author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Lovell POWELL, Appellant.
    No. 39659.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.
    Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was charged and convicted in separate counts of molesting a minor girl and sodomy. His appeal alleges: (1) that the trial court erred in submitting the molestation and sodomy charges in separate counts as being in violation of his right against double jeopardy; (2) that there was insufficient evidence to support the convictions. We affirm.

The evidence shows that the nine year old victim was walking down a St. Louis alley toward her home after having spent the night at her aunt’s house. It was about 7:00 a. m. when the defendant accosted the victim in the alley. He grabbed her and carried her screaming and crying into a vacant garage. The defendant pulled off all her clothes, forced her to lie down on her coat, unzipped his trousers, lay on top of the naked victim and placed his exposed penis between her legs. Unsated in his lust, the defendant then forced his penis into the victim’s mouth. The victim’s screams aroused the neighbors with one valiant lady starting her auto and honking the horn causing the defendant to flee from the garage tugging on his trousers. The victim positively identified the defendant as her assailant, and he was also identified by a neighbor who saw him carrying the terrified victim into the garage.

The defendant first argues that his constitutional protection against double jeopardy has been unlawfully pierced and shredded by the charge and conviction of the two separate crimes of child molestation and sodomy. He takes the position that he has been convicted of two crimes on the same facts. But defendant’s ground of defense in this regard is too shaky to support his double jeopardy theory. The convictions were based on two separate crimes, and actually two separate sets of facts supported the conviction on each count. The fact that there was some overlapping of evidence to support the conviction for each crime does not mean that the offenses overlapped to constitute a double jeopardy violation. State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), responds to defendant’s contention regarding double jeopardy and rejects it. In Treadway it was held that Missouri follows the separate or several offense rule of double jeopardy rather than the same transaction rule. Multiple convictions are permissible if the defendant has in fact and law committed separate crimes. The focus is on the identity of the offense and not the defendant’s act. State v. Treadway, supra (first degree robbery and armed criminal action); State v. Johnson, 549 S.W.2d 627 (Mo.App.1977), (sodomy and kidnapping); State v. Carter, 535 S.W.2d 537 (Mo.App.1976), (operation of a motor vehicle while intoxicated and careless and imprudent driving for failure to yield the right of way). A person may by one act or multiple acts which are part of the same transaction violate more than one statute or commit more than one offense. Whether the offenses charged are the same depends on whether each offense necessitates proof of an essential fact or element not required by the other. State v. Chambers, 524 S.W.2d 826 (Mo. banc 1975), (stealing and felony murder); see State v. Healey, 562 S.W.2d 118 (Mo.App.1978); State v. Tet-tamble, 561 S.W.2d 414 (Mo.App.1977), (burglary with stealing and burglary); State v. Dodson, 556 S.W.2d 938 (Mo.App.1977), (kidnapping and murder); State v. Campbell, 551 S.W.2d 940 (Mo.App.1977), (traffic violations and assault); State v. Johnson, supra; State v. Brown, 547 S.W.2d 217 (Mo. App.1977), (two counts of leaving the scene of an accident); State v. Carter, supra.

Here, the jury was instructed to find defendant guilty of molestation of a minor if they found that he had taken lewd and indecent liberties with the nine year old girl by “laying on top of her and placing his sexual organ between her legs and buttocks.” The jury was instructed to find defendant guilty of sodomy if they found that he had “inserted his sexual organ into the mouth” of the complaining witness. Clearly, the improper touching charged by the molestation count and the penetration of the mouth of the pathic charged by the sodomy count constituted independent crimes. The two offenses are not the same in law — hence, no double jeopardy. State v. Treadway, supra.

Defendant’s second point is that there was insufficient convincing and corroborated evidence to support the convictions. He points to certain minor inconsistencies in the victim’s testimony, such as the precise direction she was carried in the alley when she was grabbed by the defendant prior to his libidinous assault. He relies on State v. Bursley, 548 S.W.2d 586 (Mo.App. 1976), which holds that contradictory and inconsistent testimony in a sodomy prosecution requires corroboration. However, we have carefully reviewed the transcript and find that the complaining witness’ testimony was sufficiently definite, convincing and consistent to support the defendant’s conviction even without corroboration. State v. Counts, 572 S.W.2d 885 (Mo.App.1978). Furthermore, a substantial portion of her testimony was corroborated by witnesses— one who positively identified the defendant as the person who grabbed the panic stricken victim and carried her into the garage and another witness who saw a man dressed in clothing described by both the victim and the other witness as being worn by the defendant when he ran from the garage into the alley followed by the crying victim. The record amply supports both convictions.

Judgment affirmed.

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


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Gary HOLLAND, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40444.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Kohn, Shands, Elbert, Gianoulakis & Gil-jum, Thomas J. Frawley, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Majorie Haines, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Edward J. Rogers, St. Louis, for respondent.
   CRIST, Judge.

Rule 27.26 motion. Movant seeks to vacate a jury conviction of rape and resulting four-year sentence. He appeals from a denial of his motion after an evidentiary hearing. We affirm.

He complains: He was denied effective assistance of counsel. His lawyer failed to conduct an independent factual investigation to corroborate his defense of lack of identification. He was prejudiced because he was denied witnesses who knew that he had a tattoo on his arm prior to the rape for which he was convicted. And the State had the burden to prove absence of prejudice. We disagree.

Appellant review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). A finding is “clearly erroneous” if, after reviewing all the evidence, the court is left with the definite and firm conviction that a mistake has been committed. Due regard must be given to the trial judge’s opportunity to hear the witnesses and to defer to his determination of credibility unless it clearly and convincingly appears that he has abused his discretion. Bennett v. State, 549 S.W.2d 585, 586 (Mo.App.1977). The ultimate test in determining the adequacy of legal representation is whether the efforts and conduct of counsel so prejudiced movant that he was denied a fair trial. Grant v. State, 561 S.W.2d 739, 741 (Mo.App.1978).

The controversy centers on the question of a tattoo on the left arm of movant. The rape occurred on April 2, 1973. The victim did not remember seeing a tattoo on her attacker’s bare, left arm on the day of the rape, nor at the line-up when she identified movant as her assailant. Two other witnesses, who saw movant and the victim just prior to the rape, also identified movant at the line-up.

Three arresting officers did not notice the tattoo at the time of the arrest or at the line-up. A juvenile officer saw movant on April 11, 1973 and on another occasion one or two days thereafter. The first time he observed markings on movant’s arm that appeared to be written in ink. He indicated a difference in the tattoo on the second occasion, with fresh scratchings and dried blood being noticeable after April 11, 1973.

Movant had one witness at his rape trial testify that he had a tattoo on April 12, 1973. The State then put on three rebuttal witnesses who testified that they did not notice a tattoo on April 11, 1973.

In closing argument, the State commented about the lack of evidence in mov-ant’s case showing that he had a tattoo on April 2, 1973, the day of the rape.

The question of identification was crucial not only to the defense but to the prosecution’s case. Imbedded in the identification issue was the existence of a tattoo at the time of the rape.

Defendant was confined at the Missouri State Training School at Booneville just prior to the rape. He testified at the hearing that he gave his lawyer the names of three witnesses who would verify that he had a tattoo at Booneville prior to the time of the rape. One such witness did so testify at the Rule 27.26 hearing. None of these witnesses had testified at the rape trial.

Movant’s trial lawyer told a different story. He said that movant had originally told him the tattoo was self-inflicted. Later, movant told him there was a team leader at Booneville who might be able to testify for him. The lawyer made a telephone call to Booneville but was unable to obtain any information.

There were two rape trials, the first having resulted in a hung jury. The defense strategy was to use a doctor and lawyer to establish the existence of the tattoo rather than the movant’s comrades at Booneville. The doctor’s death prevented his testifying at the second trial, but he again called the public defender who had been assigned to the Juvenile Court who testified that mov-ant had a tattoo on his arm on April 12, 1973.

Movant’s records at Booneville did not reveal that he had a tattoo on his left arm. The court found: Movant did not give his attorney the names of the three witnesses. A call to Booneville would not have disclosed their names from his file or that they had information relevant to the tattoo. It thus concluded that he did not sustain his burden of proving ineffective assistance of counsel.

Movant bears a heavy burden to overcome a presumption of competency and counsel will not be held incompetent by reason of what, in retrospect, appears to be an error of judgment. Hall v. State, 496 S.W.2d 300 (Mo.App.1973). Counsel’s efforts on movant’s behalf -did not result in a substantial deprivation of movant’s right to a fair trial. Haynes v. State, 534 S.W.2d 552, 554 (Mo.App.1976).

Using hindsight, it could well be argued that movant’s counsel might have done more to ascertain whether the tattoo was present while movant was at Booneville. However, absent the names of people who might provide such information, even a trip to Booneville might not have revealed the information. The file of movant at Boone-ville was silent as to the existence of the tattoo. The medical examiner did not reveal it at the time of his admittance at Booneville, nor did the file show it on his discharge. Concerning the efforts made by movant’s counsel with respect to pre-trial proceedings and trial tactics, coupled with movant’s original story that the tattoo was self-inflicted, we cannot say that he was denied effective assistance of counsel under our standard of review.

The judgment is affirmed.

