author: LAWRENCE G. CRAHAN, Judge.

text:
    Vincent REDEL and Rita Redel, Respondents, v. CAPITAL REGION MEDICAL CENTER, Appellant.
    No. ED 84559.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 10, 2005.

      Charles J. McPheeters, Edward C. Clausen, Jefferson City, MO, for appellant.
    Patrick J. Berrigan, Kathleen M. Hagen, Kansas City, MO, for respondent.
   LAWRENCE G. CRAHAN, Judge.

Capital Region Medical Center (“Hospital”) appeals the judgment entered upon a jury’s verdict in favor of Vincent Redel (“Patient”) and Rita Redel (“Wife”) (collectively “Plaintiffs”) for Hospital’s medical negligence. We affirm in part and reverse and remand in part.

On October 26, 1998, Patient underwent bilateral knee replacement surgery, or surgery replacing both of his knees, at St. Mary’s Hospital in Jefferson City, Missouri. Upon completion of the surgery, Patient’s orthopedic surgeon, Dr. Timothy Galbraith, ordered Patient to receive physical therapy, including therapy through the use of a continuous passive motion (“CPM”) machine. A CPM machine moves the knee joint through a predetermined range of motion without requiring the patient to use any leg muscles to do the work. Application of the CPM machine was intended to prevent Patient’s knees from becoming stiff due to lack of movement following surgery.

During the five days Patient remained at St. Mary’s after surgery, Patient made steady progress in his recovery, and by October 30 he had 110 degrees of flexion in both knees and could walk with minimal assistance. Patient was discharged from St. Mary’s on October 30 and transferred to Hospital for continued rehabilitative treatment. When Patient arrived at Hospital, he initially was able to ambulate twenty feet with minimal assistance and had almost normal ankle strength. However, the oxygen level in Patient’s blood began to drop that night, rendering Patient hypoxic. Hospital admitted him into the intensive care unit (“ICU”). While in the ICU, Patient was anemic and suffering from an abnormally high heart rate. Patient was also confused, disoriented and agitated, was unable to recognize Dr. Galbraith, and was eager to get out of the ICU and go home.

Beginning at 7:00 in the evening on October 31, Nurse Cynthia Mote took charge of Patient. According to Dr. Galbraith’s notes regarding Patient, Patient was to receive CPM therapy. Nurse Mote was not familiar with administering CPM therapy and asked for assistance from Nurse Jennifer Moyer. At some point, Nurse Mote asked Patient whether he would allow her to administer CPM therapy and he refused. According to Wife, sometime in the morning of November 1, Nurse Mote explained to her that Patient had to undergo CPM therapy and had Nurse Moyer help apply the first CPM machine to one of Patient’s legs. After Nurse Moyer left the room, Nurse Mote had trouble putting the second CPM machine on Patient’s other leg, so Wife helped her. With both machines moving his legs, Patient was confused and disoriented. He kept moving around, tossing and pulling himself by the bed handles, and flipping the machines so that they were knocked out of alignment. The machines continued to move his legs.

Dr. Galbraith arrived at Hospital while Patient was strapped into the CPM machines lying sideways rather than on his back. He took the machines off of Patient and stated that he was concerned that Patient was so confused he likely could not express the degree of pain he was in. He was also disappointed that Hospital personnel failed to follow his verbal orders to watch Patient closely because of his disorientation and to only place Patient in one CPM machine at a time.

About two hours after the CPM incident, physical therapist Mary Rakestraw discovered that Patient had “drop foot,” a condition meaning that Patient lost all dor-siflexion in both ankles so that he could no longer lift either of his feet up by the ankle. Shortly after his discharge from Hospital, Patient was fitted with special braces to hold his feet in place so that he could walk. In addition, over time, neurologists assisted him in finding pain medications to reduce the severe pain Patient experienced since his stay at Hospital. Plaintiffs then filed an action against Hospital based on the negligent treatment that caused permanent drop foot to Patient.

At trial, among other witnesses, Plaintiffs presented physical therapist Kathy Allison to testify regarding the standard of care applicable to the use of CPM therapy. Ms. Allison testified that based on her education, experience, and her review of the available literature, applying a CPM machine to a confused patient and applying two units at once is unacceptable. Plaintiffs also called Dr. Brenda Woods, who specializes in physical medicine and rehabilitation, to testify regarding her treatment of Patient, which involved assessing whether Plaintiff would benefit from coming into Hospital’s rehabilitation unit after Patient was discharged from the ICU. Plaintiffs asked Dr. Woods general questions about when and in what way it is appropriate to administer CPM therapy to a patient. Plaintiffs called Ms. Rakestraw and physical therapist Jason Gorene to testify regarding their rehabilitative treatment of Patient. Both Ms. Rakestraw and Mr. Gorene testified that they never apply two CPM machines to one patient at the same time.

By playing a video-taped deposition, Plaintiffs presented the testimony of Dr. Bernard Abrams regarding what caused Patient’s drop foot and, over objection, that Patient’s medical expenses were reasonable. In testifying about Patient’s medical bills, Dr. Abrams also testified that Patient would need to take medication for the rest of his life and replace his $2000 braces every three to five years. Plaintiffs called economist Dr. John Ward to explain the actual damages Plaintiffs incurred from Patient’s injury. In doing so, Dr. Ward described Patient’s former employment as a business-owner running a combination convenience store and automotive garage. He also calculated Patient’s past and future medical expenses based on Patient’s medical bills.

Finally, Plaintiffs called Patient and Wife to testify about the incident and how it has affected their lives. Wife noted that, in addition to going through two braces since 1998, Patient requires $200 orthopedic shoes. At the close of evidence, the jury returned a verdict in favor of Plaintiffs. Patient was awarded $163,000 for past economic damages, including medical expenses, $300,000 for past non-economic damages, $25,000 for future medical expenses, $187,000 for future economic damages excluding medical damages and $200,000 for future non-economic damages. Wife was awarded $75,000 for past non-economic damages and $50,000 for future non-economic damages. The trial court entered judgment in the amount of $875,000 in favor of Patient and $125,000 in favor of Wife. This appeal follows.

In its first point on appeal, Hospital argues that Plaintiffs failed to make a submissible case because they did not establish that Hospital failed to meet an objective standard of care. When reviewing whether a plaintiff makes a submissi-ble case for negligence against a defendant, we view the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all favorable evidence and reasonable inferences to be drawn therefrom, and we disregard all evidence contrary to the plaintiffs claim. Ladish v. Gordon, 879 S.W.2d 623, 627-28 (Mo.App.1994). For Plaintiffs to demonstrate a prima facie claim for medical malpractice, they must establish the following elements: (1) proof that the act or omission failed to meet the requisite standard of medical care; (2) proof that the act or omission was performed negligently; and (3) a causal connection between the act or omission and the claimed injury sustained by the plaintiff. Delisi v. St Luke’s Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170,173 (Mo.App.1985).

Specific to Hospital’s claim, to make a submissible case on Hospital’s failure to satisfy the requisite standard of care, Plaintiffs are required to show that Hospital failed to exercise that degree of skill and learning ordinarily exercised under the same or similar circumstances by members of its profession. Id.; M.W. v. Jewish Hosp. Ass’n. of St Louis, 637 S.W.2d 74, 76 (Mo.App.1982) (applying medical malpractice standard of care to hospitals). The general rule requires that Plaintiffs put forth expert medical testimony establishing the appropriate standard of care. Delisi, 701 S.W.2d at 173. Expert testimony is not required, however, if the defendant’s own testimony establishes the standard of care. Id. In addition, no expert testimony is necessary where the basis of a plaintiffs claim of negligence is the nurse’s failure to follow a doctor’s orders. Daugherty v. N. Kansas City Mem’l Hasp., 570 S.W.2d 795, 797 (Mo.App.1978).

In Daugherty, the patient brought a claim against her treating hospital because a nurse failed to switch an ice pack on her throat from side to side every two hours, as ordered by the patient’s doctor, resulting in permanent and progressive Bell’s Palsy to the patient’s face. Id. at 796-97. The hospital argued on appeal that the patient failed to make a submissible case because she produced no expert medical evidence that the nurse’s conduct violated any standard of care. Id. at 796. The court held that no expert testimony was necessary because patient’s claim was based on the failure of the nurses to follow the doctor’s orders. Id. at 797. In making its decision, the court stated that the calling of an expert witness to testify that the failure of a nurse to follow a doctor’s orders was a violation of the expected standards of the nurse’s profession would be an empty gesture. Id. The court further stated that the rationale for the rule is that there is no peculiar need for expert testimony on any issue within the jury’s ordinary lay knowledge and experience. Id.

Like the patient in Daugherty, Plaintiffs’ claim of negligence was based on Nurse Mote’s failure to follow Dr. Galbraith’s orders to administer CPM therapy to only one of Patient’s legs at a time and to monitor Patient closely to the extent Patient was disoriented. Thus, it was unnecessary for Plaintiffs to offer expert testimony that it was a violation of the standard of care to use two CPM machines at once or to apply CPM therapy when Patient was disoriented. Accordingly, Plaintiffs presented a submissible case on this basis alone.

Plaintiffs also established the standard of care through various employees of Hospital who testified regarding the appropriateness of placing a patient in two CPM machines at the same time. For instance, when Plaintiffs asked Gorene, “Well, a nurse shouldn’t put two CPMs on one person, period, right?,” Gorene responded “Correct. We never do that.” Rakestraw also testified that it is never appropriate to put a patient in two CPM machines at the same time. Finally, Dr. Woods testified that, as a rehab specialist in medicine familiar with CPM therapy, she does not order bilateral CPMs to be done at the same time and that it would be extremely difficult to do so.

