author: NUGENT, Judge.

text:
    Robert S. MISKIMEN, et al., Appellants, v. The KANSAS CITY STAR COMPANY, et al., Respondents.
    No. WD 34230.
    Missouri Court of Appeals, Western District.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      Laurence R. Tucker (argued), Steven G. Emerson, Kansas City, for appellants.
    John T. Martin, Sam L. Colville (argued), Gary L. Whittier and Dennis R. Dow, Kansas City, for respondents.
    Before PRITCHARD, P.J., and MAN-FORD and NUGENT, JJ.
   NUGENT, Judge.

In a declaratory judgment action tried to the court without a jury upon a stipulation of facts and submitted exhibits, the court declared that the defendant newspaper publisher, The Kansas City Star Company, had the right and the power to terminate its contracts with the plaintiffs, independent subscription carriers of the company’s newspapers. The court further declared that the company by its conduct over the years had created an expectation that the carriers who had purchased their routes would have a reasonable time in which to recoup their investments before the company could exercise its right to cancel a carrier’s contract. The carriers claim that they have a property interest in their subscription routes, that their contracts are terminable only for cause and that they are not the company’s agents but independent contractors. Relying upon an express termination clause in its contracts, the company contends that it has the power and right to terminate the carriers’ contracts. The carriers appeal. We reverse.

The carriers raise six points on appeal. First, the trial court erred in declaring that the company has the right and power to cancel the contracts at issue since it waived its express contractual right to cancel the contracts upon four days notice and is es-topped from invoking that provision. Similarly, the carriers contend that custom, usage and course of dealing between the parties have modified the contracts so that the contracts are only terminable for cause. Their third point is that they are agents of the newspaper who have an interest in their routes, making their relationship not terminable at will. Finally, they contend that the recoupment is not the proper remedy and that the carriers have a right to recover the fair market value of their routes as a result of the defendant’s cancellation. We find merit in their first point and therefore address only that point.

The Kansas City Star Company, owned by respondent Capital City Communications Company, is the publisher of the major evening and morning newspapers in Kansas City, Missouri. The plaintiffs are independent subscription carriers of the company’s newspapers and its exclusive distributors in designated territories. The carriers deal directly with the subscribers in their respective areas and are responsible for building up a list of subscribers, obtaining the necessary equipment and hiring needed employees to service their routes. Each carrier purchases the needed number of papers at a wholesale price set by the company, and since 1968 the carriers have set their own retail subscription rates.

The carriers have all signed form contracts that varied only in their respective designations of the routes and the wholesale prices. All of the contracts contain an explicit provision that reads as follows, “Second Party [the company] shall have the right to cancel the contract at any time, by giving four days notice of its intention to do so,” or a similar termination clause requiring thirty days notice. The company prepared and furnished the form contracts. The forms of the contracts were never the subject of independent negotiations; they were tendered to the carriers on a take-it- or-leave-it basis. Before 1977, the company had regularly exercised its right under the foregoing clause to terminate whenever it raised the wholesale price, but only then. Over the years, the company’s practice was to inform the carriers that it was terminating the contracts then in force but was willing to sign new contracts with the carriers with an increase in wholesale rates. The forms of the new contracts would be identical to existing contracts except for the change in the wholesale price. Once again, the contracts were offered on a take-it-or-leave-it basis not subject to negotiation. The relationship between the carriers and the publisher began in the 1880’s and remained virtually unchanged until 1977 when the company sought to implement a new delivery system.

The stipulation of facts includes excerpts from the deposition of Roy D. Wasmer, the company’s circulation clerk from 1933 to 1940 and circulation manager from 1952 to 1962. He testified that during the thirty-two years he worked in city circulation the form and wording of the contracts did not change except for the wholesale price. William L. Cook, one of the plaintiff carriers, first entered into a contract with the company on April 4, 1923, and signed his tenth and the last one on June 1, 1974. The first nine contracts, dating from 1923 until 1957, are identical in wording and form except for differences in wholesale prices. The 1974 contract has some changes in form but its provisions are similar to the earlier cpntracts. The parties have agreed that Mr. Cook’s contracts are representative of the contracts used during the period they cover.

The essence of the carriers’ contentions is that they have more than a mere contract right to deliver the defendant’s newspapers, that they have a proprietary interest in their routes or at least have been induced by the company’s conduct to expect that they have such an interest and to rely upon having it. This proprietary interest or expectation, they contend, prevents the company from exercising the termination clause in a way it has never before done. In its memorandum opinion, the trial court found that the carriers do have a proprietary interest in their routes.

For decades, the parties have treated the carriers’ interests in their routes as more than mere contract rights terminable at the company’s will. Over the years, the practice has been for the carriers to buy and sell their routes. As a rule, a sale occurred this way: first, the carrier would enter into a separate sales agreement with a proposed buyer. The carrier would then propose to the company that the buyer take over the carrier’s route and enter into a contract with the company to service the route. The company would check the buyer’s credit references and ability to service the route. Once it had satisfied itself that the buyer was credit-worthy and able and the buyer posted a bond, the company would contract with the buyer. In almost every case, the company would accept the buyer offered by the carrier. In the few cases where it did not accept a proposed buyer, the company allowed the carrier to find a new buyer.

In many instances, the company took a more active role in the sales of routes. The trial court found that the company gave advice to prospective buyers on the values of routes and on occasion proposed that the carriers sell unprofitable segments of their routes. The company also put potential buyers in touch with sellers and published classified advertisements announcing the sales of routes. Upon a sale, it would provide the carrier with the legal forms used to transfer the route.

Judge O’Leary wrote in his memorandum opinion that

[t]hrough the years the value of these routes increased substantially. The purchase price of a route increased from approximately $5.00 per subscriber in the 1940’s to $50.00 per subscriber in the mid-sixties to over $100.00 per subscriber in May of 1974. The observation was made that the routes were going for as high as $200,000.00 to $300,000.00 at the time of cancellation. The immediate, direct and foreseeable effect of the Star’s announcement was the destruction of the market for sale of the carriers’ routes and contracts.

The trial court further found that the carriers used their routes as collateral for loans. Once a carrier and a lender had agreed on a secured loan, the lender would inform the publisher in writing of its security interest in the route. The company would place the letter in the carrier’s file and inform the lender of any sale of the route that occurred before the loan was fully paid. At least on one occasion, the company acknowledged in writing that the lender had a security interest in the route. In 1977, however, the company changed its practice. After that, upon being advised of a security agreement concerning a route, it would inform the lender that it did not acknowledge the lender’s claimed security interest.

The Star also allowed and encouraged the carriers’ designation of their spouses or children as successors to their routes upon a carrier’s death. The company provided the forms used in making such designations. If a carrier failed to make a designation, it would offer the carrier’s route to the carrier’s surviving spouse or children. If the survivors did not want to operate the route, they had the option to sell the-route.

The trial court also found that the company’s management approved and made public statements acknowledging the carriers’ ownership of their routes. In 1947, a minority of the carriers sought to be designated by the National Labor Relations Board as a bargaining unit and to unionize the carriers. That effort was opposed by the publisher and a majority of the carriers. The Star’s position in that controversy was that the carriers were not its employees but were independent business persons who owned their own routes. The trial court in this case found that the company’s position in the N.L.R.B. case was that the carriers’ contracts were the chief if not the sole factor that gave value to their routes. Judge O’Leary noted that the company argued in the N.L.R.B. case that

while the contract uniformly contains an explicit right of termination by the company, in actual practice the contract has uniformly continued until the sale of the route by the route owner. In its brief in this case, the Star stated,
“they have, (the carriers) in the course of dealing over the many years acquired and owned unquestioned and universally recognized vested property rights in their routes. The fact is so firmly established, well known, and generally recognized in the community that local commercial bankers lend their funds on the security of these routes, and there is a strong demand for them at very substantial sums.”

The company espoused that position at a carrier union organizational meeting, in published statements in its papers and in hearings before the National Labor Relations Board. The NLRB eventually ruled in favor of the publisher and found that the carriers were not its employees.

In less dramatic circumstances, the company also publicly maintained that the carriers owned their routes. In 1951, it published a brochure on the history of the newspaper. There it described the subscription delivery system, saying that

[i]n the city the picture is much the same, on a compressed scale. Trucks owned and operated by The Star deliver the paper rapidly to key intersections where the neighborhood routes start. Independent contract carriers owning their routes, buying the papers and responsible for their delivery, pick up the bundles. The number of subscribers varies by route from a few hundred to several thousand and the carriers employ their own boys and men to facilitate the door to door delivery in Kansas City.

In September of 1977, the publisher informed its carriers that it was terminating its contracts with them as of December 1, 1977. The company planned direct delivery of its publications to its subscribers by way of independent delivery agents. The trial court found that the immediate, direct and foreseeable effect of that announcement was the destruction of the market for sale of the carrier’s routes and contracts. The company offered the carriers new contracts as delivery agents under the new system.

In its September, 1977 letter to the carriers, the company stated that its hope was that the carriers would continue to receive the same income under the new system they received under the former system. The new contracts were offered on a take-it-or-leave-it basis and were not subject to independent negotiations. The proposed contract form provided that the contract was unassignable and not subject to sale or hypothecation. Soon after the announcement, the carriers filed this suit.

