text:
    Bogdon and Helen HIBLOVIC, Plaintiffs/Respondents/Cross-Appellants, v. CINCO-T.C., INC., Defendant/Appellant/Cross-Respondent.
    No. ED 84513.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Joseph Vincent Keady Jr., Clayton, MO, for Appellant.
    Ray A Gerritzen, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and KATHIANNE KNAUP CRANE, J.
   SHERRI B. SULLIVAN, J.

Cinco-T.C., Inc. (Appellant) appeals from the trial court’s amended judgment entered in favor of Bogdon and Helen Hiblovie (Respondents) in part. Respondents cross-appeal from the amended judgment entered in favor of Appellant in part. We reverse in part and affirm in part.

Factual and Procedural Background

The parties entered into a contract for the sale of a residential lot and construction of a house by Appellant. The sale was to close after completion of the house, and the contract stated that the house shall be “deemed completed at such time that it is ready for occupancy.” On April 28, 1997, St. Louis County issued its occupancy permit deeming the house ready for occupancy. The contract required Respondents to close even if certain items remained incomplete, so long as they did not “prevent comfortable occupancy” of the house. The house was ready for comfortable occupancy at the time of the scheduled closing on May 1,1997.

During the course of construction, Respondents noticed cracks in the foundation and reported to Appellant that the foundation had “failed.” Appellant allowed Respondents to inspect the foundation with an engineer hired by their attorney. Respondents wanted to rescind the contract. Appellant offered a settlement of the claim whereby if Respondents did not rescind the contract because of the alleged failed foundation, Respondents would receive an additional warranty on the foundation and a retaining wall at no charge. Respondents accepted the offer and negotiated language for the warranty. Appellant provided the negotiated warranty and constructed the retaining wall at no charge. Respondents participated in finishing construction of the house by requesting revisions to the plans and selecting particular color patterns and floor coverings.

Nevertheless, Respondents refused to close and informed Appellant of their intent to rescind the contract. Respondents’ first amended petition requested rescission of the contract for the following reasons: (1) problems with the foundation of the house; (2) the house was ten feet further back from the street than platted; (3) poor construction of the retaining wall in the backyard; and (4) the lot was improperly graded. In addition to its answer and affirmative defenses, Appellant filed a counterclaim alleging breach of contract because Respondents refused to close.

Prior to the initial trial, the trial court granted Appellant’s motion for summary judgment regarding the alleged problems with the foundation wall. After trial, the trial court ruled in favor of Appellant on (1) the placement of the house in relation to the street; (2) the construction of the retaining wall; (3) the grading of the lot; and (4) whether Respondents were required to close.

Respondents appealed and challenged all of the trial court’s findings including the summary judgment. Respondents alleged in part that the trial court erred in failing to grant judgment for Respondents because Appellant agreed to construct the retaining wall at the rear of the property, but failed to do so prior to May 1, 1997 closing date.

We reversed the trial court’s summary judgment because we found that a genuine dispute of fact existed as to whether Appellant had built an adequate retaining wall. Hiblovic v. Cinco-T.C., Inc., 40 S.W.3d 921, 924 (Mo.App. E.D.2001). We found, however, that Respondents’ remaining points failed to comply with Rule 84.04(d)(e), but considered them anyway and found them to be without merit. Id. Thereafter, we issued our mandate directing the trial court to conduct further proceedings in accordance with our opinion.

The trial court set the matter for a second trial on November 18, 2003. During trial, the parties stipulated to the receipt into evidence of the transcript and all exhibits filed in the first trial, including all materials filed in support of Appellant’s motion for summary judgment.

At the conclusion of trial, the trial court entered judgment in favor of Respondents, finding that Appellant did not build an adequate retaining wall and the foundation wall was in jeopardy of failure. Appellant timely filed a motion to amend judgment or in the alternative, for new trial. The trial court granted Appellant’s motion to amend in part, reversing its decision regarding the foundation wall and finding in favor of Appellant on that issue based on accord and satisfaction. This appeal follows.

Standard of Review

The judgment of the trial court should be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc.1976).

Points on Appeal

Appellant presents two points on appeal. In its first point, Appellant contends that the trial court erred by entering judgment indicating that the retaining wall was not adequately built because its findings were subject to the law of the case. In its second point, Appellant maintains that the trial court erred by entering judgment that the retaining wall was not adequately built because it was against the weight of the evidence and/or the court erroneously declared or applied the law in that the wall was built in accordance with the underlying contract.

Discussion

Where a case is reversed and remanded, the rulings of the higher court become the law of the case. In re Marriage of Bullard, 18 S.W.3d 134, 138 (Mo.App. E.D.2000), quoting Feinstein v. McGuire, 312 S.W.2d 20, 23 (Mo.1958), as follows:

The general rule is that the decision of an appellate court is the law of the case on all points presented and decided and remains the law of the case throughout all subsequent proceedings, both in the trial and appellate courts, and no question involved and decided in the first appeal of the cause will be considered on a second appeal, and on a retrial should not be considered by the trial court.

In the instant case, we reversed only the trial court’s judgment granting Appellant’s partial motion for summary judgment based upon the foundation wall, not the retaining wall. There is a sentence in our opinion that “Review of the record reflects that there exists a genuine dispute as to whether defendant built an adequate retaining wall.” Hiblovic, 40 S.W.3d at 924. However, this sentence was contained in the discussion of Respondents’ first point on appeal, which alleged error only with the trial court’s granting partial summary judgment to Appellant based on the foundation wall. The rule is that the decision of an appellate court is the law of the case on all points presented and decided. Bullard, 18 S.W.3d at 138 (emphasis added). The only reason the retaining wall was mentioned at all in the discussion of the first point on appeal was to determine if it presented a genuine dispute as to whether or not summary judgment was appropriate based upon a theory of accord and satisfaction. As such, the trial court’s ruling on the retaining wall was not disturbed by our opinion; especially in light of the fact that Respondents’ remaining points on appeal were summarily denied. Point I is granted.

Appellant’s second point is moot because the trial court should not have retried the retaining wall issue that it had decided in the first trial. Bullard, 18 S.W.3d at 138. Where the judgment of the trial court has definitely determined the rights of the parties and has been affirmed, “any subsequent orders or adjudications in the cause must be confined to those necessary to execute the judgment.” Bullard, citing Papin v. Papin, 475 S.W.2d 73, 76 (Mo.1972) (quoting 5B CJS Appeal and Error Section (1977)). Point II is denied as moot.

Point on Cross-Appeal

Respondents, as Cross-Appellants, contend that the trial court erred in failing to find that the foundation wall failed, thus granting sufficient basis for Respondents to revoke the contract.

Discussion

When Appellant offered Respondents a settlement of the claim whereby if Respondents did not rescind the contract because of the alleged failed foundation, Respondents would receive an additional warranty on the foundation and a retaining wall at no charge, Respondents accepted the offer. Respondents further negotiated language for the warranty, and participated in finishing construction of the house by requesting revisions to the plans and selecting particular color patterns and floor coverings.

An accord is an agreement for the settlement of a previously existing claim by a substituted performance. Hi-blovic, 40 S.W.3d at 923. Satisfaction is the performance of the agreement. Id. An accord and satisfaction requires both the accord and satisfaction. Id. Whether an accord and satisfaction has been reached is generally a question of fact. Id.

In the instant case the facts clearly show that the trial court was correct in finding that the parties reached an accord and satisfaction. Further, we agree with the trial court that Respondents also waived their right to rescind the contract by participating in finishing the construction of the house, encouraging Appellant to continue with the construction of the house, executing five different change orders and making color and floor selections for the house. There is a waiver of the right to rescind a building contract where the contract is treated, by the party having such right, as still in force. 17A C.J.S. Contracts Section 443 (1963).

Based on the foregoing, Respondents’ point on appeal is denied.

The amended judgment of the trial court is reversed in part and affirmed in part, in accordance with the following specifications.

1) We reverse the provisions of the amended judgment finding in favor of Respondents with regard to the retaining wall. All provisions of the original judgment finding that the retaining wall was adequately built were affirmed by this Court in our prior decision in Hiblovic v. Cinco-T.C., Inc., 40 S.W.3d 921, 924 (Mo. App. E.D.2001). Those provisions are thus law of the case. Any retrial of them is null and void. Those provisions of the original judgment stand.

2) All provisions of the amended judgment finding that the foundation wall did not fail, as a result of accord and satisfaction, stand. They are affirmed by this opinion.

GARY M. GAERTNER, SR., P.J., and KATHIANNE KNAUP CRANE, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William GLASGOW, Plaintiff/Respondent/Cross-Appellant, v. Margaret A. COLE, Defendant/Appellant/Cross-Respondent.
    No. ED 84285.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Goffstein, Raskas, Pomerantz, Kraus & Sherman, LLC, Robert E. Tucker; Lori R. Koch, St. Louis, MO, for appellant.
    Thomas A. Connelly, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   PER CURIAM.

Margaret A. Cole (Cole) appeals from the judgment of the trial court granting a new trial on the issue of damages only in favor of William Glasgow (Glasgow) in Glasgow’s breach-of-contract action. Glasgow cross-appeals, claiming the trial court erroneously instructed the jury on the measure of damages. We reverse the trial court’s judgment and dismiss Glasgow’s cross-appeal.