Reviewing this evidence, we find that Delisi also assists in our analysis of Hospital’s contention. In Delisi, the plaintiff injured his hand on a rusty knife and claimed that his doctor violated the standard of care by failing to prescribe certain antibiotics that would have prevented the plaintiff from developing an infection that caused damage beyond the damage he would have suffered from the original knife wound. 701 S.W.2d at 173. At trial, the plaintiffs offered no evidence other than reading excerpts from the defendant doctor’s deposition, during which the doctor did not specifically state that he was applying an objective standard of care. Id. The doctor and hospital argued on appeal that the plaintiff failed to make a submissible case because the plaintiff did not adduce substantial evidence proving that the doctor failed to satisfy the requisite standard of medical care. Id. The appellate court held that even though the plaintiff put forth no independent expert medical testimony, the doctor’s own testimony, both in the excerpts and the testimony he presented on his own behalf at trial, established the standard of care. Id. at 174.

Like the doctor’s testimony in Delisi, Hospital’s employees did not specifically refer to the medical community at large in their testimony. Nevertheless, Hospital’s employees testified in general terms that it is not appropriate to administer CPM therapy using two CPM machines at the same time. Under Delisi, this testimony is sufficient to establish the standard of care without additional expert testimony.

Relying on Ladish, Hospital focuses solely on Ms. Allison’s testimony, arguing that it failed to establish that she was applying an objective, profession-wide standard of care to the actions of the nurses at Hospital so that the jury had no way to know what standard was being used. We disagree. In Ladish, the plaintiff underwent surgery to remove genital warts. 879 S.W.2d at 626. After surgery, the plaintiff experienced some complications including a great deal of swelling in her genital area and adherence of the labial lips which required separation. Id. at 627. She brought an action against the doctor for negligence based on the doctor’s treatment of her condition. Id. On appeal, the doctor argued that the plaintiff failed to make a submissible case because she failed to establish the standard of care. Id. The appellate court found that in most instances, the evidence the plaintiff presented regarding the standard of care did not sufficiently inform the jury of the applicable standard of care. Id. at 629-33. In doing so, it noted that the plaintiffs expert witness tended to merely state that “it might have been more appropriate” if the plaintiffs doctor acted differently. Id. In addition, the expert frequently based his testimony on assumptions that the plaintiff did not prove were actually true. Id.

In holding that the plaintiff did not make a submissible case for several of her theories of negligence, the Ladish court reasoned that the use of the terms “accepted medical standards” and “standards of care” do not in themselves satisfactorily articulate the appropriate legal standard. Id. at 634. Instead, care should be taken by counsel in every case, with every expert witness, to make sure the expert is properly oriented with regard to the meaning of the concept of negligence in the instance of a health care provider. Id. It is not enough that a jury instruction informs the jury of the meaning of negligence or that some other witness testifies to that witness’s understanding of negligence in that context. Id. Rather, it is necessary in each case that the fact-finder be informed as to whether the witness, in offering opinions, is using the standard prescribed by law and not some other standard. Id.

We find that Ms. Allison’s expert testimony is distinguishable from the testimony of the plaintiffs expert in Ladish. Unlike the expert in Ladish, Ms. Allison did not merely state that another use of the CPM machines at Hospital would have been more appropriate. Moreover, she did not state that she would administer CPM therapy differently in her own practice without any reference to the general physical therapy community. While Ms. Allison did not recite the legal definition of the standard of care, we find that her explanation of the standard of care is sufficiently objective. Indeed, Ms. Allison states that in making her conclusions she relied on medical literature and her education. Although the attorney asked whether in her opinion use of two CPMs is improper, it is reasonable to infer from Ms. Allison’s earlier testimony that she was still applying the objective standard she described with regard to administering CPM therapy to a confused patient..

The principles set forth in Ladish do not require that a plaintiff establish the standard of care in a particular manner, only that the plaintiff must adequately inform the jury as to the appropriate standard of care. Ladish, 879 S.W.2d at 634. We find that Ms. Allison’s testimony adequately describes the standard of care applicable to use of CPM machines regardless of whether she was responding to questions of Plaintiff or of Hospital. Consequently, when viewed in the light most favorable to Plaintiffs, Plaintiffs’ evidence adequately established the appropriate standard of care. Hospital’s first point is denied.

In its second point, Hospital argues that the trial court erred in allowing Dr. Abrams to testify that Patient’s medical bills were reasonable and necessary because he did not disclose these opinions when Hospital examined him during their deposition. We disagree. We review the trial court’s decision to admit or exclude evidence for abuse of discretion. Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003). Judicial discretion is abused when the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Green v. Fleishman, 882 S.W.2d 219, 223 (Mo.App.1994). If reasonable persons can differ about the propriety of the trial court’s action, then it cannot be said that the trial court abused its discretion. Id.

Rule 56.01(b)(4) sets forth the requirements for obtaining discovery of facts and opinions held by experts. Under Rule 56.01(b)(4), a party is entitled to obtain through pre-trial discovery by interrogatories or by deposition the facts known and opinions held by experts whom the other party expects to call as a witness at trial. Id.; Gassen v. Woy, 785 S.W.2d 601, 603 (Mo.App.1990). Where a party responds to an interrogatory and subsequently learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing, a party has a duty to seasonably amend the prior response. Rule 56.01(e). Although Rule 56.01(e) does not refer to answers given during a deposition, the discovery rales and case law establish the principle that when an expert witness has been deposed and later changes his opinion before trial or bases that opinion on new or different facts from those disclosed in the deposition, it is the duty of the party intending to use the expert witness to disclose that new information to his adversary, thereby updating the responses made in the deposition. Gassen, 785 S.W.2d at 604.

In this case, during the course of discovery, Hospital made an interrogatory request for information regarding any experts Plaintiffs intended to produce and about what subject matter the experts intended to testify. Plaintiffs responded that Dr. Abrams was expected to testify about Patient’s condition and treatment and the reasonableness of the medical bills stemming from those treatments. When Hospital took Dr. Abrams’s deposition, they did not ask any questions regarding the reasonableness of Patient’s medical bills. At the conclusion of the deposition, the following exchange occurred:

Q. Have I gotten all your opinions just by accident?
A. Well, I think by design. I certainly wouldn’t deem your skill of getting my opinion, but I’m gonna have to give you my standard caveat which always makes everybody cringe: I only answer questions, you know. I don’t propound them, okay?
Q. At least you’re not—
A. And I think that you know me, that I wouldn’t try to in any way deceive you.
Q. Right.
A. I don’t know what [Plaintiffs’ attorney] is gonna ask me, but I think that you have generally covered, you know, what I would anticipate her asking me.

Plaintiffs deposed Dr. Abrams about four months later. During Plaintiffs’ examination of Dr. Abrams, Dr. Abrams testified regarding the reasonableness of Patient’s medical bills over Hospital’s objection. The trial court permitted Plaintiff to play a videotape of this deposition at trial.

Relying on Gassen, Hospital argues that Dr. Abrams did not mention that Plaintiffs may ask him questions regarding the reasonableness of Patient’s medical expenses when he stated that Hospital generally covered the' opinions about which he anticipated Plaintiffs would ask him during Hospital’s deposition. Consequently, Hospital contends that Plaintiffs had a duty to disclose to Hospital that they would ask him questions regarding the additional subject matter of the reasonableness of Patient’s medical bills and present this testimony at trial. While we agree with the principle set forth in Gassen, we disagree that a violation occurred in this case.

In Gassen, the defendant’s expert changed his opinion testimony at trial, warranting trial court action to minimize the surprise to the plaintiff. 785 S.W.2d at 602-03. In contrast, Dr. Abrams did not change his opinion or base it on new or different facts from those disclosed to Hospital. Notwithstanding his statement that he thought Hospital generally covered what Plaintiffs were going to ask him, Dr. Abrams specifically stated that he was answering the questions propounded to him. Hospital does not argue that any of Dr. Abrams’s answers regarding subject matter covered at their deposition differed from any subsequent responses. Thus, since any testimony regarding the reasonableness of Patient’s medical bills would not be a new opinion or an opinion based on new or different facts, Plaintiffs were under no duty to amend Dr. Abrams’s responses. Since Plaintiffs disclosed to Hospital prior to the deposition that they would ask for Dr. Abrams’s opinion with regard to the reasonableness of Patient’s medical bills, the trial court did not abuse its discretion in admitting Dr. Abrams’s testimony. Hospital’s second point is denied.

In its third point, Hospital argues that the trial court erred in failing to order periodic payments of future damages pursuant to section 538.220. Under section 538.220.2, at the request of any party made prior to entry of judgment, the trial court shall include in the judgment a requirement that future damages be paid in whole or in part in periodic or installment payments if the total award of damages in the action exceeds $100,000. Because the statute grants the trial court broad discretion in establishing a plan for periodic payment of future damages, we review the trial court’s decision in this regard on the basis of arbitrariness. Davolt v. Highland, 119 S.W.3d 118, 138 (Mo.App.2003) (citing Vincent v. Johnson, 833 S.W.2d 859, 866 (Mo. banc 1992)).

