author: CROW, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Dennis L. WILLIAMS, Appellant.
    No. 22994.
    Missouri Court of Appeals, Southern District, Division One.
    March 24, 2000.
    Motion for Reconsideration or Transfer to Supreme Court Denied April 18, 2000.
    Application for Transfer Denied May 30, 2000.

      Marc L. Edmondson, Springfield, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City, for respondent.
   CROW, Presiding Judge.

Appellant, tried as a persistent offender, § 558.016.3, RSMo 1994, was found guilty by a jury of the class C felony of stealing cattle, § 570.030, RSMo Cum.Supp.1997. The trial court sentenced Appellant to sixteen years’ imprisonment.

Seeking reversal, Appellant claims in this appeal that the evidence was insufficient to support the verdict, that certain evidence was erroneously received, and that the verdict-directing instruction was flawed in three respects.

This court first addresses Appellant’s fifth point — his challenge to the sufficiency of the proof. Appellant maintains the trial court erred in denying Appellant’s motion for judgment of acquittal at the close of all the evidence in that “the State failed to prove Appellant, either as a principal or an accomplice, committed the crime of stealing as alleged in the Second Amended Felony Information.”

The information referred to by Appellant averred, inter alia, that on or about February 18 or 19, 1998, he, acting alone or in concert with another, stole “nine head of Charoláis cows and one Angus cow” owned by Gary Harshaw.

The standard for appellate review of the sufficiency of the evidence to support a criminal conviction is set forth in State v. Grim, 854 S.W.2d 403 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). The appellate court accepts as true all evidence favorable to the State, including all favorable inferences therefrom, and disregards all evidence and inferences to the contrary. Id., 854 S.W.2d at 405. Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the accused guilty beyond a reasonable doubt. Id. That standard applies where — as here — a conviction rests on circumstantial evidence. Id. at 405 — 07[2]. In applying the standard, an appellate court neither weighs the evidence nor determines any witness’s credibility. State v. Watson, 968 S.W.2d 249, 252[1] (Mo.App. S.D.1998).

Viewed according to the above standard, the evidence established that Gary Har-shaw, a farmer, bought twenty-two cattle (eleven cow-calf pairs) in January 1998. Ten pairs were Charoláis; one pair was black Angus. Harshaw paid $850 for each pair.

Harshaw placed the cattle in a pasture owned by his mother in western Lawrence County, about five miles from his home. He went to the pasture to check the cattle every two or three days.

Just before sundown February 18, 1998, Harshaw went to the pasture and fed the cattle, a chore that required ten to fifteen minutes. All twenty-two cattle were there.

On February 19, 1998, Allen Fryar was employed at North Arkansas Livestock Auction (“NALA”) in Green Forest, Arkansas, as a “yard man and barn man.” Fryar lived “behind the sale barn” in a house NALA furnished him.

About 5:30 a.m. that day — some twelve to thirteen hours after Harshaw fed and counted his cattle — -Fryar walked from his house to a cafe in “the front of the barn” to eat breakfast. As he strolled “through the middle of the barn,” he saw a pickup with an attached livestock trailer on “the east side of the parking lot.” He was unable to see whether anyone was in the pickup, and he did not approach it to investigate.

Later, after finishing breakfast, Fryar saw Cumy Knight, a “write-up person” employed by NALA, unloading cattle from the trailer.

Knight arrived for work about 6:55 a.m. that day. She saw the pickup and trailer “waiting to be serviced.” Recalling the incident at trial, Knight testified:

“I parked my pickup and got out and they pulled up and a man got out and so we had to open up the gate. So we opened the gate and ... this man drove through and the man that got out helped me set up the gate behind them, because I was the only one there, there wasn’t my tagger or my gate opener wasn’t there yet, because I was the first one there that morning.”

Asked whether any other customers were waiting to unload cattle, Knight answered, “Nobody was there but just this trailer[.]”

The man who assisted Knight with the gate had exited the pickup on the “passenger side.” This opinion henceforth refers to him as “the passenger.” The driver remained inside the pickup. Knight “didn’t pay any attention to [the driver].”

Asked whether she could observe the passenger’s “features,” Knight responded:

“We was working right there together. He helped me set up the gates and we unloaded ... the cows first. I set my gates up ... so I would have the chute open and then we had the gate shut behind them. Then we undid the trailer gate and let the cows out, ran them in and at the time I asked him ... if he knew the pairs on them and he said, No, he didn’t. [] So I thought ... I will pen the cows by themselves ... and pen the calves by themselves and so he waited for me to open a gate up in the barn and I opened the gate and then I opened the gate to the chute and we ran the cows into this pen and then I shut the gate on them. And then we went back there and opened up the gate that was inside that had the calves penned in the front and we let them out, ran them up there and put them in another pen right by the side of the cows.”

Knight avowed there were nine Charo-láis cows, nine Charoláis calves, one black cow, and one black calf.

Knight asked the passenger “who he wanted the check made to.” He handed her a piece of paper bearing the name Ruby Williams and an address of Post Office Box 663, Seymour, Missouri 65746.

Asked how long she spent with the passenger, Knight replied:

“I would say 20 to 30 minutes ... I don’t know for sure ... I didn’t time myself because I was doing the job ... that most of the time other people help me do so it would take me longer ... to do it by myself than it would have if I would have had help.”

After the cattle were unloaded, Fryar saw the pickup and trailer depart, heading west toward Berryville.

About 8:30 a.m. that day (February 19), Harshaw received a call from his brother, who told Harshaw he “didn’t have no cows left.”

Harshaw went to the pasture; he found only one cow and one calf. He called the “sheriffs department,” then called a stockyard in Joplin. Someone there gave him the names of other “sale barns,” including NALA.

Harshaw phoned NALA and described his missing cattle. According to Harshaw, the person to whom he spoke said, “[T]hey are here, sir.”

Rick Abney, an investigator with the Lawrence County Sheriffs office, drove to NALA, accompanied by Harshaw. The journey, according to Harshaw, was “over 100 [miles] or in that neighborhood.” Upon arrival, Harshaw identified his cows and calves.

With permission of an officer of the “Arkansas State Police” and the cooperation of NALA, Abney arranged for Harshaw’s cattle to be offered for sale at auction. Abney testified:

“[W]e ran [Harshaw’s] cattle through for the simple fact, even though the person that brought the cattle said mail the check, we thought ... a lot of times people show back up to pick up the check instead of mailing it.... We will wait and have [Harshaw’s] cattle sold last and we made sure that the bid price was run up to make sure nobody else bought the cattle.... [T]hat was the idea to sell the cattle to produce the dollar amount and to see if someone would show up for the check.”

After the pretended sale, no one came forward to claim the proceeds. Harshaw “paid a man and we hauled [the cattle] home.”

The next day (February 20, 1998), NALA’s bookkeeper issued a check payable to Ruby Williams and mailed it to Post Office Box 663, Seymour, Missouri. The mailing was sent “certified with a return.”

Jess Croney is postmaster at Seymour, Missouri. On January 22, 1998 — about four weeks before Harshaw’s cattle were stolen — Ruby Williams, whom Croney had known several years, appeared at the Seymour Post Office. Ruby was accompanied by a man with whom Croney was unacquainted.

The man told Croney he wanted to rent a post office box. Croney had the man fill out a written application. The man wrote “Dennis L. Williams” on it.

Because Croney did not know the man, Croney asked to see his driver’s license. The man showed Croney a Missouri driver’s license bearing the name Dennis L. Williams and an address of Route 2, Stockton, Missouri 65785.

At trial, Appellant’s driver’s license was received in evidence. It displayed the same name, address and driver’s license number as the one shown Croney.

Croney rented the man post office box 663 and issued him a single key. However, Croney explained that anyone who arrived at the post office with the key could open the box. The rental agreement allowed Ruby to “receive mail through the box.”

Corporal Roger Renken of the Missouri State Highway Patrol was one of several investigators looking into “a rash of cattle thefts in southwest Missouri” in February 1998.

On February 23, 1998, Renken and Ab-ney established surveillance of the Seymour Post Office to see who would pick up the certified mailing from NALA to Ruby. Renken explained:

“I was waiting for someone to pick the letter up. It was a registered piece of mail and they would have been required to bring a receipt ... to the clerk to receive [that] piece of mail.”

About 11:00 a.m., a man entered the post office and removed the “yellow slip” from box 663. The slip had to be presented to a postal clerk to obtain the NALA making. The man left the post office with the slip. Renken did not follow him because, said Renken:

“I didn’t want to lose a surveillance team because the target of our surveillance wasn’t the actual slip it was the letter that was mailed by [NALA].”

Later that day, Karlen Kelley appeared at the post office and presented the slip. Kelley signed the name “John Sloan” to a receipt for the NALA mailing, and a postal clerk handed the NALA mailing to Kelley.

Renken and Abney followed Kelley outside. Kelley entered a vehicle. Renken, driving a pickup and accompanied by Ab-ney, tailed Kelley.

Kelley drove to Springfield, where he was stopped by an officer of the Missouri State Highway Patrol and arrested. Another officer drove Kelley’s vehicle to Troop D headquarters, where it was searched.

The NALA mailing was found on “the passenger side floorboard.” Officers also seized a set of bolt cutters and a “hedge stick” four to five feet in length, described as “a sorting stick for cattle.”

On March 2, 1998, Joe Stropp, a “livestock enforcement officer” for the Missouri Department of Agriculture, showed photographs of 24 men to Knight. The photographs were mounted on four pasteboard “folders,” six photographs on each folder. A photograph of Appellant was one of the six on a folder received in evidence at trial as State’s Exhibit 6.

