author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Betty HIGGINS, Respondent, v. THE QUAKER OATS COMPANY, Appellant, and Treasurer of Missouri, As Custodian of the Second Injury Fund, Respondent.
    No. WD 64978.
    Missouri Court of Appeals, Western District.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Robert E. Douglass, St. Joseph, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Lasandra Fae Pearl, Office of Attorney General, Kansas City, for Second Injury Fund.
    Michael A. Knepper, Kansas City, for Betty Higgins, Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

The Quaker Oats Company and Old Republic Insurance Company (together “Employer”) appeal the decision of the Labor and Industrial Relations Commission (the “Commission”) awarding Betty Higgins (“Employee”) benefits for permanent total disability and finding no liability on the part of the Second Injury Fund. Employer alleges (1) the Commission acted in excess of its authority in hearing a “hybrid” claim comprising cumulative trauma along with two specific instances of back injury; (2) the Commission’s decision is not supported by sufficient competent evidence and is against the overwhelming weight of the evidence in that the opinions of Employee’s doctors were not uniform, and Employee had pre-existing back pain and psychological problems; and (3) the Commission failed to make a clear and concise finding that the cumulative injury alone caused Employee’s permanent total disability. Employer also reiterates portions of point two, in two additional points relied on.

Affirmed.

Facts

In her claim for compensation for injuries sustained at work, employee Betty Higgins alleged two specific back injuries — dating July 10, 1995, and July 8, 1996 — and cumulative trauma to her back as of her last day of employment in February 1998. Employee alleged the cumulative back trauma rendered her permanently and totally disabled. The ALJ awarded 10% permanent partial disability for the 1995 injury, no permanent disability for the 1996 injury, and no disability for the cumulative trauma. The Commission modified and reversed, awarding benefits for 3% permanent partial disability for the 1995 injury and 2% permanent partial disability for the 1996 injury. The Commission further found Employee suffered from chronic pain disorder and major depression as a result of her cumulative back trauma, and awarded her benefits for permanent total disability. Finding the permanent total disability resulted solely from the cumulative trauma, the Commission assigned sole liability to Employer, with no liability on the part of the Second Injury Fund. Employer appealed the decision on the cumulative trauma claim, but not the decisions on the individual 1995 and 1996 injuries.

In 1984, Employee began working for Quaker Oats Company, where she held various laborer positions until February 1998. Employee’s tasks for Employer over the years included shoveling up to several thousand pounds of spilled product, pulling heavy “gondolas” on hand jacks and hand trucks, inserting and packing on the conveyor line, stacking bags weighing up to 100 pounds, and driving fork trucks. Much of her work over roughly fourteen years involved bending, pulling, and rotating her back with heavy loads.

The hand jacks and hand trucks, some of them self-propelled, would frequently get stuck on cracks or debris on the floor, causing the jacks and trucks to stop suddenly, jerking Employee’s body. The motorized hand trucks moved so fast that Employee had to run with them. The jacks and trucks got stuck several times per week, and the sudden stop was so forceful it would sometimes throw Employee to the floor. On July 10,1995, Employee was operating a motorized hand truck when it caught on something, jerking her, throwing her to the ground, and injuring her back. She missed three weeks plus one day of work, then resumed her regular duties, despite continuing back pain. She was diagnosed as suffering from degenerative disc disease and trauma. On July 8, 1996, a motorized hand truck suddenly stopped and Employee again injured her back, resulting in a diagnosis of severe lumbosacral strain. Following that incident, the motorized hand trucks were modified to move more slowly.

Employee alleged that her cumulative injury resulted from years of lifting, pulling, and twisting her back, as well as jerking and bumping from the hand jacks, hand trucks, and fork truck. Her work-related back problems date at least as far back as 1984, when she fell while pulling a heavy load of products. For some time after the 1995 injury she worked light duty, but that proved more painful to her back than regular duty. Driving a fork truck, which was part of her responsibilities in her later years of employment, was little better than the constant lifting and pulling, which she still had to do. Employee testified that the fork trucks had no shock absorbers, and uneven spots — such as where trailers did not align well with loading docks — resulted in severe bouncing, “like bouncing over a curb.” Although Employee had low back discomfort stemming from work and non-work incidents since at least 1973, she was able to perform the necessary functions of her job until, near the end of her employment, she required assistance from coworkers to get on and off the fork truck. On December 15, 1997, Employee was wholly unable to get on the fork truck, even with help from her coworkers. The following morning, she could not get out of bed, and had to call her mother to help her dress and go to the doctor. She tried to return to work in January 1998, but pain forced her to leave her employment on February 1 that year.

AlS a result of Employee’s chronic pain, she cannot perform basic household tasks, cannot bathe, cannot concentrate, cannot remember things, cannot sleep through the night. She feels like she is “going to explode.” She takes prescription pain medication, yielding only partial relief, and walks with a cane. One doctor described her walk as more of a “waddle.” At least three physicians concluded that surgery would not likely improve Employee’s pain. She depends upon her mother for much of her care.

Employee has a history of psychological stresses. Evidence showed that she suffered depression leading to suicidal gestures in the 1960s and 1970s, and one doctor opined that those incidents correlated with drug abuse. In her youth she was a victim of sexual assault and a witness to abuse toward her mother. Recent family stresses include conflict with her son and caring for her incarcerated daughter’s children. In December 1995, Employee attempted suicide. However, Dr. John Pro, a psychiatrist, observed that she returned to her job shortly thereafter, even working overtime in January 1996. Dr. Pro observed that any psychological challenges Employee faced throughout her life had not been a hindrance to her employment, as she had always persisted in working, until the culmination of her cumulative back injury in 1998.

Dr. Pro diagnosed Employee with chronic pain syndrome due to tissue damage and psychological factors. Dr. Pro also diagnosed major depression consequent to the cumulative trauma as of February 1998, but concluded that any psychiatric disability prior to 1998 had not been a hindrance to employment. He concluded that Employee’s major depression stemmed primarily from the pain attributable to the cumulative trauma to her back and her resulting inability to work. He explained that Employee’s depression aggravates her pain perception, while her pain in turn makes her more depressed, so the two problems “reverberate against each other.” Dr. Pro concluded that Employee is permanently totally disabled and attributed 100% of the disability to cumulative back trauma and the consequent chronic pain syndrome and depression.

