author: HOLLIS HORTON, Justice.

text:
    Michael Brandon GLOEDE, Appellant, v. The STATE of Texas, Appellee.
    No. 09-09-00457-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted on Nov. 5, 2010.
    Decided Dec. 15, 2010.

      Stephen A. Simonsen, Conroe, TX, for Appellant.
    Brett W. Logon, Dist. Atty., Joel Daniels, Marc Brumberger, Asst. Dist. Attys., Conroe, for state.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Lori Randall died from the head injury she suffered after spending the weekend with her boyfriend, Michael Brandon Gloe-de. The State indicted Gloede for murder and alleged that he struck Lori on her head. After a jury trial, the jury found Gloede guilty of manslaughter, a lesser-included offense. Gloede elected to have the trial court assess his punishment, and the trial court sentenced him to ten years in prison.

Gloede presents two issues for our review. In issue one, Gloede asserts the trial court erred by allowing the prosecutor to use a plastic liquor bottle as a demonstrative exhibit during final argument. In issue two, Gloede asserts that the evidence is insufficient to support the jury’s verdict. We affirm the trial court’s judgment.

Factual Background

According to Jennifer Sunday, Lori’s sister, Lori and Gloede had an “on and off’ relationship over the course of two to three years. On Saturday, April 29, 2006, Lori brought Gloede to a house where she was living with her grandmother. Lori got her “stuff’ and left with Gloede.

Around 7:30 p.m. on Saturday, April 29, 2006, J.M., a minor, was driving around when she saw Lori sitting in her parked car in Gloede’s driveway. J.M. and Lori were friends. J.M. testified that she noticed that Gloede was sitting in the passenger seat of Lori’s car. As J.M. pulled into the driveway, she noticed that Lori got out of her car. At that point, Gloede got out of the car, told J.M. that he and Lori were talking, and he asked J.M. to leave. As J.M. pulled away from Gloede’s house, she saw Gloede choking Lori. According to J.M., “he was just shaking her and her head was going back and forth and that’s all I saw.” J.M. called Lori’s sister and told her that she saw Lori and Gloede arguing and that Gloede “put his hands on [Lori].”

Cynthia Gerard, who was Lori’s friend and who lived across the street from Gloe-de’s residence, testified that Lori came to her house on the Saturday afternoon of April 29, 2006. According to Cynthia, Lori appeared to be upset and in fear of Gloede. She also thought that Lori had been drinking. According to Cynthia, later that same day, she heard Lori and Gloede arguing; Cynthia then heard someone pull into Gloede’s driveway and later drive away. Cynthia indicated that it was not uncommon for her to hear Gloede and Lori arguing.

Cynthia also explained that on Sunday evening, April 30, 2006, Gloede asked her for some medication to treat Lori because she had complained of a headache. At that time, according to Cynthia, Gloede “seemed like he was messed up on something. He seemed agitated, antsy.” Cynthia saw Gloede again when he came to her house and told her that Lori had died. Cynthia described Gloede as seeming to be agitated and upset. When he told Cynthia that Lori died, Cynthia explained that he was crying. She further explained that during this visit, “[h]e didn’t look anybody in the eye. And he left very shortly thereafter. He did not stick around.”

Buffy Jacobs, one of Lori’s friends, lives four houses from Gloede’s residence. According to Buffy, for approximately eight years, she had regularly obtained prescription drugs from Gloede’s father. Buffy stated that “[a] couple of times” before Lori’s death, Lori told her that she was scared of Gloede. On May 1, 2006, the day that Lori was taken to the hospital, Buffy went to Gloede’s residence around 8:00 a.m. to see Lori. Gloede’s father told her that Lori was not there. Buffy returned to her home, but when she was unable to locate anyone who knew Lori’s whereabouts, she returned to Gloede’s house. When Buffy again asked for Lori, Gloede’s father indicated that he had not seen her.

On the morning of May 1, 2006, paramedics employed by the Lake Conroe Fire Department responded to a call for assistance at Gloede’s residence. They arrived around 10:00 a.m. Nicholas Daniel, a paramedic that responded to the call, testified that upon entering the bedroom he saw Lori lying on her back on the floor. Daniel explained that he noticed bruising on Lori’s face and arms, and a hematoma, or swelling, on Lori’s head. When Daniel first assessed Lori, she was unconscious and she was not breathing normally. After removing Lori from the residence, he turned her care over to Brian Piatkowski, a paramedic employed by the Montgomery County Hospital District. Shortly thereafter, an air ambulance took Lori to Methodist Hospital in Houston.

Buffy Jacobs testified that she heard the sirens and saw the paramedics arrive at Gloede’s residence. Buffy related that she ran in the door behind the paramedics, and, upon entering the back bedroom, she saw Lori lying unconscious on the floor. As the paramedics brought Lori out of the house, Buffy explained that she saw the sheet the paramedics were using to carry Lori slip, which allowed the back of Lori’s head to hit the top of the step.

Buffy also testified that on Monday evening, May 1, 2006, Gloede told her that he and Lori had been “in an altercation over her being — leaving—leaving drunk. He took the bottle from her. And they had gotten in another scuffle and she had gotten hit over her head.” In subsequent testimony, Buffy clarified that Gloede told her that “he grabbed the keys and the bottle from [Lori] and that they were in a scuffle and that he did hit her over the head with the bottle.”

On May 4, 2006, three days after arriving at the hospital, Lori died. Dr. Dwayne Wolfs autopsy report attributed Lori’s death to the following:

... blunt head trauma, resulting in a subdural hematoma. The manner of death however, is less clear. History suggests an altercation preceded the head injury; however, police were unable to confirm the details of an altercation. The injuries (especially following surgical manipulation) cannot be distinguished from accidental injuries (a fall for example). Therefore, the manner of death will be undetermined.

During the trial, Dr. Wolf explained that blunt force trauma can occur either by striking the body with a blunt object or the body’s falling onto a blunt object. Dr. Wolf testified that he could not tell from his post-mortem examination whether a blow or a fall was responsible for the blunt force trauma which had caused Lori’s death. According to Dr. Wolf, Lori’s sub-dural hematoma had been caused by blunt force trauma that probably occurred between April 28, 2006, and May 1, 2006.

During the guilt-innocence phase of the trial, four witnesses were called to testify by Gloede. One of the witnesses was paramedic Brian Piatkowski, who indicated that when he arrived, Lori was in the front yard and was unconscious and unresponsive. He noticed no abnormalities to Lori’s head, and he felt that Lori was suffering from “bleeding, intracranial hemorrhage.” Piatkowski described Lori as critically ill or injured, and he acknowledged that he possibly missed some of Lori’s injuries if they were covered by her hair or by equipment.

Kimberly Daoudi, who was acquainted with the Gloedes, indicated that she went to Gloede’s home on Saturday afternoon, April 29, 2006, between 4:30 and 5:00 p.m. When she pulled into Gloede’s driveway, she noticed Lori and Gloede in a car parked in the street. She saw Lori get out of the car and then stumble. Daoudi thought that Lori fell down because when Lori stumbled, Lori disappeared behind the car. Kimberly testified that she saw Lori get back up, and she saw Lori and Gloede arguing over whether Gloede would return her car keys. Based on these observations, Kimberly explained that she thought Lori had either been drinking or taking drugs. Kimberly then explained that she went inside the house to talk to Gloede’s father, Fred. Lori and Gloede were still there when Kimberly left a short time later.

Donald Grissom III, Gloede’s friend, testified that Lori and Gloede came to his home on Saturday evening, April 29, 2006. He thought that both Lori and Gloede were high. While he and Gloede looked at his boat, he heard Lori throwing up. At that point, Gloede told him Lori was sick, and that they had to go. Grissom testified that he had not observed any signs that Lori had been injured, but he also stated that he was not looking to see whether she had suffered any injuries.

Gloede also called Dr. Vladimir Parun-gao, a board certified pathologist, to express an opinion on the cause of Lori’s death. Dr. Parungao testified that he had read the autopsy report and that he did not disagree with it. Then, after being shown several exhibits depicting Lori’s bruises, Dr. Parungao indicated the bruises were caused when Lori had been struck in different places because she had an unstable gait. Dr. Parungao testified that Lori had an acute subdural hematoma, which he described as having occurred within five days of her death. Dr. Parun-gao testified that striking another with a plastic bottle “usually [does not] cause sub-dural hematoma in a head injury.” Dr. Parungao explained that the bruise to Lori’s head was likely attributable “to hitting somebody hard or falling [on] something hard[.]” Dr. Parungao testified that Lori’s medical records contain a drug screen which had been obtained upon her admission to the hospital. Lori’s drug screen was positive for the presence of valium, cocaine, benzodiazepine, and barbiturates. Dr. Parungao did not testify about the levels of these drugs in Lori’s system.

Dr. Parungao testified that all kinds of objects, including a person’s hand, are capable of causing a subdural hematoma. He also acknowledged that throwing up is a symptom that is a common sign of a person’s having suffered a head injury. Nevertheless, based on the autopsy pictures, Dr. Parungao explained that falls are a more common cause of subdural hematomas than being hit in the head with a plastic bottle. Dr. Parungao testified that he had never seen a subdural hemato-ma caused by hitting a person with a plastic bottle.

In closing argument, the State argued that Lori’s subdural hematoma was caused when she was hit in the head with a plastic bottle. Gloede’s attorney, on the other hand, argued that the evidence showed that Buffy’s testimony was not credible. Gloede’s attorney also argued that Lori’s head injury had occurred before she argued with Gloede on Saturday afternoon, as Lori had complained to her son on Friday that she was suffering from a headache. Gloede’s attorney then argued that Lori must have injured herself in a fall while she was drunk or taking drugs, and he asserted that Lori’s death was her own fault because she had chosen not to go to the hospital.

