author: McMILLIAN, Presiding Judge.

text:
    CITY OF PERRYVILLE, Plaintiff-Respondent, v. Lynn LUKEFAHR, Defendant-Appellant.
    No. 38832.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Application to Transfer Denied Dec. 19, 1977.
    Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    Buerkle, Buerkle & Lowes, David G. Bee-son, Albert C. Lowes, Jackson, for plaintiff - respondent.
   McMILLIAN, Presiding Judge.

This is an appeal by defendant-appellant Lynn Lukefahr from the dismissal by the circuit court of Cape Girardeau County, Missouri, of his appeal from his conviction in the Municipal Court of the City of Perry-ville, Missouri, for multiple violations of city traffic ordinances, wherein appellant was sentenced to 180 days in jail and a $300.00 fine. For the reasons stated below, we affirm the order of dismissal and award the cost of this appeal against appellant.

The question in this appeal, whether a circuit court has the discretionary power to dismiss an appeal from a jury verdict in a municipal court for the voluntary failure of appellant to appear in court on the date set for trial, was decided in the recent case of State ex rel. Garrett v. Gagne, 531 S.W.2d 264 (Mo.1975) (en banc). In Gagne, the Missouri Supreme Court held that it was within the discretionary power of the circuit court to dismiss an appeal from a judgment of a municipal court on facts very similar to those presented here. Id. at 267. A recent case in this court, State ex rel. City of St. Louis v. Judge of the Court of Criminal Correction, 542 S.W.2d 1 (Mo.App. 1976), cited Gagne in a discussion of the jurisdiction of the court of criminal corrections.

Here the appellant had consented to the trial setting almost three months before the trial setting date. And immediately prior to the trial setting the court informed appellant’s counsel that either it intended to proceed either without appellant or it would dismiss the appeal. Because a dismissal of the appeal was an appealable order, appellant’s counsel expressed a preference for a dismissal. During that same telephone conversation, appellant’s counsel also informed the court that appellant had been notified to appear for the trial setting. Consequently, in reliance upon the ruling in Gagne, supra, and State ex rel. City of St. Louis, supra, we find no error.

Respondent City of Perryville requested an award of damages for frivolous appeal pursuant to Rule 84.19 Y.A.M.R. Having considered respondent’s claim, we deny any award of damages. We are reluctant to conclude that appellant “. ‘has prosecuted an appeal so meritless as to negative all reasonable theories of honest mistake regarding the application of law to the facts, and has knowingly done so in bad faith and for mere vexation and delay.’ . . .” Universal C.I.T. Cr. Corp. v. State Farm Mut. Auto Ins. Co., 493 S.W.2d 385, 390 (Mo.App.1973), quoting Bidleman v. Morrison Motor Freight, 273 S.W.2d 745, 750-51 (Mo.App.1954).

We also award the cost of this appeal against appellant. 34 Mo.Rev.Stat.Anno. § 514.160 (Vernon’s 1952); Rule 77.16, V.A. M.R. 1970.

Judgment affirmed.

STEWART and REINHARD, JJ., concur.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Andrew SALES, Appellant.
    No. 10282.
    Missouri Court of Appeals, Springfield District.
    Sept. 22, 1977.
    Motion for Rehearing or Transfer Denied Oct. 5, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      W. H. Winchester, III, Blanton, Blanton, Rice & Sickal, Sikeston, for appellant.
    John C. Danforth, Atty. Gen., William P. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Andrew Sales, charged as a second offender, was found guilty by a jury of the offenses of burglary and stealing. He received consecutive sentences of three years for the burglary and two years for stealing.

This appeal by defendant is from the judgment entered in a second trial for the same offenses. At the first trial the jury was unable to reach a verdict and a mistrial was declared.

Defendant’s first point is that the trial court, in subjecting him to the second trial, violated the "double jeopardy” provisions of the federal and state constitutions. “Termination of the first trial with a hung jury does not constitute acquittal, and declaration of a mistrial for failure of the jury to reach a verdict does not bar subsequent trials.” Durham v. State, 538 S.W.2d 881, 883[2] (Mo.App.1975) and authorities there cited. Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in admitting into evidence certain testimony of state’s witness John Dennis, Sheriff of Scott County. The point is valid.

The information alleged that one of the items stolen in the burglary was “a Victor calculating machine.” The sheriff testified that on the day following the burglary an “unidentified informant” brought a Victor calculator to the sheriff’s house. Over defendant’s hearsay objection, the following testimony was elicited by the prosecutor:

“Q. Now, sheriff, let me ask you what did this informant tell you concerning his purchase of the Victor calculator?

“A. He said he purchased this for $40 from Andrew Sales and Marvin Thomas.”

The state’s brief, with commendable candor, concedes that the quoted testimony was hearsay. The state argues, however, that the introduction of the evidence was harmless error because “the state introduced [defendant’s] confession which clearly proved his involvement in the burglary and stealing offenses.”

Harmless error is not a ground for reversal; however, “error in the admission of evidence should not be declared harmless unless it is so without question.” State v. DeGraffenreid, 477 S.W.2d 57, 64[14] (Mo. banc 1972). On the same page the court quoted with approval the following statement from State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 300 (1944): “The record does not demonstrate that the defendant was not injured by the error as by showing that the jury disregarded or could not have been influenced by the evidence.” “[E]rror which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.” DeGraffenreid, supra, 65[15].

Defendant’s brief, in a separate point, challenged the admissibility of statements made by defendant to law officers after he was taken into custody. This appeal was argued and submitted to this court on April 13, 1977. On June 3, 1977, this court entered an order remanding the case to the circuit court for an evidentiary hearing on the issue of the voluntariness of defendant’s statements, written and oral. The order required the circuit court to make an express finding on that issue. The order further read: “If, after such hearing, the court finds and determines that any such confession was involuntary it shall grant a new trial on all issues and, on such new trial, shall not admit evidence of any such involuntary confession.”

Upon remand defendant filed an application to disqualify Judge Marshall Craig who had presided at the trial. Although stating that he found no proper ground for the application, Judge Craig disqualified himself. The hearing on remand was conducted before Judge A. J. Seier.

At the hearing before Judge Seier the court asked defense counsel whether or not there was any contention “that the man was not advised of his constitutional rights.” Counsel responded, “No contention, Your Honor.” The interrogating officers testified that the Miranda ■ warnings were timely given. Defendant’s testimony, which was somewhat garbled, conflicted with that of the officers on that topic.

After hearing the testimony on the issue of voluntariness of the confessions, written and oral, Judge Seier made certain findings. Although Judge Seier found that defendant’s written confession was voluntary, he also stated that he did “not find that the defendant was adequately advised of his constitutional rights before giving any oral statements, therefore those statements, in my opinion, would be inadmissible.” Judge Seier did not order a new trial but ordered that a transcript of the confession hearing be certified to this court.

The foregoing record falls short of a showing that the trial court found “with unmistakable clarity” (Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967)) that the oral confession was voluntary.

In view of the unsatisfactory condition of the record concerning the confessions and the fact that the first trial resulted in a hung jury, this court may not declare that the admission of the testimony embraced in defendant’s second point was harmless error.

On the present record this court refrains from ruling the correctness of Judge Seier’s finding that the written confession was voluntary. If there is a retrial that issue may require reexamination by the trial court.

The judgment is reversed and the cause remanded.

All concur.

      . The order of June 3, 1977, was in accordance with procedure followed in State v. Bridges, 491 S.W.2d 543, 545[2, 3] (Mo. 1973); State v. Edwards, 435 S.W.2d 1, 5[5] (Mo. 1968); State v. Glenn, 429 S.W.2d 225, 237-38[30] (Mo. banc 1968).

      . See State v. Vermillion, 486 S.W.2d 437, 440[5-8] (Mo.1972).


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roscoe Junior GHAN, Defendant-Appellant.
    No. 10410.
    Missouri Court of Appeals, Springfield District.
    Sept. 22, 1977.
    Motion for Rehearing or to Transfer Denied Oct. 13, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      John D. Ashcroft, Atty. Gen., Walter 0. Theiss, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lloyd R. Henley, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Roscoe Junior Ghan was convicted by a Greene County jury of first-degree robbery by means of a dangerous and deadly weapon. In this appeal he claims the court erred in admitting polygraph evidence and challenges the validity of the stipulation under which the evidence was admitted and the qualifications of the polygraph examiner. He also avers the court erred in failing to give a jury instruction, jury misconduct, and that the evidence was not sufficient to support the verdict. We affirm.

Shortly after midnight, July 18, 1975, a man entered the Quick Shop Market at 1349 South Glenstone in Springfield, Missouri. He was armed with what appeared to be a .45 caliber automatic pistol and demanded that store clerk Danny Griffin give him all the money in the cash register. The store was well-lighted and the incident lasted nearly six minutes. Upon leaving, the man entered a car occupied by two people, one male and one female. Approximately a week later, Griffin viewed a group of photographs at the police station and selected defendant’s picture. Sometime later at a line-up, Griffin identified defendant as the person who robbed him.

Pursuant to a written stipulation entered into by defendant, his counsel and the prosecuting attorney before trial, defendant submitted to a polygraph (lie detector) examination. The stipulation provided that the polygraph examiner was an expert, that the results would be admissible on behalf of the state or defendant, and that defendant waived his constitutional privilege against self-incrimination in connection with the polygraph examination.

The first test was inconclusive, although there was a “lean toward deception.” A second test administered to defendant indicated he was deceptive. After a hearing, the judge overruled defendant’s motion to suppress the test results from evidence. At trial, the examiner was permitted to testify to the results of the examination over the defendant’s objection.

Defendant avers that it was error for the trial court to overrule his motion to suppress and to admit the polygraph evidence because it lacks the level of scientific approval required of judicial evidence, an objection not specifically waived by defendant in the stipulation.

