text:
    STATE of Missouri, Respondent, v. Jerry L. FROELKER, Appellant.
    No. ED 85376.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Bradley S. Dede, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty, Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Jerry L. Froelker (“Appellant”) was charged with producing a controlled substance under Section 195.211 and possession of a controlled substance under Section 195.202. Appellant was found guilty of possession of a controlled substance, a class C felony, and not guilty of producing a controlled substance after a bench trial. He was sentenced to three years in the Missouri Department of Corrections with drug treatment and a 120-day call-back pursuant to Section 559.115. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of S.L.N., Plaintiff; M.R.N. and L.N., Respondents, v. D.L.N. (Mother), Appellant.
    No. WD 64632.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.

      Hugh D. Kranitz, St. Joseph, MO, for Appellant, DLN.
    Zel Martin Fischer, Rock Port, MO, for Respondents.
    Robert Edward Sundell, Attorney and Guardian for minor.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   PER CURIAM.

D.L.N. (Mother) appeals the judgment terminating her parental rights to her child, S.L.N. She contends that the court erred as a matter of law in failing to consider, evaluate, and make the appropriate statutory findings. The judgment is affirmed.

Statement of Facts

S.L.N. (Child) was born in 1998 to Mother and M.R.N. (Father). Mother and Father divorced less than a year later. The dissolution decree granted joint physical custody, with Mother having the larger share of residential time with Child. In October 2001, after Mother was charged with a felony, Father obtained a judgment that granted him temporary custody. The judgment permitted Mother limited periods of unsupervised visitation with Child. Child, who was then approximately three years old, has lived continuously with Father and his wife (Stepmother) since that time.

Mother pleaded guilty to the felony of “conspiracy to facilitate arson.” Mother admitted that she had conspired with her uncle to burn down the home of a man (L.B.) who is the father of Mother’s other child, H.B. Mother, Child, H.B., and L.B. previously lived together at the house that was burned. Mother began serving a five-year prison sentence in January 2002, when Child was approximately four years old.

Father filed a motion to modify custody. The court sustained the motion and granted Father sole physical and legal custody. The court ordered Mother to pay $250 per month in child support, effective retroactively. The judgment contained no provision for mandatory visitation while Mother is incarcerated. Visitation with Mother was to be at Father’s discretion based on Child’s best interests. Mother was permitted restricted telephone access with Child.

In November 2003, Father and Stepmother filed a Petition for Transfer of Custody and Adoption. The petition alleged, in part, that Mother had abandoned and neglected Child and that adoption by Stepmother would be in Child’s best interest.

The court held a hearing, at which all parties were present with their respective counsel. In its judgment, the court declared that it had jurisdiction pursuant to Chapter 453. The court found, inter alia, that Mother had “willfully abandoned” Child and had “willfully, substantially, and continuously neglected” to provide Child with necessary care and protection. The court determined that Father and Stepmother are suitable parents and that Child is suitable for adoption. The court concluded that Mother’s parental rights should be terminated and that adoption is in Child’s best interest.

The judgment terminated Mother’s parental rights and granted the stepparent adoption. Mother appeals.

Failure to Make Required Findings

All three of Mother’s points relate to the same issue and can be summarized as follows: The trial court misapplied the law in terminating Mother’s parental rights in connection with the adoption proceeding by failing to comply with various provisions of section 211.447.

We will sustain the trial court’s judgment in an adoption case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law. In re K.N.H., 118 S.W.3d 317, 319 (Mo.App.2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We defer to the trial court’s factual findings and credibility determinations. Id. Whether the court erred in failing to comply with section 211.447 is a question of law, which we examine de novo. See Obermeyer v. Bank of Am., N.A., 140 S.W.3d 18, 22 (Mo. banc 2004).

Chapters 211 and 453 provide two separate means by which a parent’s rights may be involuntarily terminated. See Matter of J.F.K., 853 S.W.2d 932, 934 (Mo. banc 1993). Chapter 211 provides for a direct proceeding that usually is brought by the juvenile officer. See id.; but see § 211.447.5 (permitting the court to terminate parental rights based on a Chapter 211 petition brought by a prospective parent in an adoption case). Chapter 453 governs adoptions in Missouri. See In re Adoption of R, 31 S.W.3d 551, 552 (Mo.App.2000). Pursuant to that chapter, prospective adoptive parents may request termination of parental rights incident to an adoption action. See J.F.K., 853 S.W.2d at 934; § 453.040.

Section 211.447 is the provision of Chapter 211 under which a parent’s rights may be terminated. Here, Mother specifically argues that the court erred in terminating her parental rights without considering, evaluating, and making findings on the factors set forth in section 211.447.4 as to abandonment and neglect. She makes the same argument with regard to the additional factors set forth in subsections 4-6 of section 211.447.6.

The court made the following relevant findings:

IV. The natural mother of the child ..., immediately prior to the filing of the petition for adoption has for a period of at least six months, willfully abandoned the child.
V. The natural mother of the child ..., immediately prior to the filing of this petition for adoption for a period of at least six months, willfully, substantially and continuously neglected to provide the minor child with necessary care and protection.
VI. In support of terminating the parental rights of [Mother], the Court considered all relevant factors allowed by law and finds as follows:
A. [Child] has no emotional ties to her natural mother....
B. [Mother] has not maintained regular visitation and contact with [Child]. Further, [Mother] had the opportunity to have regular telephone visitation and contact but failed to do so. In fact, [Mother] never called [Child] after April of 2003.
C. [Mother] has not expended any funds nor provided any support for maintenance of [Child] since prior to October 26, 2001. [Mother] is in arrears in child support in the amount of $8,000.00. There was evidence she had a prison job. [Mother] sent [Child] a total of $7.00 as gifts the entire time she has been in prison.
D.[Mother] was convicted of conspiring with her uncle [ ] to commit an arson that resulted in the former residence of [Child] being totally destroyed.
[The court made additional factual findings concerning the specifics of the crime, which we have omitted.]
E. The fact is that [Mother] committed substantial steps towards the planning and commission of the arson in the presence of the child and, therefore, [Mother] knew or should have known that doing so created a substantial risk of mental harm to [Child].
F. The Court recognizes but gives little weight to the calls prior to May, 2003, or cards sent during her imprisonment by [Mother] to [Child]. In fact, some of the phone conversations [Mother] had with [Child] after being imprisoned were emotionally abusive to [Child].

The court also made findings regarding the home study and determined that Father and Stepmother would be suitable parents for Child. The court concluded that Mother’s parental rights should be terminated and that adoption is in Child’s best interest.

Father and Stepmother argue that Chapter 453 governs this adoption case. They say that this is not a termination case filed pursuant to Chapter 211; thus, the court did not misapply the law by not making findings on the factors in section 211.447. Father and Stepmother contend that this case was adjudicated pursuant to section 453.040(7). Under that statute, consent to adopt a child is not required of

[a] parent who has for a period of at least six months ... immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection!.] (Emphasis added.)

The adoption petition pleaded the language of section 453.040(7). It alleged that Mother had for a period of at least six months immediately prior to the filing of the petition “willfully abandoned the child” and for the same period had “willfully, substantially, and continuously neglected to provide the minor child with necessary care and protection.” Likewise, the court made similar findings using the same language. The court also specifically found that it had jurisdiction pursuant to Chapter 453 and cited another provision of that chapter in its judgment. Neither the petition nor the judgment refers to any provision of Chapter 211. Thus, we conclude that the trial court terminated Mother’s parental rights and granted this adoption on the basis of section 453.040(7).

Subsection (7) of section 453.040 contains no reference to section 211.447 or to any other provision of Chapter 211. Nor does section 211.447 specifically refer to section 453.040(7). The statutes do contain some cross-references. For example, sections 453.040(1) and 453.040(8) were amended in 1998 to include specific references to provisions of Chapter 211. And sections 211.447.5 and 211.447.8 refer, in a general way, to Chapter 453 and adoption petitions. However, none of those cross-references indicates that the findings requirements of section 211.447 apply to section 453.040(7) adoptions.

Mother cites no authority that supports her contention that the court committed reversible error by failing to make every section 211.447 finding. The case that Mother primarily relies upon for support, In the Interest of K.A.W., 133 S.W.3d 1 (Mo. banc 2004), is inapposite. There, the State was seeking a termination of parental rights pursuant to Chapter 211. K.A.W. is not a case, such as we have here, where a prospective adoptive stepparent is seeking termination and adoption under Chapter 453. The same is true of Mother’s other cited case, In the Interest of B.S.B., 76 S.W.3d 318 (Mo.App.2002).

Nor have we found any support for Mother’s contention. Many cases confirm that a court may grant an adoption without parental consent simply based upon a finding either of “willful abandonment” or “willful, substantial and continuous neglect” by the natural parent, as provided in section 453.040(7). See, e.g., K.N.H., 118 S.W.3d at 320; In re B.S.R., 965 S.W.2d 444, 448 (Mo.App.1998); C.B.L. v. K.E.L., 937 S.W.2d 734, 737 (Mo.App.1996). None of those cases indicates that such a finding also triggers application of the required findings provisions found in section 211.447.

