author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Tonya WISKUR, Plaintiff-Appellant, v. Karl JOHNSON, Defendant-Respondent.
    No. 26320.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 23, 2005.

      John C. Banning, Springfield, for Appellant.
    Daniel D. Whitworth, Bradley R. Barton, Joplin, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Tonya Wiskur sued Karl Johnson for damages arising out of a motor vehicle accident involving Johnson’s moving vehicle and Wiskur’s parked vehicle. Wiskur contends that the trial court erred by submitting the failure to keep a careful lookout verdict director, MAI 17.05, instead of her proposed non-MAI instruction, which was a modification of the rear-end collision verdict director, MAI 17.16. We agree. The trial court abused its discretion by refusing to submit Wiskur’s proposed instruction; thus, we reverse the judgment and remand for a new trial.

During the morning of November 4, 2000, Wiskur and her husband drove their van to King Jack Soccer Park in Webb City to attend their child’s soccer game. Wiskur was also coaching the game, and after her husband parked her van, she went to the rear of the van to unload her soccer equipment. While Wiskur was leaning into the back of the van with her left leg braced against the rear bumper to support her weight, another car collided with the front of her van, causing her van to move and injure her left knee. Wiskur sought medical care for the knee, and the knee eventually required surgery to relieve the pain resulting from the injury.

Karl Johnson was driving the vehicle that struck Wiskur’s van. His vehicle had been parked a car- or car-and-a-half-length in front of Wiskur’s van, and Johnson was attempting to back his vehicle through an open space in between Wiskur’s van and a third car. A trash barrel was sitting on the left side of his car, and the open space between Wiskur’s van and the third ear was on the right side of Wiskur’s van. Johnson testified that he saw Wiskur’s van as soon as he began to move his car. He moved his car back and forth a few times as he tried to avoid hitting the trash barrel but still position his car so he could successfully navigate through the open space. Johnson testified that on his last pass in the direction of Wiskur’s van, he “thought [he] had [enough] clearance” between the van and the third car to avoid hitting the van. Although the force of the impact was disputed, Johnson admitted that the rear of his car did collide with the front of Wiskur’s van.

Wiskur brought a negligence action against Johnson in Jasper County, Missouri, to compensate her for the injury to her knee. At the conclusion of the jury trial, Wiskur proffered the following non-MAI verdict director:

Your verdict must be for Plaintiff if you believe:
First, Defendant’s automobile came into collision with Plaintiffs parked automobile, and
Second, Defendant was thereby negligent, and
Third, as a direct result of such negligence, Plaintiff sustained damage.

Wiskur modeled her verdict director after the rear-end collision verdict director, MAI 17.16, which is based on the premise that the collision of a following vehicle into the rear of a leading vehicle creates a prima facie ease of negligent conduct by the operator of the following vehicle, but the trial court refused to submit Wiskur’s verdict director to the jury. Instead, the trial court submitted the failure to keep a careful lookout (“lookout instruction”) verdict director, MAI 17.05, proffered by Johnson, to the jury:

Your verdict must be for [P]laintiff if you believe:
First, [Defendant failed to keep a careful lookout, and
Second, [Defendant was thereby negligent, and
Third, as a direct result of such negligence, [P]laintiff sustained damage.

Wiskur objected to the lookout instruction because it required the jury to determine whether Johnson could have avoided the accident had he seen Wiskur’s van, and the fact that Johnson saw Wiskur’s van before moving his car was not a fact in contention. Johnson admitted that he saw the car before hitting it, Wiskur argued, and that was all he should have seen to enable him to avoid the accident. Wiskur also argued that her proposed verdict director, which was based on the premise that the collision of a moving vehicle with a parked car creates a prima facie case of negligent conduct by the operator of the moving vehicle, was valid.

The trial court overruled Wiskur’s objection and the jury returned a verdict in favor of Johnson; the court subsequently entered a judgment in favor of Johnson and against Wiskur. Wiskur now appeals that judgment.

Initially, we shall address whether the given instruction, MAI 17.05, was the proper instruction under the facts of this case. Whether a jury was properly instructed is a question of law. Hosto v. Union Elec. Co., 51 S.W.3d 133, 142 (Mo.App. E.D.2001). A trial court gives or refuses a particular instruction according to the law and the evidence in the case., Rule 70.02(a); First State Bank of St. Charles, Missouri v. Frankel, 86 S.W.3d 161, 173 (Mo.App. E.D.2002). Rule 70.02(b) requires the exclusive use of the Missouri Approved Instructions whenever the approved instructions contain an instruction applicable to the case. A trial court’s instructional error is reversible if the error substantially prejudiced a party. Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 813 (Mo. banc 2003).

The essence of the lookout instruction is a failure to see and a failure to act. Lovelace v. Reed, 486 S.W.2d 417, 418-19 (Mo.1972). The failure to see involves a motorist’s failure to become aware of other motorists, pedestrians, or objects that present a dangerous situation, and the failure to act is the motorist’s failure to take precautionary action to avoid that danger. Miller v. St. Louis Public Service Co., 389 S.W.2d 769, 771 (Mo.1965). In other words, “The ‘lookout’ duty requires motorists to exercise the highest degree of care to discover the presence of other persons and objects upon the streets and highways and to become aware of dangerous situations and conditions.” Allen v. Andrews, 599 S.W.2d 262, 265 (Mo.App. S.D.1980). For a lookout submission to be proper, substantial evidence must show that the breach of that duty was the proximate cause of the accident.' Cypret v. Templeton, 912 S.W.2d 630, 632 (Mo.App. E.D.1995). The proper test of failure to keep a careful lookout as the proximate cause is whether the driver of the colliding vehicle, exercising the highest degree of care, could have seen the other vehicle in time to have taken effective precautionary measures to avoid the accident. Marshall v. Bobbitt, 482 S.W.2d 439, 442 (Mo.1972).

In Doyle v. Wilmesherrer, the Missouri Supreme Court considered the propriety of a lookout submission in a case where the defendant was aware of the plaintiffs position during the entire time the alleged negligence occurred. 358 S.W.2d 837 (Mo.1962). In that case, the defendant was backing a flat-bed truck loaded with grain up a ramp and into a hallway where the grain could be shoveled into a bin. Id. at 838. The defendant asked the plaintiff to go to the top of the ramp to help direct the operation of the truck up the ramp. Id. The plaintiff walked up the ramp and stood to the side of the hallwáy. Id. As the defendant attempted to back the truck up the ramp, the truck slid sideways into the plaintiff and injured him. Id. Upon review of the plaintiffs lookout instruction, the supreme court stated, “A proper lookout on the part of [the] defendant would have revealed nothing that he did not already know, and the failure to maintain a lookout in that circumstance could hardly be the proximate cause of [the] plaintiffs injury.” Id. at 840.

Here, like the truck-driving defendant above, Johnson was aware of Wis-kur’s parked car the entire time the alleged negligence occurred. He stated that as he began to back his car out of his parking space, he noticed that Wiskur’s car was a car- or ear-and-a-half-length behind his car. He remained aware of Wis-kur’s car as he attempted to back out of his space, because he repeatedly drove backward and forward to position his ear so he could navigate through the empty space to the right of Wiskur’s car. And although he thought he had enough clearance, he misjudged the position of one of the two cars and collided with Wiskur’s van. As in Doyle, a proper lookout would not have revealed to Johnson anything he did not already know. He knew that Wis-kur’s van was behind him and according to his testimony he was actively trying to avoid hitting it. Thus, the failure to maintain a careful lookout was not the proximate cause of Wiskur’s injury. Because substantial evidence did not exist to support a finding that the failure to keep a lookout proximately caused Wiskur’s injury, the lookout instruction was an improper instruction for the jury.

We now turn to the issue of whether the trial court properly refused to submit Wis-kur’s proposed non-MAI instructions. Wiskur contends that she was entitled to submit her instructions and the trial court’s refusal to submit them was prejudicial. Thus, she argues that the trial court’s refusal was an abuse of discretion.

A plaintiff is entitled to instruct a jury upon any theory supported by the evidence. Egelhoff v. Holt, 875 S.W.2d 543, 548-49 (Mo. banc 1994); Jines v. Young, 732 S.W.2d 938, 949 (Mo.App. S.D. 1987). When a party claims that the trial court erroneously refused to submit an instruction to which she was entitled, we review the trial court’s refusal to submit the instruction for abuse of discretion. Frankel, 86 S.W.3d at 173 (Mo.App. E.D.2002). A proper instruction must be supported by substantial evidence. Id. “Substantial evidence is that evidence which, if true, is probative of the issues and from which the jury can decide the case.” Id. We must view the evidence and all reasonable inferences supported by it in the light most favorable to the submission of the instruction and disregard any contrary evidence. Id. We will not reverse a verdict due to the refusal to give an instruction unless the error was prejudicial. Id.

If the MAI instructions do not contain an instruction applicable to the case, then a non-MAI instruction may be used if it is simple, brief, impartial, free from argument, and it does not submit detailed evidentiary facts to the jury or require the jury to find such facts. Rule 70.02(b). We review a proposed non-MAI instruction to determine “ ‘whether the jury [could have understood] the instruction and whether the instruction follow[ed][the] applicable substantive law by submitting the ultimate facts required to sustain a verdict.’ ” Seitz v. Lemay Bank and Trust, Co., 959 S.W.2d 458, 462 (Mo. banc 1998) (quoting Brown v. Van Noy, 879 S.W.2d 667, 672 (Mo.App. W.D.1994)). What the ultimate facts are in a given case are determined on a case-by-case basis. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 658 (MoApp. E.D.1999). This determination depends on the specific theory of negligence the plaintiff presented. Id.

