact were insufficient to support the determination that the plea of guilty was voluntarily made, with a full understanding of the implications of the plea. The trial court’s findings covered all issues presented. They were sufficient for us to determine whether those findings, the conclusions, and the judgment of the court, are clearly erroneous. Nothing more is required. Bradley v. State, 564 S.W.2d 940, 943 (Mo.App.1978).

Appellant’s last point is that he entered the plea because his attorney gave him assurance of a parole in January, 1978, and he was not so paroled. The attorney denied having made such a statement. The trial court found that no representation regarding parole was made. The court’s finding was supported by the evidence. Weighing the evidence and assessing the credibility of witnesses was for the trial court. Baysinger v. State, 552 S.W.2d 359 (Mo.App.1977).

The findings of the trial court, its conclusions and judgment were supported by the evidence. Such findings are clearly erroneous only when we are left with a firm conviction that a mistake has been committed. Bradley v. State, supra, 564 S.W.2d at 943. No such mistake appears here.

The judgment is affirmed.

All concur.


author: GUNN, Judge.

text:
    Tom COOK and Betty Jo Cook, Plaintiffs-Appellants, v. AMERICAN MAINTENANCE CO., Defendant-Respondent.
    No. 40870.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 18, 1979.
    Roesel & Scher, Isadore Scher, Clayton, for plaintiffs-appellants.
    Richard B. Dempsey, David L. Baylard, Shifrin, Treiman, Barken, Dempsey & Ul-rich, St. Louis, for defendant-respondent.
   GUNN, Judge.

Plaintiffs-appellants, as lessors, filed suit in magistrate court against defendant-respondent, as lessee, for two months past due rent. Defendant counterclaimed for damages as a result of plaintiffs’ alleged negligence in the maintenance of the leased premises. The magistrate court’s judgment was for defendant on plaintiffs’ petition and for plaintiffs on defendant’s counterclaim. Both parties appealed to the St. Louis County circuit court. Plaintiffs’ appeal recited that it was from the judgment rendered in magistrate court “for $No and costs, in favor of said Defendant against the said Plaintiff”. Defendant’s appeal recited that it was from the judgments on plaintiffs’ petition and the defendant’s counterclaim. The two appeals were properly consolidated for circuit court appeal. Subsequently, defendant filed a motion in the circuit court to dismiss plaintiffs’ appeal as being from only a portion of the judgment as no mention was made about the judgment on defendant’s counterclaim. In something entitled “Plaintiffs’ Motion to Dismiss Defendant’s Motion to Dismiss”, the plaintiffs argued that failure to make reference to a counterclaim in a notice of a magistrate appeal does not invalidate the appeal when there is no express intention to exclude the counterclaim from the appeal, citing Davenport Vinegar & Pickling Works v. Shelley, 280 Mo. 393, 217 S.W. 267 (1920). On motion of defendant, the circuit court dismissed both parties’ appeals. We must reverse and remand.

The identical situation which confronts us was presented in State ex rel. Wade v. Dalton, 559 S.W.2d 47 (Mo.App.1977). In citing Davenport Vinegar & Pickling Works v. Shelley, supra, this court held that a notice of appeal, which was a replica of the one filed here by plaintiffs, was sufficient despite the failure to specifically mention a counterclaim. Although plaintiffs’ brief seems to willfully abandon their only valid issue on appeal, after having raised it in their motion to the trial court, redemption for them is found in Rule 84.-13(c). Any holding contrary to a finding of sufficiency in plaintiffs’ notice of appeal would result in manifest injustice and, thus, plain error. To hold otherwise would be a misstatement of the law and a rendition of improper legal rubric. State ex rel. Wade v. Dalton, supra.

Plaintiffs also claim that the circuit court is without jurisdiction to consider the appeal, but we reject that argument.

Plaintiffs further assert that the magistrate judgment was incomplete since there was no award regarding possession of the leased premises. There is no evidence in plaintiffs’ petition or the record that the action instituted was for possession of the premises. Separate actions for possession and rent are provided under §§ 441.200 and 535.010, RSMo 1969. There was nothing for the magistrate court to consider with regard to possession.

The judgment is reversed and remanded.

REINHARD, P. J., and CRIST, J., concur.

      . Suit was filed and tried in magistrate court prior to January 2, 1979.

      . For some esoteric reason, unexplained in the record or briefs, plaintiffs have chosen to denominate the defendant’s notice of appeal as a “supplemental appeal”.

      . But see: Preston Plumbing, Inc. v. Melman, 528 S.W.2d 524 (Mo.App.1975); Rudy-Fick, Inc. v. Snider, 363 S.W.2d 16 (Mo.App.1962); Gloria Lee Realty Co. v. Madigan, 243 S.W.2d 118 (Mo.App.1951), in which the intent to restrict an appeal to only a portion of the judgment was manifest from the notice of appeal.

      . Defendant has moved to dismiss plaintiffs’ appeal for violation of Rule 84.04. And, indeed, plaintiffs’ brief is no paradigm to follow. But in view of our holding we must deny the motion to dismiss.


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Respondent, v. Winifred ANKROM, Defendant-Appellant.
    No. 41191.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 18, 1979.

      Schaper & Woods, Bowling Green, for defendant-appellant.
    Bruce A. Ring, Chief Counsel, Thomas E. Cheatham, Asst. Counsel, Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

The property owner in a condemnation proceeding raises two points of alleged trial court error in her appeal: (1) in excluding evidence of comparable land sales; (2) undue restriction in cross-examination of the State Highway Commission’s expert witness. We affirm.

The State Highway Commission condemned a portion of the appellant property owner’s farm near Bowling Green for highway purposes. The property owner called two expert witnesses to testify as to alleged comparable land sales. The first witness testified that damages for the taking were $113,805. His opinion was based on six alleged comparable sale transactions involving developed tracts of land, ranging in size from one to six acres, with all having access to public roads. On objection, the trial court ruled that the tracts were not comparable as a matter of law to the condemned land, a one-hundred acre farm tract served by a fifteen foot private road. The court also excluded the testimony of the second expert witness as to a sale of a sixteen acre tract. Again, the court ruled that the sale of the tract was not comparable, in that it was improved and unsuitable for farming, fronted a highway, and the sale had taken place after a condemnation.