There might be policy reasons to superimpose the provisions of section 211.447 onto section 453.040(7). However, we do not find the expression of any such intent in section 453.040(7). When other provisions of section 453.040 were amended in 1998 to add a specific reference to provisions of Chapter 211, subsection (7) was not so amended. The legislature could have done so had it intended. Mother’s points to the contrary are denied.

Findings Not Against the Weight of the Evidence

Mother also contends that the finding of abandonment was “against the weight of the evidence.” She did not raise this issue in her point relied on. An argument not raised in the point relied on need not be considered. See Foster v. Foster, 149 S.W.3d 575, 582 (Mo.App.2004); Rule 84.04(e) (argument shall be limited to those errors included in the points relied on). Moreover, Mother has not provided a copy of the hearing transcript. Thus, we are limited in our ability to review her claim. We defer to the trial court’s factual findings and credibility determinations in affirming the decision. K.N.H., 118 S.W.3d at 319. Greater deference is granted to a trial court’s determinations in custody and adoption proceedings than in other cases. Id. In any event, a finding of neglect, alone, if supported by substantial evidence, will support termination in an adoption case. See id. at 321; B.S.R., 965 S.W.2d at 448. Mother does not argue that the finding of neglect is unsupported by the evidence, nor do we so find.

Conclusion

For the foregoing reasons, the judgment is affirmed.

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

      . Section 211.447.4 provides, in relevant part, that the juvenile officer or the division may file a petition to terminate parental rights when it appears that one or more of the following grounds exist:
      (1) The child has been abandoned. The court shall find that the child has been abandoned if, for a period of six months or longer:
      (a) The parent has left the child under such circumstances that the identity of the child was unknown and could not be ascertained ...; or
      (b) The parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so[J
      (2) The child has been abused or neglected. In determining whether to terminate parental rights pursuant to this subdivision, the court shall consider and. make findings on the following conditions or acts of the parent:
      (a) A mental condition ...;
      (b) Chemical dependency ...;
      (c) A severe act ... of physical, emotional or sexual abuse toward the child ...; or
      (d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child’s physical, mental, or emotional health and development!)]
      (Emphasis added.)

      . Section 211.447.6 provides that when considering whether to terminate the parent-child relationship, the court shall evaluate and make findings on the following factors, ■when appropriate and applicable to the case:

        (1) The emotional ties to the birth parent;
      (2) The extent to which the parent has maintained regular visitation or other contact with the child;
      (3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so ...;
      (4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
      (5) The parent’s disinterest in or lack of commitment to the child;
      (6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;
      (7)Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.
      Mother acknowledges that the court made findings on the factors listed in section 211.447.6(1-3) and (7). She complains, however, that the court should have made findings as to every listed factor because each was "clearly relevant and appropriate.”

      . Some oí the court’s findings naturally are similar to those in section 211.447 because that statute and section 453.040(7) use similar language in discussing abandonment and neglect. See §§ 211.447.4(l)(b) & 211.447.4(2)(d); see also In re P.G.M., 149 S.W.3d 507, 514 (Mo.App.2004).

      . Under section 453.040(1), consent is not required of a parent whose rights have been terminated pursuant to sections 211.444 or 211.447. Subsection (8) provides that consent is not required of a parent "whose rights ... may be terminated for any of the grounds set forth in section 211.447 ... and whose rights have been terminated after hearing and proof[.]” § 453.040(8). That subsection also states that such a termination petition "may be filed as a count in an adoption petition.”

      . Section 211.447.5 states that the juvenile court may terminate parental rights when a prospective parent files the petition in an adoption case if the court finds that it is in the child's best interest and when it appears by "clear, cogent and convincing evidence that grounds exist for termination” pursuant to the subsections of § 211.447. Section 211.447.8 provides that in adoption actions filed pursuant to chapter 453, the court may hear and determine the issues raised in an adoption petition containing a prayer for termination "filed with the same effect as a petition permitted pursuant to subsection 2, 3 or 4 of this section.”

      .In 1997, numerous statutes dealing with adoption, including sections 453.040 and 211.447, were repealed and replaced with new versions of the same, pursuant to House Bill No. 343. 1997 Mo. Laws 1122, 89th General Assembly; see generally, Shawn R. McCarver, Adoptions in Missouri after House Bill 343, 54 J.Mo.Bar 74 (1998). Section 1 of that bill, codified at section 453.012, states that "the provisions of [all those revised statutes] shall apply to petitions for adoption filed on or after August 28, 1997.” We have found no Missouri cases citing section 453.012, but it seems to indicate only that the new versions of those statutes would become effective on or after that date. There is no indication that it was intended to make all the requirements of all those statutes (including section 211.447) applicable to all Chapter 453 adoptions.


author: CLIFFORD H. AHRENS, Presiding Judge.

text:
    Hal ELTISTE, Frances Eltiste, Rebecca Bremer and Leah Eltiste, by and through her next friend, Frances Eltiste, Appellant, v. FORD MOTOR COMPANY, Respondent.
    No. ED 84814.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.

    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.

      Thomas J. Murray, Murray & Murray, Sandusky, OH, Eric W. Kruger, Rieker-son, Kruger & Ratz, Omaha, NE, Daniel T. Ryan, Bollwerk & Ryan, St. Louis, MO, Terry W. Mackey, Hickey & Mackey, Cheyenne, WY, for appellant.
    Robert T. Adams, Shook, Hardy & Bacon, Kansas City, MO, John Randolph, Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville, TN, for respondent.
   CLIFFORD H. AHRENS, Presiding Judge.

Hal Eltiste (“Mr. Eltiste”), Frances El-tiste (“Mrs. Eltiste”), Rebecca Bremer, and Leah Eltiste (“plaintiffs”) appeal from the judgment of the trial court following jury verdicts in favor of defendant Ford Motor Company (“Ford”) on plaintiffs’ personal injury action. Plaintiffs contend that the trial court erred in admitting a report of the Office of Defect Investigation (“ODI”) of the National Highway Traffic Safety Administration (“NHTSA”) and in preventing plaintiffs from impeaching that report (“2000 ODI report”). Plaintiffs also assert that the trial court erred in limiting the discussion of their experts concerning documents from Ford to a verbatim reading of the documents. Plaintiffs further allege that the trial court erred in permitting Ford to amend its answer to assert the affirmative defense of lack of seat belt usage and in permitting Ford to introduce seat belt evidence relating to the issue of causation.

Viewed in the light most favorable to the judgment, the evidence is as follows. On May 22, 1994, a clear, sunny day, plaintiffs were riding in a 1991 Ford Ae-rostar van on Nebraska Highway 67, traveling approximately 60 miles per hour with the cruise control engaged. The driver of the Aerostar, Mr. Eltiste, tried to slow the vehicle down as it approached an intersection of another highway. Instead, the vehicle accelerated and went over an embankment, injuring several of the plaintiffs.

Prior to the accident of May 22, 1994, Mrs. Eltiste had experienced unexpected acceleration while driving the Aerostar with the cruise control engaged, which had resulted in the vehicle striking a tree. The Aerostar was inspected at a Ford dealership in Nebraska, Heritage Ford, Inc., but apparently no work was done on the cruise control. After the body of the car was repaired at a body shop, the vehicle was returned to the Eltistes several weeks prior to the May 22nd accident.

Plaintiffs filed suit against Ford, and asserted multiple causes of action including: strict liability — product defect; strict liability — failure to warn; breach of implied warranty; negligent manufacture, design, or failure to warn; negligence; failure to recall or retrofit defective design and/or manufacture; fraudulent concealment; and loss of consortium. Approximately two weeks prior to trial, Ford moved to amend its answer to include specifically the affirmative defense that the plaintiffs failed to mitigate damages by not using their seat belts. In its motion seeking leave to amend, Ford stated that it did not believe that the amendment was necessary, but “[o]ut of an abundance of caution,” wanted to make the amendation. The trial court granted this motion and denied plaintiffs’ motions in limine regarding the seat belt issue. Ford also filed an omnibus motion in limine, which included a request that the trial court preclude testimony by plaintiffs’ experts that would interpret Ford documents as evidence of Ford’s knowledge, intent, or state of mind. At in camera proceedings the trial court sustained Ford’s omnibus motion in limine.

Several of the plaintiffs testified at trial regarding the accident of May 22, 1994. Mr. Eltiste testified that he had the cruise control engaged at the time of the accident and tried to disengage it by tapping on the brakes, but to no avail. He further stated that when he pumped the brakes, the Ae-rostar accelerated even faster, and his other efforts to slow down were to no avail. Mrs. Eltiste testified about the May 22nd accident and about the previous incident of sudden acceleration. Several witnesses testified about similar incidents that they experienced with sudden acceleration and cruise control in Ford vehicles.

Plaintiffs also had several experts testify, including Samuel Sero (“Sero”) and Dr. Anthony Anderson (“Dr. Anderson”). Sero, a self-described “forensic engineer” has a B.S. in Electrical Engineering, is a member of the Society of Automotive Engineers, and worked for some years in various capacities as an electrical engineer before becoming a private consultant in 1979. Sero began consulting as a forensic engineer in 1989, investigating the causes of accidents. Sero testified regarding what he considered to be problems with the cruise control system of certain Ford vehicles, including 1991 Aerostars, and how electro-magnetic interference (“EMI”) could cause sudden acceleration in cars with such cruise control systems without leaving physical evidence of such an occurrence. He also stated that his review of Ford engineering documents supported this theory. Dr. Anderson, who holds a doctorate in electrical engineering, testified concerning the design of the cruise control system used in the 1991 model Aerostar and the possibility of sudden acceleration resulting from EMI.