Here, the ultimate fact for the jury to decide was whether Johnson’s operation of his car in the parking lot was negligent. Johnson admitted to seeing Wiskur’s van before he began moving his car, and although he thought he would avoid hitting it, he did hit it. Thus, the question for the jury was whether Johnson exercised the appropriate standard of care as he was exiting the parking lot. Wis-kur’s instruction would have submitted that issue to the jury in a simple, brief, impartial, non-argumentative manner.

Her proposed non-MAI instructions could be easily understood by the jury and submitted all the ultimate facts necessary to sustain a verdict. The refusal to submit the verdict director to which Wiskur was entitled was prejudicial to Wiskur, and therefore, the court abused its discretion by refusing to submit Wiskur’s instruction. The judgment is reversed and the cause is remanded for a new trial.

GARRISON, P.J., and PREWITT, J., concur.

      . The verdict director also defined the words ''negligent” and "negligence” but those definitions are unrelated to the point on appeal.

      . The verdict director also defined the words "negligent” and "negligence” but those definitions are unrelated to the point on appeal.

      . By citing to Allen and Marshall, we do not mean to imply that the highest degree of care was the appropriate standard of care for this case. That issue was not presented to us because the parties seem to agree that ordinary care was the appropriate standard of care. See Doolin v. Swain, 524 S.W.2d 877, 880-81 (Mo.1975) (explaining that although motor vehicle drivers must exercise the highest degree of care when operating motor vehicles on public streets and highways, they must only exercise ordinary care when operating motor vehicles in private parking lots).


source: Caselaw Access Project

author: PHILLIP R. GARRISON, Presiding Judge.

license: Public Domain

text:
    Nicholas D. SAMUEL, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26121.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 24, 2005.
    Kent Denzel, Columbia, MO, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Assistant Attorney General, for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Nicholas D. Samuel (“Movant”) appeals from the Circuit Court of McDonald County’s denial of his Rule 24.035 motion for post-conviction relief based on the plea court’s lack of jurisdiction to accept his plea of guilty. We affirm.

Movant was originally charged with the class A felony of assault in the first degree, pursuant to Section 565.050, the unclassified felony of armed criminal action, pursuant to Section 571.015, and the class B felony of burglary in the first degree, pursuant to Section 569.160. According to a plea agreement in which the State agreed to reduce the class A felony of assault to a class B felony, dismiss the charge of armed criminal action, and recommend that the sentences for the remaining two charges run concurrently, Movant filed a petition to enter a guilty plea on September 23, 2002. The plea court accepted his plea and announced that it was sentencing him to concurrent sentences of eleven years for first degree burglary and eleven years for felony assault.

Movant filed a pro se motion for post-conviction relief, pursuant to Rule 24.035, counsel was appointed, and an amended motion was filed. The amended motion alleged that Movant received ineffective assistance of counsel because his plea counsel failed to call mitigation witnesses at Movant’s sentencing hearing and did not adequately explain the applicability of the eighty-five percent non-parole eligibility rule. An evidentiary hearing was held and the motion court entered its findings of fact and conclusions of law denying Movant’s motion. This appeal followed.

Movant presents one point on appeal. He claims that the motion court plainly erred by failing to sua sponte “find that the plea court erred in accepting [Movant’s] guilty pleas to the offenses of burglary and first degree assault” in that it was without jurisdiction to accept his pleas or sentence him “because the State did not present a factual basis for either plea.” He argues that there was nothing admitted at the plea hearing to show his mental culpability for assault or burglary.

Rule 24.02(e) requires that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” By claiming that the motion court erred by not finding, sua sponte, that the plea court erred in accepting Movant’s guilty pleas because of the lack of a factual basis, he acknowledges that he did not raise the issue in either his pro se motion or amended motion, nor at his evidentiary hearing. When the movant fails to raise an argument in his Rule 24.035 motion or amended motion, that argument is waived. Rule 24.035(d); Dean v. State, 950 S.W.2d 873, 877 (Mo.App. W.D.1997). “Claims that have not been presented to the motion court cannot be raised for the first time on appeal.” Id.

Movant argues, however, that the requirement of a factual basis upon which to accept a plea is jurisdictional, thereby allowing him to raise it for the first time on appeal. He cites Searcy v. State, 981 S.W.2d 597, 598-99 (Mo.App. W.D.1998), for the proposition that “ ‘jurisdiction,’ as applied to criminal courts, refers to the power of a court to hear and resolve the case of a criminal offense, to render a valid judgment, and to declare punishment.” He argues that this language is jurisdictional in nature and that the court is deprived of jurisdiction when it accepts a plea in violation of Rule 24.02(e). Movant acknowledges, however, our decision in Waserman v. State, 100 S.W.3d 854, 861-62 (Mo.App. S.D.2003), in which we specifically rejected an identical claim. He urges us to reexamine our prior decision.

In Waserman, the movant claimed, as does Movant here, that the plea court did not have jurisdiction to accept his guilty plea because of a lack of a factual basis for the plea and we found that the Rule 24.02(e) requirement of a factual basis for a guilty plea is not jurisdictional. Id. We stated,

the rule’s purpose is to “aid in the constitutionally required determination that a defendant enter a plea of guilty intelligently and voluntarily.” “When the trial court enters a judgment on a guilty plea that is not supported by a factual basis, the judgment is not rendered invalid for lack of subject matter jurisdiction.”

Id. (internal citations omitted). We decline to hold otherwise in this case.

As Movant’s claim is not jurisdictional and was not raised in his amended Rule 24.035 motion, we cannot review it for the first time here. Movant’s point is denied.

Though we have resolved the issue raised in this appeal, another matter presents itself for attention. When the plea court sentenced Movant, it announced that his sentences of eleven years for each count would run concurrently. However, the “Sentence and Judgment” entered by the plea court does not designate whether the sentences for each count would run concurrently or consecutively. “[T]his was a failure to accurately memorialize the judgment the trial court announced in open court, obviously a clerical error.” McDonald v. State, 141 S.W.3d 526, 530 (Mo.App. S.D.2004). The motion court may correct such an error under Rule 24.035®, and it should have done so here. Utilizing plain error review, pursuant to Rule 84.13(c), we find that the motion court erred by not correcting this error and we remand to the motion court for it to order entry of a corrected judgment and sentence in the underlying criminal case that complies with the plea court’s announcement in open court. See Id. at 529-530.

We affirm the motion court’s denial of Movant’s Rule 24.035 motion, but remand for a correction in the judgment and sentence in the underlying criminal case.

PREWITT and RAHMEYER, JJ., concur.

      . All rule references are to Missouri Rules of Criminal Procedure (2003) unless otherwise noted.

      . All statutory references are to RSMo (2000) unless otherwise noted.


author: JOHN E. PARRISH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent v. James A. McGEHEE, Defendant-Appellant.
    No. 26138.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 24, 2005.

      Ellen H. Flottman, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

James A. McGehee (defendant) was convicted, following a jury trial, of stealing a firearm, a class C felony. § 570.030. Defendant was charged as, found to be, and sentenced as a prior offender. See § 558.016.2. This court affirms.

On March 23, 2003, defendant, Jeffrey Straw, and Casey Jowers, Jeffrey’s girlfriend, were at the home of Jeffrey’s mother and stepfather in Seligman, Missouri. Jeffrey’s mother and stepfather were out of town. Later, Heather Garrison joined the others at the residence. Jeffrey’s stepfather, Tim Pritchett, kept a .380 pistol in a drawer in his bedroom. He had locked the bedroom door before he left the residence.

Jeffrey, Casey, Heather, and defendant decided to go to Casey’s house in Sarcoxie, Missouri. Jeffrey and Casey rode in one car. Defendant and Heather rode in Heather’s car. While in Heather’s car, defendant showed her a pistol he was carrying but told her not to tell Jeffrey; that Jeffrey would be mad if he knew defendant had the pistol. Defendant said he needed the pistol because “some people” were after him, Jeffrey and Casey.

The group decided to stop at a Wal-Mart Supercenter in Monett. The women went to one area of the store, the men to another. While in the store, Heather saw defendant take a BB gun out of a package and put it into his pants, along with some air cartridges. The Wal-Mart manager, Justin Hinkle, was in the store at the time Jeffrey, Casey, Heather, and defendant were there. The group was reported to him as possible theft suspects.

Heather and Casey left the store and sat in Heather’s car. Defendant came from the store and told Casey he needed to take her car to pick up Jeffrey at the entrance. Hinkle watched defendant leave the store. He then saw defendant drive Casey’s car to the store entrance. Hinkle also observed Jeffrey. Jeffrey was involved in an argument in the store about cigarettes for which he refused to pay.

Jeffrey left the store. He got into the car with defendant. Hinkle watched as the car drove away. He was asked if defendant did anything. He answered, “He waived [sic] a gun.” Hinkle said the gun was black. He called the police.

Defendant and his friends stopped their cars at a gasoline station aboiit a mile from the Wal-Mart store. Defendant placed the BB gun in Heather’s car between the seats by the console. Shortly afterward, four police officers arrived. The officers asked to look for “[s]tuff that had been stolen from Wal-Mart.” Heather told them where the BB gun was. She explained, “I told them where the BB gun was, at first. And then I told them where the real gun was at.”

