author: LISA WHITE HARDWICK, Judge.

text:
    Immar MEDRANO, Respondent, v. MARSHALL ELECTRICAL CONTRACTING INC., Appellant.
    No. WD 64503.
    Missouri Court of Appeals, Western District.
    July 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Thomas G. Munsell, Kansas City, MO, for appellant.

      Jerrold Kenter, Sedalia, MO, Donald G. Stouffer, Marshall, MO, for respondent.
    Before: BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Marshall Electrical Contracting, Inc. (MEC) appeals from the Labor & Industrial Relations Commission’s award of death benefits to the dependents of Immar Me-drano. MEC seeks reversal of the award based on two points of error: (1) the Commission erred in determining that Medra-no’s accidental death arose out of and in the course of his employment with MEC; and (2) due process was denied because the administrative review was conducted by only two of the three Commission members.

Factual and Procedural History

Immar Medrano was fatally injured on February 28, 2001, when his car collided head-on with a drunk driver who crossed the centerline of U.S. Highway 65. Me-drano was employed by MEC as a journeyman electrician in Marshall. At the time the accident occurred, he was driving home from an electrician apprenticeship night class in Sedalia, for which MEC had paid his tuition and book fees.

Medrano’s wife and two children filed a workers’ compensation claim for death benefits against MEC. After a hearing, the administrative law judge (ALJ) denied the claim based on a determination that Me-drano’s death did not arise out of nor within the course and scope of his employment.

Medrano’s dependents sought review from the Labor & Industrial Relations Commission. One of the Commission members, John B. Boyd, recused himself because he was the attorney for the dependents at the ALJ hearing. The administrative review was conducted by the two remaining Commission members, who reversed the ALJ’s decision and awarded death benefits to Medrano’s dependents. The Commission determined the claim was compensable because Medrano’s attendance at the apprenticeship class mutually benefited him and his employer. MEC appeals from the Commission’s final award of death benefits.

Standard of Review

On appeal, we must affirm the Commission’s final award unless it acted without or beyond its power, the award was procured by fraud, the facts found do not support the award, or the award is not supported by sufficient competent evidence in the record. § 287.495.1, RSMo 2000. We determine whether the award is supported by competent and substantial evidence by examining the facts in the context of the entire record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We must ascertain “whether the Commission could have reasonably made its findings and reached its result upon consideration of all of the evidence before it.” Henley v. Tan Co., 140 S.W.3d 195, 198 (Mo.App.2004).

In making this determination, it is not our duty to reweigh the evidence. Id. Findings of fact made by the Commission within its powers are conclusive and binding. § 287.495.1. While this generally requires that we defer to the Commission’s credibility determinations, if those deter-rainations as to witnesses who gave live testimony before the ALJ differ from those made by the ALJ, we must also consider the ALJ’s credibility findings along with reasons the Commission differed from those findings. See Goerlich v. TPF, Inc., 85 S.W.3d 724, 729 (Mo.App.2002) (overruled on other grounds by Hampton, 121 S.W.3d 220). With regard to questions of law, our review is independent and without deference to the Commission’s findings. Henley, 140 S.W.3d at 198.

Points on Appeal

Mutual Beneñt Doctrine

In its first point, MEC contends the Commission erred in awarding benefits because Medrano’s accidental death did not arise out of and in the course of his employment, as required by Section 287.120.1 of the Workers’ Compensation Law. At the time of the accident, Medrano was returning to his home in Marshall after attending an electrician apprentice night class in Sedalia. MEC argues that the class was not required as a condition of Medrano’s employment and, thus, the seventy-mile round-trip travel to and from the instructional program was solely for his personal benefit. MEC contends the Commission erred in concluding the death claim was compensable based on the mutual benefit doctrine.

Workers’ compensation benefits are available for the “personal injury or death of the employee by accident arising out of and in the course of his employment.” § 287.120.1. An injury arises out of the employment if it is a natural and reasonable incident thereof. McClain v. Welsh Co., 748 S.W.2d 720, 724 (Mo.App.1988). An injury is within the course of employment if it occurs during the period of employment at a place where the employee may reasonably be fulfilling the duties of his job. Id. These are two separate tests, both of which must be met before an employee is entitled to compensation. Rogers v. Pacesetter Corp., 972 S.W.2d 540, 543 (Mo.App.1998).

In determining that Medrano’s accidental death arose out of and in the course of his employment with MEC, the Commission relied on the mutual benefit doctrine. The doctrine holds that “an injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually com-pensable.” Blades v. Commercial Transp., Inc., 30 S.W.3d 827, 829 (Mo. banc 2000) (citations omitted). “Each case turns on its own facts under the mutual benefits doctrine. The test is not whether any conceivable benefit to the employer can be articulated no matter how strained, but whether the act that resulted in the injury is of some substantive benefit to the employer.” Id. at 831.

In Blades, the Supreme Court considered whether the mutual benefit doctrine could be applied to a truck driver who sought workers’ compensation for injuries that occurred when he slipped on icy steps while walking into a union hall to testify at an arbitration hearing. Id. at 828. The Court identified several factors relevant to its analysis. A claim might be compensa-ble if an “employer knew or had reason to know of the employee’s presence at the place of injury and had by words or conduct encouraged the claimant to perform an act from which the employer would gain some benefit.” Id. at 830-31. The Court considered whether the injury occurred while the employee was exposed to special hazards associated with employment but away from the employer’s premises. Id. at 831. The ability of the employer to supervise and control the conditions and circumstances at the time of injury was also a relevant factor. Id. at 829.

The Court noted, in Blades, that the truck driver’s injury occurred when he was on his way to give hearing testimony adverse to the employer’s interests. The employer did not require or encourage the truck driver to attend the hearing. Walking into a union hall generally did not pose any special hazards and, even so, the employer had no control over the area where the accident occurred. Although the hearing involved compensation issues that might indirectly affect the truck driver’s employment, the Court held that any alleged benefit to the employer was “too attenuated and remote to invoke the mutual benefit doctrine.” Id.

As in Blades, MEC argues that it received no benefit from Medrano’s attendance at the apprenticeship class and, thus, the Commission erred in determining the death claim was compensable. However, our review of the entire record indicates there is substantial and competent evidence to support the Commission’s finding that the classroom instruction was mutually beneficial to Medrano and his employer.

Mike Mills, the owner and president of MEC, testified at the administrative hearing. Mills explained that the electrician apprenticeship program was coordinated by the Central Missouri Independent Electrical Contractors (CMIEC), a local chapter of the National Independent Electrical Contractors Association. MEC was a member contractor of the CMIEC, and Mills served as Chairman of the Apprenticeship Committee for the organization. The apprenticeship program consisted of 8,000 hours of on-the-job training and 576 classroom instruction hours. After completion of the four-year program, an apprentice would be classified as a “journeyman electrician.”

MEC began using the apprenticeship program in the fall of 2000 as an “easier” way to develop a skilled work force, after Mills “got tired” of conducting all training for his employees. MEC paid a flat tuition fee of $.25 per billable employee hour to fund the apprenticeship program. MEC also paid for the course books for its employees, though it was not obligated to do so by the CMIEC. All MEC employees were offered the opportunity to attend the classroom instruction at no additional charge, regardless of whether they were working as apprentices or journeymen.

The classroom instruction was held in the evenings in Sedalia at the State Fair Community College. Employees were permitted to leave their cars in MEC’s parking lot in Marshall and then carpool thirty-five miles each way to and from Sedalia. MEC gave employees time off work, when needed, to complete classroom assignments. The employees were not paid, however, for time spent attending or traveling to and from the classes.

Mills recalled offering the classroom instruction to Medrano as a way to further his education. Although Medrano had enough work experience to hold the title of lead electrician or journeyman at MEC, he had no formal training and needed to complete the apprenticeship program to qualify for IEC classification as a journeyman. Mills viewed the coursework as a way to “round out” Medrano’s skills. Medrano attended the class from the fall of 2000 until his death on February 28, 2001.

Mills testified that the quality of work, knowledge, skills, and speed of his employees were enhanced by the apprenticeship program. The training made the employees more valuable to MEC by improving the quality of service to customers. Mills acknowledged MEC was better able to compete with area businesses because of the skills its employees developed through the on-the job training and class instruction.

The record is sufficient to show that MEC derived a substantial benefit from having its employees travel from Marshall to Sedalia to fully participate in the apprenticeship program. MEC encouraged employees to attend the classroom instruction, covered the costs of tuition and books, and facilitated parking to make their travel more efficient and safe. The parking arrangements suggest MEC was aware of the special hazards facing the employees who drove long distances away from the employer’s premises to obtain instruction. MEC also exercised some degree of control over the instructional aspects of the apprenticeship program as a member contractor of CMIEC and with Mills serving as Chairman of the Apprenticeship Committee. Even though employees like Medrano obtained personal benefits in formalizing their education, MEC mutually benefited from the program as convenient way for MEC to train its employees and ultimately provide a better quality of service to its customers.