The property owner’s first point on appeal urges that the trial court erred in excluding testimony regarding the sales transaction as not being evidence of comparable sales. The precept serving as guidepost for our review of this point provides: “[t]he question of similarity of properties for the question of showing the value of real estate and admitting evidence of comparable sales is a matter within the discretion of the trial court.” Kelso v. C.B.K. Agronomics, Inc., 510 S.W.2d 709, 729 (Mo.App.1974). Accord: State ex rel. State Hwy. Com’n v. Jasper, 544 S.W.2d 554 (Mo. banc 1976); State ex rel. State Hwy. Com’n v. Sams, 484 S.W.2d 276 (Mo.1972); State ex rel. State Hwy. Com’n v. Drisko, 537 S.W.2d 645 (Mo.App.1976).

The landmark case governing the determination whether collateral sales are admissible as comparable sales is In re Armory Site in Kansas City, 282 S.W.2d 464 (Mo.1955), which states:

The importance of evidence of the sale price of other land depends upon the degree of nearness of the sale in point of time and the proximity of the property, of the similarity in location, and in the use to which the property may be adaptable. In determining the admissibility of evidence of this nature there necessarily must be considerable discretion on the part of the trial judge. In order to establish that error resulted in rejecting evidence of this nature, it is incumbent on the party offering it to show by offer of proof or otherwise that the evidence is admissible. Id. at 473.

Disparity of the size of the land tracts is also a relevant factor in determining whether a collateral sale is admissible as being comparable. See: City of St. Louis v. Kisling, 318 S.W.2d 221 (Mo.1958).

Further, the record is destitute of any offer of proof regarding the land sales relied on by the property owner which would indicate any relevant comparison without such offer of proof. Therefore, we cannot reverse the trial court for excluding the answers to the property owner’s questions. Cobb v. R. W. Beasley Const. Co., 536 S.W.2d 535 (Mo.App.1976).

The property owner’s second point on appeal relates to the trial court’s restrictions on cross-examination of the Highway Commission’s expert witness. The property owner’s counsel sought to elicit information from the Highway Commission’s experts regarding certain of the land sales which had already been excluded as not being comparable by reason of the tract size differential. The claim was made that there was an undue stricture on the cross-examination. And, indeed, the property owner correctly postulates that wide latitude is to be allowed in the scope of cross-examination of an expert witness with the extent being within the trial court’s discretion. Board of Public Bldgs. v. GMT Corp., 580 S.W.2d 519 (Mo.App.1979). The sales involving the tracts of land about which the property owner’s experts sought to testify were found non-comparable. Cross-examination was aimed at those same tract sales. So, absent some showing of comparability, which was not forthcoming to any offer of proof, there was no abuse of discretion in the trial court’s action in limiting cross-examination. See: Cobb v. R.W. Beasley Const. Co., supra.

Judgment affirmed.

WEIER, C. J., and CRIST, J., concur.


text:
    In re the MARRIAGE OF Deborah C. SHEPHERD and Arnold L. Shepherd. Deborah C. SHEPHERD, Petitioner-Appellant, v. Arnold L. SHEPHERD, Respondent.
    No. 11181.
    Missouri Court of Appeals, Southern District, En Banc.
    Sept. 20, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 12, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Michael Baker, Springfield, for petitioner-appellant.
    William C. Morgan, Waynesville, for respondent.
   PREWITT, Judge.

Petitioner appeals from the trial court’s dissolution of marriage decree granting custody of the parties’ minor child to respondent. Petitioner’s only claim of error is in regard to that custody.

The parties were married on March 2, 1974, and one child, Jason, was born on March 31, 1976. They separated on December 29, 1977. Petitioner now lives in Brigham City, Utah, and works as a bank teller. Respondent lives in the mobile home, which had been their family home, in Dixon, Missouri. At the time of the trial he testified that he had been laid off temporarily from civil service work at Fort Leonard Wood and was working for his father. Both parties had made arrangements for others to care for Jason during working hours, petitioner with her sister, and respondent with a third cousin, age 66, who lives next door. Petitioner’s sister is a housewife who has been taking care of Jason in Brigham City. She lives two houses away from petitioner’s recently purchased three bedroom home. The sister has two little girls, two and four years.

Both parties demonstrated love and affection toward the child and a desire for custody. All evidence showed each a fit parent and that the child was happy, healthy, and well cared for with either one. Neither party had any complaints of the other’s care while with the child. There was disputed testimony that the child had a stuttering problem when he returned to Utah from a visit in Missouri while this action was pending. There were no questions raised about either’s moral character.

Petitioner contends that because of the age of the child it is presumed to be in his best interest that he remain with his mother, citing numerous cases. Such holdings do not set forth a strict rule which is conclusive. In re Marriage of Barr, 579 S.W.2d 833 (Mo.App.1979); In re Marriage of Chilton, 576 S.W.2d 584 (Mo.App.1979).

The often referred to principle that the mother is the better custodian for a child of tender years has been said to be merely a judicial statement of a common understanding of normal family relationships which foster the best interests of young children. In re Marriage of Carmack, 550 S.W.2d 815, 818 (Mo.App.1977). The validity of any such “presumption” in the present environment is questionable. Each person and family situation is different. The evidence indicated that the father was as adept at caring for the child as was the mother. Both were employed full time. If the mother is employed and gone from the home as is the father and has no more part in training and helping in the child’s development than the father and if everything else is equal, she has no better claim for custody. Randle v. Randle, 560 S.W.2d 876, 879 (Mo.App.1977); Stanfield v. Stanfield, 435 S.W.2d 690, 692 (Mo.App.1968). The court, in Stanfield, sets forth the basis of the “tender years presumption” and its applicability to a situation such as we have now before us:

“That statement of the law is of course based on the premise that the father will be at work earning a livelihood for his family, and that the child is of a tender age and that the mother will be in the home taking care of the child’s needs, training the child for citizenship, developing his moral background, spiritual culture, a sense of social response and reverence for God. The mother’s preferential right of custody hangs on the teaching of these elements. If the mother goes and returns as a wage earner like the father, she has no more part in the responsibility than he and it necessarily follows that all things else being equal she has no better claim when the matter of custody is at issue.”

Here we believe the issue of who should be granted custody should be decided not upon any presumption, but as a factual matter upon all the evidence. See In re Marriage of Barr, supra, 579 S.W.2d at 835; In re Marriage of H. B., 559 S.W.2d 73, 75 (Mo.App.1977).

Petitioner, in her brief, contends that the trial court must have found against her to punish her for moving to Utah after filing her petition. There is no basis or inference in the record to support that statement. Every indication is that the court fulfilled its duty to determine the best interest of the child in accordance with the guidelines for custody stated in § 452.375 RSMo 1969.

