author: CLEMENS, Senior Judge.

text:
    Kerry CALDWELL, Appellant, v. STATE of Missouri, Respondent.
    No. 48334.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 9, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    James S. McKay, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

After hearing movant’s testimony in support of his Rule 27.26 motion the court denied it and movant, hereafter “defendant”, appeals.

Defendant had previously pled guilty to robbery and stealing and was sentenced to concurrent ten and two year terms in prison, these to begin when he had completed a prior five year prison sentence.

Defendant now contends his guilty pleas were involuntary because his counsel had failed fo investigate and endorse known alibi witnesses.

On this motion defendant was his only witness. He did not call the now challenged trial counsel. Nor does he include his testimony at his pre-trial motion to suppress identification wherein he had allegedly testified he had gotten into the robbery victim’s car.

At his guilty plea hearing defendant testified in detail he was fully aware of his legal rights, and specifically admitted: He was satisfied with his counsel, the prosecutor’s summary of the state’s expected testimony was correct, and he was guilty of both stealing and armed robbery.

At his Rule 27.26 hearing defendant testified his trial counsel had failed to endorse and call known alibi witnesses of whom he had told counsel.

In denying defendant’s motion the court found as facts that when pleading guilty defendant had said he was satisfied with his counsel, had no defense to the two charges and that the two suggested defense witnesses were in prison. The motion court concluded there was no evidence there were any credible alibi witnesses, and that defendant had knowingly and voluntarily pled guilty.

In support of his claim of ineffective counsel defendant cites a series of cases, ending with Mullen v. State, 638 S.W.2d 304 (Mo.App.1982). Each differs in that an evidentiary hearing had been denied and was remanded for hearing. Here defendant has had a motion hearing, so those cases are not in point.

Under Rule 27.26 our review is limited to whether defendant met his burden of showing the denial of his motion was clearly erroneous. State v. Smith, 628 S.W.2d 393[1,2] (Mo.App.1982). The motion court had the right to reject defendant’s testimony, as it did, even though no contrary testimony had been offered. Cherry v. State, 660 S.W.2d 361[7] (Mo.App.1983).

Considering the motion court’s findings, detailed above, we conclude defendant’s trial counsel was competent and that defendant had voluntarily and knowingly pleaded guilty.

Affirmed.

REINHARD, C.J., and CRIST, J., concur.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Shirley M. SCHLOSS, Respondent, v. Melvin E. SCHLOSS, Appellant.
    No. 47651.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 16, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Theodore F. Schwartz, Howard Schainker, Stanford J. Carp, Clayton, for appellant.
    Nancy S. Everett, Clayton, for respondent.
   CRIST, Judge.

This is an appeal from a consolidated action for judgment of maintenance due and owing, wage assignment to cover all arrearages and future obligations, and an order of contempt against appellant (husband) of the circuit court order of February 5, 1974, granting a decree of dissolution.

The trial court granted summary judgment for past due maintenance with interest, ordered husband to execute an assignment of income, and adjudged husband guilty of contempt in failing to comply with the dissolution decree. We affirm.

On February 5,1974, a dissolution decree was granted. The decree ordered husband and wife to perform the terms of their separation agreement, which was made a part of the decree. The separation agreement provided for the payment by husband of $800 per month as and for contractual maintenance until wife remarried. It also required husband to keep in force a life insurance policy and health insurance policy in favor of wife for as long as wife remains unmarried.

In July, 1979, husband stopped payment of maintenance to wife and stopped maintaining health and life insurance for her benefit. Wife testified she shared a residence with an unrelated, adult male, along with other adults, during the preceding six years. She had nonexclusive social and sexual relations with the male. She was not supported in any way by the male and did not perform household duties for him. She owned real estate with the male under written partnership agreements. The trial court found wife did not in fact cohabit or reside as husband and wife with any unrelated adult male.

Husband asserts wife cannot bring an action on the judgment because maintenance provision was contractual and not decretal. However, the parties did not expressly agree that maintenance terms were not to be incorporated into the decree. Section 452.325 RSMo 1978. Therefore, husband’s maintenance obligation is an enforceable part of the decree. Bryson v. Bryson, 624 S.W.2d 92, 95 (Mo.App.1981).

Husband asserts that wife’s 6½ year cohabitation with another man relieves him of his financial obligations to her. The separation agreement provided for $800 per month maintenance, unmodifiable until wife remarried. Wife did not remarry. Section 452.325(6) RSMo 1978, and see Sections 452.370 and 452.075.

Finally, husband proffers error in the court’s ordering a wage assignment pursuant to § 452.350 RSMo 1976. Husband asserts this order (1) was contrary to the express agreement of the parties, modifying the contractual maintenance provision of the separation agreement; (2) subjected husband to increased pecuniary punishment to which he was not previously subjected under the Separation Agreement and under § 432.030 RSMo 1969, which prohibits the assignment of future wages; and (3) violated his constitutional rights.

Section 452.350 merely prompts timely payment of maintenance. It is meant as a means of enforcement. The statute has been held to be a valid exception to Section 432.030. Brinley v. Karnes, 595 S.W.2d 465 (Mo.App.1980). Section 452.350 is a tool for collection of maintenance in keeping with the dictates of Bryson, supra.

Judgment affirmed.

REINHARD, C.J., and KAROHL, J., concur.


text:
    STATE of Missouri, Respondent, v. Ronnie Thomas KRAUSE, Appellant.
    No. 47935.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 16, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Donald K. Gerard, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Deborah Neff, Jefferson City, for respondent.
   CRIST, Judge.

Appeal from jury convictions for first degree burglary, felonious restraint, and armed criminal action. Defendant received sentences of 15 years for burglary, 7 years for felonious restraint, and 5 years for armed criminal action. The sentences were to be served consecutively. We affirm the conviction for felonious restraint, and reverse the convictions for burglary and armed criminal action, and remand for a new trial.

The victim responded to a knock on his door and was confronted by Stanley (Rebel) Lafave, who inquired as to whether Cheryl Drake, victim’s roommate and defendant’s ex-wife, was home. Victim told Rebel she was at work, and Rebel asked victim to call her. As victim turned to go to the phone, two men, Michael Wilson and defendant, also came to the door. Victim testified the three men “just barged in” after he had asked Rebel to wait outside.

Once inside, the three men revealed they were armed with a pistol, a shotgun, and a tire billy. Victim, on the orders of the men, telephoned Drake who was ordered to come home within fifteen minutes or they would shoot victim’s brains out. They accused victim and Drake of burglarizing defendant’s home twice, and ransacked victim's apartment looking for items on a list defendant had. Several pieces of property were placed in a basket. Defendant also hit victim on the side of the head with the butt of the shotgun, resulting in lacerations requiring eleven or twelve stitches.

Drake called the police, who arrived and staked out the scene. Wilson exited first, leaving to buy a six-pack of beer. He was arrested. Rebel left through the back door, and was later arrested. A hostage negotiator then called the apartment, and arranged victim’s release, and defendant’s surrender.

Defendant was charged with knowingly entering victim’s home when victim was present, for the purpose of stealing, under § 569.160.1(3), RSMo 1978. The verdict director on this count, MAI-CR2d 23.50, as modified, omitted the word knowingly. Defendant asserts this was error, and the state agrees, claiming only that the error was not prejudicial.

A verdict directing instruction “must contain each element of the offense charged,” State v. Rodgers, 641 S.W.2d 83, 84-85 (Mo. banc 1982), and “must require the jury to find every fact necessary to constitute the essential elements of the offense charged.” State v. Pickins, 660 S.W.2d 705, 707 (Mo.App.1983). Knowledge is an essential element of burglary, State v. Chandler, 635 S.W.2d 338, 339, 342 (Mo. banc 1982). An element of the offense was not contained in the verdict directing instruction. Since the jury could not find defendant guilty of armed criminal action without finding him guilty of burglary, the sentence and conviction for armed criminal action must also be reversed and remanded for a new trial.

Defendant has not attacked his conviction for felonious restraint; therefore, that sentence and conviction is affirmed. The sentences and convictions for burglary first degree and armed criminal action are reversed and remanded for a new trial.

REINHARD, C.J., and KAROHL, J., concur.


author: TURNAGE, Chief Judge.

text:
    M.S. CONWAY CONSTRUCTION CO., INC., Plaintiff-Respondent, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    No. WD 34894.
    Missouri Court of Appeals, Western District.
    Oct. 16, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      William E. Simmons, Kent T. Perry, Wagner, Leek & Mullins, Kansas City, for defendant-appellant.
    Dennis J.C. Owens, Gary McMillan, Raymond, Raymond & Owens, Kansas City, for plaintiff-respondent.
    Before TURNAGE, C.J., and SOMER-VILLE and MANFORD, JJ.
   TURNAGE, Chief Judge.

Prudential Insurance Company appeals from the refusal of the trial court to set aside a default judgment entered against it. M.S. Conway Construction Company appeals from the judgment entered in its favor on the ground that the court erroneously awarded only the statutory nine per cent rate of interest from the date of judgment, rather than the parties’ contractual rate of interest. Affirmed.

