author: Opinion by Justice MORRIS.

text:
    In Re R.C.S., T.C.S., J.C.S., and M.C.S., Minor Children.
    No. 05-04-00305-CV.
    Court of Appeals of Texas, Dallas.
    April 28, 2005.
    Rehearing Overruled July 21, 2005.

      Charles E. Miller, Jr., Mesquite, attorney ad litem for R.C.S., T.C.S., J.C.S., M.C.S.
    Julia F. Pendery, Godwin Gruber, LLP, Yvette Jimenez Mabbun, Dallas, for Appellant.
    Bruce K. Thomas, Law Office of Bruce K. Thomas, Dallas, Pamela Staley, Decatur, for Appellee.
    Before Justices MORRIS, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by Justice MORRIS.

In this appeal from an order modifying the parent-child relationship, appellant Thomas C. Staley contends the trial court had no subject matter jurisdiction to change the conservatorship arrangement set forth in its original decree of divorce. In addition, appellant argues the trial court erred in denying two motions to recuse, failing to equalize the peremptory challenges given to each party, overruling an objection to evidence of racial bias, and awarding both appellee and the ad litem their attorney’s fees. Concluding appellant’s arguments are without merit, we affirm the trial court’s judgment.

I.

Appellant and appellee, his former wife, Pamela S. Staley, are the parents of four minor children. On May 29, 2002, the trial court signed a final decree of divorce ending their marriage and establishing appellant and appellee as joint managing conservators. The decree did not grant either parent the right to establish the primary residence of the children, but instead ordered “that the primary residence of all four children is established at two locations:” one location being the residence of appellee in Dallas County, Texas; the other of appellant in Collin County, Texas or Dallas County, Texas. The decree also ordered that the children attend a particular private school unless appellant and ap-pellee mutually agreed otherwise. Neither party appealed the decree.

Approximately three months after the decree was signed, appellee filed a petition to modify the parent-child relationship stating that the circumstances had materially and substantially changed since the earlier decree was rendered. Specifically, appellee stated that her mother had become very ill requiring appellee to care for her in Decatur, Texas. Appellee requested that she be designated as the conservator with the exclusive right to determine the primary residence of the children without regard to geographical location. In the alternative, appellee requested that the children’s residence be restricted to Wise County, Texas, or contiguous counties. Appellee also requested that the children be allowed to attend a different school than the school designated in the original decree. Appellee stated she had discussed these matters with appellant, but no agreement could be reached. In a supplemental petition, appellee also requested that the terms and conditions for possession and access be changed.

Appellant answered and filed his own counter-petition to modify the parent-child relationship seeking, among other things, to be named the conservator with the exclusive right to determine the primary residence of two of the children and to restrict the residency of all four children to Collin County, Texas, or contiguous counties. Appellant argued these changes were necessary because the conservator-ship arrangement under the original divorce decree had become unworkable.

The issue of who was to establish the primary residence of the children was tried to a jury. An ad litem was appointed to represent the best interests of the children. On the first day of trial, appellant non-suited the portions of his counter-petition seeking modification of the children’s residency. Thus, the sole issue submitted to the jury was whether the divorce decree should be modified to appoint appellee as the conservator with the exclusive right to determine the primary residency of the children in Wise County and contiguous counties. The jury answered “yes” with respect to all four children.

The remaining issues were tried to the court without a jury. The trial court signed a final order on December 29, 2003. Appellant now appeals from that order.

II.

In appellant’s first issue, he contends the trial court lacked subject matter jurisdiction over appellee’s petition to modify the parent-child relationship because the petition was not supported by a sufficient affidavit under section 156.102 of the Texas Family Code. The version of section 156.102 in effect at the time appellee filed her petition stated that if a party files suit “seeking to modify the designation of the person having the exclusive right to determine the primary residence of a child ... [within] one year after the date of the rendition of the order, the person filing suit shall execute and attach an affidavit as provided by Subsection (b).” Tex. Fam. Code Ann. § 156.102 (Vernon 2002), amended by Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 20, 2003 Tex. Gen. Laws 2987, 2993 (current version at Tex. Fam.Code Ann. § 156.102(a) (Vernon Supp.2004-05)). Subsection (b) required that the affidavit supporting the petition to modify contain an allegation and supporting facts showing that either (1) the child’s present environment was endangering his physical health or emotional development, (2) the person who had the exclusive right to determine the primary residence was seeking or consenting to the modification, or (3) the person who had the exclusive right to determine the primary residence had voluntarily relinquished primary care and possession of the child for at least six months and the modification was in the best interests of the child. Id. Appellant argues section 156.102 is jurisdictional and because appellee failed to submit a sufficient affidavit, the trial court did not have subject matter jurisdiction over her suit. It is unnecessary for us to address whether section 156.102 is jurisdictional in nature, however, because the section is inapplicable to appellee’s petition to modify.

By its clear and unequivocal terms, section 156.102 is applicable only to suits seeking to “modify the designation of the person having the exclusive right to determine the primary residence of a child.” See id. In this case, the decree of divorce appellee sought to modify did not designate a person with the exclusive right to determine the primary residence of the children. Instead, the decree designated two alternate locations as the primary residence of the children. Because appellee’s suit sought an order designating a person with the right to determine the primary residence of the children in the first instance, instead of a modification of the person so designated, section 156.102 does not apply to appellee’s suit.

In holding that section 156.102 is not applicable in this case, we are mindful that the purpose section 156.102 is to promote stability in the conservatorship of children by preventing the re-litigation of custodial issues within a short period of time after the custody order is entered. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex.App.-Houston [1st Dist.] 1997, writ denied). Such stability in custodial issues was meant to be achieved, however, by placing the power to designate the child’s primary residence in a single conservator. It is for this reason that the legislature mandated that all orders appointing joint managing conservators include a designation of the conservator who has the exclusive right to determine the child’s primary residence. See Tex. Fam. Code Ann. § 158.133-4 (Vernon 2002). The divorce decree signed on May 29, 2002, ordered that appellant and appellee act as joint managing conservators, but failed to designate which conservator had the exclusive right to determine the children’s residency. Therefore, the order was not in compliance with the requirements of the Texas Family Code. See id. By bringing suit to designate a conservator with the right to determine the children’s primary residence, appellee was seeking to bring the divorce decree into compliance with the requirements of the Code. Appellee’s suit, rather than seeking to disrupt the stability of the children’s custody, sought instead to establish the stability that is created by vesting control of the children’s residency in a single conservator. Because section 156.102 is inapplicable to appellee’s petition, we conclude appellant’s arguments under that section are without merit and we resolve his first issue against him.

In his second issue, appellant contends the trial court erred in its rulings on two different motions to recuse Judge Jeffrey Coen. The first motion sought to recuse Judge Coen after his assignment to the case as an associate judge; the second motion sought his recusal after he ascended to the district court bench and became the sitting judge of the court in which the parties’ divorce case was pending. The first motion for recusal was filed by a trustee for Cromwell Holding Company, a party to the original divorce proceeding. According to the motion, then Associate Judge Coen demonstrated bias in favor of appellee by ordering that Cromwell be joined in the suit. Based on this order, Cromwell argued Coen was required to recuse himself under rules 18a and 18b of the Texas Rules of Civil Procedure.

Judge Coen denied Cromwell’s motion, holding that rules 18a and 18b do not apply to associate judges appointed to hear matters under chapter 201 of the Texas Family Code. This decision was appealed to the sitting judge of the trial court who affirmed the denial of the motion. See Tex. Fam.Code Ann. § 201.015 (Vernon 2002) (appeal to referring court). Despite the denial of the motion to recuse, Judge Coen did not hear any other matters in the suit before the trial court signed the divorce decree on May 29, 2002. We note again that no appeal was taken from the 2002 decree.

Appellant now attempts to challenge the denial of the first motion to recuse that he neither filed nor appealed. Appellant’s challenge is not well taken because, among other things, any error in the trial court’s denial of Cromwell’s motion to recuse was waived when no party appealed from the May 29, 2002 divorce decree. See In re Union Pacific Res. Co., 969 S.W.2d 427, 428 (Tex.1998).

The second motion to recuse Judge Coen was filed by appellant in the current suit. The motion was filed after the conclusion of the jury trial, but before the remaining issues were tried to the court. At the time of the second motion, Judge Coen had assumed the district court bench in which this case was pending following the retirement of the previous presiding judge. Appellant argues in his motion to recuse that the judge demonstrated bias against him during the trial and, therefore, was required to recuse himself. Judge Coen declined to do so and, pursuant to Rule 18a of the Texas Rules of Civil Procedure, requested the presiding judge of the administrative judicial district to assign another judge to hear the motion. A judge was assigned to the matter and, following a hearing, the judge denied the motion.