Ford presented testimony from several experts, including Victor DeClercq (“De-Clercq”) and Dr. Catherine Corrigan (“Dr. Corrigan”), in its defense. DeClercq has a degree in physics and worked for many years for Ford primarily in electronics before becoming a consultant. DeClercq has testified as an expert for Ford in other litigation involving claims of sudden acceleration. DeClercq discussed the testing that Ford performed when he was supervisor of Ford’s Electromagnetic Compatibility facility from 1984 to 1994, and what Ford did not test. He stated that the only way that a sudden undesired acceleration could happen would require simultaneous shorts in the solenoids in the cruise control servomechanism that would leave physical traces. DeClercq testified that no such physical evidence was found in examinations of the Eltistes’ 1991 Aerostar. He discussed the 1989 NHTSA report on sudden acceleration, which was based on information supplied by Ford to NHTSA, and the 2000 ODI report, which criticized Sero’s theory of electromagnetic interference with cruise control mechanisms as a cause of unwanted sudden acceleration. Dr. Corrigan, a biomechanical engineer, testified that based on the reconstruction of the May 22, 1994 accident and the injuries of the plaintiffs, that Mr. Eltiste and Mrs. Eltiste were not wearing seat belts at the time of the accident.

A large number of documents were introduced into evidence. These documents included the 1989 NHTSA report, the 2000 ODI report, studies on sudden acceleration from Canada and Japan, and numerous documents from Ford’s records.

The jury returned verdicts in favor of Ford and awarded no damages to plaintiffs, and the trial court entered its judgment on April 12, 2004. Plaintiffs now appeal from that judgment.

In their first point on appeal, plaintiffs contend that the trial court erred in admitting the 2000 ODI report without first determining whether the document was rehable, thereby violating the requirements of Missouri law and the Missouri Constitution on the admission of “public records.”

Ford asserts that plaintiffs failed to properly preserve this claim of error, though it does not indicate in what manner plaintiffs failed to preserve this error. Counsel for plaintiffs objected to the introduction of the 2000 ODI report in a sidebar conference in which he stated:

The McMath denial arises from litigation involving the Chapman family. The lawyer representing the plaintiffs in that case, he filed a request to the agency [NHTSA] that they reopen the investigation which I have not objected to, but I suggest for numerous reasons, hearsay, and many other reasons, this response to a petition from the lawyer involved in litigation renders this particular denial of his petition a very different kind of fish from the 1989 part which as I understand for the jury would be admissible.
So for those reasons, reliability based on hearsay, and the fact that it was done in the context of litigation, I respectfully submit they should not be allowed to read any of the contents of that particular—

In their motion for a new trial, plaintiffs asserted as grounds for their motion that the trial court committed prejudicial error in admitting the 2000 ODI report, “as it does not meet the threshold of trustworthiness to support admissibility.”

Although the initial objection could have been phrased better, plaintiffs’ counsel did raise a sufficient objection so as to preserve the claim of error, and the motion for a new trial included that ground, this time more clearly, albeit briefly, articulated. Plaintiffs properly preserved their first point on appeal.

Section 490.220 RSMo (2000) provides that

All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal.

The Missouri Supreme Court addressed this statute and the admissibility of ree-ords from NHTSA in Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo. banc 1999), a case cited by Ford in its response to plaintiffs’ objection to the introduction of the 2000 ODI report. The Missouri Supreme Court observed that section 490.220 eliminated the foundational requirements of authentication, best evidence, and hearsay for the admission of certain public documents. Id. at 55. It noted that in prior cases regarding this statute, it had concluded that “[s]o long as the requirements of the statutes are met and the records are relevant, they are admissible.” Id. (quoting Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993)). In finding that the NHTSA reports at issue in that case were admissible even though the reports encompassed opinions and conclusions, the Missouri Supreme Court observed that they met the foundational requirements of section 490.220, and once that threshold had been met the reports were admissible “in their entirety” because the statute “is unqualified and open-ended.” Id. at 56.

The language of section 490.220 is unambiguous, unqualified, and open-ended. The Missouri Supreme Court did not add any additional requirements to the statute, save to note that a public record offered into evidence had to be relevant. Relevance is a requirement for admitting any evidence, and is in fact the principal criterion for the admission of evidence. See Porter v. Toys ‘R’ Us-Delaware, Inc., 152 S.W.3d 310, 318 (Mo.App.2004). Plaintiffs argue that the Missouri Supreme Court intended to incorporate a requirement similar to that in federal court that the public record sought to be admitted has to be “trustworthy,” noting the citation to Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161-70, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) by the Missouri Supreme Court. Suzuki 996 S.W.2d at 57. Plaintiffs assert that “Beech Aircraft was cited by the Supreme Court in Missouri with approval as the predicate for its conclusion in Suzuki that there should be no distinction between fact and opinion in assessing the admissibility of a public document.”

What the Missouri Supreme Court actually stated was that:

Finally, this Court disagrees with plaintiffs policy suggestion that the admission of such “unbridled rank hearsay” is a grave mistake. In the first place, this Court has no choice in the matter because, as stated, admission of the reports is required by statute. In addition, under Rule 803(8)(c) of the Federal Rules of Evidence, United States government reports, conclusions and all, are routinely admitted for plaintiffs and defendants alike.

Id. It cited to five eases, including Beech Aircraft, and an article. It also stated that “As the Supreme Court has observed, there should be little concern over conclusions contained in such reports because they are ‘subject to the ultimate safeguard — the opponent’s right to present evidence to contradict or diminish the weight of those conclusions.’ ” Id. (quoting Beech Aircraft, 488 U.S. at 168, 109 S.Ct. 439).

We note that the Missouri Supreme Court said that the admission of the NHTSA reports was required by section 490.220, and that in addition to that requirement, such reports are routinely admitted under the Federal Rules of Evidence, citing Beech Aircraft. Beech Aircraft was not a predicate to admitting the reports in Suzuki, but rather additional support contravening the plaintiffs policy argument in that case. Plaintiffs acknowledge that Suzuki “seemingly dispenses” with all criteria other than authentication and relevancy, but argue that such a reading constitutes a significant departure from Missouri law and the law of all other jurisdictions. Plaintiffs quote from a commentary that claims that such a reading of Suzuki would remove discretion to exclude unreliable hearsay and untrustworthy opinion testimony, would give preferential treatment to foreign records, and would create a much broader hearsay exception than contained in the Federal Rules of Evidence or the rules of other jurisdictions. We note that in his dissent in Suzuki, Judge White raised similar concerns about a per se rule of admissibility regardless of trustworthiness. Suzuki, 996 S.W.2d at 72. In light of Judge White’s dissent, it seems apparent that the Suzuki majority was aware of the potential impact of adopting a bright-line rule of admissibility of federal records, subject only to the foundational requirement of section 490.220 and the requirement of relevancy. We are constrained to follow the decision of our Supreme Court in Suzuki. Under section 490.220 and Suzuki, the trial court did not err in admitting the 2000 ODI report even without any evidence of its reliability or trustworthiness. Point denied.

Because plaintiffs’ second and third points relied on involve related issues, we will address them together. In their second point on appeal plaintiffs argue that the trial court erred by preventing them from impeaching the trustworthiness of the 2000 ODI report in violation of due process and section 490.220. In their third point on appeal, plaintiffs assert that the trial court erred by abusing its discretion in precluding their experts, Sero and Dr. Anderson, from interpreting or referring to Ford’s engineering documents “in any other manner than reading verbatim from the text.”

Ford contends that plaintiffs’ claim of error in its second point relied on is not preserved, apparently because plaintiffs failed to make an offer of proof, and explicitly asserts that plaintiffs’ third point relied on is not preserved because of the failure to make an offer of proof.

In general, appellate courts will not review excluded evidence without a definite and specific offer of proof. Frank v. Environmental Sanitation Management, 687 S.W.2d 876, 883 (Mo. banc 1985). There is a narrow exception to this general rule. Id. To come within this exception requires meeting the elements of the three prong test set forth in Frank, which are: “First, it requires a complete understanding, based on the record, of the excluded testimony. Second, the objection must be to a category of evidence rather than to specific testimony. Third, the record must reveal the evidence would have helped its proponent.” Id. at 883-84. These three requirements have been met. Plaintiffs’ expert Sero had been deposed prior to trial and plaintiffs’ response to Ford’s omnibus motion indicated what Sero and Anderson would have testified to, at least generally, such that the first prong was met. The excluded evidence all related to interpretation of Ford documents, which falls into a category of evidence, meeting the second prong. It is also fairly apparent that it would have helped the plaintiffs if their experts could have interpreted Ford documents to show that Ford was aware of the issue of EMI and sudden acceleration relating to cruise control and in essence acknowledged its existence. Plaintiffs’ failure to make an offer of proof did not result in a failure to preserve the claim of error.

