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STATE OF MISSOURI, ) 

 ) 

 Plaintiff-Respondent, ) 

 ) 

vs. ) No. SD33305 

 ) 

WILLIAM J. KEARNES, ) Filed: April 7, 2015

 ) 

 Defendant-Appellant. ) 

APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY 

Honorable R. Craig Carter, Circuit Judge 

AFFIRMED

 A jury found William J. Kearnes (“Defendant”) guilty of stealing a tractor and 

brush hog, and the trial court sentenced him as a prior offender to ten years in the 

Missouri Department of Corrections. Defendant appeals and raises three points – (1) the 

trial court “plainly erred in not declaring a mistrial sua sponte” when the prosecutor, 

without objection, “misstate[d the] law” in closing argument, (2) the trial court “plainly 

erred in overruling [Defendant’s] objection” to a statement and implication by the 

prosecutor during closing argument that was “not based on any evidence,” and (3) the 

trial court “abused its discretion” in excluding “a missing person report” from evidence. 

We affirm the trial court’s judgment because Defendant fails to persuade us that either of 
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the claimed plain errors in closing argument had a decisive effect on the outcome of the 

trial, and the exclusion of the missing person report from evidence was not an abuse of 

discretion as the report was cumulative to significant other evidence. 

Facts and Procedural History

 Defendant was charged as a prior offender with stealing, on August 4, 2011, a 

tractor and brush hog that had a value of at least $25,000. 

Inasmuch as Defendant does not challenge the sufficiency of the evidence, we 

limit our summary of the evidence at trial to that evidence necessary for us to review the 

points raised by Defendant. In summarizing the evidence, we view the evidence in the 

light most favorable to the jury’s verdict – drawing all reasonable inferences favorable to 

the jury’s verdict and rejecting all evidence and inferences contrary to the jury’s verdict. 

State v. Hart, 404 S.W.3d 232, 235 (Mo. banc 2013); State v. Salazar, 414 S.W.3d 606, 

610 n.2 (Mo.App. S.D. 2013), cert. denied, 134 S.Ct.2875 (2014); and State v. Vorhees, 

342 S.W.3d 446, 448 (Mo.App. S.D. 2011). 

 Donald (“Archie”) Earl Ladd owned a tractor with an attached front-end loader 

with a hay spike and a “fold-up brush hog.” The tractor, loader and brush hog were 

appraised after August 4, 2011, for more than $50,000. A tractor and attachments can be 

sold without a title. The tractor and attachments were located behind locked gates on 

August 4, 2011, near a “waterer” that pumped fresh water that was safe to drink.1

 After 

lunch at Mr. Ladd’s home on August 4, 2011, Mr. Ladd and a worker, Pat Moore, started 

back toward where the tractor and attachments were located. Mr. Ladd and Mr. Moore 

were traveling in separate vehicles with Mr. Ladd in front and Mr. Moore behind. In the 

 

1

 On August 3, 2011, Mr. Ladd had talked to and observed law officers looking for a person and also 

observed a helicopter searching for a person. 
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course of the trip, Mr. Ladd encountered Defendant driving Mr. Ladd’s tractor and 

attachments toward Mr. Ladd. Mr. Ladd had not given Defendant permission to operate 

the tractor. Mr. Ladd used his vehicle to block the road, exited his vehicle with a loaded 

.38 caliber revolver, and ordered Defendant to exit the tractor and lie on the gravel. 

Defendant complied, and did not seem disoriented to Mr. Ladd. Mr. Ladd then contacted 

law enforcement, and officers responded to the scene. 

While driving Mr. Ladd’s tractor, Defendant had passed a wedding chapel and 

two occupied houses and drove the tractor over three miles before Defendant encountered 

Mr. Ladd. To get out of the locked enclosure in which the tractor was located, Mr. Ladd 

believed that Defendant used the front-end loader to lift the locked gates up and pull them 

out of the way, and, in the process, ran over one of the gates. In addition, the tractor had 

been left in a “transmission range” for use in the field, but was in a “transmission range” 

for use on the highway when Mr. Ladd encountered Defendant driving the tractor. In 

order to shift the tractor from field range to highway range, the operator was required to 

place the transmission and shuttle in neutral and then push a button. 