MEC argues that McQuerrey v. Smith St John Manufacturing. Co., 240 Mo.App. 720, 216 S.W.2d 534 (1948), is controlling authority and precludes a finding of mutual benefit from the apprenticeship program. In McQuerrey, the employer signed an Apprenticeship Agreement to provide employment and training opportunities to a carpenter employee. Id. at 535. The employee was later injured while participating in an evening vocational class at a high school. Id. at 535-36. The court determined the injury did not arise out of and in the course of employment because “the employer did not have the right to control the means and manner of the service or work” at the vocational class. Id. at 537. Significant to the court’s decision were the following facts: the employer did not provide tuition or class materials; the Apprenticeship Agreement clearly stated that class attendance was not work and the employee would not be paid for such attendance; the employer assumed contractual responsibility only for training the employee in the shop during working hours and had no obligation to make arrangements for class instruction; and the employer had no involvement in approving the class or in supervising or controlling the instructional circumstances. Id. at 536-37. The court concluded that the “outside instruction was for the benefit of the apprentice and not for any particular employer.” Id. at 537.

McQuerrey is distinguished from this case. MEC offered the classroom instruction to its employees, paid all associated costs, and encouraged employees to attend by giving them time off work to complete assignments and providing parking for carpoolers. MEC exercised far greater control over and involvement in the classroom part of the apprenticeship program than the employer in McQuerrey.

As the Commission noted, MEC not only encouraged employees to improve their skills by attending the class, it terminated at least one employee who failed the coursework. Mills acknowledged that other MEC employees also could be subject to discharge for failing the curriculum. This testimony further distinguishes this case from McQuerrey and supports the Commission’s finding that MEC benefited from the apprenticeship program by improving the quality of its workforce.

The record is sufficient to show that Medrano’s accidental death arose out of and in the course of his employment. Me-drano attended the instructional class, with the sponsorship and encouragement of MEC, as a way to round out skills that would benefit both him and his employer. His class attendance was a natural and reasonable incident of his employment. The accident occurred within the course of Medrano’s employment because he was required to travel a significant distance to attend the class selected by his employer and fulfill the instructional requirements of the apprenticeship training.

Although an employee generally is not entitled to compensation for injuries sustained while going to or from the place of employment, the law recognizes an exception when the employee is attending or traveling to or from an employer-sponsored event if the activity benefits the employer’s business in some way. Ludwinski v. Nat’l Courier, 873 S.W.2d 890, 892 (Mo.App.1994); Rogers v. Pacesetter Corp., 972 S.W.2d 540, 543 (Mo.App.1998). Where travel is involved, this mutual benefit exception is known as the “dual purpose doctrine” because the work of the employee creates a necessity for travel even though the employee may be serving some purpose of his own. Rogers, 972 S.W.2d at 543. The dual purpose doctrine recognizes “that if the exposure to the perils of the highway is related to the employment even though the employment is not the sole cause of such exposure to such risks but is combined with or is a concurrent personal cause, the benefit of compensation is not to be withdrawn.” Id. (citation omitted).

We find no error in the Commission’s determination that Medrano suffered a compensable injury while traveling home from the employer-sponsored apprenticeship night class. The record supports a finding that MEC benefited from Medra-no’s attendance at the class and, therefore, the Commission properly applied the law in concluding that Medrano’s death arose out of and in the course of his employment. Point denied.

Due Process

In its second point, MEC contends due process was denied because the administrative review was conducted by only two of the three Commission members. Commission member, John B. Boyd, recused himself from the review because he had served as attorney for the Medrano family at the ALJ hearing (prior to his Commission appointment). Because Mr. Boyd was the only Commission member who was licensed to practice law, MEC argues an acting commissioner should have been appointed to replace him, and the review should not have proceeded with the two non-lawyer members. MEC argues it was denied “the opportunity to be heard at a meaningful time and in a meaningful manner,” as contemplated by the due process requirements of the Missouri Constitution, Art. I, § 10, because the review was conducted by two commissioners who had no legal training. Willard v. Red Lobster, 926 S.W.2d 550, 553 (Mo.App.1996).

Pursuant to the Missouri Constitution and statutory authority, the Labor and Industrial Relations Commission is made up of three appointed members, each serving in a representative capacity: an attorney/public representative, an employer representative, and an employee representative. Mo. Const., Art. IV, § 49; § 286.010. “Any two commissioners shall constitute a quorum” for purposes of an administrative review and any other business of the Commission. § 286.010 (emphasis added). Despite previous challenges to the constitutionality of the quorum provision, our court has determined the Commission can lawfully operate with only two members. Terrell v. Bd. of Educ. of St. Louis, 871 S.W.2d 20, 22 (Mo.App.1993). A workers’ compensation award issued by a quorum of the Commission is valid and enforceable. Id.

There is no requirement that one member of the quorum must be a licensed attorney. MEC fails to provide any support for its argument in this regard. The Commission could properly proceed without a replacement for Mr. Boyd because an award rendered by “any two commissioners” is lawful. § 286.010. We find no due process violation in the award of death benefits to Medrano’s dependents.

All concur.

      . Boyd was appointed to the Commission on or about August 1, 2004, several months after the ALJ hearing on Medrano’s claim for death benefits.

      . All statutory citations are to the Missouri Revised Statutes 2000, unless otherwise indicated.

      . All statutory citations are to the Missouri Revised Statutes 2000, unless otherwise indicated.

      . The Commission's finding on this issue differed from the ALJ's based on conflicting interpretations of Mills’ testimony. On direct examination from the claimant’s attorney, Mills twice confirmed that an MEC employee, Peter Freezee, was "fired when he failed the coursework of the apprentice program.” Later, upon examination by MEC’s attorney, Mills said he could no longer afford to pay Freezee at the wage rate he was making unless Freezee completed the coursework. Based on the latter testimony, the ALJ determined the “real reason” for Freezee's termination was poor job performance and not his coursework failure. Upon review of the entire record, we believe Mills' testimony is more accurately represented by the Commission's finding that MEC "punished failure” by terminating an employee who did not successfully complete the class.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ahmad ANDERSON, Appellant.
    No. WD 63170.
    Missouri Court of Appeals, Western District.
    July 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Application for Transfer Denied Nov. 1, 2005.
    Rosemary E. Percival, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Ahmad Anderson was charged with assault in the first degree, Section 565.050, armed criminal action, Section 571.015, and burglary in the first degree, Section 569.160. The trial was initially set for January 2002. However, the case was rescheduled six times and was not actually tried until March 2003. On the morning of trial, Anderson indicated to the trial court that he did not want his counsel to represent him; instead, he wanted to proceed pro se. In addition, Anderson requested that the court grant him a continuance of one week to prepare for trial. The trial court refused Anderson’s request.

Judgment affirmed. Rule 30.25(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Amanda EAGAN and Bill Eagan, Appellants, v. Deborah K. DUELLO, M.D., et al, Respondents.
    No. WD 64857.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      James M. Roberts, Blue Springs, for appellants.
    Bryan T. Pratt, Kansas City, for respondents.
   RONALD R. HOLLIGER, Presiding Judge.

Amanda Eagan and Bill Eagan (the Ea-gans) appeal a jury verdict for Dr. Deborah Duello of their medical malpractice claim for injuries Mrs. Eagan sustained after an episiotomy repair following the birth of their daughter. The Eagans raise two points of trial court error: (1) that the trial court erred in allowing expert opinion testimony that was undisclosed prior to trial, and (2) that the trial court erred in excluding certain lay testimony on the basis that it was within the province of expert opinion. Affirmed.

Facts

Dr. Duello was Mrs. Eagan’s obstetrician for the delivery of her daughter. When Mrs. Eagan ran past her due date the decision was made to induce labor. During labor, Dr. Duello made the decision to perform an episiotomy. An episiotomy is a surgical incision made between the bottom of the vagina and the top of the rectum in order to facilitate the delivery of the baby and prevent tearing of the mother’s tissue during the birth process. Depending upon the size of the incision, an episiotomy can be large enough to injure the rectal wall. The procedure is done, generally, because currently accepted medical practice is that it is preferable to repair a surgical incision rather than a jagged tear resulting from the birth process.

Shortly after the birth, Dr. Duello performed a repair of the episiotomy. A number of people were present in the delivery room during the process including Bill Eagan and Bill’s sister Rebecca Ron-celli. Mrs. Eagan had a proper bowel movement in the hospital subsequent to the surgery. Nursing staff visually inspected the episiotomy repair while Mrs. Eagan was in the hospital and she was discharged a few days later.

Three days later Mrs. Eagan had a bowel movement that felt unusual. When she examined herself in the mirror she discovered stool coming through the area where the sutures were placed. The sutures had broken loose resulting in a dehiscence, or a break along the suture line, of the rectal tissue. She saw Dr. Duello the next day and again two weeks later but the wound did not heal. Dr. Duello then referred her to Dr. John Heryer, a colorectal surgeon for further treatment. Dr. Heryer treated the dehiscence, and eventually released her with no restrictions on any activities in October of 1998.