Ever since Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) when a court first rejected lie detection evidence because the technique was not shown to have general scientific acceptance in its field, courts have struggled with the problem of admissibility of such evidence. Some courts admit polygraph results into evidence absent a stipulation provided certain conditions are met. United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972); Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974); State v. Dorsey, 87 N.M. 323, 532 P.2d 912 aff’d. 88 N.M. 184, 539 P.2d 204 (1975).

Other courts exclude polygraph evidence even though the parties have stipulated to its admissibility. People v. Liddell, 63 Mich. App. 491, 234 N.W.2d 669 (1975); Fulton v. State, 541 P.2d 871 (Okl.Cr.1975); Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973); Pulakis v. State, 476 P.2d 474 (Alaska 1970). The reason for the exclusion is the unreliability of such evidence and a stipulation for admission would not increase the reliability. Pulakis v. State, supra.

Of the courts considering the issue a majority have held that the results of polygraph examinations are admissible at trial upon the stipulation of the parties. People v. Davis, 270 Cal.App.2d 841, 76 Cal.Rptr. 242 (1969); State v. Towns, 35 Ohio App.2d 237, 301 N.E.2d 700 (1973); State v. Galloway, 167 N.W.2d 89 (Iowa 1969); State v. Woo, 84 Wash.2d 472, 527 P.2d 271 (1974); State v. Jenkins, 523 P.2d 1232 (Utah 1974); State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962); State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974); State v. Steele, 27 N.C.App. 496, 219 S.E.2d 540 (1975); State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); State v. Bennett, 17 Or.App. 197, 521 P.2d 31 (1974); People v. Oswalt, 26 Ill.App.3d 224, 324 N.E.2d 666 (1975); State v. Stewart, 364 A.2d 621 (N.H.1976); Codie v. State, 313 So.2d 754 (Fla.1975); Banks v. State, 351 N.E.2d 4 (Ind.1976); United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), cert. denied 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976).

In Missouri, by stipulation of the parties, polygraph evidence is admissible in a criminal trial. State v. Fields, 434 S.W.2d 507 (Mo.1968); State v. Faught, 546 S.W.2d 515 (Mo.App.1977). Otherwise, the results of polygraph examinations are excluded because they lack scientific support for their reliability. State v. Weindorf, 361 S.W.2d 806 (Mo.1962); State v. Cole, 354 Mo. 181, 188 S.W.2d 43 (1945); State v. Jacks, 525 S.W.2d 431 (Mo.App.1975).

While it may not be as specific as the one in State v. Fields, supra, defendant after consultations with and warnings by his retained counsel, signed a stipulation agreeing that the results of the polygraph examination would be admissible in evidence. From the testimony at the suppression hearing it is apparent to have been a strategy calculated by defendant to show his innocence and get the robbery charges against him dismissed. While he knew he did not have to take the test, defendant requested he be given a polygraph exam. He indicated he was aware that the results could be used against him. Defendant read the stipulation when he signed it, and at the hearing admitted there was nothing in it he did not understand.

Defendant’s strategy backfired, and now he seeks to escape the stipulation by raising the scientific reliability objection. There was no failure by the state to fulfill its part of the bargain — defendant’s only complaint is that his hoped for result was destroyed by the test. Defendant cannot challenge testimony, the receipt of which was stipulated by him. Failure to include a waiver of scientific objection will not invalidate the stipulation and allow defendant to raise the objection now. By requesting and agreeing to take the test and stipulating that the results would be received into evidence, defendant waived his objections to admissibility. State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); State v. Bennett, 17 Or.App. 197, 521 P.2d 31 (1974).

In another attack upon the admission of the polygraph evidence, defendant claims that his constitutional privilege against self-incrimination and his right to due process were violated because he was not fully advised of his constitutional rights.

The United States Supreme Court, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), said the Fifth Amendment privilege against self-incrimination applies when an accused is forced to provide the state with evidence of a testimonial nature as opposed to his being the source of real or physical evidence such as blood samples and voice samples for identification. In Schmerber, the court indicated that polygraph evidence could be considered as falling under the testimonial evidence category and entitled to Fifth Amendment protection.

“Some tests seemingly directed to obtain ‘physical evidence,’ for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.” 384 U.S. at 764, 86 S.Ct. at 1832.

Recent cases, noting that a polygraph test cannot be administered without the full cooperation of the defendant, have stated that the taking of the examination is tantamount to a waiver of constitutional rights if adequate warnings are given as to the possible use of the test. United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), cert. denied 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976); United States v. Ridling, 350 F.Supp. 90, 97 (E.D.Mich.1972); State v. Steele, 27 N.C.App. 496, 219 S.E.2d 540 (1975).

In this case, defendant’s constitutional privilege against self-incrimination was not violated, nor was there a denial of due process. Defendant was not compelled to submit to the polygraph. He wanted to take the test; the initial request came from him. Defendant had the assistance of retained counsel who advised him not to submit to the polygraph if there was a possibility defendant might fail. He knew of his privilege against self-incrimination prior to taking the exam and knew he did not have to take the test. Defendant signed a stipulation specifically waiving his privilege against self-incrimination. He and his attorney went over the document, with his counsel explaining the polygraph results could be used in evidence. The trial court in overruling the motion to suppress the polygraph evidence questioned defendant about his rights. Defendant understood the statements in the stipulation. The examiner went over the polygraph technique and reviewed all questions with defendant, and defendant and his attorney agreed to questions. Defendant was adequately advised of his rights and the consequences of the polygraph, and made a voluntary and intelligent waiver. The point is denied.

Defendant next asserts that the document he signed before submitting to the polygraph examination does not qualify as a stipulation because it was executed before the felony information was filed and was without court supervision and approval or valid consideration. In his motion for new trial, defendant did not challenge the validity of the stipulation; he only raised the issue of lack of consideration. When a point is not raised as error in defendant’s motion for new trial, it is not properly preserved for appellate review. State v. Nolan, 423 S.W.2d 815, 817-18 (Mo.1968); State v. Webb, 544 S.W.2d 53 (Mo.App. 1976); Rule 27.20(a), V.A.M.R.

Considering the lack of consideration, under Missouri law, a stipulation imports an agreement based on consideration. Goldstein v. Goldstein, 237 Mo.App. 274, 165 S.W.2d 876 (1942). The general rule is a promise by one party is sufficient consideration for a promise by the other party. Mohawk Real Estate Sales, Inc. v. Crecelius, 424 S.W.2d 86 (Mo.App.1968). Defendant understood that if he passed the test “I’d be out of jail by the next day.” Further, the agreement provided that either side could use the polygraph evidence and if' the charge was pursued, defendant had the opportunity, if the results were favorable to him, to present evidence which would otherwise be inadmissible. There was adequate consideration for the stipulation.

Defendant contends that it was error for the court to refuse to give his Instruction A, cautionary in nature, instructing the jury not to attach “too much weight to the polygraph tests because of its atmosphere of scientific acceptability.” The court did give Instruction 9, which was offered by defendant.

The weight to be given testimony is particularly within the province of the jury, with which the court is not to interfere. State v. Ball, 262 S.W. 1043 (Mo.1924). The jury is free to give whatever weight it sees fit to a test introduced into evidence. Hurley v. Illinois Central R. Co., 221 Mo.App. 478, 282 S.W. 97 (1926). As pointed out in the Notes on Use (2) under MAI-CR, 2.01, “Except as may be specifically provided for elsewhere in MAI-CR, no other or additional instruction may be given on the believability of witnesses, or the effect, weight or value of their testimony.” (Emphasis added). Therefore, defendant’s requested instruction would not have been proper because it invaded the province of the jury.

Even if defendant’s Instruction A had been a proper instruction, it was cautionary in nature, and the giving or refusal of a cautionary instruction is always discretionary with the trial court. State v. Bibbs, 461 S.W.2d 755, 760 (Mo.1970); State v. Peterson, 546 S.W.2d 175, 181 (Mo.App. 1976). Where the court has fully and properly instructed on a subject, there is no error in refusing further instructions on the subject. State v. Degraffenreid, 477 S.W.2d 57 (Mo.banc1972); State v. Peterson, supra. By Instruction 9, the court told the jury that the polygraph examination was not sufficiently reliable to make such tests admissible without a stipulation, and that the tests’ reliability depended primarily on the examiner’s skill and the defendant’s health condition. In determining the reliability of the tests, the jury was instructed it must find beyond a reasonable doubt that the examiner was skillful and his technique was proper and that defendant’s health condition did not affect the tests. The jury was adequately cautioned on the polygraph evidence and there was no error in refusing to instruct jury as requested by defendant.

The next point raised by defendant is that the polygraph examiner should not have been permitted to testify because he did not possess sufficient qualifications to testify as a polygraph expert.

The qualifications of an expert in a criminal trial is a matter resting primarily within the sound discretion of the trial court and will not be overturned on appeal absent abuse of discretion which is prejudicial to the defendant. State v. Williams, 515 S.W.2d 463 (Mo.1974); State v. Hindman, 543 S.W.2d 278, 284 (Mo.App. 1976). Due to the substantial bearing the expertise and technique of the polygraph operator-interpreter have on the reliability of the polygraph test, expert testimony concerning the results demands more than minimal qualifications.

Here, the polygraph operator had been on the Springfield police force eight years and his job was polygraph examiner. He was trained at Baxter School of Lie Detection — associated with New York State University — having 216 hours of initial classroom training. Further, he had one year of internship training and had continuing education in polygraph by attending seminars. The examiner had conducted between 400 and 450 polygraph examinations. Although he did not have a college degree, the examiner had completed 87 hours of college work in law enforcement at Drury College. He does not appear to be any less qualified than other polygraph experts who have been permitted to testify. The trial court was satisfied with the witness’s qualifications and there does not appear to be any abuse on its part in admitting his testimony. The point is denied.