In addition, Ford argues that plaintiffs’ second and third points relied on fail to comply with Rule 84.04. Plaintiffs’ second point on appeal does not, in fact, comply fully with the requirements of Rule 84.04(d). It does not indicate how the trial court prevented them from impeaching the 2000 ODI report. It is the argument portion of the brief that contends that the trial court’s error was in preventing plaintiffs’ experts from interpreting Ford documents. We need not consider arguments not raised in the point relied on. Rule 84.04(e); City of Sullivan v. Truckstop Restaurants, Inc., 142 S.W.3d 181, 193 (Mo.App.2004). Plaintiffs’ third point relied on fails to comply with Rule 84.04(d). It does not concisely state the legal reasons for their claim of reversible error and explain, briefly, why those legal reasons support their claim of error. It also is devoid of any legal authority to support its position, save for a reference to Mo. Evid. Prin. 703, which is of little utility. The argument portion of plaintiffs’ brief on this point is similarly devoid of authority. Nevertheless we will review these points ex gratia.

Section 490.220 does not include a provision mandating the admission of evidence that purportedly rebuts a public record. As such it cannot be the basis for this claim of error. Rather, the standard of review for a trial court’s decision to admit or exclude evidence is whether the trial court abused its discretion. Porter, 152 S.W.3d at 317. The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and so arbitrary and unreasonable that the ruling shocks the sense of justice and indicates a lack of careful deliberation. Id. (quoting Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000)). In particular, the admission of expert testimony is governed by section 490.065. State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 153 (Mo. banc 2003). A witness may be qualified as an expert by skill, knowledge, training, education, or experience. Whitnell v. State, 129 S.W.3d 409, 413 (Mo.App.2004). Expert testimony ought to be admitted if the witness has some qualification. Id. “[T]he admission or exclusion of expert opinion testimony is a matter within the discretion of the trial court, and this Court will not interfere with that discretion unless it plainly appears that it has been abused.” Id.

Sero and Dr. Anderson qualified as experts in then* own fields. Both provided expert testimony and stated that in part their opinions were based in part on documents from Ford. Pursuant to Ford’s omnibus motion prohibiting them from interpreting the content of those documents, the trial court sustained Ford’s objections to Sero and Dr. Anderson testifying in a manner that interpreted the documents. The documents which they asserted supported their opinions that EMI in certain cruise controls could cause sudden acceleration were apparently all admitted into evidence. Sero and Dr. Anderson read from some of these documents.

In addition, Sero testified in rebuttal concerning the 2000 ODI report. He cited to a number of Ford documents, from which he read extensively into the record, which he asserted showed that his explanation of EMI as a source of sudden acceleration was not merely a theory. He also testified that he has acquired more information from Ford documents that he did not possess when he testified in a prior case involving similar issues. Sero was able to discuss and criticize the methodology of the 2000 ODI report and its sole investigator, Mr. Young. Plaintiffs were permitted to rebut the 2000 ODI report. Plaintiffs’ experts testified that Ford documents supported their opinions, read from those documents, and those were admitted into evidence. The trial court did not abuse its discretion and did not err in limiting the interpretation of those documents. Points denied.

In their fourth point relied on, plaintiffs aver that the trial court erred by abusing its discretion in allowing Ford to amend its answer to include the affirmative defense that certain plaintiffs did not utilize their seat belts in the accident of May 22,1994.

Rule 55.33 states that leave to amend a pleading “shall be freely given when justice so requires.” While the rule stresses liberality in permitting amendments to pleadings, it is not mandatory that the court grant leave. Sheehan v. Northwestern Mutual Life Insurance Co., 44 S.W.3d 389, 394 (Mo.App.2000). There are a number of factors that should be considered in deciding whether to grant leave to amend a pleading, which include: 1) hardship to the moving party if leave to amend is not granted; 2) reasons for failure to include any new matter in previous pleadings; 3) timeliness of the application; 4) whether an amendment could cure any defects of the moving party’s pleading; and 5) injustice to the party opposing the motion. Id. The decision to allow or to disallow amendments to pleadings is a matter within the sound discretion of the trial court and is reviewed only for an abuse of discretion. Id.

Ford moved to amend its answer five days after the deposition of Dr. Corri-gan on March 12, 2004, and approximately two weeks prior to the trial date. The amendment was based in part on information from Dr. Corrigan’s deposition concerning her opinion that some of the plaintiffs were not in fact using seat belts at the time of the accident on May 22, 1994. Under Nebraska law, the failure to wear or utilize seat belts is an affirmative defense that serves only to mitigate damages, and then it does not reduce recovery for damages by more than five percent. See Neb. Rev. St. Section 60-6,273; Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292, 297-98 (1993). It does not go to causation. Id.

In its original answer Ford asserted that plaintiffs had failed to mitigate their damages “and therefore, any recovery by Plaintiffs should not include any loss which could have been prevented by reasonable care and diligence exercised by them after the alleged losses as referred to in the Petition.” Ford did not further specify in what manner plaintiffs failed to mitigate their damages, and it does not appear that plaintiffs filed a motion for a more definite statement regarding this assertion in Ford’s answer. The amended answer specified just how Ford contended that some plaintiffs failed to mitigate their damages.

Ford would have been placed under some hardship if the trial court had denied its motion to amend. Rule 55.08 requires that a “pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.” A pleading that makes a conclusory statement and does not plead the specific facts required to support the affirmative defense fails to adequately raise the alleged affirmative defense, and the alleged affirmative defense fails as a matter of law. See ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 383-84 (Mo. banc 1993); Stewart Title Guaranty Company v. WKC Restaurants Venture Co., 961 S.W.2d 874, 884 (Mo.App.1998). If Ford had not been permitted to amend its answer, it would have waived this affirmative defense. Ford did not explicitly state a reason why it failed to include this matter in its original petition, but it can be inferred from the language of the motion that it was Dr. Corrigan’s opinion that some of the plaintiffs were not wearing seat belts that led them to seek the amendment, which opinion was revealed in her deposition of March 12, 2004. Regarding timeliness, Ford filed its motion approximately two weeks prior to the scheduled trial date, and five days after Dr. Corrigan’s deposition. The amendment could and did cure the defect in Ford’s answer regarding the affirmative defense of seat belt non-use, which, pursuant to Rule 55.08, required a statement of the specific facts to support the defense.

The hardship to plaintiffs is limited in that under Nebraska law the affirmative defense of seat belt non-use goes only to mitigation of damages, and can only reduce damages by a maximum of five percent. See Neb. Rev. St. Section 60-6,273; Vredeveld, 504 N.W.2d at 297-98. The hardship to plaintiffs is further limited by the particular circumstances in that Ford did make a general assertion, even if insufficient to raise an affirmative defense, of failure to mitigate damages, which provided plaintiffs with some notice of the general issue, and Ford did disclose Dr. Corri-gan as an expert witness and the expected areas of her expert testimony, which included injury causation issues, biomechan-ics, and occupant kinematics, in December 2003, which provided further, more specific notice that seat belt non-use could be an issue in the case.

The trial court had to consider a number of factors in deciding on Ford’s motion to amend its answer. Under the particular circumstances of this case, the trial court’s decision to permit Ford to amend its answer to specifically assert the failure to use seat belts as an affirmative defense is not so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of deliberate, careful consideration. Reasonable persons can differ on the propriety of the trial court’s action at issue, and accordingly it cannot be said that the trial court abused its discretion. See Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003). Point denied.

In their fifth point on appeal, plaintiffs contend that the trial court “committed an error of law in permitting Ford to introduce the seat belt evidence on the issue of causation beyond the strictures of the Seat Belt Statute.”

Contrary to the argument in plaintiffs’ brief based on excerpts from the transcript, the trial court did not “permit” Ford to go beyond the restrictions of the Nebraska seat belt statute. Plaintiffs quote from the trial court where it said “they [Ford] are relying upon the fact that their injuries were created by failure to use a seat belt” and “it’s not a seat belt defense.” However, the trial court thereafter said in the following exchange in the in camera conference on March 30, 2004 that it was limiting the seat belt evidence to mitigation of damages as per the Nebraska seat belt law.

Mr. Adams [Ford counsel]: On the seat-belt issue, if you’re getting to that.
The Court: Well, I am getting to that. The motion to strike evidence of seat-belt is overruled on the basis that the witness was endorsed approximately four months prior to the commencement of this trial. And the defendant had pled an affirmative defense of mitigation of damages, although they now wish to amend their answer to plead, I assume the Nebraska seatbelt law, which the Court is allowing them leave to amend on the grounds that the original answer that was filed by the defendant relative to mitigation of damages is in accordance with the Nebraska seatbelt law, which does not allow introduction of evidence of the failure to wear a seatbelt as comparative negligence or liability, but rather allows such introduction of such evidence in mitigation of damages.
Which will present an issue of instructions.
Anything else?
Mr. Adams: No, your Honor. I did find, on the issue of causation — and I don’t think that we need to go into that, but there is a case—
The Court: I think I would quit while you’re ahead.
Mr. Adams: I will.

The following day, also in chambers, the trial court made the following statement:

The Court: Well, to be more precise, I felt that — it’s my understanding that both parties agree that on the issue of the seat belt — the seat belt statute of Nebraska could be applicable under a conflict of law issue, and that their statute refers to the use of the seat belt defense, or whatever you wish to call it, as not being a defense to, I think they used the term, causation or liability, but as to mitigation of damages.
Mr. Adams: I agree with you.
The Court: They pled originally — I think in their answer they pled mitigation of damages, so I think that they pled that defense or whatever it’s called, mitigation, and I have allowed them to amend their answer.