Conway filed suit against Prudential in January of 1983 in which it sought to recover the contract price plus interest for repair work it performed on a shopping center parking lot owned by Prudential. On January 7, 1983, Conway obtained service pursuant to law on the Superintendent of Insurance for the State of Missouri. The summons and petition were mailed to Prudential’s home office in New Jersey, and by that office forwarded to its Chicago regional office. Prudential did not file responsive pleadings and was thus in default on February 7, 1983.

On February 11, 1983, Conway moved for a default judgment and hearing, and on February 23, the court conducted a hearing and entered judgment awarding Conway $41,226.84, together with interest on the judgment at nine per cent per annum.

On March 2, 1983, Prudential moved to set aside the default judgment, pleading that its default was a result of excusable neglect, that it had a meritorious defense to the suit, and that Conway would not be injured if the court sustained the motion. On April 1, 1983, the court held a hearing on the motion to set aside and Prudential presented only the testimony of its associate regional counsel for real estate. Counsel testified he received the summons and petition at his Chicago office and then placed the papers in his briefcase because he was leaving that day to discuss other business in Kansas City. Counsel stated that he met with local counsel in Kansas City and discussed various legal matters with him. He thought he had delivered the Conway suit papers to local counsel, but he was called on February 24, 1988, and advised that a default judgment had been entered in favor of Conway on February 23. Investigation revealed that Prudential’s counsel had failed to leave the papers with local counsel in Kansas City, but had inadvertently taken them back to Chicago, where they were placed in a file in the Prudential offices and forgotten. On May 16, 1988, the court overruled Prudential’s motion to set aside the default judgment.

Prudential contends on appeal that its failure to file a responsive pleading was the result of excusable neglect or mistake, and that it had a meritorious defense to the lawsuit, thus, the trial court erred in refusing to set aside the default judgment. The action of a trial court in sustaining or overruling a motion to set aside a default judgment is generally within its discretion. Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955). The general rule is that, in order to justify a trial court in setting aside a default judgment, a defendant must have shown he has a meritorious defense, and he has good reason or excuse for the default. Id. The defendant must show both his meritorious defense and the excuse for his default in order to warrant setting aside the default judgment. J.G. Jackson Associates v. Mosley, 308 S.W.2d 774, 778[4-6] (Mo.App.1958). Further, when a trial court has overruled a motion to set aside a default judgment, the judgment will not be disturbed on appeal unless the elements of reasonable excuse and meritorious defense are so clearly apparent that it is manifest the refusal to set aside was arbitrary. Whitledge, 276 S.W.2d at 116[3].

Prudential contends that it was excusable human error for its regional counsel to become engrossed in other matters and forget to transfer the suit papers to local counsel in Kansas City. While each case involving the existence of good cause or excusable neglect is to be considered on its own facts, cases exist where papers have been filed and forgotten or misrouted. In Distefano v. Kansas City Southern Railway Co., 501 S.W.2d 551 (Mo.App.1973), this court considered whether or not good cause existed for failure to file an answer when a company clerk placed the suit papers in a drawer and forgot about them. This court held such action was unmitigated negligence. Id. at 553. In Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo.App.1975), this court held that there was no excusable neglect for a default when the suit papers had been misrouted through an insurance company. In Hughes v. Christian, 586 S.W.2d 788 (Mo.App.1979), the suit papers were given to an employee of the defendant, whose duty it was to secure the defendant’s attorney to defend the suit. The papers were never located and were never delivered to an attorney. This court held that good cause for the default was not shown.

Prudential asserts that forgetfulness constitutes good cause or excusable neglect for its default. However, the preceding cases each involved this human element and the courts consistently held that forgetfulness or misrouting of papers within an organization does not constitute good cause for default. Prudential proves nothing more than forgetfulness to excuse its default, and under the reasoning of the above-mentioned cases, Prudential has not shown good cause or excusable neglect for its default to Conway’s suit. The trial court thus did not abuse its discretion in overruling Prudential’s motion to set aside the default judgment. Because Prudential failed to demonstrate good cause for the default, there is no need to examine the question of whether or not Prudential had a meritorious defense.

Prudential raises other points on this appeal, but those points were never presented to the trial court by pleading, evidence, or its motion to set aside the judgment. In State v. Keiter, 394 S.W.2d 399, 401[3, 4] (Mo.1965), the court held:

Except as specifically authorized by exception to the general rule no claim of error may be considered by an appellate court in civil appeals unless it was presented to or expressly decided by the trial court.

The rule in Keiter was reiterated in Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161, 168[11] (Mo. banc 1975). In In re Marriage of Manners, 549 S.W.2d 941, 942[3] (Mo.App.1977), the court applied this rule in an appeal from the refusal of a trial court to set aside a default judgment. Because Prudential’s remaining points were not presented to the trial court they may not be considered on this appeal.

Conway’s cross-appeal suffers from the same infirmity. Conway never presented the question of interest on the judgment to the trial court in any fashion. For the reasons just discussed, Conway’s cross-appeal presents nothing for review.

The judgment is affirmed. Costs are divided equally between the parties.

All concur.

      . Prudential filed its motion to set aside the default judgment within fifteen days after the entry of final judgment. Although the motion was untimely under Rule 74.05, the courts consider such a motion as a timely filed new trial motion and reach its merits on that basis. Sullenger v. Cooke Sales & Service Co., 646 S.W.2d 85, 87 n. 2 (Mo. banc 1983).


author: PRITCHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Andre COKES, Appellant.
    No. WD 34896.
    Missouri Court of Appeals, Western District.
    Oct. 16, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    James W. Fletcher, Public Defender, Sean D. O’Brien, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.
   PRITCHARD, Judge.

By the verdict of a jury appellant was found guilty of forcible rape, § 566.030, RSMo 1978. Upon a finding that appellant was a persistent offender, as alleged, the court sentenced him to life imprisonment in the Division of Corrections.

The sufficiency of the evidence is not questioned. Appellant presents two points, both of which claim that there was an improper reference in the state’s argument to his failure to testify in violation of his fifth amendment right against being compelled to testify against himself, also claimed to be in violation of the same right under § 546.270, RSMo 1978, and Rule 27.-05.

On voir dire examination of the jury panel, appellant’s trial counsel stated that he expected that the court would give an instruction which would indicate an individual who is accused of a crime has a right not to testify if he chooses to exercise that right. Counsel then asked of the panel if appellant chose to exercise that right was there anyone who would hold that against him, or who would think that he was hiding something. Two veniremen indicated that appellant, by not taking the stand would be holding something back or hiding something. One of these thought that he could not follow an instruction on the subject, and another venireman felt that he could not follow that instruction. The record does not reflect whether these persons actually served on the jury or were excused for cause or were peremptorily challenged.

The trial court gave, at appellant’s request, Instruction No. 7: “Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be drawn from the fact that the defendant did not testify.” This instruction is in accordance with MAI-CR 2d 3.76.

In opening argument state’s counsel stated: “The most important part of this case was the testimony of the victim. She’s the one this happened to and she’s the only one that can say what she saw. If you believe her, you have to convict Andre Cokes. If you don’t believe her, you cannot convict Andre Cokes. She’s the only one that could take the stand and tell you what happened in the early morning hours of October 31st, 1981.”

On closing argument state’s counsel argued: “MS. BURNETT: There is a lot of talk about the rights of the defendant. The defendant has the right not to testify. MR. BROWN: Your Honor, I will object to that. May we approach the bench, please?”, and “I move for a mistrial on the basis of the prosecutor’s commenting on the defendant’s right not to testify as not being permissible and I ask the Court for a mistrial at this time. MS. BURNETT: Your Honor, I am just indicating that the defendant has that right. THE COURT: I’ll overrule the objection but you better be careful about any statements you make. * * * MS. BURNETT: The defendant has the right to confront the witnesses against him. This is the way our criminal justice system is set up, and this is the way it should be, but often we lose sight of the rights of the victim. Doesn’t she have any rights, too? I want to talk about the defendant’s evidence in this case...” Appellant’s counsel had argued to the jury as follows: “MR. BROWN: And I remind you, during voir dire, we talked about whether or not you would hold the State to its burden of proof, and it is the State that has the burden of proof and not the defense whatsoever. I have talked to you about whether or not you would require the defense to put anything on and I told you we were going to put some evidence on, and we did that. And that evidence does show that there is reasonable doubt in this case.... ”

As noted, the state’s closing argument was objected to, and the objection was overruled. The claimed violation of the constitutional right and the statute and rule, supra, is presented in Point I. The state’s opening argument, however, was not objected to, and the claimed violation thereof is presented as plain error under Point II. The points will be considered together.