Other doctors drew differing conclusions about Employee’s disability. Dr. Brent Koprivica, who is not a psychiatrist, agreed with Dr. Pro that Employee was totally disabled and deferred to Dr. Pro’s psychiatric analysis. Dr. Koprivica assigned 25% disability to Employee’s preexisting degenerative disc disease and only 15% to cumulative trauma. Dr. Michael Poppa, who is not a psychiatrist, opined that Employee suffered no permanent disability due to cumulative trauma or depression. The Commission expressly found Dr. Pro’s opinion credible and gave it greater weight, including his opinion that Employee did not exhibit purposeful symptom magnification. The Commission also expressly found Employee to be a credible witness.

Employee left school after the ninth grade, but completed her GED in 1977. Her work experience prior to Quaker Oats includes driving a tractor-trailer, operating a sewing machine, tending bar, packing meat, and cashiering at a convenience store. Other than truck-driver training, she has completed no vocational education. Vocational expert Mary Titterington, whom the ALJ found credible and well qualified, performed intelligence, reading comprehension, and vocabulary tests, and concluded that Employee is of average intelligence but cannot focus. The tests further indicated that Employee was putting forth a good effort, not attempting to skew the results. Ms. Titterington testified that Employee’s physical limitations left her able to perform only sedentary work, and that the psychological factors as diagnosed by psychiatrists left employee unemployable.

Discussion

I.

In its first point on appeal, Employer asserts that the Commission acted without or in excess of its power when it allowed Employee to present a “hybrid” claim comprising the cumulative trauma along with the two specific instances of back injury. Employer cites no authority explaining the limits of the Commission’s power. Employer cites no authority exemplifying when the Commission acts within or beyond its power. Employer cites only authorities indicating this court’s standard of review, namely Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), and Section 287.495.1(1). The one additional authority cited by Employer, Holaus v. William J. Zickell Co., 958 S.W.2d 72 (Mo.App.1997), says nothing at all about the scope of the Commission’s power, and is therefore irrelevant to this point on appeal.

Employer properly states the standard of review. But the standard of review provides no guidance on the limits of power vested in the Commission by the legislature. Employer therefore fails to cite any authority relevant to its point. Rule 84.04(d)(5) requires that each point include a list of authority on which the appellant relies. “Ordinarily, a point of error unsupported by citation of relevant authority is deemed abandoned.” Bishop v. Bishop, 618 S.W.2d 261, 263 (Mo.App.1981) (emphasis added). Because Employer cites no relevant authority for the assertion that the Commission erred by acting without or in excess of its power, we deem Employer’s first point abandoned.

II.

We combine our discussion of Points II, IV, and V because each deals with whether the award was supported by sufficient competent evidence or was against the overwhelming weight of the evidence in various respects. Each point deals with much of the same evidence and is subject to the same standard of review. This court reviews conclusions of the Commission to determine if they are supported by sufficient competent evidence. Section 287.495.1(4). “An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). “[T]he phrase ‘overwhelming weight of the evidence’ connotes evidence that is more persuasive than that which is merely ‘of greater weight or more convincing than the evidence which is offered in opposition to it.’ ” DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 881 (Mo.App.2002) (quoting Vaught v. Vaughts, Inc./S. Mo. Constr., 938 S.W.2d 931, 941 (Mo.App.1997)).

Employer’s second point on appeal argues that the record lacks sufficient competent evidence to support the Commission’s decision that Employee was permanently and totally disabled as a result of cumulative trauma to her back. We find that the Commission’s decision is not against the overwhelming weight of the evidence and is supported by substantial competent evidence.

We note that Employer analogizes to no case where a court found the Commission’s decision was not supported by substantial competent evidence. Employer distinguishes no case where a court affirmed the Commission’s decision. Employer cites no authority indicating what facts the Commission must or may not consider, or whether the Commission may reject the fact findings of the ALJ. Employer merely cites the standard of review. Rule 84.04(d)(5) requires that each point include a list of authority on which the appellant relies. “Ordinarily, a point of error unsupported by citation of relevant authority is deemed abandoned.” Bishop, 618 S.W.2d at 263 (emphasis added). “Liberal application of the procedural rules is promoted, however, to promote justice and minimize the number of cases disposed of on technical grounds.” Foster v. Village of Brownington, 140 S.W.3d 603, 608 (Mo.App.2004). We elect to review Employer’s second point on the merits.

The Commission considered multiple experts’ opinions drawing conclusions about the cause and scope of Employee’s disability. “The Commission is free to believe all, part, or none of the evidence presented at the hearing.” DeGraffenreid, 80 S.W.3d at 875 (internal quotation marks omitted). We cannot say it was against the overwhelming weight of the evidence for the Commission to conclude that Employee’s cumulative back injury caused chronic pain disorder and depression, rendering her unable to work.

“[A] mental injury triggered or precipitated by a work-related accident is ... compensable provided it can be shown that the accident was a substantial factor in causing the injury.” Tangblade v. Lear Corp., 58 S.W.3d 662, 667 (Mo.App.2001). Dr. Pro, whom the Commission expressly found credible, testified that Employee’s major depression was attributable to the pain resulting primarily from the cumulative back injury. “A single expert’s opinion may be competent and substantial evidence in support of an award of benefits, even where the causes of the occupational disease are indeterminate in nature.” Kent v. Goodyear Tire & Rubber Co., 147 S.W.3d 865, 868 (Mo.App.2004). The Commission noted that Drs. Kopriviea and Poppa drew different conclusions than Dr. Pro about the extent of Employee’s disability. The Commission gave greater weight to Dr. Pro’s opinion. This court “defers to the ... Commission’s decisions regarding the weight given to witnesses’ testimony, and is bound by the Commission’s factual determinations when the evi-denee supports either of two opposing findings.” Id.