Knight identified Appellant’s photograph as a photograph of the passenger who helped her unload Harshaw’s cattle and instructed her to send the check to Ruby.

Almost a year later, Knight identified Appellant in the courtroom at trial as the passenger described above.

The law pertinent to Appellant’s claim that the evidence was insufficient to support the verdict is well settled.

Unexplained possession of recently stolen property is sufficient to support a conviction of stealing it. State v. Chase, 444 S.W.2d 398, 402-03[4] (Mo. banc 1969). Such possession may be a joint possession of the accused and others. State v. Cobb, 444 S.W.2d 408, 412[5] (Mo. banc 1969). However, in State v. Farmer, 490 S.W.2d 72 (Mo.1973), the court, in reversing a burglary and stealing conviction where the accused was one of three occupants of an automobile in which recently stolen properly was found, said: “Where there is only a joint possession of recently stolen, property our recent affirmances have all contained something additional which ties defendant to the burglary and stealing.” Id. at 74.

Here, Appellant and someone else — the unidentified pickup driver — had possession of Harshaw’s cattle in Green Forest, Arkansas, some twelve to thirteen hours after Harshaw last saw the cattle in Lawrence County, Missouri. The cattle had obviously been stolen at night, as Harshaw fed them just before sundown. During darkness, the cattle were removed from the pasture and hauled some 100 miles to NALA.

The interval between the time Harshaw last saw his cattle and the time Appellant was seen in joint possession of them is shorter than the interval in State v. Feeler, 634 S.W.2d 484 (Mo.App. S.D.1981), where this court affirmed a theft conviction based on the accused’s possession of stolen calves six days after their owner discovered them missing. Id. at 486. In Feeler, the calves were taken to a livestock auction some 65 miles from where they were pastured instead of a closer one. Id. In that respect, Feeler is like the instant case, where Har-shaw’s cattle were taken to an Arkansas stockyard far more distant from where they were pastured than the Joplin stockyard.

Assuming that Farmer, 490 S.W.2d at 74, requires “something additional” in order for this court to hold the evidence sufficient to support Appellant’s conviction, this court identifies the following additional incriminatory evidence.

First, Appellant arrived at NALA with Harshaw’s cattle sometime before 5:30 a.m. That was before daybreak and about an hour and a half before NALA opened for business. The jurors could reasonably conclude there was no reason to arrive that early except to be off the public highways with the stolen cattle before daylight.

Second, instead of waiting at NALA until the cattle were sold, Appellant departed as soon as they were unloaded. He directed Knight to make the check payable to Ruby. The address he furnished Knight was a post office box he rented some four weeks earlier. The sole key to the box was issued to him. The only other person authorized to receive mail through the box was Ruby, who accompanied him when he rented it. The jurors could reasonably infer from those circumstances that Appellant wanted to make it as difficult as possible to trace Harshaw’s cattle to him, yet also wanted to ensure he received the proceeds of the theft.

Appellant presents an impassioned argument that there was no direct evidence he participated in the theft. However, the State, in this circumstantial evidence case, was not required to produce such proof. Applying Chase, 444 S.W.2d at 402-03[4], Cobb, 444 S.W.2d at 412[5], Farmer, 490 S.W.2d at 74, and Feeler, 634 S.W.2d at 486, this court holds Appellant’s joint possession of Harshaw’s recently stolen cattle, together with the additional circumstances enumerated above, was sufficient to support the guilty verdict. Appellant’s fifth point is denied.

This court next considers Appellant’s third point, which reads:

“The trial court erred in allowing evidence concerning the photographic lineup and in-court identifications of Appellant by witness Knight because this evidence violated Appellant’s rights to due process of law and a fair trial in that the photographic lineup was unduly suggestive and the identifications were unreliable and the subsequent in-court identifications were tainted by the photographic lineup.”

Appellant filed a pretrial motion to suppress his identification by Knight. The trial court heard evidence on the motion two weeks before trial. Two witnesses testified: Stropp (who had presented the 24 photographs to Knight March 2, 1998) and Knight. Both were called by the State; each was exhaustively cross-examined by Appellant’s lawyer. The 24 photographs were received in evidence.

At the conclusion of the evidence, the trial court denied the motion.

Appellant renewed the motion at trial. The trial court again denied it.

As reported earlier, Knight identified Appellant in the courtroom at trial.

Appellate review of a trial court’s denial of a motion to suppress is limited to a determination of whether sufficient evidence exists to support the trial court’s ruling. State v. Wise, 879 S.W.2d 494, 503[1] (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995). To exclude identification testimony, an accused must show: (1) the pretrial identification procedure was impermissibly suggestive, and (2) the suggestive procedure made the identification at trial unreliable. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990). An appellate court need not consider requirement 2 if the accused fails to fulfill requirement 1. Id.

Appellant maintains he fulfilled requirement 1 in that most of the photographs Stropp showed Knight were of men who did not resemble Knight’s description of the passenger. Appellant also points out that his photograph was one of only six in black-and-white; the other eighteen were in color.

Having read the record and examined the photographs, this court rejects Appellant’s claim that the photographic identification procedure was impermissibly suggestive.

Stropp testified that when he assembled the 24 photographs, there were three suspects: Appellant, Kelley and a third man. Only one photograph of each suspect was among the 24.

An attentive reader will recall Appellant’s photograph was one of six on a folder received in evidence at trial as State’s Exhibit 6. Neither of the other suspects resembled Appellant, hence Appellant’s photograph was the only photograph of a suspect on Exhibit 6.

Like Appellant’s photograph, the other five on Exhibit 6 are black-and-white. Each shows a Caucasian male wearing glasses. Four have hair that appears darker than Appellant’s; one has hair that appears lighter. The men appear to be of various ages; none appears elderly or adolescent. Appellant appears to be neither the eldest nor youngest. None of the six appears to have any scar or other unique characteristic that would distinguish him from the others.

To the extent that Appellant’s features differ from those in the other five photographs, the differences are merely those which set one individual apart from another. Dissimilarity in physical appearance alone is insufficient to establish impermissible suggestion. State v. Cooks, 861 S.W.2d 769, 772[4] (Mo.App. E.D.1993). As aptly observed in State v. Montgomery, 596 S.W.2d 735, 737 (Mo.App. E.D.1980), persons in a lineup will never be identical to one another (unless, of course, the lineup includes identical twins). The law does not require exact conformity to ensure an untainted identification procedure. Id.

Furthermore, the record is bare of any indication that Stropp presented the photographs to Knight in such a way as to emphasize any of the 24. He handed all four folders to her and, after she identified Appellant as the passenger, Stropp did not tell, her who Appellant was or “give her any hint” that she had identified one of the suspects. Thus, Knight’s later in-court identification of Appellant was not tainted by anything Stropp said, either before or after Knight picked out Appellant’s photograph.

For the above reasons, this court holds Appellant failed to fulfill requirement 1 of the Vinson test, 800 S.W.2d at 446, i.e., that the pretrial identification procedure was impermissibly suggestive. Because of that, this court need not consider requirement 2 of the Vinson test. Id.; State v. Bullington, 684 S.W.2d 52, 55 (Mo.App. W.D.1984). Appellant’s third point is denied.

Appellant’s fourth point avers the trial court committed reversible error in receiving the 24 photographs in evidence and permitting the prosecutor to display them to the jury. Appellant complains that his photograph was a mug shot and constituted evidence of his “other crimes and prior law enforcement contacts.”

At trial, Appellant’s lawyer called Stropp as a witness for Appellant, endeavoring to establish discrepancies in Knight’s description of the passenger and to convince the jurors Knight was not positive that the photograph she identified was the passenger.

On cross-examination, the prosecutor had Stropp identify the 24 photographs. Stropp testified Knight identified Appellant’s photograph as the passenger. The prosecutor then offered the 24 photographs in evidence.

Appellant’s lawyer objected because Appellant’s photograph “shows height identifiers like it’s a booking photo,” whereas “not all of [the other 23 photographs] are mug shots.”

The trial court required the prosecutor to place a “tab” beneath each of the 24 photographs to conceal its source. Once that was done, the trial court received the photographs in evidence and allowed the jurors to look at them.

The law governing Appellant’s fourth point appears in State v. Blaney, 801 S.W.2d 447, 450[5] (Mo.App. E.D.1990):

“As a general rule mug shots may be admitted into evidence and viewed by the jury when all identifying information is masked and when the defendant’s identity is in issue and they will help the jury determine the accuracy of the identification. State v. Luckett, 770 S.W.2d 399, 403 (Mo.App.1989). However, where the mug shots or the testimony by which they are identified discloses a defendant’s prior arrest or convictions, their admission constitutes prejudicial evidence of other crimes. State v. Quinn, 693 S.W.2d 198, 200 (Mo.App.1985).”

Appellant cites State v. Motley, 740 S.W.2d 313 (Mo.App. E.D.1987), where six photographs (including one of the accused) showed “St. Louis Police Department” and an identification number. Id. at 317. The appellate court held the trial court erred in receiving the “unmasked” photographs in evidence because the “inculpatory information” was not removed. Id.

Here, the tabs concealed the source of the photographs so well that this court cannot determine the source of any of them. Nonetheless, Appellant avers his photograph “still displayed the height markers typical of booking photos.”