The Eagans later filed suit against Dr. Duello alleging negligent repair of the epi-siotomy. At trial, the Eagans alleged and produced evidence that Dr. Duello deviated from the standard of care by failing to properly repair Amanda Eagan’s episioto-my resulting in significant discomfort and pain for her. Dr. Duello called Dr. Larry Batty as an expert witness who testified that Dr. Duello’s treatment was appropriate and within the standard of care. The jury returned a verdict in favor of Dr. Duello. This appeal follows.

Discussion

I

The Eagans argue in their first point on appeal that a portion of the testimony of Dr. Duello, the treating physician, and Dr. Batty, the expert witness for the defense, represented “additional undisclosed expert opinion testimony.” The Eagans maintain that case law prohibits the undisclosed opinion testimony of both doctors and that, therefore, they are entitled to a new trial. Arguing as such, the Eagans have lumped two distinct arguments together because the substance of what Duello and Batty said at trial is dissimilar in addition to being governed by different standards of review. Duello’s allegedly objectionable testimony was objected to at trial, Batty’s was not. Accordingly, they require separate analysis.

Rule 56.01(e)(2) requires a party to supplement written interrogatory responses when a response changes or becomes untrue. In Gassen v. Woy, 785 S.W.2d 601, 608-04 (Mo.App.1990), this court extended that duty to apply to answers given in a deposition. The Eagans rely on Pasalich v. Swanson, 89 S.W.3d 555 (Mo.App.2002), and Whitted v. Healthline Management, Inc., 90 S.W.3d 470 (Mo.App.2002), in support of their argument that Drs. Duello and Batty violated that duty to supplement their deposition responses. Both cases illustrate the underlying principles and the mechanics of enforcing the rule prohibiting undisclosed opinion testimony.

Pasalich was a medical malpractice case resulting in a jury verdict in favor of the defendant doctor who, at his deposition, had stated that the plaintiffs condition had been caused by fluid administration. Id. at 560. Later at trial, however, without informing opposing counsel, the defendant stated that he had changed his opinion about causation based on information he reviewed after his deposition. Id. Plaintiffs counsel then requested that the testimony be struck, but the trial court initially ruled that that rule prohibiting new opinion evidence did not apply to defendants. Id. at 560-61. Later, after a verdict for the defendant, the trial court reversed its position and granted a new trial stating that under Rule 56.01(e)(2) the defendant, like any other expert, was required to disclose the change in his opinion prior to the beginning of trial. Id. This court, finding no abuse of discretion, affirmed the trial court’s decision. Id. at 564.

In Whitted, an expert witness for the defense stated in his deposition that he could not pinpoint whether the patient’s death was caused by one of two conditions. 90 S.W.3d at 477. Then at trial the expert unequivocally testified that the cause of death was a third, wholly unrelated condition than the two conditions discussed at his deposition. Id at 476-77. The trial court granted the plaintiffs motion for a new trial based upon the expert’s change of opinion at trial without informing opposing counsel to the resulting prejudice of the plaintiffs. Id. at 474. The court of appeals found that the trial court’s granting of a new trial was within its discretion because the “[ejxpert’s deposition and trial testimony clearly contradict[ed] each other” and his “testimony expressed an entirely different set of opinions than those offered at his deposition.” Id. at 477.

Dr. Duello’s testimony:

The standard of review governing the admissibility of Dr. Duello’s testimony is an abuse of discretion. “The admissibility of evidence, including the testimony of an expert, is a matter within the discretion of the trial court.” Blake v. Irwin, 913 S.W.2d 923, 931 (Mo.App.1996).

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; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Cooper v. Ketcherside, 907 S.W.2d 259, 260 (Mo.App.1995) (citations omitted). As mentioned above, when an expert changes his or her opinion after being deposed but prior to trial, the party intending to use that expert’s testimony has the duty to disclose the new information to the opposing party. Green v. Fleishman, 882 S.W.2d 219, 221 (Mo.App.1994). The stated policy behind this notion is to prevent experts from changing their opinions without notice to the opposition prior to trial, thus frustrating the purpose of the discovery rules and resulting in concealment and unfair surprise. See Bailey v. Norfolk & W. Ry. Co., 942 S.W.2d 404, 415 (Mo.App.1997). The trial court enjoys broad discretion in determining its options when evidence appears during trial that has not been disclosed in response to appropriate discovery. Green, 882 S.W.2d at 222. It is within the trial court’s discretion to reject such evidence or to impose other appropriate sanctions. Id.

At her deposition Dr. Duello testified in relevant part as follows:

[Eagans’ attorney]: Was there anything about Ms. Eagan’s medical history, including her gynecologic history, including the treatment you provided her for endometriosis, that caused or in any way contributed to cause her episiotomy dehiscence? ...
[Duello]: There are several possibilities of what could have been associated with this. I don’t know exactly what caused it.
[Eagans’ attorney]: Can you tell me what those possibilities are, please?
[Duello]: Certainly. Infection, particularly viral infections, like human papil-lomavirus; hemorrhage or hematoma formation; necrotic tissue; some people just don’t heal, have poor healing; a possible allergic reaction to suture material; a possible failure of suture material; intercourse; trauma to the area. A lot of factors that could affect it.
[Eagans’ attorney]: Do you have an opinion as to why Mrs. Eagan suffered this dehiscence?
[Duello]: I really don’t know. I think there was probably a combination of several factors. The fact that it was — it stayed intact at the hospital and it was okay until, what, five, almost six days postpartum makes me think that it was actually a wound healing problem. That’s when the wound is the weakest, after any type of repair. And then, maybe with the hard bowel movement, maybe just with that pressure, the stitches ripped through. I don’t — I can’t tell you for sure, but that’s what I think may have happened.

The Eagans protest that after Dr. Duel-lo gave such testimony in her deposition, at trial she was allowed “to testify at length about other possible causes of the episiotomy dehiscence..includ[ing] a lengthy discourse on the effects of human papillomavirus despite the fact that [Duel-lo] admitted on cross-examination that she could not state within a reasonable degree of medical certainty that Amanda Eagan even had human papillomavirus at the time of delivery.” At trial, Duello testified in relevant part:

[Duello’s attorney]: Now, Doctor, what — in your experience, training and education, what are the possible causes that led to Mrs. Eagan’s laceration repair breaking down?
[Duello]: I’m not sure we’ll ever know what really happened here, but there are many possibilities.

Dr. Duello goes on to name, in response to questioning, virtually every possible cause for Amanda Eagan’s dehis-cence that she named in her deposition. Similar to her deposition response, she identified healing problems, suture failure, suture allergy and human papillomavirus as possible causes of Eagan’s dehiscence. Dr. Duello maintained consistently throughout trial, as she did in her deposition, that she did not know the actual source of Mrs. Eagan’s dehiscence and at no time pointed to a specific cause for her resulting medical problems. Her testimony at trial was neither new nor contradictory to what it was in her deposition, thus rendering this case inapposite to the facts of Pasalich and Whitted. To the extent that Dr. Duello’s testimony was different at all, it was, perhaps, more expansive in that she explained many of the possible causes that she named in her deposition. This difference alone, however, does not fall within application of the rule prohibiting undisclosed opinion testimony. “Testimony, even when phrased in the form of an opinion, that interprets or supports opinions contained in depositions is not improper.” Blake v. Irwin, 913 S.W.2d 923, 931-32 (Mo.App.1996).

The trial court held that the rule from Gassen did not apply to a defendant who was offering expert testimony. The trial court’s rationale was incorrect. See Pasalich, 89 S.W.3d at 564. Although the trial court’s rationale in allowing the evidence (that a defendant is not subject to the rule prohibiting undisclosed opinion testimony) was flawed, that does not mean that the admission of the testimony was incorrect. Allowing Dr. Duello at trial to explain the possible causes she named in her deposition was not so arbitrary and unreasonable as to indicate a lack of careful consideration by the trial court and, therefore, it was not an abuse of discretion to allow the testimony.

Dr. Batty’s testimony:

The Eagans also allege that the defense expert, Dr. Batty, changed his opinion about causation between his deposition and trial without notifying opposing counsel. The Eagans contend that at Dr. Batty’s deposition, Batty “testified unequivocally that the one and only cause of the dehis-cence of Amanda Eagan’s episiotomy was infection.” In support of this contention, the Eagans point to Batty’s trial testimony where this exchange took place:

[Eagans’ attorney]: Is it your testimony that the only thing in this case that caused the dehiscence of the episiotomy repair was an infection?
[Batty]: No, it’s not.

The Eagans concede that they failed to object to the allegedly undisclosed opinion testimony of Dr. Batty but contend that, nevertheless, it is not subject to plain error review because of their objection to Dr. Duello’s testimony. We disagree. Dr. Duello’s testimony was permitted for an entirely different reason, albeit erroneous. “Appellate courts rarely grant plain error review in civil cases.” Verbrugge v. ABC Seamless Steel Siding, Inc., 157 S.W.3d 298, 303 (Mo.App.2005). “We reserve such review for cases in which hatred, passion or prejudice has been produced, resulting in a manifest injustice or miscarriage of justice.” Id. If an appellate court grants plain error review, it should first examine whether the claim of plain error is one that, on its face, establishes substantial grounds for believing that manifest injustice or miscarriage of justice has occurred. Gill Constr., Inc. v. 18th Vine Auth., 157 S.W.3d 699, 723 (Mo.App.2004). If plain error is facially established, the appellate court should then review the claim “to determine whether manifest injustice or a miscarriage of justice actually occurred.” Id.

