author: LISA WHITE HARDWICK, Judge.

text:
    Jade NOWLIN, a minor by her next friend and mother, Roxanna CARTER, Appellant, v. Lonnie NICHOLS, Respondent, and Lonnie Nichols Trucking and Excavating Company, Inc., Defendant.
    No. WD 63743.
    Missouri Court of Appeals, Western District.
    May 31, 2005.

      Marvin Tofle, Esq., Columbia, MO, attorney for appellant.

      Robert J. Harris, Esq., Columbia, MO, attorney for respondent.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   LISA WHITE HARDWICK, Judge.

This appeal arises from the circuit court’s dismissal of a wrongful death claim for lack of subject matter jurisdiction because the Workers’ Compensation Law provided the exclusive remedy. Jade Nowlin, a minor, filed the wrongful death claim alleging that her father’s accidental death was caused by the negligence of his co-worker, Lonnie Nichols. Jade appeals the dismissal, contending the circuit court erred in determining her claim was preempted by the limited immunity for co-employees under the Worker Compensation Law. For reasons explained herein, we affirm the judgment of dismissal.

Factual and ProceduRal HistoRY

Six-year old Jade Nowlin, by and through her next friend and mother, Rox-anna Carter, filed a wrongful death action alleging negligence in the work-related death of her father, Ronnie Nowlin. The petition was filed against Mr. Nowlin’s employer at the time of his death, Lonnie Nichols Trucking & Excavating Company, Inc. (“Nichols Trucking”), and his co-employee and the owner of Nichols Trucking, Lonnie Nichols.

Jade’s amended petition alleged that, on November 11, 2001, Mr. Nowlin and Mr. Nichols were working at a jobsite when a bulldozer became stuck in the mud and was disabled. Mr. Nichols attempted to extricate the disabled bulldozer by rigging it to a chain that was attached to a second bulldozer. After directing Mr. Nowlin to assist in the extrication, Mr. Nichols operated the second bulldozer uphill from the disabled bulldozer. The petition further alleged that, at some point, Mr. Nichols got out of the second bulldozer and left the motor running. The second bulldozer subsequently rolled downhill and crushed Mr. Nowlin, who was standing between the two bulldozers. The petition alleged that Mr. Nowlin’s death was proximately caused by the affirmative negligent acts of Mr. Nichols in directing the extrication and in operating the second bulldozer. The petition also sought to impute liability against Nichols Trucking under the negligence theory of respondeat superior.

Mr. Nichols and Nichols Trucking filed motions to dismiss the amended petition for lack of subject matter jurisdiction. The motions asserted the negligence claims were barred because the Workers’ Compensation Law provided the exclusive remedy for Mr. Nowlin’s work-related death. The circuit court granted the motions, thereby dismissing the petition against both defendants. Jade appeals from the dismissal of her wrongful death claim against the co-employee, Mr. Nichols.

Standard of Review

The Workers’ Compensation Law provides the exclusive rights and remedies for the accidental injury or death of an employee in the course of employment. § 287.120.1-2. A motion to dismiss for lack of subject matter jurisdiction is the proper method to raise, as a defense to a tort action, the exclusive jurisdiction of the Labor and Industrial Relations Commission under the Workers’ Compensation Law. Grok v. Kohler, 148 S.W.3d 11, 13 (Mo.App.2004). A motion to dismiss should be granted when it “appears” the circuit court lacks jurisdiction of the subject matter! Rule 55.27(g)(3). As the term “appears” suggests, the quantum of proof is not high and can be satisfied with a preponderance of evidence that the court is without jurisdiction. Groh, 148 S.W.3d at 13.

If the record is sufficient to support the circuit court’s dismissal for lack of subject matter jurisdiction, we will not reverse unless an abuse of discretion is shown. Kesterson v. Wallut, 116 S.W.3d 590, 595 (Mo.App.2003). In light of the exclusivity of remedies under the Workers’ Compensation Law, we must resolve all doubts concerning jurisdiction in favor of the Labor and Industrial Relations Commission rather than the circuit court. Collier v. Moore, 21 S.W.3d 858, 860 (Mo.App.2000).

Point on Appeal

The Appellant contends the circuit court abused its discretion in dismissing her wrongful death claim against Mr. Nichols, because the amended petition alleged sufficient facts to invoke an exception to the exclusivity provisions of the Workers’ Compensation Law. Relying on the co-employee exception discussed in Gunnett v. Girardier Building & Realty Co., 70 S.W.3d 632, 641 (Mo.App.2002), Appellant argues that Mr. Nichols was not immune from common law liability because he committed “affirmative negligent acts” outside the scope of the employer’s responsibility to provide a safe workplace.

Under Section 287.120, the Workers’ Compensation Law supplants an injured employee’s common law right of recovery and immunizes employers from tort claims for workplace accidents. This immunity from common law liability for failure to provide a safe working environment extends to the employer’s employee. Groh, 148 S.W.3d at 14. However, the immunity can be lost if the co-employee commits acts outside the scope of an employer’s responsibility to provide a safe workplace. Id.

A co-employee cannot be held liable for merely breaching a duty that the employer owed the injured employee. Id. For a petition to state a cause of action against a co-employee, “something extra beyond a breach of general supervision and safety” must be alleged. Id. The injured worker must demonstrate circumstances showing a personal duty of care owed by the co-employee, separate and apart from the employer’s non-delegable duties, and that breach of this personal duty proximately caused the injury. Gunnett, 70 S.W.3d at 641. When engaged in conduct outside the scope of the employer’s standard duty, the co-employee owes a personal duty to exercise ordinary care and to refrain from conduct that might reasonably be foreseen to cause injury to another. Id.

Whether a personal duty exists is determined as a matter of law and is necessarily dependent on the facts and circumstances of each case. Id. Our courts have generally found that the “something extra” or “something more” requirement has been met in cases where a supervisor created a hazardous condition by personally directing the injured worker to engage in conduct that a reasonable person would recognize as inherently dangerous and beyond the usual requirements of the employment. Groh, 148 S.W.3d at 14. These eases demonstrate that a co-employee loses immunity under the Workers’ Compensation Law only if he affirmatively causes or increases his fellow employee’s risk of injury. Id. An affirmative negligent act is not synonymous with any negligent act, as the law requires a purposeful act “directed” at a co-employee. Gunnett, 70 S.W.3d at 641.

Appellant contends the facts in the amended petition were sufficient to demonstrate that Mr. Nichols engaged in negligent conduct that was “something more” than a mere breach of his employer’s duty to provide a safe workplace. The petition alleged that Mr. Nichols attempted to extricate a disabled bulldozer by chaining it to a second bulldozer. Mr. Nichols operated the second bulldozer uphill from the disabled bulldozer and “ordered” Mr. Nowlin to assist in the extrication. At some point, Mr. Nichols got off of the second bulldozer and left the motor running. The second bulldozer rolled down the hill and crushed Mr. Nowlin, who was standing in the area between the two bulldozers. Appellant argues Mr. Nichols should be held personally liable for “the affirmative negligent act of getting off of the working bulldozer leaving the motor running while Ronnie Nowlin was standing between the two bulldozers.” (Appellant’s Br. at 26)

Appellant’s argument must be rejected for two reasons: (1) Mr. Nichols’ use of the bulldozer was within the usual scope of his employment; and (2) Mr. Nichols did not engage in inherently dangerous conduct purposefully directed at Mr. Nowlin. Accordingly, the facts do not establish that Mr. Nichols owed a personal duty of care to Mr. Nowlin beyond the employer’s responsibility to provide a safe workplace.

Appellant alleged in the Amended Petition that Nichols Trucking was “engaged in the business of operating trucks and heavy equipment for hauling and excavating and related services.” As an employer, Nichols Trucking owed a duty to its employees to provide a safe work environment for the operation of bulldozers and other heavy equipment. The petition alleges Mr. Nichols was using a bulldozer at jobsite and that he left it running when he stepped away from it. The petition does not allege that he used the bulldozer in an improper manner or that he did anything outside of his normal job duties in operating the bulldozer. The use of a working bulldozer to extricate a disabled bulldozer might be infrequent, but it was not inordinately dangerous or inappropriate under the circumstances. Although the facts suggest Mr. Nichols may have been careless in leaving the motor running, his conduct was well within the scope of the employer’s responsibility to ensure that the bulldozer was operated safely.

Appellant’s co-employee claim also fails because the facts do not establish that any negligent conduct was purposely directed at Mr. Nowlin. While Mr. Nowlin was allegedly ordered to assist in the extrication, there is no indication that he was told to stand in between the two bulldozers. Appellant argues that Mr. Nowlin was the only other person present when the accident occurred and, thus, Mr. Nichols’ careless conduct must have been directed toward Mr. Nowlin. However, as the Respondent points out, the acceptance of this argument would effectively eliminate the requirement of purposeful or knowing conduct. See Groh, 148 S.W.3d at 16 (co-employee may be subject to personal liability based on facts showing he “knowingly subjected [injured employee] to substantial harm”).

The Missouri Supreme Court’s decision in State ex rel. Taylor v. Wallace, 73 S.W.3d 620 (Mo. banc 2002), is instructive in considering the Appellant’s claim that the operation of a motor vehicle constituted an affirmative negligent act. The plaintiff in Taylor was injured when he was at work, riding on a trash truck that hit a mailbox. Id. at 621. The plaintiff filed suit against his co-employee, the driver of the truck, contending that he: (1) failed to keep a careful lookout; (2) carelessly and negligently struck a mailbox while driving; and (3) carelessly and negligently drove too close to a fixed object. Id. at 622. The co-employee moved to dismiss the negligence claims for lack of subject matter jurisdiction, asserting that the plaintiffs exclusive remedy was under the Workers’ Compensation Law. Id. at 621. When the circuit court denied the motion, the co-employee sought a writ of prohibition that was eventually granted by the Supreme Court. Id.

