author: PER CURIAM.

text:
    Phyllis JOHNSON, Plaintiff-Appellant, v. Eugene BROWN, d/b/a Best Roofing, Defendant-Respondent.
    No. 26180.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 26, 2005.

      Richard D. Crites, Springfield, for appellant.
    No Appearance for respondent.
    (Before GARRISON, P.J., PREWITT, J„ and RAHMEYER, J.).
   PER CURIAM.

The Circuit Court of Taney County granted Eugene Brown, d/b/a Best Roofing’s (“Respondent”) motion pursuant to Rule 74.06 for relief from a judgment entered in favor of Phyllis Johnson (“Appellant”). Finding her appeal to have merit, we reverse.

Appellant contracted with Respondent to replace the roof on her home, for which she paid $5,355 when the work was completed on August 27, 1999. In October 2000, Appellant returned from a trip and found substantial damage resulting from water coming through the ceiling of one of her rooms. After several unsuccessful efforts by Appellant to get Respondent to fix the leaking roof, Appellant hired Rick Holt (“Holt”) in January 2001 to put another new roof on her home, for which she paid him $10,000. Appellant has had no leakage problems since Holt completed his work.

Appellant filed a five-count petition for damages against Respondent, the first two counts alleging that Respondent intentionally misrepresented to Appellant the costs of the labor and materials to repair the roof, the third count alleging a violation of Section 407.020, the fourth alleging that Respondent intentionally misrepresented to Appellant that he would complete the work on her home in a workmanlike manner, and the fifth count alleging a breach of contract. Respondent counterclaimed for malicious prosecution. Appellant’s motion for summary judgment, alleging that Respondent’s claim for malicious prosecution was without merit, was granted by the trial court. Appellant elected to proceed on Count IV of the petition and trial by the court was held on October 15, 2003. On October 21, 2003, the trial court entered judgment in favor of Appellant in the amount of $15,355.

On November 24, 2003, Respondent filed a “Motion for New Trial/Motion to Reconsider” claiming that the judgment was against the weight of the evidence. The trial court then amended the original judgment on December 23, 2003, changing the amount of the judgment to $10,000. Appellant filed a “Motion to Vacate and Set Aside Order and Reinstate Judgment” on January 8, 2004, alleging that the trial court was without jurisdiction to amend the judgment because more than thirty days had passed between the trial court’s entry of judgment and its amended judgment. On January 22, 2004, the trial court sustained Appellant’s motion and set aside its amended judgment of December 23, 2003. On January 23, 2004, Respondent filed a motion for relief from a judgment pursuant to Rule 74.06(a) and (b), alleging that the amount of the judgment should be changed to $10,000. The trial court sustained Respondent’s motion on March 10, 2004, amending the original judgment amount to $10,000. This appeal followed.

Respondent’s motion for relief from a judgment, pursuant to Rule 74.06(a) and, (b), alleged only:

1. Rule 74.06 permits relief at any time from clerical mistakes in Judgments.
2. Rule 74.06(b) permits the court to grant the [sic] relief from Judgments based on mistake, inadvertence, or excusable neglect.
3. The proper amount of Judgment in the above-captioned case is $10,-000[ ]. To allow otherwise would allow a double collection for [Appellant].

The motion was not verified, nor was it supported by affidavits. Furthermore, though the record shows that a hearing was held on the motion, there is nothing in the record to indicate that testimony was given or evidence received.

We will not interfere with the trial court’s decision to vacate a judgment “unless the record convincingly demonstrates an abuse of discretion.” Clark v. Clark, 926 S.W.2d 123, 126 (Mo.App. W.D.1996). Here, the trial court did not specify whether it sustained Respondent’s motion for relief from a judgment based on Rule 74.06(a) or (b). We find this to be analogous to a situation where the trial court does not specify its grounds for granting an order of dismissal or summary judgment. In those situations, we presume that the trial court based its decision on the grounds presented in the motion for dismissal or summary judgment. See Central Missouri Elec. Co-op. v. Balke, 119 S.W.3d 627, 635 (Mo.App. W.D.2003); Auld v. Adler, 96 S.W.3d 920, 923 (Mo.App. W.D.2003). Appellant addresses both Rule 74.06(a) and Rule 74.06(b) in her four points on appeal.

In points I and II, Appellant claims that the trial court erred in sustaining Respondent’s motion for relief from the judgment under both subsections (a) and (b) of Rule 74.06 in that it was not supported by affidavits or sworn testimony setting forth the grounds upon which the motion should be granted. Though Appellant contends that her argument in points I and II pertains to both subsections (a) and (b) of Rule 74.06, she only cites authority relating to Rule 74.06(b). In point IV, she claims that the trial court erred in sustaining the motion under Rule 74.06(b) in that the motion failed to set forth facts demonstrating mistake, inadvertence, or excusable neglect as to either a party or the trial court. We will address points I, II, and IV together as those points relate to Rule 74.06(b).

Rule 74.06(b) provides, in pertinent part, that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect[.]” However, a party seeking relief from a judgment under Rule 74.06(b) has certain other requirements that must be met. “A motion to set aside a judgment cannot prove itself.” Dallas-Johnson Properties, Inc. v. Hubbard, 823 S.W.2d 5, 6 (Mo.App. E.D.1991); see also Clark, 926 S.W.2d at 127. There must be competent evidence to establish mistake, inadvertence, or excusable neglect. Gibson v. White, 904 S.W.2d 22, 26 (Mo.App. W.D.1995). “If the motion contains sufficient allegations of fact for its support, the motion thus must be verified, or supported by affidavits or sworn testimony produced at the hearing on the motion.” Dallas-Johnson Properties, Inc., 823 S.W.2d at 6.

The only allegations of Respondent’s motion relating to the grounds for relief stated in Rule 74.06(b) are “Rule 74.06(b) permits the Court to grant the [sic] relief from Judgments based on mistake, inadvertence, or excusable neglect” and “[t]he proper amount of Judgment in the above-captioned case is $10,000. To allow otherwise would allow a double collection for [Appellant].” There are no allegations in the motion of facts which could legally support a finding of mistake, inadvertence, or excusable neglect. The petition was not verified, nor were any affidavits provided to evidence any such facts. Furthermore, there is nothing in the record here suggesting that mistake, inadvertence, or- excusable neglect was present.

Appellant argues that it is possible that Respondent, when he stated in his motion that the proper amount of the judgment was $10,000 and “[t]o allow otherwise would allow a double collection for [Appellant],” could be alleging a mistake, inadvertence or excusable neglect on the part of the trial court. She claims that Respondent cannot prevail on such an allegation but cites no specific authority for this argument, only stating that a common theme throughout the cases cited in her brief dealing with Rule 74.06(a) and (b) is that the rule allows the trial court to review for mistakes of a party and not the trial court. Even if we were to accept Appellant’s blanket statement, Respondent’s motion does not provide any evidence or facts upon which we could find mistake, inadvertence or excusable neglect on the part of anyone, including the trial court. We therefore need not address Appellant’s claim that a motion under Rule 74.06 can never be used to allow the trial court to correct its own mistake, inadvertence or excusable neglect. We do note, however, that Rule 74.06 does not serve as an alternative to a timely appeal, Love v. Board of Police Com’rs, 943 S.W.2d 862, 863 (Mo.App. E.D.1997), and that “[a] mistake of law does not constitute grounds to set aside a judgment under Rule 74.06(b).” Gibson, 904 S.W.2d at 25. We find, therefore, that there is no competent evidence on which Respondent’s motion is based, and the trial court abused .its discretion by sustaining Respondent’s motion under Rule 74.06(b). Appellant’s points I, II, and IV have merit.

