author: CROW, Presiding Judge.

text:
    William PINSON, Appellant, v. STATE of Missouri, Respondent.
    No. 13899.
    Missouri Court of Appeals, Southern District, Division Three.
    March 28, 1985.
    Sidney T. Pearson, III, Sp. Asst. Public Defender, St. James, for appellant.
    William L. Webster, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for respondent.
   CROW, Presiding Judge.

William Pinson (“movant”) appeals from a judgment denying his motion per Rule 27.26 to vacate his conviction of rape, in the course of which he displayed a deadly weapon in a threatening manner, and his conviction of sodomy, in the course of which he displayed a deadly weapon. The victim of each offense was movant’s mother. The offenses, each a class A felony, §§ 566.030.2 and 566.060.2, RSMo 1978, were joined for trial, and a jury found movant guilty of both, assessing his punishment for each at life imprisonment: The trial court imposed those sentences, ordering that they run consecutively. That judgment was entered April 30, 1981, and no appeal was taken therefrom.

Movant filed a motion to vacate the judgment on October 19, 1981. An amended motion to vacate, prepared by appointed counsel, was filed February 22, 1984, and an evidentiary hearing on the amended motion was conducted by the circuit court June 6, 1684. That court filed findings of fact, conclusions of law and judgment denying the amended motion June 15, 1984. This appeal followed.

Although he asserted several grounds for relief below, movant assigns only one error here, i.e., the circuit court should have granted the motion to vacate because movant “did not have effective assistance of counsel at [the jury] trial, because no post-conviction motions were filed and no appeal was filed and perfected, even though [movant] requested that an appeal be filed, and [movant’s] court-appointed attorney refused or neglected to file post-conviction motions or notice of appeal.”

Two witnesses testified at the evidentia-ry hearing: movant and the court-appointed attorney who represented him at the jury trial. We henceforth refer to that attorney as “defense counsel.”

Pertinent to the assignment of error before us, the circuit court’s findings include the following:

“That Movant did not tell his Court appointed attorney, [defense counsel], to perfect an appeal because Movant testified he only ‘believed’ he told his attorney to appeal and [defense counsel] testified that he and the Movant discussed an appeal but he had no recollection of Mov-ant requesting an appeal.
That Movant did not contact the Court to have [defense counsel] or any other attorney appointed to represent Movant to attempt to file an appeal out of time.
That the motion filed for a transcript was not called up for a ruling by the Court; ....
That [defense counsel] exercised the customary skill and diligence of a reasonably competent attorney under similar circumstances.”

The circuit court’s findings and conclusions are presumed to be correct and are to be affirmed unless clearly erroneous. Harkins v. State, 494 S.W.2d 7, 12[1] (Mo. 1973); Rule 27.26(j). They are clearly erroneous only if upon review of the entire record this Court is left with the definite and firm impression that a mistake has been made. Knight v. State, 491 S.W.2d 282, 284[1] (Mo.1973); Anderson v. State, 487 S.W.2d 455, 460[3] (Mo.1972).

The record before us contains a “Motion for Court Records,” evidently prepared by movant at the state penitentiary. That motion was received by the circuit clerk July 16, 1981, two and a half months after sentencing, and is apparently the motion for a transcript referred to in the circuit court’s findings. The motion states, inter alia: “That in order for the movant to file a 27.26 under Missouri rules of procedure, movant request [sic] the below listed Documents.” (Emphasis added). Among the documents requested is: “Complete transcript of the proceeding in Circuit Court.” Nothing in the motion indicates that the purpose of the transcript is for an appeal (which would have been untimely when such motion was received).

The next after-trial activity by movant was a letter to defense counsel, which, according to movant, was sent “along towards the last of the year, last of ’81.” That letter was not produced at the circuit court hearing, nor was its content otherwise established. Asked what defense counsel’s response was to the letter, mov-ant testified, “Well, he said ’f I wanted him as my lawyer that he would have to be reappointed and then he would send me the papers, necessary papers for a 27.26.”

Defense counsel was asked about the content of the letter, whereupon this colloquy occurred:

“A. I don’t recall exactly, but it was sometime after the sentencing, and I believe that I did tell him at that time that if he wanted me to represent him that I would have to be reappointed. Now I do recall also that after the sentence, he did ask for a transcript and I recall requesting the Court for a transcript.
Q. Was that transcript ever given?
A. No.
THE COURT: Was there any ruling? The Court doesn’t understand, because it’s always been the policy of this Court to supply a transcript. It takes the Reporter a while to get them out. Was that the problem, or does anyone recall?
[DEFENSE COUNSEL]: I don’t really recall. I do recall Mr. Pinson asking at the sentencing, after the sentencing I asked Mr. Pinson if there was anything else. He said he would like a transcript. He did not ask me to appeal or file any Motion for a New Trial, and I did ask the Court for a transcript and the Court denied the request.” (Emphasis added).

Defense counsel’s recollection about the court’s denial was at odds with the court record, which showed no denial of a request for a transcript. Indeed, on March 1, 1982, counsel appointed to represent mov-ant in the 27.26 proceeding presented a request for a transcript to the circuit court, and the court ordered the official court reporter to prepare one. Whether that request was the one sent by movant in July of 1981 or a later request is unclear. In any event, a transcript was prepared and furnished to movant for use during the 27.26 proceeding.

On the issue whether movant ever expressed to defense counsel a desire to appeal, movant testified that before trial he told defense counsel that if he was found guilty he wanted to appeal, “to take it as far as I had to legally, or could.” Movant added that he “assumed” defense counsel would do so. Asked whether he indicated to defense counsel that he wanted to appeal after the convictions, movant recalled only the letter previously mentioned. During movant’s direct examination, we find this:

“Q. Okay, and after your sentencing did you discuss with him, appeal?
A. No.”
On movant’s cross-examination, this:
“Q. Now Mr. Pinson, you indicated one of your two complaints with [defense counsel] is he didn’t file an appeal. I believe in your [direct] testimony ... you stated you believed you told [defense counsel] to appeal, but you aren’t sure. Is that a correct statement?
A. Yes, it’s been sometime.”

In defense counsel’s testimony, the following appears:

“Q. During these six or so conversations you had with Mr. Pinson prior to his trial, did you ever discuss the subject of appeal?
A. We discussed all of the possibilities.
Q. Did he indicate to you during those conversations that if he was found guilty at his trial that he would desire you to file an appeal for him?
A. I don’t recall him ever requesting that, or indicating that either.”

Additionally, as observed supra, defense counsel testified that after the sentencing, movant did not ask him to appeal or to file a motion for a new trial.

If a defendant desires to appeal his conviction and his court-appointed counsel, without explanation, fails to take the proper and necessary steps to perfect the appeal, such extraordinary inattention to the client’s interests amounts to ineffective assistance of counsel cognizable on motion to vacate. Green v. State, 451 S.W.2d 82, 85[2] (Mo.1970). However, the mere failure to take an appeal does not constitute ineffective assistance of counsel; only where the defendant wishes to appeal and his attorney either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel. Brown v. State, 512 S.W.2d 404, 408[9] (Mo.App.1974). It is implicit in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him. Sampson v. State, 570 S.W.2d 337, 338[1] (Mo.App.1978).

Movant’s assignment of error makes it clear that his complaint against defense counsel is that he (movant) requested that an appeal be filed but defense counsel failed to file “post-conviction motions” or a notice of appeal. Movant does not charge defense counsel with ineffective assistance for failure to advise movant of any after-trial rights or appellate procedures, and nothing in movant’s amended motion to vacate or his testimony suggests that he was unaware that those steps were available to him. As no issue of that nature was before the circuit court, no findings on the subject were required or made.

The circuit court, confining its attention to the issues before it, found, as noted earlier, that movant did not tell defense counsel to appeal, nor did movant request that counsel be appointed for that purpose or that he be granted leave to appeal out of time under Rule 30.03.

In determining whether these findings are clearly erroneous, we observe that movant’s testimony regarding whether he informed defense counsel that he wanted to appeal is vague and, to some degree, self-contradictory. In contrast, defense counsel testified that after the sentencing, movant did not ask him to appeal or to file a motion for a new trial. Additionally, defense counsel did not recall movant ever requesting that an appeal be filed or indicating that he wanted one filed.

Movant’s written request for a transcript in July, 1981, stated the transcript was needed in order for movant to file a “27.26.” That request came long after the deadline for filing a notice of appeal, and it manifests an intent to file a proceeding under Rule 27.26, not an appeal. Moreover, there was no showing that defense counsel ever learned of the request. Mov-ant’s letter to defense counsel late in 1981 was, from what appears in the record, an inquiry whether defense counsel would represent movant in a Rule 27.26 proceeding, not an appeal.

None of the evidence reviewed in the two preceding paragraphs affords any basis for disturbing the circuit court’s decision.

The item of evidence most favorable to movant is defense counsel’s testimony that movant, after the sentencing, said he would like a transcript. Defense counsel was not asked what inference, if any, he drew from this request, but defense counsel must not have viewed the request as an indication that movant wanted to appeal, as defense counsel testified he did not recall movant ever indicating that he wanted an appeal filed.