In support of its assertion that the cumulative injury did not cause Employee’s permanent total disability, Employer argues that Employee had suffered prior physical injury and psychiatric difficulties. The Commission, however, relied on Dr. Pro’s opinion in concluding that Employee did not have psychiatric disability hindering employment prior to the culmination of the cumulative injury. And Employee did continue to work until the cumulative injury left her permanently and totally disabled as of February 1998. We acknowledge the following principle:

preexisting but non-disabling condition does not bar recovery of compensation if a job-related injury causes the condition to escalate to the level of disability. If substantial evidence exists from which the Commission could determine that the claimant’s preexisting condition did not constitute an impediment to performance of claimant’s duties, there is sufficient competent evidence to warrant a finding that the claimant’s condition was aggravated by a work-related injury.

Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo.App.1994) (citations omitted). The Commission noted that Employee had previously suffered back pain, but that preexisting back pain had not persistently prevented her from working prior to February 1998. Furthermore, this court “is bound by the Commission’s factual determinations when the evidence supports either of two opposing findings.” Kent, 147 S.W.3d at 868. We cannot say the Commission’s decision was against the overwhelming weight of the evidence.

Our decision in Bloss v. Plastic Enterprises, 32 S.W.3d 666 (Mo.App.2000), guides us in assessing the Commission’s finding that Employee’s mental disability resulted from her cumulative trauma injury. In Bloss, the employer alleged that the employee’s mental disability did not arise out of her employment. Id. at 672. Evidence in Bloss showed that the employee had psychological problems before the physical accident giving rise to the workers’ compensation claim: she suffered histrionic personality disorder, presented a history of alcoholism and drag abuse, and had been hospitalized for mental issues. Id. at 673. This court agreed with the employee’s complaint “that instead of focusing on her diagnosed psychological impairment, the [employer] attempts] to paint her as a bad person by pointing to wholly irrelevant evidence of childhood sexual abuse and marital problems that pre-date by fifteen years or more the [present] injury and symptoms arising therefrom.” Id. The Commission found the employee permanently and totally disabled by the combination of her back injury and the concomitant “symptom magnification disorder.” Id. The court affirmed, noting the dispute over the cause of the employee’s mental injury and saying, “[w]here the right to compensation depends upon which [of] two conflicting medical theories should be accepted, the issue is peculiarly for the Commission’s determination.” Id. at 672 (internal quotation marks omitted).

Here, the Commission similarly weighed conflicting medical explanations for Employee’s mental disability. The Commission concluded that her prior mental stressors had not caused any permanent psychiatric disability and that her present mental disability was solely consequent to the cumulative trauma. The Commission relied on Dr. Pro’s opinion that Employee did not have, prior to the cumulative trauma injury, any psychiatric disability that was a hindrance to employment. Dr. Pro noted that Employee had returned to work after her prior psychiatric hospitalization, and had previously coped with her family-related stress. We find the Commission’s decision supported by sufficient competent evidence.

The test for permanent total disability is whether the employee is “competent to compete in the open labor market,” i.e., unable to return to any “reasonable or normal employment.” Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo.App.1995). Vocational expert Mary Titterington testified that, based upon the limitations placed on Employee by her doctors and her pain-induced inability to concentrate, Ms. Higgins was unemployable. We cannot say the Commission’s decision lacks substantial competent evidence in the record, or that the decision is against the overwhelming weight of the evidence. Point denied.

Employer alleges in the fourth point on appeal that the Commission erred in finding that the cumulative trauma caused Employee’s permanent total disability because the finding is contrary to the overwhelming weight of the evidence. Employer’s second point on appeal, discussed above, alleges that the Commission erred in finding Employee permanently and totally disabled as a result of the cumulative trauma because the finding is contrary to the overwhelming weight of the evidence. The legal issue, sufficiency of the evidence showing the cause and scope of Employee’s disability, is identical in both points. The particular facts raised in the argument sections of Employer’s brief differ only slightly. Employer again .cites no authority beyond the standard of review. For the reasons articulated in point two above, we find the Commission’s decision supported by sufficient competent evidence. Point denied.

Employer alleges in the fifth point on appeal that the Commission erred in finding that the cumulative trauma caused Employee’s mental disability because the finding is contrary to the overwhelming weight of the evidence. Employer raised this same argument in point two. Employer again cites no authority supporting its position, other than the standard of review. For the reasons articulated in point two above, we find the Commission’s decision supported by sufficient competent evidence. Point denied.

III.

In its third point, Employer argues that the Commission failed to make a clear and concise finding that the cumulative injury alone caused Employee’s permanent total disability. In this third point, Employer does not challenge the Commission’s finding that Employee suffers permanent total disability. Rather, Employer asserts that the Commission’s award is “vague and nebulous” in violation of statutory requirements.

Whether the Commission properly construed and applied the Workers’ Compensation Act is a question of law, subject to de novo review by this court. West v. Posten Constr. Co., 804 S.W.2d 743, 744 (Mo. banc 1991). Employer complains that “the Commission does not use the phrase ‘alone and of itself or ‘in and of itself and does not make any finding of fact as to the degree of disability from the [cumulative trauma] injury.” Indeed, the standard for an employer’s liability where there is pre-existing disability is that “the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself." Section 287.220.1 (emphasis added). However, Employer cites no authority for the proposition that the Commission must employ any magic language in its decision. Employer cites no case in which a court reversed, modified, set aside, or remanded a Commission decision for failure to make sufficiently clear findings.

Employer cites Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App.2000), for the proposition that, where liability is to be apportioned between the employer and the Second Injury Fund, the Commission must determine the degree of disability caused by the last injury. This accurately states the law, but it fails to support Employer’s point. We find no authority supporting the proposition that the Commission must employ any particular language to effectuate its decision finding the scope of disability. On the contrary, findings are adequate where they “set out the actual grounds of decision and make possible an intelligent judicial review.” Stegeman v. St. Francis Xavier Parish, 611 S.W.2d 204, 207 (Mo. banc 1981). Furthermore, a clear agency decision “implies] a finding of additional facts (beyond those expressly found) necessary to support it.” Petersen v. Cent. Pattern Co., 562 S.W.2d 153, 156 (Mo.App.1978).