Our review of the entire record reveals that no such manifest injustice took place by allowing Dr. Batty’s disputed testimony. A reading of his deposition and trial testimony together in their entirety shows that they were consistent with each other. Indeed, during his deposition Dr. Batty stated that infection was the sole cause of Mrs. Eagan’s dehiscence, yet he also stated that her bowel movement, subsequent to surgery, was an “inciting factor.” Dr. Batty’s trial testimony, taken in context, reads as such:

[Eagans’ attorney]: Is it your testimony that the only thing in this case that caused the dehiscence of the episiotomy repair was an infection?
[Batty]: No, it’s not.
[Eagans’ attorney]: Doctor, do you recall when I took your deposition?
[Batty]: Yes.
[Eagans’ attorney]: I’m going to hand you a copy of that deposition which should reference the date it was taken, do you recall it was May 17, 2001?
[Batty]: It sounds good.
[Eagans’ attorney]: I want to draw your attention to page 69 of your deposition and specifically starting on line 19. Did I ask you the question, “Do you have an opinion as to whether any of those items listed caused the dehiscence of Amanda Eagan’s episiotomy?” Do you see that question?
[Batty]: Yes.
[Eagans’ attorney]: What was your answer?
[Batty]: ‘Tes.”
[Eagans’ attorney]: And was the next question, “What is your opinion in that regard?” What was your answer to that?
[Batty]: “Infection.”
[Eagans’ attorney]: Do you see the next question, “And is that the only one?” Do you see that question?
[Batty]: Yes.
[Eagans’ attorney]: And what was your answer, sir?
[Batty]: ‘Tes.”
[Eagans’ attorney]: So at the time I took your deposition, you advised me that the only reason there was a dehis-cence here was an infection; is that correct?
[Batty]: Well, I think the record goes on to state that I think the complicating factor of the bowel movement was involved also. (Emphasis added).

Reading the entire transcripts together, it is clear that Batty did not change his opinion as to the cause of Amanda Eagan’s dehiscence. He maintained in his deposition and at trial that it was the likely result of a bacterial infection, yet in both instances he also allowed that Mrs. Eagan’s bowel movement was an additional factor. We find no manifest injustice resulting from the trial court’s failure to sua sponte exclude Dr. Batty’s trial testimony. Point denied.

II

In Point II the Eagans argue that the trial court erred in refusing to allow certain testimony from lay witnesses on the basis that such testimony was within the province of expert opinion. Generally, a trial court’s decision to exclude testimony is reviewed for an abuse of discretion, granting substantial deference to the trial court’s decision. Jones v. Grant, 75 S.W.3d 858, 862 (Mo.App.2002). When reviewing allegations of improperly excluded testimony “[t]he focus is not on whether the evidence was admissible but on whether the trial court abused its discretion in excluding the evidence.” Id. Even if the exclusion of testimony is erroneous, we will not reverse the judgment absent a finding that the error “materially affected the merits of the action.” Id.; Rule 84.13(b).

The Eagans argue that the rejected testimony was not opinion testimony at all and that the trial court thus erred in treating it as an attempt to introduce expert testimony through an unqualified lay witness. The Eagans contend that the excluded testimony merely showed what the witnesses observed and heard and was, therefore, admissible. Elmahdi v. Ethridge, 987 S.W.2d 366, 372 (Mo.App.1999). The Eagans point this court to four allegations of improperly excluded testimony. We address each in turn.

First, they argue that Bill Eagan, and his sister, Rebecca Roncelli, were improperly prevented from offering testimony regarding the length of time it took Dr. Duello to complete the surgical repair of Amanda Eagan’s episiotomy. Specifically, they allege that Mr. Eagan and Ms. Ron-celli should have been allowed to testify to the amount of time that elapsed from the moment Dr. Duello placed the first stitch in Amanda Eagan’s body to the moment when she placed the last stitch. In sustaining Dr. Duello’s objection to such testimony, the trial court stated that it would be improper to allow lay testimony about the duration of a medical procedure. Both Mr. Eagan and Ms. Roncelli made an offer of proof testifying that the duration of the procedure was between four and five minutes.

Expert opinion testimony is testimony that will aid the trier of fact in understanding the evidence or deciding a fact in issue that is offered by a witness based on the witness’ education, knowledge, skill, experience or training. Section 490.065, RSMo. (2000). Expert opinion testimony is usually based upon facts that the expert did not personally observe or of which the witness has no personal knowledge. “[A]n appellate court will generally not review evidence excluded by a trial court unless a specific and definite offer of proof was made at trial showing what the evidence will be, the purpose and object of the evidence, and each fact essential to establishing the admissibility of the evidence.” Terry v. Mossie, 59 S.W.3d 611, 612 (Mo.App.2001) (emphasis added). The Eagans made no attempt during their offer of proof nor here on appeal to demonstrate why the duration of the procedure is relevant to any fact at issue during trial (for instance, that performing the surgery and repair of the episiotomy in four or five minutes would deviate from the standard of care).

We do not believe that this particular testimony constituted opinion testimony at all, let alone expert opinion testimony. The trial court’s rationale for excluding the testimony was, therefore, incorrect, but that error does not necessarily require reversal. Although Ms. Roncelli expressed her answer in terms of her opinion about the length of the procedure, the word “opinion” does not make her testimony inadmissible. “Lay witnesses may couch their testimony in convenient shorthand even if it sounds like an opinion.” State ex rel Nixon v. Telco Directory Publ’g., 863 S.W.2d 596, 599 (Mo. banc 1993). It is clear that both Mr. Eagan and Ms. Roncelli testified that they were present during the entire time and saw the first stitch and the last stitch. Their proffered testimony was based on what they saw and should not have been excluded as expert opinion testimony.

Our inquiry does not end there, however, as we must determine the prejudicial effect of the erroneous exclusion of this evidence. Still v. Ahnemann, 984 S.W.2d 568, 572 (Mo.App.1999). The Ea-gans fail to satisfy their burden to show that the improper exclusion was prejudicial. They present no persuasive argument that the length of the procedure was directly relevant to an issue of negligence or that their expert’s testimony was hampered or undermined in any way by the absence of this evidence. We do not believe that the trial court’s ruling on the issue “materially affected the merits of the action.” Rule 84.13(b).

The Eagans argue next that the trial court erred in excluding testimony from Bill Eagan and Ms. Roncelli that they did not observe Dr. Duello perform a digital examination of Amanda Eagan’s rectum at any time following the surgery. Again the trial court excluded the proposed evidence on the basis that it invaded the province of expert testimony. Both witnesses made an offer of proof that they were in the room during the birth and subsequent surgical repair and that neither observed Dr. Duello place a finger in Amanda Eagan’s rectum at any time. The Eagans argue that a witness need not be a medical expert in order to testify about whether they saw a rectal exam performed because the exam involves merely placing a finger up the patient’s rectum. Again, we agree that the trial court erred in excluding this evidence. Whether or not a fact exists or an event occurred may be shown by testimony of a lay witness with the opportunity and means to observe that they did not see or hear the matter in question. See Morris v. Israel Bros. Inc., 510 S.W.2d 437, 441 (Mo.1974). Such so-called “negative evidence” is often vital in proving whether an event occurred. We cannot see how whether the two witnesses saw a penetration of Dr. Duello’s finger constituted expert testimony.

The Eagans maintain on appeal that the purpose of this testimony goes to establishing negligence, because, they allege, the failure to do a digital exam indicates a deviation from the standard of care when performing an episiotomy. We observe that upon his direct exam the Ea-gans’ liability expert never testified that the performance of a digital exam was required by the standard of care, although he said that he always does one. Dr. Duello’s attorney established, however, on cross-examination that the standard of care requires a digital exam. We have not been provided with the jury instructions on appeal, but it appears that the verdict director submitted two specifications of negligence. First, that Dr. Duello failed to diagnose and repair a laceration to the rectal mucosa or secondly, that she failed to adequately repair the external anal sphincter by not placing the sutures into the capsule surrounding the sphincter. No relationship between the failure to perform a digital exam and these submitted theories is shown by the testimony of experts in the case or the argument of counsel. The limited expert testimony was that the exam is done to see if things feel right. We do not believe that a significant enough relationship between the alleged failure to digitally examine and the Ea-gans’ actual theories of negligence is apparent in order to find prejudice from excluding the testimony. Here on appeal, it would require speculation to determine for our prejudice analysis that such an exam would have revealed the deficiencies in Dr. Duello’s care of which the Eagans complain. We also note that evidence of the failure to perform a rectal exam was introduced through Amanda Eagan’s testimony, and, generally, the exclusion of cumulative evidence will not be considered prejudicial error on appeal. Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 131 (Mo. App.2003). We find that the Eagans were not prejudiced by the improper exclusion of this evidence.