Defendant presents one point on appeal. He contends the trial court erred in overruling objections of his trial counsel to the evidence presented regarding events at Wal-Mart; that the objections should have been sustained in that the evidence related to uncharged offenses. Defendant argues it was prejudicial for the state to present evidence regarding the theft of a BB gun at Wal-Mart and the waving of the gun to threaten Wal-Mart employees.

“As a general rule, evidence of a crime other than the crime charged is inadmissible.” State v. King, 588 S.W.2d 147, 150 (Mo.App.1979). Exceptions to this general rule include the parallel exception.

The parallel exception permits evidence of separate crimes to be admitted if they are part of a continuing occurrence intimately connected with the crime for which a defendant is being tried. State v. Weatherspoon, 728 S.W.2d 267, 272-73 (Mo.App.1987). “[T]he state is permitted to paint a complete and coherent picture of the crime charged and it is not required to sift and separate the evidence and exclude the testimony tending to prove the crime for which [a] defendant is not on trial.” State v. King, 588 S.W.2d 147, 150 (Mo.App.1979). See also State v. Criswell, 907 S.W.2d 303, 305 (Mo.App.1995); State v. Harper, 855 S.W.2d 474, 477 (Mo.App.1993); State v. Higdon, 844 S.W.2d 99, 102 (Mo.App.1992); State v. Robinson, 834 S.W.2d 246, 249 (Mo.App.1992); State v. Johnson, 753 S.W.2d 576, 581 (Mo.App.1988).

State v. Wright, 934 S.W.2d 575, 583 (Mo.App.1996).

Prior to trial, the judge denied a motion in limine directed to the issue raised by this appeal and during the course of the trial overruled defendant’s objections to testimony related to the events that occurred at Wal-Mart. In denying the motion in limine, the trial judge stated the belief that the jury would not be confused by evidence of what occurred at Wal-Mart; that the events there occurred within a short time after the pistol that was the subject of the trial was stolen and had been part of a continuous series of activities that took place after the theft and before defendant was arrested. He suggested, “[A]s far as the overall picture, it’s kind of hard to imagine how you allegedly steal something in Seligman and the next thing, you pop up at the gas station [at Monett].” The trial judge suggested that inclusion of evidence about the activities at Wal-Mart was acceptable; “that the jury’s entitled to be painted an entire picture.”

Defendant argues that the trial court ruling is in conflict with State v. Henderson, 105 S.W.3d 491 (Mo.App.2003); that the holding in Henderson requires reversal of defendant’s conviction. Henderson reversed convictions for first-degree murder, armed criminal action, and unlawful use of a weapon. The offenses were alleged to have been committed November 25, 2000. The defendant in Henderson had been identified by a witness to the shooting. The witness also described the weapon used in the crime as “a black gun ... something like a [sic] Uzi ... [with a] clip up under it.” Id. at 494.

Three days later, on November 28, a police officer saw Henderson approach a group of people and fire a gun toward the group. He observed someone in the group return fire. The officer followed Henderson as he drove away. After a high-speed chase that included Henderson running several traffic signals, Henderson stopped his vehicle and fled on foot. Two of the police officers who had participated in the automobile pursuit of Henderson ran after him. During the foot race, Henderson was observed removing and discarding an “Uzi type firearm.” Id. Henderson was caught and arrested. The firearm he had discarded was seized and later determined to be the same weapon used in the November 25 killing. At trial, evidence of what occurred on November 28 was admitted in evidence over Henderson’s objection. The state argued it was admissible to establish Henderson’s identity “or present a complete and coherent picture of the charged crime.” Id. at 495.

Henderson held:

The circuit court erred in admitting evidence of Henderson’s uncharged shooting into the group on November 28. The circuit court admitted it so the jury would understand why police were running after Henderson. Evidence of his shooting into the group did not have a legitimate tendency of establishing directly Henderson’s guilt of the charges for which he was on trial. Its prejudice in permitting the jury to convict Henderson on the basis of perceived propensities to commit a crime far outweighed its probative value.

Id. at 495-96.

Defendant contends the same rationale applies with respect to the evidence admitted concerning what occurred at Wal-Mart; that the evidence did not have probative value regarding the theft of the pistol from the home in Seligman. He contends it was prejudicial in that it permitted the jury to conclude he had the propensity to commit the crime with which he was charged because he committed the later offenses for which he was not on trial. This court disagrees.

The events at Wal-Mart occurred the same day that defendant left the Seligman residence from which the firearm that was the subject of the trial was taken. The occurrence at Wal-Mart is what focused attention on defendant. It was those events that resulted in police officers learning that a theft had occurred at Selig-man earlier that day. Events that unfolded as a result of the Wal-Mart incident revealed that defendant was responsible for the theft.

In Henderson, the crimes for which defendant was on trial were committed three days before officers observed him and arrested him. The identity of the defendant in the case was already known. His subsequent conduct played no part in the series of events that led to the discovery of the crime he committed or his involvement in the offense.

In this case, defendant had been in the presence of the three persons who were with him at Wal-Mart since leaving the Seligman residence where the theft of the pistol occurred. He had shown the pistol to Heather Garrison and placed the weapon in her car in the course of the journey from Seligman to the Wal-Mart store in Monett. The events that occurred at Wal-Mart and at the gasoline station where defendant was apprehended were part of a continuum of activities that linked the stolen pistol to defendant and assisted in confirming his culpability. The proximity of those events to the time when the pistol was taken was part of the picture the state was entitled to paint for the jury. The trial court did not abuse its discretion in allowing the evidence. Defendant’s point on appeal is denied. The judgment is affirmed.

BATES, C.J., and BARNEY, J., concur.

      . References to statutes are to RSMo 2000.


text:
    Kenny V. COFIELD, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26317.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 24, 2005.

      Mark A. Grothoff, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Assistant Attorney General, Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Kenny V. Cofield (“Movant”) appeals from the Circuit Court of Greene County’s denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief based on ineffective assistance of counsel. We affirm.

Movant was charged with three counts of the class C felony of child molestation in the first degree, pursuant to Section 566.067, one count of the class A misdemeanor of sexual misconduct in the first degree, pursuant to Section 566.090, and one count of the class B misdemeanor of sexual misconduct in the second degree, pursuant to Section 566.093. Following a trial by jury, Movant was convicted of the three counts of child molestation, but acquitted of the two counts of sexual misconduct. He was sentenced to consecutive sentences of seven years for each count. Movant appealed his convictions to this court and we affirmed in State v. Cofield, 95 S.W.3d 202 (Mo.App. S.D.2003).

Movant filed a Rule 29.15 motion for post-conviction relief, counsel was appointed and filed “Counsel’s Statement in Lieu of Amended Motion Under Rule 29.15” on behalf of Movant, stating that it was not necessary to file an amended motion in that no additional facts or claims known to counsel had been omitted from the pro se motion. The State filed a motion to dismiss Movant’s motion without an eviden-tiary hearing, and the motion court filed its findings of fact and conclusions of law granting the State’s motion. This appeal followed.

Movant moved in with his sister, W.C., at her home in Springfield, Missouri, in March or April of 2000. Also living in W.C.’s home were her husband and three children, M.C., J.C., and T.C. Movant stayed in the downstairs family room. While Movant was living there, he molested M.C., who was eight years old at the time, on three occasions. On the first occasion, M.C. was watching television with Movant in his room when she felt ill. Movant told M.C. that she could lay on his bed and he would lay on the couch. M.C. fell asleep and awoke in the early morning to find her pajama pants removed and Movant touching her private parts. After this incident, Movant threatened to kill M.C. if she told anyone. A second incident occurred when M.C. was lying on the couch in Movant’s room watching television when she fell asleep. She awoke to find Movant touching her private parts again. The third time, M.C. testified that she was downstairs cleaning and was hit in the head with something. When she awoke, she was naked on the floor and Movant was touching her with his hands and penis.

On May 29, 2000, J.C., W.C.’s other daughter who was fifteen at the time of the incident, informed her mother that Movant had inappropriately touched her the night before. W.C. immediately told Movant he had to leave the house, and took him to a bus station. When W.C. returned, M.C. asked her where Movant was, and W.C. explained to her why Mov-ant had left. At this point, M.C. told her mother about Movant touching her and how he had threatened to kill her. W.C. then reported these incidents which led to the arrest and eventual conviction of Mov-ant.

Movant presents one point in this appeal. He claims that he was denied effective assistance of counsel when his trial counsel failed to cross-examine M.C. and W.C. with prior inconsistent statements.

Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Parham v. State, 77 S.W.3d 104, 106 (Mo.App. S.D. 2002). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Middleton v. State, 80 S.W.Sd 799, 804 (Mo. banc 2002) (quoting Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000)).

If the motion, the files and records of the case conclusively show that the mov-ant is entitled to no relief, an evidentiary hearing on the Rule 29.15 motion shall not be held. Rule 29.15(h). An evidentiary hearing on the motion is only necessary if: (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains resulted in prejudice. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997).

In order for a criminal defendant to be granted post-conviction relief on the basis of ineffective assistance of counsel, the defendant must demonstrate that “his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances, and that he was thereby prejudiced.” Parham, 77 S.W.3d at 106 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. 668, 690, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 695 (1984). Therefore, Mov-ant must show that counsel’s performance fell below an objective standard of reasonableness and, but for counsel’s performance, a reasonable probability exists that the outcome of the trial would have been different. Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003). “If the [movant] fails to satisfy one of the two prongs of the Strickland test, we are not compelled to address the other prong and the claim of ineffective assistance of counsel must fail.” Dorsey v. State, 113 S.W.3d 311, 314 (Mo.App. S.D.2003).