The facts, as pertinent to the issues on appeal are as follows. Glasgow filed this action for breach of contract against his insurance broker, Cole, claiming that: 1) Glasgow was a named insured on a proof of insurance issued by Cole covering a residence located at 2415 Wheaton, St. Louis, Missouri (residence); 2) the residence was extensively damaged in a fire while the proof of insurance remained in effect; and 3) Cole refused payment to Glasgow for the damages after Glasgow reported the loss.

The partial fire loss to the property occurred on June 29, 1998. Prior to the loss, Glasgow applied to insure the property for $60,000. During trial, Glasgow testified that he paid only $8,500 for the property when he purchased it in April 1998, but had spent $32,788 on repairs to the property between March and June of 1998. However, Glasgow’s employee testified that he inspected the property between the time Glasgow purchased it and the fire occurred, was familiar with the property’s condition, and recollected that it had only been painted during this time period. When Glasgow reported the fire damage to Cole, he estimated the probable amount of the loss as $22,000. Additionally, Cole’s expert, a real estate appraiser, testified during trial that the entire property before loss would have been worth approximately $50,000, and he attributed $12,000 of this value to the lot. Glasgow testified that the property’s market value after the fire would be approximately $5,000.

Following trial, the jury rendered a verdict for Glasgow, awarding him $22,458 plus pre-judgment interest in the amount of $11,053, for a total award of $33,511. Glasgow filed a motion to amend the judgment, for judgment notwithstanding the verdict, for a new trial on damages only, or for additur, arguing: 1) the judgment was against the weight of the evidence; 2) the judgment was against the overwhelming weight of the evidence; 3) misconduct by Cole during cross-examination influenced the jury and resulted in an inadequate damages award; 4) the trial court erred in submitting Cole’s instruction on damages; 5) the trial court erred in submitting the instruction on damages because it provided the wrong basis for determination of loss, i.e., the difference in the residence’s fair market value before and after the loss; and 6) the trial court erred in allowing testimony that the fair market value of the residence was less than the amount insured.

Cole also filed a motion for judgment notwithstanding the verdict, or, in the alternative, to amend the judgment, arguing that she was entitled to judgment because: 1) the evidence clearly showed that there was no human habitation of the residence for more than 60 days prior to the fire loss, which precluded coverage or payment to Glasgow regardless of any breach of contract by Cole; and 2) Glasgow was not the real party in interest to claim damages for the loss as the evidence showed that all expenses for repair of the residence were incurred by a corporate entity that was not a party to the action. Cole’s alternative motion to amend the judgment claimed the court’s award of pre-judgment interest contradicted the court’s previous judgment on the issue and was contrary to applicable law.

The trial court denied Cole’s motion, but granted Glasgow’s motion for new trial as to damages only, stating that it had “grave doubts as to the fairness to [Glasgow] of the damages awarded due to a comment made by [Cole] as to the origin of the fire during her testimony.” The trial court subsequently denied Cole’s motion to reconsider.

On appeal, Cole claims the trial court erred in granting Glasgow’s motion for new trial on the issue of damages only because the jury was instructed to disregard Cole’s comment, the comment did not prejudice Glasgow, and the verdict was supported by substantial evidence. Cole further argues the trial court erred in granting Glasgow’s motion because if the verdict was the result of passion or prejudice on behalf of the jury, a new trial as to all issues should have been granted.

The trial court has broad discretion in granting on new trial on the issue of damages. Steele v. Evenflo Co., Inc., 147 S.W.3d 781, 786 (Mo.App. E.D.2004); Tomlin v. Guempel, 54 S.W.3d 658, 660 (Mo.App. E.D.2001). However, the trial court’s power to grant a new trial is discretionary only as to questions of fact, not as to questions of law. Steele, 147 S.W.3d at 786.

The record reveals that the comment by Cole concerning the fire’s origin took place during the following cross-examination and subsequent discussion:

[Plaintiffs Counsel]: ... When did you get the written authority from Universal Fire and Casualty to issue that binder?
[Cole]: Written authority was not — I did not get written authority. But I’ve always issued that same piece of paper for every piece of property that I have ever written.
[Plaintiffs Counsel]: And you did sign this agreement?
[Cole]: That’s correct.
[Plaintiffs Counsel]: And you did agree to be bound by it?
[Cole]: And it has never been a problem.
[Plaintiffs Counsel]: First time for everything, I guess?
[Cole]: I’m not the one who poured gasoline and set the fire.
[Plaintiffs counsel]: Judge—
The Court: Jury is instructed to disregard the last comment by the witness. [Plaintiffs counsel]: Judge, can we have a sidebar?
(The following proceedings were had at sidebar out of the hearing of the jury:) [Plaintiffs counsel]: Make a Motion for Mistrial. That was highly prejudicial and flies in the face of the motion in limine, which was sustained as to anything dealing with arson.
From the reaction of [Defense counsel] when [Cole] said that I believe he had no knowledge that was coming nor did he have anything to do with it. But, Judge, the prejudicial effect is overwhelming. The look of surprise on the jurors’ faces was unbelievable.
I don’t think I have any choice but to ask that the jury be directed to disregard the evidence, that the evidence be stricken, and that you order a mistrial. I think we’ve poisoned this process to the point that we can’t do anything else.

Plaintiffs counsel then requested a lunch recess while he discussed this incident with Glasgow. Thereafter the following discussion occurred:

The Court: We’re outside the hearing and presence of the jury. I believe at least one of the paragraphs in the motion in limine by the Plaintiff in this case was basically not to discuss arson in this case.
[Plaintiffs counsel]: That’s correct.
The Court: And I know that mistrial is a drastic measure.
[Plaintiffs counsel]: Judge, I have to say on the record [Glasgow] does not require a mistrial. And I understand that this is expensive for him. It’s been incredibly expensive. So this far in and to drop that little bomb right in the middle of everything — I would however, say that I would suggest appropriate sanctions to strike their pleadings and enter judgment for liability and we’ll go forward with damages.
Because this was calculated for the effect it had. She’s sittin’ there with a smirk on her face after she did it. So it was calmly and coolly calculated by her to do it.
And I again want to say on the record I don’t think [Defense Counsel] had anything to do with this. From the look, reaction and shock on his face I’m convinced he didn’t.
But this was calculated, done by, [Cole] to have the effect that it had and it has poisoned the entire case now and will open up whole new areas that we now have to cover I’m afraid.

The trial court denied the motion for mistrial and warned Cole that similar behavior would result in her pleadings being stricken and the cause proceeding with damages only.

When a trial court is faced with situations such as occurred here, what action the court should take depends upon matters such as the nature of the argument made before it, the form and character of the objection, the action requested by the offended party, and the issues and general atmosphere of the case. McNear v. Rhoades, 992 S.W.2d 877, 883 (Mo.App. S.D.1999) (where trial court granted all relief sought by plaintiffs by sustaining objection and instructing accordingly, plaintiffs who failed to request additional relief waived any possible prejudicial effect). In this instance, the trial court granted nearly all the relief sought by Glasgow: it immediately instructed the jury to disregard the comment and later admonished Cole about her improper remarks. Further, the only relief that Glasgow requested that was not granted — a directed verdict as to liability — would have done nothing to ameliorate prejudice to Glasgow in the assessment of his damages which he still wanted submitted to the jury. Glasgow expressly stated on the record that he did not require a mistrial. Glasgow is not entitled to “gamble on the verdict of the jury, and if he loses then assert in a motion for new trial or on appeal that prejudicial error resulted from the incident.” Id. By declining a mistrial, Glasgow implicitly decided that the comment was not so injurious as to require drastic action and waived any possible prejudicial effect. Id.; Welch v. Burlington N. R.R. Co., 807 S.W.2d 226, 228 (Mo.App. E.D.1991) (defendant contended trial court erred in denying its motion for new trial because willful, repeated, and highly prejudicial conduct by plaintiff denied defendant a fair trial; defendant’s failure to request mistrial at time of the alleged impropriety indicated defendant believed conduct was not so grievous as to require drastic action).

Furthermore, the jury’s verdict was not so shockingly inadequate as to indicate it was the result of passion and prejudice or a gross abuse of the jury’s discretion. Tomlin, 54 S.W.Sd at 660. Rather, the verdict was supported by substantial evidence. A partial fire loss award factually similar to that before us was recently considered by the Western District in Jam, Inc. v. Nautilus Ins. Co., 128 S.W.3d 879, 896 (MoApp. W.D.2004). In Jam, the plaintiff testified that the market value of his damaged building was $86,000 before his fire loss and that he had spent in excess of $115,000 to repair the damage. Id. At the close of trial, the jury awarded the plaintiff $100,000. Id. On appeal, the plaintiff argued the jury could have determined from his testimony that the property had a negative value of $29,000 after the fire, and plaintiff surmised the jury then reduced the damages to the $100,000 amount to which it was limited. Id. However, the Western District disagreed. Id. Noting that the proper measure of damages in the case of partial loss to real property is the difference between the reasonable values of the property immediately before and immediately after the casualty, the court found the plaintiffs testimony as to the property’s value after the fire was insufficient to establish the amount of damages because it was based solely on the cost of repair. Id. The court concluded the remaining evidence, in the light most favorable to the jury’s verdict, was that the difference between the fair market value of the building before and after the fire was $86,000. Id. The court reversed the jury’s damages award and remanded the cause with instruction to award the plaintiff this amount for his real property loss. Id.