Count II of plaintiffs first amended petition was severed and tried to the court without a jury upon stipulation of facts and numerous exhibits. In a court tried case upon a stipulation of facts, the only question before a reviewing court is whether the trial court drew the proper legal conclusions from those facts. Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo.1979) (en banc); Western Casualty & Surety Co. v. Kohm, 638 S.W.2d 798, 799 (Mo.App.1982). We can only address the legal consequences of the stipulated facts and submitted exhibits. Schroeder, supra, 592 S.W.2d at 744.

In the present case, the trial court found that the carriers do not have a contractual right of endless duration to deliver the defendant’s publications and that the company has the right and power to terminate the contracts. The court further declared that the carriers have a protectible interest in their contracts and their routes. Finally, the court declared that by its conduct over the years, the defendant created an expectation that a purchaser of a route would have a reasonable time under his or her contract to recover his initial investment before the company had the right to cancel the contract. The court left for future decision what that reasonable time would be under the facts of each particular contract.

The legal issue in this case concerns the duration of the contracts and whether the company had the right to terminate these contracts without cause in accordance with the termination clause. Our first step is to determine the legal relationship between the parties. That relationship does not neatly fit into the pigeon holes of principal and agent, master and servant, or a sales and exclusive distribution relationship. On the one hand the carriers are independent business persons who own their own equipment, hire their own employees, set retail prices, and independently develop their own lists of subscribers. The company exercises no control over the retail distribution to subscribers by the carriers so long as the carriers satisfactorily service their routes. In other aspects, the carriers appear to be the publisher’s agents. They exclusively distribute its publications in certain geographic areas, they buy the papers they need at the company’s wholesale prices, and by their terms the contracts under which they operate purport to allow the company to cancel without cause upon requisite notice. The Missouri Supreme Court in Skidmore v. Haggard, 34 Mo. 837, 110 S.W.2d 726 (1937), held that for purposes of tort liability the carriers were not the company’s servants but independent contractors.

Courts in other jurisdictions have called this type of relationship either a true sales agency or a sales and distribution relationship. See A.L.R.3d 196; 9 Williston, A Treatise on the Law of Contracts, (3rd ed. 1967 Cum.Supp.1984) (hereinafter Williston), § 1017(A), at 137-39. Despite certain distinctions between these two relationships, for purposes of determining the duration of contracts between the parties, they are the same, and cases on either type of contract are authoritative. Superior Concrete Accessories, Inc. v. Kemper, 284 S.W.2d 482 (Mo.1955); 9 Williston, supra, § 1017(A), at 138. Williston points out that the courts have dealt with five situations involving the issue of termination: (1) where a definite time is fixed on both sides; (2) where a determinable time is fixed on one side only; (3) where the agreement contains no provision whatever for its termination; (4) where the agreement, otherwise sufficiently definite as to duration, reserves to one of the parties a right to prior cancellation; (5) where no definite time for termination is fixed on either side, but the contract provides that it may be cancelled by either party at will or upon proper notice or upon written notice, or for designated cause, or for dissatisfaction. 9 Williston, supra, § 1017(A), at 137 et seq. The contracts at issue here fit within the fifth category.

The general rule for the duration of contracts of indefinite duration is that they can be terminated at will upon the giving of the required notice. 9 Williston, supra, § 1017(A), at 137-39.

This was essentially the conclusion of the trial court. The trial court stated in its memorandum opinion, that Staroske v. Pulitzer Publishing Co., 235 Mo. 67, 138 S.W. 36 (1911), and Meyer v. Pulitzer Publishing Co., 156 Mo.App. 170, 136 S.W. 5 (1911), formed the “bedrock” of its decision in this case. Both cases concerned a newspaper’s termination of a contract with its carriers. In both cases the terms of the carriers’ contracts had no definite period of duration. The court in each case recognized the general rule that, where no time is fixed at which an agreement is to end, the agreement is terminable at the will of either party. Staroske, supra, 138 S.W. at 39; Meyer, supra, 136 S.W. at 7. In each case the court characterized the parties’ relationship as principal and agent.

Although it involved a termination for cause, the Meyer decision also states that even though the principal can at will revoke a contract of indefinite duration, he may not do so until the agent has had sufficient opportunity to recoup any of his expenses incurred and the value of any labor expended in good faith induced by the principal. Id. at 9. The rule was followed in Superior Concrete Accessories, Inc. v. Kemper, 284 S.W.2d 482 (Mo.1955), and in Beebe v. Columbia Axle Co., 117 S.W.2d 624 (Mo.App.1938).

The terminable at will contract discussed in this decision is not voidable on grounds of a lack of mutuality. 9 Williston, supra, § 1017(A). Binding promises exist on both sides of the agreement. The agent promises to set up a distribution or retail system through his own efforts and expenditures. The manufacturer or supplier promises that the distributor will exclusively distribute its product in a designated area; therefore, the manufacturer gives up its right to use other means of distribution. Finally, the parties are presumed to contract with the applicable law of contracts in mind at the time of agreement. Union Pacific R.R. v. K. C. Transit Co., Inc., 401 S.W.2d 528, 534 (Mo.App.1966).

The fleshing out of the general rules does not solve our case but only provides a framework for our decision. The carriers seek to prevail on the ground that the general rules do not control the unique facts or the circumstances before us. They propose several theories which they say take this case out of the foregoing general rules. We take up only the first of those— estoppel.

The carriers raise the interrelated doctrines of promissory estoppel, equitable es-toppel, and waiver. The trial court found in references to these claims,

There is no evidence that the Star company has ever expressly promised not to cancel a contract or to forever adhere to one system of newspaper delivery. There is no evidence before this Court of an admission, statement or act by the Star Company which is inconsistent with its claim that, as a party to an indefinite term contract, it has the right to terminate that contract in order to effect necessary changes for the future distribution of its newspapers. Accordingly, the Court holds that the Star Company is not estopped from exercising its rights. There is no “Injustice” which arises from the exercise by the Star Company of its rights.

We cannot agree. The correct legal conclusion to be drawn from the stipulated facts and exhibits is that the company’s position here is dramatically inconsistent with its conduct toward the carriers from the 1880’s until 1977. The company is equitably estopped from invoking the termination provision of its contracts with the carriers. Since we find for carriers on the ground of equitable estoppel, we need not address the interrelated issues of promissory estoppel and waiver.

As we begin our consideration of the applicability of the doctrine of estoppel, we note that the facts in neither Staroske v. Pulitzer Publishing Co., supra, 138 S.W. 36, nor Meyer v. Pulitzer Publishing Co., supra, 136 S.W. 5, justified application of the principles of estoppel. Estoppel was not considered in either case.

The doctrine of equitable estoppel followed in Missouri has been stated as follows:

“Equitable estoppel” or “estoppel in pais” is that condition in which justice forbids that one speak the truth in his own behalf. It stands simply on a rule of law which forecloses one from denying his own expressed or implied admission which has in good faith and in pursuance of its purpose been accepted and acted upon by another. Brooks v. Cooksey, Mo., 427 S.W.2d 498. To constitute estoppel in pais, three things must occur: first, an admission, statement or act inconsistent with a claim afterwards asserted and sued upon; second, action by the other party on the faith of such admission, statement or act; and third, injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act. Emery v. Brown Shoe Company, Mo., 287 S.W.2d 761, 767 [2, 3]; State ex inf. Shartel ex rel. City of Sikeston v. Missouri Utilities Company (banc), 331 Mo. 337, 53 S.W.2d 394, 399 [9-11]; 31 C.J.S. Estoppel § 67, p. 405; White v. Smith, Mo.App., 440 S.W.2d 497, 503.

Peerless Supply Co. v. Industrial Plumbing & Heating Co., 460 S.W.2d 651, 665-66 (Mo.1970). An equitable estoppel cannot arise unless justice demands it; it cannot be used as a sword to create or work a positive gain for the claimant but can only act as a shield to protect him from a loss which he could not otherwise escape. Caraveo v. Dumas-Milner Chevrolet Corp., 377 S.W.2d 482, 485 (Mo.App.1964). The purpose of estoppel is to restore the parties to the same relative positions that they would have occupied if the basis for estop-pel had not existed. Shaffer v. Hines, 573 S.W.2d 420, 422 (Mo.App.1978). A party may be estopped by conduct from claiming rights or benefits arising out of a contract. Sharp v. Interstate Motor Freight System, 442 S.W.2d 939, 946 (Mo.1969) (en banc).

No definition of estoppel, however, can be completely satisfactory. An equitable estoppel rests largely on the facts and circumstances of the particular case, thus any attempted definition usually amounts to no more than a declaration of an estop-pel under those facts and circumstances. State ex rel. Consolidated School District v. Haid, 31 Mo. 739, 41 S.W.2d 806, 808 (1931).

The particular facts and circumstances of this case furnish the base upon which we find that the company is equitably es-topped.

First, the company’s position that it can terminate these contracts at will upon notice is almost totally inconsistent with its actual conduct for over ninety years. From the 1880’s until 1977, the company maintained that the carriers had a proprietary interest in and owned their routes. The company approved of and actively participated in the carriers’ practice of selling their routes. It countenanced the practice of the carriers’ use of their routes as collateral and until 1977 acknowledged that lenders could have a security interest in such routes. It treated those routes as property subject to being passed to members of a carrier’s family upon his death, even providing the forms that the carriers used to designate a successor. It regularly contracted with those successors upon the carrier’s death. Finally, in several instances, it represented in its statements and publications that the carriers owned their routes. The trial court found that the carriers have a property interest in their routes.