We will first address Movant’s claim as to M.C. In his motion, he stated,

[t]rial counsel unreasonable [sic] failed to demonstrate that [M.C.’s], story was a fabrication by establishing what she had described, to Police, DFS workers, as well as at Preliminary Hearing, That [sic] Movant allegedly comitted [sic] these acts in her room, and the time frame is contrary to [M.C.’s] description at trial.

As facts and evidence supporting this claim, Movant stated only, “[t]rial counsel unreasonably failed to cross-examine [M.C.], According [sic] to prior testimony as he was awear [sic] of it at trial, [sic] Had counsel done so, a reasonable probability would have existed of a different result at movant’s trial.”

At trial, Movant’s counsel conducted a thorough cross-examination of M.C., during which he asked specific questions about where the touching incidents took place and the timing of the incidents. Movant’s counsel did not specifically ask M.C. whether she had previously told him or someone else that any of the incidents took place in her room, though he did inquire as to whether she remembered telling him an incident took place at a different time.

Emilie Dortch (“Dortch”), the Division of Family Services investigator who conducted the initial interview with M.C. on August 16, 2000, also testified at trial. Her testimony was consistent with M.C.’s testimony regarding the first incident of touching. After Dortch learned of this incident, she terminated the interview so that a more thorough interview could be conducted later. Shane Gooden (“Goo-den”), the Greene County Sheriffs Deputy that accompanied Dortch to the interview with M.C., also gave testimony at trial consistent to that given by M.C. in her trial testimony.

The motion court, in its findings of fact and conclusions of law, stated that Movant did not describe in his motion what inconsistencies regarding time and place his counsel should have used in cross-examination of M.C. other than the conclusory statement “that Movant allegedly committed these acts in her room, and the time frame is contrary to [M.C.’s] description at trial.” The motion court further pointed out that Movant did not describe how this failure to cross-examine prejudiced him. The motion court found that Movant was not entitled to an evidentiary hearing when he made only conclusory allegations, and, further, the record reflects that M.C.’s testimony was consistent with that of Dortch and Gooden regarding their initial contact with her. Finally, the motion court stated, “Movant does not explain, nor is it apparent from the record, what further action a reasonably competent attorney would have taken that trial counsel failed to take.”

Movant claims in his brief that he is entitled to an evidentiary hearing on his motion because M.C.’s statements to police, to DFS workers, at a pretrial deposition, and in the preliminary hearing, were inconsistent with her trial testimony. He argues that M.C. earlier stated that he touched her only once and that it happened in her room, also giving a different time frame than she testified to at trial. He claims that at an evidentiary hearing he would have been permitted to establish the inconsistencies between M.C.’s alleged prior statements and her trial testimony and that this would have cast doubt on her trial testimony and supported his testimony that he did not touch M.C. inappropriately or threaten her. He also claims that though the decision not to cross-examine M.C. regarding her prior inconsistent statements might appear to be trial strategy, the only way to determine this with certainty would be to examine his trial counsel at an evidentiary hearing and give him an opportunity to show that this failure was not reasonable.

The State counters by asserting that the testimony given by Gooden and Dortch at trial concerning their earlier conversation with M.C. was consistent rather than inconsistent with her trial testimony, and therefore, Movant’s claims are refuted by the record. Also, the State points out that in his motion, Movant did not indicate that he would need to call witnesses to establish his assertions regarding M.C.’s prior statements. Movant claimed that he would rely only on sources already in existence at the time his motion was filed and gave no indication that he intended to elicit any further evidence at an evidentiary hearing. The State contends that this is not merely an oversight on Movant’s part because, in one of the other claims in his motion which he did not appeal, he states that he would have called his trial counsel and given testimony himself at an eviden-tiary hearing. It, therefore, argues that remand for an evidentiary hearing would not serve any purpose.

Movant has pled conclusions, not facts, in that he did not explain how M.C.’s prior statements were inconsistent with her statements at trial, only stating that she described that he “allegedly comitted [sic] these acts in her room, and the time frame is contrary to [M.C.’s] description at trial.” He does not state how this differed from her trial testimony. “As distinguished from other civil pleadings, courts will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). “Where the pleadings consist only of bare assertions and conclusions, a motion court cannot meaningfully apply the Strickland standard for ineffective assistance of counsel.” Id. at 824; see also White v. State, 939 S.W.2d 887, 897 (Mo. banc 1997), cert. denied, 522 U.S. 948, 118 S.Ct. 365, 139 L.Ed.2d 284 (1997) (holding that “[a] bare allegation that certain witnesses made ‘pri- or inconsistent’ statements without stating what was said and how it conflicted with what was testified .to at trial is a conclusion, not a fact”).

Furthermore, the record refutes Mov-ant’s claim with regard to M.C.’s statements to DFS workers and police officers. Movant alleges that M.C. made her inconsistent statements to DFS workers, police officers, and at a preliminary hearing. Her accusations were first made to Dortch and Gooden during M.C.’s initial interview. Dortch and Gooden both testified at trial and described the statements M.C. made at this interview. M.C.’s trial testimony, however, was consistent with her previous statements to Dortch and Gooden. Therefore, the record refutes Movant’s claim of inconsistent statements made by M.C. to DFS workers and police officers.

The record before us contains no transcript of a preliminary hearing in which M.C. may have testified. We are, therefore, unable to conclude that M.C. made statements at Movant’s preliminary hearing that were inconsistent with her trial testimony.

Additionally, we note that reasonable trial strategy cannot form the basis for a claim of ineffective assistance of counsel, even if that strategy, in hindsight, was ill-fated. Seals v. State, 141 S.W.3d 428, 431 (Mo.App. S.D.2004). Appellate courts have found that “[t]he decision whether or not to impeach a witness with a prior inconsistent statement is a matter of trial strategy and cannot be the basis for a finding of ineffective assistance of counsel.” Reynolds v. State, 87 S.W.3d 381, 385 (Mo.App. S.D.2002); see State v. Westcott, 857 S.W.2d 393, 397 (Mo.App. W.D.1993). “A movant must establish the impeachment would have provided a defense or changed the outcome of the trial.” Norville v. State, 83 S.W.3d 112, 116 (Mo.App. S.D.2002). Under these authorities, Movant’s claim does not warrant relief. Therefore, we do not find error with the motion court’s denial of an evidentiary hearing and denial of his motion for post-conviction relief on the basis of Movant’s claims as to M.C.

Movant also argues that his trial counsel should have cross-examined W.C. on prior inconsistent statements she made concerning a replica gun owned by Mov-ant. In his motion, Movant stated,

[tjrial counsel unreasonable [sic] failed to demonstrate that [M.C.’s] Mother, [W.CJ’s story was a fabrication by establishing that she had [sic] not describe [sic], to Police, DFS workers, That [sic] Movant allegedly had threatened [M.C.] with a gun, [sic] Her prior statement’s [sic] are contrary to the alleged description at trial.

For the facts and evidence supporting this claim, Movant stated, “[t]rial counsel unreasonably failed to cross-examine [W.C.], According [sic] to prior testimony as he was awear [sic] of it at trial, [sic] Had counsel done so, a reasonable probability would have existed of a different result at movant’s trial.”

At trial, W.C. testified that one of the reasons M.C. gave for not telling W.C. about the touching incidents with Movant was that he threatened her. W.C. stated that in October of 2001, her children were retrieving Halloween decorations from storage in the garage when they discovered a pistol. The children showed the pistol to W.C., who stated that it did not belong to her or anyone in her immediate family. M.C. then told W.C. that Movant showed her that pistol and told her that he had guns, and that is why she believed Movant when he said he would kill her. W.C. called the police to report the pistol, and an officer came to her house to pick it up. It turned out that the pistol was only a non-firing replica, though the police officer believed, at first, that it was functional. On cross-examination, W.C. stated that M.C. had not mentioned the threat when she initially told her about the touching incidents. W.C. also stated that there was no mention of the pistol at all by M.C. until after she found it in the garage in October 2001, approximately four months before trial and more than a year after the alleged incidents took place.

The testimony given at trial by Gooden and Dortch, who interviewed M.C. and her mother on August 16, 2000, does not mention the gun nor does it indicate that W.C. ever claimed knowledge of the replica gun or knew that Movant threatened M.C. with this gun before it was found in October of 2001.

The motion court found, similar to his claims as to M.C., that Movant did not “explain what testimony would have established that [W.C.’s] story was a fabrication; nor does he explain how he was prejudiced by failing to produce this testimony.” The motion court pointed out that W.C. was generally aware of threats made to M.C., but was not aware of the gun until it was located by the children just before trial. It noted that, “[a]ny questioning relating to the gun clearly posed a strategy dilemma for trial counsel, who tried to keep any evidence related to the weapon from being admitted.” The motion court also found that “any mention of the weapon would be prejudicial to Movant” and had Movant’s counsel followed Movant’s suggestions, “he risked emphasizing the weapon and further alienating the jury from his client.” The motion court concluded that failure to cross-examine on this point was not ineffective assistance of counsel or prejudicial to Movant. , •

Movant argues that W.C., through her pretrial statements, “was aware that [Mov-ant] owned a replica gun, but she did not indicate that [Movant] had threatened [M.C.] with it.” He claims that her inconsistent statements would have cast doubt on her trial testimony and would have supported his testimony that he owned a replica gun, but did not threaten M.C. with it. This, he claims, would have led to a reasonable doubt in the jury’s minds and a different result ■ at trial. Furthermore, Movant argues that an evidentiary hearing would allow him to establish how W.C.’s statements were inconsistent with her trial testimony, how those statements would have supported his defense, how the statements would have raised a reasonable doubt in the minds of the jury members, and also whether his counsel’s failure to cross-examine was a matter of trial strategy-

Movant bases his argument on the fact that his counsel supposedly failed to impeach W.C. with the fact that she did not mention the gun to DFS workers and police officers when she spoke with them at their initial interview with M.C. The record is quite clear, however, that W.C. only learned of the replica gun in October of 2001, approximately four months before trial was held in January of 2002. She did not tell Dortch and Gooden about the gun because she did not know about it when she spoke with them. Therefore, she could not be impeached at trial for not mentioning the gun when she spoke to Dortch and Gooden. There is nothing in Movant’s motion or in the record indicating that W.C. made statements to the effect that she was aware of the gun at an earlier time. Movant’s claim is totally without merit. The motion court- did not clearly err in denying Movant an eviden-tiary hearing and finding that he did not receive ineffective assistance of counsel.

