text:
    Jacqueline WYATT et al., Plaintiffs-Appellants, v. Bryan Charles BERNHOESTER and Weslie A. Wyatt, Sr., Defendants-Respondents.
    No. 40478.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 19, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Application to Transfer Denied Sept. 11, 1979.
    Newman & Bronson, Leo M. Newman, St. Louis, for plaintiffs-appellants.
    Evans & Dixon, William Evans, Gerre S. Langton, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for Weslie A. Wyatt, Sr.
    F. Douglas O’Leary, St. Louis, for Bryan Charles Bernhoester.
   CRIST, Judge.

Case on abrogation of interspousal and parental immunities in tort.

Plaintiffs, wife and two minor children, filed suit against wife’s husband and minors’ father, alleging that husband-father was jointly negligent with another defendant in causing injuries’ to plaintiffs by reason of an automobile collision. The petition alleged that none of the claims exceeded the amount of insurance coverage available to the husband-father.

Husband-father filed a motion for summary judgment claiming the doctrines of interspousal immunity and parental immunity barred the plaintiffs’ cause of action. Plaintiffs and defendant-husband stipulated that: (1) Plaintiff-wife and defendant-husband were married to each other at the time of the accident and continuously thereafter; (2) Plaintiff-wife and defendant-husband were the parents of the unemanci-pated minor plaintiffs Weslie, Jr. and Tammy; and (3) all plaintiffs and defendant-husband lived together as a family.

The trial court granted summary judgment to the husband-father. We find no error.

May a spouse maintain an action against his or her spouse for a personal tort which occurred during coverture? Our Supreme Court has answered this question in the negative. Ebel v. Ferguson, 478 S.W.2d 334, 336 (Mo. banc 1972); Deatherage v. Deatherage, 328 S.W.2d 624, 625 (Mo.1959); Brawner v. Brawner, 327 S.W.2d 808, 814 (Mo. banc 1959); Willott v. Willott, 333 Mo. 896, 900, 62 S.W.2d 1084, 1086 (1933); and Rogers v. Rogers, 265 Mo. 200, 208, 177 S.W. 382, 384 (1915).

May an unemancipated minor child maintain an action for personal tort, involving only negligence, against a parent with whom such child is living? Our Supreme Court has also answered this question in the negative. Bahr v. Bahr, 478 S.W.2d 400, 402 (Mo.1972); Brennecke v. Kilpatrick, 336 S.W.2d 68, 70 (Mo. banc 1960); and Baker v. Baker, 364 Mo. 453, 458, 263.S.W.2d 29, 32 (1953).

We are bound by Article V, Section 2 of the 1945 Missouri Constitution to follow the decisions of the Supreme Court of Missouri.

Judgment affirmed.

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


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Timothy CREWS, Appellant.
    No. 40041.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 19, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Application to Transfer Denied Sept. 11,1979.

      Helton Reed, Jr., Sp. Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was charged by information with attempted first degree robbery, armed criminal action and three counts of assault with intent to kill with malice. He was convicted on the charges for robbery, armed criminal action and one assault count. His appeal attacks certain instructions and the trial court’s refusal to grant his motion for judgment of acquittal. We affirm.

Defendant’s appeal arises out of the attempted robbery of Bogart’s Tavern in St. Louis. About 11:00 p. m. two armed men, one wearing a ski mask, entered the crowded tavern. The masked bandit walked toward the bar, placed his pistol against the head of one of the customers, off-duty police officer Robert Schaefer, and demanded money from the barmaid. The other would-be robber, armed with a shotgun, stood on a radiator next to the front door and reconnoitered the patrons. As he turned his head toward his assailant, Officer Schaefer noticed through a window that a third person dressed in dark clothing was pacing outside near the entrance. When the barmaid’s response to his demand for money was not sufficiently swift, the masked robber fired a shot in her direction. The report prompted riposte from another off-duty policeman, Walter Serb, who ran from the rear of the tavern to investigate. Officer Serb was immediately shot and seriously wounded by the robber posted on the radiator. The robbers and the third person outside fled with Officer Schaefer in pursuit. In an exchange of gunfire, the masked robber was wounded, but all three in flight escaped. The two weapon-bearing robbers were later identified as Ervin Haas and William Owens.

The charges against defendant stem from his alleged participation as the lookout for the robbery. Evidence in support of defendant’s involvement in the crime came from two of Bogart’s customers who noted Ervin and Haas speaking with a third man outside of Bogart’s immediately prior to entering the tavern in their aborted robbery attempt. Edward Coleman, a resident at Magdala Foundation, the halfway house where defendant and the two armed robbers also lived, testified for the State. He related that earlier in the evening of the Bogart’s robbery effort he had been approached by the defendant, Haas, and Owens and had been asked to participate in the venture. Coleman declined the invitation, but another resident offered to supply guns to defendant, Haas and Owens if they would share their malgained lucre with him, and a bargain was struck. A gun was given to Haas, and defendant and Owens left with him by the back door fire escape. Upon his arrest by police on Coleman’s information and after having been given the requisite Miranda warnings, defendant related to the police that he had accompanied Haas and Owens to Bogart’s and remained outside during the course of the robbery attempt. However, he insisted that he had no gun, had not been involved in the shooting, nor had he hurt anyone. Defendant’s version was that his statement had been coerced; the police said otherwise. The resolution of this conflict in evidence was a matter for jury resolution, State v. Shegog, 577 S.W.2d 185 (Mo.App.1979), and the conflict was resolved in favor of the State.

Defendant’s first point of error asserts that Instruction No. 16 was misleading and was inconsistent with and contradicted by Instructions Nos. 15 and 17. The instructions read as follows:

INSTRUCTION NO. 15

(MAI-CR 2.10)

All persons are guilty who knowingly act together with the common purpose of committing an offense, or who, whether present or not, knowingly and intentionally aid or encourage another in committing it or attempting to commit it, and whatever one does in furtherance of the offense or an attempt to commit it is the act of each of them.

The presence of a person at or near the scene of an offense at the time it was attempted or committed is alone not sufficient to make him responsible therefore, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

INSTRUCTION NO. 16

If two or more persons join in a purpose to commit a crime, each of them if present, is not only guilty of that crime if the other or others commit that particular crime, but he is also guilty of any other crime committed by the other or others in pursuance of the common purpose, or as a natural or probable consequence thereof.

INSTRUCTION NO. 17

(MAI-CR 3.20)

One of the issues under all counts is whether the defendant was present at the time and place the offense is alleged to have been committed. On that issue you are instructed as follows:

1. The state has the burden of proving beyond a reasonable doubt that the defendant was present at the time and place the offense is alleged to have been committed.

2. If the evidence in this case leaves in your mind a reasonable doubt regarding the defendant’s presence at the time and place the offense is alleged to have been committed, then you must find the defendant not guilty under all counts. Defendant submits that the evidence adduced at trial, when viewed in the light most favorable to the verdict, could only support the conclusion that, at most, he attended a planning session for the robbery. He argues that Instruction 16, through the operative language “join in a purpose” and “present,” permitted the jury to find him responsible for the subsequent offenses committed by Haas and Owens solely on the basis of his presence at that planning session. Such a result is inconsistent with the strictures of Instruction 15, which he interprets as requiring an active participation in the robbery, and Instruction 17, which he interprets as requiring presence inside the tavern. Despite defendant’s construction of the evidence, we believe that the testimony of the arresting officers concerning the defendant’s admission that he stood outside of Bogart’s Tavern during the attempted robbery provided a sufficient basis to submit the issue of presence at the scene of the crime to the jury. The ultimate test of accuracy for an instruction is whether it precisely follows substantive law and whether it will be correctly understood by a jury composed of average lay people. Arthur v. Royse, 574 S.W.2d 22 (Mo.App.1978); Kirkwood Medical Supply Co. v. Ann Patterson Enterprises, Inc., 511 S.W.2d 433 (Mo.App.1974). A fair reading of the three instructions leads us to the conclusion that they are neither “ . . . confusing, misleading, inadequate nor prejudicially erroneous . . ,” Woodford v. Illinois Central Gulf R. Co., 518 S.W.2d 712, 716 (Mo. App.1974), and that they do accurately reflect the substantive law. Instruction 16, tendered by the court, is a non-MAI instruction based on State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), and State v. Chernick, 278 S.W.2d 741 (Mo.1955). In Chernick, more closely analogous to this ease, the defendant was convicted of assault with intent to kill with malice aforethought as the result of his participation in a bank robbery. No evidence was presented to show that Cher-nick was inside the bank or ever participated in the actual robbery. It was the State’s contention, however, that he aided and abetted the robbers by acting as the getaway driver. Therefore, Chernick was convicted of assault, a crime committed as the natural or probable consequence of the bank robbery when a police officer confronted the escaping felons. Similarly, defendant Crews could be convicted of the assaults arising out of the attempted robbery at Bogart’s if the jury found that: (1) defendant joined in the purpose to commit the robbery; (2) was present at the scene— not necessarily in the tavern; and (3) the assaults arose “ . .in pursuance of the common purpose, or as a natural or probable consequence thereof.” State v. Paxton, 463 S.W.2d 923 (Mo.1970); State v. Williams, 548 S.W.2d 227 (Mo.App.1977). We find no conflict with this instruction and Instruction 15, patterned after MAI-CR 2.10. MAI-CR 2.10 is the general accountability instruction designed to be used, as in this case, when there is evidence that the defendant