The cases on the subject of prosecu-torial comment on an accused’s failure to testify refer to the necessity of direct and certain references on the right to remain silent. See State v. Rothaus, 530 S.W.2d 235, 237 (Mo. banc 1975). In State v. Arnold, 628 S.W.2d 665, 668[3, 4] (Mo.1982), State v. Frankoviglia, 514 S.W.2d 536, 541 (Mo.1974), is quoted as to what constitutes a direct and certain reference to failure of an accused to testify: “ ‘The key words of the rule and statute are “accused” and “testify”.’ ”. And the Arnold Court said, “Crucial to the determination of whether the state has made a direct and certain reference to the accused’s failure to testify is the use of these words or their equivalent.” Cited there in footnote 4 are cases holding that there was a direct comment on the failure to testify: State v. Reed, 583 S.W.2d 531, 533 (Mo.App.1979), “ ‘There is not a single witness who took the stand who is on trial. Bryan Reed is on trial,’ and State v. Lindner, 282 S.W.2d 547, 550 (Mo.1955), “ T don’t know what the boy [defendant] says. There is no evidence of any type by him in this case’.” At page 669[5] of the Arnold opinion, the court speaks of an indirect reference to the failure to testify, citing Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App.1975), for a determination of whether the statement “ ‘highlighted’ ” or was “ ‘reasonably apt to have directed the jury’s attention to the fact he did not testify.’ ”, and said further, “If under the circumstances of the case, only the accused could deny the evidence on a vital portion of the case, the general statement that such proof was undisputed or undenied has been held to be an indirect reference to the accused’s failure to testify. (Citing cases.).” In this case, only appellant could deny the victim’s account of the rape, and the reference to his right not to testify, along with other comments, could be at least direct and indirect references to that right.

In the Rothaus case, supra, and in the there cited cases, State v. Haynes, 455 S.W.2d 504 (Mo.1970); and State v. Gregg, 399 S.W.2d 7 (Mo.1966), there were instructions by the court to disregard the statement, or the objection thereto was sustained and an offer was made so to instruct (Gregg, supra). Here, the objection was overruled, and the statement was therefore before the jury without any corrective action being taken by the court.

These further cases, cited by appellant, have reversed convictions and ordered remand for new trial where there has been a direct, certain and unambiguous reference to a defendant’s failure to testify at his trial: State v. Cockrum, 592 S.W.2d 300, 302 (Mo.App.1979), where the state’s closing argument was, “ ‘We don’t know exactly all the details of what happened ... [o]nly the thieves know that and they are not about to tell us or you’ State v. Reed, 583 S.W.2d 531, 533 (Mo.App.1979); State v. Lindner, supra; State v. Lindsey, 578 S.W.2d 903 (Mo. banc 1979), where the assistant prosecuting attorney said on voir dire examination, “ ‘Mr. Lindsey doesn’t have to go forward with any evidence if he doesn’t wish to. He doesn’t have to take the stand if he doesn’t want to. — .’ ” These cases point up the hazard of reversal occasioned by state’s counsel making any reference to a defendant’s failure to testify.

The state here argues that appellant’s counsel by inquiring of the jury panel on voir dire as to whether a member of the panel would hold it against appellant if he chose to exercise the right not to testify, or if thereby a member would think that he was holding something back, or if a member would follow an instruction on that subject, waived the right to have no comment thereafter on his failure to testify. Apparently, the state’s argument is that appellant initially opened up the subject himself. It seems clear that appellant was entitled to have selected a fair and impartial jury, and therefore would be entitled to inquire at that point, on voir dire, whether any panel member would be prejudiced by appellant’s failure to testify, or whether they would follow an instruction of the court on the subject. To have empanelled a fair and impartial jury was appellant’s first right, or conjunctively to that was his right to have no adverse presumption or inference drawn by the jury by his failure to testify. He was entitled to both rights so as to reduce a possible jury reaction to lessen the state’s burden to prove his guilt beyond a reasonable doubt because of his failure to testify. There was no waiver of comment upon appellant’s failure to testify by reason of his voir dire examination.

The state also argues that the prosecuting attorney did not refer specifically to appellant by her statement, “The defendant has a right not to testify.” Appellant was the only person on trial, so that remark could not refer to “the defendant” in a generic sense, meaning all defendants, and not just appellant in this case. The statement was clearly adverse to appellant as were the further arguments of counsel with reference to appellant’s right to confront the witnesses against him, and the argued conjunctive rights of the victim, “Doesn’t she have rights, too?” The fair import of this argument is that appellant should have a duty to take the stand and explain his plea of not guilty, and be cross-examined as to his testimony.

State v. Smart, 485 S.W.2d 90, 95 (Mo.1972), cited by the state, quotes State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970), which says such an instruction (like No. 7, supra) is a comment on the defendant’s failure to testify. Undoubtedly it is such a comment, but the instruction goes on to instruct the jury that no presumption or inference of any kind may be drawn from the fact that the defendant does not testify. The court’s instruction, as a comment, and the cautionary embellishment appended, should not be enlarged upon by counsel for the state. The time has come that any comment by the state upon the failure of a defendant to testify should be condemned under the pain of reversal. See the admonition in State v. Williams, 673 S.W.2d 32, 36 (Mo. banc 1984), and footnote 6 thereof. It is enough to consider whether the state has proved its case beyond a reasonable doubt, without the “overkill” in any manner, of a direct or indirect reference to a defendant’s constitutional right not to testify in the case.

The judgment is reversed and the case is remanded for new trial.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Raymond L. GRAYSON, Appellant.
    No. WD 35584.
    Missouri Court of Appeals, Western District.
    Oct. 16, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    James W. Fletcher, Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   ORDER

PER CURIAM:

Appeal from a jury trial conviction for robbery in the first degree, Section 569.020, RSMo (1978), and armed criminal action, Section 571.015, RSMo (1978), and sentences of fifteen (15) years for each count to be served consecutively.

Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert June CHANDLER, Defendant-Appellant.
    No. 47590.
    Missouri Court of Appeals, Eastern District, Division Six.
    Oct. 16, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dee. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    Lew A. Kollias, Public Defender, Columbia, for defendant-appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   CLEMENS, Senior Judge.

A jury found defendant Robert “June” Chandler guilty of two counts of robbery in the first degree for the gun-point robberies of Roland Crawford and Jerry Macon. The trial court found defendant a prior offender of other felonies and sentenced him to two concurrent ten year prison terms. He appeals.

The state’s evidence: Victims Crawford and Macon, along with juvenile Gregory McDonald, were waiting to wash Crawford’s car when defendant, armed with a sawed off shotgun, and two other men, one of whom had a pistol, robbed Crawford of $1 and Macon of $2. McDonald had no money and did not testify. Crawford and McDonald promptly ran away. Crawford reported the robbery to policeman Richard Chapman who brought Crawford back to the car wash where Macon met them. Crawford and Macon, and perhaps McDonald, recognized defendant as a resident of their neighborhood. The morning after the robbery, Macon directed the police to defendant’s abode where defendant was identified and arrested.

By defendant’s first point he claims error in letting Officer Chapman relate an incriminating statement made to him by the non-appearing victim McDonald. The other two victims had already testified naming defendant for the jury, and describing him and the robbery.

On re-direct examination of Officer Chapman he told the prosecutor he had also interviewed non-testifying McDonald and was asked what McDonald had told him about defendant’s car; Officer Chapman answered: “He told us that he had thought he had seen the people who did the robbery riding in a green Oldsmobile 98.” Only then did defense counsel object on the ground of hearsay.

We decline for three reasons to find reversible error.

First, the time for defendant to have objected to the hearsay question to Chapman was when it was asked, not after it had been answered. Second, defendant invited the hearsay by his cross-examination of the officer which dealt extensively with what the robbery victims had told Chapman. Third, and most important, McDonald’s now-challenged answer came in after both victims Crawford and Macon had clearly identified defendant both before and at trial.

As in State v. Lantigua, 652 S.W.2d 177, 178[1, 2] (Mo.App.1983), we held that where as here there is such strong evidence of guilt we may “regard the challenged hearsay as harmless error, if any.”

We deny defendant’s hearsay point and consider his second point. It is that the trial court denied his motion to cross-examine juvenile witness Jerry Macon on the nature of a complaint then pending against Macon in the juvenile court. Defendant contends the complaint was relevant to Macon’s incriminating trial testimony. Not so.

The robberies with which defendant is charged occurred in January of 1983. By trial time, witness Macon was in juvenile court custody on some other unrelated offense. The trial court granted the State’s pretrial motion in limine to prohibit defendant from cross-examining Macon regarding his juvenile court record.

The introduction of evidence of a prior crime is ... a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is. subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 1110[3-6], 39 L.Ed.2d 347 (1974).

That Macon had charges pending against him would not be relevant to a general attack on his credibility, because impeachment for prior criminal acts is limited to convictions, but not arrests. See State v. Massa, 512 S.W.2d 912[1-4] (Mo.App.1974). The issue is thus whether defendant is entitled to cross-examine Macon regarding his detention on charges in juvenile court in order to reveal a possible bias, prejudice or ulterior motive.

In Davis v. Alaska, supra, the U.S. Supreme Court held that the Confrontation Clause of the U.S. Const.Amend. VI gave the defendant the right to cross-examine a state’s witness as to the witness’ probationary status following a juvenile court adjudication in order to show the witness’ possible bias or motive. 94 S.Ct. at 1110-11. The State’s interest in protecting the anonymity of juvenile offenders, stated the court, is outweighed by the defendant’s constitutional right to cross-examination. 94 S.Ct. at 1111-12.