 Other evidence at trial included the testimony of several witnesses. Retired 

Missouri State Highway Patrol Sergeant Keith Jones testified that officers from Christian 

and Douglas Counties conducted a search on August 3, 2011, in the area where 

Defendant was found on August 4, 2011. When Sergeant Jones arrived at the scene 

where Defendant was present on August 4, 2011, Douglas County Sheriff Chris Degase 

and Douglas County Deputy Sheriff Vernon Johnson were present. Defendant was 

“drinking a bottle of water.” Sergeant Jones described Defendant’s condition “as pretty 

much emaciated. He was dehydrated. He had cuts, scratches, and bruises all over his 
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body. He was dirty. His hair was matted with leaves and burrs and dirt . . . .” Sergeant 

Jones added that “[i]t looked like . . . [Defendant] had ran through or been drug through a 

briar patch.” Defendant’s only clothing was “a pair of shorts.” A gate at the farm of the 

owner of the tractor and brush hog “looked like someone had just ran through the gate 

with -- with something -- a car, a piece of equipment.” Sergeant Jones did not “smell[] 

any intoxicants on [Defendant],” and opined that Defendant “had been impaired or was 

impaired at the time” by drugs though he would have been unable “to tell the difference” 

between impairment by drugs and disorientation from being lost and without food for 

days because no tests were conducted. Swan Creek, with fresh water, was “not too far” 

from where Defendant was encountered. Defendant was transported by ambulance to a 

hospital “for medical attention.” 

 Pat Moore, who worked for Mr. Ladd, testified that it appeared Defendant had 

used the loader on the tractor to lift the locked gates and move them to one side so 

Defendant “could get out.” It also appeared Defendant drove over a part of the locked 

gates. Mr. Moore had not “seen anybody out there asking for help” in the days before 

August 4, 2011. 

Defendant did not testify, but called his mother, Katherine Kearnes, and Douglas 

County Sheriff Chris Degase as witnesses. In response to Mr. Ladd’s request for law 

enforcement assistance, Sheriff Degase went to the location where Mr. Ladd was holding 

Defendant. Deputy Sheriff Johnson arrived “right behind [Sheriff Degase]” followed by 

Sergeant Jones. Defendant “had a lot of scratches,” including on his feet, and was 

“galded” on his buttocks and “somewhat incoherent.” Defendant was in “sad shape.” 

Defendant was dehydrated, and was sent to the hospital. Sheriff Degase “knew 
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[Defendant] had been in the woods for a couple, three days at least. I believe that August 

2nd, his wife was picked up in that area.” A report Defendant was missing was filed on 

August 3 by either Defendant’s wife or mother, and law enforcement searched the area 

for Defendant on August 3. The search included the use of a helicopter and plane. On 

cross examination, Sheriff Degase stated, “I don’t know whether [Defendant] was 

[intoxicated] at that time. Later on in the interview, he indicated to me that he and his 

wife felt that they had gotten some bad dope.” 

 Ms. Kearnes reported to “authorities” Defendant was missing when Defendant’s 

wife was found a “day or two before [Defendant] was found.” The authorities included 

the Taney County Sheriff’s office. Defense counsel requested to “enter . . . into the 

record” the written report Ms. Kearnes made to the Taney County Sheriff’s office, and 

the prosecutor objected based on a lack of relevance. Defense counsel replied the report 

“indicates how long [Defendant] was gone, how long he very possibly was in the woods. 

. . .” The trial court sustained the prosecutor’s objection and excluded the report from 

evidence. Almost immediately after the trial court’s ruling, Ms. Kearnes testified that “it 

was, like, five and a half days he was missing totally.” 

Defendant and his wife were living with Ms. Kearnes at the time. Defendant and 

his wife did not take any “camping stuff” or anything else with them when they left Ms. 

Kearnes’ home. Defendant was at the hospital when Ms. Kearnes first saw him after he 

was found driving Mr. Ladd’s tractor. Defendant “was very skinny” and “pathetic 

looking” – “he just looked withered.” Ms. Kearnes took pictures of some of Defendant’s 

sores and abrasions at the hospital, and those pictures were shown to the jury. When 

Defendant’s wife was found, she was “naked from the waist down.” A drug test was 
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performed on her and Ms. Kearnes “assumed” she was “using methamphetamines.” The 

only clothing Defendant’s wife had on when she was found was a “shirt,” and the only 

clothing Defendant had on when he was found was “shorts.” Ms. Kearnes was aware the 

search for Defendant included a helicopter. On cross examination, the trial court 

prohibited the prosecutor from asking Ms. Kearnes for a “medical opinion” on the cause 

of Defendant’s sores.2 

 During voir dire, the trial court informed the venire panel: 

It is your duty to follow the law as the Court gives it to you in the 

instructions even though you may disagree with it. Are there any of you 

who would not be willing to follow all the instructions which the Court 

will give to the jury? If so, please raise your hand at this time. Again, the 

Court sees no hands. 

