source: Caselaw Access Project

author: /s/ John D. Minton Jr. Chief Justice

license: Public Domain

text:
    Debi Faye CHALIK, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000277-KB.
    Supreme Court of Kentucky.
    June 17, 2010.
   OPINION AND ORDER

Debi Chalik moves this Court to enter an order imposing a Public Reprimand. In response, the Kentucky Bar Association (KBA) agrees with the requested sanction. Chalik, whose KBA member number is 88376 and whose bar roster address is 10063 NW 1st Court, Plantation, Florida 33324, was admitted to practice law in this Commonwealth on October 23, 2000.

This disciplinary matter arises from a newspaper advertisement that Chalik placed in the Lexington Herald-Leader shortly after the Comair 5191 disaster in 2006. Due to adverse publicity surrounding the advertisement and similar advertisements by other attorneys, Chalik immediately pulled the advertisement; it ran only one day.

Nevertheless, the KBA Inquiry Commission issued a four-count charge against Chalik based on the advertisement. While two of the counts were based on rules prohibiting direct solicitation of a client within thirty days of a disaster, these counts were ultimately dismissed upon the KBA’s agreement with Chalik’s response that a newspaper advertisement is not the type of direct solicitation contemplated by the Rules. Another count alleged that the advertisement was false or misleading. The KBA agreed that this count, too, should be dismissed, upon Chalik’s submission of factual support for the assertion made in the advertisement concerning Chalik’s access to airplane experts and that her family business involved the building of airports and air traffic control equipment. The remaining count concerned Chalik’s failure to timely submit a copy of the advertisement, along with the required fee, to the KBA. Although Chalik faxed a copy to the KBA on the same day that it was submitted to the newspaper, she did not tender the filing fee until the following day when she mailed the KBA a copy of the advertisement. Kentucky Supreme Court Rule 3.130-7.05(2) requires that submission of the advertisement to the KBA, accompanied by the filing fee, “shall occur no later than the publication of the advertisement.” Movant admits to a violation of SCR 3.130-7.05(2) and moves this Court for a Public Reprimand. The KBA agrees that this is an appropriate sanction and, upon consideration of the record, we approve of and impose the negotiated sanction.

Accordingly, it is hereby ORDERED that:

1. Debi F. Chalik is publicly reprimanded for her violation of SCR 3.130-7.05(2).

2. In accordance with SCR 3.450, Cha-lik is directed to pay all costs associated with these disciplinary proceedings against her, said sum being $35.38, and for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting.

All concur.

ENTERED: June 17, 2010.

/s/ John D. Minton Jr. Chief Justice


author: MOORE, Judge.

text:
    Dale Wayne FRALEY, Appellant, v. Gail Ann RICE-FRALEY, Appellee.
    No. 2009-CA-002167-ME.
    Court of Appeals of Kentucky.
    May 7, 2010.

      Matthew R. Walter, Danville, KY, for appellant.
    Fred S. Bachmeyer, Lexington, KY, for appellee.
    Before MOORE and THOMPSON, Judges; WHITE, Senior Judge.

      . Senior Judge Edwin M. White, 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

MOORE, Judge.

Dale Wayne Fraley appeals the Domestic Violence Order (DVO) that was entered by the Bourbon Family Court. After a careful review of the record, we reverse because the family court abused its discretion in entering the DVO.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gail Ann Riee-Fraley moved for an emergency order of protection against Dale, and her motion was granted. She then filed a domestic violence petition, alleging that she feared for her safety due to Dale’s

actions and inability to be reasonable. He has a drug addiction problem that is more severe than what he led me to believe before we were married. Although he has been in an[d] out [of a] patient treatment program, I think his perception of what is normal thinking and behavior is severely damaged and perhaps cannot be corrected. I met with a marriage counselor.... When I explained to the counselor how Dale interprets things I say into things not possible and there is no convincing him otherwise; Dale was described as being a dangerous person. She explained to me that what I experienced with him ... when he did not have ... painkillers that he has a severe or heavy addiction problem. She told me to divorce him as soon as possible, run, get away from him that he is dangerous. She said he is a sociopath and “I don’t think he’s going to kill you right now but you need to run.” Apparently Dale’s jealousy issues along with the addiction and damage categorizes him as a sociopath....
In addition, the marriage counselor said this was a man with no conscience. Due to the above events, I have received 100+ calls from this person and chose to speak to [him one] time after the counseling appointment.

A hearing was held, in which the parties both proceeded pro se. The family court explained to the parties that it was a civil proceeding, rather than a criminal proceeding, and that the burden of proof Gail had to meet for the DVO to be entered was whether it was “more likely than not, or what we call a preponderance of the evidence.”

The court then asked Gail if she was in fear that Dale might harm her, and Gail responded affirmatively. However, the court asked whether, since they were married ten months earlier, and even prior to that time, Dale had conducted himself in a way that made Gail fear for her safety, and Gail said “not for my safety.” Gail said that she and Dale would argue over things that had no substance, and she felt that Dale was being unreasonable and that he had a lot of jealousy issues. The family court asked Gail whether there had been a time other than what she had written in her domestic violence petition when she had been fearful of him. She responded in the negative, explaining that she did not feel fearful, but she questioned how far his actions could go if he was so persistent that he wanted answers. Gail gave an example of an instance that occurred before they were married ten months earlier in which Dale could not get in touch with her by telephone because she was asleep. So, he drove to her home and let himself in with the key she had given him. Gail then awoke at 1:00 in the morning -with Dale walking into her bedroom. The court asked: “Did that unnerve you? Make you fearful?” Gail responded by stating that it made her question how far his persistence would go. The court asked whether, if the court did not give her a protection order, she would feel unsafe, and Gail answered “yes.”

Gail told the court that the one visit she made to the marriage counselor (whom she visited alone, and whom Dale never visited) made her realize that he was a sociopath and what it meant to be a sociopath. She said that unnamed friends in the past had told her that one day they were going to read about her in the papers, based on how Dale talked to her, how persistent he was and the fact that he would get angry if he could not get in touch with her by telephone while she was at work and at other times.

The court asked whether Dale had said anything about them getting divorced. Gail said Dale had told her that if she felt divorce was the best for the both of them, he would agree to it. However, Gail also testified that Dale had left letters in her mailbox saying she would not “get off that easy.” Dale’s letters were submitted to the court, and the court asked Gail if she recognized his handwriting in the letters, to which Gail responded affirmatively.

One of Dale’s letters stated as follows: Hi Gail. It’s 1:00 in the morning[.] I could tell you were out. I guess you will try and get me to believe you spent the night with John or something. Well, I’ll see you in the morn[ing] or tomorrow night or sometime [illegible]. If you could just quit lying to me. [sic] I could put this in placet.] [W]e will see what you say. The truth would help[.] I’m going to have it all figured out soon. Have a [expletive] good time. I knew it. Your husband. I knew something wasn’t right.

Dale’s other letter began by apologizing to Gail for thinking that “another man might have anything to do with what [was] happening to” their relationship. He explained that the reason he questioned whether she had been faithful to him was because of the way she had handled the situation between them — by not letting him come home, being “cold” towards him, refusing to speak with him about the situation, and being reluctant to tell him that the situation between them had nothing to do with another man. Dale’s letter primarily involved his repeatedly expressing his love for Gail and apologizing for thinking that she was cheating on him. He also stated: “I will not sign any divorce papers anytime soon until I’m positive that we have no chance. I don’t take this commitment lightly.” Furthermore, Dale’s letter stated: “I thought marriage counciling [sic] might help like we talked, but then you tell me she only councils [sic] one spouse.”

After the letters were admitted in court, a woman in the back of the courtroom, who was not sworn in, and who did not provide her name, stood up and told the court that Gail had previously telephoned a crisis line with the Bluegrass Domestic Violence Program “regarding these same issues” prior to court. The woman did not specify to which issues she was referring. The court responded “okay,” but the court did not admonish the woman that she had to be sworn in or that the court could not consider her statement because she was un-sworn and had not provided her name.

Dale submitted a letter from his doctor, Piotr Zieba, M.D., at Central Kentucky Psychiatry, stating: Dale had “been in opiate dependency treatment [for the past seven months]. Mr. Fraley has attended every appointment and has followed treatment as directed. Mr. Fraley has passed his drug tests and is doing well in the program.”

Dale also submitted a letter from Dr. Zieba that stated as follows:

Mr. Dale Fraley has been under my care since March 18, 2009. Mr. Fraley has expressed concerns about his marriage in his visits. On September 28, 2009, Gail Fraley, Mr. Fraley’s wife[,] accompanied him to his appointment. I suggested marriage counseling and referred the couple to a counselor. The couple reportedly did not see this counselor.
Mrs. Gail Fraley states in an Emergency Protection Order she sought counseling and was advised her husband had antisocial tendencies. However, Mr. Fraley is compliant with his treatment. He does not show any antisocial tendencies while in treatment.