Movant’s point on appeal is denied and the motion court’s order dismissing and denying his motion for post-conviction relief is affirmed.

PREWITT, J„ and RAHMEYER, J., concur.

      . All rule references are to Missouri Rules of Criminal Procedure (2003) unless otherwise indicated.

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

      .We use initials of the victim and' her. family in order to protect their identities.


author: PER CURIAM.

text:
    Maurice CHARLES (29.15), Appellant, v. STATE of Missouri, Respondent.
    No. WD 62494.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2005.
    Andrew Allen Schroeder, Appellate Defender, Kansas City, MO, for Appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., SPINDEN and SMART, JJ.
   ORDER

PER CURIAM.

Maurice Charles appeals from the denial, after an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. The appellant was convicted, after a bench trial in the Circuit Court of Jackson County, of one count of murder in the second degree, § 565.021, and one count of armed criminal action, § 571.015. As a result of his convictions, he was sentenced to consecutive prison terms of life for murder and ten years for ACA in the Missouri Department of Corrections.

In his sole point on appeal, the appellant claims that the motion court clearly erred in denying, after an evidentiary hearing, his Rule 29.15 motion, alleging ineffective assistance of counsel, based on its finding that there was no prejudice to appellant from trial counsel’s alleged deficient actions, because the evidence presented at the motion hearing conclusively established that the outcome of his trial would have been different but for his trial counsel’s failure to offer expert medical testimony, on the issue of diminished capacity, that he suffered from post-traumatic stress disorder.

We affirm pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Raymond Edward GROCE, Appellant.
    No. WD 63367.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2005.
    Amy Marie Bartholow, Columbia, MO, for Appellant.
    Deborah Daniels and Breck K. Burgess, Assistant Attorney Generals, Jefferson City, MO, for Respondent.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Appellant Raymond E. Groce (“Groce”) appeals from a jury conviction in the Circuit Court of Buchanan County for first degree child molestation in violation of Section 566.067 RSMo. Groce argues two points on appeal. In Point I, Groce argues the trial court abused its discretion in limiting cross-examination of the victim’s mother in regard to whether the victim had been punished before for sneaking out with her friends, thereby violating his rights to confront an adverse witness and denying him the opportunity to show that the victim had a specific motive to make false accusations. In Point II, Groce argues the trial court plainly erred in failing to declare a mistrial or to instruct the jury to disregard the sentencing provisions that were inadvertently inserted into the verdict directing instructions, and likely seen by the jury, even though he had waived jury sentencing. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    Frank Eric BRZOZOWSKI, Respondent, v. Brenda Lea BRZOZOWSKI, Appellant.
    No. WD 63634.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2005.
    Ronald L. Jurgeson, Lee’s Summit, MO, for Appellant.
    John J. Benge, Lenexa, KS, for Respondent.
    Before SMART, P.J., ELLIS and HARDWICK, JJ.
   ORDER

PER CURIAM.

Brenda Brzozowski appeals from the child custody determination in the judgment dissolving her marriage to Frank Brzozowski. Upon review of the record, we find no error and affirm the judgment. We have provided the parties with a Memorandum explaining the reasons for our decision because a published opinion would have no precedential value.

AFFIRMED. Rule 84.16(b).


text:
    STATE of Missouri, ex rel. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Relator-Respondent, v. John J. STEWART, et al., Jennie Johns Cutts, Collector of Revenue for Shannon County, Missouri, Defendants, Grace H. Duff, a single person, and Robert A. McQuerry, Tina McQuerry, Defendants-Appellants.
    No. 26422.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 28, 2005.

      Steven A. Privette, Willow Springs, MO, for Appellants.
    John W. Koenig, Jr. and Rich Tiemeyer, Sikeston, MO, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

The State of Missouri, ex rel. Missouri Highways and Transportation Commission (“Highway Commission”) brought a condemnation suit against the property owners to take six-tenths of an acre by eminent domain for a new bridge. The case was tried to a jury and judgment entered for the Highway Commission. The property owners bring this appeal challenging the admission of testimony by an appraiser for the Highway Commission; they contend that the trial court erred in allowing the witness to give an opinion as to the value of the property damage. First, Appellants contend the witness was not properly designated by the court as an expert and, second, if he was so designated, there was no proper foundation for such a designation. We find no error and affirm.

It is clear from the transcript that the court, despite its reservations concerning the qualifications of the Highway Department’s expert witness, Brad Newberry, allowed Mr. Newberry to testify as an expert. After extensive questioning out of the presence of the jury, the court admonished the parties about the difference between the admissibility of testimony and the weight that should be given any testimony and stated, “I am going to — I’m going to allow him to express an opinion. But it is such a close and marginal question that I’m going to allow considerable latitude in the evaluation of his — ah—the weight to be given to his testimony.” Mr. Newberry was allowed to testify as an expert witness; thus, Appellants’ first point has no merit and it is denied.

Appellants’ second point appears to challenge the foundation of Mr. Newber-ry’s testimony as an expert; however, their point fails to state in summary fashion why, in the context of the case, the foundation for Mr. Newberry’s testimony was deficient. Their point simply states, “no foundation was made which established the witness to be an expert, under Missouri case law and RSMo. § 490.065.” The point relied on shall explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. Rule 84.04(d)(1)(C). Nevertheless, as it appears that Respondent was able to address the merits of Appellants’ argument, we shall do so also.

Appellants’ argument, aside from including the concerns of the trial court on the record, is that Mr. Newberry was not a licensed general appraiser' and would not have been able to appraise a commercial property such as the one at issue had he not been employed by the Highway Department. The Highway Department counters Mr. Newberry was qualified to testify as an expert and that a proper foundation was presented to the trial court. It notes that Mr. Newberry was a licensed real estate professional with a Missouri Residential Certification, he had completed and passed the exam for Missouri general certification, he has eight years appraisal experience with the Missouri Department of Transportation, and he has completed over 300 appraisals on real estate parcels with at least one hundred of those as commercial appraisals. The Highway Department also notes that Mr. Newberry has testified in Missouri circuit courts as an expert on real estate values on previous occasions, he was on the property on the date of valuation, and he had appraised riverfront commercial properties before.

An expert’s testimony is always fraught with questions of relevancy and competency; therefore, the decision to admit expert conclusions is a matter of trial court discretion that will not be overturned on appeal absent an abuse of discretion. State v. Copeland, 928 S.W.2d 828, 837 (Mo. banc 1996). “The trial court [abuses] its discretion only when the ruling is ‘clearly against the logic of the circumstances or when it is arbitrary and unreasonable.’ ” State v. Williams, 828 S.W.2d 894, 899 (Mo.App. E.D.1992) (quoting State v. Corpier, 793 S.W.2d 430, 441 (Mo.App. W.D.1990)). In the final analysis, the trial court used its considerable discretion to allow, albeit reluctantly, Mr. Newberry to give an expert opinion; we find no abuse of that discretion. Point two is denied.

The judgment is affirmed.

GARRISON, P.J., and PREWITT, J., concur.


text:
    Earl F. LANE, Appellant-Respondent, v. G & M STATUARY, INC., and Cincinnati Insurance Company, Respondents-Cross-Appellants.
    Nos. 26242, 26244.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 28, 2005.

      Randy Charles Alberhasky, Springfield, MO, for Appellant-Respondent.
    David A. Childers, Springfield, MO, for Respondents-Cross-Appellants.
   NANCY STEFFEN RAHMEYER, Judge.

Earl F. Lane (“Lane”) claimed an injury from a lightning strike or lightning current while he was employed by G & M Statuary, Inc. (“G & M”). The Commission awarded permanent partial disability benefits, six weeks of temporary total disability and future medical care. Both parties appeal. We affirm.

Lane appeals the finding of permanent partial disability because he claims the award was inconsistent with the testimony that he requires further psychological care that potentially could change the extent of his permanent disability. Lane also finds error in the award of only six weeks temporary total disability because he maintains that the evidence indicated that he was unable to work from four days after the accident through the date of the hearing, over three years later.

G & M, on the other hand, challenges any award. In its first two points, G & M uses the defense that a lightning strike is an act of God and thus, not compensable unless Lane was able to show that he was at a greater risk to a lightning strike or electrical current than the general public. First, G & M contends there was no factual finding by the Commission that Lane’s employment subjected him to a greater risk to lightning strike or electrical current, direct or indirect, than that to which the general public in the same vicinity would be exposed and, second, there was no substantial or competent evidence that Lane’s employment subjected him to the necessary greater risk than the general public. G & M’s third point is that substantial evidence does not support the Commission’s finding that an injury occurred at all to Lane from a lightning or electrical current.