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


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Luke BURNS, Appellant.
    No. 39857.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 17, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Stuart A. Cofman, St. Louis, at trial; Robert C. Babione, Public Defender, Charles V. Mostov, Asst. Public Defender, St. Louis, on appeal, for appellant.
    Paul Robert Otto, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, John D. Ashcroft, Atty. Gen., George A. Peach, Circuit Atty., Maureen Dickman, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant Luke Burns was charged by information with robbery in the first degree by means of a dangerous and deadly weapon and armed criminal action. A jury convicted defendant to both charges. Under the Second Offender Statute, the trial court sentenced defendant to fifteen years on the robbery conviction and three years on the armed criminal action conviction, the sentences to run consecutively. Pursuant to a recent Missouri Supreme Court decision, the trial court subsequently set aside the sentences, but upon resentencing, reimposed the same sentences. Defendant appeals.

The evidence adduced at trial reveals the following. On February 15, 1977, Larry Smith was working as an attendant at a service station at 3620 South Kingshigh-way. At approximately 5:30 that evening, while waiting on a car, Smith noticed a white Dodge with a black vinyl top pull in next to the service station office. A man and a woman alighted from the car and entered the office. When Smith went to the office to serve them, the gentleman asked Smith several questions about various products the station was selling. After answering these queries, Smith then stepped away to deposit some receipts in a cash box, at which time the man stepped over and pressed a gun into the attendant’s ribs. The man then forced Smith into the bathroom, told him to lie on the floor, and demanded money. Smith complied, and after tying up Smith, the assailant departed. Smith testified that he had several opportunities to see the man’s fact during the entire encounter.

After working himself free, Smith hurried from the restroom to find a waiting customer, who had had the foresight to commit to memory the license number of the white Dodge as it left the station. A subsequent police check of the license number showed Luke Burns to be its registered owner.

On February 17, 1977, the police showed Larry Smith 5 pairs of photographs of possible suspects. Smith picked the photograph of defendant as being the photograph of the man who had robbed him. That evening, Smith also picked defendant out of a line-up conducted at the police station. Defendant was the only individual in the line-up whose photos had been among those shown to Smith earlier in the day. Police had arrested defendant that day as he drove a car carrying the license number reported to the police by the resourceful customer. At trial, defendant offered an alibi defense.

Other facts will be given as necessary in the course of the opinion.

As his first point of error, defendant asserts that the trial court erred in passing before the jury the set of photographs from which Larry Smith had selected defendant’s picture, and in allowing the term “mug shots” to be used in reference to these pictures. The activity out of which this contention arises occurred during the testimony of Larry Smith. The defendant objected to the pictures being shown to the jury because the photographs contained booking numbers, arguably representing evidence of another crime. The court permitted the photographs to be shown to the jury only after the booking numbers on all pictures were covered. The references to the pictures as “mug shots” came from Smith, who twice stated on direct examination that the police showed him “some mug shots.” Defendant objected only after Smith’s second use of that phrase. At no time did the State denominate the photographs as “mug shots.”

As to the court’s allowing the photographs to be passed before the jury, we find no error. The defendant was challenging the identification made by the victim and was presenting an alibi defense. The objectionable portions were blocked out before the photographs were shown to the jury. Confronted with similar facts, the Supreme Court in State v. Crossman, 464 S.W.2d 36 (Mo. 1971) ruled that the photographs were admissible. In so holding the court stated that “the introduction of the photographs helped the jury to determine the accuracy or inaccuracy of the identification made by the witness.” 464 S.W.2d at 41. See also State v. Futrell, 565 S.W.2d 465, 467 (Mo. App.1978), in which this court relied on Crossman in upholding a similar presentation of “mug shots” to the jury. The court did not commit prejudicial error in allowing the jury to view these pictures.

We also reject defendant’s contention that the court erred in allowing Larry Smith to twice use the term “mug shots” while referring to the police photographs shown him. We first note that defendant failed to object when Smith first used the term, and then failed to raise this issue in his motion for a new trial. Therefore, this narrow point may only be considered under the plain error articulated in Rule 27.20(c). State v. Hamell, 561 S.W.2d 357, 361 (Mo. App.1977). Under the rule, the court may consider plain errors not effectively preserved for review, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom. Without condoning the use of the term “mug shots,” we do not believe the plain error rule applicable here. Considering the positive and repeated identification of defendant by the victim, the recording by another witness of the license plate found to be registered in defendant’s name, and defendant’s arrest while driving the vehicle carrying that plate, it becomes readily apparent that no injustice or miscarriage of justice will result from our refusal to invoke the rule in this circumstance. State v. Ray, 554 S.W.2d 596, 598 (Mo.App.1977). Moreover, we are not persuaded that the use of the term “mug shots,” by the victim only, necessarily indicates the commission of separate crimes, particularly here when used by Smith only in the context of identification and not in reference to another crime. See State v. Rutledge, 524 S.W.2d 449, 458 (Mo.App. 1975).

Defendant next urges that the court erred in overruling his motion to suppress identification testimony based on a line-up. Also in this vein, defendant further asserts that Larry Smith’s in-court identification was tainted because at trial the state presented to him the photographs shown him on February 17.

We will deal first with defendant’s second point. We recite the well-established principles that the propriety of identification procedures is to be determined from the totality of the circumstances. The validity of an allegedly tainted in-court identification is to be resolved by considering the presence of an independent basis for the identification apart from the challenged pre-trial identification procedures, the absence of any suggestive influence by others, and positive courtroom identification. State v. Boothe, 485 S.W.2d 11, 13 (Mo. banc 1972); State v. Rutledge, 524 S.W.2d at 456. Despite Smith’s viewing of the photographs before his in-court identification, this identification testimony is unassailable. He testified that he had ample opportunity to view defendant during the robbery and further stated at trial, after his positive in-court identification, that “I was scared enough that I will never, ever, forget that face.” The in-court identification was untainted and admissible.

As to the pre-trial identification procedures, there is nothing in the record to suggest any police action which could have made either the photographic identification or the line-up suggestive. As a matter of fact, the photographs of the line-up demonstrates many similar characteristics among the participants. State v. Boothe, 485 S.W.2d at 13. Defendant bases his challenge of the line-up on the fact that defendant was the only one in the line-up whose picture had been among those shown previously to Larry Smith. The only case cited by defendant in support of this theory, Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), is not controlling of these facts. In that case, Poster, who was six feet, was placed in a line-up with only two other men who were approximately five feet, five or six inches tall. The eyewitness was unsure, and then requested a chance to talk with Foster, which request was granted. Still he was unsure. A week later, the eyewitness viewed another lineup, Foster being the only person who had been a part of the previous line-up. The Supreme Court held that this procedure “so undermined the reliability of the eyewitness identification as to violate due process.” 394 U.S. at 443, 89 S.Ct. at 1129.

The circumstances here are inapposite. Smith positively identified defendant’s picture when shown the police photographs. At the line-up Smith also positively identified defendant. Although defendant was the only line-up participant whose picture had been shown to Smith, at the line-up other participants shared physical characteristics with defendant.

Looking broadly at the totality of the circumstances, this is not a case of an identification produced by improper suggestion or influence. Considering Smith’s opportunity to view defendant during the robbery, a clear basis existed to support the line-up identification, apart from the previous photographic identification. This procedure was not impermissibly suggestive. State v. McIntosh, 546 S.W.2d 756, 758 (Mo.App. 1977). See also State v. Reeder, 436 S.W.2d 629, 631 (Mo.1969). Furthermore, “Initial identification by photograph followed by lineup identification is not a per se violation of a defendant’s constitutional rights, . and certainly will not require suppression of eyewitness identification where grounds independent of the photograph are shown.” State v. Conley, 541 S.W.2d 4, 6 (Mo.App. 1976). We find no impropriety in the procedures followed here.

Defendant’s final contention centers on an alleged reference at trial to defendant’s criminal record and the action of the court in regard to that reference. While testifying about the course of his investigation of the robbery, Detective Ronald Dodson of the St. Louis Police Department stated, “I made a record check through our files . and ascertained Luke Burns did have a prior record with a photo on file.” Defendant objected to this statement and requested a mistrial. Defendant then withdrew his request for a mistrial, but requested that the court instruct the witness not to testify about any criminal record defendant may have had. Defendant then stated that he was withdrawing his request for a mistrial. In the presence of the jury, the court then instructed the witness, “Detective Dodson, you will not give any testimony as to any prior records available to you regarding this defendant.” Defendant then objected to this statement by the trial court, which then sustained the objection to its own instruction. Upon defendant’s request the court again sustained defendant’s objection to Dodson’s testimony and ordered that anything the court had said “instructing the witness will be disregarded by the jury.” The court again asked if defendant was withdrawing his request for a mistrial, to which defendant replied in the affirmative. Defendant now complains that the trial court erred in failing to grant a mistrial on the basis of Detective Dodson’s testimony and the trial court’s subsequent statement. We cannot agree.

Defendant’s contention that the court should have granted a mistrial is emasculated by defendant’s withdrawal of his request for a mistrial and his subsequent reaffirmation that he was not requesting a mistrial. The defendant received all the relief he asked for, and cannot now complain of error in not receiving more. State v. Wendell, 542 S.W.2d 339, 342 (Mo.App. 1976). Furthermore, we note that the declaration of a mistrial is a drastic remedy, the granting of which rests in the sound discretion of the trial court. On review our function is to determine whether the failure to grant a mistrial reflected an abuse of that discretion. State v. Csolak, 571 S.W.2d 118, 125 (Mo.App.1978). Without validating either Detective Dodson’s remark or the court’s instruction, we find no error in the trial court’s refusal to grant the drastic remedy that the defendant stated he was not seeking. State v. Henderson, 547 S.W.2d 141, 143 (Mo.App.1976); State v. Wendell, 542 S.W.2d at 342.

Judgment affirmed.