Appellant’s complaint is no reason for reversal. Even if a juror inferred from the “height markers” in Appellant’s photograph that it had been taken by a law enforcement agency, such inference would not warrant a new trial. That a police department has a photograph of a defendant in its files does not imply that the defendant has committed prior crimes. State v. Young, 943 S.W.2d 794, 798[17] (Mo.App. W.D.1997); State v. Tivis, 933 S.W.2d 843, 846[6] (Mo.App. W.D.1996). Appellant’s fourth point is meritless.

Appellant’s two remaining points — his first and second — attack Instruction 5, the verdict-directing instruction. Instruction 5, drafted from MAI-CR 3d 304.04 (7-1-97) and MAI-CR 3d 324.02.1 (10-1-98), read:

“A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense, or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 18th or 19th day of February, 1998, in the County of Lawrence, State of Missouri, the defendant, acting either alone or in concert with another took, nine charoláis and one angus cow, and
Second, that defendant did so without the consent of Gary Harshaw, and,
Third, the defendant did so for the purpose of withholding the cattle from the owner permanently, and,
Fourth, that the property taken, was cattle, then you are instructed that the offense of stealing has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of that stealing, the defendant acted together with or aided other persons, in committing that offense, then you will find the defendant guilty of felony stealing.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense/’

Appellant’s first point:

“The trial court erred in submitting Instruction Number 5 to the jury without requiring the jury to find-that the property was ‘of another’ because the instruction, as given, violated Appellant’s rights to due process of law and a fair trial in that the State’s burden of proof was lowered by the omission of the essential element and it does not effectively bar a subsequent prosecution.”

Appellant’s first point is based on MAI-CR 3d 324.02.1, the pattern instruction for stealing without consent. In the pattern instruction, paragraph “First” includes a hypothesis that the property taken was: “(owned by) (in the possession of) (in the charge of) (operated by) (provided by) [name of victim].”

As reported in the fourth paragraph of this opinion, the information on which Appellant was tried averred the cattle he allegedly stole were owned by Harshaw. A close reading of Instruction 5 reveals that paragraph First includes no hypothesis that the cattle were owned by anyone.

In State v. Fowler, 938 S.W.2d 894, 897 (Mo. banc 1997), cited by Appellant, the court held that in a stealing prosecution the State must prove the property belonged to another. Appellant reminds this court that a verdict-directing instruction must require a finding of all the constituent facts necessary to constitute an offense in order to support a conviction. State v. Newhart, 503 S.W.2d 62, 69[12] (Mo.App.1973). Appellant maintains that because Instruction 5 did not require the jury to find the cattle described in paragraph First were the property of another, Instruction 5 did not require a finding of all constituent facts necessary to constitute stealing.

Rule 28.03 provides, inter alia, that no party may assign as error the giving of an instruction “unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”'

The State points out — and Appellant concedes — that the attack on Instruction 5 in his first point was not raised by him in the trial court before the jury retired to consider its verdict. Consequently, the claim of error is not preserved for review. State v. Carlile, 9 S.W.3d 745, 753-54 (Mo.App. S.D.2000); State v. Martindale, 945 S.W.2d 669, 673[2] (Mo.App. E.D.1997). As emphasized in Martindale : “A defendant cannot stand idly by, permit the giving of an erroneous instruction, and then benefit from [his] inaction.” Id.

Recognizing that barrier, Appellant asks this court for “plain error review under ... Rule 29.12(b).” Relief under that rule is appropriate only when the alleged error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice results. State v. Isa, 850 S.W.2d 876, 884[2] (Mo. banc 1993).

This court finds no basis for plain error relief.

First, there was no dispute at trial about who owned the cattle Appellant was accused of stealing. Harshaw’s testimony that he owned them was uncontradicted.

Second, there was no dispute at trial that someone stole Harshaw’s cattle and hauled them to NALA for sale. Indeed, Appellant’s lawyer, in closing argument, told the jurors:

“I told you we weren’t going to prove in this case who ... was guilty of this crime. That is not my job, that is not Mr. Williams’ job to prove who is guilty in this case.... I am not going to be able to prove to you who did this crime and who is responsible for it or who set it up or who in [the prosecutor’s] words, ‘was the mastermind.’ But we are not required to do that.”

Those remarks tacitly concede the crime with which Appellant was charged was committed by someone. Appellant sought acquittal on the premise that the evidence was insufficient to establish beyond a reasonable doubt that he was the culprit.

Third, paragraph Second of Instruction 5 hypothesized that Appellant took the cattle described in paragraph First “without the consent of Gary Harshaw.”

In State v. McCauley, 522 S.W.2d 152 (Mo.App.1975), the accused was convicted of possessing marijuana. Id. at 153. One of his claims of error on appeal was that the verdict-directing instruction was flawed because it allowed the jury to find him guilty without first finding that the substance he allegedly possessed was marijuana. Id. at 154. In McCauley, as here, the point was not preserved for review. Id. Affirming the conviction, the appellate court held the jury could not have been misled about the nature of the substance, as there was no question that the proof showed it was marijuana. Id. at 154-55[4],

The same rationale applies here. There was no dispute that the cattle belonged to Harshaw and no dispute that someone stole them. Paragraph Second of Instruction 5 hypothesized the cattle were taken without Harshaw’s consent. Given those circumstances, the failure of paragraph First in Instruction 5 to hypothesize that the cattle were owned by Harshaw did not result in manifest injustice or miscarriage of justice. Appellant’s first point is denied.

Appellant’s second point levels two more attacks on Instruction 5. Both are based on MAI-CR 3d 304.04. Paragraph 2 of the Notes on Use for MAI-CR 3d 304.04 reads:

“This instruction provides for the modification of the ordinary verdict directing instruction for an offense to cover the situation where the liability of the defendant is dependent upon his being responsible for the conduct of another person by virtue of being an ‘aider and abettor.’ ”

Paragraph 4 of the Notes on Use recognizes there are an almost infinite number of variations in factual situations of accessorial liability. However, paragraph 4 explains: “[T]he evidence in most cases will involve one of four situations.”

Paragraph 5 of the Notes on Use lists the four situations. One of them is sub-paragraph “c”: “Where it is not clear whether the conduct elements were committed by the defendant or another person.” The guidelines for that situation are:

“Where the evidence is not clear or conflicts as to which person (in a group including the defendant) engaged in the conduct constituting the offense, then
(1) those conduct elements of the offense should be ascribed to the defendant or the other person or persons, and
(2) select one of the alternatives such as ‘acted together with or aided’ in the paragraph following ‘then you are instructed that the offense of [name of offense ] has occurred.... ’
This method of submission will apply in such cases where it is not clear whether the defendant acted alone or had an accomplice as where the defendant is found in possession of stolen items in the vicinity of a recently burglarized store but it is not clear whether he alone committed the burglary or was acting with another person or persons. Modify the instruction by using ‘acted alone or acted together with or aided’ in the paragraph following ‘then you are instructed that the offense of [name of offense ] has occurred

Appellant’s theory of error, as this court divines it, is that the evidence did not show who “took” Harshaw’s cattle or whether the taker acted alone, hence paragraph First of Instruction 5 should have hypothesized that Appellant or another took the cattle. Furthermore, says Appellant: “[T]he language ‘acting in concert’ [sic] should not have been included.” Appellant also argues: “As the [prosecutor] submitted the case, including paragraph second and third had no evidentiary support and were improperly submitted.”

This court finds no merit in those complaints. Paragraph First of Instruction 5 hypothesized that Appellant, either by himself or in concert with someone else, took the cattle. Paragraph Second hypothesized that Appellant did so without Harshaw’s consent. Paragraph Third hypothesized that Appellant did so for the purpose of withholding the cattle from the owner permanently. Thus, Instruction 5 required the State to prove Appellant personally engaged in all of the conduct constituting the stealing.

The State points out that subparagraph “d” of paragraph 5 of the Notes of Use for MAI-CR 3d 304.04 explains:

“Where the evidence shows the conduct constituting the elements of the offense was committed solely by the defendant and there is also evidence that someone aided the defendant, there is no need to use MAI-CR 3d 304.04 because the ordinary verdict directing instruction for the offense is sufficient to submit the defendant’s liability. However, MAI-CR 3d 304.04 can be adapted to cover this situation, but using it puts an additional and unnecessary burden on the prosecution.”

By including in paragraph First of Instruction 5 the hypothesis that Appellant, “acting either alone or in concert with another” took Harshaw’s cattle, the State cast an unnecessary burden on itself. An instruction that puts an additional burden on the State beyond that which is legally required in order to establish guilt is not prejudicial to the accused. State v. Livingston, 801 S.W.2d 344, 350[6] (Mo. banc 1990). This court therefore denies Appellant’s first attack on Instruction 5 in his second point.

The second attack on Instruction 5 in Appellant’s second point is that the opening paragraph should have been modified to hypothesize that whatever aid, if any, Appellant provided in the theft of Har-shaw’s cattle “was provided before or during the commission of the crime.” Appellant proclaims that Instruction 5 allowed the jury to find him guilty if they believed he merely “became involved after the cattle had been removed from the farm.”

Appellant bases that attack on paragraph 8 of the Notes on Use for MAI-CR 3d 304.04. It reads, in pertinent part:

“For accessory liability, the assistance or encouragement by the defendant must occur before or during the commission of the offense. In cases where, in addition to evidence of the defendant’s assisting or encouraging before or during the offense, there is evidence of assistance or encouragement occurring after the offense has been completed, and the defendant contends that the only aid, if any, provided by the defendant occurred after the offense was completed, then, on request of the defendant, the opening paragraph of this instruction will be modified to read as follows:
[The language for modifying the opening paragraph appears here.]”