Curiously, movant, in his testimony, did not mention any verbal request to defense counsel for a transcript. It seems logical to assume that if movant had indeed told defense counsel he wanted a transcript, and had movant’s purpose been’ to appeal, movant would have so testified. The record, however, is barren of any such testimony. Furthermore, movant does not argue here that defense counsel should have construed the request as a directive to appeal.

Bearing in mind that it was mov-ant’s burden to establish his grounds for relief by a preponderance of the evidence, State v. Bradley, 618 S.W.2d 206, 208[4] (Mo.App.1981); Careaga v. State, 613 S.W.2d 863, 867[1] (Mo.App.1981); Rule 27.26(f), and that the credibility of the witnesses was for the circuit court, not us, to determine, Miller v. State, 615 S.W.2d 624, 625[3] (Mo.App.1981); Vincent v. State, 607 S.W.2d 815, 816[3] (Mo.App.1980), we cannot, on this record, brand the circuit court’s denial of relief as clearly erroneous.

Whether movant in fact desired to appeal, and whether that desire was communicated to defense counsel or otherwise understood by him, were fact issues for the circuit court to resolve. The circuit court resolved them adversely to movant. We must give due regard to the circuit court’s opportunity to hear witnesses, deferring to its assessment of credibility unless it clearly and convincingly appears that the circuit court has abused its discretion. Ladd v. State, 621 S.W.2d 543, 544[2] (Mo.App. 1981); Tyler v. State, 588 S.W.2d 3, 4[1] (Mo.App.1979). According the circuit court the deference to which its determination of credibility is entitled, and finding no abuse of discretion, we deny movant’s assignment of error.

Judgment affirmed.

PREWITT, C.J., and TITUS, FLANI-GAN and MAUS, JJ., concur.

      . Rule references are to Missouri Rules of Criminal Procedure (15th ed. 1984).

      . Each offense was alleged to have been committed November 2, 1979; therefore, the versions of §§ 566.030 and 566.060 that appeared in RSMo 1978 were the ones that applied.

      . The attorney who represented movant at the hearing on the amended motion to vacate is not the attorney who represented movant at the jury trial.


source: Caselaw Access Project

author: HOGAN, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Evert G. FRANKS, Defendant-Appellant.
    No. 13710.
    Missouri Court of Appeals, Southern District, Division Two.
    April 2, 1985.

      John Sims, Ruyle, Sims & Lampo, Neo-sho, for defendant-appellant.
    John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Presiding Judge.

By amended two-count information filed in the Circuit Court of McDonald County, defendant Evert G. Franks was charged with manufacturing marijuana in violation of § 195.020.1, RSMo 1978, and with possession of marijuana in violation of the same statute. The State further pled a prior conviction of possession of marijuana which occurred in December 1974. A jury found the defendant guilty on both counts. His punishment was assessed at confinement in the county jail for one year for manufacturing marijuana; he was fined $1,000 for possession of marijuana. Defendant appeals, contending only that there is no substantial evidence to support either judgment of conviction.

The State, having had verdicts, is entitled to have this court consider the evidence and the reasonable inferences to be drawn therefrom in that light most favorable to the State, rejecting all evidence and inferences which do not support the verdict. State v. Netzer, 579 S.W.2d 170, 173 (Mo. App.1979); State v. Evans, 545 S.W.2d 694 (Mo.App.1976).

So taken and in briefest sketch and outline, the facts are that on June 18, 1983, defendant and his wife lived at Goodman, in McDonald County. Goodman is a town of about 1,000 people. A city marshal, on routine patrol, discovered marijuana plants growing in the defendant’s back yard. The back yard was enclosed by a fence about six feet high, constructed of 1" X 4" lumber. The fence was interrupted at one corner by a hog wire panel. The back yard was guarded, or at least attended, by a Doberman pinscher.

The area was kept under surveillance for several days because the marijuana plants appeared to have been cultivated. The grass was mowed, except for a small garden plot which had been tilled. The plants were “clumped” at various places — shown in evidence by photographs we do not have before us — but otherwise scood out, as it were, as the only thriving weeds in an otherwise well-manicured back yard.

On June 23, warrants were obtained. Several area police officers went to the defendant’s residence to execute the warrant about midnight. One group of officers stationed themselves at the rear door; another group knocked at the front door. The officers at the front door identified themselves, calling out loudly to the defendant. The defendant attempted to run out the back door, but was advised by the officers waiting there that they were peace officers and had a warrant for his arrest. One of the officers at the front door then “heard a door shut, heard movement back through the house, and the front door opened and [defendant] came out on the front porch.”

It was explained to the defendant that the officers had both warrants for his arrest and to search the premises. Defendant was asked to secure his Doberman. An officer followed the defendant from the front to the rear of the house. The two passed through a living room, kitchen and utility room to the rear of the residence. As the officer following the defendant walked through the house, he directed the beam of his flashlight from side to side. In the kitchen, there was a “green Coca-Cola tray” which contained marijuana leaves sitting on a cabinet over the stove. The jury was shown a picture of the drying tray, State’s Exhibit 3 — which again is not before us — which contained (by trial time) very well dried marijuana leaves.

Defendant and the officer then went to the yard back of the house. The warrant for defendant’s arrest was read to him and he was given a Miranda warning. Defendant himself read the search warrant. About 20 relatively small marijuana plants were recovered and confiscated. Other facts will be noted in the course of the opinion.

The defendant was found guilty on Count I — the manufacture of marijuana— as an accessory. The State’s main instruction was MAI-CR.2d 2.12, appropriately adapted. The jury was instructed on the nature of accessorial liability by the first paragraph, which was the first paragraph of MAI-CR.2d 2.12 and was required to find that: 1) during the period from June 19 through June 23, 1983, the defendant or another person manufactured marijuana, and 2) defendant was aware of the character of the substance and knew that he or another person was manufacturing it. The instruction continued in the language of MAI-CR.2d 2.12, predicating a finding of guilt upon the hypothesis that the defendant acted together with or aided another with the purpose of promoting or furthering the offense of manufacturing marijuana.

Able and conscientious counsel for the defendant strenuously insists there is no evidence to warrant this submission, but counsel has considerably over-complicated the crime charged in Count I. In State v. Netzer, 579 S.W.2d at 175-76, and more recently in State v. Poole, 683 S.W.2d 326, 329 (Mo.App.1984), this court has held that the offense of growing marijuana consists of two elements: 1) causing the marijuana plants to have vegetal life and to encourage and promote their growth, with 2) an awareness of the character of the controlled substance. We reaffirm those decisions, but state once again that they were not intended to and do not include all the acts which might constitute the “manufacture” of marijuana. Section 195.020.1 denounces the manufacture of any controlled substance. Section 195.010(21) defines “manufacture” to include “production” of any controlled substance; production is defined by § 195.010(30) and “includes the manufacture, planting, cultivation, growing, or harvesting of ... a controlled substance.” (Our emphasis.) Courts know that the various subspecies of cannabis sa-tiva grow in the wild without cultivation, but the plants confiscated in this case showed positive signs of cultivation and harvesting. The grass in the defendant’s back yard had been carefully mowed so as to avoid damaging the cannabis plants; there was an oscillating sprinkler in the vicinity of some of the plants, and one of the officers noticed that one group of plants had been “topped” or primed. There “was numerous amounts of stems ... where the topping had been completed,” to use the officer’s words. This court also knows “the dried leaves and flowering tops of the pistillate hemp plant that yield cannabin and are sometimes smoked in cigarettes for their intoxicating effect” is the everyday pedestrian definition of marijuana. Webster’s Ninth New Collegiate Die-tionary, p. 727 (1983). There is ample evidence of both cultivation and harvesting.

But, counsel argues, there is no evidence that the defendant knew the plants were marijuana plants. Several times the State offered evidence of defendant’s prior conviction of possession of marijuana to show knowledge, subject to a limiting instruction modeled after MAI-CR.2d 3.60. The trial court refused to admit the evidence. Perhaps the evidence of the pri- or conviction was admissible, but its exclusion does not destroy the State’s case. There is no doubt that the State had the burden to prove beyond a reasonable doubt that the defendant had knowledge of the presence and character of the marijuana. However, knowledge may be inferred from possession, that is, dominion and control over the area where the contraband is found. United States v. Lochan, 674 F.2d 960, 966[7] (1st Cir.1982). Lochan involved an automobile. Applying this principle to dwellings, our courts have held that when joint control of a residence exists, possession of the contraband can be constructive and need not be exclusive. Knowledge may then be inferred from the constructive possession and any circumstances tending to prove guilty knowledge, including evidence of his conduct and mannerisms, declarations, admissions, contradictory statements made by him, as well as his access to the area where the contraband was found. State v. Dethrow, 674 S.W.2d 546, 550[7] (Mo.App.1984).

In this case, some effort was made to show that the defendant and his wife were having marital difficulties and consequently defendant was away from home. The jury was not obliged to believe all the defendant’s evidence, and this court does not weigh the evidence. See State v. Morris, 639 S.W.2d 589, 591[2] (Mo. banc 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). The defendant was at his residence asleep when the warrants were executed during the night of June 23-24, 1983; officer Ebbinghaus had gone to the defendant’s residence at some time after “[t]he latter part of May” and had found defendant’s wife at the residence. Further, as Ebbinghaus pointed out, the defendant’s name was on the mailbox. One of the defendant’s witnesses, a Robert Walker, testified that he was defendant’s neighbor and that he knew from observation that the defendant resided upon the premises where the marijuana was found for at least 3 years prior to the summer of 1983. There was ample evidence to warrant a finding that the residence where the marijuana was found was occupied by the defendant and his wife and that the defendant shared control with his wife.