Here, Cole’s expert testified that the building on the property would have been worth approximately $35,000 to $38,000 before the partial loss was incurred, and Glasgow’s testimony was that the property would be worth approximately $5000 after the fire. Significantly, Glasgow himself estimated his probable loss at $22,000 when he initially reported the fire. Thus, we find the jury’s award of $22,458 was supported by substantial evidence.

Accordingly, we conclude the trial court abused its discretion when it granted Glasgow’s motion for new trial on the issue of damages. Steele, 147 S.W.3d at 786 (standard of review for motion for new trial); Tomlin, 54 S.W.3d at 660 (determination of damages is principally the jury’s decision whose discretion includes accepting or rejecting all or part of plaintiffs claimed expenses; it is jury’s duty to judge credibility and to weigh and value witness’s testimony); Roark Motor Lodge Interval Sales Corp. v. Lindner, 779 S.W.2d 684, 686 (Mo.App. E.D.1989) (jury verdict will be set aside or adjusted only when its assessment of damages is so shockingly meager as to indicate that it resulted from arbitrary or prejudicial exercise of discretion). Point granted. Given our disposition on this point, we need not address Cole’s argument that the trial court erred in granting a new trial on the issue of damages only because a verdict resulting from jury passion or prejudice would require a new trial as to all issues.

As noted, Glasgow claims in his cross-appeal that the trial court erroneously instructed on the measure of damages. In his motion for new trial, Glasgow requested a new trial on damages only. This was exactly the relief the trial court granted. Glasgow is not aggrieved by the trial court’s decision granting the new trial on damages only and thus his cross-appeal must be dismissed. However, that does not end our inquiry. As a respondent, Glasgow may seek to justify the granting of a new trial on other grounds in the motion not specified by the trial court. Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 557 (Mo.App. E.D.2001); Benscoter v. Williams, 600 S.W.2d 217, 221 (Mo.App. E.D.1980). Hence, we will review Glasgow’s claim in his motion for new trial that the trial court erroneously instructed on the measure of damages.

Specifically, Glasgow claims that the use of the approved MAI 4.02 damage instruction is contrary to Section 379.140 RSMo 2000 and Rule 70.02(2). Here, the trial court submitted the following damage instruction based upon MAI 4.02:

If you find in favor of William Glasgow, then you must award Plaintiff William Glasgow such sum as you may find from the evidence to be the difference between the fair market value before it was damaged and its fair market value after it was damaged and you may, if warranted, award such sum as will fairly and justly compensate Plaintiff William Glasgow for loss of use up to twelve (12) months.

Glasgow argues the proper damage instruction to submit in the case of partial fee loss was that which he submitted to the trial court:

If you find in favor of William Glasgow on his claim for damages, then you must award him the sum of $- for damages to his house, and you must award William Glasgow such sum as you may find from the evidence that will fairly and justly compensate him for the loss of the use of the house plus interest on the above at the rate of 9% per annum from 29 June 1998.
(The phrase “depreciation” as used in this instruction means and includes any deduction of lessening in value between the time of the issuing of the proof of insurance and the date of loss).

Glasgow concedes in his brief that the long-standing rule of law in Missouri is that the MAI 4.02 damage instruction should be given in situations involving partial fee loss, but argues that this existing law should be changed. We decline to overrule existing Missouri case law and conclude the trial court correctly instructed on the measure of damages. See Wells v. Missouri Property Ins. Placement Facility, 653 S.W.2d 207, 210 (Mo. banc 1983) (measure of damages in the case of a partial loss of property, real or personal, is the difference between the reasonable values of the property immediately before and immediately after the casualty). Point denied.

The judgment of the trial court granting a new trial as to damages is reversed; the cause is remanded with directions to reinstate the jury’s verdict and enter judgment thereon. Glasgow’s cross-appeal is dismissed.

      . This is the second time this case has come before this Court on appeal. In the first appeal, we reversed the trial court’s grant of summary judgment in favor of Glasgow. Glasgow v. Cole, 88 S.W.3d 114 (Mo.App. E.D.2002).

      . Cole requested a new trial on all issues. She was aggrieved by the court's grant of a new trial on damages only. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695-96 (1952).


text:
    STATE of Missouri, Respondent, v. Gary T. WASHINGTON, Appellant.
    No. WD 63477.
    Missouri Court of Appeals, Western District.
    April 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Nancy A. McKerrow, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   ORDER

PER CURIAM.

Gary Washington appeals his jury conviction for tampering in the first degree, Section 569.080.1(2). Upon review of the record, we find no error and affirm the judgment. We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 30.25(b).


author: PAUL M. SPINDEN, Judge.

text:
    Howard J. VERWEIRE, Petitioner, v. Steven MOORE, Respondent.
    No. WD 64038.
    Missouri Court of Appeals, Western District.
    April 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Kent E. Gipson, Public Interest Litigation Clinic, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrew Hassell, Office of Attorney General, Jefferson City, for Respondent.
   PAUL M. SPINDEN, Judge.

Howard J. Verweire filed a petition for writ of habeas corpus seeking to vacate his conviction for the Class B felony of assault in the first degree and his 10-year sentence. Verweire claims that he is actually innocent of the crime. We disagree and deny his petition.

Because Verweire stated a colorable claim in his petition and because manifest injustice could occur were Verweire not allowed to pursue his claim of actual innocence, we appointed a special master to conduct an evidentiary hearing to determine whether or not Verweire had evidence to support his claim of actual innocence. The special master issued a report finding that Verweire was guilty of assault in the first degree and that Verweire presented no credible evidence of actual innocence. We agree with the special master and, therefore, deny Verweire’s petition.

Rule 91.01(b) says, “Any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint.” Habeas corpus may not be used to circumvent the time limits set out in Rule 24.035(b). Brown v. State, 66 S.W.3d 721, 731 (Mo. banc 2002). A petitioner, however, may be entitled to a petition for habeas corpus after Rule 24.035’s deadline if the petitioner can show “(1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a) that the procedural default was caused by something external to the defense—that is, a cause for which the defense is not responsible—and (b) prejudice resulted from the underlying error that worked to his actual and substantial disadvantage.” Id. Habeas corpus is proper when manifest injustice would result were a petition for habeas corpus not issued. Brown v. Gammon, 947 S.W.2d 437, 440 (Mo.App.1997).

Verweire claims that he is actually innocent of the first-degree assault conviction because no factual basis existed for his pleading guilty to the charge. The General Assembly has mandated, “A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.” Section 565.050.1, RSMo 2000. The state charged Verweire with attempting to cause serious physical injury to Alex Crompton. “A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense.” Section 564.011.1, RSMo 2000. “A ‘substantial step’ is conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” Section 564.011.1.

The evidence established that, on October 9, 1999, Verweire, armed with a semi-automatic pistol with a round of ammunition in the chamber and six rounds in the magazine, went to a video arcade in Rockaway Beach. There, he pointed the gun at Crompton, jabbed Crompton with the gun in his side and cheek, and told him that he would blow “his f[—]ing head off.” This evidence was enough to establish that Verweire took a substantial step toward causing serious physical injury to Crompton. See State v. White, 798 S.W.2d 694, 697 (Mo. banc 1990) (evidence showing that defendant threw the victim to the floor, told the victim to “shut up or I will stab you,” and cut the victim without causing serious physical injury was sufficient to show attempt to cause serious physical injury); In re J—R—N—, 687 S.W.2d 655, 656 (Mo.App.1985) (evidence showing that defendant entered a hotel carrying a lug wrench and announced that he was there to assault the manager was sufficient to show attempt to cause serious physical injury). Verweire’s claim of actual innocence is without merit.

We, therefore, deny Verweire’s petition for a writ of habeas corpus.

PATRICIA A. BRECKENRIDGE, Presiding Judge, and LISA WHITE HARDWICK, Judge, concur.

      . Verweire argues that "no source [exists] in the record for any such quotation” and that "there is not one scintilla of evidence presented by any witness attributing any such statement to [him].” He is wrong. David Jones, one of the witnesses to the incident, gave this statement to police: “The [psycho] dude keep [sic] his hand by his pocket the hole [sic] time and was staring at Summer and Kelly, held the gun to Alexis [sic] throught, [sic] and head, cheek. [H]e was wearing camo. The fire arm [sic] was silver. I herd [sic] that he would blew [sic] his f[—]ing head off.” From this statement, one reasonably could infer that the "psycho dude,” who was later identified by police as Verweire, was the individual making that statement that he would blow "his f[—]ing head off.”