Gail informed the family court that Dale had previously told her that he only spent about ten minutes at the doctor’s office each time he was there, so she doubted the doctor could have accurately made that assessment regarding his antisocial tendencies. Ironically, Gail failed to note that her “marriage counselor,” who opined that Dale was sociopathic, never actually met or spoke with Dale; yet Gail felt that Dale’s medical doctor, who had met Dale and spoken with him repeatedly during his treatments, did not know Dale well enough to form an opinion regarding his antisocial tendencies.

When Dale was permitted to speak, he asked who the marriage counselor was with whom Gail had met because Dale contended that the counselor never interviewed him, despite providing an opinion concerning his mental health. Gail asked the court whether she had to reveal the name of the counselor. Gail said the counselor had told her the things Gail wrote in her statement in support of her domestic violence petition. After meeting with the counselor the first time, Gail had told Dale that she met the counselor. Dale told Gail he wanted to go see the counselor to provide his side of the story. However, Gail informed the court that she was under the impression that the counselor did not want Dale “there.” Therefore, the court informed Dale that it was not going to force Gail to reveal her counselor’s name.

Dale asked Gail why she feared him, as he was not violent, he had never called her a bad name, and he never had committed an act of domestic violence. The court asked Gail why she was fearful of Dale, and Gail said it was because she had professionals who had told her she needed to “open her eyes and see what was going on.” She said the one session with the counselor, who also “does psychotherapy” turned “the light on for” her. Gail also said there was an instance when she and Dale were arguing and she began to feel ill from the stress of the argument, so she asked him to leave. Dale’s suitcase was in the hall sitting next to the telephone. After he left and took his suitcase with him, Gail discovered that the telephone had been unplugged. Gail opined that Dale had to have purposely unplugged the telephone because if the telephone had been unplugged simply by him moving the suitcase, damage would have been done to the box into which it was plugged. Gail said the marriage counselor opined the telephone was unplugged because Dale did not want her to have outside contact. The court asked if that was why she was fearful, because of what happened that day. Gail responded in the affirmative.

Dale argued that the professional counselor did not know him. The court replied: “Right, and ... I cannot consider what they have said. I will not consider what they have said. I can only consider the impact it’s had on her thinking.”

The court then stated that, based on the hearing and the letters that Dale had written to Gail, the court found that there was reason to believe domestic violence or abuse had occurred and may occur again in the future if the court did not enter the DVO. The court explained to Dale that the term “domestic violence” includes conduct that causes someone to fear for their safety. The court explained to Dale that domestic violence, therefore, could be words, it could be sending flowers to someone that causes someone to be unnerved, and it could be driving by someone’s house. The court told the parties to have no contact with each other.

Dale now appeals, contending that: (a) the family court abused its discretion in applying an incorrect definition of “domestic violence”; (b) the family court abused its discretion by allowing an unsworn, unidentified person to interject in the proceedings; (c) the family court abused its discretion when it allowed the admission of hearsay statements set forth in the domestic violence petition; (d) the court abused its discretion in considering the impact' of alleged hearsay statements upon Gail; and (e) the court clearly erred when it found that it was established, by a preponderance of the evidence, that an act of domestic violence or abuse had occurred and may occur again.

II. STANDARD OF REVIEW

This Court has previously noted that, pursuant to CR 52.01,

a trial court’s findings of fact may be set aside if clearly erroneous. However, we are mindful that in reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the court’s findings were clearly erroneous or that it abused its discretion.... Abuse of discretion occurs when a court’s decision is unreasonable or unfair.

Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky.App.2008). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

III. ANALYSIS

A. CLAIM REGARDING DEFINITION OF “DOMESTIC VIOLENCE”

Dale first argues that the family court abused its discretion in applying an incorrect definition of “domestic violence.” Specifically, Dale contends that when the family court noted during the hearing that someone being fearful of another person constitutes domestic violence, the court failed to note that such fear must be imminent and must be inflicted by the respondent to the petition. Dale asserts that the court never addressed whether Gail’s fear was imminent and that all of the alleged fears Gail claimed to have stemmed from things her marriage counselor told her, rather than from things Dale said or did.

Before issuing a domestic violence order, the trial court must first conduct a hearing and find by a preponderance of the evidence “that an act or acts of domestic violence and abuse have occurred and may again occur.... ” KRS 403.750(1). The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim was more likely than not to have been a victim of domestic violence.

Gomez, 254 S.W.3d at 842 (internal quotation marks omitted).

Pursuant to KRS 403.720(1), “ ‘Domestic violence and abuse’ means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]” Further, KRS 403.720(2) states that a spouse is included in the definition of the term “family member.” For purposes of KRS 403.720, the term “ ‘[i]mmi-nent’ means impending danger, and, in the context of domestic violence and abuse ...[,] belief that danger is imminent can be inferred from a past pattern of repeated serious abuse.” KRS 503.010(3).

In the present case, Gail contradicted herself multiple times in the hearing, stating at times that she was not fearful of Dale and that she did not worry about her safety, and at other times stating that she would feel unsafe if the court did not enter a protection order. Nonetheless, she never alleged that Dale had acted violently toward her in the past, had injured her, or had threatened violence in any way. She based her alleged fear of Dale on her marriage counselor’s uninformed opinion that Dale had sociopathic tendencies and on the fact that her counselor told her Dale had unplugged Gail’s telephone to keep her from having outside contact. The family court properly stated that, under the circumstances of this case, it would not consider the opinions that the marriage counselor provided to Gail. However, the court stated that it would consider the “impact” of those opinions on Gail; the court erred in doing so.

It was the marriage counselor who instilled fear in Gail. There were no allegations or evidence that Dale had ever acted violently toward Gail or threatened violent actions toward her. Consequently, the family court erred in finding that the circumstances of this case met the definition of “domestic violence and abuse” because there was no evidence that Dale inflicted the fear of imminent physical injury on Gail. Thus, the family court abused its discretion in entering the DVO against Dale in this case.

B. CLAIM REGARDING UNSWORN, UNIDENTIFIED PERSON

Dale also contends that the family court abused its discretion by allowing an un-sworn, unidentified person to interject in the proceedings. He is referring to the woman from the back of the courtroom who stood up during the proceedings and briefly told the court that Gail had previously telephoned a crisis line with the Bluegrass Domestic Violence Program “regarding these same issues” prior to court. The woman did not specify to which issues she was referring, or what, exactly, Gail had said during that telephone call to the crisis line. The court responded “okay,” but the court did not admonish the woman that she had to be sworn in or that the court could not consider her statement because she was unsworn. Dale argues that the woman’s statement served to improperly bolster the testimony provided by Gail and that this constituted substantial error pursuant to CR 61.02.

Civil Rule 61.02 states: “A palpable error which affects the substantial rights of a party may be considered by the ... appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” Because Dale did not object to the woman’s statement during the hearing, we may only review this claim under the palpable error standard set forth in CR 61.02.

“[T]he task of the appellate court in review under CR 61.02 is to determine if (1) the substantial rights of a party have been affected; (2) such action has resulted in a manifest injustice; and (3) such palpable error is the result of action taken by the court.” Childers Oil Co. v. Adkins, 256 S.W.3d 19, 27 (Ky.2008) (emphasis added). In the present case, although it was improper for the woman to stand up and interject her statement in the middle of the hearing without first being sworn, this was not an action taken by the court. We believe the court should have admonished the woman for making this statement in this manner and that the court should have stated that it would not consider her statement in rendering its decision. However, in this case, we do not find that this error resulted in a manifest injustice to Dale. Therefore, this claim is without merit.

C. CLAIM REGARDING ADMISSION OF HEARSAY STATEMENTS

Dale next alleges that the family court abused its discretion when it allowed the admission of hearsay statements set forth in the domestic violence petition. The hearsay statements to which he is referring were the statements allegedly made by the marriage counselor. However, because the family court stated that it was not going to consider the marriage counselor’s statements, it appears that the court remedied the situation, and no error occurred.

D. CLAIM REGARDING COURT’S CONSIDERATION OF IMPACT OF HEARSAY STATEMENTS UPON GAIL

Dale next asserts that the family court abused its discretion in considering the impact of alleged hearsay statements upon Gail. As we stated previously, the court erred in considering the impact of the counselor’s statements upon Gail, particularly considering that it was the counsel- or’s statements, rather than Dale’s actions or spoken words, that created Gail’s alleged fear.

E. CLAIM THAT FAMILY COURT ERRED IN FINDING THAT AN ACT OF DOMESTIC VIOLENCE OR ABUSE HAD OCCURRED AND MAY OCCUR AGAIN

Finally, Dale alleges that the family court clearly erred when it found that it was established, by a preponderance of the evidence, that an act of domestic violence or abuse had occurred and may occur again. As we stated previously, the family court erred in this finding and, therefore, the court abused its discretion in entering the DVO against Dale.

Accordingly, the order of the Bourbon Family Court is reversed.

ALL CONCUR.