Prior to entry of the trial court’s judgment, Hospital made a motion for the court to allow it to pay any judgment rendered over the amount of $100,000 in installments. The trial court’s judgment did not provide for payment in installments and denied Hospital’s motion to amend the judgment to allow periodic payments. In them brief, Plaintiffs argue that the trial court’s action was proper because Hospital’s motion to pay the judgment in installments did not comply with section 538.220.2. While we acknowledge that, by requesting payment in installments for any judgment rendered, Hospital’s motion included amounts not subject to periodic payment under section 538.220.2, we find that Hospital’s request was in substantial compliance with the statute and sufficient to require the trial court to determine what portion of Plaintiffs’ future damages should be subject to periodic or installment payments. Cf. State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 696 (Mo.App.1990) (granting party’s request for change of judge despite her failure to adopt the literal language of the statute since the language of her motion was in substantial compliance with the statute).

Plaintiffs argue under Davolt that the trial court had discretion to order no periodic payments despite Hospital’s request. We disagree. Davolt involved a dispute between the parties with regard to the amount of future damages that should be subject to periodic payments. 119 S.W.3d at 137. The court of appeals affirmed the trial court’s decision to reduce the amount subject to periodic payments by $100,000. Id. at 138-39. Although the appellate court acknowledged the trial court’s broad discretion in establishing a plan for periodic payment of future damages, from which Plaintiffs apparently infer that the trial court can exercise discretion to order no periodic payments, the court also emphasized that, by using the mandatory term “shall,” the statute directs the trial court to include in its judgment the requirement that future damages be paid in periodic or installment payments, either in whole or in part. Id. at 138.

Davolt’s characterization of the word “shall” in section 538.220.2 as mandatory is farther bolstered by the legislature’s reasons for enacting the statute. As the Missouri Supreme Court observed in Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503 (Mo. banc 1991), it is readily understood from the history and text of Chapter 538 that the enactment is a legislative response to the public’s concern over the increased cost of health care and the continued integrity of that system of essential services. Id. at 507. To give effect to the legislative intent of Chapter 538, the protections of the chapter must be provided to health care providers. Redfield v. Beverly Health & Rehab. Servs., Inc., 42 S.W.3d 703, 713 (Mo.App.2001). Where properly applied, the statute permits defendants to satisfy a judgment for future damages in periodic or installment payments to help reduce costs to insurance companies and reduce insurance premiums, thereby making medical services less expensive and more available than would otherwise be the case. Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 905 (Mo. banc 1992). In light of the legislative policy underlying section 538.220, we find that a trial court is not permitted to disregard the statute’s mandatory language and decline to order periodic payments.

Because section 538.220.2 clearly applies to the jury’s verdict in this case, we hold that the trial court abused its discretion in failing to establish a plan for periodic or installment payments of Plaintiffs’ future damages in whole or in part as required by the statute. Accordingly, we reverse the judgment in this respect and remand the case to the trial court to establish an appropriate plan.

In its final point, Hospital argues that the trial court erred in failing to reduce the judgment because the jury awards for future medical damages and future economic damages exceeded the amounts demonstrated by Plaintiffs’ evidence. Specifically, Hospital argues that the jury awarded Plaintiffs $25,000 for future medical damages even though Dr. Ward only projected $13,523 in future medical expenses. With regard to future economic damages, Dr. Ward projected a total of $115,360, yet the jury awarded Plaintiffs $187,000.

The assessment of damages is primarily the function of the jury. Ince v. Money’s Bldg. & Dev., Inc., 135 S.W.3d 475, 478 (Mo.App.2004). We will not disturb a trial court’s entry of judgment on a jury verdict unless there is an abuse of discretion either by the trial court or by the jury. Id. In addition, if the amount of the award is within the range of evidence, that determination is not erroneous although it is not precisely in accordance with the evidence of either of the parties. Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo.App.1992).

In support of its argument, Hospital cites Hobbs v. Harken, 969 S.W.2d 318 (Mo.App.1998) and Ince. In Hobbs, the appellate court reversed a jury’s verdict because it was based on an unreliable expert opinion estimating the plaintiffs future damages. 969 S.W.2d at 325. In particular, the expert’s assumption that the plaintiffs condition would last for twenty years lacked evidentiary support so that a verdict based on the expert’s testimony was not supported by admissible evidence. Id. Because the jury awarded the plaintiff an amount in excess of the future lost earnings and medical expenses testified to by the expert, the court could not say that the size of the verdict was not prejudicial, requiring a reversal and remand for new trial on all issues. Id.

In Ince, the evidence demonstrated that the maximum total damages for the cost of repair and diminution of value for the plaintiffs’ home was about $183,000. 135 S.W.3d at 480. The appellate court held that the jury’s verdict of $420,000 exceeded the upper limit of fair and reasonable compensation for damages sustained by the plaintiffs. Id. The court then affirmed the judgment on condition of remittitur. Id.

Unlike the verdicts in Hobbs and Ince, the damages amounts in this case are not based on faulty assumptions and do not exceed the upper limit of fair and reasonable compensation for damages sustained by Plaintiffs. As Plaintiffs note in their brief, the jury heard evidence of other medical expenses in addition to those Dr. Ward testified to, including the need for special shoes, which currently cost about $200 a pair, and the need to replace Patient’s $2000 braces over the course of Patient’s sixteen-year life expectancy, resulting in an $11,000 expense after replacement every three years. The jury did not abuse its discretion in considering these expenses in addition to those included in Dr. Ward’s projection.

As to Plaintiffs’ future economic expenses, the jury did not abuse its discretion in considering Dr. Ward’s testimony that his projection was based on a conservative estimate of Plaintiffs’ lost earnings in light of the nature of Plaintiffs’ business. For instance, Dr. Ward testified that Plaintiffs only drew out of the corporation what they needed to live on (about $20,000 per year) and that an owner’s actual salary from a family-owned business is only part of the owner’s compensation. Finally, Dr. Ward specifically stated that his projection assumed that Patient would retire at about sixty-five years old, yet Plaintiffs testified that Patient intended to work well beyond sixty-five. Thus, the jury’s award of Plaintiffs’ future economic damages was within the range of evidence. Carmel Energy, 827 S.W.2d at 783. Hospital’s fourth point is denied.

We reverse the judgment insofar as it fails to comply with section 538.220.2 and remand for a determination of the manner in which future damages shall be paid in periodic or installment payments. In all other respects, the judgment is affirmed. Costs on appeal shall be borne by Hospital.

LAWRENCE E. MOONEY, P.J., and MARY K. HOFF, J., concur.

      . All references to Rules are to Mo. R. Civ. P.2005 unless otherwise indicated.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, ex rel. Carol Russell FISCHER, Director of Revenue, Respondent, v. Marlon KING, Appellant Pro se.
    No. WD 64967.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    Application for Transfer to Supreme Court Denied June 28, 2005.
    Marlon King, King City, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Sarah E. Ledgerwood, Office of Attorney General, Jefferson City, for Respondent.
    Before JAMES M. SMART, JR., Presiding Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

Marlon King appeals a judgment in favor of the Director of Revenue for unpaid Missouri income taxes for the years 1994, 1995 and 1998.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


text:
    Tonya DAVIS, Appellant, v. DIVISION OF EMPLOYMENT SECURITY and Landmark Dodge, Inc., Respondents.
    No. WD 64435.
    Missouri Court of Appeals, Western District.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 2005.

      Samuel McHenry, Kansas City, for Appellant.
    Michael Shipley, Kansas City, for Landmark Dodge, Inc.
    Cynthia Quetsch, Jefferson City, for Division of Employment Security.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Tonya Davis appeals the Labor and Industrial Relations Commission’s decision that she is not eligible for unemployment benefits because she voluntarily left her job with Landmark Dodge, Inc., without good cause attributable to her work or to her employer. We affirm. Rule 84.16(b).


author: PER CURIAM.

text:
    Heather WIDMAN, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
    No. WD 64247.
    Missouri Court of Appeals, Western District.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 2005.
    Phillip A. Burdick, St. Joseph, appellant.
    Matthew F. Mulhern, Kansas City, respondent.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM.

Heather Widman appeals from the trial court’s grant of summary judgment in favor of American Family Mutual Insurance Company. Widman, a resident of Minnesota, brought an action to recover underin-sured motorist benefits from American Family for injuries she suffered in a car accident in Missouri. American Family’s summary judgment motion claimed that choice of law rules required the application of Minnesota law and that a Minnesota statute barred recovery against American Family.

Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


author: LISA WHITE HARDWICK, Judge.

text:
    STATE of Missouri, Respondent, v. James E. LYBARGER, Appellant.
    No. WD 62887.
    Missouri Court of Appeals, Western District.
    June 14, 2005.

      Amy M. Bartholow, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   LISA WHITE HARDWICK, Judge.

James Lybarger appeals from his jury conviction on two counts of second-degree robbery, § 569.030, and two counts of attempted second-degree robbery, § 564.011. He contends the trial court erred in denying his pretrial motions to dismiss the charges based on alleged violations of the Interstate Agreement on Detainers (IAD), § 217.490. He also contends the evidence was insufficient to support his conviction on one of the second-degree robbery charges. Finding no error, we affirm the convictions.

I. Factual and PROCEDURAL History

Lybarger’s convictions arise from a series of robberies and attempted robberies that occurred in Clay County, Missouri, on October 13-14, 1999. One day after the crime spree, Lybarger was apprehended in Kansas pursuant to a Missouri “stop order.” He was arrested and convicted on Kansas charges and then placed in the custody of the Kansas Department of Corrections (KDOC) to serve a fifteen month sentence.

The history of Lybarger’s interstate transfer from Kansas to Missouri is the basis for his claims of error under the IAD. The State of Missouri issued three detainers against Lybarger while he was in the custody of the KDOC.