GUNN and CRIST, JJ., concur.


author: BILLINGS, Judge.

text:
    John Dale HENSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11004.
    Missouri Court of Appeals, Southern District, Division Three.
    April 23, 1979.
    Rehearing Denied May 10, 1979.
    W. Robert Cope, Summers, Cope & Walsh, Poplar Bluff, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Judge.

John Dale Henson, serving a 35-year prison term for second-degree murder, filed a postconviction motion under Rule 27.26, V.A.M.R., to vacate his sentence. Following appointment of counsel, an evidentiary hearing was conducted. The trial court made detailed findings of fact and conclusions of law and denied the motion. We affirm.

Our review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j); Warren v. State, 482 S.W.2d 497 (Mo. banc 1972); Noble v. State, 552 S.W.2d 267 (Mo.App.1977). And, we accord due deference to the trial court’s opportunity to judge the credibility of witnesses at the evidentiary hearing. Nance v. State, 556 S.W.2d 193 (Mo.App.1977).

Movant’s direct appeal resulted in the affirmance of his conviction by this court in State v. Henson, 552 S.W.2d 378 (Mo.App.1977). Various grounds alleged in his motion to vacate were considered in ruling his direct appeal and cannot now be relitigated in this proceeding. Davis v. State, 482 S.W.2d 468 (Mo.1972); Wing v. State, 556 S.W.2d 226 (Mo.App.1977). Other grounds for relief claimed by movant fall into the category of alleged trial error not rising to constitutional proportions and cannot be considered. Coney v. State, 491 S.W.2d 501 (Mo.1973).

The primary ground alleged by mov-ant is the oft-asserted charge levelled against trial attorneys, namely, ineffective assistance of counsel. The thrust of the evidentiary hearing revolved around this charge. The trial judge, in his filed memorandum, carefully and laboriously made findings and conclusions adverse to mov-ant’s multitude of averments on this issue. The court had before it the trial transcript, in addition to the testimony of the witnesses called by each side. The court concluded movant failed to meet his heavy burden of proof that he was denied effective assistance of counsel. Stevens v. State, 560 S.W.2d 599 (Mo.App.1978).

We have reviewed the transcript of the evidentiary hearing which includes the trial transcript. We do not find the findings and conclusions of the able trial court to be clearly erroneous.

The judgment is affirmed.

FLANIGAN, C. J., and MAÜS and GREENE, JJ., concur.


author: TITUS, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant-Respondent, v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WIS., a corporation, Defendant-Respondent, Farmers Insurance Company, Inc., a corporation, Defendant-Respondent-Appellant, Sheryl Lynn Wilson, Debra Jean Wilson Carr (Now Bandy), Janice Ann Baker, Helen P. Baker, Glen L. Baker and Harold Wilson, Defendants-Respondents-Appellants, and Gregory Palmer Hayes, Defendant.
    Nos. 10599, 10596 and 10581.
    Missouri Court of Appeals, Southern District, Division One.
    April 30, 1979.
    Motions for Rehearings or Transfers Denied May 22, 1979.
    Applications to Transfer Denied June 19, 1979.

      Donald E. Bonacker, Jerry L. Reynolds, Bonacker & Reynolds, Springfield, for plaintiff-appellant-respondent.
    Malcolm L. Robertson, Ronald E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.
    Wallace N. Springer, Jr., Springfield, for defendant-respondent-appellant.
    A. L. Shortridge, Joplin, for defendants-respondents-appellants.
   TITUS, Judge.

On January 1, 1972, 17-year-old Gregory Hayes (Gregory), then residing in Joplin with his parents, was driving a 1965 Buick with parental consent when it collided with a car occupied by three sisters. The Buick was allegedly owned by Brown Enterprises, Inc. (Brown), the named insured in an automobile liability policy issued by Northwestern National Insurance Company of Milwaukee, Wisconsin (Northwestern). Gregory’s father, James Hayes, was the named insured in a policy issued by Allstate Insurance Company (Allstate) which listed a 1971 Buick as the insured vehicle. Farmers Insurance Company (Farmers) provided uninsured motorists coverage on the vehicle occupied by the injured sisters. As plaintiff, Allstate filed this declaratory judgment action to determine which liability insurer, if any, provided coverage for Gregory. After the Circuit Court of Jasper County found that Allstate alone had liability coverage, all parties, save Northwestern and Gregory, appealed.

The pertinent parts of Allstate’s and Northwestern’s policies are:

ALLSTATE (James Hayes named Insured)

“The following persons are insured under this Part 1. The named insured with respect to the owned or a non-owned automobile; ... 4. Any relative with respect to a non-owned private passenger automobile . . . not regularly furnished for use of such relative; . Definitions of words used under this Part 1. Persons Insured . (b) ‘named insured’ means the individual named . . . and his spouse if a resident of the same household; and (c) ‘relative’ means a relative of the named insured who is a resident of the same household. 2. Automobiles Covered . . -(e) ‘non-owned automobile’ means an automobile . . . not owned by the insured or any relative

NORTHWESTERN (Brown named Insured)

“II. PERSONS INSURED . . . (a) the named insured . (b) any partner or executive officer thereof, but with respect to a non-owned automobile only while such automobile is being used in the business of the named insured; (c) any other person while using an owned automobile . . . with the permission of the named insured, provided his actual operation . . . thereof is within the scope of such permission . . . . VI. ADDITIONAL DEFINITIONS . . . ‘non-owned automobile’ means an automobile which is neither an owned automobile nor a hired automobile; ‘owned automobile' means an automobile owned by the named insured . . . .”

The only record of title to the 1965 Buick possessed by the Missouri Department of Revenue showed that it had been sold new to a Centraba, Missouri, couple by Don Stein Buick, a new car dealer in Kansas City, Kansas. Nevertheless, the evidence disclosed the following occurred in 1969. The Centraba couple traded in the 1965 Buick for a new car and endorsed the Missouri title thereto “over to Don Stein.” Stein sold the 1965 Buick to a Joplin used car dealer who, on the same day, solc[ the automobile to a used car dealer in Diamond, Missouri, who, in turn, sold the vehicle to Brown. This latter sale by the Diamond dealer was probably made off the Joplin dealer’s lot. The Joplin dealer testified that when he sold cars to other dealers, the reassignment form on the title would be left blank or “open.” As the Diamond dealer’s records did not contain the serial number of the 1965 Buick, he opined he had not been given the title certificate to the vehicle and had not completed an assignment thereon to Brown. Among other things, Brown was in the used car business. Albeit Brown was to furnish its insurer, Northwestern, with a schedule of owned vehicles, no schedule furnished the insurer included the 1965 Buick. It was also shown that Brown, in respect to used automobiles it had for sale, would not “title” them in its name but “kept open titles” on such cars as the other used car dealers had done. Brown was declared bankrupt shortly after the accident in question. The trustee in bankruptcy never found any evidence that Brown had owned, had title to or possession of the 1965 Buick. To further confound the matter, the 1965 Buick bore a blank Missouri intrastate sticker which, among others, had been sold on February 2, 1971, by the Missouri Department of Revenue to a Joplin auto auction company and a set of 1971 Missouri automobile license plates issued for a 1963 Ford registered in the names of one Tripoli and his niece. What connection the auto auction company had with the 1965 Buick or how Brown came into possession of the license plates, went unexplained. It is also unknown who, other than Brown, purportedly had possession of or claimed title to the vehicle between 1969 and late 1971.

Three to eight weeks (no one was sure) before the January 1, 1972, accident, Brown’s president, while visiting with James Hayes (Gregory’s father), learned that Hayes’ wife was mostly afoot because her uninsured Dodge station wagon was inoperable. The president offered James Hayes the unfettered and free use of the 1965 Buick and did not restrict the operation of the vehicle to any particular member of the Hayes family. At that time the president was aware that Mr. and Mrs. Hayes had children but he did not know how many, if any, were of driving age.

Allstate’s Policy

With respect to a non-owned automobile under Allstate’s policy, it should be noted that the contract afforded coverage to the “named insured” (defined as “the individual named [James Hayes] and his spouse”) without qualification, whereas the coverage given a “relative” was restricted to “ ‘a private passenger automobile . . . not regularly furnished for use of such relative.’ ” In neither situation was the permission of the owner of the 1965 Buick required. Sperling v. Great American Indemnity Company, 7 N.Y.2d 442, 199 N.Y.S.2d 465, 468, 166 N.E.2d 482, 484 (1960); 7 Am. Jur.2d, Automobile Insurance, § 107, p. 418. Therefore, the evidence and arguments of counsel anent scope of use of the 1965 Buick granted James Hayes by Brown’s president is of no moment here. Nevertheless, the exclusion of coverage for a relative driving a non-owned automobile is, by its terms, “concerned with regularity of use, not permissiveness of use.” Sperling, supra, 199 N.Y.S.2d at 469, 166 N.E.2d at 485.

• Our overall view of the evidence regarding the 1965 Buick is that it, for all intents and purposes upon being delivered into the keeping of James Hayes, became and was regularly used as a second family car by all family members. James Hayes primarily used the 1971 Buick in his daily business trade and travels which consumed the majority of time it was driven and employed. When given to such use, Mrs. Hayes and Gregory were relegated to operating the older car. But when both vehicles were infrequently available to all, the American affection of vehicular vanity prompted preference for driving the newer Buick. At the Hayes residence was a two-ear garage, one-half of which was constantly occupied by the inoperable Dodge station wagon. Consequently, whichever Buick was parked in the usable part of the garage ordinarily dictated the driving of the other more accessible vehicle which would be parked in the open unblocked portion of the driveway. Of course, as in normal family situations, 17-year-old Gregory’s use of either automobile was subject to preemption through parental prerogative and leave granted by his father or mother.