Appellant argues that the second motion to recuse was erroneously denied on the basis of untimeliness. The order denying the motion does not state the reason for the denial, however. Indeed, at the conclusion of the hearing on the motion to recuse, the judge stated that he concluded not only that the motion was untimely but also that he would deny the motion “based on not finding any bias or prejudice.... ” Appellant makes no argument and does not point us to any evidence demonstrating that the motion was erroneously denied because of lack of evidence of bias or prejudice. Accordingly, we cannot conclude the trial court abused its discretion in denying the motion on that basis. We resolve appellant’s second issue against him.

Appellant’s third issue addresses the actions of the ad litem during the jury trial. Specifically, appellant contends the trial court erred in allowing the ad litem a full number of jury strikes and in permitting the ad litem to elicit evidence about appellant’s alleged racial bias. With respect to the jury strikes, appellant complains that the ad litem and appellee were aligned in interest and, therefore, both the ad litem and appellee should not have been allowed six peremptory challenges. Generally, each party to a civil action in- district court is entitled to six peremptory challenges. See Tex.R. Civ. P. 233. In a case with multiple parties, any litigant may make a motion to equalize the number of challenges so that no litigant or side is given an unfair advantage as a result of the alignment of the parties. See id. In determining how the peremptory challenges are to be allocated, the court must consider any matter brought to its attention concerning the ends of justice and the elimination of an unfair advantage.

After the conclusion of voir dire examination and before the parties exercised their peremptory challenges, appellant timely moved that the strikes be equalized. See In re M.N.G., 147 S.W.3d 521, 532 (Tex.App.-Fort Worth 2004, pet. denied). In arguing that the appellee and the ad litem were aligned, however, appellant merely stated'that the ad litem had “essentially rendered his opinion with [appel-lee].” Appellant did not point to any statements, filings, or other actions by the ad litem that would demonstrate that his advocacy of the children’s best interests was so aligned with appellee’s interests in the litigation that allowing him a full number of peremptory challenges would result in an unfair advantage or defeat the ends of justice.

On appeal, appellant attempts to demonstrate that the ad litem and appellee were aligned by pointing to three pre-trial matters in which both the ad litem and appel-lee were opposed to appellant. The matters involved appellee’s attempt to exclude evidence that the divorce decree was agreed, appellant’s attempt to have the suit for modification dismissed, and appellant’s motion for protective order relating to evidence of funds available to him. The fact that the ad litem’s position on these three matters was consistent with appel-lee’s does not demonstrate alignment of the parties.

The ad litem’s position at trial was that the conservatorship arrangement under the 2002 decree was unworkable and should be changed. Until the day of trial, appellant also took the position that the conservatorship arrangement needed to be modified. The fact that the ad litem was advocating a change in the conservatorship arrangement, and did not want the suit dismissed or evidence to come before the jury that would imply the arrangement under earlier decree was acceptable, shows only that he believed a change was in the best interests of the children and does not necessarily indicate any alignment with ap-pellee. Similarly, evidence of funds available to appellant, his financial status, and his honesty about his finances, are issues that are as important to the representing the children’s best interests as appellee’s.

Appellant also points to the fact that both the ad litem and appellee argued against appellant’s objection to the ad li-tem participating at trial. Agreement on the proper role of the ad litem at trial does not indicate alignment on the issues involved in the suit. After examining the record, we conclude there was nothing before the trial court at the time it made its ruling on the motion to equalize peremptory challenges that would indicate that the ad litem and appellee were aligned to the extent that allowing them each to exercise their normal allotment of six challenges would result in an unfair advantage to any party.

Appellant’s second complaint about the actions of the ad litem concerns the ad litem’s questioning of one of the children at trial. The ad litem asked appellant’s daughter about an incident involving appellant, and she testified that during a dinner her father, who she said had been drinking heavily, began making racial comments. Appellant objected and moved that the testimony be stricken. The trial court overruled the objection and denied appellant’s later motion for a mistrial.

Appellant argues the trial court committed reversible error when it allowed the ad litem to “inject evidence of [appellant’s] alleged racial prejudice.” In support of this contention, appellant cites three cases for the proposition that “incurable, reversible error occurs whenever any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity.” See Texas Employers’ Ins. Assoc. v. Guerrero, 800 S.W.2d 859, 866 (Tex.App.San Antonio 1990, writ denied); see also, Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex.1979); Texas Employers’ Ins. Assoc. v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954). In all three cases, however, the prejudice about which the court was concerned was the jury’s, not the party’s. It is forbidden for counsel to appeal to a jury’s racial or ethnic prejudice when advocating for or against a party. See Guerrero, 800 S.W.2d at 866. Nothing in the cases cited by appellant suggests that evidence of a party’s racial prejudice is inadmissible, particularly when the issue before the jury is that party’s custody of children. We conclude appellant’s arguments in support of his third issue are without merit and we resolve the issue against him.

In his fourth and final issue, appellant complains of the trial court’s awards of attorney’s fees to appellee and the ad litem. It is within the trial court’s sound discretion to award reasonable attorney’s fees in a suit affecting the parent-child relationship. See Tex. Fam.Code Ann. § 106.002 (Vernon 2002). Appellant argues the trial court abused its discretion in awarding appellee her attorney’s fees because she created the conditions under which the conservatorship arrangement set forth in the May 29, 2002 divorce decree became unworkable. Therefore, according to appellant, all the litigation costs were created by appellee’s own actions. In making these arguments, appellant is simply attempting to reargue his position on the merits of appellee’s petition to modify'. Appellee prevailed on her motion to modify and we have concluded that appellant’s challenges to that ruling are without merit. Appellant’s contention that appel-lee should not have succeeded in her attempt to modify the conservatorship arrangement does not persuade us that the trial court abused its discretion in awarding her attorney’s fees. See Norris v. Norris, 56 S.W.3d 333, 346 (Tex.App.-El Paso 2001, no pet.).

Appellant also argues the trial court was under the mistaken impression that it was required to award appellee her attorney’s fees because the trial court’s order states “because the Petitioner, [appellee], was successful in the jury trial, she is entitled to a judgment for her attorney’s fees ...” It is certainly within the trial court s discretion to award a prevailing party attorney’s fees based on the merits and success of their claims. Nothing in the trial court’s order suggests that its award of attorney’s fees was made as a result of perceived obligation rather than an exercise of discretion. Appellant does not challenge the evidence supporting the amount of the award. Accordingly, we conclude the trial court did not abuse its discretion in awarding appellee her attorney’s fees.

Appellant’s challenge to the trial court’s award of fees to the ad litem is similar to his challenge to appellee’s award of fees. Once again, appellant argues it was appel-lee’s conduct that caused the parties to incur costs such as the ad litem fee. As stated above, appellant’s attempt to rear-gue the merits of appellee’s suit is misplaced. Appellant also argues the appointment of the ad litem was unnecessary because the trial court had already appointed a psychologist to determine the best interests of the children. The role of the psychologist and the role of the ad litem are very different, however. Additionally, appellant does not point to any evidence in the record showing that he objected to the appointment of the ad li-tem to represent the children. We resolve appellant’s fourth issue against him.

We affirm the trial court’s judgment.

      . Appellant contends the trial court erred in failing to refer his motion to recuse to the presiding judge of the administrative district as required by Rule 18a. See Tex.R. Civ. P. 18a. This complaint is not supported by the record The record clearly shows the motion was referred.

      . Appellant’s statement of the third issue in his brief includes a general sub-issue questioning the extent of the ad litem’s participation at trial. Appellant's arguments, however, are confined to the matters of the ad litem's jury strikes and his elicitation of evidence regarding prejudice. Our analysis is confined solely to the two specific matters argued by appellant.

      . Appellant additionally notes several other instances of conduct which he believes show that the ad litem and appellee were aligned in interest. This conduct occurred either during or after the trial, however, and could not have been considered by the trial judge at the time he made his ruling.


source: Caselaw Access Project

author: STEPHEN N. LIMBAUGH, JR., Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Mark Anthony GILL, Appellant.
    No. SC 85955.
    Supreme Court of Missouri, En Banc.
    July 12, 2005.
    Rehearing Denied Aug. 2, 2005.

      Deborah B. Wafer, Office of the Public Defender, St. Louis, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Erwin 0. Switzer, III, Assistant Atty. Gen., Jefferson City, for Respondent.
   STEPHEN N. LIMBAUGH, JR., Judge.