The first detainer was issued on October 15, 1999, in Clay County Case No. 4474, wherein Lybarger was charged with one count of second-degree robbery. The KDOC informed Lybarger about the de-tainer on December 19, 2000. Two months later, on February 23, 2001, Lybarger was given written notice of the detainer and his right to disposition of all pending matters in Missouri for which any detainer had been lodged against him.

The State issued a second detainer against Lybarger on December 1, 1999, in connection with a five-count indictment in Clay County Case No. 5085 (the case at issue in this appeal). Count I of the indictment presented the same robbery allegations as Case No. 4474. Kansas prison officials received the detainer on February 16, 2000, and informed Lybarger about it on February 18, 2000. Lybarger received written notice of the detainer in Case No. 5085 and his right to disposition of the charges on March 5,2001.

The State issued a third detainer against Lybarger on Jackson County Case No. 6592, which involved first-degree robbery and armed criminal action charges unrelated to the Clay County charges. Lybarger received notice of the third detainer against him on December 27, 2000.

In February 2001, Lybarger agreed to sign the requests for disposition of the pending charges on the first and third detainers. He signed and submitted the request in Case No. 4474 on February 23, 2001. He signed and submitted the request in Case No. 6592 on February 27, 2001. Lybarger never signed the written notice and request for disposition of charges on Case No. 5085. However, his written requests in Case No. 4474 and Case No. 6592 included the following ac-knowledgement:

Your request for final disposition will operate as a request for final disposition of all untried indictments, information or complaints on the basis of which detain-ers have been lodged against you from the state to whose prosecuting official your request for final disposition is specifically directed.... Your request will also constitute a consent by you to the production of your body in any court where your presence may be required in order to effectuate the purposes of the Agreement on Detainers[J

Pursuant to Lybarger’s signed request for disposition of the charges in Case No. 4474, the KDOC released him to the temporary custody of Clay County on April 4, 2001. By that time, the Clay County Circuit Court had dismissed Case No. 4474 because the single count of second-degree robbery was included in the five-count indictment in Case No. 5085. The court filed Lybarger’s signed request in Case No. 5085, and the State proceeded to prosecute him in that case. A superseding indictment dropped one count, leaving Ly-barger charged with two counts of second-degree robbery and two counts of attempted second-degree robbery. Between June 2001 and April 2003, Lybarger filed several motions requesting dismissal of the charges based on alleged violations of the IAD. All of the motions were denied after an evidentiary hearing.

At the jury trial, Lybarger was convicted on all four counts in Case No. 5085. He was sentenced, as a prior and persistent offender, to thirty-year prison terms on the second-degree robbery charges and twenty-year terms on the attempted second-degree robbery charges. The court ordered the Count I and Count III robbery and attempted robbery charges to be served consecutively, as well as Counts II and IV, for a total of fifty years imprisonment.

II. Points on Appeal

A. INTERSTATE AGREEMENT ON DETAINERS

In his first two points on appeal, Lybar-ger contends the trial court erred in denying his motions to dismiss the indictment in Case No. 5085 based on alleged violations of the IAD. Lybarger argues he only consented to be transferred to Clay County on the detainer in Case No. 4474 and, thus, the State had no jurisdiction to prosecute him on the charges in Case No. 5085. He further argues his constitutional due process rights were violated when the KDOC failed to promptly inform him of his right to disposition of the detainer lodged against him in Case No. 5085.

Our review is de novo, as both points raise questions of law as to whether the trial court properly applied the law in refusing to dismiss the indictment. State v. Rousseau, 34 S.W.3d 254, 259 (Mo.App.2000). To the extent the application of law is based on the evidence presented, we view the facts in a light most favorable to the judgment, giving deference to the trial court’s factual findings and credibility determinations. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998)

The IAD is a congressionally-sanctioned interstate agreement that permits a prisoner in one state to seek disposition of criminal charges filed against him by second state. Lancaster v. Stubblefield, 985 S.W.2d .854, 855 (Mo.App.1998). The primary purpose of the agreement is to provide for prompt disposition of detain-ers, and it must be liberally construed to effectuate this purpose. State ex rel. Suitor v. Stremel, 968 S.W.2d 221, 222 (Mo.App.1998); § 217.490, Art. IX.

As adopted by Missouri and other states (including Kansas), the IAD requires prison officials to “promptly inform” the prisoner of any detainer lodged against him and of his right to request final disposition of an indictment, information, or complaint pending in the second state. § 217.490, Art. Ill, ¶ 3. A prisoner’s request for disposition of the charges must be in writing and shall operate as a request for final disposition of all untried charges for which detainers have been issued by the second state. Id. at ¶ 1, 4. Upon receipt of the written notice, the second state can take temporary custody of the prisoner and must dispose of the pending charges within 180 days. Id. at ¶ 1.

Pursuant to the IAD, the State of Missouri issued three detainers against Lybarger while he was incarcerated with the KDOC. Lybarger does not dispute that he was informed about the existence of all three detainers before he signed the request for disposition of the charges in Clay County Case No. 4474 and Jackson County Case No. 6592. Both written requests included an express acknowledgment that they would operate as a request for final disposition on all outstanding detainers. Thus, by executing these requests, Lybar-ger consented to be tried on any and all Missouri charges for which detainers had been lodged against him. Id. at Paragraph 4. Once he was transferred to Clay County based on the request in Case No. 4474, the State had jurisdiction to prosecute the five-count indictment in Case No. 5085 because Lybarger was fully aware that a detainer existed on those charges when he agreed to the temporary extradition.

The jurisdiction of Missouri courts was not affected by the dismissal of Case No. 4474 after Lybarger had submitted his written request of disposition in that case. Lybarger had agreed to be prosecuted on all pending detainers and not just the second-degree robbery charge in Case No. 4474. Moreover, regardless of the validity of his request in Case No. 4474, he signed an identical request for the final disposition of all charges in Case No. 6592. The State had alternative grounds for exercising jurisdiction over Lybarger in Case No. 5085 based on his agreement to be transferred to Missouri in Case No. 6592. Point I is denied.

Lybarger argues in Point II that his constitutional due process rights were violated because KDOC officials failed to “promptly inform” him of his right to request disposition in Case No. 5085, as required by the IAD. § 217.490, Art. Ill, ¶ 3. The KDOC informed Lybarger about the detainer in Case No. 5085 on February 18, 2000, just two days after receiving it from the State of Missouri. Lybarger contends, however, that he did not receive written notice of his right to request disposition of the five-count indictment until March 5, 2001, more than one year after Kansas officials received the detainer. We note, initially, that written notice is not required in the IAD provision directing prison officials to “promptly inform” the prisoner of pending detainers. Id. In addition, the record reflects factual disputes as to whether Lybarger was actually informed about his right to disposition of the charges in Case No. 5085 in February 2000, when he first learned about the de-tainer.

This factual issue was addressed by the trial court in ruling on the pretrial motions to dismiss. The court held a hearing on the motions, at which Lybarger declined to testify despite the fact that he had the initial burden, as movant, of presenting evidence to show a violation of the IAD. See State ex rel. Hammett v. McKenzie, 596 S.W.2d 53, 59 (Mo.App.1980). Following the hearing, the court made the following findings:

From the evidence before the court, and evidence not presented, it is a fair inference that [Lybarger] was given advice of his rights pertaining to disposition of detainers by the Kansas authorities, but the formal paperwork that contains the written advice of such rights did not get prepared until [Ly-barger] told the Kansas authorities he wanted to proceed.
This is not the only Missouri case which resulted in a detainer. The written exhibits that were presented to the court reflect that the formal paperwork for disposition of detainers was always prepared when he advised he wanted to proceed and was not prepared when he advised he wanted to wait a while.
On [Lybarger’s] motion, he had the burden of proof. He did not testify. He was a direct participant in everything that happened or didn’t happen. It is another fair inference that he was not called as a witness because his testimony would not have supported his claim that he was not advised of his rights until the formal paperwork was prepared.

Based on the evidence and arguments presented at the motion hearing, the trial court concluded that Lybarger had received prompt verbal notice of his right to proceed on the charges in Case No. 5085, and that such notice was sufficient to satisfy the requirements of the IAD. We must defer to the court’s factual determination that the verbal notice included information about the detainer and Lybarger’s right to request disposition of the charges, because there is sufficient evidence in the record to support that finding. The parties offered conflicting documentary evidence on the issue of notice, and the court reasonably determined that Lybarger was unable to carry his burden of proof without testifying as to when he first knew about his right to request a final disposition of the charges in Case No. 5085.

We further find no error of law in the court’s determination that the KDOC met its IAD obligation to “promptly inform” Lybarger by giving him verbal notice of his rights within two days after the Kansas officials received the detainer in Case No. 5085. § 217.490, Art. Ill, ¶ 3. The statute does not require that initial notice to the prisoner be made in writing, and nor does it specify a time period for prompt notification. In his brief on appeal, Lybarger concedes that notice provided to the prisoner within one year of the state’s receipt of the detainer would be reasonable and timely. Accordingly, Lybarger’s due process rights were not violated when the KDOC notified him of the detainer within a few days of its filing in Kansas. The trial court properly overruled his motion to dismiss. Point II is denied.

B. Sufficiency of the Evidence

In his final point, Lybarger contends the trial court erred in denying his motion for acquittal because the evidence was insufficient to support the second-degree robbery charge in Count I. Specifically, he argues there was no evidence that he forcibly stole property in violation of Section 569.030.1.