As to Gregory’s use of the 1965 Buick, the evidence was that he used the car “on whatever occasion arose” but “never consistent.” He drove it to perform errands, on “dates” and two or three times as transportation to and from school. Errand trips could occur one to five times daily, although there were days when no such trips were required. The “dating” was about twice a week and the 1965 Buick would be driven if the 1971 Buick was parentally preempted. Gregory “couldn’t recall ever being refused permission to drive the ’65 whenever [he] asked,” although his father indefinitely opined there may have been times when his son was “grounded” from using either car for disciplinary reasons. On the occasion of the accident, Gregory was driving the 1965 Buick “with no restrictions” while his parents were employing the newer vehicle in making their rounds of New Year’s Eve festivities.

As indicated previously, the trial court concluded Gregory was included as relative-insured under Allstate’s policy because, so it figured, the 1965 Buick was not regularly furnished for his use. We disagree.

While Allstate’s policy extended limited coverage to relatives when driving non-owned automobiles, the primary purpose of the contract was to afford insurance coverage to those operating the vehicle designated in the policy, i. e., the 1971 Buick. The patent purpose of the non-owned automobile coverage as it related to a “relative”, was to blanket only occasional or incidental driving of such private passenger automobiles without the payment of additional premiums but to exclude coverage on non-owned regularly furnished vehicles which would materially increase the risk undertaken by the insurer sans a corresponding augmentation in the premium. Annot: Automobile Policy — Driving Other Car, 86 A.L.R.2d 937, 940.

In deciding whether a non-owned automobile has been “regularly furnished for use,” our Supreme Court has said “that we should not limit ourselves either to a test of merely determining motive or purpose or one of simply measuring length and extent of availability of use. Rather, each case should be decided on its own facts, and the court should take into consideration the type and length of use, the purpose for which the non-owned automobile was furnished, and any other pertinent facts, including a determination of whether the use and purpose was in harmony with or viola-tive of the objective of the ‘non-owned automobile’ clause.” State Farm Mut. Auto. Ins. Co. v. Western Cas. & Sur. Co., 477 S.W.2d 421, 424[2] (Mo. banc 1972).

Applying here the criteria to be considered as dictated by State Farm, supra, the record illustrates that Gregory drove the 1965 Buick “on whatever occasion arose” and for virtually every kind of use designed for a private passenger automobile entrusted to a teen-age driver supervised by parental control. In fact, it was while he was using it for personal pleasure on New Year’s Eve “with no restrictions” that the accident in question occurred. Gregory’s variable uses of the automobile, which generally occurred when the other car was also being operated, were spread over a period of several weeks and evidenced that Gregory’s employment of the 1965 Buick was not for limited purposes but for any type of use which he and his parents selected. Under the circumstances in this case it would be most difficult for us to conclude that the extension of coverage under Allstate’s policy to the 1965 Buick would comport with the objective of the non-owned automobile clause in the contract of insurance. Mr. Hayes, principally, had the 1971 Buick available for driving during all the time that Gregory concurrently used the older car which is violative of the basic idea that Allstate’s policy was to insure one car for one premium and to exclude the regular or habitual use of other automobiles.

Other pertinent facts to be considered are that the 1965 Buick was regularly garaged on the Hayes’ premises and readily and regularly available to Gregory for driving with parental consent. Retention of the car keys by Gregory’s mother and his need to ask for them in conjunction with obtaining permission to drive the car, does not distract from a finding of Gregory’s regular and frequent use of the 1965 Buick. Farmers Ins. Co., Inc. v. Morris, 541 S.W.2d 66, 68-69 (Mo.App.1976); Boedigheimer v. Taylor, 287 Minn. 323, 178 N.W.2d 610 (1970).

Our statement of facts, supra, does not substantially differ from the findings en-ounced by the trial court, and we agree that the meaning of Allstate’s policy, when considered with the question of whether such facts bring the matter within the extended coverage afforded, constitutes a question of law. However, we are not bound by and, as previously noted, do not defer to the court’s conclusion as to the legal effect of its findings of fact. State ex rel. Sisco v. Buford, 559 S.W.2d 747, 748 (Mo. banc 1978); Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In short, we are of the opinion that the court nisi erred in holding that Gregory, as a matter of law, was an insured under Allstate’s policy. Furthermore, with respect to Northwestern’s assertion that Allstate’s policy should afford Gregory coverage because its conduct amounted to waiver or estoppel, it suffices to observe once again that estoppel or waiver “may bar a defense to a right the insured once had, [but] such will not create a new coverage or rights not found in the contract.” Macalco, Inc. v. Gulf Ins. Co., 550 S.W.2d 883, 891[7] (Mo. App.1977) and cases there cited.

Northwestern’s Policy

Except in cases involving new motor vehicles, § 301.200, V.A.M.S., requires that a car dealer have in his possession “a separate certificate of ownership, either of such dealer’s immediate vendor, or of the dealer himself” in the form prescribed by the director of revenue. Reported cases illustrate the form specified by the director requires that when the dealer is a buyer, he must take an assignment of title directly to himself and may make a reassignment directly to his vendee without getting a new title certificate in his own name as is required in the case of sales between non-dealers. Also, as the statute attests, the director is authorized to require an acknowledgment as part of the assignment form, thereby making an unacknowledged assignment insufficient to vest legal title. Pearl v. Interstate Securities Co., 357 Mo. 160, 164-165, 206 S.W.2d 975, 978[9, 10] (banc 1947).

Opinions iterate that the provisions of § 301.210, V.A.M.S., govern the sale or transfer of used automobiles [Inland Discount Corp. v. St. Louis Auto Auction Barn, 303 S.W.2d 185, 187[1] (Mo.App.1957); Mallory Motor Company v. Overall, 279 S.W.2d 532, 535[6] (Mo.App.1955)] and consistently rule that absolute technical compliance with the statute is required, otherwise the purported sale or transfer is fraudulent and void. Case v. Universal Underwriters Ins. Co., 534 S.W.2d 635, 639 (Mo.App.1976). If there is a failure to strictly comply with the law, no title passes and the intended buyer acquires no ownership even though he be guilty of no intentional wrongdoing and acted in complete good faith. Horton v. State Farm Fire & Cas. Co., 550 S.W.2d 806, 809[2, 3] (Mo.App.1977).

The term “owner” is defined in § 301.010(21), V.A.M.S., as “any person, firm, corporation or association, who holds the legal title of a vehicle . . . (Emphasis supplied). Thus, in the case of a used motor vehicle, the fact of ownership is created by the delivery of a properly assigned certificate of title. Registration is one step beyond proper assignment of title and an individual may become the owner of a motor vehicle although he has not yet become registered as the owner. E. g., An owner may sell a car to a dealer who becomes its legal owner (provided the title is properly assigned to the dealer) even though, as far as registration is concerned, the vehicle is still registered in the name of the seller. §§ 301.200-1 and 301.210, V.A. M.S. Nonetheless, by the express terms of § 301.210, supra, no title passes to the purchaser of a used automobile in Missouri, be the purchaser an individual or a dealer, if the seller’s certificate of title is not properly endorsed and acknowledged and given to the intended purchaser at the time of the vehicle’s delivery or as soon thereafter so as to be considered a part of a contemporaneous or continuous transaction. Kahn v. Lockhart, 392 S.W.2d 30, 34[3] (Mo.App. 1965).

Applying the foregoing to the matter at hand, the facts attest that the only known certificate of ownership relating to the 1965 Buick was issued by the Missouri director of revenue to a Centralia couple after they purchased it new. The couple, so said the husband, endorsed the title over to a Kansas dealer in 1969 when a new model was bought. Whether the title was properly endorsed and acknowledged by the couple remains unknown. But even assuming so, it was reasonable for the court nisi, as trier of the facts, to conclude, as it did, that subsequent used car dealers (including Brown) who had the vehicle either did not possess a certificate of title thereto, or, if so, did not have one which had been properly assigned and acknowledged so as to vest any one of them with legal title in accordance with the mandates of § 301.210, supra. “[Ujnless the previously issued certificate of title is properly assigned and acknowledged by the seller and delivered to the buyer, the attempted sale of a used car passes no title even though accompanied by full payment and delivery of physical possession of the automobile to the purchaser. State Farm Mutual Automobile Insurance Co. v. MFA Mutual Insurance Co., 485 S.W.2d 397 (Mo. banc 1972).” National Indemnity Company v. Liberty Mutual Ins. Co., 513 S.W.2d 461, 464 (Mo.1974). Our inevitable conclusion is that Brown never had legal title to and never did own the 1965 Buick. It follows, therefore, that Gregory, at the time of the concerned accident was driving an automobile not owned by Brown and not insured by Northwestern.

Farmers’ Policy

As an appellant, Farmers asseverates the trial court erred in rendering its supplemental decree which declared that Farmers’ policy afforded uninsured motorists coverage to the injured sisters “because said decree was coram non judice in that the judgment was beyond the scope of, and unsupported by, the pleadings in the cause.” We shall see anon that this point relied on has an anomalous history.

Per Rule 81.14(b), V.A.M.R., the transcript commences with Allstate’s first amended petition and the responding pleadings of the other parties. However, from subsequent transcript entries, it appears the defendant children had originally filed crossclaims against Gregory and Farmers. At the children’s request, the court dismissed the crossclaims without prejudice. Assuming the crossclaims asserted claims against Farmers under its uninsured motorists coverage, the claims .were effectively withdrawn. Nevertheless in subparagraph (c) of Farmers’ responsive pleading to Allstate’s amended petition, it asked the court to declare that Gregory “is not an uninsured motorist under the terms of [Farmers’] coverage,” thereby keeping that issue a viable one in the case.