Defendant complains that the jury did not decide the issue of guilt before considering the punishment as directed by the instructions. This is inferred from the jury’s asking the trial judge, before indicating it had reached a verdict, whether they could assess punishment at less than five years. Again, this issue was not raised in the motion for new trial and was not objected to during the trial. The point is not preserved for appellate review. State v. Nolan, 423 S.W.2d 815 (Mo.1968); State v. Webb, 544 S.W.2d 53 (Mo.App.1974). Rule 27.20(a), V.A.M.R.

This brings us to defendant’s final argument. He challenges the sufficiency of the evidence to support a judgment of conviction.

In deciding the sufficiency of the evidence, the appellate court’s review is limited to whether there is substantial evidence to support the jury’s verdict. State v. Eaton, 504 S.W.2d 12 (Mo.1973); State v. Kellick, 521 S.W.2d 166 (Mo.App.1975). Substantial evidence is evidence from which the triers of fact reasonably could find the issues in harmony therewith. State v. Taylor, 445 S.W.2d 282 (Mo.1969). Facts and evidence and favorable inferences therefrom, supporting the convictions are considered, and evidence and inferences to the contrary are disregarded. State v. Strong, 484 S.W.2d 657 (Mo.1972); State v. Kellick, supra.

There was substantial evidence to support the jury’s verdict in this case. The store clerk who was robbed was able to observe the man robbing him at gunpoint for approximately six minutes in a well-lighted store. He described in detail the man’s movements in the store during the incident. Twice, before trial, the clerk made a positive identification of the defendant as the man who robbed him, once approximately a week later while viewing photographs at the police station and again during a line-up sometime later. Positive identification by the eyewitness constitutes substantial evidence of the guilt of the defendant. State v. Cannon, 486 S.W.2d 212 (Mo.1972); State v. Bibee, 496 S.W.2d 305, 316 (Mo.App.1973). Any discrepancies in the description and identification were for the jury to resolve. State v. Carey, 486 S.W.2d 443 (Mo.1972); State v. Taylor, 456 S.W.2d 9 (Mo.1970).

The judgment is affirmed.

All concur.

      . It is somewhat misleading to cite State v. Jacks for this proposition because the court, in excluding the results of the polygraph exam, was specifically enforcing the stipulation of the parties, which provided that inconclusive test results would not be admissible. 525 S.W.2d at 434.

      . In State v. Fields, 434 S.W.2d 507 (Mo.1968), the expert had over six years work experience in polygraph, received instruction at a school affiliated with New York University and at the Highway Patrol laboratory, and had conducted 1000 exams. There was no indication whether he had a college degree, any internship training or continuing education.


author: ALDEN A. STOCKARD, Special Judge.

text:
    Robert GOODMAN, Donal Wall and Thomas Prokawski, Respondents, v. Raymond F. McNALLY, Earl J. Gates, D. Jeff Lance, William A. Schmalz, Gus O. Nations, as Board of Police Commissioners, St. Louis County, Missouri, Appellants.
    No. 37275.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      Thomas W. Wehrle, St. Louis County Counselor, Andrew J. Minardi, Associate County Counselor, Clayton, for appellants.
    London & Greenberg, Lawrence J. Fleming, St. Louis, Ronald S. Rothman, Clayton, for respondents.
   ALDEN A. STOCKARD, Special Judge.

Robert Goodman, Donal Wall and Thomas Prokawski were police officers of St. Louis County, and on September 13, 1973, each was disciplined by the Superintendent of Police for violating certain rules contained in the Department’s Code of Discipline and Ethics. Lieutenant Goodman was reduced to a patrolman and Patrolmen Wall and Prokawski were dismissed from the force. Each officer appealed to the Board of Police Commissioners, and after a lengthy adversary hearing the Board sustained the action of the Superintendent as to each officer. The three officers then filed a petition for judicial review, and after a hearing the court entered judgment in favor of each officer and ordered each to be reinstated to his former position with back pay from the date of their discipline. The Board has appealed. We affirm in part and reverse in part with directions.

The transcript of the hearing before the Board is quite lengthy. There are ten volumes of testimony, copies of interviews and exhibits totaling more than seventy-five in number, twenty-six cassette tape recordings, and more than twenty reports and other exhibits. A substantial portion of this pertains to charges which the Board found not to be substantiated by the evidence.

In their petition for judicial review filed pursuant to Rule 100 respondents alleged that the Board’s findings as to each were “not supported by competent and substantial evidence upon the whole record” and that the action of the Board “is arbitrary and capricious and constitutes an abuse of discretion.” The court held that the “findings of the Board of Police Commissioners with respect to each [respondent] are unsupported by competent and substantial evidence upon the whole record and are contrary to the overwhelming weight of the evidence.”

The standard for review as to the sufficiency of the evidence in this case is prescribed by Rule 100.07 where it is provided that the judicial inquiry “may extend to a determination of whether the action of the agency * ⅜ * [i]s unsupported by competent and substantial evidence upon the whole record; * * *.” The reviewing court is not to weigh the evidence for itself, but rather is required to view the evidence in the light most favorable to the decision of the tribunal, giving to the administrative decision the benefit of all reasonable inferences to be derived from the evidence produced. State Board of Registration for the Healing Arts v. Finch, 514 S.W.2d 608, 616 (Mo.App.1974); Friedman v. Miller, 525 S.W.2d 770 (Mo.App.1975).

The three officers were members of a Mobile Reserve Unit, created in February 1973, consisting of six patrolmen and Lieutenant Goodman. It is the activities of the officers as members of this unit that gave rise to the charges against them. Respondents point out that there were charges filed against each officer which were found by the Board not to be substantiated by the evidence, and it is argued that the knowledge of these unsupported charges are important in order to have a clear view of the total circumstances resulting in the disciplinary action taken. However, the Board’s order as to each officer was based on findings that certain charges as to each were supported by evidence, and it is the findings as to those charges that this court is concerned. We shall review the evidence as to each officer.

Officer Robert Goodman

The Copy Machine Incident

Goodman was made the head of the Mobile Reserve Unit on February 27, 1973, and among those in the unit were officers Prokawski and Wall. He was directly responsible for the operation of the unit and its activities. On May 18, 1973 he, with Patrolmen Prokawski and Burke, conducted a search of the residence of Freddie Darrell Swan and discovered three copy machines. At that time it was determined that one of the copy machines had been stolen in Jefferson County, and Goodman directed that it and the other two be held as evidence. The machines were placed in the evidence locker of the Second District Police Station where they remained until after the imposition of disciplinary action in this case. An application was made for a warrant charging Swan with the receipt of stolen property which was taken under advisement by the prosecuting attorney. No action on this application was taken until December 7, 1973, which was approximately three months after the disciplinary action against Goodman.

The Board found that Goodman took no steps to return to the “true owner” the copy machine seized from Swan. This refers to the machine which Goodman determined, prior to seizure, to have been stolen. The Board also found that Goodman failed to “return to Swan the copy machines that were rightfully his.” This refers to the two other machines.

As to all three machines, we find no written rule, regulation or order in the record which imposed a duty on Goodman to see to it that the machines were returned to the owners. In appellant’s brief it is stated that “It was Goodman’s responsibility ultimately to see that the- copy machines were returned to the rightful owners or to the person from whom they had been taken if it could not be established they were stolen.” In this case the disciplinary action was taken against Goodman by the Superintendent in a little less than four months after the copy machines were seized. We find nothing in the record to indicate that the duty to “ultimately” return the machines required that they be returned in less than that time. Reference is made by appellants to the testimony of Colonel G. H. Kleink-necht, Superintendent of Police of St. Louis County who had held that office for one year at the time of the hearing before the Board. He testified only that it is the “responsibility of the investigating officer .to handle all aspects of the investigation and complaint,” and that Goodman should have arranged to return the machines. He made no reference to any directive, regulation, rule or order to that effect. But more important, assuming there was a department policy or understanding as to this matter, there is no explanation of why Goodman should have arranged to return the one machine, known to have been stolen and which was being held as evidence, during the time that an application for a warrant was still under consideration by the prosecuting attorney. Also, there is nothing to indicate that it was not reasonable for Goodman to assume the other two machines were potential evidence. There is no showing that under the circumstances four months was an unreasonable time for him to have made the “ultimate” disposition referred to in appellants’ brief. The only possible basis for a determination of what was a reasonable time is that Goodman’s superiors did not return those two machines to the owners for more than a year.

It thus appears from the undisputed evidence that Goodman was disciplined by the Superintendent, and that action has been sustained by the Board, for the failure to return a stolen copy machine to an owner, then unknown to him and for which no request for its return had been made, and which was being held as evidence in a case which was still under consideration by the prosecuting attorney, and when his conduct violated no express rule, regulation or order. Also, he was disciplined for failing within four months to return the other two machines to Swan, who notwithstanding the finding by the Board, was not the owner and when Goodman had reason to believe they had been stolen and which were also being held as potential evidence.

We necessarily conclude that the findings of the Board that the failure of Goodman to return the copy machines constituted conduct “prejudicial to discipline or tending to bring discredit on the reputation of the Department,” and that he omitted without sufficient cause “promptly and diligently to attend to, or carry out, something which was his duty as a member of the Department” are not supported by competent and substantial evidence upon the whole record, and the trial court’s finding in this respect must be affirmed.