A New Madrid County jury convicted Mark A. Gill of first-degree murder, armed criminal action, kidnapping, first-degree robbery, and first-degree tampering. Gill was sentenced to death on the murder count, life imprisonment on the robbery count, and consecutive sentences of thirty years imprisonment on the armed criminal action count, fifteen years on the kidnapping count, and seven years on the tampering count. Because the death penalty was imposed, this Court has exclusive jurisdiction of the appeal. Mo. Const, art. V, sec. 3. The judgment is affirmed.

I. Facts

The facts, which this Court reviews in the light most favorable to the verdict, State v. Christeson, 50 S.W.3d 251, 257 (Mo. banc 2001), are as follows:

The victim, Ralph Lee Lape, Jr., lived alone in rural Cape Girardeau County. During the summer of 2002, Mr. Lape allowed Gill to five in a camper trailer on his property as a favor to a mutual friend. Mr. Lape spent the Fourth of July holiday weekend at Kentucky Lake, while Gill and a friend, Justin Brown, remained at Mr. Lape’s home. During this time, Brown looked through Mr. Lape’s personal papers and learned that he had a large amount of money in his bank account. Brown and Gill decided that they would kill Mr. Lape for his money, and on Saturday, July 6, they began preparations for the killing. They obtained a .22 pistol from Mr. Lape’s home and bought a roll of duct tape, and they decided to “get him” in the garage because “once you pull in the garage can’t nobody see.”

Mr. Lape arrived home from Kentucky Lake on Sunday, July 7, at approximately 5:30 p.m. Gill and Brown, who were waiting in the garage, opened the garage door for him. After Mr. Lape stepped out of his extended cab pickup truck, Gill and Brown “grabbed him,” and Gill told Mr. Lape that they “just wanted his money.” Mr. Lape pleaded to Gill, ‘You don’t have to do this ... I’ll give you what you want. Mark, I ain’t done nothing but try to help you.” Gill and Brown then bound Mr. Lape with plastic ties and the duct tape. They pushed up the backseat of Mr. Lape’s truck and “slid him in.” They divided $240 they found in a ziplock bag that Mr. Lape had been carrying. Gill then put shovels in the back of the truck because he “knew what [he] was fbdn’ to do, [he] was going to hell.”

Gill drove the truck south on Interstate 55 as Brown held Mr. Lape down on the floorboard. After finding Mr. Lape’s ATM bankcard in the truck, Gill asked him for the pin number, and he told them the number “right off.” Gill and Brown drove Mr. Lape approximately 80 miles to a desolate cornfield near Portageville, where they took turns “knocking down corn” and “digging a hole.” While one of them dug the hole, the other sat in the truck and watched Mr. Lape. After digging the hole, they took Mr. Lape out of the truck and removed the duct tape and plastic ties. Ignoring Mr. Lape’s pleas for mercy, Gill and Brown pushed him into the hole. Then one of them pointed the .22 pistol at Mr. Lape and pulled the trigger, but the gun misfired. The trigger was pulled a second time, but there was another misfire. On the third try, the gun fired and shot Mr. Lape in the forehead, killing him. Gill and Brown then “lined him up in the hole” and removed all of his clothing and jewelry. Before they buried Mr. Lape, Brown “stepped on his head” in order to make it fit in the hole. An autopsy revealed that, in addition to the gunshot wound, Mr. Lape had a skull fracture that was “not caused by the bullet,” three separate bruises on his head, bruising in his chest, and one of his ribs was completely broken in two.

After killing Mr. Lape, Gill and Brown changed clothes back at the house and withdrew money from Mr. Lape’s bank account with his ATM card. They then drove to St. Louis, withdrew more money, and spent nearly a thousand dollars of the money at strip clubs. After spending the night at the Adam’s Mark hotel in St. Louis, Gill and Brown drove back to Mr. Lape’s house, stopping along the way to withdraw more money from Mr. Lape’s bank account.

Once at the house, Gill and Brown began to dispose of the evidence. They dumped the shovels in a wooded area and burned their clothing and the clothing they had removed from Mr. Lape’s body. They threw the gun, Mr. Lape’s jewelry, and other evidence that would not burn into the Mississippi River. Then they drove to Paducah, Kentucky, abandoned Mr. Lape’s truck in a hospital parking lot, and returned to Mr. Lape’s house. When Mr. Lape’s family members inquired about his whereabouts, Gill and Brown told them that he was at Kentucky Lake.

Having withdrawn nearly all of the money from Mr. Lape’s bank account that was accessible with an ATM card, Gill and Brown used Mr. Lape’s computer to transfer $55,000 from another account to the ATM-accessible account. After a friend told Gill that there is no limit in Las Vegas on the amount of money that can be withdrawn from an ATM, Gill and his girlfriend drove there and were married. Gill withdrew approximately $1,600 from Mr. Lape’s account while on the trip.

Ultimately, Gill was arrested in New Mexico. He initially denied any involvement in Mr. Lape’s disappearance and claimed he had permission to use the ATM card. However, he later confessed to planning and participating in the murder, but claimed it was Brown who shot Mr. Lape.

II. Murder Verdict Directors

Gill’s primary argument is that the trial court erred in submitting Instructions 8 and 11, the verdict directors for first and second-degree murder, because they attributed the conduct elements of shooting Mr. Lape in the disjunctive to either Gill or Brown. He alleges that the jury should have been instructed that it had to find beyond a reasonable doubt that Brown was the shooter, with no reference to the possibility that Gill was the shooter because, according to Gill, there was no evidence that Gill was the shooter. This Court disagrees.

Instruction 8, the verdict director for first-degree murder, provided in pertinent part:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First that on or about July 7, 2002, the defendant or Justin M. Brown caused the death of Ralph L. Lape, Jr., by shooting him, and
Second that defendant was aware that his or Justin M. Brown’s conduct was practically certain to cause the death of Ralph L. Lape, Jr., and
Third, that beginning in Cape Girar-deau County, Missouri, and ending in New Madrid County, Missouri, the defendant or Justin M. Brown caused the death of Ralph L. Lape, Jr. after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,
then you are instructed that the offense of murder in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or furthering the death of Ralph L. Lape, Jr., the defendant acted together with or aided Justin M. Brown in causing the death of Ralph L. Lape, Jr., and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,
then you will find the defendant guilty under Count I of murder in the first degree....

(emphasis added). The pertinent portions of this instruction are identical to Instruction 11, the verdict director for second-degree murder.

“Whenever there is an MAI-CR instruction applicable under the law and Notes on Use, the MAI-CR instruction is to be given to the exclusion of any other instruction.” State v. Ervin, 835 S.W.2d 905, 922-23 (Mo. banc 1992). This instruction was based upon MAI-CR3d 304.04, Note on Use 5(c), which is to be used “[wjhere the evidence is not clear or conflicts as to which person (in a group including the defendant) engaged in the conduct constituting the offense.” In such situations, Note 5(c) instructs the court to ascribe the conduct elements “to the defendant or the other person.”

Gill contends that the court should have used instead the language from Note 5(a), which provides that “[wjhere the evidence shows the conduct elements of the offense were committed entirely by someone other than the defendant and the sole basis for defendant’s liability is his aiding the other person ... all of the elements of the offense ... should be ascribed to the other person or persons and not to the defendant.” Gill claims that “the only evidence of who shot Ralph Lape” came from his confessions, which “unequivocally stated that Justin Brown shot Ralph Lape.” Because there was no evidence that he was the shooter, Gill argues, the verdict director should have named Brown as the shooter, rather than stating that “the defendant or Justin M. Brown” shot Mr. Lape.

This Court rejected a similar argument in State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989), and affirmed the use of a disjunctive instruction because the evidence was unclear as to whether it was the defendant or her accomplice who killed the victims. In that case, the defendant and her accomplice were the last people in the victims’ house while they were alive. The defendant admitted that she held a gun on the victims, got rope to bind them, and carried out the empty cans of roofing cement that was poured over the victims and set ablaze. The defendant also admitted to fleeing Missouri immediately after these events. In addition, the defendant named a different person responsible for the killings in each of her two confessions.

Similarly, in State v. Gilbert, 103 S.W.3d 743, 747-49 (Mo. banc 2003), this Court held that a verdict director nearly identical to the instruction given here was properly submitted because the evidence was unclear as to who shot the victims. The Court’s reasoning was based on the fact that the defendant had given inconsistent statements about his involvement in the murder. He testified that he tied one of the victims’ hands behind her back and led her down the stairs to the basement, but was upstairs when his accomplice shot the victims. At the time of his arrest, however, he claimed that he was in the victims’ basement with his accomplice when the shots were fired.