Quite aside from any prior convictions, there were incriminating circumstances tending to show defendant’s knowledge and awareness of the nature of the marijuana. The presence of an inordinately elaborate privacy fence around the back yard and the presence of a formidable dog obviously intended to repel observation is one such circumstance; another is defendant’s statement, made when he was arrested, that he knew nothing whatever about the plants in his back yard, “that it was his wife’s garden.” A jury could have inferred from the circumstances that the defendant was aware the plants in his back yard were marijuana plants.

The defendant’s further point in connection with Count I is that there is no evidence that he was guilty as an accomplice to the crime of manufacturing marijuana. We are cited only to § 562.041, which defines accessorial liability. Some substantive changes in the law were effected by the enactment of § 562.041, but these changes need not be discussed here. It is still true to say that any evidence fairly showing affirmative participation by the defendant in aiding another to commit the crime is sufficient to support a conviction as an accomplice. See, e.g., State v. Hills, 645 S.W.2d 57, 59 (Mo.App.1983). As that case states, conviction does not require that a defendant personally perform all the acts constituting the elements of a crime. The defendant’s theory seems to have been that his wife, and possibly another person, were responsible for the cultivation of marijuana in his back yard. If such were the case, we have the opinion defendant’s participation was shown by provision of enclosed premises, suitably equipped with a watchdog. However, if we are to look for an affirmative act, the record permits the inference that the defendant was alone in the house when he was taken in custody, and that the marijuana had been recently watered. A jury could have inferred that defendant watered the plants on the evening of June 23, 1983, thereby aiding the commission of the offenses. The evidence was sufficient to support the verdict as to Count I of the information.

Counsel’s arguments concerning the sufficiency of the evidence to support the conviction of possession are also unavailing. There was evidence that the green leafy substance — identified by experts as marijuana — found in the “Coca-Cola tray” in the kitchen had been freshly picked. The defendant had ready access to the drying marijuana leaves and fled when the officers appeared. We have already noted that the defendant was in constructive possession of the marijuana. In combination these circumstances were sufficient to warrant a finding that defendant possessed the marijuana found in the house. State v. Kerfoot, 675 S.W.2d 658, 661-62 (Mo.App. 1984). Because the evidence showed that another man was frequently on the premises, and possibly defendant’s wife was present, it was not error to submit defendant’s criminal liability by using MAI-CR.2d 2.12. See Notes on Use to MAI-CR.2d 6(c).

The judgments are affirmed.

PREWITT, C.J., and MAUS and CROW, JJ.

      . References to statutes and rules are to RSMo 1978 and to Missouri Rules of Court (14th ed. 1983), except where otherwise specifically noted.

      . See Comment, Accomplice Liability Under the 1979 Missouri Criminal Code, 44 Mo.L.Rev. 233 (1979).


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eric BOYD, Defendant-Appellant.
    No. 47328.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 2, 1985.

      Lew Anthony Kollias, Public Defender, Columbia, for defendant-appellant.
    Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   KELLY, Judge.

Eric Boyd appeals from a judgment of the Circuit Court of the City of St. Louis convicting him of burglary in the second degree, § 569.170, RSMo 1978. He was sentenced to three years imprisonment in the custody of the Department of Corrections and Human Resources and was fined $100.00. Execution of his sentence was suspended for a period of two years and appellant was placed on probation for that period.

Appellant does not challenge the sufficiency of the evidence to support his conviction; therefore it is sufficient to state that there was evidence from which the jury found, beyond a reasonable doubt, that appellant and several companions burglarized the residence of Rose Holschen at 4755 Genevieve Avenue, in the City of St. Louis during the evening of August 8, 1983.

On appeal the appellant raises two grounds for reversal of his conviction. He initially contends the trial court erred in overruling his request for a mistrial after a state’s witness, Nathaniel J. Martin, on cross-examination mentioned another burglary repeatedly to the prejudice of the appellant. The incident of which appellant complains arose during defense counsel’s questioning of the witness relative to his conversation with the police, and is as follows:

[Defense Counsel] Q: Did you have occasion to talk to the police officers at that time about the incident?
[State’s Witness] A: That day? No. Q: Okay. Now you did talk to an officer later on August 26th about it; isn’t that correct?,
A: This burglary along with another one.
Q: Well, just answer my question.
A: Yes.
Q: On August 26th did you have occasion to talk to the police about this burglary?
A: On August 26th?
Q: Roughly — Not quite three weeks later. Officer Loehr.
A: Right. We was talking about this one along with the other one.
Q: (By Mr. Walsh) Mr. Martin, you talked to them on August 26th, okay? And we’re talking about this burglary at the Holschen residence, okay? Prior to that date had you told any police officer anything about the burglary of Mrs. Hol-schen’s house?
A: You said prior to that—
Q: Prior to August 26th.
A: —did I talk to the police?
Q: About the burglary at Rose Hol-schen’s house.
A: Yes, you know, it was mentioned. Q: Okay. When did you talk — Okay. When prior to then did you talk to them about this burglary?
A: I can’t be sure of the date, but I know I talked to an Officer Loehr about this burglary and it was tied in with not only this burglary but I’m saying this was included.
THE COURT: Mr. Martin, we’re only interested in this burglary. Whatever else you might have discussed with the police officers is not pertinent to this case, and you should not comment about it. So please just answer what you talked about this burglary, if you can recall, and when.
A: It was about three weeks later prior to this — the burglary, and I talked to them again about the same burglary. Q: Well, August 26th is not quite three weeks when — This burglary occurred August 8th, all right?
A: Right.
Q: This burglary occurred on August 8th. When was the first time you talked to any police officer about that burglary there at Rose Holschen’s house?
A: It had — It was around that time, because the only reason I mentioned the other burglary, because that’s when I talked to the police about this one. It was that date. I think it was around— could have been around the 26th. I don’t recall the exact date.
Q: Okay.
MR. WALSH: Your Honor, may we approach the side bar again?
(Counsel approached the bench, and the following proceedings were had:)
MR. WALSH: Your honor, at this time I’m going to ask for a mistrial based on the repeated references by this witness. I think even just as much damage has been done by the attempt to try to, in open court in front of the jury, restrict him. It’s only put more emphasis in the jury’s mind there are other burglaries, and on that basis I’d ask for a mistrial. THE COURT: Motion for mistrial will be overruled.
(The proceedings returned to open court). THE COURT: Ladies and gentlemen of the jury, you are ordered to disregard any reference to any other burglary except the burglary in this case, being the burglary of the Holschen residence, and that is if any other witness might refer to it. We are only interested in one burglary, and that’s all that the defendant is charged with.

It is well settled that an accused has the right to be tried only for the crime for which he is charged and on trial. Evidence of other crimes which are not logically related to proving guilt for the crime charged should be excluded. Mistrial is, however, a drastic remedy which should be granted only when the incident is so grievous that the prejudicial effect can be removed in no other way. State v. Tatum, 656 S.W.2d 305, 308[4] (Mo.App.1983). When a witness unexpectedly volunteers inadmissible information the action called for rests in the trial courts discretion. State v. Williams, 660 S.W.2d 360, 361[2] (Mo.App.1983). On appeal a reviewing court limits its review to a determination of whether the trial court abused its discretion. State v. Walker, 531 S.W.2d 55, 57[3] (Mo.App.1975).

We note from the record appellant did not request the objectionable testimony be stricken or for the jury to be instructed to disregard it. Despite the failure of appellant’s trial counsel to make such a request the trial court did in fact instruct the jury to disregard any reference “to any other burglary.” Since appellant chose to stand on the harsh and stringent remedy of mistrial rather than requesting other curative action, we cannot say the trial court abused its discretion in assessing the prejudice to appellant and overruling his motion for a mistrial. We hold this allegation of error is without merit.

Appellant’s second point relied on is that the trial court erred in granting the state’s motion in limine to preclude the defense from arguing the absence of fingerprint evidence in that there was evidence that the police searched the victim’s residence for fingerprints and appellant should have been permitted to argue the absence of incriminating fingerprint evidence.

A trial court has broad discretion in controlling closing argument. State v. Wren, 643 S.W.2d 800, 802[3] (Mo.1983); State v. Newlon, 627 S.W.2d 606, 616[12] (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). Unless prejudice to the appellant results, the trial court’s ruling will.not be disturbed. State v. Fuhr, 660 S.W.2d 443, 448[10] (Mo.App.1983).

More than twenty years ago the Supreme Court of this state in State v. Holmes, 389 S.W.2d 30 (Mo.1965), had before it an assignment of error in which the trial court sustained the state’s objection to that portion of defendant’s argument in which he sought to refer to the state’s failure to offer evidence of fingerprints that might have been taken from articles touched inside the premises where the robbery took place by the guilty party. The Court, p. 34, said:

But there is no evidence fingerprints were taken by the police from those articles or from defendant’s fingers for comparison. It was not incumbent upon the state to take defendant’s fingerprints from the articles he touched, or, if taken, produce them in evidence. Nor is the state required to account for their absence. At most the fingerprints would have been merely cumulative.