The Moody Search

On July 25, 1973, Goodman and several members of the Mobile Reserve Unit went to the residence of Mrs. Eunice Moody at 9856 South Broadway. Officer Kossman had a warrant for the arrest of David Voyles who was charged with a misdemean- or, and the officers had reason to believe that Voyles might be at the Moody house. The officers also had information that there may have been narcotic sales there but they had no search warrant. Goodman and Officers Kossman and Wall went to the front door, the latter officer carrying a sawed-off shotgun. Mrs. Moody gave permission for the officers to search for Voyles, which they did without finding him there. The officers then in the presence of and with the approval of Goodman, searched the premises for narcotics. Searches were conducted of bureau drawers, closets, clothing in drawers, under a mattress, and in cabinets.

Goodman asserts at the hearing before the Board that he had oral permission from Mrs. Moody to make the search for narcotics. He testified that he asked her “if we could search for narcotics,” and that she replied, “there is no narcotics in the house, go ahead and search,” and that a “small search” was then made. Mrs. Moody testified that none of the officers asked permission to search the house, but that “one of them went into [her son’s] room and started looking around in the drawers.” At the hearing before the Board she could not identify the person, and when she was asked if she saw anyone in the courtroom that she had seen “that evening or that day” she indicated Col. Kleinknecht and said he “might have been” one of the officers. She further testified that she did not give the officers permission to look around and that they did not tell her what they were searching for. On cross-examination she was asked if she remembered stating on deposition, “I don’t remember whether I gave any permission or not,” and she replied that she did not so remember. The statement in the deposition was not offered in evidence and we cannot determine if the question pertained to permission to search for Voyles or narcotics. When Mrs. Moody’s son was asked if the officers asked permission to search the house, and if he heard his mother give her permission for the officers to search, he replied to each question that he did not remember. Mrs. Moody’s daughter Patty, testified that she did not hear her mother give permission for the search, and in answer to the vague question of “While you were present, did you hear your mother discuss with them [the officers] anything about what they were doing?” She replied, “I don’t remember.”

Officer Kossman testified that he had received information that “the Moody residence was dealing in narcotics,” and that he had a warrant for the arrest of David Voyles for tampering with a motor vehicle. He further testified that as he and other officers approached the Moody residence he observed “one of the Voyles subjects at the window.” He accompanied Goodman to the door, observed Goodman identify himself and display the warrant for Voyles arrest, and heard Mrs. Moody reply that “She would be more than happy to allow us to come in and search for the subject.” He also testified that later he heard her say that Goodman could have permission to search the residence, but “I don’t know what that was in reference to.”

The trial court held that the findings of the Board regarding the search of the Moody residence “appear to be contrary to the overwhelming weight of the evidence, as well as unsupported by any substantial evidence.”

We consider the testimony of Mrs. Moody to constitute substantial evidence that although she told the officers they could search for Voyles, she did not give permission to conduct a general search of her house. It is true that Goodman testified she did give such permission, but that only created a conflict in the testimony to be resolved by the Board before whom the witnesses appeared in person. Our review is limited “to a determination of whether the [Board] could have reasonably reached its result upon consideration of all the evidence before it or whether the [Board’s] decision was clearly contrary to the overwhelming weight of the evidence.” Friedman v. Miller, supra at page 772. We are admonished that we are “not to weigh the evidence” but are to “view the evidence in the light most favorable to the decision of the tribunal.” State Board of Registration for the Healing Arts v. Finch, supra at page 616. Under the evidence and the circumstances the Board was authorized to conclude that Goodman participated in and authorized those under his supervision to conduct a search of the residence of Mrs. Moody for narcotics when there was no search warrant or other justification. There is no contention that such conduct did not result in a violation of the Department’s Code of Discipline and Ethics.

The judgment of the trial court as to this charge must be reversed.

Thomas Prokawski

Subsequent to the seizure of the copy machine, Prokawski attempted to develop Swan as an informant. According to the information in the police report, Swan called the police and stated that Jerry Zook intended to burglarize the Forder School that night and that he had told Swan that if he did not permit Zook, and apparently others, to use his automobile they would “get him.” The police officers, which included Prokawski, told Swan to cooperate. Swan called back and stated that the burglary was to take place about 1:00 o’clock in the morning of June 8. Prokawski advised Swan that he would not be charged with burglary because he did not have the necessary intent. The burglary occurred, the police were waiting, and Zook was arrested after a rather violent resistance. According to the testimony of Swan before the Board Prokawski called him on June 8,1973 and said that “he needed a burglary that evening.” Swan stated that he had previously been approached by Jerry Zook who said that there was some projectors at the Forder School and he asked Swan if he wanted to buy a projector, and Swan said he did not. After the call from Prokawski, Swan located Zook and talked to him about the projectors. After another contact with Prokawski, at which time Prokawski indicated he wanted the burglary to take place about midnight, Swan and Zook drove in Swan’s automobile to the Forder School. They saw that an old Cadillac automobile was parked at the school, and Zook stated that “we can’t do anything with him in there.” Swan then took Zook back to where he had picked him up and contacted Prokawski and told him about the Cadillac automobile. Prokawski and Officer Burke then went to the school, opened one of the doors and determined that no one was there. He also checked the automobile and determined that it belonged to one of the janitors who was at home. Prokawski then contacted Swan and told him that no one was in the building, that the owner of the automobile was at home, and that it was all right to go ahead with the burglary. Swan then located Zook and they both went to the Forder School and committed the burglary. The police were waiting and Zook was arrested. Prokawski testified that he was not aware that Zook may have abandoned his plan to burglarize the school, and that the only reason he checked out the school and the Cadillac automobile was to be sure that no innocent parties were inside the building where their safety might be jeopardized.

In the report, which was written by Officer Ley but which was signed and approved by Prokawski as immediate supervisor, there was no mention of the incident involving the Cadillac automobile, or that Prokawski had gone to the school to determine that no person was there, or that he had informed Swan that he had checked out the building and the automobile. It is the failure of Prokawski to include this information in the report that the Board found to constitute Insubordinate or Oppressive Conduct and a Neglect of Duty.

The trial court found that there was “no evidence of any rule, regulation or guideline of the Police Department which would apply to either the handling or the reporting of the situation regarding the automobile,” and that the findings of the Board with regard to Prokawski are not supported by competent and substantial evidence upon the whole record.

We necessarily recognize that it is not reasonable to expect the written rules to prescribe in detail or with preciseness what is to be placed in a police report. By necessity, the requirement to make a complete report must be general. The Board found that the circumstances of the Cadillac and Prokawski’s investigation and reports were material and that they should have been included. Reports of incidents, such as the burglary in this case, form the basis for future action by prosecuting officials, and while legal scholars may disagree, the activities of Prokawski, as related by Swan, present a strong case of probable entrapment which would bear heavily on what cause of action a prosecutor might deem advisable. Also, for the internal management of the Police Department, the supervisors should be fully advised of the actions of the officers so that they might be aware of whether practices being utilized fall within the accepted and authorized pro--cedure.

The content of police reports is a matter of internal management of the Department and absent most compelling reasons the courts should not interfere.

The Board was authorized to find that the failure to include in the report the above information constituted improper conduct and neglect of duty. For that infraction the Board authorized and directed that Prokawski’s employment should be terminated. We do not know if this was a first or a repeated dereliction or neglect. While the punishment seems to us to have been harsh, this too is a matter of discretion with which there should be no interference by the courts absent an abuse of discretion on the part of the Board. It is with some reluctance that we conclude that the punishment imposed was within a reasonable exercise of discretion, and the judgment of the trial court as to Prokawski is reversed.

Donal Wall

In July 1973, Officers Wall and Hines went to the Swan residence. Both had participated in the original arrest of Swan and in the arrest of Zook at the Forder School. According to Swan both officers were not in uniform but were dressed, as Swan testified, to look like “hippies,” but he knew them to be St. Louis County police officers because he had previously seen them in uniform. The two officers “just opened up the door” and walked into the house without knocking. Wall identified himself as being from Madison County and said that he wanted “some answers.” Swan was seated at the kitchen table and Wall “took his hand” and shoved him to the floor and knocked over the table and chairs. Wall then went downstairs and “went through the drawers” while conducting a search of some nature. When he came back upstairs he told Swan that he, Swan, had seen “the job that was put on Zook” and that he would give Swan one week “to come up with a car thief.” Wall told Swan that he would be back, and he indicated that if Swan did not produce a car thief, he was “going to look worse than Zook.” When Wall started to leave he told Swan that he was not joking, and he struck Swan in the stomach which “knocked the breath” out of him. While Wall was at the house Ron Taylor and Jerry Zook came to the house but at different times. Their testimony corroborated that of Swan in some respects and was not inconsistent with it. When Wall testified, he admitted that he and Officer Hines went to Swan’s house to talk to him “about the Martin brothers,” but he denied identifying himself as being from Madison County and he denied striking Swan, although he admitted touching him “in the performance of a play-acting search.” He also denied that he demanded that Swan produce a car thief. He admitted that a search was made of the house for “immediate weapons easily obtainable” and to see if anyone else was hiding there.

It is clear that from the evidence the Board was authorized to find that Wall “physically abused Mr. Swan when he was at Swan’s residence” in July 1973. Whether such a finding should have been made was an issue of fact to be determined by the Board, and when there is substantial evidence to support the finding, as here, we are not to weigh the evidence but are to view it in the light most favorable to the decision of the Board. In view of this limitation on our judicial function, the judgment of the trial court as to this charge must be reversed.

The cause is remanded and the trial court is directed to set aside its reversal of the Board’s decision pertaining to Donal Wall and Thomas Prokawski, and also to set aside its reversal of that part of the Board’s decision pertaining to the charge that Robert Goodman permitted a search of the residence of Mrs. Eunice Moody without a warrant or other justification. The trial court’s judgment reversing the decision of the Board pertaining to the charge that Robert Goodman failed to return certain copy machines to the owners is affirmed. It is further directed that the trial court refer the cause to the Board for the Board to reconsider its disposition for one charge as to Robert Goodman rather than two.

