text:
    Laquita McDUFFIE, Claimant/Appellant, v. IBC, INC., and Division of Employment Security, Respondents.
    No. ED 86502.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 20, 2005.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Laquita McDuffie, St. Louis, MO, Appellant acting pro se.
   GLENN A. NORTON, Chief Judge.

Laquita McDuffie (Claimant) appeals from the Labor and Industrial Relations Commission (Commission) decision dismissing her application for review as untimely. We dismiss the appeal for lack of jurisdiction.

A deputy of the Division of Employment Security (Division) determined that Claimant was disqualified from unemployment benefits because she left work voluntarily without good cause attributable to her work her employer. Claimant appealed to the Appeals Tribunal, which dismissed her appeal. On March 31, 2005, the Appeals Tribunal mailed its written decision to Claimant. At the bottom of its decision, the Appeals Tribunal sets forth “Appeal Rights,” which advised Claimant that if she disagreed with the decision, she could file an application for review to the Labor and Industrials Relations Commission within thirty (30) days from the date of the decision. Claimant filed an application for review with the Commission on May 13, 2005. The Commission dismissed the application for review, concluding it was untimely. Claimant now appeals to this Court.

Section 288.200.1, RSMo 2000, provides that a claimant has only thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on March 31, 2005. Therefore, Claimant’s application for review to the Commission was due thirty days later. Section 288.200.1. Claimant filed her application for review to the Commission on May 13, 2005, which is outside the thirty-day time limit.

This Court issued an order directing Claimant to show cause why her appeal should not be dismissed. Claimant has not filed a response to this order. The information provided to Claimant with the Appeals Tribunal’s decision clearly informed Claimant that she had to file an application for review within thirty days. The untimely filing of the application for review is a fatal error. The unemployment statutes provide no mechanism for filing a late application for review with the Commission. Crowden v. General Sign Co., 133 S.W.3d 562, 563 (Mo.App. E.D.2004). In addition, the timely filing of an application for review in an unemployment case is jurisdictional and requires strict compliance. Guebert v. Professional Installers, Inc., 128 S.W.3d 615, 615 (Mo.App. E.D.2004). Claimant’s failure to file a timely application for review divests the Commission, and ultimately this Court, of jurisdiction. Moore v. Northview Village, Inc., 125 S.W.3d 347, 348 (Mo.App. E.D.2004).

The Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE, J. and BOOKER T. SHAW, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael J. BOLTON, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. WD 65077.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.
    Ruth Sanders, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

Michael Bolton appeals the denial of his Rule 29.15 motion without an evidentiary hearing. Upon review of the briefs and the record, we find that Bolton was not entitled to an evidentiary hearing because his allegations of ineffective assistance of counsel were refuted by the trial transcript. The judgment is affirmed. We have provided the parties with a memorandum further explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 84.16(b).


author: PAUL M. SPINDEN, Judge.

text:
    In the ESTATE OF Donald R. ALEXANDER.
    No. WD 64651.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.
    Paul H. Gardner, Jefferson City, for Appellant.
    Erik Bergmanis, Camdenton, David Yarder, Versailles, for Respondents.
   PAUL M. SPINDEN, Judge.

The heirs of Donald R. Alexander’s estate appeal the circuit court’s judgment denying their request to remove Bonnie Wolf as personal representative of Alexander’s estate and their request for an award of interest on the money judgment entered by the circuit court in favor of the estate. We affirm the circuit court’s judgment.

Alexander and his wife, Maudie Alexander, executed a joint and mutual will on January 25, 1980. Article 1 of the will provided that neither Alexander nor his wife would revoke, change, alter, or amend the will “except that prior to the death of either of us this Will may be changed, canceled, annulled or amended by another Will or by a Codicil, duly executed by both of us.” Alexander and his wife made no amendments, changes, or modifications to the will before their deaths.

The will provided that upon the death of the first to die, the other spouse would have full power to all of the property. Upon the death of the second to die, the property was to be held in trust for their daughter, Doris Jean Alexander. Upon the death of their daughter, the residue of the estate was to be divided among Maudie Alexander’s siblings: one-third to Herbert Martin or his descendants, one-third to Ruth Hallam or her descendants, and one-third in trust for James Martin. Upon James Martin’s death, the will instructed that the trust should terminate and that the remainder of the assets should be distributed to Herbert Martin and Hallam or their descendants. Maudie Alexander and Doris Jean Alexander died before Donald Alexander died.

On August 5, 1993, Donald Alexander executed a revocable living trust agreement. Kenneth Oswald, an attorney, prepared the living trust according to Alexander’s request and direction. The trust named Alexander as “grantor” and Bonnie Louise Wolf as “trustee.” The trust provided that upon Alexander’s death the trust estate was to be distributed equally to Robin Barry, Ruth Hallam, Donna Henley, Stephanie and Laura LaDuke, and Bonnie Wolf. The trust also provided for a share to Pat Gray and to Bobbie Jones if they were caring for Alexander at the time of his death.

During September 1993, Wolf established an account for the trust at her bank in Pinehurst, North Carolina. Pursuant to written instructions from Oswald, Wolf removed funds from certificates of deposit owned by Alexander from his account at Mercantile Bank of Lake of the Ozarks and deposited the funds into the North Carolina account. The funds removed by Wolf and transferred to the trust account were calculated to equal the amount of Social Security benefits received by Alexander since the death of his wife, plus interest, totaling $68,890.62.

Alexander died on May 8, 1995, while he was domiciled in Miller County. The probate court admitted the joint and mutual will as Alexander’s last will and testament. The probate court appointed Wolf as personal representative of the estate after the named personal representative, Mercantile Bank of Eldon, declined to accept the appointment. Wolf filed an inventory of the estate, which showed assets of $25,970.12. This amount did not include the funds transferred to the living trust.

After Alexander’s death, Wolf made distributions from the living trust of $5,000 to Gray and Jones, pursuant to a settlement agreement entered into by the trust beneficiaries. Wolf also distributed $12,000 to Barry, Hallam, and Henley; a total of $12,000 to Stephanie and Laura LaDuke; and $11,890.62 to herself.

Herbert E. Martin, James E. Martin, and Patricia Ann Martin as descendants of Herbert Martin and Hallam are the surviving heirs under the joint and mutual will. In December 1995, they filed their petition for discovery of assets, removal of personal representative and revocation of independent administration with the circuit court and filed an amended petition during January 1996.

After a bench trial, the circuit court found that the money paid out of the living trust was an asset of the probate estate and ordered that it be paid back to the estate. The circuit court entered money judgments for Alexander’s estate against Jones for $5,000, Gray for $5,000, Henley for $12,000, Wolf for $11,890.62, and Hal-lam for $12,000. The court also ordered that the money judgment against Hallam was to be offset by the amount she was entitled to receive under the joint and mutual will. The circuit court found no just cause for removing Wolf as personal representative and ordered that all payments made on the money judgment should be made to the personal representative for deposit into the estate’s account. The court found in favor of the defendants on the remaining claims contained in the petition.

On September 9, 2004, Herbert E. Martin, James E. Martin, and Patricia Ann Martin filed a motion to amend the judgment to award prejudgment interest and to remove Wolf permanently as personal representative of the estate. The circuit court overruled this motion. Herbert E. Martin, James E. Martin, Patricia Ann Martin, and Hallam appeal the circuit court’s judgment.

In their first point, Alexander’s surviving heirs contend that the circuit court erred in refusing to remove Wolf as the personal representative of Alexander’s estate. They assert that Wolfs interests are antagonistic to the estate because she adversely withheld estate assets that she distributed to herself and because she breached her duty to look after the interest of the estate by not seeking trust distributions and interest on the money judgment awarded by the circuit court. We disagree.