Following the original trial, as heretofore indicated, the circuit court entered judgment declaring Allstate liable and exonerating Northwestern. However, as that purported judgment made no mention of Farmers and did not undertake to adjudicate its affirmative assertions concerning uninsured motorists coverage, this court was required to dismiss the original appeals because the judgment failed to dispose of Farmers. Allstate Ins. Co. v. Northwestern Nat. Ins. Co. of Milwaukee, Wisc., 539 S.W.2d 118 (Mo.App.1976).

When the cause reverted to the attention of the trial court, curious things occurred. No efforts were immediately forthcoming to enter a final appealable judgment. Rather, Farmers dismissed subparagraph (c) of its prayer which affirmatively sought a declaration that Gregory was not an uninsured motorist with respect to its policy and moved for leave to amend its answer to effect deletion of subparagraph (c). Although the motion was sustained, the court nisi proceeded to hear testimony and receive discovery documents and exhibits anent the uninsured motorists issue. These latter proceedings happened over Farmers’ objections that there then remained no issue before the court relative to the construction of the uninsured motorists provisions of Farmers’ policy. Furthermore, after Farmers, by leave previously granted, did file its separate answer which made no mention of a declaration of its policy’s uninsured motorists coverage, the court supplemented its first decree by adjudging that Farmers provided such coverage.

Though we do not undertake to deal with the propriety vel non of all the proceedings permitted in the trial court following dismissal of the first appeal, it is not amiss to observe that no party, save Farmers and perhaps the injured sisters, petitioned the trial court to make a declaration regarding Farmers’ uninsured motorists coverage. If the sisters had, in fact, ever done so, their claims were effectively dismissed as live issues before the initial trial, and Farmers’ prayer for any such declaration was, by dismissal and filing of an amended answer by leave of court, deleted from its pleadings and prayers before the court undertook a determination of the issue despite Farmers’ objections. Points adjudicated and determined must be within the issues pleaded and submitted. If the court undertakes to determine questions that are outside such issues, because effectively withdrawn before submission or not pleaded, any attempted judgment relative thereto is void. Kemp v. Woods, 363 Mo. 427, 434, 251 S.W.2d 684, 687-688[3 and 5] (1952); Rains v. Moulder, 338 Mo. 275, 282, 90 S.W.2d 81, 84[2 and 3] (1936); Simpson v. American Automobile Insurance Company, 327 S.W.2d 519, 531—532[11, 12] (Mo.App.1959); Clark v. Clark, 300 S.W.2d 851, 852[2] (Mo. App.1957).

For the reasons stated, that part of the judgment in favor of Northwestern is affirmed and those portions of the judgment against Allstate and Farmers are reversed and the cause is remanded with directions to the trial court to enter judgment compatible with the views and holdings expressed in this opinion.

HOGAN, J., and CAMPBELL, MOORE and KENNEDY, Special Judges, concur.

FLANIGAN, P. J., recused.

GREENE, J., not participating because not a member of the court when cause was submitted.

      . Subsidiaries of Brown were also named insureds in Northwestern’s policy. However, for purposes here, all will be collectively referred to as “Brown.”

      . Sec. 301.210: “1. In the event of a sale or transfer of ownership of a motor vehicle . . . for which a certificate of ownership has been issued the holder of such certificate shall indorse on the same an assignment thereof, with warranty of title in form printed thereon, and prescribed by the director of revenue, . and deliver the same to the buyer at the time of the delivery to him of said motor vehicle . . . . 4. It shall be unlawful for any person to buy or sell in this state any motor vehicle registered under the laws of this state, unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle . registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.”


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Orlan Ray HELT, Defendant-Appellant.
    No. 39505.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 9, 1979.

      M. E. Williams, Public Defender, Hills-boro, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Carson W. Ellif, Asst. Attys. Gen., Jefferson City, Timothy J. Patterson, Pros. Atty., Jefferson County, Joe A. Johnson, Asst. Pros. Atty., Hillsboro, for plaintiff-respondent.
   KELLY, Judge.

Orlan Ray Helt, the appellant, was convicted in the Circuit Court of Jefferson County on a violation of §§ 560.045 and 560.110 RSMo.1969, burglary in the second degree and stealing in the commission thereof, and was sentenced in accordance with the jury verdict, to a term of three years on each charge to the custody of the Missouri Department of Corrections, said terms to be served concurrently. After his motion for new trial was filed, argued and overruled, appellant filed his notice of appeal. We affirm.

On appeal, three points are relied on for reversal of appellant’s conviction. Two of these are directed at the failure of the prosecution to reveal to the appellant or his counsel the testimony of two Jefferson County deputy sheriffs offered in rebuttal for the purpose of impeaching the sole alibi witness produced by the appellant at trial. The third point is that the trial court erred in admitting the identification testimony of Mr. Edward R. Dreiman for the reason that it was the product of a suggestive lineup which created a substantial likelihood of misidentification and was, therefore, a violation of appellant’s due process rights guaranteed by the 14th Amendment to the United States Constitution.

Appellant does not attack the sufficiency of the evidence to support the jury verdict. Therefore, the jury could have found from the evidence that Grover Cheatham left his house at approximately 9:00 a. m. on April 3, 1977, to go to church and did not return home until 11:00 or 11:15 a. m. During his absence, Mr. Edward R. Dreiman, while on his way to a Quick Shop in his automobile, had occasion to pass Mr. Cheatham’s home and as he did so he observed one Roger Camden walking in a field between the Dreiman and Cheatham houses where a turquoise ’68 or ’69 Ford Fairlane automobile was parked. The front grille of the automobile was missing. Mr. Dreiman fixed the time he made this observation as “just a few minutes past 10.” The automobile was parked perpendicular to the street and approximately 5 feet off the edge of the road. Mr. Camden was on the left side of the car and Mr. Dreiman observed another man on the left side of the car. Both men got into the car and Mr. Dreiman stopped and tálked to them. He got a good look at both men in the car and he identified appellant as the other man in the car with Mr. Camden. He knew Mr. Camden before but he did not know the appellant previously. Appellant was dressed in a yellow jacket, blue jeans and had on brown gloves. He was about six feet tall, weighed about 160 pounds, and was about eighteen years of age. Mr. Dreiman asked the men what they were doing there and they replied that they were just sitting there. Mr. Dreiman then went on to the store where he spent approximately ten minutes. As he was returning from the store to his home he observed the Ford Fairlane automobile he had previously seen in the field, parked in the driveway to the Cheatham home. Mr. Camden, who was outside the car, ducked behind it. Appellant was carrying “a stereo or something” to the car and put it in the trunk of the car. Mr. Dreiman had stopped his car and sat there observing the activities of Mr. Camden and the appellant for approximately one minute. He left the scene after he observed appellant place the stereo in the trunk of the car and went directly to his home where he called the Sheriff’s Department and reported what he had seen. He described the appellant as approximately six feet tall, 180 pounds, 18 years of age, and reddish hair, wearing a yellow jacket, brown gloves and blue jeans. He described appellant’s hair as being fairly short and told the Sheriff’s Department that he wore a mustache but had no beard. He did not, at that time, know appellant’s name and had not, to the best of his knowledge, ever seen him before.

Grover D. Cheatham testified in the state’s case that he resided at 2260 Forest Lane, Arnold, Missouri, on April 3, 1977, and departed from his residence between 9:00 and 9:10 a. m. to attend church; that he returned to his home that morning between 11:00 and 11:15 a. m. When he left home the doors to his residence were locked by him, personally. When he returned, the front door was open and one of the windows was broken out of it. He also observed some glass on the floor in the doorway and some inside the doorway and in the living room also. Sergeant Kluth, a deputy sheriff was at his home when Mr. Cheatham returned there from church. He and the deputy sheriff entered the house and went to the bedroom. Mr. Cheatham noticed that a .410 shotgun was missing from that room and they then went downstairs to the den where he observed that the TV and stereo with two speakers were missing. This was a Quasar TV with a 19 inch screen and the stereo was a Sears-Roebuck product. The next time he saw these items was the following Saturday at the Jefferson County Sheriff’s office.

Later that afternoon Mr. Dreiman was called to come to the Sheriff’s office where he viewed a lineup. Three men in this lineup wore mustaches; one had a mustache but no beard, and that one was the appellant. He also was the only one in the lineup with short hair. At trial he identified the appellant as the man he observed with Mr. Camden on the morning of April 3, 1977, placing the stereo in the trunk of Mr. Camden’s car.

Deputy Sheriff Barry R. Gregory also testified in the state’s case. He testified that he and another deputy sheriff, Mr. Forbes, were dispatched to the scene of the burglary and upon arriving there were met by Mr. Dreiman who made a statement to them about what he had observed, described Mr. Camden’s car, and described the man with Mr. Camden whom he had seen carrying a stereo out of Mr. Cheatham’s home. He then inspected the premises, observed the door to the residence was open and the window glass in the door was broken. Upon entering the building he found no one there but noticed some conditions which caused him to conclude that something had been removed from a counter in the family room. He put out a dispatch on the matter at about 10:45 a. m. At about 1:50 p. m. he went to the Smallwood residence where he observed Mr. Camden in his 1968 Ford Fair-lane, two-door automobile, which was turquoise in color and with a missing front grille. This car fit the description Mr. Drei-man had given him when he reported the burglary. Appellant was there and the deputy sheriff placed him under arrest. At approximately 2:07 p. m. the deputy sheriff was informed that the stolen property could be found in the “Case residence,” a vacant house. Sergeant Kluth told him that Roger Camden was the source of this information. The Case residence is located a few hundred yards from, and to the rear of, the Small-wood residence. The Smallwood residence is the dwelling of appellant’s mother, Doris Smallwood, the lone alibi witness for the appellant, with whom he resided at the time of his arrest. Deputy Sheriff Gregory recovered from the attic of the Case residence the Quasar television set with the same serial number as that which Mr. Cheatham had reported missing, the stereo turn table and 8 track, the two speakers, and the .410 shotgun.