In ordering dismissal of the lawsuit against the co-employee, the Supreme Court held the negligence claims did not establish that the co-employee owed a personal duty to the injured employee beyond the employer’s duty to provide a safe working environment:

Taken together, these claims amount to no more than the allegation that defendant negligently failed to discharge his duty to drive safely. This is not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions. In other words, an allegation that an employee failed to drive safely in the course of his work and injured a fellow worker is not an allegation of “something more” than a failure to provide a safe working environment.

Id. at 622.

As in Taylor, the petition here alleges that Mr. Nichols negligently failed to discharge his duty to safely operate a bulldozer. A simple allegation of negligent operation of machinery or a vehicle is not “something more” than an allegation of a breach of duty to maintain a safe working environment. Accordingly, the Appellant’s exclusive remedy is under the Workers’ Compensation Law, and the trial court lacked subject matter jurisdiction to proceed on the wrongful death claim. Finding no abuse of discretion, we affirm the judgment of dismissal.

All concur.

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

      . All rule citations are to the Missouri Rules of Civil Procedure (2005).

      . See, e.g., Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 927 (Mo.App.1995) (supervisor was liable for directing employee to be dangled from a forklift over a vat of scalding water, into which the employee fell and died); Tauchert v. Boatmen’s Nat'l Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. banc 1993) (foreman who personally arranged an elevator hoist system was liable to employee who was injured when the system failed); Groh, 148 S.W.3d at 16 (supervisor was affirmatively negligent in directing employee to continue operating a malfunctioning machine, which compressed on employee’s hand and caused severe injuries).

      . See also Quinn v. Clayton Constr. Co., 111 S.W.3d 428 (Mo.App.2003) (employees who threw angle iron from three-story roof directly in path of co-employee on ground below are not liable for co-employee’s injuries); Brown v. Roberson, 111 S.W.3d 422 (Mo.App.2003) (employee not liable to co-employee for injuries that occurred when overloaded tractor-trailer overturned); Gunnett, 70 S.W.3d 632 (employee who placed plywood under skylight hole in roof not liable to co-employee who fell through the hole).


source: Caselaw Access Project

author: HAROLD L. LOWENSTEIN, Judge.

license: Public Domain

text:
    Doris E. CLARK, Appellant, v. BELFONTE DISTRIBUTING, INC., and David A. Custer, Respondents.
    No. WD 63722.
    Missouri Court of Appeals, Western District.
    May 31, 2005.

      William T. Session, Kansas City, MO, for appellant.

      Stanley Neal Wilkins, Kansas City, MO, for respondents.
    ■ Before LOWENSTEIN, P.J., SPINDEN and SMART, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Plaintiff Doris E. Clark’s car was rear-ended by David A. Custer while making deliveries for his employer, Belfonte Distributing, Inc. A jury rendered a verdict for the defendants. The only issue is whether the rear-end collision doctrine should have been applied in determining liability.

Statement op Facts

On January 8, 1999, Custer was scheduled to deliver milk to schools for his employer, Belfonte. Prior to commencing his route, Custer completed his normal pre-trip safety check on the truck, including brake tests, and found everything to be working properly. He then began making deliveries.

Custer completed over half of his route without encountering icy roads. As a result, he did not take any extra precautions when he approached the intersection of Missouri Highways 291 and 150 to ultimately turn left onto Highway 150. Custer first saw Clark’s vehicle stopped at the intersection’s stoplight after he crested the hill on Highway 291. He was traveling between thirty to thirty-five miles per hour when he started applying normal pressure to the brakes approximately one hundred yards before the intersection. When his truck did not respond, Custer “pumped” the brakes, honked the horn, and swerved; however, he was unable to avoid skidding into the rear of Clark’s vehicle. Custer testified that only after exiting his truck to check on Clark did he become aware of the icy conditions.

At trial, the court declined to apply the rear-end collision doctrine to determine Custer and Belfonte’s liability. It, instead, instructed the jury using a verdict director that required proof that Custer committed a specific act of negligence in order to find them liable. When the jury returned a verdict in favor of the defendants, the trial court accepted the verdict and entered judgment.

Analysis

The plaintiff, Clark raises six points on appeal. Specifically, she claims that the trial court erred in: (1) overruling her motion for directed verdict on the defendants’ liability at the close of her evidence; (2) overruling her motion for directed verdict on the defendants’ liability at the close of all evidence; (8) refusing to instruct the jury using the “rear-end collision” verdict director; (4) instructing the jury, instead, with a .combination of the “multiple negligent acts submitted” and “failure to act after danger of collision apparent” verdict directors; (5) fading to sustain her motion for a judgment notwithstanding the verdict or, in the alternative, motion for a new trial; and (6) refusing to vacate its judgment.

At the heart of Clark’s six points on appeal is her third point, the applicability of the rear-end collision doctrine. The rear-end collision doctrine provides that:

if one has his vehicle in a portion of the highway where he should have it in view of his course, and another traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, proof of the collision ... makes out a prima facie case of specific negligence against the driver operating the overtaking vehicle.

Ethridge v. Gallagher, 773 S.W.2d 207, 211 (Mo.App.1989). The rationale behind this doctrine is that the “party in the vehicle behind has a view of what is in front and can better explain why his vehicle struck the rear of the car ahead.” Mueller v. Storbakken, 583 S.W.2d 179, 182 (Mo. banc 1979). The rear-end collision doctrine is similar to res ipsa loquitur, in that the fact of the collision is said to “bespeak[ ]” the defendant’s negligence. Kaufmann by Kaufmann v. Nagle, 807 S.W.2d 91, 94 (Mo. banc 1991). “Time and distance available to the overtaking driver are necessary factors” in determining whether the driver “permitted” the collision to occur. Id. at 95 (quoting Lichtenberg v. Hug, 481 S.W.2d 527, 529 (Mo.App.1972)).

In Clark’s first point on appeal, she contends that the trial court erred in overruling her motion for directed verdict at the close of her evidence, since she had established a prima facie case. When reviewing a plaintiffs motion for directed verdict, this court must “view the evidence in the light most favorable to defendants, giving defendants the benefit of all favorable inferences reasonably drawn from the evidence, and disregarding plaintiffs evidence that does not support defendants’ case.” Am. Bank of Princeton v. Stiles, 731 S.W.2d 332, 342-43 (Mo.App.1987). If the evidence is such that “reasonable minds could reach different conclusions,” the trial court’s denial shall be affirmed. Id. at 343.

Clark’s motion for directed verdict was premature. This court notes that the applicability of the rear-end doctrine is ultimately at issue; however, even if the doctrine is found to apply, liability would not necessarily be imposed upon the defendants. When applicable, the rear-end collision doctrine “only establishes a prima facie case; it does not compel a directed verdict.” Gilleylen v. Surety Foods, Inc., 963 S.W.2d 15, 18 (Mo.App.1998). The presumption created in favor of the plaintiff does not automatically entitle her to prevail as a matter of law. Feick v. Fenlon, 939 S.W.2d 537, 538 (Mo.App.1997). Instead, after a plaintiff establishes that she was in a place where she had a right to be, the burden then shifts to the defendant to produce evidence rebutting the prima facie case. Nishwitz v. Blosser, 850 S.W.2d 119, 122 (Mo.App.1993). In order to avoid liability, “the defendant is obligated to either present evidence of defense or excuse.” Gilleylen, 963 S.W.2d at 17.

The evidence received during Clark’s case-in-chief only included testimony from Clark, her late-husband via deposition designations, an accident reconstruction expert, and excerpts read into the record from Custer’s deposition. Because the defendant was not yet afforded the opportunity to rebut the prima facie case, Clark’s motion for directed verdict at the end of her case was properly denied.

Clark’s motion for a directed verdict at the close of all evidence was also properly denied. On review, appellate courts “review denial of a motion for directed verdict as a question of law, viewed in the eviden-tiary light most favorable to the non-moving party, and determine whether that party has made a submissible case.” Fricke v. Valley Prod. Credit Ass’n, 721 S.W.2d 747, 752 (Mo.App.1986). The facts adduced during Custer’s presentation of evidence rendered a directed verdict under this theory inappropriate.

Specifically, Custer did ■ not encounter icy roads while making his morning deliveries until approaching the intersection of Missouri Highways 291 and 150. When attempting to stop one hundred yards before the intersection, he applied normal pressure to the brakes but his truck did not respond. Custer then tried to avoid the impending collision by “pumping” the brakes, honking the horn, and swerving, but was unsuccessful. Because these facts neither “bespeak negligence” nor support an inference that Custer “permitted” the collision to occur, the trial court properly denied Clark’s motion for a directed verdict. Point denied.

Clark’s third and fourth points both deal with instructional error. She argues that trial court erred in refusing to instruct the jury under MAI 17.16, the rear-end collision verdict director, and by instead giving an verdict director based on a combination of MAI 17.02, “multiple negligent acts submitted,” and MAI 17.04, “failure to act after danger of collision apparent.” In order to preserve claims of instructional error for review, a party must object to the instruction at trial and include the alleged error in his or her motion for a new trial. Goede v. Aerojet Gen. Corp., 143 S.W.3d 14, 28 (Mo.App.2004); see also Rule 70.03. If preserved, the appellant “must show that: 1) the instruction as submitted misled, misdirected, or confused the jury, and 2) prejudice resulted from the instruction” to obtain a reversal. Van Volkenburgh v. McBride, 2 S.W.3d 814, 821 (Mo.App.1999).

Although the defendants claim that Clark’s arguments are not preserved since she offered the very instruction of which she now complains, this court disagrees. During the instruction conference, Clark’s attorneys proposed submission of the rear-end collision verdict director. When rejected, Clark instead offered an alternate instruction that reflected how the. .trial court thought the jury should be instructed. Clark objected to the content of the instruction, both when submitted and in her motion for new trial. Consequently, Clark’s points may be reviewed on the merits. See Braun v. Lorenz, 585 S.W.2d 102, 109 (Mo.App.1979) (holding that a party does not waive objection to an instruction by merely proposing an instruction prepared at the direction of the court).

