author: MARY K. HOFF, Judge. KENNETH M. ROMINES, Judge,

text:
    STATE of Missouri, Respondent, v. Glen E. McGOWAN, Appellant.
    No. ED 85114.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 28, 2006.
    Amy M. Bartholow, Columbia, MO, for appellant.

      Jeremiah W. (Jay) Nixon, Attorney General, Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for respondent.
   MARY K. HOFF, Judge.

Glen E. McGowan (Defendant) appeals from the judgment entered following a jury verdict convicting him of tampering with a motor vehicle, first degree, in violation of Section 569.080 RSMO 2000. The trial court sentenced Defendant to a term of ten years’ imprisonment.

The record, as pertinent to the points on appeal, reveals the following. On March 20, 2003, at approximately 6:20 a.m., an individual going by the name, of Charles Brown (Brown) stole a red and white 1992 Chevrolet S10 truck (Chevy truck) belonging to Ocbai Tekla by breaking the steering column and bypassing the ignition.

On March 22, Brown used the stolen Chevy truck to pick up his girlfriend, Sharon Malone (Malone), and Barbara Bost (Bost). Brown, Malone, and Bost drove around for a few hours doing drugs and then proceeded to Defendant’s house around 8:00 a.m. After sleeping at Defendant’s residence, Brown, Malone, and Bost did more drugs. Defendant, Brown, Malone, and Bost then decided to drive the Chevy truck to Columbia, Missouri, to party. Defendant and Bost sat in the back of the Chevy truck, and Brown and Malone sat in the front. After the four individuals ate at White Castle, Brown, Malone, and Bost bought more drugs, and the three of them used the drugs during the trip to Columbia.

En route to Columbia, the four individuals stopped in Wentzville. Brown got into a black Ford F150 truck (Ford truck) that was parked at a lumber yard, and Malone joined him. Defendant and Bost then moved to the front seat of the Chevy truck, and Bost drove. Bost started nodding off so she asked Defendant to drive. Bost pulled over, and Defendant started driving the Chevy truck. Bost “figured” the Chevy truck was stolen because Brown always had different trucks.

Trooper Mark Broniec (Broniec) received a dispatch regarding a stolen black Ford truck. The dispatch provided Bro-niec with the Ford truck’s license plate number. Broniec proceeded to a crossover on Interstate 70 (interstate) just east of the Warrenton exit and parked there to watch for the Ford truck. Shortly thereafter, the Ford truck passed Broniec’s parked car. Broniec followed the Ford truck, activated his lights, and attempted to stop the Ford truck. The Ford truck exited the interstate, abruptly stopped approximately one-third of the way up the exit ramp, and Brown exited the vehicle. Broniec stopped his vehicle behind the Ford truck, got out of his vehicle, drew his pistol, and pointed .it at Brown and Malone. Brown ran across the median to the westbound lane of the interstate. Malone headed in the opposite direction for the service road. Broniec arrested Malone but lost sight of Brown.

Nicole Barnes (Barnes) was traveling oh the interstate on March 22. She exited at Truxton and observed a patrol car stopping behind a dark truck. As she watched, Broniec exited his vehicle and drew his gun. Barnes saw the driver and the passenger of the dark truck exit the truck. The driver and passenger began running in opposite directions. When Barnes realized Broniec was chasing the passenger, Barnes opened her door, stood on her car, and watched the driver run to the interstate where he proceeded to jump into the bed of a small red and white truck sitting on the left shoulder under the overpass. The truck then drove away.

After Broniec arrested the passenger, Barnes told him what she had observed. Broniec called in a description of the red and white truck to his headquarters and told the dispatcher that the truck was driving westbound on ‘ the interstate. When Broniec searched the Ford truck, he seized substances later identified as marijuana and cocaine.

Trooper Maddox (Maddox) parked at a cross-over point on the interstate to watch for the red and white Chevy truck. When Maddox spotted a vehicle fitting the truck’s description, he pulled out behind it and activated his fights. The Chevy truck exited at a ramp, and Maddox followed. The truck came to a complete stop at the top of the exit ramp. Maddox stepped out of his vehicle with his shotgun and directed Defendant, who was driving the truck, to turn off the Chevy truck’s engine and to throw the keys outside the truck. When Defendant did not immediately 'comply, Maddox repeated his order. Defendant opened the truck’s door and yelled that there were no keys. Bost and Brown were in the truck with Defendant.

Maddox subsequently learned the Chevy truck had been reported as stolen. Maddox, with the assistance of other law enforcement officers, arrested Defendant, Bost, and Brown. The officers searched the Chevy truck and recovered items that appeared to be contraband. Among these items were substances later identified as codeine and cocaine. While searching the Chevy truck, Maddox noticed the steering column of the truck had been broken so the mechanism could be manipulated to bypass the ignition. When one of the other officers asked Defendant where he was going, Defendant told him that he had just met Bost and that he and the others were going to Columbia for a party. Defendant indicated to the officer that Brown had provided him with the Chevy truck. Brown subsequently showed Maddox how to start and stop the Chevy truck using a screw driver.

The State charged Defendant with two counts of possession of a controlled substance and one count of tampering in the first degree. Bost testified at Defendant’s trial. During Bost’s testimony, the State elicited from her that she had pleaded guilty to all of the crimes for which Defendant was being tried.

Malone also testified at Defendant’s trial. During her testimony, the State elicited that Malone had pleaded guilty to tampering in connection with the Ford truck and to possession of heroin and cocaine. Malone knew the Chevy truck was stolen but had not told Defendant that it was.

During Maddox’s testimony before the jury, Defendant interjected, “He’s lying.” At that point the State addressed Defendant and asked, “[Defendant], did you want to take the stand?” Defense counsel asked to approach the bench and requested a mistrial based on the State’s reference to Defendant’s election not to testify. The court denied the request and indicated that it would rather not highlight the remark to the jury by referring to it again. Defense counsel stated, “I’d rather it not be highlighted to the jury.” The court warned the State regarding its behavior, and the State replied, “... This is the second time today [Defendant] has spoken up in the middle of the trial. If he needs to speak in this trial then he needs to take the stand. It’s not appropriate for him to make comments, questions, answers or anything else from the seat over here.... ” The court agreed and told defense counsel to speak to Defendant about making comments. Defendant did not testify.

At the close of evidence, Defendant proffered a verdict director for tampering in the first degree, which included a elaim-of-right defense. The trial court refused the instruction. The jury acquitted Defendant of both drug charges but returned a guilty verdict on the tampering charge. The trial court sentenced Defendant to a term of ten years’ imprisonment. This appeal follows.

Defendant raises three points on appeal. In his first point, Defendant claims the trial court abused its discretion in overruling his motion for a mistrial after the State asked Defendant in front of the jury, “[Defendant], did you want to take the stand?” because this question improperly commented on Defendant’s exercise of his right not to testify. We find this dis-positive point requires reversal. Defendant’s second and third points relate to the trial court’s refusal to give Defendant’s proffered instruction regarding the offense of tampering in the first degree, which included Defendant’s elaim-of-right defense, and the trial court’s failure to declare a mistrial or to instruct the jury sua sponte to disregard the State’s elicitation from Defendant’s codefendants evidence of their plea dispositions and its later reminder to the jury of these pleas during closing argument. As these issues may not arise on retrial, we decline to address them.

Turning to Defendant’s disposi-tive claim of error, our standard of review for a trial court’s refusal to grant a mistrial is abuse of discretion. State v. Clark, 112 S.W.3d 95, 100 (Mo.App. W.D.2003). This is because the trial court has observed the complained of incident and is in a better position than an appellate court to determine what prejudicial effect, if any, the alleged error had on the jury. Id. We will find that a trial court abused its discretion when its ruling is clearly against the logic of the circumstances before it and when the ruling is so arbitrary and unreasonable as to shock our sense of justice and indicate a lack of careful consideration. Id.

Defendant argues that the State’s question improperly commented on Defendant’s exercise of his right not to testify. In order to keep from the jury any reference to a defendant’s constitutional right against self-incrimination, Section 546.270 provides that:

If the accused shall not avail himself ... of his ... right to testify ... it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.

When considering a defendant’s claim of an improper comment on his right against self-incrimination, we must consider the comment in the context in which it appears. State v. Neff, 978 S.W.2d 341, 345 (Mo. banc 1998).

Here, when Defendant blurted, “He’s lying,” while Maddox was testifying, the State asked Defendant, “[Defendant], did you want to take the stand?” Defendant asked to approach the bench, where he promptly requested a mistrial. The trial court denied the request and indicated that it would not tell the jury to disregard the State’s remark. Where an objection is made and overruled, a direct reference to a defendant’s failure to testify will almost invariably require reversal. Id. at 344; State v. Jackson, 792 S.W.2d 21, 23 (Mo.App. E.D.1990) (State’s objection, “They’re his shoes. If he wants to testify concerning the size of his shoes, he can,” found to be a direct infringement upon the defendant’s right against self-incrimination that mandated a new trial). A prosecutor’s use of words such as “defendant,” “accused,” “testify,” or equivalent words constitutes a direct reference to a defendant’s failure to testify. Neff, 978 S.W.2d at 344. We find the State’s question to Defendant was a direct reference to Defendant’s failure to testify.