      . A woman stood at the podium next to Gail, but the woman never provided her name, did not speak to the court, and was not sworn in. Therefore, we are uncertain who she was, but she did whisper some things to Gail during the proceedings which were inaudible on review of the hearing.

      . Two letters written by Dale were submitted as part of the record on appeal. However, upon reviewing the record, we did not find any language in those letters saying that Gail would not "get off that easy.”

      . Kentucky Rule(s) of Civil Procedure.

      . Kentucky Revised Statute(s).


author: PER CURIAM.

text:
    In re the MARRIAGE OF Gerald A. HILLIS and Elizabeth M. Hillis. Gerald A. Hillis, Appellant, v. Elizabeth M. Hillis, Respondent.
    No. SC 90458.
    Supreme Court of Missouri, En Banc.
    May 11, 2010.

      Amy Bonifield Galloway and Kristi J. Booker, Spain Miller & Spain LLC, Poplar Buff, for Appellant.
    Benjamin E. Thompson and L. Dwayne Hackworth, Hackworth, Hackworth & Ferguson LLC, Piedmont, for Respondent.
   PER CURIAM.

The parties dispute the division of marital property in this dissolution of marriage case. The trial court received conflicting evidence as to Wife’s contributions to the funeral home’s increase in value during the marriage. The question concerns the trial court’s determination that the parties should evenly divide $200,000, which represented the marital property value of Husband’s separate funeral home business. Substantial evidence supports the trial court’s determination. The judgment is affirmed.

Standard of review

The trial court has considerable discretion in determining whether, as a result of marital services or labor, non-marital property has increased in value and whether the increase should be determined to be marital property. In re Marriage of Patroske, 888 S.W.2d 374, 378 (Mo.App.1994). As a result, an appellate court will not disturb the trial court’s decision on such matters without a clear showing of an abuse of discretion. Id. This Court presumes the trial court’s order is correct, and the party challenging it has the burden of overcoming that presumption. Id.

A judgment in a dissolution case must be affirmed if there is substantial evidence to support it, it is not against the weight of the evidence, and it neither erroneously declares nor erroneously applies the law. Rule 81.13(d); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). All of the evidence and permissible inferences therefrom are viewed in the light most favorable to the trial court’s decision, and all contrary evidence and inferences are to be disregarded. Marriage of Pa-troslce at 378.

Facts

Gerald Hillis (Husband) owned a funeral home. In October 2001, Husband’s second marriage was dissolved. The dissolution decree valued the funeral home at $20,000.

Elizabeth Hillis (Wife) began working at the funeral home in January 2002. When she began employment at the funeral home, Wife received $800 bi-weekly. She worked, on average, 40 to 60 hours per week.

Husband and Wife married in April 2002. Shortly thereafter, Wife received notice of a tax lien placed on her premarital property to secure payment of approximately $110,000 for taxes owed by the funeral home and Husband. Wife also learned of approximately $250,000 missing from the corporation’s trust account, $40,000 in uncollected accounts payable, and $183,000 in bank loans.

At the funeral home, Wife conducted all business and corporate banking. During the course of the marriage, Wife participated in refinancing the funeral home’s debt both as a corporate officer and as a personal guarantor. She kept the books, managed the office, arranged advertising, made capital improvements to the funeral home, and introduced new products.

As a result of their efforts, Husband and Wife were able to reduce the funeral home’s debt and improve the business so that, at trial, the parties estimated its value as between $450,000 and $600,000. The trial court determined that Wife’s contribution of substantial services resulted in the increase in value of the funeral home by reduction of the corporate indebtedness and that she was not adequately compensated for her services. The court also determined that Wife was entitled to share in the increase in the value of the corporation to the extent of being awarded $100,000.

Discussion

The trial court found that the Hillis funeral home is the separate property of Husband. Wife does not contest this finding. Marital labor, effort, or services result in a marital interest in the increased value of a spouse’s separate property if there is proof of: (1) a contribution of substantial services; (2) a direct correlation between those services and the increase in value; (3) the amount of the increase in value; (4) performance of the services during the marriage; and (5) the value of the services, the lack of compensation, or inadequate compensation. In re Marriage of Spence, 943 S.W.2d 373, 376 (Mo.App.1997).

There was testimony Husband believed Wife’s contributions were responsible for substantially reducing the corporation’s overwhelming debt, which threatened the funeral home’s existence. The evidence demonstrated Wife’s contributions to securing substantial refinancing of the funeral home’s debt. During the marriage, the corporate debt was reduced by approximately $415,000.

In addition, Wife testified that she worked up to 90 hours per week for a beginning bi-weekly salary of $800, which increased during the marriage to $1,380 while working 40 to 60 hours per week. Wife served without compensation as an officer of the corporation. As previously noted, she managed the business on a day-to-day basis including the bookkeeping, advertising, and customer service. She developed a Web site for the funeral home and introduced new products to sell.

All of Wife’s contributions were factors that resulted in an increase in the value of the funeral home from between $0 and $20,000 at the beginning of the marriage to between $450,000 and $600,000 at the end of the marriage. The trial court’s award of $100,000 to Wife as her share of the increase in the value of the funeral home resulting from her efforts is supported by substantial evidence.

Conclusion

The judgment is affirmed.

All concur.

      . This Court transferred the case after opinion by the court of appeals and has jurisdiction. Mo. Const, art. V, sec. 10.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    Ronald Joe HAYES, et ux., Appellants, v. Trisha G. PRICE, Respondent.
    No. SC 90054.
    Supreme Court of Missouri, En Banc.
    May 25, 2010.
    Rehearing Denied June 29, 2010.

      David W. Ransin P.C., Springfield, for Appellants.
    John Mullen and Nikki Cannezzaro, Franke, Schultz & Mullen P.C., Kansas City, for Respondent.
   PATRICIA BRECKENRIDGE, Judge.

Ronald Joe Hayes appeals from a judgment in his favor against Trisha G. Price for injuries he suffered when his motorcycle collided with her automobile. The collision occurred at an intersection when Ms. Price made a left-hand turn across the lane in which Mr. Hayes was traveling straight. On appeal, Mr. Hayes asserts that the trial court erred in submitting to the jury a comparative fault instruction for his “failure to keep a careful lookout” because Ms. Price failed to present evidence to support the submission. He also contends that the trial court erred by not awarding him prejudgment interest when he complied with the statutory requirements. Because Ms. Price did not present evidence that Mr. Hayes was able to take evasive measures to avoid the accident, the trial court erred in submitting the comparative fault instruction. The trial court did not err in denying Mr. Hayes’s request for prejudgment interest; his offer of settlement did not comply with section 408.040.2 because it included a demand for production of documents and statements from third parties. The trial court’s judgment is reversed, in part, and affirmed, in part, as modified.

Factual and Procedural Background

The pertinent facts are viewed in the light most favorable to the jury’s verdict. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). On September 25, 2004, Mr. Hayes was driving his motorcycle in Joplin with his friend and frequent motorcycling companion, Greg Cook. It was a clear, sunny day. Mr. Hayes and Mr. Cook were traveling southbound on Maiden Lane, a four-lane road that does not have a turn lane. As they approached the intersection of Maiden Lane and 13th Street, Mr. Cook was riding in the lead position in the left side of the curb-side lane. Mr. Hayes’s motorcycle was staggered behind Mr. Cook’s motorcycle in the right side of the curb-side lane. As they approached the intersection, a Ford Bronco was in the left lane of southbound Maiden Lane, waiting to turn left to go east on 13th Street.

Meanwhile, Ms. Price was traveling north on Maiden Lane. She saw the two southbound motorcycles as they approached 13th Street. At the intersection, she stopped in the left lane, intending to turn left to go west on 13th Street. The southbound Bronco created a “blind zone,” blocking Ms. Price’s view of Mr. Hayes and Mr. Hayes’s view of Ms. Price. Mr. Cook, the lead rider, observed that Ms. Price was beginning to turn in front of him, so he signaled to her as he passed through the intersection in an effort to alert her that another motorcycle was following behind him. Although Ms. Price saw Mr. Cook’s signal, she misconstrued his warning gesture. She stopped her vehicle to let him go through the intersection and then resumed her turn. As she turned, she drove into the left side of Mr. Hayes’s motorcycle. Mr. Hayes suffered severe injuries to his hip and leg from the collision.

At the time of the collision, both Mr. Hayes and Ms. Price had a green light. Mr. Hayes had the right-of-way, however, because he was proceeding straight through the intersection on the green light, whereas Ms. Price was turning left. Mr. Hayes was traveling at approximately 30 miles per hour in a 35 miles per hour zone. Mr. Hayes testified that as he approached the intersection, he was focused on a car stopped on 13th Street because he was concerned the car was going to make a right turn onto Maiden Lane in front of him. Mr. Hayes did not see Ms. Price until just before impact.