The trial court submitted issues on murder, manslaughter, aggravated assault, criminally negligent homicide, and assault. The jury found Gloede guilty of manslaughter, but then answered “We do not” on an issue inquiring about whether Gloe-de used a bottle as a deadly weapon during the commission of the offense. After hearing the punishment evidence, the trial court sentenced Gloede to ten years of confinement in the Correctional Institutions Division of the Texas Department of Criminal Justice.

Standard of Review

In issue one, Gloede challenges the prosecutor’s use of a plastic bottle during closing argument because the bottle was never offered into evidence during Gloede’s trial. The Code of Criminal Procedure gives the presiding judge the responsibility to regulate jury argument. See Brown v. State, 475 S.W.2d 938, 957 (Tex.Crim.App.1971) (applying article 36.07 to jury argument), overruled on other grounds, Bradford v. State, 608 S.W.2d 918, 919-21 (Tex.Crim.App.1980); see also Tex.Code Crim. Proc. Ann. art. 36.07 (West 2007). Trial courts have significant discretion to control the arguments offered on a party’s behalf, and a trial court’s rulings controlling argument are subject to reversal only when that discretion is abused. Hall v. State, 58 Tex.Crim. 512, 126 S.W. 573, 573 (1910) (recognizing that it “is well settled that the extent and manner of argument are confined largely to the discretion of the trial court, and that it is not subject to revision, except in a clear case of abuse”). For improper argument to result in reversible error, the argument must (1) be “violative of a statute!,]” (2) inject “a new and harmful fact into the case[,]” or (3) be “manifestly improper, harmful and prejudicial to the rights of the accused.” Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App.1996). If a jury argument exceeds the bounds of proper argument, the trial court’s refusal to grant the defendant’s objection to the argument is not reversible error unless it affects the defendant’s substantial rights. See Tex. R.App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App.2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.App.1998). In determining whether the appellant’s substantial rights are affected by improper argument, we balance “the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, [and] (3) the certainty of conviction absent the misconduct.” Martinez, 17 S.W.3d at 692-93; see also Mosley, 983 S.W.2d at 259.

Gloede’s second issue challenges the trial court’s denial of his motion for instructed verdict. A motion for directed verdict is a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993); Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990) (“A challenge to the trial judge’s ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction.”). Therefore, we apply the same standard as applied to challenges to the legal sufficiency of the evidence in reviewing Gloede’s second issue.

In a legal sufficiency review, we consider all of the evidence in the light most favorable to the verdict, and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 898-900 (Tex.Crim.App.2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). However, under a legal sufficiency review, we “ ‘may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.’ ” Williams, 235 S.W.3d at 750 (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999)). We are to give the trier-of-fact deference to “ ‘fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)).

Final Argument

First, we address Gloede’s complaint concerning the prosecutor’s use of a plastic bottle in final argument. When the prosecutor first displayed the bottle to the jury, he stated: “Taking a bottle and swinging it with enough force to cause.... ” At that point, Gloede’s attorney objected, stating:

[Defense Attorney:] Judge, I’m going to object to a demonstrative [exhibit] not previously displayed to the defense and which we would object to using in the closing as not being in evidence.

The trial court overruled the defendant’s objection. Then, the prosecutor continued:

[Prosecutor:] Didn’t even try that hard. Think about the force. The weight of the liquid transferred from the bottle to the head. You don’t do that unless you intend to hurt somebody bad.

Initially, we note that the Court of Criminal Appeals has given trial courts the discretion to admit into evidence instruments of a similar type to the one used in the commission of an offense where the exemplar “is relevant and material to an issue in the trial and is not overly inflammatory, and the original, if available, would have been admissible at trial.” Simmons v. State, 622 S.W.2d 111, 113 (Tex.Crim.App.1981). While an exemplar of the weapon used in the commission of a crime need not be an exact match, where the characteristics of the exemplar weapon and the one used in the commission of a crime are not similar, “the probative value of the non-exact weapon or instrumentality will be very slight. It would be an abuse of discretion to admit the exhibit in evidence under those circumstances.” Id. at 114.

In Gloede’s case, none of the witnesses that testified during the trial gave a detailed description of the bottle that Gloede is alleged to have used to strike Lori’s head. Nor was the bottle that the prosecutor displayed in final argument introduced as demonstrative evidence during the guilt-innocence phase of Gloede’s trial. Buffy Jacobs, the witness who testified that Gloede told her that he hit Lori with a bottle, did not report that Gloede gave her further descriptive details about the bottle, such as its size or contents, when he told her about the altercation. During cross-examination, Buffy indicated that the bottle was a hard, brown plastic bottle, although her testimony does not indicate how she learned this added detail. Nevertheless, nothing in the record reflects that the bottle displayed in final argument was of a similar size or shape as the bottle the prosecutor chose to use during closing argument. Based on the evidence in the record before us, the State failed to lay the predicate that would have been necessary had the prosecutor asked to admit the bottle as one that was similar to the one the State alleged had been used during the commission of the offense. See Tex.R. Evid. 402 (“Evidence which is not relevant is inadmissible.”).

The bottle was used by the prosecutor during final argument. With respect to arguments made by the attorneys in summation, the Court of Criminal Appeals has stated that “[p]ermissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement.” Cannady v. State, 11 S.W.3d 205, 213 (Tex.Crim.App.2000). In this case, the State argues that the bottle was a visual aid that merely reflects the evidence adduced during trial. But bottles, like knives, come in a variety of sizes. One of the primary disputes between the parties was whether Gloede could have used a plastic bottle with sufficient force to cause the blunt force trauma which resulted in Lori’s suffering a sub-dural hematoma. Based on the evidence in the record, we are unable to conclude that the bottle the State chose to use in its final argument was merely the equivalent of an oral summary of the evidence admitted during the trial. We conclude that absent a description of the bottle’s size and contents, the prosecutor’s use of a bottle holding 750 milliliters of fluid does not amount to a summing up of the evidence.

However, summation is not the only area of proper argument. An attorney is allowed to answer arguments of opposing counsel during final argument. See Cannady, 11 S.W.3d at 213. One theme advanced through the defendant’s examination of Dr. Parungao was that Lori’s injuries were probably attributable to a fall, and were probably not caused by receiving a blow from a plastic bottle. During his direct examination, Dr. Parun-gao explained: “A plastic bottle usually [does not] cause subdural hematoma in a head injury. Even [if] you hit the head with [the bottle] — it’s not the same as the glass bottle because the plastic bottle if you hit it — so the energy is not toward. It went inside.” Thus, Dr. Parungao implied that a plastic bottle was not capable of causing Lori’s fatal injury. Nevertheless, during cross-examination, Dr. Parungao recognized that if swung hard enough, a hard plastic bottle containing liquid could cause a subdural hematoma.

In final argument, the State’s prosecutor used the plastic bottle to argue that a bottle containing a liquid could be used with sufficient force to indicate that the person using it intended to cause a serious injury. Since one of the themes of the defendant’s case was that a plastic bottle could not have caused Lori’s head injury, it was not improper for the prosecutor to reply by demonstrating how a plastic bottle could be used in a manner sufficient to cause a mortal injury. In this case, the prosecutor used the bottle in a limited way to answer the argument of opposing counsel. See id. We hold that the use of the plastic bottle under these circumstances was a matter left to the trial court’s discretion, as the bottle’s use was limited to replying to the argument which had been raised by the defendant through the testimony of one of his witnesses.

We hold the trial court did not abuse its discretion by allowing the prosecutor to use a plastic bottle to demonstrate that a bottle containing liquid had the capacity to cause the type of injury that Lori suffered. We overrule issue one.

Legal Sufficiency

A person commits the offense of manslaughter if he recklessly causes the death of an individual. Tex. Penal Code Ann. § 19.04(a) (West 2003). “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Tex. Penal Code Ann. § 6.03(c) (West 2003). “[P]roof of a culpable mental state generally relies on circumstantial evidence.” Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App.1978). “[Wjhether one is aware of a requisite risk or simply should be aware of it, is a conclusion to be drawn through inference from all the circumstances by the trier of fact.” Id. Reviewing the evidence under the Jackson standard requires that we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences from it, a rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

The jury is the exclusive judge of the facts proven in a case. See Tex.Code Crim. Proc. Ann. arts. 36.13 (West 2007), 38.04 (West 1979); Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008); Ra- chal v. State, 917 S.W.2d 799, 805 (Tex.Crim.App.1996). As judges of the facts, juries are free to judge the weight to be given the testimony and are free to accept or reject any or all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In other words, juries are allowed to believe or disbelieve any part of the testimony of any witness. See Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App.1998).

Reconciling conflicts in the evidence is one of the functions of the trier-of-fact. See Tex.Code Grim. Proc. Ann. arts. 36.13, 38.04; Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). Circumstantial evidence alone can support a defendant’s conviction. See Clayton v. State, 235 S.W.3d 772, 778-79 (Tex.Crim.App.2007) (noting that the evidence allowed the jury to rationally find the defendant was with the decedent during the period when he was shot, which when combined with other incriminating evidence, constituted sufficient evidence that the defendant was guilty). In this case, the jury heard evidence that Gloede was with Lori during a period in which she probably suffered a head injury. There was also evidence that the two were seen arguing on Saturday, evidence that Gloede told Buffy Jacobs after Lori was hospitalized that he hit her on the head, and evidence that on the evening after their altercation on Saturday, Lori was suffering from symptoms commonly associated with head injuries.

Since Gloede’s indictment did not allege the type of weapon he is alleged to have used to commit the offense, the State was not required to prove that Gloede had used a bottle to inflict Lori’s injury. Because the jury could accept some parts of testimony and reject others, it was free to accept Buffy's testimony that Gloede struck Lori in the head, and at the same time reject Gloede’s statement that he used a plastic bottle to do so. Thus, the jury was free to resolve conflicts in the evidence by deciding that Gloede struck Lori in the head and caused her death, and, at the same time in connection with the deadly weapon finding, refuse to find that he did so by using a plastic bottle.