. was an active participant in the crime or its attempt, even if he was not the principal actor, or (b) that the defendant aided or encouraged other participants either before or during the crime or its attempt and was present or not . Notes on Use, MAI-CR 2.10

This formulation plainly refers only to count I, attempted robbery, and count II, armed criminal action, but not to the additional crimes in pursuance or as the natural consequence of that goal: the assault charges. As stated in paragraph 6(b) of the Notes on Use for MAI-CR 2.10, the instruction was not intended to cover criminal responsibility of the defendant to crimes committed by joint participants not contemplated by the defendant. The defendant argues that the jury could have impermissi-bly reduced the requirement of Instruction 15 by Instruction 16 with regard to counts I and II. Emphasizing the phrase “knowingly act together” from Instruction 15, defendant submits that he played no active role in the robbery and, therefore, could not have “knowingly acted together” with Haas and Owens. He concludes that only by applying the less stringent Instruction 16 language, “join in a purpose,” could the jury have found him guilty. We disagree. To the contrary, we find the language of Instruction 15 far less restrictive than Instruction 16 since it requires neither presence nor active participation. Aid or encouragement in committing a crime suffices. Therefore, defendant could be convicted under the terms of Instruction 15 by affirmatively associating himself with the venture or by participating in the crime in some manner that indicated he wanted to bring about or make the offense succeed. State v. Taylor, 542 S.W.2d 91 (Mo.App. 1976). According to the State’s theory, his actions as a lookout would meet these criteria. See: State v. Haselhorst, 476 S.W.2d 543 (Mo.1972); State v. Gregory, 406 S.W.2d 662 (Mo.1966); State v. Edwards, 536 S.W.2d 193 (Mo.App.1976); State v. Jones, 524 S.W.2d 186 (Mo.App.1975).

Instruction 17, the alibi defense, is patterned after MAI-CR 3.20 and must be given if requested by the defendant. We discern no conflict between Instructions 16 and 17; each requires defendant’s presence at both the time and place of the offense in order to apply. Therefore, the jury could not have convicted the defendant on the assault charges by virtue of his presence at the planning session alone.

As his second citation of error, defendant complains that the trial court erred by failing to instruct the jury on the issues of withdrawal or abandonment of criminal purpose. The defendant is entitled to any instruction which is supported by the evidence, State v. Shivers, 458 S.W.2d 312 (Mo.1970); State v. Thomas, 526 S.W.2d 893 (Mo.App.1975), even if he does not request it. State v. Hegwood, 558 S.W.2d 378 (Mo. App.1977). Yet, we find no error here. Defendant presented no evidence to indicate that he desired to withdraw from the crime or abandon his aid and assistance. In fact, his sole defense was based on a theory of alibi. Defendant contends that the in-custody admissions which served to place him near the crime scene were sufficient to raise the issue of abandonment because there was no evidence that once there, he entered the tavern or actively participated in the robbery attempt. Yet, the converse instructions submitted by the defendant to counter the verdict directing instructions for the charges on which he was convicted each required the jury to find in his favor if they did not believe that he knowingly and intentionally aided or encouraged Haas and Owens. Further, Instruction 15 warns the jury that mere presence at the scene of the crime without more does not render an individual criminally responsible. Consequently, we do not believe that a jury composed of responsible persons could reach the conclusion that defendant was guilty if he abandoned or withdrew from the criminal purpose. State v. Haynes, 510 S.W.2d 423 (Mo.1974).

The defendant’s next complaint is again based on his contention that the State presented no evidence of his active participation in the attempted robbery. He argues that he cannot be convicted of armed criminal action because there was no evidence that he possessed or used a deadly weapon or intended such use by Haas or Owens. However, witness Coleman testified that defendant was present when a Magdala Foundation inmate offered to supply guns in exchange for a share of the gain. Coleman also stated that defendant indicated his approval. A jury could have found that the defendant knew that guns were to be used during the robbery. His conviction on the armed criminal action count is consistent with the rationale of State v. Chernick, supra. He could have been convicted of any crime committed by persons with whom he joined to pursue a criminal purpose if he was present at the scene of the offense. The jury evidently believed that Crews was the man who stood outside of Bogart’s Tavern and properly rendered him accountable for subsequent violations of the armed criminal action statute by his comrades.

Finally, defendant submits that the trial court erred when it denied his motion for judgment of acquittal at the close of all the evidence because the State failed to make a submissible case. On review, we must survey the evidence in the light most favorable to the State, consider all favorable inferences which may be drawn therefrom and reject evidence to the contrary. State v. Green, 575 S.W.2d 211 (Mo.App.1978); Johnson v. State, 574 S.W.2d 936 (Mo.App.1978). If there is substantial evidence to support the finding of the jury, the verdict will not be disturbed on appeal. State v. Fowler, 558 S.W.2d 366 (Mo.App.1977); State v. Gamache, 519 S.W.2d 34 (Mo.App.1975). After considering the principles cited in State v. Chernick, supra, we are convinced that a submissible case was made. We believe that the evidence was sufficient to justify the jury in finding that the defendant did aid, abet and encourage Owens and Haas, thereby rendering himself responsible for all offenses which arose naturally and probably out of their initial criminal purpose. On November 17, 1976, shortly after 10:00 p. m., defendant was seen in the company of the two men who entered Bogart’s Tavern at 11:00 p. m., attempted to rob it and assaulted three patrons in the process. Edward Coleman, who saw defendant with the two men, stated that one of them, Ervin Haas, asked him to join them in their nefarious activity. Though Coleman declined, another man was willing to supply the trio with arms in return for a share of the robbery proceeds. Coleman stated that all three agreed to the offer. The three left together. Two witnesses saw the two gunmen and a third unidentified man talking together outside the tavern immediately before the incident. Officer Schaefer noticed a man standing outside of the tavern while the robbery was in progress. He also noted that the man fled when Haas and Owens ran from the scene. Defendant later admitted that he walked to Bogart’s with Haas and Owens that night but claimed that he only stood outside. Nevertheless, we believe that the evidence supports a jury conclusion that Crews acted as a lookout, thereby encouraging the commission of the crime. State v. Edwards, supra; State v. Jones, supra. While some of the evidence may be classified as circumstantial, the facts and circumstances are (a) consistent with each other, (b) consistent with the hypothesis of guilt, (c) inconsistent with innocence and (d) point clearly to guilt as to exclude all reasonable hypotheses of innocence. State v. Odum, 351 S.W.2d 10 (Mo.1961). Accord: State v. Major, 564 S.W.2d 79 (Mo.App.1978); State v. Bennett, 560 S.W.2d 310 (Mo.App.1977); State v. Edwards, supra. A case involving circumstantial evidence need not prove guilt conclusively or demonstrate the impossibility of innocence. State v. Montgomery, 571 S.W.2d 784 (Mo.App.1978); State v. Morris, 564 S.W.2d 303 (Mo.App.1978).

The judgment is affirmed.

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

      . This case was tried prior to January 1, 1979, effective date of the MAI-CR 2d series. Therefore, all MAI-CR reference numbers represent pre-1979 instruction patterns.

      . We believe that the second paragraph of Instruction 17 should have limited its application to the assault charges, counts III-V. As noted in Instruction 15, a defendant who aids and encourages others in the commission of a crime may be convicted of that offense whether present or not. However, since the error was beneficial to the defendant, it provides no basis for reversal. State v. Choate, 553 S.W.2d 493 (Mo.App. 1977); State v. Johnson, 546 S.W.2d 725 (Mo.App. 1977).


author: CRIST, Judge.

text:
    William L. WASHINGTON, Appellant, v. SEARS, ROEBUCK & CO., Respondent.
    No. 40617.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 1979.
    Application to Transfer Denied Sept. 11,1979.
    Shifrin, Treiman, Dempsey & Ulrich, Richard R. Vouga, St. Louis, for appellant.
    Joel D. Monson, Stuart M. Haw, Jr., St. Louis, for respondent.
   CRIST, Judge.

Civil suit seeking damages for malicious prosecution (Count I) and negligent maintenance of business property (Count II). The trial court directed a verdict for defendant on Count II at the close of all the evidence. The jury returned a verdict for plaintiff on Count I in the amount of $1,500. Plaintiff appeals. We reverse as to Count I and affirm as to Count II.

Plaintiff first complains the trial court erred by embellishing pattern instruction MAI 2.01. The cautionary instruction, as embellished, is set out in full in an appendix to this opinion.

Most of the comments of the experienced trial judge were not prejudicial to either party. Indeed, most of his comments were good and probably helpful to the understanding of the jury. The Missouri Supreme Court Committee on Civil Jury Instructions would do well to consider some of his comments.

The Supreme Court of Missouri has given “a specific, direct order that MAI 2.01 must be given.” City of Jackson v. Barks, 476 S.W.2d 162, 164 (Mo.App.1972); Rule 70.-02(a); MAI 2.01 — Notes on Use (1978). It should be given to the exclusion of any other instruction on the same subject. Rule 70.02(b). A trial judge should not interrupt his reading of MAI 2.01 for additional comments or interpretation; its provisions are clear and they adequately caution the jury. MAI 2.01 should be given as written. Cf.: Chapman v. Bradley, 478 S.W.2d 873 (Mo. App.1972); McCory v. Knowles, 478 S.W.2d 682, 685-86 (Mo.App.1972); City of Jackson v. Barks, supra; (cases in which minute deviations from MAI 2.01 required a new trial).