We recognize that the accused may waive his statutory right to no reference to his failure to testify. State v. Stidham, 305 S.W.2d 7, 18 (Mo.1957). However, such a waiver usually occurs when a defendant voluntarily elects to testify under oath or when a defendant testifies though not under oath. State v. Clark, 759 S.W.2d 372, 373-74 (Mo.App. E.D.1988) (defendant stated in presence of the jury that he was in police custody on an unrelated matter when the crime for which he was being tried was committed; defendant’s statement constituted a waiver of the privilege against self-incrimination and any comment as to defendant’s failure to testify in support of this statement was permissible); Stidham, 305 S.W.2d at 18 (defendant took stand in his defense; thus, his failure to deny incriminating facts was legitimate subject for state’s comment in closing argument); State v. Brannson, 679 S.W.2d 246 (Mo. banc 1984) (defendant undertook own defense and effectively injected himself into the mainstream of the evidence; court did not reach question whether such conduct waived privilege because prosecutor’s objections did not constitute direct reference). Although the State claims the Defendant’s outburst was an attempt to discredit Maddox’s testimony without Defendant taking the stand and argues Defendant thus waived his right to be free from the State’s commenting on this failure to testify, we find that Defendant’s two-word statement did not open the door to the State’s direct reference.

Furthermore, considering the context of the State’s question, we conclude it was improper. Although the State’s comment purported to respond to Defendant’s allegation of false testimony by a State witness, the State had other means available to it to curtail further unsworn comments by Defendant, including the State saying something out of the presence of the jury and requesting the court to admonish and to warn Defendant against future outbursts.

Additionally, we find the State’s question here was not a fair response. “Where ... the [State’s] reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant ..., there is no violation of the privilege [against compulsory self-incrimination].” United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). We note many cases conclude that a reference by the State to a defendant’s failure to testify was a fair response invited by the defendant’s comment or argument because the reference was found to be indirect, see e.g., State v. Elam, 89 S.W.3d 517, 525 (Mo.App. W.D.2002) (finding no intent to magnify defendant’s failure to testify in single, ambiguous comment, which responded to defendant’s allegation of inconsistent testimony); or to be not addressing the defendant’s silence, see United States v. Green, 324 F.3d 375, 382 (5th Cir.2003) (prosecutor’s comments, considered in context, were not referencing defendant’s silence and were merely in response to defendant’s argument that the government failed to turn over intercepted conversations); United States v. LeQuire, 943 F.2d 1554, 1565, 1567 (11th Cir.1991) (examined in the context in which it was made, prosecutor’s statement that defendant did not “have the guts to tell it about the Colombians and get on that stand” was not manifestly intended to be a comment on defendant’s failure to testify but rather intended to rebut defendant’s accusation that government witnesses were liars); People v. Kevorkian, 248 Mich.App. 373, 639 N.W.2d 291, 329 (2002) (prosecutor’s objections and comments did not constitute direct and unequivocal references to defendant’s failure to testify but merely amounted to objections to defendant’s repeated and improper attempts to inject facts not in evidence in to his closing statement). In contrast, we find the State’s question, considered in the context in which it was made here, constituted a direct and unequivocal reference made to the jury intending to draw attention to Defendant’s failure to testify. Cf. Brannson, 679 S.W.2d at 250.

Given Defendant’s objection and the trial court’s failure to take any remedial action to cure any harm the State’s remark may have inflicted upon Defendant, we conclude the trial court’s ruling was an abuse of discretion. See Neff, 978 S.W.2d at 345, 347.

In light of our holding, we decline to address the remaining points raised by Defendant on direct appeal. The judgment of conviction is reversed and the case is remanded for a new trial.

LAWRENCE E. MOONEY, P.J., concurs.

KENNETH M. ROMINES, J., dissents in separate opinion.

KENNETH M. ROMINES, Judge,

dissenting.

I dissent. Glen McGowan was charged by an amended information in Warren County with Tampering in the First Degree, two counts of Possession of a Controlled Substance, and as a Prior and Persistent Offender, having been previously convicted in Dunklin County in 1993 of Forgery, and in 1995 in Dunklin County of Possession of a Controlled Substance in a County Jail. Neither appellant nor his counsel contest the sufficiency of the evidence to convict.

In the company of Charles Brown (aka Red, Charlie Brown, James Gillespie, and Moody), Sharon Malone, and Barbara Bost, McGowan was involved in an adventure across six Missouri Counties ending in Montgomery County, the objective being to “... party in Columbia ...,” involving two stolen trucks, heroin, cocaine and codeine.

The record before the Judge and Jury showed beyond a reasonable doubt that: on 20 March 2003 Brown stole a red and white Chevrolet S-10 owned by Ocbai Tek-la, from a Church parking lot; on 21 March Brown, with Malone, picked up Bost in the stolen S-10, did drugs, then drove to McGowan’s apartment between 3:00 A.M. and 4:00 A.M.; more drugs; all who testified at trial were consistent that McGowan took no drugs; off to Columbia, Brown driving, Malone in front, Bost and McGowan in back; the S-10 was conveniently altered so that it could be operated with a screw-driver in the steering column; after the compulsory “bag of bombers” from White Castle, Brown exits 1-70 at Wentzville, pulls into a lumber yard, and apparently tiring of the close quarters in the S-10, steals, in full view of McGowan, a black Ford F150, the property of Charles Marks; Brown and Malone return to 1-70 in the Ford F150, with Bost and McGowan following in the S-10; starting to nod asleep Bost turns the driving duties over to McGowan; Trooper Mark Broniec is informed of the stolen Ford F150 and the plate numbers, parks his car east of the Warrenton exit, and almost immediately sees the Ford F150, the trooper pursues, catches the truck near the Truxton exit where Brown was speeding up and weaving through traffic to avoid the trooper; with the trooper’s lights on, Brown goes from the passing lane to the exit ramp beyond the normal entrance; with the trooper close behind on the exit ramp Brown and Malone bolt the truck in opposite directions and let the truck roll into the trooper’s car; the trooper catches Malone, puts her under arrest and calls for back-up; Brown crosses the median and gets in the bed of the Chevy S-10 driven by McGowan and leaves the scene; Nicole Barnes sees the actions of Brown and McGowan, gives the truck’s description to Trooper Broniee, who reports the vehicle and the direction being traveled; Trooper Anthony Maddox spots the vehicle as he waits in a cross-over on 1-70; Trooper Maddox makes eye-contact with McGowan, McGowan crosses lanes and exits on Highway 19, the truck stops and Trooper Maddox, with weapon drawn, demands the vehicle to be turned off and the keys thrown out, McGowan responds that there are no keys, the truck was turned off with the handy screwdriver; McGowan, Bost and Brown are arrested; the troopers find heroin and cocaine in the Ford F150 and on Malone, and find cocaine and codeine in the Chevy S-10.

Trial was held in Montgomery City on 16 June 2004, ten witnesses testified, the transcript of trial contains two hundred and seventy-seven pages, ten exhibits were shown the jury, yet the majority focus is on two lines of the transcript. The majority citation to State v. Neff, 978 S.W.2d 341 (Mo. banc 1998), and the application of Neff to this case I find disingenuous.

The privilege against compulsory self-incrimination set out in the 5th Amendment, and Art. I § 19, Con. of Mo. protect against the same potential abuse: “... That no person shall be compelled to testify against himself in a criminal cause.... ” The history behind the inclusion of these words in our organic documents is clear: the state cannot “torture” a defendant either physically, or by compelling his own testimony.

In the instant case defendant McGowan was not “compelled to testify.” Though testify he did by saying “... He’s lying ...,” to which the response was not, “Judge this is the second time today” or “... do you want to ask the questions ...,” but “... Mr. McGowan, did you want to take the stand?” These nine words do not require a new trial. I find, in the context of the trial situation facing the trial judge, the manner in which the Court responded was logical, appropriate, an exercise in prudence, and carefully done. State v. Clark, 112 S.W.3d 95, 100 (Mo.App.W.D.2003). There is neither a direct nor oblique reference to Defendant’s guilt, nor to the fact that Defendant did not testify.

The incident in toto is as follows:

Q. Okay. So the thing that Mr. Ga-bel is trying to do here is trying to basically confuse the jury and twist it around. It’s not what you said.
THE DEFENDANT: He’s lying.
MR. WRIGHT: Mr. McGowan, did you want to take the stand?
MR. GABEL: Your Honor, can we approach?
(Counsel approached the bench and the following proceedings were had.)
MR. GABEL: Your Honor, I’m asking for a mistrial with the Prosecutor’s direct reference to my client’s refusal to testimony. With prejudice.
MR. WRIGHT: It would not be with prejudice. We’ll do it again.
THE COURT: The request for mistrial is denied. I’m going to let it pass at this point without mentioning it to the jury and telling them to disregard it.
MR. GABEL: I’d rather it not be highlighted to the jury.
THE COURT: I don’t intend to highlight it but the request for mistrial is denied. Mr. Wright, let’s not do that.
MR. WRIGHT: I understand. This is the second time today Mr. McGowan has spoken up in the middle of trial. If he needs to speak in this trial then he needs to take the stand. It’s not appropriate for him to make comments, questions, answers or anything else from the seat over here. That is inappiopriate. There’s nothing I can do about it if he’s going to make comments or statement.
THE COURT: Well, there’s nothing I can do about it, either.
MR. WRIGHT: I understand, but that’s the second time today he’s made comments, questions from his seat and that’s inappropriate.
THE COURT: Well, I agree with that. Mr. Gabel, I think you need to talk to your client about that.
MR. GABEL: I will talk to my client.