Likewise, the verdict directors in this case were properly submitted because the evidence was not clear as to whether it was Gill or Brown who shot Mr. Lape. As in Dulany and Gilbert, Gill admitted to deep involvement in the crime. He admitted to planning the murder, abducting Mr. Lape, tying him up, driving him to a secluded location, digging his grave, and being present when he was shot and killed. And, as in Dulany, Gill fled Missouri after the crime. In addition to these admissions, Gill was wholly self-serving in stating that Brown pulled the trigger. Obviously, Gill had incentive to try to decrease his level of culpability in the hope that he would be treated less harshly if it were determined that he was not the shooter. Under these circumstances, the identity of the actual shooter — whether Gill or Brown — was unclear.

This conclusion is bolstered by Gill’s several inconsistent statements. For instance, Gill initially denied any role in Mr. Lape’s disappearance and claimed that he had permission to use Mr. Lape’s ATM card. It was only later that he admitted to taking part in Mr. Lape’s abduction and murder. Although Gill claimed that it was Brown who pulled the trigger, he also stated that when they accosted Mr. Lape in the garage, “I knew what I was fbdn’ to do, I was going to hell.”

Gill’s statements were also inconsistent with the physical evidence. As noted, the autopsy revealed that Mr. Lape had a skull fracture that was “not caused by the bullet,” three bruises on his head, bruising to his chest, and one of his ribs was completely broken in two. Gill denied that he beat Mr. Lape and the only explanations he could provide for these injuries were that he restrained Mr. Lape in a “bear hug type hold” in the garage and that Brown stepped on Mr. Lape’s head to make it fit in the grave. The medical examiner, however, concluded that Mr. Lape was beaten before his death. He testified that the bruises on Mr. Lape’s head were caused by “a minimum of three” blows to the head, and that it would have taken a “solid punch or kick or something similar” to have broken his rib completely in two. The medical examiner also concluded that “one stomp” would not have bruised three separate areas of the head, bruised the chest, and broken the rib.

Gill’s self-serving account of the murder and the many inconsistencies in his story brought his credibility into issue, and as a result, the jury was not bound by Gill’s statement that Brown was the shooter. Dulany, 781 S.W.2d at 55. Because the evidence was unclear as to whether it was Gill or Brown who actually shot Mr. Lape, the trial court did not err by submitting the conduct elements in the disjunctive.

Furthermore, Gill could not have been prejudiced by the disjunctive submission. As this Court held in Dulany:

Even if there had not been enough evidence for the jury to find defendant committed the acts, the disjunctive submission would not have been reversible error. When the aider is found to have purposely aided in capital murder and thus has the same intent of the active participant, all other things being equal, they are liable to the same degree as the active participant. Defendant’s admitted affirmative actions advanced the criminal enterprise and rendered her just as guilty as if she alone committed the acts.

Id. at 56 (internal citations omitted); see also Gilbert at 748.

III. Armed Criminal Action Verdict Directors

In a related point, Gill alleges the trial court erred in submitting Instructions 15, 17 and 19, the verdict directors for armed criminal action, because they did not follow the Notes on Use with regard to accomplice liability.

Instruction 15 provided, in pertinent part:

As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that defendant committed the offense of murder in the first degree, as submitted in Instruction No. 8, and
Second, that defendant committed that offense with the aid of a deadly weapon, then you will find the defendant guilty under Count III of armed criminal action....

Instructions 17 and 19 submitted the offense of armed criminal action as to the lesser included offenses of second-degree murder and second-degree felony murder but were otherwise identical to Instruction 15.

These instructions were erroneous, Gill explains, because “the evidence showed [Gill] did not use a weapon.” In support, he cites Note on Use 4 to MAI-CR3D 332.02, which requires “[w]here it is alleged that a person other than the defendant employed a deadly weapon or dangerous instrument, the verdict director for armed criminal action must be in the form of MAI-CR 3d 304.04 [aider and accomplice liability].”

To the contrary, as noted, the evidence was unclear as to who fired the gun, so the murder verdict directors properly posited that “defendant or Justin M. Brown” shot Mr. Lape. Note on Use 4 also provides that “[w]here the defendant’s liability for the underlying felony is premised on accomplice liability and where it is alleged that the defendant himself employed a deadly weapon or dangerous instrument in the commission of the offense, it is not necessary to submit the verdict director on Armed Criminal Action (MAI-CR 3d 332.02) in the form of Ader Liability.” Here, the verdict directors in the underlying felony (murder) did in fact allege that Gill “himself employed a deadly weapon or dangerous instrument in the commission of the offense,” and although that submission was couched in the disjunctive, it still was unnecessary to use the accomplice liability language of MAI-CR3D 304.04 in the ACA verdict director. The trial court did not err in submitting these instructions.

IV. Voir Dire

Gill next contends that the trial court erred in overruling his objections to the prosecutor’s voir dire on accomplice liability. The key portion of the voir dire is as follows:

PROSECUTOR: The Judge will tell you that in Missouri a person is responsible] not only for his own conduct, but also for the conduct of another person in committing a crime. The typical example that is given in law school, that if two guys are robbing a bank and one waits out in the car as the guy driving a getaway vehicle and the other one goes in and does the robbery, then both of them are guilty of robbery.
DEFENSE COUNSEL: Judge, I’m going to object. He’s not stating the law correctly.
THE COURT: Overruled.
PROSECUTOR: And, again, that’s just an example. The judge will give you the exact law as to this case in the instructions.

The nature and extent of questioning on voir dire is within the trial court’s discretion and will not be disturbed absent an abuse of discretion. State v. Ramsey, 864 S.W.2d 320, 335 (Mo. banc 1993). A trial court may permit parties to inquire as to whether potential jurors have preconceived notions on the law that will impede them ability to follow instructions on issues that will arise in the case. Id. at 335-36. Prosecutors are entitled to use hypothetical to make an inquiry on accomplice liability. When a prosecutor does not misstate the “basic concept” of accomplice or accessory liability, even if the description is incomplete, there is no error. State v. Clemons, 946 S.W.2d 206, 224-25 (Mo. banc 1997).

Gill alleges that the “prosecutor’s hypothetical misled and misinformed the jurors on the law by greatly oversimplifying the law of accomplice liability.” The hypothetical was improper, Gill argues, because it “stated the law in absolutes.” In Gill’s view, the prosecutor should have ended the hypothetical with “then both of them can be guilty,” rather than “then both of them are guilty.” This argument has no merit. The prosecutor’s hypothetical conformed to the “basic concept” of accomplice liability. Id. Further, the prosecutor emphasized that the hypothetical was “just an example” and that the judge would give the jury “the exact law as to this case in the instructions.”

V. Statutory Aggravating Circumstances

Gill asserts that the trial court erred in overruling his objection and submitting Instruction 7A to the jury, concerning statutory aggravating circumstances. The jury found that the following three statutory aggravating circumstances existed: 1) that Gill committed the murder for the purpose of “receiving money or any other thing of monetary value from Ralph L. Lape, Jr.,” section 565.032.2(4), RSMo 2000; 2) that Gill committed the murder while “engaged in the perpetration of kidnapping,” sec. 565.032.2(11); and 3) that the murder “involved depravity of mind” and “was outrageously and wantonly vile, horrible, and inhuman,” sec. 565.032.2(7).

Gill contends that the first aggravator— that the murder was committed for the purpose of receiving money — should only be applied in “murder for hire” situations. To interpret that statute otherwise, he explains, the “receiving money” aggravator would be unnecessarily duplicative of another of the statutory aggravators set out in section 565.032.2(11), which is that the murder was committed during the commission of a robbery. However, despite the separate statutory aggravator for robbery, this Court has consistently held that the “receiving money” circumstance also is applicable to a murder committed during the course of a robbery. State v. Kenley, 952 S.W.2d 250, 276 (Mo. banc 1997); State v. McDonald, 661 S.W.2d 497, 502-05 (Mo. banc 1983). There is no compelling reason to depart from these holdings.

Gill also argues the third aggravator — that the murder involved depravity of mind — was unsupported by the evidence. The instruction provided that the jury could make a determination of depravity of mind if it found “that the defendant killed Ralph L. Lape, Jr., after he was bound or otherwise rendered helpless by defendant and that defendant thereby exhibited a callous disregard for the sanctity of all human life.” In particular, Gill contends that there was insufficient evidence to support a finding that he “killed” Mr. Lape because “there was no evidence [that Gill] shot or even ‘participated’ in the shooting of Ralph Lape.” However, his only objection to this paragraph at trial and in his motion for new trial was that this aggravating circumstance did not apply because “the victim was unbound before he was killed.” Gill did not challenge this instruction below on the ground that “there was no evidence [that he] shot or even ‘participated’ in the shooting.” Therefore, he has failed to preserve this issue for review.