      . Verweire also asserts that his trial attorney was not effective because he advised Verweire to plead guilty to first degree assault. He contends that he would not have pleaded guilty had he been advised correctly that the state did not have a submissible case for assault in the first degree. Having determined that the facts were sufficient to establish that Verweire committed assault in the first degree, Verweire’s contention is without merit. Verweire also claims that the information charging him of assault in the first degree was deficient in that it omitted "knowingly” from the charge. Even assuming the information was insufficient, an insufficient information does not require reversal in every case. A defendant must allege and demonstrate actual prejudice. State v. Briscoe, 847 S.W.2d 792, 794 (Mo. banc 1993); State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992). In his petition for the writ of habeas corpus, Verweire merely asserts, “There can be little doubt that the defect in the information in this case was prejudicial to petitioner because this error permitted him to be found guilty and incarcerated for a crime which ... he did not commit.” This was not sufficient to establish actual prejudice.


text:
    In re MARRIAGE OF Helen E. DAVIS and Gary Davis. Helen Davis, Petitioner/Respondent, v. Gary Davis, Respondent/Appellant.
    No. ED 84548.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 22, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Gary B. Davis, Glencoe, pro se.
    Susan K. Roach, The Roach Law Firm, Clayton, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Husband, Gary Davis, appeals from a decree of dissolution of marriage entered after remand. The judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Dominic MAXWELL, Appellant.
    No. ED 84454.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 22, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Susan K. Roach, Clayton, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Dominic Maxwell (“Defendant”) appeals from the judgment of the Circuit Court of St. Louis County convicting him of one count of robbery in the first degree, one count of armed criminal action, and one count of resisting arrest. Because we hold that: (1) the trial court did not err in overruling Defendant’s motions to suppress identification and physical evidence; and (2) there was sufficient evidence to support Defendant’s convictions, we affirm. We do not reach the merits of Defendant’s claim that his trial counsel was ineffective in failing to investigate the case and call a witness because such claim is not cognizable on direct appeal.

We have reviewed the briefs of the parties and the record on appeal. The trial court’s judgment is supported by sufficient evidence and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


text:
    CITY OF HAZELWOOD, Plaintiff/Respondent, v. Jeff RIXLEBEN, Defendant/Appellant.
    No. ED 84652.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 22, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Keith K. Cheung, Stephanie E. Karr, Curtis, Heinz, Garrett & O’Keefe, P.C., St. Louis, MO, for respondent.

      Jeffrey Rixleben, appellant pro se, Richmond Heights, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Defendant appeals pro se from the trial court’s judgment entered after a bench trial in finding him guilty of improper parking in violation of a City of Hazelwood ordinance and ordering him to pay a fíne of $50.00. No jurisdictional purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Deborah L. ST. LAWRENCE n/k/a Deborah L. Hoffman, Appellant, v. David L. ST. LAWRENCE, Respondent.
    No. ED 84969.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Kenneth J. Heinz, St. Louis, MO, for appellant.
    Stephen D. Bouchard, Crystal City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Appellant, Deborah Hoffman (“Mother”) appeals from a judgment of the Circuit Court of Jefferson County granting her Motion to Modify a child custody order but denying her any child support, and ordering her to pay attorney fees. Mother also alleges that the trial court erred in abating any child support to be paid by Respondent, David St. Lawrence (“Father”) and in not entering a specific finding on the record that the amount of child support calculated on Father’s Form 14 was unjust or inappropriate.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    CINCINNATI CASUALTY COMPANY, Appellant, v. GFS BALLOONS and James Robbins, IV, Respondents.
    No. ED 85211.
    Missouri Court of Appeals, Eastern District, Division One.
    April 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Mary Anne Lindsey, Evans & Dixon, L.L.C., St. Louis, MO, for appellant.
    Stephen Lee Beimdiek, Jennifer A. Tyus, Lashly & Baer, Ronald August Cai-mi, Brown & Crouppen, St. Louis, MO, for respondents.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Cincinnati Casualty Company (“Cincinnati”), appeals from the judgment of the Circuit Court of the City of St. Louis granting Respondent GFS Balloons’ (“GFS”) motion to dismiss. The court proceeded to enter judgment in favor of GFS and Respondent James Robbins, IV (“Robbins”) on Cincinnati’s amended petition for declaratory judgment. We affirm.

Cincinnati is a foreign insurance company registered to do business in Missouri. Cincinnati issues workers’ compensation liability insurance policies to employers. GFS is a wholesale balloon business, owned by Susan Ward (“Ward”), in St. Louis, Missouri. Robbins worked as a manager for GFS, and his duties included the delivery and sale of balloons.

Cincinnati issued a workers’ compensation policy (“the policy”) to GFS on December 1, 2000 for the term of December 7, 2001 to December 7, 2002.

On June 13, 2002, Robbins sustained injuries while painting a tin roof at the personal property of Ward in Illinois when he fell fifteen to seventeen feet, suffering several fractures that required medical treatment. Ward failed to notify Cincinnati of Robbins injuries until October 26, 2002. Robbins filed workers’ compensation claims for benefits in Illinois and Missouri on October 30, 2002 and November 20, 2002, respectively. Each of these claims is presently pending.

On July 10, 2003, Cincinnati filed an amended petition for a declaratory judgment in the Circuit Court of the City of St. Louis. Count I in the amended petition requested a declaration that GFS and Ward failed to comply with part four of the policy entitled “Your Duties If Injury Occurs.” Count I alleged the failure to notify Cincinnati “at once” of the injury at issue here, as required by Part Four of the policy, relieved Cincinnati of any duty to defend GFS in Robbins’ pending workers’ compensation claims, to provide coverage for the injuries, or to pay any workers’ compensation benefits to Robbins. Count II sought a declaration that Robbins was not fulfilling his duties as manager for GFS, or performing an activity incidental to that employment, at the time of the accident.

During a status conference on August 4, 2004, the trial judge granted GFS leave to file a motion to dismiss both counts of the amended petition for lack of subject matter jurisdiction. On August 27, 2004, the trial judge issued judgment granting GFS’ motion to dismiss both counts of the amended petition. The trial court also entered judgment in favor of GFS and Robbins and against Cincinnati as to Cincinnati’s amended petition. This appeal followed.

The trial court’s decision to dismiss for lack of subject matter jurisdiction will not be reversed on appeal absent an abuse of discretion. Schopp v. Matlock, 880 S.W.2d 357, 359 (Mo.App. E.D.1994). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is “so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration.” St. Lawrence v. Trans World Airlines, Inc., 8 S.W.3d 143, 148 (Mo.App. E.D.1999), quoting Burns v. Employer Health Serv. Inc., 976 S.W.2d 639, 641 (Mo.App. W.D.1998).

In its first point on appeal, Cincinnati argues that the trial court erred as a matter of law in dismissing its amended petition for lack of subject matter jurisdiction. Cincinnati claims the trial court has subject matter jurisdiction because it is a court of general jurisdiction with the ability to grant a declaratory judgment and the exclusivity provision of the Workers’ Compensation Act does not bar such relief.

We will first address whether the trial court had subject matter jurisdiction over Count I of the amended petition, and then whether the trial court had subject matter jurisdiction over Count II.

One requisite element to maintain an action for declaratory judgment is the absence of an adequate remedy at law. City of Sullivan v. Truckstop Restaurants, 142 S.W.3d 181, 193 (Mo.App. E.D.2004). A petition seeking declaratory judgment that alleges breach of duties and obligations under the terms of a contract and asks the court to declare those terms breached is nothing more than a petition claiming breach of contract. See Michigan Sport. Goods Distrib., Inc. v. Lipton Kenrick, 927 S.W.2d 570, 572 (Mo.App. E.D.1996). Absent exceptional circumstances plainly appearing, a trial court may not use the Declaratory Judgment Act when an adequate remedy at law exists. Williams v. Mercantile Bank of St. Louis, 845 S.W.2d 78, 83 (Mo.App. E.D. 1993).

Count I of Cincinnati’s amended petition seeks a declaration that Cincinnati is exempt from providing coverage and benefits to GFS and Robbins due to GFS’ failure to comply with part four of the policy. The declaration sought would establish nothing more than a breach of contract, and thus we find this is a breach of contract claim. Cincinnati has an adequate remedy at law for this contract claim. Furthermore, there are no exceptional circumstances plainly appearing that would entitle Cincinnati to a declaratory-judgment. Therefore, the court did not have subject matter jurisdiction over Count I as declaratory relief would be inappropriate for this claim.

Next, we will discuss whether the trial court had subject matter jurisdiction over Count II of Cincinnati’s amended petition.

Missouri courts have consistently held that the Labor and Industrial Relations Commission (“the Commission”) has exclusive original jurisdiction to hear any claim in which a threshold question is whether a work-related injury resulted from an accident arising out of and in the course of employment. Schopp, 880 S.W.2d at 359. When a trial court doubts its own jurisdiction, that doubt should be resolved in favor of the Commission. Oberreiter v. Fullbright Trucking Co., 117 S.W.3d 710, 716 (Mo.App. E.D.2003). A trial court may determine whether the plaintiff was an “employee,” but may not determine whether there was an “accident arising out of and in the course of employment.” Hill v. John Chezik Imports, 797 S.W.2d 528, 531 (Mo.App. E.D.1990), quoting Jones v. Jay Truck Driver Training Center, 709 S.W.2d 114, 115 (Mo.banc 1986).