The trial court here should have permitted an inquiry into Macon’s detention at the juvenile detention facility as a means of establishing Macon’s possible bias in that Macon may have been expecting favorable treatment from the State in exchange for his testimony. However, we find this error insufficient to warrant reversal, because defendant was not prejudiced by the trial court’s limitation of the scope of the cross-examination of Macon.

Confrontation clause doctrine appears to require reversal if there is any error; whether the error was harmless in the particular case is not considered ... The seeming harshness of that rule is diminished, however, because a confrontation clause violation generally does not occur unless the denied area of cross-examination is one of considerable relevance. Degree of relevance, in turn, bears a close relation to whether denial of confrontation was prejudicial_ The automatic reversal rule is not, therefore, entirely divorced from considerations of prejudicial error in its ultimate operation, even if it is so in its bare statement.

Chipman v. Mercer, 628 F.2d 528, 533[12] (9th Cir.1980).

Here, Macon’s testimony was merely cumulative and corroborative of fellow victim Crawford’s account of the crime. Each witness gave similar accounts of the robberies and both recognized defendant as a resident in their neighborhood. In addition, Macon was not a possible suspect in the instant robbery. The witness in Davis v. Alaska, supra, was a possible suspect in the crime with which the accused was charged and was the only state’s witness who actually saw the accused at the scene of the crime. The lack of prejudice to defendant causes us to deny his point that the motion in limine was improvidently granted. Cf. State v. Walters, 528 S.W.2d 790, 793 (Mo.App.1975).

In addition, defendant has failed to preserve his second point for appellate review by not making an offer of proof as to Macon’s testimony regarding his juvenile court status. A ruling on a motion in limine "... presents nothing for appellate review unless preserved by timely objection or offer of proof.” Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341, 348[14] (Mo.App.1983).

The judgment is affirmed.

GAERTNER, P.J., and SNYDER, J., concur.


author: PUDLOWSKI, Judge.

text:
    Norman B. HEFTI, Petitioner-Respondent, v. Patricia A. HEFTI, Respondent-Appellant.
    No. 48086.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 16, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.

      John B. Gray, Clayton, for respondent-appellant.
    W. Scott Pollard, Florissant, for petitioner-respondent.
   PUDLOWSKI, Judge.

This appeal involves a dissolution of marriage. Patricia A. Hefti appeals from a judgment prospectively terminating on June 17, 1987 maintenance ordered to be paid by respondent, Norman B. Hefti, and from the order dividing marital property of the parties. We reverse and modify.

The parties in this appeal had been married for 27 years. They have two children, both deemed by the trial court to be emancipated. Conduct of the parties during the marriage is not an issue on appeal. A recitation of facts is limited to evidence bearing on the economic consequences of the dissolution.

Respondent has a B.S. degree in mechanical engineering. He had been employed by McDonnell-Douglas Corporation since shortly after his marriage. At the time of trial his salary was in excess of $45,000.00 per year. He receives a raise each December. His most recent increase was $546.00 per month.

In addition to his salary, respondent was provided insurance, including medical and dental coverages and other substantial fringe benefits through his employment. The annual value of all these benefits provided by McDonnell-Douglas to respondent at no cost was $19,885.

Appellant is a small woman. She is not capable of heavy physical labor. In addition to her household duties, appellant began working in 1972 at a school cafeteria. Beginning in 1978 she also began working in a drive-in theater as well as the school cafeteria. For some months she would work both jobs. She earned $3.50 per hour. At her husband’s urging she took a job at an indoor theater to insure that she would have a summer job at the outdoor theater. She was laid off her cafeteria job in October 1981 and placed on a substitute list but never called back. At the time of the trial, appellant was a part-time sales clerk at Kresge’s earning $3.50 per hour.

In its order, the trial court found that appellant required and respondent was able to pay $625 per month in maintenance. The court ordered the maintenance payments terminated prospectively on June 17, 1987. Additionally, the court found there should be a near equal division of the marital property. It then ordered a division of the marital property which was in fact substantially equal. Appellant received various items of property having a value of $60,919, including the family home. Respondent received property valued at $62,-806.

However, the trial court failed to dispose of respondents’s vested interest in the McDonnell-Douglas Pension Plan, which had a vested value at the time of trial of $32,723. The vested interest was payable in a lump sum if death occurred prior to retirement. Otherwise, respondent will receive a lifetime monthly pension at retirement of $954.97. Appellant’s after trial motion requested the court divide the pension plan. The motion was denied.

Appellant duly appealed to this court from the portion of the decree prospectively terminating maintenance and from the failure of the court to divide the vested pension rights. Appellant’s motion to remand was sustained and this court thereupon issued its mandate requiring the trial court to exhaust jurisdiction by fully dividing and allocating marital property including respondent’s pension plan.

The trial court then issued its final judgment on November 15, 1983 fully disposing of all the marital property by setting apart to respondent the entire $32,723 vested interest while letting stand the previous order equally dividing all other marital property of the parties.

Appellant contends the court abused its discretion in prospectively terminating her maintenance award on June 17, 1987. Appellant argues there was no substantial evidence to support a finding that she would be able to support herself at that point in time and thereafter. We are required to sustain the trial court’s decree unless there is no substantial evidence to support it. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Our Supreme Court has recently held that under Section 452.355.2 RSMo 1978, “[i]t is no longer open to question that the trial court is empowered to decree maintenance as payable indefinitely, or for a period of limited duration.” Doerflinger v. Doerflinger, 646 S.W.2d 798, 800 (Mo. banc 1983). Therefore, the court’s order prospectively terminating maintenance must stand unless it is based on mere speculation and not upon an evidentiary basis of a change of financial conditions of the parties.

In resolving this issue, we note the trend today is to encourage spouses to become self-sufficient. “Justice does not require provision of support to a spouse who is or may be prepared to become self-supporting.” Doerflinger at 800. Nevertheless, maintenance should not be prospectively decreased or terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in the future.

Examination of the record reveals no such evidence. The trial court determined appellant required $625 per month maintenance. At trial, appellant was employed part-time at $3.50 per hour. Her employment was consistent with the menial type employment for which she was qualified and which she had held over the years. The trial court found that appellant “will be unable to be self supporting for a period of years.” Nothing in the record justifies a finding that appellant would be able to secure better employment. The trial court's decree prospectively terminating the maintenance is reversed and vacated.

Appellant further contends the trial court abused its discretion in its division of marital property by awarding respondent the entire vested interest in the pension plan presently valued at $32,723. It is always a difficult task for the trial court to follow the mandate of § 452.330, to make the property division just and equitable, having regard for the statutory factors to be taken into consideration. In its disposition of property, the trial court attempted to arrive at an equal division of assets between both parties. With this goal in mind, we conclude the award of the entire interest in the vested pension plan to respondent was not just.

To arrive at an equal division of property, which was the trial court’s intent, we follow the precedent established by this court in Alvino v. Alvino, 659 S.W.2d 266 (Mo.App.1983). To avoid some of the problems inherent in lump-sum awards, the court may instead fashion its decree to award the non-employee spouse a proportionate share of the retirement payments if, as, and when the employee spouse actually begins receiving payments. Therefore, we modify the trial court’s decree with respect to the pension plan and award appellant one-half present value interest in the plan payable if, as, and when respondent actually begins receiving payments.

The decree prospectively terminating maintenance is reversed. The decree awarding respondent the entire pension is modified to award appellant a one-half present value interest therein.

CRIST, P.J., and SIMON, J., concur.


author: SOMERVILLE, Judge.

text:
    In re $29,000.00 IN U.S. CURRENCY. STATE of Missouri, Respondent, v. Michael A. GOTH, Appellant.
    No. WD 35308.
    Missouri Court of Appeals, Western District.
    October 16, 1984.
    As Modified Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Andrew J. Gelbach, Warrensburg, for appellant.
    Mary Ann Young, Asst. Pros. Atty., Warrensburg, for respondent.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Michael A. Goth (hereinafter Goth) appeals from a judgment declaring $29,000.00 in U.S. currency, $727.00 in U.S. currency, and a “handgun” forfeited to the State of Missouri (hereinafter State) pursuant to § 195.140.2, RSMo Supp.1983. Forfeiture of the “handgun” is not an issue on appeal as Goth disavowed ownership of same. He does, however, claim ownership of the U.S. currency and vigorously contests the legality of its forfeiture on appeal.

Underlying events which the forfeiture proceeding ultimately relate back to commenced at approximately 1:15 P.M., September 5, 1982, at Goth’s residence in Holden, Missouri. At that time, a neighbor of ■Goth’s called the Holden Police Department and reported that three men, later identified as Corum, Elmer and McGuire, had forced their way into Goth’s residence. A member of the Holden Police Department immediately responded to the neighbor’s call. Shortly thereafter, another member of the Holden Police Department, along with a deputy sheriff of Johnson County, arrived at the scene as “backups”. Noises coming from Goth’s residence indicated that a violent argument was taking place inside. The deputy sheriff, by means of a portable “P.A. System”, ordered the persons inside the residence to come outside. Goth came out first, followed by Corum, Elmer and McGuire. Goth was covered with blood on and about his head, arms and back, indicating that he had been severely beaten. He was removed from the scene by ambulance and taken to the hospital. Corum, Elmer and McGuire were placed under arrest, taken to the Johnson County jail, and charged with felonious assault.