Our review of this claim is limited to a determination of whether the record contains sufficient evidence from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998). We accept as true all evidence favorable to the State, including all favorable inferences to be draw from the evidence, disregarding inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

To obtain a conviction for second-degree robbery, the State must prove that the defendant forcibly stole property. § 569.030.1. Forcible stealing occurs when the defendant uses or threatens the immediate use of physical force upon another person for the purpose of:

(a) Preventing or overcoming resistance to the taking of the property or to the immediate retention thereof immediately after the taking; or
(b) Compelling the owner of such property or another person to deliver up the property or to engage in conduct which aids in the commission of the theft[.]

§ 569.010(1).

In support of the Count I allegation of second-degree robbery, the State presented evidence that Lybarger entered a TCBY store in Clay County at approximately 8:00 p.m. on October 13, 1999. He approached a store clerk at a side counter and said, “This is a robbery.” When the clerk asked if he was serious, Lybarger replied, ‘Tes, don’t panic, give me the money out of the register.” Lybarger kept his right hand in his pocket as he spoke to the clerk. The clerk testified she was fearful Lybarger had a weapon in his pocket. She removed $200 in bills from the cash register and gave them to Lybar-ger. He fled the store and was later apprehended by the Kansas police pursuant to a stop order.

Lybarger contends the State failed to prove he forcibly stole the money because there was no evidence he used or threatened physical force to compel the clerk to comply with his démand. Although the clerk believed Lybarger had a weapon because he kept his right hand in his pocket, Lybarger argues that he never made any motions with his right hand and, thus, the evidence was not sufficient to suggest the existence of a weapon.

Our court considered a case with remarkably similar facts in State v. Duggar, 710 S.W.2d 921 (Mo.App.1986). The defendant in Duggar had one hand in his jacket pocket as he told a store clerk to give him all of the money in the cash register. Id. at 922. The clerk asked if he was serious, and the defendant replied that he was. Id. Although the defendant uttered no threats, was not physically violent, and did not display a weapon, the clerk testified that he “felt threatened” and gave the defendant the money in the cash register. Id. Our court upheld the defendant’s conviction for second-degree robbery, noting that the concealment of his hand in his pocket was evidence that he sought to intimidate or instill fear in the clerk. Id. We found the evidence was sufficient to prove the defendant threatened the use of physical force, as required by definitional provisions of Section 569.010(1). Id.

The facts here warrant a similar conclusion. The threat of physical harm need not be explicit; it can be implied by the defendant’s words, behavior, or both. Patterson v. State, 110 S.W.3d 896, 904 (Mo.App.2003). Threatened physical force may be implied when the defendant engages in behavior that suggests he has a weapon, or from the use of fear-invoking phrases such as “This is a holdup.” Id. The record establishes that Lybarger did both and, thus, the evidence was sufficient to support his conviction for second-degree robbery. Point III is denied.

Conclusion

The judgment of conviction is affirmed.

All concur.

      . All statutory citations are to the Missouri Revised Statutes 1994, unless otherwise noted.

      . The IAD’s “written notice” requirement applies only when the prisoner requests disposition of pending charges referenced in a de-tainer. § 217.490, Art. Ill, ¶¶ 1-2.

      . Lybarger points out that the Uniform Mandatory Disposition of Detainers Act, a statute similar to the IAD, contains a provision requiring a jurisdiction to "promptly inform” a prisoner within one year of the filing of a detainer. § 217.450.2-3.


author: VICTOR C. HOWARD, Judge.

text:
    In the Interest of N.A.B. and N.J.B. M.F.L. and D.C.L. (Adoptive Parents) and Juvenile Officer, Respondents, v. N.H. (Natural Father), Appellant.
    No. WD 64591.
    Missouri Court of Appeals, Western District.
    June 14, 2005.

      Lori L. Stipp, Kansas City, MO, for Appellant.
    Marilyn M. Shapiro, Kansas City, MO, for Respondents M.F.L. and D.C.L.
    Mary A. Marquez, Kansas City, MO, for Respondent Juvenile Officer.
    Kyla J. Grove, Kansas City, MO, Guardian ad litem.
    Before ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   VICTOR C. HOWARD, Judge.

Appellant, the biological father of two minor children, appeals from a judgment in the Circuit Court of Jackson County terminating Appellant’s parental rights and granting Respondents M.F.L. and D.C.L’s petition for adoption. For the following reasons, we dismiss the appeal.

Background

The two children who are the subject of this action are N.J.B., born April 7, 2000, and N.A.B., born September 11, 2001. Both biological parents have a history of drug use, criminal activity, and incarceration. Appellant was incarcerated when N.A.B. was born.

N.J.B. was born with traces of methamphetamine in her body, and a petition was filed with the juvenile court on April 10, 2000, just three days after her birth, leading to her placement into the custody of the Division of Family Services for placement in foster care. On February 13, 2002, the juvenile court ordered the Division of Family Services to pursue a permanent placement for N.J.B. through termination of parental rights and adoption.

N.A.B. came into the juvenile court system on December 21, 2001. On May 6, 2002, the juvenile court entered an order placing N.A.B. in the custody of the Division of Family Services for placement in foster care.

On September 26, 2003, M.F.L. and D.C.L. filed their Petition for Termination of Parental Rights and Adoption, alleging that the children had been in foster care for fifteen of the preceding twenty-two months and that the children’s biological parents had failed to provide necessities for the children.

The Family Court Commissioner began hearing all of the matters on April 27, 2004. On June 1, 2004, the Commissioner entered its findings and recommendations that Appellant’s parental rights be terminated, and on June 2, 2004, entered findings and recommendations that M.F.L. and D.C.L. be allowed to adopt the children. On June 2, 2004, the juvenile court adopted and confirmed all of the Commissioner’s findings and recommendations without modification and entered them as the judgment of the juvenile court.

Pursuant to Rule 129.13, on June 16, 2004, Appellant filed a Motion for Rehearing related to the adoption hearing, and on June 18, 2004, Appellant filed a Motion for Rehearing related to the termination of his parental rights. On June 22, 2004, the juvenile court set the Motions for Rehearing for a hearing to be held on August 18, 2004.

On August 18 and 19, 2004, the juvenile court heard evidence with regard to Appellant’s Motions for Rehearing. On August 30, 2004, the juvenile court entered its order denying all of Appellant’s motions, including his Motions for Rehearing.

Appellant appeals the termination of parental rights and adoption orders entered, as contained in the findings and recommendations entered on June 1, 2004, and adopted as a judgment on June 2, 2004.

M.F.L. and D.C.L.’s Motion to Dismiss the Appeal

Before we can reach the merits of Appellant’s points on appeal, We must consider M.F.L. and D.C.L.’s motion to dismiss the appeal. M.F.L. and D.C.L. argue that (1) Appellant’s Motion for Rehearing was not ruled upon in a timely manner, and (2) Appellant did not file a timely appeal.

Our analysis requires consideration of three Missouri Court Rules regarding: (1) the time limit for a court to rule on a motion for rehearing; (2) the time limit for filing a notice of appeal; and (3) the date a judgment becomes final when after-trial motions have been filed. Below we set out the relevant parts of those rules.

Rule 129.13 provides:

(a) Unless waived by the parties in writing, a party to a case or proceeding heard by a commissioner, within fifteen days after the mailing of notice of the filing of the judgment of the court, may file a motion for rehearing by a judge of the court....
(b) The judge shall rule on the motion for rehearing promptly. If the motion for rehearing is not ruled on within forty-five days after the motion is filed, it is oven’uled for all purposes.

(Emphasis added.)

Rule 81.04(a) provides:

(a) Filing The Notice of Appeal. When an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.

(Emphasis added.)

Rule 81.05(a) provides:

(a) Finality as Affected by After-Trial Motions. For the purpose of ascertaining the time within which an appeal may be taken:
(2) If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following:
(A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or
(B) If all motions have been ruled, then the date of ruling on the last motion to be ruled or thirty days after entry of judgment, whichever is later.

(Emphasis added.)

In the instant case, Appellant’s Motions for Rehearing were timely filed on June 16 and June 18, 2004, but the motions were not heard until August 19, 2004, and were not ruled on until August 30, 2004. Pursuant to Rule 129.13(b), because the Motions for Rehearing were not ruled on within forty-five days after the after-trial motions were filed, they were overruled for all purposes on July 31, 2004. Pursuant to Rule 81.05(a)(2)(B), the judgment also became final on July 31, 2004, because that day was the later of the ruling of the last motion or thirty days after entry of judgment. Pursuant to Rule 81.04(a), Appellant was required to file a notice of appeal with the clerk of the trial court no later than ten days after the judgment became final. Because the notice of appeal was not filed until September 17, 2004, we lack jurisdiction to consider the merits of this appeal.

Appellant urges us to, in effect, disregard Rule 129.13(b) and find that the juvenile court timely ruled on Appellant’s Motion for Rehearing on August 30, 2004, because, through no fault of his own, the juvenile court set the motions for hearing outside the forty-five-day window. Even if we disregard Rule 129.13(b), we still lack jurisdiction to consider the merits of the appeal. Under this alternative scenario, the judgment became final on August 30, 2004, because that day was the later of the ruling of the last after-trial motion or thirty days after entry of judgment. Therefore, Appellant was required to file a notice of appeal no later than September 9, 2004, pursuant to Rule 81.04. Appellant failed to file a notice of appeal until September 17, 2004, so the appeal is untimely.

Conclusion

For the foregoing reasons, the appeal is dismissed for lack of jurisdiction.