Furthermore, this Court notes that Gill objects only to the first and third of the aggravators. He does not challenge the instruction that he committed the murder while “engaged in the perpetration of kidnapping.” Even if the first and third aggravators were invalid, a defendant is “death eligible” where, as here, at least one valid statutory aggravator was found. State v. Morrow, 968 S.W.2d 100, 117 (Mo. banc 1998).

VI. Balancing of Aggravating and Mitigating Evidence

Gill argues that the trial court erred in overruling his objections and submitting Instructions 3A, 8A, and 10A, which required the jury to determine whether there were facts or circumstances in mitigation of punishment that were sufficient to outweigh the facts or circumstances in aggravation, so to preclude imposition of the death penalty. These instructions were erroneous, Gill contends, because they did not require the jury to make this finding beyond a reasonable doubt. This Court recently rejected this argument in State v. Glass, 136 S.W.3d 496, 520-21 (Mo. banc 2004). Although section 565.030.4 expressly requires the jury to use the reasonable doubt standard for the determination of whether any statutory aggravators exist, the statute does not impose the same requirement on the determination of whether evidence in mitigation outweighs evidence in aggravation. Id.

VII. Absence of Statutory Aggravators in Information

Gill next argues that the trial court erred in overruling his motion to quash the information and exceeded its jurisdiction in sentencing him to death because the information did not plead the statutory aggra-vators later submitted in the penalty phase. This, he contends, is required by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Gill’s argument is based on the premise that while section 565.020 ostensibly establishes a single offense of first-degree murder, the statutes delineate two separate crimes: “unaggravated first-degree murder,” which does not require proof of a statutory ag-gravator and carries a maximum sentence of life without parole, and “aggravated first-degree murder,” which requires the additional element of at least one statutory aggravator and carries a maximum sentence of death. Because the information did not plead any statutory aggravators, Gill claims he was charged only with “un-aggravated first-degree murder,” and, therefore, the court exceeded its jurisdiction in sentencing him to death. This Court has repeatedly rejected this argument. E.g., State v. Cole, 71 S.W.3d 163, 171 (Mo. banc 2002). Missouri’s statutory scheme recognizes a single offense of murder with a maximum sentence of death, and the required presence of aggravating facts or circumstances to result in this sentence in no way increases this maximum penalty. Id. Gill also argues that this rationale is contrary to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but Blakely is inapposite because in that case, as in Ap-prendi and Ring, the trial judge increased the defendant’s sentence without the required finding of fact by the jury. Here, the jury made all factual findings leading to Gill’s conviction and sentence.

VIII. Peremptory Strike

In his next point, Gill alleges the trial court erred in overruling his motion to strike for cause a prospective juror who indicated in a juror questionnaire that he favored the death penalty because it saves money. After the trial court denied Gill’s motion to strike for cause, Gill used one of his peremptory challenges to remove the prospective juror.

Missouri law is clear that a conviction cannot .be challenged based on the trial court’s failure to strike for cause a prospective juror if that prospective juror was removed by a peremptory challenge. Section 494.480.4 provides, in pertinent part:

The qualifications of a juror on the panel from which peremptory challenges by the defense are made shall not constitute a ground for the granting of a motion for new trial or the reversal of a conviction or sentence unless such juror served upon the jury at the defendant’s trial and participated in the verdict rendered against the defendant.

Gill argues that this statute is unconstitutional because it denies “access to the Missouri courts of justice,” which apparently is a way of saying that in enacting section 494.480.4, the legislature has usurped the powers of the judiciary. However, the right to a panel of qualified jurors from which to make peremptory challenges is founded on statute and is not constitutional in nature. State v. Gray, 887 S.W.2d 369, 383 (Mo. banc 1994). The only constitutional requirement is that the jury actually seated must be made up of qualified and impartial jurors. State v. Nicklasson, 967 S.W.2d 596, 612 (Mo. banc 1998). Absent a constitutional provision to the contrary, the legislature does not usurp judicial power by changing or revoking a right created by statute. Suffian v. Usher, 19 S.W.3d 130, 134 (Mo. banc 2000). Accordingly, the legislature did not imper-missibly deny “access to the Missouri courts of justice” by enacting this section.

This Court also.rejects Gill’s assertion that section 494.480.4 violates the equal protection clause “because its restrictions on challenging a trial court’s denial of strikes for cause do not apply to civil litigants.” Gill’s assumption that civil and criminal litigants are treated differently is erroneous because civil litigants are also precluded from challenging a trial court’s failure to remove a prospective juror for cause if that juror is removed by a peremptory strike and does not actually sit on the jury. Rodgers v. Jackson County Orthopedics, Inc., 904 S.W.2d 385, 389-91 (Mo.App.1995).

Gill also claims that there is no rational basis for treating alleged juror empanelling errors that are cured by a peremptory challenge different from other alleged jury empanelling errors. To the contrary, section 494.480.4 has the rational purpose of avoiding unnecessary retrials in cases where the jury that decided the case met all constitutional requirements.

Because the prospective juror did not sit on the jury and participate in the verdict, Gill is precluded from challenging the trial court’s refusal to strike that prospective juror for cause.

IX. Victim Impact Testimony

Gill asserts that the testimony of Diane and Mitch Miller, the sister and brother-in-law of Mr. Lape, exceeded the guidelines for victim impact evidence established by the United States Supreme Court in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Victim impact evidence is admissible under the United States and Missouri constitutions, and the prosecution is allowed to show that a victim is not a faceless stranger and that his or her death represents a unique loss to society and to the family. State v. Deck, 994 S.W.2d 527, 538 (Mo. banc 1999) (citing Payne, 501 U.S. at 825, 111 S.Ct. 2597). The trial court has broad discretion during the penalty phase of the trial to admit whatever evidence it deems helpful to the jury in assessing punishment. State v. Johns, 34 S.W.3d 93, 112 (Mo. banc 2000). Victim impact evidence violates the constitution only if it “is so unduly prejudicial that it renders the trial fundamentally unfair.” Payne, 501 U.S. at 825, 111 S.Ct. 2597.

During the penalty phase, the court allowed Mrs. Miller to stand near the jury to show small photographs of Mr. Lape and his family to the jurors, and Gill did not object to this procedure as the first twenty-seven photographs were shown. Mrs. Miller then showed the jury a photograph of their mother’s home and talked about how she and Mr. Lape had cleaned out the house after their mother became ill. Gill objected that Mrs. Miller was positioned “a foot from the jury [and was] visibly crying.” Gill also objected that the photo was not victim impact evidence and was “beyond anything that should be allowed.” The court directed the prosecutor to have Mrs. Miller sit in the witness stand and overruled the objection that the testimony was not victim impact evidence.

Mrs. Miller later read a prepared statement that discussed the impact of the crime on her family. The statement included moral lessons she and her siblings had learned from their parents about the importance of “working hard” and “liv[ing] within your means.” She also mentioned that their father had been a prisoner of war during World War II. Gill objected, and the court directed the prosecutor to tell Mrs. Miller to omit further references to her father. Mrs. Miller also discussed their parents’ deaths and how Mr. Lape helped steady her hand when she signed a consent form to remove their father’s fife support.

Mr. Miller then testified about the impact of the murder on his life. He discussed the “valuable good life lessons” that he and Mr. Lape had learned studying “the mythical west.” Among these lessons, Mr. Miller related, were the moral principles that “You don’t cheat at cards, you don’t start any trouble, but you stand up to it when it comes. You never shoot a man in the back, and, two against one is never a good program.” He also discussed how he grew up “terribly, terribly poor.” At Gill’s request, the court noted for the record that Mr. Miller was “visibly upset, and, [had] been choking back tears.”

Gill contends that the Millers’ victim impact testimony involved “excessively emotional content and presentation.” The trial court has broad discretion in determining the effect of emotional outbursts on the jury. Deck, 994 S.W.2d at 539. This Court has previously found no error in cases where victim impact testimony left witnesses and even jurors crying. Id. at 538-39; State v. Middleton, 995 S.W.2d 443, 464 (Mo. banc 1999). Indeed, a certain level of emotion is to be expected when relatives of a murder victim discuss the impact of the crime on their lives. Gill has failed to show that the level of emotion displayed by the witnesses here was “so unduly prejudicial that it rendered] the trial fundamentally unfair.” Payne, 501 U.S. at 825, 111 S.Ct. 2597.