Immediately after Goth and his assailants left the scene, the officers made a cursory search of the residence to ascertain whether any other persons were still inside. No other persons were found inside the residence, nor was any currency or controlled substances found or seized, on the occasion just mentioned. The officers did observe that the residence had been ransacked and appearances indicated that a violent altercation had occurred. The officers then exited the residence and cordoned it off to “preserve evidence”.

The deputy sheriff then left the scene and went to the hospital where Goth had been taken. While en route to the hospital, the deputy sheriff radioed the officers at the scene to stay out of the residence and “not proceed”. One of the officers at the scene, prior to receipt of instructions by radio from the deputy sheriff, reentered the residence a second time and photographed each room. Upon receipt of instructions from the deputy sheriff via radio, the officer just mentioned exited the premises absent seeing or seizing any currency, controlled substances, or evidentiary items. Upon arrival at the hospital, the deputy sheriff asked Goth if he would give the officers permission to enter and search his residence. Goth was not under arrest, under suspicion, or in custody of any law enforcement officers at the time. At first, Goth was reluctant to give the deputy sheriff permission for officers to enter and search his residence. However, when the deputy sheriff indicated that a search warrant would be obtained to enter and search his residence, Goth told the deputy sheriff “that he was free to go in and look at anything he pleased.” During the course of the conversation just mentioned, Goth also told the deputy sheriff that his assailants beat him with a “handgun”.

The deputy sheriff returned to the scene and Goth’s residence was entered a third time by officers to search for the “handgun” mentioned by Goth. During the course of their search the officers found and seized, in the following order, a bag containing hashish and $727.00 in currency, a vial containing traces of cocaine, a pitcher containing 38.2 grams of cocaine, and a “handgun”. Shortly thereafter, Goth, who had been released from the hospital, returned to his residence at which time he was arrested for possession of a controlled substance. Goth, while being transported to the Johnson County jail by another deputy, was given a “Miranda warning”. After engaging in general conversation with the deputy sheriff following the “Miranda warning”, Goth stated that he did not want to “talk any more” until he contacted an attorney.

Following the above sequence of events, Goth on either the evening of September 5, 1982, or the morning of September 6, 1982, contacted an attorney. On the morning of September 6, 1982, Goth’s attorney got in touch with the assistant prosecuting attorney of Johnson County and an “agreement” was reached between the two — in essence, no criminal charges would be filed against Goth for possession of controlled substances and, in return, Goth would testify on behalf of the State at the trials of his assailants, and would talk to law enforcement officials and give them information regarding “trafficking” in drugs and other “criminal activities.” Whether or not the State, as part of the “agreement”, was to return to Goth any property, e.g. currency found and seized in his residence, is in controversy and will subsequently be dealt with in more detail.

After the “agreement” was entered into, and after being given a second “Miranda warning”, Goth told one of the Holden police officers that he had a large sum of currency at his residence in envelopes hidden on a ledge under a dishwasher. The police officer, accompanied by a deputy sheriff, went to Goth’s residence during the afternoon of September 6, 1982, and found and seized $29,000.00 in currency at the location described by Goth. Thereafter, the $29,000.00 in currency just mentioned was turned over to an official of the Federal Drug Enforcement Administration. The Federal Drug Enforcement Administration eventually returned the $29,000.00 in currency to the Prosecuting Attorney of Johnson County.

Goth, pursuant to the “agreement” previously mentioned, freely talked with various law enforcement officials about “trafficking” in drugs and other criminal activities of which he claimed to have knowledge, e.g., he obtained drugs in Florida and transported them to Missouri for sale, the currency found in his residence and seized by the officers resulted from his illicit drug activities, and he gave the names of several persons who he claimed were implicated in various criminal activities. Additionally, Goth cooperated, as agreed, regarding prosecution of his assailants, and the State did not file any criminal charges against Goth.

On January 7, 1983, Goth filed a petition for replevin in Division I of the Circuit Court of Johnson County, naming the Sheriff of Johnson County and one of his deputies as defendants, for return of the currency. While the replevin action was pending, the State initiated the forfeiture proceeding from which Goth’s appeal lies.

In order to attain a better semblance of dispositional continuity, the points relied on by Goth on appeal, seven in number, have been rearranged in the following order: (1) Section 195.140, RSMo Supp.1983, is “unconstitutional in that it violates due process” because it shifts the “burden of proof” to “claimants” to rebut the presumption that moneys, coins and currency “found in close proximity to forfeitable controlled substances ... are presumed to be forfeitable (2) the trial court erred in hearing and rendering judgment in the forfeiture proceeding because “exclusive” jurisdiction was vested in another division of the Circuit Court of Johnson County by virtue of Goth’s previously filed and pending replevin action; (3) the trial court “abused its discretion” in denying Goth’s application “for a change of judge for cause”) (4) the trial court erred in denying Goth’s motion for a “continuance”; (5) the U.S. currency in question, along with other items of evidence, offered by the State and admitted into evidence, were inadmissible because obtained by warrant-less searches in violation of Goth’s rights under the Fourth Amendment to the Constitution of the United States; (6) the trial court erred in overruling Goth’s objections to the admission of certain statements made by Goth tracing the sums of currency to illicit drug activities engaged in by Goth because they were obtained in violation of Goth’s rights under the Fifth and Sixth Amendments to the Constitution of the United States; and (7) the judgment of forfeiture was “not supported by competent and substantial evidence” because under the “agreement” entered into between Goth and the “prosecuting attorney’s office”, Goth would not be prosecuted for “possession” of any controlled substances and his “personal belongings and money” would be returned to him if (a) he would testify on behalf of the State at the trials of his assailants, and (b) furnish “intelligence information” to “law enforcement personnel” concerning “drug trafficking” and “criminal activities”.

Goth’s first point attacks the validity of § 195.140, RSMo Supp.1983, on purported constitutional grounds. If the validity of this statute was properly raised at the trial court level so as to be preserved for appellate review, jurisdiction of this case lies in the supreme court under Mo. Const. Art. V, § 3 (as amended 1982), and this court lacks jurisdiction to entertain Goth’s appeal. In the landmark case of City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376 (banc 1949), procedural requirements for raising and preserving constitutional issues in general, on the basis of an evolving line of case authority, were collected and set forth: “It has long been the law that the question must be raised at the first available opportunity: Woodling v. Westport Hotel Operating Co., 331 Mo. 812, 819(2), 55 S.W.2d 477. The sections of the constitution claimed to have been violated must be specified: Robinson v. Nick, 345 Mo. 305, 309(5), 134 S.W.2d 112, 115(11). The point must be presented in the motion for new trial, if any; Red School Dist. v. West Alton School Dist., Mo.Sup., Div. 2, 159 S.W.2d 676, 677(2). And it must be adequately covered in the briefs: McGuire v. Hutchison, 356 Mo. 203(4), 201 S.W.2d 322, 327(8).”

Virtually without exception since 1949, cases involving the viability of constitutional issues for purposes of determining appellate jurisdiction have guided on the procedural requirements collected and laid down in City of St. Louis v. Butler Co., supra. Relating Goth’s first point to the record on appeal, a “Motion To Suppress All Evidence And Motion In Limine” filed in the trial court contained the following: “Missouri Revised Statute 195.140 is unconstitutional in that it places the burden of proof upon Michael A. Goth to rebut the presumption that any money found in close proximity to forfeitable controlled substances is presumed to be forfeitable under that statute”. Assuming, arguendo, that the constitutional validity of § 195.140, supra, was raised “at the first available opportunity”, the fact remains that the “sections of the Constitution claimed to have been violated” were not “specified”. Moreover, the term “unconstitutional” employed by Goth was unaccompanied by any quoted constitutional provision or general specifi-cative language otherwise identifying a constitutional provision upon which the charge of unconstitutionality purportedly rested. Granted, the stringent requirement of specificity as to the article and section of the constitution sought to be invoked has been waived on rare occasions where substantial compliance occurred, e.g. quoting the language of the constitutional provision sought to be invoked or employing general specificative language identifying a universally recognized constitutional provision. See: Dye v. School Dist. No. 32 of Pulaski County, 355 Mo. 231, 195 S.W.2d 874 (1946); City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475 (1949); and Ross v. Robb, 651 S.W.2d 680 (Mo.App.1983). Goth’s attack on the validity of § 195.140, supra, at the trial level on the ground that it was “unconstitutional” failed to properly raise a viable constitutional issue because it neither satisfied the specificity requirement laid down in City of St. Louis v. Butler Co., supra, nor met the test of substantial compliance. In view thereof, it inexorably follows that Goth’s first point is not entertainable on appeal and this court, notwithstanding Mo.Const.Art. V, § 3 (as amended 1982), has jurisdiction to hear and determine all remaining issues.