Next, the Eagans argue that the trial court erred in excluding testimony from Bill Eagan about the hand motions that Dr. Duello made when performing the surgical repair on Amanda Eagan. Mr. Eagan made an offer of proof where he apparently demonstrated to the trial court his recollection of Dr. Duello’s hand movements in performing the surgery. The Eagans made no attempt either during their offer of proof nor on appeal to demonstrate why Mr. Eagan’s recollection of Dr. Duello’s surgical motions were relevant to the establishment of any fact at issue during trial. See Mossie, 59 S.W.3d at 612. Regardless, we find no abuse of discretion in excluding from the jury Mr. Eagan’s reproduction of surgical methods of which he has no training or expertise.

Finally, the Eagans claim that the trial court erred in excluding testimony from Amanda Eagan that she had no signs of an infection after her hospital discharge. No offer of proof was made, and we could dispose of the issue on that deficiency alone. “Nothing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof.” Id. at 613. We agree, nevertheless, that a lay witness is not qualified to express an opinion as to whether she had or did not have an infection. Such a witness is, however, permitted to testify as to his or her own observations about the appearance and symptoms experienced by the witness. And, in fact, after the objection was sustained the witness did testify about such types of symptoms. In any event, we do not believe the trial court abused its discretion in finding that Mrs. Eagan, as a non-medically trained layperson, was not qualified to testify whether certain physical signs or symptoms were caused by an infection. Point II is denied.

The judgment is affirmed.

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

      . Additionally we note a practical consideration in such a case as this. The Eagans attempted to impeach Dr. Batty with alleged inconsistencies between his deposition and trial testimony. It is a fair assumption that this was a tactical decision.

      . Of course under certain circumstances a lay witness can introduce opinion testimony. See Skaggs v. Aetna Life Ins. Co., 884 S.W.2d 45, 47 (Mo.App.1994).

      . We also note that a lay witness may testify in the form of a lay opinion that in shorthand describes a bodily condition (such as the area looked infected). See Garvis v. K-Mart Discount Store, 461 S.W.2d 317, 322 (Mo.App.1970). That was not the question asked of Mrs. Eagan.


text:
    Roosevelt FLETCHER, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 85336.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 11, 2005.
    Timothy Joseph Forneris, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant Roosevelt Fletcher, Jr. (“Mov-ant”) appeals from the motion court’s judgment denying his post-conviction relief motion pursuant to Rule 29.15 without an evidentiary hearing, alleging ineffective assistance of- trial and appellate counsel. Movant was convicted by a jury of first degree murder pursuant to Section 565.020, RSMo 2000, and one count of armed criminal action pursuant to Section 571.015, RSMo 2000, for the death of Ka-tee Hessler. Movant was sentenced as a prior and persistent offender to two consecutive terms of life imprisonment.

On appeal, Movant argues the motion court erred in denying his Rule 29.15 motion because the record reflects that he received ineffective assistance of: (1) appellate counsel for counsel’s failure to assert a sufficiency of the evidence claim in Movant’s direct appeal; and (2) trial counsel for counsel’s failure to (a) explain the elements of first degree murder; (b) assert a viable defense; and (c) negotiate with the State regarding any plea arrangement.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    CARE CENTER OF KANSAS CITY, Appellant, v. Willye HORTON, Respondent Pro Se.
    No. WD 64613.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.
    Rehearing Denied Nov. 1, 2005.

      Hugh L. Marshall, Kansas City, MO, for appellant.
    Willye B. Horton, Kansas City, MO, pro se.
    Before: HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   LISA WHITE HARDWICK, Judge.

The Care Center of Kansas City sued Willye Horton for the balance due on an account for the care of her father in a skilled nursing facility. The trial court entered judgment in favor of Ms. Horton, finding the financial agreement between the parties to be ambiguous. The Care Center appeals. We reverse and remand.

Factual and Procedural HistoRy

On or about December 11, 1998, Ms. Horton admitted her 96-year old father, Willie Bennings, to the Care Center of Kansas City d/b/a Swope Ridge Geriatric Center (“Care Center”), a skilled nursing facility. Because Mr. Bennings had never learned to read and write, Ms. Horton had long ago obtained his Power of Attorney in order to transact business on his behalf.

On the day of her father’s admission to the Care Center, Ms. Horton executed a one-page document entitled “Swope Ridge Geriatric Center — Conditions of Admissions.” The final paragraph of the conditions stated:

6. Financial Agreement
The undersigned agrees, whether he/she signs as agent or as resident, that in consideration of the services to be rendered to the resident, he/she hereby individually obligates himself/herself to pay the account of the facility in full at discharge. [Sjhould the account be referred to an attorney for collection, the undersigned shall pay reasonable attorney’s fees and collection expenses. All delinquent accounts bear interest at the legal rate. If litigation results, the amount of the attorney’s fee shall be set by the court and not by a jury.

The following statements also appeared above the signature lines on the document.

The undersigned certifies that he/she has read the foregoing, receiving a copy thereof, and is the resident or is duly authorized by the resident’s general agent to execute the above and accept its terms.
I/We the undersigned agree on consent of admission, to pay all cost(s), charges and expense incurred on behalf of the resident admitted to Swope Ridge Geriatric Center.

Ms. Horton signed her name on the document’s three signature lines, indicating she was the “Responsible Party.”

The Care Center provided general nursing care for Mr. Bennings from December 11, 1998, until his death on May 7, 2002. Thereafter, the Care Center sent Ms. Horton a final account statement with a balance due of $14,773.27 for the care provided. Ms. Horton refused to pay the amount due and returned the account statement with the notation: “Deceased, not responsible for bills.”

The Care Center filed a petition for breach of contract and action on account against Ms. Horton. At the bench trial, Ms. Horton stipulated that $14,773.27 was due for her father’s care but she denied personal liability for the account. Ms. Horton testified that she signed the Conditions of Admissions pursuant to the Power of Attorney that allowed her to transact business on behalf of her father. She recalled telling someone in the Care Center’s admission office that she was on fixed disability income and could not afford to be personally responsible for her father’s account. She said the admissions representative responded, “You don’t have to worry about it.”

During closing arguments, the Care Center argued that Ms. Horton was bound by the “financial agreement” because the terms regarding her personal responsibility for the account were unequivocal and unambiguous. The trial court disagreed, stating that the document was labeled “Conditions of Admission” and the financial agreement was buried in “ambiguous language” in the last paragraph. The court questioned why Ms. Horton was not given a separate document to sign for guarantee of payment, instead of an admissions form. The court entered judgment in favor of Ms. Horton, concluding she was not bound by the ambiguous terms of the financial agreement that “individually obligated” the “agent” or “resident” to pay the Care Center account.

Point on Appeal

In its sole point on appeal, the Care Center contends the trial court erroneously applied the law in determining that the terms of the financial agreement were ambiguous and, therefore, unenforceable. The Care Center seeks reversal of the judgment and an award of damages, interest, and attorney’s fees pursuant to the contract.

In reviewing a court-tried case, we must affirm the judgment of the trial court unless it is unsupported by substantial evidence, against the weight of the evidence, or erroneously declares or applies the law. Cameron Mut. Ins. Co. v. Woods, 88 S.W.3d 896, 899 (Mo.App.2002). Where, as here, the essential facts are not in question, disputes arising from the interpretation and application of a contract are reviewed de novo as a matter of law. Id. Accordingly, we owe no deference to the trial court’s determination that the financial agreement was ambiguous.

The cardinal rule of contract interpretation is to ascertain the parties’ intentions and to give effect to that intention. Sonoma Mgmt. Co. v. Boessen, 70 S.W.3d 475, 479 (Mo.App.2002). Intent is to be determined from the contract alone and not based on extrinsic or parol evidence unless the contract is ambiguous. Id. Words used in the contract must be given their plain, ordinary meaning. Id. A contract is ambiguous only if its terms are reasonably open to more than one meaning, or the meaning of the language used is uncertain. Id. A provision is not ambiguous merely because the parties disagree over its meaning. Id. Furthermore, courts are prohibited from creating ambiguities by distorting contractual language that may otherwise be reasonably interpreted. Id.

The contract at issue is a one-page document entitled “Condition of Admissions.” The document sets forth the terms upon which Ms. Horton admitted her father to the Swope Ridge Geriatric Center. The document contains only six paragraphs, the sixth of which describes the “Financial Agreement” between the parties. The sixth paragraph states that “[t]he undersigned agrees, whether he/she signs as agent or as resident, that in consideration of the services to be rendered to the resident, he/she hereby individually obligates himself/herself to pay the account of the facility in full at discharge.” The document further states: “I/We the undersigned agree on consent of admission to pay all cost(s), charges and expenses incurred on behalf of the resident admitted to Swope Ridge Geriatric Center.” Ms. Horton signed the document on three signature lines that identified her as the “Responsible Party” for payment of the account.

Based on the plain and ordinary meaning of the words used in the Conditions of Admission, we find nothing to suggest the financial terms are uncertain or capable of conflicting interpretations. The agreement clearly states that a party who signs the document thereby accepts personal responsibility for payment of the resident’s account. Given the clarity of the contractual language, no separate document was necessary to bind Ms. Horton as the guarantor on her father’s account. The trial court erred in concluding the financial agreement was ambiguous and unenforceable. The contract must be enforced as written.

