source: Caselaw Access Project

author: RICHARD B. TEITELMAN, Judge. WILLIAM RAY PRICE, JR., Chief Justice, MARY R. RUSSELL, Judge, ZEL M. FISCHER, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Brian Joseph DORSEY, Appellant.
    No. SC 89833.
    Supreme Court of Missouri, En Banc.
    July 16, 2010.
    Rehearing Denied Aug. 31, 2010.

      Janet M. Thompson, Public Defender’s Office, Columbia, for appellant.

      Shaun J. Mackelprang, Robert Ahsens, Atty. General’s Office, Jefferson City, for respondent.
   RICHARD B. TEITELMAN, Judge.

Brian J. Dorsey pleaded guilty to two counts of first-degree murder, section 565.020, RSMo 2000. The jury assessed sentences of death for each murder, and the trial court sentenced Dorsey accordingly. This Court has exclusive jurisdiction. Mo. Const, art. Y, sec. 3. The judgment is affirmed.

FACTS

On December 23, 2006, Brian Dorsey called his cousin, Sarah Bonnie, to borrow money to pay two drug dealers who were in his apartment. Sarah’s husband Ben called his friend, Darin Carel, and told him that he needed help getting the people to leave Dorsey’s apartment. Sarah and Ben drove to Dorsey’s apartment. After the two drug dealers left the apartment, Dorsey went with Sarah and Ben to their home, where they were joined by Carel and several others. Sarah, Ben, Dorsey and Sarah’s four-year old niece, Jade, stayed at Sarah and Ben’s home.

At some point after Sarah and Ben went to bed, Dorsey took a single-shot shotgun from the garage and fatally shot Sarah in the jaw from a distance of approximately 12 inches. Dorsey emptied the chamber, re-loaded the gun, pressed it against Ben’s right ear and shot. Ben died. Dorsey then engaged in sexual intercourse with Sarah’s body.

After killing Sarah and Ben, Dorsey took Sarah’s social security card from a wallet and scattered the contents of the wallet next to her body. He stole various items of personal property from the home and poured bleach on Sarah’s torso, geni-tais and thighs. Dorsey left the home in Sarah’s vehicle, drove to Jefferson City and met with a woman from whom he had borrowed money to buy drugs. Dorsey tried to pay the woman with items later determined to belong to Sarah and Ben.

On the afternoon of December 24, Sarah’s parents went to check on Sarah and Ben because they did not show up for a family gathering. They went inside and found four-year-old Jade sitting on the couch watching television. Jade told her grandparents that she had tried to awaken Sarah all morning but “she won’t wake up.” Sarah’s parents called for Sarah and knocked on the bedroom door. There was no response. The door was locked, so Sarah’s father forced the door open. He saw Sarah and Ben on the bed. After Sarah’s father confirmed that Sarah and Ben were dead, he left the home with Jade and Sarah’s mother and contacted the police.

The ensuing investigation confirmed that Sarah and Ben both died from single gunshot wounds to the head. Police discovered the “pour marks” over Sarah’s torso and genitals where Dorsey had poured what appeared to be bleach. Additionally, testing revealed that that sperm cells recovered from Sarah’s body contained DNA consistent with Dorsey and men from a common paternal lineage. This eliminated Ben as a source of the sperm. Statistical analysis revealed that the DNA profile would not be expected to occur in more than .23 percent of the Caucasian population.

On December 26, Dorsey surrendered to police and admitted that he was “the right guy concerning the deaths of [Sarah and Ben].” Dorsey was charged with two counts of first-degree murder. In March 2008, Dorsey pleaded guilty to both counts. Following a separate penalty phase trial, the jury assessed sentences of death for each murder, and the trial court sentenced Dorsey accordingly. Dorsey raises seven points on appeal.

ANALYSIS

I. Instructional error

In his second, sixth and seventh points on appeal, Dorsey argues the trial court improperly instructed the jury.

Instruction No. 10

In his second point on appeal, Dorsey argues that the trial court plainly erred in submitting Instruction No. 10 based on MAI-CR 3d 314.46. Instruction 10 stated as follows:

As to Count I and Count II, you are not compelled to fix death as the punishment even if you do not find the existence of facts and circumstances in mitigation of punishment sufficient to outweigh the facts and circumstances in aggravation of punishment. You must consider all the evidence in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you.

Dorsey argues that the reference to Count I and Count II was improper because it instructed the jury to consider evidence as to both counts in deciding the punishment for each individual count and, therefore, “allowed the jury to sentence [him] to death on each count based on evidence applicable to the other count.”

Plain error is found when the alleged error “facially establishes] substantial grounds for believing a manifest injustice or miscarriage of justice occurred.” State v. Salter, 250 S.W.3d 705, 713 (Mo. banc 2008), quoting State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003). To demonstrate that an instructional error constitutes plain error, the defendant must show that the trial court “so misdirected or failed to instruct the jury” that the error affected the jury’s verdict. Id.

An instruction patterned after MAI-CR3d 314.46 must be given during the penalty phase. The general instructions provide that when there “is more than one count of murder in the first degree where the death penalty is not waived, repeat this series of instructions for each count.” The trial court erred in submitting Instruction No. 10 because the instruction was not repeated for both Count I and Count II. The issue then becomes whether this error so misdirected the jury that it resulted in a manifest injustice.

Although Instruction No. 10 was erroneous, Dorsey was not prejudiced. The jury was instructed • properly that, with respect to each murder, it had to find one or more statutory aggravating circumstances beyond a reasonable doubt. The jury further was instructed that, as to each count, it had to determine whether evidence in mitigation of punishment outweighed evidence in aggravation of punishment. Finally, there were two separate verdict-mechanics instructions instructing the jury regarding the decision-making process that had to be applied to both Count I and Count II. When considered in conjunction with the other proper instructions in the case, the fact that Instruction No. 10 referred to both counts simply indicated to the jury that the “consider all the evidence” directive had to be applied to both counts individually. The trial court did not plainly err by submitting Instruction No. 10 to the jury.

Instruction Nos. 7 and 9

Dorsey’s sixth point is that the trial court plainly erred in submitting Instruction Nos. 7 and 9 regarding the “weighing step” in which the jury assesses the relative strength of the aggravating and mitigating evidence in the ease. Dorsey first asserts that the instructions improperly failed to require the state to prove beyond a reasonable doubt that the evidence in aggravation outweighs the mitigating evidence. The penalty phase instructions in this case required the jury to determine whether there were facts or circumstances in mitigation of punishment that were sufficient to outweigh the facts or circumstances in aggravation of punishment. The court did not instruct the jury that the “weighing step” was subject to the beyond a reasonable doubt burden of proof. Statutory aggravators have to be submitted to the jury and found beyond a reasonable doubt. State v. Whitfield, 107 S.W.3d 253, 258, 259 (Mo. banc 2003). However, the jury’s “weighing” of the aggravation and mitigation evidence is not subject to proof beyond a reasonable doubt because it is not a factual finding that increases the potential range of punishment. Zink v. State, 278 S.W.3d 170, 192-193 (Mo. banc 2009). See also State v. Glass, 136 S.W.3d 496, 520-21 (Mo. banc 2004); State v. Gill, 167 S.W.3d 184, 193 (Mo. banc 2005).

Next, Dorsey argues that the trial court erred by not instructing the jury that the state had to prove evidence of unadjudicat-ed bad acts beyond a reasonable doubt. Glass asserts that in State v. Debler, 856 S.W.2d 641 (Mo. banc 1993), this Court noted that unadjudicated bad acts lack the reliability of prior convictions and that there must be some instruction guiding the jury’s consideration of that evidence. De-bler is distinguishable because the issue there was the lack of notice. Debler does not require the jury to be instructed on what weight to give evidence of unadjudicated criminal acts. Glass, 136 S.W.3d at 517; see also State v. Christeson, 50 S.W.3d 251, 269-70 (Mo. banc 2001); State v. Ervin, 979 S.W.2d 149, 158 (Mo. banc 1998). This Court repeatedly has rejected the claim that the admission in the penalty phase of unadjudicated bad acts violates due process because the state is not required to prove those acts beyond a reasonable doubt. Glass, 136 S.W.3d at 517.

Finally, Dorsey argues that the instructions erroneously placed the burden of proof on him with respect to mitigating evidence. This Court previously has addressed this argument and rejected it. In State v. Johnson, this Court held that the same mitigating evidence instruction at issue in this case does not shift the burden of proof improperly. 284 S.W.3d 561, 588-89 (Mo. banc 2009); see also Kansas v. Marsh, 548 U.S. 163, 170-71, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006); State v. Taylor, 134 S.W.3d 21, 30 (Mo. banc 2004).

Duplicative Aggravators

Dorsey’s last claim of instructional error is that the statutory aggravating circumstances submitted to the jury were duplicative and, therefore, allowed the jury to “double count them.”

With respect to Ben’s murder, the jury found three aggravating circumstances:

1. [That] the murder of Benjamin Bonnie was committed while the defendant was engaged in the commission of another unlawful homicide of Sarah Bonnie.
2. [That] the defendant murdered Benjamin Bonnie for the purpose of the defendant receiving money or any other thing of monetary value from Benjamin Bonnie or another.
3. [That] the murder of Benjamin Bonnie involved depravity of mind and [that], as a result thereof, the murder was outrageously and wantonly vile, horrible and inhuman.