Goth’s second point, that the trial judge who heard and rendered judgment in the forfeiture proceeding erred in doing so because “exclusive” jurisdiction was vested in another division of the Circuit Court of Johnson County by virtue of a previously filed and pending replevin action, is untenable for a number of reasons. A number of cases are cited and relied upon by Goth for the general proposition that “where two actions involving the same subject matter between the same parties are brought in courts of concurrent jurisdiction, the court in which service of process is first obtained acquires exclusive jurisdiction ...” (emphasis added). State ex rel. General Dynamics Corp. v. Luten, 566 S.W.2d 452, 458 (Mo. banc 1978). See also: State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391 (Mo. banc 1975); and State ex rel. Lamar v. Impey, 365 Mo. 437, 283 S.W.2d 480 (banc 1955). Suffice it to say, the parties in the replevin action (Goth and the Sheriff of Johnson County and one of his deputies) were not the same as the parties in the forfeiture proceeding (the State of Missouri and Goth). Going a step further, Rule 55.27(g) recognizes that the defense of “another action pending between the same parties for the same cause in this state” may be waived by a litigant. This rule implicitly, if not explicitly, acknowledges the patent distinction between concurrent jurisdiction and subject matter jurisdiction. It is significant that counsel for Goth, shortly before the hearing in the forfeiture proceeding commenced, specifically advised the trial judge, as a matter of record, that it “was ... [his] intention, because of the way this thing has developed, ... to try this one [the forfeiture proceeding] which will in all likelihood resolve the other one [the replevin action] from all practical standpoints, win, lose or draw.” This statement spells waiver of any claimed defense that Division I of the Circuit Court of Johnson County had exclusive jurisdiction by virtue of the pending replevin action. Surely Goth cannot seriously contend that a litigant can invite or lull a trial judge into hearing a matter and then, with impunity, contend on appeal that the trial judge’s conduct responsive thereto constituted reversible error, particularly so, where, as here, there was no per se legal impediment, e.g. want of subject matter jurisdiction, in doing so. Goth’s second point is devoid of merit.

Goth’s third point, that the trial court “abused its discretion” in denying his application “for a change of judge for cause", affords no basis for relief. On May 20, 1982, the trial court set the forfeiture proceeding for hearing on June 20, 1983. Goth’s application for change of judge on June 17, 1983, was not timely filed. Rule 51.05. However, since Goth in his application for change of judge did not rely on the minimal assertion approved under Rule 51.05, but instead, alleged bias and prejudice on the part of the trial judge, review of whether the trial judge “abused” his “discretion” is cognizable on appeal. In Re Marriage of Frankel, 550 S.W.2d 896, 898 (Mo.App.1977). Goth’s application for change of judge was presented to and heard by the trial judge on June 20, 1983, immediately preceding the forfeiture hearing. In support thereof, according to the record, Goth’s counsel advised the trial judge that Goth had previously made statements to law enforcement officials implicating the trial judge in “wrongdoing”, the assistant prosecuting attorney who was a party to the “agreement” previously mentioned, and who would appear as a witness on behalf of Goth at the hearing, had discussed Goth’s implication of “wrongdoing” on the part of the trial judge with law enforcement officials, and the trial judge had previously presided over a criminal trial in which Goth was convicted of an unrelated drug offense and given a suspended imposition of sentence. The aforementioned constituted the foundation for Goth’s charge of bias and prejudice on the part of the trial judge. Goth builds his argument on this foundation by summarily concluding that under Rule 2, Canon 3 C(l)(a), the trial judge abused his discretion in not recusing himself. In the context of Rule 2, Canon 3 C(l)(a), “impartiality” is measured in terms of whether “ ‘a reasonable person would have factual grounds to doubt the impartiality of the court.'" Berry v. Berry, 654 S.W.2d 155, 159 (Mo.App.1983). On appellate review, a trial judge’s rejection of charges of bias and prejudice purportedly reflecting a want of “impartiality” is tested in light of whether he abused his discretion. Id. 159. Goth’s summary conclusion that the trial judge was biased and prejudiced, i.e. lacking “impartiality”, because he had previously presided over a criminal trial when Goth was convicted of an unrelated drug offense and given a suspended imposition of sentence, is fallaciously drawn. In Cox v. U.S., 309 F.2d 614, 619-20 (8th Cir.1962), the court held that a trial judge was not disqualified in a criminal case because he had sentenced the accused in a prior criminal case. See also: Barnes v. U.S., 241 F.2d 252 (9th Cir.1956); and State v. Faber, 499 S.W.2d 790 (Mo.1973). Goth’s summary conclusion that the trial judge was biased and prejudiced, i.e. was not “impartial”, because Goth had previously implicated him in “wrongdoing” and the assistant prosecuting attorney had discussed Goth’s incrimination of the trial judge in “wrongdoing” with law enforcement officials, is also fallaciously drawn. When these matters were first broached to the trial judge immediately prior to commencement of the forfeiture hearing, the trial judge stated of record it was the first time he was aware that Goth had implicated him in any “wrongdoing” and that Goth’s doing so “did not bother him”. This court is quick to note, in all fairness to the highly respected and able trial judge, that Goth’s incriminatory charges of “wrongdoing” never materialized. The closest Missouri case found bearing upon this aspect of Goth’s charge of bias and prejudice on the part of the trial judge is State v. Hohensee, 473 S.W.2d 379 (Mo.1971). In Hohensee, just prior to the commencement of defendant’s trial for burglary, defense counsel advised the trial judge that defendant “was one of the persons whom the police attempted to tie the burglary [which previously occurred] of Your Honor’s home to_” Defense counsel then suggested that the trial judge “might want to disqualify” himself. The trial judge noted, in refusing to disqualify himself, that mere suspicion of defendant by the police, absent more, “would lead the Court to believe that they have no reason to ...” proceed further. The trial judge further noted that if the police had no reason to pursue their suspicion of defendant he had “no reason to view him [defendant] in any way other than as if this matter had never been brought to the Court's attention.” Id. 382. The supreme court held that “[t]he fact that they [the police] merely questioned him [defendant], without more, would certainly not be any basis for saying that ... [the trial judge] ... (who had no knowledge of it until mentioned in court) was ‘interested or prejudiced.’ ” Fully aware that State v. Hohen-see, supra, is of questionable relevancy, this court has no choice but to delve further into this aspect of Goth's third point. In doing so, a more compelling reason springs to mind for holding that the trial judge did not abuse his discretion in refusing to recuse himself. Theoretically, a case could never go to trial if a litigant could disqualify a trial judge by the simple expedient of making the trial judge aware on the eve of trial of spurious attacks previously made by the litigant on the character and integrity of the trial judge. Absent some indication in the record that the trial judge took umbrage to such unwarranted accusations, and the record in the instant case demonstrates that the trial judge did not feel offended, this court is unwilling to brand the trial judge with an abuse of discretion for not disqualifying himself. To hold otherwise would be tantamount to subscribing to the belief that trial judges of impeccable integrity and impartiality can be disqualified by spurious allegations at the whim and caprice of litigants. Impugning the integrity of a trial judge must be based on something more solid than speculation or conjecture. Accordingly, Goth’s third point is rejected.

Goth’s fourth point levels error at the trial court for refusing to grant his motion for a continuance. Granting or denying a continuance is discretionary with the trial court. Chapman v. St. Louis County Bank, 649 S.W.2d 920, 922 (Mo.App.1983). Appellate review of the trial court’s exercise of discretion does not pivot on whether a reviewing court would have exercised its discretion in like manner, but whether the trial court abused its discretion. Chapman v. St. Louis County Bank, supra; and Moslander v. Dayton Tire & Rubber Co., 628 S.W.2d 899, 902 (Mo.App.1981). The discretion vested in the trial court may not be exercised arbitrarily and on appellate review the facts must be examined to determine whether the trial court abused its discretion. Missouri Public Service Co. v. Argenbright, 457 S.W.2d 777, 785 (Mo.1970); and Shelton v. Mo. Baptist Foundation, 573 S.W.2d 121, 124 (Mo.App.1978). Goth posits his claim of an abuse of discretion on the part of the trial judge in refusing to grant his motion for a continuance on the following grounds: (1) the court previously granted the State a continuance; (2) the State, prior to trial, failed to disclose the identity of one of the witnesses it called; and (3) the State was permitted to introduce a bag of “hashish” at the hearing although it had previously advised Goth’s counsel that it did not intend to do so.

The first ground, supra, relied on by Goth to support his charge that the trial judge abused his discretion in not granting a continuance is so ethereal it defies legal comprehension. Perforce, it is rejected.

Attention next focuses on the second ground relied on by Goth to support his charge that the trial judge abused his discretion in not granting Goth’s application for a continuance, to-wit, that the State failed to disclose the identity of one of its witnesses prior to trial. Whether or not the State disclosed the controversial witness by supplementing its answer, well in advance of the hearing date, to an interrogatory previously propounded by Goth is factually disputed. The State claims it did, Goth claims it did not. It should be noted that no oral request for a continuance was ever made by Goth during the course of the hearing. Frankly, this court is unable to perceive how the ground in question relates to or is in any way reconcilable with Goth’s application for a continuance filed prior to the hearing, and heard and denied by the trial judge on June 20, 1983, immediately prior to commencement of the forfeiture hearing. The second ground of Goth’s fourth point is predicated on the trial judge’s refusal to grant a prehearing motion for continuance, not on an objection to the admission of testimony of a witness who was purportedly undisclosed by the State in response to discovery. Notwithstanding this court’s dilemma, the record reveals that prior to the time the witness in question took the stand the trial judge ordered a recess for whatever period of time was needed by Goth’s counsel to talk to the witness. Goth’s counsel not only “talked” with the witness, but was offered and refused additional time to do so by the trial judge. Moreover, Goth has not undertaken to demonstrate, much less show, how he was in any way prejudiced by the state’s alleged failure to disclose the identity of the witness in question prior to the forfeiture hearing.