The appellant and Mr. Camden were taken to Hillsboro and later the deputy sheriff called Mr. Dreiman to come to Hillsboro. He was present when the lineup was conducted and when Mr. Dreiman “selected Mr. Helt from the group.”

Appellant did not take the stand in his defense. His mother, Mrs. Smallwood, testified that on the morning of this occurrence appellant did not get out of bed until about 10:20 a. m. and started out the door around 10:30 a. m. Just prior to appellant’s going out the front door she observed Roger Camden’s car. Roger Camden is her son-in-law, married to appellant’s half-sister, Don-is. She observed the clock on the wall because she and appellant were arguing about his going out so early on a Sunday morning. Appellant was clothed in medium brown or light brown pants, and a dark red pullover shirt with a number on the front. He was in and out of the house that morning. Mr. Camden returned to the Small-wood house about ten minutes prior to the time the police officers arrived, sometime after 1:30 p. m.

On cross-examination Mrs. Smallwood was asked whether she recalled a conversation with Officers Forbes and Gregory about 2:00 p. m. on the afternoon of April 3, 1977. She replied that she had talked with a couple of officers but she did not know their names. She denied that she made a statement that appellant had left at 9:00 o’clock in the morning with Mr. Camden and came back around 10:30 or 11:00 a. m. that morning.

In rebuttal, the state produced both Deputy Sheriffs, Gregory and Forbes, who testified that when they were at the Small-wood home on the afternoon of the 3rd of April, 1977, Mrs. Smallwood stated that appellant and Mr. Camden left around 9:00 a. m. to go to Hardy’s Market at the corner of West Four Ridge and Highway 21, and returned later, and she couldn’t understand why it took them so long.

Mrs. Smallwood was permitted, in surre-buttal, to testify that she recalled having a conversation with the deputy sheriffs when they came to her house on April 3, 1977. She reiterated her prior testimony that she told them appellant got up about 10:20 a. m.; that she’d seen Roger Camden’s car earlier that morning when she looked out of her house at about 9:00 a. m., that she did not know what time Roger left the front of the place, but that he did return in front of the house about 10:30 a. m., appellant whistled to him, and Roger stopped and appellant went out the door. She also testified that the deputy sheriffs asked her if appellant had left and she told them he had been to the store with Roger and had returned around noon.

When the cause was submitted to the jury the court read Instruction No. 8 wherein the jury was instructed that if they found and believed from the evidence that on some former occasion a witness made a statement inconsistent with his testimony in the case, the jury might consider such evidence for the purpose of deciding the believability of the witness and the weight to be given to his testimony; however, in deciding the guilt or innocence of the defendant, any prior statement of the witness could not be considered by the jury as evidence of the matters contained in the statement. MAI-CR 3.52.

On appeal the appellant presents three. Points Relied On as grounds for the reversal of his conviction. Points I and III are directed to the admission into evidence of the rebuttal testimony of Deputy Sheriffs Gregory and Forbes set out above, concerning a statement attributed to Mrs. Doris Smallwood, made at her home on April 3, 1977, when appellant was taken into custody and which was in contradiction of her testimony at trial.

Appellant’s first point charges that the trial court erred in overruling his motion to strike the testimony of these officers because this evidence had not been disclosed to him despite the fact he had complied with the requirements of Rule 25.34(A)(5) and advised the state of his intent to rely on alibi as the defense to the charge for which he was on trial. His second point is that the trial court was guilty of plain error in imposing judgment and sentence on him because the state “recklessly or intentionally suppressed evidence favorable to the appellant in violation of” (emphasis supplied) the due process requirements of the Fourteenth Amendment to the United States Constitution. In support of this latter Point, appellant accuses the assistant prosecuting attorney of stating falsely to the trial court at a hearing on his motion for new trial that the state did not learn of Mrs. Smallwood’s prior inconsistent statement until immediately before the deputy sheriffs came into the courtroom to testify and that this misrepresentation contributed substantially to the trial court’s overruling of his motion for new trial and the entry of judgment.

The evidence of which appellant complains came in on rebuttal without any objection. Appellant’s trial counsel cross-examined each of the deputy sheriffs and developed from them the fact that this alleged conversation of Mrs. Smallwood was not mentioned in any of the police reports which were furnished to him by the prosecution pursuant to the provisions of Rules 25.32 and 25.37. He also developed from Deputy Sheriff Gregory that he remembered the conversation again when he saw Mrs. Smallwood that morning, June 1, 1977. From Deputy Sheriff Forbes appellant’s counsel developed that he had never discussed Mrs. Smallwood’s conversation with the prosecuting attorney but conceded that he had discussed it with Deputy Sheriff Gregory when he was asked by Gregory if he remembered any statement that Mrs. Smallwood had made. Gregory then told him that he remembered Mrs. Smallwood making a statement that “they had left the house together.”

It was not until Forbes was excused from the witness stand and the court was in recess, that appellant’s trial counsel, in the chambers of the court, for the first time indicated any objection to this line of rebuttal. He then moved that the testimony of the two rebuttal witnesses be stricken from the record on the grounds that the information about which they testified was subject to disclosure and became known to the state at approximately 12 o’clock “today,” that there was a continuing duty on the part of the state to disclose said information when it became aware of it and because the witnesses admitted having discussed their testimony with one another in violation of the rule of exclusion of the witnesses from the trial.

Under these circumstances we hold that this point was not preserved for review. State v. Kelly, 539 S.W.2d 106, 110[9] (Mo. banc 1976); State v. Taylor, 486 S.W.2d 239, 243[5] (Mo.1972). The record here does not present a situation where defense is caught by surprise by the answer. During Mrs. Smallwood’s cross-examination the assistant prosecuting attorney inquired of her:

“Q. Do you recall having a conversation with Officer (sic) Forbes and Gregory about 2:00 in the afternoon of April 3rd?
A. Couple of officers. I don’t know who they were.
Q. Did you make a statement as to this that your son had left at 9 o’clock in the morning with Mr. Camden and come back around 10:30 or 11:00?
A. No, I did not.”

When deputy Gregory was being interrogated by the assistant prosecuting attorney in rebuttal the following took place:

“Q. Officer Gregory, on the 3rd day of April, 1977 you previously testified that you went to the Smallwood residence and there arrested Orlan Helt and Roger Camden?
A. Yes, sir.
Q. At that time did you have an opportunity to talk to Mrs. Doris Small-wood?
A. Yes, sir.
Q. Did you ask her specifically the whereabouts of Roger Camden and Orlan Helt on that morning?
A. Yes, sir.
Q. What did she tell you and where did she say they had been?
A. She stated Orlan and Roger left supposedly around 9:00 a. m. to go to the Hardy’s Market which is a little Quick Shop or confectionary and grocery at the corner of West Four Ridge and Highway 21.
Q. What time did she tell you they returned?
A. She didn’t state a specific time. She said it was later on is the way she phrased it, to the best of my knowledge.
Q. Did she put it in terms of reference around 10:30, or anything like that?
MR. WILLIAMS: Object to the leading of the witness.
Q. (By Mr. Johnson) Well, as best you can recall what were her precise words?
A. She stated that they left together around 9:00 a. m. to go to Hardy’s Market to pick up some items and they didn’t return until — I can’t remember exact words. It was something like ‘later,’ but she couldn’t understand the reason it took them so long.
Q. But she did tell you they left at 9:00 together?
A. Yes, sir.
Q. Who was with you when she said that?
A. Deputy Forbes.”

Appellant’s counsel then proceeded to cross-examine deputy Gregory as previously stated supra. Upon the completion of deputy Gregory’s testimony the next prosecution rebuttal witness was deputy Forbes. He corroborated deputy Gregory’s testimony concerning the conversation with Mrs. Smallwood and no objection was made to the questions propounded to him nor his answers thereto on this subject matter. Claim of prejudicial error concerning the admission of testimony to which no objection was made at the earliest opportunity after the grounds became apparent cannot be considered on appeal because it is not properly preserved for review. State v. McClure, 504 S.W.2d 664, 668[6] (Mo.App. 1974). We rule this point against appellant for this reason.

The next point, Point III of appellant’s Points Relied On, is directed at what appellant contends is the suppression of evidence “favorable” to his case, as we read the Point as stated. However, what he is really complaining about is what he labels a misrepresentation by the assistant prosecuting attorney made to the trial judge during the argument on his motion for new trial wherein he raised an alleged trial error, i. e. the refusal of the trial court to strike the rebuttal testimony offered by the state because the state failed to disclose to him, as required reciprocal discovery, the fact that these two deputy sheriffs would rebut his alibi defense. Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973); State v. Curtis, 544 S.W.2d 580, 582 (Mo. banc 1976). He contends that it was this misrepresentation which caused the trial court to deny his motion for new trial and constitutes “plain error” entitling him to a new trial.

During argument on the motion for new trial, the prosecuting attorney advised the trial judge that he was totally unaware of any statement that Mrs. Smallwood made to the two deputy sheriffs who testified in rebuttal until after Mrs. Smallwood had testified on behalf of the defendant. He recalled that no recess was taken at the conclusion of the defendant’s evidence, and that deputy Forbes immediately took the stand and testified to what Mrs. Smallwood had said to him about the defendant leaving her home at 9:00 o’clock in the morning. “It was just pointed out to me in the hallway as he was coming in, or shortly before he came in, as a witness to testify.”