Petitioner also contends that the type of care to be provided favors her. Testimony was given by the petitioner, respondent, and others, as to the child’s care. Both parties worked and made arrangements for others to care for Jason during working hours. Petitioner’s sister and respondent’s cousin, the proposed custodians, testified. The trial judge was in a better position than we to judge the credibility of the witnesses and their sincerity and character and other trial intangibles which may not be determined from the record. In re Marriage of Chilton, supra, 576 S.W.2d at 585.

Petitioner cites In re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977) and In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975) among others. The facts in each case cited are necessarily different from the present situation. Of course, each case must be decided on its own facts. Petitioner puts emphasis on the holding in Zigler. There the appellate court reviewed the case “de novo” and reversed the granting of custody to the father. Since that decision, our scope of review has been clarified. In Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we are told that the decree or judgment of the trial court should be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

Petitioner cites Hart v. Hart, 539 S.W.2d 679 (Mo.App.1976) to show that the removal of the child from this jurisdiction should be permitted where it is clear that the best interest of the child will be thus served. We agree, but cannot say here that the trial judge had to make a finding that removal was in the child’s best interest.

The evidence did not clearly preponderate in favor of either party and the trial court is vested with broad discretion in awarding custody under such circumstances. Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975). Cases as this are difficult at every level of the judicial process. None of us has divine guidance to determine what actually is in the best interest of a child. Nor can we say that our opinion might be superior to one who saw and heard the witnesses and had to make that most difficult initial decision. The trial judge was in a better position to consider all of the evidence and factors than we and unless we are firmly convinced that the welfare of the child requires some other disposition we should affirm his finding. In re Marriage of Chilton, supra, 576 S.W.2d at 585. On the record before us we cannot say that his discretion was abused.

The judgment is affirmed.

All concur, except FLANIGAN, J., re-cused.


author: BILLINGS, Presiding Judge.

text:
    Roger J. ZINN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11280.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 21, 1979.
    Motion for Rehearing and for Transfer Denied Oct. 3, 1979.
    Application to Transfer Denied Nov. 14, 1979.
    Robert W. Richart, Edward J. Hershewe, Joplin, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Presiding Judge.

Roger J. Zinn filed a postconviction motion to vacate judgment and sentence under Rule 27.26, V.A.M.R., seeking relief from a court imposed sentence of 10 years following his jury conviction for burglary. The trial court conducted an evidentiary hearing and overruled the motion. We affirm.

Appellant’s points in this appeal are as follows: that he was unlawfully sentenced under the Second Offender Act [§ 556.280, RSMo 1969]; the failure of the trial court to make findings of fact and conclusions of law on appellant’s contention that certain evidence was erroneously admitted at his trial; and his averment of newly discovered evidence.

Appellant’s burglary conviction was affirmed by this court in State v. Zinn, 562 S.W.2d 784 (Mo.App.1978). His contention regarding his sentencing as a habitual criminal was squarely ruled against him. There, as here, he contended his prior conviction was tainted by ineffective assistance of counsel. Having been determined in his direct appeal, appellant cannot now have a second review of the matter in this postcon-viction proceeding. Sweazea v. State, 515 S.W.2d 499 (Mo. banc 1974).

In his direct appeal the appellant complained that impeachment evidence was improperly admitted. In Zinn, supra, 562 S.W.2d at 789[12], we declined review of this point because of appellant’s violation of Rule 84.04(e), V.A.M.R. The fact that we held the point was not preserved for appellate review does not alter the present situation. Any such error would fall in the category of trial error and is not reviewable in this proceeding. Cook v. State, 511 S.W.2d 819 (Mo.1974).

Newly discovered evidence is not cognizable in a motion to vacate sentence and appellant’s remaining point is denied. Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975).

The judgment is affirmed.

All concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jack WATSON, Appellant.
    No. 40297.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 25, 1979.

      John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Jeffrey A. Cowin, Asst. Circuit Atty., St. Louis, for respondent.
    Terry J. Flanagan, St. Louis, for appellant.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of illegal possession of a Schedule III controlled substance. Under the Second Offender Act the court assessed his punishment at 4 years in the Missouri Department of Corrections.

On the evening of September 6, 1977, defendant entered Dottie’s Tavern at 1951 Hebert Street. He engaged Francis Poul-ter, a patron of the tavern, in conversation and during the course of the discussion gave Poulter an orange pill. Poulter subsequently purchased two and one-half more of the pills for $3.00. He then notified the St. Louis Police Department of the events which had transpired at the establishment. Officers Booker and Wessel went to the scene to investigate the information.

Officer Wessel related the following sequence of events in his trial testimony. He stated that a short time after he arrived at the sight, he observed that Booker had the defendant in custody. He (Wessel) searched the defendant and discovered a plastic bag containing 40 orange tablets in his left front trouser pocket. Wessel then informed the defendant that he was under arrest for possession of a Schedule III controlled substance. He testified further that he gave the bag containing the pills to Booker who conveyed them to the Police Department and placed them in an evidence envelope.

State’s witness Harold Messier, a crimi-nalist, testified that his analysis of the tablets revealed them to be benzphetamine. The prosecution endorsed but did not call Officer Booker or Francis Poulter as witnesses. The State requested and was granted a protective order to prevent defendant’s counsel from arguing the failure of the State to call these witnesses.

Defendant’s first point on appeal is that the trial court erred in granting the protective order preventing defendant from commenting on the failure of the State to call Booker and Poulter. We do not agree.

The State is not required to call all witnesses known to it even though it may have endorsed the names of the persons in question as potential witnesses. State v. McClain, 531 S.W.2d 40, 45 (Mo.App.1975). However, courts have permitted a party to argue the adverse inference when the opposing party omits to call a witness who might reasonably be anticipated to give testimony in his favor. State v. Barron, 465 S.W.2d 523, 529 (Mo.1971). Yet, this rule does not apply unless 1) the testimony of the witness would be material and relevant to the issues and not merely cumulative or inadmissible, State v. Wallach, 389 S.W.2d 7, 13 (Mo.1965); State v. Davis, 504 S.W.2d 221, 225 (Mo.App.1973), and 2) the witness must at the time of trial be more available to the party against whom the inference is to be drawn, State v. Barron, 465 S.W.2d at 13; State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 648 (Mo.1942); State v. Ganaway, 556 S.W.2d 67, 68 (Mo.App.1977).