The prosecutor’s retort was not an attempt to mislead the Jury nor to invite the Jury to misapply the Court’s instructions. Indeed, the verdicts on the three submitted Counts belies that the Jury was effected at all with the by-play between the defendant and the prosecutor: the Jury returned a verdict of guilty on Tampering in the First degree, and not guilty of Possession of Cocaine, and not guilty of Possession of Codeine. It is difficult to reconcile that the Jury was misled by the prosecutor’s comments as to tampering but not as to the two drug counts. The answer is of course that the prosecutor’s comment had no impact on this Jury at all. The judge recognized it: “... I’m going to let it pass at this point without mentioning it to the Jury and telling them to disregard it ... ”, defense counsel recognized it: “... I’d rather it not be highlighted to the Jury ... ”; we should recognize it.

The penchant for bright-line rules, while understandable, allows for too quick consideration based on buzz-words, as opposed to the application of rules to ever-changing factual records. This case is an example. The words here alone are damning.

The result reached does not reflect the principle set out in Neff. I read Neff to say there is no hard and fast rule, and that reliance on § 546.270 RSMo. is here misplaced:

Section 546.270 was first enacted in 1877. 1877 Mo. Laws 356. Its primary purpose was to negate the common law rule that a defendant could not testify in his own defense. See State v. Chyo Chiagk, 92 Mo. 395, 4 S.W. 704, 707-08 (1887). It also preserved the pre-exist-ing constitutional prohibition against commenting on a defendant’s exercise of his right to remain silent.
By its terms, this statute does not mandate a mistrial in every case where there is a reference, direct or otherwise, to a defendant’s failure to testify. Neither has this Court held that a direct reference always requires a mistrial. For example, it is hard to imagine a more direct reference to the defendant’s failure to testify than for the trial court to give a jury an instruction on the subject....
No sound historical argument, rooted in the statute or the precedent of this Court, supports the sweeping claim that regardless of the circumstances, a direct reference to the defendant’s failure to testify mandates a mistrial.

Neff, 978 S.W.2d at 344-45.

These words from Neff neither compel nor condone the result reached.

Purists we are not else why allow confessions; fingerprints; blood tests; DNA samples; and the removal of foreign objects from a defendant. All surely are a more direct attack on the defendant’s right not to be compelled to testify than the words in context in the present case.

Simply put, we look for legal error, that means error of the judge. The majority states the standard correctly as State v. Clark, 112 S.W.3d 95 (Mo.App. W.D.2003). The Circuit Judge in this cause had heard twenty-six years worth of trials as a Judge before 16 June 2004, the response in this cause was not illogical but prudent; the ruling was fair and understood as such by counsel; justice was served not shocked.

Defendant raises two additional claims of error: the first is the refusal of Instruction A. Defendant sought his own verdict director based on MAI-CR3d 323.22. The form chosen by Defendant was a special negative defense which requires affirmative evidence of claim of right. As the Trial Judge recognized this evidence did not exist, thus no error; the remaining claim is brought by appellate counsel, not trial counsel. Appellate counsel now urges, with no contemporaneous objection at trial, plain error review of testimony of Bost and Monroe as to the disposition of the crimes to which they pled from this same incident.

There is simply no error. Trial counsel for Defendant must have believed Christmas was early when Bost and Malone testified as to their involvement and plea dispositions on direct by the prosecuting attorney. Defendant’s counsel clearly used this testimony to achieve two not guilty verdicts. A clearer example of trial strategy for not making an objection would be difficult to find.

In sum, two good young and aggressively competent young lawyers, a Trial Judge of twenty-six years, and a Jury met in Montgomery City and produced a fair result after a fair Trial. This case should be affirmed.

I dissent.

      . All subsequent statutory citations are to RSMo 2000, unless otherwise indicated.

      . Brown uses several aliases, including "Red,” "Charlie Brown,” “James Gillespie,” and "Moody.” He will be referred to in this opinion as "Brown.”

      . A quick but thorough history of this privilege is found in, R. Carter Pitman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L.Rev. 763 (1963).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Torin DYSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86204.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 28, 2006.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Torin Tyrell Dyson appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief after an eviden-tiary hearing. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No 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:
    Kevin L. MURPHY, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 86174.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 28, 2006.
    Amanda R. Schehr, (Public Defender), St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Victor J. Melen-brink, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Movant, Kevin L. Murphy, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. On appeal, movant argues that the motion court clearly erred in denying without an evidentiary hearing his post-conviction claim that his plea counsel rendered ineffective assistance by failing to investigate a claim of self-defense.

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


text:
    Tim TEMPLE, Appellant, v. TREASURER of the State of Missouri as Custodian of the Second Injury Fund, Respondent.
    No. ED 86970.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 28, 2006.
    Susan K. Roach, Clayton, MO, for appellant.
    Jill L. Selsor, St. Louis, MO, for respondent.

      Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN.
   ORDER

PER CURIAM.

Tim Temple (“Temple”) appeals the final award of compensation, denying an award of permanent total disability to Temple, and finding that the Missouri Second Injury Fund (“Second Injury Fund”) was not liable. Temple claims the Labor and Industrial Relations Commission (“the commission”) erred in fading to consider the stipulation for compromise settlement entered into between Temple and his employer.

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 84.16(b).


text:
    Berry Lee LIVINGSTON, Plaintiff/Appellant, v. SCHNUCK MARKETS, INC., Defendant/Respondent.
    No. ED 86545.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 28, 2006.

      Berry Lee Livingston, Pro-Se, Troy, MO, for appellant.
    Brian N. Brink, Schnuck Markets, Inc., St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   PER CURIAM.

Berry Lee Livingston (Plaintiff) appeals from the trial court’s judgment granting Schnuck Markets, Inc.’s (Defendant) motion to dismiss with prejudice Plaintiffs petition alleging negligence and requesting damages on the ground that the petition failed to state a claim upon which relief could be granted. Because Plaintiffs appellate brief fails to comply with the appellate briefing requirements as provided by Rule 84.04, we dismiss the appeal.

Following the trial court’s entry of judgment in favor of Defendant, Plaintiff filed his notice of appeal and subsequent brief pro se. Defendant filed a response, arguing, inter alia, that Plaintiffs brief should be dismissed because it was deficient in that it failed to concisely state the underlying facts or legal reasons supporting Plaintiffs claims of error, contained abstract references to the law, and did not contain the relevant standards of review pertinent to each of Plaintiffs claims of error. We agree.

Pro se appellants are held to the same standards as are attorneys and must comply with the Supreme Court Rules, including Rule 84.04. Gant v. Lou Fusz Motor Co., 153 S.W.3d 866, 866 (Mo.App. E.D.2004); Davis v. Coleman, 93 S.W.3d 742, 742 (Mo.App. E.D.2002). Rule 84.04 provides the requirements for appellate briefs, and an appellant’s failure to comply with the rules and requirements of appellate procedure constitutes grounds for our dismissal of the appeal. Gant, 153 S.W.3d at 866.

An appellant’s brief must contain “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). The appellant’s brief must contain a “Point Relied On” for each claim, of error that: 1) identifies the ruling or action of the trial court the appellant challenges; 2) concisely states the legal reasons for the appellant’s claim of reversible error; and 3) summarily explains why, in the context of the case, the stated legal reasons support the appellant’s claim of reversible error. Rule 84.04(d)(1). The appellant’s brief also must contain an argument section that substantially follows each “Point Relied On,” includes a concise statement of the applicable standard of review for each claim of error, and advises the appellate court of how the facts of the case and principles of law interact. Rule 84.04(e); Davis, 93 S.W.3d at 743.

In this case, Plaintiffs brief fails to comply with Rule 84.04 to such an extent that his appeal is unreviewable. First, Plaintiffs statement of facts contains few facts while reciting irrelevant information, impermissible arguments, and abstract statements of law, all of which violate Rule 84.04(c). Second, Plaintiff sets out nine lengthy, incomprehensible “Points Relied On,” each with several subpoints, over the course of sixteen pages. All of the “Points Relied On” fail to state concisely the specific legal reasons for the trial court’s alleged error or to explain why those legal reasons constitute error in the context of the case, thereby violating Rule 84.04(d). Third, the argument sections of Plaintiffs brief fail to include concise statements of the applicable standards of review related to each “Point Relied On” and fail to refer to any principles of law to which the facts of the case can be compared or to any relevant legal authority. Moreover, Plaintiffs brief is confusing to read and impossible to understand as it contains numerous parentheses around words not meant to be contained in parentheticals and various references to inapplicable provisions of the United States Constitution.