The Commission said in its award on the cumulative injury claim,

Dr. Pro ... concluded that [Employee’s] major depression is attributable to her pain, which is due primarily to her last work injury in 1998.... We find the opinion of Dr. Pro credible.... We find Employee’s accumulated back injury caused chronic pain disorder and depression, rendering her unable to work. Employer/Insurer is responsible for weekly permanent and total disability benefits ... continuing for the remainder of her life or until ... modified by law.

(Emphasis added.) The Commission further found that Employee did not suffer “any permanent psychiatric disability” pri- or to the cumulative back injury. We find the Commission’s decision plain enough to infer — to the extent that inference is even necessary — that the Commission attributed all of Employee’s permanent total disability to the cumulative injury. Consequently, the Commission properly assigned full liability to Employer and none to the Second Injury Fund: “If the last injury in and of itself rendered [the employee] permanently and totally disabled, then the [Second Injury Fund] has no liability and [the employer] is responsible for the entire amount of compensation.” Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. banc 2003). Point denied.

The award of the Commission is affirmed.

ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge, concur.

      . All statutory citations are to Mo.Rev.Stat. (2000), unless otherwise indicated.


source: Caselaw Access Project

author: RONALD R. HOLLIGER, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Stacy R. TODD, Appellant.
    No. WD 65090.
    Missouri Court of Appeals, Western District.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Edward W. Brandecker, Columbia, for Appellant.
    Robert Reinhardt, Boonville, for Respondent.
   RONALD R. HOLLIGER, Judge.

Stacy Todd was convicted of endangering the welfare of a child in the second degree, § 568.050.1(1), for leaving her nine-year-old son in her car on a hot summer day while she gambled at a casino. Ms. Todd argues on appeal that (1) the State failed to allege facts specifying any substantial risk to the child; (2) the trial court erred in considering facts not in evidence; (3) the evidence was not sufficient to find a substantial risk existed; and (4) the evidence was insufficient to find Ms. Todd met the standard for criminal negligence.

Finding no error, we affirm.

Facts

The case was tried to the court on stipulated facts. “[W]e view the evidence in the light most favorable to the verdict, and we ignore countervailing evidence.” State v. Mullins, 140 S.W.3d 64, 67 (Mo.App.2004) (citing State v. Smith, 944 S.W.2d 901, 916 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997)). The evidence included the arresting officer’s report and a written statement by Ms. Todd’s son.

On August 15, 2003, shortly before 4:00 p.m., Todd parked her mini-van at the Isle of Capri Casino in 94-degree heat, with her nine-year-old son inside the car and the windows rolled up. She covered the front passenger windows with clothing and placed a sunshade in the front windshield. She instructed her son that if anyone should ask him where his mother was, he should say she went inside to look for the boy’s uncle. She locked the car, left the engine running with the air conditioner on, and entered the casino. She entered the gaming floor at 3:50 p.m. and was playing cards by 3:52 p.m.

At 4:05 p.m., casino security notified a Highway Patrol officer in the Gaming Division that a boy was hiding in a vehicle in the parking lot. At 4:08 p.m., officers approached the mini-van, its engine then off. The officers found the child hiding on the floor at the front of the vehicle. An officer identified himself and showed his badge to the boy, who unlocked the door, apparently scared that he was in trouble. The boy said Ms. Todd was his mother, and the officer had her paged. When asked why she left the boy unattended in the heat, she said she was looking for someone at the casino. She did not explain why she took time to gamble, rather than returning immediately to her car. Concerned about Todd’s mental state, the officer concluded it was unsafe to leave the boy in her care, and took her into custody. At Todd’s request, the boy was picked up by his uncle, who was at work and not at the casino.

The trial court found Todd guilty of endangering the welfare of a child, § 568.050.1(1), and fined her $100. The trial court explained its finding of guilt, saying that the outside air temperature did not pose a substantial risk, because the child could get out of the vehicle, but that Todd’s conduct created substantial risk that the child might be abducted or molested, or that the child might try to drive the car, or might leave the car and get run over in the parking lot. This appeal followed.

Discussion

Standard of Review

In a court-tried criminal case, the standard of review is the same as in a jury-tried case, namely whether there is sufficient evidence to support the conviction. State v. Pollard, 941 S.W.2d 831, 833 (Mo.App.1997). “We accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding, and all contrary evidence and inferences are ignored.” Id. We review questions of law de novo. State v. Reed, 157 S.W.3d 353, 357 (Mo.App.2005).

1. The State alleged sufficient facts to show substantial risk of harm to the child.

In her first point on appeal, Todd argues that she must be acquitted because the State failed to specify the precise risk that flows from leaving a nine-year-old child unattended in a locked car — with the keys — in a casino parking lot in 94-degree heat in the summer sun. Todd asserts that the charge against her, stating her conduct but not specifying the risk flowing from that conduct, was inadequate as a matter of law.

Rule 23.01 states the requirements for the indictment or information used to charge a defendant. An indictment or information substantially consistent with the model approved by the Missouri Supreme Court presumptively complies with those requirements. Rule 23.01(b). The approved charge for § 568.050.1(1) requires the State to allege the defendant’s conduct and that the conduct presented a substantial risk to the life, body, and/or health of the child. MACH-CR 22.11. The approved charge does not require the State to specify, beyond the conduct charged, what risk flows from that conduct. The charge against Todd, alleging Todd’s conduct which presented a substantial risk to her child, exactly followed the formula prescribed in Missouri Approved Charges-Criminal 22.11 and therefore satisfied the requirements of Rule 23.01.

As shown by the approved jury instruction, determining that the defendant’s conduct created a substantial risk is the duty of the fact finder. The Missouri Approved Instruction for § 568.050.1(1) requires conviction if the fact finder concludes, among other things not challenged here, (1) that the defendant committed the act alleged and (2) “that in so doing, the defendant created a substantial risk” to the life, body, or health of a child. MAI-CR 3d 322.11. This makes it clear that the fact finder, in this case the trial judge, must assess whether the defendant’s conduct presented a substantial risk to the life, body, or health of the child. The State must allege and prove the defendant’s conduct giving rise to the risk, but the fact finder must determine whether that conduct created a substantial risk to the child.