Defense counsel asked the venire panel, “[w]ould anyone have a problem keeping their -- 

keeping an open mind as to intent, because that’s really what this case is going to turn on 

today.” 

 In his opening statement, the prosecutor told the jury that, after it heard all the 

evidence, it would determine Defendant “didn’t intend to return [the tractor].” Defense 

counsel told the jury in her opening statement that Defendant admits he “took” the 

tractor, but “[h]e didn’t take it to keep it for himself” – “[h]e took it as a means to an end. 

He took it so he could get to somewhere where he could get the help that he needed.” A 

short time later in her opening statement, defense counsel repeated “[h]e did not take [the 

tractor] to keep it. He took it to save his life.” 

 

2

 Contrary to Defendant’s assertion in his brief that the trial court “never instructed [the jury] to disregard” 

the prosecutor’s question, jury instruction 2 specifically instructed the jury “[y]ou must not assume as true 

any fact solely because it is included in or suggested by a question asked a witness. A question is not 

evidence, and may be considered only as it supplies meaning to the answer.” 
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 The trial court instructed the jury that in order to find Defendant guilty, the jury 

must “find and believe from the evidence beyond a reasonable doubt” that Defendant 

“took” the tractor and brush hog “for the purpose of withholding from the owner 

permanently or using or disposing of it in such a way that made recovery by the owner 

unlikely” among other elements. Defense counsel submitted a converse instruction that 

also was given to the jury and stated: 

Unless you find and believe from the evidence beyond a reasonable doubt 

that the defendant took the tractor for the purpose of withholding it from 

the owner permanently, or using, or disposing of it in such a way that 

made recovery by the owner unlikely, you must find the defendant not 

guilty . . . . 

The jury was further instructed: (1) “[i]t is your duty to follow the law as the Court gives 

it to you,” and (2) closing arguments: 

are intended to help you in understanding the evidence and applying the 

law, but they are not evidence. You will bear in mind that it is your duty 

to be governed in your deliberations by the evidence as you remember it, 

the reasonable inferences which you believe should be drawn there from, 

and the law as given in these instructions. 

 In the first part of his closing argument, the prosecutor argued as follows: 

But do you think that tractor would’ve returned ever to the ownership of 

Mr. Ladd? I seriously doubt it. And that’s what you have to decide today 

because they’ve admitted to everything else. 

 They had to. He was caught red-handed, driving the tractor down 

the road. So they want to say, oh, wait, he didn’t mean to steal it, he was 

just kind of borrowing it. . . . 

 So, you know, the instruction says, did he take the tractor? Yes. 

Did he do it without Mr. Ladd’s consent? Yes. Did it have a value of at 

least $25,000? Yes. And the issue is, did he withhold it from the owner 

permanently, or disposing of it in such a way that made recovery unlikely? 

That’s your question as to, was he going to do that? We don’t know 

what’s in his mind. But I think you can draw commonsense notion, folk, 

that if you take a tractor and you drive it down the road, you’re not going 

to bring it back that afternoon. He’s not going to bring it back the next 

day and say, oh, here’s your tractor I borrowed. . . . 
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. . . . 

Don’t tell me that the sores on his body were caused by what was 

happening to him out there. Something else, in my opinion, caused those 

sores. And I believe it’s -- 

 [Defense Counsel]: Objection, Your Honor. That’s not in 

evidence. 

 [Prosecutor]: Well, I’ll let the jury -- the jury can decide what the 

evidence shows, Your Honor. 

 THE COURT: Overruled. 

 [Prosecutor]: I don’t think there’s any argument about the tractor; 

how much it’s worth. . . . 

. . . . 