See also State v. Crespo, 664 S.W.2d 548, 553[15] (Mo.App.1983) and State v. Rutherford, 554 S.W.2d 584, 586[3] (Mo.App.1977).

We hold that the trial court did not err in granting the state’s motion in limine to preclude the defense from arguing the absence of fingerprint evidence and affirm.

DOWD, P.J., and CRANDALL, J., concur.


author: SIMON, Presiding Judge.

text:
    In the Matter of the ESTATE OF Jerome F. TEGELER, Deceased, Helen TEGELER, Appellant, v. The ESTATE OF Jerome F. TEGELER, Deceased, and Guardian ad Litem of Tiffany Tegeler, a Minor, Respondents.
    No. 48158.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 2, 1985.

      Hullverson, Hullverson & Frank, Inc., Thomas C. Hullverson, Philip C. Denton, St. Louis, for appellant.
    Charles M. Carrigan, Willson, Cunningham & McClellan, St. Louis, for respondents.
   SIMON, Presiding Judge.

Appellant Helen Tegeler elected to take against the will of her deceased husband Jerome F. Tegeler over the objection of respondents, the estate of Jerome F. Tegeler and the guardian ad litem of Tiffany Tegeler. Appellant appeals from the judgment of the probate division of the Circuit Court of the City of St. Louis in a bench tried case in which the trial court determined a postnuptial separation agreement between appellant and her husband barred her right of election to take against his will. We affirm.

On appeal, appellant contends that the trial court erred in finding: (1) the post-nuptial separation agreement constituted a valid waiver of her right to take against her husband’s will because husband had not fully disclosed the extent of his assets; (2) her receipt of benefits under the separation agreement for ten years estopped any challenge by her to its validity; and (3) evidence she offered on the value and ownership of certain assets was inadmissible.

On revievy, we determine whether the judgment is supported by substantial evidence and is not against the weight of the evidence, and whether the court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Wife’s first point contends the trial court erred in finding that there had been full disclosure by her husband of his assets to support a valid waiver in the postnuptial separation agreement of her right to take against her husband’s will. Wife does not deny that a disclosure of assets was made, but contends full disclosure did not occur in accord with § 474.220 RSMo 1978. Section 474.220 provides as follows:

Waiver of a right to elect — The right of election of a surviving spouse herein-before given may be waived before or after marriage by a written contract, agreement or waiver signed by the party waiving the right of election, after full disclosure of the nature and extent of the right, if the thing or the promise given to the waiving party is a fair consideration under all the circumstances. This written contract, agreement or waiver may be filed in the same manner as herein-before provided for the filing of an election.

The Missouri Supreme Court in The Estate of Youngblood v. Youngblood, 457 S.W.2d 750, 754 (Mo. banc 1970), states that one of the statutory requisites of a valid waiver of the right to elect is “a full disclosure of the nature and extent of the right being waived; this requires disclosure of the nature and extent of the property interests of the ... spouses, or knowledge equivalent to such disclosure.” No satisfactory rule as to the sufficiency of disclosure or equivalent knowledge can be formulated in concrete terms for this is ordinarily dependent upon the circumstances of the case. Id. at 757. The sufficiency of disclosure is a subjective matter. Id. If the parties stand in a relatively equal bargaining position and the spouse knows or should know facts sufficient to enable him or her to evaluate the agreement, then the contract may be valid even though the provisions for the survivor are grossly disproportionate to the deceased spouse’s means. Id. The ultimate inquiry is whether the surviving spouse against whom enforcement of the agreement is sought has been defrauded or overreached. Id. at 756. So long as the surviving spouse had full knowledge, actual or constructive, of the other’s property and the survivor’s rights therein, the agreement is not invalid merely because the provision for the waiving spouse is less then the survivor would have received in the absence of the provision. Hosmer v. Hosmer, 611 S.W.2d 32, 35[1] (Mo.App.1980). While it may well be preferable to recite in the agreement all property owned by both parties ..., failure to do so is not fatal to an agreement. Roberts v. Estate of Roberts, 664 S.W.2d 634, 637(1] (Mo.App.1984). When an agreement fails to completely itemize the property of the ... spouses, evidence may be received to demonstrate that the parties in fact had knowledge of each other’s property. Id. [2]. Ordinarily, inadequate provision for waiving spouse raises a presumption of fraud and concealment, throwing the burden of proving the absence of fraud and concealment upon the husband or those claiming under him. Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 894(3] (Mo.1931).

Against this legal backdrop, we examine the record on appeal to determine whether there was substantial evidence to support the trial court’s finding that appellant had full knowledge, actual or constructive, of her husband’s property to uphold the validity of her waiver of her right of election to take against the estate. Jerome Tegeler (“husband”) and appellant (“wife”) married in 1947. In 1968 they separated and each obtained separate counsel. Wife’s attorney filed a divorce action in her behalf. Property settlement negotiations were entered into and much correspondence was exchanged between their attorneys. The record indicates this information, admitted as exhibits at trial, included several letters, as well as five pages of financial data listing securities, liabilities and assets concerning husband’s interests in various real property and in Dempsey-Tegeler & Co., Inc., a securities firm in which he was a partner. However, these exhibits are not included in the record on appeal. The separation agreement was executed on October 1, 1970. During the two year period between the separation and the execution of the separation agreement, husband, who had risen from a bonds salesman at a local bank to the head of one of the top ten brokerage firms in the United States, experienced tremendous financial difficulty. Dempsey-Tegeler & Co., Inc., his securities firm, was shut down by the New York Stock Exchange and the Securities Exchange Commission and liquidated in August 1970. Prior to August 1970, the New York Stock Exchange suspended husband from participation in any of the business affairs of Dempsey-Tegeler, and instituted proceedings to bar him from participating in any brokerage business. The Internal Revenue Service asserted claims of over two million dollars against husband for tax deficiencies from 1964 to 1969. In the midst of these financial travails, the first separation agreement proposed by wife’s attorney was reviewed by husband’s counsel who made some changes. The final separation agreement which the parties executed in October 1970 contained seven typewritten pages with an exhibit listing home furnishings attached. The agreement provided that the parties desired to settle all rights to alimony, maintenance and support, all rights to real and personal property, whether jointly or singularly owned and all rights to dower, curtesy, inheritance and any other rights arising by reason of their marriage. The real estate interests listed showed only the marital residence which they agreed to sell; however, wife could reside there with husband paying the mortgage and general maintenance expenses until December 31, 1970, after which wife would be responsible for these expenses. A provision for their interests in personal property did not itemize personalty husband and wife owned. It merely stated wife’s entitlement to any of the furniture or furnishings she desired in the marital residence. It also stated wife “shall be entitled to furniture [specified in attachment] located in an apartment in Palm Beach, Florida,” with no further mention of the Palm Beach apartment. Wife was to keep the ear already in her possession and to assign to her husband the one share of capital stock of Lake Sherwood Groves, Inc. held in her name. No further mention is made in the agreement of Lake Sherwood Groves, Inc. The agreement further provided for husband to pay wife monthly support of $1,500, and also $5,000 annually, until her marriage or death of either one of them. An additional lump sum amount, less certain proceeds from the sale, if any, of their furniture, was to be paid wife. We excerpt the pertinent portions of the separation agreement containing the mutual releases:

5. Acceptance and Release by Wife. Wife acknowledges that the foregoing provisions for her benefit are satisfactory, reasonable and adequate for her support and maintenance, past, present, and future, and in keeping with her accustomed mode of living, reasonable requirements, and station in life.
7. Waiver of Rights to Other’s Estate. Subject to the terms of this Agreement, each party waives, relinquishes and otherwise releases any right, interest or claim to the other’s property, of whatsoever nature, real or personal, that he or she may now or hereafter have or acquire or be entitled to have by reason of the marriage of the parties and each party hereby further relinquishes, releases, and discharges any prospective rights of dower or curtesy and all other rights that he or she may now or hereafter have in and to the property and estate of the other, together with any and all statutory and common law rights that he or she may now or hereafter have ... by reason of the marriage of the parties.
⅜ ‡ sje ⅝ sfs ‡
12. Mutual Release. Each party hereby releases and discharges ... the other of and from all cause or causes of action, claims, rights, or demands whatsoever, in law or in equity, which either of the parties hereto ever had or nor [sic] has against the other, except any and all claims or cause or causes of action for divorce.
13. Knowledge and Consent. Each party acknowledges that he or she is making this Agreement of his or her own free act and will and that there is no coercion, force, pressure, fraud or undue influence involved in the making and execution of this Agreement, either by the other party hereto or by any other person or persons. The parties further declare that each had individual legal counsel of his or her own selection and that the effects of this Agreement, legal, financial and practical, have been fully explained to each of them by his or her own counsel. Each party acknowledges that no representations have been made to induce the signing of this Agreement and that the entire understanding between the parties is incorporated herein.
14. Agreement Binding Hereafter. All covenants, conditions, provisions, stipulations, terms and agreements in this Agreement ... shall forever settle between the parties all rights to and interest in property of whatsoever nature, real and personal, and support, maintenance and other compensation that exists or may hereafter exist by reason of their marriage; ...