Appellant addresses Rule 74.06(a) in point III and asserts that the trial court erred in sustaining Respondent’s motion under that rule because the record is devoid of any indication that a clerical mistake had been made or that judgment had been entered due to oversight or omission. Rule 74.06(a) provides that when there is a clerical mistake in a judgment, it may be corrected by the trial court at any time on its own initiative or by the motion of any party. This rule is the modern codification of the trial court’s power to grant an order nunc pro tunc to correct clerical mistakes. In re Marriage of McIntosh, 126 S.W.3d 407, 412-413 (Mo.App. S.D.2004); Pirtle v. Cook, 956 S.W.2d 235, 241 (Mo. banc 1997). An order nunc pro tunc merely causes “the record to conform to the true judicial determination of the parties’ rights” by correcting a clerical error. Pirtle, 956 S.W.2d at 243. Furthermore, it “must be supported by some entry, minute or notation in the record” and parol evidence will not provide this support. Miller v. Varity Corp., 922 S.W.2d 821, 824 (Mo.App. E.D.1996). “Clerical errors do not include judicial errors and the rule may not be used to enter a judgment different from that judgment actually made even if the judgment made was not the judgment intended.” Hassler v. State, 789 S.W.2d 132, 133-34 (Mo.App. E.D.1990).

The trial court’s order sustaining Respondent’s motion under Rule 74.06(a) was an improper use of an order nunc pro tunc. The bare statements in the motion that “Rule 74.06 permits relief at any time from clerical mistakes in Judgments” and “[t]he proper amount of Judgment in the above-captioned case is $10,000. To allow otherwise would allow a double collection for [Appellant]” provide no indication as to whether a clerical mistake was actually made or as to where the record evidences such a mistake. Furthermore, a review of the record on appeal shows that it is devoid of any entry indicating that the proper amount of the judgment was $10,000 and not $15,355. The proper method for making such an amendment would have been an amendment to the judgment under Rule 75.01. However, this method was attempted in the case and the trial court set aside its amended judgment because it was without jurisdiction to make such an amendment. There is nothing in the record to support any conclusion other than that this was an improper use of an order nunc pro tunc. Therefore, we find that the trial court abused its discretion in granting Respondent’s motion for relief from judgment on the basis of Rule 74.06(a). Appellant’s point III also has merit.

The trial court’s judgment sustaining Respondent’s motion for relief from a judgment is reversed with orders to reinstate the original judgment amount of $15,355.

      . All rule references are to Missouri Rules of Civil Procedure (2003) unless otherwise speci-fled.

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

      . But see Baldwin v. Baldwin, 109 S.W.3d 247, 249 (Mo.App. S.D.2003) (stating, "This court may not speculate as to the grounds on which a trial court bases its ruling.”). This case involved ambiguous findings in a dissolution case where a statute required a basis for the determination of the trial court. Id. We ordered it remanded to the trial court for clarification. Id. Here, it is clear from the trial court's judgment that it based its ruling on Rule 74.06, but it is unclear on which subsection it relied. We find this to be specific enough for us to examine both subsections (a) and (b).


source: Caselaw Access Project

author: KENNETH W. SHRUM, Judge.

license: Public Domain

text:
    In the Interest of E.K., Minor. D.K., Appellant, v. Jasper County Juvenile Office and Division of Social Services, Children’s Division, Respondent.
    No. 26243.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 27, 2005.
    Sherrie Hansen, Hansen Law Office, L.L.C., Janice Lynne Durbin, Anderson, for appellant.
    Joseph L. Hensley, Joplin, for respondent.
   KENNETH W. SHRUM, Judge.

D.K. (Father) appeals from a judgment entered by the juvenile court of Jasper County, Missouri. The challenged judgment was entered at the disposition stage of a case involving E.K. (Father’s minor daughter). Months before the disposition hearing, the court ruled it had jurisdiction over E.K. pursuant to section 211.031.1(l)(a).

As part of the disposition judgment, the court ruled that the best interests of E.K. would be served by placing her in the care and custody of the Children’s Division of the Missouri Department of Social Services (DSS). Additionally, the court ordered that E.K. should remain in her current placement and that DSS should “cease reasonable efforts with the natural parents and change[] the case goal to adoption.” Because the juvenile court failed to make statutorily mandated findings, we remand the case to the juvenile court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 8, 2001, the Jasper County juvenile officer filed a petition alleging that Father sexually abused E.K. On that same day, the juvenile officer filed an application for protective custody, requesting that E.K. be placed in the temporary care and custody of DSS. Thereafter, DSS placed E.K. in the care of her maternal grand parents.

Before the judgment of disposition was entered, several hearings were conducted. During those hearings, various witnesses gave testimonial accounts of the investigation that followed after the abuse allegations surfaced against Father. In part, the witnesses described their interviews and conversations with E.K. in which she described how she was abused, i.e., that Father had penetrated her vagina and anus with his finger. Moreover, at an April 2004 hearing, E.K. testified that she never wanted to see Father again. Father generally denied the allegations of sexual abuse. The juvenile court, however, apparently disbelieved this evidence, as was its prerogative. In re K.A.W., 133 S.W.3d 1, 23 (Mo.banc 2004).

Early in the case (but after hearing some of the abuse testimony), the juvenile court entered a finding of jurisdiction. That document provided, inter alia, “[n]ow on this 12th day of September, 2003 the court finds jurisdiction in that juvenile comes within the provisions of section 211.031, subdivision 1, subsection 1, sub-paragraph (a), RSMo.” After several other hearings, the court entered the judgment of disposition which is reproduced, in pertinent part, as follows:

“Court hears testimony. The court finds it would be contrary to the welfare of the minor child to be returned to the parent at this time.
“It is therefore ORDERED and ADJUDGED in the best interest of said juvenile that said juvenile be placed in the care and custody of [DSS] in her current placement. The court further orders [DSS] to cease reasonable efforts with the natural parents and changes the case goal to adoption.”

Father then timely filed this appeal.

DISCUSSION AND DECISION

Father’s first point maintains that the juvenile court erred in “assuming jurisdiction and entering an order of disposition” because it failed to make the findings mandated by section 211.181 and section 211.183. We agree.

A juvenile court shall have exclusive original jurisdiction over a child who is a resident of or found within the county and who is alleged to be in need of care and treatment because his or her parents neglect or refuse to provide proper support or other care. § 211.031.1(l)(a). When a court finds that a child falls within the parameters of section 211.031.1(1), “the court shall so decree and make a finding of fact upon which it exercises jurisdiction over the child.” § 211.181.1.

In court proceedings where a child is removed from his or her home, a court’s order shall include a finding of whether DSS has made reasonable efforts to prevent removal, or after removal, whether reasonable efforts were made for the child to return home. § 211.183.1. In support of its reasonable efforts determination, “the court shall enter findings, including a brief description of what preventative or reunification efforts were made and why further efforts could or could not have prevented or shortened the separation of the family.” § 211.183.3. In such cases, the court shall also make the following findings:

“(1) State whether removal of the child is necessary to protect the child and the reasons therefor;
“(2) Describe the services available to the family before removal of the child, including in-home services;
“(3) Describe the efforts made to provide those services relevant to the needs of the family before the removal of the child;
“(4) State why efforts made to provide family services described did not prevent removal of the child; and
“(5) State whether efforts made to prevent removal of the child were reasonable, based upon the needs of the family and child.”

§ 211.183.5(1-5).

Here, the juvenile court made none of the requisite findings, although an abundance of evidence was presented why E.K. should be removed from Father’s care and custody (sexual abuse) and why no further efforts could aid Father (refusal to admit any wrongdoing or seek treatment for his problems). In eonclusory fashion, the judgment of disposition found E.K.’s best interests required her to be placed in the custody of DSS. Likewise, the judgment merely recited that DSS was to cease reasonable efforts. The failure to make the mandatory statutory findings requires this court to remand the case so that the juvenile court may enter a judgment complying with the dictates of the law. In re N.B., 64 S.W.3d at 913-14; In Interest of T.B., 936 S.W.2d 913, 916 (Mo.App.1997); In Interest of K.L.B., 898 S.W.2d 696, 700-02 (Mo.App.1995).

Upon remand, the court shall enter a judgment complying with section 211.181, section 211.183, Rule 119.06, and Rule 128.18. Further, the court may consider additional evidence on remand. See T.B., 936 S.W.2d 913; K.L.B., 898 S.W.2d 696.