Continued excursions from MAI 2.01 must end. If the deviations were permitted in this ease, the appellate courts would be deluged by appeals pertaining to the meaning of MAI 2.01 as interpreted by the various trial courts. The judgment as to Count I is reversed and remanded for a new trial.

Plaintiff also complains that the trial court erred in directing a verdict for defendant on plaintiff’s Count II at the close of all the evidence. This count sought recovery for damages to plaintiff’s car when it slid into a pillar located on defendant’s premises. Plaintiff asserts negligence on the theory that defendant is liable for having failed to remedy icy conditions on its parking lot. We find no error.

Defendant failed to make a submissible case by his own uncontroverted testimony: When he got through work at about 5:30 p. m. it was freezing outside and raining. Because of the bad weather, he went to Northwest Plaza Sears to get a battery. He had been having battery trouble. He was aware that it had recently started sleeting and continued to sleet as he arrived at the Sears service center. While he was driving on the parking lot outside the service center, his car slid on some ice and hit a concrete pillar, causing damage to his car. At the moment the car struck the pillar it was sleeting and getting worse.

We do not hold per se that no distinction exists between the “slip and fall” cases cited by both parties and cases, such as the present one, involving automobile collisions on icy parking lots. But on the particular facts here present, we find those cases persuasive. Plaintiff knew of the condition, dangerous or not, as much as did the defendant. A warning would have told plaintiff nothing more than he already knew. There was a general condition of freezing rain or sleet at the time of the accident. The plaintiff did not make a submissible case. Johnson v. Murphy, 417 S.W.2d 527, 529 (Mo.App.1967).

The judgment of the trial court in directing a verdict for defendant on Count II of plaintiff’s petition is affirmed.

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

APPENDIX

Portions underlined are taken from MAI 2.01. All other comments were inspired by the trial court and made ex gratia.

“INSTRUCTION NO. 1

This case will proceed in the following order:

First the parties may each make an opening statement outlining the case. Second, the Plaintiff will first introduce evidence. At the conclusion of all of the Plaintiff’s evidence the Defendant has a right to introduce evidence. Rebuttal evidence may be introduced. Third, at the conclusion of all the evidence further instructions will be given after which the attorneys may make their closing arguments and then you will select a foreman or forelady or foreperson, whatever way you want to describe it, it doesn’t mean that you have to be a man to be the foreman of the jury, deliberate and arrive at vour verdict.

2. Faithful performance by you of vour duties is vital to the administration of justice. Now listen carefully to number three and number four because they explain your role and mine, what I referred to earlier.

The law applicable in this suit is given you in these instructions and in other instructions that you will receive at the close of all the evidence in this case and it is vour duty to follow all such instructions. Now as I told you earlier someone has to interpret what the rules are and the duty of interpreting what the rules are is given to the trial Judge. When I make an interpretation as to what the law is that binds all parties to the case. It binds the Plaintiff, the Defendant, and the jury. All must then accept my interpretation of what the rules are as being the law and whether they agree with it or not, that’s the rules we must play by once the trial Judge makes that determination so all of you have taken an oath to follow the instructions and you must do that. Now you may say, ‘What if the trial Judge is wrong?’ Well, you see this young lady writing on her stenotype machine? That’s the reason why she’s taking down every word what is said because if I make a mistake as to the law either of the parties to the lawsuit or both of them may ask my bosses at the Appellate Court to review what I have done and if they decide that I — that I decided wrongly and made a wrong interpretation of the law then they tell me so and they tell me what they want me to do. They say try it again, set it aside, do this, whatever has to be done they direct me to do it and I must take their rulings. That way you see we have standardization across the State of Missouri because every trial Judge is required to know the law and if he doesn’t know it and the Appellate Court says that he’s wrong in making an interpretation they correct him and that way the same law will be applied in Cape Girardeau, Kansas City, St. Louis County, in the City of St. Louis, all the Judges interpret the law the same way and the Appellate Court makes the decisions, and that’s why she is there writing these words down.

Now, I might mention two things that come from that that sometimes give jurors trouble. Although our court reporter is making a record for the Appellate Court jurors are not allowed and I am not allowed to send to you a copy of the transcript that she makes' so if you listen to a witness and then when you begin your deliberations you say, ‘I’d like to find out what witness X says, I’ll send to the Judge a request, send up the testimony of the transcript of witness X.’ If you do that I will have to tell you that I cannot follow that request, I cannot accede to that request. Jurors in the State of Missouri are not allowed to receive the transcript of the trial. It is for the Appellate Court. Now, you might say and we have had one or two other jurors say, ‘Well, I’ll make my own notes,’ and whip out a little pad and starting writing down during the trial what is said. That isn’t allowed either. By Missouri law, no juror is allowed to make statements — to make a record. The reason for that is that this lady here writing down what she says is the testimony and you go up to your jury room and there you dispute about it the tendency would be to accept whatever she wrote down and since she’s not an official court reporter and may have gotten it wrong, it wouldn’t be fair so no one is allowed to make notes nor can I supply the notes to you. That’s why there’s twelve of you on a jury, that’s the reason why there’s twelve instead of two or three so that all twelve can listen and all twelve will most likely come to an accurate recollection of what was actually said.

Now this instruction also refers to other instructions that you will receive at the close of all of the evidence in the case. When the case is concluded the Court will then give you tailored instructions for this particular case. These instructions will be geared for this case and this case only and they’re done frankly first of all from my talking to the counsel here who give me their recommendations as to what they think the law is and what they think the instructions should say and they will talk to me about it and demonstrate to me if need be and give me proof as to what they believe the law should be and then I will prepare it in instructions and will sign it as the Judge giving you the instructions as to the law. When I give those instructions to you, although they may have suggested it, it is the Court's instructions and it is my responsibility to give you an accurate instructions and like I say, if I make a mistake in the instructions then the Appellate Court will tell me so. Now, unlike these instructions which are general in nature, the ones that we give at the end of the case are tailored to the particular case and they are very, very carefully drafted even to punctuation with a comma comes where the word they or — could give a possibly wrong interpretation and is very carefully gone over. Therefore, because it is so meticulously prepared I will not attempt to explain or give any additional information about those instructions. I will read them verbatim without making the kind of extemporaneous comments that I am making to you to explain to you in general what these instructions are. I’ll just read them without any comment of any kind.

4. It is vour duty to determine the facts and to determine them from the evidence and the reasonable inferences arising from such evidence and in so doing you must not indulge in guesswork or speculation, so you see the responsibilities that each of us have here. The lawyers are going to present evidence to us and when the evidence is over — in your hearing for the very first time and you were selected first of all at random and then after an examination. I received the case at random. None of us knows which case we are going to get. You didn’t know nor did I nor did the lawyers but once we’re here we receive this evidence and then after the evidence is over I instruct you as to what the law is but I do not instruct you as to what the facts are, you make a determination as to the facts. My instructions will say to you, ‘If you find certain things to be true then the law is so-and-so.’ If you find certain things to be true then the law is that way, but you see you must make the determination as to what you find to be the facts. Once you make that interpretation, once you’ve decide a thing is fact that that happened or this did not happen, then I tell you what the law is so the law is standard throughout the State of Missouri and is given to you by me and I must make the final determination but you make the sole determination as to what the facts are and you’ll see how this does come together when I read this next paragraph here.

The evidence which you are to consider consists of the testimony of witnesses and the exhibits admitted in evidence. The term witness means any person including a party. Defendant or Plaintiff who testifies and they can testify in two ways, either bv written deposition or in vour presence at the trial. The admission of evidence in Court is governed bv rules of law. Not everything is admissible in a Court of law. You’ve commonly heard hearsay testimony is not admissible. I heard Mrs. Jones and Johnson said that he saw a man who told me this happened'. That’s a rank example of hearsay, that is not allowed in a Court and there are many, many, many, many things that are not admissible in evidence in Court. These rules of evidence comprise hundreds and hundreds of volumes of law books and these gentlemen have spent their adult lives and I’ve tried to learn, too. We couldn’t possibly tell you in the two, three, four days you’ll be here what these rules of evidence are so we don’t attempt to give you a law school education but I’m trying to give you an explanation of fact. These rules of evidence forbid certain kinds of evidence from being presented to you and then that kind of evidence cannot be presented to you.