Now, for the first time, the company claims that the carriers have no property interest at all but merely a contract right that is terminable at will, a position entirely inconsistent with its words and actions recognizing the continuing property interest of the carriers for over ninety years.

The second element necessary to raise equitable estoppel is reliance. One claiming an estoppel must have acted in reliance and to his detriment upon the admission or conduct of the one estopped. Peerless, supra, 460 S.W.2d at 666. The party claiming estoppel must have been misled to his prejudice. White v. Smith, 440 S.W.2d 497, 504 (Mo.App.1969). The party must have changed his position:

Finally there must have been some definite act on the part of the party claiming the estoppel, in reliance on the representation of the estopped party, which has changed his condition for the worse. He must have suffered a legal detriment; but the legal detriment must not be merely formal, as it is in the case of the doctrine of consideration in the law of contracts, but actual. His condition must be such that, if the estoppel be not permitted, he will suffer damage.

Block v. Block, 593 S.W.2d 584, 589 (Mo.App.1979), quoting from State on Inf. McKittrick ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607 (1936) at 615.

The reliance element may be satisfied by examining the entire history of the relationship of the publisher with its carriers. All of the carriers purchased their routes from former carriers. The practice of the company up until 1977 was to acknowledge and acquiesce in the carriers’ claims of ownership of the routes. By 1977 the prices paid for some of the routes was between $200,000 and $300,000. No one in his right mind would purchase anything for such a large sum believing that his right to keep and work and continue to profit from the property could be terminated upon four days notice. Nothing could be more obvious than that the carriers in purchasing the routes and in devoting their lives and fortunes to build their businesses acted in reliance on the company’s previous owners’ and managers’ explicit and implicit representations and acts giving assurance that the contractual relationship was a lasting one and not subject to unilateral termination without cause.

Reliance may also be shown by the fact that the one claiming estoppel will suffer an actual loss if the company is not estopped. Missouri Utilities, supra, and Block, supra. The injury to the carriers that will result if the company is not es-topped is clear. The market value for the routes was abruptly destroyed by the attempted cancellations. The company has offered to enter into contracts with the carriers as delivery agents in a direct delivery system. It “hopes” that the delivery agents will realize the same income they realized under the independent carrier system. Nevertheless, the carriers have suffered an injury in that they no longer have the ability to sell their routes.

In finding an estoppel in this case we do nothing more than leave the parties in the position that they were before the company’s decision to change its delivery system. Caraveo, supra, and Shaffer, supra. The carriers are not being awarded any new right or given a positive gain but are only being allowed to retain what they always had. To permit the company to change its delivery system without compensating the carriers for the loss of their businesses would be manifestly unfair.

The unfairness of the situation is further emphasized by the fact that the termination provision was never the subject of bargaining or negotiation. The Star’s conduct created a reasonable expectation in the carriers that the relationship was not merely one of a contract terminable at will. It created a reasonable expectation that each carrier owned a business that could be conveyed and sold in the knowledge based upon over ninety years of history that the carrier’s business would continue so long as the company’s business continued and so long as the individual carrier performed his part of the bargain.

For the foregoing reasons, we hold that the company cannot terminate its contracts with its carriers at will without cause. Accordingly, we reverse the judgment of the trial court and remand the case to the circuit court with the direction that judgment be entered for each of the plaintiffs in accordance with the prayer of Count II of the first amended petition (declaratory judgment) and for such further proceedings as are not inconsistent with this decision.

All concur.

      . In November of 1953, the Director of Circulation for the Star sent a letter to an attorney representing a carrier regarding the carrier’s selling his route. The letter in part said: “If, in fact, Mr. Frazee has changed his mind and now does desire to sell his route, he being the owner of it, is, of course free to do so to any suitable and competent person, at such price and on such terms as he may choose.”


source: Caselaw Access Project

author: SOMERVILLE, Judge. DIXON, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jessie E. KIRKLAND, Appellant.
    No. WD 35118.
    Missouri Court of Appeals, Western District.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      William M. Barvick, Jefferson City, for appellant.
    John Ashcroft, Atty. Gen., Janet E. Pa-pageorge, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant, an inmate in the Missouri Intermediate Reformatory (“Algoa”), was charged as a “prior offender” in a two-count information, to-wit, Count I, attempt to do injury to a building (§ 217.385, RSMo Supp.1983, a class C felony), and Count II, escape from confinement (§ 575.210.-1, .2(2)(a), RSMo 1978, a class D felony). A jury found defendant guilty as charged under both counts and the trial court fixed his punishment at three years confinement (Count I) and three years confinement (Count II), said sentences to run concurrently, but consecutively with the sentence he was presently serving. Following an unavailing motion for new trial, defendant appealed.

Defendant does not question the sufficiency of the evidence to support the dual convictions. The points of error, three in number, relied upon by defendant are: (1) the trial court erred in failing to instruct the jury on the “defense of necessity” with respect to Count II, escape from confinement: (2) defendant’s conviction for attempt to do injury to a building (§ 217.385, supra) cannot stand because (a) the offense is a lesser included offense of escape from confinement (§ 575.210.1, .2(2)(a), supra) for which defendant was charged and convicted and (b) the acts constituting attempt to do injury to a building were part of a continuing course of conduct in perpetrating the offense of escape from confinement; and (3) defendant’s conviction for attempt to do injury to a building (§ 217.-385, supra) cannot stand because the evidence unequivocally proved a completed act as opposed to a mere attempt to do injury to a building.

None of the points raised by defendant were preserved for appellate review. Regarding point (1), no objection was lodged by defendant on the record at trial or in his motion for new trial that the trial court erred in not instructing the jury on the “defense of necessity” regarding the submitted offense of escape from confinement. Hence, point (1) was not preserved for appellate review. Rule 28.03; Rule 29.11(d); and State v. Martin, 620 S.W.2d 54, 55 (Mo.App.1981). Regarding points (2) and (3), the multiple allegations of error posited therein were never mentioned or included in defendant’s motion for new trial and, accordingly, were not preserved for appellate review. Rule 29.11(d); and State v. Flynn, 541 S.W.2d 344, 348 (Mo.App.1976). Defendant seeks appellate review of the triad of purported errors under the aegis of “plain error”. Rule 29.12(b). Error of such magnitude resulting in “manifest injustice” or “miscarriage of justice” is a prerequisite for invoking the “plain error” rule. Defendant assumes, sub silentio, that the purported grounds of error asserted in points (1), (2) and (3) rise to such magnitude. Giving defendant the benefit of the doubt, and to preclude the specter of any presently claimed errors subsequently arising in an ancillary proceeding, this court will address all three points of error asserted by defendant on appeal.

A brief review of the evidence is required to put the three points in proper perspective for appellate disposition. Defendant was incarcerated in the Missouri Department of Corrections on January 21, 1982, for a term of four years. On or about December 2, 1982, defendant was confined in “Dorm 6” a “lock-down dorm” at Algoa, and shared a cell with inmate Roger Hawkins. Defendant had been placed in “Dorm 6” following his intervention in an altercation involving two other inmates which precipitated a threat or attempt to “knife or stab” defendant in retaliation. His placement in “Dorm 6” was a “protective measure”. Defendant’s cell mate had a saw blade. According to the testimony of defendant’s cell mate, who was called as a witness by defendant, the two “agreed” on December 9, 1982, to cut the restraining bars on the window of their cell and escape. Defendant’s cell mate did the sawing and defendant kept a “lookout”. According to defendant’s testimony he did not entertain any plan or thought of escaping until December 11, 1982, when he was told that he would be put back into “general population” on December 14, 1982. Further, according to defendant’s testimony, he was afraid that some of the friends of one of the inmates involved in the altercation he had intervened in would try to “stick him” if he was returned to “general population” and for that reason he decided to escape with his cell mate when the latter completed sawing the restraining bars. The sawing of the restraining bars was completed about 1:00 a.m. on December 13, 1982, and defendant and his cell mate effected their escape. Defendant and his cell mate were “at large” approximately fifteen hours, as they were not apprehended until about 4:15 p.m. on December 13, 1982, at a “church” approximately 3V2 miles from Al-goa. During the fifteen-hour interval just mentioned, defendant made no effort to report or surrender himself to the proper authorities. Moreover, defendant made no effort to report his fear or apprehension of being returned to “general population” after being advised thereof on December 11, 1982.

The defense of “justification”, the crux of defendant’s first point, which is functionally synonymous with the defense of “necessity”, is statutorily embodied in § 563.026, RSMo 1978, as part of the Criminal Code. State v. Baker, 598 S.W.2d 540 (Mo.App.1980); and State v. Daniels, 641 S.W.2d 488 (Mo.App.1982). MAI-CR2d 2.40, with appropriate adaptations, is the pattern instruction promulgated by the Supreme Court for submission of the defense of “justification” or “necessity”. Paragraph 4 of the “Notes on Use” appended to MAI-CR2d 2.40, provides, inter alia, as follows: “This instruction cannot be given unless the court determines that the claimed facts and circumstances, if true, are legally sufficient for justification. Section 563.026.2. Subject to that rule, if there is evidence to support this defense, MAI-CR 2.40 must be given whether requested or not. It is an affirmative defense.”

A conflict between State v. Baker, supra, a decision by the Missouri Court of Appeals, Western District, and State v. Daniels, supra, a decision by the Missouri Court of Appeals, Southern District, immediately emerges regarding submissibility of the defense of “justification” or “necessity”.