The rear-end collision doctrine is limited in scope and should only be used “where the facts show [it] is clearly applicable.” Kaufmann, 807 S.W.2d at 94; see also MAI 17.16, Notes on Use 1 (6th ed.2002). As a result, a case is submissible under this theory only when “circumstances warranting an inference of ... negligence “on the part of the driver of the following vehicle that” ‘bespeak[ ] ... negligence’” exist. Jensen v. Pappas, 684 S.W.2d 524, 528 (Mo.App.1984) (citations omitted).

Again, the trial testimony established that Custer affirmatively tried to avoid the collision and, thus, did not “permit his vehicle to run into the rear of the one ahead.” Since this necessary element was not proven, Clark’s case was not submissi-ble under the rear-end collision doctrine. Therefore, the trial court neither misled, misdirected, nor confused the jury by using a verdict director that required proof of a specific act of negligence. Points three and four are denied.

Clark next argues that the trial court erred in failing to sustain her motion for judgment notwithstanding the verdict or, in the alternative, a new trial. She maintains that the evidence adduced at trial did not rebut her prima facie case. This court disagrees.

An appellate court will only overturn a jury’s verdict “if there are no probative facts to support the verdict.” Johnson v. Union Pac. R.R. Co., 146 S.W.3d 14, 17 (Mo.App.2004). Here, there was evidence presented at trial that rebutted Clark’s case and, likewise, supported a defense verdict. Custer testified that he completed his pre-trip safety check without incident, had not encountered ice on his delivery route until reaching the hill/ intersection where the collision occurred, and was not exceeding the speed limit as he descended down the hill toward the stoplight. Although he applied normal pressure to the brakes, his truck did not respond and he was unable to control the direction in which it traveled. Custer further stated that he tried pumping the brakes, swerving, and ultimately honking the horn to try to alert Clark — all without avail. As a result, there was ample evidence to support the jury’s verdict and the trial court properly denied Clark’s motion.

In her final point on appeal, Clark similarly argues that the trial court erred by refusing to vacate its judgment, enter a judgment against the defendants on liability, and reopen the case to allow her to present evidence on proximate cause and damages. A trial, court’s decision not to vacate its judgment should not be reversed absent an abuse of discretion. Corzine v. Stoff, 505 S.W.2d 162, 164 (Mo.App.1973). For all of the reasons more fully discussed above, the trial court in this case did not abuse its discretion in refusing to vacate its judgment.

Conclusion

The rear-end collision doctrine is limited in scope and a trial court may only instruct a jury under this theory when the case falls squarely within the doctrine’s factual prerequisites. Because Custer produced evidence that negated any. inference that he “permitted” the collision to occur, the rear-end collision doctrine was inapplicable.

The judgment is affirmed.

All concur.


text:
    SUPERSTARS OF LOVE, L.L.C., Appellant, v. EXECUTIVE HOTEL MANAGEMENT, INC., Respondent.
    No. WD 64133.
    Missouri Court of Appeals, Western District.
    May 31, 2005.
    Mark C. Abbott, Columbia, for appellant.
    David L. Knight, Columbia, for respondent.
    Before EDWIN H. SMITH, Chief Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Superstars of Love, L.L.C., appeals a judgment in favor of Executive Hotel Management, Inc. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


author: ROBERT G. ULRICH, J.

text:
    Joseph E. ELROD, et al., Appellants, v. Rondell STEWART, et al., Respondents.
    Nos. WD 64126, WD 64162.
    Missouri Court of Appeals, Western District.
    May 31, 2005.

      Jean A. Maneke, Kansas City, MO, for appellants.
    Steven E. Mauer, Kansas City, MO, for respondents.
    Before: EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.
   ROBERT G. ULRICH, J.

Appellants, residents of the City of Independence, appeal the judgment of the trial court dismissing with prejudice their petition for injunctive relief against the mayor and members of the city council of Independence (Respondents) for violation of the Missouri Sunshine Law, Chapter 610. Appellants contend that the trial court erred in dismissing their petition for failure to state a claim upon which relief can be granted because their petition contained a concise statement of facts showing they were entitled to relief. Appellants also claim the trial court erred in denying their application for change of judge. The judgment of the trial court is reversed, and the case is remanded.

Facts

Appellants filed their first petition on February 27, 2004,-for permanent injunc-tive relief and for assessment of civil fines and penalties for violation of the Missouri Sunshine Law. The petition alleged that Respondents gathered on February 7, 2004, at the Englewood Café in Independence; that at the gathering, “public business” was discussed; that because “public business” was discussed at the meeting, the meeting constituted a “public meeting”; and that Respondents failed to post notice for the public meeting or keep minutes of the meeting. Respondents filed a motion to dismiss for failure to state a claim contending that (1) the Missouri Sunshine Law expressly states that informal gatherings of members of a governmental body for social or ministerial purposes where there is no intent to avoid the Sunshine Law are not “public meetings,” and (2) Appellants failed to allege the content of any alleged statements that constitute “public business.” The trial court dismissed the petition without prejudice on March 21, 2004, following a hearing.

On March 31, 2004, Appellants filed another petition for permanent injunctive relief and for assessment of civil fines and penalties under a new case number. The new case was coincidentally assigned to the same judge who heard the original case. The petition (hereinafter “second petition”) set out the same allegations as the original petition. Additionally, under the allegation that “public business” was discussed at the gathering, Appellants added language that they are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery to show that Respondents discussed the salary to be paid to the interim city manager and/or the city budget and/or other items currently before the city council members. Respondents filed a motion for the court’s order to show cause why the matter should not be dismissed and sanctions imposed claiming the petition still failed to state a claim upon which relief could be granted. The trial court entered its order to show cause on April 5, 2004, setting a hearing on the show cause order for April 12, 2004.

Appellants filed an application for change of judge on April 8, 2004. The trial court denied Appellants’ application for change of judge on April 12, 2004, finding that the case involves substantially the same parties and claims as the prior case on which the court had already heard evidence. The same day, the trial court issued a notice of intent to enter an amended judgment of dismissal and set a hearing on April 14, 2004. Following the hearing, the trial court entered its amended judgment of dismissal with prejudice. In the amended judgment, the trial court found that under Rule 75.01, it retained jurisdiction over its March 19, 2004, judgment of dismissal without prejudice for thirty days, that it was treating Appellants’ second petition as an amended petition from the first case, and that Appellants’ second petition failed to plead facts that would entitle them to relief. This appeal followed.

Change of Judge

In their second point on appeal, Appellants claim that the trial court erred in denying their request for a change of judge. They contend the application was timely filed and made prior to any appearance before the trial judge and was, thereby, compliant with Rule 51.05. Because this point is dispositive, point one is not addressed.

The right to disqualify a judge is “one of the keystones of our legal administrative edifice.” State ex rel. Kramer v. Walker, 926 S.W.2d 72, 75-76 (Mo.App. W.D.1996)(quoting State ex rel. Wedemeier v. McKenzie, 889 S.W.2d 99, 100-101 (Mo.App. E.D.1994)). Rule 51.05 provides for an automatic change of judge when timely requested. It provides a litigant a virtually unfettered right to unilaterally disqualify a judge irrespective of the reason. Kramer, 926 S.W.2d at 76. When a proper and timely application has been made for a change of judge, the trial court has no discretion but to certify the case to another judge. Id. In other words, the filing of a timely application for change of judge deprives the court of further jurisdiction to do anything in the case other than grant the application. State ex rel. Anderson v. Frawley, 928 S.W.2d 960, 961 (Mo.App. E.D.1996).

Appellants rely on Pender v. Pender, 634 S.W.2d 244 (Mo.App. W.D.1982), in arguing that their application for change of judge was timely. In that casé, Mother filed a motion to modify the decree of dissolution as to visitation. Pender, 634 S.W.2d at 245. Father filed an application for change of judge under Rule 51.05 and a motion to dismiss. Id. The case was assigned to a new judge, and the new judge dismissed the motion to modify without prejudice. Id. Twelve days later, Mother filed a new motion to modify the decree of dissolution as to visitation. Id. Father once again applied for a change of judge but was denied. Id. Following a trial on the merits, Father appealed claiming that the court was bound under Rule 51.05 to grant a change of judge. Id. Mother argued that her second motion to modify was effectively an amendment of the dismissed motion in the same civil action so that the change of judge granted to Father on the first motion exhausted the allowance to Father under Rule -51.05. Id. at 246.

This court agreed with Father. It stated that because neither a request for leave to amend was made nor an order to allow the continuation of the action by amendment or otherwise was entered, the order dismissing the first motion to modify terminated the entire action, not just the petition. Id. Thus, the subsequent motion to modify was an altogether new civil action and entitled Father anew to a change of judge under Rule 51.05. Id. But see Peet v. Randolph, 103 S.W.3d 872, 876 (Mo.App. E.D.2003)(where trial court entered an order of dismissal without prejudice, the order was an interlocutory order of dismissal, the trial court did not lose jurisdiction, and the plaintiffs filing of a second petition had no effect on the court’s jurisdiction of the first action and was barred under the “pending action doctrine.”)