Therefore, because Plaintiffs brief fails to comply with Rule 84.04, his brief preserves nothing for our review and is inadequate to invoke the jurisdiction of this Court. Gant, 153 S.W.3d at 866; Davis, 93 S.W.3d at 743. “This court should not be expected either to decide the case on the basis of inadequate briefing or to undertake additional research and a search of the record to cure the deficiency.” Davis, 93 S.W.3d at 743, citing Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978).

The appeal is dismissed.


text:
    Kardell E. SIMS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 65190.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2006.
    Mark A. Grothoff, Assistant State Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before: SMITH, C.J., and SPINDEN and HARDWICK, JJ.
   Order

PER CURIAM.

Kardell E. Sims appeals from the motion court’s order overruling, after an eviden-tiary hearing, his Rule 29.15 motion for post-conviction relief, alleging ineffective assistance of counsel. After a jury trial in the Circuit Court of Pettis County, the appellant was convicted of the class A felony of possession of a controlled substance with intent to deliver, a violation of § 195.211, and sentenced to twelve years in the Missouri Department of Corrections, to run consecutively with the prison sentence he was then serving.

In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 29.15 motion, after an eviden-tiary hearing, because the findings and conclusions of the motion court, in denying his motion, that he did not receive ineffective assistance of counsel for trial counsel’s failure to call certain witnesses at trial, are clearly erroneous.

We affirm, pursuant to Rule 84.16(b).


author: JOHN E. PARRISH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent v. Christopher Milo WHITELEY, Defendant-Appellant.
    No. 26603.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 28, 2006.
    Rosalynn Koch, Columbia,MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Judge.

On August 22, 2005, this court issued an opinion in this cause. On November 1, 2005, by order of the Supreme Court of Missouri, this cause was transferred to that court. On January 31, 2006, the Supreme Court entered an order retransfer-ring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.

Christopher Milo Whiteley (defendant) was convicted, following a jury trial, of attempted robbery in the second degree, §§ 569.030 and 564.011, and felony murder in the second degree, § 565.021.1. He appeals asserting, among other things, that the trial court erred in not instructing the jury on assault in the third degree, § 565.070.1, as a lesser-included offense of attempted robbery in the first degree. This court agrees. The judgment of conviction is reversed. The case is remanded for a new trial.

Chris and Angie Hamilton were planning to move from Illinois to property owned by Chris Hamilton’s mother in Dallas County, Missouri. In the fall of 2002, Chris Hamilton hired David Franklin and defendant to mow grass and clear brush and weeds at the property where the Hamiltons planned to move. Chris Hamilton told Franklin and defendant that he would be returning to Dallas County in a couple of weeks to pay them. However, the Hamiltons did not return to Dallas County until July 2003.

Chris Hamilton testified at defendant’s trial that although the amount to be paid had not been determined prior to the work being performed, he believed he owed Franklin and defendant $260 for the work they had done. He said he paid Franklin $160. He did not pay defendant at the time he paid Franklin. He told defendant he did not have the money but would pay him as soon as he could. He said at some point he paid defendant $20 but did not remember when.

On the evening of September 3, Chris Hamilton left his trailer on his way to Fort Bennett, a store. He was traveling along Trout Drive, a road that leads to Bennett Springs. He met a vehicle. Someone in the vehicle yelled out the window at him. He recognized defendant as the one who shouted at him. Mr. Hamilton stopped. He told the jury, “There was some conversation, words exchanged, at that he asked me if I had the money that I owed him and I said ‘yes I do’ and I paid him the money that I owed him.” He paid defendant $80, which he explained was the balance of $100 defendant was owed. Defendant demanded an additional $50. Defendant was on the passenger side of the truck in which he was traveling. As defendant left, “he kind of got up through the open window and he threw a beer bottle over the top of the truck” at Hamilton’s vehicle.

After Hamilton returned to his residence, defendant and Eldon Lee Sanders arrived in a white pickup truck. Both got out of the truck. Hamilton told the jury, “[Defendant] walked up to me and began punching me in the face.” He was asked what he did next. He answered, “I stood there. I just stood there. And then after he hit me several times in the face he went to the truck. He went around the back of the truck. He got a big piece of, a big club. It looked like a ball-bat or something like that. I could tell it was a club. I could see the color of the wood grain on it. And then he got that out of the back of the truck and then he started going around the front of the truck.”

Hamilton ran into his trailer. He got a shotgun, loaded it, and looked outside. He saw Sanders coming toward the trailer door. Hamilton told the jury, “He got to the entrance of the camper, I remember seeing his foot on the bottom step and I shot the gun.” Hamilton said, “They’d already beat me up, they’d already threatened to hurt me and my family and there was no way I was going to allow them inside my camper.” Mr. Hamilton said his wife “called 911 ... and she talked to somebody and told them there had been a shooting.” She got her son and left to go to a neighbor’s house. Chris Hamilton waited for the police to arrive. He was sitting next to a campfire when four law enforcement officers arrived. They observed the man who had been shot lying on the ground and determined that he was dead. Defendant had left the scene of the shooting. He was apprehended later at his home.

The charges for which defendant was found guilty were attempted robbery in the second degree (Count I) and felony murder in the second degree (Count II). The specification of the offense charged in Count II alleged that defendant committed the charged offense “in that on or about September 3, 2003, in the County of Dallas, State of Missouri, Eldon Lee Sanders was killed by being shot as a result of the attempted perpetration of the class C felony of attempted robbery ... committed by the defendant....”

The trial court instructed the jury with respect to Count I on the principal offense, attempt to commit robbery in the second degree, by instruction patterned after MAI-CR3d 304.06. Defendant tendered an instruction on assault in the third degree as a lesser-included offense of attempted robbery. The trial court refused the instruction explaining at the instruction conference, “Now there have been three instructions tendered by the Defendant and refused by the Court. The first one is marked Exhibit A. Exhibit A is a tender lesser-included offence [sic] instruction for Assault in the 3rd degree, MAI CR 3rd 319.16.” The Court refused that instruction stating “that assault in the third degree is not a lesser-included of-fence [sic] of attempted burglary [sic].”

Defendant’s Point IV argues that the trial court erred in refusing to instruct the jury on assault in the third degree as a lesser-included offense of robbery in the second degree. Defendant argues “that there was a basis in the evidence for an acquittal of the higher offense and a conviction only on the lower since there was evidence that [defendant] acted under a claim of right, as comprehended in § 570.070.1(1), since there was evidence that Hamilton had not paid him for his work as promised.” The state, however, contends that assault in the third degree is not a lesser-included offense of robbery in the second degree.

Section 569.030 defines robbery in the second degree and classifies that offense:

1. A person commits the crime of robbery in the second degree when he forcibly steals property.
2. Robbery in the second degree is a class B felony.

Its elements are (1) taking property that is owned by another, (2) for the purpose of permanently withholding the property from its owner, and (3) using physical force on the person from whom the property is taken for the purpose of forcing the person to deliver the property. See MAI-CR3d 304.06.

Section 565.070 defines assault in the third degree and classifies that offense. It provides, as applicable to the facts in this ease:

1. A person commits the crime of assault in the third degree if:
(5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative; ....
3. A person who violates the provisions of subsections (3) or (5) of subsection 1 of this section is guilty of a class C misdemeanor.

A lesser-included offense is an offense established by proof of the same or less than all the facts required to establish the commission of the charged offense. State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002). An offense is a lesser-included offense if it is impossible to commit the charged offense without necessarily committing the lesser. Id Or, as stated in State v. Harris, 598 S.W.2d 200, 202 (Mo.App.1980), “If the greater of two offenses includes all the legal and factual elements of the lesser, then the lesser is an included offense.”

Here, defendant was charged in Count I with attempted robbery in the second degree. The facts that supported that instruction include that defendant used physical force in that he struck Chris Hamilton in the face. The offense of third degree assault occurs, pursuant to § 565.070.1(5), when a person knowingly causes physical contact with another person in circumstances in which the other person regards the contact as offensive or provocative. The offense of attempted second degree robbery, based on the evidence in this case, includes all the legal and factual elements of the offense of assault in the third degree. Assault in the third degree is a lesser-included offense, under these facts, of the charged offense of attempted robbery in the second degree.

Was the trial court required to instruct on assault in the third degree? The answer to the question turns on whether the facts in the case provided a basis for acquitting defendant of the offense charged, attempted robbery in the second degree, and for convicting defendant of the lesser-included offense, assault in the third degree.

For there to be a basis for an acquittal of the greater offense, there must be a questionable essential element of the greater offense. If a reasonable juror could draw inferences from the evidence presented that an essential element of the greater offense has not been established, the trial court should instruct down. State v. Hineman, 14 S.W.3d 924, 927 (Mo.banc 1999). Doubts concerning whether to instruct on a lesser included offense should be resolved in favor of including the instruction, leaving it to the jury to decide. Id.