For ease of discussion of the facts, we shall begin with G & M’s claim that substantial evidence does not support Lane’s claim that he was injured by lightning or electrical current. The Commission found that Lane met his burden of proving that a sudden, unexpected event occurred on June 10, 1999, which was a lightning strike or electrical current and which instantly struck Lane in the course and scope of employment. When reviewing the Commission’s factual findings, we determine whether the factual findings are supported by substantial evidence after considering all the evidence in the light most favorable to the Commission’s award. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 761 (Mo.App. E.D.2002). The testimony supporting a finding that there was a lightning strike or electrical current which injured Lane during the course and scope of his employment, includes the testimony of Lane, Dennis Rantz (“Rantz”), Jason Burtless (“Burtless”) and Steve Myers (“Myers”).

Lane testified that he was holding a metal hoe and standing on a wet concrete floor, approximately two feet from an open doorway in a metal building. It was a common occurrence to have water on the ground because water was used as an ingredient to pour into the concrete mixer and also to wash the mixer off in the mid-afternoon. Lane testified that he did not see or hear the lightning strike, but felt a jolt before being thrown onto bags of concrete stacked against the wall behind him. He also testified that Rantz laughed and told Lane he “lit up like a Christmas tree” when the lightning struck him.

While Rantz admitted laughing at Lane, he testified that he only laughed because he thought the thunder had scared Lane and he further denied ever making a statement about Lane being hit by lightning or lighting up like a Christmas tree. Rantz testified that he was looking directly. at Lane when the event occurred. There was a loud clap of thunder, then Rantz saw the metal hoe fly out of Lane’s hands and a look of shock on Lane’s face. Immediately after the incident, Lane appeared frightened and sat on the concrete bags for several minutes. Lane’s whole body shook as if he had the chills. Rantz denies that Lane was hit by lightning; however, following the incident, Rantz gave a report to his wife, Robyn, who writes the report for administration of workers’ compensation claims for G & M, which indicated that Lane had been struck by lightning.

Burtless, Lane’s son-in-law and a seven-year G & M employee, testified that he saw both Lane and Rantz after the incident. He stated Rantz told him that he thought Lane had been hit by lightning and that Lane had a little blue aura surrounding him. Burtless testified that Lane looked very dazed. Likewise, immediately following the incident, Myers, another employee of G & M, testified that he had heard someone say that Lane was struck by lightning. Rantz admitted he could have been the one to state that Lane was struck by lightning, but not that he saw Lane hit by lightning.

After the incident, Lane rested for approximately twenty minutes, but refused any medical treatment and finished his shift. Lane reported to work and did “light duty” activities on the next day, but he began to feel stiff and sore after the following weekend. Lane could not get out of bed on Monday and complained about the symptoms that are the subject of the claim for permanent partial disability. The testimony of the events that occurred on and after June 10, 1999, supports a finding that Lane was injured by a sudden unexpected event, which was a lightning strike or electrical current, in the course and scope of his employment. G & M’s Point III is denied.

We next turn to G & M’s first two points that the award was caused by an act of God and is, therefore, not com-pensable. An act of God had been defined as an occurrence due to natural causes against which ordinary skill and foresight is not expected to provide. Corrington v. Kalicak, 319 S.W.2d 888, 892 (Mo.App.1959). An injury or death caused by an act of God is not compensable in a workmen’s compensation case unless it is shown that the character of the employment subjected the employee to hazards from the causative natural force greater than those to which the general public in the same vicinity is exposed. Reich v. A. Reich & Sons Gardens, Inc., 485 S.W.2d 133, 135-36 (Mo.App.1972).

Even though lightning falls within the category of an act of God, in certain conditions it may be considered an accident arising out of and in the course of the employment as required by the Workers’ Compensation Act. Felden v. Horton & Coleman, Inc., 234 Mo.App. 421, 135 S.W.2d 1115, 1117 (1939). In order to assert an “Act of God” defense, the human actor must have exercised due care prior to the intervention of the super-human cause. Arthur v. Royse, 574 S.W.2d 22, 23 (Mo.App.1978). This defense is only available where the event is so extraordinary that “ ‘the history of climatic variations in the locality affords no reasonable warning of their coming’ ” and the event is not humanized by the participation of man. McCutcheon v. Tri-County Group XV, Inc., 920 S.W.2d 627, 632 n. 2 (Mo.App. S.D.1996) (quoting Corrington v. Kalicak, 319 S.W.2d at 892).

G & M relies upon the testimony of two experts to claim that it exercised due care prior to the intervention of the super-human cause and that Lane was not subjected to a risk greater than that to which the general public was subjected. Although the testimony of G & M’s electrical contractor/engineer, Norman McIntosh (“McIntosh”), indicated the concrete mixer and building was properly grounded, the Commission was free to believe contrary evidence. McIntosh inspected the concrete mixer to insure that it was properly grounded, but his inspection only included a physical examination whereby he checked the wiring visually and tested all the electrical phases to ground and checked for a physical ground. He testified that a “[physical ground] is a separate ground wire pulled to bond the unit and the mixer and the controls and everything to the system ground back at the panel in the meter.” It was stipulated that he did not examine any of the grounding system beyond the concrete mixer motor.

Furthermore, McIntosh admitted that he does not have any specialized training or formal education on how to ground a building for a lightning strike. He admitted that he did not know how to ground a building or object for a lightning strike and he did not know whether the wire and conduit used to ground the mixer was sufficient for lightning strikes. He did not know if the building was constructed with any grounding device in the ground, nor did he see any lightning attraction system on top of the building. He knew nothing about the properties of lightning except what he had seen on the “Discovery Channel and shows like that.”

Chris Evans (“Evans”), an electrical engineer, inspected the G & M building and mixer on December 20, 1999. Evans testified that over the years he has had a considerable amount of experience with lightning and the protection of lightning strikes. Evans examined the mixer, including its motor connections, the external portion of the building, the meter installation where the main service comes into the building and the ground raceway. He observed the bonding jumpers internal to the metal portion of the building, which is an effective grounding system for the metal skin of the building. From these observations, Evans concluded that the building was wired in accordance with the National Electric Code and that the electric motor was also installed to meet the National Electric Code, using electric metal tubing running from the main distribution panel to the motor.

Evans testified that the inspection conducted by McIntosh revealed no ‘electrical shorts or potential for electrocution in the motor to the mixer. His opinion that the building was grounded for lightning strikes was based upon his belief that there was an eight- to ten-foot ground rod attached to the copper wire that went into the ground below the power meter and control panel on the outside of the building; however, he also did not inspect or actually see the ground rod. Evans admitted that water increases hazards because it is such a good conductor. He refused to give any opinion on whether a damp or wet floor would have an effect on the ability to get shocked if lightning had struck the building. Evans agreed that small wooden, vinyl or metal sheds offer little or no protection from lightning and should be avoided during thunderstorms and that people should stay away from windows and doors as they can provide the path for a direct strike to enter a home. He agreed that one should not “lie on the concrete floor of a garage as it likely contains wire mesh,” such as was contained in the floor of the G & M building.

The undisputed testimony indicates that Earl Lane was working as an assistant pourer, operating the mixer under the direction of supervisor Rantz in a metal building when the incident occurred. As noted, Lane was holding a metal hoe and standing on a wet concrete floor, which likely contained wire mesh, during a thunderstorm. There is evidence to support an inference that the injury occurred because Lane was standing on a wet floor in an improperly grounded workplace. When the result is in some part attributed to the participation of man, either through active intervention or neglect or failure to act, “ ‘the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God.’ ” Arthur, 574 S.W.2d at 24 (quoting Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756, 763 (1948)). We find that substantial evidence supports the finding that Lane’s injury was within the conditions in which a lightning strike may be considered an accident arising out of and in the course of employment as required by the Workers’ Compensation Act. G & M’s Points I and II are denied.

We shall now proceed to the points raised in Lane’s appeal. Lane first argues that the Commission erred in making a finding that Lane had reached his maximum medical improvement and thus awarding permanent partial disability. Instead, Lane argues he should have been awarded temporary total disability until he reached his level of maximum medical improvement. Lane contends the award of permanent partial disability was inconsistent with a finding of the need for future medical treatment.

As a result of the incident of June 10, 1999, the Commission awarded Lane ten percent permanent partial disability to the body as a whole. Two witnesses testified regarding the amount of a permanent partial disability. One witness testified that Lane had reached his maximum medical improvement. Dr. Belz, who testified on behalf of G & M, asserted Lane had a five percent disability of the body as a whole for his low back condition in the nature of a strain/sprain. The other witness, Dr. Halfaker, testified on behalf of Lane about Lane’s psychological problems and claimed that Lane had not reached his maximum psychological improvement. Halfaker opined, if Lane received counseling with regard to his depression and anxiety conditions, he would suffer a five percent disability of the body as a whole. On the other hand, if Lane did not receive treatment for the psychological component of his injuries, Dr. Halfaker testified Lane’s impairment could be as high as ten percent.

The Commission accepted the testimony of Dr. Halfaker and found Lane sustained injuries that would require future medical care in the form of psychological counseling and ordered G & M to provide the counseling as recommended by Dr. Halfaker. In essence, then, Lane argues that the Commission accepted the testimony of Dr. Halfaker regarding the need for future medical care, but did not accept Dr. Hal-faker’s opinion that Lane had not reached his maximum psychological improvement in order to award permanent partial disability. Lane contends he should have been awarded temporary total disability until he was able to return to work, his condition stabilized, or after psychological treatment ceased.