 I don’t know why he didn’t raise his hand; why he didn’t say, here 

I am folks, come help me. I’m thirsty. I’m all ate up by briars, chiggers, 

and ticks, and whatever else. You know, it’s a sad, sad, state of affairs if 

that’s going to be the defense to crime in this country goes. 

 And by the way, look in your Jury Instruction No. 5, it doesn’t say 

anywhere in there that being high or out of your mind or unconscious for 

some reason is a defense to this crime. If it was, I couldn’t convict 

anybody ever in Douglas County. Just tell you that right up front. 

 Pass the argument. 

 Defense counsel in her closing argument stated: 

I agree with the Prosecutor, we want you to use your commonsense. . . . 

. . . . 

We do know that he was dirty, that he was matted, that he found that 

tractor and he rode it to try to find help. . . . 

. . . . 

 So we ask that you look at what’s missing in the evidence. The 

Prosecution has not proved that he intended to keep that tractor, that he 

intended to do anything with it, but to find help. The tractor was returned. 

We ask that you -- unless you find and you believe the evidence beyond a 

reasonable doubt that the Defendant took the tractor for the purpose of 

keeping it, of disposing it in some way to keep it from the owner 

permanently, to make the recovery unlikely for the owner, you must find 

the Defendant not guilty. Thank you. 

 

 The prosecutor in his reply closing argument, argued the following: 
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 I get the last say because the burden of proof is on the State to 

prove to you beyond a reasonable doubt that [Defendant] did, in fact, steal 

the tractor, and didn’t intend to return. . . . 

Yeah, you do have to make a little leap of faith. What was he going to do 

with the tractor? Just take it out for a joy ride to see how that -- he might 

like to buy one of those $52,000 tractors next week. 

. . . . 

It’s a simple case. If you want to let the guy go and you think he’s going 

to bring the tractor back in one piece, you’re living in a different world 

than I live in every day. And I know that’s your right to do so. 

 The jury found Defendant guilty of stealing, and the trial court sentenced 

Defendant to ten years in the Missouri Department of Corrections as a prior offender. 

Points I and II

Standard of Review for Claimed Plain Error in Closing Argument

 Errors not objected to at trial are limited to review only for plain error. State v. 

Carter, 415 S.W.3d 685, 691 (Mo. banc 2013); and State v. Deck, 303 S.W.3d 527, 541 

(Mo. banc 2010). With exceptions not relevant here, errors that are objected to at trial 

but are not included in a motion for new trial also are limited to review only for plain 

error. Rule 29.11(d);3

State v. Miller, 372 S.W.3d 455, 475 (Mo. banc 2012); and State 

v. Vorhees, 342 S.W.3d 446, 448 (Mo.App. S.D. 2011). 

 A conviction will be reversed for plain error in closing argument only when the 

defendant shows that the error had a “decisive effect on the outcome of the trial and 

amounts to manifest injustice.” Miller, 372 S.W.3d at 475 (internal quotations and 

citation omitted); and Deck, 303 S.W.3d at 541; see also Carter, 415 S.W.3d at 691 (a 

“decisive effect on the jury”). The claimed error in closing argument must be “examined 

in the context of the entire record.” Deck, 303 S.W.3d at 541, 542-43. 

 

3

 All rule references are to Missouri Court Rules (2015), unless otherwise specified. 
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 There are additional concerns where the claimed error was not objected to at trial. 

As our high court stated in Carter, 415 S.W.3d at 691: 

 Reviewing courts will rarely find plain error in closing remarks 

when the challenging party did not object at trial because any action on the 

part of the court would be uninvited. State v. Perry, 275 S.W.3d 237, 245 

(Mo. banc 2009); see State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 

1995) (declining plain error review of prosecutor statements in closing 

argument because relief is rarely granted in such situations). The 

defendant's failure to object to an improper argument is often strategic, 

and uninvited intervention may emphasize the matter in a way the 

defendant chose not to. Perry, 275 S.W.3d at 245. 

Further, double jeopardy may bar retrial “if a judge grants a mistrial in a criminal case 

without the defendant’s request or consent.” State v. Lovell, 414 S.W.3d 577, 579 n.4 

(Mo.App. S.D. 2013) (internal quotations and citation omitted). 