The jury was instructed that it only could find “depravity of mind” if it found “[t]hat the defendant killed Benjamin Bonnie as a part of defendant’s plan to kill more than one person and thereby exhibited a callous disregard for the sanctity of all human life.” Although the first and third aggravators related to the fact that Dorsey killed two people, they emphasized different aspects of the murders. The first aggravator focused on the fact that Dorsey actually killed Sarah and Ben, while the third focused on the fact that Dorsey planned to kill them. This sufficiently differentiated the aggravators. See State v. Anderson, 79 S.W.3d 420, 441-442 (Mo. banc 2002) (rejecting claim that the aggravators of “multiple homicides” and “depravity of mind” based on a plan to kill more than one person were duplicative).

With regard to the murder of Sarah Bonnie, the jury found four aggravating circumstances:

1. [That] the murder of Sarah Bonnie was committed while the defendant was engaged in the commission of another unlawful homicide of Benjamin Bonnie.
2. [That] the defendant murdered Sarah Bonnie for the purpose of the defendant receiving money or any other thing of monetary value from Benjamin Bonnie or another.
3. [That] the murder of Sarah Bonnie involved depravity of mind and [that], as a result thereof, the murder was outrageously and wantonly vile, horrible and inhuman.
4. [That] the murder of Sarah Bonnie was committed while the defendant was engaged in the perpetration of rape.

The jury was instructed that it only could find “depravity of mind” if it found “That the defendant, while killing Sarah Bonnie or immediately thereafter, had sexual intercourse with her.” The jury further was instructed that “[a] person commits the crime of forcible rape if the person has sexual intercourse with another person by the use of forcible compulsion.” Dorsey argues that the third and fourth aggravators were duplicative. Although the two aggravators both related to the fact that Dorsey had sexual intercourse with Sarah Bonnie, they emphasized different aspects of the murder. The third aggravator focused on Dorsey’s “depravity of mind” in committing the murder by focusing on the fact that he sought sexual gratification during the murder. The fourth aggravator focused on the forcible rape that Dorsey committed contemporaneously with the murder and, therefore, focused on the fact that Dorsey committed two violent crimes simultaneously. As with the aggravators submitted for Ben’s murder, the aggrava-tors submitted for Sarah’s murder were not duplicative.

II. Statutory Aggravator: Rape

In his third point, Dorsey argues there was insufficient evidence to support that statutory aggravating circumstance that he raped Sarah. Specifically, Dorsey asserts there was no evidence that Sarah was alive for the sexual assault and, consequently, there was no evidence of sexual contact through forcible compulsion and without her consent.

Missouri’s forcible rape statute provides that “a person commits the crime of forcible rape if such person has sexual intercourse with another person by the use of forcible compulsion.... ” Section 566.030(1). The statute is silent as to whether the victim must be alive during the sexual contact at the time of penetration. In State v. McLaughlin, this Court invoked the “ongoing criminal assault rule” to hold that when the forcible compulsion that leads to the rape begins before the victim’s death, the defendant is guilty of rape even if the jury believes the defendant killed the victim before penetration or before the sexual assault was concluded. 265 S.W.3d 257, 267 (Mo. banc 2008). In other words, “[i]t is rape where defendant both kills and sexually assaults a victim in a single, continuous act, or in a series of closely related acts, and where, as a part of the course of conduct, defendant uses forcible compulsion against the victim, even if portions of the rape, including penetration, occur once the victim already has been killed.” Id. As such, whether Sarah was alive for the sexual assault is immaterial.

There was sufficient evidence to support la finding that Dorsey murdered Sarah Iwhile committing a rape. The evidence showed that Dorsey used deadly force to overcome Sarah’s resistance and then engaged in sexual intercourse with her. ■DNA testing revealed the existence of Iperm cells that almost certainly came from Dorsey or another man from his pa-lernal lineage. There was no other man present at Sarah and Ben’s house on the light of the murder, except Dorsey, who It this profile. Finally, the fact that Dor-ley poured bleach over Sarah’s torso and Benitalia indicates that he attempted to Bimove physical evidence of the rape be-Bire leaving the house. Dorsey’s argument that there was insufficient evidence ■ support the forcible rape aggravator is Bithout merit.

I III. Statements in voir dire H and closing argument

In his fourth point, Dorsey argues Hat the trial court committed plain error H failing, on its own initiative and without Hjeetion from Dorsey, to declare a mistri-Hdue to several statements by the prose-Hsor during voir dire and closing argu-Hnt. Under plain error review, Dorsey ^Ist prove that the alleged misstatements Hi a decisive impact on the outcome of the trial. State v. Middleton, 995 S.W.2d 443, 456 (Mo. banc 1999).

Dorsey argues that, on three occasions, the state misstated the law during voir dire. First, Dorsey argues that the prosecutor improperly referred to previous statutory language that required a life sentence if the trier of fact did not find that the aggravating circumstances “warrant” the death penalty. Section 565.030.4(2). It is true that section 565.030.4 no longer employs the term “warrant.” However, the current version of the statute still provides that a life sentence will be imposed “[i]f the trier decides under all of the circumstances not to assess and declare the punishment at death.” Section 565.030.4(4), RSMo Cum.Supp.2009. Moreover, section 565.032.1(2) requires the trial court to instruct the jury to determine whether “the evidence as a whole justifies a sentence of death or a sentence of life imprisonment without eligibility for probation, parole, or release except by act of the governor.” The prosecutor’s use of the term “warrants” accurately conveyed to prospective jurors the basic decision-making process that would be required of jurors.

Second, Dorsey argues the prosecutor improperly stated that Dorsey bore the burden of proving that mitigation evidence was stronger than evidence of aggravating circumstances. During voir dire, the prosecutor stated:

But in that process of weighing them, you weigh all of the facts in the case, aggravating circumstances, and mitigating circumstances, and if you find unanimously, you know, those mitigating factors just aren’t enough to overcome or outweigh the aggravating facts taken as whole, then that step go [sic] is over and you now go to step three. And that is decision time with both options open.

The prosecutor’s comments are a correct statement of the law. Section 565.030 provides that the jury must impose a sentence of life imprisonment if it “concludes that there is evidence in mitigation of punishment ... sufficient to outweigh the evidence in aggravation.” In Marsh, 548 U.S. at 178-179, 126 S.Ct. 2516, the Supreme Court made it clear that “a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.”

Finally, Dorsey argues that the prosecutor misstated the law by stating that in the “final step,” the jury’s “choice, whether for death or life in prison without parole, must be unanimous, either way.” Dorsey argues that this statement improperly informed the jury that a life sentence only could result from unanimous agreement. Dorsey is correct that a life sentence can result when the jury cannot decide unanimously certain facts regarding punishment. The prosecutor made this clear by specifically telling the prospective jurors that a non-unanimous jury would be required to assess a life sentence. The trial court did not err in declining to declare, sua sponte, a mistrial based on the prosecutor’s statements during voir dire.

Dorsey further argues that on three occasions in closing argument the prosecutor made improper arguments. First, Dorsey argues the prosecutor improperly stated that “if you find one of [the statutory aggravators] for one or both counts, then step one is satisfied ... then you go to step two.” Dorsey argues this statement could have led the jurors to believe that “if they found a statutory ag-gravator as to either Count, step one was satisfied as to both Counts.” This argument is without merit. The prosecutor reminded the jury that there were different aggravating circumstances “for each count” and that the jury has to “make those decisions independently.” Moreover, Dorsey’s counsel admitted the existence of aggravating circumstances under both counts by conceding that Dorsey had killed each victim during the commission of another homicide.

Second, Dorsey argues the prosecutor improperly characterized him as “evil” to persuade the jury to decide his sentence on the basis of “passion and prejudice” instead of the law. The prosecutor’s statements were made in response to defense counsel’s argument that the evidence showed that Dorsey “does have something inside of him that good people like and that good people can feel devoted enough and understanding enough to” to testify on his behalf. Specifically, the prosecutor argued as follows:

That’s not — Now, is there good and evil in every human being? Of course there is.
The proportions are different from one I person to the next, perhaps, but we all have the capacity to do great evil and to do great good. That’s not the point | here. It never was.
The question is: Given everything you| know, what is the appropriate punishment for this man and this case, takingl all of the facts into consideration? Be-I cause these acts and the repercussions! of those acts on these families is evil.| And make no mistake, friends, there is evil in the world.
A much smarter man than I am onccl said, “The only thing necessary for evil to triumph is for good men to do noth! ing.” Well, what I’m afraid of is, if you do not come back with the most sever! penalty, it will have the impact of havinj done nothing.

Prior cases have held that even if th| prosecutor does characterize the defendar directly in a harsh light, there is no prejudice if the evidence supports the characterization. See, e.g., State v. Simmons, 944 S.W.2d 165, 182 (Mo. banc 1997) (no error in characterizing the murder defendant during the guilt phase of closing argument as a “predator” who had an “evil mind” where the characterizations were supported by evidence that the defendant premeditated the victim’s death and threw the victim from a bridge). In this case, the prosecutor’s reference to “evil” was not a reference to Dorsey’s character but instead was aimed at focusing the jury on the consequences of Dorsey’s crimes. The argument was permissible.

Dorsey also argues the trial court erred in allowing the prosecutor to state in his closing argument that if the jury elected to give a life sentence, then the jury would have “done nothing.” In State v. Forrest, 183 S.W.3d 218, 228 (Mo. banc 2006), this Court upheld the use of the same argument using the same quote, noting that the quote “interrelate[d] with the concept of whether the jury should be merciful to Appellant.” The use of this quote was permissible, and the trial court did not plainly err in permitting the argument.

IV. Crime scene photographs

In his fifth point, Dorsey asserts that the trial court abused its discretion in admitting exhibits 20, 21, 28 and 29 consisting of four color photographs of the victims at the crime scene. Dorsey argues that the photographs were largely irrelevant, duplicative, and introduced solely to engender passion and prejudice among the jurors.