Now the way that a lawyer objects to evidence indicates that he says that that evidence is not in accordance with the rules and the most common way that this is done is when one of the attorneys will arise generally and will say, T object.’ And when he says that he may give a reason or the reason may be obvious to me or I may ask him for the reason. In any event, you hear the conversation, the colloquy between us, you hear me ask him and you’ll hear the ruling that I make. If I agree with him that it is not admissible as evidence I will sustain the objection, then the question cannot be asked and the answer may not be given. If I do not agree and I think it is admissible evidence before the jury then I will overrule the objection and the question may be asked and the answer may be given. Now that generally doesn’t create any problem for most jurors. They hear it, they may not understand the reasoning behind it, but at least they hear all of it. The second way that objections are made does sometimes cause some jurors some discomfort and I’ve had questions asked about it many, many times. The second way is when one of the attorneys or both of them and in every trial it usually happens many times by one or both attorneys depending on the nature of the case will ask to approach the bench, and there you will see me go to the other side of the bench over here and you will see the reporter take her machine and go over there and the lawyers and I will get into a little huddle and like a football huddle and you will see us talking, you will see the reporter writing, but you won’t be able to hear anything that’s being said. Now when that occurs it means that a question of law has arisen and the lawyers have asked me to rule in advance as to whether certain evidence is admissible under the rules of evidence and the reason why they ask that is that this evidence may be so prejudicial in its effect on the jury that it will cause the jury to reach a wrong decision. If the jury hears this evidence and it is not admissible it may arrive at the wrong verdict and so I am required under the law to pass on that in advance. I’ll give you an example of the kind of thing that it will be. I’ll take an example in the criminal law because — obviously it wouldn’t arise here. If a person has a conviction unless that person testifies the jury may not be told about his conviction and therefore, to ask a witness, ‘Haven’t you been convicted of murder?’ And having him say, ‘Yes,’ would so prejudice the jury that they couldn’t decide say the instant case if they are trying a burglary or robbery because in the back of their mind they would say, ‘Oh, I heard this man admit he was convicted of murder.’ So we want the jury to make the decision on the evidence in this case, not what happened in the murder case but in this case and, therefore, that’s the kind of evidence that’s not admissible and that would be presented to a Judge in advance who would rule it would not be admissible except under certain circumstances, and there are certain circumstances when it can be admitted. So to make a long story short and without trying to explain and give you many more explanations, what I’m saying to you is that the Judge wants in every case and the lawyers want in every case the jury to hear just as much as they can about the case so they can make an intelligent decision but the rules of evidence prevent you from hearing certain evidence that is so prejudical and it’s so prejudicial in its nature that it forces you in one direction or another unfairly so that you cannot give the proper weight to the evidence that you hear in this courtroom and maybe the evidence isn’t proper because it’s not valid, maybe it’s not authentic, maybe it’s not accurate. There may be any number of different things. In criminal law poly-graphic examinations are not accurate enough to be relied on in Court, so if you learn that a man took a lie detector test and flunked it you might say, ‘He flunked the lie detector, he might be guilty,’ but the lie detector test is only right one time out of three so it’s not reliable evidence, it’s not admissible in evidence and the jury cannot hear it. Those are the kinds of things that we keep the jury from hearing when the evidence is not valid enough for you to base your verdict upon it, and we want you to base your verdict as I say on the evidence that you heard in this courtroom and I’ll have more to say about that later. You, not your husband or wife or brother or grandfather or neighbor, but you.

From time to time it mav be the duty of the attorneys to make objections and mv duty as Judge to rule on those objections as to whether vou can consider certain evidence. You must not concern yourself with the objections or the Court’s reason for its ruling. You must not consider testimony or exhibits to which an objection was sustained or which has been ordered stricken. Now you are not to hold against either of the attorneys the fact that he makes objections. He’s required to make those objections. If he didn’t make those objections he’d be criticized by me, the Appellate Court or someplace else along the line. He must make those objections and must come to the bench and point them out to the Court and you shouldn’t get mad at him and hold it against his client, whoever he represents, because he does that. He’s required to do that. He’s playing the game according to the rules and you must follow those rules also. Minor testimony that doesn’t have that great impact I may tell you to disregard it, I may order it stricken from the record. I can do that in minor things and you can disregard it and say, ‘Well, I won’t pay any attention to it,’ but if — if major in nature and we’re human beings and you couldn’t forget certain things and that’s why we have to be doing this so very, very carefully.

6. Opening statements and closing arguments of attorneys are intended to help vou in understanding the evidence and applying the law but they — that is the opening statements and closing arguments — are not evidence themselves.

7. You must not be influenced in anv degree by anv personal feeling of sympathy for or prejudice against anv party to this suit for each party is entitled to the same fair and impartial consideration.

8. No statement or ruling or remark which I mav make during the course of the trial is intended to indicate mv opinion as to what the facts are. You are to determine the facts. In this determination vou alone must decide upon the believabilitv of the evidence and its weight and value. In considering the weight and the value of the testimony of anv witness vou mav take into consideration the appearance, the attitude and behavior of the witness, the interest of the witness in the outcome of the suit, the relation of the witness to anv parties to the suit, the inclination of the witness to speak truthfully or untruthfully, the probability or improbability of the witness’ statements and all other facts and circumstances in evidence. Thus, vou mav give the testimony of anv witness just such weight and value as vou mav believe the testimony of the witness is entitled to receive.

9.Until this case is submitted to vou for vour deliberation vou must not discuss this case with anyone or remain within hearing of anyone discussing it. The reason why you were told to wear those white buttons is to let everybody know that you’re on jury duty today. We call upwards of a thousand people each week for jury duty in this building alone and we couldn’t possibly know all the people that are on jury duty, but we’re all using the same elevators, the same coffee shop, the same halls, same restrooms, and if someone seeing a person on jury duty and seeing that button advising that they are on jury duty will be very careful about what he says because if he doesn’t be careful or if he didn’t know you were on jury duty he may blurt out some of the things we have talked about, some of these things, inadmissible things and if it happens in the coffee shop or elevator there is no lawyer to object, there is no Judge to rule on it and so you’ve heard it and you may then reach a wrong decision based on hearing improper evidence. If you remember last week in St. Louis County they had to have a mistrial declared and they had to discharge a jury and start all over again because two of the lawyers, not recognizing jurors, started talking about the case and making statements that were not admissible and it caused a great deal of trouble. Now we don’t have — We have very rarely do we have a situation where someone comes to you and tries to influence your decision as a juror. That happens in television and on radio much more often than it happens in real life. It happens in real life very, very rarely.

Well, what does happen in real life is the thing that happened in St. Louis County where people inadvertently start talking about the case and it creates problems and that’s why you’re told not to talk about it, not to allow anyone to talk about it in your presence and in the criminal court’s cases the Judge gives even more stringent instructions on what you would do, but in every case you must not talk about it nor allow anyone else to talk with you about the case.

I think that they don’t explain these buttons to you often enough and I’ve had jurors take them off and say, T don’t want to wear them, it points me out, people will be saying things to me and we’ll attract attention,’ and they don’t want to wear them. We don’t worry so much about your wearing them when you go home, but around the Court with the thousands of jurors and witnesses and lawyers and everybody else around, that’s the only way we have of identifying you as a juror.

After this case has been submitted to vou vou must discuss this case only in the iurv room when all members of the iurv are present.

This is a frequent question to me, why can’t these two ladies comment to one another, ‘What do you think of that witness — I didn’t think much of him — I thought he was really very, very persuasive.’ You’re not allowed to do that until all of the twelve of you go to the jury room and all twelve of you hear the conversation because we want this verdict here to be the verdict of all twelve jurors. Nine of you may return a verdict in a civil case for either side, but we want the entire twelve members of the jury to hear and participate in all of the deliberations so that you will all profit from the comments that are made by everybody.

You are to keep an open mind and vou shall not decide anv issue in this case until the case is submitted to vou for vour deliberations under the instructions of the Court.

Now the long instruction — it’s longer than most of them, is over now but I think it gives you a fairly good picture of what you are to do and you see your responsibility, the lawyers’ responsibility and mine because one of us has certain special responsibilities. You have certain things you do that I don’t do and I do certain things that you don’t do, et cetera, and that’s how we try to arrive at a fair and impartial verdict whatever it may be.”


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Lee WORTHON, Defendant-Appellant.
    No. 10983.
    Missouri Court of Appeals, Southern District, Division Three.
    June 28, 1979.
    Motion for Rehearing and/or Transfer Denied July 25, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto and Steven Scott Clark, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Blair Buckley, Jr., Caruthersville, for defendant-appellant.
   MAUS, Judge.

A jury found the defendant guilty of Robbery in the First Degree. As recommended by the jury he was sentenced to life imprisonment. On appeal his sole allegation of error is the action of the trial court in overruling a motion to suppress evidence consisting of items of clothing. While the defendant made no objection when the evidence was offered, he immediately before trial did by way of an oral motion again seek to suppress this evidence. At this time the state and defendant agreed that upon a further hearing the evidence would be essentially the same as on the hearing of the original motion. Upon that basis the renewed motion was overruled. Since the defendant’s resistance to this evidence was obvious and no one was misled, the admissibility of that evidence will be fully reviewed.

At approximately 8:00 p. m. on April 23, 1977, a black male entered Brown’s Grocery and Package Store in Hayti Heights, Missouri. This man got a catsup bottle, broke it over the checkout counter, leaped the counter and as proprietor Brown said, he “went to cuttin’ me with that bottle, stuck it in my throat there”. The attacker announced, “This is a holdup” and Brown replied, “The heck it is”. A struggle ensued and the parties fell to the floor.

Willie Moorehead, a customer in the back of the store heard the bottle break. He went to the front and tried to pull the assailant from Brown. Moorehead couldn’t, but when the assailant got Brown’s billfold he turned Brown loose. Moorehead knew the assailant. Before leaving the assailant shoved Moorehead backward and said to him: “You ain’t got nothin’ to do with this.”

A short time later the defendant was arrested at the home of his parents, Elbert and Jessie Worthon. At the time of the arrest, under circumstances to be referred to, the officers seized a pair of socks, a pair of wet, muddy shoes, a jacket and overalls which were wet and stained.