Gill also argues that much of the Millers’ testimony was prejudicial because “it dwelt on their own morally solid upbringings” and “invited the jury to feel sympathy for their painful times ... and use that irrelevant evidence to sentence [Gill] to death.” It is not necessary that every piece of victim impact evidence relate to the direct impact of the victim’s death on the witness. See State v. Johnson, 22 S.W.3d 183, 190 (Mo. banc 2000). Mrs. Miller’s references to her parents’ deaths were proper because they demonstrated how Mr. Lape helped her during those situations. Her reference to her father having been a prisoner of war and Mr. Miller’s reference to his poverty as a child were brief and did not prejudice Gill because those hardships were not attributed to him. See State v. Clay, 975 S.W.2d 121, 132 (Mo. banc 1998). And the Millers’ discussion of their family’s moral values was permissible in that it explained the values held by Mr. Lape. See Johnson, 22 S.W.3d at 190.

In a related argument, Gill claims that “through comparison with their own families and upbringing” the Millers’ testimony implied that he “was bereft of values and moral scruples, he had violated the rules of justice which [Mr. Miller], especially, held true, and [Gill] deserved to die.” This, according to Gill, was contrary to Booth v. Maryland, 482 U.S. 496, 502-03, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), where the United States Supreme Court prohibited evidence that sets forth “family members’ opinions and characterizations of the crimes and the defendant.” This Court disagrees. The Millers’ discussion of their family’s history and values did not constitute an opinion or characterization of Gill. Although Mr. Miller’s statement that “You never shoot a man in the back, and, two against one is never a good program,” could be interpreted as an indirect reference to the crime, when taken in context, it is clear that it was merely an example of the lessons of “the mythical west” that he and Mr. Lape had learned together. This testimony was far less explicit than the statements in Booth. In that case, family members expressed doubt “that the people who did this could ever be rehabilitated,” and opined that “animals” would not have committed the crime. Booth, 482 U.S. at 508, 107 S.Ct. 2529. Even if Mr. Miller’s statement was impermissible, this Court concludes that it was not “so unduly prejudicial” as to render the trial “fundamentally unfair.” Payne, 501 U.S. at 825, 111 S.Ct. 2597.

X. Independent Review

Under section 565.035.3, this Court is required to determine whether:

(1) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(2) the evidence supports the jury’s finding of a statutory aggravating circumstance;
(3) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence, and the defendant.

Having thoroughly reviewed the record, this Court concludes that there is no evidence to suggest that the punishment imposed was a product of passion, prejudice, or any other arbitrary factor.

Furthermore, this Court holds that the evidence amply supports the jury’s finding on the aggravating circumstances that Mr. Lape’s murder was committed for the purpose of receiving money, that it was committed while Gill was engaged in the perpetration of kidnapping, and that it involved depravity of mind because the killing exhibited a callous disregard for the sanctity of all human life. As noted, the record shows that Gill planned to kill Mr. Lape in order to get access to his bank account. He abducted and bound Mr. Lape, drove him to a desolate cornfield and helped dig his grave. By his own account, he ignored Mr. Lape’s pleas and stood by and did nothing as the gun twice misfired before Mr. Lape was shot and lolled. As Gill put it in his confession, he “sold [his] soul” for money.

Finally, this Court concludes that the death sentence in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering the crime, the strength of the evidence, and the defendant. Death sentences have often been upheld where the defendant committed the murder for the purpose of receiving money or things of monetary value. See, e.g., State v. Worthington, 8 S.W.3d 83, 94 (Mo. banc 1999); Deck, 994 S.W.2d at 545; State v. Barnett, 980 S.W.2d 297, 310 (Mo. banc 1998); State v. Hall, 955 S.W.2d 198, 211 (Mo. banc 1997); Kenley, 952 S.W.2d at 276. This Court has also upheld death sentences when the murder was committed during the perpetration of a kidnapping. See, e.g., Glass, 136 S.W.3d at 521; State v. Link, 25 S.W.3d 136, 150 (Mo. banc 2000); State v. Bucklew, 973 S.W.2d 83, 97 (Mo. banc 1998); Nicklasson, 967 S.W.2d at 621-22; State v. Brooks, 960 S.W.2d 479, 495 (Mo. banc 1997); Hall, 955 S.W.2d at 211. And this case is similar to others in which defendants who were sentenced to death showed callous disregard for the sanctity of all human life by murdering people who were helpless or rendered helpless. See, e.g., State v. Rousan, 961 S.W.2d 831, 854 (Mo. banc 1998); State v. Johnston, 957 S.W.2d 734, 756 (Mo. banc 1997); State v. Tokar, 918 S.W.2d 753, 772 (Mo. banc 1996); State v. Walls, 744 S.W.2d 791, 800 (Mo. banc 1988); State v. Mallett, 732 S.W.2d 527, 542-43 (Mo. banc 1987). Taking into account the crime, the strength of the evidence, and the defendant, this Court concludes that the death sentence in this case is proportionate to the death sentences imposed in similar cases.

XI. Conclusion

For the foregoing reasons, the judgment is affirmed.

All concur.

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

      . Although the United States Supreme Court overruled much of Booth in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Court did not address Booth’s prohibition of evidence that sets forth "family members’ opinions and characterizations of the crimes and the defendant.”


author: ROBERT S. BARNEY, Judge.

text:
    B. Leon KLEEMAN and Glenda Kleeman, Respondents, v. Kiman J. KINGSLEY and Betty Darlene Kingsley, et al., Appellants.
    No. 26308.
    Missouri Court of Appeals, Southern District, Division Two.
    May 6, 2005.
    Motion for Rehearing or Transfer Denied May 31, 2005.

      Richard L. Schnake and Andrew J. Hag-er, Jr., for Appellants.
    Randy J. Reichard, for Respondents.
   ROBERT S. BARNEY, Judge.

This is an appeal from the Circuit Court of Lawrence County’s judgment pursuant to section 228.190, determining that a certain portion of a strip of land located in Lawrence County has been abandoned and vacated as a public road. The strip of land (hereafter referred to as the “old county road”) divides property owned and/or leased by Respondents B. Leon Kleeman and Glenda Kleeman (“Plaintiffs”). It also runs south of Plaintiffs’ land and divides properties owned by Appellants (collectively “Defendants”). The old county road abuts a road designated as Lawrence County Road 2010 (“county road 2010”), which runs east and west; whereas, the southernmost end of the old county road abuts a road designated as Lawrence County Road 2022 (“county road 2022”), which also runs east and west. The old county road varies in width from thirty-nine feet where it abuts county road 2010 to twenty-six feet at the southern end where it meets county road 2022. Defendants all access their properties by traveling north on the old county road from county road 2022.

Plaintiffs’ property consists of three tracts of real estate and they rent a fourth tract from a relative. Plaintiffs run a cattle operation and let their cattle roam freely across their land. They also maintain a small portion of the old county road for ingress and egress for their cattle operation.

As previously related, Defendants’ properties are located south of Plaintiffs’ property. To the west of the old county road, Ragan owns sixty acres which adjoin the south property line of Plaintiffs’ Tract 2; the Duvalls own twenty acres which adjoin Ragan’s south property line; and, Louis and Clea Kleeman own forty acres which adjoin the Duvall’s south property line. To the east of the old county road, across from Louis and Clea Kleemans’ property, lies the Kingsleys’ one hundred and thirty-four acres.

It appears that, at various times in the past, Plaintiffs have barricaded parts of the northern portion of the old county road. In 1979 they placed a gate across the road. This particular orange gate was located slightly south of a house on their property and had a “Keep Out” sign on it. That same year, Plaintiffs also installed a cattle panel across the old county road just north of White Oak Creek and in 1986 they placed a cattle panel across the old county road at the northern edge of Defendant Ragan’s property. WZhen Plaintiffs’ nephew was living on their property “in the mid-80’s,” he put a “Private Drive” sign on the corner where the old county road meets county road 2010 and the sign remained there until 1996. At some point in time, Plaintiffs also strung a piece of barbed wire and a “No Trespassing” sign across the old county road where it meets county road 2010.

The relief Plaintiffs sought in the trial court included a declaration that the entirety of the old county road was either never established as a public road or had been abandoned by non-use for more than five years per section 228.190. Plaintiffs also sought an injunction to prohibit Defendants from entering onto and removing fencing, trees, and brush from the northern portion of the old county road (hereafter referred to as the “disputed area”), which they claimed to own, and requested a judgment for ejectment of Defendants from the disputed area.