In the instant case, we find that Officer Booker’s testimony would have been cumulative to that of Officer Wessel’s. Booker could only have reiterated the same facts reported by Wessel, i. e., the search, discovery of the drugs, the arrest for possession, receiving the pills from Wessel and later packaging them at the police station. For a similar instance wherein a police officer was held to be equally available to both parties see State v. Benson, 574 S.W.2d 440, 443 (Mo.App.1978). The trial court has broad discretion in controlling the argument of counsel, State v. Williams, 546 S.W.2d 54, 55 (Mo.App.1976), and in determining whether the facts and preparation efforts of the litigants warrant an invocation of the inference that the witness not called would have testified unfavorably to the State, State v. Benson, 574 S.W.2d at 442; State v. Ganaway, 556 S.W.2d at 70. We find no abuse of discretion here. Neither do we find an abuse of discretion in the trial court’s decision to prohibit any comment on the State’s failure to summon Poulter as a witness. While he was present when the defendant was searched and arrested, his testimony about these events would have been cumulative to Wessel’s. Moreover we conclude, as did the trial court, that Poulter was equally available to the defendant as he was to the state. We rule this point against defendant.

Defendant’s final point alleges that the court erred by not suppressing the pills as the fruits of an unlawful arrest. Initially, we observe that defendant did not comply with the well-settled rule that he file a motion to suppress the controverted evidence, object to the introduction of the evidence at trial and raise the issue in his motion for new trial before raising it here on appeal. State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974). Thus, this issue was not preserved for review. Defendant requests, however, that we consider the question under the plain error rule.

In State v. Meiers, 412 S.W.2d 478, 480-81 (Mo.1967) our Supreme Court defined the general scope of plain error.

[T]here must be a sound, substantial manifestation . . ., a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked. We shall not invoke the rule in every case where it is claimed for the first time on appeal that this or similar state or federal constitutional rights have been violated, or for that matter, in every case where it may appear for the first time on appeal that such rights in fact have been violated.

We review the facts and circumstances of each case on an individual basis to determine “plain error”. State v. Sanders, 541 S.W.2d 530, 533 (Mo. banc 1976).

Here, the officers participating in the defendant’s arrest acted on information supplied by a citizen informant. Such a person may reasonably be presumed by an arresting officer to be reliable. State v. Perry, 499 S.W.2d 473, 475 (Mo.1973). Furthermore, nothing in the record indicates improper conduct on the part of the officers, or any failure by them to observe constitutional standards. We determine then, that neither a sound substantial manifestation of error nor a strong clear showing that injustice or miscarriage of justice will result if the plain error rule is not invoked.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


text:
    Raymond Charles MILENTZ, Appellant, v. STATE of Missouri, Respondent.
    No. 40303.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 25, 1979.
    David V. Uthoff, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Appeal from an order of the Circuit Court denying, after an evidentiary hearing, a Rule 27.26 motion attacking movant’s 1973 conviction for striking a police officer. This underlying conviction was affirmed in State v. Milentz, 521 S.W.2d 1 (Mo.App.1975). The events surrounding the offense are set out in detail in that opinion. The present Rule 27.26 motion was originally denied without an evidentiary hearing. On appeal, this court reversed and remanded for an evidentiary hearing on the issue of ineffective assistance of counsel because of failure to secure the testimony of certain witnesses as requested by movant. Milentz v. State, 545 S.W.2d 688 (Mo.App.1976).

On remand, and following the evidentiary hearing, the trial court found that the witnesses to which movant refers were present only at the scene of movant’s apprehension for unrelated charges, and that the offense for which movant was convicted herein occurred in an enclosed, moving police cruiser some eight blocks from that scene at a subsequent time. None of the omitted witnesses were alleged to have been at or near the scene of the actual offense. Based on the foregoing facts, the court below further found that the events taking place at mov-ant’s apprehension were in no way relevant to the offense charged, and that consequently none of the omitted witnesses could have offered testimony relevant or material to the defense of the charge. Therefore, the court found that defendant was not denied effective assistance of counsel.

We have examined the record of mov-ant’s Rule 27.26 hearing closely and carefully. The trial court’s findings of fact are fully supported by the record and are not clearly erroneous. Any further discussion of the issue would be of no edification to the bar or bench, and an extended opinion herein would be of no precedential value. Accordingly, we affirm the order entered below denying movant Rule 27.26 relief by memorandum opinion pursuant to Rule 84.-16(b).

The foregoing being wholly dispositive of the matter, it is not necessary to address the other issue raised by movant.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Nathaniel EDWARDS, Appellant.
    No. 40487.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 25, 1979.
    Robert C. Babione, Public Defender, James Porter, Asst. Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Second degree burglary conviction.

Defendant was found guilty by a jury of second degree burglary. The court assessed punishment at eight years under the Second Offender Act. We affirm.

The police were called to 4935 Rosalie for a burglary then in progress. As they arrived, they saw defendant and others climbing out of a window. Defendant ran after he was seen but was captured in the basement of a house on an adjacent street.

A pre-trial conference was conducted out of the presence of the jury to consider whether the defendant should be allowed to raise the subject of a possible investigation by the St. Louis Police Internal Affairs Division of the officers who were the witnesses for the state. Defendant made an offer of proof to show the materiality of the investigation to this case. He offered that the mother of the defendant would testify that she had filed various complaints against some of the arresting officers who were involved in this case and other officers who had arrested defendant for similar crimes in the past. An officer from the Internal Affairs Division testified that none of the witnesses in this case were under investigation by that division. The prosecutor asked for a protective order. The trial court concluded that no witnesses in this case were involved in the investigation and thus the matter was irrelevant and immaterial. The trial court granted the request for the protective order.

During the trial, defendant put on his mother and sister who testified that defendant could have been mistreated by the police officers who were witnesses in this case. The defendant then renewed his objection to the exclusion of any testimony on the subject of the investigation of the police officers. His offer of proof was as follows:

“My offer of proof would be that I would now put the defendant on to testify to the reason that he was running that morning from the police was because he had been arrested by the police in the past. He had been beaten by the police in the past, and he fully well expected to be beaten by them again.
And then I would further put Mrs. Edwards [defendant’s mother] back on the stand to testify that she had taken her son down and filed formal complaints against police officers in the past, which would be substantiated by these records.”

We further quote from the colloquy between the defense attorney and the court immediately thereafter:

“THE COURT: Let the record indicate that we did have earlier in the courtroom an officer from Internal Affairs Department who indicated that none of the witnesses in this case have ever had a complaint filed against them by Mrs. Edwards or the defendant. Is that substantially true?
MR. PORTER: That’s correct.
THE COURT: Objection overruled.
MR. PORTER: Your Honor, I want to make it clear my objection that they had not made any complaints against the particular police officers in this case.
THE COURT: My ruling is based on that.”