Section 473.140, RSMo 2000, says:

If any personal representative becomes mentally incapacitated or is convicted of a felony or other infamous crime, or becomes an habitual drunkard, or in any manner incapable or unsuitable to execute the trust reposed in him, or fails to discharge his official duties, or wastes or mismanages the estate, or acts so as to endanger any corepresentative, or fails to answer any citation and attachment to make settlement, the court, upon its own motion, or upon complaint in writing made by any person interested supported by affidavit, after notice to the personal representative, and to the attorney of record, if any, of any personal representative who cannot be served with notice in this state, shall hear the matter and may revoke the letters granted.

The circuit court found that at all times Wolf followed the advice of counsel in the actions she took to fund and distribute from the living trust, and, although the circuit court did not agree with the legality of the trust, the circuit court found no just cause for removing Wolf as personal representative.

Although the trust was improper as found by the circuit court, this did not render Wolf incapable or unsuitable to execute the trust reposed in her, as Alexander’s heirs contend. No evidence exists in the record of bad faith, fraud, dishonesty, or an attempt to wrongfully deprive the heirs of property lawfully theirs, or an attempt to convert the property wrongfully to Wolfs use. In re Schwidde’s Estate, 363 S.W.2d 585, 589 (Mo.1963). Instead, the record establishes that Wolf, acting on the advice and the direction of counsel, transferred funds from Alexander to the trust and distributed the trust’s corpus in her capacity as trustee in accordance with the trust’s terms. These actions did not render her incapable or unsuitable to execute the trust reposed in her as personal representative of Alexander’s estate.

Alexander’s heirs assert that a conflict of interest exists between Wolfs personal interest as a beneficiary of the living trust and her fiduciary duties to the estate as personal representative. The conflict that exists, however, is between the terms of the living trust and the terms of the Alexanders’ will and are not due to any of Wolfs acts. Wolf merely distributed the assets of the trust in her capacity as trustee and in accordance with the terms of the trust, which was drafted according to Alexander’s direction.

Alexander’s heirs also contend that the circuit court erred in not awarding interest on the judgment it entered in favor of the estate. They assert that, because the funds distributed through the living trust were adversely withheld from the estate, Section 473.340.3, RSMo 2000, required the circuit court to assess interest on the judgment. We disagree.

Section 473.340.3 says in part:

If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld.

Even assuming that the trust beneficiaries adversely withheld property belonging to the estate, the record does not establish that the trust beneficiaries “transferred or otherwise disposed of’ the money distributed to them by the trust. The circuit court merely ordered the “return of the monies distributed from the Living Trust”; it did not render a money judgment against the trust beneficiaries for the value of the property because they had transferred or otherwise disposed of the property. Hence, interest was not mandatory in this instance.

To the extent that Alexander’s heirs contend that they are entitled to interest pursuant to another portion of Section 473.340.3, they are also mistaken. Section 473.340.3 says:

In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of.

An award under this provision is not mandatory but is a matter within the circuit court’s discretion. The circuit court did not err in not awarding interest on the judgment.

We affirm the circuit court’s judgment.

LISA WHITE HARDWICK, Presiding Judge, and PATRICIA A. BRECKENRIDGE, Judge, concur.

      . From the total of $69,890.62 distributed from the living trust, Barry and Stephanie and Laura LaDuke returned their distributions totaling $24,000 to Alexander’s estate pursuant to a compromise of debts due the estate approved by the court.

      . To the extent that Wolf and the other trust beneficiaries contend that no complaint in writing was made by a person interested supported by affidavit to remove Wolf as personal representative, Section 473.140, we disagree. Alexander’s heirs filed a First Amended Petition for Discovery of Assets, Removal of Personal Representative and Revocation of Independent Administration, which was a complaint in writing made by an interested person supported by affidavit.


text:
    Rita L. PATRICK, Appellant, v. Alfred A. BERVING, Cyrilla Berving, Rockport, Inc., Stinson Mag & Fizzell, P.C., Mark Kinzie, Respondent.
    No. ED 85590.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.

      Ted Frank Frapolli, St. Louis, MO, for appellant.
    Martin John Buckley, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J„ and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Rita Patrick (“Patrick”) appeals from the trial court’s judgment granting summary judgment in favor of Alfred A. Berv-ing, Cyrilla Berving, Rockport, Inc. (collectively, the “Bervings”), Stinson, Mag & Fizzell, P.C. and Mark Kinzie (collectively, the “Law Firm”) (the Bervings and the Law Firm shall collectively be referred to as “Respondents”) and finding there was no substantial evidence to support Patrick’s malicious prosecution claim against Respondents. We affirm.

Patrick alleges six points on appeal. In Points I — III, Patrick argues the trial court erred in granting summary judgment in favor of the Bervings because they lacked probable cause to initiate the underlying suit. The underlying suit in this case was affirmed in part and reversed and remanded in part by this Court, Alfred A. Berving, et.al. v. R & R Company et. al., 70 S.W.3d 10 (Mo.App. E.D.2002). In Point IV, Patrick argues the trial court erred in finding she did not have a cause of action for abuse of civil process against the Berv-ings for initiating the underlying suit. In Points V and VI, she argues the trial court erred in granting summary judgment in favor of the Law Firm because the Law Firm lacked probable cause in initiating the underlying suit and acted with malice.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    SOUTHTOWNE MACHINING, INC., Respondent, v. MICRODYNE PRODUCTS COMPANY, INC., Appellant.
    No. ED 84860.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.
    Jack F. Allen, Clayton, MO, for appellant.
    Andrew D. Dillon, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Microdyne Products Co., Inc., appeals from the trial court’s judgment finding in favor of Southtowne Machining, Inc., on its action on account for materials it had provided Microdyne and finding against Mi-crodyne on its counterclaim for damages arising out of late delivery.

We have reviewed the parties’ briefs and the record on appeal and find there is substantial evidence to support the trial court’s judgment. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, provided the parties with a memorandum, for their information only, setting forth the reasons for our decision.

The judgment is affirmed. Rule 84.16(b).


author: PATRICIA L. COHEN, Judge.

text:
    STATE of Missouri, Respondent, v. Walter HOWE, Appellant.
    No. ED 84992.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 20, 2005.

      Benicia Ann Baker-Livorisi, The Family Law Group, St. Charles, MO, for appellant.
    Margaret M. Eveland, St. Charles, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Walter Howe (“Defendant”) appeals from a judgment purportedly entered by the Circuit Court of St. Charles County, following a jury trial in which Defendant was found guilty of making a false police report. Defendant contends the trial court erred in entering a judgment and sentence without ruling on his motion for new trial and in erroneously admitting irrelevant evidence. Defendant also contends that he received ineffective assistance of counsel and requests remand because of an incomplete transcript. Because we do not have jurisdiction to consider this appeal, we dismiss.

Statement of Facts and Proceedings Below

Viewed in the light most favorable to the verdict, the evidence adduced at trial establishes that on September 18, 2003, Defendant called the police to report property damage to his son’s car. Defendant told Officer Brit Duncan that, while standing on his back porch at 10:00AM, he saw his neighbors, Amber Blazer and Richard Navarro, drive to his son’s car and hit the tail-lights with a stick. Defendant also made a written statement.