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

      . However, we would note that in the process of thoroughly reviewing the file, we did not find reversible error.


text:
    Cinda CHAPMAN, Appellant-Respondent, v. Peter A. McINTYRE, Respondent-Appellant.
    Nos. WD 63994, WD 64043.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Dennis Owens, Kansas City, MO, for appellant/respondent.
    John Wm. Dennis, Jr., Independence, MO, for respohdent/appellant.
    Before: THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN, and PATRICIA A. BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Ms. Cinda Chapman appeals a circuit court judgment denying her motion to modify visitation. Dr. McIntyre files a cross-appeal from the court’s decision denying his request for sole physical custody. Because we find that the circuit court did not err in awarding joint legal and physical custody of the minor child to the parties, we affirm. Rule 84.16(b).


text:
    Fonda Kay THOMPSON, Respondent, v. James Dale THOMPSON, Appellant.
    Nos. WD 63863, 64086.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    James A. Rust, Richmond, MO, for appellant.
    Gina M. Graham, Blue Springs, MO, for respondent.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   ORDER

PER CURIAM.

James Dale Thompson (Father) appeals the trial court’s judgment modifying the child support provisions of the judgment dissolving his marriage to Fonda Kay Thompson (Mother). Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    John AUFENKAMP and Robert M. Aufenkamp, Respondents, v. Dorwin GRABILL and Lavaughn Grabill d/b/a Grabill Construction, Appellants.
    No. WD 64262.
    Missouri Court of Appeals, Western District.
    June 21, 2005.

      G. Thomas Harris, III, Richmond, MO, for appellants.
    John B. Neher, Lexington, MO, for respondents.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Dorwin and Lavaughn Grabill appeal from a judgment awarding damages of $18,356 to John and Robert Aufenkamp on a breach of contract claim involving the purchase of a bulldozer. We reverse the judgment, finding the claim was barred by the statute of limitations.

Factual and ProcedüRAl History

In October 1992, Dorwin and Lavaughn Grabill, d/b/a Grabill Construction, (“Grabills”) agreed to purchase a bulldozer from Ray Aufenkamp for $30,000. The Grabills made installment payments totaling $23,500 on the bulldozer, but they made no further payments after December 27,1997.

Ray Aufenkamp died in September 2000. One year later, his sons, John and Robert Aufenkamp (“Aufenkamps”), filed a breach of contract petition against the Grabills for the balance due on the bulldozer plus interest. At trial, the Grabills moved to dismiss the petition on grounds that the Aufenkamps lacked standing in their individual capacities to sue on behalf of their father’s estate. The court took the motion ■with the case and, after a bench trial, entered a defense judgment in favor of the Grabills on December 20, 2001.

Two months after judgment was entered, the Aufenkamps filed a petition for heirship declaration in the probate court. The Aufenkamps also requested the trial court to re-open the judgment in the breach of contract case pending the outcome of the probate petition. On April 3, 2002, the trial court denied the Aufen-kamps’ motion as untimely under Rule 78.04.

The Aufenkamps appealed the denial of the motion to re-open the judgment. We determined the Aufenkamps lacked standing to sue because they were not “the real parties in interest to enforce a contract between their father and the Grabills, and likewise did not have standing to sue on behalf of their father’s estate[.]” Aufenkamp v. Grabill, 112 S.W.3d 455, 460 (Mo.App.2003) (“Aufenkamp I ”). Accordingly, we reversed the judgment and remanded the cause for dismissal because the trial court lacked subject matter jurisdiction over the petition for breach of contract. Id. Upon remand, the trial court dismissed the petition without prejudice on September 10, 2003.

During the pendency of the appeal, the probate court entered an order declaring John and Robert Aufenkamp as the sole hems of Ray Aufenkamp. Less than one month after the trial court dismissed the original petition in Aufenkamp I, the Au-fenkamps filed a new petition (“Aufen-kamp II”), as the sole heirs and beneficiaries of Ray Aufenkamp, alleging a breach of contract claim against the Grabills. The Grabills moved to dismiss, alleging the contract claim was barred by the five-year limitations period in Section 516.120. The Aufenkamps contended their claim was timely pursuant to the savings statute in Section 516.230.

After a bench trial, the court denied the motion to dismiss and entered judgment in favor of the Aufenkamps for $18,356.65, plus costs and post-judgment interest. The Grabills appeal.

Point on Appeal

In their sole point on appeal, the Gra-bills contend the trial court erred in denying their motion to dismiss because the breach of contract action in Aufenkamp II was barred by the applicable statute of limitations. This issue involves statutory interpretation and the application of law, which we review de novo without deference to the trial court’s decision. McKinney v. State Farm Mut Ins., 123 S.W.3d 242, 245 (Mo.App.2003).

The parties agree that the five-year statute of limitations in Section 516.120 is applicable to the breach of contract claim at issue. The parties further agree that the breach of contract claim accrued on December 19, 1997, when the Grabills stopped making installments payments on the bulldozer and failed to pay the balance due of $6,500. The Grabills argue that because the Aufenkamp II petition was not filed until October 7, 2003, more than five years after the breach of contract claim accrued, the claim is time-barred.

In response, the Aufenkamps contend their petition was timely filed in 2003 under the savings statute in Section 516.230, which provides:

If any action shall have been commenced within the times respectively prescribed in section 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, ... such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered....

Based on this statute, the Aufenkamps argue that their original breach of contract claim in Aufenkamp I was filed in September 2001, well within the applicable five-year limitations period that began in December 1997. When that original petition was dismissed in September 2003, the Au-fenkamps filed their new petition one month later and within one year of the dismissal. Thus, they contend the savings statute preserved the breach of contract claim in Aufenkamp II despite its filing more than five years after the claim accrued in 1997.

We disagree that the savings statute is applicable to the circumstances of case. Because the Aufenkamp brothers filed as “legally different plaintiffs” in the two lawsuits, they are not entitled to the protection afforded by Section 516.230. Smith v. Tang, 926 S.W.2d 716, 719 (Mo.App.1996)

In Aufenkamp I, the brothers brought suit in their individual capacities as John and Robert Aufenkamp. When it was later determined they had no standing to sue on behalf of their father’s estate as individuals, they filed Aufenkamp II in a different capacity as the legal heirs and personal representatives of Ray Aufen-kamp. The savings statute provides that if a plaintiffs original action is timely commenced and then dismissed, “such plaintiff” may file a new action within one year of the dismissal. § 516.230. The right to bring a new action is given only to the plaintiff in the original action. Smith, 926 S.W.2d at 719.

As the legal heirs and personal representatives of their father’s estate in Aufen-kamp II, the Aufenkamp brothers were not the same individual plaintiffs who filed the original breach of contract claim in Aufenkamp I. Id. The personal representatives had never previously filed suit against the Grabills, were not a party to the original breach of contract action filed in 2001, and had never suffered a nonsuit prior to the 2003 filing of their breach of contract claim in Aufenkamp II. Accordingly, they could not satisfy the requirements of Section 516.230 to save their claim from being time-barred.

The trial court erred as a matter of law in denying the Grabills’ motion to dismiss. The breach of contract claim was barred by the statute of limitations because it was not filed by the personal representatives of Ray Aufenkamp until 2003, more than five years after the claim accrued in 1997. The judgment is reversed.

All concur.

      . All rule citations are to the Missouri Rules of Procedure, unless otherwise noted.
      Rule 78.04 provides that a motion to amend the judgment must be filed no later than thirty days after the entry of judgment.

        . All statutory citations are to the Missouri Revised Statutes (1994) unless otherwise noted.

      . The term "nonsuit,” as used in a savings statute, includes a dismissal without prejudice. Ferrier-Harris, Ltd. v. Sanders, 905 S.W.2d 123, 126 (Mo.App.1995).

      . We have recognized an exception to this rule only when "the second plaintiff sues in the same right as the original plaintiff, such as a successor trustee.” Smith, 926 S.W.2d at 719. This exception is not applicable here, because a person suing in an individual capacity cannot assert the same rights as a person suing as the personal representative of an estate. Id. In this regard, we note that the original petition in Aufenkamp I was dismissed because the plaintiffs lacked standing as individuals to sue on behalf of the decedent.


text:
    STATE of Missouri, ex rel., Richard J. WALSH, Appellant, v. PLATTE COUNTY, Missouri Board of Zoning Adjustment et al., Respondent.
    No. WD 64420.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Timothy J. Sear, Overland Park, KS, for appellant.

      Matt Chiasson, Kansas City, MO, for respondents.
    Before: THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and PATRICIA BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Dr. Richard J. Walsh appeals the judgment of the Platte County Circuit Court affirming the decision of the Platte County Board of Zoning Adjustment granting a non-use variance to his neighbors, Aaron and Jennafer Cross. We find that the Board did not act illegally and there was sufficient evidence to support the decision, so we affirm. Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Reginald JONES, Defendant/Appellant.
    No. ED 84743.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Michelle Murphy Rivera, St. Louis, MO, for appellant.
    Deborah Daniels, Lisa Kennedy, Co-Counsel, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Reginald Jones (Appellant) appeals from the trial court’s denial of his Batson challenge. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court’s denial of Appellant’s challenge was not clearly erroneous. State v. Costello, 101 S.W.3d 311, 312 (Mo.App. E.D.2003). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


text:
    STATE of Missouri, Respondent, v. Alphonso JONES, Appellant.
    No. ED 84693.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.

      Greg Melchior, St. Louis, MO, for appellant.
    Scott Thompson, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Alphonso Jones (“Defendant”) appeals from the judgment entered after a jury convicted him of possession of marijuana under thirty-five grams, a misdemeanor. The trial court sentenced Defendant as a prior offender to one year’s imprisonment. Defendant contends that the trial court plainly erred by permitting the State of Missouri (“State”) “to extensively question” the venire panel regarding the type or amount of evidence that they would require to convict Defendant, thereby depriving him of his due process rights in that these questions caused a manifest injustice “by misleading potential jurors and calling for a commitment.”