Before filing a lawsuit, Mr. Hayes sent Ms. Price a demand letter, pursuant to section 408.040.2, for the purpose of qualifying for prejudgment interest. Mr. Hayes offered to release Ms. Price from any liability if she paid him $325,000 and produced a number of documents and sworn witness statements from herself and her parents. The demand letter was sent by certified mail and the offer kept open for 60 days. Ms. Price did not accept the offer. Mr. Hayes filed suit, and the case went to trial on February 14, 2006.

Mr. Hayes submitted his case to the jury on the theory that Ms. Price was negligent for failure to yield. Ms. Price submitted a comparative fault instruction, failure to keep a careful lookout under MAI 17.05, to which Mr. Hayes objected. Mr. Hayes also moved to exclude any matter regarding comparative fault. The trial court overruled his motion and allowed Ms. Price to submit the comparative fault instruction to the jury.

The jury returned a verdict in favor of Mr. Hayes in the amount of $625,000 and apportioned 20 percent of the fault to Mr. Hayes and 80 percent of the fault to Ms. Price. The jury found in favor of Ms. Price on Mr. Hayes’s loss of consortium claim. As a result of the apportionment of 20 percent of the fault to Mr. Hayes, the trial court reduced Mr. Hayes’s damages award by $125,000. The trial court overruled Mr. Hayes’s motion for prejudgment interest.

Mr. Hayes appeals. First, he claims that the trial court erred in submitting the comparative fault instruction to the jury because Ms. Price failed to present evidence to support the instruction’s submission. Second, he contends that the trial court erred by not awarding him prejudgment interest because he complied with the requirements of section 408.040.2. After an opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.

Submission of Comparative Fault Jury Instruction

Mr. Hayes first claims that the trial court erred in submitting jury instruction No. 10, a comparative fault instruction for failure to keep a careful lookout based on MAI 17.05. He asserts that there was no substantial evidence to support submission of the instruction to the jury.

Whether a jury was properly instructed is a question of law this Court reviews de novo. Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). This Court reviews the record in the light most favorable to submission of the instruction. Id. Any issue submitted to the jury in an instruction must be supported by substantial evidence “from which the jury could reasonably find such issue.” Kauzlarich v. Atchison, Topeka, & Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo. banc 1995). “Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case.” Powderly v. S. County Anesthesia Assocs. Ltd., 245 S.W.3d 267, 276 (Mo.App.2008). If the instruction is not supported by substantial evidence, there is instructional error, which warrants reversal “only if the error resulted in prejudice that materially affects the merits of the action.” Bach, 257 S.W.3d at 608.

In this case, the trial court submitted to the jury a “failure to keep a careful lookout” comparative fault instruction. The essence of the “failure to keep a careful lookout” claim is a failure to see and a failure to act. Lovelace v. Reed, 486 S.W.2d 417, 418-19 (Mo.1972).

Alleged negligent failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that, in the exercise of the highest degree of care, the allegedly negligent party, had he kept a careful lookout, could have seen the other vehicle ... in time thereafter to have taken effective precautionary action.

Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970). The inquiry is two-fold: if the driver was keeping a careful lookout, could the driver have seen the danger; and, if the driver could have seen the danger, did the driver have the ability to take some precautionary measure such as veering, utilizing a horn, or slowing speed to prevent the accident? The evidence must support a finding that a driver had the means and ability to have avoided a collision. Thurman v. Anderson, 693 S.W.2d 806, 807 (Mo. banc 1985). “Means and ability include sufficient time and distance considering the movement and speed of the vehicles.” Id.

Ms. Price argues, in support of the trial court’s submission of Mr. Hayes’s comparative fault, that if Mr. Hayes had been keeping a careful lookout, he would have seen impending danger and he could have slowed down or taken some action to avoid the collision. Viewing the record in the light most favorable to submission of the instruction, the evidence was that Mr. Hayes had the ability to observe Ms. Price’s vehicle approach the intersection, before her vehicle was hidden in the cone-shaped blind zone created by the Bronco. Even if Ms. Price had her turn signal activated at this time, however, Mr. Hayes had a green light and the right of way as he approached the intersection, and he was justified in assuming that Ms. Price would yield to oncoming traffic until she “gave positive indication to the contrary.” See id. at 808. Prior to entering the blind zone, there was no evidence that Mr. Hayes had information to alert him that he should not proceed through the intersection at his speed of 30 miles per hour.

The evidence was that, as Mr. Hayes and Ms. Price neared the intersection from opposite directions, the Bronco in the left lane on southbound Maiden Lane created a blind zone, obstructing the view of both Mr. Hayes and Ms. Price. Ms. Price initially stopped at the intersection. She began to turn only alter Mr. Hayes’s view was obstructed by the Bronco. There is no evidence that at the point that Mr. Hayes exited the blind zone, when he would have seen Ms. Price making a turn if he had been keeping a careful lookout, there was sufficient time for beeping, swerving, or decelerating that would have prevented the collision. Mr. Hayes was traveling at approximately 30 miles per hour, five miles less than the speed limit, which is a pace of approximately 1.5 feet per second. Ronald McKinzie, an accident reconstruction expert, testified that there were two seconds, approximately 88 feet, between Mr. Hayes exiting the blind zone and the collision. The average reaction time of 1.5 seconds would not have given Mr. Hayes sufficient time to react and avoid the collision once he left the blind zone.

Ms. Price argues that if Mr. Hayes had been keeping a careful lookout while he was still in the blind zone, the actions of his motorcycle companion, Mr. Cook, would have put him on notice of impending danger in the intersection at a point that he had sufficient time to react and avoid the collision. Mr. Cook testified that he saw Ms. Price starting her turn across the southbound lanes of the intersection. He waved to get her attention because he believed she was going to pull out in front of him. He then signaled to her that another motorcycle was behind him by holding up two fingers. Ms. Price asserts that if Mr. Hayes had been keeping a careful lookout, he would have seen Mr. Cook’s gesture, putting him on notice of something dangerous or something to cause concern in the upcoming intersection.

Mr. McKinzie testified that Mr. Hayes was up to 171 feet away when Mr. Cook gestured and Ms. Price began her turn. At his speed of 30 miles per hour, Mr. Hayes was 3.9 seconds away from impact at that time. Giving Mr. Hayes the average reaction time of 1.5 seconds, he then would have had 2.4 seconds in which to take evasive action. Mr. McKinzie testified that, if Mr. Hayes’s motorcycle was traveling at a speed of less than 30 miles per hour, there was an opportunity that Ms. Price could have avoided the collision. While Ms. Price did not see Mr. Hayes prior to the impact, the evidence reasonably would support a finding that, if Mr. Hayes had honked his horn and slowed, Ms. Price would have been alerted to the danger and could have stopped her car before impact. At her speed of approximately 5 to 10 miles per hour, she needed only 12 feet of reaction time and 2 feet to stop.

The issue, then, is whether a motorcyclist exercising the highest degree of care reasonably would have seen Mr. Cook’s gesture and perceived the gesture as a warning of a condition that required evasive action. Both Mr. Hayes and Mr. Cook testified that it is hard for people in cars to see motorcyclists. Mr. Hayes stated that a motorcyclist must be cognizant of everyone around the motorcyclist and drive defensively. Mr. Cook testified that it was part of his job, as the lead motorcyclist, to give warnings to the motorcyclist behind him if he encounters any sort of dangerous situation. Mr. Hayes recognized that the second motorcyclist has to look for such warnings from the lead motorcyclist.

With regard to the specific gesture made by Mr. Cook, Mr. Cook testified that as he passed through the intersection and saw Ms. Price beginning to pull out in front of him, he made eye contact with her, pointed back behind him, and pointed two fingers out. He testified that this gesture was a warning to Ms. Price that there was a second motorcycle coming and not a warning to Mr. Hayes. Mr. Hayes testified that such a gesture is sometimes a warning given to a driver of a vehicle in the intersection. There was no evidence that the type of gesture made by Mr. Cook was an indication of danger that Mr. Hayes should have seen and recognized as requiring evasive action.

As noted previously, this Court held in Thurman v. Anderson that a driver entering an intersection with the right of way is justified in assuming that cars going in the opposite direction will obey a traffic signal “at least until a driver gave positive indication to the contrary.” 693 S.W.2d at 808. Likewise, a driver is entitled to assume a car going in the opposite direction will yield the right of way to oncoming traffic before turning, until the driver gives a positive indication to the contrary. Such a driver has every right to proceed through an intersection even though there is a driver approaching; the only exception is if it should have been apparent that the other driver is not respecting the traffic law. See id. Mr. Hayes had the right to assume that Ms. Price would yield to oncoming traffic until he was reasonably aware that she was not doing so, and until he was so aware, he was not required to take evasive action like slackening his speed or sounding his horn. Ms. Price failed to present substantial evidence to support the submission of Mr. Hayes’s comparative fault because there was no evidence that a reasonable driver could or should have seen any indication of a danger at a time that would allow him to have the means and ability to use an evasive action to avoid the collision.