Suggesting that the fact finder improperly considered risks not alleged by the State, Todd cites State v. Jackson for the proposition that, “[w]here the act constituting the crime is specified in the charge, the State is held to proof of that act; and a defendant may be convicted only of that act.” 896 S.W.2d 77, 82 (Mo.App.1995). This accurately states the law, but it provides no aid to Todd here, where the State alleged and proved the act giving rise to the risk, namely leaving the child unattended in the car in 94-degree heat in the casino parking lot. Todd fails to recognize the distinction between the act on the one hand, and the risk it creates on the other. The State need merely allege and prove the act which gives rise to the risk. MACH-CR 22.11; MAI-CR 3d 322.11. The State need not elaborate on all the risks that may flow from the charged conduct. Id. Point denied.

2. The trial court considered the broad nature of the risk.

In her second point, Todd argues that the trial court, as fact finder, erred in considering risks to the child that the prosecutor did not allege, prove, or enter into evidence. In its judgment and order rejecting Todd’s motion for acquittal and for a new trial, the trial court expressed concerns about various risks posed by Todd’s conduct, such as the risk that the child might be abducted or molested, or that the child might try to drive the car, or might leave the car and get run over in the parking lot.

Todd urges us to conclude that the trial judge’s consideration of the various risks posed by Todd’s conduct constituted judicial notice, with its attendant restrictions. Todd points to no case, and we find none, indicating that it constitutes judicial notice for a fact finder to express a rationale underlying its conclusion that conduct like Todd’s creates substantial risk to the child. We think, rather, that the trial judge contemplated “non-adjudicative” facts, which are necessary to the reasoning process. Fed.R.Evid. 201, Advisory Committee Note. “Adjudicative facts are simply the facts of the particular case.” Id. A court or jury is not barred from considering non-adjudicative facts, because “[i]n conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved; and the capacity to do this with competent judgment and efficiency is imputed to judges and juries as part of their necessary mental outfit.” Id. (quoting Thayer, Preliminary Treatise on Evidence 279-80 (1889)). As the Advisory Committee Note to Federal Rule of Evidence 201 explains,

[E]very case involves the use of hundreds or thousands of non-evidence facts.... The judicial process cannot construct every case from scratch, like Descartes creating a world based on the postulate Cogito, ergo sum. These items could not possibly be introduced into evidence, and no one suggests that they be.... It is apparent that this use of non-evidence facts in evaluating the adjudicative facts of the case is not an appropriate subject for a formalized judicial notice treatment.

Id. Because determining whether Todd’s conduct created a substantial risk is within the purview of the fact finder — see discussion of point one, supra — we need not examine non-adjudicative facts underlying the fact-finder’s rationale. We only review whether the fact finder’s decision was based on sufficient adjudicative facts in evidence. We review the sufficiency of the evidence in Todd’s third and fourth points, infra. Point two is denied.

3. Sufficient evidence supported finding substantial risk.

In her third point on appeal, Todd argues that the evidence was insufficient to support a finding that her conduct created substantial risk. Our review of sufficiency of the evidence is limited to “determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt.” State v. Anderson, 108 S.W.3d 680, 681 (Mo.App.2002). “We accept as true all evidence and inferences favorable to the verdict and disregard all evidence and inferences to the contrary.” Id. at 682.

The State needed to prove that Todd’s conduct presented a “substantial risk” to her son. § 568.050.1(1). “The words ‘substantial risk’ have a plain and ordinary meaning cognizable by a person of ordinary intelligence.” State v. Mahurin, 799 S.W.2d 840, 842 (Mo. banc 1990), cert. denied, 502 U.S. 825, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991). “‘Substantial’ is defined as ‘not seeming or imaginary: not illusive[.’] And ‘risk’ is defined as ‘the possibility of loss, injury, disadvantage^] or destruction.’ ” State v. Brock, 113 S.W.3d 227, 232-33 (Mo.App.2003) (citations omitted). Several cases have addressed what constitutes a “substantial risk” meriting criminal liability. The substantial risks associated with malnourish-ing a child have been deemed self-evident. Mahurin, 799 S.W.2d at 842. Physically assaulting a mother while her child wraps his arms around her to protect her presents a substantial risk to the child, though the defendant never struck the child. Brock, 113 S.W.3d at 229. A child-care worker who single-handedly oversaw nineteen children created a substantial risk to the children, and no further explanation of the precise nature of the risk was required. State v. Mullins, 140 S.W.3d 64, 70 (Mo.App.2004). This court has concluded that leaving a two-year-old unattended, outside, with an unfenced duck pond nearby created a substantial risk that wandering into the pond would harm the child. State v. Riggs, 2 S.W.3d 867, 872 (Mo.App.1999). Riggs also clarifies that no injury or harm need result; a substantial risk may exist even though the risk does not materialize into actual harm. Id. at 873. Most recently, the Missouri Supreme Court decided that a mother put her child at substantial risk by leaving the child in the care of the child’s father, who she knew had previously abused the child. State v. Burrell, 160 S.W.3d 798, 802 (Mo. banc 2005).

Missouri courts have also identified facts that do not constitute a substantial risk to a child. Forcing a six-year-old to drink a small juice-glass of beer does not, without more, present a substantial risk to the child. State v. Hunter, 939 S.W.2d 542, 545 (Mo.App.1997). Importantly, the Hunter court noted, “In determining whether actions [create substantial risk], we look at the totality of the circumstances as presented by the evidence.” Id. This totality of the circumstances test was followed in State v. Kuhn, where the court found that bringing a child to a home containing wow-dangerous chemicals did not present substantial risk, although the chemicals included some of the materials needed to make methamphetamine. 115 S.W.3d 845, 849-50 (Mo.App.2003). The Missouri Supreme Court has adopted the totality of the circumstances test. Burrell, 160 S.W.3d at 802.