A trial court has broad discretion in the admission of photographs, and its decision will not be overturned absent an abuse of discretion. State v. Johnson, 244 S.W.3d 144, 161 (Mo. banc 2008). Generally, gruesome photographs are relevant and admissible if they: (1) show the nature and location of wounds; (2) enable jurors to better understand the testimony at trial; and (3) aid in establishing an element of the state’s case. Id. A relevant photograph should not be excluded on the grounds that the crime itself was gruesome. Id.

Exhibit 20 showed the position of Sarah and Ben in their bed. This photograph is relevant because the jury was required to determine the existence of aggravating circumstances, including whether the murders were committed during the commission of another murder and reflected a “depravity of mind.” The fact that the bodies were so close to one another was relevant to the state’s theory that the murders were related and that Dorsey planned to kill both Ben and Sarah contemporaneously. The trial court did not abuse its discretion in admitting Exhibit 20.

Exhibit 21 showed Sarah’s body and focused on her torso and genitals. The photograph showed the “pour marks” on her body and the contents of her wallet around her body. This photograph was relevant to prove the aggravating circumstance that Dorsey committed the murders to obtain money or items of value from Sarah and Ben. The depiction of the “pour marks” supported the inference that Dorsey attempted to eliminate evidence of sexual contact. This inference made the photograph relevant to the state’s argument that Dorsey raped Sarah while committing the murder. The trial court did not abuse its discretion in admitting Exhibit 21.

Exhibits 28 and 29 were autopsy photographs depicting the wounds suffered by both victims. The photographs were relevant because they assisted the jury in understanding the medical examiner’s testimony regarding the nature and location of the wounds. See State v. Murray, 744 S.W.2d 762, 772 (Mo. banc 1988) (autopsy photographs relevant to assist jury in understanding medical examiner’s testimony). The trial court did not abuse its discretion in admitting Exhibits 28 and 29.

V. Proportionality

Dorsey asserts his death sentence is excessive and disproportionate due to several alleged errors at trial and because other similar cases have resulted in sentences of life imprisonment instead of the death penalty.

Section 565.035 requires this Court’s independent review of Dorsey’s death sentences. The statute requires this Court to determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in subsection 2 of section 565.032 and any other circumstance found; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence, and the defendant.

Section 565.035.3.

Passion and prejudice

Dorsey argues that the allegations of trial error covered in Points II, III, V and VII of his brief establish that his death sentence was the result of passion, prejudice and other arbitrary factors. However, as previously discussed, Dorsey’s allegations of trial error are without merit. Consequently, Dorsey cannot establish that these alleged errors resulted in a sentence of death imposed under the influence of passion, prejudice or any other arbitrary factor.

Aggravating circumstances

With respect to Ben’s murder, the jury found three aggravating circumstances:

1. [That] the murder of Benjamin Bonnie was committed while the defendant was engaged in the commission of another unlawful homicide of Sarah Bonnie.
2. [That] the defendant murdered Benjamin Bonnie for the purpose of the defendant receiving money or any other thing of monetary value from Benjamin Bonnie or another.
3. [That] the murder of Benjamin Bonnie involved depravity of mind and [that], as a result thereof, the murder was outrageously and wantonly vile, horrible and inhuman.

With respect to the murder of Sarah Bonnie, the jury found four aggravating circumstances:

1. [That] the murder of Sarah Bonnie was committed while the defendant was engaged in the commission of another unlawful homicide of Benjamin Bonnie.
2. [That] the defendant murdered Sarah Bonnie for the purpose of the defendant receiving money or any other thing of monetary value from Benjamin Bonnie or another.
3. [That] the murder of Sarah Bonnie involved depravity of mind and [that], as a result thereof, the murder was outrageously and wantonly vile, horrible and inhuman.
4. [That] the murder of Sarah Bonnie was committed while the defendant was engaged in the perpetration of rape.

The evidence supported each of the aggravating circumstances found by the jury. There is no dispute that Dorsey killed each victim while engaged in the-unlawful homicide of the other. There was also strong evidence that Dorsey killed Sarah and Ben for pecuniary gain. After killing Sarah and Ben, Dorsey took their belongings and tried to pay his debts. As previously discussed, the evidence supported a finding that Dorsey murdered Sarah while committing a rape.

Similar cases

There are numerous death penalty cases in which this Court has upheld death sentences when more than one victim was murdered. See, e.g. State v. Deck, 303 S.W.3d 527, 552 (Mo. banc 2010); State v. Taylor, 298 S.W.3d 482, 513 (Mo. banc 2009); State v. Smith, 32 S.W.3d 532, 559 (Mo. banc 2000); State v. Mease, 842 S.W.2d 98 (Mo. banc 1992); State v. Hunter, 840 S.W.2d 850 (Mo. banc 1992); State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992); State v. Powell, 798 S.W.2d 709 (Mo. banc 1990); State v. Reese, 795 S.W.2d 69 (Mo. banc 1990); State v. Young, 701 S.W.2d 429 (Mo. banc 1985).

Likewise, this Court has affirmed a death sentence where the defendant raped the victim at the time of the murder. McLaughlin, 265 S.W.3d at 277. This Court has also affirmed death sentences where the defendant has killed for pecuniary gain. Forrest, 183 S.W.3d 218 at 232; State v. Storey, 40 S.W.3d 898, 915 (Mo. banc 2001). Dorsey’s death sentence is not disproportionate given the resolution of these similar death penalty cases.

In Deck, 303 S.W.3d at 527, (J. Stith concurring), and State v. Anderson, 306 S.W.3d 529, 544 (Mo. banc 2010) (J. Breckenridge concurring), a majority of this Court held that the proportionality review mandated by section 565.035.3 requires consideration of all factually similar cases in which the death penalty was submitted to the jury, including those resulting in a sentence of life imprisonment without the possibility of probation or parole. The concurring opinions in Deck and Anderson state the applicable law with respect to proportionality review.

Dorsey points to State v. Little, 861 S.W.2d 729, 730 (Mo.App.1993), in which the state unsuccessfully sought the death penalty for a defendant charged with three counts of first-degree murder, two counts of forcible rape, two counts of first-degree robbery and one count of attempted forcible rape. Although the facts of Little are no less gruesome than the facts of this case, the defendant in that case did not receive a death sentence. However, as the state notes, it may be that the result in Little was the aberration. Perhaps for that reason, Dorsey points to no other published opinions in Missouri involving multiple homicides and additional aggravating factors in which the jury declined to impose a death sentence. Dorsey’s death sentence is not disproportionate to other similar cases.

CONCLUSION

For the foregoing reasons, the judgment is affirmed.

WOLFF, BRECKENRIDGE and STITH, JJ., concur.

PRICE, C.J., RUSSELL and FISCHER, JJ., concur in joint separate opinion filed.

WILLIAM RAY PRICE, JR., Chief Justice, MARY R. RUSSELL, Judge, ZEL M. FISCHER, Judge,

concurring jointly.

We concur in the principal opinion except as to the proportionality analysis. We agree that Dorsey’s capital sentences are proportional to his crimes. However, we disagree that “similar” cases for proportionality review analysis requires consideration of cases that resulted in a sentence of life imprisonment without the possibility of probation or parole. We have concurred in this analysis in State v. Deck, 303 S.W.3d 527 (Mo. banc 2010); State v. Anderson, 306 S.W.3d 529 (Mo. banc 2010); and State v. Davis, 318 S.W.3d 618 (Mo. banc 2010) (Fischer, J., concurring), and have agreed with the longstanding precedent of proportionality review holding that consideration of “similar” cases requires consideration of only those cases resulting in a death sentence.

The mandates have been issued in Deck and in Anderson. Davis is now a final judgment. Although we have disagreed with the majorities’ proportionality analy-ses in those opinions, we must follow the decisions of this Court, even if we disagree, or even the decisions appear to be in error. See State v. Buchanan, 115 S.W.3d 841, 842 (Mo. banc 2003) (Benton, Price, & Limbaugh, JJ., jointly concurring); U.S. Const. art. VI; Mo. Const, art. V, sec. 2. Although we will continue to disagree with the majority’s proportionality analysis, we will not object in all opinions hereafter.

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


author: PER CURIAM. PATRICIA BRECKENRIDGE, Judge,

text:
    Jane TURNER, et al., Appellants, v. SCHOOL DISTRICT OF CLAYTON, et al., Respondents.
    No. SC 90236.
    Supreme Court of Missouri, En Banc.
    July 16, 2010.
    Rehearing and Modification Denied Aug. 24, 2010.

      Elkin L. Kistner and Sean M. Elam, Jones, Bick, Kistner & Jones PC, St. Louis, for the parents.
    Mark J. Bremer and D. Leo Human, Kohn, Shands, Elbert, Gianouliakis & Gil-jum LLP, St. Louis, for the Clayton school district.
    Richard B. Walsh Jr. and Evan Z. Reid, Lewis, Rice & Fingersh LC, St. Louis, for the transitional school district.
   PER CURIAM.

The dispositive issue in this case is the declaration that the straightforward and unambiguous language of § 167.131, RSMo 2000, applies as written. Plaintiffs are parents and children who reside in the City of St. Louis transitional school district but attend schools in the Clayton school district pursuant to tuition agreements. After the transitional school district lost its state accreditation, the parents and children sued the Clayton school district, the board of education of the City of St. Louis and the transitional district of the City of St. Louis claiming the transitional school district was required to pay their tuition pursuant to § 167.131. The parents and children claim the plain language of § 167.131 requires unaccredited school districts to pay the tuition costs of its students who choose to attend an accredited school in an adjoining district.