Because the failure to keep a careful lookout instruction was not supported by substantial evidence, the instruction was improperly submitted to the jury. The improper submission is prejudicial because Mr. Hayes was assessed a percentage of comparative fault for the accident as a result of the erroneous instruction, and his damages were reduced by that percentage. The portion of the trial court’s judgment accessing 20 percent of the fault to Mr. Hayes is reversed.

Prejudgment Interest under Section 408.040.2

Mr. Hayes also contends that the trial court erred by refusing to award him prejudgment interest pursuant to section 408.040.2. He argues that he fully complied with the statutory requirements and, therefore, he is entitled to prejudgment interest as a matter of law. He asserts that the language of section 408.040.2 allows a person to make an unambiguous demand that may or may not include the production of other information and documents by the defendant.

The crux of Mr. Hayes’s claim of error involves statutory interpretation. Interpretation of a statute is a matter of law, which this Court reviews de novo. Smith v. Shaw, 159 S.W.3d 830, 833 (Mo. banc 2005). The statute at issue, section 408.040.2, authorizes a court to grant prejudgment interest if a party meets the requirements in the statute. This Court construed the provisions of the prejudgment interest statute in Brown v. Donham, and its analysis is helpful in resolving the issue raised in this case. 900 S.W.2d 630 (Mo. banc 1995).

Section 408.040.2 states:

In tort actions, if a claimant has made demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at the rate specified in subsection 1 of this section, shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract.

This statute allows a plaintiff to recover prejudgment interest if the plaintiff makes a demand for payment or offer of settlement to the opposing party and any subsequent judgment in the case exceeds the amount specified in the demand or offer of settlement. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 448 (Mo. banc 1998).

For a party to receive prejudgment interest, the settlement demand must be proper. Werremeyer v. EC. Auto Salvage Co., 134 S.W.3d 633, 636 (Mo. banc 2004). A proper demand must be definite in terms. Brown, 900 S.W.2d at 633. Analogous to an offer in a contract, a demand “must be so definite in its terms or require such definite terms in the acceptance that the promises and performances to be rendered by each party are reasonably certain.” Id. (internal citations omitted). Additionally, the amount of settlement demanded must be readily ascertainable in dollars and cents. Id. When the requirements of section 408.040.2 are met, a trial court has no discretion and must grant prejudgment interest. McCormack v. Capital Electric Const. Co., 159 S.W.3d 387, 402 (Mo.App.2004).

The relevant parts of Mr. Hayes’s demand letter state:

I have been authorized by my client, Ronald Hayes, to settle his claim against your clients by the delivery of copies of the titles to all vehicles owned or driven by, or available for the use of Patrick, Gaylia, or Trisha Price on September 25, 2004, certified copies of all indemnity agreements in any form from any source whatsoever, all applicable liability insurance coverages, including declaration pages, primary, excess, or otherwise, issued on those vehicles, or to or for the benefit of, or on behalf of Patrick, Gay-lia, or Trisha Price or any other named insured, which insure or stand to indemnify any of them for any of their potential liability arising in any fashion from the collision in this matter and to compensate the damages claimed by Ronald Hayes, a sworn statement of Patrick, Gaylia, and Trisha Price taken in person by me at my cost, and recorded and transcribed by a court reporter, in addition to the payment of $325,000.00, and reimbursement of all court costs, payable in cash or its equivalent, and all of which must be delivered to my office within 10 days of acceptance, in exchange for a R.S.Mo. § 537.060 release ....
Acceptance of this offer may be made only in writing expressly agreeing to the terms in this letter and release, and requires the actual delivery of the above items and statements, and the full payment of the above demanded amount.

Ms. Price did not accept this offer of settlement. After the verdict, Mr. Hayes filed a motion requesting prejudgment interest. Ms. Price opposed the motion on the ground that Mr. Hayes’s offer of settlement demanded the participation of her parents, Patrick and Gaylia Price, who were not parties to the action, in order to reach a settlement. She argued that the demand for performance by these nonparties rendered any resulting contract unenforceable. The trial court overruled Mr. Hayes’s motion.

The parties agreed that Mr. Hayes’s offer of settlement included a demand for a monetary amount that is readily ascertainable, the sum of $325,000. In addition to his demand for $325,000, Mr. Hayes included four non-monetary demands. He demanded copies of titles to cars owned or driven by Ms. Price and her parents, certified copies of all indemnity agreements “in any form from any source,” all applicable liability insurance policies, and sworn statements of Ms. Price and each of her parents taken in person by Mr. Hayes’s attorney. His offer of settlement also expressly conditioned acceptance on “actual delivery” of all of the “above items and statements.” Ms. Price could not settle unless she provided all of these items in addition to the $325,000 payment.

There is no language in section 408.040.2 that permits or prohibits nonmonetary demands in addition to a demand for a monetary amount that is readily ascertainable. Therefore, it is necessary to examine the statute’s language to determine if a proper offer of settlement can include additional non-monetary demands. In interpreting statutes, this Court ascertains the intent of the legislature from the plain and ordinary language used and, if possible, gives effect to that intent. Smith, 159 S.W.3d at 834. “In determining legislative intent, statutory words and phrases are taken in their ordinary and usual sense.” Id. This Court may also “review the earlier versions of the law, or examine the whole act ..., or consider the problem that the statute was enacted to remedy” to discern legislative intent. State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 519 (Mo. banc 2009) (internal citations omitted).

The language of section 408.040.2 states that if a claimant in a tort action has made “a demand for payment of a claim” or “an offer of settlement of a claim ... and the amount of the judgment or order exceeds the demand for payment or offer to settle, prejudgment interest ... shall be calculated.” This language speaks to the necessity for a demand amount that is a readily ascertainable monetary amount. While the phrase “offer of settlement” is broader than the phrase “demand of payment” and arguably could include non-monetary demands, the context of both phrases makes it clear that the legislature intended that the offer be “capable of ascertainment in a certain dollars and cents amount.” Brown, 900 S.W.2d at 633. It is necessary that the offer be ascertainable in a certain dollar and cents amount because the offer must be in a form that can be compared with the actual judgment amount. It is the comparison of the two amounts that triggers the right to prejudgment interest. Id. By their nature, non-monetary demands cannot be compared with the actual judgment amount to determine if prejudgment interest should be awarded.

Additionally, to allow a party to make non-monetary demands beyond the monetary demand for settlement in a section 408.040.2 offer would be contrary to the public policies served by the statute. Section 408.040.2 “serves two public policies.” Brown, 900 S.W.2d at 633. “First, it compensates claimant for the true cost of money damages they have incurred due to the delay of litigation. Second, where liability and damages are fairly certain, it promotes settlement and deters unfair benefit from the delay of litigation.” Id. The statute encourages a defendant to buy peace in the form of a monetary settlement.

A non-monetary demand in an offer of settlement has no relationship to compensating a claimant for the true cost of money damages the claimant incurred due to the delay of litigation. Nor does a demand unrelated to ascertaining the amount of the demand in dollars and cents promote settlement and deter unfair benefit from the delay of litigation. While there possibly may be some offer of settlement with non-monetary conditions that do not impede settlement or frustrate the purpose of section 408.040.2, that is not this case. Here, by including demands for indemnity agreements, titles, and sworn statements in his offer of settlement, Mr. Hayes obstructed Ms. Price’s ability to unequivocally accept because to accept the offer, Ms. Price needed the cooperation of third parties. Mr. Hayes’s offer of settlement would not allow Ms. Price to accept the offer, settling his claim, unless Ms. Price could obtain her parents’ cooperation to comply with his demands. Mr. Hayes’s offer of settlement made it impossible for Ms. Price, alone, to accept. The effect of his offer of settlement impeded settlement and frustrated section 408.040.2’s purpose of encouraging settlement.

Because Mr. Hayes’s offer of settlement included a demand for document production and statements of third persons, the offer of settlement was not capable of ascertainment in a certain dollar .and cents amount and impeded settlement and did not meet the requirements of section 408.040.2. Therefore, the trial court did not err in denying the request for prejudgment interest.

Conclusion

The trial court erred in submitting the comparative fault instruction and that error was prejudicial to Mr. Hayes. The trial court did not err in denying Mr. Hayes’s request for prejudgment interest, and that portion of the judgment is affirmed. Rule 84.14 authorizes an appellate court to modify the judgment by eliminating the reduction in damages due to erroneous assessment of comparative fault to Mr. Hayes. Robinson v. Weinstein, 856 S.W.2d 387, 338 (Mo.App.1993). The trial court’s judgment accessing 20 percent of the fault to Mr. Hayes is reversed. Judgment is entered to reflect that Ms. Price is 100 percent at fault and that Mr. Hayes’s damage award is $625,000, the full amount assessed by the jury. In all other respects, the trial court’s judgment is affirmed.

All Concur.

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

      . Mr. Hayes filed a motion nunc pro tunc to amend the judgment to reflect the trial court’s denial of prejudgment interest. The trial court sustained the motion and modified the judgment on May 2, 2006.