Analysis

Point I

 In his first point, Defendant argues that the trial court “plainly erred in not 

declaring a mistrial sua sponte” when the prosecutor, without objection, argued on a 

single occasion that jury instruction 5 does not “say anywhere in there that being . . . out 

of your mind or unconscious for some reason is a defense to this crime” because that 

argument “was a misstatement of the law” that had a decisive effect on the outcome of 

the trial where “the entire crux of [Defendant’s] defense was that he was so disoriented 

from being lost in the woods for days that he could not have formed the intent to steal 

[Mr.] Ladd’s tractor.” 

In order to find Defendant guilty, jury instruction 5 required the jury to “find and 

believe from the evidence beyond a reasonable doubt” that Defendant “took” Mr. Ladd’s 

tractor and brush hog “for the purpose of withholding from the owner permanently or 
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using or disposing of it in such a way that made recovery by the owner unlikely.” 

Defendant’s argument is that the jury could have misinterpreted the prosecutor’s 

argument to alter or negate the element that required the jury to find Defendant acted 

with the specified purpose. Defendant has failed to show that occurred in this case. 

 First, the prosecutor made the challenged statement only once in his closing 

arguments. Defendant had the opportunity to challenge or explain what he now says is 

the correct law. Second, at Defendant’s request, the trial court submitted to the jury a 

converse instruction that emphasized the jury “must find [Defendant] not guilty” unless 

the jury “find[s] and believe[s] from the evidence beyond a reasonable doubt” that 

Defendant “took the tractor for the purpose” specified in jury instruction 5. Third, in voir 

dire, following the trial court’s instruction that it was the venire panel’s “duty to follow 

the law as the [trial c]ourt gives it to you in the instructions even though you may 

disagree with it,” no venire person indicated that the venire person “would not be willing 

to follow all the [trial court’s] instructions . . . to the jury.” Fourth, immediately before 

closing arguments, the trial court instructed the jury it was the jury’s “duty to follow the 

law as the [trial c]ourt gives it to you,” and also that closing arguments: 

are intended to help you in understanding the evidence and applying the 

law, but they are not evidence. You will bear in mind that it is your duty 

to be governed in your deliberations by the evidence as you remember it, 

the reasonable inferences which you believe should be drawn there from, 

and the law as given in these instructions. 

Fifth, in their opening statements, both the prosecutor and defense counsel framed the 

factual issue for the jury correctly – the prosecutor told the jury the evidence would show 

that Defendant “didn’t intend to return [the tractor],” and defense counsel told the jury 

that Defendant admits he “took” the tractor, but “[h]e didn’t take it to keep it for himself” 
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– rather he took the tractor to get help or save his life. And, finally, on three occasions 

during his closing arguments – two before and one after the challenged argument – the 

prosecutor properly framed the factual issue for the jury, and defense counsel also framed 

the factual issue properly for the jury in her closing argument. 

 In these circumstances (including the fact that the relief now sought was not 

requested by Defendant at trial) and viewed in the context of the entire record, Defendant 

has failed to show that the prosecutor’s isolated argument had a decisive effect on the 

outcome of the trial. Cf. Deck, 303 S.W.3d at 43 (no demonstration that single 

misstatement of fact prejudiced the defendant); State v. Wolf, 326 S.W.3d 905, 907 n.2 

(Mo.App. S.D. 2010) (“comments [in closing argument that] were brief, ambiguous, and 

not the focus of the argument” were not plain error that merited reversal). Defendant’s 

first point is denied. 

Point II

 In his second point, Defendant asserts that the trial court “plainly erred in 

overruling [Defendant’s] objection to the [prosecutor’s] statement and implication during 

closing argument that sores on [Defendant’s] body at the time he was arrested were not 

from being lost in the woods for four days but rather a result of using drugs” in that the 

prosecutor’s statement and implication were “not based on any evidence that was 

admitted at trial” and had a decisive effect on the outcome of the trial. This point is 

subject to only plain error review because, although Defendant objected, Defendant did 

not include this claim in his motion for new trial. 

We note when defense counsel objected, she did not request any relief. Although 

the trial court overruled defense counsel’s objection, the prosecutor immediately 
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terminated his argument without stating the conclusion to his thought when defense 

counsel objected, and then shifted his argument to a different topic. Consequently, 

Defendant received all the relief that would normally flow from a bare objection – i.e., 

the termination of the opposing party’s challenged argument. 

 In addition, there was evidence at trial that supported a reasonable inference 

Defendant was impaired by methamphetamine that had been improperly manufactured. 