Defendant complains that he should have been allowed to place into evidence the offered testimony. He states the scope of his cross-examination of the officers was limited by the court’s restrictive ruling. The scope of cross-examination is largely within the discretion of the trial court, whose decision will not be disturbed except for an abuse of discretion. We find no abuse of discretion. State v. Platt, 525 S.W.2d 637 (Mo.App.1975); State v. Martin, 530 S.W.2d 447 (Mo.App.1975). Further, the offer of proof for the defendant was inadequate. At the pre-trial conference there was no way that the court could know of any relevance in the offer that “Mrs. Edwards will testify that she’s filed various complaints against some of the arresting officers that are involved in this case and other officers who had arrested him for this and similar crimes in the past.” The second, embellished offer of proof was not sufficient to bail out the defendant. State v. Umfrees, 433 S.W.2d 284, 286[1, 2] (Mo. 1968). Defense counsel made it plain that they were making no complaints against the particular police officers in this case. See United States v. Qualls, 500 F.2d 1238 (8th Cir. 1974), cert. denied, 419 U.S. 1051, 95 S.Ct. 628, 42 L.Ed.2d 646 (1974); United States v. Kirk, 496 F.2d 947 (8th Cir. 1974); and State v. Smith, 585 S.W.2d 540 (Mo.App.1979).

Judgment affirmed.

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


text:
    Frank T. HOLTKAMP, Appellant, v. STATE of Missouri, Respondent.
    No. 40568.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 25, 1979.

      Latney Barnes, Barnes & Barnes, Mexico, for appellant.
    John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, Cynthia MacPherson, Pros. Atty., Mexico, for respondent.
   DOWD, Presiding Judge.

Frank Holtkamp was charged by information with second degree murder in the death of his wife Delores. A jury in Au-drain County, Missouri found him guilty of manslaughter and imposed a ten year sentence. Holtkamp appeals.

Late at night on July 19, 1977, an argument developed between the appellant and his wife. A struggle apparently ensued in which Mrs. Holtkamp received a cut on the eyebrow. Appellant then smothered his wife with either his hand, a foam rubber couch pillow or both. He weighted her body down with concrete blocks and chains and pushed her into a creek near the house.

The next morning appellant reported his wife as a missing person. An intensive search of the area revealed nothing. After appellant had varied his story several times, the police began to suspect his involvement in the disappearance and took appellant to Jefferson City for questioning. He eventually led police to the body but denied ever intending to harm her. Appellant maintained that position throughout the trial.

At the trial, the court admitted into evidence photographs, of Mrs. Holtkamp’s partially decomposed body over appellant’s objection that they were being offered simply to inflame the jury. A pathologist testified that he could not say with reasonable medical certainty the cause of Delores Holt-kamp’s death but in response to a hypothetical question by the State, he said that given the hypothetical facts, one would assume she died of asphyxia.

The appellant raises six contentions of trial court error: that the information was defective; that the court should have sustained his objections to the hypothetical question asked of the pathologist; that the trial judge should have granted his motion for acquittal at the close of the State’s case; that the judge should have granted his motion for acquittal at the close of all evidence; that the manslaughter instruction given was defective; and, that photographs of the body and the concrete blocks he used as weights should have been excluded from evidence.

Appellant’s first point attacks the sufficiency of the information. He charges that it was not a plain, concise and definite written statement of the essential facts constituting the offense charged. He further claims that it was indefinite and failed to describe the way or manner in which the crime was committed and failed to fully inform him of the charged offense.

• [1,2] The first thing to note in responding to this allegation is that the appellant failed to file a motion for a bill of particulars at the trial level as provided in Rule 24.03 VAMR. If the appellant felt that the charge against him was not sufficiently detailed, he should have filed such a motion. State v. Jenkins, 494 S.W.2d 14, 17 (Mo.1973). Whenever an otherwise legally sufficient information lacks the detail a defendant needs to prepare his defense, a motion for a bill of particulars is the proper remedy. State v. Shell, 571 S.W.2d 798, 802 (Mo.App.1978). By failing to file such a motion, a defendant waives any objection he has to lack of detail. State v. Parker, 543 S.W.2d 236, 239 (Mo.App.1976). There is no such waiver, however, if the omissions in detail render the information “wholly insufficient and invalid.” State v. Kesterson, 403 S.W.2d 606, 611 (Mo.1966).

We cannot say that the information in this case was wholly insufficient and invalid. It charged:

“That Frank Holtkamp, on about the 20th day of July, 1977, in Audrain County, Missouri, feloniously, willfully, pre-meditatedly, intentionally, and of his malice aforethought did make an assault upon one Delores J. Holtkamp and in some way and manner and by some means, instruments, and weapons, to this complainant unknown, did then and there feloniously, willfully, premeditatedly, intentionally and of his malice, aforethought, assault said Delores J. Holtkamp causing by said mortal injury Delore [sic] J. Holtkamp did die on the 20th day of July, 1977, contrary to the form of the statute in such case made and provided, and against the peace and diginity [sic] of the State.”

Appellant’s attack on the sufficiency of the information stems primarily from the language “instruments and weapons, to this complainant unknown”, and “causing by said unlawful acts a mortal injury”. He contends that the information should have specified that he was being charged with smothering his wife with a pillow or his hand. This contention is without merit.

The Missouri Supreme Court has upheld the sufficiency of a first degree murder information which contained almost the identical language as here. State v. Poor, 286 Mo. 644, 228 S.W. 810, 813 (1921). That court has also held that the information need not state the exact manner of death. State v. Courtney, 356 Mo. 531, 202 S.W.2d 72, 73-74 (1947). This court has ruled that it is surplusage to specify the kind of weapon used. Henderson v. State, 546 S.W.2d 546, 547 (Mo.App.1977).

Under these standards, it appears that the present information was not wholly insufficient and invalid simply because it did not specify that the manner of death was suffocation and the weapon used was either a pillow or hand. Thus, the failure to file a motion for a bill of particulars was a waiver of any complaints the appellant might have as to the information’s specificity. Point one is ruled against the appellant.

The second point the appellant raises is that the court erred in overruling his objections to the hypothetical question asked of the pathologist who performed the autopsy. The appellant argues that the court should not have allowed the pathologist to answer the hypothetical question as to the cause of Mrs. Holtkamp’s death, since the question did not call for an answer based on reasonable medical certainty and the doctor was not asked if the hypothetical facts were sufficiently detailed for him to form an opinion.

The State called Dr. John Boyce as an expert witness to testify as to the results of the autopsy he performed on Mrs. Holt-kamp’s remains. He said that other than the putrefactive changes the body had undergone during decomposition, he found three defects in the skin or subcutaneous tissues. The autopsy revealed a large flap in the scalp, a defect in or around the eyebrow and a defect in the abdomen. He stated, however, that he did not observe any physical trauma which, in his opinion, probably caused the victim’s death.