      . Accident reconstructionist Robert McKinzie testified that the Bronco had windows and was not completely opaque so, Ms. Price and Mr. Hayes were available to be seen by each other. But he stated that the glare was unknown, as well as the exact kind of vehicle blocking the view because the Bronco did not stop after the collision. Therefore, he could say only that "it is possible [Ms. Price's vehicle] was available to be seen.” It was not enough that Mr. Hayes could have seen the presence of Ms. Price's vehicle in the intersection; he also had to see that she was beginning a turn. The testimony from Mr. McKin-zie is too speculative to support a finding that Mr. Hayes could see the actions of Ms. Price’s vehicle through the Bronco's windows. See Hemeyer v. Wilson, 59 S.W.3d 574, 581 (Mo.App.2001) (discussing what makes evidence speculative and thus lacking in probative value). Additionally, at trial, Ms. Price took the position that the Bronco blocked her view of Mr. Hayes’s motorcycle and his view of her vehicle. She may not take the contrary position on appeal that Mr. Hayes could have seen her vehicle stopped at the intersection through the Bronco if he had been keeping a careful lookout. See State v. Broussard, 57 S.W.3d 902, 913 (Mo.App.2001) (inconsistent theories at trial and on appeal make the error unpreserved).

      . There was evidence that Mr. Hayes was traveling one-half to one second behind Mr. Cook, which would have precluded him from taking any evasive action after Mr. Cook gestured. Because the evidence must be considered in the light most favorable to submission, that evidence is not considered. Hemeyer, 59 S.W.3d at 582.

      . All citations to section 408.040 are to RSMo 2000. Although the Missouri General Assembly amended Section 408.040 in 2005, the version in RSMo 2000 is the version applicable to this appeal and analyzed in this opinion.

      . Mr. Hayes’s demand letter complied with the timing requirements and delivery requirements imposed by the statute.

      . An example of a demand that is not “expressed in dollars and cents," but which is "capable of ascertainment in a certain dollars and cents amount" might be a demand for "policy limits." Brown, 900 S.W.2d at 633 n. 3.

      . In support of his argument that he is entitled to prejudgment interest, Mr. Hayes cites Hurst v. Jenkins, a case in which a defendant claimed that a demand for documentation and statements similar to those requested by Mr. Hayes did not constitute a demand under section 408.040.2. 908 S.W.2d 783 (Mo.App.1995). In Hurst, the court of appeals upheld an award of prejudgment interest, but the basis for the court's decision was not that such a demand was authorized by section 408.040.2. Id. at 785-86. The Court never reached that issue. Id. The court of appeals affirmed the award of prejudgment interest because the party challenging the award judicially admitted in its answer that a demand was made under section 408.040.2. Id. Hurst does not aid Mr. Hayes.


author: ZEL M. FISCHER, Judge.

text:
    STATE of Missouri, Respondent, v. Robert Earl WILLIAMS, Appellant.
    No. SC 90501.
    Supreme Court of Missouri, En Banc.
    May 25, 2010.
    Rehearing Denied June 29, 2010.

      Gwenda Renee Robinson, Public Defender’s Office, St. Louis, for Appellant.
    Mary H. Moore, Atty. General’s Office, for Respondent.
   ZEL M. FISCHER, Judge.

Timothy Wagner was robbed. Robert Williams was charged with robbery in the second degree by acting with another. At trial, Williams testified in his own defense, denying the charge. At the instruction conference, he requested the jury be instructed on the lesser included offense of felony stealing. The trial court refused Williams’ request and only instructed the jury on robbery in the second degree. The jury found Wagner guilty of robbery. The trial court erred in refusing to instruct the jury as Williams requested. The judgment is reversed, and the case is remanded.

Facts

On January 5, 2007, the State of Missouri filed an indictment against Robert Williams, charging him with the class B felony of robbery in the second degree for his conduct on October 17, 2006, acting with another, by forcibly stealing money from Timothy Wagner.

A trial was held on July 16 and 17, 2008. At trial, Williams testified that his friend, nicknamed Sweets, had taken marijuana from Wagner at Wagner’s apartment during a drug transaction that Wagner had arranged. Williams testified he watched Sweets enter Wagner’s apartment and saw Wagner place something on a scale and hands go down on the table. He testified that he did not see Sweets forcibly take marijuana or money from Wagner. Williams testified that he had not personally taken or forcibly taken the marijuana, money or anything from Wagner.

After Williams rested his ease, the trial court held a jury instruction conference outside the presence of the jury. By written request, Williams submitted Instruction A, regarding felony stealing, a lesser included offense to second degree robbery. The proffered instruction stated:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.
If you do not find the defendant guilty of robbery in the second degree as submitted in Instruction No. 5, you must consider whether he is guilty of stealing under this instruction.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about October 17, 2006, in the State of Missouri, the defendant or another took money, which was property owned by Timothy Wagner, and
Second, that defendant or another did so for the purpose of withholding it from the owner permanently, and
Third, that the property was physically taken from the person of Timothy Wagner, then you are instructed that the offense of stealing has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or further the commission of that stealing, the defendant acted together with or aided another person in committing the offense, then you will find the defendant guilty of stealing under this instruction.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

The State submitted a verdict directing jury instruction for the offense of robbery in the second degree. The trial court submitted the State’s proffered instruction but denied the proffered lesser included offense. The jury found Williams guilty of robbery in the second degree. On September 25, 2008, Williams was sentenced as a persistent felony offender to 15 years imprisonment.

Standard of Review

“At the close of the evidence, or at such earlier time as the court may direct, counsel shall submit to the court instructions and verdict forms that the party requests be given.” Rule 28.02(b). Further, “[t]he giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes On Use shall constitute error, the error’s prejudicial effect to be judicially determined, provided that objection has been timely made pursuant to Rule 28.03.” Rule 28.02(f).

Analysis

Stealing from a person is a lesser included offense of robbery in the second degree. See Patterson v. State, 110 S.W.3d 896, 901 (Mo.App.2003); State v. Ide, 933 S.W.2d 849, 851 (Mo.App.1996). Under § 556.046.1, RSMo Supp.2008:

A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when: (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged....

Williams was charged with robbery in the second degree, which requires the State to prove beyond a reasonable doubt that the defendant forcibly stole property. To support a conviction of stealing, the State does not have to prove the element of force; the State must prove beyond a reasonable doubt that the defendant “appropriate[d] property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” Section 570.030.1, RSMo Supp.2008.

MAI-CR 3d 304.11.G. provides as follows:

Instructions on lesser included offenses and lesser degree offenses require a written request by one of the parties. Section 565.025.3, RSMo Supp.2004. Moreover, such an instruction will not be given unless there is a basis for acquitting the defendant of the higher offense and convicting him of the lesser offense. Section 556.046, RSMo Supp.2004 (citation omitted). A defendant is entitled to an instruction on any theory the evidence establishes. A jury may accept part of a witness’s testimony, but disbelieve other parts. If the evidence supports differing conclusions, the judge must instruct on each.

“A defendant is entitled to an instruction on any theory the evidence establishes.” State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004). “Section 556.046.2 ... requires only that there be a basis for the jury to acquit on the higher offense in order for the court to submit an instruction for the lesser included offense.” State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997) (emphasis added). “If the evidence supports differing conclusions, the judge must instruct on each.” Pond, 131 S.W.3d at 794.

Moreover, “[t]his Court leaves to the jury determining the credibility of witnesses, resolving conflicts in testimony, and weighing evidence.” Id. “If a reasonable juror could draw inferences from the evidence presented that an essential element of the greater offense has not been established, the trial court should instruct down.” State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002) (citing State v. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999)). “The jury is permitted to draw such reasonable inferences from the evidence as the evidence will permit and may believe or disbelieve all, part, or none of the testimony of any witness.” Hineman, 14 S.W.3d at 927; see also Pond, 131 S.W.3d at 794 (“A jury may accept part of a witness’s testimony, but disbelieve other parts.”). “Doubts concerning whether to instruct on a lesser included offense should be resolved in favor of including the instruction, leaving it to the jury to decide.” Derenzy, 89 S.W.3d at 474-75.

In this case, the evidence provided a basis for the jury to acquit Williams of robbery in the second degree and convict him of felony stealing. The jurors could have believed Williams was complicit in the taking of money from Wagner, believed Wagner’s testimony that no gun or knife was used, and disbelieved Wagner’s testimony about the use of physical force. Therefore, the trial court erred in not submitting the stealing instruction to the jury.

The State argues that there was no reasonable basis in the evidence for acquitting Williams of robbery in the second degree and convicting him of stealing because Williams denied the commission of the charged offense and there was no basis in the State’s evidence or the conflicting version of the crime offered by Williams to support instructing down. The State contends there was no such basis because the jury would have been required to “disbelieve some of the evidence of the state, or decline to draw some or all of the permissible inferences.” This, the State claims, “does not entitle the defendant to an instruction otherwise unsupported by the evidence.”