Respondents, on the other hand, claim that the second petition filed by Appellants was actually an amended petition in the original proceeding over which the trial court retained jurisdiction under Rule 75.01. Rule 75.01 provides that a trial court retains jurisdiction over a matter for thirty days after entry’ of judgment to amend, modify, vacate, reopen, or correct its judgment. The judgment then becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed. Rule 81.05(a)(1). Generally, a dismissal without prejudice is not a final judgment and, therefore, cannot' be appealed. Bentch v. Collins, 28 S.W.3d 453, 456 (Mo.App. E.D.2000). In certain circumstances, however, dismissal without prejudice is final and appealable. Id. Specifically, dismissal without prejudice for failure to state a claim upon which relief can be granted can be tantamount to a determination that the plaintiff has no cause of action’ and can result in a final, appealable judgment. Id. Where a trial court makes such determination and undertakes to dismiss a petition for failure to state a claim upon which relief can be granted, the court’s dismissal must meet the requirements of Rule 74.01(a) for a judgment. Lowery v. Air Support Int'l, Inc., 971 S.W.2d 323, 324 (Mo.App. S.D.1998). Rule 74.01(a) provides that a judgment is entered when (1) a writing (2) signed by the judge (3) and denominated “judgment” (4) is filed. Respondents' contend that the trial court’s March 21, 2004, dismissal for failure to state a claim upon which relief can be granted met the requirements of Rule 74.01(a); Rule 75.01, therefore, applied; and the trial court retained jurisdiction over the matter for thirty days. Thus, they claim, Appellants’ see-ond petition filed within thirty days was effectively a motion to set aside the March 21, 2004, judgment and to amend the original petition.

Respondents are correct that the March 21, 2004, judgment of dismissal without prejudice met the requirements of Rule 74.01(a) and that the trial court retained jurisdiction over the judgment for thirty days under Rule 75.01. Rule 75.01 did not, however, authorize the trial court to treat Appellants’ second petition filed on March 31, 2004, as an amended petition in the original case. In filing their second petition, Appellants were not asking the trial court to set aside its March 21 judgment and to allow them to amend the petition. Appellants elected not to seek amendment of their original petition or to appeal the judgment dismissing their original petition but, instead, elected to file a new petition in a new civil action. Had Appellants filed their second petition more than thirty days after entry of the judgment dismissing their first petition, the case would be considered a new civil action. Rule 75.01 did not convert Appellants’ second petition filed under a new case number into an amended petition in the first case simply because Appellants filed their second petition within thirty days of the March 21, 2004, judgment and the petition happened to be assigned to the same judge as the first.

Rule 67.01 permits a party to bring another civil action for the same cause that has been dismissed without prejudice unless the civil action is otherwise barred. Bentch, 28 S.W.3d at 456. While a dismissal without prejudice for failure to state a claim may operate to preclude the plaintiff from bringing another action for the same cause and may be res judicata of what the judgment actually decided, the dismissal does not preclude the plaintiff from reasserting the claim on new factual allegations. Id. Rule 67.01 does not, however, permit refiling a petition previously determined not to state a claim. Id. “A dismissal for failure to state a cause of action is sufficient to raise res judicata in a later proceeding, and it is immaterial that the wording of the counts has been changed in an apparent attempt to correct the defects in the original pleading.” Id. at 456-57 (quoting Greening v. Klamen, 719 S.W.2d 904, 906 (Mo.App. E.D.1986)).

Appellants’ second petition was filed under a new case number and contained different allegations, albeit one addition to the allegation of “public business.” Whether the second petition actually contained new factual allegations, is precluded by res judicata, or is otherwise barred are not issues currently before this court. Rather, Appellants filed an application for change of judge shortly after filing their second petition, and the question is whether their application was timely.

Rule 51.05(b) sets out the time for filing an application for change of judge:

The application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge.

Appellants’ application for change of judge was filed within the time limit specified in the first sentence of Rule 51.05(b). Appellants’ second petition was filed on March 31, 2004, and thereafter, Respondents filed a motion for an order to show cause. The trial court entered an order to show cause on April 5, 2004, setting a hearing on the order for April 12, 2004. Although the record does not indicate when the trial judge was designated, obviously the trial judge was designated on April 5, 2004, at the latest. On April 8, 2004, Appellants filed their application for change of judge well within sixty days from service of process or thirty days from the designation of the trial judge. Additionally, the second sentence of Rule 51.05(b) is inapplicable because a trial had not yet commenced in this case. Appellants’ application for change of judge was timely under Rule 51.05(b).

Respondents argue that the trial court did not err in denying Appellants’ application for change of judge on April 12, 2004, because the request for the court’s show cause order regarding the second petition was already commenced at that time. They rely on Jenkins v. Andrews, 526 S.W.2d 369, 373 (Mo.App.1975), which held that the timely filing of an application for change of judge cannot deprive the trial court of jurisdiction to rule upon matters then under submission. In Jenkins, defendants filed a motion for summary judgment or, in the alternative, a motion to dismiss. Id. at 371. The motions, evidence, and argument of counsel were presented to the trial court, and the court indicated its intention to overrule the motion for summary judgment but to sustain the motion to dismiss unless an amended petition were filed. Id. Accordingly, plaintiffs asked for leave to amend and the trial court granted them thirty days to do so. Id. Within the thirty-day period, plaintiffs filed an application for change of judge. Id. After argument on the application, the trial court dismissed plaintiffs petition and then granted the request for change of judge. Id.

This court affirmed the action of the trial court explaining:

To permit appellants to disqualify the judge, rather than to file their amended petition, would nullify the hearing which had been held, result in a deplication of the proceeding already undertaken and permit appellants to take advantage of a tentative expression of opinion by the trial judge on the matter submitted to avoid his action upon it. Such result is not required by Rule 51.05_ [T]he action of the trial court in ruling on the motion previously submitted before acting on the disqualification was not error.

Id. at 373.

This case is distinguishable from Jenkins. At the time of the filing of Appellants’ application for change of judge on April 8, 2004, no matter was under submission to the trial court. While the trial court entered an order to show cause on April 5, 2004, a hearing on the order was not set until April 12, 2004. Appellants filed their application for change of judge prior to the hearing on the show cause order. Jenkins, therefore, does not apply here. See Natural Bridge Dev. Co. v. St. Louis County Water Co., 563 S.W.2d 522, 526 (Mo.App.1978)(where at the time the application for change of judge was filed, no matter was under submission to the trial court although a hearing on an order to show cause why a temporary injunction should not be issued was scheduled for a later date). , .

In conclusion, Appellants’ application for change of judge was timely and should have been granted. The amended judgment is reversed, and the case is remanded to the trial court for further'proceedings consistent with this opinion.

SMITH, C.J., and LOWENSTEIN, J„ concur.

      . All statutory references are to RSMo Cum. Supp. 2004 unless otherwise indicated.

      . On March 25, 2004, one of the Appellants filed a petition pursuant to Rule 57.02 for the purpose of taking deposition testimony of Respondents to discover sufficient facts to support Appellants’ allegation that public business was discussed at the February 7, 2004, gathering. The Appellant dismissed this petition without prejudice on March 31, 2004.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Gary W. WALLER, Appellant.
    No. WD 64172.
    Missouri Court of Appeals, Western District.
    May 31, 2005.

      Brian J. Klopfenstein, Kearney, MO, for appellant.
    Julie A. Cahalane, Assistant Prosecuting Attorney, Terrence M. Messonnier, Assistant Prosecuting Attorney, Lexington, MO, for respondent.
    Before SPINDEN, P.J., and HOWARD and NEWTON, JJ.
   PER CURIAM.

Gary Waller (“Gary”) appeals from his conviction in a judge-tried case in the Circuit Court of Lafayette County for littering in violation of section 577.070 , a class A misdemeanor. Gary was sentenced to thirty days in the Lafayette County jail and a $500 fine. The trial court suspended execution of the sentence and placed Gary on probation for a period of two years. Gary claims the evidence received by the trial court was insufficient to withstand his motion for judgment of acquittal.

Background

On July 22, 2003, Lafayette County Deputy Sheriff Mark Good (“Good”) was dispatched to Boundary Road in Mayview to investigate a report of trash dumping. Good found “a large amount of different items” and “rubble” dumped on the side of the road, including three or four trash bags lying on top. Good tore open one of the bags and pulled out “a handful” of mail consisting of letters, bills and statements. The mail was addressed to Gary, April, and Crystal Waller at 100 North Chinn in Mayview. 100 North Chinn is about two miles from the Boundary Road dumpsite.

When Good went to the North Chinn address to contact the Wallers, he discovered they had moved, but he was able to find the Wallers at their new address in Higginsville. The Wallers told Good that after they filed for bankruptcy, their house on North Chinn was foreclosed on and they were evicted in April 2002. When the Wallers moved out, they left behind trash, debris, and refuse, but they denied dumping any of their trash on Boundary Road. All of the mail Good retrieved from the trash bag on Boundary Road was dated before the Wallers moved out of the house on North Chinn.

Richard Saunders (“Saunders”), a real estate broker, was hired by the mortgage company to establish control of and market the North Chinn property after the foreclosure. At trial, Saunders testified that he secured the house, had it re-keyed, and arranged for the hiring of Bill Snider (“Snider”) to clean the interior and exteri- or. Snider described the large amount of trash and refuse he found at the house. Inside the house Snider found rubbish, papers, clothing, trash, furniture, and “odds and ends.” Outside the house, Snider encountered engine parts, appliances, car parts, windows, doors, lumber, and “all sorts of stuff.” Snider said he hauled the trash away, finishing the job on or about May 14, 2002. When the clean-up was completed, Saunders went back to the house for a “compliance check” and determined that all the trash had been removed from the house. Gary and April Waller denied dumping the trash on Boundary Road and testified that they left trash behind but were not sure if their mail found near Boundary Road was left at the house on North Chinn when they vacated it. The trial court found both Gary and April guilty of littering.

Standard of Review

State v. Strong, 484 S.W.2d 657, 661 (Mo.1972), provides:

In testing the sufficiency of evidence in a criminal prosecution by a motion for a judgment of acquittal, the facts and evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.

“ ‘An “inference” is a conclusion drawn by reason from facts established by proof; “a deduction or conclusion from facts or propositions known to be true.””’ State v. Foster, 930 S.W.2d 62, 64 (Mo.App. E.D.1996) (quoting Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626, 630 (1941)). An “inference” is different from a “supposition,” a supposition being “‘a conjecture based on the possibility that a thing could have happened. It is an idea or a notion founded on the probability that a thing may have occurred, but without proof that it did occur.’ ” Id. (quoting Draper, 156 S.W.2d at 630).