Upon investigation, however, Officer Duncan uncovered discrepancies in Defendant’s statement. Officer Duncan questioned Ms. Blazer, who said she was attending class at the University of Missouri-St. Louis at the time of the incident. She then gave Officer Duncan a surveillance tape, which showed that Defendant was not on his porch at the time of the alleged incident. After viewing the tape, Officer Duncan became suspicious of the allegation and confronted Defendant. Defendant told Officer Duncan that he was actually watching from a window in his kitchen, and made a second written statement to that effect. At that point, Officer Duncan turned the investigation over to Detective Kleinschmidt. Detective Kleinschmidt conducted further investigation and determined that Ms. Blazer was attending class and Mr. Navarro was at work at the time of the incident. During a third interview with police officers, Defendant admitted to lying about seeing Ms. Blazer and Mr. Navarro damage his son’s car, and made a written statement to that effect.

Following trial on July 14, 2004, a jury convicted Defendant of making a false police report in violation of Section 575.080. The jury recommended a sentence of a fíne and ninety days in jail. That same day the trial court entered a judgment and sentenced Defendant to ninety days in jail and a five-hundred dollar fíne. Defendant filed his motion for new trial on July 29, 2004. Without denying the motion for new trial, the trial court entered a second sentence and judgment on July 29, 2004, which was identical to the first sentence and judgment entered on July 14, 2004. Defendant appeals.

Discussion

Defendant contends in his first point that the trial court erred by entering the first judgment prior to the expiration of time to file a motion for new trial. In addition, Defendant asserts that the trial court erred in entering the second judgment without vacating the first judgment, without ruling on the motion for new trial and prior to the ninety-day period pursuant to Rule 29.11(g). In essence, the Defendant is challenging the jurisdiction of this court. The State concedes that this court does not have jurisdiction. We agree.

A defendant has fifteen days after return of the verdict in which to file a motion for new trial under Rule 29.11(b). State v. Hauser, 101 S.W.3d 320, 321 (Mo.App. E.D.2003); State v. Braden, 864 S.W.2d 8, 9 (Mo.App. E.D.1993). Rule 29.11(c) provides in pertinent part that “[n]o judgment shall be rendered until the time for filing a motion for new trial has expired, and if such motion is filed, until it has been determined.” In addition, Rule 29.11(g) states that “[i]f the motion is not passed on within ninety days after the motion is filed, it is denied for all purposes.” The trial court is not permitted to render judgment until the time for filing the motion for new trial has expired. Hauser, 101 S.W.3d at 321. Any judgment and sentence rendered before the expiration of the period for filing the motion for new trial is premature and void. Id.

Following the filing of a motion for new trial, the trial court cannot render judgment until the trial court has ruled on the motion. Braden, 864 S.W.2d at 9. If the motion for new trial is not ruled on within ninety days after the motion is filed, it is denied for all purposes. State v. Frezzell, 66 S.W.3d 762, 763 (Mo.App. E.D.2002). A judgment and sentence entered prior to a ruling on a timely motion for new trial, or the expiration of ninety days, is premature and void. See Frezzell, 66 S.W.3d at 763. See also State v. Herron, 136 S.W.3d 126, 128 (Mo.App. E.D.2004).

Where no final judgment is entered against a defendant, he has nothing from which to appeal. Herron, 136 S.W.3d at 128. Furthermore, without a final judgment, this court lacks jurisdiction and cannot resolve an appeal on the merits. Id. In such circumstances, we must dismiss the appeal and remand the case to the trial court. Hauser, 101 S.W.3d at 321.

Here, the trial court first sentenced Defendant and entered judgment prior to the expiration of the period for filing a motion for new trial. As a result, the first judgment and sentence rendered by the court is void and Defendant cannot appeal from that judgment. See Hauser, 101 S.W.3d at 321; Braden, 864 S.W.2d at 9. In addition, although the trial court entered a second judgment and sentence following the filing of the motion for new trial, it did so prior to a determination on the merits of the motion and before the expiration of ninety days from the date Defendant filed his motion. Accordingly, the second judgment and sentence is void. In the absence of a final judgment, we have no jurisdiction to hear the appeal and accordingly dismiss and remand to the trial court. Herron, 136 S.W.3d at 128.

Conclusion

We dismiss the appeal and remand to the trial court.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., Concur.

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

      . Because Defendant's first point is disposi-tive, we do not address his remaining points. State v. Herron, 136 S.W.3d 126, 127 (Mo. App. E.D.2004).


text:
    Michael ROBINSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85319.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 20, 2005.
    Gwenda R. Robinson, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Movant, Michael Robinson, appeals from the judgment denying his Rule 29.15 motion without an evidentiary hearing. On appeal, movant argues that his trial counsel rendered ineffective assistance by not objecting to an answer given by the victim during cross-examination.

The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 29.15(k). An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for our decision. The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Rodney BRADLEY, Appellant.
    No. ED 85061.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 20, 2005.

      Ellen H. Flottman, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Rodney Bradley (“Bradley”) appeals from the trial court’s judgment after his conviction by a jury of second degree assault of a law enforcement officer, Section 565.082, RSMo 2000. Bradley was sentenced as a prior and persistent offender to twenty years’ imprisonment.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No eiTor of law appears. An extended opinion reciting the detañed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 30.25(b).


text:
    Javier P. CALLEJA, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85780.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 20, 2005.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Deborah Daniels, Evan Joseph Buch-heim-co-counsel, Alison K. Brown-co-counsel, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Movant, Javier P. Calleja, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. On appeal, Movant argues that his counsel rendered ineffective assistance by failing to advise him that he would have to complete the Missouri Sexual Offender Program before he would be eligible for parole.

The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R. Crim P.2005, unless otherwise indicated.


author: GLENN A. NORTON, Chief Judge.

text:
    Walter COOPER, Claimant/Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 86622.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 20, 2005.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Walter L. Cooper, Florissant, MO, Appellant acting pro se.
   GLENN A. NORTON, Chief Judge.

Walter Cooper (Claimant) appeals from the Labor and Industrial Relations Commission (Commission) decision dismissing his application for review as untimely. We dismiss the appeal for lack of jurisdiction.

Claimant sought reassessment by the Appeals Tribunal after he received a notice of order of assessment of overpaid unemployment benefits. The Appeals Tribunal denied Claimant’s petition for reassessment and affirmed the assessment. Claimant appealed to the Labor and Industrial Relations Commission, which dismissed his application for review as untimely. Claimant then appealed to this Court.

Section 288.200.1, RSMo 2000, provides a claimant with thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Here, the Appeals Tribunal mailed its decision to Claimant on April 19, 2005. His application for review to the Commission was due thirty days later, on May 19, 2005. Section 288.200.1. His application for review was filed on June 2, 2005, and was untimely. This Court issued an order directing Claimant to show cause why the appeal should not be dismissed. Claimant has filed no response to the order.

The unemployment statutes do not provide any mechanism for filing a late application for review with the Commission. Crowden v. General Sign Co., 133 S.W.3d 562, 563 (Mo.App. E.D.2004). Claimant’s failure to file a timely application for review divests the Commission, and ultimately this Court, of jurisdiction. Moore v. Northview Village, Inc., 125 S.W.3d 347, 348 (Mo.App. E.D.2004).

The Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Franklin J. STITT, Jr., Appellant.
    No. WD 63825.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.

      Amy M. Bartholow, Appellate Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Leslie E. McNamara, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before SMITH, C.J., and LOWENSTEIN and ULRICH, JJ.
   Order

PER CURIAM.