The State mistakenly relies on State v. Warrington, 884 S.W.2d 711, 717 (Mo.App.1994); State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App.1991); and State v. Pruett, 805 S.W.2d 724, 725-26 (Mo.App.1991), to support its argument that a defendant is not entitled to a lesser included offense instruction merely because the jury might disbelieve some of the State’s evidence. These three cases rely on the previously overruled case of State v. Olson, in which this Court established that “[s]ection 556.046.2 limit[ed] the requirement of instructing down to those instances where there is some affirmative evidence of a lack of an essential element of the higher offense which would not only authorize acquittal of the higher but sustain a conviction of the lesser.” 636 S.W.2d 318, 322 (Mo. banc 1982). Olson was overruled by Santillan, 948 S.W.2d at 576 (“To the extent that Olson ... may be read to require a defendant to put on affirmative evidence as to the lack of an essential element of the higher offense, [it is] overruled.”).

While the State acknowledges that after Santillan, the defendant was not required to put on affirmative evidence, it nonetheless argues that Williams was not entitled to a lesser included offense instruction because there was no affirmative evidence supporting his instruction. Therefore, the State contends, Williams was not entitled to the instruction on the sole basis that the jury might disbelieve some of the State’s evidence. This Court rejected that same argument in Pond, a post-Santillan case. Here, as in Pond, the State relies on pre-Santillan cases and argues that “a defendant is not entitled to a lesser-included offense instruction merely because a jury might disbelieve some of the State’s evidence.” 131 S.W.3d at 794. In Pond, this Court rejected the State’s argument, stating, “A defendant is entitled to an instruction on any theory the evidence establishes.” Id. at 794.

Conclusion

The judgment of the trial court is reversed, and the case is remanded.

All concur.

      . This Court has jurisdiction after transferring this case from the court of appeals after opinion. Mo. Const, art. V, sec. 10.

      . A more extensive recitation of the conflicting testimony in this case is not necessary for resolution of the legal issue to be decided because there is no claim that there was insufficient evidence to support the jury instruction for robbery in the second degree. Robbery in the second degree as instructed in this case amounts to stealing with the use of force.

      . Instruction No. 5 stated:
      A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.
      If you find and believe from the evidence beyond a reasonable doubt:
      First, that on or about October 17, 2006, in the State of Missouri, the defendant or another took money, which was property owned by Timothy Wagner, and
      Second, that defendant or another did so for the purpose of withholding it from the owner permanently, and
      Third, that defendant or another in doing so used physical force or threatened the immediate use of physical force on or against Timothy Wagner for the purpose of overcoming resistance to the taking of the property, then you are instructed that the offense of robbery in the second degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
      Fourth, that with the purpose of promoting or furthering the commission of that robbery in the second degree, the defendant acted together with or aided another person in committing the offense, then you will find the defendant guilty of robbery in the second degree.
      However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

      . "A person commits the crime of robbery in the second degree when he forcibly steals property.” Section 569.030, RSMo 2000. Under § 569.010, RSMo 2000,
      (1) "Forcibly steals”, a person 'forcibly steals’, and thereby commits robbery, when, in the course of stealing, as defined in section 570.030, RSMo, he uses or threatens the immediate use of physical force upon another person for the purpose of:
      (a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
      (b) Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.

      . Section 556.046.3, RSMo Supp.2008, states: The court shall be obligated to instruct the jury with respect to a particular included offense only if there is a basis in the evidence for acquitting the defendant of the immediately higher included offense and there is a basis in the evidence for convicting the defendant of that particular included offense.


author: MARY R. RUSSELL, Judge.

text:
    STATE of Missouri, Respondent, v. Zackary Lee STEWART, Appellant.
    No. SC 90503.
    Supreme Court of Missouri, En Banc.
    May 25, 2010.
    Rehearing Denied June 29, 2010.

      Rosalynn Koch, Public Defender’s Office, Columbia, for Appellant.
    Karen L. Kramer, Atty. General’s Office, Jefferson City, for Respondent.
   MARY R. RUSSELL, Judge.

Zackary Lee Stewart was convicted of first-degree murder and sentenced to life imprisonment without the possibility of parole. He appeals after being denied a new trial, asserting that a new trial is warranted because newly discovered evidence indicates that his brother-in-law, whose DNA was found on a bloody hat at the crime scene, stated that he had killed someone and that he was present at the victim’s murder. Zackary argues that this new evidence, particularly considered in light of the DNA evidence, raises a substantial doubt as to his guilt. This Court agrees that the newly discovered evidence merits a new trial. The judgment is reversed, and the case is remanded.

I. Background

The evidence at trial showed that David Dulin (Victim) called 911 shortly after midnight November 29, 2006, and stated that two white men in their 20s and 30s had come into his home near Hurley and shot him twice in the head with a .22. While he lay dying, Victim told the 911 operator that he did not know who shot him, but he stated that the assailants were from Hurley and that one of the men said he was the “Eby girl’s boyfriend.”

Zackary was an 18-year-old high school senior at the time of Victim’s murder. His mother is Paula Eby (Mother), and his sisters include Candy Seaman and Christy Pethoud. At the time of Victim’s murder, Candy was married to Tim Seaman, and Christy was living with Leo Connelly.

When investigators contacted Zackary, he told them that he had no knowledge of Victim’s murder, but he did volunteer nonpublic information (when the crime purportedly occurred and the caliber of weapon involved). He stated that if he was going to kill someone he would not use a .22 caliber weapon, “something he would have to shoot four or five times with to kill them.”

Zackary again was interviewed regarding Victim’s murder while he was jailed on a separate charge a few months later. A sheriffs detective told Zackary that a witness had seen him, his sister Christy, and Christy’s boyfriend, Leo, in a ear on a road near Victim’s home the night of the murder. Zackary was asked if there might be a reason for his DNA to be at the crime scene. He also was told that the murder weapon had been found. Zackary maintained that he was not involved, that he did not know anything, and that he had never left Christy’s home that night.

Zackary was placed in an isolation cell while searches were conducted. He later requested to talk to the detective. Crying, scared, and upset, Zackary told the detective that he thought Leo was responsible for Victim’s murder. Zackary did not say why he thought Leo was responsible, but he observed the short distance between Victim’s and Leo’s residences. He said he had been at Christy and Leo’s home the night of Victim’s murder and stated that he had not left the home that night.

After this interview, Zackary again was put in an isolation cell while searches were conducted. He continued to assert that he had no involvement in Victim’s murder and said he had given the matter over to God.

Zackary eventually was returned to the cell he shared with Coty Pollard and Victor Parker. Pollard and Parker later approached investigators to report what Zackary had recounted to them about Victim’s murder, and they both testified for the State at Zackary’s trial. They offered the following account of the murder: Zack-ary went to Victim’s home the night of the murder with Christy, Leo, Mother, and Mother’s boyfriend (Mark Myers) and his son (Robert Myers); the group went there planning to “take his dope;” they arrived in two vehicles (Zackary, Christy, and Leo were in a white Ford Escort; Mother, Mark, and Robert were in a Jeep Cherokee); Zackary and Robert guarded Victim while the others searched for drugs; Victim pulled a gun; Victim and Zackary struggled before Zackary wrestled the gun away and shot Victim multiple times; the group panicked and left the scene (Leo and Zackary left in the Escort; the others left in the Cherokee); they changed their clothing and burned the clothes they had been wearing in a barrel that they threw in the river; and they decided Leo was to dispose of the gun.

Zackary’s defense counsel cross-examined Parker and Pollard about their influence over Zackary, and she suggested that they had received favors from investigators or the prosecutor in exchange for testifying against Zackary. But Zackary called only one witness in his defense — his sister Christy — who testified that no one left her house the night of Victim’s murder.

Before Zackary’s trial concluded, Victim’s family informed the State that they had never seen Victim with the bloody hat that was found at the crime scene and introduced into evidence at trial. The hat was tested for DNA the third day of Zack-ary’s trial, and the jury was provided the preliminary DNA results indicating that neither Zackary’s nor Leo’s DNA was found on the hat. The jury was told that the hat contained DNA from three people — Victim, Zackary’s brother-in-law Tim, and another unknown person.

During closing arguments, the prosecutor argued that the preliminary DNA information from the bloody hat reflected a DNA “hit” to Tim made by an investigative database. He stressed that it was not a DNA “match” confirmed by comparing it with Tim’s actual DNA. He also highlighted that Tim was not identified at trial as a person who was with Zackary during Victim’s murder. The jury found Zackary guilty of first-degree murder, and he moved for a new trial.

Zackary’s motion for a new trial included arguments that newly discovered evidence entitled him to a new trial because it would lead to a different result at a new trial. He asserted that, after his trial, new evidence was discovered indicating that Tim had told his brother that he had murdered Victim.

A hearing was held on Zackary’s motion, but the defense was unable to locate Tim. Tim’s brother failed to appear to testify, but the State agreed to waive hearsay objections to a detective testifying about what Tim purportedly told his brother.