The judgment of the trial court is reversed. The cause is remanded for entry of judgment in favor of the Care Center and determination of damages, interest, and attorney’s fees, including the attorney’s fees on appeal. The Care Center’s motion for attorney’s fees on appeal is granted.

All concur.

      . In light of our finding that the contract was not ambiguous, we need not address the Care Center’s further argument that the trial court erred in considering parol evidence regarding Ms. Horton's understanding of the financial terms.


text:
    Thelma ANDERSON, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
    No. WD 64940.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Rehearing Denied Nov. 1, 2005.

      H. Kent Desselle, Independence, for Appellant.
    Stephen D. Manz, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Thelma Anderson appeals from the summary judgment in favor of American Family Mutual Insurance Company (American Family) on her petition for “specific performance” of Mo.Rev.Stat. Section 379.150, vexatious refusal to pay, and punitive damages. Because Ms. Anderson’s appellate brief fails to comply with the requirements of Rule 84.04, we dismiss this appeal.

Facts

Ms. Anderson alleged that in January 2003, her home sustained damage from a water leak. Her insurer, American Family, paid nearly $9,000 on Anderson’s claim pursuant to an insurance policy in effect at the time. In her petition, Anderson did not challenge the sufficiency of that payment. Rather, her petition alleged that American Family violated Mo.Rev.Stat. Section 379.150 by refusing to repair the property at her request. The circuit court granted American Family’s motion for summary judgment on grounds that Anderson’s claim was for water damage, while Section 379.150 applies to insurance claims arising from damage caused by fire. This appeal followed.

Discussion

American Family contends that Anderson’s appellate brief fails to comply with the requirements of Rule 84.04. We agree. The failure to substantially comply with Rule 84.04 preserves nothing for review. In re Marriage of Shumpert, 144 S.W.3d 317, 321 (Mo.App.2004). Failure to comply with Rule 84.04 merits dismissal. Bridges v. American Family Mut. Ins. Co., 146 S.W.3d 456, 459 (Mo.App.2004).

Anderson’s jurisdictional statement violates Rule 84.04(b), which requires that the jurisdictional statement in a brief “shall set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, section 3, of the Constitution whereon jurisdiction is sought to be predicated.” A deficient jurisdictional statement merits dismissing an appeal. White v. Darring ton, 91 S.W.3d 718, 722 (Mo.App.2002). Anderson’s jurisdictional statement contains no facts that indicate that jurisdiction is proper in this court. Anderson’s complete jurisdictional statement reads, “Appellant appeals from a summary judgment for the Respondents. The instant appeal involves an issue over whether the Supreme Court has exclusive jurisdiction. Hence, jurisdiction is proper in this Court pursuant to Missouri Constitutional Article 5 Section 3.” [Sic] This appeal does not, as far as we can tell, involve an issue “over whether the Supreme Court has exclusive jurisdiction,” and Anderson’s brief does not explain how that issue would, if applicable here, grant this court jurisdiction. Moreover, Anderson’s jurisdictional statement merely concludes that jurisdiction is proper, violating Rule 84.04(b)’s prohibition against conclusory statements.

Anderson’s statement of facts violates Rule 84.04(c), which requires “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” “The failure of an appellant to provide a fair and concise statement of facts is a sufficient basis to dismiss an appeal.” Finnical v. Finnical, 81 S.W.3d 554, 559 (Mo.App.2002). Anderson’s fact statement consists of five sentences of facts and a legal conclusion. The legal conclusion violates Rule 84.04(c)’s prohibition against argument in the fact statement. See Bridges, 146 S.W.3d at 459; Rasse v. City of Marshall, 18 S.W.3d 486, 489 (Mo.App.2000). Furthermore, Anderson’s fact statement does not provide the facts necessary to resolve the issues, such as the language of the insurance policy purportedly giving rise to American Family’s liability, whether Anderson ever demanded of American Family the relief sought, or whether American Family paid the claim or refused Anderson’s demand for payment or repair of her property. Anderson’s fact statement does refer to the insurance policy, apparently incorporating it by reference to the appendix, where the policy is copied. But the copy in the appendix skips every other page of the policy, defying her assertion in her briefs statement of facts that the copy of the policy “is a genuine and true and correct copy of the applicable insurance policy.” Thus Anderson’s brief fails to contain a “fair and concise” fact statement as required by Rule 84.04(c).

Anderson’s brief violates Rule 84.04(d)(5), which requires that each point relied on be followed by “a list of cases, not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority upon which that party principally relies.” “The requirements of Rule 84.04(d) are mandatory and must be strictly applied.” Martin v. Circuit Court of the City of St. Louis, 580 S.W.2d 307, 308 (Mo.App.1978) (citation omitted). Anderson’s points contain no list of authorities on which she relies. Although in some circumstances failure to list authority for the point relied on may not sink a brief, Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978), failure to list even the statute on which the appellant principally relies constitutes a deficiency meriting dismissal of this appeal.

Anderson’s brief violates Rule 84.04(h), which requires, among other things, that the appendix include a copy of the judgment appealed from and the complete text of all statutes claimed to be controlling on the issues on appeal, and that an appendix more than 30 pages long be bound separately. Violation of Rule 84.04(h) merits dismissal. In re Marriage of Shumpert, 144 S.W.3d at 321. Anderson’s appendix omits a copy of the judgment appealed from, and the text of Section 379.150 is not indicated by the appendix’s table of contents (though we found the text of the statute nestled in one document prepared by American Family that is copied in the appendix). The 51-page appendix is bound along with the brief and contains three sections, denominated “Al,” “A2,” and “A3,” which comprise various filings by the parties in the circuit court. Several of the filings included in the appendix are not identified in its table of contents. Each appendix section begins numbering anew, further violating Rule 84.04(h)’s requirement that the appendix pages should be “numbered consecutively.”

Finally, Anderson’s brief violates Rule 84.04(i), which requires that “All statements of fact and argument shall have specific page references to the legal file or the transcript.” Violation of Rule 84.04(i) merits dismissal. Speer v. K & B Leather Co., 150 S.W.3d 387, 389 (Mo.App.2004). Anderson’s brief cites not to the legal file or transcript but to its own appendix, and not even to specific pages in the appendix, but merely to whole sections of the appendix, which are up to 31 pages long. We adhere to the rule that “[a]n appellate court will not supply the deficiencies of an inadequate brief by independent, additional research because to do so would be inherently unfair to the opposition and parties in other cases awaiting disposition on appeal.” Id. (citing Thummel v. King, 570 S.W.2d at 686). We will not seine the record to locate factual support for assertions by the appellant. Block Fin. Corp. v. Am. Online, Inc., 148 S.W.3d 878, 890 (Mo.App.2004).

Because her brief fails to comply with the requirements of Rule 84.04, we dismiss Ms. Anderson’s appeal.

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

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


author: JEFFREY W. BATES, Chief Judge.

text:
    Paul R. TAYLOR, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26666.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 6, 2005.

      Mark A. Grothoff, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Paul Taylor (“Taylor”) appeals from the denial of his motion to vacate, set aside or correct judgment or sentence pursuant to Rule 29.15. His amended motion alleged, inter alia, that trial counsel was ineffective for not objecting to comments in closing argument which permitted the jury to consider Taylor’s prior convictions for the purpose of determining his guilt or propensity to commit crimes. Following an evidentiary hearing, the motion court denied this aspect of the amended motion on the grounds that the prosecutor’s arguments either constituted appropriate comments concerning Taylor’s credibility, or they were invited by Taylor’s own trial strategy. Taylor claims the motion court’s conclusions are clearly erroneous. We affirm.

I. Facts and Procedural History

Taylor was charged by information with committing the class A felony of murder in the second degree in violation of § 565.021. This murder charge arose out of an altercation in which the victim, Robert Wylder (“Victim”), was beaten to death by Taylor. The information also alleged that Taylor was a prior offender because he had previously pled guilty to the felony offense of unlawful use of a weapon.

At trial, the State presented evidence that Victim was sitting in his truck with a passenger, Brian Watker, when Taylor walked up and struck Watker without provocation. The blow knocked Watker out. When he regained consciousness, he saw Taylor sitting astride Victim’s chest, beating him. Watker left the scene to get help, but Victim was already dead when Watker returned with the police. Taylor presented evidence that it was Victim and Watker who attacked Taylor without provocation; he merely acted in self-defense to repel their attack. All three men were intoxicated when the brawl occurred.

The jury received verdict-directing instructions on second degree murder and the lesser-included offenses of voluntary manslaughter and involuntary manslaughter. See § 565.025. The law of self-defense was explained via a separate instruction. The jury acquitted Taylor of second degree murder and voluntary manslaughter, but he was convicted of involuntary manslaughter. Having found Taylor to be a prior offender as defined in § 558.016.2, the trial court imposed a sentence of seven years imprisonment. We affirmed Taylor’s conviction and sentence on direct appeal in State v. Taylor, 123 S.W.3d 924 (Mo.App.2004).