State v. Derenzy, supra, at 474-75.

Jeannie Greene testified at trial that defendant stated, shortly before going to Chris Hamilton’s property that Hamilton owed him money; that defendant was going to get his money. Eldon Lee Sanders was present. Defendant persuaded Sanders to take him to get the money defendant claimed he was owed.

Based on Ms. Greene’s testimony, the jury could have believed that defendant was not attempting to take property of another; that he was attempting to receive payment of a debt he was owed. Based on this evidence, the jury could have concluded that although defendant’s attempts at “self-help” were excessive, they did not constitute attempted robbery. See State v. Harris, 598 S.W.2d at 202. Point TV is granted. The trial court erred in not instructing on the misdemeanor offense of assault in the third degree as a lesser-included offense of Count I, attempted robbery in the second degree.

The conviction on Count II, felony murder in the second degree, was based on defendant having been convicted of the felony offense of attempted robbery in the second degree. Had the jury been instructed on assault in the third degree, a misdemeanor, and had the jury found defendant guilty of that offense, it would not have supported the conviction for felony murder in the second degree in that the applicable statute, § 565.021.1(2), requires the killing that would support a conviction of felony murder in the second degree to have occurred “in the perpetration or the attempted perpetration of [a] felony.” The conviction for felony murder in the second degree and the conviction for attempted robbery in the second degree must be reversed.

Defendant’s Point IV is determinative of his appeal. The other points raised are, therefore, moot. The judgment of conviction is reversed. The case is remanded for a new trial.

RAHMEYER, P.J., and LYNCH, J., concur.

      . References to statutes are to RSMo 2000.

      . § 565.021.1 provides, as applicable to Count II:
      A person commits the crime of murder in the second degree if he:

      (2) Commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felon or attempted perpetration of such felony.


author: PHILLIP R. GARRISON, Judge.

text:
    Darian SEIBERT, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26956.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 28, 2006.

      Mark A. Grothoff, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and Stephanie Morrell, Assistant Attorney General, Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Judge.

Darían Seibert (“Movant”) appeals from the denial of his Rule 29.15 motion for post-conviction relief. Movant alleges that the motion court clearly erred in denying his claim that his appellate counsel was ineffective for failing to raise, as an issue in his direct appeal, that the trial court erred in taking judicial notice of the records from the trials of his co-defendants, and in denying his claim that he was denied due process of law and equal protection under the law when the trial court relied on evidence and testimony presented at another trial that was later found to be involuntary. We affirm.

We affirmed Movant’s conviction on direct appeal in State v. Seibert, 103 S.W.3d 295 (Mo.App. S.D.2003). We recite the facts as related in that opinion without further citation.

Movant’s mother, Patrice Seibert (“Patrice”), lived in a mobile home in Rolla, Missouri with her five sons, including Mov-ant. Donald Rector (“Victim”), a seventeen-year-old “friend” who took medication for a mental disorder, also lived with them. On February 12, 1997, Patrice awoke to find that her twelve-year-old son, Jonathan, had died in his sleep. Afflicted with cerebral palsy, Jonathan suffered from seizures, was blind, could neither walk nor talk, and could not feed himself. Another of Patrice’s children, Michael, left the home to find Movant, who at seventeen was Patrice’s eldest child, and inform him of the situation. Michael found Movant at the home of Derrick Roper (“Roper”) and Jeremy Batcher (“Batcher”). The three had been drinking gin and vodka and using marijuana the night before, and resumed those activities sometime before Michael’s arrival that morning. Michael told Mov-ant that Jonathan was dead, and the two returned to Patrice’s house where Movant told her to contact the police. Movant then returned to the home of Batcher and Roper, where they resumed playing cards.

Patrice was afraid to contact the police because Jonathan had “sores” and she feared the police would accuse her of child neglect. Michael again went to Movant and told him Patrice was “going crazy.” Movant, Roper, and Batcher went to the trailer and devised a scheme to burn the trailer to “cover-up” Jonathan’s death. The plan called for Movant and Roper to obtain gasoline with funds provided by Patrice, who was also to send her two youngest children, Patrick and Shawn, to church that evening then leave the area. Finally, Movant and Roper were to set the trailer on fire.

Before the plan was carried out, the group (now consisting of Movant, Roper, and Patrice) discussed the need for “someone ... to be there” when the trailer burned so as not to arouse suspicion by leaving the severely handicapped Jonathan to be found alone. They decided to use Victim for that purpose.

Movant and Roper then went to three different stores in search of a gas can, bought one, filled it with gasoline, and called a cab to take them near the trailer park. Roper left the can in nearby woods as he did not want someone to see him with it. Then, the two went to the trailer and waited for the appropriate time to go forward with the plan.

Later, when school was out, Patrick and Shawn returned to Patrice’s home. The next arrival at the trailer was Victim, followed by Patrice and Roper. Still later, Patrice sent her younger sons, Patrick and Shawn, to church and Patrice packed a bag and some money and left the premises with a male friend of hers. With Victim asleep and the others gone, Roper retrieved the gas can from the woods and started pouring gasoline through the trailer.

When some of the gasoline got on Mov-ant, he went outside to wipe it off. When he re-entered the trailer, he saw Roper in the back bedroom, hitting Victim, who was apparently convulsing from a seizure. When Movant went to that area of the trailer house, he heard a screeching sound; immediately thereafter, the gasoline ignited. Before Roper and Movant were able to escape through the front door, the trailer was engulfed by fire. Movant was severely burned at this time, but did not die. Victim, who had been left behind, died from asphyxiation.

While in a hospital receiving treatment for his burns, police questioned Movant, who made an inculpatory statement. Pri- or to trial, Movant filed motions to suppress the statement, which were overruled. During Movant’s trial, the court admitted Movant’s statement into evidence over his objection. Other evidence at Movant’s trial included testimony he had given at Patrice’s earlier trial on the same charges. The court found Movant guilty of second-degree murder and first-degree arson and sentenced him to concurrent sentences of life in prison and twenty-five years’ imprisonment.

Movant filed a pro se motion to vacate, set aside or correct the judgment and sentence, pursuant to Rule 29.15, which was later amended by appointed counsel. After a hearing, the court entered its findings of fact and conclusions of law denying Movant’s motion. This appeal followed.

Appellate review of the denial of a Rule 29.15 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Rule 29.1600; Hill v. State, 160 S.W.3d 855, 857 (Mo.App. S.D.2005). A motion court’s findings are clearly erroneous only if a review of the entire record leaves us with the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

Movant presents two points on appeal. In Movant’s first point, he alleges the motion court clearly erred in denying his claim of ineffective assistance of appellate counsel. Specifically, Movant claims that his appellate counsel was ineffective in failing to raise on direct appeal that the trial court erred by taking judicial notice of the testimony and evidence presented at the trials of Movant’s co-defendants. We disagree.

To prevail on a claim of ineffective assistance of counsel, a movant must demonstrate that his attorney’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney, and that he was prejudiced by attorney’s performance. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To prevail on a claim of ineffective assistance of appellate counsel, a movant must show that counsel failed to raise a claim of error that a competent and effective lawyer would have recognized and asserted. Williams v. State, 168 S.W.3d 433, 444 (Mo. banc 2005). “The claimed error must have been sufficiently serious to create a reasonable probability that, if it were raised, the outcome of the trial would have been different.” Id. “The right to relief from an appellate mandate due to ineffective assistance of appellate counsel inevitably tracks the plain error rule; ie., the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice.” Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994).

Movant was tried by the court, without a jury. At trial, the prosecution presented one witness, and then addressed the court as follows:

[Prosecutor]: Your Honor, at this time too, I would ask the Court to take judicial notice of the proceedings which were held before you in the cases of State v. Patrice Seibert and State v. Derrick Roper and the evidence elicited there.
The Court: Notice taken.

No objection was made at that time. After the prosecution had offered its exhibits into evidence the following exchange took place:

[Prosecutor]: And Your Honor, I have for the Court’s convenience made a copy of the transcript of [Movant’s] testimony in the Patrice Seibert case. You may remember that was read into the record in the Roper case. And I have provided that for your perusal should you need it. [Defense Counsel]: I have no objection. I believe it’s a judicial admission and the Court is — there’s no recognizable objection that I know of.
The Court: Thank you. Is that an exhibit now?
[Prosecutor]: I did not make it an exhibit. Since you’re taking judicial notice of the entire record, I’m simply providing it for the Court’s convenience.
The Court: Thank you very much.
[Defense Counsel]: Your Honor, just for the purpose of house cleaning, I would object to the taking of judicial notice of the prior record as we weren’t a party in the prior lawsuits and our interests were not preserved for the purposes of examination of those witnesses.

The Court: The objection is overruled. Movant contends that the admission of evidence and testimony gathered at the trials of Movant’s co-defendants deprived him of his right to confrontation of those witnesses. He further asserts that had his appellate counsel raised it as an issue on direct appeal, a reasonable probability exists that the appellate court would have reversed his conviction.