While the trial court permitted Ford to amend its answer and to raise the seat belt defense, its ruling did not “permit” Ford to introduce evidence concerning the non-use of seat belts for any purpose other than that permitted by the Nebraska seat belt law. The trial court, contrary to plaintiffs’ assertion in their brief, did not rule “at the beginning of the trial that Ford would be able to use the seat belt evidence not only for mitigation purposes but also for causation.”

Plaintiffs also contend that Ford exploited the trial court’s ruling about seat belt evidence in its opening statement by telling the jury that “As a result of the crash, Mr. and Mrs. Eltiste were injured, in part, because they were not wearing seat belts at the time.” We note that the transcript indicates that plaintiffs’ attorneys first raised the issue of seat belt usage in their opening statement. Regarding Ford’s opening statement in which its counsel mentioned the failure of Mr. and Mrs. Eltiste to wear seat belts, we observe that plaintiffs did not object to that statement by Ford’s counsel at that time. “A party cannot complain on appeal of any alleged error in which, by his or her own conduct at trial, he or she joined in or acquiesced to.” Johnson v. Moore, 931 S.W.2d 191, 195 (Mo.App.1996). The failure of a party to object at trial to evidence, testimony, or argument preserves nothing for review on appeal. Collins v. Hertenstein, 90 S.W.3d 87, 100 (Mo.App.2002).

Plaintiffs likewise did not object to Dr. Corrigan’s testimony on the basis that any of it was directed towards causation rather than mitigation. An objection was made when Dr. Corrigan testified about the types of injuries that she believed Mrs. Eltiste would have sustained if she had worn her seat belt in the following exchange:

Mr. Adams [Ford’s counsel]: Let’s talk about the type of injuries that you believe she would have sustained if she had been wearing a seat belt as opposed to what she actually sustained.
Mr. Mackey [plaintiffs’ counsel]: I object to that on the ground that it calls for speculation, Your Honor.
The Court: The objection will be overruled. She may answer.
Dr. Corrigan: Well, had Mrs. Eltiste been properly restrained, I would not have expected any head injury. I would not expect her to have contacted any structures inside of the vehicle with her head.
I also believe that her pelvic fractures more likely than not would not have occurred because you wouldn’t — without the occupant moving forward into the structures in front of her you don’t have a mechanism for transmitting that degree of force to the pelvis....
I believe that she likely would have sustained some injuries to her ankles. I think that by wearing a seat belt it may have helped reduce the severity of those fractures, but I think in this accident there still would have been a mechanism to create some fractures to the ankles.

Dr. Corrigan also testified about the injuries she thought Mr. Eltiste would have sustained if he had been wearing a seat belt. Plaintiffs did not object to this testimony. The failure to object preserves nothing for appellate review. Collins, 90 S.W.3d at 100. Dr. Corrigan testified as follows:

Dr. Corrigan: Well, I think that the severity of the facial fractures would have been dramatically reduced. I think that it’s still possible that Mr. Eltiste could have contacted the steering wheel even if he had been wearing his seat belt, but I think that the speed and severity of that contact would have been much less than it was.
Basically the seat belt would have slowed him down before he hit the steering wheel. So he still could have sustained bruising and lacerations to his face, perhaps a broken nose, something along those lines, but I would not expect a brain injury nor the severity of fractures he sustained.

In other words, Dr. Corrigan testified that Mr. and Mrs. Eltiste still would have been injured even if they had worn their seat belts properly, which Mrs. Eltiste admitted that she had not done, but that the damages that they suffered would have been lessened, possibly greatly.

The trial court did state that it would have given an oral instruction to the jury prior to Dr. Corrigan’s testimony that clearly limited its use by the jury to the mitigation of damages if the jury found Ford hable, if such an instruction had been requested. Dr. Corrigan’s testimony was admissible regarding mitigation of damages even if not admissible for causation. If evidence is admissible for one purpose but improper for other purposes, it should be received, subject to a limiting instruction, if requested. Benoit v. Missouri Highway and Transportation Commission, 38 S.W.3d 663, 671 (Mo.App.2000) (quoting Martin v. Durham, 933 S.W.2d 921, 924 (Mo.App.1996)). “Upon failing to seek an instruction limiting the purposes for which the evidence may be considered, a party cannot later complain that the jury considered such evidence for the wrong purpose.” Id. Plaintiffs did not request a limiting instruction prior to Dr. Corrigan’s testimony.

However, plaintiffs did request an instruction prior to the case going to the jury, Plaintiffs Refused Instruction C, which read as follows: “Evidence that plaintiffs Hal Eltiste and Mrs. Eltiste were not wearing seat' belts at the time they were injured shall not be considered when you are deciding the issue of Defendant Ford Motor Company liability or proximate cause of Plaintiffs’ injury.” The trial court refused to give that proffered instruction and went on to explain that

[T]his does not mean that the Plaintiffs cannot argue that the seatbelt instruction may not be — cause may not be used — that the defendant cannot argue that this may be considered by the jury as evidence going to proximate cause or as to liability or fault. The plaintiff can argue that it does not go to proximate cause or fault. But the issue of the seatbelt defense is not being withdrawn from the jury in mitigation of damages, and the instruction speaks for itself what that instruction may be used for. And it’s not withdrawing an issue.

The trial court did not consider a specific limiting instruction necessary given the instructions that he gave to the jury on mitigation of damages regarding Mr. and Mrs. Eltistes’ claims, which were Instruction No. 9 and Instruction No. 12 respectively. We note that plaintiffs do not assert in their point relied on that the trial court erred by fading to give the requested limiting instruction, but rather mention in their argument that the trial court refused to give such a written instruction. This Court need not consider errors raised for the first time in the argument portion of the brief that are not raised in the point relied on. Rule 84.04(e); City of Sullivan, 142 S.W.3d at 193. Nevertheless we will discuss this issue ex gratia.

“When a trial court receives evidence admissible for one purpose but not for another, a party upon request is entitled to an instruction limiting the extent and purpose for which the jury may consider the evidence.” Clayton Center Associates v. W.B. Grace & Company, 861 S.W.2d 686, 691 (Mo.App.1993). In Clayton Center, as in the case before this Court, evidence was admitted that was admissible regarding damages, but not on the issue of liability. Id. The trial court did not give the limiting instruction requested regarding the use of the evidence. Id. This Court held that the trial court erred because it should have given an appropriate limiting instruction when so requested. Id. However, this Court did not reverse even though the trial court improperly refused to give the instruction. Id. While failure to give an instruction to which a party is entitled to is error, reversal is warranted only if the error is prejudicial, that is when the merits of the action are materially affected. Id.

The trial court in the present case should have given an appropriate limiting instruction regarding the seat belt evidence, such as that requested by plaintiffs. Instructions No. 9 and No. 12 are not limiting instructions, though the language in those instructions is clear. However, the trial court’s refusal to give the instruction, while error, is not reversible error unless it materially affected the merits of the action. In Clayton Center, as in the case before this Court, the party which requested the limiting instruction that was refused pointed out to the appellate court instances in which the opposing party allegedly used the evidence at issue as evidence regarding liability rather than damages. Id. As in Clayton Center, our review of the record in this case does not leave us with the impression that the merits of the action were materially affected by the trial court’s failure to give the requested limiting instruction. The jury found that Ford was not liable at all. It did not make a finding that Ford was liable and that liability was partially offset by the comparative fault of Mr. and Mrs. Eltistes’ failure to wear their seat belts. Dr. Corrigan’s testimony, viewed in the light most favorable to Ford, did not suggest that Ford was not hable. Rather she said that both Mr. Eltiste and Mrs. El-tiste still would have been injured in the accident, but the severity of their injuries would have been less had they been wearing their seat belts. In Ford’s closing argument, counsel made an explicit reference to the lack of seat belt use by Mr. and Mrs. Eltiste, as follows:

Mr. Adams [Ford’s counsel]: One instruction that you have also been given and which, this is the only element of this case that Ford has to bear the burden of proof on, is on the issue of mitigation of damages.
If you find in favor of Hal F. Eltiste, you must find that plaintiff failed to mitigate damages if you believe, first, Hal Eltiste was not wearing a seatbelt at the time of the accident, and second, plaintiff thereby sustained damage which would not have otherwise occurred.
And ladies and gentlemen, with respect to any damages, there’s nothing about punitive damages in this case. There’s nothing about justice and respect. This boils down to — and you’ll see the damage instruction, and Ford believes that you never should reach it. But it just comes down to what you believe he sustained as a result of this occurrence....
Then, as far as the damages, you’ll have to decide what that amount is. And then on the failure to mitigate, you will note that if you make a finding under that one instruction that I just showed you that you don’t believe that they had their seatbelts on, and that they were thereby injured more than they otherwise would have been, then you can reduce the damages up to five percent.
Mr. Mackey [plaintiffs’ counsel] I object, Your Honor, that’s a misstatement of the law. It is up to the Court to make that reduction.
Mr. Adams: They can put down a number from zero to five percent, which is what it says right underneath that.