The separation agreement made no representation that it constituted a full disclosure of the assets of either husband or wife. No financial statement of either party was attached to the agreement. Both husband and wife signed the agreement. The attorney for husband testified he did not remember any additional circumstances surrounding the signing, such as where the agreement was executed. There was evidence that in the years intervening from husband’s initial financial disclosures in 1968 to the execution of the agreement in 1970 that husband’s investments listed had increased slightly by 1970, but the value of those investments may not have increased. From October 1, 1970, to February 1981, husband paid wife $18,000 annually for support and maintenance. She also received additional payments amounting to $227,810.94.

After 1970, husband’s financial position improved. The value of his interest in various pieces of real estate increased, and he received large sums of money from dividends, sale of various assets and consulting fees. Husband also benefited from large tax refunds and the application of a 3.8 million dollar capital loss carried forward and applied to his tax situation in the late 1970’s. The trial court noted that wife was payee on such refunds based on her joint returns with decedent from 1968 to 1970.

Husband died on March 2, 1981. Although not in evidence before us, husband’s will disposed of an estate with a net value of approximately three million dollars, according to wife’s attorney during oral argument. Wife timely filed her election to take against the will pursuant to § 474.160 RSMo 1978. Respondents filed their motion to strike and set aside the election arguing wife had waived her right of election to take against the will in the separation agreement. After a two day hearing in the probate division of the Circuit Court of the City of St. Louis, the trial court entered lengthy findings of fact and decreed the separation agreement to be valid and constituted a valid waiver by wife of her right of election against husband’s will.

Wife disputes the finding of the trial court that she validly waived her right of election, arguing that husband failed to make full disclosure of the nature and extent of his assets when the separation agreement was entered into. The specific property interests and assets that wife contends were not fully disclosed or disclosed at all prior to and at the time of execution of the postnuptial agreement are: (1) Hobe Groves Associated, Ltd.; (2) Lake Sherwood Groves, Inc.; (3) Lake Side Farms, Inc.; (4) Sonic Development Co. stock; (5) $24,938.54 in cash; (6) capital loss carry forward of approximately 3.8 million dollars and a net operating loss of over one-quarter million dollars ($284,075.00); (7) the Tegeler Foundation; and (8) a Florida condominium. The gist of wife’s argument is that she could not have understood what she was waiving unless she actually knew the net worth of her husband’s property at the time she signed the separation agreement. Where wife has actual or constructive knowledge of husband’s property, his failure to fully disclose the nature and extent of all his property does not invalidate her waiver. The statute requires “full disclosure of the nature and extent of the right” of election, not full disclosure of the nature and extent of the property interests of the spouse. The purpose of the statute is to insure that the wife is able to make an informed and intelligent election and thus prevent fraud and overreaching. Thus, the question is whether there was disclosure of the nature and extent of his property interests or knowledge by wife of facts sufficient to charge her with knowledge. Accord, Youngblood, 457 S.W.2d at 757. The trial court found wife had employed competent counsel to advise her of her rights and further she knew facts sufficient to charge her with knowledge of husband’s means and the extent of his property. The court further found wife need not comprehend every detail of her husband’s business dealings nor that each detail be disclosed to her as long as she had substantial awareness of the extent of his property.

We agree with the trial court’s assessment. By deposition admitted as a trial exhibit, but not before us, wife’s attorney noted he had not examined his file and was not prepared to give detailed answers on questions of disclosure. He did recall that wife knew her husband was having trouble with his firms; knew of negotiations for tax refunds; knew about a penthouse apartment in Florida; and that she was a payee on tax refunds.

Concerning husband’s disclosure of his partnership interest in Hobe Groves, a Florida citrus grove, wife’s attorney received federal and Missouri income tax returns which indicated Hobe Groves to be a non-income producing asset as of 1968. The capital deposits made by husband in Hobe Groves were set forth on the income tax returns filed for 1968 and 1969. While there is some dispute whether the balance sheets for Hobe Groves were made available to wife or her attorney, it is irrefutable that wife and her attorney were aware of the nature and extent of husband’s interest in Hobe Groves. While further investigation of this asset might have shown whether it had substantial value, at least to the extent of husband’s partnership interest, husband’s disclosure was sufficient. The same evidence and conclusion applies concerning husband’s interest in Lake Sherwood Groves, another Florida citrus grove. Husband disclosed the amount of cash he had invested in Lake Sherwood, but assigned no value to it or its net equity value. We see no misrepresentation or overreaching by husband based on the information he disclosed. Wife and her attorney were free to seek additional information to pinpoint husband’s interest in these assets in more detail.

Lake Side Farms, Inc. was reported each year on the parties’ joint income tax returns. The 1968 tax return showed a net income of $190. We agree with the trial court’s conclusion that wife, by signing the tax returns for 1966 through 1973 is charged with the details shown on such returns.

Wife argues husband’s purchase of $5,000 worth of Sonic Development Co. stock and his investment of nearly $25,000 cash in a short term U.S. treasury note were not fully disclosed assets. The only evidence concerning the stock was that 1000 shares were purchased in April 1970 for $5,000. The note was purchased in August 1970 and cashed out the same month. These transactions occurred during the two year period in the negotiation of the separation agreement. The source of these assets was not shown. Husband’s business was the sale and exchange of stocks and bonds. In light of the nature of husband’s business involving the conversion and exchange of assets and stocks on a daily basis, we cannot infer from the absence of a specific disclosure of these two assets that nondisclosure was deliberate or that wife lacked facts sufficient to charge her with constructive knowledge of these assets. While husband’s disclosures were made in 1968, wife’s attorney could have requested a current reassessment of the husband’s respective liabilities and assets up to and including October 1970.

Wife also lists husband’s capital loss carry forward of approximately 3.8 million dollars and a net operating loss of over one-quarter million dollars ($284,-075.00) as items not disclosed to her. Her own expert, however, acknowledged these tax items had no value, unless they could be offset against taxable income. In light of the shaky condition of husband’s financial status in 1970, particularly with the liquidation of husband’s business in 1970, no guarantee existed that husband's future earnings would include sufficient capital gains for any tax benefits to redound to husband. Wife knew of the liquidation of husband’s business and the tax problems. Although wife’s attorney admitted he was unfamiliar with the potentially large financial gain likely to result from the capital loss carried forward and net operating loss, his position does not color our conclusion. In 1970, the future value of these losses was purely speculative.

Wife lists the Tegeler Foundation and a Florida condominium as undisclosed assets of husband. The tax returns for 1966, 1967 and 1968 provided to wife’s attorney reflect husband made contributions to the Tegeler Foundation, a charitable foundation. Consulting fees husband later received from the foundation after the separation agreement had been executed have no relevance. Prior to the separation agreement’s execution, husband had received no benefits to disclose from the foundation. We find wife’s assertion that husband did not fully disclose the Florida condominium without merit in light of the separation agreement which specifically refers to furniture given to wife from the condominium. Wife’s attorney admitted in his deposition he knew about the Florida penthouse. Wife’s knowledge and her attorney’s knowledge of the condominium defeat her claim of nondisclosure of assets by her husband.

The trial court record contains substantial evidence that § 474.220 RSMo 1978 requiring full disclosure of the nature and extent of the right of election was satisfied, in light of the disclosure and wife’s knowledge of the nature and extent of her husband’s property interests. Finding no evidence of fraud or overreaching, we find the agreement to be a valid waiver of her right of election. Therefore, we need not address wife’s other points on appeal.

Judgment affirmed.

STEWART and GAERTNER, JJ., concur.


text:
    Harry KAPLAN, Appellant, v. Marvin GREENBERG and Sandra Greenberg, Respondents.
    No. 48194.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 2, 1985.

      Susman, Schermer, Rimmel & Parker, J. Leonard Schermer, Clayton, for appellant.
    Stephen H. Gilmore, St. Louis, for respondents.
   SIMON, Presiding Judge.

Appellant, Harry Kaplan, appeals from the judgment of the Circuit Court of St. Louis County finding that certain assets he sought to reclaim in an action seeking an injunction and accounting against his daughter and her husband, Sandra and Marvin Greenberg, respondents, rightfully belonged in part to daughter, Sandra. We dismiss the appeal.

Appellant claims exclusive right, title and interest to four assets which are the subject of this action: a Phoenix Money Market Fund valued at $38,812.59, a Dreyfus Fund account of $29,561.96, a St. Louis Federal Savings & Loan passbook account of about $100, and a 1978 Ford automobile. Daughter, Sandra, also claims an interest in these assets. We chronicle the origin of their disagreement.

Appellant and his wife, Rose, married for fifty-three years, had two daughters: Sandra, who lives in St. Louis, and Barbara, in California. Sandra and her parents maintained frequent contact on a weekly basis. Prior to her death in October 1980, Rose, because of her declining health, suggested to appellant that Sandra assist them in financial matters. Sandra’s name was then added to several certificates of deposit which appellant and his wife held jointly. During his lifetime appellant had managed all his family’s financial affairs unassisted and had supported his wife, two daughters, and his mother-in-law as a pharmacist. His wife never worked outside the home. Although appellant alone handled the family’s finances, Sandra’s husband did appellant’s tax returns for the past twenty years.

After his wife’s death, appellant, then seventy-nine years old, agreed Sandra would manage his financial accounts and give him the interest income from them. Under this arrangement he initially received one hundred dollars per month. Finding the amount insufficient, appellant then received two hundred, and eventually three hundred, dollars per month from the accounts managed by Sandra.