The parents and the school districts both moved for summary judgment. The circuit court granted the school districts’ motion for summary judgment finding that § 167.131 was inapplicable to the transitional school district of the City of St. iLouis. The court of appeals issued an bpinion, but because of the general interest bnd importance of the issues in this case, it transferred the case to this Court pursuant to Rule 83.02.

I On appeal, the parents and children ar-ique that § 167.131 requires the transition-II school district to pay the children’s tu-lion costs for attending schools in the ■Slayton school district. This Court holds Biat § 167.131’s unambiguous mandatory Bmguage requires unaccredited school dis-Bicts to pay the tuition of its students who ■loose to attend an accredited school in an Bijoining district.

I Facts

I Jane Turner, Susan Bruker, Gina Breit-Hifeld and William Drendel and their chil-H'en live within the boundaries of the tran-Hional school district of the City of St. ■mis. The parents’ children currently at-Hid schools in the Clayton school district Brsuant to personal tuition agreements Bfcween the parents and Clayton.

Hln June 2007, after the parents had en-H'ed into tuition agreements for the 2007-2008 school year, the transitional school district lost its accreditation. In response, one of the parents sent a letter to the Clayton school board asking it to charge the transitional school district for her children’s tuition pursuant to § 167.131 rather than charge her pursuant to the tuition agreement. The Clayton school district declined to seek payment from the transitional district.

The parents filed suit against the transitional school district, the Clayton school district and the board of education for the City of St. Louis, seeking a declaratory judgment that because the transitional school district lost accreditation, it was required to pay the children’s tuition for attending schools in the Clayton district. The parents’ amended petition also asserted a claim for restitution for tuition already paid.

The Clayton school district and the transitional school district filed separate motions to dismiss or, in the alternative, for summary judgment. The transitional school district argued § 167.131 does not apply to the City of St. Louis transitional school district, claiming that SB 781, passed in 1998, exclusively governs student transfers in the district. Clayton’s motion essentially restated the transitional school district’s motion. Clayton’s motion further argued that the “Safe Schools Act” gives school districts discretion to admit nonresident students from unaccredited districts under § 167.131 and that because Clayton refused to accept the children pursuant to that statute, their claims were foreclosed. Thereafter, the parents filed a cross-motion for summary judgment on the claims in their petition. The circuit court, without stating a specific basis, granted the school districts’ motions for summary judgment.

Standard of Review

Whether summary judgment was proper is a question of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). This Court’s review of a grant of summary judgment is essentially de novo; therefore, the trial court’s order may be affirmed in this Court on an entirely different basis than that posited at trial, and this Court will affirm the grant of summary judgment under any appropriate theory. Id. at 376, 387-88; Comp & Soft, Inc. v. AT & T, 252 S.W.3d 189, 194 (Mo.App.2008). The Court views the record in the light most favorable to the party against whom judgment was entered and affords that party the benefit of all reasonable inferences. ITT Commercial Fin., 854 S.W.2d at 376. For summary judgment to be entered in its favor, the movant has the burden of proving that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Id. at 381.

Analysis

Section 167.131, a straightforward and unambiguous statute, was specifically written to apply to the factual scenario of this case. Section 167.131 plainly states that the boards of unaccredited schools “shall pay the tuition of and provide transportation ... for each pupil resident therein who attends an accredited school in another district of the same or an adjoining county” and, furthermore, that “each pupil shall be free to attend the public school of his or her choice.” Section 167.131.1, .2. It is clear that § 167.131 applies to the transitional school district, that it requires the Clayton school district to admit the students and that it mandates the transitional school district pay the students’ tuition. Once admitted, a student must comply with all disciplinary and academic standards in order to remain enrolled.

Section 167.131 is Applicable to the Transitional School District

The parents first claim that the circuit court erred in granting the transitional school district’s motion for summary judgment because a plain reading of § 167.131 demonstrates that it applies to the transitional school district. They further assert that the plain and unambiguous language of § 167.131 mandates payment of their children’s tuition under the circumstances presented in this case. This Court agrees.

Section 167.131 provides that a school district that loses accreditation with the state board of education must pay tuition for any resident pupil who attends an ac- I credited school in another district in the same or an adjoining county and sets the amount of tuition to be paid by the sending | school. Section 167.131 states:

1. The board of education of each dis-1 trict in this state that does not maintain | an accredited school pursuant to the authority of the state board of education to I classify schools as established in sectionl 161.092, RSMo, shall pay the tuition ofl ... each pupil resident therein who at-i tends an accredited school in another! district of the same or an adjoining county.
2. The rate of tuition to be charged bjl the district attended and paid by the sending district is the per pupil cost ol maintaining the district’s grade level grouping which includes the school atl tended. The cost of maintaining a gradf level grouping shall be determined b| the board of education of the district Per pupil cost of the grade level grout ing shall be determined by dividing tbl cost of maintaining the grade level grouping by the average daily pupil attendance .... Subject to the limitations of this section, each pupil shall be free to attend the public school of his or her choice.

(emphasis added).

In the present case, it is uncontested that the St. Louis public school district lost its accreditation with the state board of education. Additionally, it is uncontested that the parents and their children reside in the City of St. Louis, but the children attend accredited schools in a school district in an adjoining county. Considering only the plain and ordinary language of § 167.131.1, the uncontested facts show that § 167.131 applies to the transitional [school district under the circumstances present in this case.

The transitional school district challenges this plain reading of § 167.131 by [arguing that § 167.131 was intended to [apply only to situations in which an indi[vidual school in a district loses accreditation — not to deal with a district-wide loss fcf accreditation. The transitional school llistrict argues that the legislative history |)f § 167.131 supports its position and that this Court should examine that history to llivine the legislature’s true intent.

I The seminal rule of statutory construction is to ascertain the intent of the legislature from the language used and to lonsider the words used in their plain and Irdinary meaning. State ex rel. Unnertall v. Berkemeyer, 298 S.W.3d 513, 519 (Mo. banc 2009). There is nothing in the B.nguage of § 167.131 indicating that the Hatute was not intended to apply to situa-Bons like the present, where a school dis-lict suffers a district-wide loss of accredi-Htion. Under § 167.131, a school district H obligated to pay the tuition of its stu-Hnts who attend an accredited school if He district “does not maintain an accredited school.” The fact that the entire St. Louis public school district lost its accreditation in 2007 necessarily means that it no longer maintains any accredited schools. Therefore, the plain language of § 167.131 encompasses the present situation. Because the plain and ordinary language of § 167.131 does not limit its application as urged by the transitional school district, there is no need to analyze the legislative history of the statute in an attempt to determine the legislative intent.

The transitional school district further argues that § 167.131 should not apply in the present case because the district maintains individual schools that are accredited by a private accreditation group. The fact that certain schools in the City of St. Louis may be accredited by a private organization is of no consequence. Section 167.131.1 speaks only of districts that do not maintain accredited schools “pursuant ■ to the authority of the state board of education to classify schools.” Accordingly, under § 167.131, the only relevant issue is whether the state board of education has classified the district or one of its schools as unaccredited. As noted above, it is undisputed that the St. Louis public school district lost its accreditation with the state board of education in 2007. Therefore, because the transitional school district does not maintain any schools accredited by the state department of education, it is unaccredited for purposes of § 167.131.

Section 167.131 is not in Conflict with SB 781

The parents next claim the circuit court erred in granting summary judgment on grounds that § 167.131 was preempted by provisions in SB 781 and, therefore, that the transitional school district was not required to pay the students’ tuition. The parents assert that the provisions at issue in SB 781 do not preempt the application of § 167.131 to the transitional school district • because no conflicts exist between those provisions. In response, the school districts argue that the provisions in SB 781 apply specifically to the City of St. Louis and conflict with the generally applicable provisions of § 167.131 and, therefore, SB 781 should take precedence over § 167.131. Specifically, the school districts argue that § 162.1060, governing the publicly funded transfer of students out of the City of St. Louis, and § 162.1100, specifying how the city district will be governed in the event it loses accreditation, conflict with § 167.131.

At the outset, it is noted that the school districts do not assert that SB 781 contains language expressly excluding the transitional school district from the application of § 167.131. The school districts’ argument that SB 781 should operate to exclude the application of § 167.131 to the transitional school district is not based on any textual conflict that exists between the two laws. Instead, the school districts’ argument is based on the fact that applying § 167.131 to the city district makes it more difficult to accomplish some of the statutory reforms mandated by SB 781.

The school districts first argue that § 162.1060, as contained in SB 781, is in tension with § 167.131. Section 162.1060 created the “urban voluntary school transfer program” to transfer students between the City of St. Louis and St. Louis County to promote the desegregation of the city’s schools. Section 162.1060.1. Under the 1999 federal desegregation order, to which § 162.1060 is subject, eligible black students residing in the City of St. Louis are transferred to participating school districts in the county, while certain white students residing in predominately white school districts in the county are transferred to magnet schools in the city.

The districts identify two principal tensions that exist between § 162.1060 and § 167.131. First, the districts point out that the funding mechanisms are different in that § 167.131 requires the unaccredited school district to pay the child’s costs of attending another school, while transfers under § 162.1060 are funded by the corporation that oversees the urban voluntary school transfer program. Section 162.1060.3(2). The districts argue that applying § 167.131 to the City of St. Louis would siphon resources away from the city’s schools and thereby undermine one of the purposes of SB 781, which was to provide additional resources to the city district. Second, the districts argue that applying § 167.131 to the City of St. Louis will destabilize the urban voluntary school transfer program. They argue the transfer program will be destabilized because participating St. Louis County school districts would be likely to discontinue participation in the program to accommodate the increasing number of city students choosing to transfer to county schools under § 167.181. As a result, the districts argue that the remedial purpose of § 162.1060— to desegregate the city’s schools — would be undermined.