In Baker, this court, after an exhaustive analysis of relevant cases from other jurisdictions, found the following factors “to be important in the evidentiary matrix surrounding the defense: 1) a present and imminent danger, the definition of danger being based upon the facts of a defendant’s confinement and the imminence of the danger not being solely based on a time interval but upon the entire fact situation; 2) exhaustion of remedies or evidence that attempts to do so had been futile and that the imminence of danger of threatened harm is such that no alternative is available; 3) evidence that the escapee did not use force or violence against innocent persons in perfecting the escape; 4) and a duty on the part of the escapee to surrender when the threatened danger has been avoided.” State v. Baker, supra, 598 S.W.2d at 545. As perceived by this writer, the court went on, however, in Baker and expounded the view that factors 2) and 4), supra, although bearing on the issue of the credibility of an escapee’s claim of “justification” or “necessity”, are not essential elements of the defense. State v. Baker, supra, 598 S.W.2d at 545-46. This conclusion is sustained by the following excerpt from State v. Baker, supra, 598 S.W.2d at 546: “To summarize, the essential element which permits the submission of the defense of necessity is the imminence of danger to the person of the escapee. Voluntary return or attempts to do so and, in some instances of continued harassment, recourse to administrative and legal remedies will bear on issues of credibility. These issues bearing on the credibility of the prisoner’s claim can be developed in the evidence and cross-examination_ The defense should be submitted when the offered evidence, if believed by the jury, would support a finding by them that the offense of escape was justified by a reasonable fear of death or bodily harm so imminent or emergent that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the public injury arising from the offense committed to avoid injury to the prisoner.”

In Daniels, the Missouri Court of Appeals, Southern District, quoted with approval the four factors found in State v. Baker, supra, “ ‘to be important in the evidentiary matrix surrounding the defense’ ” of “necessity” or “justification”. State v. Daniels, supra, 641 S.W.2d 489. If correctly perceived by this writer, the court in Daniels, however, held that all four factors, supra, are essential elements of the defense of “necessity” or “justification”, and a failure of proof as to element 4) exonerated the trial court of any error in failing to instruct on defendant’s “affirmative defense” that his escape was occasioned by “duress and necessity”. This conclusion is sustained by the following excerpt from State v. Daniels, supra, 641 S.W.2d at 490: “[T]he glaring deficiency in the defense advanced herein is the total failure of any proof by defendant, or otherwise, that he did or attempted to report or surrender to a single police agency when he attained a position of safety from the averred threats of the Jasper County jail personnel.” This court sees no escape from the conclusion that an irreconcilable conflict exists between State v. Baker, supra, and State v. Daniels, supra.

Notwithstanding the conflict heretofore noted between State v. Baker, supra, and State v. Daniels, supra, defendant's first point in the instant case, on its facts, lends itself to being disposed of within the divergent holdings of both cases. The total failure of any proof by defendant, or otherwise, that he reported or surrendered himself to the proper authorities (factor 4, supra) after escaping insulated the trial court, under State v. Daniels, supra, from any charge or claim of error for not instructing the jury on the defense of “justification”. Turning to State v. Baker, supra, the defense of “justification”, in order to be submissible, must be supported by evidence that an escapee’s fear of death or bodily harm is “imminent or emergent”. State v. Baker, supra, 598 S.W.2d at 546. The record in the instant case discloses that administrative personnel at Algoa, apparently in response to attempts or threats of harm directed toward defendant following his intervention in the altercation previously mentioned, immediately placed defendant, for his own benefit, in “Dorm 6” as a “protective measure”. Defendant’s testimony that he received word on December 11, 1982, that he was going to be returned to “general population” on December 14, 1982, implies that any danger associated with threats previously directed towards him arising from the altercation which he intervened in had subsided. Moreover, there is no evidence of any threats leveled towards defendant after December 2, 1982. In sum, there is not a scintilla of evidence that defendant’s fear or apprehension of being returned to “general population” sprang from any threat or threats which could be characterized as “imminent or emergent”. Defendant’s testimony, at best, reflected a subjective state of mind, absent corroborating evidence of any present or current threat of harm at the time he decided to escape. If nothing more than testimony by an escapee of a subjective fear or apprehension of harm or injury is all that is required to support submission of the defense of “justification”, then the defense becomes a mockery and its authenticity in genuine factual contexts which cry out for relief is seriously jeopardized. Subjective fear or apprehension of harm or injury, standing alone, even under State v. Baker, supra, does not brand a trial court with error for failing to submit the defense of “justification” in an escape case.

Due to the bifurcated nature of defendant’s second point, the dual contentions contained therein will be separately addressed for purposes of clarity. First, defendant contends that his conviction for attempt to do injury to a building (§ 217.-385, supra) cannot stand because said offense is a lesser included offense of escape from confinement (§ 575.210.1, .2(2)(a), supra) for which he was also charged and convicted. It is manifest that attempt to do injury to a building, designated by defendant as the lesser included offense, is not a necessary element of escape from confinement, designated by defendant as the greater offense. A fertile imagination is not required to envision numerous ways by which escapes from confinement can be effected without attempting to do injury to a building. Perforce, all elements of the lesser offense, i.e. attempt to do injury to a building, are not required to establish the greater offense, i.e., escape from confinement. Gauged by the “statutory element test”, attempt to do injury to a building, contrary to defendant’s contention, is not a lesser included offense of escape from confinement. See State v. Neighbors, 613 S.W.2d 143, 147 (Mo.App.1980). As stated in State v. Seddens, 624 S.W.2d 470, 473 (Mo.App.1981), “[a] lesser offense is not included in a greater unless it is impossible to commit the greater offense without first committing the lesser.”

Second, defendant contends that his conviction for attempting to do injury to a building cannot stand because the acts committed with respect thereto were part of a continuing course of conduct in perpetrating the offense of escape from confinement. Neither offense was included in the other, supra, even though they occurred in a continuing course of conduct, and each was a separate offense for which defendant was subject to being charged and convicted. See State v. Olson, 636 S.W.2d 318, 320 (Mo. banc 1982). Defendant relies principally upon §§ 556.046 and 556.041, RSMo 1978. He contends that under § 556.046, supra, attempt to do injury to a building is an offense included within escape from confinement, and under the prescription of § 556.041, supra, he cannot be convicted of both charges. Defendant’s reliance thereon is misplaced as evidenced by State v. Lewis, 633 S.W.2d 110, 114 (Mo.App.1982): “The code definition of included offense enacts, in paraphrase, the Blockburger [Blockburger v. United States, 284 U.S. 299, l.c. 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) ] test that where the same conduct constitutes a violation of two distinct statutory provisions, ‘the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not,’ — if so, there is no identity of offense. State v. McCrary, 621 S.W.2d 266 (Mo. banc 1981); State v. Chambers, 524 S.W.2d 826, 829[1, 2] (Mo. banc 1975).” Both contentions embodied in defendant’s second point are overruled.

Defendant’s third and final point, that his conviction for attempt to do injury to a building cannot stand because the evidence unequivocally proved a completed act as opposed to a mere attempt to do injury to a building, is without merit. The advent of the Criminal Code, more particularly § 564.011, RSMo 1978, captioned “Attempt”, has eliminated “failure” as an element of attempt offenses. The committee “Comment” to the “1973 Proposed Code” appended to § 564.011, supra, in V.A.M.S., (1979), addresses the matter as follows: “Subsection 1 does away with failure as an element of attempt offenses. Present law permits a defendant charged with attempt to argue that he is innocent because he actually went through with the crime. By eliminating failure as an element of attempt, the section avoids the problem of losing a conviction on a charge of attempt when the evidence shows that the offense was completed.”

Judgment affirmed.

SHANGLER, J., concurs in majority opinion.

DIXON, P.J., concurs in result in separate concurring opinion.

DIXON, Judge,

concurring.

I concur in the result on the issue of submissibility of the defense of necessity. My reasons for concurrence are somewhat different than those expressed in the majority opinion.

My examination of the record reveals the following facts. The defendant asserts he became involved in an altercation between two other prisoners when he attempted to prevent a black prisoner from stabbing a white prisoner. He further asserts the black prisoner tried to stab him. The black prisoner was relegated to the “hole” (administrative segregation), and the defendant says that same night, friends of the black prisoner again “tried to stick him.” The defendant was then sent to the “Special Adjustment Unit,” which was later identified as “Special Adjustment Unit, 9 Dorm.” The escape was from “6 Dorm,” a “lock down” dormitory. There is no evidence as to the duration of the defendant’s stay in the “Special Adjustment Unit Dorm 9.” The defendant had been in “6 Dorm” for about 10 days. Thus, there is no evidence of any kind, nor any inference to be drawn from the facts, concerning the length of time between the altercations and the escape.

The defendant would be entitled to the submission of the defense if there was evidence from which a reasonable person could conclude that his escape was motivated by a reasonable fear of imminent death or bodily injury.

The time interval between the altercations and the escape is crucial to a determination of that issue. If the event were fresh and within a reasonable time, the defense would be submissible. The vital linkage of the time of the earlier attacks with the escape itself is lacking in this case. The testimony of the fear or apprehension of the escapee will, in all cases, be subjective. The key is the reasonableness of those subjective feelings, and that depends on the recital of the events that purport to give rise to that state of mind. Therefore, I agree that the defense was not submissi-ble on these facts.