The jury in Gloede’s case could also consider circumstantial evidence implicating Gloede in Lori’s death. The circumstances include evidence that Lori and Gloede had been together during the periods immediately before Lori’s hospitalization. Given the nature of Lori’s head injury, the jury was entitled to consider whether Lori’s symptoms of severe headache and vomiting, reported by Donald Grissom when he saw her on Saturday night, were consistent with Lori’s having received a head injury on Saturday around the times that Lori and Gloede were seen arguing. The jury was also entitled to consider the circumstance that Lori had reported she was afraid of Gloede, and to consider why Gloede’s father would have denied Lori’s presence in his home when the circumstances showed she was there. The jury was also entitled to consider the testimony that Gloede seemed nervous following Lori’s hospitalization, as well as the fact that the police were unable to question him shortly after Lori’s death because he moved from his father’s home. The jury heard that Gloede and Lori had been arguing, heard evidence of the tempestuous nature of their relationship, and heard testimony by physicians that blows by a person’s fist could cause trauma sufficient to cause a subdural hematoma. The jury was also entitled to consider Gloede’s recorded statement, which the trial court admitted into evidence. During the recorded statement, Gloede told the investigator that the only fall that Lori had suffered during the weekend occurred when she exited her car and fell sideways, resulting in scrapes to her knees and arms. Gloede specifically told the investigator that he did not see her hit her head, that Lori had not grabbed her head, nor did she indicate that she hit her head. While there was evidence that the paramedics allowed Lori’s head to strike a step as they were removing her from Gloede’s house, the jury could conclude that she had suffered a subdural hematoma before she was removed from the house. While the jury also heard generalized testimony that head injuries from falls are experienced by alcoholics, and heard testimony that Lori had been intoxicated and was taking drugs over the course of the weekend, no witness testified that he had seen Lori fall and hit her head before being attended by paramedics.

Gloede’s admission that he struck Lori in the head, when considered and combined with the cumulative force of the incriminating circumstantial evidence, allowed a rational jury to reasonably find, beyond a reasonable doubt, that Gloede was guilty of manslaughter. See Clayton, 235 S.W.3d at 782. After carefully reviewing all of the evidence in the light most favorable to the jury’s verdict, we hold that the evidence is legally sufficient to support the jury’s guilty verdict.

Conclusion

Having overruled both of Gloede’s issues, we affirm the judgment of the trial court.

AFFIRMED.

      . Because J.M. was a minor at the time of trial, we identify her by her initials.

      . In arguing his second issue, Gloede’s brief states we should review his issue based on a legal sufficiency standard, but he then references Johnson v. State, in which the Court of Criminal Appeals discusses how a factual sufficiency standard that is used in civil cases applies in criminal cases. 23 S.W.3d 1, 11-12 (Tex.Crim.App.2000) (explaining the application of a criminal factual sufficiency standard), overruled by Brooks v. State, 323 S.W.3d 893, 912-13 (Tex.Crim.App.2010). Gloede’s brief, in discussing the standard of review we should apply to issue two, also refers to Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006) (applying the legal sufficiency standard). Because an attack on the denial of a motion for directed verdict raises a legal sufficiency complaint, but Gloede’s argument references both factual and legal sufficiency standards, it is not entirely clear what standard Gloede contends should be employed in review of the complaints he makes in issue two. Nevertheless, in Brooks, the Court of Criminal Appeals clarified that there is no meaningful distinction between the legal sufficiency standard and the factual sufficiency standard in reviewing sufficiency challenges in criminal cases, and it directed that the legal sufficiency standard in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), "is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks, 323 S.W.3d 893, 895.


source: Caselaw Access Project

author: ACREE, Judge.

license: Public Domain

text:
    Phyllis MURRAY, Appellant, v. EASTERN KENTUCKY UNIVERSITY, Appellee.
    No. 2008-CA-000561-MR.
    Court of Appeals of Kentucky.
    Dec. 11, 2009.
    Discretionary Review Denied by Supreme Court Jan. 14, 2011.

      Edward E. Dove, Lexington, KY, for appellant.
    Stephen L. Barker, Joshua M. Salsbu-rey, Lexington, KY, for appellee.
    Before ACREE and LAMBERT, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Ken-tuclcy Constitution and Kentucky Revised Statute (KRS) 21.580.

   OPINION

ACREE, Judge.

Phyllis Murray appeals from a summary judgment of the Madison Circuit Court dismissing her claims of gender and disability discrimination against Eastern Kentucky University (EKU). We affirm.

In 1989, EKU hired Murray as a part-time faculty member. After three years, and believing she could soon attain her doctorate before the beginning of the 1993 fall term, Murray applied for a full-time, tenure-track position. Although she did not get that job, she stayed on in her part-time position. Murray had not met her self-imposed goal for obtaining her doctorate when, in 1994, she again applied for a full-time, tenure track-position. Again, she represented that obtaining her degree was imminent. EKU agreed to hire her.

The employment contract initially hired her for the 1994-95 academic year. A new contract was to be executed each year of the five-year probationary period, during which Murray was required to obtain her doctorate. If that degree was not completed by the end of the fifth year, the 1998-1999 academic year, EKU would issue a one-year terminal contract, after which the employment would end.

In the spring of 1995, Murray was diagnosed with breast cancer. Murray underwent a mastectomy, chemotherapy, several surgeries, and other treatments to combat the cancer. Murray later tried to negotiate an amendment to her contract to remove the requirement that she obtain her doctorate before the end of the 1998-1999 academic year. Her department chairman, Donald Calitri, on behalf of EKU, would not agree to change the terms of the contract.

Again, in the spring of 1999, Murray sought modification of the terms of her employment agreement. This time she was successful. Dr. Robert Kustra, EKU’s president, granted her request and gave her until the end of the 1999-2000 academic year to complete her degree. However, under the modified terms of ‘the contract, if Murray failed to obtain her doctorate by the end of the 1999-2000 academic year, her employment with EKU would end.

In January 2000, Murray requested another extension to complete her doctoral degree, but that request was denied. Murray failed to complete her doctorate before the end of the 1999-2000 academic year; therefore, she was terminated from her employment. As of the end of the 2001-2002 academic year, Murray still had yet to complete her doctoral degree.

In September 2000, Murray filed a complaint against EKU alleging gender and disability discrimination. In September of 2002, EKU filed a motion for summary judgment, which was denied by the court in March 2007. In the same ruling, the court defined three criteria that had to be met in order for an individual to be considered “similarly situated” for purposes of Murray’s gender discrimination claim. Firstly, the similarly situated individuals must come from the same college as Murray, the College of Health Sciences. Secondly, like Murray, they had to be full-time, tenure-track faculty. Lastly, they must have the contractual requirement of obtaining a terminal degree in their field, such as a doctorate. The court afforded Murray the opportunity for additional discovery. If no similarly situated individuals could be found, EKU would be permitted to renew its summary judgment claim.

Eight months later, in November 2007, EKU renewed its motion for summary judgment on both gender and disability discrimination. The court granted the motion in February 2008, and this appeal followed.

Murray argues that the grant of summary judgment was improper both on her gender discrimination claim and her disability discrimination claim. Regarding the gender discrimination claim, Murray contends that the trial court’s definition of “similarly situated” was impermissibly narrow. Her argument regarding her disability discrimination claim is that the reasonableness of her second request for a one-year extension is a question of fact for the jury. Additionally, and for the first time, Murray argues to this Court that the facts of her case also support a claim of “mixed-motive” discrimination. That is to say, although she never conceded the legitimacy of EKU’s asserted grounds for her termination before the circuit court, she is now contending her termination was prompted by a combination of legitimate motives and illegally discriminatory motives.

Generally, our Court will not consider a claim of error not first presented to the circuit court. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 152 (Ky.1977). This principle was specifically applied in White v. Baxter Healthcare Corp., 583 F.3d 381 (6th Cir.2008), the case quoted at length in Murray’s brief to describe the standard for appellate review of a summary judgment in a mixed-motive discrimination case. The appellant in White presented two discrimination claims, only one of which was presented to the trial court as a mixed-motive claim. The Sixth Circuit stated, “White has presented his failure to promote claim as a single-motive discrimination claim.... Thus, we do not analyze his claim under the unique mixed-motive summary judgment analysis[.]” White at 390 fn. 4. Murray presented her discrimination claims as single-motive claims and we will review them as such.

The standard of review on appeal when a trial court grants a motion for summary judgment is de novo as only legal questions are involved. Hallaban v. The Courier Journal, 138 S.W.3d 699, 704-05 (Ky. App.2004). The movant bears the initial burden of convincing the court by the evidence of record that no genuine issue of fact is in dispute, and then the burden shifts to the party opposing the motion to present “at least some affirmative evidence showing there is a genuine issue of material fact for trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.1991).

In order to survive a motion for summary judgment on her gender discrimination claim, Murray needed to establish a prima facie case comprised of four elements. Murray had to show that (1) she was a member of a protected group; (2) she was subjected to an adverse employment action; (8) she was qualified for the position; and (4) “similarly situated” non-protected employees were treated more favorably. Peltier v. U.S., 388 F.3d 984, 987 (6th Cir.2004). When determining what employees were “similarly situated,” the plaintiff must find those that are similar to her in “all relevant aspects.” Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994); see also Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir.1998).

The record shows that Murray failed to present sufficient evidence to establish the third and fourth elements of a prima, facie cause of action for employment discrimination.

To be qualified for continued employment under the terms of her contract with EKU, Murray was required to obtain her doctorate. While it is true that Murray experienced challenging, even life-changing, medical problems, such changed circumstances did not affect operation of the contract. Even so, EKU did accommodate Murray by allowing her more time to obtain her doctorate than originally agreed. Absent proof she had acquired her doctorate, Murray was unable to demonstrate she was qualified for the position she sought.