This court has found that failure to seek medical care for a child does not present a substantial risk where the child does not, in fact, require medical treatment. State v. Wilson, 920 S.W.2d 177, 180 (Mo.App.1996). But “[w]here an actual risk to the child for failure to provide medical treatment exists, a parent can be held criminally liable for failing to seek such treatment even though the failure did not result in any harm to the child.” Id. The Wilson court stressed that “there is a fundamental difference between a situation where the harm never actually occurred, [which may merit criminal liability,] and a situation where the danger itself never actually existed, as is the case when it is determined” that the child did not have an illness or injury requiring medical treatment. Id. All these cases finding no substantial risk reversed convictions because the child faced virtually no risk stemming from the act charged.

The undisputed evidence here, in contrast, showed that Todd left her nine-year-old son alone in a locked mini-van in a casino parking lot in the summer sun in 94-degree heat while she gambled. We hold these facts are sufficient, in the totality of the circumstances, for a fact finder to conclude that Todd’s conduct presented a substantial risk to the life, body, and health of the child. The risks stemming from leaving children to their own devices, in a vehicle, with the keys, for indeterminate periods of time, in public parking lots, in hot summer sun are self-evident, and the evidence sufficed for the fact finder to conclude that the risk was substantial.

A Sufficient evidence supported finding Todd acted with criminal negligence.

In her fourth point on appeal, Todd argues that the evidence was insufficient to support a finding that she acted with criminal negligence, the required mental state under § 568.050.1(1). However, Todd also concedes — assuming arguendo that her conduct created a substantial risk of the child becoming overheated, kidnapped, or abducted— that she was “aware of these risks,” as evidenced by her covering some of the windows, leaving the air conditioner on, and locking the doors. We agree with Todd that the evidence indicates she was aware of the risks created by her conduct. In addition to the facts that Todd admits show her awareness of the risks, she also instructed her son to lie about why he was waiting in the car: she told him to say she went to look for someone, but two minutes after entering the gaming floor, she was playing cards. She instructed him to hide, and helped to hide him by covering some of the vehicle windows. When the officers approached the boy, he appeared concerned that he was in trouble, suggesting that even he, a nine-year-old child, knew his mother should not have left him alone.

Todd apparently concedes her awareness of the risks in order to show that she does not meet the criminal negligence requirement of failing to be aware. Todd misunderstands the law of culpable mental states. Criminal negligence means failing “to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” § 562.016.5. A person acts knowingly “[wjith respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist.” § 562.016.3(1). Todd overlooks the inclusion of less-culpable mental states within more-culpable mental states: “If the definition of an offense prescribes criminal negligence as the culpable mental state, it is also established if a person acts ... knowingly-” § 562.021.4. Therefore, because Todd concedes that she was aware of the risks, she necessarily concedes that she meets the requirement for criminal negligence.

Todd urges us to resolve an apparent case-law conflict over what satisfies the “knowing” mental state for child endangerment. But the knowledge requirement applies under § 568.045, not applicable here. Todd was charged under § 568.050.1(1), which requires only criminal negligence. We decline to address the mental state for a statute not applicable here. Anyway, in the time after this case was appealed, the Missouri Supreme Court has spoken on the knowledge requirement under § 568.045. Burrell, 160 S.W.3d at 802.

Accordingly, Todd’s concession as to her awareness of the risks forces us to conclude that she satisfied the requisite mental culpability. And the evidence was sufficient for the fact-finder to conclude that Todd acted with criminal negligence. Point denied.

The judgment of conviction is affirmed.

PAUL M. SPINDEN, Presiding Judge, and VICTOR C. HOWARD, Judge, concur.

      . All statutory references are to Mo.Rev.Stat. (2000), unless otherwise indicated.


author: PER CURIAM.

text:
    Mark DAVIDSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64562.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied Feb. 28, 2006.
    Jeannie M. Willibey, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before SMITH, C.J., LOWENSTEIN and ELLIS, JJ.
   ORDER

PER CURIAM.

On a plea of guilty, Davidson was convicted of attempted domestic assault in the second degree, § 564.011, RSMo 2000. Davidson appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Davidson argues that he was entitled to an eviden-tiary hearing on the allegations that the State did not fulfill the terms of the plea agreement and that he was denied effective assistance of counsel. Affirmed. Rule 84.16(b).


author: LISA WHITE HARDWICK, Judge.

text:
    In the Matter of the CARE AND TREATMENT OF Andre COKES, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64455.
    Missouri Court of Appeals, Western District.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Emmett D. Queener, Columbia, MO, for appellant.
    Nicole L. Loethen, Jefferson City, MO, for respondent.
    Before: HARDWICK, P.J., BRECKENRIDGE and SPINDEN, J.J.
   LISA WHITE HARDWICK, Judge.

Andre Cokes appeals from a judgment committing him to the Department of Mental Health (DMH) as a sexually violent predator (SVP). Cokes contends the evidence was insufficient to support the SVP determination, and that the probate court erred in excluding his rebuttal evidence. Finding no error, we affirm the judgment.

Factual and Procedural History

Cokes was convicted in 1979 of attempting to sodomize an eleven year-old boy. He served time in prison and was paroled in 1981. In 1983 and 1985, he was convicted of raping two women. Just prior to his scheduled release from prison in August 1999, the State filed a petition to commit Cokes to the DMH as a “sexually violent predator” pursuant to Section 632.486.

Following a jury trial, the probate court entered judgment granting the petition. This court reversed the judgment and remanded for a new trial due to instructional error and the State’s failure to establish a necessary element of proof. In re Care & Treatment of Cokes, 107 S.W.3d 317 (Mo.App.2003). At the second jury trial, Cokes was again found to be a SVP and was, therefore, committed to the DMH. Cokes appeals from the Judgment and Commitment Order.

Sufficiency of the Evidence

In his first point on appeal, Cokes contends there was insufficient evidence to support the jury’s finding that he is a sexually violent predator. Our review of the sufficiency of the evidence applies the same standard of review as in criminal cases. Amonette v. State, 98 S.W.3d 593, 600 (Mo.App.2003). We view the evidence in a light most favorable to the jury verdict, disregarding all contrary evidence and inferences. Id. We must determine whether the evidence was sufficient for twelve reasonable jurors to have believed beyond a reasonable doubt that Cokes is a SVP. Id. The verdict should not be reversed unless there is a “complete absence of probative faet[s]” to support the jury’s conclusion. Smith v. State, 148 S.W.3d 330, 335 (Mo.App.2004).