The modification called for in the above-quoted passage is clearly inapplicable here. The modification is to be made only where “the defendant contends that the only aid, if any, provided by [him] occurred after the offense was completed.”

Appellant presented no evidence that he provided aid only after the theft was completed, and he did not claim the State’s evidence supported such a finding. His theory of defense was that the evidence was insufficient to establish that he was the passenger or that he was otherwise involved in the theft.

Appellant’s second attack on Instruction 5 in his second point is patently meritless. Judgment affirmed.

PARRISH and SHRUM, JJ„ concur.

      . Section 570.030, RSMo Cum.Supp.1997, reads:
      "1. A person commits the crime of stealing if he appropriates property ... of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.

      3. Stealing is a class C felony if:

      (3) The property appropriated consists of:

      (i) Any animal of the species of ... cattle. ...”

      . Knight explained the importance of knowing which cow was the mother of which calf, telling the jury:
      "[If] you didn’t know which [calf] went with which cow ... you couldn’t sell them [as separate cow-calf pairs] because [the calves] wouldn’t suck the mothers. If you got the wrong calf to the wrong cow then the calf would starve to death.”

      . Because Ruby Williams’s surname is the same as Appellant's, this opinion henceforth refers to her by her forename. No disrespect is intended.

      . The pickup "wasn’t a marked vehicle.”

      . Knight signed her name on the reverse side of Exhibit 6 when she identified Appellant's photograph. Stropp watched her sign. Then, according to Stropp, “we dated it and timed it.” There is a handwritten date "March 2, 1998” below Knight's signature, followed by a handwritten time “1:30 p.m.”
      Appellant’s brief states Stropp showed the photographs to Knight on or about March 3, 1998. Appellant’s brief conflicts with Exhibit 6.

      .The case was tried February 24-25, 1999, in Stone County on change of venue from Lawrence County.

      . Kelley’s photograph appeared on another folder with photographs of five non-suspects. The third suspect's photograph likewise appeared on a folder with photographs of five non-suspects.

      . This court infers from the record that some of the photographs, beneath the face of the man depicted, showed the photograph had been taken by a law enforcement agency.

      . A holding in Blaney on an unrelated point was overruled in State v. Withrow, 8 S.W.3d 75, 78-79 n. 3 (Mo. banc 1999).

      . References to rules are to Missouri Rules of Criminal Procedure (1999).

      . Although the burden was unnecessary, there was ample evidence to support the disjunctive submission. As explained in this opinion's denial of Appellant’s fifth point, his unexplained joint possession of Harshaw’s recently stolen cattle, coupled with the other incriminatory evidence identified in that discussion, was sufficient to support a finding that Appellant stole the cattle. There was also ample evidence to support a finding that someone helped him. It took two people— Appellant and Knight—some 20 to 30 minutes to unload the cattle at NALA in daylight. Inferably, it would take longer than that for two people to capture the cattle in the pasture at night and load them in the trailer. Even more time would be required if the thief acted alone. The jurors could therefore have reasonably concluded that Appellant, in order to round up the cattle and flee as quickly as possible, enlisted another to aid him. Such an inference is bolstered by the presence of the unidentified driver in the pickup pulling the trailer carrying the cattle.


source: Caselaw Access Project

author: JAMES M. SMART, Jr., Judge.

license: Public Domain

text:
    MFA OIL COMPANY, Respondent, v. ROBERTSON-WILLIAMS TRANSPORT, INC., Appellant.
    No. WD 57115.
    Missouri Court of Appeals, Western District.
    Submitted Nov. 10, 1999.
    Decided March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2000.
    Application for Transfer Denied June 27, 2000.

      Gregory N. Pottorff, Hal D. Meltzer, Kansas City, for appellant.
    Stephen S. Brown, Kansas City, for respondent.
    Before JAMES M. SMART, P.J., JOSEPH M. ELLIS and EDWIN H. SMITH, JJ.
   JAMES M. SMART, Jr., Judge.

Robertson-Williams Transport, Inc. (“Robertson”) appeals an order of the trial court granting MFA Oil Company (“MFA”) a new trial based upon instructional error. Robertson contends that the trial court erred because MFA waived objection to the faulty instruction because it failed to raise any objection before the jury retired; the instruction dealt solely with the issue of damages; MFA failed to offer a clarifying instruction; the jury was not told the source of the instruction; the instruction correctly submitted the issue of damages; and the trial court’s answer to the jury’s question about the instruction correctly explained what the jury had to do.

Factual Background

On October 27, 1993, MFA entered into an agreement with Robertson for Robertson to transport diesel fuel to MFA’s bulk plants in Missouri. Robertson transported the fuel to MFA’s Warrensburg and Albany plants. MFA then resold the fuel to its customers for use in diesel engine equipment. MFA filed suit against Robertson on September 3, 1996, alleging that the fuel had been contaminated with calcium chloride. MFA alleged that as a result of using contaminated fuel, its customers’ diesel engines-were damaged and that MFA had reimbursed its customers for the losses they sustained due to use of the contaminated fuel. Although several theories were alleged, including negligence, strict liability, and breach of contract, the case was submitted to the jury only on breach of the implied warranty of merchantability.

The case was tried in December, 1998. The trial court submitted an instruction on mitigation of damages, tendered by Robertson, to the jury. Counsel for Robertson inadvertently represented that the instruction was from MAI 32.07. The instruction in question was actually based on MAI 32.07(a), a “failure to mitigate damages” instruction designed for use in FELA cases. Instruction No. 7 read:

If you find in favor of plaintiff, you must find that plaintiff failed to mitigate damages if you believe:

First, either: plaintiff failed to adequately investigate and evaluate individual claims for engine repair, or plaintiff failed to verify the nature and extent of damages, or plaintiff failed to investigate whether repairs were reasonably necessary, or plaintiff failed to verify whether each claim of engine damage involved the purchase of fuel after Robertson-Williams’ October 27, 1993 delivery and prior to the time the Albany Key Pump was closed, and
Second, plaintiff, in one or more of the respects submitted in Paragraph First thereby failed to use ordinary care, and Third, plaintiff thereby sustained damage which would not have occurred otherwise.

MFA objected to Instruction No. 7 on the ground that there was no credible evidence to support every disjunctive submission. Plaintiff MFA also objected on the grounds there was no evidence that even if MFA had done the things listed in the instruction, the damages would have been reduced.

During deliberations, the jury questioned the court about Instruction No. 7. The written question was as follows:

Instruction # 7 If you find in favor of plaintiff, you must find that plaintiff.... This appears that this instruction deals with findings in favor of the defendant not this plaintiff. Each statement in # 1 begins with ‘plaintiff failed to.’

Plaintiff MFA asked the court to instruct the jury to ignore Instruction No. 7 altogether because the instruction was not appropriate for this case because it was intended for a FELA case, and does not instruct the jury as to what they should do if they believe mitigation was required. The court responded to the jury’s question:

If you find for plaintiff under Instruction # 5, but you find that plaintiff failed to mitigate its damages under Instruction # 7, you may reduce the damages awarded to plaintiff by an amount supported by the evidence.

The jury later submitted another question to the court:

In order to find for Plaintiff must we believe that all 5 items are true on Instruction 5. In other words if we don’t agree with one of the statements do we find for defendant.

The court answered, “The court is not permitted to respond to this question. The jury will be guided by the evidence and the instructions.”

The jury returned a verdict in favor of Robertson. MFA filed a motion for new trial arguing, inter alia, that the trial court erred in giving Instruction No. 7:(1) because it was represented to be from MAI 32.07 which has been withdrawn and is no longer used; and (2) it was an erroneous statement of the law and failed to explain to the jury what they were to do if they found that mitigation was required. The trial court granted MFA’s motion, finding that it erred in giving Instruction No. 7, mentioning that the instruction “was represented to be from MAI 32.07, which had been withdrawn and was no longer used,” and that “such instruction was an erroneous statement of the law and failed to explain to the jury what it was to do if the jury did in fact find such mitigation [was required].”

Robertson appeals the trial court’s grant of a new trial to MFA.

Standard of Review

Where a new trial has been granted due to instructional error, the appellant must show either that the instruction given was not erroneous, or that the instruction “created no substantial potential for prejudicial effect.” Lashmet v. McQueary, 954 S.W.2d 546, 549 (Mo.App.1997). The appellate court in such a case examines the record to determine whether the instruction in question was erroneous, and, if found to be so, whether such instruction prejudiced the party challenging the instructions. Id.

Discussion

The appellant has not provided a transcript of the trial except for the instruction conference and the portion of the trial involving the questions sent by the jury after it started deliberating. We do know, however, that the instructions provided the jury were not complete in that the mitigation of damages instruction should have been tied into the damage instruction by language indicating that if the jury found that Plaintiff MFA failed to mitigate its damages, the jury should reduce the award to Plaintiff MFA by an amount supported by the evidence. Apparently, the court and counsel realized that the instructions were incomplete when the jury sent its first question to the court. After conferring, the court responded to the jury with this statement:

If you find for plaintiff under Instruction No. 5, but you find that Plaintiff failed to mitigate its damages under Instruction No. 7, you may reduce the damages awarded to plaintiff by an amount supported by the evidence.

There is no indication that any other relief was requested at that time by either party. Nevertheless, after the verdict for defendant, and after receipt of Plaintiff MFA’s motion for new trial, the trial court evidently believed that the instructions provided the jury were inadequate and that there was a likelihood that prejudice resulted. Accordingly, the trial court granted a new trial on grounds of instructional error.