With regard to the fourth element of her prima facie claim, Murray needed to identify persons who were not in a protected class, but who were otherwise similarly situated, and who were treated more favorably than her. She was not able to do so. Consequently, on appeal she argues that the criteria established by the circuit court for identifying such persons was too restrictive to comport with Kentucky law. We disagree.

The circuit court required Murray to find a similarly situated employee among the faculty of EKU’s College of Health Sciences — a pool of approximately 100 faculty members. We do not find that such a limitation was unreasonable.

To establish a prima facie claim for disability discrimination, Murray needed to establish that: (1) she has a disability as defined under the Kentucky Civil Rights Act; (2) she was “otherwise qualified” to perform the requirements of the job, with or without reasonable accommodation; and (3) she suffered an adverse employment decision because of the disability. Hallahan v. The Courier Journal, 138 S.W.3d 699, 706-07 (Ky.App.2004).

Murray contends that the reasonableness of her request for a second extension to complete her degree is a question of fact for the jury, thereby making summary judgment in this case improper. However, even if she had been granted an extension through the 2000-2001 academic year, Murray still would not have been qualified for the position because, based on the record before us, Murray did not complete her degree before that time. In fact, based on the record, Murray has never accomplished this requirement.

Whether Murray’s claimed accommodation was reasonable is a moot issue because Murray was not otherwise qualified for the position as specified in the contract. Since Murray failed to establish the second criteria of her privia facie case of disability discrimination, a motion for summary judgment in favor of EKU was proper.

For the foregoing reasons, the judgment of the Madison Circuit Court is affirmed.

ALL CONCUR.


author: COMBS, Chief Judge.

text:
    Kendra KELLEY, Appellant, v. John S. POORE, Appellee.
    No. 2008-CA-002409-MR.
    Court of Appeals of Kentucky.
    Dec. 18, 2009.
    Discretionary Review Denied by Supreme Court Jan. 14, 2011.

      Charles W. Gorham (argued), R. Grant Stephens, Lexington, KY, for appellant.
    John W. Walters, Melissa Thompson (argued), Lexington, KY, for appellee.
    Before COMBS, Chief Judge; MOORE, Judge; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute(s)(KRS) 21.580.

   OPINION

COMBS, Chief Judge.

Kendra Kelley appeals from a jury verdict and judgment dismissing her personal injury claim against John S. Poore. The action was filed following a collision between a personal watercraft (PWC) operated by Kelley and Poore’s fishing boat. Kelley argues that the trial court erred by refusing to direct a verdict and alleges as error three grounds: (1) Poore’s failure to keep a proper lookout; (2) the court’s failure to instruct the jury on the federal rules of the waterway; and (3) the court’s admission of evidence tending to suggest that Kelley lacked experience operating the PWC while Poore was an avid boater. As we disagree with each contention, we affirm the judgment.

The collision between the two vessels occurred at mid-day on July 1, 2007, on Kentucky’s Lake Herrington. Testimony indicated that nineteen-year-old Kelley had been operating her boyfriend’s PWC for only a few minutes when she became concerned for her safety. Kelley testified that she was near the middle of the lake in very choppy water when she decided to head for the shoreline. She indicated that she had been travelling parallel to the shore for approximately two to three minutes when she looked over her left shoulder; she was immediately struck by Poore’s fishing boat. Kelley' testified that Poore collided with her PWC on the left side and that she suffered a severe fracture of her lower right leg. Kelley denied that Poore’s boat was trying to overtake the PWC at the time of the collision.

On cross-examination, Kelley’s testimony was impeached at several crucial points. Confronted with prior sworn testimony, Kelley conceded that she had never operated a PWC in Lake Herrington or on choppy water; that she had become nervous about the water conditions; and that while she had been eager to get out of the way of passing boats, she could not look out for other vessels while watching for waves.

Kelley was questioned about a diagram contained in her deposition which she had been asked to make to depict the lake and her path across the water. In her sketch, Kelley indicated that she travelled very nearly perpendicular to the shore, a course that is against the rules of the water. However, she insisted in her testimony both at the deposition and at trial that she travelled parallel to the shore. At trial, the defense tried to show that her sketch accurately represented what had happened — contrary to her oral denials. The defense claimed that Kelley had not been tricked into making an inaccurate drawing and that despite her denials at the deposition and under questioning at trial, her sketch gave an accurate indication of her travel across the lake.

Poore, a fifty-five-year-old civil engineer, testified that he had been boating for more than thirty years. He indicated that he had experience with many kinds of watercraft and had been operating this particular boat for seven years. Poore testified that he had been boating on Lake Her-rington regularly for four years and that he had taken his boat out every Sunday afternoon for months. Poore noted that on the day of the accident, it was very windy and the lake had been particularly choppy. As a consequence, he had been travelling slowly along a line parallel to the shoreline at about 100 feet from shore when the collision occurred.

Poore indicated that he kept a proper lookout; that he had an unobstructed view and had not observed any vessel within 200 feet of his vessel when he glanced at the fuel tanks behind him. When he again looked forward, Kelley’s PWC was within five to ten feet of his vessel, and he was unable to avoid her. Poore testified that Kelley’s PWC approached him at a 90-degree angle and that she was oriented directly toward the shore at a perpendicular angle. He said that the left side of his fishing boat collided with the PWC at its right side just in front of the handlebars.

Defense expert Robert Taylor, a marine engineer, studied the damage patterns on both vessels. The examination of Kelley’s personal watercraft showed “crush damage” at its right side just in front of the handlebars. Taylor observed damage to the “left side, forward portion of [Poore’s] boat.” His reconstruction of the collision indicated that the vessels had impacted at a right angle.

At the conclusion of all the evidence, the jury deliberated for approximately thirty minutes. The jury concluded unanimously that Poore had not breached any duty to Kelley and returned a verdict in his favor. Judgment was entered, and this appeal followed.

We address Kelley’s three arguments on appeal in the order in which they were presented. First, Kelley contends that the trial court erred by refusing to grant a directed verdict against Poore based on his failure to keep a proper lookout. Kelley claims that Poore’s liability was proven by his admission that he looked but did not see Kelley approaching on the PWC. She observes that “[t]here was no explanation given by Poore or any other witness for why Poore did not see Kelley when she was on a wide open lake,” and “it was improper for the trial court to allow the jury to consider the issue.” Brief at 16.

When we review a judgment based upon a jury verdict, “all evidence which favors the prevailing party must be taken as true and ... [the] credibility or the weight which should be given to the evidence ... [a]re functions reserved to the trier of fact.” Gorman v. Hunt, 19 S.W.3d 662, 671 (Ky.2000), citing Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459 (Ky.1990). Additionally, “[t]he prevailing party is entitled to all reasonable inferences which may be drawn from the evidence.” Id. Based on the evidence as summarized, the jury could reasonably have found that Poore consistently maintained a proper lookout but that Kelley failed to keep a proper lookout, failed to yield the right-of-way, and approached his vessel so suddenly that he did not have sufficient time to react before colliding with her. Under the circumstances, the trial court did not err by refusing to conclude as a matter of law that Poore acted negligently or that he breached his duty to keep a proper lookout. Consequently, the court did not err in refusing to direct a verdict and in allowing the jury to consider this issue.

Kelley next contends that the trial court erred by failing to instruct the jury on the federal rules of the waterway. At trial, Kelley proposed a complex jury instruction based on federal maritime law. The proposed instruction set out the respective duties of vessels based on their relative bearings and on an overtaking vessel’s intention to overtake. That instruction was rejected by the trial court. In pertinent part, the jury was instructed as follows:

It was the duty of the Defendant, John S. Poore, in driving his boat to exercise ordinary care for his own safety and for the safety of other persons using the waterway, and this general duty included the following specific duties:
(a) To keep a lookout ahead for other vessels in front of him or so near his intended line of travel as to be in danger of collision;
(b) To have his boat under reasonable control;
(c) To drive at a speed no greater than was reasonable and prudent, having regard for the waterway traffic and for the condition and use of the waterway;
(d) To exercise ordinary care generally in order to avoid endangering the life or property of any person on the waterway;
(e) To yield the right-of-way to vessels ahead and to his right; and
(f) When overtaking another vessel, to yield the right-of-way to that vessel.

On appeal, Kelley argues that the trial court erx-ed by failing to give her proposed instruction since federal law imposes additional duties upon a vessel “to assume she is overtaking and act accordingly if there is any doubt” and to remember that “any subsequent alteration of the bearing between the two vessels” does not transform the “overtaking vessel” into a “crossing vessel” or relieve the overtaking vessel of the duty to keep clear of the overtaken vessel “until she is finally past and clear.” Appellant’s Brief at 18. By failing to accept her tendered instruction, Kelley contends that the trial court unfairly modified Poore’s duty of care. We do not agree.

Kentucky holds that there should not be an abundance of factual detail in jury instructions; instead, the instructions should provide only the “bare bones” of the question for the jury. Hamby v. University of Kentucky Medical Center, 844 S.W.2d 431 (Ky.App.1992). Moreover, the enumeration of specific duties in an instruction serves merely to amplify the requirement of the broad duty to use ordinary care under the circumstances without expanding the scope of that duty. Id. Additionally, Kelley’s tendered instruction tended to overemphasize the requirements specific to overtaking.

Neither Kelley nor Pooi-e testified that Poore’s fishing boat was overtaking or intended to overtake Kelley’s PWC. Instead, Kelley flatly denied it. Poore explained that he saw the PWC for the first time just an instant before the collision. Under these circumstances, it was not unreasonable for the court to reject Kelley’s complex and technical proposed instruction defining Poore’s duties as to overtaking Kelley’s watercraft. On the contrary, the court’s instructions to the jury fairly and accurately described Poore’s duty of care. The enumerated specific duties adequately explained the general duty, and it was the role of Kelley’s counsel to flesh out and to explain how Poore allegedly breached that duty. There was no error.