It is so ordered.

SMITH, P. J., and NORWIN D. HOUSER, Special Judge, concur.

      .The findings of the Board, insofar as material to the issues on this appeal were as follows:
      AS TO ROBERT GOODMAN Findings of Fact
      1. That Goodman took no steps to see to the return to the true owner of the copy machine seized from Freddie Darrell Swan, on or about May 18, 1973, or to return to Swan the copy machines that were rightfully his.
      2. That on or about July 25, 1973, Goodman permitted his subordinates to search the residence of Mrs. Eunice Moody at 9825 South Broadway, St. Louis without a search warrant or other justification.
      Conclusions of Law
      1. In the matters set out in Finding No. 1 above, Goodman violated the Department’s Rules and Regulations, Code of Discipline and Ethics, specifically:
      (a) Paragraph 6.11 Discreditable Conduct: By acting in a manner prejudicial to discipline or tending to bring discredit on the reputation of the Department.
      (b) Paragraph 6.14 Neglect of Duty : By neglecting or without sufficient cause omitting promptly and diligently to attend to, or carry out, something which was his duty as a member of the Department.
      2. In the matters set out in Finding No. 2 above, Goodman violated the Department’s Rules and Regulations, Code of Discipline and Ethics, specifically:
      (a) Paragraph 6.19 Unlawful or Oppressive use of Authority: By being guilty of oppressive and tyrannical conduct toward a member of the public.
      3.As a result of these violations, Goodman is not qualified to perform the duties of a supervisor, and should be reduced to the rank of patrolman, commensurate to his years of service.
      Order
      It is therefore ordered that the discipline imposed by the Superintendent is hereby affirmed, and that Goodman’s reduction to the rank of patrolman, commensurate to his years of service, is hereby sustained.
      AS TO THOMAS WAYNE PROKAWSKI Findings of Fact
      1. That on or about 8 June 1973, when Jerry Zook saw an automobile parked at the Forder School, he abandoned his intention to burglarize the school, but that Prokawski ascertained that the automobile was abandoned and that no person was then present in the school, which information he communicated through Freddie Darrell Swan to Zook, and thereby induced Zook to proceed with the burglary. However, no mention is made of these facts in the report of the burglary which Prokawski approved, nor did he officially divulge these facts until they were brought out during the investigation of his conduct made by the Department’s Bureau of Internal Affairs.
      That Prokawski showed a tenacious desire to insure that the crime of burglary and stealing at the Forder School would occur, 2. even after it was abandoned by the principal perpetrator. There is no mention of the facts relating to the auto parked at the school in the police report, nor is there a mention of his subservient actions concerning the auto or his investigation of the school prior to the crime.
      Conclusions of Law
      1. In the matters set out in Finding No. 1 above made, Prokawski violated the Department’s Rules and Regulations, Code of Discipline and Ethics, specifically: (a) Paragraph 6.12 Insubordinate or Oppressive Conduct:
      By withholding information which should have been officially reported.
      2. In the matters set out in Finding No. 2 above made, Prokawski violated the Department’s Rules and Regulations, Code of Discipline and Ethics, specifically:
      (a) Paragraph 6.14 Neglect of Duty:
      By failing to report something which he knew concerning a criminal charge and failing to disclose evidence which he, or a person within his knowledge, could give for or against a prisoner or defendant to a criminal charge.
      3. As a result of these violations, Prokawski’s employment as a commissioned police officer of this Department should be terminated as of 13 September 1973.
      Order
      It is therefore ordered that the discipline imposed by the Superintendent is hereby affirmed, and that the termination of Prokawski’s employment as a commissioned police officer with this Department as of 13 September 1973, is hereby sustained.
      AS TO DONAL L. WALL. SR. Findings of Fact
      1. That Wall physically abused Mr. Swan when he was at Swan’s residence during July, 1973.
      Conclusions of Law
      1. In the matters set out in Finding No. 1 above made, Wall violated the Department’s Rules and Regulations, Code of Discipline and Ethics, specifically:
      (a) Paragraph 6.12 Unlawful or Oppressive Exercise of Authority:
      By using violence to a prisoner or other person, namely, Mr. Swan, with whom he was brought into contact in the execution of his duty.
      2. As a result of this violation, Wall’s employment as a commissioned police officer of this Department should be terminated as of 13 September 1973.
      Order
      It is therefore ordered that the discipline imposed by the Superintendent is hereby affirmed, and that the termination of Wall’s employment as a commissioned police officer of this Department as of 13 September 1973, is hereby sustained.

      . Colonel Kleinknecht also testified that after he had taken disciplinary action against Goodman for not returning the machines, Goodman “had * * * time to make arrangements for returning those machines.” He also testified that a superior officer of Goodman would be responsible if he “had knowledge” of his failure. At least from the time the Superintendent took the disciplinary action against Goodman he had actual knowledge that the machines had not been returned, and we agree with the comment of the trial court that “One may ask also why the Superintendent didn’t see to whatever disposition of the machines he deemed proper after he disciplined Goodman on the matter.” We note that the machine known to have been stolen was not returned to its owner until January 11, 1974, approximately four months after the Superintendent disciplined Goodman. The period of time after the Superintendent had actual knowledge and the return of the machine to the owner was a few days longer than the time from the seizure to the discipline of Goodman. The other two machines were not returned to Swan, but were subsequently determined to have been stolen, and it was more than a year after the disciplinary action was taken before they were returned to their owners.

      . This apparently had reference to a television commercial depicting a Madison County Sheriff.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Chester GOODSON, Defendant-Appellant.
    No. 38500.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.

      Robert C. Babione, Public Defender, Christelle Adelman-Adler, William W. Brown, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Chief Counsel, Criminal, Paul Robert Otto, Jeffrey W. Schaeperkoetter, Jefferson City, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of assault with intent to kill with malice and his resultant sentence by the court of 12 year’s confinement.

On appeal defendant raises only one point, that the judgment must be set aside because defendant was denied effective assistance of counsel. This point is supported by sixteen alleged failures of defendant’s counsel. The point now presented was not included in defendant’s motion for new trial (obviously because that document was prepared by defendant’s trial counsel), and defendant seeks review of the point under the plain error rule. Rule 27.20(c).

Review upon direct appeal of a claim of ineffective assistance of counsel may be made only “where the record develops facts essential to ‘a meaningful review’ of that point.” State v. Burns, 537 S.W.2d 860 (Mo.App.1976) [4, 5]. See also State v. Phillips, 460 S.W.2d 567 (Mo.1970) [3]; State v. Greathouse, 519 S.W.2d 299 (Mo.App.1975) [6].

We do not find the record here sufficiently developed to allow such review. We need not deal with each of the claimed failures of defendant’s trial counsel. Some of the actions or inactions of counsel appear superficially questionable, but we cannot say as a matter of law that they were improper or inadequate. The thrust of the defense was that defendant did fire two shots from a gun, not at the victim, but into the air to scare the victim who was advancing toward defendant’s car with a brick in each hand. The case turned upon the head on head conflict between the testimony of the victim and that of defendant. Whether, under those circumstances, it was ineffective, for instance, for counsel to fail to seek to suppress the gun fired because of a possibly illegal search can only be determined after a full hearing in which counsel has an opportunity to explain his actions.

We have examined the record as required by Rule 28.02 and find no error. Nothing stated herein shall be deemed to preclude or limit further proceedings pursuant to Rule 27.26.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: PER CURIAM.

text:
    STATE ex rel. Robert PERNO, Plaintiff-Appellant, v. John J. QUINN, Defendant-Respondent.
    No. 38508.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Bruce Nangle, Clayton, for plaintiff-appellant.
    Jack L. Koehr, City Counselor, John J. Morton, Asst. City Counselor, St. Louis, for defendant-respondent.
   PER CURIAM.

Appellant, the owner and operator of the Sunrise Inn located at 3234 Morgan-ford Road in St. Louis, asks this court to review the judgment of the Circuit Court of the City of St. Louis affirming respondent’s (Excise Commissioner for City of St. Louis) decision denying renewal of his liquor license. He contends that the evidence relied upon by respondent was incompetent and insubstantial on its face. Appellant, however, failed to arrange for the record of the administrative hearing to be transcribed by a court reporter, even though he was advised by respondent prior to the hearing that it was his duty to do so. Furthermore, he has neglected to provide this court with the certified record of the documents utilized by respondent in deciding to deny his liquor license. As such, appellant has failed to comply with Rule 81.14(a) V;A.M.R., and his appeal is dismissed. Rule 84.08 V.A. M.R.

The law is settled that a licensee may not contest an administrative decision denying his license as resting upon incompetent and insubstantial evidence where he fails to preserve a record for this court to review after being notified that it is a duty to do so. § 536.070(4) RSMol969; State ex rel. Sansone v. Quinn, 426 S.W.2d 917 (Mo. App.1968). If appellant desires review of an administrative decision, it is his duty to provide a record of the proceeding below, containing all relevant records, proceedings and evidence necessary for determination of the merits of the issue in question. State v. Clark, 522 S.W.2d 332 (Mo.App.1975); Lawler v. Schaffner, 497 S.W.2d 830 (Mo. App.1973); Adams v. American Paving and Construction Co., 488 S.W.2d 283 (Mo.App. 1972). The absence of a complete record leaves this court with nothing to review. Davis v. Long, 521 S.W.2d 7 (Mo.App.1975). We will not presume error where none appears on the record before us. Appellate courts have more pressing duties than to locate exhibits for counsel who fail to follow the Supreme Court Rules.

Appeal dismissed.