A motion to dismiss for lack of subject matter jurisdiction is the appropriate means by which to raise a workers’ compensation exclusivity defense. Howell v. Lone Star Industries, Inc., 44 S.W.3d 874, 877 (Mo.App. E.D.2001). The trial court should grant the motion to dismiss where it appears, by a preponderance of the evidence, that the trial court lacks subject matter jurisdiction because of workers’ compensation exclusivity. Id.

Count II seeks a declaration that Robbins’ injuries are not covered under the policy. The trial court would have had to determine whether Robbins’ accident arose out of and in the scope of his employment with GFS to make this declaration. Such a factual analysis and determination falls within the exclusive jurisdiction of the Commission. Thus, the trial court lacked subject matter jurisdiction over Count II.

Therefore, GFS’ motion to dismiss was properly granted because the trial court lacked subject matter jurisdiction over both counts of Cincinnati’s amended petition. Point denied.

In its second point on appeal, Cincinnati argues that the trial court erred as a matter of law by entering a judgment in favor of GFS and Robbins after granting GFS’ motion to dismiss for lack of subject matter jurisdiction. Cincinnati argues the only action the trial court could have taken was to exercise its inherent power to dismiss.

When a court lacks subject matter jurisdiction it only has the power to dismiss the action. Heinle v. K & R Express Systems, Inc., 923 S.W.2d 461, 464 (Mo. App. E.D.1996). Any other actions or proceedings of the court are null and void. Id.

However, “A judgment which grants excessive relief may yet be valid if, by striking the surplusage, the remainder may be separated and treated as disposi-tive of the controversy.” Missouri Rock, Inc. v. Winholtz, 614 S.W.2d 734, 740 (Mo. App. W.D.1981). An appellate court should affirm the correctly decided portion of the judgment “if the excess matter is separable, does not affect the finality of the judgment and is otherwise a proper subject for appellate disposition within the issues framed.” Id.

Having found it lacked subject matter jurisdiction, the trial court only had the authority to dismiss the amended petition. However, the trial court further ordered that, “JUDGMENT is hereby entered in favor of Defendants GFS Balloons and James Robbins, IV and against Plaintiff as to Plaintiffs Amended Petition.” The trial court exceeded its authority when it entered judgment in favor of GFS and Robbins, thus, that part of the judgment is null and void.

Therefore, we strike as surplusage the portion of the judgment in favor of GFS and Robbins and affirm the remaining portion dismissing Cincinnati’s amended petition for lack of subject matter jurisdiction. Point denied.

Based on the foregoing, we affirm the judgment of the trial court as modified.

MARY K. HOFF, J. and SHERRI B. SULLIVAN, J., concur.


author: JAMES M. SMART, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Glenn BERRY, Appellant.
    No. WD 63648.
    Missouri Court of Appeals, Western District.
    April 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Jeannie Marie Willibey, Asst. Public Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Attorney General, Jefferson City, for respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   JAMES M. SMART, JR., Judge.

Glenn Berry appeals his conviction by a jury of second-degree murder, for which he was sentenced to thirty years’ imprisonment. He contends that the trial court erred in admitting identification evidence that was obtained via impermissibly suggestive procedures. He also complains that the trial court should have intervened sua sponte with regard to improper argument. Finally, he complains as to the trial court’s erroneous admission of hearsay evidence. The judgment is affirmed.

Factual Background

Glenn Berry was convicted of second-degree murder in the death of his sixteen-year-old girlfriend, Carita Johnson. The death occurred in May 1998. The facts are recited in a light favorable to the verdict. State v. Barriner, 111 S.W.3d 396, 397 (Mo. banc 2003).

At trial, one of the witnesses was military police sergeant Richard Nero, who saw Berry assaulting a young woman in Kansas City shortly after midnight on the same night that Carita Johnson disappeared.

On that night, Sergeant Nero and his wife stopped at a stoplight at 47th and Troost in Kansas City and observed a couple fighting about thirty to forty feet away from the intersection. The man was holding the woman by her blouse and striking her in the face with his fist. Nero made a right turn onto Troost, then made a U-turn, and pulled up to the curb next to the couple. The area was well lighted. Nero got out of the car and walked up to the couple. The man who was striking the woman looked directly at Nero, made eye contact, and then ran off to the east. Nero and his wife tried to persuade the young woman to let them call the police or take her to the hospital. She said the man was her boyfriend and that he would return. Mr. and Mrs. Nero remained there for several minutes, then finally left. The Ñeros left Kansas City to move to North Carolina the next day.

Carita Johnson never came home. Her vehicle was found early that morning abandoned in the drive-through lane of a nearby fast-food restaurant.

About 7:00 a.m. the next morning, a patrol officer was flagged down by Berry, who seemed somewhat hysterical. Berry wished to report to the officer that he had been attacked and beaten by some men, who then drove off. Berry had some scratches on his face. He had a towel around his neck. He mentioned nothing about Carita Johnson. There was no indication that Berry needed emergency medical care. The officer took the report and left.

Shortly after Carita’s disappearance, the police questioned Berry, photographs were taken, and evidence was collected, but no charges were filed. Berry had scratches on his face and his neck. Carita’s family was suspicious of Berry’s involvement in Carita’s disappearance, but he assured them he knew nothing. Everything was fine with Carita, he said, when she left him at his house.

In September 1998, Sergeant Nero, who then knew nothing of the disappearance, saw a young woman pictured on a missing person poster and recognized her as the woman he had tried to help a few months earlier in Kansas City. The young woman on the poster was Carita. Nero contacted Kansas City police at that time, but no follow-up was done. Almost two years later, in February 2001, Nero contacted Kansas City police again about the case. Police made arrangements for him to come to Kansas City and view a photographic lineup. It was not until May 10, 2001, almost three years after the incident he had observed, that police actually showed him a lineup. At that time, he identified Berry “within two seconds” after being shown the six-person photo spread. Nero also identified a picture of Carita’s car as the same purple car he had seen parked near the site of the altercation.

Initially, Berry denied any knowledge of Carita’s murder. Later, however, Berry provided information to the police about her death and took police to the location where he had buried her body. The police found Carita’s skeletal remains inside a trash bag at the site. Due to the decomposition of the body, investigators were unable to determine what actually caused Carita’s death. The cause of death was listed as “undetermined violence.”

Berry gave a videotaped statement about the death. He stated that in the early morning hours of May 31, Carita drove him in her car to his house. He indicated that the two had been arguing and that when they got out of the car, Carita threw rocks at him. He stated that her death resulted from a blow to her head when he forcefully pushed her against a rock retaining wall. The next day, Berry gave another videotaped statement after being confronted with forensic evidence that contradicted his contention that the blow to her head killed her. He again indicated that Carita’s death resulted from a fight between them. This time, though, he stated that while Carita was swinging her fists at him, he grabbed her around the neck with one hand to keep her distance from him and that her body eventually went limp. He stated that after she went limp, he forcefully pushed her against the rock retaining wall. He indicated in his statements that he tried repeatedly to revive her. He said that he thought of getting help for her, but never did because he was scared. Eventually, he said, he wrapped her body in garbage bags and buried her behind a nearby apartment building.

Berry did not concede being at 47th and Troost with Carita that night. Berry said they were at his house when the physical altercation began. Berry still does not concede that he and Carita were at 47th and Troost, where Sgt. Nero believes he observed them.

The State’s evidence at trial indicated that Carita and Berry had a rocky relationship. Although Berry did not testify at trial in the guilt phase, his two videotaped statements were played for the jury, and the court admitted the transcripts as exhibits.

Nero testified as to what he had observed in 1998 at 47th and Troost. His testimony and descriptions at trial differed slightly from his earlier statements. He stated at trial, for example, that the young woman appeared to be fighting back. He also elaborated that when he got out of his car, he was within eight to ten feet of the man he later identified as Berry, and that he and his wife remained with Carita for twenty minutes before leaving. There were some minor variances in Nero’s physical descriptions of the couple. Nero identified Berry in court. The State also introduced evidence of his out-of-court identification over objection.

During the opening portion of the State’s closing argument, the assistant prosecutor told the jury: “... all of you have to agree that it’s not murder second degree before you consider voluntary manslaughter and then if voluntary manslaughter is not something you all unanimously agree on, go then and only then down to involuntary manslaughter....” Defense counsel did not object to this statement of the law. The jury was instructed as to second degree murder as well as the two lesser offenses of voluntary manslaughter and involuntary manslaughter. The jury returned a guilty verdict on the second-degree murder charge.

During the sentencing phase of Berry’s trial, additional evidence was presented to the jury. The jury ultimately assessed punishment at thirty years. This appeal follows.

Point I: Identifications

In Berry’s first point, he contends that the trial court erred in permitting, over objection, the identification evidence to be admitted at trial. He argues that the identifications were obtained through the use of impermissibly suggestive procedures and were thus unreliable.

The trial court’s decision to admit identifications at trial is discretionary, and we will not disturb that decision unless we find an abuse of discretion. State v. Chilton, 119 S.W.3d 176, 177-78 (Mo.App. 2003).