Franklin J. Stitt, Jr., appeals the judgment of his convictions, following a jury trial in the Circuit Court of Buchanan County, of two counts of child molestation in the first degree, in violation of § 566.067. As a result of his convictions, the appellant was sentenced to consecutive seven-year terms of imprisonment in the Missouri Department of Corrections.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in overruling his motion for a continuance, based on a last-minute disclosure by one of the alleged victims two days before trial, that in addition to the appellant, her brother had also molested her, because in denying him a continuance, the court denied him his due process right to adequately prepare for trial. In Point II, he claims that the trial court erred in overruling his motion for a mistrial, based on the State’s remark in its opening statement, that: “I don’t expect [the appellant] to admit it now if he goes on the stand,” because it was a direct reference concerning whether the appellant would testify at trial that improperly focused the jury on that issue in violation of the appellant’s Fifth Amendment right not to testify.

We affirm pursuant to Rule 30.25(b).


author: ROBERT S. BARNEY, Judge.

text:
    Kevin HAFFEY and Diane Lewis, Appellants, v. GENERAC PORTABLE PRODUCTS, L.L.C., Respondent.
    No. 26437.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 22, 2005.

      Stuart H. King & W. Craig Hosmer, McDonald, Hosmer, King & Royce, P.C., Springfield, for Appellants.
    Nicholas Nagrich & Warford B. Johnson, III, Wallace, Saunders, Austin, Brown & Enochs, Springfield, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellants Kevin Haffey and Diane Lewis (variously “Plaintiff,” “Plaintiffs,” “Haffey,” or “Lewis”) filed an action in the Circuit Court of Greene County, Missouri, against Respondents Generac Portable Products, L.L.C. (“Generac”) and Sears Roebuck & Company (“Sears”) claiming damages to their building resulting from a fire on or about June 28, 2000, which Plaintiffs assert was caused by a defective and unreasonably dangerous 10,000 watt gas-powered generator manufactured by Generac. Sears was later dismissed from the litigation and the cause against Gene-rac was tried before a jury. The jury returned its verdict in favor of Generac and judgment was entered in accordance with the jury’s verdict. Plaintiffs now raise three points of trial court error involving the trial court’s failure to give three requested withdrawal instructions to the jury, as more folly set out below. We affirm.

The record shows that in 1993 Haffey purchased 42 acres of real property which was surrounded by land owned by the United States Forest Service. He later built a metal building on the property which was approximately 30 feet by 40 feet in size. In July of 1999, Haffey and Lewis met and thereafter decided to get married. By the following year, Haffey had altered the metal building such that approximately two-thirds of the building was used as a shop and the remainder was converted to an apartment for Plaintiffs; however, electric services were not available to the building because Haffey had not yet obtained a permit from the United States Forest Service to extend electrical lines through the surrounding national forest. Therefore, in order to provide electrical power to the building, Haffey purchased a 10,000 watt Sears Craftsman gas-powered generator. Haffey placed the generator on a concrete slab located on the west side of the building and he partially enclosed the generator with a metal roof and two walls. For ventilation purposes, he constructed the two walls such that the lower two to three feet were open to allow air to circulate around the generator.

On June 28, 2000, Haffey put gasoline into the generator and left the property. Later, Lewis returned to the property. She started the generator, let it warm up and then plugged in the electrical cord which powered the lights to the apartment portion of the building. About ten to fifteen minutes later, Lewis heard a “woosh-ing, crinkle sound coming from behind us outside ...” and the lights in the apartment began to flicker. Lewis went outside and discovered that the concrete pad and the west wall of the building were engulfed in flames. As a result of the fire, the building was completely destroyed and virtually all of its contents were incinerated.

Thereafter, Haffey and Lewis filed suit against Generac and Sears on theories of strict products liability, negligence, and breach of warranty.

During the trial, Plaintiffs offered two expert witnesses, Thomas Evans (“Evans”), a fire investigator, and Alan McGee (“McGee”), an electrical engineer. On direct examination Evans testified that the only fuel source which could have started the fire was the gasoline within the tank on top of the generator. He related that the point of origin of the fire was not at all consistent with an electrical fire. Further, he was able to exclude the propane system, which consisted of a propane tank and piping connected, as a fuel source to the refrigerator and water heater in the apartment.

McGee testified that he inspected the wiring system of the burned building on July 13, 2000, and opined the electrical system of the building did not cause the fire.

At trial, Haffey acknowledged that the product manual advised against “overfilling” the tank located on top of the generator and that he was careful to leave at least half an inch of space below the top of the tank when filling the generator with gasoline.

At the close of Plaintiffs’ case, Generac rested without offering any evidence. It is clear from our review of the record that during trial Generac vigorously cross-examined Plaintiffs’ witnesses, pointing out inconsistencies between deposition testimony and testimony at trial. In particular, Generac elicited testimony tending to show, or infer, that Haffey used the generator contrary to the operator’s manual by: (1) having “overfilled” the gas tank located on top of the generator; (2) placing the generator too close to the wall of the building preventing proper ventilation of the heat, gasoline, and attendant vapors which were emitted from the generator, thereby igniting a fire; and (3) leaving the portable generator in its original wooden crate when placing it on the concrete slab. Additionally, while Generac did not dispute that the fire originated with the 10,000 watt generator, it elicited cross-examination evidence tending to show that Plaintiffs had not proven an actual defect making the generator unreasonably dangerous when put to a reasonably anticipated use.

When Generac rested its case without presenting any evidence, Plaintiffs tendered three withdrawal instructions to the trial court which addressed issues they believed should not be presented to the jury. Instruction Number “A” sought the withdrawal of the issue of whether the propane system in the building caused or contributed to the cause of the fire; Instruction Number “B” sought the withdrawal of the issue of whether the electrical system of the building caused or contributed to the cause of the fire; and Instruction Number “C” sought the withdrawal of the issue of whether Haffey overfilled the gasoline tank on the generator. All three withdrawal instructions were refused by the trial court.

Plaintiffs were permitted to submit a verdict directing instruction based on MAI 25.04, Strict Liability-Product Defect (6th Ed.). As previously related, the jury returned its verdict in favor of Generac.

As a general rule, “plaintiff has the burden of proof and a verdict for defendant need not be supported by any evidence.” Feick v. Fenlon, 939 S.W.2d 537, 538 (Mo.App.1997). “ ‘Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it.’ ” Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999) (quoting Brown v. Mustian, 884 S.W.2d 365, 369 (Mo.App.1994)).

“Evidence in any suit should be relevant; and evidence that throws no light on the controversy should be excluded as it tends to confuse the issues and operate to prejudice a party before a jury.” Switzer v. Switzer, 373 S.W.2d 930, 939 (Mo.1964). “The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence.” Morehouse v. Behlmann Pontiac-GMC Truck Serv., Inc., 31 S.W.3d 55, 60 (Mo.App.2000).

“As a general rule, a witness may be asked any questions on cross-examination that tend to test accuracy, veracity, or credibility, or shake the witness’ credit by injuring his or her character.” Long v. St. John’s Reg’l Health Ctr., 98 S.W.3d 601, 606 (Mo.App.2003). “The trial court may not exclude relevant and material facts simply because counsel seeks to elicit such facts on cross-examination.” Id.

“[I]n situations involving the cross-examination of expert witnesses, parties are to be given wide latitude ‘to test qualifications, credibility, skill or knowledge, and value and accuracy of opinion.’ ” Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 60 (Mo. banc 1999) (citation omitted). “Where a witness’ prior inconsistent statement relates specifically to a paramount issue in the case, the trial court does not have discretion to prevent the impeachment of the witness through use of that statement.” Long, 98 S.W.3d at 606. In utilizing such statements, “[t]he form of the prior inconsistent statement does not matter.” Id. “In particular, a prior inconsistent statement of a witness who is available for cross-examination may be used as substantive evidence in a civil trial.” Id.; Phillips v. Am. Motorist Ins. Co., 996 S.W.2d 584, 593 (Mo.App.1999).