It is apparent from the transcript that the basis for the trial judge’s ruling denying the motion for new trial was that he was of the opinion that there was some duty on the part of a defendant, who has been required to comply with the request of the state to disclose whether he intends to rely on the defense of alibi, and if so, to furnish to the state the information required by Rule 25.34(A)(5), to file a further request requiring the state to disclose whether it has any evidence to rebut his alibi and the names and addresses of the state’s witnesses whose testimony would furnish said rebuttal. In other words, although Wardius requires reciprocal discovery, it is the defendant who must initiate a request for this information before the duty to reciprocate comes into play. While the trial court did say that it was of the opinion that it was only after Mrs. Smallwood had completed her testimony that this information which would rebut her testimony was brought to the attention of the prosecutor and there was no “sandbagging or poker playing on the part of the state,” this was not the basis for overruling appellant’s motion for new trial. The trial court also considered that the testimony of the deputies was by way of impeachment as much as rebuttal.

Although these questions present fertile fields for decision, we are not inclined to resolve them in the posture in which this case has come to us. As we have previously held, any review with respect to the admissibility of this evidence was not preserved because the evidence came in without objection, and would not therefore, require that the trial court grant a new trial on the grounds that it was erroneously admitted even if the prosecutor did misrepresent to the court the time frame within which he learned of the existence of the rebuttal evidence.

Appellant acknowledges that he did not preserve this error, if it was error, and requests that we consider it as plain error. We deny this request because we find no manifest injustice or miscarriage of justice in appellant’s conviction which has resulted from this evidence. There is more than sufficient evidence to support the verdict of the jury without this line of testimony. Nor do we entertain appellant’s request that we afford him review on the question of “suppression of evidence.” The rebuttal evidence does not fit the pattern of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) relied on by appellant; it is not “favorable” to his defense nor is it exculpatory. This evidence serves to impeach his one alibi witness by means of a prior statement inconsistent with her trial testimony. We rule this point against appellant.

Appellant’s Point II, that the trial court committed plain error in overruling his objection to a question propounded by the assistant prosecuting attorney to Mr. Dreiman whether he again identified persons he saw at the Jefferson County Jail as the same persons he saw at Mr. Cheatham’s house, was not preserved for review.

It is the appellant’s contention that it was error to permit the witness to answer this question because the identification made at the Jefferson County Jail took place during a lineup which was so suggestive that it created a substantial likelihood of misiden-tification and constituted a denial of his due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.

No attack was made upon the admissibility of the in-court identification of the appellant by any pre-trial motion to suppress on the grounds that it was tainted. Mr. Dreiman, earlier in his testimony, identified appellant seated at counsel table “with a white shirt on” as the man he saw on the morning of April 3rd, 1977, with Roger Camden, at 10:10 or 10:20 a. m. at the home of Mr. Cheatham, and whom he observed carrying a stereo or T.V. set from the house to Mr. Camden’s car parked in the driveway of the Cheatham residence and placing it in the trunk of the Camden automobile. Just a short time previously, Mr. Dreiman had seen both the appellant and Roger Camden in Mr. Camden’s car in a field near the Cheatham home and had a conversation with them before he proceeded to the store.

The question to which appellant directs his attack developed in the following manner. Mr. Dreiman testified that after he observed the appellant and Mr. Camden in the driveway of the Cheatham house with the T.V. or stereo, he went home and called the police. He met them when they arrived and accompanied them to the Cheatham residence after telling the police officers the same story he had told the jury in his testimony that morning. He further testified that later, around noon, he went to Hillsboro to the police station after he had been contacted by someone from the Jefferson County Sheriff’s office. At this point in his testimony the trial counsel and the judge retired to the court’s chambers where a lengthy discussion followed. Appellant’s counsel advised the court that his objection was that the prosecution was attempting to reinforce the in-court identification of appellant by Mr. Dreiman by means of a highly prejudicial lineup conducted in the Jefferson County Jail. The prosecutor replied that the record would show that he had not made any reference to a lineup or about the appellant having been picked out of any lineup, and assured the court that he was not going to make any reference to the lineup. The objection was overruled, and upon the reconvening of the trial the witness was permitted to answer that he had identified the appellant at the Jefferson County Jail.

Immediately thereafter, the Assistant Prosecuting Attorney was permitted, without objection, to inquire whether Mr. Drei-man had any doubt in his mind that the man seated in court with counsel and the man he saw in the jail is the man who was there that morning with Roger Camden; and the witness replied “No,” without any objection being made. As a matter of fact, the transcript shows that it was appellant’s counsel who inserted into the record the fact that a lineup was held when, on cross-examination of Mr. Dreiman, he inquired whether Mr. Dreiman was called to the Sheriff’s Department on the afternoon of April 3rd to identify Mr. Camden and another suspect, and whether a lineup was held. It was he who handed to the witness Defendant’s Exhibits B and C, asked him if he recognized them and whether they were photographs of the people who were in the lineup. After the witness replied that they were, counsel for the appellant thereupon undertook a cross-examination of the witness with respect to how many of the men in the photo had mustaches; how many had mustaches but no beards, and that no one other than the appellant had a mustache without a beard and had short hair. When this was accomplished, counsel for the appellant offered the two exhibits into evidence and they were received, and passed to the jury at his request.

If appellant seeks review of this alleged trial error on constitutional grounds, as we conclude he has by reason of his reliance on Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), he has not preserved it for review in this court. To raise and preserve a federal or state constitutional question for appellate review the question must (1) be raised at the first available opportunity, (2) the section or sections of the Constitution claimed to be violated must be specified, (3) the question must be kept alive at every stage of the proceeding, (4) the question must be presented in a motion for new trial and (5) it must be adequately covered in the briefs filed in the appellate tribunal. Kansas City v. Howe, 416 S.W.2d 683, 687-88[4] (Mo. App.1967); State v. Brookshire, 325 S.W.2d 497, 500[3] (Mo.1959).

The record demonstrates that appellant did not raise this issue at the first opportunity; he did not file a motion to suppress identification on the grounds relied upon in his brief for the first time; his objection at trial was not directed to the exclusion of the witnesses identification testimony but rather to any testimony about a lineup identification for the purpose of bolstering the witnesses in-court identification. The state introduced no evidence of a lineup; it was defense counsel who did that. Finally, appellant did not raise this point in his motion for new trial.

He asks that we review this alleged trial error as “Plain Error.” We believe that he does so because he recognizes the fact that the alleged error was not preserved for review by this court. However, we deny his request because from our study of the transcript we are unable to conclude that there has been a strong, clear showing that injustice or a miscarriage of justice will result unless we exercise our discretion to afford appellant a review of this alleged error of the trial court in the absence of compliance with the prerequisites to review of a constitutional issue. We believe that the evidence here is sufficient to establish appellant’s guilt by overwhelming evidence, and therefore this is not a case for application of the beneficent review on the grounds of “plain error” afforded by Rule 27.20(c).

We rule this point against appellant because it has not been preserved.

The judgment of the trial court is affirmed.

WEIER, C. J., and GUNN, P. J., concur.

      . Although photographs of this lineup — Defendant’s Exhibits B and C — were referred to in an in-chambers discussion with the trial court and counsel, and later were offered and received into evidence, they were not filed in this court.

      . This trial consumed one day.

      . The assistant prosecuting attorney’s memory with respect to the circumstances of this matter was somewhat inaccurate if his statement made to the trial court is reported verbatim, because he said: Tr. P, 218: “As a matter of fact, the officer Forbes immediately took the stand following Mrs. Smallwood and testified to the incident wherein she was alleged to have related to him that Mr. Helt left the house at 9 o’clock in the morning.” As a matter of fact, an investigator for the public defender’s office testified, and then deputy Gregory was the first rebuttal witness; deputy Forbes, the last.

      . There is nothing said in State v. Curtis, supra, to support this requirement.

      . Aided by the transcript, we reach a conclusion different from that reached by the trial court with respect to when the prosecution initially became aware of the purported contradictory statement of Mrs. Smallwood. The trial prosecutor, during cross-examination of Mrs. Smallwood, laid a foundation in specific phraseology concerning the alleged conversation with “Officer (sic) Forbes and Gregory about 2:00 in the afternoon of April 3rd?” “Q. Did you make a statement as to this that your son had left at 9 o’clock in the morning with Mr. Camden and come back around 10:30 or 11:00?” Did he just happily choose this phraseology and lay this foundation for impeachment only to learn after Mrs. Smallwood’s testimony had been concluded that this was the conversation she’d had with these two deputy sheriffs? If he did it was quite a coincidence. We believe the prosecutor had to have knowledge of this purported conversation sometime prior to the cross-examination of Mrs. Small-wood.


text:
    STATE of Missouri, Respondent, Division One v. Michael Ami McMILLIN, Appellant.
    No. 10711.
    Missouri Court of Appeals, Southern District.
    May 14, 1979.

      John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Donald L. Clough, Springfield, for appellant.
   TITUS, Judge.

Tried under the habitual criminal law, defendant was charged with burglary of and Stealing rifles from Grant Hardware situate at the northwest corner of the intersection of east-west College Avenue and north-south Warren Street in Springfield near 10 p. m. November 24, 1976. The jury found defendant guilty of burglary and innocent of stealing. Defendant’s motion for a new trial was denied, he was sentenced by the court to imprisonment for a term of seven years and duly appealed.