Berry claims that the court clearly erred and abused its discretion in admitting the identifications at trial. “[T]he crucial test for admission of identification testimony is two-pronged: (1) was the pretrial identification procedure imper-missibly suggestive, and (2) if so, what impact did the suggestive procedure have upon the reliability of the identification made by the witness.” State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989). To prevail on this point, Berry must prove that the procedures employed by the police were impermissibly suggestive, and, then, that the suggestive procedures made the identifications unreliable. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990). “A pretrial identification procedure is unduly suggestive if the identification results not from the witness’ recall of firsthand observations, but [ ] from the procedures or actions employed by the police.” State v. Glover, 951 S.W.2d 359, 362 (Mo. App.1997). Although “reliability is the linch-pin in determining the admissibility of identification testimony,” Berry must show that there was a problem with the degree of suggestiveness before obtaining a reliability review. See Vinson, 800 S.W.2d at 446 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). “Identification testi mony will be excluded only when the procedure was so suggestive that it gave rise to a very substantial likelihood of irreparable misidentification.” Hornbuckle, 769 S.W.2d at 93. Where the defendant fails to establish that the procedures were unduly suggestive, the factors considered in the reliability prong of the test “go to the weight of the identifications and not to their admissibility.” Vinson, 800 S.W.2d at 446.

Berry is concerned about the identification testimony even though he gave a videotaped statement admitting involvement in the killing because his defense was based on a theory of self-defense or accidental killing. Because Berry believes that Nero’s testimony as to the beating of Carita was prejudicial to his defense, he seeks a ruling that such evidence should have been excluded.

Berry says the following circumstances created an impermissibly suggestive procedure. He points out that the police failed to show the photo spread to Nero until almost three years after the event. He also argues that the dates on the photographs were suggestive in that two photos (one of which depicted him) were more recent. He states that of those two more recent photos, the one of Berry most closely matched Nero’s description of the assailant in that it shows him with a longer afro hairstyle. He says that police had other photographs of him taken immediately after Carita’s disappearance in which he had a close-cut afro. The combination of these circumstances, Berry argues, created an impermissibly suggestive procedure. Therefore, he says, there was a high likelihood of misidentification and a high probability that Berry’s photograph would be selected.

Berry points us to no cases in which such circumstances were found to have constituted impermissibly suggestive procedures. Defense counsel did not object to the photographs on this specific basis (i.e., the dates) either at the pre-trial suppression hearing or when Nero testified about them at trial. The delay in showing the photo spread to Nero does not relate to suggestibility. It may relate to the issue of the reliability of the identification, which would go to weight and not to admissibility. Vinson, 800 S.W.2d at 446. The State argues that the dates on the photos are irrelevant because Nero identified Berry within two seconds of being shown the photo spread and, therefore, did not have time to consider the dates in relation to the date of the crime.

Regardless of how quickly Nero identified Berry, we note that the dates on the photographs are inconspicuous. It is not clear that the average viewer would recognize them as dates at all, as opposed to merely a series of numbers. Even if we were to assume that Sgt. Nero, as a military policeman, recognized the numbers as dates, we fail to see that the dates were suggestive of anything in this context. We fail to understand Berry’s argument that the fact that Berry’s picture was one of the more recent photos was somehow suggestive. We have no particular grounds to believe that the numbers on the photos would have played into the identification one way or another. We also agree with the State’s observation that all of the men in the photo spread had longer hair. Berry fails to show that the procedures employed qualified as unduly or impermissi-bly suggestive.

Berry has failed to show that the identifications were the product of impermissi-bly suggestive procedures. Point denied.

Point II: Prosecutor’s Misstatement of the Law

Second, Berry argues that the trial court plainly erred in allowing the prosecutor to misstate the law regarding the procedures for the jury to follow before considering two lesser-included offenses and in failing, sua sponte, to declare a mistrial or to correct the error.

During the opening portion of the State’s closing argument, the assistant prosecutor misstated the law by informing the jury: “... all of you have to agree that it’s not Murder Second Degree before you consider voluntary manslaughter and then if voluntary manslaughter is something that you all unanimously do not agree on, you go then and only then down to involuntary manslaughter....” In actuality, the jurors could consider the lesser charge if they could not agree as to second-degree murder. State v. Wise, 879 S.W.2d 494, 517 (Mo. banc 1994). “Missouri juries do not have to find a defendant ‘not guilty’ of the greater offense before considering the lesser included offense. Instead, ... Missouri juries are allowed to consider the lesser included offense if they ‘do not find the defendant guilty’ of the greater offense.” Id. In other words, a jury deadlocked on the greater offense has not found the defendant guilty, and can, therefore, consider the lesser included offense. Id. The State here concedes that the prosecution misstated the law. Defense counsel did not object to this misstatement of the law.

At the close of all the evidence, the jury was properly instructed with regard to second-degree murder and the two lesser offenses of voluntary manslaughter and involuntary manslaughter. After deliberating for four hours, the jury returned a guilty verdict on the charge of second-degree murder.

Because there was no objection to the prosecutor’s misstatement at trial, Berry requests review of the claim for plain error. A claim not properly preserved for appellate review may be considered for plain error at our discretion. Rule 30.20; see also State v. Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001). Under this standard, we will not reverse unless the error was plain error affecting a substantial right and resulting in manifest injustice or miscarriage of justice. Rule 30.20. Plain error review is to be used sparingly. State v. Knese, 985 S.W.2d 759, 770 (Mo. banc 1999). The defendant bears the burden of demonstrating manifest injustice or a miscarriage of justice. State v. Tokar, 918 S.W.2d 753, 770 (Mo. banc 1996).

Berry acknowledges that the jury instructions were properly drawn. Despite this, he argues, based upon the prosecutor’s misstatement of the law, that the jury necessarily would have been coerced into voting for the greater offense without giving due consideration to the lesser-included offenses. The jurors, he reasons, by following the prosecutor’s misstatement, would have understood the instructions to mean that they had to unanimously agree to acquit of second-degree murder before they could even consider either manslaughter charge. He says the misstatement would have caused the jury, even if deadlocked on the second-degree murder charge, to remain there without considering the lesser offenses. Berry argues that such a gross misstatement of the law created a need for the court, sua sponte, to declare a mistrial. Berry asserts that he was prejudiced by the trial court’s plain error in failing to declare a mistrial because the lesser-included offenses constituted his entire defense.

The State argues that even if the prosecutor’s statement was a misstatement of the law, the jury was nevertheless properly instructed with regard to the lesser-included offenses. Thus, says the State, there was no plain error affecting substantial rights and resulting in a potential miscarriage of justice. According to the State, the combination of the three jury instructions for second-degree murder and the two lesser charges informed the jury that if they did not find the defendant guilty of the greater offense, they must consider the lesser offenses. Taken as a whole, the State says, the court properly instructed the jury on the law and thus cured any misstatement of the law. Where a prosecutor misstates the law but the jury is properly instructed, the State points out, the jury is presumed to have followed the instructions. See, e.g., State v. Graham, 916 S.W.2d 434, 436 (Mo.App.1996) (misstatement that one juror could free the defendant found not prejudicial because jury properly instructed); State v. Blakebum, 859 S.W.2d 170, 174-75 (Mo.App.1993) (misstatement of law regarding the presumption of innocence found not prejudicial because proper jury instruction given). There was no call for the court to declare a mistrial, the State says.

It is well settled that a mistrial is considered a “drastic remedy [that should be] reserved for extraordinary circumstances,” and the decision to declare one rests within the sound discretion of the trial court. State v. Johnson, 22 S.W.3d 183, 191 (Mo. banc 2000). Improper comments made by the State during closing argument that are not preserved by a timely objection can only be reviewed for plain error pursuant to Rule 30.20. State v. Payne, 126 S.W.3d 431, 444 (Mo.App.2004). “Plain” error is error that is evident, obvious, and clear. State v. Houston, 139 S.W.3d 223, 227 (Mo.App.2004). Under plain error review, the appellate court first must determine, in effect, whether on the face of the claim “plain error” has in fact occurred. State v. Brown, 97 S.W.3d 97, 100 (Mo.App.2002).

Relief is rarely granted on assertions of plain error committed during closing argument due to trial strategy considerations. State v. Kinder, 942 S.W.2d 313, 329 (Mo. banc 1996). It is not always clear which side benefits the most from a misstatement of law. This case is an example. If defense counsel noticed the misstatement but decided, for strategic reasons, not to object, relief should not be granted on plain error review. To reverse for plain error on such a claim, we must find not only that the argument was improper, but that it had a decisive effect on the trial’s outcome and that it amounts to a manifest injustice or miscarriage of justice if left uncorrected. State v. Anderson, 79 S.W.3d 420, 439 (Mo. banc 2002).

If we were to assume that, despite the fact that the court gave the correct instruction, the jury accepted the prosecutor’s erroneous statement, the circumstance for the jury would have been the same as if the jury had been given only one charge to consider. Thus, if the jury were not unanimous as to the decision on second degree murder, the jury would have deadlocked without ever considering the lesser offenses. There is no reason to believe the jury first deadlocked and then decided to resolve the deadlock by convicting him of the major offense. If there was any doubt as to Berry’s guilt of the major offense, the jury could have decided to unanimously acquit of the major charge and move to consideration of a lesser charge. Because the jury did not do so, it is speculative to suggest that the jury had any doubt as to the major charge.