In December 1981, appellant decided to remarry. He consulted Sandra about having an antenuptial agreement prepared since she had all the financial documents and papers concerning his investments and savings. He learned that, over the course of the year following his wife’s death, Sandra had changed the names several times on certificates of deposits, and had added her social security number to some. He discovered that all his funds and accounts, including title to his car, were currently held by Sandra and him as joint tenants.

Sandra explained that appellant told her he wanted Sandra’s daughter to have his car; however, she acknowledged that appellant had already given $4,000 to each of her two children to buy cars the year after her mother’s death. She claimed one-half of the money in the funds she held with her father was hers because in the past twenty-five years she had given her mother approximately half of the amount contained in each fund. She had paid her mother $25.00 weekly since she was eighteen years old to be saved, with the interest to be used by her parents in case of an emergency. Sandra’s reason for giving her mother the money, despite evidence of the large sums of money her father had given her and her family, was her desire to avoid arguments with her own husband and family similar to those she had witnessed during her childhood over financial tensions generated by her grandmother’s presence in her parents’ home. She had no receipts or record of these cash payments, merely her word of faithful payment over the years. Appellant had no knowledge of payments by Sandra to her mother. Sandra knew her father’s will provided his estate be equally divided between Sandra and her sister. She also knew that by having her father’s accounts in joint names with her, she would be the sole recipient of these assets upon his death.

Based on the foregoing, the trial court found that appellant and Sandra were both credible witnesses, that Sandra had contributed $25.00 per week to her mother from the time of her high school graduation until her mother’s death, that these funds had been kept in joint names with Sandra and her parents to provide for the independence of her mother if needed, and that these funds were currently held in a Phoenix Money Market account and a Dreyfus Fund in the joint names of appellant and Sandra. The trial court also made the following findings:

7. That one-half of the aforesaid monies on deposit at Phoenix Money Market Account and Dreyfus Fund are the property of the defendant, Sandra Greenberg and that the interest earned on said accounts shall be for the benefit of Plaintiff, Harry Kaplan, and that said income on said accounts shall be paid by Sandra Greenberg directly to the Plaintiff, Harry Kaplan, during his lifetime for his sole benefit and use.
8. That one-half of the corpus of the said funds with Phoenix Money Market Account and Dreyfus Fund are the sole and exclusive property of the Defendant, Sandra Greenberg, but the income from the same is to be used for the benefit of Harry Kaplan during his lifetime, and Sandra Greenberg shall not invade the corpus of the funds during the lifetime of Harry Kaplan.
9. That upon the death of Sandra Greenberg, in the event that she predeceases Harry Kaplan, the aforesaid funds shall remain exclusively in her estate until the death of Harry Kaplan and during that period of time the interest on said funds shall be the property of Harry Kaplan until his death.

Based on these findings, the trial court concluded that one-half of the corpus of the funds of the Phoenix Money Market account and of the Dreyfus Fund is to be the sole property of Sandra, that Sandra is not to invade the corpus of the two funds and is to pay the entire interest income on these funds to her father and that, should she predecease her father, he would be entitled to the income from these funds, payable through her estate. The court order was silent about the St. Louis Federal Savings & Loan passbook account and title to the 1978 Ford automobile.

Although the issue was not raised by the parties, it is our duty to determine, sua sponte, if there is a final judgment, since our jurisdiction is dependent upon judgment finality. The judgment must dispose of all the issues raised. Section 512.-020 RSMo 1978. A final appealable judgment is one that disposes of all issues and all parties in the case and leaves nothing for future determination. Erickson v. Lockhart, 639 S.W.2d 418, 419[3] (Mo.App.1982); Busch v. Busch, 618 S.W.2d 244, 245 (Mo.App.1981); City of New Madrid v. Associated Electric Cooperative, 582 S.W.2d 727, 729[1] (Mo.App.1979). Thus, in this action, the judgment must put to rest the disposition of the assets involved. We are concerned with the trial court’s order because it fails to specify the disposition of the other half of the corpus of the Dreyfus and Phoenix Money Market accounts, as well as the disposition of the St. Louis Federal Savings & Loan passbook account and the 1978 Ford automobile.

Both parties assert in post-argument briefs furnished at our request that the order is final. Appellant states the trial court, by not mentioning the other half of the corpus of the funds, has effectively decreed that this unmentioned half of the funds remains in joint names with right of survivorship and that the car also remains in joint names with right of survivorship. Appellant adds that the monies on deposit at St. Louis Federal Savings & Loan, according to a stipulation and agreement filed by the parties in lieu of a preliminary injunction, have been depleted by appellant who has withdrawn three hundred dollars monthly from the account, so the stipulation remains intact as the operative disposition of these monies. Likewise, he notes that the parties have considered the stipulation dispositive of the automobile. Under the stipulation, appellant regained physical possession of the Ford automobile and its title; however, Sandra has not withdrawn her name from the title, so it remains in joint names. Appellant adds a finding that the trial court order lacks finality would merely delay appellant’s recourse to our court for redress of the wrongful decision concerning the Phoenix and Dreyfus accounts.

Respondent, Sandra, argues the judgment is final because: (1) appellant abandoned the issues of the car and passbook account by not including them in the argument of his brief; and (2) the disposition of the Phoenix and Dreyfus accounts do not depend in any respect on the final disposition of the car or passbook.

Neither appellant nor respondent has persuaded us that the judgment of the trial court operates as a final judgment. By not identifying the passbook account and car as belonging to either appellant or Sandra and by providing that one-half of the corpus of the Phoenix and Dreyfus accounts to be the sole and exclusive property of Sandra without delineating the ownership of the remaining half, the trial court failed to finally resolve the issues raised by the pleadings and has not rendered a final judgment. Further, the trial court, in its finding # 9, has apparently severed the joint tenancy, but in any event, its finding is confusing and should be clarified. Specific clarification of the ownership interest of each party in each asset is required.

Therefore, we are constrained to dismiss the appeal.

STEWART and STEPHAN, JJ., concur.


author: PER CURIAM.

text:
    Clark V. RICHART, Plaintiff-Appellant, v. Kathleen M. RICHART, Defendant-Respondent.
    No. 48564.
    Missouri Court of Appeals, Eastern District, Division One.
    April 2, 1985.
    Darrill S. Beebe, St. Charles, for plaintiff-appellant.
    Richard H. Edwards, Clayton, for defendant-respondent.
   ORDER

PER CURIAM.

This is an appeal from an order by the circuit court holding appellant in civil contempt and ordering him to sell certain real estate he claimed as a homestead.

A civil contempt order is not a final judgment for purposes of appeal until the court’s order is enforced by actual incarceration of the contemnor. Since the contempt order has not been enforced, appellant’s appeal is dismissed as premature.


author: BERREY, Judge.

text:
    CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY, Appellant-Respondent, v. BARCLAY-MOORE COMPANY, Respondent-Appellant.
    No. WD 35826.
    Missouri Court of Appeals, Western District.
    April 2, 1985.
    Robert M. Beachy, K.C., for respondent-appellant.
    Kenneth E. Bigus, K.C., for appellant-respondent.
    Before LOWENSTEIN, P.J., NUGENT and BERREY, JJ.
   BERREY, Judge.

Chicago & Northwestern Transportation Company, appellant-respondent (hereinafter plaintiff or CNW) appeals from a jury verdict of $1,250.00 actual damages and $1,250.00 punitive damages in an action for conversion against respondent-appellant Barclay-Moore Company (hereinafter defendant). Defendant cross-appeals claiming instructional error.

The jury awarded defendant $5,150.60 and interest of nine percent from January 30, 1982, on defendant’s counterclaim on contract, and this judgment was not appealed.

The defendant is a drayage company located in Kansas City. It moves trailers to and from various locations in the Kansas City area. CNW is a railroad serving the metropolitan Kansas City area. In the process of freight movement, truck trailers are often utilized. Such trailers are placed on flatbed railroad cars and shipped about the country. CNW is responsible for all of the trailers shipped over its line.

Wardex, a division of Montgomery Ward, was a major user of CNW trailers. During 1980 and 1981 Wardex engaged the defendant to move inbound and outbound trailer loads between CNW rail yards and the Wardex truck terminal. For this service Wardex paid the defendant. In addition, the defendant would use CNW trailers to make pickups at Rival Manufacturing Company for delivery to Wardex. Occasionally defendant took empty CNW trailers to other manufacturers in the Kansas City area. Defendant also made pickups from Nelson Manufacturing Company, Mercury Marine and others for delivery to Wardex. Defendant was paid for these moves but did not pay CNW for the use of the trailer.

The defendant ramped and de-ramped all CNW trailers in Kansas City and CNW paid defendant for this service. The defendant also supplied the manpower for loading and unloading the trailer contents and was paid for this service. In 1980 the defendant pulled approximately 500 trailers that were actually hauled on the CNW and the plaintiff is making a claim for payment of forty-nine of them.

The defendant performed other services for CNW. It billed CNW for the services and was not paid. Those services included loading cabooses on flatbeds for shipment to Chicago; repairing bridge plates on flatcars; and ramping and de-ramping trailers. The jury returned its verdict on this claim and it was not appealed.