      . It is unnecessary to dwell on whether the contention at hand rests on a false premise— that escape from confinement, a class D felony, is a greater offense, and attempt to do injury to a building, a class C felony, is a lesser offense. Prevailing case authority subsequently cited in the body of this opinion dispels any merit to defendant’s contention of a lesser included offense.


text:
    STATE of Missouri, ex rel. Charles WILLMAN, M.D., Respondent, v. ST. JOSEPH HOSPITAL, Appellant.
    No. WD 35665.
    Missouri Court of Appeals, Western District.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.
    Thomas G. Kokoruda (argued), Jennifer A. Gille and Suzanne Shank, Kansas City, for appellant.
    John C. Milholland (argued), Kansas City, for respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   NUGENT, Judge.

St. Joseph Hospital appeals from the circuit court’s judgment on the pleadings and issuance of a peremptory writ of mandamus directing it to reinstate the hospital and staff privileges of Dr. Charles Willman which were revoked by the hospital’s governing body, such revocation being a breach of contract. We reverse the judgment of the circuit court and affirm the hospital’s revocation of Dr. Willman’s hospital and staff privileges.

St. Joseph hospital is a not for profit corporation organized under the laws of Missouri. Dr. Willman is a medical practitioner who has hospital and staff privileges with the appellant hospital. On November 8, 1988, the hospital’s board of directors revoked the doctor’s privileges by affirming earlier decisions or recommendations of various medical staff committees. The doctor complains that the procedures employed by the hospital in revoking his privileges were not in accord with the hospital’s corporate bylaws and the “medical staff bylaws.” He does not raise any issue as to the substantive reasons leading to the revocation. The facts of this case are not in dispute.

In the fall of 1982, in accordance with the “medical staff bylaws,” the hospital’s board of directors requested that the medical staff review the doctor’s work at the hospital. The doctor was notified of this request by letter in October of 1982. The executive committee of the staff conducted the review and recommended to the medical staff’s credentials committee that corrective action be taken. The doctor was notified of this recommendation and appeared before the credentials committee where his case was discussed. The credentials committee reported to the executive committee recommending corrective action.

In May of 1983, the executive committee notified the doctor of the report, and the doctor was allowed to appear before the executive committee where once again his case was discussed. The committee unanimously voted to revoke his privileges. By a letter dated June 8, 1982, he was notified of that decision.

The major issue before us stems from the following language used in the June 8 letter: “At the conclusion of the Executive Committee meeting which you appeared before on June 7, 1983, the committee voted unanimously to revoke your hospital privileges in total, effective immediately.” (Emphasis added.) The doctor contends and the trial court found that the staff bylaws authorize the executive committee only to recommend a revocation, that it is not authorized to revoke a practitioner’s privileges. Power to revoke is vested solely in the hospital’s board of directors. The June 8 letter also informed the doctor of his right to a hearing before an ad hoc committee of the medical staff.

The doctor exercised this right and the hearing was conducted on August 31, 1983. The ad hoc committee subsequently affirmed the executive committee’s decision. The doctor was duly notified and informed of his appeal rights under the bylaws. He exercised those rights, and the hospital’s board of directors appointed an appellate review committee. That committee reviewed the earlier decisions and recommended that the board affirm the earlier recommendations. The board of directors affirmed the committee’s recommendation, and on November 8, 1983, notified the doctor that his privileges had been finally revoked.

On November 17, 1983, Dr. Willman filed a proceeding in mandamus in the circuit court. The court issued a preliminary writ, and in December of 1983 the doctor moved for a judgment on the pleadings. Rule 55.27(b). The court sustained the motion, entered judgment, and issued a peremptory writ of mandamus directing the hospital to reinstate the doctor. The court concluded that the staff bylaws constitute a contract between the doctor and the hospital, and that the procedures followed in revoking the relator’s privileges were not in accord with the bylaws and, therefore, the hospital’s revocation was a breach of contract. The court also held that mandamus was the proper remedy, since it was the doctor’s only adequate legal remedy.

Following that decision, the hospital on January 9, 1984, moved that the circuit judge recuse himself on the ground that the judge had at one time been the doctor’s patient. The court later denied the motion. On January 11, 1984, the hospital filed a motion to amend the judgment entry and peremptory writ of mandamus. On January 31, 1984, the court denied that motion and the hospital appealed. Rules 81.04; 81.05; and 78.04.

The hospital raises several points on appeal, but its last point is controlling and is the basis of our decision; we need not address appellant’s other points. We assume for purposes of this decision but do not hold that the bylaws are a contract and mandamus is the correct remedy.

The circuit court granted Dr. Willman’s motion for judgment on the pleadings. The scope of our review is set forth in McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, 760-61 (1950), where the court held that

such a motion is sustainable only where, ‘under the conceded facts, a judgment different from that pronounced could not be rendered notwithstanding any evidence which might be produced. In other words, it cannot be sustained unless, under the admitted facts the moving party is entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined.’

The problem in this case is that the undisputed facts do not support a judgment for Dr. Willman on any ground. The circuit court erred in its reading of the hospital bylaws and in finding that the bylaws were violated so as to constitute a breach of contract.

The trial court’s judgment was based solely upon its finding that the staff bylaws do not authorize an executive committee of the hospital’s medical staff to revoke a practitioner’s privileges, that the committee is authorized only to recommend revocation to the board of directors, and the board is the only hospital body authorized to make such a decision. The trial court found that the executive committee’s letter of June 8, stating that the doctor’s privileges were revoked was a breach of contract, and all the procedures that followed were null because of that defect.

The hospital’s corporate bylaws provide that the board shall delegate to the medical staff the responsibility and authority to investigate and evaluate all matters relating to medical staff membership including making recommendations for corrective action. Those bylaws also prescribe that the procedures to be followed by the medical staff in recommending corrective action be set forth in “medical staff bylaws.” Those bylaws had been duly adopted and were followed in this case except for one variation. The bylaws further provide that the board shall take final action on all medical staff membership matters after considering staff recommendations.

The prescribed reviews, the hearing and the appellate review afforded Dr. Willman were in accordance with the hospital and medical staff bylaws. As the court found, the medical staff bylaws in fact authorize the executive committee only to recommend that a practitioner’s privileges be revoked. When that recommendation is made, the practitioner is entitled to the procedural rights afforded under Article VI of the staff bylaws. Section (2)(c) of Article VI of those bylaws provides that “the adverse recommendation or decision shall remain effective against the practitioner pending the governing body’s final decision.”

Assuming that the bylaws are a contract, they should be read and construed as a whole. See Beck v. Hoel-Steffen Const. Co., 605 S.W.2d 810, 813 (Mo.App.1980); J.K. Seear (U.S.A.) Ltd. v. C.O. Jones & Son Insurance Agency, 364 S.W.2d 640, 642 (Mo.App.1963). But even if we do not treat the bylaws as a contract, the rules of construction that apply to statutes and contracts apply to corporation charters and bylaws. Missouri State Teachers Ass’n v. St. Louis Suburban Teachers Ass’n, 622 S.W.2d 745, 749 (Mo.App.1981); Toler v. Clark Rural Elec. Cooperative Corp., 512 S.W.2d 25, 26 (Ky.App.1974). Reading the section authorizing the executive committee to recommend the revocation of privileges together with section (2)(c) of Article VI (providing that a recommendation is effective pending final decision) makes clear that when the executive committee recommends revocation the practitioner thereupon loses his privileges pending review. In effect, the bylaws authorize the executive committee to suspend a practitioner’s privileges until the board of directors, the governing body, makes the final determination.

The executive committee’s use of the word “revoke” in the June 8 letter rather than the words “recommending revocation” caused the doctor no harm. Whether the committee stated that it was “recommending revocation” or “revoking” the practitioner’s privileges, the result was a suspension of those privileges. The doctor was afforded the protection of all the prescribed procedures after the initial executive committee decision. The board after reviewing the various recommendations and decisions made the final determination. Minor or technical variations from hospital bylaws are things of which the law does not take notice. Miller v. Indiana Hospital, 277 Pa.Super. 370, 419 A.2d 1191, 1194 (1980); Hart City Board of Education v. Broady, 577 S.W.2d 423, 426 (Ky.App.1979).

In his petition the doctor alleged other violations of its bylaws by the hospital. The trial court did not base its decision on those additional allegations, and the doctor did not brief those points as alternative grounds for the circuit court decision. We will address them, however, to show that no ground appears upon which judgment could have been entered for the doctor.

First, Dr. Willman complains that he was not afforded a fair hearing by the board of directors as required by the hospital’s corporate bylaws. He misreads those bylaws because they only provide that corrective action recommended by the medical staff be made in accordance with a “fair hearing plan” approved by the board. The medical staff bylaws include such a hearing plan and those bylaws, including the “fair hearing plan,” were approved by the board. Such a hearing was conducted, and the doctor does not allege that the hearing itself was defective.

The doctor in his petition below also complained that a subjective standard of “necessity” was used to determine whether a practitioner subject to corrective action will receive a hearing and appellate review. Since a hearing and appellate review were conducted in his case, however, he has no cause for complaint on that ground.

Next the doctor asserts that the appellate review committee did not affirm a decision of the governing body of the hospital as required by the bylaws. The medical staff bylaws provide for an appeal to the governing body, the board of directors, from an adverse recommendation concerning a practitioner’s privileges. When the appeal procedure is initiated, the board appoints an appellate review committee. The bylaws confusingly provide that “after the appellate review committee meeting, they shall recommend in writing to the governing body, to affirm, modify, or reverse its prior decision.” The provision makes little sense since the board at that stage of review has made no “prior decision” and does not make its decision until after the appellate review committee makes its recommendation. Since the board in this particular situation acts only after the appellate procedure, the only sensible interpretation of this provision is that the review is of the earlier executive and credentials committee recommendations. This interpretation is supported by a reading of the bylaws as a whole which shows that the procedure is designed to give the board the final word in revoking staff privileges. The doctor was afforded an appellate review and the hospital board made the final determination.