Berry notes that after four hours of deliberations, the jury asked for clarification of the phrase “was aware that the conduct was practically certain to cause the death of’ and requested to view Berry’s videotaped confessions. Berry suggests that this fact supports his argument. It appears more logical, however, that such fact shows that the jury was willing to simultaneously consider all the charges, which is the exact opposite of his argument.

To believe that the jury was essentially coerced into convicting Berry of second-degree murder for the very reason that it was not unanimous on guilt or innocence is unreasonably speculative. Cf. State v. Graham, 916 S.W.2d at 436 (“It is speculative to conclude the misstatement of procedural law caused any juror to reach a guilty verdict. If that occurred, then the juror must have failed to follow the instructions of the court.”). It is more likely the jury actually followed the court’s written instructions. It is also more likely, even if the jury were misled by the argument, that the jurors would have felt coerced to acquit of second-degree murder, rather than having felt coerced to convict. Indeed, the prosecution’s misstatement of the law could, if followed, have had a tendency to work in Berry’s favor. The failure-of the defense to object to the errant statement by the prosecutor could have been a strategic decision, based on a belief that the incorrect argument would work to the defendant’s benefit. We will not reverse on plain error in a case where there is reason to believe there was no harm to the defendant. Point denied.

Point III: Admission of Hearsay at Sentencing

In his final point, Berry argues that the trial court erred in permitting the admission of hearsay evidence at the sentencing phase of the trial. He claims that the admission of the hearsay evidence violated his Sixth Amendment right to confront the witness and that he was prejudiced because the evidence inflamed the passions of the jurors against him, causing them to assess a greater punishment than they otherwise would have.

The trial court is vested with broad discretion in admitting or excluding evidence, and those decisions will not be disturbed unless there is a clear abuse of that discretion. State v. McKibben, 998 S.W.2d 55, 58 (Mo.App.1999). We will find an abuse of discretion only where a trial court’s ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Neff, 978 S.W.2d 341, 345 (Mo. banc 1998). We review a trial court’s decision regarding the admissibility of evidence for prejudice, not mere error. State v. Mozee, 112 S.W.3d 102, 105 (Mo.App.2003).

Section 557.036, as amended in 2003, provides for criminal trials to be bifurcated, or conducted in two stages: a guilt phase and a penalty phase. Both phases are to be heard by a jury in most cases. But see § 557.036.4. A wide range of evidence is admissible in the penalty phase, including victim impact evidence, the nature and circumstances of the offense, and the history and character of the defendant. See § 557.036.3, RSMo Cum.Supp.2004.

During the sentencing phase of Berry’s trial, the State introduced the testimony of four police officers, all of whom testified about instances in which they talked with Carita Johnson. Two of the officers, Officer Volker and Officer Whitaker, each testified as to their response to a police report by Carita that Berry had hit her. Officer Volker testified that Carita told him on one occasion that she and Berry had argued, Berry hit her face, knocking her down, and then took her shoe and left. The second officer, Officer Whitaker, testified that Carita told him that when she and Berry were both at work at a local fast food restaurant, they had a fight. She said he punched her, which knocked her down, and then kicked her when she was on the ground. The officer said Carita had a bruise over her right eye, but no other signs of injury. He said she was crying and talking very fast.

A third officer, Officer Growney, who was summoned to the scene when Berry jumped out of a moving car, testified that Carita told him that she and Berry had been arguing. Carita said that Berry jumped out of her moving vehicle after she told him that she did not want to be with someone who was mentally unstable. Berry, who was still sitting on the street and was somewhat shaken up, told the officer he did not know what happened. A fourth officer, Officer Stanze, testified that on another occasion Carita told him that she and Berry had been in her car, that they had an argument and started struggling over keys, and that Berry obtained some of the keys and then left.

In each instance, defense counsel objected on grounds of the inadmissibility of hearsay. The defense also objected on the ground that the evidence violated Berry’s constitutional right to confront witnesses. The prosecution attempted to defend the testimony on the basis that it was “not being offered for the truth of the matter asserted,” but rather to “establish the history” of the couple’s relationship. The court overruled defendant’s objections.

Relying on Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), Berry asserts that “[n]on-testimonial hearsay evidence may be admissible [only] if it falls within a firmly-rooted exception to the hearsay rule or is supported by particularized guarantees of trustworthiness.” Berry says that the hearsay testimony of the four police officers clearly was offered for the truth of the matters asserted therein (ie., that Berry had abused the victim before and was mentally unstable) and did not fall within any exception to the general rule prohibiting admission of hearsay evidence. He claims that he was prejudiced by the admission because the evidence was extremely inflammatory and encouraged the jury to increase the amount of his punishment.

The State, arguing that the court did not abuse its discretion in admitting this evidence, even if it was offered for the truth of it, points out that in the penalty phase here, unlike in a capital case, the jury is not required to make any specific findings beyond a reasonable doubt in determining the defendant’s sentence. See State v. Jaco, 156 S.W.3d 775, 780-81 (Mo. banc 2005) (at section 557.036 penalty phase hearing, jury not required to find facts beyond a reasonable doubt to impose a sentence that is within an unenhanced range of punishment). Because there is no requirement of proof beyond a reasonable doubt, the State reasons, hearsay evidence may be admitted in this type of penalty phase hearing without violating the defendant’s due process rights. The State likens this sentencing hearing to a probation revocation hearing, where less due process is afforded.

Next, the State argues that even if the Sixth Amendment right to confront witnesses applies to a non-capital penalty phase hearing, that amendment is not implicated here because this hearsay was “non-testimonial,” unlike testimony that occurred in a prior trial or deposition. Citing the recent decision of the United States Supreme Court on the right of confrontation, Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the State concludes that admission of “non-testimonial” hearsay statements does not violate a defendant’s Sixth Amendment right to confront witnesses.

There is ample doubt and confusion about the application of the Sixth Amendment in this context. See, e.g., Lilly v. Virginia, 527 U.S. 116, 140-43, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (Breyer, J., concurring); Crawford, 541 U.S. at 69-76, 124 S.Ct. 1354 (Rehnquist, C.J., concurring, with whom O’Connor, J., joined).

In Crawford, the defendant was charged with first-degree assault after he stabbed a man who allegedly tried to rape his wife. The defendant and his wife, who was present at the time of the stabbing, gave separate interviews to police. 541 U.S. at 38-40, 124 S.Ct. 1354. The wife’s account of the altercation differed from her husband’s, particularly in regard to his denial that the man had drawn a weapon before her husband stabbed him. The wife refused to testify at her husband’s trial on grounds of marital privilege. The State introduced, over objection, the tape recorded statement the wife made to interrogators. Defendant was convicted. Id. at 40-41, 124 S.Ct. 1354. Ultimately, after reversal and reinstatement in the state court system, the U.S. Supreme Court granted certiorari to consider whether the state’s use of the wife’s statement violated the Confrontation Clause. Id. at 42, 124 S.Ct. 1354. The court held that it did. Id. at 68-69, 124 S.Ct. 1354. Central to the court’s holding was a recognition that the formality of wife’s statement to interrogators was such that it was “testimonial” in nature. IcL at 61,124 S.Ct. 1354.

Berry has no case in point involving similar non-testimonial out-of-court victim statements made to a police officer. The few cases we have located have not noted a Sixth Amendment violation in a similar context, whether in the guilt phase of the trial or the sentencing phase.

For instance, in State v. Beam, 206 Neb. 248, 292 N.W.2d 302 (1980), the defendant was charged with murdering his wife. A deputy sheriff testified at trial that, two days before the wife was killed, the deputy found the defendant’s wife in a truck in a church parking lot in the middle of the night. The wife said she was afraid to return to her. residence because her husband had beat her up in a fight. The deputy arranged for her to get a room at a motel. Id. at 304. When the deputy presented his testimony at trial, the defense objected on grounds of hearsay. The court allowed the testimony under the “residual hearsay exception” of Rule 804(b)(5), finding the statements to be sufficiently reliable to warrant admission. Id. at 306. Thus, in Beam, not only was there no concern about violating the right of confrontation, but the evidence was held to be admissible under a “residual” exception to the hearsay rule.

Even in other cases where similar out-of-court statements made by the victim to police officers were held to be inadmissible and prejudicial hearsay in the guilt phase of a trial, the grounds of reversal were not related to a violation of the right of confrontation. See, e.g., State v. Revelle, 957 S.W.2d 428 (Mo.App.1997) (in prosecution for murder of wife, wife’s earlier handwritten note concerning the status of the marriage was held to be inadmissible and prejudicial hearsay); State v. Hollingsworth, 78 N.C.App. 578, 337 S.E.2d 674 (1985) (defendant accused of assaulting his mother; mother had no memory of the subject matter of her earlier statements; mother also had recanted earlier statements prior to trial); State v. Apperson, 85 Or.App. 429, 736 P.2d 1026 (1987) (out-of-court statements made by assault victim to police officer were found non-reliable because there was evidence the victim had been angry with the defendant because the defendant had been seeing defendant’s ex-wife; held inadmissible). In those cases, reversal was based on the fact that the out-of-court statements were inadmissible and prejudicial hearsay. Berry lacks authority as to any case reversing a conviction on Sixth Amendment grounds.