Defendants claimed the entirety of the old county road “is a common law public road,” and sought to enjoin Plaintiffs from having gates across the disputed area. They also requested an order for Plaintiffs to remove the gates they had previously erected.

Following the second trial in this matter, the trial court entered its “Findings of Fact and Conclusions of Law and Judgment.” In its findings, the trial court gave a detailed recitation of the evidence and testimony of the various witnesses who testified live and by way of the stipulated “Exhibit 13.” The trial court found and concluded that the old county road was “legally established as a public road by implied or common-law dedication at least as early as 1916 or 1917.” The trial court concluded that “based upon the credible evidence the North portion of [the old county road] has been abandoned by non-use,” pursuant to the non-user provision of section 228.190. In its judgment, the trial court declared that “the disputed area has been abandoned as a public road for the reason that for at least five (5) years prior to July of 1996 the disputed ai’ea had not been used as a public road,” and entered judgment in favor of Plaintiffs and against Defendants on “Plaintiffs’ Amended Petition for Preliminary and Permanent Injunction, Ejectment and Declaratory Judgment.” This appeal followed.

Defendants raise three points on appeal. They maintain the trial court erred: (1) by its determination that the disputed area of the old county road had been abandoned under the five-year non-user provision of section 228.190, because such a determination was unsupported by the evidence and was against the weight of the evidence; (2) by erroneously applying the law when it determined the disputed area of the old county road had been abandoned per the five-year non-user provision of section 228.190, because Plaintiffs had barricaded the road beginning in 1979, and Plaintiffs cannot rely on any abandonment resulting from their own actions; and, (3) by erroneously applying the law in declaring the disputed area of the old county road had been abandoned under the five-year nonuser provisions of section 228.190, because section 228.190 does not apply to roads created by common law dedication.

An appellate court is to sustain a judgment in a court-tried case “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “In assessing if there is substantial evidence, we. must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge.” Chapman v. Lavy, 20 S.W.3d 610, 612 (Mo.App.2000). On review of a court-tried case, “due regard is given the opportunity of the trial court to judge the credibility of witnesses.” Matter of Hancock, 828 S.W.2d 707, 708 (Mo.App.1992). “In determining the sufficiency of the evidence, an appellate court accepts as true the evidence and inferences favorable to the trial court’s judgment, disregarding all contrary evidence.” Behr v. Bird Way, Inc., 923 S.W.2d 470, 472 (Mo.App.1996). This Court sets aside a judgment on the grounds that it is against the weight of the evidence only when we have a firm belief that the judgment is wrong. Flathers v. Flathers, 948 S.W.2d 463, 465 (Mo.App.1997).

We begin our analysis by turning to Defendants’ third point on appeal. Defendants assert that, based on Coffey v. State ex rel. County of Stone, 893 S.W.2d 843 (Mo.App.1995), section 228.190 “does not apply to roads created by common-law dedication.” Accordingly, Defendants maintain the trial court erroneously applied the law in determining the disputed area had been abandoned pursuant to section 228.190. We cannot agree.

We immediately observe that no party challenges the trial court’s determination that the old county road, including the disputed area, was created by implied or common law dedication. Here, the record shows the old county road had been opened as a roadway from the north end to the south end as early as 1916 or 1917, without interruption by anyone. As the trial court noted, “[t]he existence of the roadbed, the fencing along it, and the refusal of adjoining landowners to prevent the public from using the [old county road] plainly imply a purpose to create a right in the public to use the land and therefore to dedicate the [old county road] to the public.” Additionally, public acceptance was shown in the instant matter by the public making use of the roadway, State ex rel. Selby v. Day, 929 S.W.2d 286, 289 (Mo.App.1996), and by public maintenance of the land involved. See Coffey, 893 S.W.2d at 847.

Defendants incorrectly argue that, based on this Court’s decision in Coffey, the nonuser provision of section 228.190 has no application to the present matter. In Coffey, this Court determined that “the nonuser provision of § 228.190 does not apply when ... lands are voluntarily conveyed to a county to be used for a road for public purposes.” Id. at 848. Saliently, in the present matter there is no evidence of a conveyance of the relevant property by deed or by other formality as was the case ih Coffey. See State ex rel. State Hwy. Comm’n v. Herman, 405 S.W.2d 904, 907-08 (Mo.1966). Accordingly, Coffey does not prevent the application of the five-year, non-user provision to the instant case. Defendants’ third point is denied.

In their first point on appeal, Defendants maintain the trial court erred in determining that the disputed area was abandoned. Specifically, they argue that such a determination was against the weight of the evidence in light of Plaintiff Leon Kleeman’s (“Leon”) testimony regarding the use of the disputed area for his cattle operation and other activities as well as other witness testimony that the disputed area was used from the 1960’s to the 1990’s.

“The right to use a public road cannot be surrendered or abandoned unless all of the public concur therein, and the loss of such right to use may result only from the acts and doings of the parties entitled to the road....” Chapman, 20 S.W.3d at 613. “One asserting abandonment of a public road must carry the burden of showing abandonment by clear and cogent proof.” Seaton v. Weir, 633 S.W.2d 212, 214 (Mo.App.1982).

In the present matter, there was sufficient testimony to support the trial court’s ruling that the disputed area was abandoned by nonuse pursuant to section 228.190. At the second trial in this matter, Leon testified that since 1974, he and his wife have either rented or owned Tracts 1, 2, 3, and 4, upon which the disputed area lies. Leon stated that he had “never personally seen” Defendants nor anyone else utilizing the disputed area; he never saw any tire tracks on the ground in the disputed area; he never saw any places where bark had been scraped from the trees by vehicles or people; he never saw any grass that had been “mashed down,” “torn down,” or “tromped down;” he never found any “trash, beer cans,” “shell casings,” “fishing line,” or “traps left by hunters.” He also testified that portions of the disputed area were completely impassable to people and vehicles; that the fences that formerly bordered the disputed area were missing in many places; and, that there viere portions of the disputed area where it was impossible to discern where a road might have been in the past. Leon went on to state that there were large established trees growing throughout the disputed area, some of which measured fourteen or fifteen inches in diameter; there were numerous trees that had fallen across the disputed area and been overgrown by bushes; and, there was a large amount of brush and grass grown up around the cattle panels he installed, which was illustrative of the fact that they had not been opened in a long time. Leon explained that he maintained the most northern portion of the disputed area as access for his cattle operation, but he did not maintain the entire disputed area. Also, the address for Plaintiffs’ cattle operation, for purposes of the County 911 system, is an address on county road 2010 as opposed to being an address on the old county road.

At the previous trial of this matter, Plaintiff Glenda Kleeman (“Glenda”) testified that the middle and southern portions of the disputed area, upon which she and her husband pasture their cattle, was “nearly impassable by foot or by horse” for as long as she could recall. She stated that she had never known the disputed area to be used as a public road and she had never seen any evidence that anyone had ever traveled the full-length of the old county road.

The record also reveals that Jack West (“West”), a road commissioner for “the Green Road District,” stated that he was unable to find any records showing that public money had been expended on maintaining the disputed area. He testified that in 1996 some gravel had been placed on the south end of the old county road after Defendants Louis and Clea Kleeman built a home which required a driveway access. West stated that the south end of the old county road had required “significant work” on the part of the county, such as the addition of lots of gravel to the road, the addition of several culverts, the removal of brush, and some ditch maintenance. However, it was West’s recollection that the disputed area “was always growed [sic] up so much, [he] didn’t think you could get through it.”

Joe Ruscha (“Ruscha”), the Lawrence County Commissioner, stated that in the fall of 1996, he inspected the old county road. Ruscha stated that he went through a gate at the north end of the old county road, and “drove ... through kind of a pasture area,” and, then as he came into a draw area, he encountered a great deal of brush and turned around because he did not think the area was passable. At a later date, Ruscha said that he entered the old county road from the south end and drove up to Louis and Clea Kleeman’s driveway. Beyond their driveway, Ruscha said that the old county road “looked like the brush had been piled up just to the north. The road stopped there.” Ruscha went on to state that it was his opinion that the disputed area “was not used by the public for five years.” He stated that he thought the disputed area “was abandoned” and that the fact that it at one time was referenced as Lawrence County Road 1070 was not a finding that it had been an established road, but just a way of referencing that particular location. However, Ruscha stated that no formal order was entered nor were formal abandonment or vacation proceedings initiated.

Defendants offered testimony from several witnesses that there had been sporadic use of the disputed area prior to 1996. However, the only testimony offered by Defendants relating to the use of the disputed area after 1996 was Defendants Cindy and Kaleb Kingsley’s testimony that they rode a motorcycle the full-length of the old county road in April of 1997.