The school districts also argue that § 162.1100, as contained in SB 781, conflicts with § 167.131. That provision directs how the St. Louis public school district is governed in the event that it loses state accreditation. Under § 162.1100.2(2), the governor is required to appoint a chief executive, who assumes all of the powers and duties of a general superintendent. After appointment of the chief executive, control of the district is taken away from the existing school board and is vested in a special administrative board. Section 162.1100.3. The special administrative board and the chief executive are responsible for taking broad actions aimed at restoring the city school district to accredited status. Section 162.1100.4(l)-(5). The districts argue that applying § 167.131 to the City of St. Louis would cause an exodus of students from St. Louis city schools to St. Louis County schools. In turn, the districts argue that the decreased enrollment in city schools would cause a large reduction in the city district’s state funding, thereby undermining the ability of the special administrative board to meet its statutory obligation of restoring the city district to accredited status.

Despite their predictions about the effect of decreased funding on the St. Louis public school district, the school districts have failed to show that the legislature, by its enactment of SB 781, intended to exclude the city district from the application of § 167.131. As noted earlier, there is nothing in the language of SB 781 expressly exempting the transitional school district from the application of § 167.131, nor are there any textual inconsistencies that exist between the statutes that preclude the provisions of SB 781 and § 167.131 from operating concurrently. The school districts essentially ask this Court to find that SB 781 effectuated an implied partial repeal of § 167.131.

However, repeals by implication are disfavored. StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 905 n. 14 (Mo. banc 2006). “If by any fair interpretation both statutes may stand, there is no repeal by implication and both statutes must be given their effect.” Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo. banc 1999). When two provisions are not irreconcilably inconsistent, both must stand even if “some tension” exists between them. StopAquila.org, 208 S.W.3d at 905. At most, SB 781 and § 167.131 are in tension with one another in that applying § 167.131 to the transitional school district makes the implementation of SB 781 more difficult. That alone is an insufficient basis for finding that the legislature intended to impliedly repeal the application of § 167.131 to the City of St. Louis.

This Court enforces statutes as they are written, not as they might have been written. City of Wellston v. SBC Commc’ns, Inc., 203 S.W.3d 189, 192 (Mo. banc 2006). It is presumed that the General Assembly legislates with knowledge of existing laws. State ex rel. Broadway-Washington Assocs., Ltd. v. Manners, 186 S.W.3d 272, 275 (Mo. banc 2006). Consequently, the Court must assume that the legislature was aware of § 167.131 when it enacted SB 781. If the legislature had intended to exclude the application of § 167.131 to the transitional school district when it enacted SB 781, it easily could have added such an exception. It did not.

Accordingly, the Court cannot supply what the legislature has omitted from controlling statutes. State ex rel. Mercantile Nat. Bank at Dallas v. Rooney, 402 S.W.2d 354, 362 (Mo. banc 1966); Bd. of Educ. of City of St. Louis v. State, 47 S.W.3d 366, 371 (Mo. banc 2001) (“courts cannot transcend the limits of their constitutional powers and engage in judicial legislation supplying omissions and remedying defects in matters delegated to a coordinate branch of our tripartite government”). Moreover, it is not within the Court’s province to “question the wisdom, social desirability, or economic policy underlying a statute as these are matters for the legislature’s determination.” Winston v. Reorganized Sch. Dist. R-2, Lawrence County, Miller, 636 S.W.2d 324, 327 (Mo. banc 1982). The Court must enforce the law as it is written, which in the present case means that SB 781 applies concurrently with § 167.131.

Clayton School District is Required to Admit Students Pursuant to § 167.131

Clayton school district additionally argues that admission of students pursuant to § 167.131 is discretionary despite the mandatory language of the statute. Clayton school district asserts that § 167.020 gives a school district discretion whether to admit students under § 167.131.

This argument is based on language in § 167.020 that a student must obtain a waiver of the residency requirement. Section 167.020 is a general statute and makes no mention of § 167.131. The school district argues that they must be read in pari materia and harmonized.

The school district and the dissent would have this Court harmonize the statutes by making “shall” in § 167.131 a “may.” That was an option for the legislature. This Court determines the proper declaration is to recognize that § 167.131 was enacted to cover the factual scenario of this case and § 167.020 is a general statute. The doctrine of in pari materia recognizes that statutes relating to the same subject matter should be read together, but where one statute deals with the subject in general terms and the other deals in a specific way, to the extent they conflict, the specific statute prevails over the general statute. Parktown Imports, Inc. v. Audi of America, Inc., 278 S.W.3d 670, 673 n. 2 (Mo. banc 2009).

[T]he rules of statutory interpretation are not intended to be applied haphazardly or indiscriminately to achieve a desired result. Instead, the canons of statutory interpretation are considerations made in a genuine effort to determine what the legislature intended. This Court’s primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue.

Id. at 672.

In this case, this Court need not look to § 167.020 because there is no need to refer to other similar statutes where a statute’s own language is clear. Home Builders Ass’n of Greater St. Louis, Inc. v. City of Wildwood, 107 S.W.3d 235, 239 (Mo. banc 2003). Or, in other words, this Court does not apply the canons of interpretation or seek aides to interpret a statute when a statute is easily read and understood. See, e.g., Ins. Co. of State of PA v. Dir. of Revenue and Dir. of Ins., 269 S.W.3d 32, 34 n. 5 (Mo. banc 2008) (There is no need to resort to statutory interpretation when a statute is unambiguous.); Hyde Park Housing P’ship v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993) (“Where the language is clear and unambiguous, there is no room for construction.”); Abrams v. Ohio Pac. Exp., 819 S.W.2d 338, 340 (Mo. banc 1991) (internal citations omitted) (“There is no room for construction where words are plain and admit to but one meaning ... [wjhere no ambiguity exists, there is no need to resort lo rules of construction.”).

I The plain and ordinary meaning of the language in § 167.131.2 that “each pupil lhall be free to attend the public school of lis or her choice” gives a student the Ihoice of an accredited school to attend, so Img as that school is in another district in Ihe same or an adjoining county, and re-luires the chosen school to accept the lupil. This interpretation is confirmed by lie fact that § 167.131.2 was amended to Innove the discretion previously given to lie student’s chosen school. The prior lirsion of § 167.131.2 provided “but no ■:hool shall be required to admit any pull.” Section 167.131.2, RSMo 1986. The Bgislature removed this language specifi-Blly taking away any discretion of the Bceiving school to deny admission under the circumstances of this case. See Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003) (“[w]hen the legislature amends a statute, that amendment is presumed to change the existing law.”). Therefore, § 167.131.2 does not give an accredited school chosen by a student discretion to deny admission to that student.

The dissent comes to the wrong conclusion because it starts with a false premise. Rather than analyzing the statute enacted by the legislature to specifically govern the particular situation when a school loses its accreditation, the dissent falsely assumes that a later enacted general statute governs over a previously enacted specific statute. In doing so, the dissent, with a particular result in mind, restates the issue assuming § 167.020 controls the issue of whether the Clayton school district has discretion to admit students from unaccredited schools seeking admission pursuant to § 167.131.

Children’s Admissions Were Under Tuition Agreements

The parents argue that the tuition agreements should be terminated for lack of consideration and contend that they have a right to restitution because they are now paying tuition for an education their children should have received for free under § 167.131. The contracts did not fail for lack of consideration, and the parents are not entitled to restitution.

The parents obtained the admission of their children to the Clayton school district pursuant to § 167.151.1 by entering into personal tuition agreements in which the parents agreed to pay their children’s ta-ition. Under the terms of those agreements, the Clayton school district was only obligated to allow the children to attend so long as the parents paid the children’s tuition. By arguing that the Clayton school district is now required to seek payment from the transitional school district and that the parents are entitled to restitution for tuition previously paid to the Clayton school district, the parents are attempting to bind the district beyond the terms of their tuition agreements.

An unambiguous contract must be enforced according to its terms. Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 776 (Mo. banc 2005). In the present case, the parents contractually obligated themselves to pay the children’s tuition in return for the Clayton school district’s promise to allow the students to enroll during the time period governed by the agreements. There was no contingency in the agreement that provided the parents were no longer required to pay the children’s tuition if the St. Louis public school district lost accreditation. Therefore, the Clayton school district is not obligated to seek payment from the transitional school district for the school years governed by the tuition agreements.

Further, there has been no failure of consideration. “[Consideration must be measured at the time the parties enter into their contract and [] the diminished value of the economic benefit conferred, or even a complete lack of value, does not result in a failure of consideration.” Weinstein v. KLT Telecom, Inc., 225 S.W.3d 413, 415-16 (Mo. banc 2007); see also Union Pac. R. Co. v. Kansas City Transit Co., 401 S.W.2d 528, 536 (Mo.App.1966) (citations omitted) (“If the promisor gets what he bargains for there is no failure of consideration, although what he receives becomes less valuable or of no value at all”). Here, the parents received the benefit of their bargain — the education of their children by the Clayton school district — and, therefore, cannot claim lack of consideration.

Conclusion

For the foregoing reasons, the trial court’s judgment is reversed, and this case is remanded.

PRICE, C.J., TEITELMAN, WOLFF and FISCHER, JJ., concur.

BRECKENRIDGE, J., concurs in part and dissents in part in separate opinion filed.

RUSSELL and STITH, JJ., concur in opinion of BRECKENRIDGE, J.

PATRICIA BRECKENRIDGE, Judge,

concurring in part and dissenting in part.