Under Missouri law, a SVP is defined as a prior sexual offender “who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” § 632.480(5). The statute further defines a mental abnormality as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses.” § 632.480(2). The condition must be severe enough that it causes the person “serious difficulty in controlling his behavior.” Thomas v. State, 74 S.W.3d 789, 791 (Mo. banc 2002). To make a submissible case for civil commitment, the State was required to prove beyond a reasonable doubt that Cokes met the definition of a SVP.

Cokes argues the State failed to prove that he has a mental abnormality that renders him more likely than not to engage in predatory acts of sexual violence. Although the State presented evidence of his past criminal behavior, Cokes contends the State did not prove that he is prone to act violently due to a sexual compulsion. Proof of serious difficulty in controlling one’s behavior is a key factor that distinguishes the dangerous sexual offender, whose mental abnormality subjects him to civil commitment, from the dangerous, but typical, criminal recidivist. Id.

At trial, the State presented two psychiatrists, Dr. Bradley Grinage and Dr. Jay Englehart, who testified that Cokes suffers from multiple mental abnormalities that predispose him to commit sexual violence in the future. Cokes presented two psychologists, Dr. Steven Mandracchia and Dr. Robert Prentky, who concluded that he does not have a mental abnormality and is not a SVP. The jury heard all of evidence and afforded greater weight and credibility to the testimony of the State’s experts in determining that Cokes met the definition of a SVP. The fact finder’s credibility determinations are entitled to deference as we review the record for the limited purpose of considering whether the evidence supports the Judgment and Order of Commitment. See In re Care & Treatment of Johnson, 161 S.W.3d 873, 877 (Mo.App.2005).

Dr. Grinage testified that he conducted a SVP evaluation in December 2003, during which he met with Cokes and reviewed his extensive medical and legal records. Based on the evaluation, Dr. Grinage concluded, to a reasonable degree of medical certainty, that Cokes suffers from three mental disorders: paraphilia “not otherwise specified” (NOS), psychotic disorder NOS, and antisocial personality disorder.

Dr. Grinage explained that paraphilia is a sexual disorder characterized by recurrent urges or behaviors that involve the suffering or humiliation of another person, including having sex with children or other non-consenting adults. Paraphilia involving non-consenting persons falls into the general category of paraphilia NOS, unlike other types of paraphilia, such a pedophilia, that are more specifically categorized.

Dr. Grinage based his diagnosis of para-philia NOS on the three incidents of non-consensual sex for which Cokes was convicted and incarcerated: his attempted sodomy of an 11-year-old boy in 1979, his forcible rape of an 18-year-old woman in 1981, and his forcible rape of a 25-year-old woman in 1982. In questioning Cokes about why he committed the crimes, Dr. Grinage noted that Cokes appeared to lack any insight about his motivation. Cokes admitted to Dr. Grinage that he “was definitely out of control” at the time of the three incidents.

The diagnosis of psychotic disorder NOS was based on Dr. Grinage’s collective assessment of Cokes’ schizophrenic reaction to drugs in 1976, his two admissions to a psychiatric hospital in 1976, his paranoid delusions noted during his incarceration, the thought formation problems and thought derailment he experienced in therapy prior to medication, and his dramatic response to anti-psychotic medications.

Dr. Grinage noted additional incidents that supported the diagnosis of Antisocial Personality Disorder: Cokes’ multiple arrests, beginning at the age of 10, for fighting, truancy, and sale of drugs; his attendance at a school for children with behavioral disorders; his assault of a young woman during his adolescence; his multiple violations for drug and alcohol abuse during his incarcerations; and his aggression toward others at the Missouri Sexual Offender Treatment Center before he was medicated.

The combination of these psychotic disorders led Dr. Grinage to conclude that Cokes has serious difficulty controlling his behavior. He observed that Cokes committed two rapes while he was on parole for his first offense of attempted sodomy. Cokes knew he was being monitored but admittedly was unable to restrain himself from the violent sexual attacks. Dr. Gri-nage testified to a reasonable degree of medical certainty that Cokes’ mental abnormality of paraphilia with psychosis makes him “more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility.”

Dr. Englehart is a senior psychiatrist who treated Cokes at the Missouri Sexual Offender Treatment Center (MSOTC). He agreed with Dr. Grinage’s diagnosis of paraphilia NOS, although his own treatment with Cokes did not progress far enough to make that definitive diagnosis. During the treatment program, Dr. Engle-hart diagnosed Cokes as having thought disorder, a mild form of paranoid schizophrenia, and psychotic disorder NOS.

Dr. Englehart observed Cokes during episodes of paranoia and thought disorder that caused Cokes to believe the general policies at MSOTC were directed at him personally. Cokes reacted with angry outbursts in which he threatened staff and other residents. Dr. Englehart prescribed Zyprexa, an antipsychotic medication. Cokes was initially resistant to taking it, but once the medication began in June 2001, his behavior improved. Dr. Engle-hart opined that Cokes’ response to the medication supports his diagnosis of psychotic disorder. Despite some improvement, however, Cokes was still involved in isolated incidents of assaults on staff and residents even while medicated.

Dr. Englehart testified that Cokes’ psychotic disorder contributed to his commission of sexual offenses. He stated unequi-vocably that Cokes must continue his medication to manage his behavior. However, because Cokes refuses to acknowledge his psychotic disorder, Dr. Englehart believes it is unlikely he would stay on his medication if he is not retained in a structured environment. Dr. Englehart concluded that Cokes “is not safe to be at large.”

Cokes made no effort to challenge the expert qualifications of Dr. Grinage and Dr. Englehart at trial. Nor was there any objection to the underlying data or facts presented in support of the opinions rendered by these psychiatrists. As such, the expert testimony was clearly admissible, and it was the jury’s duty to assess and weigh the reasonableness of the opinions in light of all the evidence. State v. Butler, 24 S.W.3d 21, 25-26 (Mo.App.2000).