Appellant Robertson points out that Rule 70.03 requires specific objections to instructions be made prior to the time the jury retires to deliberate. Robertson argues that therefore the trial court erred in awarding a new trial, even if the instruction was erroneous. It is true that the trial court could have regarded MFA’s claim of error as not preserved. However, the trial court has discretion to grant a new trial when it finds that error occurred, whether or not there was a timely objection. “A trial court has the right, in the proper exercise of its discretionary power, to grant a new trial on account of any erroneous ruling, whether an objection has been made or not.” Steward v. Goetz, 945 S.W.2d 520, 528 (Mo.App.1997). We are provided no authority to the effect that the trial court is required to invoke waiver against a party in such an instance. Also, Rule 78.08 makes clear that the court can grant a new trial on a matter not preserved when necessary to avoid manifest injustice or miscarriage of justice. Rule 78.08. The trial court correctly regarded the instruction as erroneous, and the court also regarded the error as prejudicial. Although we have the right to review the trial court’s finding of prejudice, in this case we are hindered in doing so by the lack of an adequate transcript. Accordingly, we conclude that appellant has not demonstrated that the trial court erred in granting a new trial.

The order of the trial court awarding a new trial is affirmed.

ELLIS and EDWIN H. SMITH, JJ., concur.

      . Plaintiff did request that the court strike Instruction No. 7 altogether. When the court refused to strike the instruction, plaintiff, without intending to waive any objection, nevertheless agreed that it had no objection to the response the court was providing. Plaintiff made no other request for any relief.

      . Rule 81.17 provides that “when a review of the evidence” is not necessary for the reviewing court to pass on “legal questions with respect to instructions given,” the appellant need not include that evidence in the record on appeal. The rule still requires the appellant to exercise judgment as to when a review of the evidence is necessary. Robertson argues that there could be no prejudice because the court, in responding to the jury's questions, gave them the same language the court should have given in the formal instructions. We are unwilling to say, especially without a transcript, that the court’s informal response to the jury question removed any likelihood of prejudice as a matter of law.


author: ROBERT E. CRIST, Senior Judge.

text:
    H.R.B. and B.B., Plaintiffs/Respondents, v. Archbishop Justin RIGALI, in his representative capacity for the Archdiocese of St. Louis, Defendant/Appellant.
    No. ED 76365.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied June 27, 2000.

      Gerald T. Noce, Edward M. Golden-hersh, Bernard C. Huger, Mary P. Mcln-nis, Mark J. Swearingen, St. Louis, for appellant.
    Rebecca M. Randles, Kansas City, Stanley Spero, Cambridge, MA, for respondents.
   ROBERT E. CRIST, Senior Judge.

Archbishop Justin Rigali of the Archdiocese of St. Louis (Archbishop) appeals from the judgment of the trial court after a jury entered a verdict in favor of H.R.B. (Plaintiff) and his wife B.B. (Wife) on their claims of intentional failure to supervise and loss of consortium. We reverse.

On September 30, 1994, Plaintiff and his wife filed a petition alleging that during 1963 and 1964, Plaintiff suffered sexual abuse at the hands of a Roman Catholic priest, J.L.G. (Priest), employed by the Archdiocese, while Plaintiff was a student at the Church of the Immaculate Conception School in south St. Louis City. Plaintiff was born on April 24, 1951. Plaintiff initially brought three counts against Priest and five counts against the Archbishop and the Church of the Immaculate Conception, as well as one count loss of consortium count against all the defendants. Wife brought one loss of consortium count against all defendants. On February 22, 1995, the trial court dismissed the petition on the motion of all defendants. At that time, Plaintiff appealed this decision and our court affirmed in part and reversed in part the dismissal in H.R.B. v. J.L.G., 913 S.W.2d 92 (Mo.App. E.D.1995).

After the case returned to the trial court, several procedural rulings (from which no one appeals) reduced the case to several counts against Priest, one count of intentional failure to supervise against the Archbishop and the church, and Wife’s loss of consortium claim. On February 20, 1999, Plaintiff and Wife settled their claims against Priest for $25,000 and released him from liability.

Plaintiffs claim of intentional failure to supervise and Wife’s loss of consortium claim proceeded to trial against the Archbishop and the church on February 22-26, 1999. The trial court entered a directed verdict in favor of the church, but allowed the case against the Archbishop to proceed to the jury. The jury entered a verdict in favor of Plaintiff on the count of intentional failure to supervise for actual damages in the amount of $498,280 and punitive damages of $498,280. The jury also returned a verdict in favor of Wife in the amount of $200,000 for loss of consortium. The trial court reduced the amount of actual damages awarded Plaintiff by the $25,000 settlement with Priest. The Archbishop appeals.

We find Point I of the Archbishop’s appeal to be dispositive. In Point I, the Archbishop contends the trial court erred in failing to grant a directed verdict in favor of the Archbishop and erred in failing to grant his motion for judgment notwithstanding the verdict because Plaintiffs claim for intentional failure to supervise is barred by the statute of limitations as set forth in section 516.120(4), RSMo 1994 and section 516.100, RSMo 1994. The Archbishop argues that the court should have determined as a matter of law that Plaintiffs claim was barred by the statute of limitations and should never have submitted the issue to the jury, because when damages are capable of ascertainment under section 516.100 is a question of law. Moreover, under the facts presented, the Archbishop asserts the evidence shows Plaintiffs damages were capable of ascertainment back when he suffered the sexual molestation in the summer of 1964. We agree.

The parties are in agreement that the statute of limitations, section 537.046, RSMo 1994, applying to civil actions for childhood sexual abuse, enacted in 1990 does not apply to the facts of their case. Therefore, Plaintiffs action for intentional failure to supervise can only survive if brought within the five-year statute of limitations set forth in section 516.120(4).

Under section 516.100, the five-year statute of limitations for Plaintiffs cause of action began to run “when the damage resulting therefrom is sustained and is capable of ascertainment.” In enacting this test, Missouri has specifically rejected a “discovery” rule to determine when a cause of action accrues. Harris-Laboy v. Blessing Hosp., Inc., 972 S.W.2d 522, 524 (Mo.App. E.D.1998). Damage is sustained and capable of ascertainment when it can be discovered or made known, not when the plaintiff actually discovers the injury or wrongful conduct. Id. In addition, the capable of ascertainment test is to determine when a plaintiff could have first maintained the action to a successful suit. Carr v. Anding, 793 S.W.2d 148, 150 (Mo.App. E.D.1990). “Mere ignorance of the plaintiff of his cause of action will not prevent the running of the statute of limitations.” Id.; See also, Vandenheuvel v. Sowell, 886 S.W.2d 100,102 (Mo.App. W.D.1994).

Moreover, whether or not the damages were sustained and capable of ascertainment at a given time is an objective standard and is a matter of law to be decided by the judge. Id.; Sheehan v. Sheehan, 901 S.W.2d 57, 58-59 (Mo. banc 1995). Only where there could be some contradictory or different conclusion to be drawn from the evidence will a statute of limitations question be submitted to the jury to decide. Lomax v. Sewell, 1 S.W.3d 548, 552-53 (Mo.App. W.D.1999).

In the case at hand, there was no question of fact for a jury to decide because no contradictory or different conclusion could be drawn from the evidence. Applying an objective standard, it is clear that Plaintiffs damages were sustained and capable of ascertainment in 1964 when they occurred. Where an overt sexual assault occurs, the injury and damage resulting from the act are capable of ascertainment at the time of the abuse. Plaintiff’s testimony demonstrated in no unequivocal terms that the sexual abuse was overt, traumatic, painful and violent. Moreover, his testimony shows that he was very much aware of his injury and damages at the time of each sexual assault. He specifically testified he felt pain and confusion and questioned why the abuse was happening to him. In addition, there is no evidence in the record to show that Plaintiff was mentally incompetent at the time of the assaults. The only tolling exception applying in his case under section 516.170, RSMo 1994, was the “minority” exception, which tolled his cause of action until he was 21. However, even applying that exception, Plaintiff was required to file his cause of action by the time he was 26 (April 24, 1977), not 17 years after that date.

Plaintiff argues that he repressed any memory of these events until October 1992 and his repression of memory should toll the statute of limitations until that date. Plaintiff testified that after the attacks, he went to an area park and cried. He stated that while at the park he placed himself in a trance and suppressed his memory of the pain and abuse. However, his testimony shows that, at the time the acts were perpetrated, he had full knowledge of the events and knew they were wrongful. It was at that moment that Plaintiffs damage was sustained and capable of ascertainment. Plaintiffs expert, Dr. Schwartz, testified that even after the trances, Plaintiff was aware he had been injured and damaged in some way, but did not know why. Dr. Schwartz stated:

When Hank was sexually abused, he would go to the park, would disassociate. When he disassociated, he said this didn’t happen and then he believed it didn’t happen. That system is very common. Maybe two-thirds of sexual abuse victims hold forth very similar experiences like that.
He then somehow knows it, doesn’t know it. Meaning that he knows that he’s injured and damaged in some way, but he doesn’t know why. His memory won’t allow him to remember that it is [Priest] that sexually abused him.

Plaintiff relies upon the Sheehan case to support his argument. In Sheehan, the trial court had dismissed a daughter’s personal injury action against her father for childhood sexual abuse, finding it barred by the statute of limitations. Sheehan, 901 S.W.2d at 57. The daughter had alleged she suffered sexual abuse as a child and had involuntarily repressed conscious memory of it until August 1990 or thereafter. Id. at 58. The daughter had filed her petition on April 28, 1993. Id. The Supreme Court reversed, finding the daughter’s petition did not clearly indicate on its face that her suit was barred. Id. at 59. The Court found that her petition was ambiguous as to when she had sustained her injuries and damages and that in construing the petition broadly and in her favor, her damage may not have been ascertainable until August 1990 or thereafter. Id.