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Jerome MONTGOMERY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84628.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, Sr., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Jerome Montgomery (“Movant”) appeals from the denial of his Rule 29.15 post-conviction motion after an evidentiary hearing. Movant was convicted of one count of robbery in the first degree, Section 569.020, RSMo 2000, one count of burglary in the first degree, Section 569.160 RSMo 2000, one count of assault in the second degree, Section 565.060, RSMo 2000, and three counts of armed criminal action, Section 571.015, RSMo 2000. Mov-ant’s convictions were affirmed on direct appeal after transfer to the Missouri Supreme Court. State v. Montgomery, 100 S.W.3d 819 (Mo. banc 2003). Subsequently, Movant filed a motion for post-conviction relief pursuant to Rule 29.15, which the court denied after an evidentiary hearing.

Movant’s raises one point on appeal. Movant claims the motion court clearly-erred in denying his claim that counsel prevented him from testifying at his trial and finding it was sound trial strategy to advise Movant not to testify at trial.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the motion court’s decision was not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Sandy WILLIAMS, Appellant.
    No. ED 84586.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Sandy Williams (“defendant”) appeals the judgment of his conviction of one count of forcible rape, three counts of forcible sodomy, one count of burglary in the first degree, and one count of resisting arrest. Defendant claims that the trial court erred in allowing testimony from Officer Mark Kennedy regarding defendant’s photograph.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Paul L. DOBBINS, Defendant/Appellant.
    No. ED 84522.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.

      Maleaner Ryna Harvey, St. Louis, MO, for appellant.
    Deborah Daniels, Dora A. Fichter, Co-Counsel, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Paul L. Dobbins (Appellant) appeals from the trial court’s judgment entered upon a jury verdict finding him guilty of possession of a controlled substance in violation of Section 195.202 RSMo 2000. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not plainly err, State v. Santillan, 1 S.W.3d 572, 578 (Mo.App. E.D.1999), or abuse its discretion, State v. Granado, 148 S.W.3d 309, 311 (Mo.banc2004), in denying Appellant’s motion to suppress evidence, because the evidence was not obtained as a result of an unlawful seizure. State v. Stacy, 121 S.W.3d 328, 332 (Mo.App. W.D.2003). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


text:
    STATE of Missouri, Respondent, v. Darryl JACKSON, Appellant.
    No. ED 85026.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Gwenda R. Robinson, Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald Ribaudo, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Darryl Jackson (“Defendant”), appeals from the judgment of the Circuit Court of the City of St. Louis convicting him, after a jury trial, of felony possession of a controlled substance, section 195.202 RSMo 2000 and misdemean- or possession of drug paraphernalia, section 195.233. Defendant was sentenced to four years of imprisonment for the felony possession and one concurrent year of imprisonment for the misdemeanor possession. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


text:
    Mario PRIMM, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84931.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 21, 2005.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Movant Mario J. Primm appeals the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


author: NANNETTE A. BAKER, Judge.

text:
    STATE of Missouri, Respondent, v. Morris LOCKETT, Appellant.
    No. ED 84850.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen King Mitchell, Jefferson City, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Morris Lockett (“Defendant”) appeals from his conviction of burglary in the second degree and stealing a firearm. A jury convicted Defendant of burglary in the second degree, Section 569.170, and stealing a firearm, Section 570.030. Defendant was sentenced as a prior and persistent offender, to two consecutive terms of fifteen years’ imprisonment. On appeal, Defendant alleges that the trial court erred in overruling Defendant’s hearsay objections and allowing Sergeant Wallingsford (‘Wallingsford”) to testify to statements made to her by Peggy Rosenthal (“Rosen-thal”), the owner of Baton Music, concerning the location of the guitars that had been stolen in the burglary. Defendant also claims that allowing Detective White (“White”) to testify to statements made to him by the father of Stanley McKinley (“Co-defendant”) was error. Co-defendant’s father, Willie McKinley (“Father”), answered White’s questions about whether Co-defendant lived at the home where the stolen weapons were found. Defendant also asserts that the tidal court erred in permitting the prosecutor, over objection, to misstate the law on accessory liability during his closing argument, and in failing to advise the jury to disregard the erroneous comment. Respondent has moved to dismiss the appeal pursuant to the Missouri Escape Rule. As discussed below, we deny the Motion. We find no error and affirm.

Background

On December 30, 2002, at approximately 11:00 a.m. the home of Woodie Bell (“Bell”) was burglarized. Bell lived in a basement apartment in Maplewood, Missouri, in St. Louis County. The apartment complex was surrounded by warehouses and was secluded. Bell was not at home at the time of the burglary. Lonnie Weil-muenster (“Weilmuenster”), who lived in the apartment above Bell, was home that morning and heard a knock on the downstairs door followed by a loud noise. A few minutes later, he heard another loud noise and went to the window to see what was happening. Weilmuenster saw a man loading a guitar case into the backseat of a car about 30-40 feet away, in the parking lot in front of the building. Through the window of the car, he could see a keyboard and a guitar case in the backseat. He saw another man already in the car. He watched the two men for 30-40 seconds and then saw them drive away. By photographic line-up and in court, Weilmuenster identified Defendant as the man he saw loading the guitar. He identified Co-defendant as the man driving the car.

Weilmuenster went downstairs and found the door to Mr. Bell’s apartment open and the door frame broken. He called 911, and Wallingsford, of the Maple-wood Police Department, arrived at the apartment and took charge of the investigation. Weilmuenster gave a statement and told her that he believed he could identify the two men who left the scene. Bell was called to the scene. Missing from the apartment were: two rifles, a shotgun, some bayonets, four guitars, a keyboard and some CDs. Bell was able to give the police serial numbers on some of the stolen items.

The crime took place in St. Louis County. Many different municipalities and several police departments were involved in the investigation. Detective Richard White (“White”) of the Maryland Heights Police Department received information of possible stolen firearms at the house of Co-defendant’s father, Willie McKinley (“Father”). White and another detective from St. Louis City went to the McKinley home and were given permission to search. The detective asked Father where his son’s bedroom was, and he pointed out the room where Co-defendant stayed. In the room the detectives found two rifles, a shotgun and a bayonet. The guns were packaged and placed in evidence at the Maryland Heights Police Department. White later called Wallingsford and told her that he had the weapons that had been reported stolen. Bell identified the weapons as his.

Wallingsford received a call from Officer Hunt (“Hunt”) with the University City Police, advising her that Peggy Rosenthal (“Rosenthal”), the owner of Baton Music in University City, had called and told Hunt that she had a Supro Lap Steel guitar, which was one of the items missing from Bell’s apartment. Bell identified the guitar as belonging to him. Wallingsford called Rosenthal, who stated that Co-defendant was the man who sold her the guitar. Wallingsford obtained enough information to prepare a photo line-up on Co-defendant. Later that day she took the photo line-up out to Weilmeunster’s apartment and he identified Co-defendant as the man that he saw driving the car outside Bell’s apartment the day of the burglary.

The next day, Wallingsford received a second call from Rosenthal who advised her that a customer had come into Rosen-thal’s store and told her that he purchased several guitars from First Cash Pawn Shop (“First Cash”), but that he had returned them because he believed they were stolen. Based on the information she received from Rosenthal, Wallingsford immediately called First Cash and sent Bell there to identify the guitars as the ones taken from his apartment. Using a pawn ticket, the manager of First Cash, Willie Austin (“Austin”), was able to testify the guitars were sold to the pawnshop at 12:18 on the afternoon of the burglary. The pawn ticket included serial numbers that matched those of the stolen guitars. The pawnshop requires individuals selling merchandise to provide identification. The name of the individual selling the merchandise and other identifying information is placed on the ticket. The pawn ticket for the three stolen guitars included Defendant’s identifying information and signature. Austin testified that he knew Defendant from the store.

Wallingsford prepared a photo line-up including a photograph of Defendant and took it to Weilmuenster on February 12, 2008, and he identified Defendant as the man he saw loading a guitar into the back of the car outside of his apartment on the day of the burglary.

Defendant testified at trial and denied being at Bell’s apartment on the day of the burglary. He acknowledged that he had known Co-defendant for 25-30 years and that they occasionally did drugs together. He admitted selling the stolen guitars to First Cash. He claimed at trial that on the day of the burglary he ran into Co-defendant at the pawnshop, that Co-defendant owed him some money, and that he convinced Co-defendant to give him the guitars to pawn in payment of the debt. He denied knowing that the guitars were stolen.

Missouri Escape Rule

Respondent filed a Motion to Dismiss Appeal based on the Missouri Escape Rule, which provides that defendants who escape or flee during trial or post-trial proceedings forfeit them right to appeal. Defendant was convicted on February 25, 2004. On that date, the minute entry on the docket sheet reflects that the court set a bond of $25,000 cash. The court also announced that sentencing was set for April 16, 2004. On March 1, 2004, the docket sheet reflects that a professional bond was filed and Defendant was released from custody. On March 5, 2004, after the court learned that Defendant was not in custody, it ordered his bond to be reset at $25,000 cash only, and ordered a Capias Warrant to be issued. The docket sheet entry states that defendant failed to appear, however, there is no indication that a hearing was set for that date. On April 1, 2004, the court again ordered a warrant and set no bond for Defendant. A notice of hearing on bond forfeiture was sent to all parties on May 21, 2004, and the hearing was eventually set for July 1, 2004. Defendant appeared and was sentenced on July 1, 2004. Respondent argues that this delay in sentencing from April 16, 2004 until July 1, 2004 is sufficient to invoke the escape rule because it adversely affected the criminal justice system.