I concur with the majority opinion’s conclusion that section 167.131 applies to the transitional school district for the City of St. Louis. I further agree that the parents are required to pay their children’s tuition for any school years covered by | their tuition agreements and that the parents are not entitled to restitution of the I tuition paid under those agreements. However, I disagree with the majority! opinion’s conclusion that section 167.1311 compels the Clayton school district to admit the children and, instead, believe thatl section 167.020 gives the Clayton school district discretion in admitting the children. I would affirm the trial court’s! judgment in favor of the Clayton schoo)| district.

The majority opinion holds that the, plain and ordinary language in sectior 167.131.2 stating that “each pupil shall be free to attend the public school of his or her choice” gives the pupil the unfettered choice to attend an accredited school in an adjoining district and requires the chosen school to accept the pupil. The majority opinion reaches its conclusion by reading the language that gives the pupil a choice of school in isolation rather than by reading such language in the context of section 167.131 as a whole. As addressed below, when the choice-of-school language is read in context, there are limitations imposed on the pupil’s choice.

Additionally, because the majority opinion considers the language in section 167.131 to be clear, it questions whether the Court even should consider section 167.020 when interpreting section 167.131. Even assuming arguendo that the language in section 167.131.2 clearly requires a school to admit pupils seeking admission pursuant 167.131, it nevertheless remains that when “two statutory provisions covering the same subject matter are unambiguous standing separately but are in conflict when examined together, [this Court] must attempt to harmonize them and give them both effect.” S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009). As discussed below, the majority’s interpretation of section 167.131 brings the statute into conflict with section 167.020 and, therefore, the Court must attempt to harmonize the two provisions.

Section 167.020 was adopted by the General Assembly in 1996 as part of a bill commonly known as ,;he “Safe Schools Act.” 1996 Mo. Legis. Serv. H.B. Nos. 1301 & 1298. Section 167.020 comprehensively governs when pupils can register to attend school in a district. Section 167.020 establishes the circumstances under which a district is compelled to admit a pupil and when a district’s school board has discretion whether to admit a nonresident pupil. Section 167.020.3, .6.

Section 167.020 reads, in relevant part:

2. In order to register a pupil, the parents or legal guardian of the pupil or the pupil himself or herself shall provide, at the time of registration, one of the following:
(1) Proof of residency in the district. ...; or
(2) Proof that the person registering the student has requested a waiver under subsection 3 of this section within the last forty-five days....
3. Any person subject to the requirements of subsection 2 of this section may request a waiver from the district board of any of those requirements on the basis of hardship or good cause.... [T]he board shall convene a hearing as soon as possible, but no later than forty-five days after receipt of the waiver request made under this subsection or the waiver request shall be granted. The district board or committee of the board may grant the request for a waiver of any requirement of subsection 2 of this section. The district board or committee of the board may also reject the request for a waiver in which case the pupil shall not be allowed to register. Any person aggrieved by a decision of a district board or committee of the board on a request for a waiver under this subsection may appeal such decision to the circuit court in the county where the school district is located.
6. Subsection 2 of this section shall not apply to a pupil who is a homeless child or youth, or a pupil attending a school not in the pupil’s district of residence as a participant in an interdistrict transfer program established under a court-ordered desegregation program, a pupil who is a ward of the state and has been placed in a residential care facility by state officials, a pupil who has been placed in a residential care facility due to a mental illness or developmental disability, a pupil attending a school pursuant to sections 167.121 and 167.151, a pupil placed in a residential facility by a juvenile court, a pupil with a disability identified under state eligibility criteria if the pupil is in the district for reasons other than accessing the district’s educational program, or a pupil attending a regional or cooperative alternative education program or an alternative education program on a contractual basis,

(emphasis added.)

To register for classes under the Safe Schools Act, a pupil must show that he or she is a resident of the district to be attended, has requested a waiver of the residency requirement, or is exempt from the residency and waiver requirements. Section 167.020.2, .6. When a nonresident pupil requests a waiver, the district “may grant the request for a waiver of any requirement of subsection 2 ....” or “may also reject the request for a waiver in which case the pupil shall not be allowed to register.” Section 167.020.3 (emphasis added). Because the statute uses the word “may” rather than “shall” when referring to the grant or denial of a waiver, the district is not under a mandatory obligation to grant a waiver to allow a pupil to register. See State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 944 (1938) (“It is the general rule that in statutes the word ‘may’ is permissive only, and the word ‘shall’ is mandatory.”). However, section 167.020.3 provides for judicial review of a district’s decision to deny a waiver, so a district’s discretion is limited.

Subsection 6 of section 167.020 exempts certain pupils from the residency or waiver requirements of subsection 2. Included in the exemptions are pupils attending school pursuant to section 167.121, a statute permitting transfer of pupils for transportation hardships, and section 167.151, a statute allowing admittance of nonresident tuition-paying pupils. Section 167.020.6. While pupils attending under sections 167.121 and 167.151 are exempt from the waiver requirement, pupils attending under section 167.131 are not.

The majority opinion implies that because section 167.020 does not mention section 167.131 expressly, then section 167.020 has no impact on section 167.131. Contrary to the majority’s assertion, examination of the statutes excluded from the waiver requirement of section 167.020 requires the conclusion that the legislature intended that non-resident pupils seeking admission under section 167.131 are subject to the waiver requirements of section 167.020.2(2). Like section 167.131, sections 167.121 and 167.151 govern situations in which pupils can attend schools outside of their district of residence. The legislature’s inclusion of sections 167.121 and 167.151 in the list of exemptions in section 167.020.6 indicates that the legislature intended to exclude section 167.131 so a pupil attending a school under that section would be required to obtain a waiver from the board. See Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 146 (Mo. banc 1980) (“ ‘the express mention of one thing implies the exclusion of another’ ” (quoting Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 166 (1956))).

As discussed previously, section 167.020.3 vests a school with discretion whether to grant a waiver to nonresident pupils who are not exempt from the waiver requirements under the Safe Schools Act. Section 167.020.6 does not exempt pupils seeking admission under section 167.131 from the waiver requirements in section 167.020.3. Consequently, because a waiver is required, a school district, like Clayton, has discretion pursuant to section 167.020 in deciding whether to admit a pupil seeking admission under section 167.131. The majority’s interpretation of section 167.131 conflicts with this plain reading of section 167.020; therefore, an attempt must be made to harmonize the two provisions. S. Metro. Fire Prot. Dist., 278 S.W.3d at 666.

The two statutes can be harmonized by simply reading the last sentence in section 167.131.2 in its entirety and giving effect to every word. The final sentence of 167.131.2 states: “Subject to the limitations of this section, each pupil shall be free to attend the public school of his or her choice.” As noted above, this is the same provision the majority interprets as mandating an accredited district to accept any pupil from an unaccredited district who applies to the accredited district. The majority’s interpretation of subsection 2 of section 167.131, however, focuses only on the language “each pupil shall be free to attend the public school of his or her choice” and gives no effect to the legislature’s limitation of the pupil’s choice by its inclusion of the phrase “[sjubject to the limitations of this section.” “ ‘It is presumed that the legislature intended that every word, clause, sentence, and provision of a statute have effect.’” State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 520 (Mo. banc 2009) (quoting Hyde Park Hous. P’ship v. Dir. Of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993)). “Conversely, it will be presumed that the legislature did not insert verbiage or superfluous language in a statute.” Id.

A limitation on a pupil’s choice of schools is found in subsection 1 of section 167.131, which provides that the board of education of a district that does not maintain an accredited school shall pay the tuition of and provide transportation for “each pupil resident therein who attends an accredited school in another district of the same or an adjoining county.” (emphasis added). Section 167.131, read in its entirety, provides that while each pupil is free to choose the school the pupil desires to attend, that choice is limited by the requirement that the pupil be admitted to and attend the school of the pupil’s choice. Therefore, it is necessary to look to other provisions governing the admission of nonresident pupils, which would include section 167.020.

As discussed above, section 167.020 grants receiving schools discretion in granting enrollment waivers to nonresident pupils seeking admission pursuant to section 167.131. Therefore, reading section 167.131 in pari materia with section 167.020 reveals the legislature’s intention that, while a pupil “shall be free to attend the public school of his or her choice,” that choice is subject to the limitation that the pupil be admitted properly to the receiving school, which includes obtaining a discretionary waiver from the receiving school district pursuant to section 167.020.

To the extent that the majority opinion relies on the legislature’s removal of the language in section 167.131.2 — “but no school shall be required to admit any pupil” — to support its conclusion that a chosen school lacks discretion to deny admission to pupils from unaccredited districts, that fact does not change the interpretation above. Although the legislature may have intended to limit a school district’s discretion to admit students applying under section 167.131 in 1993 when it deleted the aforementioned language its subsequent enactment in 1996 of section 167.020.3 as part of the Safe Schools Act changed that result. Section 167.020 makes clear the legislature intended for school districts to have discretion in granting waivers to allow non-resident students to register and attend school.

In reaching its conclusion that section 167.131 requires the Clayton school district to accept students from the transitional school district, the majority opinion relies on the rule of construction that a more specific statute governs over a more general statute to the extent of any inconsistency between the two. However, that rule of construction traditionally applies only in situations in which the two statutory provisions being construed cannot be harmonized. See S. Metro. Fire Prot. Dist., 278 S.W.3d at 666 (rule applies “[i]f harmonization is impossible”); see also Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 352 (Mo. banc 2001) (“rule applies only in situations where there is a ‘necessary repugnancy’ between the statutes.” (quoting State ex rel. City of Springfield v. Smith, 344 Mo. 150, 125 S.W.2d 883, 885 (1939))); State ex rel. Dir. of Revenue v. Gaertner, 32 S.W.3d 564, 566 (Mo. banc 2000) (before applying the rule, the two statutes “should be harmonized if possible”). Because sections 167.020 and 167.131 can be harmonized, as noted above, the majority opinion’s use of that rule is misplaced.