At the trial, Brown and Moorehead recounted the events of the evening. Each unequivocally identified the defendant as the guilty party. Moorehead confirmed the fact he had,, known the defendant a long time, knew him by name and recognized him at the scene of the crime, even though he had not seen him for a long time. (Defendant testified .he had been gone 13½ years and returned to his mother’s only the day before the incident). In addition, the shoes and socks, jacket and overalls were admitted. A qualified criminologist identified the staining material on the overalls as similar in nature to dried tomato catsup and the density of bits of glass taken from the overalls as the same as the catsup bottle. The defendant denied the crime and denied seeing the overalls before.

Both parties offered evidence at the hearing upon the motion to suppress. City Marshall Trawick, Deputy Sheriff Young and Highway Patrolman Davis (who coincidentally was the son-in-law of owner Brown) were offered by the state. A summary of that evidence, based primarily upon the testimony of Trawick, with allegedly conflicting testimony being noted, is as follows: Trawick was informed of the robbery by radio and immediately went to the store. He found Brown sitting on the counter bleeding and obtained a description of the assailant, which matched the description of someone Trawick knew. He suspected the defendant. He was told the assailant crossed the highway and went south on Rapoport Street. After Trawick crossed the highway he met several children and asked if they had seen anyone fitting the description. He was told “the fellow” had just met them running. After Trawick had gone to the first street he saw a man fitting the description running through the park or vacant lot. When the man crossed the road Trawick recognized him as the defendant. The suspect ran to the Elbert Worthon residence. Trawick radioed for assistance.

He was joined by various law enforcement officers. After they arrived Trawick and Davis went to the door and knocked. Melody Ann Worthon (sister of defendant) came to the door. Davis asked if the defendant was there and was told he was not. Upon a request for admission she was advised they had no search warrant but would wait until they got one. Trawick said Mr. Worthon came to the door and told them to come in, that a search warrant wasn’t needed. Davis said Mrs. Worthon came into the living room, invited them in, and told him she didn’t mind if they searched. When Trawick and Davis entered Deputy Sheriff Young came in.

The officers found the defendant coming from the bathroom, clad only in a towel. He was arrested for investigation of armed robbery. While in the bedroom dressing, he attempted to shove the shoes and socks in question under the bed. This was observed by Davis and he seized the shoes and socks.

The defendant was then taken outside the home and transported to jail by another officer. Davis, Trawick and Young returned to the house and requested (not demanded) to search the bedroom. Davis testified permission was granted by Mrs. Wor-thon. Trawick testified permission was granted by both Mr. and Mrs. Worthon. The jacket and overalls were found between the mattress and springs.

Mrs. Worthon testified that when the officers knocked she was in the bathtub. When she came into the living room the officers were there. She denied granting any permission, at first denied any conversation, but later stated she didn’t remember what was said. She said the officers had their guns drawn and she was frightened.

Melody Ann Worthon said she too was in the bathroom when the officers knocked. In response to the officers’ request for admission she asked her mother. Her mother said “yes, for them to come on in.” Later she said she wasn’t sure.

In his brief in asserting the invalidity of the search and seizure the defendant in part relies upon testimony at the trial. Whether or not this court in reviewing the validity of a search and seizure is, under all circumstances, required or even authorized to consider testimony on that issue at the trial as well as that offered upon the hearing on the motion has not been fully developed in this state. However, it is obvious the trial court, even in the absence of objection or motion, considered the trial testimony as bearing upon admissibility. That testimony, while necessarily not of the same scope, was, with minor variations, consistent with the pretrial testimony. The variances noted are minor and if they be inconsistencies, are not such as to diminish the probative value of the pretrial testimony. Additional facts bearing on admissibility were developed at the trial. These include: a description of the subject as a black male of medium build, wearing a dark jacket, and with plaited hair; that when he first sighted the suspect, Trawick could see the dark jacket but could not tell about the hair; the ground was wet and muddy; Trawick arrived at the store in approximately 3 minutes after notification, stayed IV2 minutes, and pursued the suspect by automobile; the store was approximately one half mile from the Worthon home; and that the bedroom was shared with six brothers who came and went. For reasons hereafter stated, we hold the motion to suppress was properly overruled. Extending to the defendant the consideration of the trial testimony, without deciding we are required to do so, we find the trial testimony did not militate against the previous ruling, but supported it.

We first consider the seizure of the shoes and socks. Defendant asserts the arrest was unlawful, arguing lack of probable cause because the defendant could have walked from the store into the home before being observed and Trawick saw only a man running, wearing a dark jacket. It was sufficient that Trawick, obviously within a few minutes of the crime, after receiving the information from the children, observed a man fitting the general description of the suspect running away from the scene. State v. Dodson, 491 S.W.2d 334 (Mo.1973); State v. Pettis, 522 S.W.2d 12 (Mo.App.1975). These circumstances are buttressed by the fact the description given Trawick matched someone he knew and he recognized the defendant when he crossed the street. Based upon all of the facts “determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act”, State v. Pruitt, 479 S.W.2d 785, 788’(Mo. banc 1972), the officers had reasonable grounds for a belief of guilt. That was all that was required. State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975); State v. Pruitt, supra, at 788; State v. Novak, 428 S.W.2d 585 (Mo.1968).

The arrest being valid, the officer properly allowed the defendant to dress and to maintain control while he did so. He had a right to search the defendant and the area in which he could reach a weapon or destroy evidence, in this instance under the bed. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Wiley, supra, at 290-292. Further, since the officer was rightfully in the bedroom, he properly seized the shoes and socks which were in “plain view”. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Williams, 554 S.W.2d 524 (Mb.App.1977); State v. Toney, 537 S.W.2d 586 (Mo.App.1976). The facts are remarkably similar to United States v. Di Stefano, 555 F.2d 1094 (2nd Cir. 1977) in which it was observed:

The officers had a duty to find clothing for Sally to wear or to permit her to do so. Having permitted Sally to retire to her bedroom to dress, Officer Christie was clearly justified in accompanying her to maintain a ‘watchful eye’ on her and to assure that she did not destroy evidence or procure a weapon. Since the evidence shows that the officer’s entry into the bedroom was solely for the purpose of maintaining control over Sally while she dressed, it is clear that discovery of the money bag in plain view was ‘inadvertent’, p. 1101. (Citations omitted).

The defendant urges that the arrest was invalid because the officers had no permission to enter the residence. He cites inconsistencies in the state’s evidence concerning who gave permission. We find no such inconsistencies. While at one point Mrs. Worthon denied giving permission, she later testified she didn’t remember what was said. Davis testified Mrs. Worthon gave such permission. This was verified by her daughter. Trawick testified Mr. Wor-thon gave such permission. Under the circumstances it is entirely reasonable that one officer was communicating, with one parent and the other officer with the other parent. The testimony was sufficient to establish permission by a preponderance of the evidence. The arrest and seizure were valid. Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Concerning the jacket and overalls, they were found as a result of a search with permission. Davis testified that after the officers returned to the house he asked and was granted permission to search by Mrs. Worthon. Trawick testified permission was given at this time by both Mr. and Mrs. Worthon. Other than the indecisive testimony of Mrs. Worthon, there is no evidence to the contrary. Again, the testimony was sufficient to establish permission by the preponderance of the evidence.

The fact permission was not given by the defendant does not, as he urges, make the search invalid. This is not a case where a child rented a room that no one else was supposed to enter as in State v. Peterson, 525 S.W.2d 599 (Mo.App.1975). Under the circumstances of this case it is well settled that a parent may grant permission for a search. United States v. Wright, 564 F.2d 785 (8th Cir. 1977); Maxwell v. Stephens, 229 F.Supp. 205 (E.D.Ark. 1964), aff’d, 348 F.2d 325 (8th Cir.) cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965); State v. Pruitt, supra, at 788; State v. Williams, 536 S.W.2d 947 (Mo.App.1976).

Finally, the defendant would vitiate the consent because it was not voluntary. It is true the burden of proving a voluntary consent is upon the state, State v. Berry, 526 S.W.2d 92, 98 (Mo.App.1975) which is to be determined from “ ‘the totality of all the [surrounding] circumstances’ ”. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The presence of officers with arms (not shown to be displayed when the second permission was given) is but one factor. State v. Pinkus, 550 S.W.2d 829 (Mo.App.1977). Initial permission was given when only two officers were apparent. That the parents were not advised of a right to refuse may be considered but does not cause the consent to be involuntary. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Berry, supra, at 98. The testimony of Mrs. Worthon that she was frightened does not establish the consent to be involuntary. Her testimony is self destructive. She does not say, or even suggest, she gave permission because she was frightened. She denies she gave permission. Mr. Worthon’s permission was not questioned. The officers were explicit that they did not demand but requested permission. The “totality of the circumstances” establishes the permission to have been voluntary. State v. Abbott, 571 S.W.2d 809, supra, at 812; State v. Pinkus, supra, at 835; State v. Rush, 497 S.W.2d 213, 215 (Mo.App.1973).

The judgment is affirmed.

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

      .Normally required. “In addition to the above, it is immaterial that a motion to suppress evidence may have been improperly overruled if the evidence which is the subject of the motion is not subsequently received in evidence, or if received it is not objected to, or if received and objected to it is not challenged on appeal on the ground that it was improperly admitted in evidence.” State v. Davis, 547 S.W.2d 482, 487 (Mo.App. 1976).