Initially, we observe that Movant has failed to explain how reversible error could have occurred given this was a court-tried case. In a case where a jury has been waived, we presume the trial judge’s judgment was not influenced or prejudiced by inadmissible evidence, unless the record clearly indicates otherwise. State v. Ernst, 164 S.W.3d 70, 74-75 (Mo.App. S.D.2005). “In matters involving the admission of evidence, this Court reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Hayes, 113 S.W.3d 222, 226 (Mo.App. E.D.2003). “Absent some showing that the evidence inflamed the [fact-finder] or diverted its attention from the issues to be resolved, the receipt of evidence, even though [inadmissible], cannot constitute prejudicial or reversible error.” Id.

At trial, after presentation of evidence, the trial judge announced he would review the evidence and return a verdict at a later time. In a docket entry dated October 8, 2001, the trial court related that:

Court after reviewing all exhibits and testimony agreed to by the parties does deny the defendant’s motion for directed verdict at te [sic] close of all the evidence. [Court] finds defendant guilty of Murder in the second degree as lesser included offense of first degree murder as set forth as count one in the information. [Court] also finds the defendant guilty of arson in the first degree as set forth in count 2 of the information.

In pronouncing its judgment, the trial court made no clear statement of reliance on the testimony given at the trial of Mov-ant’s co-defendants. Additionally, we can find no other portion of the record indicating the trial court relied upon that testimony. Therefore, even if we were to determine that the testimony from those trials was inadmissible, Movant has not shown that the evidence played a critical role in the trial court’s decision. See Ernst, 164 S.W.3d at 75.

Secondly, as previously related, in order to prevail on a claim of ineffective assistance of appellate counsel, Movant is required to show that “the claimed error [is] sufficiently serious to create a reasonable probability that, if it were raised, the outcome of the trial would have been different.” Williams, 168 S.W.3d at 444. Mov-ant has failed to make this showing. In addition to the testimony complained of here, the trial court took judicial notice of Movant’s testimony from Patrice’s earlier trial involving the same offenses. Mov-ant’s attorney conceded that such testimony was admissible as a judicial admission. In that testimony, Movant admitted his involvement in the planning and execution of burning the trailer with the Victim in it. Movant’s inculpatory statement given to investigators was also introduced into evidence at trial. In addressing the prejudice issue, the Motion Court related the following:

Considering the fact that Movant admitted to his involvement in the crime, both in a confession and by testifying multiple times about his involvement during the pendency of his co-defendant’s and his prosecution, there is no reasonable probability that had the trial court not taken judicial notice, that the court would have reached a different result.

We do not believe this finding is clearly erroneous. Movant’s first point is denied.

In his second point, Movant claims that he was denied due process of law and equal protection under the law because the trial court relied on evidence and testimony presented at Patrice’s trial, which was later found to have been involuntary and inadmissible. The admission of evidence and testimony from Patrice’s trial is a claim of trial error, which is outside the scope of a Rule 29.15 motion. State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997). “Allegations of trial court error, reviewable on direct appeal, are not cognizable in a post[-]conviction motion.” State v. Meyers, 832 S.W.2d 318, 321 (Mo.App. E.D.1992). Because Movant’s claim is not cognizable in a post-conviction motion, the ruling of the motion court denying this claim is not clearly erroneous. Movant’s second point is denied.

The motion court’s denial of Movant’s Rule 29.15 motion for post-conviction relief is affirmed.

SHRUM, P.J., and BARNEY, J., concur.

      . All references to rules are to Missouri Rules of Criminal Procedure (2004), unless otherwise indicated.

      . The whereabouts of Michael at this time are not disclosed by the record.

      . There was some indication in the record that the fire started when the furnace came on.


text:
    Kelvin Dale WALKER, Petitioner-Appellant, v. Elizabeth Ashley WALKER, Respondent-Respondent.
    No. 26559.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 28, 2006.

      J. Michael Riehn, Law Offices of J. Michael Riehn, Cassville, for Appellant.
    No appearance for Respondent.
   PHILLIP R. GARRISON, Judge.

Kelvin Dale Walker (“Father”) appeals the trial court’s judgment denying his motion to modify custody regarding his three minor children, contending that substantial and significant changes of circumstances had occurred, that modification was in the children’s best interest, and that the trial court failed to make specific factual findings. We affirm.

On December 28, 2001, the marriage between Husband and Elizabeth Ashley Walker (“Mother”) was dissolved and they were granted joint legal custody of their three minor children, K.W., born July 25, 1989, L.W., born June 16, 1993, and K.D.W., born May 19, 1995. Mother was granted primary physical custody with Father receiving specific periods of custody, including one weekend per month during the school year, holiday visitation and the entire summer vacation when the children were out of school.

On June 10, 2002, Father filed a “Motion for Family Access Order” stating that Mother had denied him visitation and telephone contact with the minor children from January 1, 2002, through June 10, 2002. Following a hearing on Father’s motion, the court found that Mother had violated the judgment by denying Father specific visitation and telephone contact. The court ordered that the children be in the custody of Father from July 16, 2002, until August 17, 2002, at which time he was to return the children to Mother.

On May 27, 2004, Father filed a motion to modify the dissolution decree, and a motion for emergency relief and temporary custody of the three minor children alleging that substantial changes of circumstances had occurred with the minor children in that K.W. had been taken into juvenile custody in Prairie County, Arkansas, and Father had not been notified of this action. He sought legal and physical custody of all three minor children with. Mother to have reasonable visitation.

A hearing was held on the motion for emergency relief and temporary custody. The court entered a temporary order affirming the visitation schedule ordered in the dissolution decree and directed that Mother’s summer visitation be exercised only in the State of Missouri. Father was awarded temporary custody of K.W. upon his release from the juvenile authorities in Prairie County, Arkansas.

On Mother’s motion, a guardian ad li-tem, Amy L. Boxx (“Boxx”), was appointed and a hearing was held on Father’s motion to modify. In its judgment the court found that Father had failed to establish a substantial and significant change of circumstances, or that the best interests of the children required modification of the prior custody order. The trial court denied Father’s motion to modify and ordered that the court’s dissolution judgment, with regard to custody and visitation, remain in full force and effect. This appeal followed.

Appellate courts will affirm the trial court’s judgment in custody modification cases if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In re Marriage of Swallows, 172 S.W.3d 912, 914 (Mo.App. S.D.2005). “We accord a trial court’s judgment greater deference in custody decisions than in other cases.” In re Marriage of Pobst, 957 S.W.2d 769, 771 (Mo.App. S.D.1997). We also defer to the trial court’s determinations as to the credibility of the witnesses. Spradling v. Spradling, 959 S.W.2d 908, 910 (Mo.App. S.D.1998). We may only find that the trial court’s judgment was against the weight of the evidence, as Father urges here, if we are left with “a firm belief that the decree or judgment is wrong.” Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

In Point I, Father contends that the trial court erred in denying his motion because there was substantial and competent evidence of a change in the circumstances of Mother and/or the minor children, and that modification of custody was in the best interests of the children. He alleges that a substantial change in circumstances had occurred in that 1) minor child K.W. was taken into juvenile custody without Mother informing Father; 2) Mother did not abide by the joint custody plan, in that she interfered with his visitation rights; 3) Mother did not notify Father of the children’s health, education and welfare; 4) Mother’s home environment was not suitable for the children; and 5) Mother did not properly supervise the children, e.g. K.W. was allowed to consume alcohol while in her custody.

At the outset we note that Father fails to direct us to any case that holds that a trial court erred in denying a modification motion under these, or similar circumstances. Child custody modification is governed by Section 452.410.1. This statute requires that the trial court “shall not” modify an existing custody arrangement unless it finds a change in circumstances of the minor children or the custodian and that such a modification is in the best interests of the minor children. Section 452.410.1 (emphasis added). The burden is on the moving party to prove a substantial change has occurred and that a modification of custody is in the best interests of the minor children. McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo.App. W.D.1997). A change in circumstances must be significant before a custody decree can be modified. McCubbin v. Taylor, 5 S.W.3d 202, 207 (Mo.App. W.D.1999). An evidentiary basis to support a finding of changed circumstances must be present in order for the trial court to have jurisdiction to consider making a change in custody. Id. When a trial court does not find a substantial change of circumstances, it never reaches the best interests issue. Wood v. Wood, 94 S.W.3d 397, 405 (Mo.App. W.D.2003).

In this case the trial court found that Father did not meet this burden stating in pertinent part:

The credible evidence shows that certain changes have occurred since the original Dissolution Judgment. For example, both [Father] and [Mother] have violated the terms of that judgment by cohabiting with unrelated adults of the opposite sex while the minor children have been in their custody. However, the Court finds that none of these changes meet the statutory requirement of a substantial or significant change of circumstances, which would mandate a modification of the Court’s prior judgment regarding custody and visitation. Both parties continue to contribute to the numerous difficulties surrounding their relationship and their visitation with the minor children. It is also obvious from the testimony and demeanor of the parties that the acrimony which has characterized their past relationship continues to exist. This fact not only prevents the establishment of a positive and productive relationship between the parties, but it adversely affects the best interests of the minor children. There was no credible evidence that a change in custody would eliminate the animosity between the parties.