This interpretation is also consistent with Department of Elementary and Secondary Education’s (DESE), interpretation that school districts have discretion whether to admit pupils residing in unaccredited schools under section 167.131. Shortly before the St. Louis school district officially lost its accredited status, DESE released a public statement regarding the effect of a school district’s loss of accreditation. In the public statement, DESE stated that “Accredited districts ... may accept or reject transfer pupils from an unaccredited district.” Additionally, DESE drafted an earlier memorandum regarding the responsibilities of an unaccredited school under section 167.131. The memorandum stated:

Historically, the department’s position has been that students may be accepted by an accredited school district on a “space available” basis. An accredited school cannot be compelled to accept students from an unaccredited district since local boards of education have discretion to admit or to not admit tuition-paying students.

DESE’s construction of section 167.131 is entitled to “great weight” because it is the agency charged with administering the educational laws of this state that pertain to elementary and secondary education. See Linton v. Mo. Veterinary Med. Bd., 988 S.W.2d 513, 517 (Mo. banc 1999).

Finally, this opinion’s interpretation avoids the absurd consequences that would result if the majority’s interpretation of section 167.131 prevails. To interpret section 167.131 as placing a mandatory obligation on the Clayton school district to accept all pupils from the City of St. Louis who apply for admission would mean there is no limit to the potential influx of pupils that Clayton or any other school district in St. Louis County could face. Under the majority’s interpretation of the relevant statutory provisions, school districts in St. Louis County would be required to accept pupils from the transitional school district even if the number of pupils seeking admittance exceeded their capacity or if St. Louis County school districts have difficulty collecting tuition payments from the transitional school district.

To illustrate the point, taking judicial notice of the 2000 census as authorized by section 490.700, RSMo 2000, the City of St. Louis had a population of 89,657 people who were under the age of 18 years, with 23,477 of those people being under the age of 5. Accordingly, in 2000, the City of St.

Louis had approximately 66,180 school-aged pupils who were entitled to attend the city’s school district. In contrast, Clayton had a population of 2,584 people who were under the age of 18, with 490 of those people being under the age of 5. Therefore, in 2000, Clayton had approximately 2,094 school-aged people entitled to attend the Clayton school district. Under the majority opinion’s interpretation of section 167.131, even if only 3 percent of the approximately 66,000 school-aged pupils living in the City of St. Louis applied for enrollment in the Clayton school district, the district would be required to accept all of those students, despite the fact that it would cause nearly a 100-percent increase in its enrollment. Such an increase would require the Clayton school district, virtually overnight, to acquire new classroom buildings and hire numerous additional faculty members to meet the increased demands on the district. Such a result is absurd. This Court “presumes the legislature did not intend to enact an absurd law and favors a construction that avoids unjust or unreasonable results.” Care and Treatment of Schottel v. State, 159 S.W.3d 836, 842 (Mo. banc 2005).

Conclusion

In summary, the language in section 167.131 providing that each pupil who resides in an unaccredited school district is free to attend the public school of his or her choice is subject to the limitations of that section. Subsection 1 of 167.131 includes a limitation in that it requires the unaccredited school district to pay tuition only for “each pupil resident who attends an accredited school in another district of the same or an adjoining county.” Section 167.020 governs the admittance of nonresident pupils by a school district and gives the district’s school board discretion whether to grant an enrollment waiver to any nonresident pupil who is not subject to one of the exemptions in subsection 6. Reading section 167.131 in its entirety and in harmony with section 167.020, a pupil who resides in an unaccredited school district can attend an accredited school in another district of an adjoining county and have the pupil’s tuition paid, as required by 167.131.1, only if the pupil has been admitted by the accredited school district and, unless the pupil qualifies for one of the exemptions in 167.020.6, the accredited school district has discretion whether to admit the nonresident pupil. Because the plaintiffs’ children did not qualify for one of the exemptions in section 167.020.6 and section 167.020.3 gives the Clayton school district board the discretion to decide not to admit the children, I respectfully disagree with the majority’s holding that Clayton is obligated to admit the plaintiffs’ children. Accordingly, I would affirm the trial court’s judgment in favor of the Clayton school district.

      . Unless otherwise noted, all references to § 167.131 and § 167.1060 are to RSMo 2000. All other statutory references are to RSMo Supp.2009.

      . With the St. Louis public school district's loss of accreditation in 2007, the special administrative board of the transitional school district is the governing body of the St. Louis public school district. For the purpose of simplicity, this respondent will simply be referred to as the transitional school district.

      . However, the parents are required to pay ^Biition for the school year covered by the ^Bontracts with Clayton school district, and the parents are not entitled to restitution for the amounts paid.

      . Sections 162.1060 and 162.1100 were both, provisions contained in SB 781 and went into effect after the St. Louis desegregation case was settled.

      . The policy considerations and mandates regarding public schools and public school funding are particularly well-suited for the state legislature and not the courts. For that reason, this Court will adhere to the express language of the statutes and not make an assumption that the legislature did not intend § 167.131 to apply to the St. Louis City school district. It could have easily done so when it enacted the legislation to enforce the desegregation of the St. Louis city schools.

      . The school districts ignore the fact that a reduction in district resources inevitably results even when a transfer occurs pursuant to I the urban voluntary transfer program be-l cause, under § 162.1060.3(2), the state andl federal aid that otherwise would be paid to al student's district of residence is paid to thel transfer corporation, which in turn transferal the funds to the school district the studentl attends. I

      . There is no factual information contained in this record to support this speculative claim, and this Court refuses to go outside the record below to decide this case. Neither will this Court speculate that a sufficient number of city students would choose any particular new district to make their attendance impossible. The dissent seeks to support this claim by taking judicial notice of census information and thereafter makes assumptions of fact.

      . In fact, there are two instances in § 162.1100 in which the legislature expressly exempted the transitional school district from the operation of other statutes. For example, the transitional school district is not subject to any certificate of tax abatement issued pursuant to §§ 99.700 to 99.715. Section 162.1100.5. Additionally, the district is not subject to the provisions of §§ 162.081, 163.021 or 163.023 with respect to any requirements to maintain a minimum value of operating levy. Id.

      . For the same reason, this Court need not look to the Department of Elementary and |Secondary Education’s interpretation of 167.131 as the dissent does. Courts do not look to agency interpretations when a statute is unambiguous. Blue Springs Bowl v. Spradling, 551 S.W.2d 596, 599-600 (Mo. banc 1977). Moreover, the DESE interpretation cites no legal authority and has not been subjected to the rulemaking process.

      . All statutory references to section 167.131 are to RSMo 2000. Unless otherwise noted, all remaining statutory references are t<| RSMo Supp.2009.

      . The Safe Schools Act was passed the year after a freshman girl at McCluer North High School in St. Louis County was raped and murdered in the school restroom by a pupil who had transferred to her school the day before because he had been suspended from another school. Susan Anderson, The Safe Schools Act Protects Missouri Students, 55 J. Mo. B. 264 (1999); Stanley M. Burgess, Missouri’s Safe Schools Act: An Attempt to Ensure a Safe Education Opportunity, 66 UMKC L.Rev. 603 (1998). The Safe Schools Act gives a school district access to information about a nonresident pupil who seeks admission. Under the act, the district has the right to obtain records of the enrolling pupil, including discipline records, and convene a hearing "where there is reason to suspect that admission of the pupil will create an immediate danger to other pupils and employees of the district.” Section 167.020.2(2), .7.

      . In light of section 167.020’s purpose of promoting safe schools, the legislature may have limited its exemptions from waivers in subsection 6 to pupils who are required to go through a screening process to be accepted in a program, such as the interdistrict transfer program, or pupils given permission to attend school in another district by the state board of education under section 167.121, and those currently being supervised and monitored by another government entity, such as "a pupil who is a ward of the state and has been placed in a residential care facility by state officials.” Pupils who seek to attend under section 167.131 fit in neither of these two categories.

      . One of the reasons given by the Clayton school board for its decision not to admit the parents’ children was that it previously had admitted pupils from the Wellston school district when that district became unaccredited and the Clayton district had difficulty collecting tuition payments.

      . U.S. Census Bureau, http://factfinder.census. gov/home/saff/main.html (enter "St. Louis” in Fast Access to Information search engine; then click "GO”; then select “St. Louis city, Missouri" hyperlink; then click "2000” tab) (last visited July 6, 2010).

      . U.S. Census Bureau, http://factfinder.census. gov/home/saff/main.html (enter "Clayton” in Fast Access to Information search bar; then select "Missouri" from drop-down menu; then click “GO.”) (last visited July 6, 2010).

      . The validity of using the 2000 census figure is supported by a comparison of such figure with the Clayton school district's average daily attendance figures during the 2001-2002 school year. The average daily attendance for Clayton during 2001-2002 was approximately 2,314, while the census figure shows approximately 2,094 school-aged pupils residing in the Clayton school district in 2000.

      . Admittedly the census figures have changed since the 2000 census; however, any changes in the population density of the two cities will not impact the enormous disparity between the two school districts and the potential for an unmanageable number of pupils seeking admission to Clayton schools.

      . The majority opinion criticizes the fact that this opinion takes judicial notice of the 2000 census data. Judicial notice of the census data is taken only to illustrate the grievous consequences that may result if the majority’s interpretation were followed. Those facts are not essential to the ultimate conclusion reached in this opinion. Additionally, this Court, on multiple occasions, has taken judicial notice of facts on appeal when the facts were not part of the record on appeal. See Union Elec. Co. v. City of Crestwood, 499 S.W.2d 480, 483 n. 3 (Mo.1973); see also Lazare v. Hoffman, 444 S.W.2d 446, 449 (Mo.1969).