Finally, Kelley contends that the trial court erred by denying her motion in limine in which she sought to exclude evidence indicating that she was an inexperienced boater along with evidence to suggest that Poore was a practiced one. Kelley argues that the challenged testimony is prohibited by the provisions of Kentucky Rule(s) of Evidence (KRE) 404(a) that generally exclude “[e]vidence of a person’s character or a trait of character” if it is to be used “for the purpose of proving action in conformity therewith on a particular occasion.... ” Kelley argues that Poore elicited the challenged evidence in an effort to show that she and Poore operated their respective vessels on the day of the collision in conformity with their individual characters. In support of her position, Kelley refers to an unpublished opinion of this court.

Character commonly refers to one’s “fixed disposition or tendency.” See Black’s Law Dictionary 294 (4th ed. 1968). Testimony concerning an accident-free or accident-prone record is evidence of a driver’s propensity (ie., character) for carefulness. Courts routinely hold that evidence of a driver’s safe or unsafe driving record is immaterial and, therefore, inadmissible in a simple negligence case. Hudelson v. Delta Intern. Machinery Corp., 142 Idaho 244, 127 P.3d 147 (2005). Thus, evidence of one’s character for carefulness or carelessness for the purpose of showing action in conformity therewith is plainly inadmissible under the rule. Garner v. Victory Exp., Inc., 214 Ga.App. 652, 448 S.E.2d 719 (1994).

The evidence challenged in this case concerns the nature and quality of Poore’s experience operating boats and Kelley’s lack of experience operating PWCs — especially in choppy water and specifically on this waterway. We are not persuaded that such a boating history qualifies as evidence of one’s character or a trait of character. However, the evidence was probative in tending to explain how or why the collision between the boat and PWC occurred on the day in question. The trial court did not err by denying the motion in limine.

We affirm the judgment of the Fayette Circuit Court.

ALL CONCUR.


author: KELLER, Judge. CAPERTON, Judge,

text:
    Secily BAXTER, Individually; and Frances Baxter, as Administratrix and Personal Representative for the Estate of Joshua Miguel Deangelo Garcia Baxter, Appellants, v. AHS SAMARITAN HOSPITAL, LLC d/b/a Samaritan Hospital; and Dr. Joseph G. Fine, Appellees.
    No. 2008-CA-000541-MR.
    Court of Appeals of Kentucky.
    Jan. 15, 2010.
    Discretionary Review Denied by Supreme Court Jan. 14, 2011.

      H. Wayne Roberts, David N. Zorin (argued), Lexington, KY, for appellants.
    James P. Grohmann (argued), Andie Brent Camden, Louisville, KY, for appel-lee.
    Before ACREE, CAPERTON, and KELLER, Judges.
   KELLER, Judge.

Secily Baxter (Baxter) appeals the judgment of the Fayette Circuit Court which dismissed her medical malpractice action against Joseph G. Fine, M.D. (Dr. Fine), after the jury found that Dr. Fine was not negligent in failing to remove a surgical sponge from Baxter’s abdomen following her appendectomy. Specifically, Baxter contends that the trial court erred: (1) when it denied her motions for summary judgment and directed verdict under the doctrine of negligence per se or the doctrine of res ipsa loquitur; (2) when it failed to instruct the jury on the doctrine of res ipsa loquitur; and (3) when it granted partial summary judgment precluding the estate of Joshua Baxter (Joshua) from bringing a cause of action for wrongful death pursuant to Kentucky Revised Statute (KRS) 411.130. For the reasons set forth below, we affirm.

FACTS

On January 3, 2003, Baxter delivered her first child at the University of Kentucky Medical Center (UK Medical Center) by caesarean section. Twenty sponges were used during this procedure. After the procedure, there was a discrepancy in the instrument count. As a result, Baxter underwent an x-ray in the immediate postoperative period which revealed no evidence of a foreign body.

On September 16, 2003, Baxter presented to the Emergency Department of Samaritan Hospital (Samaritan) complaining of right lower quadrant pain and vomiting. One day later,- Thomas Greenlee, M.D., diagnosed Baxter with an inflamed appendix, and on the following day, Baxter underwent an open appendectomy at Samaritan. Dr. Fine performed the appendectomy.

This procedure involved a five to six-inch incision and required the use of re-tractors and sponges to facilitate access to the appendix. After Dr. Fine removed the appendix, a Samaritan circulating nurse and a Samaritan scrub tech performed two counts to ensure that all of the sponges and instruments used during the procedure were accounted for and that nothing was left inside Baxter. Both counts reported that two sponges were used during the surgery and that two sponges were removed. As a result, Dr. Fine closed the incision. Although both sponge counts were reported as correct, discovery in this case later revealed that the sponge discovered inside Baxter’s body was likely left during the appendectomy performed by Dr. Fine.

On the morning following her appendectomy, Baxter was released from Samaritan. On September 23, 2003, Dr. Fine prescribed Baxter further pain medication after she contacted Dr. Fine’s office complaining of continuing pain. On September 26, 2003, Baxter saw Dr. Fine in his office, where he removed Baxter’s sutures and evaluated her post-operative condition. During this visit, Baxter complained of a mass in the right side of her abdomen and Dr. Fine told Baxter that she had developed a hematoma (blood clot) which would eventually go away. At the end of Dr. Fine’s evaluation, Baxter and her mother received instructions to return to Dr. Fine’s office if further problems developed. Baxter never returned or contacted Dr. Fine’s office after this visit.

In December of 2003, Baxter became pregnant with her second child. On March 31, 2004, Baxter was seen for a routine prenatal screening exam by a home visit obstetric nurse. During this visit, the nurse noted a “blood clot size of grapefruit [sic]” on Baxter’s abdomen. On April 14, 2004, Baxter arrived at the UK Medical Center complaining of vaginal bleeding. A CT scan revealed that Baxter had experienced a placental abruption. A physical examination also revealed a palpable mass in the right quadrant of Baxter’s abdomen. On April 16, 2004, after her vaginal bleeding stopped and it was determined that there was no evidence of fetal jeopardy, Baxter was discharged from the hospital with bed rest precautions. On May 19, 2004, during a scheduled obstetric appointment at the UK Medical Center, a physical examination and an ultrasound revealed an abdominal mass in Baxter’s right side. As a result, Baxter underwent an exploratory laparotomy surgery on May 25, 2004, which revealed the presence of a sponge in her abdomen. The sponge was removed and Baxter was discharged on May 28, 2004.

On June 2, 2004, Baxter presented to the UK Medical Center in pre-term labor and delivered a 555 gram pre-term male infant, Joshua, consistent with a 24-week gestation. Joshua was immediately placed on life support, and over the next twelve days, Joshua’s condition deteriorated. On June 14, 2004, life support intervention was discontinued and Joshua died.

Baxter (initially by way of her mother, Frances Baxter) filed suit in the Fayette Circuit Court against Dr. Fine, Samaritan, and its nursing staff for damages resulting from the retained surgical sponge. Baxter alleged that the retained sponge caused her to experience pain and suffering, an additional medical procedure, and that it caused her to deliver a premature infant. Also included in the action was a wrongful death claim brought by the estate of Joshua. During the pendency of the litigation, Baxter attained the age of majority and replaced Frances Baxter as the real party in interest. Additionally, Baxter settled her claims against Samaritan.

Prior to trial, Baxter moved for partial summary judgment against Dr. Fine, arguing that he was negligent as a matter of law for leaving a sponge in her during the appendectomy. The trial court denied Baxtei'’s motion for partial summary judgment. However, the trial court granted Dr. Fine’s motion for partial summary judgment dismissing the wrongful death claim brought by Joshua’s estate.

Following the presentation of evidence by Baxter, Dr. Fine and Baxter each moved for directed verdicts, which both were denied by the trial court. After hearing the evidence, the jury returned a verdict in favor of Dr. Fine. Consequently, the trial court entered a final judgment dismissing Baxter’s complaint against Dr. Fine with prejudice. This appeal followed.

STANDARDS OF REVIEW

The issues raised by Baxter on appeal involve different standards of review; therefore, we will set forth the appropriate standard as we analyze each issue.

ANALYSIS

1. Partial Summary Judgment and Directed Verdict

On appeal, Baxter contends that the trial court erred in overruling her motions for partial summary judgment and directed verdict against Dr. Fine for negligence under either the doctrine of negligence per se or the doctrine of res ipsa loquitur. Generally, summary judgment is only proper when “there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law.” Pearson ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky.2002). Further, motions for directed verdict are appropriate if the moving party can establish that based on the evidence presented at trial, reasonable minds could not differ on the proper resolution of the case. Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky.1974). However, both standards require the reviewing court to construe the record in the light most favorable to the party opposing the motion. See Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991); Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky.1992).

In the interim between Baxter and Dr. Fine submitting their briefs to this Court, the Supreme Court of Kentucky in Nazar v. Branham, 291 S.W.3d 599 (Ky.2009), overruled the doctrine of negligence per se and adopted the res ipsa loquitur approach to retained foreign object cases. In adopting the res ipsa loquitur approach, the Court held that under this standard, “juries should generally be permitted to determine a healthcare professional’s liability in a retained foreign object case.” Id. at 604. The Court further held that under the doctrine of res ipsa loqui-tur, “juries may — but are not required to — infer negligence from the fact that a surgical item was left in a patient’s body.” Id. at 603.

Because the Supreme Court in Na-zar rejected the per se rule in retained foreign object cases, the trial court was correct in refusing to hold Dr. Fine negligent as a matter of law for failing to remove the sponge. Thus, the trial court properly denied Baxter’s motions for partial summary judgment and directed verdict under the doctrine of negligence per se.