Plaintiff alleges three points of trial court error. The first two points concern the court’s error in refusing to admit exhibits 17 and 18. Under Point I, the plaintiff claims the exhibits were relevant business records and admissible under § 490.080, RSMo. Alternatively, under Point II, plaintiff claims the exhibits constituted summaries of other voluminous records already in evidence and, therefore, should have been admitted into evidence. Point III concerns the trial court’s error in refusing to allow testimony on the amount of 1981 damages which was calculated from voluminous books and records where they were not personally prepared, but supervised by the witness.

The evidence, among other things, consisted of voluminous documents from which certain re-caps were made. The trial court ruled that the CNW could not introduce evidence regarding the 1981 trailer movements because the summaries and damage computation for 1981 failed to qualify as a business record. John Canty, manager of Intermodal Operations for CNW testified that he prepared a summary for the 1980 trailer movements, plaintiff’s exhibit 13. Exhibit 13 is a compilation of CNW’s daily lot check records showing the status of trailers on a daily basis. He used the intermodal terminal control record, exhibit 7, and the summary statements and information from the “lot checks,” exhibits 3, 4, 5, and 6. Canty also used Wardex’s summary, exhibit 12, Wardex’s receiving registers, exhibits 8, 9, 10, and 11, the summary lot check record exhibit and the tariff, exhibit 15, as aids in arriving at his final computations. Canty reviewed “supplemental records received from Wardex.” Canty testified from exhibit 13, the 1980 trailer movements. His assistant, “the auditor, intermodal services,” under his direction, and using exhibit 13 as an example, prepared exhibit 17, the 1981 recap of trailer movements. Canty acknowledged that his duties included audits and preparation of summary sheets. The court admitted exhibit 13, the 1980 recap, but denied plaintiff’s valiant effort to admit exhibit 17, the 1981 recap.

Robert Merrigan, Chief Clerk for CNW testified he had been employed by CNW for thirty-five years. For the past twenty years his duties included, “supervision of office personnel, handle trailers, handle diversions, mechanical detentions, grain operations ... .” Merrigan handled all documents relating to inbound and outbound trailers. In order to account for the trailers a “lot check” is used. He or another employee would check the lot every morning and record the number of loaded and empty trailers in the lot in an intermodal registration book. Merrigan identified the date and lot check records as plaintiff’s exhibits 3, 4, 5, and 6. Exhibit 3 contained daily lot checks from June 1,1979, through February 7, 1980. Exhibit 4 contained the lot checks from February 8,1980; exhibit 5 from November 1, 1980, through August, 1981; exhibit 6, September 1981, through December 11, 1981. Plaintiff’s exhibit 7 is the intermodal terminal control record, a large and heavy book containing records of inbound and outbound trailers covering both 1980 and 1981.

William R. Hovey, Area Transportation Manager for Montgomery Ward identified exhibit 8 through 11 as inbound pro registers showing arrival of merchandise to be worked.

Miss Yarnal, employed by Montgomery Ward, explained her role in this documentary quagmire as being the preparer of exhibit 12, the recap of exhibits 8, 9, 10, and 11. She testified that exhibits 8, 9, 10, and 11 “show the date, the truck line, the trailer, the source name, prices and weight and our pro [number] and each one has got a different pro number applied a different pro number to each shipment.” Exhibit 12, the recap, deals only with trailers handled by the defendant and it shows the trailer used to bring in the merchandise, the number, the date, the source or the people that shipped them, the merchandise, the piece count, the weight and the freight bill charge.

Next, CNW attempted to place in evidence exhibits 14 and 18 as being a summary of exhibits 3, 4, 5, 6 and 7, Wardex’s summary statements and Wardex’s pro registers. These exhibits were offered to prove CNW’s damages. Exhibit 14 was the document upon which CNW relied to base its 1980 claim against defendant. It was prepared by Canty and was received in evidence.

The court refused to admit plaintiff’s exhibit 18 into evidence. This exhibit would bear on the amount of damages claimed by CNW in 1981. The court held there was no foundation for Mr. Canty to testify regarding the 1981 charges.

The court denied CNW’s request for time to produce, from Chicago, the assistant Larry Krivak who prepared exhibits 17 and 18.

The underlying evidence from which exhibits 17 and 18 were prepared was in evidence. CNW employee, Canty, was familiar with the preparation of exhibits 17 and 18; they were prepared under his direction, with his assistance, by his assistant. The trial court erred in not receiving exhibits 17 and 18 since all of the voluminous documents which went to the makeup of the exhibits were in court and in evidence.

The court notes in State v. Davis, 302 S.W.2d 892, 896-97 (Mo.1957):

In the case at bar it may be assumed that the auditor {and his staff) was expert ... [emphasis added].
Assuming the voluminous records, books and other papers which the auditor had examined in making up the report were available to defendants for their examination and for their use in cross-examination of plaintiff’s witnesses during the trial, it would seem the report was admissible and was evidence for the jury’s consideration and appraisal as to its verity and value in tending to show the facts and figures, pertinent to the issues, which it purportedly reported.

Thompson v. Arthur L. Hardin Associates, 219 S.W.2d 860, 864 (Mo.App.1949), holds the use of summaries by the preparer is the only practical way for the jury to be properly advised of the contents of the voluminous records. Defendant contends that since Canty did not personally prepare exhibits 17 and 18, the exhibits are not admissible. However, State v. Davis refers to records prepared by the auditor and his staff. Here the underlying records were in evidence, and, Canty and his staff prepared exhibits 13 and 14 and 17 and 18. State v. Davis, supra, at 897.

An annual record was prepared in Chenoweth-Chapman Corp. v. American Ins. Co., 553 S.W.2d 872, 873 (Mo.App.1977), and its summary was received, when offered by the company’s president despite the fact that the preparer was deceased and no witness testified they observed decedent making the recap.

When the competency of the underlying records has been established and they are made available to the opposite party for cross-examination, the summary prepared by an expert of voluminous records is admissible. State v. Cone, 338 S.W.2d 22, 26 (Mo.1960). As this court affirms plaintiffs Point II, a discussion of Point I is unnecessary.

Plaintiff further alleges the trial court erred in not permitting Mr. Canty to testify as to 1981 damages. The keystone of this argument is whether Canty may testify as to exhibits 17 and 18 which were prepared by another, albeit, under his direct supervision and control. In the instant case exhibits 17 and 18 were prepared by Larry Krivak, Canty’s assistant and were perused by Canty who testified he was thoroughly familiar with their contents. Canty had instructed Krivak on how to prepare them, which documents to use, and had interjected himself, from time to time, in the preparation of the exhibits.

“Where records or accounts are lengthy and complicated and the original records are in the courtroom, an accountant or auditor may testify as to summaries of the pertinent items which he has prepared.” Bolling Company v. Barrington Company, 398 S.W.2d 28, 31 (Mo.App.1965).

The rule with regards to use of recaps from voluminous records is found in 4 WIGMORE, EVIDENCE § 1230 (Chad-bourn rev. 1972) and is quoted in full below:

Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements [emphasis in original] — as, the net balance resulting from a year’s vouchers of a treasurer or a year’s accounts in a bank ledger — it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net result. Such a practice is well established to be proper.
Most courts require, as a condition, that the mass thus summarily testified to shall, if the occasion seems to require it, be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection if desired, or that the material for cross-examination may be available:

(Emphasis added.) Canty should have been permitted to testify as to damages from exhibit 18. The trial court erred in its refusal.

This court has reviewed the points raised by defendant in its cross-appeal and since the case is reversed on other grounds, find it unnecessary to address their arguments.

This judgment is reversed and the cause is remanded for a new trial.

All concur.

      . The defendant put the trailers on the flatbed rail cars and removed them therefrom.

      . Intermodal means the use of trailers in flatcars in lieu of normal boxcar service.

      . Each shipment received its own pro number as an aid in tracing the shipment.


text:
    CREDIT CARD CORPORATION, et al., Appellants, v. JACKSON COUNTY WATER COMPANY, et al., Respondents.
    No. WD 35871.
    Missouri Court of Appeals, Western District.
    April 2, 1985.
    Leo M. Mullen, M.D., Pro Se.

      John R. O’Malley, Grandview, for respon- ■ dents.
    Before TURNAGE, C.J., SOMERVILLE, and MANFORD, JJ.
   PER CURIAM.

Credit Card Corporation and Leo M. Mullen appeal from a judgment in their favor for $1,380. Appellants contend that the judgment should be set aside in that it was entered after a trial at which appellants were not present and of which they were given no notice.

The judgment is reversed and remanded as to Mullen. The appeal is dismissed as to Credit Card Corporation.

Appellants filed suit against Jackson County Water Company and its officers exercising their rights as dissenting stockholders of ten shares of Class B stock in the Jackson County Water Company. They alleged that they were entitled to the fair market value of their stock as of the day prior to the date on which the vote was taken authorizing the sale of the company to the city of Belton. They asserted that the “reasonable value of said shares of stock owned by plaintiffs is believed to be $50,000.” Respondents filed an answer basically denying all of appellants’ allegations. By court order, the cause was set for trial on the non-jury docket for the week of March 19, 1984.