Ford’s counsel was not arguing causation, but rather specifically mitigation, only if the jury found in plaintiffs’ favor.

In the argument portion of its brief on its fifth point relied, plaintiffs also assert that the trial court should have permitted them to call an expert witness to rebut Dr. Corrigan’s testimony. At the in camera conference on March 31, 2004, plaintiffs’ counsel requested “permission of the Court to name — to see if we can find an expert so as to provide some rebuttal testimony of [Dr. Corrigan].” Ford’s counsel opposed this based on the fact that Dr. Corrigan had been disclosed as an expert witness in December 2008, and it was too late on March 31st to try to name a rebuttal expert. The court denied the request. Trial courts have broad discretion to exclude expert witnesses who are not timely disclosed. Goede v. Aerojet General Corporation, 143 S.W.3d 14, 23 (Mo.App.2004). An abuse of discretion occurs when the trial court’s ruling is so unreasonable and arbitrary that it shocks the sense of justice and is clearly against the logic of the surrounding circumstances. McReynolds v. Mindrup, 108 S.W.3d 662, 665 (Mo.App.2002) (quoting In re Estate of Dean, 967 S.W.2d 219, 224 (Mo.App.1998)). Under this standard of review, a trial court seldom commits reversible error by mere exclusion of expert testimony, even if the offered testimony is relevant and admissible. Id. (quoting Bella v. Turner, 30 S.W.3d 892, 896 (Mo.App.2000)). The trial court did not abuse its discretion by denying plaintiffs’ request to call an expert to rebut Dr. Corrigan’s anticipated testimony.

Thereafter, in the in camera conference immediately prior to Sero’s rebuttal testimony, plaintiffs’ counsel indicated that he had found an accident reconstruction expert, Dr. Sokol, who was present in St. Louis and could testify to rebut Dr. Corri-gan, and indicated to the court what Dr. Sokol would say if called, as if he intended to make an offer of proof. However, plaintiffs’ counsel then indicated that he did not intend to call Dr. Sokol as a rebuttal witness as trial strategy, and likewise indicated that he did not intend to call Mr. and Mrs. Eltiste to testify in rebuttal as a matter of trial strategy. It is difficult to fault the trial court for what plaintiffs’ counsel clearly indicated was a matter of trial strategy.

Assuming arguendo, that elements of Dr. Corrigan’s testimony were directed towards the issue of causation/liability rather than the mitigation of damages, which is admissible, we observe that it was apparently plaintiffs’ counsel who first mentioned in his opening statement that Mrs. Eltiste was wearing her seatbelt at the time of the accident. No testimony or other evidence came in during Ford’s cross-examinations of Mrs. Eltiste to show that she was not wearing her seatbelt. On re-direct examination Mrs. Eltiste testified in the following exchange that she was wearing a seatbelt, but also that she was wearing it improperly by not using the shoulder belt.

Mr. Kruger [plaintiffs’ counsel]: Mr. Adams was also asking you a series of questions about whether you had your seatbelt on. You were a nursing mother at that time?
Mrs. Eltiste: Yes ...
Mr. Kruger: How do you know you had your seatbelt on?
Mrs. Eltiste: I put my seatbelt on when we got into the van.
Mr. Kruger: Okay. And you were wearing — how about the shoulder belt. Were you wearing that?
Mrs. Eltiste: No.
Mr. Kruger: You just had the lap belt on?
Mrs. Eltiste: Yes.
Mr. Kruger: Why was that?
Mrs. Eltiste: Well, if you’re a nursing mom, the pressure of belts and stuff can really irritate you on this section. And I had a habit of taking my arm through and taking the shoulder [belt] behind me. But I had my waist belt on. But I had taken it down so it wouldn’t push down where its tender.

On direct examination, Mr. Eltiste confirmed that Mrs. Eltiste was not using the shoulder belt, and stated that he used his seatbelt. Rebecca Bremer stated that she fastened her seatbelt only right before the accident.

Ford contends that the plaintiffs effectively “opened the door” to other evidence about seatbelt use or non-use regarding causation analysis, and thus are precluded from now appealing over Ford’s introduction of evidence that responded to such evidence from the plaintiffs. The general rule is that a party cannot complain on appeal of any alleged error in which, by his or her own conduct, he or she acquiesced to or joined in. Johnson, 931 S.W.2d at 195. In Schisler v. Rotex Punch Company, Inc., 746 S.W.2d 592, 594 (Mo.App.1988), the plaintiff allowed in testimony on acts of contributory negligence without objection and confronted those issues by his own evidence and in his closing argument. This Court held that “[a] party may not complain of alleged error which his own conduct creates.” Id. In similar fashion, plaintiffs in the case before this Court made few objections to Dr. Corrigan’s testimony following the trial court’s pre-trial ruling that Ford could amend its answer to specifically assert the so-called seatbelt defense regarding mitigation of damages, and none pertaining to Dr. Corrigan’s testimony being used for causation rather than mitigation of damages. Further, the testimony of Mr. and Mrs. Eltiste about the latter’s improper use of the seatbelt restraints did open the door for Dr. Corri-gan’s testimony on the use or non-use of seatbelts. There was no prejudicial error regarding the seatbelt defense. Point denied.

The judgment of the trial court is affirmed.

GLENN A. NORTON and NANNETTE A. BAKER, JJ., concur.

      . Leah Eltiste, a minor, appeals by and through her next friend, Frances Eltiste. As of the date of the trial, Rebecca Bremer, the daughter of Mrs. Eltiste and step-daughter of Mr. Eltiste, was married and known as Rebecca Moore.

      . Heritage Ford, Inc., a Nebraska corporation engaged in selling vehicles, initially was also a defendant in this case, but the petition was dismissed as to it. See State ex rel. Auburn Ford, Inc. v. Westbrooke, 18 S.W.3d 143 (Mo.App.2000).

      . Plaintiffs refer to the 2000 ODI report as the "McMath Denial,” which refers to the genesis of the report in litigation in Texas similar to the case before this Court.

      . Plaintiffs quote from and cite to the following article: Charles and Andrew Buchanan, Public Record Hearsay—A Dramatic Expansion?, 58 J. Mo. Bar 96 (2002).

      . Ford did not indicate in its brief just how plaintiffs failed to preserve this claim of error, but in its response to plaintiffs' third point relied on, Ford asserted that plaintiffs failed to make an offer of proof regarding the interpretation of Ford documents by Sero and Dr. Anderson. The argument section of plaintiffs' second point relied on asserts that the trial court prevented Sero and Dr. Anderson from interpreting Ford documents to rebut the 2000 ODI report.

      . Plaintiffs apparently are referring to William A. Schroeder, 22 A Missouri Practice: Missouri Evidence, section 703 (2d ed.2000).

      . Section 490.065 states that:
      1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
      2. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
      3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
      4. If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert’s opinion more understandable or of greater assistance to the jury due to the particular facts of the case.

      . Both parties agree that Nebraska substantive law applies to this issue.

      . In its motion to amend its answer, Ford states that it did not believe that it was necessary to amend its answer, but was doing so out of an abundance of caution. We disagree. Ford asserts in its brief that even if had not amended its answer, it would still have been able to raise the affirmative defense of failure to use a seat belt because Mrs. Eltiste testified that she did not use her seat belt properly, using only the lap restraint and not the shoulder restraint.

      . Plaintiffs did not provide this Court with a complete record of the proceedings in the trial court. The record on appeal did not include the opening statement of plaintiffs’ counsel. Rule 81.12(a) requires that the record on appeal “shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented....’’ It is the duty of the appellant to prepare a legal file and order a transcript such that the record holds all of the evidence needed for the determination of the questions presented to the appellate court. Whitnell v. State, 129 S.W.3d 409, 419 (Mo.App.2004). We also note that Ford could have supplemented the record on appeal under Rule 81.12(c), but rather chose to direct this Court to the testimony of Mrs. Eltiste in her cross-examination in which she acknowledged that she heard one of plaintiffs' counsels state in his opening argument that she was wearing her seat belt.

      . Instruction No. 9 stated:
      If you find in favor of plaintiff Hal Eltiste, you must find that plaintiff failed to mitigate damages if you believe:
      First, plaintiff Hal Eltiste was not wearing his seat belt at the time of the accident, and
      Second, plaintiff Hal Eltiste thereby sustained damage which would not have occurred otherwise.
      Instruction No. 12 stated:
      If you find in favor of plaintiff Fran El-tiste, you must find that plaintiff failed to mitigate damages if you believe:
      First, plaintiff Fran Eltiste was not wearing her seat belt at the time of the accident, and
      Second, plaintiff Fran Eltiste thereby sustained damage which would not have occurred otherwise.