Due to Dr. Boyce’s inability to pinpoint the cause of death, the State posed a hypothetical question to him. The prosecutor told him to assume that Mrs. Holtkamp had been free of disease at the time of death, that the scalp flap and abdominal defect resulted from post mortem decomposition, that the eyebrow defect occurred before death, that she weighed about 240 pounds, and that she had been diagnosed two years earlier as having slightly elevated blood pressure. The prosecutor asked him if, based on these facts, he could form an opinion as to the cause of death. Dr. Boyce answered that he had formed an opinion “that it probably was not a natural disease process”. He went on to say, “without a physical injury such as a crushing head wound or a disruption of a vital organ, one would assume that death occurred predominantly by asphyxia.”

The appellant objected that the question did not call for an answer based on reasonable medical certainty. While it is true that the prosecutor did not ask the pathologist if he could give an answer with reasonable medical certainty, he did ask if he could form an opinion based on the hypothetical facts. The doctor was testifying as a medical expert. He had already stated that it was impossible to determine the exact cause of death from the autopsy results because of decomposition. In response to the hypothetical, he was giving his educated opinion as to the cause of death given the hypothetical situation. He was not testifying as to the actual cause of death. This was only one piece of evidence for the jury to consider.

The trial judge possesses wide discretion in admitting opinion testimony. State v. McGraw, 571 S.W.2d 802, 804 (Mo.App.1978). Opinion testimony as to causation is admissible despite the fact that it does not go beyond “possibility”, “probability”, “could have”, or “might have” as long as it is accompanied by other corroborating causation evidence. State v. Banister, 512 S.W.2d 843, 846 (Mo.App.1974).

Such is the situation here. Dr. Boyce was testifying as to what he would consider to be the probable cause of death, given the hypothetical facts and based on his experience as a medical expert. Other evidence corroborated his hypothetical opinion that death was caused by asphyxia. The appellant was seen by his son, Steve, holding his hand over Mrs. Holtkamp’s mouth. His daughter, Lisa, heard “sniffles” coming from the front room after hearing her mother call out for her. The appellant admitted putting his hand over his wife’s mouth to quiet her down. A foam rubber pillow disappeared from the couch that night and the appellant had his son vacuum up pieces of the pillow the next morning. Pieces of foam rubber taken from the vacuum cleaner were stained with human blood and police found other pieces of foam rubber in Mrs. Holtkamp’s hair when they recovered her body. Corroborated by this evidence, it was not an abuse of discretion for the trial judge to allow the pathologist to answer the hypothetical question even though the opinion was only as to probable causation.

The appellant also objects that the State did not ask Dr. Boyce if the facts given in the hypothetical question were sufficient for him to form an opinion as to the cause of death. The State did, however, ask the doctor if he could form an opinion as to the cause of death based on the given facts. The difference between these two questions escapes this court. Asking if he could form an opinion based on the facts set out in the hypothetical and asking if the facts were sufficient to form an opinion are so similar that any difference would be negligible. Point two is ruled against the appellant.

Appellant’s third and fourth points are that the court erred in overruling his motions for acquittal at the close of the State’s evidence and at the close of all evidence. He contends that these motions should have been sustained since the State failed to prove the corpus delicti.

The point concerning appellant’s motion for acquittal at the close of the State evidence will not be considered since appellant presented evidence in his defense. When a defendant offers evidence on his own behalf, he fails to preserve his motion for acquittal at the close of the State’s case and so this court need only consider whether his motion for acquittal at the close of all evidence was properly overruled. State v. McQuerry, 406 S.W.2d 624, 626 (Mo.1966).

The standards for a claim of insufficient evidence are firmly established. When reviewing such a claim, this court should accept all evidence which supports the judgment and reject that which does not, indulging in every inference which bolsters the verdict. State v. Guelker, 548 S.W.2d 521, 525 (Mo. banc 1977), cert. denied 431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260. In applying this test both circumstantial and direct evidence are to be considered. State v. Stapleton, 518 S.W.2d 292, 296 (Mo. banc 1975). When all the evidence is circumstantial, as here, the State’s evidence must be entirely consistent with its theory of guilt. State v. Crow, 486 S.W.2d 248, 254 (Mo.1972). Such evidence, however, need not conclusively establish guilt nor absolutely refute innocence. State v. Franco, 544 S.W.2d 533, 534 (Mo.1976), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275). Although the State does have the burden of proving the cause of death beyond a reasonable doubt, it may do so using circumstantial evidence. State v. Tettamble, 431 S.W.2d 441, 443 (Mo.1968) (appeal after remand 450 S.W.2d 191).

As discussed in appellant’s second point, there was ample circumstantial evidence in this case that Frank Holtkamp suffocated his wife. All evidence support that conclusion except the appellant’s own denial and the pathologist’s testimony that the condition of the victim’s body precluded him from ruling out other possible causes of death.

Thus it is clear that the State offered sufficient consistent circumstantial evidence from which the jury could find the cause of death to be suffocation. Points three and four are ruled against the appellant.

The appellant’s fifth point concerns the instruction defining manslaughter which he attacks for two reasons. The first reason is that the State failed to prove the cause of death. This is merely a restatement of points three and four and has already been discussed. The second reason is that the form of the verdict would supposedly allow the jury to find him guilty, even though half of the jury believed that he used his hand to smother his wife and the other half believed he used a pillow.

The manslaughter instruction which the respondent tendered and the court gave was taken verbatim from MAI-CR 6.08. The appellant’s major objection to the instruction is that the words “by suffocating her” were inserted in the blank provided in MAI-CR 6.08 for inserting the means by which death was caused. He implies that the description should have been clarified by adding the instrumentality of suffocation such as “with his hand” or “with a pillow”.

This contention overlooks the suggested descriptions of cause of death in MAI-CR 6.08 which read “such as shooting, stabbing, cutting, or striking, without further description.” MAI-CR 6.08. If the drafters of the approved instruction had wanted the instruction to include the weapon or instrumentality used, they would not have included the words “without further description”. The use of this phrase makes clear the drafters’ desire for brevity.

Accordingly, the given instruction was sufficient in describing the cause of death as “suffocating her”. Point five is ruled against the appellant.

Appellant’s sixth and final point is that the court erred in admitting three photographs of the deceased and three concrete blocks with which appellant weighted down his wife in the creek.

After appellant had discovered that his wife was dead, he took her on a horse to a nearby creek. He attached two full concrete blocks to her sides and a one-half block between her ankles with logging chains. Appellant pushed her into the creek and reported her missing the next day.