All judges concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael Wayne WRIGHT, Defendant-Appellant.
    No. 10430.
    Missouri Court of Appeals, Springfield District.
    Oct. 3, 1977.
    Motion for Rehearing or to Transfer Denied Oct. 17, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Loren R. Honecker, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

In a two-count information, defendant Wright and Bernard Davis were jointly charged with first degree robbery at Porter’s So-Lo Market in Springfield on (Count I) October 19, 1975, and on (Count II) November 29, 1975. The jury acquitted defendant on Count II but found him guilty on Count I and assessed punishment at 25 years’ imprisonment. Defendant was represented by appointed counsel at trial, and on this appeal, taken in forma pauperis, defendant is represented by different appointed counsel.

At the time of each robbery Porter, the store owner, was in the market office and Virginia White, a store employee, was near the check stands. Porter identified Davis as being a participant in both robberies and defendant as being a participant in only the October robbery. Mrs. White testified defendant was present during both robberies and Davis was present in only the October robbery.

Points Relied On Numbered I and III

Point I. asserts the trial court erred in permitting the rebuttal testimony of an investigator in the prosecutor’s office because the testimony constituted impeachment of a defense witness upon collateral matters. Point III says it was error to permit the rebuttal testimony of a newspaper reporter relating to supposedly prior consistent statements made by the store owner Porter because “the rehabilitating statements were not shown to have been made prior to the statements whereby Porter was impeached, and defendants were given no notice of said witness.”

Unless a point raised for review upon appeal has been preserved in the motion for a new trial, it will not be considered by an appellate court. Rule 27.20(a), V.A.M.R.; State v. Peterson, 518 S.W.2d 1, 3[2] (Mo. 1974); State v. Carr, 499 S.W.2d 788, 790[4] (Mo.1973); State v. Williams, 546 S.W.2d 533, 537[8] (Mo.App.1977); State v. Webb, 544 S.W.2d 53, 54[1] (Mo.App.1976). The points relied on (I and III) were not noted in defendant’s motion for a new trial. Although perspicacious appointed counsel for defendant may have sniffed possible error in the areas enumerated, his asseverations were fatally thwarted by the failure of predecessor counsel to preserve the items of alleged error by including them in the motion for a new trial. But be that as it may, which by no means constitutes an indictment of the efforts of astute trial counsel, points I and III relate solely to the charge against defendant on Count II of the information of which he was acquitted. Therefore, contrary to appellate counsel’s argument, it is difficult to comprehend how defendant was prejudiced by the testimony of which he here complains. State v. Knicker, 366 S.W.2d 400, 403[3] (Mo.1963).

Point Relied On Numbered II

Defendant says the court erred in failing to sustain the “motion for mistrial based upon the closing argument of the prosecutor because said argument was improper and prejudicial in that the prosecutor’s personal belief in defendant’s guilt was expressed in such a manner as to imply knowledge of facts not in evidence.”

The incident concerned, although not properly identified in the point (Rule 84.-04(d), V.A.M.R.), occurred in this fashion. In the prosecutor’s final argument and following a critique of the testimony and evidence, he stated: “Ladies and Gentlemen, I leave you with [defense counsel’s] words turned around just a little bit differently. Justice does come about when the innocent are turned loose and justice does come about when the guilty are convicted, but justice does not come about when the guilty are set free.” Simultaneously with this final remark, the prosecutor pointed at defendant and Davis. Defense counsel moved for a mistrial because the prosecutor’s “comment and his gesturing towards the defendants . . . is an inference or a statement on his part that he has personal knowledge or belief of the guilt of the defendants.” In overruling the motion, the trial court observed at a bench conference: “I think it is not subject to that, I would construe it as meaning he things [sic] they’re guilty based on the evidence, even though he points to them. That he pointed to them physically I don’t think is material, it’s the words and I don’t think they were out of line.”

“Defendant relies on the established principle that it is improper for a prosecuting attorney to express to the jury in argument his belief of the defendant’s guilt in such way that it implies knowledge on his part of facts not in evidence pointing to such guilt. . . . But it is equally well settled that a statement by the prosecuting attorney in argument indicating his opinion that the accused is guilty, where it is apparent that such opinion is based on the evidence in the case, is permissible.” State v. Chester, 445 S.W.2d 393, 399[8, 9] (Mo.App. 1969).

Whether the remarks of a prosecutor in closing argument necessitates the declaration of a mistrial rests largely with the discretion of the trial court and appellate courts will not interfere unless the record shows an abuse of such discretion to defendant’s prejudice. State v. Wintjen, 500 S.W.2d 39, 42 (Mo.App.1973). Furthermore, for statements made in oral argument to be reversible error, they must have been “ ‘plainly unwarranted and clearly injurious.’ ” State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970). As was said in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), “[Cjlosing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.”

The prosecutor, after a complete recapitulation of the evidence during which he asserted at length the strength of the identification testimony and remarked upon the weakness of the alibi evidence, simply stated he was closing his argument with words from defense counsel’s peroration “turned around just a little bit differently.” Albeit the remark, taken with the gesture, amounted to an expression of the prosecutor’s belief in the defendant’s guilt, there is no implication in the closing argument or at any other time at trial that the prosecutor had or was relying on knowledge of facts not in evidence. Cf. State v. Neal, 526 S.W.2d 898 (Mo.App.1975).

The judgment is affirmed.

All concur.


text:
    Robert Leroy WATTS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10626.
    Missouri Court of Appeals, Springfield District.
    Oct. 4, 1977.
    Motion for Rehearing or Transfer Denied Oct. 21, 1977.
    Application to Transfer Denied Nov. 14, 1977.
    Paul Crider, Jr., Public Defender, Timothy H. Battern, Asst. Public Defender, Rol-la, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant Robert L. Watts sought to vacate sentence and judgment for cattle stealing under Rule 27.26, V.A.M.R. The Circuit Court of Pulaski County denied appellant’s postconviction motion without an evidentia-ry hearing and this appeal followed. We affirm.

Appellant, represented by an attorney, entered a negotiated plea of guilty to the charge. In his pro se motion appellant alleges his attorney was incompetent, his attorney did not handle his case with appellant’s best interests in mind, and he was the same as threatened by his attorney of a longer sentence if he did not plead guilty.

The motion referred to the transcript of the guilty plea proceedings for the facts supporting his “grounds.”

We have read the guilty plea transcript and agree with the trial court that the motion, files and records of the criminal case conclusively show appellant is not entitled to relief. No evidentiary hearing was called for because appellant must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea proceedings. Smith v. State, 513 S.W.2d 407 (Mo.banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974). Here, appellant failed to plead facts in support of his “grounds” and the guilty plea transcript refutes the charges directed, against his attorney.

The judgment is affirmed.

All concur.


text:
    AMERICAN LEASE PLANS, INC., a corporation, Respondent, v. Riley CARDIN, d/b/a Commercial Contractors, Appellant.
    No. 37014.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 4, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Albert C. Lowes and David G. Beeson, Buerkle, Buerkle & Lowes, Jackson, for appellant.
    William H. Frye, Vogel & Frye, Cape Girardeau, for respondent.
   ALDEN A. STOCKARD, Special Judge.

On April 5, 1972, Riley Cardin, d/b/a Commercial Contractors, entered into an “Aircraft Lease” arrangement with American Lease Plans, Inc. of Charlotte, North Carolina. On the face of the instrument it was stated that the “Orginal cost of Aircraft, including all fees and taxes” was $14,250, that the “Amortization Period” was 60 months, and that the Monthly Rental Rate “For first month through 60 months [was] $21.25 per thousand dollars and fraction thereof of original cost,” and “For 61st month through 72nd month $.833 per thousand dollars and fraction thereof of original cost.” Title of the aircraft was to remain in Lessor.

Lessee made no monthly payment to Lessor. In June of 1972 an engine on the aircraft “went out,” and Lessee stored the aircraft at Cape Girardeau. There was some conversation between Lessee and representatives of Lessor concerning the condition of the aircraft and who should pay for the repairs, but Lessor repossessed the aircraft and on November 16,1972, it was sold to National Tank Maintenance Corporation for $10,500.

Lessor brought suit against the Lessee in two counts. By Count I it sought to recover the rentals accrued up to the time it repossessed the aircraft. By Count II it sought to recover the difference between the total rentals that were to have been paid and the amount received for the aircraft when sold, together with attorney fees. Lessee filed a counterclaim in two counts. By Count I he sought damages for fraud and misrepresentation as to the condition of the aircraft, and by Count II he sought damages for the wrongful repossession and sale of the aircraft. A jury was waived and the trial court entered judgment in favor of Lessor on each count of the petition and against Lessee on each count of the counterclaim. Lessee had appealed.

It is admitted by the parties that the “Aircraft Lease” was executed in North Carolina, and that the Uniform Commercial Code of that State is applicable. However, we note that the material provisions of the North Carolina law are identical to the corresponding provisions of the Missouri law.

The repossession and sale of the aircraft was accomplished according to the terms of the “lease,” but Lessee contends that the agreement was a “security agreement” within the meaning of § 25-9 — 105(h) (all statutory references are to General Statutes of North Carolina) and for that reason Lessor had to comply with the notice requirements of § 25-9-504(3), and with § 25-9-602, pertaining to contents of the notice, and with § 25-9-603, pertaining to the method of giving notice. The basis for this contention at trial and on this appeal is that in addition to the written agreement, there was an oral agreement whereby Lessee was granted the right to purchase the aircraft at the end of the 60 month period for a nominal sum. He assigns error in the refusal of the court to consider evidence of the oral agreement and to rule that the lease constituted a security agreement. We note that in § 25-1-201(37) it is provided that “whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” Therefore, assuming there was an oral agreement whereby Lessee had the right to purchase, it would be a factual question in this case whether the price was nominal.