The trial court also found:

Having carefully considered the pleadings, evidence and proof adduced, including the report of the GAL [guardian ad litem], the suggestions of the parties and the Court’s determination as to the credibility of the witnesses, the Court enters the following findings and judgment. The Court has accepted some of the witnesses’ testimony and evidence as credible and has rejected other parts of that testimony and evidence as not credible. The findings and judgment entered by the Court are consistent with the Court’s determination as to credibility.

In light of our standard of review in child custody cases, we must defer to the trial court’s judgment as to the credibility of the witnesses. Spradling v. Spradling, 959 S.W.2d 908, 910 (Mo.App. S.D.1998). It is in the best position to observe their demeanor and gauge their truthfulness. See Tilley v. Tilley, 968 S.W.2d 208, 211 (Mo.App. S.D.1998). This principle, coupled with the greater amount of deference we are to pay to the trial court in child custody proceedings, weighs heavily against finding that the trial court’s judgment was against the weight of the evidence. See In re Marriage of Pobst, 957 S.W.2d at 772.

Essentially, in this case Father is arguing that the trial court’s factual findings were erroneous. However, in rejecting Father’s assertions that a substantial change has occurred, the trial court obviously found Mother’s evidence more credible. See Tilley, 968 S.W.2d at 211. We will not replace the trial court’s view of the facts with that of our own unless we are left with a firm belief that the judgment was wrong. Murphy, 536 S.W.2d at 32. We harbor no such belief here.

The record supports the trial court’s denial of Father’s motion. Father relies heavily upon the fact that K.W. was taken into juvenile custody for underage drinking. However, the trial court found there to be ample evidence that Mother and Father have equally contributed to the problems surrounding K.W. through their acrimonious relationship. Regardless, Father directs us to no case which holds that one incident involving one of multiple children is a substantial change of circumstances as to all of the children. The trial court also found that both parties contributed to the difficulties surrounding their relationship and that it was those difficulties that were responsible for each party’s interference with the other’s visitation rights. As such, we do not find that the trial court’s judgment was against the weight of the evidence. Accordingly, Point I is denied.

In Point II, Father argues that the trial court erred in failing to make the required written findings as to the factors in Section 452.375.2(1) to (8).

Ordinarily when, as is the case here, the parties do not agree as to custody, Section 452.375.6 requires that the trial court:

[S]hall include a written finding ... based on the public policy in subsection 4 of [452.375] and each of the factors listed in subdivisions (1) to (8) of [452.375.2] detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

This applies to custody modifications as well as initial determinations of custody. Wood v. Wood, 94 S.W.3d 397, 406 (Mo.App. W.D.2003); see Speer, 155 S.W.3d at 61.

However, child custody modifications are also governed by Section 452.410.1, which provides “a two-step process that courts must follow when determining whether or not to modify an earlier custody order.” In' re Marriage of Swallows, 172 S.W.3d at 914. Section 452.410.1 provides in pertinent part:

[T]he court shall not modify a prior custody decree unless ... it finds ... that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

A party seeking to modify a custody order “must first establish that a substantial ‘change in circumstances’ ” has occurred. L.T.C. ex rel. Collins v. Reed, 168 S.W.3d 142, 146 (Mo.App. S.D.2005) (quoting Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999)). A trial court must find such a change has occurred before reaching the best interests issue. Id. at 147; see also Wood, 94 S.W.3d at 405.

While Father is correct that the written findings requirement of Section 452.375.6 applies to child custody modification proceedings, it only applies to the best interests prong of Section 452.410.1. Wood, 94 S.W.3d at 406. As noted above, in this case the trial court denied Father’s modification motion without reaching the best interest issue, finding that no substantial change in circumstances had occurred. When a moving party has failed to establish a substantial change of circumstances, the trial court does not even consider whether a change in custody would have been in the best interests of the child. It would make little sense to hold that the trial court must make written findings as to an issue it is not required to consider. Therefore, written findings as to the best interests prong are not required unless the trial court first finds movant has established a substantial change of circumstances of the children or their custodian. Id. Accordingly, Point II is denied.

The judgment is affirmed.

BATES, C.J., and SHRUM, P.J., concur.

      . At the time the dissolution petition was filed, Mother and the three minor children resided in Des Arc, Arkansas.

      . Murphy, interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2004).

      . All references to statutes are to RSMo (2000) unless otherwise indicated.

      . We note that Rule 78.07(c) as amended effective January 1, 2005, now requires that, "[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” Speer v. Colon, 155 S.W.3d 60, 62 n. 9 (Mo. banc 2005). That rule, however, is not applicable here because this judgment was entered on September 9, 2004, and thus, prior to its effective date.

      . Section 452.375.4 provides:
      The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both par-
      ents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.

      .Section 452.375.2's factors are:
      (1)The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
      (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
      (3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
      (4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
      (5) The child’s adjustment to the child's home, school, and community;
      (6) The mental and physical health of all individuals involved....
      (7)The intention of either parent to relocate the principal residence of the child; and
      (8) The wishes of a child as to the child’s custodian.


text:
    SCRIVENER OIL COMPANY, INC., Employer-Appellant, v. DIVISION OF EMPLOYMENT SECURITY, State of Missouri, Respondent, and Jamie Obernuefemann, Claimant-Respondent.
    No. 27043.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 28, 2006.

      Rick E. Temple, Springfield, for appellant.
    Alan J. Downs, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Judge.

This is an appeal by Scrivener Oil Company, Inc. (“Employer”) from an order by the Labor and Industrial Relations Commission (“Commission”) affirming the decision of the Appeals Tribunal, which determined that Jamie Obernuefemann (“Claimant”) was not disqualified for unemployment compensation benefits by reason of her discharge by Employer. Employer contends that the Commission erred in finding that Claimant did not disobey an instruction of management, and because substantial evidence supported the conclusion that Claimant was discharged for misconduct connected with her work. We affirm in part and reverse in part.

Employer owns and operates eight Signal convenience stores. On September 9, 2004, Claimant, who was the manager of the Signal store in Buffalo, Missouri, was given a below satisfactory performance evaluation for cash register accuracy, inventory control, attitude and personnel relations. As a result of this unsatisfactory evaluation, Claimant was not given a pay raise, was given sixty days in which to bring the cash register accuracy and inventory control scores up to good or excellent, and to improve her attitude and personal relations with other employees. During this sixty-day probationary period, Claimant received several audits of the store which indicated a decrease in her cash register accuracy, inventory control, and lack of store cleanliness inside and out. Claimant was sent several warnings concerning her cash register accuracy and a copy of each was placed in her personnel file.

Employer also alleges that Claimant failed to follow instructions during the probationary period because she failed to move a beef jerky display as instructed by Employer’s inventory specialist. Employer was also concerned about Claimant’s attitude and lack of ability to set a good example for other employees. On October 13, 2004, Employer terminated Claimant’s employment.

The next day Claimant filed for unemployment benefits with the Division of Employment Security (“the Division”), which was contested by Employer. The Division issued its “Determination,” finding that Claimant was discharged by Employer on October 13, 2004, for “misconduct connected with work,” which disqualified her from receiving unemployment benefits for six weeks under the Missouri Employment Security Law.

On October 27, 2004, Claimant appealed the Division’s determination to deny her benefits to the Appeals Tribunal. A hearing was held and the Appeals Tribunal issued its findings of fact and conclusions of law reversing the Division’s determination. The Appeals Tribunal found that “[C]laimant [was] not disqualified for benefits, by reason of her discharge by [Employer] on October 13, 2004.” Employer filed an “Application for Review” of the Appeals Tribunal’s decision and the Commission entered its order, adopting and affirming the decision of the Appeals Tribunal. Employer now appeals.

Employer raises two points on this appeal. In Point I, Employer argues that the Commission erred in finding that Claimant did not disobey an instruction of management. In Point II, Employer asserts that the Commission erred by concluding that Claimant was not disqualified for benefits in that her failure to follow the above alleged instruction, and her declining job performance, amounted to misconduct connected with her work.

Our review of the Commission’s decision is governed by Section 288.210, which states in pertinent part:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Hoover v. Cmty. Blood Center; 153 S.W.3d 9, 12 (Mo.App. W.D.2005) (quoting Section 288.210.) We examine the whole record to determine whether there is sufficient competent and substantial evidence to support the award. Id. In the rare case in which the award is contrary to the overwhelming weight of the evidence, this standard is not met. Dolgencorp, Inc. v. Zatorski, 134 S.W.3d 813, 817 (Mo.App. W.D.2004). We will not substitute our own judgment for that of the Commission’s regarding its evaluation of the evidence relative to its findings. Dixon v. Div. of Employment Sec., 106 S.W.3d 536, 540 (Mo.App. W.D.2003). We defer to the Commission’s “determinations regarding weight of the evidence and the credibility of witnesses.” Id. On appeal, we are not bound by the Commission’s conclusions of law or its application of the law to the facts. Hoover, 153 S.W.3d at 12. Whether an employee’s actions constitute misconduct related to her work is a question of law. Dixon, 106 S.W.3d at 540.