Additionally, the trial court correctly denied Baxter’s motion for partial summary judgment and her motion for directed verdict under the doctrine of res ipsa loquitur. Dr. Fine presented adequate evidence both before and during the trial which created fact issues sufficient to defeat Baxter’s motions. First, Baxter’s pri- or caesarean section with an incorrect instrument count created an issue of fact as to who was responsible for the retained sponge. Further, at the time Baxter made her motion for partial summary judgment, only two of Baxter’s experts had been deposed, discovery was not complete, and Dr. Fine still had approximately five months until he had to disclose his experts. Although one of Baxter’s experts, Dr. Robert Weiss, faulted Dr. Fine for not accounting for the sponge, Baxter’s other expert, Dr. William Roberts, did not address Dr. Fine’s standard of care with respect to the sponge count. Instead, Dr. Roberts only criticized Dr. Fine for failing to evaluate Baxter more promptly after her discharge from Samaritan and for the thoroughness of Dr. Fine’s post-operative examination of Baxter on September 26, 2003.

At trial, Dr. Fine presented expert testimony that it was common practice for doctors to rely on nurses to account for all sponges used during surgery. Further, Dr. Fine presented expert testimony that it was the nursing staffs obligation to count the sponges. Even though the presence of the sponge in Baxter’s abdomen constituted prima facie evidence of negligence, the expert testimony created a question of fact regarding Dr. Fine’s liability for Baxter’s injuries. Accordingly, the trial court did not err in denying Baxter’s motion for partial summary judgment and her motion for directed verdict against Dr. Fine for negligence.

2. Jury Instructions

Next, Baxter argues that the trial court erred by failing to give the jury an instruction on the doctrine of res ipsa lo-quitur. “Alleged errors regarding jury instructions are questions of law and must be examined using a de novo standard of review.” Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky.App.2006) (citing Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 449 (Ky.App.2006)). The issue on appeal regarding an alleged erroneous jury instruction is whether the instruction misstated the law. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky.2005). The question is not which instructions best state the law. Id. at 230.

The res ipsa loquitur doctrine is an evidentiary doctrine which allows a jury to infer negligence on the part of the defendant. Sadr v. Hager Beauty Sch., Inc., 723 S.W.2d 886, 887 (Ky.App.1987). The doctrine, however, creates a rebuttable presumption of negligence. Id. (citing Bowers v. Schenley Distillers, Inc., 469 S.W.2d 565 (Ky.1971)). On occasion, the rebuttable presumption may be strong enough to require a directed verdict. Id. Instructions on res ipsa loquitur, however, should not be submitted to a jury. As recognized by the Supreme Court of Kentucky in Meyers, jury instructions should not explain evidentiary matters, evidentia-ry presumptions, or contain unnecessary detail. 840 S.W.2d at 824. This principle applies here. Although Baxter could request the application of the doctrine of res ipsa loquitur to avoid a directed verdict or to win a directed verdict, the trial court was correct in refusing to give an instruction on the same.

3. Wrongful Death Claim

Finally, Baxter contends that the trial court erred in granting partial summary judgment precluding Joshua’s estate from bringing a wrongful death action pursuant to KRS 411.130. We disagree.

KRS 411.130(1) provides that “[wjhenever the death of a person results from an injury inflicted by the negligence or wrongful act of another, damages may be recovered for the death from the person who caused it....” (Emphasis added). In determining the meaning of the word “person” for purposes of the wrongful death statute, the former Kentucky Court of Appeals held in Mitchell v. Couch, 285 S.W.2d 901, 906 (Ky.1955), that a wrongful death action is possible only if the negligence has resulted in the death of a “viable fetus.” The court further held that “viable fetus” means that “the child has reached such a state of development that it can presently live outside the female body as well as within it.” Id. at 905. Once the state of viability is reached, the unborn child becomes a legal person with a separate existence. Orange v. State Farm Mut. Ins. Co., 443 S.W.2d 650, 652 (Ky.1969). As stated in Mitchell, the reason “for holding that a viable unborn child is an entity within the meaning of the general word ‘person’ is because, biologically speaking, such a child is, in fact, a presently existing person, a living human being.” 285 S.W.2d at 905.

After a careful review of the record, we conclude that the trial court was correct in determining that there was not a genuine issue of material fact with respect to the viability of Joshua. Although Joshua was placed on life support equipment and survived as a result of such equipment for twelve days, the experts for both Baxter and Dr. Fine concluded that Joshua was never viable and was not capable of sustaining life apart from his mother. Because Joshua was not viable, his estate could not bring a wrongful death action pursuant to KRS 411.130. Accordingly, the trial court properly granted partial summary judgment dismissing the wrongful death claim brought against Dr. Fine by Joshua’s estate.

Even if the trial court erred in granting partial summary judgment, because of the jury verdict, Joshua’s estate could not have prevailed in the wrongful death claim. The jury determined that Dr. Fine was not negligent, thus absolving him from liability resulting from the retained sponge. It would be inconsistent to determine that Dr. Fine was liable for damages resulting from the retained sponge after determining that he was not negligent. Because the jury determined Dr. Fine was not negligent, he could not have been liable for the death of Joshua.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Fayette Circuit Court.

ACREE, Judge, concurs.

CAPERTON, Judge, dissents and files separate opinion.

CAPERTON, Judge,

dissenting.

The issue at hand that prompts my dissent is the propriety of a res ipsa loquitur instruction in medical negligence cases. In the wake of Nazar v. Branham, 291 S.W.3d 599 (Ky.2009), overruling Laws v. Harter, 534 S.W.2d 449 (Ky.1975), our case law on medical negligence is open for reform. In giving consideration to such an instruction, I believe that Nazar as well as the cases of other states are informative. In Nazar, our Supreme Court stated

The res ipsa loquitur approach avoids this unfairness by permitting juries to infer negligence from the fact of the retained foreign object, while granting them the latitude to analyze other facts and evidence relevant to liability. As such, juries are free to analyze the reliability and veracity of the defendant’s expert witnesses and weigh it against the likelihood that the surgeon was negligent in failing to remove an object from the plaintiffs body during surgery. The res ipsa loquitur standard simply provides a more equitable method for resolving retained foreign object cases. Nazar at 604.

The first sentence, in stating that the jury can infer negligence from the fact of the retained object, should serve to illuminate our understanding of the newly-adopted res ipsa loquitur doctrine. Absent a jury instruction advising the jury of their ability to infer negligence from the fact of a retained object, how can a jury be expected to fully understand the weight that can be attached to such evidence? True, the arguments of counsel can illuminate the jury as to the facts, but such are only arguments and do not instruct on the law. And, if the law is that the jury can infer negligence from the fact of a retained object, why is it that they are deprived of an instruction? No doubt some will argue that the doctrine of res ipsa loquitur is an effective tool to thwart directed verdict and fend-off summary judgment. If true, then why would our Supreme Court say that the jury can infer anything at all, why not merely state that the purpose of the doctrine is only a consideration for the trial court when presented with motions for directed verdict and summary judgment?

Such an instruction merely allows the jury to understand that the facts supporting res ipsa loquitur could support a finding of negligence but only in conjunction, as stated in the second half of the sentence, with other facts and evidence relevant to liability. Thus, the jury would give full consideration to all the evidence but understand that the doctrine of res ipsa loquitur allows a finding of negligence if they so decide.

In the second sentence of the above quote, our Supreme Court specifically considered the “weighing” of the testimony of defendant’s expert witnesses against a retained object in the body of a plaintiff. If the guidance given was not to impose a 'res ipsa loquitur instruction is such cases, why address the jury weighing such evi-dentiary matters?

Consider the recent decision of the Supreme Court of Missouri in Sides v. St. Anthony’s Medical Center, 258 S.W.3d 811 (Mo.2008), wherein the Supreme Court of Missouri quoted the Virginia Law Review in stating “In the 43 years since the Second Restatement was promulgated, the commentators have noted that, ‘the modern trend is to allow both a res ipsa loqui-tur instruction and expert evidence in medical malpractice cases.’ ” Sides at 816, quoting Karyn K. Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, 82 Va. L.Rev. 325, 327 (1996). One might read the article to question the appropriateness of the application of the res ipsa loquitur doctrine. Nevertheless, when the doctrine is adopted our courts must give consideration as to how it is to be applied.

While the change in the law is complete, the changes it effects will need to be determined. I would allow a res ipsa loquitur instruction under Nazar.

      . Although three of Baxter’s experts were deposed, only one expert, Dr. William Roberts, gave an opinion regarding the viability of Joshua.


author: ACREE, Judge:

text:
    Vaughn HALLIS, Appellant, v. Cathleen HALLIS, Appellee.
    No. 2009-CA-002051-ME.
    Court of Appeals of Kentucky.
    Oct. 1, 2010.
    Discretionary Review Denied by Supreme Court Jan. 14, 2011.

      Vaughn Hallis, Lexington, KY, pro se.
    No Brief for Appellee.
    Before ACREE and NICKELL, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute 21.580.

   OPINION

ACREE, Judge:

Vaughn Hallis, pro se, appeals a series of orders of the Fayette Family Court. The first order, of May 12, 2006, deviated from the child support guidelines, modified the parties’ child support obligations (from a prior temporary order), and struck all arrearages. Subsequent orders now on appeal denied Vaughn’s motions to reallocate child support and vacate the May 2006 order. We affirm them all.

Vaughn and Cathleen Hallis were married on November 25, 1989. They had two children who are now nineteen and fifteen years old. The parties separated in June 2003, and Cathleen filed a petition for dissolution of marriage on August 14, 2003.

Contested issues before the family court included the classification and distribution of the parties’ property and debt, custody and timesharing of the minor children, and child support payments. The family court’s first order regarding custody and timesharing, dated July 19, 2005, granted the parties joint custody of the children, with Cathleen to be primary residential parent in the school year and Vaughn to be primary residential parent during summer. Also in this order, the circuit court required neither party to pay child support. The order was modified on several occasions to require Vaughn to pay child support in various amounts during various time periods. Finally, on May 12, 2006, the family court again terminated the parties’ child support obligations.