The detective stated that, after Zacka-ry’s trial, he had received a tip that Tim had disclosed to his brother that he had “taken someone’s life.” Tim did not indicate whose life he took, but his brother stated that he had not taken Tim’s statements seriously until after he heard about the bloody hat found by Victim’s body. The brother stated it was Tim’s hat or a hat identical to the one Tim had for a long period of time. The brother also indicated that Tim drove a light tan or white vehicle.

Tim’s nephew also testified at the motion hearing. The nephew testified that Tim had confided to him the morning after Victim’s murder that Tim and his friend, John Mills, were at Victim’s house when Victim was killed.

Zaekary argued that the credibility of Tim’s alleged statements to his brother and nephew were bolstered by the fact that the DNA evidence on the bloody hat was confirmed after trial as a match to Tim. He also asserted that the confirmed DNA evidence would have altered the jury’s view of his case, as it would have obviated the prosecutor’s closing arguments that the DNA evidence showed a “hit” but not a “match” to Tim. The trial court, however, found that Tim’s alleged statements were not exculpatory to Zacka-ry, and it concluded that a new trial was not warranted.

II.Issue on Appeal

Zaekary argues that the trial court’s refusal to grant him a new trial denies him a fair trial. He maintains that the newly discovered evidence of Tim’s statements to his brother and nephew, when considered with the now-confirmed DNA evidence, makes it likely that he would obtain a different result at a new trial. He asserts that the new evidence establishes a reasonable alternative theory of his innocence— that Tim killed Victim.

III.Standard of Review

Rule 29.11 provides that the court may grant a new trial “upon good cause shown.” New trials based on newly discovered evidence are disfavored, and the trial court has substantial discretion in deciding whether a new trial should be granted. State v. Armine, 741 S.W.2d 665, 674 (Mo. banc 1987). Because of this substantial discretion, the trial court’s decision will be affirmed unless this Court finds it abused its discretion. State v. Rutter, 98 S.W.3d 714, 730 (Mo. banc 2002). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 87 (Mo. banc 2010).

To obtain a new trial on the basis of newly discovered evidence, Zaekary was required to show: (1) the facts constituting the newly discovered evidence came to his knowledge after the trial; (2) his lack of prior knowledge was not owing to want of due diligence on his part; (3) the newly discovered evidence is so material that it is likely to produce a different result at a new trial; and (4) the evidence is not merely cumulative evidence or evidence impeaching a witness’s credibility. State v. Terry, 304 S.W.3d 105, 109 (Mo. banc 2010).

IV.Is a new trial warranted?

The parties agree that Zackary’s newly discovered evidence meets three of the four prongs for assessing whether it merits a new trial: the evidence was not known at trial; its being unknown was not attributable to a failure of due diligence by the defense; and the newly discovered evidence is not merely cumulative or impeaching. The remaining issue is whether the newly discovered evidence is so material that it is likely to produce a different result on retrial. Evidence is considered to likely produce a different result at a new trial if it is credible and reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the result of a new trial. State v. Jennings, 326 Mo. 1085, 34 S.W.2d 50, 54-55 (1930).

A. The newly discovered evidence is credible

The State’s arguments at the motion hearing challenged the admissibility of the new evidence, arguing that it was inadmissible hearsay. In assessing the availability of a new trial, however, the court’s task is to assess the credibility of the newly discovered evidence, not to conjecture as to its future admissibility. See id. After all, the evidence may be offered differently at a new trial.

Courts have noted that self-incriminatory statements that are made to close family members shortly after an alleged crime, that also are corroborated by confirmed DNA evidence, carry substantial indicia of reliability that lends to their trustworthiness. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 300-01, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (noting in a discussion about exceptions to the inadmissibility of hearsay that a substantial indicia of reliability was established where the statements at issue were made spontaneously to a close acquaintance shortly after the murder, were corroborated by some other evidence in the case, and were self-incriminatory and unquestionably against interest).

The circumstances under which Tim’s alleged statements were made lend credence to their credibility: Tim’s purported statements to his nephew about his presence at the crime scene were made the day after Victim’s murder and were corroborated by Tim’s DNA being found on the bloody hat at the crime scene; Tim’s purported statements to his brother were uttered shortly after Victim’s murder and were made spontaneously in the context of the brothers’ conversation about family issues.

The credibility of Tim’s alleged statements is additionally enhanced by the fact that the evidence was generated by his family members — presumably Tim’s brother and nephew would be more likely to lie to protect Tim, not to vilify him in an effort to protect Zackary. Cf. State v. Rogers, 758 S.W.2d 199, 200-01 (Mo.App.1988) (noting the untrustworthiness of statements offered in support of a defendant by his own friends and relatives; suggesting that trustworthiness requires a neutral interest toward the defendant).

Zackary persuasively argues that the newly discovered evidence of Tim’s alleged statements is credible for purposes of granting a new trial.

B. The newly discovered evidence raises a substantial doubt

The State’s theory at trial was that Zackary and Leo were the two men Victim referred to in his 911 call. But because no forensic evidence connected them to the crime scene, the State relied on the testimony of Zackary’s two cellmates to convince the jury of Zackary’s guilt. The newly discovered evidence relating to Tim’s purported statements to his brother and nephew, particularly when considered with the now-confirmed DNA evidence linking Tim to the scene, raises serious doubts about the State’s theory of the case.

If presented to and believed by the jury, Zackary’s newly discovered evidence allows him to present an alternative theory in his defense beyond his sister’s testimony that he did not leave her home the night of Victim’s killing. During retrial, it is likely that the newly discovered evidence will produce a different result because the jury will conclude that the two men referenced by Victim were Tim (who was married to an “Eby girl” and drove a light-colored vehicle) and another person, not Zackary, who contributed the unknown DNA found at the scene. For these reasons, Zackary’s new evidence meets the criteria of being reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the result if he is retried. See Jennings, 34 S.W.2d at 54-55.

V. Conclusion

The newly discovered evidence offered by Zackary in support of his motion for a new trial warrants a new trial. The trial court’s judgment is reversed, and the cause is remanded.

All concur.

      . This Court has jurisdiction over this case pursuant to Mo. Const, art. V, sec. 10, as this case was taken on transfer after its disposition by the court of appeals.

      . Despite this question being asked, there was no evidence of Zackary's DNA being found at the crime scene.

      . The .22 used in the murder had been previously discovered during a vehicle stop in Springfield about two and half months after the shooting. It was in the possession of a person unconnected to Zackary.

      . While Pollard was near Zackary’s age, Parker was older. Pollard and Parker had been acquainted before becoming cellmates. Parker and Pollard advised Zackary that they could help him if he told them the truth about his involvement in Victim’s murder. They advised him to stay in his cell, suggesting that investigators would know he was guilty if he came out. They also advised him to give them all of his food, telling him that not eating would make him look innocent. Parker told Zackary that he could help him bond out, hire a lawyer, and get a change of venue to Greene County.

      . Pollard was in jail on a probation violation for burglary, theft, receiving stolen property, and tampering. He later was continued on probation. Parker was jailed on a probation violation stemming from drug charges and was released on his own recognizance before his sentencing.

      . Christy testified that, despite having smoked marijuana earlier in the evening, she was certain no one left her house the night of the murder because her dogs and donkey would have made noise and alerted her if a vehicle had left her driveway.

      . Investigators had believed it was Victim’s hat because it was found on the floor next to his body, was covered with blood, and had a tear in an area coinciding with a bullet hole in his head.

      . The detective testified that he had interviewed Tim, who denied ever owning the hat. And people who knew Tim gave the detective conflicting reports about whether Tim owned a similar hat.

      . The State suggests that Zackary failed to preserve his argument as to the nephew’s testimony because he did not detail Tim’s statements to the nephew in his motion for new trial. The State, however, did not object to the nephew's testimony at the motion hearing.

      . The detective testified that he did not have evidence putting John Mills at the scene of Victim’s murder, but he was told that Tim and Mills "ran around together.”

      . Zaekary argues that it is newly discovered evidence that the DNA hit on the hat was confirmed after trial as a match to Tim, but he also admits that the "the match is not completely new evidence” insofar as "[t]he DNA hit on Tim Seaman was proven at trial by a stipulation.”

      . The nephew testified that Tim was the first person to tell him about Victim's murder. He stated that, the morning after Victim’s murder, he witnessed Tim's friend Mills vomiting, and Tim explained that Mills had vomited "because of what he saw the night before.” The nephew agreed that Tim had "told [him] that the reason [Mills] was throwing up was because he had seen the guy get killed.”

      . The detective testified at the motion hearing that Tim’s brother stated that he had been drinking with Tim "around Thanksgiving” in November 2006 and that Tim was "crying to him about problems he was having with his estranged wife, Candy Seaman, and the kids, and then the subject shifted to ... him having taken someone's life, and asking how you deal with that.”

      . In addition to the unknown person’s DNA on the bloody hat, Zackary’s motion for a new trial also asserted that after-trial DNA testing revealed that an unknown person’s DNA was found on dentures at the crime scene.