In recasting the matter following a guilty verdict, we bear in mind (1) the evidence is to be reviewed in the light most favorable to the state, (2) the state is to be afforded the benefit of all reasonable evi-dentiary inferences [State v. Wiley, 522 S.W.2d 281, 292[19] (Mo. banc 1975)] and (3) the jury had leave to believe or disbelieve all, part or none of the testimony of any witness, including the testimony of alibi witnesses. State v. Davis, 556 S.W.2d 745, 747[2] (Mo.App.1977).

The State’s Evidence

On the occasion in question, Springfield detectives Lloyd (driver) and Coday (passenger) were traveling eastward on College Avenue in an unmarked police car when they espied two men standing on a sidewalk adjacent to a parked Chevrolet automobile headed south on Warren Street immediately east of Grant Hardware. The police vehicle circled the block east of the store and, with lights extinguished, stopped some distance back of the Chevrolet. Shortly after beginning their vigil, the detectives saw the two men previously seen walk around the corner to the front of the store. Moments thereafter, the detectives heard the breaking of glass. With gun drawn, Coday left the police car and ran toward the corner. Lloyd drove the police car south to the immediate rear of the Chevrolet.

Just as Coday reached the southeast corner of the hardware store he met defendant, with stolen guns in his arms, rounding the corner in the direction of the Chevrolet. Upon encountering Coday, whom he knew from high school days, defendant exclaimed, “God Damn, Coday.” Detective Lloyd arrived and took charge of defendant while Coday went to the front of the store and arrested defendant’s companion, John Pippin, who was then inside the establishment with a tire tool which apparently had been used to break a window to permit entry. Subsequently, defendant said to Co-day: “You ain’t going to believe that I was waiting on a bus.” Obviously the jury didn’t believe it either.

The Defendant’s Evidence

Before the just recited events, defendant pictured himself at the Downbeat Club possessed of a desire to go home but without the necessary transportation. He acquired the wanted accommodations from Pippin and they started the intended journey in Pippin’s Chevrolet. However, as they neared Grant Hardware, Pippin parked his car in the previously described position with the avowed intent of committing burglary of the store. When defendant’s protests proved unavailing, he crossed the street to an outside pay telephone which he used to call his friend LeRoy at the Downbeat and received assurances of a ride home. Just as defendant recrossed the street, he met Pippin laden with guns which were deposited at defendant’s feet before Pippin returned to the store for additional loot. At this unfortunate moment, according to defendant, the detectives arrived and arrested him despite his self-proclaimed innocence and denial that he ever had any guns in his arms.

LeRoy corroborated defendant’s claim of the telephone call to him at the Downbeat Club. But LeRoy said that when he arrived at the hardware store and saw police present, he decided it was no place for him. Therefore, he departed without making his presence known to the authorities.

Linda White, a witness for the defense, testified she was in the Shamrock Motel visiting with her brother on the night of the charged crimes. The motel was “caddy-cornered [sic] across the street” from Grant Hardware and her attention was directed thereto upon hearing “some kind of trouble or scuffle going on outside” involving a large man and “a little bitty guy.” After watching the men for several minutes, Linda saw the larger man throw “up his hands and walk across the street to the phone booth.” When the telephone call ostensibly had been completed, the caller returned to the hardware store just as the smaller man came from in front of the store and threw down what he was carrying “by the car.” Just as the “little one . . . went back” into the store the detectives arrived, “they were really on the spot.” On cross-examination Linda asserted that she was not acquainted with defendant, but added “I have seen him somewhere, but I don’t know him. I’ve seen him around.” Also, when asked if defendant would “be the big man or the small man” Linda had seen at the hardware store, Linda answered that “[h]e would be the bigger one.” Linda was additionally questioned concerning a report she had once made to the police concerning a Doberman pinscher taking from her a purse which contained her “$800.00 wedding rings.” Although Linda admitted that she later retracted the story, she denied having asked the investigating officers if they knew defendant “and the Gardners and the Swearengin boys.”

The State’s Rebuttal Evidence

Two Springfield detectives testified that in early April 1976 they had interrogated Linda White concerning her report that a dog had stolen her purse. The detectives recounted that Linda subsequently said she had lied about the Doberman pinscher but they recalled that in their conversations with her, she had inquired of their knowledge concerning defendant, the Gardners and the Swearengin boys.

The Defendant’s Surrebuttal Evidence

Defendant took the stand to state that at the time Linda’s purse was allegedly stolen he was incarcerated in the penitentiary.

Joint Stipulation

By agreement of the parties, the court advised the jury that it was stipulated, in effect, the defendant was in custody of the Division of Corrections on the date Linda’s rings and purse were reportedly stolen.

Opinion

Defendant’s penultimate and last points relied on read: “II The Court improperly read and gave MAI-CR Instruction 1.10 to the jury over the objection of defense counsel. Ill The State improperly presented evidence that defendant had committed a crime other than the crime for which he was on trial. At the time of the alleged crime, defendant was incarcerated in the Missouri Penitentiary at Jefferson City, Missouri. This testimony so prejudiced the jury that it was impossible for defendant to get a fair trial. The Prosecutor either knew or should have known that the testimony and the inferences to be drawn therefrom were false.”

As to II: Wherein and why, as required by Rule 84.04(d), V.A.M.R., the court improperly read and gave the instruction is left for us to conjecture and guess. This point, as penned, violates the rule and presents absolutely nothing for appellate review. State v. Williams, 554 S.W.2d 524, 536[15] (Mo.App.1977). Appellate courts are not constrained to leaf the transcript on appeal nor are they required to explore the argument portion of an appellant’s brief to come by the possible intendments presented in a conclusionary and abstract fashion. Dennis v. Estate, 559 S.W.2d 84, 85[1, 2] (Mo.App.1977).

As to III: There was no direct state’s evidence that defendant had committed a crime other than that for which he was on trial. When defendant took the stand in his own defense, he admitted to prior convictions for robbery and burglary. However, defendant’s point relied on suggests that it refers to matters included in the cross-examination testimony of Linda White. While Linda’s recountings suggested, in a left-handed manner, that defendant was the larger man observed at the scene of the involved crimes, she testified she was not acquainted with defendant and could not identify him as figuring in the charged situation. The proffered evidence that Linda had inquired concerning defendant in the course of the purse-snatching dog incident, was simply designed to discredit her assertions that she did not know defendant before apparently seeing him the night that Grant Hardware was burglarized. Moreover, the stipulation, supra, fully agreed to and acquiesced in by defendant, demonstrated that he could not have been involved in the “Doberman Gang” caper as he was then safely in durance vile. But more decisive of the subject at hand is the realization that defendant did not once object to the interrogation of Linda on the subject presumably intended by his second point. Assignments of error regarding admissibility of evidence are not for consideration on appeal unless they were timely presented to the trial court when the evidence was offered. State v. Rideeoutte, 572 S.W.2d 877, 879[4] (Mo.App.1978); State v. Broadnax, 572 S.W.2d 224, 226-227[1] (Mo.App.1978); State v. Simmons, 500 S.W.2d 325, 328[2, 3] (Mo.App.1973). Or differently stated, alleged errors not objected to at trial are waived [State v. Morgan, 444 S.W.2d 490, 494[6] (Mo.1969)] and cannot be subsequently resurrected successfully in a motion for a new trial or via a point raised on appeal. State v. Hulsey, 557 S.W.2d 715, 718[5] (Mo. App.1977).

Defendant’s first point relied on (the one we consider last) reads: “I The verdict of the jury was clearly a compromise verdict. At the time of reading MAI-CR Instruction 1.10, ten members of the jury were convinced that the defendant was guilty of both burglary and stealing and two members of the jury were convinced he was not guilty of any offense. Approximately twenty minutes after the reading of the [hammer] instruction, ten members of the jury who had previously been convinced that defendant was guilty of burglary and stealing, decided he was only guilty of burglary and not guilty of stealing, and two members of the jury who had been convinced that he was not guilty of any offense, decided he was guilty of burglary.”

The first difficulty we encounter with this point is its factual inaccuracy. After the jury had deliberated for approximately three hours it was returned to the courtroom whereupon the court stated: “Without telling us on what question or issue or issues it is, could you tell me how the jury is divided at this time, if it is divided?” The jury foreman replied: “The jury is divided, sir, ten and two.” The court then inquired if any member of the jury “would want to express a view on whether you feel that with further deliberation you can arrive at a verdict.” The foreman then stated: “Yes, sir, I think that with a little more time and discussion we can possibly be able to come to an agreement.” Then when the court inquired of the other jurors, “would anybody take exception to that?”, their acquiescence in the foreman’s declaration was evidenced by their silence.

Nothing in the foregoing, or any other portion of the transcript, indicates that ten jurors were ever voting defendant guilty of both burglary and stealing while two were convinced of his innocence of any offense. Likewise, there is no basis for defendant’s claim that the jurors compromised on a verdict by the ten giving up their belief that defendant was guilty of both counts and the remaining two abandoning their convictions of complete innocence. Bare allegations in a new trial motion do not prove themselves [State v. Underwood, 470 S.W.2d 485, 487[5] (Mo.1971), cert. denied, 405 U.S. 928, 92 S.Ct. 980, 30 L.Ed.2d 802 (1972)] and assertions made in the points relied on in a defendant’s brief which are wholly unsupported by the transcript, are not to be considered on appeal. State v. Freeman, 489 S.W.2d 749, 753[12] (Mo.App. 1973).

Judgment affirmed.

FLANIGAN, C. J., and CAMPBELL, BARKER and HENRY, Special Judges, concur.

GREENE, J., not participating because not a member of the court when cause was submitted.