Here, the comments that Carita made to the police were written down by officers in the course of their duties. The officers had at that time no apparent bias or reason to amplify or exaggerate Carita’s remarks. Carita’s remarks were not “testimonial” in the sense that they were not solemn proceedings, as in a deposition or a formal interrogation. However, because Carita was deceased, Berry could not cross-examine her as to whether she was lying or exaggerating or had somehow misperceived or misunderstood Berry’s actions. Thus, at least some of the significant dangers associated with hearsay evidence were present.

It appears that the statements were offered to prove the truth of the matters asserted — that Berry had hit Carita at least twice before, and that he was volatile and unstable. The State argued at trial that the statements were not offered for the truth of the facts asserted by Carita, but were offered essentially to show the turbulent “nature of the relationship.” That prompts the question, of course, as to the relevance of knowing, for sentencing purposes, as an abstract proposition, that the relationship was turbulent. Is it not true that the turbulence is material to sentencing only if Berry were a significant factor in the turbulence? Thus, we believe the State was actually offering the evidence to show that Berry was erratic and prone to violence. The statements were designed more to reveal certain things about Berry’s character than they were to make abstract assertions about the relationship.

The prosecution did not argue at trial that the statements fit within a specific exception to the hearsay rule, and the State does not so argue now. It might have been arguable that the two statements about Carita being hit by Berry were admissible as excited utterances. However, the State does not argue such an exception nor any other exception.

We have no substantial reason to believe that hearsay evidence (an out-of-court statement that does not qualify under an exception) should generally be admitted in the sentencing phase under section 557.036. It is true that traditionally, in cases of judge sentencing as opposed to jury sentencing, hearsay is routinely permitted in the form of pre-sentencing investigations and in other ways. However, we note that in the punishment phase of capital cases under section 565.030, hearsay evidence has frequently been excluded. See, e.g., State v. Glass, 136 S.W.3d 496, 519 (Mo. banc 2004). This is because juries have more difficulty than judges in recognizing the dangers of relying on hearsay statements. The rules of evidence were developed for jury trials. See Revelle, 957 S.W.2d at 434 (Shrum, J., concurring) (citing 1 Wigmore, Evidence, §§ 4, 4b (Tiller’s rev.1983)).

Accordingly, we believe that in a jury trial, whether involving a determination of guilt or a sentencing proceeding under section 557.036, hearsay that does not qualify under an exception to the rule should be excluded, as it would be in any other jury proceeding. We recognize that the State’s argument that the evidence was offered to show the “nature of the relationship” sounded plausible at the time to the scholarly trial court. However, we conclude that, despite the State’s assertion that the evidence was not offered for the truth of it, it was an abuse of discretion in this case for the court to receive the hearsay evidence over specific, thorough and repeated objection.

We turn now to a consideration of whether the admission of hearsay statements in the sentencing phase was prejudicial. In this regard, we note the following factors:

• The jury had already determined that Berry murdered Carita and had already been afforded a taste of Berry’s violent propensities in the guilt phase. Sergeant Nero testified that Berry had physically assaulted Carita earlier on the night of the murder by holding her blouse and hitting her in the face with his fist. The jury had also seen the extensive videotaped statements of Berry given to police.
• There was also testimony in the guilt phase that Berry was jealous and occasionally made a “big scene” and that he had harassed Carita and threatened to kill her. Carita’s mother testified in the guilt phase that Carita had to change her place of employment to avoid Berry’s harassment.
• In the sentencing phase, Carita’s mother testified that on one occasion when Carita refused to see Berry, Berry tried to break through the door to Carita’s house, and, when he could not do so, then intentionally broke her bedroom window before he left.
• When Berry testified at the sentencing proceeding, he admitted being rough with Carita, including tripping her on purpose to make her fall (although he denied bruising her). Berry also admitted arguing over the car keys (which he said was due to the fact that he did not want Carita driving because she was drunk) and taking some of her keys. He also admitted jumping out of the moving car. He did not disclose his reason for jumping out of the moving car because he did not want to make Carita “look bad.”
• Berry acknowledged he tried to be “in control” of Carita and that “a lot of people” said he was “kind of controlling.” He said it was “more of like a father figure type of control.”
• Accusations were presented by Berry’s former girlfriend (and the mother of his child) that Berry was violent to her. She said that he had punched her in the back of the head on numerous occasions. She testified that once when he was very angry, he choked her, and that it took physical intervention by two friends to get him off her and make him leave. She also testified that Berry had hit her “all over her body” on several occasions.
• Two of the four out-of-court statements of Carita did not involve accusations that Berry struck Carita. Also, in only one case was there an observable injury to Carita; that was a bruise on her face, observed by Officer Whitaker. One of the other statements showed that Berry jumped out of a moving car, which Berry himself did not deny. The other was a fight over car keys (which Berry also admitted) but did not involve an allegation that Berry hit anyone.
• Berry testified in his own behalf in the sentencing phase. Even if the trial court had rejected the hearsay evidence on that basis, because Berry testified in his own behalf, the prosecutor, in cross-examination, would have had a good faith basis to question Berry about the prior incidents with Carita. The incidents were logically relevant to sentencing. If asked about them, Berry would have been forced to deny that such incidents occurred or to admit them and discuss them. Neither option would have been particularly desirable. The defense makes no argument that Berry would not have testified in his own behalf in the sentencing phase had it not been for the hearsay evidence introduced in the State’s portion of the sentencing phase. In other words, there is no argument that the hearsay evidence forced the defense to change its strategy-
• It appears that the accusations likely would have surfaced and created some difficulty for Berry, regardless of whether it was on cross-examination or in the State’s portion of the case. If the State had not offered the hearsay in its portion of the sentencing case, the jury still would have heard a significant amount about Berry’s erratic and violent tendencies.
• Even without Carita’s out-of-court statements, there was overwhelming evidence Berry was a young man lacking self-control and easily provoked to violence against women. His own testimony seemed to lack perspective in this regard, even as to the violent actions he acknowledged.

Because the jury had already determined that Berry murdered Carita, and because the jury had abundant other evidence of Berry’s temperament, it is difficult to accept the notion that Berry received a more severe sentence because of the admission of Carita’s out-of-court statements than he would have otherwise. Consequently, in this case involving an obviously troubled young man, we see no prejudice from the erroneous admission of Carita’s statements. Point III is denied.

Judgment is affirmed.

ULRICH and ELLIS, JJ., concur.

      . The first of the pertinent jury instructions, Instruction 5, instructed as to the elements of second-degree murder. It concludes: "However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the second degree."

      Instruction 6 begins, then: "If you do not find the defendant guilty of murder in the second degree, you must consider whether he is guilty of voluntary manslaughter." It also concludes with: "However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of voluntary manslaughter."

      Instruction 8 begins: "If you do not find the defendant guilty of murder in the second degree or voluntary manslaughter, you must consider whether he is guilty of involuntary manslaughter in the first degree.” It concludes with the same "unless you find and believe from the evidence beyond a reasonable doubt” language as in Instructions 5 and 6.
      Instructions 7 and 9 were converse instructions submitted by the defendant, stating simply, "If you have a reasonable doubt ..., you must find the defendant not guilty of [the applicable charge].”

      . See § 565.030.4, RSMo 2000, which specifically provides that evidence presented in aggravation and mitigation of punishment in a capital case is "subject to the rules of evi-cience at criminal trials” and that evidence of aggravating factors must be found beyond a reasonable doubt.

      . The Federal Rules of Evidence and some states have a '‘residual” exception, under which statements not specifically covered by codified exceptions to the hearsay rule still may be admissible. The Federal residual exception provides that shell a statement, if it has "equivalent circumstantial guarantees of trustworthiness,” is not excluded by the hearsay rule, if the court determines that it is offered as evidence of a material fact, that it is more probative on the point for which it is offered than any other evidence the proponent can reasonably procure, and that the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement. See Fed. Rules of Evid., Rule 807, formerly Rules 803(24) and 804(b)(5).

      . In the case of the two statements in which Carita accused Berry of assaulting her, she was, according to the officers, distraught, crying, and talking very fast. However, we have no knowledge of the time lapse between the alleged incident and the report to officers; we cannot say the statements should have been admitted on that basis.

      . In the case of the statement involving Berry's act of jumping from the car, it appears that Berry was present with Carita at the time the officer arrived at the scene. The statement thus could have been treated, perhaps, as an admission, depending on whether Berry overheard Carita’s statement to the officer. The officer said Berry did not have serious injuries, but was “shaken up” as a result of jumping from the car, and was taken to the hospital for "minor stuff.” Berry may have been sufficiently alert to have denied Carita’s assertions at the time if her comments were made in his presence. Again, because the factual record is sparse, we do not know that such statement should have been admitted, on the basis of being an admission of a party.

      . In his testimony in the sentencing phase, he was willing to admit some of his violent actions, but he offered as justification the fact that Carita threatened him or was, he thought, getting ready to assault him.