      . Mr. Kruger [plaintiffs’ counsel]: However, I've met with all of our team of counsel, even though Dr. Sokol is here in town, and we’ve decided that for trial strategy purposes, we will respect this Court’s decision, which was earlier, and was going to deny us access to any kind of expert witness on the seatbelt thing. And we’re going to let it stand at that. So we're not going to call Dr. Corrigan or Dr. Sokol this morning.... Number two, for trial strategy purposes, we’ve also made a decision not to call either Hal or Fran [Eltiste] with respect to rebuttal, even though in my opinion, this case has been severely compromised by the tactics of defense counsel. And I want the record to reflect that immediately after the close of evidence last Friday, there was an informal conference with the defense coming into this court and, despite making all the protestations about the defense of mitigation of damages and use of the seatbelt, contemplated now withdrawing that instruction. Because the sole purpose, in my opinion, of defendant’s putting on this seat-belt defense was to prejudice the plaintiff’s case in chief, which deals with the issues of liability. But we now understand that the Court is going to give just the mitigation of damage instruction, which specifically says that the juiy is not to give any consideration of that when it comes to liability.
      And based upon that, we are not going to call — recall Fran or Hal for rebuttal evidence[.]

      . On cross-examination Mrs. Eltiste stated that she was wearing her seatbelt at the time of the accident. Ford sought to introduce a record from the office of the paramedics who responded to the accident of May 22, 1994 that indicated that Mrs. Eltiste was unrestrained at the time of the accident. The objection of plaintiffs’ counsel to the admission of that record was sustained because the conclusion that Mrs. Eltiste was unrestrained at the time of the accident was based on hearsay, as none of paramedics could have observed her at the time of the accident.


author: GEORGE W. DRAPER III, C.J.

text:
    STATE of Missouri, Respondent, v. Howard B. CHAPMAN, Appellant.
    No. ED 67368.
    Missouri Court of Appeals, Eastern District, Division Five.
    July 19, 2005.

      Gary E. Brotherton, Nancy A. McKer-row, Columbia, MO, for appellant.
    John M. Morris III, Deborah Daniels, Cheryl A. Caponegro Nield, Jefferson City, MO, for respondent.
   ON MOTION TO RECALL THE MANDATE

GEORGE W. DRAPER III, C.J.

Howard Chapman (Defendant) was convicted of five counts of rape in violation of section 566.030, three counts of sodomy in violation of section 566.060, and two counts of sexual assault in the first degree. On November 18, 1994, the trial court sentenced Defendant to eight terms of life imprisonment on each of the rape and sodomy counts. Defendant was also sentenced to five years’ imprisonment and to pay a fine of $5,000 for each of the sexual assault counts. The court ordered all sentences to be served consecutively. Defendant appealed from his judgment of conviction and sentence, which this Court affirmed. State v. Chapman, 936 S.W.2d 135 (Mo.App. E.D.1996). Defendant has now filed a pro se motion to recall the mandate in this appeal, contending he received ineffective assistance of appellate counsel. The State has filed a response to the motion. Defendant’s counsel, who recently entered his appearance, has filed a reply and a supplemental reply to the State’s response.

Although an appellate court divests itself of jurisdiction when it transmits its mandate, jurisdiction may be reacquired by means of “ ‘the judicial power to recall a mandate for certain purposes.’ ” State v. Whitfield, 107 S.W.Sd 253, 256 (Mo. banc 2003), quoting, State v. Thompson, 659 S.W.2d 766, 768 (Mo. banc 1983). Since Appellant was sentenced prior to January 1, 1996, a motion to recall mandate is the appropriate vehicle in which to raise his ineffective assistance of appellate counsel claim. State v. Griddine, 75 S.W.3d 741, 743 (Mo.App. W.D.2002). “To support a motion to recall a mandate due to ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it.” Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994).

Defendant asserts his appellate counsel was ineffective because he failed to challenge his sentences for rape and sodomy as violating the prohibition on ex post facto laws. Defendant contends that his convictions for rape and sodomy were based on conduct that occurred in the Spring of 1987 and thus, he should have been sentenced under the law as it existed at that time. Defendant argues that the crimes of rape and sodomy as charged in the indictment were class B felonies for which the maximum sentences were 15 years. Defendant received life sentences for each of the eight counts of rape or sodomy. Defendant’s argument has merit.

Defendant was charged with committing rape in violation of section 566.030. At the time the crimes occurred, the 1986 version of that statute was in effect. At that time, a person committed the crime of rape “if he has sexual intercourse with another person to whom he is not married who is less than fourteen years old.” Section 566.030.3, RSMo 1986. The crime of rape is a class B felony unless the actor inflicts serious physical injury or displays a deadly weapon or dangerous instrument in a threatening manner. Section 566.030.4, RSMo 1986. Similarly, under the 1986 version of section 566.060, sodomy with a child under the age of fourteen was a class B felony unless the actor inflicted serious physical injury or displayed a deadly weapon or dangerous instrument in a threatening manner. Section 566.060.4, RSMo 1986. Defendant was neither charged nor was the jury instructed on infliction of serious physical injury or displaying a deadly weapon. Therefore, the crimes of rape and sodomy, as charged and tried, were only class B felonies. A Class B felony is punishable with a maximum sentence of fifteen years. Section 558.011, RSMo 1986.

At the time Defendant was tried and sentenced, the crimes of statutory rape and statutory sodomy had been amended and the maximum punishment increased to life imprisonment. Sections 566.032.2, RSMo 1994, and 566.062.2, RSMo 1994. However, because Defendant’s crimes were committed prior to the amendment to the statute, they were all class B felonies. State v. Jackson, 896 S.W.2d 77, 84 (Mo.App. W.D.1995). All of his sentences on Counts I through VIII exceed the maximum punishment authorized by the 1986 statute for a Class B felony. Accordingly, the sentences do violate the ex post facto clause as the Defendant is disadvantaged by a harsher penalty. Id.

The State has conceded error in its.response. We agree that this is a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. As the crimes were charged and tried, they were class B felonies for which the maximum punishment is fifteen years. Defendant’s current sentences to life imprisonment are excessive. To correct this error, which should have been raised by appellate counsel, we must recall our mandate in Defendant’s direct appeal.

Even though the State and the Defendant agree that the mandate should be recalled in his direct appeal and Defendant’s sentences under Counts I through VIII for the counts of rape and sodomy reversed, they disagree on the remedy. The State asserts that Defendant’s case should only be remanded for resentencing by the trial court. However, the Defendant asserts he is entitled to a new trial on both guilt and sentencing, because he is entitled to jury sentencing.

Defendant’s assertion would seem to be warranted under the existing case law, which holds that when a jury is misdirected as to the range of punishment for a crime because the jury instruction overstated the maximum term of imprisonment, then a defendant is entitled to a new trial on all issues. State v. Cline, 808 S.W.2d 822, 826-27 (Mo. banc 1991). In Cline, the jury was erroneously instructed that the maximum range of punishment for possession of methamphetamine was twenty years. Id. at 824. However, after the date of the alleged offense but prior to the jury trial, the maximum term was reduced to seven years. Id. The jury sentenced Cline to five years, which was within the statutory limits. The Supreme Court concluded Cline was entitled to have his conviction reversed and remanded for a new trial. Id. at 827-28. The trial court could not simply resentence Cline because he was entitled to jury sentencing under section 557.036. Id. In ordering the new trial, the Court stated that a defendant has a right to a correct instruction on the range of punishment, and the fact that the punishment was within the statutory range, does not remedy the infringement of that right. Id. at 827. Moreover, the trial court’s authority under Rule 29.04 and 29.05 to correct the sentence does not authorize the trial court to amend the punishment where the jury has been misdirected on that issue. Id.; See also, State v. Pritchard, 982 S.W.2d 273 (Mo. banc 1999); State v. Whardo, 859 S.W.2d 138 (Mo. banc 1993).

Although these cases would seem to indicate that Defendant, whose jury was erroneously instructed as to the range of punishment, should be entitled to a new trial on both guilt and sentencing, a significant change in the law has developed. At the time Cline and its progeny were decided, the sentencing statute provided for a unitary procedure in which the jury assessed guilt and punishment in the same proceeding. Section 557.036, RSMo 2000. As a consequence, there was no clear ability to simply remand a case for jury sentencing. In 2003, however, the legislature adopted a bifurcated proceeding, similar to that used in death penalty cases, in which guilt and sentencing are determined in two separate proceedings. Section 557.036, RSMo Cum.Supp.2004.

In a recent opinion, the Missouri Supreme Court upheld the constitutionality of this procedure and further concluded that it was a procedural law that could be applied retroactively. State v. Jaco, 156 S.W.3d 775, 781 (Mo. banc, filed January 11, 2005 as modified March 1, 2005). There is no constitutional right to jury sentencing, rather it is only a statutory right. Cline, 808 S.W.2d at 826. The decisions in Cline and its progeny are based on the requirements of section 557.036. Section 557.036 now provides for a bifurcated proceeding and there is nothing in the statute that requires the determination of both the guilt and the sentence by the same jury. The error in Defendant’s case applied only to the determination of the sentence. Principles of judicial economy only require a new trial as to the determination of his sentence and not his guilt. Defendant is no longer entitled to the unitary procedure and his case can be remanded only for the sentencing phase.

Defendant’s motion to recall his mandate in his direct appeal is granted and the mandate is recalled. Defendant’s sentences under Counts I through VIII for the counts of rape and sodomy shall be reversed. The case is remanded to the circuit court for jury sentencing in accordance with the procedure set forth in section 557.036.

GLENN A. NORTON and NANNETTE A. BAKER, JJ., concur.

      . Defendant's motion to supplement his response is granted.