Thereafter, Taylor filed a pro se motion to vacate, set aside or correct judgment or sentence pursuant to Rule 29.15. Counsel was appointed, and he filed an amended motion on Taylor’s behalf. After an evi-dentiary hearing was held, the motion court denied the motion.

The facts supporting Taylor’s involuntary manslaughter conviction were extensively recounted in our opinion addressing the issues raised in his direct appeal and need not be repeated here. See Taylor, 123 S.W.3d at 925-28. We summarize below only those additional facts relevant to the issue presented by this second appeal: whether Taylor’s trial counsel was ineffective for not objecting to the prosecutor’s arguments concerning Taylor’s prior convictions.

During Taylor’s case in chief, he was asked about his prior convictions and gave the following testimony:

Q. And, before we get too far along, Paul, I want you to explain to the jury a little bit of some of the trouble you’ve had with the law in the past, okay?
A. Yes.
Q. Are you ready to do that?
A. Yes.
Q. Okay, sir, what sort of convictions have you had?
A. I’ve had an unlawful use of a weapon. I’ve had two D.W.I.s, domestic violence, and a paraphernalia.
Q. Okay, you said you’d had an unlawful-use-of-a-weapon conviction, right?
A. Yes.
Q. And, where was that at?
A. Stone County.
Q. How old were you?
A. Seventeen.
Q. And, you’re how old now?
A. Thirty-one.
Q. And, you said that you’ve had a couple of D.W.I.s?
A. Yes.
Q. Where were those?
A. Here in Taney County.
Q. And, you’ve had a drug paraphernalia and domestic assault?
A. Yes.
Q. Where were those?
A. Christian County.
Q. Let me ask you, Paul, have you ever had a trial on any of those prior convictions?
A. No, I have not.
Q. Did you plead guilty?
A. Yes, I did.
Q. Why did you plead guilty to those charges?
A. Because I was guilty.

Later in Taylor’s direct examination, he gave the following additional testimony concerning his prior convictions:

Q. Paul, do you remember being asked at some point by Detective Swan or Detective Rozell — well, let me back up, if I may. You explained to the jury that you were convicted in Stone County, Missouri, of unlawful use of a weapon, right?
A. Yes, I do.
Q. What kind of crime was that? Was it a misdemeanor—
A. — No. It was a felony.
Q. And, did you actually end up having to do some prison time because of it?
A. Yes, I did.

After Taylor testified about his prior convictions on direct examination, he was cross-examined on this subject. Taylor admitted that, after he was charged with second degree murder for killing Victim in September 2000, he committed an assault for which he was convicted on November 14, 2001. He denied, however, that he was convicted of a second assault on May 28, 2002. The trial court admitted certified copies of these convictions, which showed both assaults had been committed against Taylor’s wife. Even after reviewing the certified copies, Taylor steadfastly denied that he had been twice convicted of domestic violence after September 2000.

On redirect examination, Taylor was questioned once again about his prior convictions and gave the following testimony:

Q. Now, Paul, you told the ladies and gentlemen of the jury that you had an assault conviction out of Christian County, right?
A. Correct.
Q. And, [the prosecutor] presented to you two convictions, right?
A. Correct.
Q. Do you remember the additional conviction he showed you?
A. No.
Q. Can you just real briefly explain how those two things resulted, those two cases?
A. Resulted?
Q. How they came about.
A. How they came about, it’s been pretty hard — pretty hard times last two — you know, two years, two-and-a-half years, and you know, sometimes you can be pretty hurtful to your loved ones, and the way for my wife to — to get even with me at — at the time was she would call 911.
Q. In fact, Paul, those — those third-degree assaults, those are with regard to your wife, correct?
A. Correct.

At the instruction conference, the trial court decided to give Instruction No. 11, which was an impeachment instruction patterned after MAI-CR Sd 310.10. Just pri- or to the commencement of closing argument, the court read all of the instructions to the jury. Instruction No. 11 stated:

If you find and believe from the evidence that defendant was found guilty of the offense of unlawful use of a weapon, driving while intoxicated, possession of drug paraphernalia, driving while intoxicated, driving while license suspended, 3rd degree assault, and 3rd degree assault, you may consider that evidence for the sole purpose of deciding the believability of the defendant and the weight to be given to his testimony and for no other purpose. You must not consider such previous finding of guilt as any evidence that the defendant is guilty of any offense for which he is now on trial.

Near the end of the State’s rebuttal argument, the prosecutor began attacking Taylor’s credibility as a witness. During this phase of the argument, which covered only about four pages of the transcript, the prosecutor made four comments forming the basis for Taylor’s complaints in this appeal. To permit the specific comments challenged by Taylor to be evaluated in context, they are set forth below in italicized type:

Comments 1 and 2
Now, let’s talk about the defendant’s integrity and his honesty, when you talk about him. He came up and he decided he wanted to tell you a story. I can only say to characterize his story as memory is a kind factor. Memory is a kind factor. He only remembers the things that helped him, and if in fact they hurt him, he didn’t remember. Remember he didn’t tell you about all of the convictions. Let’s think about his credibility. Here’s a man that’s charged with murder in the second degree, and the police arrest him, and he’s charged, and he pleads guilty to domestic violence, and his explanation to you was “Well, I’ve been under a lot of pressure. I committed domestic violence and pled guilty for killing — for hitting my own wife.” Now listen to that, and what did he say was the reason you could get away with that? He said “I’ve been under a lot of pressure so I committed domestic violence.” I assume, hit his wife, assaulted his wife. Think about that. If that man will assault his loved one and seeks justification, what will he not do to a stranger? We cannot put a police officer with him 21 hours a day to correct his bad judgment. Society doesn’t owe that to us. His statement at least “Oh, I’m never anybody that tries to — tries to have fights, get in fights”.[] This is a whole litany of his fights and assaulting people, of unlawful use of a weapon.
Comment 3
Now, defense counsel, and he’s very admirably represented his client, but as I said before, that’s why we have prisons. We can’t put police officers behind people who use violence when they drink. We can’t do it. We just don’t have enough police officers, and every time we have known something about the defendant, he can’t control himself. He can’t keep the violence away, and again, I was like stunned when he said he wasn’t going to ask for help for the victim, but these domestic-violence cases occurred after he was charged with murder.
Comment 4
This case is very important, as the defense attorney said, and that is right. Can you believe this man’s testimony, two D.W.I.s, assault on his wife twice after this? Can you believe the credibility, his selective memory, unlawful use of a weapon? This is why we have penitentiaries, folks. That’s the reason we have them, and they’re horrible, and we don’t ask jurors to send people to the penitentiary lightly. This man cannot be trusted to live with liberty. He cannot be trusted. He’s shown time and time again that he has forfeited his right to live among free men. Our responsibility is clear. We have the responsibility to the defendant, and we have a responsibility to our society. Yes, we have a right to self-defense too.

In Taylor’s amended Rule 29.15 motion, he alleged that trial counsel’s failure to object to these comments permitted the jury to consider Taylor’s prior convictions for the purpose of determining his guilt or propensity to commit crimes. The motion court denied relief because the prosecutor’s comments were directed to Taylor’s credibility and were invited by his own trial strategy of using his prior convictions as substantive evidence of innocence. After the motion court denied Taylor’s motion, he appealed.

II. Standard of Review

Taylor’s amended Rule 29.15 motion alleged ineffective assistance by his trial counsel. The burden of proving this claim rested on Taylor. Rule 29.15(i). Missouri follows the Strickland standard to determine whether an attorney provided ineffective assistance to a criminal defendant. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). To prevail, Taylor had to prove: “(1) that his lawyer failed to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under similar circumstances; and (2) that he was prejudiced by counsel’s failures.” Black v. State, 151 S.W.3d 49, 54 (Mo. banc 2004). Taylor had to prove each portion of this two-pronged performance and prejudice test in order to succeed below on his ineffective assistance of counsel claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

In attempting to satisfy the first prong of the Strickland test, Taylor bore a heavy burden because a reviewing court presumes that trial counsel’s conduct was reasonable and effective. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). To overcome this “strong presumption” that counsel provided competent representation, Taylor had to prove “counsel’s representation fell below an objective standard of reasonableness.” Deck, 68 S.W.3d at 425-426. This standard is met by identifying specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professionally competent assistance. Id. at 426.

Taylor bore an equally heavy burden in proving the second prong of the Strickland test. Clayton, 63 S.W.3d at 206. For prejudice to exist, Taylor had to prove “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Black, 151 S.W.3d at 55.

Taylor’s amended motion was decided by the same judge who presided over Taylor’s criminal trial. After an evidentiary hearing, the judge denied relief. His decision is presumptively correct. See Bryan v. State, 134 S.W.3d 795, 798 (Mo.App.2004); Crawford v. State, 105 S.W.3d 926, 927-28 (Mo.App.2003). Our review is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). Findings of fact and conclusions of law are clearly erroneous only when, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

III. Discussion and Decision

The only issue presented by this appeal is whether Taylor’s attorney was ineffective for failing to object to the four comments made by the prosecutor during his rebuttal argument. Taylor contends that, by these comments, the prosecutor improperly argued Taylor’s prior convictions could be considered not only in weighing his credibility, but also as evidence of his guilt or propensity to commit crimes. Before addressing that central question, we must briefly review Missouri law concerning impeachment of a criminal defendant with prior convictions.