Given our ruling on Father’s first point, we decline to address his second point on appeal. The point alleges that the juvenile court’s finding of jurisdiction and judgment of disposition are unsupported by clear, cogent, and convincing evidence. Because additional evidence may be received upon remand, any decision by this court regarding the sufficiency of the evidence would be premature. See Id. at 702-03. Moreover, because the juvenile court’s findings were entirely eonclusory, we do not believe any meaningful appellate review could be conducted without the requisite findings in the record. See, e.g., State ex rel. T.J.H. v. Bills, 504 S.W.2d 76, 81-82 (Mo.banc 1974); In re Marriage of Hoff, 134 S.W.3d 116, 117 (Mo.App.2004); State ex rel. Laclede Gas Co. v. Pub. Serv. Comm’n, 103 S.W.3d 813, 818-19 (Mo.App.2003); Berlin v. Pickett, 100 S.W.3d 163, 167-68 (Mo.App.2003); and Mader v. Rawlings Sporting Goods, Inc., 73 S.W.3d 83, 84-85 (Mo.App.2002).

The case is remanded to the juvenile court for further proceedings consistent with this opinion.

PARRISH, P. J., and BARNEY, J., concur.

      . This is an appealable judgment per section 211.261, RSMo (2000). See In re N.B., 64 S.W.3d 907, 913 (Mo.App.2002).

      . Herein, the statutory references to sections 211.031 and 211.181 are to RSMo Cum.Supp. (2003). All other statutory references are to RSMo (2000).

      . The juvenile court did not find that "the first contact with the family occurred during an emergency” situation. § 211.183.1. Thus, the statute requires the court to make the findings of fact enumerated therein. See § 211.183.1 and § 211.183.7.

      . Because we are remanding the case for the juvenile court to enter a judgment that contains the mandatory findings, the court should also consider amending its finding of jurisdiction to comply with Rules 119.02(a)(7)(B) and 128.17.


author: JEFFREY W. BATES, Chief Judge.

text:
    In re the MARRIAGE OF Teresa A. HARRIS and Duane W. Harris, Teresa A. Harris, Petitioner-Respondent, v. Duane W. Harris, Respondent-Appellant.
    No. 26027.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 28, 2005.
    Edward D. Hoertel, Rolla, MO, for appellant.
    Daniel P. Card II, Jefferson City, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

The judgment dissolving the marriage of Duane Harris (“Father”) and Teresa Harris (“Mother”) awarded each of them joint legal and physical custody of their daughter, Brittany Harris (“Brittany”). Father appeals from the judgment and argues that reversal is required for two reasons: (1) the trial court erred by actually awarding physical custody of Brittany to Mother’s parents, who were not parties to this proceeding; and (2) the trial court erred in not granting Father sole physical custody because Mother has denied visitation, she has deficient morals and mental health, and Father is a suitable physical custodian. We conclude that the trial court did not err in either respect and affirm its judgment.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). Lee v. Hiler, 141 S.W.3d 517, 520 (Mo.App.2004). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Walters v. Walters, 113 S.W.3d 214, 217 (Mo.App.2003). In assessing the sufficiency of the evidence, we examine the evidence and the reasonable inferences derived therefrom in the light most favorable to the judgment. In re McIntire, 33 S.W.3d 565, 568 (Mo.App.2000). When there is conflicting evidence, it is within the trial court’s discretion to determine the credibility of the witnesses, and accept or reject all, part, or none of the testimony it hears. In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App.2001). We defer to the trial court’s assessment of witnesses’ credibility and accept the trial court’s resolution of conflicting evidence. K.J.B. v. C.A.B., 883 S.W.2d 117, 121-22 (Mo.App.1994). Because a trial court is vested with considerable discretion in determining custody questions, an appellate court should not overturn the trial court’s findings unless they are manifestly erroneous and the child’s welfare compels a different result. In re C.N.H., 998 S.W.2d 553, 557 (Mo.App.1999). ‘We will not substitute our judgment for that of the trial court so long as credible evidence supports the trial court’s beliefs.” A.B.C. v. C.L.C., 968 S.W.2d 214, 219 (Mo.App.1998). We presume the trial court awarded custody in the child’s best interests based upon the court’s superior ability to assess the credibility of the witnesses, along with their character, sincerity, and other intangibles not completely revealed by the record. In re Marriage of Sisk, 937 S.W.2d 727, 730 (Mo.App.1996); Baker v. Baker, 923 S.W.2d 346, 347 (Mo.App.1996). Greater deference is given to a trial court’s decision in matters involving child custody than in any other type of case. In re D.M.S., 96 S.W.3d 167, 171 (Mo.App.2003).

II. Facts and Procedural History

The case was tried in September 2003. A summary of the favorable testimony supporting the judgment is set forth below.

Father and Mother were married in Phelps County, Missouri, in 1988. That same year, they moved to Jefferson City, Missouri. Their only child, Brittany, was born in 1993. Father is a union sheet metal worker. Mother became a school teacher in 1997 and was employed by the public school system in California, Missouri. She earned a Master’s degree in school administration in 2000. Brittany attended a public school kindergarten; thereafter, she attended only Christian schools.

Father drank every day, and his drinking became excessive during the latter stages of the marriage. Father also had a violent temper and often subjected Mother to physical and mental abuse after coming home and drinking. Father’s physical violence included placing Mother in a choke-hold and attempting to push her over a stairway banister, while Brittany and her maternal grandmother were watching, because Father was upset about money he thought Mother had stolen from him. Father also threatened to pound Mother into the ground with his fists and bury her in his parents’ back yard. For a time, Father slept with a gun beside his bed. On two occasions, Mother was forced to leave the family home because of Father’s abusive behavior. The first time, Mother spent the night at a motel with Brittany and Brent, Mother’s child from another relationship. On another occasion, Mother spent one and a half weeks in a shelter for abused women. As a result, Father began disabling Mother’s automobile so she couldn’t leave home to avoid arguing with him.

When Father was being physically and mentally abusive to Mother, she took the children and locked them in another bedroom at the family home. She stayed awake all night because she was afraid of what Father might do. In 2001, Mother locked herself and Brittany in a bedroom to get away from Father. Father broke down the door, which missed Brittany’s head by inches as it was falling, because Mother refused to continue arguing with him.

As a result of this last incident, Father and Mother separated in June 2001. Father continued to reside in Jefferson City. Mother and Brittany moved back to Rolla to live with Mother’s parents, Larry and Wanda Thornhill (“the Thornhills”). Brittany attended school at the Northgate Christian Academy in Rolla. Mother was hired as a teacher in the Rolla public school system.

In June 2002, Mother filed a petition for legal separation in the Circuit Court of Phelps County, Missouri. In Mother’s proposed parenting plan, she sought sole legal and physical custody of Brittany. Father filed an answer and a counter-petition requesting a dissolution of their marriage. In his proposed parenting plan, he requested that the parties be awarded joint legal and joint physical custody of Brittany. His alternating parenting plan proposed that Brittany: (1) spend every other week with Father in Jefferson City and attend Beacon Christian Academy while in Father’s custody; and (2) spend every other week with Mother in Rolla and attend Northgate Christian Academy while in Mother’s custody. A week before trial, however, Father submitted a revised parenting plan requesting primary physical custody of Brittany.

For the first year after the parties separated, there were several occasions when Father had no contact with Brittany. For example, after Father’s Day in 2001, he did not visit or telephone Brittany for six weeks. Father did not establish a pattern of regular visitation with Brittany until after Mother obtained an ex parte order of protection against Father that permitted periods of supervised visitation. Thereafter, Father did regularly exercise his visitation rights. This included overnight visits, weekend visitation and a two-week period of visitation during the summer at Father’s home in Jefferson City.

Mother encouraged Brittany to visit her Father, but the parties experienced problems with visitation on three occasions. The first time, Brittany was sick with strep throat. The second time, Father’s visitation time was reduced — with his acquiescence — from seven days to two days during the 2003 spring break so Brittany could take a trip to Branson, Missouri, with her grandparents. On each of these occasions, Mother attempted to reschedule make-up visitation. Her efforts were unsuccessful because Father was unwilling to take Brittany at the alternate times proposed. He told Mother that it did not fit into his schedule. On the weekend after spring break, however, Father came to Rolla unannounced to pick Brittany up for a weekend of make-up visitation. When Mother refused to turn Brittany over to Father, he summoned the police. The police declined to intervene, and Father was not permitted to take Brittany for the weekend.