We do not read Sheehan as creating an exception to the statute of limitations. The holding in Sheehan is narrow, relating only to the case where the Court found the plaintiff had made sufficient allegations, construing them broadly and favorably toward the plaintiff, to survive a dismissal on the petition. In the case at hand, we are concerned with fully developed facts after trial; facts which unequivocally show Plaintiffs injury and damages were readily capable of ascertainment when they occurred. In addition, the Supreme Court in Sheehan never explicitly held that repression of memory would absolutely toll the statute of limitations under sections 516.100 and 516.120.

Indeed, the Sheehan court did not overrule an opinion from the Western District of the Missouri Court of Appeals, Vandenheuvel, 886 S.W.2d at 100. The Court simply distinguished it, noting that it was a case decided by a summary judgment, where matters outside the pleadings indicated when the damage became ascertainable. Sheehan, 901 S.W.2d at 59. In Vandenheuvel, the plaintiff brought an action for childhood sexual abuse against her deceased father’s estate. Vandenheuvel, 886 S.W.2d at 100. She contended that she was unable to know or ascertain the nature of her injuries until after her father’s death because she had repressed all memory of them. Id. at 101. The Western District, applying the objective “capable of ascertainment” test found the trial court “could reasonably have found that the damage from the alleged abuse was sustained and capable of ascertainment at the time of the abuse.” Id. at 104. The Court found that plaintiffs repression of memory did not toll the running of the statute of limitations under section 516.100. Id.

In Vandenheuvel, the court discussed the need for statutes of limitation as follows:

Courts and commentators which have discussed this issue recognize that allowing a plaintiff to bring an action based solely on the recollection of very old incidents that were allegedly repressed from consciousness, with no means of independently verifying the memory repression, would effectively eliminate the statute of limitations. This would give a plaintiff unlimited time to bring an action, while the facts tend to become increasingly difficult to determine as the age of the alleged incident increases. The potential for spurious claims is increased and the capability of the court to determine the truth would be significantly reduced, particularly when the alleged perpetrator is deceased.

Id. at 103. We agree with the reasoning in Vandenheuvel and believe it has not been overruled by the Supreme Court’s decision in Sheehan. In addition, we are constrained to follow the policy determination set out by the legislature in section 516.120. This determination is the legislature’s prerogative and it is not the place of the judiciary to fashion an exception to the statute’s clear language. See, Weiss v. Rojanasathit, 975 S.W.2d 113, 121 (Mo. banc 1998). In the case at hand, Plaintiffs own testimony shows that his damages were sustained and capable of ascertainment at the time of the abuse.

In another recent case, the Supreme Court addressed the issue of repressed memory of childhood sexual abuse. K.G. v. R.T. R, 918 S.W.2d 795 (Mo. banc 1996). In K.G., the trial court dismissed a daughter’s petition alleging her father had sexually abused her as a child as barred by the two-year statute of limitations for battery in section 516.140. Id. at 797. The daughter was born on January 18, 1965, and had filed her petition in September 10, 1993. Id. at 797-98. She alleged that she had involuntarily repressed memory of the events until January 1989 and had no memory of the identity of the perpetrator until December 1990. Id. at 797. The Supreme Court affirmed the trial court’s dismissal of her petition, finding it is the memory of the consequential injury and damages, not the memory of the identity of the perpetrator, that triggers the running of the two-year statute of limitation. Id. at 798.

Again, the Supreme Court failed to overrule Vandenheuvel. While recognizing that it was arguable under Sheehan that the plaintiffs damages did not accrue until she regained her memory, the Court never explicitly made such a ruling.

Moreover, we do not consider our holding today to be inconsistent with our opinion in the prior appeal in this case, H.R.B., 913 S.W.2d at 92. This first appeal occurred after the trial court dismissed Plaintiffs petition as barred by the statutes of limitations in sections 516.120(4) and 537.046. Id. at 95. We reversed, following Sheehan, concluding that the petition’s allegations were sufficient to survive a bare motion to dismiss, giving Plaintiffs petition its broadest intendment and construing it favorably to Plaintiff. Id. at 96. In so doing, we stated: “In other words, the petition is ambiguous enough as to when plaintiff could have objectively discovered or made known the fact of injury from defendant’s alleged conduct, to withstand a motion to dismiss on limitations grounds. We must take all the allegations in the petition as true, suspending any skepticism as to the merits of plaintiffs allegations.”

We are now in a position where full evidence on Plaintiffs allegations has been adduced. We conclude the evidence will not support a finding that Plaintiffs repression of his memory will toll the statute of limitations in section 516.120 and 516.100. Therefore, we find the trial court erred in failing to direct verdict in favor of the Archbishop and we must reverse the trial court’s judgment in favor of Plaintiff. In addition, in Point IV, the Archbishop asks the Court to also reverse the judgment in favor of Wife for loss of consortium. A wife’s claim for loss of consortium is derivative only, and she may not recover any damages on a claim for loss of services if her husband has no valid claim for his personal injuries. Davis v. Board of Educ. of City of St. Louis, 963 S.W.2d 679, 688 (Mo.App. E.D.1998). Accordingly, the judgment in favor of Wife for loss of consortium must also be reversed.

We are mindful that, at times, the application of the statute of limitations may appear to produce a potentially unjust result. Yet, the statutes of limitations set by our legislature serve a legitimate purpose. Allowing a plaintiff unlimited time to bring an action increases the potential for spurious claims and decreases the court’s or jury’s ability to determine the

truth. Vandenheuvel, 886 S.W.2d at 103. In addition, statutes of limitation are favored in the law and cannot be avoided unless the party seeking to do so brings himself or herself strictly within a claimed exception. Butler v. Mitchellr-Hugeback, Inc., 895 S.W.2d 15,19-20 (Mo. banc 1995). Plaintiff has failed to do so.

Judgment reversed.

MARY RHODES RUSSELL, C.J., and LAWRENCE G. CRAHAN, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff/Respondent, v. James FIELDS, Defendant/Appellant.
    No. ED 75750.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Application for Transfer Denied June 27, 2000.
    Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CRANDALL, P.J. and HOFF, J. and ROBERT E. CRIST, S.J.
   ORDER

PER CURIAM.

James Fields (Defendant) appeals his convictions for murder in the first degree in violation of Section 565.020, RSMo 1994, assault in the first degree in violation of Section 565.050, RSMo 1994, and two counts of armed criminal action in violation of Section 571.015, RSMo 1994. Defendant raises three points on appeal. First, Defendant contends there was not sufficient evidence to convict him. Second, Defendant claims the trial court plainly erred and denied his Due Process right to a fair trial by allowing the prosecutor to make a certain statement during closing argument. Finally, Defendant claims the trial judge plainly erred when the judge held an ex parte conversation with State’s witness Angela Jackson.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. Further there is sufficient evidence from which a reasonable jury might have found Defendant guilty beyond a reasonable doubt. State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999). An extended opinion would have no jurisprudential purpose. We affirm the judgment pursuant to Rule 30.25(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 30.25(b).


author: KENNETH W. SHRUM, Judge.

text:
    In re Clayton D. MOREAU, a Minor. William Council and Marilyn Council, Petitioners-Respondents, v. Robert Royster, Respondent-Appellant.
    No. 22991.
    Missouri Court of Appeals, Southern District, Division One.
    March 31, 2000.
    Motion for Rehearing and Transfer Denied April 24, 2000.
    Application for Transfer Denied May 30, 2000.

      Ronald D. White, Richard W. Wood, Williams, Robinson, White, Rigler & Parker, P.C., Attorneys, for Appellant.

      Tyce S. Smith, Sr., Colin P. Long, Smith, Dunbar, Turley, Waynesville, Attorneys, for Respondents.
   KENNETH W. SHRUM, Judge.

Robert Royster (“Appellant”), the father of Clayton Dean Moreau (“C.D.”), a minor, appeals from an order appointing William and Marilyn Council, husband and wife, as guardians of C.D. Such an order is appeal-able. Estate of Williams, 922 S.W.2d 422, 423 (Mo.App.1996). Mahealani Royster (“Mahealani”), mother of C.D., does not appeal. We affirm.

We conduct our review of this case under Rule 84.13(d). Under that rule, we will affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Matter of TAP., 953 S.W.2d 638, 639-40[l] (Mo.App.1997).

“Due regard is given the opportunity of the trial court to judge the credibility of witnesses.” Williams, 922 S.W.2d at 423. See Rule 84.13(d)(2). Resolving credibility of witnesses is generally left to the trial judge who may disbelieve testimony even when uncontradicted. Williams, 922 S.W.2d at 423. The trial judge is in a better position than this court to assess and weigh the credibility of witnesses, i.e., to resolve their sincerity, character, and other trial intangibles that may not be shown by the record. Id.

In 1994, sixteen-year-old Mahealani lived with her mother, Marilyn, and her stepfather, William, in North Carolina where William — a career marine — was stationed. Mahealani ran away from home just before she met Appellant, who was also sixteen years old at the time. While on this sojourn, Mahealani became pregnant by Appellant.

After learning she was pregnant, Ma-healani returned to five with Respondents and moved with them to William’s new duty station in Pulaski County, Missouri. Mahealani gave birth to C.D. in Missouri on September 28,1995.