“This [C]ourt defers to the jury’s role of judging the weight of the evidence and the credibility of witnesses.” Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 682 (Mo.App.2002). “The jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony.” Id.

Withdrawal instructions may be given when evidence on an issue has been received, but there is inadequate proof for submission of the issue to the jury; when there is evidence presented which might mislead the jury in its consideration of the case as pleaded and submitted; when there is evidence presented directed to an issue that is abandoned; or when there is evidence of such character that might easily raise a false issue.

Stevens v. Craft, 956 S.W.2d 351, 355 (Mo.App.1997) (internal citations omitted). “A withdrawal instruction is also appropriate in clarifying damages for the jury.” Id. “ ‘While MAI 34.02 is called a “withdrawal” instruction, its use is not limited to withdrawing evidence which is accidently or improperly admitted. It is intended rather to clarify what the jury is to consider in assessing damages.’ ” Id. (quoting MAI 34.02, Committee Comment).

“Determining whether to give a withdrawal instruction is a matter that is within the trial court’s discretion.” Id. “An abuse of discretion occurs only when a trial court’s ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of careful consideration.” Id. “There is no abuse of discretion if reasonable persons could differ about the propriety of the trial court’s decision.” Stevens, 956 S.W.2d at 355.

Turning our attention to Point One, Plaintiffs contend the trial court erred by not giving the following withdrawal instruction, Instruction Number “A,” which reads as follows:

The issue of whether the propane system in Plaintiffs’ building caused or contributed to the cause of the fire is withdrawn from the case and you are not to consider such issue in arriving at your verdict.

Plaintiffs maintain “[t]he only evidence during trial established that the propane system was not the fuel source for the fire.” In support of that argument, Plaintiffs point to Evans’s testimony that he had examined the propane system and was able to exclude it as a potential source of fuel for the fire. This was supported by Evans’s findings that after the fire the propane lines were still intact and that it was not until after the fire began that the propane tank exploded.

Plaintiffs cite Harris v. Washington, 654 S.W.2d 303, 307 (Mo.App.1983), and similar cases, for the proposition that where there is evidence in a case which might raise a false issue, it is reversible error for the trial court to fail to give an instruction withdrawing such evidence from the jury’s consideration. Plaintiffs argue that the “nature and extent of Generac’s questions and argument regarding the propane system was reasonably likely to confuse or mislead the jury that the propane system was or could have been leaking and did or could have led to the fire.”

It is unclear to this Court exactly how Generac’s counsel may have confused or misled the jury. Clearly it was within Generac’s procedural right to cross-examine all of Plaintiffs’ witnesses to test their respective “accuracy, veracity or credibility....” Long, 98 S.W.3d at 606.

After reviewing the twenty-three pages of Generac’s closing argument, it is clear the thrust of the closing argument dealt with evidence elicited during cross-examination tending to show misuse of the generator by Plaintiff Haffey. Only two-thirds of one page of closing argument dealt with the issue of the propane system. It is difficult to perceive how a jury may have been misled or confused by this issue, particularly in light of evidence elicited during cross-examination tending to show misuse of the generator by Plaintiff Haf-fey. Based on the foregoing, we cannot say that the trial court abused its discretion by its refusal to authorize the giving of withdrawal Instruction Number “A.” Heifner v. Synergy Gas Corp., 883 S.W.2d 29, 34 (Mo.App.1994). We find no reversible error. Weisbach v. Vargas, 656 S.W.2d 797, 800 (Mo.App.1983). Point denied.

In their second point, Plaintiffs contend the trial court erred by refusing to give withdrawal Instruction Number “B,” which states that:

The issue of whether the electrical system in Plaintiffs building caused or contributed to the cause of the fire is withdrawn from the case and you are not to consider such issue in arriving at your verdict.

As best we discern, the thrust of Plaintiffs’ argument appears to be that there “was no evidence under which the wiring system could have started the fire or that such circumstances existed at the time of the fire.” Plaintiffs submit, “[fjrom opening statement through the questioning of the witnesses to closing arguments, Generac put at issue the wiring system of the building as an alternative cause of the fire.” Again, citing Harris, 654 S.W.2d at 307, and similar cases, Plaintiffs maintain Gene-rac raised a false issue which should have been withdrawn from the jury’s consideration.

Once more we observe that Generac properly exercised its right to cross-examine Plaintiffs’ witnesses regarding their factual observations and conclusions. “The trial court may not exclude relevant and material facts simply because counsel seeks to elicit such facts on cross-examination.” Long, 98 S.W.3d at 606. Furthermore, it is only logical that in a fire involving a building which uses electricity as energy to operate lights and appliances, cross-examination questions would be posed regarding electricity as a possible heat source for the ignition of the fire. Given the circumstances of the case, it is difficult for this Court to discern that this was a spurious issue.

Additionally, the fact that Plaintiffs submitted evidence tending to show that electrical wiring was not involved in the fire does not necessarily preclude the jury from making its own credibility, weight, and value determination regarding Plaintiffs’ witnesses. See Bland, 67 S.W.3d at 682. Indeed, the jury may believe or disbelieve any portion of submitted testimony. Id.

We also note, in retrospect, that in closing argument Generac’s counsel set out: “I’ve never tried to say there was an electrical cause to this fire, okay?” Counsel also related that “[t]here’s no issue regarding number one, the ignition source. Their own expert, Mr. McGee, stated, I think the heat source or the ignition source was the generator, and that’s fíne. I can live with that.” Given the foregoing, we hold the trial court’s refusal of withdrawal Instruction Number “B” was not an abuse of discretion nor was it reversible error. Point denied. See Weisbach, 656 S.W.2d at 800.

In their third and final point, Plaintiffs maintain the trial court also erred by not giving their tendered withdrawal Instruction Number “C.” Instruction Number “C” reads as follows:

The issue of whether Kevin Haffey overfilled the gasoline tank on the generator is withdrawn from the case and you are not to consider such issue in arriving at your verdict.

In conformity with their other two points, Plaintiffs maintain that the evidence presented and the arguments made by Gene-rac’s counsel were sufficient to create a reasonable likelihood that the jury would be “confused or misled into finding that Haffey overfilled the gas tank of the generator and/or that the overfilling of the gas tank caused or contributed to cause the fire yet there was no evidence to support such findings.”

Generac counters, however, that Plaintiffs premised their argument, in part, on the false assumption that there was no evidence by which the jury could find that Haffey overfilled the tank. Generac asserts there was evidence that Haffey did, indeed, overfill the gas tank of the portable generator and that in doing so he inadvertently led to the cause of the fire. Again, we note that the “jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony.” Bland, 67 S.W.3d at 682.

We observe that during trial, Evans, who testified for Plaintiffs, was asked whether or not he had information that Haffey had filled the gas tank to the top of the container, an action which would have been contrary to the warning contained in the generator’s product manual. Evans denied that Haffey had informed him that he had filled the gas tank all the way to the top. Generac’s counsel then refreshed Evans’s recollection as to his previous deposition testimony as follows:

I’m on page 18, Line 17, talking about the tank on the generator. When you were told the tank was filled, were you told it was filled all the way to the top? Were you told it was filled three-quarters full? What do you remember? Your answer was: ‘I really don’t remember. I — it might be in my report, I don’t know. For some reason, I think he told me — I think it was Kevin Haf-fey — told me that he’d filled it all the way up, but I don’t know.’