It is the function of the trier of fact, not this court, to “weigh the evidence to determine whether the charge has been proven beyond a reasonable doubt.” Strong, 484 S.W.2d at 661. Our review is limited to determining “whether there is sufficient substantial evidence to support the [conviction].” Id. Substantial evidence is evidence in harmony with a fact finder’s reasonable conclusion on an issue. State v. Moon, 602 S.W.2d 828, 831 (Mo.App. W.D.1980). In other words, sufficient evidence is of a nature and quality sufficient to provide the basis for a rational resolution of the issue of guilt beyond a reasonable doubt.

“[T]he reasonable doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”

State v. Grim, 854 S.W.2d 403, 417 (Mo. banc 1993) (Robertson, C.J., dissenting) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970)). “The constitutional protections embodied in the presumption of innocence and the requirement of proof beyond a reasonable doubt are not reserved simply for the morally blameless, nor are they reserved for use only in ‘easy’ cases.” Id.

Insufficient Evidence

Gary was convicted under section 577.070, which provides, in relevant part, that a person who “throws or places, or causes to be thrown or placed ... trash ... or rubbish of any kind ... on the right-of-way of any public road” is guilty of the class A misdemeanor of littering. We hold that the evidence admitted at trial was insufficient to withstand Gary’s motion for judgment of acquittal.

Because this is a circumstantial evidence case,' a conviction must rest upon inferences, which inferences must be strong enough to support a finding of guilt beyond a reasonable doubt. The only evidence connecting Gary to the crime is that mail addressed to Gary, April, and Crystal Waller was pulled from a trash bag lying in the right-of-way. This certainly creates an inference that Gary could have thrown the mail on the roadside. After all, Gary’s mail was included in the trash. However, we can just as easily infer that April Waller or Crystal Waller committed the crime because their mail also was recovered from the trash bag. No other circumstances surrounding the littering are evident from the record. We do not know what was in the other trash bags and rubbish found on Boundary Road or even what else was in the trash bag that Deputy Good pulled the mail from. There is no indication how long any of the trash and rubbish had been sitting at the site. What we do know from the evidence is that at least four people potentially had possession of the mail (the Wallers and Snider, the trash hauler) and that the mail was subsequently found at the Boundary Road dumpsite.

In .our review we disregard inferences contrary to the conviction “unless they are such a natural and logical extension of the evidence that a reasonable [fact finder] would be unable to disregard them.” Grim, 854 S.W.2d at 411 (emphasis added). The contrary inferences in this case cannot be disregarded because the inferences lead us on such a circular path regarding the identity of the guilty party. And, the State certainly “ ‘has the burden of proving beyond .a reasonable doubt who committed the crime.’ ” State v. Rockett, 87 S.W.3d 398, 403 (Mo.App. W.D.2002) (quoting State v. Robinett, 63 S.W.3d 236, 240 (Mo.App. W.D.2001)).

Because the only evidence of guilt is the mail, it is possible that any one of the three Wallers committed the crime, or that any one of them did not commit the crime. Regarding Gary, we can certainly conclude from the evidence that he might have committed the crime, and perhaps, even more probably than not, that he did commit the crime. However, to conclude that Gary committed this crime beyond a reasonable doubt requires a healthy dose of speculation, supposition, and conjecture, which is not sufficient to provide a basis for a rational resolution of the issue of guilt beyond a reasonable doubt.

When our grade school teacher was trying to determine who threw the spit wad, she employed the time-tested classroom technique of punishing everyone until the culprit confessed. However, we have chosen not to adopt this effective technique for use in our criminal justice system. We accept the reality that sometimes the guilty will go free because of our great care to insure that the innocent are not unjustly convicted.

The somewhat unique facts of this case make it impossible, without speculation, to separate the guilty from the innocent. The conviction is reversed, and Gary Waller is ordered discharged.

      . Statutory references are to Revised Statutes of Missouri, 2000.

      . Crystal Waller is the daughter of Gary and April Waller. Crystal Waller was not charged with littering.

      .Gary’s wife, April, was also convicted, in the same trial, of littering and received an identical sentence. She appeals her conviction in a separate appeal.

      . Draper is quoting from Louisville & N.R. Co. v. Mann's Adm’r, 227 Ky. 399, 13 S.W.2d 257, 258 (1929).


text:
    STATE of Missouri, Respondent, v. April L. WALLER, Appellant.
    No. WD 64173.
    Missouri Court of Appeals, Western District.
    May 31, 2005.
    Brian J. Klopfenstein, Kearney, MO, for appellant.
    Julie A. Cahalane, Assistant Prosecuting Attorney, Terrence M. Messonnier, Assistant Prosecuting Attorney, Lexington, MO, for respondent.
    Before SPINDEN, P.J., and HOWARD and NEWTON, JJ.
   PER CURIAM.

April L. Waller (“April”) appeals from a conviction in a judge-tried case in the Circuit Court of Lafayette County for littering in violation of section 577.070 RSMo 2000, a class A misdemeanor. In her sole point on appeal, April claims the evidence received by the trial court was insufficient to withstand her motion for judgment of acquittal.

The facts and issues of law are identical to State v. Gary Waller, WD 64172, 2005 WL 1263063, 163 S.W.3d 593 (Mo.App.2005), and we adopt the opinion from that case handed down concurrently with this opinion. The evidence admitted at trial was insufficient to withstand April’s motion for judgment of acquittal.

The conviction is reversed, and April is ordered discharged.


text:
    Lywayne SCOTT-EL, Appellant, v. DEPARTMENT OF CORRECTIONS and Board of Probation and Parole, Respondents.
    No. WD 64618.
    Missouri Court of Appeals, Western District.
    May 31, 2005.
    Lywayne Scott-El, Jefferson City, Pro Se appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Office of Attorney General, Jefferson City, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Lywayne Scott-El appeals the circuit court’s granting summary judgment for the Department of Corrections and the Board of Probation and Parole in a declaratory judgment action. We affirm. Rule 84.16(b).


author: RONALD R. HOLLIGER, Judge.

text:
    Ryan Heath PURDUN, Respondent, v. Kimberly Ann PURDUN, Appellant.
    No. WD 64476.
    Missouri Court of Appeals, Western District.
    May 31, 2005.

      Ronald Ray Holliday, St. Joseph, for appellant.
    Janet Wake Larison, Grant City, for respondent.
   RONALD R. HOLLIGER, Judge.

Kimberly Purdun (“Mother”) appeals from the portion of her dissolution decree awarding sole physical custody of two minor children to Ryan Purdun (“Father”). Sometimes, unfortunately, a trial court must make a decision in matters of child custody between less than ideal parents. But decide the trial court must. This case demonstrates the difficulty presented and the sound reasons for deference to the trial court in custody matters. Mother contends that the award of sole physical custody to Father was against the weight of the evidence. She further argues that the court failed to make a finding that restrictions on her visitation would endanger the children’s physical health or emotional development and that even if no finding was required that there was no substantial evidence to support that conclusion. We affirm.

Mother and Father were married on March 15, 1997. For the next six years the marriage was, by all accounts, a less than healthy relationship marred by various degrees of excessive drinking, adultery, drug use, neglect, and emotional abuse. Two daughters were born to the marriage. Father filed for divorce on July 16, 2003.

Evidence adduced at trial showed that between the marriage date and the date he filed for divorce, Father was rarely home with his wife and children and often intoxicated to the point of unconsciousness. About the same time he filed for divorce, however, he had reformed his behavior and stopped drinking completely. Mother, conversely, began drinking heavily around the same time and her behavior became increasingly erratic.

After a trial, the court entered a judgment awarding joint legal custody and sole physical custody to Father. The custody order is the sole subject of this appeal.

Standard of Review

The standard of review in a custody case is recited in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976): “... [T]he decree or judgment of the trial court will be sustained by the appellate court 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.” Id. at 32.

“On appeal of [a] custody order, we view the evidence in the light most favorable to the decision of the trial court.” Alt v. Alt, 896 S.W.2d 519, 520 (Mo.App.1995). Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment is to be affirmed under any reasonable theory supported by the evidence. Scott v. Scott, 147 S.W.3d 887, 895 (Mo.App.2004). “ ‘In child custody matters the trial court’s determination must be given greater deference than in other cases.’ ” Id.

Point I

Mother alleges in Point I that the trial court erred in its award of sole physical custody to father because it was against the weight of the evidence presented at trial. The basis for determining child custody is the best interests of the child.

The trial court is guided in making this decision by the eight factors set forth in section 452.375.2. These factors include:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved ....;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.
Section 452.375.2.

The Parenting Plan prepared by the court and challenged here on appeal states in relevant part:

2. Mother shall have the children two weekday evenings every week, which are to be Tuesdays and Thursdays, unless otherwise agreed. Said visitation is to end no later than 7 p.m. and is to be for three hours, but may be longer, if agreed by the parties.
3. Mother shall have the children for eight hours every weekend, which is to be on Sunday, unless otherwise agreed. Said visitation is to end no later than 7 p.m.
5. During the months of June, July and August, Mother may have the children for two continuous weeks. Mother must give Father two weeks’ written notice of when such visitation is to occur. Said visitation shall take place only if one of Mother’s parents is also in the same house with Mother during said two weeks.
6. During the months of September through May, Mother may have the children for a weekend in each of those months, from Friday at 7 p.m. to Sunday at 7 p.m. Mother must give Father two weeks’ written notice of when such visitation is to occur. Said visitation shall take place only if one of Mother’s parents is also in the same, house with Mother during said weekends.