In Point I, Employer argues that the Commission erred in finding that Claimant did not disobey an instruction from Employer because it failed to consider uncontroverted testimony and an exhibit which demonstrated that she failed to comply with an instruction given to her to move a beef jerky display. We agree.

The Commission adopted the decision of Appeals Tribunal and therefore we turn to that decision in reviewing the judgment of the Commission. The Appeals Tribunal found that Claimant was discharged, after being placed on probation, for her below satisfactory evaluation, because of a decline in cash register accuracy, inventory control, store cleanliness and “it was reported that [Claimant did not move the beef jerk [display] as suggested by an inventory specialist.” Relevant to Point I, the Appeals Tribunal found specifically that “[C]laimant was not told by the inventory specialist to move the beef jerky [display].”

Employer argues that there was uncon-troverted evidence that Claimant was told to move the display. At the hearing the following exchange occurred between counsel for Employer and Terry Bumgar-ner (“Bumgarner”), Employer’s retail coordinator, regarding a report made to him by Kelly Gremling (“Gremling”), Employer’s inventory specialist at the time:

Q. [A]nd at the time she prepared this, did she talk with you about the problem that she had with [Claimant]?
A. Yes.
Q. And — and what was the problem?
A. The — the specific problem here was she asked her to move a — shipper [display] and it never was moved. She asked I believe on the 28th of September it says there. And as far as October 7 it hadn’t been moved yet.
Q. So she — she would have went into the store not if something that needed to be changed for purposes of salebility [sic]?
A. Right.
Q. And would have directed [Claimant] to move that?
A. Right.
Q. And would [Claimant] have been responsible to follow those directions?
A. Yes.

When Claimant was asked if Gremling told her to move the display she stated, “yeah, I guess she probably did.” When asked if she moved it she replied, “I guess I didn’t. I don’t remember the instance, but I’m not going to deny it.” Furthermore, Greml-ing’s report was entered into evidence and it stated, in pertinent part:

I asked [Claimant] to move a Jack Link jerky shipper [the display] to a different position on the counter or shelf to help sell the product down. I made my request on September 28th. I was back at her store a week later [and] the shipper was in the same place.

As noted above, the “Commission determines the weight and credibility of the evidence, and, when that evidence conflicts, the Commission’s determination of the facts is conclusive.” Geiler v. Mo. Labor and Industrial Relations Comm’n, 924 S.W.2d 606, 608-609 (Mo.App. E.D.1996). However, the Commission may not “disregard or ignore undisputed testimony of a witness not shown to have been impeached or disbelieved by the agency.” Lusher v. Gerald Harris Const., Inc., 993 S.W.2d 537, 545 (Mo.App. W.D.1999). Only when the Commission finds it to be unbelievable or not credible, is it free to ignore such evidence or testimony. Id.

There is no evidence in the record to support the Commission’s express finding that Claimant was not told to move the display. The Commission did not specifically find Bumgarner’s testimony unbelievable. In fact, the Commission did not address Bumgarner’s testimony or Greml-ing’s report in its decision. Given the absence of contradictory evidence in the record before us, the Commission was not free to disregard the testimony and the report. See Id. A clear review of the whole record simply reveals that Claimant was told to move the display.

We note, however, a simple failure to follow instructions is not necessarily grounds for a finding that a claimant is disqualified for misconduct from unemployment compensation benefits. The Commission must consider whether Claimant’s failure, as Employer argues in Point II, to follow that instruction implicates Section 288.050.2, which states in pertinent part:

If a deputy finds that a claimant has been discharged for misconduct connected with the claimant’s work, such claimant shall be disqualified for waiting week credit and benefits, and no benefits shall be paid nor shall the cost of any benefits be charged against any employer for any period of employment within the base period until the claimant has earned wages for work insured under the unemployment laws of this state[.]

(emphasis added).

It has been held that, in order to be so disqualified, a claimant’s work related “misconduct” must involve some form of willfulness. Laswell v. Industrial Comm’n, 534 S.W.2d 613, 616 (Mo.App. KC.1976). The term “misconduct” has been said to include only:

[A]n act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Id. (quoting 76 Am.Jur.2d, Unemployment Compensation § 52, p. 945).

Accordingly, we must reverse and remand that portion of the Commission’s decision with instructions to make further findings as to whether Claimant’s failure to follow Employer’s instruction to move the display was willful or intentional as contemplated under Section 288.050.2.

In Point II, Employer also argues that, in addition to her alleged failure to follow instructions regarding the beef jerky display, that Claimant’s failure to improve her cash register accuracy, inventory control, the cleanliness of the store and to set a good example for other employees during the probationary period constituted misconduct connected with her work.

Whether Claimant’s conduct is considered misconduct in connection with her work is a legal question to which we do not defer to the Commission’s determinations. Dixon, 106 S.W.3d at 540. Employer contends that because the occurrences herein recounted occurred after Claimant had been given warnings and an unsatisfactory evaluation in which she was placed on probation, her discharge resulted from more than mere incompetence; it was the result of Claimant’s willful behavior as described in Section 288.050.2. We disagree.

The Appeals Tribunal found, in pertinent part:

[Claimant was not the only individual who used the cash register on her shift. The increase in the percentage of loss of inventory could have resulted from employee and/or customer theft, and/or inaccurate counting during the audits. [Claimant was on vacation when the appearance of the store declined since the evaluation. [Claimant came off vacation to order product that should have been ordered by other members of management while she was absent. [C]laim-ant had made suggestions about how improvements could be made to reduce theft, but these suggestions were ignored. [C]laimant reported employee theft.
The concern about [C]laimant’s example setting was that [C]laimant took off work early on September 29, 2004.[C]laimant left because she was ill.

While we defer to the Commission’s view of the facts as stated above, its conclusion that each of these findings cannot form the basis for a determination that Claimant was disqualified from benefits for misconduct, is an application of the law to the facts which we review independently. Dixon, 106 S.W.3d at 540.

As Employer correctly points out, an employee can be found to have committed disqualifying misconduct under Section 288.050.2 for violating a reasonable work rule. Hurlbut v. Labor & Industrial Relations Comm’n, 761 S.W.2d 282, 285 (Mo.App. S.D.1988). However, Claimant reminds us that the burden to prove that this misconduct has taken place rests upon Employer. Business Centers of Mo., Inc. v. Labor Industrial Relations Comm’n, 743 S.W.2d 588, 589 (Mo.App. E.D.1988).

Employer must show by a preponderance of the evidence, Claimant’s willful violation of Employer’s rules. Hoover, 153 S.W.3d at 14. We agree that Employer has not met that burden in this case. A thorough review of the whole record reveals nothing more than negligence or poor judgment by the Claimant. We see nothing in the record to suggest that Claimant willfully or intentionally disregarded or violated Employer’s rules.

As the Appeals Tribunal found, there was no evidence that Claimant stole from the cash register. To the contrary, there was evidence she shared a cash register with others, such that any mistakes could not be conclusively attributed to her. Likewise, there was testimony that the increase in lost products, which were cited as the inventory control problems by Employer, could have resulted from customer or employee theft. There was no evidence that Claimant caused, or failed to take steps to correct these losses. To the contrary, the Appeals Tribunal found that Claimant had taken affirmative steps to inform Employer of employee and customer theft and offered'suggestions as to how to reduce the problem. Regarding the cleanliness of the store, the Appeals Tribunal found that Claimant was on vacation when the incidences of uncleanliness were attributed to her.

These facts may indicate that Claimant was a below average manager. However, as Claimant points out, while poor performance may justify an employee’s discharge, it does not necessarily provide a basis for disqualifying Claimant from receiving unemployment benefits. See Hoover 153 S.W.3d at 14; McClelland v. Hogan Personnel, L.L.C., 116 S.W.3d 660, 666 (Mo.App. W.D.2003); Dixon, 106 S.W.3d at 542. “Poor workmanship, lack of judgment or the inability to do the job do not disqualify a claimant from receiving benefits on the basis of misconduct.” Hoover, 153 S.W.3d at 13 (quoting McClelland, 116 S.W.3d at 665); see also Dixon, 106 S.W.3d at 542 (a persistent lack of attention to detail and accuracy essential to employers work did not constitute misconduct under Section 288.050.2). As such, this portion of the Commission’s determination is affirmed.

Because we find that there was insufficient evidence to support the Commission’s finding that Claimant was not told to move the display, we reverse and remand the Commission’s determination as to that issue only. Furthermore, should the Commission find that Claimant was instructed to move the display and failed to do so, it must also consider whether that failure constituted misconduct connected with her work under Section 288.050.2.

The judgment is affirmed in part and reversed in part.

SHRUM, P.J., and BARNEY, J., concur.

      . All references to statutes are to RSMo (2000), unless otherwise indicated.

      . It is not until Point II, however, that Employer argues the significance of this error.

      . The document the witness was consulting was admitted into the record and is the exhibit Employer asserts the Commission failed to consider in this point.

      . Whether this testimony or the report was considered hearsay by the Appeals Tribunal is unclear. Regardless, neither party alleges such on this appeal.