Finally, the doctor in his initial pleadings raised an issue as to whether he was denied procedural due process under the Fourteenth Amendment of the United States Constitution. The hospital argues that no state action occurred. Even if the hospital’s action was state action, the doctor was afforded ample procedural rights to satisfy any constitutional requirements. See Klinge v. Lutheran Charities Ass’n. of St. Louis, 523 F.2d 56, 61 (8th Cir.1975).

We hold that Dr. Willman was afforded the procedures provided for in the corporate and the medical staff bylaws and that the only deviation from those bylaws was of no consequence. Accordingly, we reverse the judgment of the circuit court and remand the case to the trial court and direct the court to quash its peremptory writ of mandamus issued herein on December 27, 1983.

All concur.


author: CLEMENS, Senior Judge.

text:
    Wendell Wayne WRIGHT, Appellant, v. STATE of Missouri, Respondent.
    No. 48574.
    Missouri Court of Appeals, Eastern District, Division Six.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    James Stewart McKay, Public Defender, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Appeal from summary denial of a Rule 27.26 motion.

In 1976 a jury found movant-defendant Wendell W. Wright guilty of felonious assault and robbery. The trial court sentenced him as a prior felon to consecutive prison terms of thirty-five years and life. He appealed and the judgment was affirmed. See State v. Wright, 551 S.W.2d 884 (Mo.App.1977).

In his amended Rule 27.26 motion defendant contends trial counsel was ineffective in (A) waiving a preliminary hearing, (B) failing to move to suppress a photo line-up identification, and failing to preserve the issue in the motion for new trial, and (C) failing to timely move to suppress testimony about a shotgun found near the crime scene.

In summarily denying defendant’s motion, the court filed findings on each of the above points. It ruled that matters pertaining to preliminary hearing are not cognizable under Rule 27.26, and that movant’s other points were matters of trial strategy not reviewable under Rule 27.26. We agree.

As ruled in Trivitt v. State, 621 S.W.2d 103 (Mo.App.1981), citing Rule 27.260), our review is to decide whether the trial court’s judgment was clearly erroneous, and “alleged trial errors, which are reviewable on direct appeal, and second-guessing of trial strategy employed by an attorney do not give rise to ineffective assistance of counsel.” See also Gentile v. State, 637 S.W.2d 30 [4, 5] (Mo.App.1982).

We conclude the trial court did not err in denying defendant’s Rule 27.26 motion.

Affirmed.

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


author: PER CURIAM.

text:
    Charles E. ANDERSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35754.
    Missouri Court of Appeals, Western District.
    Nov. 13, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.
    C.J. Larkin, Columbia, J. Armin Rust, Lexington, for appellant.
    John Ashcroft, Atty. Gen., Thomas Carter, II, Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM.

Appeal from denial of Rule 27.26 motion to vacate conviction for stealing in connection with a burglary, Section 560.110, RSMo 1969 and sentence of four years imprisonment.

Judgment affirmed. Rule 84.16(b).


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. John Lee GIBSON, Appellant.
    No. 47018.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Timothy A. Braun, St. Charles, for appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Jefferson City, for respondent.
   CRIST, Judge.

Appeal from jury convictions for kidnapping and rape, for which defendant was sentenced to five years imprisonment for kidnapping and eleven years imprisonment for rape. These sentences were to be served consecutively to each other and consecutively to the sentences in two other St. Charles County cases. We modify the sentences and affirm as modified.

Victim exited her car, which was parked in front of her home, at about 11:00 p.m. on May 17, 1977. Defendant drove up next to her and forced her into his car at gunpoint. They then drove to a deserted area where defendant raped victim, and they then returned to the area where victim lived and defendant dropped her off about 3 blocks from her home. Defendant was first convicted of the charges in December, 1979. The convictions were reversed and the case remanded for a new trial by the Missouri Supreme Court. State v. Gibson, 636 S.W.2d 956 (Mo.banc 1982). On that retrial, defendant was again convicted and appeals anew.

On voir dire, the prosecutor, over objection, asked if any member of the panel “would give the victim’s testimony any less weight or tend to disbelieve her solely for the fact that she will admit she had intercourse with her boyfriend before this alleged rape took place?” The denial of admission of this evidence of prior sexual activity referred to in the inquiry was the ground for reversal of defendant’s first conviction. The Supreme Court reasoned that such evidence was admissible under the “Rape Shield” statute § 491.015, RSMo 1978, both because it was evidence of the immediate surrounding circumstances, § 491.015.1(3), RSMo 1978, and because it was probative of the issue of consent. Gibson, 636 S.W.2d at 958-59. Defendant claims the inquiry was tantamount to instructing the jury to disregard evidence specifically ruled relevant by the Supreme Court.

Nothing in this inquiry restricted or foreclosed jury consideration of their evidence on the issues approved by the Supreme Court in Gibson. Rather, the question was a proper attempt to discover whether any prospective jurors had moral scruples or personal biases which would prevent their consideration of or cause them to denigrate the general credibility of victim’s testimony solely because of her premarital sexual activity prior to the commission of the alleged rape. See State v. Neal, 591 S.W.2d 178, 181-82 (Mo.App.1979); State v. Roseman, 583 S.W.2d 232, 233-34 (Mo.App.1979).

Defendant also claims the trial court erred in prohibiting him from stating in his opening statement, what he would prove in cross-examination of the state’s witnesses. This ruling was not in error. In opening statement, the party should outline the evidence he intends to produce, and not argue the case or attack the credibility of the state’s witnesses. State v. Bibbs, 634 S.W.2d 499, 501 (Mo.App.1982); State v. Ivory, 609 S.W.2d 217, 221-22 (Mo.App.1980).

Defendant asserts the trial court erred again when it admitted a statement by defendant to victim that “he did this to other women all the time so [the victim] just better accept the fact he was going to do it.” He claims this was evidence of highly prejudicial unchanged misconduct, and its admission entitles him to a new trial. We disagree.

The statement in question was not offered for the truth of the content. It was not offered to prove defendant had kidnapped and raped other women. Rather, it was offered to illustrate the circumstances surrounding the abduction and rape. Victim, who was crying, was held in a moving car against her will. Defendant said he did not want to hurt her, and for her to shut up. He then made the statement at issue. This statement indicated a threat to victim, which tends to negate any defense of consent, and legitimately tends to establish guilt. Additionally, it was admissible as a part of the res gestae. State v. Albritton, 660 S.W.2d 322, 328-29 (Mo.App.1983); State v. Beardsley, 549 S.W.2d 133, 135-36 (Mo.App.1977).

Defendant makes several complaints, some properly preserved and some not, concerning the prosecutor’s final arguments. The prosecution’s statements at issue were to the effect the defendant’s lawyer did not believe the statements defendant gave the police after his arrest, defendant wanted to change his defense (which the statements indicated could have been alibi) after he had been positively identified and that defendant’s lawyer admitted defendant lied (Defendant’s objection to this statement was sustained with no further relief requested). Defendant also asserts the statements implied the defense attorney improperly fabricated the defense.

We have considered the statements themselves, the context in which they were made, the objection made (and those not made) and the rulings thereon. The comments did not have a decisive effect on the jury. The trial court has wide discretion in controlling the content and extent of final argument, and we find no abuse of such discretion here. E.g. State v. Ballard, 657 S.W.2d 302, 307-08 (Mo.App.1983); State v. Moomey, 581 S.W.2d 899, 902-03 (Mo.App.1979).

Defendant’s final point contains a valid objection to his sentence. At his first trial, the jury recommended sentences of five years for kidnapping and twenty years for rape. The court imposed the sentences consecutively, but, as no mention was made of the two sentences aggregating forty years defendant was already serving in two other St. Charles cases, they were to be served concurrently with those sentences. On retrial, the jury recommended sentences of five years for kidnapping and eleven years for rape. The court sentenced defendant to the recommended terms running them consecutive to themselves and to the sentences in the other two cases. The court stated as its reason “the court feels that if we were to make these sentences concurrent it would do an injustice to every woman in the State of Missouri.” This effectually increased defendant’s sentences from forty years before appeal to fifty-six years after appeal.

For a sentence to be increased on a retrial after a successful appeal, the court must state its reasons for the increase which must be “based upon objective information concerning identifiable conduct” by defendant after imposition of the original sentences. North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969). The record, at best, is unclear as to the reasons involved here. The state has moved this court to remand for a hearing limited to the question of the sentence, to allow the trial court to make the statement required by Pearce. However, considering the interests of both the state and the defendant, we believe it is appropriate to modify the judgment and sentences so defendant receives the sentences recommended by the jury.

The judgment and sentences are hereby modified so that consecutive sentences of five years for kidnapping and eleven years for rape shall be served concurrently with the sentences imposed in the St. Charles County Causes Numbered 19395 and 19396. The judgment and sentencing, in all other respects, is affirmed.

DOWD, C.J., and CRANDALL, J., concur.


author: SIMON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. George ALLEN, Jr., Appellant.
    No. 47811.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 20, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
    Douglas L. Levine, Public Defender, 20th Judicial Court, Union, for appellant.
   SIMON, Presiding Judge.