In July 2003, Mother quit teaching in order to pursue a Ph.D. degree in Psychology at Indiana State University (“ISU”) in Terre Haute, Indiana. Mother commuted from Rolla to Terre Haute to attend college. At the time of trial in September 2003, she was taking three classes each week at ISU: one on Mondays and two on Wednesdays. Mother left Rolla on Sunday evening and returned on Wednesday evening each week when school was in session. While in Terre Haute, she stayed in a small apartment she rented by the week. When Mother was attending school, her parents took care of Brittany. As of September 2003, Mother had three semesters of class work left on her Ph.D. program. At the conclusion of her class work, she intended to do her internship and write her dissertation in Missouri.

After healing testimony from Mother and Father in the courtroom, the trial judge questioned Brittany in chambers outside the presence of her parents. Brittany was nine years old at the time of trial. She was a 4th grader at Northgate Christian Academy in Rolla. Brittany described school as “fun” and liked learning and making good grades. She had been on the honor roll since starting school in Rolla as a second-grader. Brittany liked living with the Thornhills “very much.” When Mother was attending school in Indiana, she did not see Brittany as often. Brittany did occasionally stay with Mother at the apartment in Terra Haute. The judge elicited the following testimony from Brittany concerning Mother’s absences from home to attend school:

Q. Okay. Do you miss your mom when she’s in Indiana when she’s up there at school and you’re not with her?
A. Yes.
Q. Do you miss your dad when you’re not with him?
A. No.
Q. Do you wish you could spend more time with your dad?
A. No.
Q. Do you wish you could spend the same amount of time with your dad?
A. Yes.

Brittany also testified that she often saw Father drink beer when she was with him. During the two-week summer visitation in 2003, Brittany spent several nights attending a local carnival with Father. Each night, Father drank “quite a few” beers. More than once, Father drove Brittany home after he had been drinking at the carnival.

At the close of all the evidence, the trial court stated:

It is obvious to me that both of you love Brittany. Brittany’s in the courtroom. I’m not going to recite what the evidence is. There are things that concern me that I’ve heard as to both sides, anCS I have related a little bit of that before we took our lunch break. Basically what I have to do is just like everybody else, I have to deal with the evidence before me and make the decision. I can’t make things better or worse; they’re what they are. The attorneys cannot make' things better or worse. Things are what they are and the evidence is what it is, and I’ll make the best decision as to the — as to Brittany that I can in her best interest. Not in Mr. Harris’ or Ms. Harris’ best interest, but what I think is best for Brittany.

In the Final Judgment and Decree of Dissolution of Marriage, the court made the following finding:

That it is in the best interest of the minor child Brittany Lee Harris that the parties be awarded both joint legal custody and joint physical of the minor child pursuant to the parenting plan, which is attached hereto as Exhibit A, and incorporated herein by this reference. That it is in the best interests of the minor child of the parties to have a continuing relationship with both parties. That visitation should be ordered pursuant to the parenting plan.

The trial court drafted its own parenting plan, which awarded Father temporary custody and visitation at “all reasonable times and places” and included, at a minimum, the following parenting time for Father: alternating weekends; two three-week periods each summer; Father’s Day; and alternating holidays. This appeal ensued.

III. Discussion and Decision

In Father’s first point, he claims the trial court effectively granted custody to Mother’s parents, the Thornhills, because they take care of Brittany while Mother is attending classes at ISU. Father argues this was error because the maternal grandparents were not made parties as required by § 452.375.5(5)(a). We disagree.

We decided this same issue adversely to Father’s position in the case of In re C.N.H., 998 S.W.2d 553 (Mo.App.1999). There, the trial court awarded custody of the couple’s daughter to the father. Mother was awarded visitation. Because of the parents’ work schedules, the trial court recognized that the paternal grandmother would be the “primary caregiver” for the child. Id. at 559. On appeal, mother argued that the grandmother had to be made a party in order to comply with the requirements of § 452.375.5(5)(a). We found the argument unpersuasive:

Mother’s argument suffers from a single, fatal flaw. The trial court did not award Clydean Pailette custody of Daughter.... [T]he trial court ordered “[t]hat Mother and Father have joint legal custody of the minor child, but that primary physical custody shall be transferred to Father with Mother to have temporary custody and visitation.” By this order, the trial court clearly awarded primary physical custody of Daughter to Father — not Clydean. The fact that the trial court’s award may result in Clydean providing a significant portion of Daughter’s care is not tantamount to granting Clydean custody of Daughter.

Id. We adhere to our ruling in C.N.H. Section 452.375.5(5)(a) has no application here because the trial court did not award third-party custody of Brittany to the Thornhills. Father’s first point is denied.

In Father’s second point, he contends the trial court erred in not granting Father sole physical custody because Mother has denied visitation, she has defi-dent morals and mental health, and Father is a suitable physical custodian. We treat this contention as an attack upon the sufficiency of the evidence to support the trial court’s decision to award Father and Mother joint legal and physical custody of Brittany.

Father’s argument proceeds upon the implicit assumption that both the trial court and this Court are required to accept as true all of the evidence which Father presented below. Such an argument ignores the applicable standard of review, which we are duty-bound to follow. The evidence presented at trial was in sharp dispute, and it was up to the trial court to decide what evidence to believe. When evidence on an issue is disputed, or when there is contradictory evidence, an appellate court defers to the trial court’s credibility determinations. Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App.1999); Hankins v. Hankins, 920 S.W.2d 182, 188 (Mo.App.1996).

The evidence favorable to the judgment demonstrated that Mother did not deny Father visitation on numerous occasions, as he contends. Rather, there had only been three instances of problems with visitation. Mother explained the reason for each such occurrence and testified that she offered to reschedule the missed visitation, but it did not fit into Father’s schedule. Father’s complaint that Mother’s morals and mental health are deficient is equally unavailing. This argument is based on Father’s assertion that Mother is addicted to alcohol and prescription drugs and is in denial. Once again, the evidence favorable to the judgment is what we consider in reviewing this point. Mother admitted that she had a substance abuse problem before Brittany was born, but Mother received treatment for this problem during a 30-day stay at a rehabilitation center in 1991. Mother testified that, after she got out of rehabilitation, she no longer drank or abused any type of prescription medication and had been sober for over 12 years. Finally, Father’s claim that he is the more suitable person to have physical custody ignores all of evidence concerning Father’s excessive drinking, violent temper, physical and mental abuse of Mother, and inappi’opriate behavior in the presence of his daughter. While Father may choose to ignore this evidence because it is inconsistent with the arguments he presents on appeal, we are not permitted to do so. The trial court committed no error in denying Father’s request for sole physical custody of Brittany because the court was not required to believe Father’s evidence in deciding the issue of custody. Father’s second point is denied.

The court’s decision to grant joint legal and physical custody to Father and Mother is supported by substantial evidence. Therefore, we affirm its judgment.

SHRUM and BARNEY, JJ., concur.

      . All references to rules are to the Missouri Rules of Civil Procedure (2004).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . It took three and one-half hours to complete the 242-mile trip.

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

      . In C.N.H., the joinder requirement of the third-party custody provision of this statute was formerly found in 452.375.5(3)(a).


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Derrick Ray SMITH, Appellant.
    No. WD 63409.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.

      Adrianne Crouse, Jefferson City, MO, for Respondent.
    Rosemary Ellen Percival, Kansas City, MO, for Appellant.
    Before: SMITH, C.J., SPINDEN and SMART, JJ.
   EDWIN H. SMITH, Chief Judge.