Initially, Mahealani did not tell Appellant of her pregnancy or of C.D.’s birth. After C.D. was born, Mahealani gave him to Respondents, who maintained physical custody of and supported C.D. until March 1997.

On November 1, 1996, Respondents asked the Pulaski County Circuit Court to name them as guardians for C.D., alleging that Appellant and Mahealani were unable and unfit to act as parents and guardians. When notified of Respondent’s petition, Appellant filed responsive pleadings in which he denied he was unfit and unable to act as parent and guardian for C.D. Appellant affirmatively alleged that his first knowledge of C.D. came in May 1996 by notice from the Missouri Department of Social Services, Division of Family Services, and that he first learned of C.D.’s whereabouts via Respondents’ petition for guardianship. On December 18, 1996, the trial court granted Respondents “temporary guardianship” of C.D., with “[rjeasonable visitation to [Appellant].”

On January 16, 1997, Appellant and Ma-healani were married. The two resided together in North Carolina. In March 1997, Respondents yielded to Mahealani’s requests that they deliver C.D. to Appellant and Mahealani in North Carolina for a test visit. At trial, Respondents explained they were trying to “give [them] a chance to [be a] family.” Respondents told the young parents they intended to retrieve C.D. before June 23,1997.

Within two weeks after Respondents took C.D. to North Carolina, Mahealani left Appellant. Evidence regarding what caused her to leave was conflicting. Ma-healani testified she left because of Appellant’s violent and abusive behavior and continual threats. Appellant testified that Mahealani left to be with Joshua Sipes, with whom she had had an ongoing sexual relationship beginning two months after Appellant and Mahealani were wed. He further testified that she left because he was a “homebody” and “didn’t agree with partying.” The record reflects that Appellant’s and Mahealani’s relationship was tumultuous in 1997 and that Mahealani was recurrently in and out of the family home. Appellant testified that during this period, he took care of C.D.

By the time Respondents sought to retrieve C.D. and return him to Missouri in June 1997 as they had originally planned, Appellant had petitioned a North Carolina court for custody of C.D., and Mahealani had signed an affidavit in support of Appellant’s effort.

On July 20,1997, a North Carolina court ruled that Missouri’s courts had jurisdiction to decide the custody issue. Respondents then agreed with Appellant that they would wait until September 28, 1997 — after C.D.’s birthday — to regain physical custody of C.D. When William went to North Carolina on September 27, 1997, he found that Appellant had fled with C.D. At trial, Appellant admitted that he had hidden the child from law officers and from Respondents until December 1997, at which time he came out of hiding and relinquished physical custody of C.D. to the North Carolina Department of Social Services, which, in turn, returned C.D. to Respondents. Respondents have had physical custody of C.D. since that time except for Appellant’s periods of visitation.

The guardianship hearing was held March 29, 1999. On April 29, 1999, the trial court found Appellant unfit to take charge of the minor child and granted letters of guardianship to Respondents. The court made extensive findings of fact and conclusions of law, pertinent portions of which are reproduced in the “Appendix.” This appeal followed.

Appellant’s single point on appeal charges that the “judgment was not supported by substantial evidence, was against the weight of the evidence, and erroneously declared or applied the law in that the evidence did not support a finding that [Appellant] was unfit, unwilling and unable to act as natural guardian of [C.D.]”

Under §§ 475.030.4(2) and 475.045, RSMo 1994, a parent is to be appointed guardian unless he or she is “adjudged unfit.” Williams, 922 S.W.2d at 424[2]. The guardianship statutes are consistent with other instances in which child custody is an issue “as there is a rebuttable presumption that it is in the best interest of a minor child to have custody in the parent, but such presumption may be overcome by evidence that the parent is unfit or incompetent to take charge of the child.” Id. When the evidence is sufficient to support a finding that a parent is “unfit,” then the presumption in favor of such parent disappears, and the trial court may properly appoint someone other than the natural parent as guardian. Id. at 424.

The term “unfit” is not defined in Missouri’s guardianship statutes, but case law has defined the term broadly in the guardianship context.

“‘[I]n a contest between one or both parents and a third party “unfitness” must be shown by evidence and found to exist by the court, and that it amounts to circumstances which justify the court in acting for the best interests and wel fare of the minor. “Unfitness” may by its very nature be relative; in a contest between a relative who has given the children a salutary and stable home life over a 'period of years, which they prefer and with which the children, the court and the government agency involved are satisfied, on the one hand, and a choice of sending them into an unknown environment where there is a poor performance record for stability and nurture on the other, the latter decision may constitute a great cruelty. Unfitness may refer merely to the degree of care which the parent, with the best intention in the world, is still incapable of fulfilling. ... In determining such unfitness the stability of the family life may be considered, the amount of care which the custodian will be able to provide for the children on a daily basis, the environment in which they will be brought up, including the presence of family and other interested persons, the efforts, if any, which were made by the parent during this long separation to furnish support to the children, both personal and financial, the mental health or illness of the proposed custodian, and so on.’ ”

Williams, 922 S.W.2d at 425 (emphasis added) (quoting Lewis v. Lewis, 154 Ga.App. 853, 269 S.E.2d 919, 921-22 (1980)).

Guided by the passage quoted above in Williams and its own findings of fact in this case, as reflected in the Appendix, the trial court concluded that Appellant was “unfit to take charge of [C.D.] as the natural guardian for the following reasons:

“A. [Appellant] does not have the independent ability to provide for the care, health and needs of [C.D.].
“B. The relationship between [Appellant] and [Appellant’s father], who is a dominant figure in [Appellant’s] life, creates an uncertain and possibly dangerous environment for [C.D.].
“C. [Appellant] is presently physically unfit to care for [C.D.].
“D. During the period when [Respondents] had [C.D] [Appellant] made little effort to provide financial support for [C.D.].
“E. [Appellant] and his family have regard for the rule of law when it supports their wishes and otherwise feel free to break the law when it suits their needs. This creates a moral environment which [is] not conducive to raising [C.D.].
“F. [Appellant] did not see fit to fix the front yard of the trailer or ... arrange for health insurance for [C.D.] until this case brought those matters to his attention.
“G. [Appellant] has stated he will get a better job, pass his GED, place [C.D.] in daycare, get [C.D.] health insurance and do many other things without stating how he will pay for those things or turn his life around. For the foreseeable future [Appellant] intends to stay in his present environment. While having the best intentions, [Appellant] is unable to fulfill his role as natural guardian.”

Appellant argues that the reasons expressed by the trial court for finding him unfit “clearly do not meet the standard set forth in Matter of T.A.P. ... 953,S.W.2d at 642.” Specifically, Appellant refers to the holding in T.A.P. that “unfit” can signify “parental neglect” and that “[t]he term neglect has normally focused on physical harm or deprivation, but the term primarily has been seen to involve a failure to perform parental duties imposed by law and by conscience.” Id. Appellant fixates on this language from T.A.P. in urging this court to reverse and insists that there is no evidence that he ever physically harmed or deprived C.D. of anything. Appellant further asserts that “there was insufficient evidence to show a failure by [him] to perform parental duties imposed by law and by conscience.”

Appellant’s argument is flawed in several respects. The trial court’s finding that Appellant made little effort to fulfill his duty of providing financial support for C.D. while C.D. was in Respondents’ custody is supported by substantial evidence. During the nearly twenty-four months that Respondents had physical custody of C.D. up to the time of trial, Appellant had sent Respondents only $175 to $225 in support. Aside from this token sum, Respondents bore all the financial costs of caring for C.D. while he was in their custody.

Details of Appellant’s earnings and employment are sparse. Appellant testified that he never received W-2’s and never filed income tax returns. Nevertheless, the record contains sufficient evidence on this topic to support a finding that Appellant breached his duty to financially support C.D. For example, Appellant adduced evidence that he earned $7,000 “last year” (which we infer to mean 1998) via part-time work in his father’s salvage business and supported himself for a “substantial period ... without substantial assistance” from others. Moreover, Appellant testified that his father was not “his major source of employment for the last four years” as he also worked for “Peele Construction, Robert Smith and Grubbs Construction.” Despite this evidence, Appellant adduced no evidence that he used earnings from these employments (other than the $175-$225 sum) to help support C.D. while C.D. was in Respondents’ custody. This evidence is analogous to that in T.A.P. It suggests that Appellant was indifferent to C.D.’s financial needs while C.D. was in Respondents’ custody and that Appellant relegated the performance of his duty to support C.D. to Respondents during those periods. As we concluded in T.A.P., such evidence supports a finding of unfitness within the meaning of the guardianship laws. 953 S.W.2d at 642-43.

Appellant’s argument is also flawed in its treatment of the definition of “unfit” in T.A.P. as singular and exclusive. Other factors enter into the question of “fitness.” For instance, the trial court may properly consider the moral environment to which a child will be subjected when deciding whether a parent is unfit to take custody. Williams, 922 S.W.2d at 424[4]. The trial court’s conclusion that Appellant and his family use or break the law as it suits their needs, thereby creating an unfavorable moral climate in which to raise C.D., is supported by ample evidence. In part, this evidence is recounted in paragraphs 2 and 10-12 of the Appendix. Such evidence is also found in Appellant’s testimony that he accepted Medicaid benefits for himself without reporting his income and drove motor vehicles without a license.