      . Of course, as the majority opinion notes, this is a reversal of summary judgment in favor of the Clayton and transitional school districts and not a final resolution of the case. On remand, the parties are free to seek leave to amend their pleadings, to offer additional proof on relevant issues, including impossibility to comply with section 167.131, or to take such additional action as may be appropriate.


author: RICHARD B. TEITELMAN, Judge.

text:
    Lynn Kay McCULLOUGH and Shirley Ann McCullough, his wife, Respondents, v. Nadine DOSS and Howard Allen, Appellants.
    No. SC 90673.
    Supreme Court of Missouri, En Banc.
    July 16, 2010.
    Rehearing and Modification Denied Aug. 31, 2010.

      Donald L. Cupps, Ellis, Cupps and Cole, Cassville, Cordelia F. Herrin, Melton & Herrin PC, Cassville, for Appellants.
    Richard L. Schnake, Neale & Newman LLP, Springfield, for Respondents.
   RICHARD B. TEITELMAN, Judge.

Lynn Kay and Shirley Ann McCullough (Plaintiffs) filed suit against Nadine Doss and Howard Allen (Defendants) to quiet title to a disputed parcel of land referred to as “Tract A.” At trial, Plaintiffs claimed title to Tract A by deed and adverse possession, while Defendants asserted that Tract A was a public roadway. The trial court entered a judgment that quieted title in favor of Plaintiffs. The judgment is affirmed.

FACTS

In 1954 and 1955, the Missouri highway department constructed Missouri state Highway 39. The new highway followed a public road that ran between Plaintiffs’ property and Defendants’ property. Near the north end of the two properties, the new highway left the route of the existing public road and curved eastward through Plaintiffs’ property. This route left a portion of the public road intact as a border between Plaintiffs’ land and Defendants’ land. This portion of the public road, Tract A, is the disputed property in this case. At trial, the parties agreed that Tract A was originally a public road. Plaintiffs claimed part of Tract A, up to the center of the former road, by the prior deed and the rest of Tract A by adverse possession. Defendants maintained that Tract A remains a public road. The court quieted title to Plaintiffs with no findings of fact requested or given. Defendants appeal.

ANALYSIS

I. Standard of Review

This case was tried without a jury. Consequently, the judgment will be affirmed unless there is no evidence to support it, the judgment is against the weight of the evidence, or the judgment erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Factual issues on which no specific findings are made shall be considered as having been found in accordance with the result reached. Rule 73.01(c).

II. Section 228.190.1

At trial, Plaintiffs asserted that the public road traversing Tract A was abandoned pursuant to section 228.190.1, RSMo Cum. Supp. 2007. Section 228.190.1 provides as follows:

All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.

Plaintiffs introduced evidence showing that more than five years had passed since the public had used the public road on Tract A. As such, Plaintiffs assert that the trial court properly determined that road was abandoned as provided in section 228.190.1.

Defendants argue that Plaintiffs’ claim fails as a matter of law because the nonuse provision of section 228.190.1 is not applicable to land voluntarily conveyed to a county to be used for a road. Because there is no evidence demonstrating how the road traversing Tract A became a public road, it is impossible to determine whether the evidence presented by Plaintiffs was sufficient to determine how the road could be vacated or abandoned. Defendants’ argument is premised on a line of cases that holds that the abandonment provision of section 228.190.1 is not applicable to roads built on land that was conveyed voluntarily to a county for road purposes. See, e.g., Coffey v. State ex rel. County of Stone, 893 S.W.2d 843, 848 (Mo.App.1995) (holding that the abandonment provision of section 228.190 is inapplicable when property is conveyed voluntarily to a county to be used as a public road); Kleeman v. Kingsley, 167 S.W.3d 198, 203 (Mo.App.2005). Therefore, under Defendants’ argument, the public road traversing Tract A may have been established via a voluntary conveyance, which would render section 228.190.1 inapplicable. Without evidence of the manner in which the road was created, Defendants contend there is no way to properly apply section 228.190.1. This argument hinges on the validity of the decisions in Coffey and Kleeman.

The plain language of the nonuse provision applies to “any public road.” This Court’s precedent consistently has applied the plain language of section 228.190.1 and never has required proof of the manner in which the public road was established. In Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, 591 (1911), this Court interpreted a predecessor to section 228.190.1, which provided that “[a]nd non-user by the public for a period of ten years continuously of any public road shall be deemed abandonment of the same.” This Court held that the nonuse provision “is applicable to any public road; hence, there is no reason why it should be construed as having been intended to apply only to roads which the public acquired through imperfect proceedings in the county court.” Id. at 591. The court further noted that “the statute, by clear and positive terms, is made applicable to any highway or public road, however acquired.” Id.

In State ex rel. Highway Commission v. Herman, 405 S.W.2d 904 (Mo.1966), this Court limited Johnson by noting that the nonuse provision of section 228.190 does not apply to property “voluntarily conveyed in trust to be used for the purpose of establishing streets thereon as they shall be needed and that lands so dedicated in perpetual trust and platted for such purposes can only be abandoned by an act as deliberate as that by which they were acquired, that is, by proceeding under § 228.110.... ” Id. at 908. The Herman court cited Robinson v. Korns, 250 Mo. 663, 157 S.W. 790 (1913); Bobb v. City of St. Louis, 276 Mo. 59, 205 S.W. 713 (1918); and Winschel v. County of St. Louis, 352 S.W.2d 652 (Mo.1961), as examples of the proper limitation of the section 228.190.1 nonuse provision. In each of these three cases, this Court held that the nonuse provision did not apply to property conveyed for road purposes but on which the roads had not yet been built. In other words, Herman, through reliance on Robinson, Bobb and Winschel, recognizes the self-evident proposition that the public cannot abandon a public road that never was built or otherwise established. The party asserting abandonment of an existing public road only needs to prove what section 228.190.1 provides; namely, “non-use by the public for five years continuously....” The decisions in Coffey and Klee-man misinterpret the nonuse provision of section 228.190.1 and, on that point, no longer should be followed. The trial court did not err in applying the nonuse provision of section 228.190.1 in the absence of evidence demonstrating the method used to establish the public road on Tract A.

Defendants also argue the nonuse provision is inapplicable because section 228.190.2 provides that “from and after January 1,1990,” roads for which a county received county aid road trust (CART) funds may not be abandoned except through formal abandonment proceedings. A prerequisite to the application of section 228.190.2 is that the alleged abandonment must have occurred after 1990. Therefore, even if the county received CART funds for the road on Tract A, the road still could be abandoned as long as the abandonment occurred before 1990. The flaw in Defendants’ argument is that Plaintiffs’ evidence demonstrated that the road was abandoned prior to 1990.

Plaintiff Lynn McCullough bought the land in 1955 after Highway 39 was completed. McCullough testified that the public stopped using Tract A when the highway was completed. McCullough further testified that since 1955, he had used Tract A to store farm equipment, used the land as if it were his own, and that he knew of no one other than himself and his family who had used Tract A within the last 40 years. Likewise, McCullough’s adult son, Darron, testified that his family stored equipment on Tract A for as long he could remember and that Defendants did not use the disputed property. The trial court is free to believe or disbelieve all or part of Plaintiffs’ evidence. Watson v. Mense, 298 S.W.3d 521, 525 (Mo. banc 2009). Plaintiffs’ evidence established that the public road on Tract A was abandoned before 1990. As such, even if the county received CART funds for the road on Tract A, section 228.190.2 is inapplicable because the road was abandoned before 1990.

III. Sufficiency of the Evidence

In their second and third points on appeal, Defendants assert Plaintiffs failed to introduce sufficient evidence of nonuse. As discussed above, there was substantial evidence supporting the trial court’s judgment. The trial court was free to credit Lynn and Darren McCullough’s testimony that Plaintiffs had used Tract A as their own and that no one else, including Defendants, had used the road on Tract A in the last 40 years.

Defendants argue that the foregoing evidence is insufficient because the public’s nonuse of Tract A was a result of Plaintiffs’ efforts to obstruct public access. Obstruction of a public road is unlawful. Kleeman, 167 S.W.3d at 205. Nonetheless, the baseline for analyzing an abandonment claim under section 228.190.1 is whether the public continued to use the road. Id. Assuming for the sake of argument that Plaintiffs did obstruct public access to the road unlawfully, the focus is on the Defendants’ behavior and that of the public at large in determining whether the disputed area was abandoned. Id.; see also, Lee v. Smith, 484 S.W.2d 38, 44 (Mo.App.1972)(while “encroachment upon or obstruction of a public highway is an unlawful act ... evidence that access to a public road has been entirely blocked and cut off for ten years and that the encroachment has been submitted to by the public may be taken as evidence that the road has been abandoned.”)(citing 39 C.J.S. Highways § 133, p. 1040). In this case, if Defendants or other members of the public had sought to access Tract A and were denied by Plaintiffs, then Plaintiffs’ efforts to obstruct access would be relevant. Kleeman, 167 S.W.3d at 206. The evidence, however, shows that Plaintiffs prevented neither Defendants nor any members of the public from accessing Tract A. As a result, there was substantial evidence demonstrating that the public abandoned Tract A.

Finally, Defendants assert the road on Tract A could not have been abandoned because Plaintiffs are members of the public and Plaintiffs admit they used the road. Plaintiffs’ use of the road on Tract A, however, does not constitute use by the public for purposes of analyzing an abandonment claim under section 228.190.1. Kleeman, 167 S.W.3d at 205 (public road held to be abandoned even though plaintiffs used the disputed land for their cattle operations). The trial court’s judgment is not against the weight of the evidence.

The judgment is affirmed.

All concur.