Derrick R. Smith appeals the judgment of his convictions, after a jury trial in the Circuit Court of Lafayette County, of first-degree robbery, § 569.020, and armed criminal action (ACA), § 571.015. As a result of his convictions, he was sentenced, as a prior and persistent offender, § 558.016, to concurrent terms, in the Missouri Department of Corrections, of life imprisonment for first-degree robbery and fifty years for ACA.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in overruling his Batson objection to the State’s peremptory strike of the only remaining African-American member of the venire because: (1) as to one of the State’s two explanations for the strike, the only conclusion that could be drawn from the record was that it was pretextual; and, (2) as to the State’s other explanation for the strike, it was not race-neutral on its face. In Point II, he claims that the trial court plainly erred in the reading and giving of Instruction No. 1, which was patterned after MAI-CR 3d 302.01, the mandatory instruction concerning the duties of the judge and jury in a criminal trial, because it did not include the material in parentheses, as set forth in MAI-CR 3d 302.01, instructing the jurors concerning their note-taking during the trial, which, in accordance with Note on Use 4 for MAI-CR 3d 302.01, is required to be included in Instruction No. 1 if juror note-taking is authorized by the trial court, as it was in this case.

We reverse and remand.

Facts

On September 30, 2002, the appellant was indicted, as a prior and persistent offender, § 558.016, by a Lafayette County grand jury for first-degree robbery, § 569.020, and ACA, § 571.015. He was charged with robbing, at gunpoint, Harold’s Supermarket in Lexington, Missouri, on August 21, 2002.

The appellant’s case proceeded to a jury trial on August 27, 2003. During voir dire, the State exercised one of its peremptory strikes on Wayne Bass, the only remaining African-American member of the venire. The appellant objected, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court overruled the appellant’s objection.

The jury was empanelled and sworn. It was then read MAI-CR 3d 300.06; Instruction No. 1, MAI CR-3d 302.01, concerning the duties of the judge and jury; and, Instruction No. 2, MAI-CR 3d 302.02, concerning evidence and the rulings of the trial court. Instruction No. 1 did not contain any language concerning juror note-taking. The parties then made their opening statements, after which the record indicates that the trial court, sua sponte, raised the issue of note-taking with counsel. Note-taking was eventually approved by the trial court.

On August 28, 2003, the jury found the appellant guilty of the charged offenses. On September 19, 2003, he filed a motion for judgment of acquittal or in the alternative, for a new trial, alleging, inter alia, that the trial court erred in overruling his Batson objection to the State’s striking of Bass. The court denied the motion on October 6, 2003, and, on that same date sentenced the appellant, as a prior and persistent offender, to concurrent terms of life imprisonment for first-degree robbery and fifty years for ACA.

This appeal followed.

I.

Because we find that the claim of error in Point II is dispositive of this appeal, we address it alone.

In Point II, the appellant claims that the trial court plainly erred in the reading and giving of Instruction No. 1, which was patterned after MAI-CR 3d 302.01, the mandatory instruction concerning the duties of the judge and jury in a criminal trial. He claims that the trial court erred because Instruction No. 1 did not include the material in parentheses, as set forth in MAI-CR 3d 302.01, instructing the jurors concerning their note-taking during the trial, which, in accordance with Note on Use 4 for MAI-CR 3d 302.01, is required to be included in Instruction No. 1 if juror note-taking is authorized by the trial court, as it was in this case.

The appellant concedes that he did not properly preserve his claim of instructional error for appellate review in that he failed to object at trial to the reading and giving of Instruction No. 1 and did not raise the issue in his motion for new trial. See Rule 28.03; State v. Bradshaw, 26 S.W.3d 461, 471 (Mo.App.2000). He, therefore, asks for plain error review under Rule 30.20.

Rule 30.20 provides, in pertinent part, that “[wjhether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom.” The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant’s claim substantial grounds exist for believing that the trial court committed clear and obvious error, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). “Plain” error, for purposes of Rule 30.20, is error that is evident, obvious and clear, and results in manifest injustice or a miscarriage of justice. State v. Hibler, 21 S.W.3d 87, 96 (Mo.App.2000).

If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious and clear. Id. As in the case of our review for “regular” error, not every obvious error found in plain error review mandates reversal. State v. Barnaby, 91 S.W.3d 221, 225 (Mo.App.2002). In the case of review for “regular” error, to be reversible, the found error must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002). Likewise, in the case of review for plain error, the error found must have prejudiced the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.

To succeed on this point, the appellant has the burden of proving that the alleged instructional error resulted in manifest injustice or a miscarriage of justice. Id. Instructional error, even if clear and obvious, is rarely found to result in manifest injustice or a miscarriage of justice requiring reversal for plain error. State v. Roe, 6 S.W.3d 411, 415 (Mo.App.1999). In the context of instructional error, plain error requiring reversal results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury’s verdict. State v. Deck, 994 S.W.2d 527, 540 (Mo. banc 1999). Because it appears on the face of the appellant’s claim in Point II that substantial grounds exist for believing that the trial court committed evident, obvious and clear error, resulting in manifest injustice and a miscarriage of justice to the appellant, in failing to include in Instruction No. 1, in accordance with MAI-CR 3d 302.01, the requisite information concerning juror note-taking, we will review the appellant’s claim in Point II for plain error.

When addressing alleged instructional error, we begin with the proposition that if there is an MAI-CR instruction made applicable by the law or the applicable Notes on Use, the trial court is required to instruct the jury in accordance with that instruction. Rule 28.02(c). The failure to give an instruction in accordance with an MAI-CR or any applicable Notes on Use is error, the prejudicial effect to be judicially determined. Rule 28.02(f); State v. Barnaby, 91 S.W.3d at 225.

Note on Use 2 for MAI-CR 3d 302.01, requires that MAI-CR 3d 302.01 is to be Instruction No. 1; is to be read immediately following MAI-CR 3d 300.06; and is not to be re-read at the conclusion of the evidence, but is to be given to the jurors with the other written instructions for their use during deliberations. There is no dispute that in our case Instruction No. 1 was not read or given to the jury in accordance with MAI-CR 3d 302.01. Note on Use 4 for MAI-CR 3d 302.01 mandates that the following language be included in Instruction No. 1 if the trial court allows the jurors to take notes:

Each of you may take notes in this case but you are not required to do so. I will give you notebooks. Any notes you take must be in those notebooks only. You may not take any notes out of the courtroom before the case is submitted to you for your deliberations. No one will read your notes while you are out of the courtroom. If you choose to take notes, remember that note-taking may interfere with your ability to observe the evidence and witnesses as they are presented.
Do not discuss or share your notes with anyone until you begin your deliberations. During deliberations, if you choose to do so, you may use your notes and discuss them with other jurors. Notes taken during trial are not evidence. You should not assume that your notes, or those of other jurors, are more accurate than your own recollection or the recollection of other jurors.
After you reach your verdict, your notes will collected and destroyed. No one will be allowed to read them.

“If jurors are allowed to take notes, MAI-CR 3d 302.01 requires the trial court to both read an instruction and include a written instruction regarding notetaking.” State v. Williams, 97 S.W.3d 462, 472 (Mo. banc 2003). Despite the fact that the jurors, here, were allowed to take notes, Instruction No. 1, as read and given to the jury, did not include this mandatory language or, for that matter, any language concerning juror note-taking. Thus, there is no question that the trial court clearly and obviously erred in not instructing the jury in Instruction No. 1 on note-taking, as mandated by MAI-CR 3d 302.01. The question is whether manifest injustice or a miscarriage of justice occurred to the appellant as a result.

In State v. Williams, the Missouri Supreme Court was confronted with the issue of whether the trial court’s failure to include the mandatory note-taking language of MAI-CR 3d 302.01 in its written instructions was plain error. 97 S.W.3d at 472. There the trial court, after the reading of MAI3d 300.06 and the swearing of the jury, read the mandatory note-taking language of MAI-CR 3d 302.01, as part of Instruction No. 1. Id. However, it failed to include this language in its written instructions. Id. The Court found that the trial court’s failure to include the mandatory note-taking language in its written instructions was not plain error because “[b]y reading the appropriate instruction, the trial court provided the jury with sufficient guidance regarding the proper role of notetaking.” Id. (emphasis added). The Court was not required to and did not decide whether it would be plain error for the trial court to include the mandated note-taking language in its written instructions, but fail to read it to the jury as part of Instruction No. 1, or whether it would be plain error for the court not to read the note-taking language as part of Instruction No. 1 or include it in its written instructions.