To the extent that Lane’s point argues that a claim for future medical benefits and an award of permanent partial disability are inconsistent, the argument has no merit. A claim for future medical treatment is a component of the compensation due an injured worker under section 287.140.1. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 888 (Mo.App. S.D.2001). It is settled that the Workers’ Compensation Act permits the allowance for the cost of future medical treatment in a permanent partial disability award. Sharp v. New Mac Elec. Co-op., 92 S.W.3d 351, 354 (Mo.App. S.D.2003). This includes treatment that gives comfort or relieves even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003). The Commission’s finding that a claimant had reached maximum medical improvement is not inconsistent with a need for future medical treatment. Id.

To the extent that the point challenges the credibility findings of the Commission, we also find no merit. There was sufficient testimony to support a permanent partial disability award based on the testimony of Dr. Belz that Lane had reached his maximum medical improvement. There was evidence from which the Commission could have awarded five percent permanent partial disability; however, the Commission awarded ten percent permanent partial disability to Lane, which was based on Dr. Halfaker’s assertion concerning the need for future counseling. “The Commission is not bound by percentages of disability found by medical experts.” Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465, 470 (Mo.App. S.D.2004). We find the Commission was free to believe the testimony of Dr. Halfaker regarding a ten percent permanent partial disability of the body as a whole without treatment, but the Commission was also free to believe that the psychological treatment was being provided as rélief or comfort to Lane instead of as a cure for Lane’s physical condition. This court defers to the Commission on the issues of credibility and the weight to be given conflicting evidence. Hughey v. Chrysler Corp., 34 S.W.3d 845, 846 (Mo.App. E.D.2000). We will not substitute our judgment on the weight of the evidence or on the credibility of the witnesses for that of the Commission. We find that substantial evidence exists to support the Commission’s determination that Lane had reached his maximum medical improvement even though he was awarded future medical care. Lane’s first point is denied.

Finally, we turn to Lane’s contention that an award of only six weeks temporary total disability was error. “The burden of proving entitlement to temporary, total disability benefits. [is] on [the][e]mployee.” Seeley v. Anchor Fence Company, 96 S.W.3d 809, 821 (Mo.App. S.D.2002). Temporary total ' disability compensation is paid until the employee can return to work, his condition stabilizes, or he has reached a point where further progress is not expected. Minnick v. South Metro Fire Protection Disk, 926 S.W.2d 906, 909 (Mo.App. W.D.1996). The purpose of temporary, total disability benefits is to cover the cost for a worker’s healing period. Seeley, 96 S.W.3d at 821. The test is whether an employee is able to compete in the open labor market given the employee’s present physical condition. Cooper v. Medical Center of Independence, 955 S.W.2d 570, 575 (Mo.App. W.D.1997).

Lane contends there was substantial and credible evidence, in the form of medical opinions, that he was unable to work from the time he was first seen in August of 1999 through September of 2001. He argues that the only contrary evidence came from Dr. Belz, who was of the opinion that Lane did not suffer from any lightning strike injury. Lane cites to cases which find the testimony of the claimant alone is sufficient evidence to support an award for temporary total disability and then points to his own testimony regarding his incapacity to work. He also cites to one of his doctor’s opinions finding that on June 6, 2001, Lane was not capable of working and was not likely to improve substantially so as to return to work because of his emotional and cognitive problems.

It is true that there was sufficient evidence in the record to support Lane’s allegations that his life took a dramatic turn for the worse after the incident and would have supported a longer award of temporary total disability had the Commission chosen to do so; however, that is not the posture of the case before us. We do not decide cases in the first instance; “[w]e must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record [and] an award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.” Id. at 223.

As noted above, Dr. Belz provided a medical opinion that Lane was not totally disabled on October 1, 1999, the date of Lane’s first visit to Dr. Belz. Additionally, the medical testimony of Dr. Cornelison indicates that Lane was placed in off-work status on July 29, 1999, for two additional weeks from that date. The Commission used Dr. Cornelison’s medical records to calculate the total of nine weeks that Lane was unable to return to work. In light of the findings of the Commission that Lane is permanently and partially disabled, we cannot disturb the inference that Lane’s condition had stabilized and he was able to return to employment nine weeks after the incident. We find no error in the award of temporary total disability. Lane’s second point is denied.

The judgment is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

      . The Commission found Lane was in off-work status after the incident for a total of nine weeks; however, G & M paid Lane approximately three weeks temporary total disability. The Commission allowed a credit for the benefits paid by G & M and awarded additional temporary total disability of approximately five-and-a-half weeks.

      . The findings of the Administrative Law Judge included the following statement: "Claimant suffered a sudden unexpected event [on June 10, 1999,] which caused [him] to have an immediate and violent reaction and which caused [him] to exhibit symptoms of low back pain, depression and anxiety." The Commission supplemented the finding to state that the sudden unexpected event "was a lightning strike or electrical current.” We review the findings and award of the Commission and not those of the ALJ. Seeley v. Anchor Fence Company, 96 S.W.3d 809, 819 (Mo.App. S.D.2002).

      . Although Rantz claimed he always adds the word "supposed” to an accident report, "supposed” was not in the report detailing Lane's incident.

      . In making that finding, we do not ignore G & M’s argument that its doctor testified that Lane was not struck by lightning except to note that there was contrary testimony by Lane’s witnesses, including his experts. This Court defers to the Commission on issues of credibility and the weight to be given conflicting evidence. Hughey v. Chrysler Corp., 34 S.W.3d 845, 846 (Mo.App. E.D.2000).

      . G & M has not appealed the award of future medical care.

      . Lane did not provide evidence that he was permanently and totally disabled.


text:
    Douglas D. FRANKLIN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26265.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 28, 2005.

      Rosalynn Koch, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., and Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Douglas D. Franklin (“Movant”) appeals from the Circuit Court of Taney County’s denial of his Rule 29.15 motion for post-conviction relief based on alleged ineffective assistance of counsel. We affirm.

Movant was charged with the class C felony of child molestation in the first degree, pursuant to Section 566.067, for subjecting J.H., a child less than twelve years of age at the time, to sexual contact. Mov-ant pled guilty pursuant to a plea agreement with the State under which he would receive five years’ suspended execution of sentence and five years of supervised probation. The plea court at first accepted Movant’s plea and ordered a pre-sentence investigation. After reviewing the pre-sentence investigation report, however, the plea court rejected the plea agreement and Movant withdrew his plea. Movant was later convicted by a jury of child molestation in the first degree and sentenced to five years. Movant directly appealed his conviction and this court affirmed in a memorandum opinion at State v. Franklin, No. 24147 (Mo.App. S.D. filed April 5, 2002).

Movant filed a pro se motion for post-conviction relief, pursuant to Rule 29.15, counsel was appointed and an amended motion was filed. Following an evidentiary hearing, the motion court issued its findings of fact and conclusions of law denying Movant’s claim. This appeal followed.

Movant presents one point on appeal. He claims the motion court erred in denying his motion because he received ineffective assistance of counsel in that his trial counsel gave him erroneous advice which caused him not to testify in his own defense. He contends that his failure to testify resulted in his conviction.

Movant was first represented by other counsel during his plea negotiations, at his plea hearing, and at the sentencing hearing in which the plea court refused to accept the plea agreement. During his plea hearing, Movant testified to facts which demonstrated his guilt of the crime charged. He also made certain statements to a probation and parole officer in conjunction with a pre-sentence investigation which are the subject of one of his complaints on this appeal. Following the withdrawal of his plea, his attorney withdrew and Movant employed Souder Tate (“Tate”). In preparation for trial, Tate and Movant discussed whether Movant would testify in his defense. Tate testified at the evidentiary hearing that he was concerned that if Movant testified at trial, he could be impeached with the statements he made to the probation and parole officer in connection with his pre-sentence investigation. Tate testified that he did not believe, however, that the State would be able to use the guilty plea which had been withdrawn. Tate stated that he advised Movant that he could testify if he wanted to, but that Tate believed he would be cross-examined with a prior inconsistent statement because of the statements Movant made to the probation and parole officer.

Movant testified at the post-conviction relief hearing that he interviewed several attorneys after his first attorney withdrew, and all of them advised him that it was possible that his guilty plea and the statement he made to the probation and parole officer could be used to impeach his testimony at trial. He said that Tate also advised him of this possibility and, to Mov-ant, there was no differentiation between the statements he made during his guilty plea and the statements he made to the probation and parole officer. Movant stated that this advice alone caused him not to testify.

In its findings of fact and conclusions of law, the motion court found that Tate gave erroneous advice to Movant regarding the admissibility of his statements to the probation and parole officer. It also found that Tate’s advice that the State would not be able to use the guilty plea was correct. It found that Movant’s guilty plea, and the statements made to the probation and parole officer, could not be used by the State in any manner at trial, including impeachment of Movant’s testimony, citing Rule 24.02(d)(5); State v. Hoopes, 534 S.W.2d 26, 37 (Mo. banc 1976); and Section 559.125.2. Accordingly, the motion court acknowledged that reasonably competent counsel would not have advised Movant as Tate had regarding Movant’s statements to the probation and parole officer and would have taken steps to ensure that such evidence would not have been introduced through a motion in limine or a motion to suppress.