Mother argues specifically that the court misapplied factors (6) and (8) when entering its judgment and findings. In her argument section, Mother makes little effort to tie her claim to the factors enumerated in the statute; she does not specifically challenge thé court’s findings except to conclude that they were against the weight of the evidence and not in the best interests of the children. Instead, Mother urges this court to reverse the judgment by pointing to evidence that Father “completely denied” her contact with the children while the divorce was pending. Certainly, a parent’s history of denying the other parent meaningful contact with a child may be considered in determining custody. Harris v. Harris, 808 S.W.2d 167, 169 (Mo.App.1991). However, the record does not support Mother’s contention that Father completely denied access to the children as a form of punishment. Evidence was presented that Father allowed Mother contact with the children daring the divorce action as long as it was supervised and that Father’s motive for this was his concern for the safety of the girls. Several witnesses besides Father, including the babysitter and the GAL, expressed concerns for the safety of the children while in Mother’s care because of her tendency to abuse alcohol. The trial court recognized this in its Judgment.

Moreover, Mother acknowledged herself that the safety concerns while the children were in her custody were not completely unfounded. We do not believe that Father’s restriction on her visitation with the children, in light of the evidence adduced about her condition at the time, indicates that the custody arrangement is not in the best interests of the children.

Mother also points to Father’s excessive drinking, adultery, and other poor behavior during the marriage as proof that the judgment was against the weight of the evidence. While we find nothing to admire about Father’s performance as a husband and parent during the marriage, the record shows that he was the more stable parent at the time of the custody decision. The court in this case was faced with a cascade of evidence on both sides of alcohol abuse and neglect. The glaring difference in the evidence presented was that, at the time of the custody decision, Mother was still struggling with alcohol dependency and depression. Father was not.'

Appellate courts should exercise the power to set aside a decree or judgment as “against the weight of the evidence” with caution and only with a firm belief that the decree or judgment is wrong. Doynov v. Doynov, 149 S.W.3d 917, 923 (Mo.App.2004). When there is conflicting evidence, the trial court has the discretion to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony it hears. Sarwar v. Sarwar, 117 S.W.3d 165, 168 (Mo.App.2003). The mere existence of evidence from which another conclusion might have been reached is not enough to demonstrate that the holding of the trial court is contrary to the weight of the evidence. Sarwar, 117 S.W.3d at 168; Moyer v. Walker, 771 S.W.2d 363, 365-66 (Mo.App.1989).

Viewed in the light most favorable to the trial court’s judgment, there is substantial evidence in the record to support the trial court’s findings. The evidence presented was uncontradicted that Husband had not consumed alcohol since filing for a divorce. Conversely, the evidence was strong that Mother’s struggle with substance abuse was continuous and uncontrollable even into the week of the hearing. The GAL testified, “[b]ut because of the struggle that Kim Purdun continues to have with depression and substance abuse, and specifically alcohol, my recommendation ... is that they would share joint legal custody where they would have to confer with each other and share information regarding the kids’ health and welfare, that Ryan would have primary physical custody.”

The couple’s babysitter testified that she had concerns about Mother’s parental fitness citing her struggle with alcohol abuse. Mother herself acknowledged that she was an alcoholic who could not control her impulse to drink and who had been intoxicated just days prior to the hearing. She also admitted that she suffered from severe depression and had overdosed on sleeping pills in August of 2003, prompting her hospitalization for psychological evaluation. Still other evidence was presented that excessive alcohol usage had affected Mother’s participation with the girls in that it caused her to miss her daughter’s Christmas program and a scheduled visitation.

Reading the record in the light most favorable to the judgment, we find that the custody order was not against the weight of the evidence. Point denied.

Points II & III

Mother argues in Point II that the trial court erred by restricting her visitation rights because the court did not make an explicit finding that increased visitation would endanger the children’s physical health or impair their emotional development as required by Section 452.400, RSMo.2000. In Point III, she argues that there was insufficient evidence to support an implicit finding of physical endangerment or impairment of emotional development or that her activities had any adverse impact on the children, even if an explicit finding was not required by Section 452.400. For ease of discussion, we consider Points II and III together.

Mother claims that Section 452.400.1, RSMo.2000, requires an explicit finding that unsupervised visitation by her would endanger the children’s, health or emotional development and, in the absence of thereof, a judgment restricting visitation is in error. Section 452.400.1 reads in relevant part:

A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his or her emotional development.

In support of her claim in Point II Mother cites In re S.E.P. v. Petry, 35 S.W.3d 862 (Mo.App.2001). Petry states the rule from Section 452.400 requiring an expressed finding, of endangerment or impairment; however, it also recognizes the well-stated exception to the rule. Id. at 871. Quoting from Petry: “When the trial court fails to make an express finding of impairment or endangerment, an appellate court may in some instances infer such a finding....” Id. Generally, an appellate court is allowed to make such an implicit finding of impairment or endangerment if it is supported by the overwhelming weight of the evidence. Reding v. Reding, 836 S.W.2d 37, 42 (Mo.App.1992); Van Pelt v. Van Pelt, 824 S.W.2d 135, 137 (Mo.App.1992); J.L.S. v. D.K.S., 943 S.W.2d 766, 772 (Mo.App.1997); Buschardt v. Jones, 998 S.W.2d 791, 799 (Mo.App.1999). “This power is particularly appropriate [] where the trial court made a correct ruling which lacked the formal statutory requirements, and a remand to re-write the order would be an empty act.” Van Pelt, 824 S.W.2d at 137. In other words, if the overwhelming weight of the evidence supports a finding that unrestricted visitation by Mother could have an impairing or endangering affect on the children, then this court may imply such a finding.

Evidence was introduced from several witnesses regarding safety concerns of the children while in the care of Mother. Again, the GAL’s testimony is illuminating: “[E]ven though I’m concerned for the kids’ safety, I would think that short periods of unsupervised visitation with Kim Purdun, while that might not prevent her from drinking when she has them, it certainly would be easy to detect if she had.” The babysitter testified that she had no reservations about the safety of the children when in Father’s care, but she expressed concern for the girls’ safety when Mother had been drinking. At the time of the hearing and the custody award, by Mother’s own admission, she was still struggling with her alcohol addiction, which was the basis upon which the safety concern was founded. We find that the overwhelming weight of the evidence presented supports an implicit finding that Mother’s emotional and physical condition at the time of the hearing was such that unrestricted visitation with her could have an impairing or endangering affect on the children. This implicit finding eliminates the need for an explicit finding as such under Section 452.400.1. Points II and III are denied.

The judgment is affirmed.

JAMES M. SMART, JR., Presiding Judge, and LISA WHITE HARDWICK, Judge, concur.


author: KENNETH W. SHRUM, Judge. JOHN E. PARRISH, Presiding Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sammy COLLINS, Defendant-Appellant.
    No. 26535.
    Missouri Court of Appeals, Southern District.
    May 31, 2005.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, and Ronald S. Ribau-do, for respondent.
   KENNETH W. SHRUM, Judge.

A jury found Sammy Collins (“Defendant”) guilty of child molestation in the first degree (§ 566.067). He was sentenced to a term of twelve years’ imprisonment. Defendant urges reversal under the plain error standard, claiming the trial judge committed reversible error when he did not sua sponte exclude certain expert testimony. We hold that admission of the questioned evidence does not mandate reversal, either under the plain error standard or otherwise. Accordingly, we affirm.

FACTS

A.J.C. (“Victim”) was born March 20, 1992, to Defendant and Carolyn Jean Collins. Along with Victim’s brother (R.K.C.), the family resided together from 1995 to 2000. These children were removed from their parents’ custody in September 2000 after the Division of Family Services (“DFS”) found they were living in “filthy” and “deplorable” conditions.

By November 2000, Victim began telling authorities about sexual abuse inflicted on her while at her parents’ home. Early on, Victim was reticent and cryptic in her disclosures about what had happened and who was responsible. Her initial reluctance to talk about the abuse, followed by her later detailed accounts thereof (which implicated several persons) is recounted more fully below.

At this point, suffice it to say that by December 2000, Defendant was suspected of being one of Victim’s abusers. Because of that, he was asked to contact the Mountain View, Missouri, police department. Upon doing so, the interviewing officer first advised Defendant of his Miranda rights. Defendant then agreed to talk with the policeman about “the allegations ... against him by his daughter, referencing sexually abusing her.”

The officer’s at-trial testimony about the interview included the following:

“Q. [to officer] Did he initially just confess, or deny it in the beginning?
“Á. He denied it at first.
“Q. [D]id he just say he didn’t do it.
“A. Yes.
“Q. And what, if anything, did you say to him?
“A. I said to him, you know, all these years I’ve been doing this, I’ve never known a child in his daughter’s age group to he about such an allegation. I pointed out to him, it’s best to be truthful when you’ve made a mistake and own up to it, that he’s, you would be putting a lot of people through a lot of grief if you did this and tried denying it. At that particular point, he admitted to having molested his daughter.”

The officer then identified a written confession signed by Defendant. It read:

“During the summer of the year 2000 I touched my daughter’s breast and vagina in a sexual manner. I think it was less than 5 times, but I’m not sure of the number of times. These incidents happened in the bedroom of my home. These incidents happened at different times of the day or night. The details of these incidents are unknown to me at this time.”

Additional inculpatory testimony included this:

“Q. [to interviewing officer] [P]rior to filling out that statement and when [Defendant] started telling what he did, what was his demeanor?
A. He was what I would call repénta-tive [sic], he was crying and upset about what he had done and he said, ‘I’m obviously guilty and I’m sorry.’ ”

Victim’s at trial testimony, inter alia, was that Defendant “touched her [in the vaginal area;]” that he used “[h]is penis[ ]” to touch her; that this happened “more than once;” that at times Defendant went around the house naked; that usually Defendant’s penis was “pointing down” as he walked about naked, but was “pointing straight” when he used it to touch Victim. She further testified that the “touching” usually happened in Defendant’s bed, Defendant was “on top of [her],” and he [Defendant] “would stick his penis in my vagina.”

During Victim’s cross-examination, she denied Delbert Walker (an adult male baby-sitter) had ever “touched his private inside [her] private.” She also denied ever being at Delbert’s house and noticing “white stuff come out of [her] butt” when she went to the bathroom. Victim made these denials at trial, yet told counselors earlier that these things had occurred.