      . This was in accordance with approved procedure. State v. Lewis, 526 S.W.2d 49 (Mo.App. 1975).

      . State v. Abbott, 571 S.W.2d 809 (Mo.App. 1978).

      . It is said: “When a motion to suppress evidence is overruled in a pretrial hearing the only determination for the trial court at the trial proper is ‘whether the confiscated evidence is competent and relevant.’ ” State v. Gailes, 428 S.W.2d 555, 559 (Mo. 1968). “The legality of a seizure of property is to be determined from the evidence adduced on the motion to suppress the evidence.” State v. Johnson, 463 S.W.2d 785, 786 (Mo.1971). However, “[a] trial court’s ruling on a motion to suppress evidence prior to trial is, in a sense, interlocutory in nature. The real damage is not done until the evidence is introduced in the trial of a case for consideration by a jury. Thus, a trial court can receive additional evidence and change its ruling prior to admitting the objected-to items in evidence before a jury.” State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975). And, it has been said, “[i]n ruling this point on appeal we will consider all of the evidence bearing on the question.” State v. Hohensee, 473 S.W.2d 379, 380 (Mo.1971). The subject is thoroughly discussed in Kamisar, LaFave & Israel, Modern Criminal Procedure, ch. 12, (1974).

      . During defendant’s evidence the jury was excused and the nature of defendant’s use of the bedroom was developed.


author: PREWITT, Judge.

text:
    Willard Joseph CAVE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11013.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 3, 1979.
    John E. Kelly, Springfield, for movant-appellant.

      John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
   PREWITT, Judge.

Appellant appeals from an order of the Circuit Court of Greene County, Missouri, denying his motion under 27.26, V.A.M.R. to vacate, set aside, or correct his convictions of burglary and stealing. Appellant, on December 1,1977, entered pleas of guilty to burglary in the second degree and to stealing in conjunction with the burglary. On January 4, 1978, appellant was sentenced to three years in the custody of the Division of Corrections on each count, with the sentences to run concurrently.

Our review is limited to a determination of whether the findings, conclusion and judgment of the trial court are clearly erroneous. Rule 27.26(j), V.A.M.R. Only when we are left with a firm conviction that a mistake has been committed are such findings clearly erroneous. Bradley v. State, 564 S.W.2d 940, 943 (Mo.App.1978).

Appellant’s first point is that he did not receive adequate assistance of counsel before his plea of guilty. Once a guilty plea has been entered, the determination of the adequacy of representation is limited to its bearing on the voluntariness and understanding of the plea and its consequences. Giles v. State, 562 S.W.2d 106, 111 (Mo.App. 1977); Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977). Appellant contends that due to inadequate discussion with his attorney, and his attorney’s improper preparation, he had no choice but to plead guilty. He claims that he did not learn of the trial setting until three days before the trial date. At that time no witnesses had been subpoenaed for his defense. The attorney testified that he conferred at least six times in person with appellant and also discussed the matter several times with him by telephone. What would be an adequate time to confer would vary with each case and no particular minimum is required. Haliburton v. State, supra, 546 S.W.2d at 773. The attorney also testified he investigated the charges, determined that the witnesses suggested by appellant would not help, and could be of harm at the trial.

According to the attorney’s testimony, after several previous conferences, they met on November 16, 1977. After discussing the facts of the case, including the possibility that appellant’s former girl friend might testify against him, appellant agreed to plead guilty. They also discussed the range of punishment. Appellant acknowledged that his attorney advised him of the range of punishment and that he was aware of the possibility that he might receive more than two years. At this discussion, the attorney said appellant told him he was guilty and did not want to go to trial. The attorney then talked to the prosecuting attorney’s office and was told that the prosecutor would recommend a sentence of two years on each charge, to run concurrently, and would oppose probation. Appellant and his attorney discussed the prosecution’s recommendation on November 30th. Appellant was unhappy about the opposition to probation and wanted a guarantee that he would receive probation. When his attorney told him that because of his prior felony record, it was doubtful that he could receive probation, but that a request would be made for a presentence investigation report, appellant agreed to go ahead with the guilty plea.

On December 1, 1977, appellant and his attorney appeared in court to withdraw the pleas of not guilty and enter a plea of guilty on both charges. Appellant was not inexperienced in criminal procedure. He has an extensive record of arrests and convictions. He was described by his previous attorney as intelligent. Apparently, at least a part of his problems stems from excessive use of alcohol. He was fifty years old at the time of the plea, had a high school education, and said he was not under the influence of any medication, alcoholic beverage or drug. He further stated that he was satisfied with his attorney’s services and had received all the time he needed to discuss the case with him. He had no complaints regarding his attorney. Appellant acknowledged that he was aware of the range of punishment and that the prosecutor’s recommendations would not be binding on the court. He stated that no one had told him he would be placed on probation or parole and he was pleading guilty because he was guilty to both charges.

Appellant contends that he had no choice but to plead guilty because counsel was not prepared for trial and that there was not sufficient time to prepare when he first learned of the trial setting. There was no evidence to indicate that three days would be inadequate to prepare his defense or what, if any, defense he actually had. Appellant cites and relies on a dissent to a denial of certiorari in Martinez v. Mancusi, 409 U.S. 959, 93 S.Ct. 273, 34 L.Ed.2d 228 (1972). The situation there was not similar to the present facts. There a request for a one day continuance, on the day of the trial, was denied, after an apparent misunderstanding of a plea bargaining agreement. Paced with proceeding to trial immediately, with unprepared counsel, the defendant pled guilty.

In the present case there was ample evidence that counsel investigated the matter, met numerous times with appellant, and properly advised him. The trial court’s finding that inadequacy of counsel was not shown is supported by the evidence. This point is ruled against appellant.

Appellant next argues that his sentence should be vacated because the probation officer failed to make inquiry of his home situation and his relatives, and this rendered the presentence report so incomplete as to deprive him of due process of law. Appellant contends that the presen-tence report presented unfavorable information and omitted favorable matters. His motion alleges that the presentence investigation “made no or little attempt to secure information from relatives, friends, or business associates to determine the possibility of a home and job opportunity”. There was no evidence what such an inquiry would have disclosed. The probation and parole officer stated that no investigation of the “home situation” was made because of appellant’s age. If he was granted probation, he would be allowed to reside with his parents or alone. There was no evidence of any untruths in the presentence investigation report, and absent such, there would be no basis for any error. Griffith v. State, 504 S.W.2d 324, 330 (Mo.App.1974). Additionally, the judge gave appellant an opportunity to make any comments regarding the report. Before sentencing, appellant stated: “I don’t think the pre-sentence was complete”. The court then allowed appellant and his attorney time to examine the report further and tell the court what was improper, and the judge said he would consider it. During the recess appellant and his attorney went over the report “very thoroughly”, the attorney testified. Then his attorney announced that appellant advised that the only part of the report with which he disagreed was a portion of a paragraph discussing alcoholism treatment. There followed a discussion between counsel, appellant, and appellant’s father, regarding appellant’s problems with alcohol and his treatment. No other error in the report was mentioned. The evidence did not show any improper investigation or any prejudice to appellant regarding the presen-tence investigation report. The second point is ruled against appellant.

Appellant’s third and final point is that his conviction should be vacated because of his belief that he would receive no more than a two-year sentence and that this, coupled with inadequate assistance of counsel, made his guilty plea involuntary. Before accepting his plea, the trial court told appellant that the court was not bound by the prosecutor’s recommendation and might not follow it. Appellant acknowledged to the court that he understood this. Appellant also acknowledged that he understood that the court had the right to impose a sentence of up to ten years on burglary and up to five years on stealing. At the hearing on his motion to vacate, appellant testified he knew there was a possibility that he might receive more than two years and not get probation. Neither the prosecutor nor the court breached any agreement regarding sentencing. The court extensively advised appellant and made inquiry of him regarding the matter before he accepted the guilty plea. The disappointed hope of a lesser sentence does not make a guilty plea involuntary. McMahon v. State, 569 S.W.2d 753, 758 (Mo. banc 1978). The evidence and appellant’s own admission show that he knew he might receive more than a two-year sentence. This point is ruled against appellant.

The findings and rulings of the trial court are supported by the evidence and are not clearly erroneous.

The judgment is affirmed.

All concur.


author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Rodney H. CARROLL, Defendant-Appellant.
    No. 11122.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 9, 1979.
    John D. Ashcroft, Atty. Gen., Teresa Aloi Angle, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

      Ronald K. Carpenter, David T. Welch, Phillips, McElyea, Walker & Carpenter, Camdenton, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant Rodney H. Carroll was convicted of first degree robbery [§ 560.120 RSMo 1969] on an information which charged he “wilfully, unlawfully, and felo-niously by means of a certain dangerous and deadly weapon, to-wit: One (1) pistol, take, steal and carry away money . of one Mary Danuser, then and there in the lawful care and custody of the said Mary Danuser with the felonious intent to permanently deprive the owner of the use thereof and to convert the same to his own use, all contrary to Section 560.120 RSMo 1969 . .” We reverse and remand.

The statute defining robbery in the first degree, declares, that “Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person . shall be adjudged guilty of robbery in the first degree.” (Our emphasis).