A jury found defendant guilty of capital murder, rape, sodomy, and burglary. Judgment and sentence were assessed at life imprisonment without the possibility of parole for 50 years on the capital murder and at 15 years on each of the three remaining convictions to be served consecutively. We affirm.

Defendant claims the trial court erred: (1) in failing to exclude his confession because it was both the fruit of an unlawful arrest and also involuntarily given; (2) in permitting the state in its case in chief to present alibi testimony for one of its own witnesses, a possible suspect in the crime; (3) in permitting the state to introduce certain hearsay testimony; and (4) in submitting the case to the jury because of the insufficiency of the evidence.

On appeal, the evidence and its reasonable inferences shall be examined in a light most favorable to the state; all contrary evidence will be disregarded unless it supports the verdict. State v. Van Doren, 657 S.W.2d 708, 711[1] (Mo.App.1983).

Applying this standard, the following account is adduced from the evidence. Mary Bell, the homicide victim, a thirty-one year old court reporter, lived with her boyfriend, a lawyer, in her apartment at 1014b Marion in the City of St. Louis. Both had separated from their respective spouses, but neither was divorced. On Thursday, February 4, 1982, after a two day snow storm, her boyfriend awakened around 7:00 a.m., ate breakfast with Mary and left for his downtown law office around 9:00 a.m. As he left, he locked the deadbolt on the front door. Mary’s next door neighbor in the adjoining apartment heard the boyfriend as he shut the front door and saw him leave the apartment around 9:00 a.m. Sometime after 10:00 a.m., the neighbor heard a woman crying and sounds of an argument between a man and a woman emanating from Mary’s second floor kitchen and bedroom area. The disturbance lasted about ten minutes. Around 10:30 a.m., the same neighbor heard knocking on a door. Unable to distinguish whether it was Mary’s or her front door, neighbor answered her door and saw a woman walking on the sidewalk going out from Mary’s adjoining porch. Pamela Richardson, the woman the neighbor saw leaving, typed transcripts for Mary. She had called Mary sometime between 10:00 a.m. and 10:15 a.m. that morning from a downtown office. Mary interrupted their telephone conversation, explaining she had just taken a shower and needed to put on a robe. When she returned to the telephone, they agreed for Pamela, since she was already downtown and fairly close to Mary’s apartment, to come to the apartment and pick up some additional tapes to type. When Mrs. Richardson arrived at Mary’s house, she knocked several times and waited for Mary to answer. She knocked harder, hearing muffled bumping sounds coming from inside. She stepped back and called out Mary’s name two or three times to the window above. She knocked loudly a few more times and, receiving no reply, left. She tried unsuccessfully several times later that day to reach Mary by telephone.

Mary’s boyfriend had also telephoned her several times during the day but received no answer. When he arrived at the apartment around 6:00 p.m. that evening, he found the apartment door shut but unlocked. Although Mary’s ear was in the parking lot, he saw no sign of her nor did she answer his calls. After a cursory perusal of the apartment without finding her, he went to the apartment manager, a good friend of Mary’s, to help him figure out where Mary was. Together they looked through the apartment. Her boyfriend, after looking more carefully, discovered Mary’s unclad body lying outstretched in a pool of blood in her bedroom between her bed and the wall. The police were called and discovered her throat had been cut, almost severing her head. She had died from multiple stab wounds, including fourteen stab wounds to her back. Anal and vaginal swabs from her body revealed human seminal fluid as did tests on her robe, a director’s chair in the kitchen, and a pair of her pants. While no evidence of trauma to the vagina existed, an examination did show anal lacerations. Blood was found in the bedroom on the sheets, wall, and carpet. Traces of blood were also in the bathroom and on a director’s chair and her robe in the kitchen. A butcher knife, recovered from inside a closet wrapped in a towel in a cooler, had only Mary’s blood on it. All blood analyzed was Mary’s blood type. No prints were recovered from the knife. Of twenty-seven prints found within the victim’s house, twenty were identified. Nineteen of those belonged to Mary’s boyfriend and one to an investigating officer. No fingerprints or microscopic fibers from Mary’s house compared with those eventually taken from defendant.

Defendant was arrested at approximately 10:45 a.m. on Sunday morning, March 14, 1982, walking in the 1900 block of Park Avenue, about nine blocks from Mary’s apartment, by two police officers on routine patrol in that area. Unable to produce identification satisfactory to the officers, defendant agreed to accompany the officers to the police station for further verification of his identity. While in custody, he was taken from the third district by the police officers to police headquarters for questioning by a sex offense detective around noon, followed later by a homicide officer’s questioning of him.

After the homicide detective established defendant was not the man wanted for questioning in Mary Bell’s murder, defendant was released. Defendant’s remarks before leaving that he had been in Mary Bell’s neighborhood on the day of her murder prompted the detective to detain defendant for further questioning. Defendant confessed to the murder of Mary Bell in a taped statement given to the homicide detective. In defendant’s taped statement to the detective, he acknowledged that he had been at Mary’s apartment complex in February, at the time of the “big snow”, the day of her murder. He knocked on her door and when she opened it, forced his way in. He followed her up the stairs where she tried to hold the bedroom door shut against him. He remembered chasing her through the kitchen, also on the second floor, across from the bedroom. In the kitchen she grabbed a butcher knife, about 12 inches long. While grappling with her, he knocked it from her hand. He admitted she was stabbed during the fight and that he had sex with her on her brass bed or on the floor. While in the apartment, he heard knocks and then banging on the front door and a woman’s voice calling out “Sherry” or “something like that.” He thought the knocking on the door was from next door when he heard the next door neighbor open and close her door. He described Mary as white with dark hair, about 20 to 25 years old, with large breasts. Then, when shown a picture of Mary Bell, he admitted she was the woman he had stabbed and killed.

Defendant’s first point contends his confession should have been excluded in response to his motion to suppress and timely trial objections, arguing that the initial warrantless arrest, resulting in his subsequent confession, was not based on probable cause. He also claims his confession was involuntary.

The existence of probable cause for an arrest without a warrant depends on the particular circumstances and the particular offense involved, the question being determined by factual and practical consideration of everyday life on which reasonable and prudent men act. State v. Johnson, 670 S.W.2d 882, 884[1] (Mo.App.1984). Probable cause requires a reasonable ground for belief of guilt. Id. In the first instance, arrest by law enforcement officers is not always required to be by warrant; rather, the question is premised upon whether a warrantless arrest was premised upon probable cause. State v. Smith, 588 S.W.2d 139, 142[1] (Mo.App.1979). That probable cause exists and that it must be reasonable necessarily depends upon the facts of each case. Id. [2]. At the heart of the question is the issue whether the two police officers who picked him up had information sufficient to warrant belief by a man of reasonable caution that defendant had committed the offense under investigation.

We now detail additional facts surrounding defendant’s arrest. The two officers on routine patrol in the area of the housing projects where they arrested defendant knew there had been a rash of rapes in that area occurring on the weekends in the early morning hours. The rape suspect was described as a negro male in his early 20’s, approximately 5'10", 5'11", 150-160 pounds, medium to light skinned, soft spoken and bald or shaved head. The officers also knew a man named Kirk Eaton was wanted for questioning by police concerning Mary Bell’s homicide, because Eaton, a prior sexual offender, had been seen in her neighborhood several weeks prior to her murder. The officers had received an inter-departmental police memorandum with a photograph of Eaton attached, describing him as approximately 5'11", 150 pounds, negro male, early 20’s, with facial hair. When the police officers drove slowly up to defendant that Sunday morning, they observed him to be approximately 5'9", 165 pounds, and in his 20’s. They asked him for identification. Defendant identified himself as George Allen, Jr., that he lived in University City and was 26 years old, but could produce no identification with a photograph. Noticing that his head was shaved, as well as his eyebrows, in addition to his being soft spoken, the officers asked defendant to accompany them to the Third District for questioning to which he agreed. Once defendant was in the car, one of the officers advised him of his Miranda rights.

At the district office the arresting officers first contacted a detective in the sex crimes unit to see if defendant was the project rapist wanted. They also compared the photograph of Rick Eaton to defendant. Unable to determine if defendant was Eaton from the four year old picture, the officers also contacted a detective in homicide who could make the identification. The officers then transported defendant to central headquarters for both the sex crimes and the homicide detectives to determine, respectively, if defendant were the project rapist or Eaton.

Defendant was originally arrested because, in the view of the two patrol officers, defendant matched the description of two different suspects wanted for questioning about crimes committed in that area. Although more than six weeks had elapsed since Mary Bell's homicide, defendant’s location was in the vicinity of the rapes within the projects and the scene of Mary Bell’s murder. The officers’ observations of defendant’s close resemblance to the two wanted suspects, especially the distinguishing feature of his shaved head, and his lack of identification and his presence in the vicinity of the crimes, constitute sufficient evidence for a prudent person to believe the defendant had committed an offense. Additionally, the officers’ further observations at the station were sufficient to detain defendant at the police station; thus, his detention there was reasonable within the meaning of the Fourth Amendment. His subsequent confession was not tainted as the product of an illegal seizure of his person. State v. Dixon, 655 S.W.2d 547, 553[5] (Mo.App.1983).