The evidence also supports the trial court’s finding in paragraph “B,” i.e., that Appellant’s relationship with his father “creates an uncertain and possibly dangerous environment for” C.D. In paragraph 1 of the Appendix, the trial court described a particularly violent encounter between Appellant and his father. The court also referred to testimony by Mahealani in which she described a pattern of violence between Appellant and his father. Appellant, himself, described his relationship with his father as “unusual” and “not typical.” His explanation was, “We’re too much alike.” Warren Royster (“Warren”), Appellant’s father, testified there had been “fights,” “disputes,” and “altercations” between both of his sons and him. Warren explained that “teenage boys like to test their daddy.” The probability of an “uncertain and possibly dangerous environment” is increased by the fact that Appellant and his father both live on the salvage yard owned by Appellant’s grandmother, though they occupy different places. In addition, when Appellant has worked for his father, he has worked at the salvage yard. Appellant’s grandmother — a proposed caretaker for C.D. — also lives on the salvage yard. Consequently, evidence exists to support the concern that C.D. would often be exposed to “fights,” “disputes,” and “altercations” between Appellant and his father. The trial court did not err in concluding that such an environment renders Appellant unfit.

There is also evidence to support the trial judge’s conclusions in paragraphs “A” and “G,” i.e., that Appellant was unfit because he lacked the independent ability “to provide for the care, health and needs” of C.D. and that, despite his best intentions, Appellant is “unable to fulfill his role as natural guardian.” At the time of trial, Appellant had no income, and he had a badly fractured leg (suffered in a motorcycle wreck) which had been surgically treated with a steel rod implant. Evidence showed that Appellant was totally dependent on his father, mother, and grandmother. For instance, Appellant lived in a mobile home owned by his grandmother. The land where Appellant’s mobile home sits is owned by his grandmother and is part of his father’s salvage yard. Although Appellant testified repeatedly about his job prospects once his leg healed, there was also evidence that Appellant has attention deficit disorder (ADD) with hyperactivity and a history of “continually going on to something which appears more challenging.” Although Appellant’s father, Warren, questioned the diagnosis, he conceded that despite his attempts to involve Appellant in the family business, Appellant “has times when he acts like he doesn’t care.” Warren’s explanation is that Appellant gets “bored too easy.” Appellant’s mother, Brenda McClain, testified that Appellant had behavioral problems while in school and was diagnosed “with ADD.” His treatment for that condition included psychiatric consultation and medication. Appellant stopped taking his medication when he quit school at age sixteen. Brenda conceded that she and other family members had helped Appellant financially “from time to time over the years” and that she expected to continue supporting him.

The decision whether a natural parent is unfit to have custody of his or her child must be based on existing conditions; yet, “past conditions, conduct and attitudes which color, indicate, clarify or cast light upon conditions as they now exist constitute the larger concept of the term ‘present condition.’ ” Matter of C W B, 578 S.W.2d 610, 614[7] (Mo.App.1979). See also, In re Interest of M.L.W., 788 S.W.2d 759, 762 (Mo.App.1990) (holding that past events often shape the future). Here, Appellant and several of his family members testified that if he regained custody, he could and would meet the needs of C.D. Even so, the evidence supports the trial court’s finding that Appellant’s professed commitment to perform his parental duties in the future is not demonstrated by his past conduct. As stated above, Appellant provided only a nominal sum for C.D.’s support while C.D. was in Respondents’ custody. When Appellant had custody of C.D., it was only by contributions from Appellant’s family that Appellant was able to provide for C.D.’s “care, health and needs.” The trial court did not err in finding Appellant unfit for these additional reasons.

As noted in Williams, 922 S.W.2d at 425, “unfit” is given broad definition in guardianship of minor cases and trial courts have considerable discretion in applying that term. Here, the trial court did not erroneously declare or apply the law. Its conclusion that Appellant was unfit to serve as natural guardian is not against the weight of the evidence. Rather, the finding is supported by sufficient evidence. Appellant’s superior right to have guardianship over his son vanished once it was shown he could not care properly for C.D. Williams, 922 S.W.2d at 424[2]. There is ample evidence to support the trial court’s conclusions that Respondents are of good character, have cared for C.D. in exemplary fashion for most of his life, have provided an excellent nurturing environment for C.D., and that C.D. has bonded with Respondents.

Considering the due deference we must accord the trial court’s decision and the limited scope of our review, we cannot hold that the trial court’s finding that Appellant was unfit was erroneous or that letters of guardianship should not issue to Respondents.

We affirm the judgment of the trial court.

CROW, P.J., CONCURS.

PARRISH, J„ CONCURS.

(Excerpt from trial court’s Findings of Fact)

1.There are two matters in evidence that cause this Court great concern. The first is a physical encounter between the father and paternal grandfather. As the Court understands the evidence, the father was leaving the area of the paternal grandfather’s business with a shotgun. The grandfather ended up pulling a pistol. There are several versions about what happened and why it happened. The following facts seem to be uncontested.:

A. The father took the pistol from the grandfather and struck the grandfather in the head with the pistol.

B. The grandfather was injured and required stitches.

C. While the father was driving away the grandfather shot at and struck the vehicle the father was driving.

D. When asked by the guardian ad litem the question whether he would have fired the pistol at the vehicle if the minor child was in the vehicle the grandfather answered: “I am from South Carolina and I hit what I shoot at.”

The father, in his deposition, stated that the grandfather pointed the pistol at him during the altercation. He denied that at trial. The father also indicated that the father is a good shot and hits his target when he fires a gun. The father demonstrated little concern that the firearm was fired at a vehicle which he was driving. The father and grandfather indicate that this incident was a one-time occurrence. The mother of the minor child has described in her testimony a continuing pattern of violence between the father and grandfather. While the court finds that much of the mother’s testimony is not credible, the court finds her testimony as to the pattern of violence between the father and grandfather credible. It is simply not credible that absent prior violence an encounter between the two men could escalate to this level and be treated by the participants with such nonchalance.

2. The second factual situation which concerns the court is that the father absconded with the minor child and hid the child with the encouragement and aid of the paternal grandparents. It should be noted that the father’s version of the violent encounter with his father was initiated by a disagreement over whether to turn the child over in compliance with the order of this court. The paternal grandfather, according to the father, was violently opposed to the return of the child. The father admits that he absconded with the minor child in deliberate violation of the order of this court but denies that he knew of an order from a Court in South [sic] Carolina for the return of the minor child to the Petitioners. The paternal grandmother in her testimony admits that she was aware of the order of return entered by the South [sic] Carolina Court and that the father knew of the South [sic] Carolina Court order. The South [sic] Carolina attorney representing the father was present when the South [sic] Carolina order was entered. The court specifically finds the testimony of the father not credible on the issue of whether he knew about the South [sic] Carolina Court order ordering the return of the minor child to the Petitioners.

3. The Court finds that the Petitioners are of good character and have cared for the minor child in an exemplary way for most of the child’s life.

4. The Petitioners provide an excellent nurturing environment for the minor child and the child has bonded to the Petitioners.

5. During the time the Petitioners have had custody of the minor child the Petitioners have provided the entirety of the support for the minor child except for a sum of about $175 to $225 which was sent by the father for child support.

6. The father abdicated the financial support of the minor child to the Petitioners during the time that they have had custody of the minor child.

7. The only employment that the father has had during his adult life is working for the paternal grandfather on what is described as a part-time basis.

8. The paternal grandmother is also employed in the salvage yard business of the paternal grandfather even thought [sic] they have been divorced for many years.

10. The father has had quite a few brushes with the law with several arrests and at least one misdemeanor conviction. The home studies of the parties were admitted into evidence without objection. The father has had an arrest for possession of marijuana since the birth of the child. The father states that he was driving someone else’s car, without a driver’s license, because the mother of the child would not pick he and the child up. He claims he did not know the marijuana was in the car. Relative to the misdemeanor conviction, the father claims that he pleaded guilty to some sort of misdemeanor possession of stolen property case, even though he was innocent, to obtain a reduction of a felony charge.

11. The father admits to the use of controlled substances prior to the birth of the minor child and denies use thereafter.

12. The paternal grandfather has been twice convicted of felonies and served prison time many years ago.

13. The father has Attention Deficit Disorder with hyperactivity. The paternal grandfather and father both describe him as continually going on to something which appears more challenging.

14. The father dropped out of high school as a freshman and has been working on his GED for some time.

15.The father is unable to provide information about his income.

17. The father currently has a badly fractured leg and has had surgery on the leg and pin surgically implanted in the leg. The father is on crutches and will be unable to care for an active four-year-old without substantial assistance from other persons.

18. The father is presently on Medicaid.

19. The father states that the minor child will be supplied the best possible health insurance if he gets custody but does not say how he will pay for such insurance.

20. The father is completely dominated by the paternal grandfather and is completely dependent on his father, mother and grandmother for maintenance of his living environment and support.

22. The mother is living in Florida with another man by whom she has a baby. As described above the father chose to hide with the minor child rather than return the child to Petitioners pursuant to two court orders.

      . When referring to William Council or Marilyn Council individually, we call them "William” and "Marilyn.” Collectively, we refer to them as "Respondents.”

      . All rule references are to Missouri Supreme Court Rules (2000) unless otherwise stated.

      .In The Matter of T.A.P. and in Williams our standard of review was according to Rule 73.01, the predecessor to Missouri Rule of Civil Procedure 84.13(d) (2000).

      . The court, in making findings of fact, repeatedly refers to South Carolina when the record clearly shows the references should be to North Carolina. The Appendix must be read accordingly.

      . In figuring twenty-four months as the time Respondents had custody of C.D., we have disregarded the time they had custody of C.D. prior to the point that Appellant first became aware that he had a son. Also, we have disregarded the period of time Appellant had custody of C.D., between March 1997 and December 1997.