On January 28, appellants filed a motion to set aside the decision of the court regarding a non jury trial, and requested a jury trial and a change of judge. Nothing further was done on the motion. On March 14, respondents entered an appearance and filed a confession of judgment. They admitted that appellants were the owners of ten shares of Class B stock and were entitled to the $1,380, the fair market value of their stock as of the day prior to the stockholder meeting. The court entered a judgment in favor of appellants for this amount.

On March 19, the case was called on the non-jury docket. Both appellants and respondents were present. The motion of appellants for change of judge and for jury trial was called to the attention of the court. Respondent’s attorney, having recently entered an appearance, had not seen this motion. The motion was granted, and since the court had been unaware of the motion, the order of March 14 allowing a confession of judgment was set aside. The court ordered the file transferred to the Presiding Judge for reassignment.

At this point, appellant Mullen left. The file was then delivered to the Presiding Judge who immediately reassigned the case. As soon as the case was transferred to Judge Mauer, respondents appeared and requested that the matter be immediately tried. Wherein the following took place:

Court: This will be in the matter of Credit Card Corporation, et al. vs. Jackson County Water Company, et al., CV83-1691. Let the record show that the plaintiffs make no appearance either in person or by attorney; that the defendants Jackson County Water Company, lia Rea Flanery and James D. Crabtree appear through attorney, Mr. John R. O’Malley. The record should further reflect that the matter came on for regular hearing in Division 3. That the judge of Division 3, after it being called to his attention that the plaintiffs had filed a request for a change of judge in January, transferred this case to the Presiding Judge for reassignment to another division for trial on this date.
Let the record further show that I am advised by Mr. O’Malley that the plaintiff appeared in Division 3 in the personage of Dr. Leo M. Mullen. That Dr. Mullen was advised that this matter would be transferred to another division for trial today. Is that correct, Mr. O’Malley?
Mr. O’Malley: Your Honor, he was told in Division 3 that it would be transferred. He did not stick around for it to go across the hall to the Presiding Judge. He left before it went there.
Court: But was he told that it would be tried today?
Mr. O’Malley: Well, he was told — I asked Judge McKelvey that it would be certified forthwith and he said it would be. I don’t know that the words “it would be tried today” were used but it was certainly — in fact Judge McKelvey even asked where I was going to be, if I was going to wait out in the hall for the file. So I don’t believe anyone could have misunderstood that it was to be handled immediately.

The respondents then presented their evidence, and the court entered a judgment on the evidence in favor of appellants for $1,380. On March 28, appellants filed a motion to have the judgment set aside. Appellants asserted that the case was reassigned without any notification to appellants. Appellants asserted that they were denied their right to a jury trial, and that they were entitled to be notified prior to trial and this was not done. Appellants’ motion was denied. On appeal, appellants act pro se. Appellant Mullen purports to represent both himself and Credit Card Corporation.

As to appellant, Credit Card Corporation, the appeal is dismissed. The record reveals that when this action commenced, both Mullen and Credit Card Corporation were represented by legal counsel. Apparently, counsel became incapable of continued representation and Mullen proceeded to handle the matter. Mullen is the major stock holder of Credit Card Corporation. Subsequent to the proceedings in the trial court, Credit Card Corporation was without legal counsel.

While Mullen can represent himself on appeal, he cannot, even on a single occasion, represent another, whether for consideration or not, and this includes Credit Card Corporation. It also has been held that corporations cannot appear in legal proceedings, except by an attorney. Liberty Mutual Insurance Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945 (1939), Dobbs Houses, Inc. v. Brooks, 641 S.W.2d 441 (Mo.App.1982).

The failure of Credit Card Corporation to have been represented by counsel and the failure to have complied with our Rules 84.04-84.07 means that in effect no brief was filed on behalf of the corporation and requires the appeal of Credit Card Corporation be dismissed. Rule 84.08. Ward v. Johnson, 480 S.W.2d 104 (Mo.App.1972).

This appeal is decided only as to appellant Leo Mullen.

Mullen’s sole point on appeal is that the trial court erred in not setting aside the judgment in his favor for $1,380 in that Mullen was entitled to notice of the trial of his cause which he was not given. A motion to set aside judgment is the proper remedy to set aside a judgment when an irregularity is patent on the face of the record. Rule 74.32; Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App.1973); Rubbelke v. Aebli, 340 S.W.2d 747 (Mo.1960). An irregularity for which judgment may be set aside is want of adherence to some prescribed rule or mode of procedure, consisting either in omitting to do something that is necessary to do and orderly conduct of a suit, or doing it at an unreasonable time or in an unreasonable manner. Walsh v. Walsh, 652 S.W.2d 274 (Mo.App.1983). There is little room for discretionary action of a court when it is considering an irregularity on the face of the record. Murray v. United Zinc Smelting Corp., 263 S.W.2d 351 (Mo.1954).

In disposing of this appeal, two questions must be decided. First, did Mullen have notice of the trial in the instant case; and second, if not, was failure to give notice an irregularity requiring the judgment to be set aside?

After reviewing the entire record in this case, it is concluded that appellants did not have notice of the trial. Respondents do not argue otherwise. Therefore, the second question is taken up. Were appellants entitled to notification before the trial took place in their absence? In Walsh v. Walsh, supra, the court stated that failure to give notice of the trial setting is a procedural defect that may merit relief under Rule 74.32 allowing a judgment to be set aside for irregularity on the face of the instrument. The court stated that notice must be given either by adverse counsel, the court, or by some court rule providing that at specific times cases will be heard; the record should establish that the parties have been provided notice of the trial setting or that the address of a party is unknown and the party cannot be notified. The court in Walsh, however, went on to affirm the judgment holding that the trial court’s denial of defendant’s motion did not constitute an abuse of discretion in that defendant neglected to look after the course of the proceedings in his case. Other eases have likewise held that a party has a duty to keep abreast of the proceedings in his case and that if he is negligent in doing so, he is not entitled to relief. See also Harriman v. Household Finance Corporation, 608 S.W.2d 117 (Mo.App.1980), where appellant became aware of fact he had been sued and that an an action was pending against him but did not consult counsel, or expend any effort to ascertain the nature of the litigation, or ascertain what steps subsequent to the filing of the petition were being taken, and a default judgment was rendered against him, the court found defendant negligent and denied relief. In Owens v. Vesely, 620 S.W.2d 430 (Mo.App.1981), where appellant’s attorney withdrew eight months prior to the trial, and appellant took no action to hire a new one or ascertain the status of her case or the trial date, and where respondents attempted to give notice to appellant but did not have her new address, the court found appellant negligent and denied her relief from the default judgment. In Walsh v. Walsh, supra, the court likewise found appellant neglected to look after the course of proceedings in his case and denied relief. In Walsh, the case had been set for trial four times prior to the appellant attorney’s withdrawal. The case was set for trial thirty days later. Appellant made no effort to ascertain the trial date. The court stated that a diligent party could have learned of the trial setting from the record in time to defend. The court in Walsh, also noted that after the default, no action was taken by appellant for ten months.

However, the instant case is distinguishable. This is not a case where appellants failed to keep abreast of what was going on in this case. This is not a case where they sat back and did nothing. The record clearly establishes active participation in the course of the proceedings. Mullen was present on the morning of March 19 when the case was called on the non-jury docket. Mullen made known to the court his motion for a jury trial and change of judge which had been filed in January and which the court had never ruled upon. The court sustained the motion and ordered the cause transferred to the Presiding Judge for reassignment. The order said nothing indicating the case was to be tried that day. Nor did the judge say anything to Mullen that would indicate to him he should stick around because his cause could be tried that afternoon. Mullen’s request for a jury trial was still pending.

The record shows that it was after the case was transferred to the new judge that the respondents’ appeared and asked for a trial. This, of course, was after Mullen left the courtroom. Yet the respondents had been with Mullen that very morning and apparently said nothing about their intention.

This is not a case where Mullen’s address was unknown or Mullen could not be contacted. However, no effort whatsoever was made by either the court or respondent to notify Mullen of the trial.

In short, we have here plaintiffs who filed suit and clearly wanted a trial as to their claim. The proceedings in the case were followed and Mullen was there the morning the case was called on the docket. The failure of Mullen to remain until his case was transferred and reassigned did riot rise to a level of neglect such as to justify the extreme sanction of holding a trial in his absence without any notification whatsoever, particularly since Mullen was given no indication his case was to be tried that afternoon. It is ruled that Mullen should have been given notice under the circumstances.

Respondents’ argument to the contrary is without merit. Respondents argue that this is a case of confession of judgment, and, therefore, the proceeding could be ex parte and no notice was required. Respondents cite Fritzsche v. East Texas Motor Freight Lines, 405 S.W.2d 541 (Mo.App.1966), in support of their argument. This is not a case of confession of judgment. The idea behind a confession of judgment is that the defendants admit to all of the allegations of plaintiffs petition. Therefore, since there is no issue left to try and since plaintiff is getting everything he asks for no notice is required. Fritzche at 545. However, in the instant case, Mullen claimed in his petition that he was entitled to the fair market value of his ten shares of stock which he believed was worth around $50,000. Respondents admitted Mullen owned ten shares of stock but stated the fair market value of the stock was $1,380. Mullen was entitled to a trial to resolve that issue.

The appeal by Credit Card Corporation is dismissed. The judgment, as applied to appellant Leo M. Mullen, is reversed and the cause remanded.