While there was conflicting evidence relating to the abandonment of the disputed area for the statutory time period at issue, “it was the trial court’s duty, not ours, to resolve the conflict and determine the credibility of witnesses.” Chapman, 20 S.W.3d at 614. This Court defers to the trial court’s determinations of credibility. Skinner v. Osage County, 822 S.W.2d 437, 439 (Mo.App.1991). Defendants’ first point is denied.

Lastly, in Point II Defendants maintain the trial court erred in finding the disputed area had been abandoned based on the fact that Plaintiffs barricaded the northern portion of the old county road beginning in 1979 when they first installed cattle panels. Defendants assert Plaintiffs “cannot rely on any abandonment resulting from their own actions.” In support, Defendants cite to the language in Chapman, which sets out that the right to use a public road is not “surrendered or abandoned unless all of the public concur therein, and the loss of such right to use may result only from the acts and doings of the parties entitled to the road, not from the antagonistic or hostile possession of others.” Chapman, 20 S.W.3d at 613-14. We distinguish the application of the foregoing principle of law to the present matter.

In Lee v. Smith, 484 S.W.2d 38 (Mo.App.1972), this Court stated that while an “encroachment upon or obstruction of a public highway is an unlawful act ... evidence that access to a public road has been entirely blocked and cut off for ten years and that the encroachment has been submitted to by the public may be taken as evidence that the road has been abandoned.” Id. at 44 (citing 39 C.J.S. Highways § 133, p. 1040); see also Herman, 405 S.W.2d at 904.

Given the factual circumstances of the present matter, the fact that Plaintiffs placed various gates, obstructions, and signs across the disputed area is irrelevant to the trial court’s finding of abandonment. As stated in Chapman, it is the “doings of the parties entitled to [use] the road ...” that is important. Chapman, 20 S.W.3d at 613. Accordingly, we look at Defendants’ behavior and that of the public at large in determining whether the disputed area was abandoned. Here, had Defendants sought to enter upon and use the disputed area, consistent with safety precautions, they had but to open a gate or climb a fence; specifically complain of the obstructions on the roadway; or, initiate court' action to enforce their purported rights to the disputed area. Yet, the weight of the evidence shows Defendants took no such actions. As previously recited, Plaintiffs’ evidence relating to the abandonment of the disputed area by the public, including Defendants, was substantial. Defendants’ second point is denied.

The judgment of the trial court is affirmed.

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

      . This is the second appeal involving the same parties. See Kleeman v. Kingsley, 88 S.W.3d 521 (Mo.App.2002). Statutory references are to RSMo 2000, unless otherwise designated.

      . Appellants are Kiman J. and Betty Darlene Kingsley; Kaleb M. and Cindy Kingsley; Ka-land W. and Karen K. Kingsley; Kevin Kings-ley (collectively, “the Kingsleys”); Gary Don and Frances Dee Duvall (“the Duvalls”); Violet Ragan ("Ragan”); and, Louis and Clea Kleeman.

      . At the second trial, the trial court heard live testimony from the following witnesses: Leon Kleeman, Lloyd Thomas, Kiman Kingsley, Ed Carrington, Floyd Barker, and Bobby Hick-son. Additionally, the parties stipulated to have the transcript from the previous trial entered into evidence as "Exhibit 13.” "Exhibit 13” contained testimony from the following parties: Glenda Kleeman, Joe Ruscha, Tom Leeper, Jimmy Parnell, Jack West, Verne Duvall, Terry Reynolds, Charles Gulick, Lloyd Chilcutt, Cindy Kingsley, Kaleb Kingsley, Darlene Kingsley, Kiman Kingsley, and Louis Kleeman.

      . Section 228.190 provides, in pertinent part, that "nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.”

      . The judgment also set out the metes and bounds description of the disputed area that the trial court determined had been abandoned.

      . Murphy interpreted the provisions of then Rule 73.01(c). The provisions of that Rule now appear in essentially the same form in Rule 84.13(d), Missouri Court Rules (2005).

      . "A public road, excluding state roads, may be created in one of three ways: '(1) under the provisions of chapter 228, RSMo, (2) by prescription, or (3) by implied common law dedication.’ ” Ankrom v. Roberts, 126 S.W.3d 798, 801 (Mo.App.2004) (quoting Atwell v. Jack Henry and Assoc., Inc., 748 S.W.2d 929, 934 (Mo.App.1988)). "Implied or common-law dedication operates not as a grant, but upon the principle of an estoppel.” Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650, 653 (1931).
      "A claim of common law dedication may prevail absent formal dedication if: (1) there was evidence the owner clearly showed his intent to dedicate the land for public use; (2) the land was accepted by the public; and (3) the land was so used by the public.” Chapman, 20 S.W.3d at 613. “Dedication is not required to be accepted by a governmental authority, so long as the land is in fact accepted by the public as demonstrated by the use made of it, which period of use need not exceed any required time limit." Id. (emphasis added).
      While "acts establishing a dedication must be unequivocal, indicating expressly or by plain implication, a purpose to create a right in the public to use the land ... [w]hen there is no actual intention, it is possible that an owner's actions may nevertheless evince an intention to dedicate.” Whittom v. Alexander-Richardson P’ship, 851 S.W.2d 504, 508 (Mo. banc 1993) (citation omitted). "In such circumstances, because dedication is a theory premised on estoppel rather than on an affirmative grant, the owner can be precluded from resuming rights over the property if the public acts upon the owner's manifestations.” Id. Furthermore, as stated in Dillen v. Edwards,

      '[t]he intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation.’

        Dillen v. Edwards, 263 S.W.2d 433, 434 (Mo.1953) (quoting State ex rel. McIntosh v. Haworth, 124 S.W.2d 653, 656 (Mo.App.1939)),
        overruled on other grounds by Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721 (1953).

      . See Dillen, 263 S.W.2d at 434-35 (holding that failure to interrupt or object to public use indicates an intent to dedicate for public use); Earls v. Majestic Pointe, Ltd., 949 S.W.2d 239, 247 (Mo.App.1997) (holding that allowing the public to use a road as sole access to a neighboring tract and never barricading a road reveals an intent to dedicate the road to public use); Busch v. Hurricane Deck Holding Co., 882 S.W.2d 723, 726-27 (Mo.App.1994) (holding that allowing public use without barricading a road evinced intent to dedicate).

      . As explained by the Supreme Court of Missouri in Herman:

      It is true ... that the nonuser provision of § 228.190 was not intended to apply to title of lands voluntarily conveyed in trust to be used for the purpose of establishing streets thereon as they shall be needed and that lands so dedicated in perpetual trust and platted for such purposes can only be abandoned by an act as deliberate as that by which they were acquired, that is by proceeding under § 228.110....

        Herman, 405 S.W.2d at 908. The court went on to declare that "[t]he nonuser clause [of section 228.190] in positive terms is made applicable to any public road, however acquired.” Id. at 907 (internal quotation omitted).

      . The docket entry from a September 25, 1996, Lawrence County Commission meeting, states, "After inspection of the Farm Road 1070 in the Green Road District, the County Commission determined that the road was abandoned per RSmo 228.190; North of Farm Road 2022 and South of Farm Road 2010.”

      . For example, Tom Leeper testified that he drove through the disputed area in 1985; Charles Gulick testified that he hunted on the disputed area up until 1995; Terry Reynolds testified that the last time he drove on the disputed area was in 1991 or 1992; Kiman and Kaleb Kingsley stated that they had driven through the disputed area in the 1970’s and 1980's; Defendant Cindy Kingsley testified that she picked berries and walnuts on the disputed area in 1976 or 1977; and, Defendants Cindy and Kaleb Kingsley also testified they drove through the disputed area in March of 1995 in a lime truck.
      We also note that there was photographic evidence and witness testimony that in June of 2000, a bulldozer, at the behest of the Kingsleys, was clearing some trees and brush from the old county road near the disputed area when some of the trees landed on Plaintiffs’ fence which separates the southwest portion of Plaintiffs' Tract 1 and the Duvalls’ property. Plaintiffs’ fence was damaged and the present dispute was born partially out of that incident.

      . The Court was apparently making reference to the ten-year non-user provision previously found in section 228.190, prior to 1953. See Lee, 484 S.W.2d at 43 n. 3.

      . 39 C.J.S. Highways § 131 (2003) sets out in pertinent part that:
      The encroachment may, however, be submitted for such a period of time as to raise a fair presumption of abandonment, and the public may be estopped to claim any easement in a road where it has for years been in disuse and closed to travel by permanent structures built across the entire width.
      (footnotes omitted).