At common law, the defendant in a criminal trial could not testify on his own behalf. State v. Hutchinson, 458 S.W.2d 553, 554 (Mo. banc 1970). The right to do so was first conferred by statute in 1877. Id. The present version of this statute is contained in § 546.260. Subsection 1 of this statute states, in pertinent part, as follows:

No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may testify at his or her option either on behalf of or against the defendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case....

Thus, Taylor was a competent witness to testify on his own behalf, but he was subject to cross-examination as to any matter covered in his direct examination, and he could be contradicted and impeached like any other witness in the case.

One common method of impeaching a witness is by attacking his or her credibility through proof of prior crimes. Section 491.050 states:

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case. Such proof may be either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.

Because Taylor chose to testify on his own behalf in his criminal case, he was subject to impeachment with proof of his prior criminal convictions, pleas of guilty, pleas of nolo contendere and findings of guilt. § 491.050.

When a defendant elects to testify on his or her own behalf, the State has an absolute right to impeach the accused with prior convictions. M.A.B. v. Nicely, 909 S.W.2d 669, 671 (Mo. banc 1995); State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982); State v. Henschel, 159 S.W.3d 853, 856 (Mo.App.2005). To prove a conviction, a prosecutor may show the nature of the charge, place and date of the occurrence, and the sentence imposed. State v. Skelton, 887 S.W.2d 699, 704 (Mo.App.1994). If an accused makes statements designed to blunt the impact of a prior conviction, however, it is within the trial court’s discretion to permit the prosecutor to test and challenge such statements by going into the details of the crime leading to a prior conviction. Id.; State v. Simmons, 825 S.W.2d 361, 364 (Mo.App.1992). Further examination of the accused also is permitted when he or she initially fails to disclose all prior convictions. State v. Taylor, 589 S.W.2d 302, 304 (Mo. banc 1979); State v. Moore, 84 S.W.3d 564, 567-68 (Mo.App.2002).

“[WJhere prior convictions have been presented to a jury for the sole legitimate purpose of affecting a defendant’s credibility, the final arguments of the State should be carefully confined to that purpose and subject.” State v. Slay, 406 S.W.2d 575, 580 (Mo.1966). Under such circumstances, a prosecutor should not attempt to argue prior convictions as substantive evidence of the defendant’s guilt. See State v. Heinz, 607 S.W.2d 873, 880 (Mo.App.1980).

Although § 491.050 permits proof of pri- or convictions to be made by the record or through cross-examination, a defendant may disclose such information during direct examination to mitigate the effect of the disclosure on his or her credibility. See State v. Gregory, 42 S.W.3d 766, 771 (Mo.App.2001). In the case at bar, Taylor chose to address the topic of his prior convictions in his direct and redirect examinations. The manner in which he did so, however, went beyond the sole legitimate purpose of adducing evidence concerning his credibility in the following respects.

First, Taylor made it a point to emphasize that he had never been tried for any offense; he had always pled guilty because he was guilty. Moreover, Taylor pointed out that he had pled guilty to a felony charge of unlawful use of a weapon and served time in prison as the result of that plea. Taylor’s testimony implied that he always pled guilty when he knew he had done something wrong, even if the charge was very serious. See Simmons, 825 S.W.2d at 364; State v. Garcia, 682 S.W.2d 12, 14-15 (Mo.App.1984). Thus, as the trial court noted in its conclusions of law, Taylor attempted to use his record of prior criminal convictions as substantive evidence that he was innocent and had acted in self-defense.

Second, Taylor failed to disclose all of his convictions during his direct examination. On cross-examination, he refused to admit that he had two convictions for third degree assault against his wife. Taylor refused to admit a second conviction even after being shown a certified copy of the record.

Third, he attempted to blunt the impact of his convictions for unlawful use of a weapon and domestic violence. With respect to the former conviction, Taylor attempted to de-emphasize the matter by pointing out that he pled guilty to this offense 14 years earlier, when he was only 17 years old. With respect to the latter convictions, he attempted to excuse his behavior by denying that he had really assaulted his wife; instead, he claimed that when he would say hurtful things to his wife due to stress, she would “get even” with him by calling 911. We bear these facts in mind as we review Taylor’s arguments in this appeal.

The first rebuttal comment Taylor challenges is: “Think about that. If that man will assault his loved one and seeks justification, what will he not do to a stranger? We cannot put a police officer with him 24 hours a day to correct his bad judgment.” This comment was part of an overall attack on Taylor’s honesty and credibility by the prosecutor. We interpret this remark to mean that Taylor’s denial of responsibility for Victim’s murder was not credible. Taylor’s testimony was not believable because he had refused to admit responsibility for assaulting his wife and sought to blame his actions on stress. Thus, the jury could not rely upon Taylor’s own assessment of whether his behavior in a particular instance had been appropriate because his judgment was flawed. A prosecutor may legitimately comment on a defendant’s prior convictions to affect his credibility. State v. Blackburn, 789 S.W.2d 126, 128 (Mo.App.1990). Comment 1 does so, but it goes no further. Accordingly, it was not objectionable. Taylor’s counsel was not ineffective for failing to make a non-meritorious objection. Turner v. State, 158 S.W.3d 804, 807 (Mo.App.2005).

We consider the second, third and fourth rebuttal comments together. They are: (1) “This is a whole litany of his fights and assaulting people....” (2) “He can’t keep the violence away .... ” and (3) “He’s shown time and time again that he has forfeited his right to live among free men.” These remarks might have indirectly suggested that Taylor’s prior convictions should be used as substantive evidence of his guilt. Under the unique circumstances of this case, however, we conclude the prosecutor’s remarks were invited by Taylor’s own effort to use his prior convictions as substantive evidence of his innocence. Since Taylor injected this issue into the case through his own testimony on direct and redirect examinations, the State had a right to respond to this issue in closing argument. See State v. Davison, 457 S.W.2d 674, 676 (Mo.1970) (after defendant testified about how the police refused to let him tell his story at the station, the State could properly comment on this testimony in closing argument without violating the general rule that there should be no reference to an accused’s post-arrest silence); State v. Grissom, 804 S.W.2d 777, 779-80 (Mo.App.1990) (after the defendant testified about uncharged crimes in his direct examination, the trial court did not err in permitting the State to comment on such testimony in closing argument). A defendant may not take advantage of self-invited error or complain about matters he brings into the case. State v. Crenshaw, 59 S.W.3d 45, 50 (Mo.App.2001); State v. Kelly, 689 S.W.2d 639, 640-41 (Mo.App.1985). As Comments 2, 3 and 4 were appropriate responses to an issue injected into the case by Taylor, trial counsel was not ineffective for failing to object to these remarks. Turner, 158 S.W.3d at 807.

We also fail to see how counsel’s failure to object was prejudicial. In Taylor’s brief, he argues that “[h]ad objections been made, cautionary instructions would have been given, and there is a reasonable probability that the outcome of the trial would have been different.” In point of fact, the jurors did receive a cautionary instruction specifically limiting the permissible use of the evidence concerning Taylor’s prior convictions. Instruction No. 11, which was read prior to argument and was available to the jurors during deliberations, explicitly told them that they could consider the evidence of Taylor’s prior convictions “for the sole purpose of deciding the believability of the defendant and the weight to be given to his testimony and for no other purpose. You must not consider such previous findings of guilt as any evidence that the defendant is guilty of any offense for which he is now on trial.” Therefore, a specific cautionary instruction restricting the jurors’ use of evidence concerning Taylor’s prior convictions had already been given to the jury in the form of Instruction No. 11. “Appellate courts presume that the juries follow their instructions.” State v. Howard, 896 S.W.2d 471, 484 (Mo.App.1995). We believe the jury’s decision to acquit Taylor of second degree murder and voluntary manslaughter demonstrates that the jury was not improperly influenced by the prosecutor’s comments about Taylor’s prior convictions.

After a thorough review of the record, we do not have a definite and firm impression that the motion court made a mistake in denying Taylor’s request for post-conviction relief. Therefore, the motion court’s findings of fact and conclusions of law are not clearly erroneous. See Rule 29.15(k). The motion court’s order denying Taylor’s amended Rule 29.15 motion is affirmed.

GARRISON and BARNEY, JJ„ Concur.

      . All references to rules are to Missouri Court Rules (2005).

      . All references to statutes are to RSMo (2000).

      . During the State’s case, the trial court admitted two tape-recorded statements that Taylor gave to police. The statement attributed to Taylor by the prosecutor was contained on one of the tapes.

      . The motion court noted that Taylor chose to use a unique strategy in this case by testifying on direct that he had never been tried for any offense because he always pled guilty. "The import of this colloquy amounts to a strategy by the defense to use his prior tendencies to plead guilty to infer a propensity for always admitting his prior crimes to imply his innocence of the charges at hand. The prosecutor argued Movant’s priors in final argument in response to the defense’s unique use of Mov-ant's prior pleas of guilt to infer innocence.”

      . See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).