Defendant’s mother testified that Defendant’s wife was “naked from the waist down” 

when she was found “a day or two before” Defendant was found, and Defendant’s 

mother “assumed” Defendant’s wife was using methamphetamine. Defendant told 

Sheriff Degase that “he and his wife felt that they had gotten some bad dope.” Defendant 

was only wearing shorts when he was found, did not respond to aircraft and officers 

searching the area on August 3, passed up water that was safe to drink at the location 

where he took the tractor, and did not stop for help at a house or houses and a chapel that 

he passed while driving Mr. Ladd’s tractor. The jury also saw pictures of Defendant’s 

sores and abrasions. 

 This evidence permitted the prosecutor to draw and argue the reasonable 

inference that at least some of Defendant’s sores were caused by Defendant’s voluntary 

use of improperly manufactured methamphetamine. Even if that inference was not 

reasonable, the prosecutor’s unfinished argument was merely cumulative to the evidence 

that Defendant had voluntarily ingested improperly manufactured methamphetamine 

before taking Mr. Ladd’s tractor. Defendant fails to persuade us that, in the 

circumstances of this case, the prosecutor’s unfinished argument had a decisive effect on 

the outcome of the trial. See Deck, 303 S.W.3d at 543 (no basis to conclude 
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misstatement of fact had a decisive effect on the outcome of the trial at least in part 

because of the cumulative nature of the misstatement). Defendant’s second point is 

denied. 

Point III

Standard of Review for Point Three

We review a trial court’s decision to exclude evidence for abuse of discretion and 

resulting prejudice. See State v. Wolfe, 344 S.W.3d 822, 837 (Mo.App. S.D. 2011); State 

v. Mason, 95 S.W.3d 206, 211 (Mo.App. S.D. 2003); State v. Barriner, 111 S.W.3d 396, 

400 n.4 (Mo. banc 2003). “A trial court abuses its discretion in excluding evidence if its 

decision shocks the sense of justice or indicates an absence of careful consideration.” 

Wolfe, 344 S.W.3d at 837. A trial court does not abuse its discretion when it excludes 

evidence that is merely cumulative to other admitted evidence. Id.; Mason, 95 S.W.3d at 

211. 

 Trial court error in excluding admissible evidence in a criminal case creates a 

rebuttable presumption of prejudice. See State v. Hopper, 315 S.W.3d 361, 367 

(Mo.App. S.D. 2010); Barriner, 111 S.W.3d at 401. When the error was preserved, the 

State must show the error was harmless beyond a reasonable doubt to rebut the 

presumption of prejudice. See State v. Hopper, 315 S.W.3d at 367; State v. Sanders, 126 

S.W.3d 5, 23 (Mo.App. W.D. 2003). 

Analysis

 In his third point, Defendant asserts that the trial court “abused its discretion” in 

excluding “a missing person report” that Defendant’s mother filed with law enforcement 

that would have “shown” and “corroborated” that Defendant “had been missing for at 
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least four days before he was found.” The trial court did not abuse its discretion in 

excluding the missing person report because the report was cumulative to the testimony 

of Defendant’s mother and Sheriff Degase as well as other witnesses. 

 Prior to Defendant’s attempt to admit the missing person report filed by 

Defendant’s mother, Sheriff Degase testified that (1) he “knew [Defendant] had been in 

the woods for a couple, three days at least” before he was found on August 4, (2) 

Defendant’s “wife was picked up in that area” on August 2, (3) a report Defendant was 

missing was filed on August 3, (4) law enforcement searched the area for Defendant on 

August 3, and (5) the search included the use of a helicopter and plane. Mr. Ladd and 

Sergeant Jones also testified that a search for a missing person occurred on August 3 in 

the area where Defendant ultimately was found on August 4. Finally, almost 

immediately after the trial court excluded the missing person report, Defendant’s mother 

testified “it was, like, five and a half days he was missing totally.” 

 The missing person report clearly was cumulative to significant other evidence 

that Defendant had been missing for a significant period of time before he was found. 

The trial court did not abuse its discretion in excluding cumulative evidence. 

Defendant’s third point is denied. 

 The trial court’s judgment is affirmed. 

Nancy Steffen Rahmeyer, J. – Opinion Author 

Gary W. Lynch, J. - Concurs 

Don E. Burrell, J. - Concurs