The motion court, however, found that Movant was not prejudiced by Tate’s erroneous advice. It noted that Movant was advised at trial that cross-examination would be limited to matters covered on direct examination and his prior convictions, and that Movant stated that he chose not to testify because it was in his best interests. It found that there may have been multiple reasons why Movant chose not to testify, and that the motion court did not know what his testimony might have been. According to the motion court, Movant denied to the probation and parole officer that he committed the offense, and his statement that he touched the victim three times was ambiguous at best. It found that Movant’s ambiguous statements to the probation and parole officer did not appear to be the sole reason Movant chose not to testify. The motion court noted that Movant testified at his guilty plea to facts which indicated his guilt and if he had testified differently at trial, he would have been subject to a perjury prosecution, pursuant to Rule 24.02(d)(5). It also found that if Movant had testified at trial as he did at his guilty plea, “the prejudice to him would have been much greater than his decision not to testify.” Accordingly, the motion court was unable to find that Tate’s erroneous advice was the reason Movant chose not to testify.

Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Parham v. State, 77 S.W.3d 104, 106 (Mo.App. S.D.2002). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Middleton v. State, 80 S.W.3d 799, 804 (Mo. banc 2002) (quoting Moss v. State, 10 S.W.Sd 508, 511 (Mo. banc 2000)).

Although Movant agrees with the motion court’s determination that Tate’s advice concerning the statements he made to the probation and parole officer was erroneous, it is not clear whether he takes issue with the court’s determination that Tate’s advice concerning the guilty plea was correct. In any event, Movant argues that the motion court clearly erred in finding that he was not prejudiced. He claims that it was sheer conjecture for the motion court to believe that his decision not to testify was driven by any factor “other than the perceived threat of impeachment.” He argues that Tate’s testimony at the evidentiary hearing made it clear that fear of impeachment “was the prime, and perhaps the only, concern behind [Movant’s] decision to not take the stand.” Movant notes that no other factors were considered when he and Tate weighed the positives and negatives of testifying and that the motion court’s discussion of perjury was unfounded, claiming that the testimony, “while impeaching, [was] not necessarily inconsistent.” See Tate v. State, 675 S.W.2d 89, 91 (Mo.App. E.D.1984). Finally, Movant claims to have established very real prejudice because of a juror’s testimony at the evidentiary hearing. The juror stated that Movant’s failure to testify gave a negative impression in that he did not try to defend himself, and that the jury noted this lack of testimony in its deliberations.

The State first responds by alleging that Movant’s claim on appeal was not raised in his amended motion and should not be reviewed. The State claims that Movant only alleged in his amended motion that Tate advised him that his guilty plea could be used against him, not the statements made to the probation and parole officer during the pre-sentence investigation. While we agree with the State that Movant did not specifically address Tate’s advice concerning the comments to the probation and parole officer and that his amended motion is far from a model of clarity, we find that the opening sentence of his second point in the amended motion, “(b) Counsel, [Tate], was ineffective in that he failed to file a motion in limine or to take other necessary steps to preclude the state from being allowed to impeach movant with statements made at his rejected guilty plea proceedings[ ]” when read in context with the rest of this point is adequate to allow for our review.

The State also claims that Movant failed to prove that he was prejudiced by Tate’s advice. It argues that because the motion court failed to find that Movant chose not to testify solely because of Tate’s erroneous advice about impeachment, the motion court did not find credible Movant’s testimony that he would have testified had Tate not given him this advice. The State asserts that we must defer to the motion court’s credibility determinations. The State further argues that prejudice cannot be presumed and that Movant failed to plead and prove what his testimony at trial would have been because he did not outline it in his pleading or at the evidentiary hearing. It also notes that Movant’s main attempt at proving prejudice involved the juror’s testimony that the jury considered his failure to testify in its deliberations, but argues that we should not consider the juror’s testimony as it was not admitted into evidence. Rather, it points out that it objected to the juror’s testimony; the motion court allowed Movant to make an offer of proof, which it then rejected; and Mov-ant has not claimed on this appeal that the motion court’s ruling on his offer of proof was in error. The State also notes that the trial court gave a jury instruction that the jury could make no presumption based on the fact that Movant did not testify. Finally, the State claims that Movant does not argue that if he had testified it would have caused the jury to acquit him.

In order for a criminal defendant to be granted post-conviction relief on the basis of ineffective assistance of counsel, the defendant must demonstrate that “his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances, and that he was thereby prejudiced.” Parham, 77 S.W.3d at 106 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Therefore, Movant must show that counsel’s performance fell below an objective standard of reasonableness and, but for counsel’s performance, a reasonable probability exists that the outcome of the trial would have been different. Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003). “If the [movant] fails to satisfy one of the two prongs of the Strickland test, we are not compelled to address the other prong and the claim of ineffective assistance must fail.” Dorsey v. State, 113 S.W.3d 311, 314 (Mo.App. S.D.2003).

Movant’s point and argument are not completely clear as to whether he is appealing the motion court’s determination that Tate correctly advised him that the guilty plea could not be used against him at trial or only its determination that he was not prejudiced by Tate’s erroneous advice as to the statements Movant made to the probation and parole officer. We will address both possibilities. The motion court determined that Tate correctly advised Movant that the State could not use his guilty plea at trial, albeit for the wrong reason, and was therefore not ineffective on this basis. The motion court has the opportunity to assess the credibility of witnesses and we defer to its credibility determinations. Waters v. State, 128 S.W.3d 648, 652 (Mo.App. S.D.2004). We find no eiTor in the motion court’s determination.

We now address Movant’s claim as to Tate’s erroneous advice regarding the statements Movant made to the probation and parole officer. “The decision to testify solely rests with the defendant, but the defendant is entitled to receive ‘reasonably competent advice.’ ” Rousan v. State, 48 S.W.3d 576, 585 (Mo. banc 2001). Even if the movant did not receive competent advice, he or she must still prove prejudice. Id. at 586. There must be a reasonable probability that if movant would have testified, the result of the proceeding would have been different. Id. Neither party contests the motion court’s determination that Movant’s counsel’s advice about the possibility of being impeached with the statements he made to the probation and parole officer was incorrect, therefore the only issue before us is whether Movant was prejudiced by Tate’s advice.

Movant’s primary attempt at proving prejudice was through the testimony of one of the jurors from his trial who stated that the jury discussed Movant’s failure to testify during its deliberations and did not look favorably upon it. The juror’s testimony was presented only in an offer of proof, following an objection by the State to her testimony, which the motion court sustained. The motion court then refused the offer of proof. Movant has not challenged this ruling on appeal, though in his brief he cites the juror’s testimony as a “very real prejudice” resulting from his failure to testify. We need not determine, however, whether we can consider the juror’s testimony when the motion court excluded it and Movant failed to challenge this ruling on appeal. A post-conviction relief movant may not use the testimony of a juror to prove prejudice from his attorney’s alleged incompetence because this would be permitting the juror to impeach the verdict, which is impermissible. State v. Debler, 856 S.W.2d 641, 654 (Mo. banc 1993). Therefore, even if the motion court had allowed the testimony, it could not be considered as evidence of prejudice.

In his amended motion, Movant twice referred to the fact that it was important that he take the stand and deny the allegations against him at trial, though he did not elaborate on this in any way. He also completely failed to address at the eviden-tiary hearing what his testimony would have been. The motion court noted this in its findings of fact and conclusions of law, stating that it did not know what his testimony would have been. We agree with the motion court that we are only able to speculate as to what testimony Movant would have given at trial, other than possibly a denial as he described in his motion. Movant bears the burden of proving prejudice, and where he has not given us a description of the testimony he would have given at trial, we cannot determine whether this testimony would have been reasonably likely to change the result of the trial. See State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993) (though also denying an evidentiary hearing for movant, the court held that where movant “offered no attempt to provide the proposed content of his testimony or to show that there was a reasonable probability that his testimony would have caused the jury to acquit him,” he was not entitled to relief).

Even if we were to find that Movant’s references to a denial in his motion constituted proof of what his testimony would have been at trial, Movant failed to show how this would have led to a reasonable probability of a different result. His argument centers on the fact that if he had testified, the jury would not have had a negative view of him for failing to testify, not on how the content of his testimony would have led it to acquit him. But as described above, his method of proving prejudice through juror testimony is impermissible and cannot be considered. Furthermore, the trial court instructed the jury that it could not draw any inference from the fact that Movant did not testify and we have long held that juries are presumed to follow instructions. Wright, 125 S.W.3d at 867. In light of this, Mov-ant’s argument that the jury looked negatively upon his failure to testify must fail. Movant never attempted to prove how the content of his testimony would have led to a reasonable probability of a different result at his trial, so we cannot find here that it would have done so.

Furthermore, we note the fact that if Movant had testified differently at trial than at his guilty plea, he would be subject to a perjury charge, as allowed by Rule 24.02(d)(5). The motion court found that Tate’s advice was not the only reason he did not testify. We must defer to the motion court’s opportunity to assess the credibility of witnesses. Waters, 128 S.W.3d at 652. These facts and the lack of a description of the testimony Movant would have given at trial lead us to believe that the motion court was not clearly erroneous in determining that Movant was not prejudiced by his counsel’s erroneous advice. Movant’s point is denied.

We affirm the motion court’s denial of Movant’s Rule 29.15 motion.

PREWITT and RAHMEYER, JJ„ concur.

      . All rule references are to Missouri Rules of Criminal Procedure (2003) unless otherwise noted.

      . All statutory references are to RSMo (1994) unless otherwise noted.

      .We use initials to protect the identity of the victim.

      . The pre-sentence investigation states, "[i]n discussing the offense with this officer, [Mov-ant] admits to touching the victim only three times, however, denied ever kissing or licking the victim’s penis.”

      . Rule 24.02(d)(5) provides, in pertinent part, "[h]owever, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, or an offer to plead guilty to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.”