Here, although conceding that, unlike in Williams, the trial court neither read to the jury the mandatory note-taking language of MAI-CR 3d 30.201, nor included it in its written instructions, the State nonetheless contends that the jury was given sufficient guidance regarding the proper role of note-taking such that manifest injustice or a miscarriage of justice did not result to the appellant. In support of its contention, the State asserts in its brief that the “majority of the information imparted in [the note-taking paragraphs of MAI-CR 3d 302.01] were [sic] at one point or another given to the jury.” In that regard, it points to various oral statements of the trial court to the jury concerning note-taking and the giving of other mandated instructions, as providing the functional equivalent of the mandatory note-taking language. Thus, the question for us, in determining whether the trial court plainly erred in failing to instruct the jury on note-taking in accordance with MAI-CR 3d 302.01, is whether the jury, despite the court’s failure to comply with Note on Use 4 for MAI-CR 3d 302.01, was nonetheless given “sufficient guidance regarding the proper role of notetaking”?

As to note-taking, MAI-CR 3d 302.01 initially requires that the jury be instructed by the trial court, in Instruction No. 1, that: “Each of you may take notes in this case but you are not required to do so. I will give you notebooks. Any notes you take must be in those notebooks only.” The State contends that although not done in accordance with MAI-CR 3d 302.01, the equivalent of this information was given to the jury by the trial court, immediately after opening statements, pointing to pages 130-131 of the trial transcript, which read, in pertinent part:

THE COURT: Are you wanting to take notes? How many jurors want to take notes?
JUROR: We will get the secretary’s notes?
THE COURT: No, you won’t. Everything she’s taking down you will not get.
JUROR: Then I would like to take notes.
THE COURT: Let me talk with the attorneys for a second and we’ll see what we can do.
(Counsel approached the bench and the following discussion was held)
(The proceedings returned to open court.)
THE COURT: Everybody has to take one. You don’t have to use it, but everybody will have to take one.
(At this time notebooks were handed to each member of the jury panel.)
THE COURT: Ladies and gentlemen, you’re free to use the notepads if you wish. If we just allow one person or two persons, then everybody has to have access to the same type of notepad.

This language would seem to indicate, as the State suggests, that the jurors were informed that they could, but were not required, to take notes on the notebooks provided by the trial court. However, this language does not indicate, as required by MAI-CR 3d 802.01, that any notes they took had to “be in those notebooks only”.

MAI-CR 3d 302.01 next requires, as to note-taking, that the jury be instructed by the trial court, in Instruction No. 1, that:

You may not take any notes out of the courtroom before the case is submitted to you for your deliberations. No one will read your notes while you are out of the courtroom. If you choose to take notes, remember that note-taking may interfere with your ability to observe the evidence and witnesses as they are presented.

Again the State concedes that the jury was not instructed in Instruction No. 1 concerning this information in accordance with MAI-CR 3d 302.01, however, it contends that the functional equivalent was nonetheless provided to the jury, pointing to page 309 of the trial transcript, which reads, in pertinent part:

[At the close of the first day of trial:]
THE COURT: ...
Ladies and gentlemen, we will recess for the evening and ask that you be back so we can begin at 9:00 o’clock.
Before I let you, I need to read to you the recess instruction again.
(MAI-CR 3d 300.04 instruction was read to the jury by the Court.)
THE COURT: With that, ladies and gentlemen, we will be in recess until 9 a.m. tomorrow. I do want to try and start at that time, so if you can be here around quarter till.
I need you to leave your notes up here as you’re leaving, and we will get them returned to you. Go ahead and close your notepad if you’ve used it. Close it. We won’t look at it. But you will get the notepad returned to you tomorrow.

This information would seem to suggest, as the State contends, that the jurors were advised by the trial court, as required by MAI-CR 3d 302.01, that they could not take their notes out of the courtroom before the case was submitted for their deliberations and that no one would read them while they were out of the courtroom. However, there is nothing in this information that would inform the jurors, as required by MAI-CR 3d 302.01, that if they chose to take notes it might “interfere with [their] ability to observe the evidence and witnesses as they are presented.”

As to the remaining information that is required by MAI-CR 3d 302.01 to be conveyed to the jurors concerning note-taking:

Do not discuss or share your notes with anyone until you begin your deliberations. During deliberations, if you choose to do so, you may use your notes and discuss them with other jurors. Notes taken during trial are not evidence. You should not assume that your notes, or those of other jurors, are more accurate than your own recollection or the recollection of other jurors.
After you reach your verdict, your notes will be collected and destroyed. No one will be allowed to read them.;

the State concedes that the jury was not instructed as required by MAI-CR 3d 302.01, but contends that the functional equivalent was provided by the trial court’s reading of MAI-CR 3d 300.04, MAI-CR 3d 302.02, MAI-CR 3d 302.05 and MAI-CR 3d 302.06, and its informing the jurors, just after dismissing the alternate and prior to their retiring for deliberations:

THE COURT: Then I’m going to hand the instructions to the bailiff and let the bailiff take the other 12 back to the jury room to begin their deliberations. They can take the notebooks back. Is that satisfactory with both counsel?
MR. BELLAMY: Yes, Your Honor[J
MR. ALLEN: Yes.
THE COURT: Once the trial is over, they need to be returned to the bailiff and we will take care of destroying them.

This information appears to instruct the jurors, as required by MAI CR 3d 302.01, that they could have their notes during their deliberations and that they have to be returned to the bailiff for destruction, after reaching their verdict. It did not, however, inform them of the remaining required information. The State contends that this is satisfied by the reading of MAI-CR 3d 300.04, MAI-CR 3d 302.02, MAI-CR 3d 302.05 and MAI-CR 3d 302.06.

The State contends that the reading of MAI-CR 3d 300.04, as required, informed the jurors, as mandated, that they could “not discuss or share [their] notes with anyone until [they] beg[a]n [their] deliberations.” MAI-CR 3d 300.04.1 requires the trial court to read at the first recess and adjournment of court:

It is the Court’s duty to instruct you now upon a matter about which you will be reminded at each recess or adjournment of Court. Until this case is given to you to decide, you must not discuss any subject connected with the trial among yourselves, or form or express any opinion about it, and, until you are discharged as jurors, you must not talk with others about the case, or permit them to discuss it with you or in your hearing (or read, view, or listen to any newspaper, radio, or television report of the trial).
The bailiff and other officers of the Court are not permitted to talk to you about any subject connected with the trial, and you are not permitted to talk to them about it.
The attorneys representing the state and the defendant are under a duty not to do anything that may even seem improper. Therefore, at recesses and adjournments they will avoid saying anything to the jury except, perhaps, something like “Good morning” or Good afternoon.” In doing that they do not mean to be unfriendly, but are simply doing their best to avoid even an appearance, that might be misunderstood, that they or you are doing anything improper.
The same applies to witnesses and to the defendant(s). They have been or will be instructed to avoid all contacts with the jury, even to talk about matters wholly unrelated to the case.

MAI-CR 3d 300.04.2 requires the trial court to read at subsequent recesses or adjournments:

The Court again reminds you of what you were told at the first recess of the Court. Until you retire to consider your verdict, you must not discuss this case among yourselves or with others, or permit anyone to discuss it in your hearing. You should not form or express any opinion about the case until it is finally given to you to decide. (Do not read, view, or listen to any newspaper, radio, or television report of the trial.)

The record reflects that the trial court, at the first and subsequent recesses and adjournments of the court, read the appropriate version of MAI-CR 3d 300.04, as required. In our view, while it might be arguable, as the State contends, that the jurors would have interpreted the admonition of MAI-CR 3d 300.04, not to discuss the ease among themselves before deliberations, as including the discussion of their notes, it is unreasonable to suggest that the jurors would have also interpreted it as an admonition not to also physically “share” their notes, prior to deliberations, which is required by MAI-CR 3d 302.01.