The third ground relied on by Goth to support his charge (point four) that the trial judge abused his discretion in not granting Goth’s application for a continuance is as dilemmatic as the second ground. At the risk of being repetitious, Goth’s fourth point is predicated on the trial judge’s refusal to grant Goth’s prehearing motion for a continuance, not on an objection to the admission of an exhibit (hashish) which the state purportedly advised Goth it did not intend to introduce. With respect to both grounds two and three, the trial judge cannot be faulted for lack of prescience at the time the application for a continuance was heard and disposed of that unanticipated events that might or might not occur at the subsequent hearing were included as grounds for a continuance. Goth’s fourth point is factually and legally unsustainable.

Under point five Goth contends that the U.S. currency in question, along with other items of evidence, offered by the State and admitted into evidence, were inadmissible because they were obtained by warrantless searches in violation of the Fourth Amendment to the Constitution of the United States. Neither the U.S. currency nor the other items of evidence addressed by point five were found or seized in Goth’s residence until after the deputy sheriff obtained Goth’s consent at the hospital to search his residence. Goth never withdrew or retracted consent to search his residence. When Goth gave consent to search his residence he was neither under arrest nor under suspicion for any criminal offense, and it was freely given and obtained in a noncustodial atmosphere. Consensual searches are classic exceptions to the warrant requirement of the Fourth Amendment to the Constitution of the United States. “The search of property without warrant but with proper consent voluntarily given is valid under the fourth amendment.” State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).

The test for determining the validity of a consensual search is whether, under the totality of the circumstances, the consent was given voluntarily and without coercion. U.S. v. Dennis, 625 F.2d 782, 793 (8th Cir.1980). The only argument raised by Goth that his consent was not given “voluntarily” and without “coercion” centers solely on the fact that consent to search his residence was not given until after the deputy sheriff indicated that a search warrant would be obtained. As held in U.S. v. Dennis, supra, 625 F.2d at 793, the fact that a law enforcement officer indicates that he would attempt to obtain or was obtaining a search warrant does not “ ‘vitiate an otherwise consensual search’.” See also U.S. v. Culp, 472 F.2d 459, 461 n. 1 (8th Cir.1973), cert. denied 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973). Goth’s fifth point affords no basis for appellate relief.

Goth next contends (point six) that certain statements made by him, admitted into evidence over his objection, tracing the sums of U.S. currency to drug activities which he had engaged in, were obtained in violation of his rights under the Fifth and Sixth Amendments to the Constitution of the United States. To put this point in proper context, an appropriate reminder is in order. The statements in question were made to various law enforcement officials after the “agreement” heretofore mentioned was reached between Goth’s attorney and the assistant prosecuting attorney of Johnson County. As drawn from the record, the complained of statements were made by Goth in fulfillment of his part of the “agreement” previously mentioned. Goth at no time indicated, directly or by innuendo, that he wanted counsel present, that he was reluctant to talk, or that the statements were in response to questions beyond the purview of the “agreement”. A person may waive sundry constitutional rights and privileges, among which are: (1) the right to remain silent (U.S. Const.amend. V), Miranda v. Arizona, 384 U.S. 436, 474-78, 86 S.Ct. 1602, 1627-29, 16 L.Ed.2d 694 (1966), and State v. Fields, 434 S.W.2d 507, 514 (Mo.1968); and (2) the right to counsel (U.S. Const.amend. VI), Miranda v. Arizona, supra, 384 U.S. at 475-78, 86 S.Ct. at 1628-29 and State v. Fields, supra, 434 S.W.2d at 514. The record on appeal supports the conclusion that Goth “voluntarily” and without “coercion” waived his right to counsel and to remain silent, thus freeing the trial court of any errors of constitutional dimension in admitting Goth’s statements into evidence. Accordingly, Goth’s sixth point fails to raise any grounds for appellate relief.

Attention now focuses on Goth’s seventh and final point — that the judgment of forfeiture was not supported by “competent and substantial” evidence because under the terms of the “agreement” reached between his counsel and the assistant prosecuting attorney of Johnson County, any currency or other property belonging to him which might be found in his residence would be returned to him. In support of this point, Goth vigorously contends, if correctly perceived by this court, that the State breached the “agreement” and that its breach thereof nullified any statements he made regarding the U.S. currency and its drug-related source and divested them of any probative value to support any right of forfeiture claimed by the State.

Section 195.140.2(1), RSMo Supp.1983, provides, inter alia, that “[ejverything of value furnished, or intended to be furnished, in exchange for a controlled substance ... [and] all proceeds traceable to such an exchange ... shall be forfeited ...” The statements made by Goth and introduced by the State clearly demonstrate that the U.S. currency in question was obtained by Goth from the sale of controlled substances. The answer to whether the law enforcement officials, as contended by Goth, were to return the U.S. currency in question to him under the terms of the “agreement” previously mentioned lies in the transcript on appeal. The assistant prosecuting attorney of Johnson County, the only immediate party or witness to the “agreement” who testified at the hearing, was called as a witness by Goth. It is noted that Goth’s attorney, the only other immediate party or witness to the “agreement”, did not take the stand as he represented Goth at the forfeiture hearing. A close examination of the transcript on appeal reveals that the assistant prosecuting attorney who, as noted, appeared as a witness on behalf of Goth, arguably on direct examination and particularly on cross-examination, testified first one way and then another with respect to whether return of the U.S. currency to Goth by the law enforcement officials was a provision or part of the “agreement”. On direct examination, when first asked about the terms of the “agreement”, the assistant prosecuting attorney made no mention whatsoever of any agreement to return the U.S. currency or any other items of property to Goth in return for his cooperation. In response to some unobjected to leading questions which followed, the assistant prosecuting attorney testified that whatever money was found was to be returned to Goth under the “agreement”. When the agreement was “struck”, the $29,000.00 in U.S. currency had not been found or seized and none of the law enforcement officials knew of its existence at that time. At several points during cross-examination, the assistant prosecuting attorney testified that there was no agreement to return any money to Goth. Conversely, at several other points during cross-examination, the testimony of the assistant prosecuting attorney indicated that the return of whatever money was found to Goth was a part of the “agreement”. Further, on cross-examination the assistant prosecuting attorney was confronted with certain testimony he gave in a deposition taken in the criminal cases pending against Goth's assailants. He admitted that in response to a question put to him at that time as to the terms of the “agreement” he made with Goth’s attorney, nothing was said about the return of any money or other property to Goth. Although the deposition testimony of the assistant prosecuting attorney did not constitute substantive evidence to prove the terms of the “agreement”, it affected the credibility of those portions of his testimony at the forfeiture hearing indicating that return of any money or property to Goth was a term or part of the “agreement”. Disposition of Goth’s seventh and final point is concluded by reference to the well-established rules that the trier of facts may believe all, part or none of the testimony of a witness, and that, in a court-tried case, such as here, it is assumed that the trial judge believed that testimony consistent with his findings and judgment. McComas v. Umlauf, 641 S.W.2d 809, 812 (Mo.App.1982); and State ex rel. Hillhouse v. Hunter Raffety Elevator, Inc., 636 S.W.2d 400, 402 (Mo.App.1982). Goth’s seventh and final point is refuted by the law and the evidence and, accordingly, the judgment of forfeiture was supported by "competent and substantial” evidence.

Two cases cited by Goth in support of his seventh and final point, State ex rel. Whitener v. Kixmiller, 664 S.W.2d 220 (Mo.App.1984), and State v. Patchen, 652 S.W.2d 265 (Mo.App.1983), are wholly inap-posite as the issues addressed and the facts involved in both are completely dissimilar.

Judgment affirmed.

All concur.

      . The assistant prosecuting attorney referred to in this opinion is not currently serving as assistant prosecuting attorney of Johnson County, Missouri.

      . One point, divided into subpoints in Goth’s brief on appeal, is treated as two separate points.

      . Section 195.140.2, RSMo Supp.1983:
      "(1) Everything of value furnished, or intended to be furnished, in exchange for a controlled substance, imitation controlled substance or drug paraphernalia in violation of sections 195.-010 to 195.320, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used, or intended to be used, to facilitate any violation of sections 195.-010 to 195.320 shall be forfeited except that no property shall be forfeited under this subsection to the extent of the interest of an owner by reason of any act or omission established by him to have been committed without his knowledge or consent.
      (2) Any moneys, coin, or currency found in close proximity to forfeitable controlled substances, imitation controlled substances, or drug paraphernalia, or forfeitable records of the importation, manufacture, or distribution of controlled substances, imitation controlled substances or drug paraphernalia are presumed to be forfeitable under this subsection. The burden of proof shall be upon claimants of the property to rebut this presumption.”