The testimony of Dr. Grinage and Dr. Englehart was sufficient to establish that Cokes has one or more mental abnormalities that make him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility. The expert opinions made the necessary connection between the nature of Cokes’ paraphilia/psychotic order and his propensity to commit sexual assaults even under supervised release conditions. Viewed in a light most favorable to the judgment, the evidence established beyond a reasonable doubt that Cokes’ mental condition is severe enough that it causes him serious difficulty in controlling his behavior. The jury could reasonably rely on this expert evidence in determining that Cokes is a sexually violent predator, as defined in Section 632.480(5). Point I is denied.

Exclusion of Evidence

In Point II, Cokes contends the probate court erred in excluding evidence regarding his proposed medication arrangements in the event he was released from secure commitment. The court rejected Cokes’ attempt to present evidence that a psychiatrist would provide prescriptions after his release and a family member would aid him in securing and taking any medication prescribed. Cokes argues the evidence was relevant to the jury’s determination of whether he was likely to engage in predatory acts of sexual violence if not confined in a secure facility.

A trial court has considerable discretion in determining whether evidence should be admitted or excluded. Lewis v. State, 152 S.W.3d 325, 330 (Mo.App.2004). We will reverse only when the exclusion of evidence shocks the sense of justice or indicates an absence of careful consideration. Id. Even then, we will not reverse unless the error had a material effect on the merits of the action. Id.

Prior to trial, Cokes requested the probate court to exclude evidence regarding any treatment or medication that would be available if he was or was not committed to a secure facility. The court thereafter made multiple pretrial rulings that neither party could present evidence of what will happen to Cokes depending upon whether he is committed or released.

At trial, both of the State’s experts testified that Cokes needed to stay on his medication in order to have any hope of controlling his behavior. Dr. Grinage also testified that Cokes would most likely stop taking the medication if released from commitment. Cokes did not object to Dr. Grinage’s testimony, but he sought to present rebuttal evidence that a psychiatrist and a family member would assist him in maintaining a post-release medication regimen. After an offer of proof, the court excluded the evidence based on its pretrial ruling.

The evidentiary exclusion was consistent with our analysis in Lewis, a similar SVP case. In that case, the sexual offender, James Lewis, sought to cross-examine his former probation and parole officer to show that he would still be under supervised probation even if he were released following the SVP hearing. Id. at 330. The probate court disallowed the cross-examination, despite Lewis’ argument that the evidence was relevant in the jury’s determination of whether he would be likely to commit sexually violent acts if released from confinement. Id. On appeal, we agreed with the probate court, finding that the primary question in a SVP case is whether the offender “suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” Id. at 332 (citation omitted). “The question is not whether some external constraints make it less likely that [the offender] would engage in such acts.” Id. Accordingly, we held that evidence regarding the nature of any post-release supervision is irrelevant to the jury’s determination in a SVP case. Id.

Cokes argues that his case is distinguished from Lewis because he did not seek to present evidence about potential supervision if released. He contends the evidence regarding his medication arrangements would have allowed the jury to consider whether he has a mental disorder that leaves him unable to pursue treatment voluntarily and, therefore, makes him more likely to re-offend with violent sexual acts.

We disagree that the evidence had any relevance in determining the existence of a mental disorder. The record clearly establishes that Cokes sought to introduce the testimony of a prescribing psychiatrist and a family member in order to show that he had support structures in place to help him remain medically compliant during any period of release. These are precisely the type of “external constraints” that Lewis deemed irrelevant in a SVP proceeding. The probate court did not abuse its discretion in excluding the evidence. Point II is denied.

The Judgment and Commitment Order is affirmed.

All concur.

      . All statutory references are to Missouri Revised Statutes 2000 unless otherwise noted.


text:
    Jevons BROWN, Claimant/Appellant, v. ST. LOUIS COUNTY and Division of Employment Security, Respondents.
    No. ED 86165.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 20, 2005.
    Rehearing Denied Jan. 24, 2006.
    Jevons Brown, St. Louis, pro se.
    Margaret Helen Hart-Mahon, St. Louis, MO, for respondent St. Louis County.
    Alan J. Downs, Jefferson City, MO, for respondent Division of Employment Security.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Jevons Brown (Claimant) appeals from an Order of the Labor and Industrial Relations Commission (Commission) disqualifying Claimant for waiting week credit and benefits because Claimant was discharged for misconduct connected with Claimant’s work. We have reviewed the briefs of the parties and the record on appeal and conclude that the decision of the Commission is supported by sufficient competent evidence in the record. Section 288.210 RSMo 2000. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    In the Interest of E.R.
    No. ED 86633.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 6, 2006.

      Michael P. Shea, Joseph Kuhl, St. Charles, MO, for appellant.
    Jerry L. Suddarth, O’Fallon, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

E.R. (hereinafter, “Mother”) appeals from the trial court’s judgment terminating her parental rights to her minor daughter (hereinafter, “Child”). On appeal, Mother argues the court erred in terminating her parental rights because there was insufficient evidence to support the judgment terminating her parental rights on the basis that: (1) she failed to rectify her chemical dependency problem; (2) she neglected Child; and (3) she failed to rectify her housing situation.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment terminating Mother’s parental rights to Child is supported by clear, cogent, and convincing evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the principles of law. However, we are providing a memorandum to the parties, for their use only, setting forth the reasons for this order. We affirm pursuant to Rule 84.16(b).


text:
    Mary Jane ROSENBERG, Employee/Appellant, v. D.C., INC. and Division of Employment Security, Respondents.
    No. ED 85727.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 6, 2006.
    Mary Jane Rosenberg, St. Charles, pro se.
    Marilyn Green, Cynthia Quetsch, Jefferson City, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Mary Jane Rosenberg (Employee) appeals from the order of the Labor and Industrial Relations Commission (Commission) in favor of D.C., Inc. affirming the decision of the Appeals Tribunal, which found that Employee had been discharged for misconduct connected with work and disqualified Employee for four weeks of benefits.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error lack merit. The order of the Commission is supported by sufficient competent and substantial evidence in the record as a whole. No error of law appears. A written opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We affirm pursuant to Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the Commission’s order pursuant to Rule 84.16(b).