In order to constitute robbery in the first degree the property must be taken from the person robbed by violence to his person or by putting him in fear. State v. Adams, 406 S.W.2d 608 (Mo.1966); State v. Spivey, 204 S.W. 259 (Mo.1918). The crime of robbery in the first degree includes all the elements of larceny, with the added acts of violence to or putting in fear the person robbed. State v. Parker, 324 S.W.2d 717 (Mo.1959); State v. Weinhardt, 253 Mo. 629, 161 S.W. 1151 (1913). To charge the crime of robbery in the first degree it is mandatory that the information aver either the element of violence or putting in fear. Kelley’s Criminal Law and Practice, 3rd Ed., § 626 (1913); 77 C.J.S. Robbery § 40 (1952); 67 Am.Jur.2d, Robbery § 39 (1973); State v. Howerton, 59 Mo. 91 (1875); State v. Hall, 494 S.W.2d 5 (Mo.1973); State v. Hood, 313 S.W .2d 661 (Mo.1958); State v. McKinney, 528 S.W.2d 1 (Mo.App.1975).

The State seeks to overcome the obvious deficiency in the information by pointing out it charges defendant took the property of the victim by means of a pistol and this mode of taking provides “the element of violence and force necessary to a charge of robbery first degree.” The answer to this contention is that the italicized portion of the statute, supra, makes it clear what constitutes first degree robbery and does not concern itself with the means or acts which brought on the violence or the fear. State v. Crockett, 543 S.W.2d 314 (Mo.App.1976). In a prosecution under § 560.135, RSMo 1969, the penalty for first degree robbery may be enhanced if the offense was committed by means of a dangerous and deadly weapon, but under this latter statute the necessary elements constituting first degree robbery must be alleged and proved. State v. McKinney, supra.

The State, in its brief, examines the trial transcript and concludes defendant was not misled as to the nature of the offense for which he .was being tried and had notice of the charge against him. Apparently, the State would have us consider this a waiver by the defendant of the basic defect in its information. What was said by our Supreme Court in State v. Brooks, 507 S.W.2d 375 (Mo.1974), disposes of the State’s contention. At 376 the court said:

“The indictment by a grand jury, or an information, is the method by which a criminal proceeding is instituted. Rule 24.01 V.A.M.R. provides that it ‘shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.’ It is jurisdictional in the sense that if it fails to charge a crime the court acquires no jurisdiction to proceed, and whatever transpires thereafter is a nullity. Montgomery v. State, 454 S.W.2d 571 (Mo.1970); State v. Hasler, 449 S.W.2d 881 (Mo.App.1969). It is necessary to allege in an information or indictment all the elements of the crime intended to be charged, State v. Colbart, 411 S.W.2d 92 (Mo.1967), if such elements are missing they cannot be supplied by intendment or implication. State v. Cantrell, 403 S.W.2d 647 (Mo.1966). Also, where the information or indictment fails to contain an essential averment in the description of the offense it must be held bad even after verdict. State v. Forsythe, 406 S.W.2d 633 (Mo.1966).”

The judgment is reversed and the cause is remanded.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Joan ISEMINGER and John Iseminger, Appellants, v. Deborah Kay HOLDEN, Respondent.
    No. 30095.
    Missouri Court of Appeals, Western District.
    June 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 1979.
    Application to Transfer Denied Sept. 11, 1979.

      J. Kirk Rahm, Warrensburg, for appellants.
    Edgar S. Carroll, Warrensburg, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Automobile collision damage suit. On the first trial, verdict was for defendant. A motion for new trial was sustained. On appeal, the order was affirmed. Iseminger v. Holden, 544 S.W.2d 550 (Mo. banc 1976). Upon retrial, jury verdict against was for defendant. Plaintiffs appeal.

On June 15, 1972, at the intersection of Carpenter and Maguire Streets in Warrens-burg, Missouri,. Deborah Kay Holden accelerated a Chevrolet Vega station wagon backwards into the front of a Dodge automobile occupied by Joan Iseminger and her husband John. Holden estimated her speed at from five to seven miles per hour at the time of the collision. The damage to the Iseminger vehicle was limited to the grill and was estimated at $12.00. The only visible damage to the Holden auto was a dent in the rear bumper.

Asserting injuries to her neck and back, Joan Iseminger filed suit against Holden, claiming $50,000 damages. John joined in a claim for loss of consortium and sought $10,000 damages.

At trial of the action, defendant’s medical witness testified that he could find no organic basis for plaintiff Joan’s complaints. Plaintiffs’ medical evidence was that Joan suffered permanent neck injury as a result of the collision and that a previously existing back condition was aggravated; that prior injuries to Joan’s neck and back in 1964, 1969 and 1971 made her more vulnerable to subsequent injury; that a congenital abnormality, elongation of transverse process of 7th cervical vertebra, made her more susceptible to injury. As early as 1966, Joan was under medical recommendation to lose weight because of back problems. Following the June 15, 1972 incident, two orthopedic surgeons recommended that she lose weight because of the adverse effect of her weight on her back.

A social friend of Joan testified that since the collision Joan is easily upset, doesn’t smile like she used to and complains a lot about her neck and back. John testified that, since the collision, Joan had been less able to engage in household, recreational and marital activities.

(The foregoing is a somewhat abridged version of the facts as stated in appellants’ brief. It is sufficient in the light of the issues on this appeal.)

The plaintiffs’ claims were submitted on failure to keep a careful lookout. The jury verdict was for defendant. Plaintiffs appeal. The assignments of error here are directed at rulings of the trial court on voir dire and closing arguments.

Appellants complain of the trial court’s sustaining objections by respondent’s attorney in jury voir dire by appellants’ counsel, as follows;

“MR. KIRK RAHM: * * * Now, this is a case in which there will be evidence that Mrs. Iseminger was a little bit overweight. There is going to be some evidence she had some congenital defects in her cervical spine and that she had some prior injuries.

“MR. CARROLL: I am going to object to this line of voir dire.

“THE COURT: That objection is sustained as to the injuries. This is voir dire examination.

“MR. KIRK RAHM: What I want to cover and what I want to ask you is, do any of you feel as though you would have any difficulty or reservation about returning a verdict in the case for someone whose own personal problems as far as weight, as far as any congenital defects, might have made that person more vulnerable or more susceptible to injury?

“MR. CARROLL: Judge, he is arguing the case. It is improper voir dire. The question is whether or not they can follow the law.

“THE COURT: The objection is sustained.”

The argument here, based upon Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34 (Mo.App.1967), is that the trial court’s ruling prevented necessary inquiry concerning possible bias of prospective jurors against a person whose obesity or injury from congenital defects made her vulnerable to injury from a minor impact auto collision.

Littell does admonish that on voir dire “ * * * counsel should be allowed a wide latitude to expose * * * bias.” 423 S.W.2d 36 [3]. That opinion also notes that voir-dire bias questions must “ * * * not be used to disguise arguments or pleas for sympathy.” 423 S.W.2d 38 [11].

“ * * * [T]he examination of prospective jurors is supervised by the trial court, which in its discretion determines the nature and extent of counsel’s inquiries. Only upon a demonstration of manifest abuse of discretion and probability of injury to the complaining party should we interfere. Brown v. Bryan, 419 S.W.2d 62 (Mo.1967); M & A Electric Power Cooperative v. True, 480 S.W.2d 310, 314 (Mo.App.1972).” Schmidt v. Central Hardware Company, 516 S.W.2d 556, 560 [11, 12] (Mo.App.1974).

The remarks and questions objected to here have an argumentative tone. The trial court apparently so considered them when he sustained the objection made on that basis. The demarcation line between permissible bona fide inquiry aimed at uncovering bias and impermissible argument purportedly in search of bias is not so clear and unmistakable as to permit this court to conclude that a manifest abuse of discretion has been demonstrated.

Appellant also complains of the trial court’s sustaining defense counsel’s objection to the following question on voir dire:

“Now, in this case there is going to be no claim of bad motive or bad intent and what I want to ask you is whether or not any of you would have any difficulty following the law that bases the responsibility on momentary carelessness without any bad intent or bad motive.”

Appellant complains that the trial court’s ruling precluded inquiry necessary to permit appellants to discover juror bias against this legal theory of recovery. Again, appellant relies upon the Littell case, supra, and also upon Duensing v. Huscher, 431 S.W.2d 169, 172 (Mo.1968). In the latter case, the court approved an inquiry as to whether the panel members could follow the law of punitive damages as given to them in the court’s instructions. The court pointed out that the proper method of uncovering bias as to the law is to ask panel members whether, if the court instructs them in a specified manner, they have any “opinion or conscientious scruples such as would prevent them from returning a verdict accordingly.” 431 S.W.2d 172 [1], See also Hill v. Boling, 523 S.W.2d 867, 873-874 [14-17] (Mo.App.1975). In sustaining the objection in this case, the trial court stated that counsel might ask whether the panel members “will follow the instructions of the Court * * That direction is in accord with the directions of the Duensing and Hill cases. Clearly, no abuse of discretion appears.

Appellants complain of the trial court’s ruling in sustaining objection to the statements of appellants’ counsel on final argument. The first complaint arises in the following sequence:

“(Counsel for appellants) I would like to point out that the burden of proof in this case is different because it is a civil case than it would be in a criminal case.

“MR. CARROLL: Your Honor, I object to that. The Court’s instructions outline the burden of proof.

“THE COURT: That will be sustained.

“MR. RAHM: I want to point out specifically that the Court’s instructions say that the burden of proof is — it is a question of what you believe; it is not a question of us proving things beyond a reasonable doubt.”