Additionally, the record shows Haffey testified on cross-examination that he was the last person to fill the fuel tank before the fire and that he filled the tank “fairly full.” Lewis also recalled that in her deposition testimony she said “we had a barrel of rags out in the front of the shop” for the purpose of wiping up gas and she acknowledged having previously used the rags to wipe up gas. Lewis also acknowledged that on the day of the fire Haffey had spoken with her on the phone and had told her that, “he’d filled [the generator] up with gasoline.”

The record further reveals that Plaintiffs’ experts, Evans and McGee, testified they had no opinion as to whether the fuel tank suffered a leak. When Generac’s counsel asked Evans, “Would you agree with me that an operator of a generator like this shouldn’t fill the gas tank all the way to the top, or within a half inch of the top?,” Evans answered, “I wouldn’t do it.” Evans also testified on cross-examination that it was “normal operation” for a manifold to become hot on a gasoline-powered engine and that the manifold of the generator was not defective. He further related that when gas vapor escapes out of the top of a gasoline tank it is an indication that the tank was too full, which could lead to liquid escaping and igniting due to the heat from the manifold.

Lastly, Generac’s counsel impeached Evans with prior deposition testimony in which Evans had testified that during his initial investigation of the fire he found the 10,000 watt generator less than two feet away from the wall of the building, a fact which, again, is contrary to the recommendations of the generator’s product manual.

For the reasons stated, we reject Plaintiffs’ contention that the trial court erred in refusing to give the proposed withdrawal instruction. This tendered instruction went too far in withdrawing from consideration evidence relating to the possible misuse of the generator by Plaintiff Haffey. “[S]uch evidence was properly admitted for the consideration of the jury in determining the existence of a defect and the causation of the accident.” Earll v. Cons. Alum. Corp., 714 S.W.2d 932, 938 (Mo.App.1986). Point denied.

The judgment is affirmed.

GARRISON, J., and BATES, C.J., concur.

      . Other, pertinent, evidentiary information will be developed in our discussion of Plaintiffs' points relied on.

      . "The essential elements of a strict product liability claim are (1) the defendant sold a product in the course of its business; (2) the product was then in a defective condition, unreasonably dangerous when put to a reasonably anticipated use; (3) the product was used in a manner reasonably anticipated; and (4) the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold.” Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 325 (Mo.App.2000).

      . In this connection, see discussion in Plaintiffs’ third point.


text:
    In the Matter of the CARE AND TREATMENT OF Troy SPENCER, a/k/a Troy L. Spencer, Appellant.
    No. 26241.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 22, 2005.

      Emmett D. Queener, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alana M. Barragan-Scott, Asst. Atty., Gen., Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellant Troy Spencer (“Spencer”) appeals from the judgment of the Circuit Court of Scott County, Missouri, which, following a jury trial, found Spencer to be a sexually violent predator (“SVP”) pursuant to the Sexually Violent Predators Civil Commitment Act (“SVPCCA”), sections 632.480-513, and ordered him committed to the custody of the Department of Mental Health for secure confinement. He now raises four points of trial court error, discussed below. This is the second appeal arising from the State’s efforts to commit Spencer.

The record reveals Spencer, who was fifty-four years old at the time of trial, began sexually abusing his daughter when she was six years old. On August 8, 1985, Spencer pled guilty to sodomy of his daughter. At the time of his guilty plea, Spencer estimated he abused his daughter between twenty-five and thirty times over a period of about four years. He stated that such abuse included touching his daughter’s vagina and having her perform oral sex on him. Spencer rationalized he was disappointed in his wife for not taking care of herself physically and that his daughter had become more desirable to him than his wife.

After Spencer’s guilty plea, a pre-sen-tence investigation (“PSI”) was performed. The PSI revealed Spencer had also pressured a sixteen-year-old virgin into having sex with him when he was twenty-two years old. Spencer further admitted that when he was sixteen years old, at the encouragement of his older brother, he had molested his nine-year-old sister. Additionally, in the course of receiving mental health treatment, Spencer admitted to having had sex with a fourteen to sixteen-year-old girl in the Philippines while he was in the Navy.

On November 14, 1985, Spencer was sentenced to fifteen years in the Missouri Department of Corrections; execution of the sentence was suspended and Spencer was placed on supervised probation. In accordance with the terms of his probation, Spencer was ordered to admit himself to Fulton State Hospital for inpatient treatment; however, in violation of the terms of his probation, he failed to report to the treatment program and instead left the State of Missouri. Having violated the terms of his probation, Spencer’s conditional release was revoked on February 27, 1986, and he was ordered to serve the fifteen years in prison which had previously been suspended.

While incarcerated, Spencer was placed in the Missouri Sex Offender Program (“MoSOP”) four times between 1994 and 2000. Each time he was terminated for either being disruptive or refusing to participate.

In January of 2001, the State filed a petition alleging that Spencer was a SVP. On September 28, 2001, after a bench trial, the trial court entered its judgment and commitment order, having first found Spencer, “beyond a reasonable doubt, to be a sexually violent predator.” Spencer, 103 S.W.3d at 413.

Subsequently, in May of 2002, the Supreme Court of Missouri held, inter alia, that in any commitment case under the SVPCCA, a jury must make a finding as to whether the person subject to commitment has serious difficulty controlling his or her behavior. Thomas v. State, 74 S.W.3d 789, 791-92 (Mo. banc 2002). As a result of the Thomas ruling, Spencer successfully appealed the trial court’s commitment order on the grounds that the State had not proven, and the trial court made no finding, that Spencer had serious difficulty controlling his behavior. Spencer, 103 S.W.3d at 413. In light of Thomas, this Court “determined] that the judgment of the trial court should be reversed and the cause remanded to allow the State the opportunity to present evidence and make a submissible case under the Thomas standard.” Id. at 416; see also Thomas, 74 S.W.3d at 791-92. On remand, the trial court was instructed to make a specific finding as to whether Spencer had serious difficulty controlling his behavior. Id. at 417. Spencer was tried a second time before a jury on March 17-19, 2004. As previously related, Spencer was found to be a SVP and committed to the custody of the Department of Mental Health for secure confinement. He now raises four points in his appeal, discussed below.

Under § 632.480(5) ... a sexually violent predator is

any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:
(a) Has pled guilty or found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030 ... of a sexually violent offense; or
(b) Has been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13,1980.

In re Care and Treatment of Burgess, 147 S.W.3d 822, 830 (Mo.App.2004) (quoting § 632.480(5)).

At trial, the State ha[s] the burden of proving, beyond a reasonable doubt, that [the defendant] (1) has a congenital or acquired condition affecting his emotional or volitional capacity that predisposes [him] to commit sexually violent offenses to a degree that causes [him] serious difficulty controlling [his] behavior; and (2) that [he] is more likely than not to engage in predatory acts of sexual violence if not confined.

In re Coffel, 117 S.W.3d 116, 121 (Mo.App.2003); see also § 632.480(2); § 632.480(5); § 632.495; Thomas, 74 S.W.3d at 791-92.

The same evidentiary standard is used for commitment of sexually violent predators as is used for criminal cases. In re Care and Treatment of Amonette, 98 S.W.3d 593, 600 (Mo.App.2003). Therefore, when reviewing the sufficiency of the evidence we must determine “whether the evidence presented to the jury was sufficient for twelve reasonable jurors to have believed beyond a reasonable doubt that appellant is a sexually violent predator.” Id. We view the evidence in the light most favorable to the jury verdict, disregarding all contrary evidence and inferences. Burgess, 147 S.W.3d at 830. To reverse a jury’s verdict when challenged as not supported by sufficient evidence, there must be a “complete absence of probative fact” in support of the jury’s conclusion. Smith v. State, 148 S.W.3d 330, 335 (Mo.App.2004).