Appellant testified that each day after concealing the body he returned to the creek to check on its condition. After about the second day, the body floated to the surface. The body subsequently split open and sank. At one point the appellant waded into the creek and wedged a stick into the mud to prevent the body from floating away. He placed an old log over the body to conceal it.

The appellant eventually led police to the creek. Upon removing the log from the body, police took a color photograph of the body showing part of a leg and a hand protruding from the water. The second photograph in question was an anterior shot of the body lying on its back, apparently being dragged with heavy ropes tied to the arms from the water onto a plastic drop cloth. This photograph showed two of the concrete blocks chained around the deceased’s waist and also showed the head and abdominal defects about which the pathologist testified. The third photograph was a shot of the lower two-thirds of the body showing the half concrete block chained around the ankles. The blocks which were admitted were ordinary concrete building blocks.

The appellant contends that admitting these exhibits was error in that they were gruesome and inflammatory and did not tend to prove or disprove any material matter in issue. He bases this contention on the fact that he had admitted to weighting down the body and hiding it in the creek, so he claims the only purpose in admitting these exhibits was to inflame the jury.

That a witness has previously testified to a matter involving demonstrative evidence is not grounds for excluding the demonstrative evidence, especially photographs. State v. Lee, 549 S.W.2d 934, 939 (Mo.App.1977). In addition, the trial court has wide discretion in admitting such evidence and abuse of that discretion is required for reversal. State v. Windmiller, 579 S.W.2d 730, 733 (Mo.App.1979).

While it is true that the photographs in this case are gruesome it must be observed that the crime itself had gruesome consequences. The Missouri Supreme Court, quoting State v. Moore, 303 S.W.2d 60, 66 (Mo.1957), referring to repugnant photographs stated that “[i]f the photographic views are shocking and horrible it is because the crime is one of that sort, whether described in words or pictures.” State v. Duisen, 428 S.W.2d 169, 173 (Mo.1967). Photographs are admissible to prove or disprove material issues but this is not the sole grounds for their admissibility. State v. McClain, 404 S.W.2d 186, 190 (Mo.1966.) Photographs are generally held material and, therefore, admissible if, in the judgment of the trial court, they are relevant or will shed light on a material issue. State v. Thresher, 350 S.W.2d 1, 7 (Mo.1961). The Missouri Supreme Court has upheld the admission of photographs, slides, and videotapes of the recovery of decomposed remains on the grounds that the evidence corroborated oral testimony and illustrated conditions existing at the scene. State v. Damico, 513 S.W.2d 351, 359 (Mo.1974). Photographs may also be admitted into evidence to show identity, condition and location of the body, the nature or location of wounds and the cause of death, and to corroborate or refute testimony given. State v. Jackson, 499 S.W.2d 467, 472 (Mo.1973).

The photographs admitted in this case are, in this court’s opinion, no more horrible than the testimony itself. All three photographs illustrated the manner in which the appellant hid the body and the condition at the scene. They corroborated the State’s testimony and in one instance showed the nature of the head wound in the victim’s eyebrow.

The alleged error by the trial court in admitting concrete blocks into evidence poses a less different problem. This court sees nothing inflammatory about ordinary concrete blocks and their admission did shed light upon appellant’s method of secreting the body.

Accordingly, this court finds no abuse of discretion by the trial court in admitting either the photographs of the concrete blocks into evidence. Point six is ruled against the appellant.

Judgment affirmed.

CRIST and SATZ, JJ., concur.


author: SNYDER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Harvey DICKERSON, Defendant-Appellant.
    No. 41003.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 25, 1979.

      Edward V. Ward, Deeba, DeStefano, Sauter & Herd, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Judge.

Appellant was tried for burglary and stealing and found guilty by a jury of burglary in the second degree. § 560.070, RSMo 1969. As a second offender, he was sentenced by the court to seven years in the custody of the Department of Corrections. § 556.280, RSMo 1969. He appeals.

Appellant alleges the trial court erred in: (1) failing to strike a venireman for cause when he indicated that he believed that a police officer had a better memory of events than a layman, thus forcing appellant to use a peremptory challenge; (2) admitting a police sergeant’s expert testimony as to a possible means of entry into the building by standing on an automobile; (3) allowing a fingerprint card containing appellant’s fingerprints to be shown to the jury.

The judgment is affirmed.

At 9:45 p. m. on March 1, 1978, the St. Louis Police Department gave an all-points bulletin for prowlers attempting entry in the rear, or east side, of the Cabanne Branch Library. Within a minute Patrolman Charles Magditsch arrived at the rear of the building and shone a spotlight at the one window in the rear where the blinds were raised. He saw a man rise up and look out of the window for five or six seconds and then disappear. A minute or two later he heard a scraping noise at the north side of the building, and he went over to investigate. At that time Sergeant James Payne, who arrived at the library a few minutes after Magditsch, was standing at the northwest corner of the building. Both men saw appellant falling in midair, and later Magditsch observed that the falling man was the same person whom Mag-ditsch had seen peering from the window. Appellant landed a few feet from the side of the building. He got up and tried to run, but he had broken his leg and was unable to do so. Payne then arrested him. While appellant was being arrested, a woman approached Officer Magditsch and stated that “they had been in the building and they had a ladder.” Upon entering the building, police discovered that a television set had been taken from an office in the building. The television set was never recovered. Appellant’s trial and conviction of second degree burglary followed.

For reversal, appellant first claims he was denied the right to select a fair and impartial jury because of the failure of the court to strike venireman David C. Bubash for cause. During voir dire, defense counsel questioned the veniremen concerning their attitudes toward police officers as witnesses and this colloquy ensued:

MR. WARD: Let me ask the entire panel if there is anybody on the panel that believes that police officers would have a greater tendency to tell the truth on the stand than, say, would a lay witness? Does anybody feel that way? Would anybody feel that a police officer because of his training might have a greater memory or better memory than, say, a lay person that’s on the stand?
VENIERMAN (sic) BUBASH: I think he would.
MR. WARD: You think he would, Mr. Bubash?
VENIERMAN (sic) BUBASH: Yes.
MR. WARD: And because of that, if a police officer got on that stand and testified as to something he recalled and it clashed with, say, what the defense put on, then you would tend to give that police officer more credibility than you would another witness?
VENIERMAN (sic) BUBASH: Somewhat, yes.
MR. WARD: All right. So your tendency, then would be to lean toward the story the police officer believed than the story that the defense might tell?
VENIERMAN (sic) BUBASH: Yes.
MR. WARD: Is that correct? So, basically, then, would you be able to give both parties a fair trial despite that?
VENIERMAN (sic) BUBASH: I think so. MR. WARD: Even though you have a tendency to believe the police officer more than you would a lay witness?
VENIERMAN (sic) BUBASH: Well, I’m sure there has been bad policemen, but I mean their memory is usually a little better.