Here appellants argue that, in view of the policy of the law to permit a wide latitude in closing argument, citing Lineberry v. Robinett, 446 S.W.2d 481, 486 [7] (Mo.App.1969), counsel should have been permitted the “simple declaratory statement” distinguishing between the burden of proof in civil and criminal cases. As appears from the foregoing excerpt from the transcript, counsel did proceed, despite the ruling, to distinguish between the burden of proof in such cases. Any error insofar as the ruling on the first remark was concerned would be completely harmless in view of the further remarks of counsel.

The court sustained objection again in the following sequence:

Counsel pointed out that the case did not deal with an inanimate object where the cost of repair would provide the measure of damages “and unlike the machine, there is pride and there is dignity which have been affected by the injuries that have been sustained.” Defense counsel’s objection that “pride and dignity” are not a proper measure of damages was sustained.

Appellants here contend that the trial court’s ruling improperly limited their right to compensation and created the impression that they were seeking compensation for a noncompensable loss.

Had the jury returned a verdict for appellants, the matter here urged might have had some significance if appellants felt that the amount of the verdict was inadequate. Where mental distress accompanies physical injury occasioned by another’s negligence, such factor is for consideration in fixing the amount of the injured party’s damages. Shortridge v. Scarritt Estate Co., 145 Mo.App. 295, 130 S.W. 126 (1910). Absent physical injury or conduct of a type not here involved (Gambili v. White, 303 S.W.2d 41 (Mo.1957), recovery for mental distress is not permitted. Whether or not “pride and dignity” are components of mental distress need not be pursued. In returning a verdict for defendant, the jury did so for one or two reasons— defendant was not negligent or plaintiff Joan was not injured. In either event, the question of damages for mental distress would not have been reached, any error on the part of the trial court in the premises would not have affected the outcome and would not constitute reversible error.

In defense counsel’s closing argument, he expressed the opinion that his client was not negligent. When appellants’ counsel, in rebuttal, sought to comment upon the credibility and sincerity of the remarks of his opponent, the latter objected that he was “ * * * not on trial here” and the objection was sustained.

Appellants here argue that the law allows “a liberal latitude in argument, especially where the argument is a fair retort to the preceding argument of opposing counsel.” Contestible v. Brookshire, 355 S.W.2d 36, 44 [17, 18] (Mo.1962). Appellants candidly acknowledge that no case has been found in which the denial of the right to make such an argument resulted in a reversal. At best, this matter would be within the realm of discretion entrusted to the trial court (Duensing v. Huscher, supra). A ruling such as this limiting argument on a matter wholly unrelated to the merits of the case could hardly constitute an abuse of discretion.

Judgment affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    L. L. T., Respondent, v. P. A. T., Appellant.
    No. WD 30321.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      William D. Adkins, Liberty, for appellant.
    Timothy H. Bosler, Martin M. Monte-more, Liberty, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

Upon modification of a dissolution of marriage decree proceeding, the trial court terminated appellant’s visitation rights with his infant daughter. Appellant first asserts that there was insufficient evidence to support the order. He contends that there was no evidence to establish that a “certain condition” of the child (after she was returned to respondent) was caused by him or that the presence of that condition showed that continued visitation rights would endanger the physical and emotional health of the child; and that there was no evidence to establish that he had an uncontrollable temper as would work a substantial change in the condition of the parties which would support a modification of the decree to serve the best interests of the child.

Appellant was granted visitation rights by the decree, which was entered September 6, 1977, for “The first and third Saturday of every month, along with a member of my family.” According to the original petition, the child was born August 6, 1976. Respondent’s petition to modify the decree was filed December 14, 1977, and alleged that appellant “has continually physically and mentally abused said child.” By amendment, she asked for attorney’s fees.

Respondent testified that appellant picked up the child about 9:30 in the morning of December 3, 1977. She bathed the child that morning and had an opportunity to examine her. She did not notice “any irregularities wrong with the child.” The child was returned to her about 5:30 p. m. A little after 10:00 that evening the child “seemed awfully rambunctious and fussy.” Respondent played with her awhile, and when she got sleepy, she went in to get her ready for bed. As respondent was applying baby cream she noticed that the child’s anal area was awfully reddened, and an opening was enlarged there. Because it was unusual and she had never seen it on the child, respondent called her mother in. She then called her family doctor who suggested that she take her to Osteopathic Hospital to see what was wrong, but that pictures should be taken. The picture taken was before the trial court but has not been filed in this court. On arrival at Osteopathic Hospital, respondent was referred to Children’s Mercy Hospital where the child was examined by Dr. Gail M. Zank at 2:30 a. m., on December 4, 1977. Dr. Zank found some “perirectal redness — erythema, about a half a centimeter in circumference.” There was no bleeding or tearing of the anal area, and there was nothing she noticed that indicated penetration. A cultural sperm test was made and there was no sperm seed on the wet mount. There was nothing to indicate sexual molestation. The area of redness was compatible with penetration, but there was no way of knowing for sure — it could have been another cause altogether such as pinworms, a firm stool or constipation. No treatment was indicated.

Appellant testified that he realized he had been charged with physically and mentally abusing the minor child, but denied that he had ever done so. He admitted that he was undergoing counselling at the time of trial, and had been doing so since September, 1977, once a week. “Q And what prompted you to go to this counselling? A The Judge ordered me to go to a counselor, or some kind of help, to get rid of my temper. Q To get rid of your temper? A Yeah. Q And when did this occur? When did this order come down? A September 6th.”

The trial court made this finding: “The Court finds that the evidence adduced in this cause proved a substantial change in the condition of the parties with respect to visitation of the infant child, H. L. T., in that Respondent (appellant here) has been shown to manifest an uncontrollable temper coupled with emotional problems for which he has been receiving treatment, and that said infant, H. L. T., while in his temporary care, obtained a certain physical condition as shown by the evidence, and that further visitation would endanger the physical health and impair the emotional development of said child.” Appellant’s visitation rights as set forth in the original judgment were ordered terminated.

The parties appeared to be confused as to whether the court’s order had to do with a change of circumstances since the original decree, as required for a custody change order under § 452.410, RSMo 1978, or whether it had to do only with a restriction of visitation rights which requires only a finding under § 452.400 that visitation would endanger the child’s physical health or impair its emotional development. Although the court alluded to changed conditions, the order clearly had reference only to a restriction of visitation rights under § 452.400. The original order of custody to respondent was not disturbed. In this connection appellant’s Point IV complains of the court’s receipt into evidence the testimony of S. L. which related to prior homosexual activities of appellant with that young boy. Appellant says that this could not be considered under § 452.410 because the facts elicited were known to the court at the original trial, and thus could not be a changed circumstance. The trial court here was not that which heard the original trial. It was certainly competent for the court to consider this evidence of appellant’s prior conduct as it might bear upon his emotional stability and which in turn would bear upon the well-being of the child under § 452.400.

The sexual molestation of the child by appellant was not proved with certainty. All the other facts bearing upon the issue of visitation were proved by substantial evidence: Appellant admitted he was undergoing counselling for a bad temper which must have existed to the extent to require counselling, hence the court s terminology, “uncontrollable temper”; the child was delivered to appellant in good condition on the day of visitation, but was returned in a different physical condition which the trial court could have found, at least, did not show she had received the best of care during the time appellant had her, and the child was rambunctious, and as respondent further testified, the child appeared to be unusually fussy or upset when appellant brought her back and the properly considered fact of appellant’s prior homosexual activities as showing his emotional stability; and these facts support the trial court’s finding and conclusion that further visitation would endanger the physical health and impair the emotional development of the child in her best interests. See Gayman v. Gayman, 559 S.W.2d 617, 618 (Mo.App. 1977), holding that deference should be given to the trial court’s assessment of what serves the best interest of the child in matters pertaining to visitation rights, and the judgment should be affirmed on appeal unless it lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. See also Langwell v. Langwell, 559 S.W.2d 65, 66[2] (Mo.App.1977), and the there cited case of Roark v. Harvey, 544 S.W.2d 287, 292[5] (Mo.App.1976), holding to the effect that a determination of visitation rights will not be overturned unless the appellant demonstrates that the order was not in the best interests of the child. After a complete review of the transcript on appeal, and a consideration of all of the testimony presented on appellant’s behalf, including his own, there is nothing to indicate that the trial court’s order was not in the best interests of the child.

Appellant contends that the court failed to make findings of fact and conclusions of law in accordance with his request. That request was made about a month after the case was submitted to the court, although the briefs of the parties were filed during that period. Rule 73.01(b) requires that the request be made before final submission of the case. Here it obviously came too late, even assuming that the above recited findings were insufficient. McNeill v. McNeill, 456 S.W.2d 800, 808[9,10] (Mo.App. 1970). The point is overruled.

The trial court awarded respondent $400.00 attorney fees upon a finding that appellant was an able-bodied man and was employed, and respondent was unemployed. That finding is not supported in the record, nor is there any evidence, as required by § 452.355 that the court consider all relevant factors including the financial resources of all parties in awarding attorney fees. There was no evidence of the appellant’s ability to pay, nor of the wife’s need, or inability to pay her own attorney fees. See Rissler v. Rissler, 541 S.W.2d 64 (Mo. App.1976).

The judgment is affirmed except for that part awarding attorney fees, and as to that issue, the case is remanded for further proceedings.

All concur.