That order eliminated Vaughn’s child support obligation because he had become disabled; the children received Social Security benefits as a result. Taking into account the amount Cathleen received in Social Security benefits for the children, the family court concluded the fair outcome would be to require child support payments from neither party. The family court denied the portion of Vaughn’s motion which sought to require Cathleen to pay child support. Vaughn appealed this order in 2006, but this Court affirmed the decision of the family court. Vaughn did not seek discretionary review by the Supreme Court.

More recently, Vaughn filed various motions requesting that the family court vacate the 2006 order. It is the family court’s denial of those motions, in addition to the 2006 order, which Vaughn now appeals.

At the outset, we note that Vaughn’s appellate brief deviates significantly from the format mandated by Kentucky Rule of Civil Procedure (CR) 76.12. In addition to a number of relatively minor omissions and improper formatting decisions we need not detail here, Vaughn’s brief includes no citations to the record and no statement of preservation of the issues he raises on appeal. Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky.App.1990).

It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules “do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated.” Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff 248 S.W.3d 533, 536 (Ky.2007)(quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky.1977)). Enforcement of procedural rules is a judicial responsibility of the highest order because without such rules “[sjubstantive rights, even of constitutional magnitude, ... would smother in chaos and could not survive.” Id. Therefore, we are not inclined to disregard Vaughn’s procedural deficiencies.

The second option is available to us because CR 76.12(8)(a) says: “A brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12.” All of the rules for preparing a brief before this Court are contained in CR 76.12 or rules cited therein. Lack of a legal education is not an impediment to following these rules. This case presents an opportunity to emphasize that there is an important purpose behind each of these rules.

Failure to comply with CR 76.12(4)(c)(v), Vaughn’s most troublesome shortcoming, creates particular problems. CR 76.12(4)(c)(v) requires that a brief contain:

An “ARGUMENT” conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.

Compliance with this rule permits a meaningful and efficient review by directing the reviewing court to the most important aspects of the appeal: what facts are important and where they can be found in the record; what legal reasoning supports the argument and where it can be found in jurisprudence; and where in the record the preceding court had an opportunity to correct its own error before the reviewing court considers the error itself. The parties, when acting pro se, or their attorneys who appear before us have typically spent considerable time, sometimes even years, creating and studying the record of their case. On the other hand, the record that arrives on the desk of the judges of the reviewing court is entirely unknown to them. To do justice, the reviewing court must become familiar with that record. To that end, appellate advocates must separate the chaff from the wheat and direct the court to those portions of the record which matter to their argument. When appellate advocates perform that role effectively, the quality of the opinion in their case is improved, Kentucky jurisprudence evolves more confidently, and the millstones of justice, while still grinding exceedingly fíne, can grind a little faster.

But the rules are not only a matter of judicial convenience. They help assure the reviewing court that the arguments are intellectually and ethically honest. Adherence to those rules reduces the likelihood that the advocates will rely on red herrings and straw-men arguments — typically unsuccessful strategies. Adherence enables opposing counsel to respond in a meaningfully way to the arguments so that dispute about the issues on appeal is honed to a finer point.

Finally, the brief typically is the first impression upon the reviewing court that an appellate advocate makes for himself, or on behalf of his client. On this point, we wholeheartedly agree with the sentiments of Judge Aldisert.

I cannot overemphasize the necessity of knowing and observing the rules governing briefs and the supporting record .... Failing to respect these rules may not cause your case to be dismissed, but it may get you off on the wrong foot. The best you can hope for in an appeal is a sympathetic court; at the very least, you want a neutral tribunal, not one that is hostile. You certainly do not want to face a court that has formed the impression: “This lawyer is complaining that the trial judge did not follow the rules of the game, but in taking this appeal, this character isn’t following ours!”
[A] sort of mental occurrence takes place when we are in the process of acquiring a favorable or unfavorable initial impression[. Sjuch a disposition is not necessarily a very long-lived one; it may last only a few seconds. But the advice is clear: do not make an initial bad impression by filing a sloppy brief that fails to follow the court’s requirements.

Ruggero J. Aldisert, Winning on Appeal, Better Briefs and Oral Argument 83 (2nd ed.2003).

Because Vaughn is not an attorney, we cannot expect the elegance or sophistication of legal thought we should expect from members of our “learned profession.” Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 489, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988)(O’Connor, Justice, dissenting)(An orderly legal system requires “a trained and specialized body of experts. This training is one element of what we mean when we refer to the law as a ‘learned profession.’ Such knowledge by its nature cannot be made generally available!.]”). However, we have every reason to expect the briefs filed by pro se appellate advocates to demonstrate a good faith attempt to comport with CR 76.12, our rule for preparing briefs. Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 537 (Ky.2007). While Vaughn’s brief includes citation to a variety of legal authority, we cannot know how that authority applies in his case because he fails utterly to cite to the record and he fails to tell this Court how he preserved his argument before the family court. Considering that Vaughn is a pro se appellant and the record in his case is not unwieldy, we will not strike his brief pursuant to CR 76.12(8). We will conduct this appeal under the manifest injustice standard. Our decision to do so in this case, however, should not be taken as precedent.

Vaughn urges this Court to reverse the family court’s 2006 order denying his motion to require Cathleen to pay child support. More specifically, he contends it was improper to deviate from the child support guidelines and to forgive Cathleen’s alleged arrearages. Vaughn has already raised this issue on appeal once, and this Court affirmed the family court. “An opinion of the Court of Appeals becomes final on the 31st day after the date of its rendition unless a petition under Rule 76.32 or a motion for review under Rule 76.20 has been timely filed or an extension of time has been granted for one of those purposes.” CR 76.30. Neither exception applied. Following finality, we lost jurisdiction to alter the opinion. Vaughn has exhausted his appeals and may not revisit the issue.

Even if this had been Vaughn’s first ajopeal of the 2006 order, his appeal was not timely. An appeal from a circuit court must be filed within 30 days of judgment. CR 73.02(l)(a). This appeal was filed more than three years after the family court’s order. “The failure of a party to file timely a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial.” CR 73.02(2). We therefore deny Vaughn’s appeal of the 2006 order.

Once we eliminate the issues pertaining to the 2006 order, little remains. Vaughn used his appeal of the 2008 and 2009 denials to reargue the reasons he believes the 2006 order should be reversed, but he failed to advance any argument to support reversal of the more recent orders. Review of those orders does not reveal any manifest errors. Vaughn is evidently upset that Cathleen has never been required to pay him child supjoort, but is entitled to keep the Social Security funds. He characterizes this as impermissibly crediting Cathleen with Vaughn’s benefits, thereby abating Cathleen’s child support obligation. However, review of the record reveals Cathleen has never been ordered to pay child support. She therefore has no obligation to abate. Vaughn has not demonstrated that the family court’s orders constituted manifest injustice.

The orders of the Fayette Family Court are affirmed.

ALL CONCUR.

      . The original appeal was consolidated with Vaughn's appeal of a previous order of the Fayette Family Court.

      .These include written orders of May 20, 2009, and June 9, 2009, denying Vaughn’s request to alter, amend, or vacate the May 2006 order, in addition to a verbal order of August 29, 2008.

      . For example, some of the practical purposes for these rules governing briefs are as follows:
      • Deadlines for filing briefs help expedite resolution of cases. CR 76.12(2).
      • Placing the order under review immediately behind the appendix index allows the reviewing court to return easily to the order, which the Court must to do repeatedly. CR 76.12(4)(c)(vii).
      • Including a short introduction and statement concerning oral argument in the front of the brief introduces the argument theme and permits the reviewing court to screen cases and schedule oral arguments expeditiously. CR 76.12(4)(c)(i), (ii), (d)(i).
      • Standardizing the permissible number of pages and the size of the paper, the margins, the font and the space between lines assures that neither party obtains an advantage over the other in terms of the length of the argument. CR 76.12(4)(a), (b).
      • A statement of points and authorities that accurately represents the contents of the brief allows for quick reference to a citation, argument, or analysis in the body of the brief. CR 76.12(4)(c)(iii), (d)(ii).
      • Extruding tabs make appendices, especially large ones, easy to use. CR 76.12(4)(c)(vii), (d)(v).

      . Those interested in the ancient origins of the old legal saw, "The mills of justice grind slowly, but exceedingly fine,” are referred to Wolfgang Mieder, Proverbs: A Handbook 50 (2004).

      . Ruggero J. Aldisert, Senior Judge United States Circuit Judge, is Chief Judge Emeritus of the United States Court of Appeals for the Third Circuit. He has published extensively on a variety of topics. Included among his works are The Judicial Process (West 2nd. ed.1996), Logic for Lawyers: A Guide to Clear Legal Thinking (NITA 3rd ed.1997), Winning on Appeal (NITA 2nd ed.2003), and Opinion Writing (West 2nd. ed.2009). In 2005 Aldi-sert became the first recipient of the "Distinguished Appellate Jurist Award,” bestowed by the American Bar Association’s Council of Appellate Lawyers. In 2008, Aldisert received the Legal Writing Institute's "Golden Pen Award.”

      . A family court such as the Fayette Family Court from which Vaughn appeals, is a circuit court. Walson v. Ethics Committee of Kentucky Judiciary, 308 S.W.3d 205 (Ky.2010)(citing Ky. Const § 109).


author: MARY R. RUSSELL, Judge. LAURA DENVIR STITH, Judge,

text:
    Anthony C. MOORE, Appellant, v. STATE of Missouri, Respondent.
    No. SC 90918.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2010.

      Gwenda R. Robinson, Public Defender’s Office, St. Louis, for Moore.
    Jamie P. Rasmussen, Attorney General’s Office, Jefferson City, for the State.
   MARY R. RUSSELL, Judge.