We are of the opinion that the written provisions of the lease established a security agreement within the meaning of the North Carolina Uniform Commercial Code, and that it is not necessary to determine whether the evidence of an oral agreement was admissible.

A security agreement is defined as “an agreement which creates or provides for a security interest.” § 25-9-105(h). A security interest is stated to mean “an interest in personal property * * * which secures payment or performance of an obligation.” § 25-1-201(37). In § 25-9-202 it is stated that the provisions of the Code “with regards to rights, obligations and remedies” applies whether “title to collateral is in the secured party or in the debtor,” and the term “collateral” is defined as “property subject to a security interest.” § 25-9-105(c). Finally, the Code applies to “security interests created by * * * lease,” § 25-9-102(2), when intended by the parties, and “Whether a lease is intended as security is to be determined by the facts of each case.” § 25-1-201(37).

In this case the lease is stated to be for a term of 60 months and a definite sum each month is to be paid as rental. It is then provided in par. 15 that “If Lessee fails to pay when due any rent or other amount required herein to be paid to Lessor by Lessee * * * Lessor shall have the right * * * to exercise any one or more of the following remedies: * * * (b) to take possession of the aircraft * * * [and] (c) to sell the aircraft at public or private sale upon such terms as it deems advisable, and in the event of such sale the Lessor shall * * * be entitled to retain as liquidated damages and not as penalty the net proceeds of any such sale and to recover from Lessee all additional amounts, determined pursuant to paragraph 11(b) * * *. Notwithstanding any such action Lessor may take, including taking possession of the aircraft, Lessee shall remain liable for the full performance of all its obligations hereunder, provided, however, that if Lessor terminates this lease as to the aircraft, Lessee shall not be liable for rent in respect of such aircraft accruing after the date of such termination.”

The language of the lease unquestionably created an interest in the aircraft to secure to Lessor the payment by Lessee of his obligation created by the lease to pay 60 monthly payments as “rent” for the aircraft, if the Lessor elected not to terminate the lease, and we accept the proposition that the parties, at least Lessor, who prepared the printed agreement, intended the clearly expressed meaning of the words used.

We conclude that what was labeled as an “Aircraft Lease” was not a true lease governed by the law of bailments, but was a security agreement within the meaning of the Uniform Commercial Code. Therefore, the repossession and sale of the aircraft was governed by the provisions of that Code.

Although the trial court concluded that the written agreement was a lease of equipment not intended by the parties to be a security agreement, and not subject to Art. 9 of the Uniform Commercial Code, pursuant to Rule 73.01(3)(c) it permitted the Lessee to present evidence of the alleged oral agreement, of the failure of Lessor to comply with the notice requirements of the Uniform Commercial Code, and of the damages resulting to him from the wrongful sale.

When disposition of the collateral is to be made by public or private sale “reasonable notification” of the time of the sale must be given by the secured party to the debtor, and “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” § 25-9-504(3). There was no actual notice to Lessee of the intended sale, but there is evidence to the effect that Lessor attempted to communicate with Lessee but could not locate him. Whether these efforts were reasonable under the circumstances is not discernable from the evidence. However, there is no evidence that the attempted communications would have supplied the information required by § 25-9-602. Also, there is no evidence as to what would have been “commercially reasonable” for the sale of an aircraft, or what is the custom or established practice in the industry. The result is that although this was a court tried case, the record is insufficient to resolve the essential issues for a final and complete disposition of the entire case.

By Count I of the petition Lessor sought the accrued rentals, and it was entitled to those rentals whether or not the agreement was a security agreement. Lessee does not challenge Lessor’s right to accrued rentals. Therefore, the judgment as to Count I of the petition is affirmed.

By Count II of the petition Lessor sought to recover the difference between the amount owed under the agreement and that obtained at the sale. The right to this recovery depends on whether there was substantial compliance with the Uniform Commercial Code. Therefore, the judgment as to this Count is reversed and the cause remanded.

Count I of Lessee’s counterclaim sought damages for fraud and misrepresentation. There is no evidence to support the claim, and there is no point on appeal pertaining to this issue. The Count is deemed to be abandoned, and the judgment as to this Count is affirmed.

By Count II of the counterclaim, damages were sought for the failure of the Lessor to comply with the repossession and sale requirements of the Uniform Commercial Code and it is dependent upon the disposition of Count II of the petition. Therefore, the judgment as to this Count is reversed and the cause remanded.

It is so ordered.

SMITH, P. J., and NORWIN D. HOUSER, Special Judge, concur.


text:
    SELIGA SHOE STORES, INC., a corporation, Plaintiff-Appellant, v. CITY OF MAPLEWOOD, a Municipal Corporation and Josef Hammes, Mayor, City of Maplewood, Defendants-Respondents.
    No. 38170.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 4, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.
    Application to Transfer Denied Dec. 19, 1977.

      Deeba, DeStefano, Sauter & Herd, James B. Herd, St. Louis, for plaintiff-appellant.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Isaac E. Young, Maple-wood, for defendants-respondents.
   McMILLIAN, Presiding Judge.

Plaintiff Seliga Shoe Stores, Inc., a corporation (Shoe Stores) appeals from a judgment of the circuit court of St. Louis County granting summary judgment in favor of defendants City of Maplewood (City) and its mayor, Josef Hammes, and dismissing Shoe Stores’ petition for actual and punitive damages. For the reasons discussed below, we affirm.

Shoe Stores’ petition alleges that the City committed a trespass by unlawfully entering 7323 Manchester, the premises at issue, in which Shoe Stores operated a retail shoe business. The premises were the subject of a recent condemnation proceeding by the City. The condemnation of the premises was the basis of the City’s defense. The City asserts that the alleged “trespass” was in reality the lawful execution of a writ of possession by the sheriff of St. Louis County, following the City’s deposit of the amount of the condemnation award into the court’s registry. Shoe Stores argues that it was not made a party to the condemnation proceeding or the suit in which the writ of possession was issued, that it possessed a “lawful interest” in the premises as lessee which remained unaffected by the condemnation proceedings and that the execution of the order of possession constituted a trespass causing Shoe Stores to suffer damages in relocation expenses and lost profits.

The City began condemnation proceedings on February 25, 1975. The City was acquiring certain properties, including the premises at issue, for the purpose of constructing a public parking garage. The condemnation petition named as party defendants John H. Seliga, president of Shoe Stores and Eleanor A. DiSimone, his sister, who were the only titleholders of record. The property was taken by eminent domain on June 17, 1975. The City filed a motion to add Shoe Stores as a party defendant but the court denied the motion. During the course of the hearing on this motion, the trial court found there was no lease of record.

On August 1, 1975, the City was granted an order of possession directing the sheriff to deliver possession of the premises to the City. Seliga and DiSimone filed a motion to modify the order of possession on the ground that Shoe Stores had not been made a party to the proceeding and its rights had not been adjudicated. After the court denied this motion to modify, Shoe Stores filed a petition for a writ of prohibition in this court, which was also denied. The sheriff’s execution of the order of possession on September 3,1975, is the incident at issue in this case.

Shoe Stores argues for reversal that the trial court erred in granting defendant’s motion for summary judgment because (1) defendants were not entitled to judgment as a matter of law and (2) the City’s affidavit raised two issues of material fact. On appeal we review the record on summary judgment in the light most favorable to the party against whom the judgment is rendered, in this case Shoe Stores, e. g., Waltz v. Cameron Mut. Ins. Co., 526 S.W.2d 340 (Mo.App.1975). Summary judgment is an extreme and drastic remedy, e. g., Weber v. Les Petite Academies, Inc., 490 S.W.2d 278 (Mo.App.1973) and should be granted only when the pleadings, depositions and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c), V.A.M.R.; e. g., Hurwitz v. Kohm, 516 S.W.2d 33 (Mo.App.1974); Adzick v. Chulick, 512 S.W.2d 194 (Mo.App. 1974). A “genuine issue of fact” exists for the purpose of avoiding summary judgment whenever there is the slightest doubt as to the facts. Pagan v. City of Kennett, 427 S.W.2d 251 (Mo.App.1968). Not every factual dispute however, will bar summary judgment; the dispute must involve a material fact; that is, one which has legal probative force as to a controlling issue. Ware v. St. Louis Car Co., 384 S.W.2d 287 (Mo.App.1965).

Furthermore, although the City as the moving party has the burden of proof to show by unassailable proof that there is no genuine issue of fact, Phegley v. Porter-DeWitt Constr. Co., 501 S.W.2d 859 (Mo. App.1973), once . . a motion for summary judgment is made and supported an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided . . . must set forth specific facts showing that there is a genuine issue for trial (and) [i]f he does not so respond, summary judgment, if appropriate, shall be entered against him.” Rule 74.04(e), V.A.M.R.; Bently v. Wilson Trailer Co., 504 S.W.2d 277 (Mo.App.1973). The facts alleged in support of the City’s motion for summary judgment must be deemed admitted and taken as true because Shoe Stores failed to file either a verified denial or a counter-affidavit. Sample’s Estate v. Travelers Indem. Co., 492 S.W.2d 829 (Mo. 1973) (counter-affidavit); Dietrich v. Pulitzer Publishing Co., 422 S.W.2d 330 (Mo.1968) (verified denial). The admission of the alleged facts, however, does not automatically warrant summary judgment. Sherman v. AAA Credit Svc Corp., 514 S.W.2d 642 (Mo.App.1974). Therefore, we shall examine the facts alleged by the City to present unassailable proof that the City was entitled to summary judgment as a matter of law. Wright v. Wrehe, 415 S.W.2d 781 (Mo.1967); E. O. Dorsch Elec. Co. v. Plaza Constr. Co., 413 S.W.2d 167 (Mo.1967).