The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a defendant who escapes justice. Nichols v. State, 131 S.W.3d 863, 865 (Mo.App. E.D.2004). A defendant who escapes or flees the jurisdiction of the court either diming trial or in the process of post-trial proceedings forfeits his rights to an appeal on the merits of the case. State v. Crump, 128 S.W.3d 642, 642-643 (Mo.App. E.D.2004). The rule is properly applied when it is determined that the escape adversely affected the criminal justice system. Id. at 643. Whether or not to use the escape rule to dismiss an appellant’s claims of error rests within the sound discretion of the appellate court. Harvey v. State, 150 S.W.3d 128, 129 (Mo.App. E.D.2004).

Having considered the evidence before us, we deny Respondent’s Motion to Dismiss Appeal. We find that the record contains insufficient information for the escape rule to apply. Since there is no entry on the docket sheet for April 16, 2004, it is impossible for us to determine if the sentencing was actually set for that date. In addition, there is no indication that Defendant failed to appear for sentencing on that date. Furthermore, Defendant did not “escape” in the usual sense of the word; he was released on bond, whether mistakenly or not. Therefore, we are exercising our discretion to consider Defendant’s appeal on the merits. ■

Hearsay

In his first point on appeal, Defendant alleges that the trial court erred in overruling his hearsay objections and allowing Wallingsford to testify to statements made to her by Rosenthal, the owner of Baton Music, concerning the location of stolen guitars. Defendant also claims that the trial court erred in allowing White to testify to statements made to him by Father about whether Co-defendant lived at the home where the stolen weapons were found. Specifically, Defendant claims that he was deprived of his right to confront his accuser and to cross-examine the proponents of the statements.

Admission of evidence is evaluated for abuse of discretion. State v. Wolfe, 13 S.W.3d 248, 262 (Mo. banc 2000). A trial court enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal. State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001).

Hearsay statements are out-of-court statements used to prove the truth of the matter asserted, which, as a rule, are inadmissible. State v. Douglas, 131 S.W.3d 818, 823 (Mo.App. W.D.2004). Not all out-of-court statements are hearsay in that to constitute hearsay the statement must be offered for the truth of the matter asserted. Id. An out-of-court statement offered not for the truth of the matter asserted, but to explain subsequent police conduct, is not hearsay and is, therefore, admissible, assuming it is relevant. Id. at 824.

Here, Wallingsford testified about her conversation with Rosenthal in which Ro-senthal told Wallingsford that she had a guitar in her possession that she believed was stolen. Rosenthal also told Wallings-ford about a customer who had purchased several guitars at First Cash that he believed to be stolen. These statements, together with Rosenthal’s statement that she had received the guitar from Co-defendant, were used to explain the subsequent behavior of the police in going to First Cash with a photo line-up, and in sending Bell, the owner of the stolen guitars, to identify them. The statements were not used to prove that Rosenthal actually had a stolen guitar in her possession. Nor were they used to prove that Rosenthal’s customer, who had returned the guitars to First Cash, had actually bought stolen guitars from First Cash.

Defendant cites State v. Shigemura as a case on point for holding that hearsay testimony from a police officer was prejudicial error. 680 S.W.2d 256 (Mo.App. E.D.1984) (where a police officer testified that he was directed by a confidential informant to a stakeout at which the defendant was planning to sell stolen property). But in Shigemura, the prosecution had to prove the defendant knew or believed the items in his possession had been stolen. Id. at 257. The court held that the hearsay statement of the confidential informant was used as evidence that the defendant had the requisite knowledge to commit the crime. Id. Thus, the jury was allowed to consider the statement as evidence linking the defendant to the crime. Id. at 257-258.

In this case, there was ample evidence of Defendant’s connection to the crime without the out-of-court statements. In fact, Defendant testified that he had sold the stolen guitars to the pawn shop. Wall-ingsford’s testimony of Rosenthal’s statement was not used to prove an element of the crime, as was the case in Shigemura. We find no error on the trial court’s ruling on this statement.

Defendant also challenges White testifying to Father’s statements concerning Co-defendant’s living status in Father’s home as error. White testified that Father told him that Co-defendant lived “periodically” at the house where the stolen weapons were found. After his conversation with Father, White contacted Wall-ingsford to inform her of White’s possession of the stolen weapons. Here again, the trial court allowed the testimony not for the truth of the matter asserted, that Co-defendant lived in Father’s house, but to explain White’s subsequent behavior. We find no error on the trial court’s admission of this testimony. Point denied.

Closing Argument

Next, Defendant asserts that the trial court erred in permitting the prosecutor, over objection, to misstate the law on accessory liability during his closing argument, and in failing to advise the jury to disregard the erroneous comment. Defendant argues that this violated his right to a fair trial, since the prosecutor’s comment led the jury to believe that even if they believed Defendant’s testimony that he pawned the guitars but did not commit the burglary, they could still find him guilty as an accessory. Defendant failed to include this claim of error in his Motion for a New Trial and he asks us to review for plain error.

The standard of review for alleged error in closing argument depends upon whether defense counsel objects. State v. Shurn, 866 S.W.2d 447, 460 (Mo.banc.1998), cert. denied 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Where defense counsel objects, appellate courts will reverse the trial court’s decision with regard to closing argument only upon a showing of abuse of discretion by the trial court. Id. Plain error review mandates reversal only if the error results in manifest injustice. Id. Plain error review also requires that the argument have a decisive effect on the jury’s determination. Id. Appellate courts of this state rarely grant relief on assertions of plain error as to closing argument ... because, in the absence of objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention. State v. Crawford, 904 S.W.2d 402, 407 (Mo.App. E.D.1995). Because trial strategy looms as an important consideration in any trial, assertions of plain error concerning matters contained in closing argument are generally denied without explication. Id.

The trial court is in the best position to appraise the consequence of a closing argument, and has broad discretion to determine if the particular line of argument is proper. State v. Blakeburn, 859 S.W.2d 170, 174 (Mo.App. W.D.1993). Misstatements of the law are impermissible during closing argument, and a positive and absolute duty rests upon the trial judge to restrain such arguments. Id. However, it is equally recognized that the permissible field of argument is broad, and so long as counsel does not go beyond the evidence and issues drawn by the instructions or urge prejudicial matters or a claim or defense which the evidence and issues drawn by the instructions do not justify, he is permitted wide latitude in his comments. Id. In ruling on the propriety of the closing argument, the challenged comment must be interpreted in light of the entire record rather than in isolation. Id.

In this case, both counts with which Defendant was charged were submitted to the jury on the theory of accomplice liability. The instructions given to the jury on both the count of second degree burglary and stealing a firearm contained the following language:

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.

MAI-CR3d 304.04.

The Prosecutor emphasized in his closing argument that this case was submitted on the theory of accomplice liability. His words to the jury were:

In addition, you’re gonna be lookin’ at these instructions that we send back with you. That’s how every case concludes. Every case concludes by the jury looking at the instructions. And the first portion of the instructions will indicate a person is responsible for his own conduct and he’s also responsible for the conduct of another person in committing an offense if he acts with the other person with a common purpose of committing the offense, or if for the purpose of committing that offense he aids or encourages the other person in committing the offense.

This is an accurate restatement of the jury instruction on accomplice liability.

However, after Defendant’s closing argument, in his rebuttal, the prosecutor made the following statement:

I’m asking you to look over those instructions carefully and look over especially the one about acting with another. Because that’s how it’s charged. If he had any portion to play in this burglary and stealing of a firearm, guilty. That’s what it says. If he aids or encourages. If he helps out. If he sells items at a pawnshop. Guilty. That’s what that says.

At this point, Defendant objected and the trial court overruled the objection. Defendant argues that the prosecutor was misstating the law and instructing the jurors that even if they believed Defendant’s testimony that he met Co-defendant at the pawn shop and merely pawned the guitars, they must still find Defendant guilty of the crimes charged based on accomplice liability. He states that the trial court abused its discretion in overruling the objection and not giving a limiting instruction to the jury. We do not agree.

A conviction will be reversed for improper argument only if it is established that the comment in question had a decisive effect on the jury’s determination. State v. Winfield, 5 S.W.3d 505, 516 (Mo.banc 1999). When reviewing an argument for plain error, the burden is on the defendant to prove the decisive significance. Id. Here, the record does not suggest evidence that the prosecutor’s single comment during the closing argument had such decisive effect. We find that there was sufficient evidence for the jury to convict Defendant without the consideration of a stray comment by the prosecutor. This point is denied.

Judgment affirmed.

CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J., concur.

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


text:
    Bree OWENS, Respondent, v. STATE FARM FIRE & CASUALTY COMPANY, Appellant.
    No. ED 85051.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 25, 2005.
    Daniel E. Wilke, St. Louis, MO, for appellant.
    Joseph L. Leritz, St. Louis, MO, for respondent.
    Before GARYM. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

State Farm Fire & Casualty Company (“State Farm”) appeals from the trial court’s judgment declaring coverage and awarding Bree Owens $500,000 for bodily injuries and property damages sustained during a fire at a residence she was renting. State Farm raises three issues on appeal. First,' State Farm argues the trial court erred in finding the property in question was an “insured location” under the policy. Second, State Farm claims the trial court erred in holding the renting of the property where the fire occurred was “occasional” under an exception to an exclusion prohibiting coverage. Third, State Farm argues the trial court erred in holding renting of the property at issue was “ordinarily incident to a non-business pursuit.”

We have reviewed the briefs of the parties and the legal file submitted on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. 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 84.16(b).