In a similar vein, during cross-examination, Victim denied having intercourse with her brother (R.K.C.), although in pre-trial interviews she said this had happened. Defense counsel’s efforts on re-cross to press Victim about these contradictory statements took this form:

“Q. [to Victim by defense counsel] Do you recall if I asked you [in a pre-trial interview] about whether ... you had sex with your brother?
“A. Yes.
“Q. What did you tell me?
“A. I told you that my dad made him ... do it with me.
“Q. Do it with you, you mean sexual intercourse with you?
“A. No.
“Q. What do you mean?
“A. He made me suck his dick.”

Other at-trial witnesses included child advocacy center employee Barbara Brown (“Brown”), Victim’s therapist Dr. Melissa Hagen (“Hagen”) (a psychologist), law enforcement personnel, and Leta Holh (a pediatric nurse who did a SAFE examination of Victim). Their testimony about interviews and examinations of Victim included the following. Walker (the babysitter) vaginally raped and anally sodomized Victim. As a result of Walker’s abuse, Victim was incontinent, i.e., “her anus was open, there was no skin folds there and there was just stool that was just seeping out constantly.” Moreover, these witnesses told the jury about Victim’s other claims of sexual abuse, i.e., allegations that Defendant abused her (including acts of sexual intercourse), R.KC. (Victim’s brother) abused her, and Victim’s mother was involved. From her interviews with Victim, witness Brown concluded Victim’s mother “was frequently aware of what was happening [and] often participated in what was happening, was in the same room and did some of the same types of things to her.”

The issue on appeal involves certain testimony by witnesses Brown (the child advocacy interviewer) and Dr. Hagen (Victim’s therapist). Specifically, Defendant claims there were five instances when the trial court should have interceded, sua sponte, and kept these witnesses from commenting on Victim’s credibility. This testimony and other related matters follow.

Brown first interviewed Victim on January 18, 2001. At that interview, Victim “alluded to a lot of bits and pieces of information.” Victim stated “that she had just gotten out of bed, was going ... between the bedroom and the bathroom ... and she didn’t have any clothes on so [Defendant] put his hands [on] her titties and her private part to cover her up from the other person’s view.” During that interview, Victim said nothing about, any type of penetration of her vagina.

Immediately after making this disclosure, Victim stated “she wasn’t ready to talk about it [the touching].” At trial, the prosecutor asked Brown if this was “common,” and Brown responded, “Oh yes, very.” The prosecutor also asked, “And the common thing is the - detraction?” Brown answered:

“Probably the most common thing we see is what we would call a syndrome called child abuse accommodation syndrome and the portion of that syndrome that I think [Victim] exhibited over and over again is the delayed unconvincing retracting disclosure. She would give little pieces of information through the process, she would give just a little bit, then she would back up, she would give a little more and then she would back up and that is not only common, we actually expect that of children.”

Brown’s “accommodation syndrome” testimony is part of what Defendant complains about on appeal.

■ On January 29, 2001, Brown conducted a second interview of Victim. At that point, Victim only implicated Defendant as follows: While swimming, Defendant “touched her private parts while they were in the water.” Essentially, Brown’s second interview of Victim “ended with not too much information than what we began with.” In recounting this interview, however, Brown was asked whether there were times that she intentionally misstated facts during the interview, and Brown responded affirmatively. When asked about Victim’s response to “misstated facts,” Brown testified:

“No, she corrected me, which is one of the hallmarks of credibility for kids. In fact one of the things that we do in the beginning and this is research based is if you tell kids ... Tou know, if I forget something or if I get something wrong, it’s your job to make sure I get it right’ and on several times during the ... interviews she corrected me or if I misstated something she would give me the correct or appropriate information.”

The “hallmark of credibility” comment by Brown is another part of Defendant’s claim of trial court error.

As Brown further talked about her second interview of Victim, she (Brown) said Victim told two other people of the abuse. Victim told a friend at school who told her that she should not be talking about such things “so that kind of shut her down.” Victim also told her brother that a friend of Defendant touched her, “but she said that she had really lied to [R.K.C.] because she didn’t want [him] telling her friends or other people [due to her fear] they wouldn’t be her friends.” When asked if this type of behavior was common among kids, Brown testified, “Very, very common.” This evidence is also part of what Defendant complains about on appeal.

On September 26, 2001, Brown interviewed Victim a third time. At that time, the only abuse disclosed by Victim was that committed by Walker.

Brown’s fourth and final interview of Victim occurred April 15, 2002. Brown stated at trial that they discussed allegations regarding Victim’s mother. Brown then told the jury:

“[Victim] said, and this was after, again, lots and lots of minimizing and distancing, she said, and this is a quote, ‘When my dad would sexually abuse me, Mom would rub her boobs in my face.’ She also talked about Mom threatened her to keep quiet and that they would tie her up with a yellow rope, that they had a rope cut in four pieces and they kept it under the bed.”

When asked to explain why the “yellow rope” comment was unique, Brown replied:

“She had some really good detail of that, that’s somewhat [sic] we call idiosyncratic detail, in other words kids of this age aren’t smart enough to make up stuff or stories that [are] going to sound really credible, they don’t know those are important pieces of information or evidence so we found that to be some credible idiosyncratic detail.”

Brown’s “idiosyncratic detail” comments are also part of what Defendant now complains about.

The final testimony at issue came from Dr. Melissa Hagen, Victim’s psychologist, who conducted over 150 sessions with Victim. In discussing the abuse allegations, Hagen testified that the descriptions of abuse became increasingly more specific over time. Hagen characterized this behavioral tendency to provide more detail as time passed as “extremely typical” because:

“discussing this type of issue is usually uncomfortable for most people, starting out with generalities and progressing to the more specifics tends to be what people will do to cope with something that is stressful, embarrassing, that they feel ashamed about, it’s also a safety issue and the progression will occur whenever a person feels less likely that they’re going to be harmed or hurt in some way if they make the disclosure.”

Hagen’s description of Victim’s behavior as “extremely typical” is the fifth and final basis of Defendant’s claim of trial court error.

At the trial’s conclusion, the jury was instructed that it was its duty “alone [to] decide upon the believability of the witnesses and the weight and value of the evidence.” Further, the jury was instructed that:

“In determining the believability of a witness ... you may take into consideration the witness’ manner while testifying; ... any interest, bias, or prejudice the witness may have; the reasonableness of the witness’ testimony considered in the light of all of the evidence in the case; and any other matter that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness.”

The jury convicted and this appeal followed.

DISCUSSION AND DECISION

Defendant’s only point on appeal urges reversal because the trial judge did not sua sponte preclude Brown and Hagen from testifying to what Defendant characterizes as “credibility assessments” of Victim. Defendant candidly admits that appellate review of his point is limited to the plain error standard because the testimony was admitted into evidence without objection or comment. The testimony at issue are those five instances pointed out extensively in the statement of facts.

Our review of Defendant’s claims is governed by the following principles. First and foremost, “[t]rial courts have broad discretion in determining the admissibility of evidence.” State v. Churchill, 98 S.W.3d 536, 538[1] (Mo.banc 2003). To constitute reversible error, a defendant must show prejudice, and reversal will only occur if the error was so prejudicial that it deprived the defendant of a fair trial. Id. at 538[2], “When determining the admissibility of opinion testimony, expert witnesses should not be allowed to give their opinion as to the veracity of another witness’s statement, because in so doing, they invade the province of the jury.” Id. at 538-39[3].

To be admissible, the probative value of an expert’s opinion testimony must outweigh its prejudicial effect. State v. Taylor, 663 S.W.2d 235, 240[8] (Mo.banc 1984). When a scientific expert testifies that a particular witness is telling the truth, prejudice often arises because the expert’s testimony invests scientific cachet to an issue (credibility) that the jury is capable of determining without an expert’s help. Id. at 240-41; State v. Williams, 858 S.W.2d 796, 798-800 (Mo.App.1993). Even so, credibility assessments of child abuse victims by expert witnesses in criminal cases do not always mandate reversal. Churchill, 98 S.W.3d at 539 n. 8.

PRONG “A” OF POINT I:. GENERAL PROFILE TESTIMONY

In considering Defendant’s point relied on, we group three of the testimonial excerpts about which Defendant complains together as “Prong A.” We do so because they have common characteristics that are dispositive of the alleged error. Specifically, we refer to (1) Brown’s testimony that Victim exhibited behavior consistent with child sexual abuse accommodation syndrome, (2) Brown’s testimony that Victim’s behavior was “very, very common among victims of sexual abuse,” and (3) Hagen’s testimony that Victim’s behavior was “extremely typical.”

In criminal cases involving sexual abuse of children charges, there are two types of expert testimony that typically give rise to a challenge: general and particularized. Churchill, 98 S.W.3d at 539. “General testimony describes a ‘generalization’ of behaviors and other characteristics commonly found in those who have been the victims of sexual abuse.” Id. at 539[4], Frequently labeled “general ‘profile’ testimony,” Williams, 858 S.W.2d at 798—99[11], trial courts are accorded great discretion in ruling such evidence admissible or non-admissible. Id. See also State v. Silvey, 894 S.W.2d 662, 671[8] (Mo.banc 1995) (holding no error in allowing social worker testimony that victim displayed behavioral indicators consistent with child sexual abuse); State v. Matthews, 37 S.W.3d 847, 850 (Mo.App.2001) (holding admissible expert testimony of two witnesses concerning characteristics and symptoms of victims of sexual abuse in general, and characteristics and symptoms seen in victim at issue).

In contrast, “[pjartieularized testimony is that testimony concerning a specific victim’s credibility as to whether they have been abused.” Churchill, 98 S.W.3d at 539. In most instances, particularized testimony, i.e., that which explicitly or implicitly vouches for a victim’s credibility is not admissible, whereas admission of general profile evidence is discretionary with the trial court. Williams, 858 S.W.2d at 799.