Appellant then moved to strike Bubash for cause. The court refused, and appellant later challenged Bubash peremptorily.

Appellant had a right to be judged by fair and impartial jurors who could give each person’s testimony the weight to which it was entitled. A venireman whose statements indicate to the court that he cannot do this should be discharged for cause. State v. Hicks, 530 S.W.2d 396 (Mo.App.1975). And, appellant was entitled to a full panel of qualified jurors before being required to make his peremptory challenges. State v. Cuckovich, 485 S.W.2d 16 (Mo.banc 1972).

However, a trial court has wide discretion in deciding the qualification of jurors and its decision should not be disturbed unless there is a clear abuse of discretion. State v. Harris, 425 S.W.2d 148, 155 (Mo.1968).

After the initial interrogation of Bubash, counsel conferred at the bench out of the hearing of the jury. The judge denied the challenge because Bubash said he could give a fair trial and because Bubash’s opinion that a police officer is trained to have a better memory than a lay person would not deny the defendant a fair trial. The judge allowed defense counsel to pursue the matter further. After asking several more questions of Bubash without revealing any prejudice counsel did not renew his challenge.

In State v. Cuckovich, supra, the court upheld the trial court’s refusal to strike for cause two veniremen who stated that they would give more weight to the testimony of a police officer than to that of other witnesses. See also, State v. Pride, 567 S.W.2d 426 (Mo.App.1978).

The testimony of a venireman is to be viewed in its entirety in determining whether prejudice or bias exists which will prevent him from being an impartial juror and hence deny a defendant a fair trial. A thorough discussion of the general principles relating to the disqualification of jurors who have formed an “opinion” in a cause appears in State v. Richards, 536 S.W.2d 779 (Mo.App.1976). Even when a juror has formed an opinion in a case, a challenge may be denied if “such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror.” § 546.150, RSMo 1978.

Bubash had not formed an opinion. He merely expressed a belief that a police officer has a better memory than a lay person. Jurors in a criminal case are instructed that in evaluating a witness’ testimony they may take into consideration the witness’ “ability and opportunity to observe and remember any matter about which he testifies . . . .’’ MAI-CR 2.01. The trial judge could observe Bubash’s demean- or and evaluate the possibility of prejudice or bias. All doubts should be resolved in favor of the trial court’s decision. State v. Richards, supra. Bubash said he could give both parties a fair trial. There was no abuse of discretion by the trial court in denying the challenge for cause.

The cases cited by appellant in support of his contention that he was denied an unbiased jury are distinguishable. In State v. Spidle, 413 S.W.2d 509 (Mo.1967), the challenged juror had read a newspaper account of the crime and, as a result, assumed the defendant was guilty. Bubash had no opinion as to the guilt of appellant. In Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978) the juror’s voir dire examination revealed her belief that a police officer would always tell the truth. Bubash did not say he believed a police officer would always tell the truth in court. Neither of appellant’s cases stands for the proposition that a venireman’s belief that a policeman might have a better memory than a lay witness requires his disqualification as a juror.

Appellant asserts in his second point relied on that the trial court erred in permitting Sergeant Payne to testify as to “how someone might possibility get into the building,” claiming the testimony was prejudicial opinion evidence without proper foundation.

On redirect examination, Sergeant Payne was asked by Mr. Ankney, attorney for the state:

Q: Now, is there a way to get in one of these windows on the main floor without a ladder? Did you discover a way to get in these windows without a ladder?
A: Yes, sir.
Q: And how was that? How would that be?
A: Stepping on the fender of an automobile and up to the—
MR. WARD: I object as a conclusion. No foundation, your Honor.
THE COURT: Well, I’ll oberrule (sic) the objection.
A: From the hood of the automobile.
MR. WARD: Did you overrule that?
MR. ANKNEY: Yes.
Q: (By Mr. Ankney) How can you get to the window without the ladder?
A: You can part (sic) a car by that one part of the building, that’s built out, and the top of it is even with the main floor window.

Appellant also claims Sergeant Payne’s testimony was evidence of an experiment for which no proper foundation was laid. The testimony contained no reference to an experiment and this issue need not be discussed.

No objection was raised at the trial or in appellant’s motion for a new trial as to the qualification of Sergeant Payne as an expert. The only question presented for decision is the possible lack of foundation for his testimony.

An expert may base a competent opinion on matters within his own personal knowledge or observation, or upon competent evidence in the case, or both. Summers v. Tavern Rock Sand Co., 315 S.W.2d 201 (Mo.1958); Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780 (1940).

The foundation for Sergeant Payne’s testimony was his personal observation of the library premises, the height of the windows and the height of an automobile. His knowledge obtained at the scene was sufficient foundation for the testimony as to possible access to the building from an automobile.

The facts of the cases cited by appellant [State v. Gibson, 502 S.W.2d 310 (Mo.1973); State v. Gish, 371 S.W.2d 654 (Mo.App.1963); State v. Thomas, 536 S.W.2d 529 (Mo.App.1975)] differ materially from the facts being considered here and lend little support to appellant’s contentions. His second point is ruled against appellant.

Appellant finally charges it was error to show a police file fingerprint card to the jury because the card was evidence of prior crimes.

Police Officer John Salamone, called as a witness by appellant, testified he compared the fingerprints taken by police at the library with those on the card, and could not make a comparison. On cross-examination the state questioned Salamone further concerning the police file card and asked to see it. Appellant objected twice to questions about the fingerprint card on the ground that a reference to the card was evidence of prior crimes. He raised the same claim of error in his motion for a new trial and added that it was error to show the card to the jury.

The record does not support appellant’s assertion that the fingerprint card was shown to the jury. This erroneous statement of fact first appeared in appellant’s motion for a new trial. It is not borne out by the record. Therefore, it must be disregarded on appeal. State v. Tucker, 362 S.W.2d 509 (Mo.banc 1962).

Further, there was no reference to or testimony about prior crimes in the record. The state was permitted to inquire on cross-examination about the fingerprint card to rebut the inference created by Sala-mone’s testimony that the fingerprints in the library could not have been those of appellant. Such questioning may be allowed if otherwise appellant could obtain an unfair advantage by bringing in selective portions of evidence of a transaction and objecting to the admission of those parts unfavorable to him. State v. Dancy, 541 S.W.2d 35, 37 (Mo.App.1976). There is no merit in appellant’s third point relied on.

The judgment is affirmed.

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