As to the remaining required information concerning note-taking, the State contends, in its brief, that the reading of MAI-CR 3d 302.02, 302.05, and 302.06 at the end of the trial sufficiently advised the jurors that “they could use their notes and discuss them with other jurors [and] that they should not assume that their notes or those of other jurors are more accurate than their own recollection or that of others;” and that “argument and statements of counsel, questions, objections and discussion by the court and counsel are not evidence.” MAI-CR 3d 302.02, governing “Evidence and Rulings of the Court,” is to be given in every case as Instruction No. 2 and is to be read immediately following MAI-CR 3d 302.01. MAI-CR 3d 302.02 reads:

You must not assume as true any fact solely because it is included in or suggested by a question asked a witness. A question is not evidence, and may be considered only as it supplies meaning to the answer.
From time to time the attorneys may make objections. They have a right to do so and are only doing them duty as they see it. You should draw no inference from the fact that an objection has been made.
If the Court sustains an objection to a question, you will disregard the entire question and you should not speculate as to what the answer of the witness might have been. The same applies to exhibits offered but not excluded from the evidence after an objection has been sustained. You will also disregard any answer or other matter which the Court directs you not to consider and anything which the Court orders stricken from the record.
The opening statements of attorneys are not evidence. Also, you must not consider as evidence any statement or remark or argument by any of the attorneys addressed to another attorney or to the Court. However, the attorneys may enter into agreements or stipulations of fact. These agreements and stipulations become part of the evidence and are not to be considered by you as such.

(Emphasis added.) MAI-CR 302.05 is required to be given in every case and is to be read immediately prior to the last instruction, MAI-CR 3d 302.06. Note on Use 2, MAI-CR 3d 302.05. MAI-CR 3d 302.05 reads, in pertinent part: ‘You will then discuss the case with your fellow jurors. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.” MAI-CR 3d 302.06 is to be given in every case and is the last instruction to be read to the jury before it retires for its deliberations. Note on Use 2, MAI-CR 3d 302.06. MAI-CR 3d 302.06 reads, in pertinent part:

The attorneys will now have the opportunity of arguing the case to you. Their arguments are intended to help you in understanding the evidence and applying the law, but they are not evidence.
You will bear in mind that it is your duty to be governed in your deliberations by the evidence as you remember it, the reasonable inferences which you believe should be drawn therefrom, and the law as given in these instructions.
It is your duty, and yours alone, to render such verdict under the law and the evidence as in your reason and conscience is true and just.

The State contends that the reading and giving of MAI-CR 3d 302.05, that each juror should discuss the case with his fellow jurors before deciding the case, was the equivalent of advising the jurors, as required by MAI-CR 3d 302.01, that they could, if they chose, discuss their notes during deliberations. The State also contends that the admonition of MAI-CR 3d 302.06, that each juror should be governed, during deliberations, by the evidence as he remembered it, was the equivalent of advising the jurors, as required by MAI-CR 3d 302.01, that each juror should not assume that his notes, or the notes of other jurors, were more accurate than his own or the notes of the other jurors. And, finally, the State contends that the admonitions of MAI-CR 3d 302.02 and MAI-CR 3d 302.06 that questions of counsel; opening statements of counsel; statements, remarks, or arguments of counsel; or closing arguments of counsel are not to be considered evidence is the equivalent of advising the jurors, as required by MAI-CR 3d 302.01, that their notes were not evidence.

It is at least arguable that the giving of MAI-CR 3d 302.05, coupled with the trial court’s oral instruction that the jurors could have them notebooks during deliberations, would have caused the jurors to believe that it was permissible for them to discuss their notes during deliberations, of which they were required to be advised by MAI-CR 3d 302.01. However, it is a stretch to believe that in advising the jurors, in MAI-CR 3d 302.06, that they were to decide the case based on the evidence as they remembered it, was the equivalent of advising them that in their deliberations, they “should not assume that [their] notes, or those of other jurors, are more accurate than [their] own recollection or the recollection of other jurors.” It is even a greater stretch to believe that the admonitions of MAI-CR 302.02 and 302.06, that the questions of counsel; opening statements of counsel; statements, remarks, or arguments of counsel; or closing arguments of counsel are not to be considered evidence were the equivalent of advising the jurors, as required by MAI-CR 3d 302.01, that their notes were not evidence.

The Missouri Supreme Court, in mandating, in Note on Use 4 for MAI-CR 3d 302.01, that the note-taking language be included in Instruction No. 1, obviously believed that there was potential for abuse from note-taking by jurors, unless they were given guidance as to the proper role of note-taking in the trial of a case and that the existing mandatory instructions were not sufficient to provide that guidance. Most notably there would have been concern for the fact that jurors might abdicate their responsibilities to listen to and observe the evidence, and to remember the evidence individually, choosing instead to rely on their own notes or the notes of other jurors. And, in mandating that the note-taking information be read to the jurors at the commencement of the trial, it is also obvious that the Court believed that it was vital that jurors were made aware of this information from the beginning. For example, included in the mandated note-taking language is a warning to the jurors that should they choose to take notes they should be aware of the fact that it might interfere with their ability to listen to the evidence and observe the witnesses. This warning would not only serve as an aid to the jurors in making an informed decision with respect to taking notes, but would serve as a necessary reminder to those who chose to take notes to minimize the resulting distraction so they would not be abdicating their responsibilities as jurors to listen to the evidence and observe the witnesses. This warning would be useless, unless given at the beginning of trial, as mandated by MAI-CR 3d 302.01.

Here, even considering the oral instructions of the trial court concerning note-taking and the giving of MAI-CR 3d 300.04, 302.01, 302.02, 302.05, 302.06, the jurors were not given all the information mandated by MAI-CR 3d 302.01 concerning note-taking. They were not informed, as mandated, that: (1) “[a]ny notes [they] take must be in those notebooks only”; (2) “[i]f [they] cho[ ]se to take notes, remember that note-taking may interfere with [their] ability to observe the evidence and witnesses as they are presented”; (3) “[they were] not [to] discuss or share [their] notes with anyone until [they] beg[a]n [their] deliberations”; (4) “[n]otes taken during trial are not evidence”; and, (5) “[they] should not assume that [their] notes, or those of other jurors, are more accurate than [their] own recollection or the recollection of other jurors.” In addition, the information the jury did receive concerning note-taking was provided in piecemeal fashion throughout the course of the trial, thereby de-emphasizing its importance. Moreover, a portion of the information touted by the State as providing the equivalent of the mandatory note-taking language was not provided at the outset of the trial, as the Court clearly intended. For these reasons, we find that the omissions by the trial court in instructing the jury on note-taking, as mandated by Note on Use 4 for MAI-CR 3d 302.01, were significant and resulted in the jury’s not receiving “sufficient guidance regarding the proper role of notetaking” such that the court committed plain error, requiring reversal for a new trial. See State v. Houston, 139 S.W.3d 223, 230 (Mo.App.2004) (explaining that the proper remedy is to reverse and remand for a new trial where the reversal is based on trial error rather than insufficient evidence).

Conclusion

The judgment of the appellant’s convictions of first-degree robbery, § 569.020, and ACA, § 571.015, are reversed and the case is remanded for a new trial.

SPINDEN and SMART, JJ., concur.

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

      . All rule references are to the Missouri Rules of Criminal Procedure, 2004, unless otherwise indicated.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Kristina TOWELL, Petitioner-Respondent, v. Ray STEGER, Respondent-Appellant.
    No. 26371.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 1, 2005.

      Albert C. Lowes, Cape Girardeau, for Appellant.
    Kristina Towell, Marble Hill, pro se.
   NANCY STEFFEN RAHMEYER, Judge.

Ray Steger (“Appellant”) appeals from a judgment granting a full order of protection, brought pursuant to the Adult Abuse Act, sections 455.010 through 455.085, by Kristina Towell (“Respondent”). Appellant claims the judgment is not supported by substantial evidence. We agree and reverse.

Section 455.020 provides relief for (1) any adult who has been subject to abuse by a present or former adult family or household member, or (2) any adult who has been a victim of stalking. It is undisputed that Respondent and Appellant were never family or household members as defined by section 455.010(5). Therefore, the action was brought pursuant to the “stalking” provision of the act.

‘Stalking’ is when an adult purposely and repeatedly harasses or follows with the intent of harassing another adult. As used in this subdivision, ‘harasses’ means to engage in a course of conduct directed at a specific adult that serves no legitimate purpose, that would cause a reasonable adult to suffer substantial emotional distress. As used in this subdivision, ‘course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’

Section 455.010(10).