In the present matter, the record reveals that the State’s experts were Dr. Jay Englehart and Dr. Bruce Harry and that Dr. Luis Rosell testified for Spencer. Additionally, Dr. Harry Hoberman was called by the State to rebut Dr. Rosell’s testimony. The evidence and inferences favorable to the judgment are summarized below.

Jay Englehart, M.D., is the senior psychiatrist and medical director at the Missouri Sexual Offender Treatment Center. Dr. Englehart supervised Spencer’s treatment beginning in May of 2001, and had reviewed all of Spencer’s records. Dr. Englehart diagnosed Spencer with the following disorders: pedophilia, attracted to females, non-exclusive type; delusional disorder, grandiose type; and personality disorder. Dr. Englehart described pedophilia as an attraction to underage persons for sexual gratification, which lasts for a period of more than six months, and causes significant problems for the person who has that attraction. Dr. Englehart based his pedophilia diagnosis on Spencer’s past behavior such as the molestation of his daughter; his history of sexual activity with under-aged females; and a report by another psychologist containing a statement by Spencer that he is attracted to six to ten-year-old girls.

Dr. Englehart also described “delusional disorder, grandiose type” as a disorder in which the subject has the false belief that he has powers or abilities that are much greater than what he has ever been able to demonstrate or that the subject believes he has special contact with God. He noted that a person with this disorder will maintain these beliefs despite evidence to the contrary. As for “personality disorder,” Dr. Englehart described that disorder as one in which a person has certain problematic personality traits which extend over a long period of time.

Dr. Englehart opined that one has to look at Spencer’s entire history in order to make the proper psychological diagnoses. By reviewing Spencer’s records, Dr. En-glehart learned the following concerning Spencer’s prison history.

According to his records, Spencer does not take personal responsibility for his past behavior, but instead blames his actions on his diet. Spencer was diagnosed with paranoid personality disorder in 1989, but refused treatment. Thereafter, he had an episode in 1992 where he was: writing furiously, pacing, refusing to wear clothes and was becoming increasingly agitated. At that time, a psychologist described Spencer’s “content of speech as obviously delusional, grandiose, with excessive religiosity,” and noted that “the form of [Spencer’s] speech [was] as the word ‘salad;’ ” a phrase which indicated the most severe form of thought disorder. Furthermore, Spencer claimed he had been released from prison through prayer when, in fact, he was still incarcerated. Also, Spencer believed that a therapist had a romantic interest in him while he was in MoSOP.

At one point, Spencer had generated over 400 pages of grievances, abuse and neglect allegations, and treatment team requests. Spencer also had numerous rule violations while incarcerated, and was known to write threatening letters demanding his release to various public officials.

Due to Spencer’s bizarre behavior, Dr. Englehart made the decision to involuntarily medicate Spencer in December of 2001. The involuntary medication order did not take effect until June of 2002, during which time Spencer was known to stand on his head, explaining that getting more blood flow to his head would release stress and allow him to be stronger. He would also drink excessive amounts of water either to become water-intoxicated or to manipulate his way off the ward to use the restroom. Also he would frequently be verbally abusive of staff and other patients.

After Spencer was involuntarily medicated his behavior improved markedly. Despite the apparent improvement, Spencer told Dr. Englehart that he would not continue taking medication if he were released.

At the time of the trial, Dr. Englehart was treating Spencer with the anti-psychotic medication, Risperdal. According to Dr. Englehart, when Spencer was not on anti-psychotic medication he was abusive towards others, he would become very religiously preoccupied and he would suffer from “thought disorders].”

Also testifying on behalf of the State was Dr. Bruce Harry, a forensic psychiatrist who works for the Department of Mental Health and for the University of Missouri, School of Medicine. Dr. Harry performed a court ordered evaluation of Spencer in 2004 in order to determine whether Spencer suffered from a mental abnormality and/or was a SVP. As part of his court ordered evaluation, Dr. Harry reviewed all documentation made available to him regarding Spencer’s history. As a result, Dr. Harry diagnosed Spencer with the following disorders: pedophilia, sexually attracted to females, non-exclusive type; delusional disorder, grandiose type; and personality disorder not otherwise specified with narcissistic features. Dr. Harry explained that pedophilia was a “recurrent pattern of intense emotional and other affective or mood-type behaviors or simple acts of repetitive involvement with underage children....” Further, he described a delusional disorder as “a mental disorder that has predominantly one kind of psychotic symptoms, which are delusions, which are fixed, false beliefs that are not shared by other people in the same culture or subculture.”

During his testimony, Dr. Harry referenced Spencer’s belief that he had a highly specialized relationship with God that no one else had and stated that such beliefs were evidence of “delusional disorder, grandiose type.” He noted that Spencer’s long pattern of holding himself out as superior to others was evidence of his “personality disorder with narcissistic features.” He also explained that Spencer’s history of writing letters to various officials demanding his release was further evidence of his feelings of “grandiosity” and “entitlement.” Dr. Harry opined that Spencer had “very intense, distorted religious beliefs” which he used “as a way of venting his anger towards people in an unrealistic manner.”

Dr. Harry also explained that Spencer’s diagnosis of pedophilia was based upon Spencer’s molestation of his daughter over a four-year period, which went on even after he was caught by his wife, as well as the sexual molestation his younger sister. Dr. Harry stated that although these incidents occurred over twenty years ago, Spencer still suffered from pedophilia. Additionally, Dr. Harry noted that Spencer had not successfully completed the sex offender treatment program.

According to Dr. Harry, Spencer met the statutory requirements for a SVP: he suffered from a mental abnormality that made it seriously difficult for him to control his behavior; he was more likely than not to engage in predatory acts of violence if not confined to a secure facility; and he is predatory because his primary purpose in molesting his daughter was victimization.

Dr. Luis Rosell, a clinical psychologist, testified for Spencer. Dr. Rosell, referencing risk factors from recidivism studies, opined that Spencer was not at a high risk to re-offend. However, when testimony revealed that Spencer currently had a girlfriend with two young children, who was also a nanny by profession, Dr. Rosell expressed his concern about Spencer being around the children in the event he was released.

Dr. Harry Hoberman, a forensic psychologist, was called by the State to rebut Dr. Rosell’s testimony. Dr. Hoberman opined that Dr. Rosell misapplied the relevant risk factors when assessing Spencer’s likelihood of re-offending.

In his first point on appeal, Spencer essentially contends there was “insufficient evidence to prove beyond a reasonable doubt” that his “diagnosed pedophilia presented a current danger to engage in predatory acts of sexual violence if not confined.... ” Similarly, in his second point he asserts that his “diagnoses of delusional disorder and personality disorder, not otherwise specified,” are “insufficiently precise to identify mental abnormalities limited to future risk of sexual offending, but rather suggest only a propensity to criminality....”

We need not reach the issues set out in Spencer’s second point because Spencer’s first point does not dispute that pedophilia is a mental abnormality for purposes of the SVPCCA. Here, the expert testimony at trial clearly showed that Spencer presently suffers from pedophilia, and that such a mental abnormality predisposes Spencer to commit sexually violent offenses to a degree that causes him serious difficulty in controlling his behavior and that more likely than not he will engage in predatory acts of sexual violence if not confined. In re Care and Treatment of Collins, 140 S.W.3d 121, 126 (Mo.App.2004).