On the issue of voluntariness, the state bears the burden of proving the voluntary nature of a confession by the preponderance of the evidence. The admission of a confession into evidence lies within the discretion of the trial court and the question on appeal is whether the evidence was sufficient to sustain the trial court’s finding that the statement was voluntarily-given. State v. Cole, 657 S.W.2d 59, 62[5-6] (Mo.App.1983). The trial court’s ruling on the admissibility of a confession attacked on voluntariness is not disturbed for anything short of manifest error. Id. [7]. Absent a showing of special circumstances, the state need only make a prima facie case of voluntariness by showing that at all stages of interrogation, the accused was advised of his constitutional rights and that no physical force, threats, or coercive tactics were used to obtain the confession. State v. Harris, 670 S.W.2d 526, 528[3] (Mo.App.1984). Defendant was advised of his Miranda rights upon his initial arrest, prior to his questioning by the sex crimes officer investigating the rapes, and prior to the interrogation by the homicide detective at department headquarters. Defendant had been in police custody less than three hours prior to his giving a taped confession. At no time did he ask for an attorney.

We have listened to his taped confession which is prefaced with a recitation of his Miranda rights, each of which defendant acknowledges on the tape. When the interrogating officer interrupted defendant’s confession to change the tape to side two, the officer again read defendant his Miranda rights, which defendant again stated he understood. At the conclusion of the interview, defendant acknowledged that the statement was made of his own free will. Nothing in defendant’s statement intimates he was suffering from any incompetency, mental or otherwise. At no time during his statement did he express anything indicative of coercion and the record fails to substantiate any coercion, physical or otherwise. We find no error in the admission of defendant’s confession.

Defendant’s second point contends that the trial court erred in permitting the state in its case-in-chief to present testimony of three witnesses corroborating the account by Mary Bell’s boyfriend of his activities on the day she was murdered. At trial, the defendant made a motion in limine to exclude the testimony of these three “alibi” witnesses which the trial court overruled. Defendant claims error in the admission of their testimony, arguing they impermissibly bolstered the boyfriend’s account before his character had been attacked by the defendant.

Rule 27.02 sets forth the order of trial and pursuant thereto, parties are permitted to offer evidence in rebuttal after the state’s case-in-chief and defendant’s case unless the court, for good cause shown or believing that the interests of justice will be served, permits the parties to offer evidence upon their original cases. The trial court has broad discretion to control the order of proof at trial and, unless prejudice is shown, may permit the state in its case in chief to elicit evidence rebutting a defense upon which the defense avowedly intends to rely. State v. Cameron, 604 S.W.2d 653, 657-58, (Mo.App.1980). The present case had already been tried once resulting in a hung jury and a mistrial had been ordered. In the first trial, defendant had waited until closing argument to attack the probity of the boyfriend’s testimony and to accuse him as the more likely candidate to have had the opportunity and access to kill Mary Bell, thereby hamstringing rebuttal evidence by the state. In this trial, in anticipation of defense counsel’s efforts to pursue the defense that the boyfriend committed the crime in question rather than defendant, the state sought to dispel the possibility of the boyfriend’s involvement. It was not an abuse of discretion for the trial court to permit the state in this instance to elicit the testimony of these three witnesses in its case in chief. Defendant is not prejudiced by the state’s efforts to meet the cardinal requisite in any criminal trial, i.e. evidence establishing defendant is the person who committed the offense. State v. McIntosh, 546 S.W.2d 756, 758[1] (Mo.App.1977).

A sub-point of defendant’s argument asserts that the admission of testimony corroborating boyfriend’s account was prejudicial because, while the state was permitted to introduce evidence to dispel boyfriend’s complicity to establish defendant as the killer, the state did not permit defendant to introduce evidence concerning Kirk Eaton to suggest that Eaton, and not defendant, might have been the murderer. The state made a motion in limine to bar any mention of Eaton by the defendant which the trial court granted. We find no merit to defendant’s argument.

Procedurally, neither at the time of the court’s ruling on the state’s motion in li-mine did defense counsel show, by an offer of proof or otherwise, what specific questions he wished to ask and what specific evidence he wanted to elicit nor did he attempt to introduce testimony by Kirk Eaton at trial; thus, he failed to demonstrate to the trial court, and to this court on review, the propriety and admissibility of the evidence sought to be elicited and the error of granting the state’s motion in li-mine. State v. Cameron, 604 S.W.2d at 659-60. At best, Kirk Eaton, a man with a prior sexual offense conviction, was known to have been in the area of the homicide several weeks prior to its occurrence and was wanted by police for questioning.

Defendant’s theory was that Eaton was a likely suspect to have committed the crime. Efforts of this nature are prohibited by the rule approved in State v. Easley, 662 S.W.2d 248, (Mo. banc 1983), stating: “Evidence that another person had an opportunity or motive for committing the crime for which the defendant is being tried is not admissible without proof that such other person committed some act directly connecting him with the crime.” Id. at 251-52[5]. Evidence which can have no other effect than to case a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another is not admissible. State v. LaRette, 648 S.W.2d 96, 103[9] (Mo. banc 1983). Under this rule, defendant was not entitled to present evidence that Eaton was a suspect in the absence of proof that Eaton “committed some act directly connecting him with the crime.” The trial court correctly refused to admit evidence concerning Eaton for the sole purpose of suggesting he, and not defendant, may have been Mary Bell’s killer.

Defendant’s third point states the admission of testimony by Mary Bell’s brother, a witness for the state, that he had argued with her before on two occasions when she had opened her door to him without first checking who was at the door was hearsay and prejudicial. The evidence is clearly relevant because it creates the inference that, since no sign of forced entry existed, Mary Bell opened the door to her attacker without first looking out, notwithstanding other testimony that she was extremely cautious about opening her door. However, the issue is not relevancy but whether the testimony should have been excluded as hearsay. “Hearsay evidence” is in-court testimony of an extrajudicial statement offered to prove the truth of the matters asserted therein, resting for its value on credibility of the out-of-court de-clarant. State v. Harris, 620 S.W.2d 349, 355[13] (Mo. banc 1981). We find that what Mary Bell’s brother testified to was not hearsay. Mary’s brother testified without objection that on two occasions when he had knocked on Mary’s door at her apartment, he heard her run down the steps and immediately open the door. Thereafter they argued. When her brother described the argument, he never mentioned what she said. He related only: “I told her, ‘Mary, what are you doing opening the door not knowing who is on the other side of the door?’ ” Mary’s brother did not detail her comments to him. He merely described her actions when he had knocked at her apartment door, stating the subject of their argument. The evidence was properly admitted. Point denied.

Defendant’s final contention is that the trial court erred in denying his motion for judgment of acquittal at the close of the state’s case and at the close of all of the evidence because the evidence was insufficient to submit the matter to the jury. In reviewing the sufficiency of the evidence, we reiterate that we consider as true all of the evidence favorable to the state’s case, both direct and circumstantial, including all reasonable inferences therefrom, while disregarding all contrary evidence and its inferences. State v. Heinz, 607 S.W.2d 873, 881[19] (Mo.App.1980). When so viewed, we find that there was substantial evidence to support the verdict. The facts have been stated previously on this point so no lengthy repetition is necessary.

Defendant’s contention appears to be based predominately on his theory that he cannot be convicted solely upon his confession, where the confession appears inconsistent and no other physical evidence linking him to the crime exists. It is true that a conviction cannot be sustained solely on the basis of an extrajudicial confession. State v. Garrett, 595 S.W.2d 422, 430 (Mo.App.1980). An out-of-court confession corroborated by independent evidence establishing the corpus delicti is sufficient to support a conviction. Id. The laceration of Mary’s anus and the seminal fluids indicative of intercourse found in her vagina and anus were consistent with defendant’s confession that he had sex with her and that he had sodomized her. Further, Mary’s boyfriend had locked the door when he left the apartment, and on his return he found the door was shut but unlocked. This evidence, consistent with defendant’s admission that she opened the door and he forced his way in, supports the submission of the burglary charge to the jury. And, lastly, on the homicide charge, the corpus delicti in a capital murder charge consists of two elements — the death of a human being and the criminal agency of another in causing the death. State v. Tate, 637 S.W.2d 67, 74[17] (Mo.App.1982). There can be no doubt that both these elements were met here to support submission of the homicide charge to the jury.

As to the inconsistencies in defendant’s confession, evidence that Mary had just showered and that her hair was dark when wet resolves the apparent discrepancy between defendant’s description of her as dark-haired although she had sandy blond hair. In addition, several points in defendant’s confession, subsequently corroborated by evidence introduced by the state, were not known to the interrogating detective at the time defendant gave his confession. The detective did not learn Pamela Richardson had called out Mary’s name when she had knocked on Mary’s door until he checked with her again after defendant’s statement. Defendant also related in his statement that he heard the sounds of Mary’s next door neighbor opening and shutting her door. Although the neighbor had talked with detectives before the confession was obtained, she told them she did not know anything. She did not come forward and give any information to the detectives until sometime after defendant’s arrest. She had moved from her apartment the day after the murder, afraid to tell the police what she knew until defendant’s apprehension.

In summary, once evidence other than defendant’s confession shows that the specific crimes charged were committed by someone, then the defendant’s confession is admissible and, of course, if believed, completes the case. State v. Garrett, 595 S.W.2d at 430. And after admission of defendant’s confession into evidence, it was still open to the defendant to challenge it by cross examination or by direct evidence with the objective of destroying its inculpa-tory effect before the jury. State v. Diercks, 674 S.W.2d 72, 78[9] (Mo.App.1984). And the jury was at liberty to find that the confession was not voluntary and reject the same, but they did not.

Judgment affirmed.

STEWART and STEPHAN, JJ., concur.