Harassment is established when the evidence reveals that the alleged harasser has engaged in a course of conduct that is directed at the alleged victim, serves no legitimate purpose, and would cause a reasonable person to suffer substantial emotional distress. The course of conduct that must be established is a series of acts, over a period of time (no matter how short), that demonstrate a continuity of purpose. Wallace v. Van Pelt, 969 S.W.2d 380, 384 (Mo.App. W.D.1998). Substantial emotional distress has been defined as conduct that brings about a significantly higher level of emotional distress than is routinely experienced in daily life, but which is not so severe that the average person finds it unendurable. Leaverton v. Lasica, 101 S.W.3d 908, 911 (Mo.App. S.D.2003). Conduct that merely causes alarm or distress to the victim does not qualify as harassment if it would not cause substantial emotional distress to a reasonable person. Id.

Unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law, we will sustain the trial court’s order. Id. at 910-11. Substantial evidence has been defined as competent evidence from which the trier of fact could reasonably decide the case. Wallace, 969 S.W.2d at 382. Although the order of protection is not pursuant to any criminal statute, a violation of the order of protection is a criminal violation. See section 455.085. It is, of course, Respondent’s burden to produce credible evidence to support her allegations. Trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection. Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App. E.D.2003). We find that Respondent failed to provide any evidence at all of fear of substantial emotional distress and failed to produce substantial, credible evidence that Appellant purposely and repeatedly harassed or followed her with no legitimate purpose.

We now set out the relevant contacts between Appellant and Respondent. Appellant did not testify; the evidence came in by way of the court questioning Respondent and through cross-examination. Respondent testified that approximately a year or more prior to the request for an order of protection, Appellant came into the store where Respondent was working and would “continuously flirt with [her] really bad” and “grab [her] on the butt.” Respondent claimed Appellant would tell her “how redheads are great lovers” and it just “creeped” her out. Clearly, nothing in these allegations comes close to the “stalking” definition, nor indicates any substantial emotional distress.

Appellant and Respondent had no contact for three months because Respondent moved to the State of Georgia. Upon her return, she saw Appellant when he came into her work place and said, “Oh, I seen you. I figured I’d stop in.” Respondent thought nothing of the meeting. In fact, later that same day, Appellant waved her down on a public street and told her he wanted her to come to his house for a drink and he would be a “perfect gentleman.” She responded, “Sorry, I’m married.” The conversation continued with Appellant requesting information about buying the maple syrup that Respondent sold. Respondent, claiming she treated him just like a customer, like everyone in town, borrowed a pen from Appellant and showed him her prized pet dog. She directed Appellant to the person she thought had the maple syrup and Appellant went to that business owner to purchase the syrup. Again, nothing in these conversations comes close to any definition of stalking or a claim of substantial emotional distress.

The final allegation of Respondent is that Appellant has been on the county road that leads to her driveway. Her testimony indicated that she frequented the variety store where she used to work, Ross’s Minit Mart, where Appellant “goes in there and gets alcohol all the time.” When Respondent visited the store, she would be told by workers that Appellant had just been there. Sometimes, when she drove home, Appellant would be “sitting down there by [her] drive” or before her driveway. Respondent also claimed she was told that Appellant was on that road during the daytime. Respondent admitted that she lives a quarter of a mile off the county road and that Appellant has never been up the driveway to her house. On one evening, Respondent, while driving home at night, came upon Appellant, who had pulled over, away from a low-water bridge; Respondent “flew past” Appellant, who did not follow her. He never made any threats to her and she never told him to leave her alone or that she found his behavior offensive. There was absolutely no testimony that Respondent suffered emotional distress, much less substantial emotional distress, over the incidents of seeing Appellant on the public roadway.

We are troubled by the trial court’s finding that the evidence in this case meets the definition of a course of conduct that serves “no legitimate purpose.” To find a “course of conduct” to have no legitimate purpose, we must find that the actions were not sanctioned by law or custom, were not lawful, or allowed. Wallace, 969 S.W.2d at 385. The Full Order of Protection ordered Appellant not to abuse, threaten to abuse, molest, stalk or disturb the peace of Respondent wherever Respondent may be found and specifically named Ross’s Minit Mart. There is no evidence of any stalking, harassment or abuse at Ross’s Minit Mart and yet Appellant is banned by this order from frequenting his “regular” commercial establishment lest he encounter Respondent. It is unclear from the evidence where Appellant lives, but there does appear to be some evidence in an exhibit that Appellant may live off the county road where he had been seen driving. The mere traveling on a county road, under the facts of this case, does not supply a course of conduct that serves no legitimate purpose.

We are mindful that although the Adult Abuse Act does not itself impose criminal penalties, there are serious consequences to orders of protection being entered. Under the Federal Gun Control Act, 18 U.S.C. 922(g)(8), a person under an order of protection may not possess a firearm, even for recreational purposes. Therefore, Appellant may violate federal laws if he possesses hunting weapons or legitimately hunts. The mere possession of firearms while under an order of protection violates 18 U.S.C. 922(g)(8). U.S. v. Lippman, 369 F.3d 1039 (8th Cir.2004). The penalty provisions do not require knowledge of the law nor intent to violate it. Id. at 1043. Another consequence to the entry of an order of protection is that persons in the military or law enforcement, who become subject to an order of protection, may lose their livelihood. Furthermore, the real and significant harm from the abuse of the stalking provision of the Adult Abuse Act is the stigma that attaches by virtue of a person found to be a stalker. Wallace, 969 S.W.2d at 387; see also Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App.E.D.2003). In fact, a background search is now conducted on any foster parent applicant, including all persons in their household over the age of seventeen, for evidence of full orders of protection. See section 210.487.

Thus, trial courts must balance the dire, quasi-criminal consequences to the accused with the laudatory purpose of preventing potential violence and unnecessary and unjustified infliction of emotional distress. See Wallace, 969 S.W.2d at 387. Stalking statutes should be construed narrowly enough to prevent serious abuse, but broadly enough to maximize victim protection. Id.

We find the order granting a full order of protection is not supported by substantial evidence and is, therefore, reversed. The cause is remanded to the trial court with instructions to vacate the full order of protection.

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

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

      . Appellant also notes that there was an error on the Full Order of Protection granted by the court in that the judgment was signed on July 2, 2004, and yet was effective until July 1, 2004. Appellant acknowledges this to be a "scrivener's error” and seeks a resolution only on the merits of the grant of the full Order of Protection.

      . "Family” or “household member” includes spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, and adults who have a child in common regardless of whether they have been married or have resided together at any time.

      .In 2004, the legislature changed the definition of stalking to "when an adult purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct.” Section 455.010(10) RSMo 2004. The course of conduct is further defined as a "pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact.” Furthermore, "repeated” means two or more incidents evidencing a continuity of purpose and “alarm” means to cause fear of danger of physical harm. The legislation was effective August 28, 2004; however, the order that is the subject of this appeal occurred on July 2, 2004.

      . See Wallace, 969 S.W.2d at 387 (trial court must exercise great vigilance to prevent abuse of the stalking provisions in the Adult Abuse Act to make sure sufficient credible evidence exists to support all elements of the statute).

      . The testimony is not clear whether Appellant tried to grab Respondent on the butt or actually did so. Respondent's Petition claimed Appellant had "tried to grab [her] butt” and at one point in the hearing she also testified, "he doesn't need to be trying to grab me on the butt.” For the purpose of our analysis, we will assume Appellant actually did so.

      . Although not in effect at the time of this order, we are persuaded of the legislature's recent amendment that any actionable harm be substantial harm in that the course of conduct must cause alarm which is defined as "fear of danger of physical harm.” Section 455.010(10)(c) RSMo 2004.

      . We do not ignore the testimony of Respondent that, after the petition for the order of protection was filed, Respondent’s husband and Appellant may have had a physical altercation involving the use of weapons; however, Respondent was not present to witness the altercation and the altercation does not come within a complaint that Respondent was stalked. There are certainly readily available criminal laws if Appellant is at fault for a physical confrontation with Respondent’s husband.