Spencer essentially argues the State did not prove his diagnosed pedophilia created a current danger that he would engage in predatory acts of sexual violence. As support, Spencer cites to Dr. Harry’s testimony that there was no indication at the time of his examination that Spencer had current sexual fantasies regarding children.

As previously related, the State must prove Spencer suffers from a “mental abnormality,” as defined in section 632.480(2), and that the mental abnormality causes the person “serious difficulty” in controlling his behavior. Thomas, 74 S.W.3d at 792. Additionally, section 632.480(5) requires the State to prove that the person is “more likely than not to engage in predatory acts of sexual violence if not confined.” Coffel, 117 S.W.3d at 121. Such proof necessarily embraces the determination that Spencer presents a current danger to engage in predatory acts of sexual violence.

Viewing the evidence in the light most favorable to the jury verdict, Burgess, 147 S.W.3d at 830, the jury heard testimony from at least three experts which determined Spencer suffered from pedophilia. While Spencer argues that Dr. Harry testified there was “no indication at this time or at the time of my examination” that Spencer had current sexual fantasies regarding children, nevertheless, Dr. Harry, as well as Spencer’s expert, Dr. Rosell, both diagnosed Spencer as currently suffering from pedophilia, as did Dr. Engle-hart. The record also reveals Dr. Harry related that because Spencer sexually abused his daughter for four years, even after being caught by his wife, and because he had not completed a sex offender treatment program, it was more likely than not that Spencer would re-offend.

Dr. Rosell, testifying on behalf of Spencer, stated that based on relevant factors Spencer was not at a high risk to re-offend; however, Dr. Rosell’s testimony was rebutted by Dr. Hoberman. Dr. Hob-erman asserted that Dr. Rosell applied the term “incest offender” incorrectly when assessing Spencer’s risk to re-offend. Dr. Hoberman related Spencer was not an incest offender because he had “acknowledged several ... underage female victims who are outside his family.” Dr. Hober-man also stated this factor “has a significant effect on the expected base rate for sex offense recidivism.” He further opined that Dr. Rosell had improperly stated that Spencer had refused treatment, when in fact he had been terminated from treatment. Dr. Hoberman explained that “when you get kicked out of treatment once, let alone four times, that dramatically increases ... your risk of re-offending.”

Also, as previously recited, Dr. Engle-hart testified that Spencer’s molestation of his daughter, his history of sexual activity with under-aged females, and his statement that he is attracted to six to ten-year-old girls were all relevant in his diagnosis. Furthermore, there was testimony that Spencer did not take personal responsibility for the abuse of his daughter.

Additionally, the State presented evidence that when he was not on anti-psychotic medication, Spencer’s behavior was very aggressive, abusive and erratic. Further, Spencer indicated that he was unwilling to medicate himself if he were released from commitment.

As best we discern, no expert witness has suggested that Spencer’s pedophilia is in remission. Dr. Harry testified that Spencer’s pedophilia has not gone away due to the mere lapse of time. It is apparent from the jury’s verdict that it chose to believe Dr. Harry’s determination that Spencer was more likely than not to re-offend. “It was within the jury’s domain to make a credibility determination as to whose expert testimony it chose to believe.” Collins, 140 S.W.3d at 126. The mere fact that Spencer may have lacked access to young girls while incarcerated cannot logically support his claim that the State failed to establish any recent, overt sexual acts. We find that the evidence was sufficient to prove beyond a reasonable doubt that Spencer was a sexually violent predator. Points One and Two are denied.

In his third and fourth points on appeal, Spencer raises two related arguments. In Point Three, he contends the trial court abused its discretion and plainly erred in denying his pretrial motion to exclude expert testimony on the necessary element of “serious difficulty controlling his behavior.” Specifically, Spencer asserts the trial court erred in permitting Dr. Harry to testify that in his opinion Spencer has serious difficulty controlling his behavior, because there was an “insufficient foundation for the admission of Dr. Harry’s testimony in that there is no reasonably reliable basis or methodology upon which psychologists can determine an individual’s ability to control behavior.” Similarly, in Point Four, Spencer contends the trial court abused its discretion and plainly erred in denying Spencer’s motion to exclude expert testimony and in permitting Dr. Harry’s testimony because the “determination of whether a person has shown serious difficulty controlling behavior is one lay persons can make on the basis of their own experience, rendering an expert opinion on this issue inadmissible.”

We note that Spencer filed a pretrial motion to exclude expert testimony relating to whether Spencer has serious difficulty controlling his behavior. His motion was denied. The State then presented evidence in the form of Dr. Harry’s testimony that Spencer has serious difficulty controlling his behavior. However, Spencer’s counsel posed no objection to such testimony; accordingly, Spencer’s third and fourth points cannot be considered in this appeal. See Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993) (holding that “[sjince there was no objection to the testimony of plaintiffs experts, there is no issue of admissibility presented and none is preserved for appeal”). Spencer now requests plain error review.

Rule 84.13(c) provides that: “Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” “Plain error review is seldom granted in civil cases and ‘may not be invoked to cure the mere failure to make proper and timely objections.’ ” Gill Constr., Inc. v. 18th & Vine Auth., 157 S.W.3d 699, 723 (Mo.App.2004) (quoting Guess v. Escobar, 26 S.W.3d 235, 241 (Mo.App.2000)).

More importantly, given the factual circumstances of this case, is the fact that plain error “cannot be used to ‘revive issues already abandoned by selection of trial strategy or by oversight.’ ” In re Swearingen, 42 S.W.3d 741, 746 (Mo.App.2001) (quoting French v. Mo. Hwy. & Transp. Comm’n, 908 S.W.2d 146, 153 (Mo.App.1995)). Here, on direct examination of his own expert, Dr. Rosell, defense counsel asked Dr. Rosell about his opinion as to whether Spencer had serious difficulty controlling his behavior. “Ordinarily, a party cannot complain on appeal about a procedure adopted in the trial court at his or her own request, nor may an appellant complain of alleged error, which by such person’s conduct at trial, he or she joined in or acquiesced or invited.” Carter v. St. John’s Reg’l Med. Ctr., 88 S.W.3d 1, 19 (Mo.App.2002). That rule attends here and precludes any finding of manifest injustice or miscarriage of justice resulting from the admission of Dr. Harry’s testimony relating to whether Spencer had serious difficulty controlling his behavior. See id. Points Three and Four are denied.

The judgment is affirmed.

SHRUM, P.J., and GARRISON, J., concur.

      . Unless otherwise stated, all statutory references are to RSMo 2000. Rule references are to Missouri Court Rules (2005).

      . See Spencer v. State, 103 S.W.3d 407 (Mo.App.2003).

      . ”[A]n expert ... may be permitted to rely on such information as long as the information is not offered as independent substantive evidence and serves only as background for the expert's opinion.” Burgess, 147 S.W.3d at 832.

      . On March 16, 2002, Spencer yelled to a staff member, "[y]ou are so fat I hope you have a heart attack and die. That's what I’m hoping for.” At one point Spencer jumped on his bed took his clothes off and said to staff, "[y]ou want some of this?” while shaking his penis and threatening to urinate on the walls.

      . See In re Care and Treatment of Pate, 137 S.W.3d 492, 497-98 (Mo.App.2004) (holding that "personality disorder” qualified as mental abnormality where defendant suffered from an acquired condition, narcissistic personality disorder with antisocial features, demonstrated by an ongoing pattern of grandiosity, need for admiration, lack of empathy for victim and manifested by a pattern of sexual aggression targeting women).