Anthony Moore was late in filing his Rule 29.15 motion. He contends that his appellate counsel for his direct appeal abandoned him by not timely telling him that the mandate from his appeal had been issued. The State argues that appellate counsel has no duty to provide timely notification. Pursuant to Rule 30.24(b), the clerk of the appellate court sent Moore notice of the mandate being entered, and he does not refute receiving that notice. The judgment of the motion court dismissing his untimely Rule 29.15 motion is affirmed.

I. Background

Moore was convicted of two counts of first-degree murder and was sentenced to two terms of life imprisonment without the possibility of parole. At the sentencing proceedings, the judge informed Moore of his right to seek post-conviction relief under Rule 29.15. The judge explained that there are three bases for filing a Rule 29.15 motion to set aside the sentences: (1) if they violate the constitution or laws of the United States or of Missouri; (2) if the court had no jurisdiction to impose the sentences; or (3) if the sentences exceeded the maximum allowed by law. Further, the judge told Moore that if he appealed, the Rule 29.15 motion would be due 90 days after the mandate from the court of appeals issued. Moore asked what form he should use to file the motion, and the judge instructed him to use Criminal Procedure Form 40, which could be obtained at the department of corrections. Moore indicated that he understood his right to file the motion.

After the court of appeals affirmed the conviction, it issued its mandate October 16, 2008. See State v. Moore, 264 S.W.3d 657 (Mo.App.2008). Moore filed his Rule 29.15 motion 218 days later. Along with the motion, he filed a letter and an affidavit from the attorney who represented him on direct appeal. The appellate attorney’s affidavit stated that she told Moore in a letter mailed Mahch 13, 2009, that the mandate had been issued in his direct appeal. The letter reminded him of the 90-day deadline to file a Rule 29.15 motion but acknowledged that the deadline, January 14, 2009, had passed two months ago. The appellate attorney recommended that if Moore wished to seek post-conviction relief, he should file a Rule 29.15 motion as soon as possible. Moore did not file his Rule 29.15 motion until May 22, 2009, more than two months later.

The court dismissed the Rule 29.15 motion for being untimely. This appeal follows.

II. Standard of Review

Review of a Rule 29.15 judgment is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous if, after reviewing the entire record, there is a definite and firm impression that a mistake has been made. McFadden v. State, 256 S.W.3d 103, 106 (Mo. banc 2008).

III. Analysis

Moore claims that the motion court erred in dismissing his Rule 29.15 motion because his appellate counsel for his direct appeal failed to timely inform him of the mandate’s issuance, which excused his tardy filing. His claim relies on prior cases in which courts have held that, due to third-party interference, the untimely filing was excused. See McFadden, 256 S.W.3d 103; Nicholson v. State, 151 S.W.3d 369 (Mo. banc 2004); Spells v. State, 213 S.W.3d 700 (Mo.App.2007).

As Moore was instructed by the trial court, Rule 29.15(b) requires that the post-conviction motion be filed within 90 days after the date the court of appeals issues its mandate affirming the judgment or sentence. The original motion must give the court notice that movant seeks post-conviction relief. Bullard v. State, 853 S.W.2d 921, 922-23 (Mo. banc 1993). Legal assistance is not required for the original motion. Id. at 923. If the motion is filed by an indigent self-represented movant, the court will appoint counsel. Rule 29.15(e). The appointed counsel will have the opportunity to file an amended motion that alleges sufficient facts and all claims for relief. Id.

If the movant fails to file the motion within the 90-day time limit, there is a complete waiver of the right to seek Rule 29.15 relief and a complete waiver of all claims that could be raised in the post-conviction motion. Rule 29.15(b); see also Gehrke v. State, 280 S.W.3d 54, 59 (Mo. banc 2009) (noting that a claim that could have been raised in a Rule 29.15 motion but was not cannot be raised in a petition for habeas corpus). While the rule does not carve out exceptions that excuse late filings, court decisions have created two: (1) when post-conviction counsel abandons the movant; and (2) when rare circumstances outside the movant’s control justify late receipt of the motion. McFadden, 256 S.W.3d at 108-09.

Under the first exception, abandonment traditionally excuses a late filing in two situations: (1) when post-conviction counsel fails to file an amended motion and the record shows the movant was deprived of meaningful review of the claims; or (2) when post-conviction counsel files an untimely amended motion. Gehrke, 280 S.W.3d at 57. A third type of abandonment occurs when post-conviction counsel’s overt actions prevent the movant from filing the original motion timely. See McFadden, 256 S.W.3d at 109 (post-conviction counsel, despite promising to file mov-ant’s pro se motion, failed to do so timely).

There was no abandonment in this case. Abandonment has been found to occur when post-conviction counsel improperly acts or fails to act to the movant’s detriment. See Gehrke, 280 S.W.3d at 57; McFadden, 256 S.W.3d at 109. Moore’s complaint is directed toward his appellate counsel, who he says abandoned him by failing to timely inform him when the mandate was issued. However, appellate counsel has no duty to represent a movant in post-conviction relief filings. There is nothing in the record that indicates appellate counsel agreed to inform Moore when the mandate was issued. Further, appellate counsel has no obligation to notify the defendant of his post-conviction rights under Rule 29.15 or of the mandate’s issuance.

The judicial branch is already obligated to inform the defendant of such information. Under Rule 29.07(b), the trial court must conduct a post-sentencing hearing in which it questions the defendant concerning the effectiveness of trial counsel. The court must also advise the defendant of the right to proceed under Rule 29.15. Here, the transcript indicates that the trial court informed Moore of his right to file a Rule 29.15 motion by using Criminal Procedure Form 40 within 90 days of the appellate court mandate’s issuance. Moore indicated in open court that he understood those rights.

Under Rule 30.24(b), the clerk of the appellate court has the duty to inform the appellant of the mandate’s issuance by sending a copy of the mandate for the appellant to the department of corrections. The appellate docket sheet reflects an entry that the mandate was sent October 16, 2008. It is presumed that the clerk of the appellate court sent a copy of the mandate to Moore, and he does not refute that he received it.

The second judicially created exception to Rule 29.15 occurs, “in very rare circumstances ... [in which] our courts have found an improper filing, caused by circumstances beyond the control of the movant, justified a late receipt of the motion by the proper court.” McFadden, 256 S.W.3d at 108; see Nicholson, 151 S.W.3d at 371 (motion that was timely filed in the improper venue must be transferred to the proper venue as if it were filed there originally); Spells, 213 S.W.3d at 701-02 (a motion was timely where the movant sent it to the court’s previous address and the post office received it before the deadline for filing a Rule 29.15 motion). There were no rare circumstances in this case that justify Moore’s failure to prepare and send the original motion before the expiration of 90 days.

The motion court’s dismissal of the original motion was not clearly erroneous. The judgment is affirmed.

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

STITH, J., concurs in separate opinion filed.

TEITELMAN, J., concurs in the opinion of STITH, J.

LAURA DENVIR STITH, Judge,

concurring.

I concur because Mr. Moore has failed to show that he is entitled to post-conviction relief on these facts. I write separately to note that where counsel affirmatively has told the client that counsel will take responsibility for a matter, then the client has the right to rely on that statement, as this Court recognized in McFadden v. State, 256 S.W.3d 103, 109 (Mo. banc 2008). As the principal opinion notes, McFadden found ineffective assistance where post-conviction counsel did not timely file movant’s pro se motion despite promising to do so. This was so even though, absent counsel’s voluntary undertaking to do so, movant would have been obligated to file his post-conviction motion himself. Id. Having undertaken to file the motion for movant, counsel was obligated to complete that task.

Here, Mr. Moore similarly argues that counsel undertook to inform him when the mandate was issued by the appellate court but failed to do so. If the record supported this argument, then he would be entitled to relief. This is so even though, as the principal opinion notes, Missouri’s rules do not impose a requirement on counsel to inform a client about the issuance of the mandate in the usual case. That is because, once counsel undertakes such an obligation, then a defendant had a right to rely on counsel to complete the undertaking. The failure to do so violates Missouri’s ethical rules.

Rule 4-1.3, “Diligence,” states: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 4 to Rule 4-1.3 explains what this means when a lawyer-client relationship is coming to an end:

4. Unless the relationship is terminated as provided in Rule 4-1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in uniting, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client, the lawyer should advise the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule k-lMb). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 4-1.2.

Rule 4-1.3, Comment 4 (emphasis added).

Rule 4-1.2 allows a lawyer to define the scope of representation of a client. Rule 4-1.4 requires a lawyer to keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment 1 then states:

1. Reasonable communication between the client and the lawyer is necessary for the client effectively to participate in the representation. Rule 4 — 1.4(a)(1) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

Rule 4-1.4, Comment 1 (emphasis added).

Together, these rules mean that if an attorney has undertaken to inform his or her client about a deadline, then the attorney has an ethical obligation to fulfill that undertaking. Where, as here, failure to comply with that deadline about which counsel undertook to inform the client resulted in the client’s forfeiture of his right to seek post-conviction relief, that failure constitutes ineffective assistance.

Here, however, Mr. Moore failed to present evidence that counsel specifically undertook to inform him of when the mandate issued; rather, counsel merely apologized for not doing so. Moreover, so far as the record shows Mr. Moore was aware of the fact that the mandate had issued through the notice sent by the court clerk and was aware of the significance of this date through the information provided by the court at the time of sentencing.

The facts adduced by Mr. Moore are insufficient to show that his counsel undertook to inform him when the mandate issued and, therefore, are insufficient to support his claim that counsel was ineffective in failing in that duty. For this reason, I concur.

      . After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.

      . Moore also argues that the motion court erred in dismissing the motion because it had no "jurisdiction” over the untimely motion. Relying on Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), Moore asserts that the time limits in Rule 29.15 amount to restrictions on "authority,” not "jurisdiction.” This assertion is correct. However, there is no significance to the motion court’s use of improper terminology in its judgment dismissing the motion. The motion court was correct in dismissing the untimely motion because, under Rule 29.15(b), the court had no “authority” to hear the case.