The “prong A” testimonial excerpts can be characterized as consistent with that reviewed in Silvey and Matthews. In none of the three instances did Brown or Hagen opine Victim suffered abuse at the hand of Defendant. Nor did their testimony directly or implicitly vouch for Victim’s credibility, or the credibility of abuse victims in general. We find such testimony was no more than “profile” evidence of the kind approved in Williams and Silvey. Accordingly, we hold no error resulted, plain or otherwise, from the jury hearing such evidence. State v. Tyra, 153 S.W.3d 341, 348-49 (Mo.App.2005). This part of Defendant’s point is denied.

PRONG “B” OF POINT I: IDIOSYNCRATIC DETAIL TESTIMONY

In this part of his point, Defendant alleges that testimony elicited from Brown concerning her fourth interview with Victim also constituted plain error. To recount, Victim stated that her mother threatened to tie her up with a yellow rope that was under the bed if Victim told anyone of the abuse. Brown characterized this as “credible idiosyncratic detail,” i.e., it was credible because children of this age normally do not possess the intelligence to “make up stuff or stories that [are] going to sound really credible.”

As stated previously, Defendant did not object to this evidence. We are persuaded, however, that the absence of an objection was part of Defendant’s overall trial strategy; consequently, we will not convict the trial court of error, plain or otherwise, for not sua sponte excluding this evidence. The reason for this is found in State v. Hamilton, 892 S.W.2d 774 (Mo.App.1995). There, in affirming convictions for rape and sodomy of children, this court said:

“If the trial court [sua sponte ] excluded the [expert’s] evidence [claimed on appeal to be too much vouching for the victim’s credibility], the accused could claim on appeal that the trial court improperly interfered by barring evidence which the accused consciously chose to allow the jury to hear, thereby requiring reversal. To state the scenario is to expose its potential for mischief.”

Id. at 781.

In concluding that defense counsel wanted the jury to hear Brown’s “idiosyncratic” testimony, we first note there was overwhelming physical evidence that Victim had been sexually abused. Consequently, it was important to the defense that it (1) show persons other than Defendant damaged Victim’s vagina and anus by penetration, (2) convince the jury that Victim’s statements impheating others as her abuser were credible, and (3) emphasize Brown’s testimony about her first two interviews with Victim in which Victim said Defendant had touched her, but never said Defendant did so in a sexual way or that he penetrated her vagina or anus.

In keeping with this strategy, defense counsel (during trial) repeatedly characterized Defendant’s “touchings” of Victim as “innocent.” To bolster the “innocent touching” defense, Defendant needed the jury to believe Victim told the truth in her initial two interviews with Brown. Under the circumstances, Brown’s “idiosyncratic detail” testimony supported Defendant’s trial strategy. This follows because in her initial two interviews, Victim provided no “idiosyncratic detail” about the touchings; the implication being that the touchings were not sexual abuse and nothing out of the ordinary occurred.

Our conclusion that Defendant consciously chose not to object to Brown’s “idiosyncratic” detail comment is bolstered by the following. Throughout the trial, Defendant focused on Victim’s account of abuse inflicted on her by Walker. In doing so, defense counsel hammered upon the fact that Victim gave explicit, detailed statements about the abuse Walker committed, but did not do so when talking about what Defendant did to her. This started in opening argument when, as defense counsel outlined anticipated evidence, he told the jury, inter alia, that Victim “would talk about after [Walker] would have sex with her she would poop and white stuff would come out of her butt.” Counsel then told the jury, “That’s about [Walker]. You’re not going to hear that same amount of detail regarding [Defendant].” (Emphasis supplied.)

Having thus outlined to the jury the anticipated contrast between Victim’s detailed account of Walker’s abuse and her less detailed account of what Defendant did to her, defense counsel was then able to use Brown’s “credible idiosyncratic detail” comments to support his defense strategy. For example, counsel asked Brown, “[Victim] also talked about [Walker] [putting] his private in her butt. By that we would call anal intercourse?” and she answered, “Correct.” Then, counsel asked about Victim’s statement regarding the “white stuff com[ing] out of her butt” and Brown responded that Victim did make that statement. Defense counsel then asked if this statement was “one of those idiosyncratic details that would go to support what she’s saying,” and Brown answered, “Yes.”

The first purpose of this cross-examination was to show Victim was being truthful when she talked about Walker. This served to impeach that part of Victim’s at-trial testimony denying Walker had sexual intercourse with her. It also bolstered the defense strategy of attacking Victim’s credibility generally, and in particular, arguing that Victim’s at-trial claim that Defendant “touched his penis” to her vagina was not credible.

A second reason why Defendant wanted the “idiosyncratic detail testimony” before the jury was to support the notion that Victim was truthful when describing sexual abuse only when she provided explicit details. The inference counsel wanted the jury to draw was that no sexual abuse occurred by Defendant because no details were provided, that is, Victim was truthful to the extent that the touchings were innocent. In keeping with this strategy, defense counsel’s closing argument included this:

“Let’s talk about this story that you heard. The story starts out as [Defendant] touched me to cover me, then it’s he touched me while we were swimming to now two years later it’s Dad had sexual intercourse with me a lot, abused me a lot.
“January of 2001, January 18th [Victim] meets [Brown], no, [Walker], no, [R.K.C.], [Walker] is the one she talks about with the most details, the white stuff coming out of her butt, that’s the one that abused her, that’s the one that shows the physical evidence.”

Essentially, this was the only strategy that might reasonably work because the physical evidence of abuse was undeniable. Consequently, it was reasonable for counsel to focus on the abuse committed by others to attempt to show that the physical harm to Victim was caused by persons other than Defendant. This is especially true when, as here, Victimas initial statements did not necessarily indicate criminal conduct by Defendant. Moreover, this strategy had even higher potential for success here since counsel could argue that Victim’s trial testimony had been inconsistent with her prior statements.

Because Defendant used Brown’s at-trial “idiosyncratic detail” comments to support his defense strategy, we will not convict the trial judge of error, plain or otherwise, for not sua sponte excluding such testimony. See State v. Valentine, 584 S.W.2d 92, 96-97 (Mo.banc 1979), overruled on other grounds by Sours v. State, 593 S.W.2d 208, 210 (Mo.banc 1980); Hamilton, 892 S.W.2d at 780-82; State v. Darris, 587 S.W.2d 89, 91 (Mo.App.1979). This prong of Defendant’s point is denied.

PRONG “C” OF POINT I: HALLMARK OF CREDIBILITY TESTIMONY

Witness Brown’s “hallmark of credibility” comment was made in the following factual context. In explaining to the jury her interview techniques and how she interviewed Victim, Brown recounted her intentional misstatement of facts to see how Victim reacted. She told the jury Victim usually corrected her misstatements. Brown stated that this penchant for correction was “one of the hallmarks of credibility for kids.” Under the circumstances, the comment does not mandate reversal.

First, the comment was not directed to Victim’s trial testimony nor to her overall credibility as a witness. It was merely a comment as to Brown’s ability to assess Victim’s believability in the story related to Brown. Thus, the testimony was admissible. Tyra, 153 S.W.3d at 349; State v. Cone, 3 S.W.3d 833, 843 (Mo.App.1999).

Second, the testimony actually bolstered Defendant’s trial strategy. In our discussion of Prong B, we recounted that strategy in detail. By allowing the jury to hear that Victim’s initial stories may have been credible, Brown’s testimony actually detracted from Victim’s direct, at-trial testimony that implicated Defendant. For the same reasons stated in Prong B, Defendant’s Prong C fails.

Finally, even assuming arguendo that the testimony was a comment on Victim’s credibility, any error in its admission was harmless. See Churchill, 98 S.W.3d at 539 n. 8. Here, the evidence showed beyond any reasonable doubt that Victim had been sexually abused. Victim claimed Defendant was responsible for some of this abuse. Defendant, via his confession, corroborated Victim’s claims. Other witnesses did the same. We are unsure what other evidence would be needed to make an overwhelming case of guilt. Further, the jury was specifically instructed that it was its duty alone to determine each witness’s credibility. Significantly, the questioned comment was brief. Moreover, the comment was neither emphasized nor repeated by the prosecution. We hold, therefore, that any error in allowing the jury to hear this evidence was harmless error. This prong of Defendant’s point is denied.

The judgment of conviction and sentence is affirmed.

PARRISH, P.J., concurs in result in separate opinion.

BARNEY, J., concurs.

JOHN E. PARRISH, Presiding Judge,

concurring.

I concur in the result reached. I respectfully suggest that since the issues discussed in the principal opinion were not preserved' for appellate review and are presented to this court as allegations of plain error, they do not warrant discussion other than that a review of the record with respect to the complaints appellant now makes discloses no manifest injustice or miscarriage of justice. State v. Nunley, 992 S.W.2d 892, 894-95 (Mo.App.1999). The evidence at trial strongly supports the guilty verdict rendered in the case. I concur in the decision to affirm.

      . The case was tried on a change of venue from Howell County. "A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.” § 566.067.1. The phrase "sexual contact” means "any touching of another person with the genitals or any touching of the genitals or- anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person.” § 566.010(3). Statutory references are to RSMo (2000), unless otherwise stated.


text:
    Beverly FIELDS, Appellant v. Byron P. GRISAMORE, Marjorie H. Grisamore, Trustee of the Byron P. Grisamore and Marjorie H. Grisamore Revocable Trust Dated September 20, 2000, Respondents.
    No. WD 64034.
    Missouri Court of Appeals, Western District.
    May 31, 2005.
    John L. Young, Princeton, MO, for appellant.
    David P. Macoubrie, Chillicothe, MO, for respondents.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

The trial court granted Beverly Fields a private road of strict necessity by which to access her land-locked property. Fields appealed because the court did not grant her requested route. Affirmed. Rule 84.16(b)