      . In view of the thrust of Goth’s argument, this court deems it unnecessary to address the distraction between divisions of a judicial circuit and separate judicial circuits.

      . Rule 2, Canon 3 C(l)(a):
      “(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
      (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;”

      . In connection with point five (U.S. Const. amend. IV) and point six (U.S. Const. amends. V and VI), a line of federal cases involving federal forfeiture proceedings, exemplified by U.S. v. One 1979 Mercury Cougar XR-7, 666 F.2d 228 (5th Cir.1982), and U.S. v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293 (8th Cir.1982), hold that although illegal seizure of forfeitable goods does not "immunize" them from forfeiture, the government cannot rely on tainted evidence obtained in violation of a claimant’s constitutional rights to prove "probable cause" to sustain forfeiture.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald KROLL, Defendant-Appellant.
    No. 47476.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 23, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Robert C. Wolfrum, St. Charles, for defendant-appellant.
    John Ashcroft, Atty. Gen., Mark S. Sied-lik, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Presiding Judge.

Defendant-appellant was found guilty by a jury of three counts of burglary in the second degree, § 569.170 RSMo 1978 and sentenced as a persistent offender to three concurrent twelve-year terms of imprisonment.

At approximately 4:30 a.m., the defendant was arrested, booked, and processed by the Marlborough police for driving while intoxicated. His blood alcohol content read .24 on the breathalyzer test. At that time, the defendant was unsteady on his feet and could not stand without assistance. Also, the officer described his appearance as “sleepy” with bloodshot eyes and a strong odor of alcohol on his breath. Later, at approximately 6:30 a.m. when the arresting officer returned Kroll to his room of the Duplex Motel, the defendant’s condition had improved. The defendant could walk without assistance and was sufficiently coherent to direct the officer to his motel room.

Shortly after the departure of the police officer, the defendant joined by his companions left the Duplex Motel in Marlborough and headed west on Interstate 44 (1-44) destined for Pacific, Missouri. Upon arriving in Pacific, Kroll and his companions checked into the Okay Motel between 8:30 a.m. and 9:00 a.m. From there, the defendant and four of his companions drove to the Apple Valley Subdivision. After leaving the subdivision, the group headed east on 1-44 towards St. Louis.

While traveling through Webster Groves the automobile driven by the defendant was stopped by the police. Officer Lange of the police department pulled over the defendant’s vehicle because it was weaving and straddling the lanes. The defendant left the ear to talk to Officer Lange. During their conversation, Lange noticed that one of the passengers in the rear seat was removing his coat. Lange continued to observe the passenger as he attempted to conceal something on the floorboard of the automobile with the coat. Before the passenger could succeed, Lange identified the object as a pillow case with the butt of a revolver protruding from it. Upon the arrival of another police officer, Officer Lange searched the car, specifically the pillow case. His search revealed that the pillow case contained not only a handgun but also jewelry and two large bottles full of coins. Lange placed the defendant and his passengers under arrest for suspicion of burglary.

An inventory search of the defendant’s automobile at the Webster Grove’s police station produced a safety deposit key which eventually led the police to the Franklin County Sheriff’s department. Kroll and his companions were charged for the burglaries of three homes in Apple Valley Subdivision. Defendant now appeals raising three contentions: (1) the trial court erred by refusing defendant’s proffered instruction on voluntary intoxication; (2) by permitting the state to elicit testimony without a sufficient foundation; (3) by admitting evidence obtained from an arrest without probable cause.

Initially, the defendant contends that the trial court erred by refusing to submit his proffered instruction on the issue of intoxication to the jury. Essentially, he claims that evidence of intoxication can negate the mental state required for the offense. Under § 569.170 a person must knowingly enter or remain unlawfully to have the requisite mental state for burglary. The defendant argues that whether the defendant was too intoxicated to knowingly enter the homes in Apple Valley Subdivision is a factual determination for the jury.

However, for any jury instruction to be considered by the trier of fact, it must be supported by substantial evidence. State v. Urhahn, 621 S.W.2d 928, 933 (Mo.App.1981). This determination is made by the court. By refusing to submit the instruction on voluntary instruction, the court concluded that the evidence was insufficient to support a jury’s finding on the issue. We agree.

The defendant has the burden of injecting the issue of intoxication into the case. § 562.076.2. Yet, evidence of mere intoxication does not raise the voluntary intoxication defense. State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981). To support an instruction on this defense, evidence must be presented that tends to show defendant was so intoxicated that he did not know what he was doing. Id. at 108. An individual acts “knowingly” when he acts with awareness of the nature of his conduct. See § 562.016.3.

On the morning of December 15, 1982, at approximately 4:30 a.m., the defendant was in police custody with a blood alcohol content of .24 on the breathalyzer test. He appeared sleepy and could not walk without assistance. However, the burglaries occurred nearly five hours later at approximately 9:30 a.m. There exists no evidence that the defendant continued to drink between 4:30 a.m. and 9:30 a.m. In fact, he was not released from police custody until 6:30 a.m. at which time he no longer needed assistance to walk and could direct the Marlborough police to his room in the Duplex Motel. Based on the lack of evidence concerning defendant’s state of intoxication as of 9:30 a.m. on December 15, 1982, we believe that no substantial evidence of a degree of intoxication sufficient to negate the mental state required for the crime of burglary was introduced. The trial court properly refused the defendant’s proffered instruction.

Next the defendant contends that the state laid an insufficient foundation before eliciting testimony from a witness on direct examination. The desired information concerned the average length of time needed to travel from the witness’ home to 1-44 and then to Webster Groves. This issue is presented in the case because the defendant asserts that he remained at the Okay Motel while the burglaries occurred. Therefore, the time required for his companions to return from the crime scene to the Okay Motel has relevance to his defense.

Questions of evidence relevancy are left to the discretion of the trial judge and his ruling will be disturbed only if clear abuse of discretion is shown. State v. Lee, 556 S.W.2d 25, 32 (Mo. banc 1977). In Lee, the defense counsel simply asked the alibi witness how long it took to travel from Lawrence, Kansas to Kansas City without any reference to speed, route, or distance. Also, no further attempt to add any reference to these variables was made. The court in Lee held that as a result no evidence was introduced to establish a foundation for a meaningful comparison of travel time. Id. at 32 (emphasis added). Unlike Lee, in this case the state asked the witness (a victim of the burglaries) how long it took to travel from his house to 1-44 and then to Webster Groves. The defense counsel objected and initially the trial court sustained the objection. The state then added the factor of 55 mph after which the trial court permitted the question over the defendant's second objection. We find no clear abuse of discretion by the trial court. In light of all these factors, we believe a meaningful comparison can be made.

Lastly, the defendant contends that the trial court erred in overruling his motion to suppress physical evidence and to suppress oral statements claiming that his arrest was illegal for lack of probable cause. He argues that because the arresting officer did not know that a burglary had been committed, that probable cause could not be established. We disagree.

It was not necessary for the Officer Lange to receive a burglary report to recognize that a burglary had probably taken place, if the situation presented to him was sufficient to raise in the prudent man, a belief that a crime has been committed. State v. Heitman, 589 S.W.2d 249, 254 (Mo. banc 1979). An arrest with or without a warrant requires probable cause, which simply means knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed an offense. Id. at 253. The existence of probable cause must be determined by practical considerations of everyday life on which reasonable persons act and not the hindsight of legal technicians. Id. at 253 citing Brinegar v. United States, 69 S.Ct. 1302, 338 U.S. 160, 93 L.Ed. 1879 (1949).

In State v. Johnson, 447 S.W.2d 285 (Mo.1969) the Missouri Supreme Court again found probable cause for an arrest for burglary under facts similar to the case at bar. In Johnson the police established probable cause after they stopped a car for a traffic violation based on their observation of a bulging orchid pillow case between the two front bucket seats of the car in which one of the occupants was a known police character. This coupled with the driver’s nervous demeanor and inaccurate answers to a simple inquiry as to where they had been and were headed amounted to sufficient probable cause to arrest for burglary. In Johnson, the police had no knowledge that a particular burglary had occurred. To this the court responded by simply saying that numerous burglaries occur everyday in St. Louis County and City and that the bulging orchid pillow case was not the usual, ordinary, expected item which three men would be hauling around with them at 10:00 p.m. Johnson, supra at 291.

In the case at bar, the record reveals that the arrest was not simply based on a butt end of a handgun protruding from a pillow case on the floorboard of the defendant’s automobile which another occupant suspiciously tried to cover with his coat. This gave rise to the probable cause necessary to search the car. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 72 (1982). The arrest for burglary was made after Officer Lange discovered that the object of his lawful search contained not only a loaded handgun but also jewelry and two large bottles full of coins. In light of Johnson and Heitman, this court believes that such an arrest was made with probable cause and the evidence properly admitted. Point denied.

The judgments of conviction are affirmed.

CRIST and CRANDALL, JJ., concur.

      . As of July 1, 1984, the defense of voluntary intoxication may no longer be used to negate a required mental state. See § 562.076 RSMo cum. supp. 1983.