The affidavit of the City’s attorney in support of the motion for summary judgment clearly set forth the history of the condemnation of the premises at issue and the status of Shoe Stores in relation to the proceeding. We believe that the trial court was correct in granting summary judgment in favor of the City. First, the question of whether Shoe Stores was erroneously excluded from the condemnation proceedings, has been determined three times. The trial court denied the motion of the City to add Shoe Stores as a party defendant and the motion of Seliga and DiSimone to modify the order of possession to include Shoe Stores. This court denied Shoe Stores’ petition for a writ of prohibition directing and prohibiting the trial judge and sheriff from executing the order of possession against Shoe Stores.

Second, Shoe Stores was neither a party in actual possession of the premises claiming title nor a party with title of record. Therefore, Shoe Stores was not a necessary party defendant to the condemnation proceedings. § 523.010(3), RSMo 1969; Rule 86.03, V.A.M.R.

Third, in general, if a tenant has a compensable interest in property to be taken in eminent domain, he is entitled to be made a party and to be notified and if this is not done, then he has a right to recover damages, if any. Millhouse v. Drainage Dist. No. 48, 304 S.W.2d 54, 57 fn. 2 (Mo.App.1957). The question is whether Shoe Stores as a lessee had a compensable property interest in the premises at the time the petition in condemnation was filed. Not every person who can properly be designated a lessee is entitled to damages upon the taking of his interest in condemnation. State ex rel. State Highway Comm’n v. Demarco, 445 S.W.2d 379, 383 (Mo.App. 1969). For example, the following leasehold interests have been held noncompensa-ble: mere possession, Millhouse v. Drainage Dist. No. 48, supra; tenancy at sufferance, id.; expectation of renewal of a lease, id.; tenancy at will without crops or improvements, id; holding over after the expiration of a lease, State ex rel. State Highway Comm’n v. Demarco, supra; and tenancy from month to month, Land Clearance for Redevelopment Authority v. Dunn, 416 S.W.2d 948 (Mo.1967).

In this case Shoe Stores’ petition alleged only that it was in “lawful possession as lessee” on the date of entry. We have no way of determining the exact nature of the leasehold interest claimed by Shoe Stores because of the limited nature of the petition. The bare allegation of “lawful possession” is an averment of a legal conclusion and is not a statement of issuable fact. State ex rel. Smith v. Sevier; 92 S.W.2d 102 (Mo.1936). In this case the motion for summary judgment is similar to a motion to dismiss and where the pleadings shown no genuine issue of material fact, summary judgment is proper, e. g., State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141 (Mo.App.1974).

Shoe Stores did not attempt to plead the lease according to its legal effect, recite the instrument at length in the pleadings or attach a copy of the lease to the pleadings as an exhibit. Rule 55.22, Y.A.M.R. During the hearing on the City’s motion to join Shoe Stores as a party defendant, the trial court found there was no lease of record. The record on appeal nowhere indicates that the lease was offered or introduced into evidence although Shoe Stores did file a copy of the lease. No facts are pleaded indicating the nature of the lease, the date of its execution or termination, or whether its terms included an option to renew or extend. Seliga, as president of Shoe Stores, refused to testify on deposition about Shoe Stores’ leasehold interest, payment of rent or receipt of rent payments himself as lessor.

Furthermore, as a general rule, where there are different interests in property taken by eminent domain, the entire condemnation award is determined as though the property belonged to one person and then apportioned among the different parties according to their respective rights, State ex rel. State Highway Comm’n v. Flick, 427 S.W.2d 469 (Mo.1968), or between landlord and lessee, Western Robidoux Printing & Lithography Co. v. State Highway Comm’n, 498 S.W.2d 745 (Mo.1973). As discussed above, there are commonly recognized leasehold interests which are not sufficient to support a claim for a share of the compensation awarded to the fee owner. State ex rel. State Highway Comm’n v. Demarco, supra. That there is no evidence presented that Shoe Stores received any part of the condemnation award is another indication that Shoe Stores did not have a compensable interest in the premises.

Fourth, title to the condemned property passed to the City at the time the condemnation award was paid into the court, e. g, State ex rel. City of St. Louis v. Oakley, 354 Mo. 124, 188 S.W.2d 820 (1945). In this case the City had deposited the condemnation award and therefore had title to the premises at the time of the alleged trespass. The City was entitled to possession of the condemned premises, if necessary by execution of a writ of possession. § 523.055, RSMo 1969.

Shoe Stores also argues that the City’s affidavit raised two issues of material fact: that the corporate structure of Shoe Stores was a sham and that Shoe Stores was not in lawful possession of the premises at the time of the entry but had abandoned them. We do not believe that the pleadings and the City’s affidavit raise any genuine issues of material fact. Shoe Stores did not file a denial or a counter-affidavit and so the allegations contained in the City’s affidavit are deemed to have been admitted, as discussed above. In addition the affidavit does not raise these points as issues of material fact. The affidavit states that John H. Seliga is president of and owns nearly all the shares of Shoe Stores and that he refused to testify on deposition as to the nature of Shoe Stores’ lease and rent payments. According to the affidavit, only “miscellaneous items of merchandise and trade fixtures” were abandoned. The premises themselves are not described as abandoned, only that before the execution of the writ of possession the premises had been vacated and equipment and merchandise removed. This cannot be said to allege that Shoe Stores abandoned the premises.

In conclusion, we find that the trial court did not err in granting summary judgment in favor of defendants because there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law.

The judgment is affirmed.

STEWART and REINHARD, JJ., concur.


author: CLEMENS, Presiding Judge.

text:
    Minnie E. T. GORE and Jennye Robinson, Appellants, v. R. Dean WOCHNER, M.D., Director, Department of Health and Hospitals for the City of St. Louis, et al., Defendants.
    No. 38754.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 4, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.

      John Belles, St. Louis, for appellants.
    John J. Fitzgibbon, St. Louis, for defendants.
   CLEMENS, Presiding Judge.

Appeal by two civil service employees from the circuit court’s dismissal of their petition for review, by which they challenged their dismissal as municipal employees.

The St. Louis Municipal School of Nursing discharged plaintiff-employees. They appealed to the City’s Civil Service Commission which held extensive hearings and affirmed the discharges on October 14, 1975. Transcript of the commission hearings and order was furnished promptly to counsel who then represented plaintiffs.

November 12, 1975 plaintiffs petitioned the circuit court for review of the order of dismissal. The circuit court dismissed plaintiffs’ petition for review on the ground of late filing of the transcript and they have appealed.

On appeal to this court plaintiffs raise an extraneous point: That the trial court erred in denying their motion for intervention “which raised new matters . not shown on the record.” This motion was filed in the circuit court on April 1, 1976 by attorney Bruce Nangle, until then a stranger to the record, alleging he had an employment contract with plaintiffs relating to alleged misconduct by individual defendants during the time plaintiffs’ appeal was pending before the Civil Service Commission. If this vague motion was made on behalf of plaintiffs there was no need for intervention since they were already before the court as plaintiffs. If the motion was made on behalf of Mr. Nangle individually, there is strong doubt as to his standing. We need not resolve this.

As a general rule judicial review of administrative decisions is limited to matters that arose before the administrative agency and “deals only with questions of law that appear on the face of the record,” thus precluding consideration of evidence other than that before the agency. State ex rel. Weinhardt v. Ladue Professional Building, Inc., 395 S.W.2d 316[6-9] (Mo. App.1965).

To have the circuit court review the Nangle motion, plaintiffs rely on a statutory exception to the face-of-the-record rule. They cite § 536.140(4), RSMo. 1969, declaring (with our emphasis): “The Court may in any case hear and consider evidence of alleged irregularities in procedure or of unfairness by the agency, not shown in the record.” The word “may” indicates hearing further evidence in the circuit court is discretionary, and that evidence is limited to “irregularities in procedure.” It does not warrant a hearing de novo. State v. Randall, 275 S.W.2d 758[3, 4] (Mo.App.1955). We find no error in the circuit court’s denial of plaintiffs’ point on intervention.

We move to plaintiffs’ principal point: That the circuit court erroneously denied their petition for review because of the untimeliness of filing the transcript of the administrative proceedings.

By Section 536.130, RSMo. 1969, plaintiffs’ right to judicial review required them to file a transcript of the commission’s proceedings by December 12,1975, i. e., “within thirty days after the filing of the petition for review or within such further time as the court may allow.” Plaintiffs, without leave of court, lodged the transcript with the circuit court on May 19,1976, that being 158 days late. The circuit court ruled: “Time for filing the same pursuant to law having elapsed, the Court will not cause the same to be filed without motion and notice to all parties together with a hearing to determine whether or not the failure to file the same was the result of excusable neglect. Sup.Ct. Rule 4401(b)(2).” Defendants immediately moved to dismiss plaintiffs’ petition for review on the ground they had failed to timely file the transcript. Plaintiffs countered this — 102 days later— by moving to permit late filing of the transcript. Plaintiffs did not present their motion for late filing until October 8, 1976, which was 301 days after the transcript was due. In their belated motion plaintiffs contended they had changed counsel and their present counsel had not obtained the transcript until “March of 1976.” They did not file it in the circuit court however until May 19, 1976. Plaintiffs’ conduct was permeated with inexcusable delays.

The circuit court considered the parties’ motions, relying on State ex rel. Euge v. City of St. Louis, 472 S.W.2d 666 (Mo. App.1971) upholding dismissal of a petition for review for failure to file a transcript four months after it was due. Considering defendant’s burden to timely file the transcript (In re Village of Lone Jack, Mo., 419 S.W.2d 87[2] (Mo.1967)), we hold the trial court did not abuse its discretion in denying plaintiffs’ motion for late filing and dismissing plaintiffs’ petition for review.

Judgment affirmed.

DOWD and SMITH, JJ., concur.