      . The State has requested that this Court treat Defendant's motion as a writ of habeas corpus. However, Defendant is not incarcerated within • the geographical boundaries of the Eastern District. Moreover, it is not necessary that we treat Defendant's motion as a writ of habeas corpus to grant him the necessary relief. We deny their request.

      . For an excellent discussion of this new bifurcated procedure, see Meredith Hammers, Bifurcated Criminal Trials: A New Mandate Without Guidance, 72 UMKC Law Rev. 1137 (Summer 2004).

      . In his reply, Defendant raises an additional claim of ineffective assistance of trial counsel. We find it to be without merit. In his PCR appeal, Defendant had argued that his trial counsel was ineffective for failing to object to various arguments made by the State during closing and rebuttal. We concluded that our finding that the remarks did not constitute plain error on direct appeal served to establish a finding of no prejudice under the test for ineffective assistance of counsel. Chapman, 936 S.W.2d at 141-42. This conclusion was abrogated by the Missouri Supreme Court in Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002). However, if there is no prejudicial error, then there is no ineffective assistance of trial counsel. See, Shifkowski v. State, 136 S.W.3d 588, 590 (Mo.App. S.D.2004). In reviewing Defendant's direct appeal this Court concluded that even though there were some errors by the State, there was strong evidence of Defendant’s guilt and his rights to fair trial and against self-incrimination were not infringed. Chapman, 936 S.W.2d at 140-41. Consequently, Defendant suffered no prejudicial error and is not entitled to have his mandate recalled in his PCR appeal.


author: VICTOR C. HOWARD, Judge.

text:
    STATE of Missouri, Respondent, v. Bradley J. LINK, Sr., Appellant.
    No. WD 63658.
    Missouri Court of Appeals, Western District.
    July 26, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for respondent.
    Amy M. Bartholow, Assistant State Public Defender, Columbia, MO, for appellant.
    Before ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   VICTOR C. HOWARD, Judge.

Appellant, Bradley J. Link, Sr., appeals from his conviction of one count of felony criminal nonsupport of his child in violation of section 568.040. Link claims on appeal that the State did not prove beyond a reasonable doubt that he failed to provide “adequate support” for his child between January 1999 and January 2002, in violation of his due process rights under the Fourteenth Amendment to the United States Constitution and Article I, § 10 of the Missouri Constitution. In support, Link argues that the trial court found good cause for his nonpayment for nine of the thirty-six-month time period included in the charge, thereby making him responsible for only twenty-seven months of payments at $200 per month, for a total of $5,400. Because Marla Broadbent, the mother of his child (“Mother”), received $6,892.37 through involuntary garnishments of Link’s tax refund and personal injury settlement proceeds during this time period, Link argues that the State failed to show that this was not “adequate support” for the child.

For the reasons stated below, we affirm the judgment of the trial court.

Background

Link was married to Mother, and they had a son. When Link and Mother divorced in 1991, Link was ordered to pay Mother $200 per month in child support.

In 1992, Link suffered a work-related injury, which left him with a permanent fifty-three percent partial disability in his right hand. Link testified at trial that he tried to find employment in a factory-type setting but could not pass the necessary physicals. He claims this is why he was unemployed during the time period charged. Link was also incarcerated in the county jail for nine months of the charged time period on unrelated charges that were eventually dropped.

Link made no voluntary payments of child support between January 1999 and January 2002. Mother did receive $573 in May 1999, from an IRS tax return intercept related to Link’s 1998 income. Mother also received $6,319.37 in March 2001 from the garnishment of Link’s personal injury settlement proceeds. At that time, Link was in arrears in the amount of $10,079 for his child support obligation. Link’s child support records with the state do not reflect the lump sum payment from the garnished settlement proceeds, but the records do show that the tax refund check was applied to his arrearages.

Link was charged by Information in Ray County with one count of felony criminal nonsupport under section 568.040. To support the felony charge, the State alleged that Link failed to provide adequate food, clothing, lodging, and medical attention to his child from January 1999 through January 2002, and that Link was in arrears over $5,000. Link waived a jury trial, and the case was tried as a bench trial before the Honorable Werner A. Mo-entmann in the Circuit Court of Ray County. The trial court found that, except for his nine-month incarceration, Link had the ability to provide support during the thirty-six-month time period charged. Thus, the trial court found him guilty of felony criminal nonsupport, for which it sentenced him to five years imprisonment. Link was released on probation after serving a 120-day shock incarceration, but that probation was subsequently revoked when he failed to abide by the condition that he pay child support.

This court granted Link’s motion for leave to file his notice of appeal out of time, and this appeal follows. Link claims on appeal that the State did not prove beyond a reasonable doubt that he failed to provide “adequate support” for his child between January 1999 and January 2002. Link argues that for the twenty-seven months the trial’ court found there was no good cause for nonpayment, he would have been obligated for child support payments of $200 per month for a total of $5,400. Because Mother received $6,892.37 during this twenty-seven-month period through the involuntary payment of his tax refund and the garnishment of his settlement proceeds, Link argues that this was “adequate support” for the child.

Standard of Review

In our review of the sufficiency of the evidence in a court-tried criminal case, we use the same standard as in a jury-tried case. Rule 27.01(b); State v. Niederstadt, 66 S.W.3d 12, 13 (Mo. banc 2002). Our role is limited to a determination of whether the State presented sufficient evidence from which the trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003). A conviction must be based on proof beyond a reasonable doubt of each element of the crime charged. Id In reviewing a challenge to the sufficiency of evidence, this Court views the evidence and all reasonable inferences from the evidence in the light most favorable to the State. Id This court neither weighs the evidence nor determines the credibility of witnesses. State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002).

Sufficiency of the Evidence

Section 568.040.1 provides in pertinent part: “a parent commits the crime of nonsupport if such parent [ (1) ] knowingly fails to provide, [ (2) ] without good cause, [ (3) ] adequate support [ (4) ] which such parent is legally obligated to provide for his child[.]” Section 568.040.4 provides:

Criminal nonsupport is a class A misdemeanor, unless the person obligated to pay child support commits the crime of nonsupport in each of six individual months within any twelve-month period, or the total arrearage is in excess of five thousand dollars, in either of which case it is a class D felony.

(Emphasis added.) Link claims on appeal that there was insufficient evidence to prove the third element of “adequate support” for the time period charged because the State failed to show that the $6,892.37 Mother received during the time period charged was not “adequate support” for the child. We disagree.

The element of “adequate support” is not defined by statute. It is a question of fact for the trier to decide. State v. Sellers, 77 S.W.3d 2, 4 (Mo.App. W.D.2002). The fact that a parent is not regularly making his or her court-ordered child support payments, although relevant, is not conclusive regarding a failure to provide “adequate support” in violation of section 568.040.1; the support actually being given must be sufficient to adequately support the child’s basic needs of food, clothing, shelter, and medical care. State v. Watkins, 130 S.W.3d 598, 600-01 (Mo.App. W.D.2004). The fact that the child does not suffer deprivation, or that his or her needs are being supplied by another, “does not abrogate the parent’s obligation [to provide ‘adequate support’] under [section 568.040.1].” State v. Morovitz, 867 S.W.2d 506, 508 (Mo. banc 1993).

There is argument from both sides as to whether the payments of $6,892.37 should be either applied to Link’s child support arrearages or applied to the current child support owed during the time charged. We conclude that it is irrelevant how these payments are applied because either way Link’s argument fails.

When Mother received the lump sum payment in March of 2001, Link was in arrears in the amount of $10,079, which dated back in part to well-before the time period charged. Even if the lump sum payment was applied to those arrearages, only a small portion of that money would relate to Link’s child support obligations for the time period charged. There were still six individual months within a twelvemonth period of time charged when Link did not provide “adequate support” for his child. For example, Link provided no support for his child, in cash or otherwise, from December 1999 to October 2000, when he went into the county jail.

Even if the lump sum payment was not applied to the arrearage and was instead considered a “current” payment applicable only to the time period charged, it still would not be “adequate support” for that time frame. The trial court found good cause for Link’s nonsupport only during the time Link was in the county jail between October 2000 and June 2001. At the time that Mother received the lump sum garnishment in March 2001, Link had already failed to provide support for his child for more than six months out of a twelve-month period. His child had basic needs during each of these months, and Link failed to adequately support those needs as they arose. It would not be logical or sound to excuse Link’s failure to adequately support his child for those months because of the subsequent involuntary payment on his arrearages. In addition to those months of nonpayment, Link also failed to provide support for seven months after he was released from the county jail in June 2001. The March 2001 lump sum proceeds from the garnishment of Link’s personal injury settlement cannot simultaneously be applied to both past and future obligations. These long gaps in meeting his legal responsibility constitute sufficient evidence to support Link’s conviction.

Conclusion

There was sufficient evidence in this case from which the trial court could have reasonably found Link guilty beyond a reasonable doubt of felony criminal nonsupport under section 568.040. Specifically, the evidence supported a finding of fact by the trial court that Link failed to provide “adequate support” during the time period charged in the Information. Accordingly, we affirm the trial court’s judgment.

ELLIS, P.J., and SPINDEN, J., concur.

      . Statutory references are to the Revised Statutes of Missouri (2000).

      . We have enumerated the elements of the crime of criminal nonsupport. See State v. Davis, 675 S.W.2d 410, 416 (Mo.App. W.D.1984).