author: NANCY STEFFEN RAHMEYER, Judge. ROBERT S. BARNEY, Judge, DANIEL E. SCOTT, Chief Judge,

text:
    Denise PILE, Claimant-Appellant, v. LAKE REGIONAL HEALTH SYSTEM, Employer-Respondent, and Missouri Employers Mutual Insurance, Insurer-Respondent.
    No. SD 30153.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 1, 2010.
    Motion for Rehearing or Denied Sept. 22, 2010.
    Application for Transfer Denied Oct. 26, 2010.

      Randy Charles Alberhasky, Springfield, MO, for Appellant.
    Robert O. Musick, Springfield, MO, Douglas M. Greenwald, Kansas City, KS, for Respondents.
   NANCY STEFFEN RAHMEYER, Judge.

Denise Pile (“Claimant”) appeals a final award of the Labor and Industrial Relations Commission (“the Commission”) denying workers’ compensation benefits. In its award, the Commission found that Claimant’s injuries did not arise out of and in the course of her employment because Claimant was exposed to the risk of a “pedestrian stumble” in her normal non-employment life. The Commission’s award is not supported by substantial evidence.

Factual and Procedural Background

On August 6, 2006, Claimant was employed by Lake Regional Health System (“Employer”), and was working as a supervising nurse on the orthopedic floor of the hospital. The Commission found that the accident or occupational disease arose out of and in the course of employment. It further found that Claimant was on her feet and attending to patients approximately eighty percent of her shift, which was normally twelve hours in length three or four days a week. Further findings included:

On the day of the accident, Claimant was a supervisor on the floor. It was a very busy day. She was attending to a patient, when the patient requested more pain medicine. Claimant moved quickly from the room, turned the corner on the carpeted hallway, stumbled, turned her ankle and foot. Claimant did not fall to the ground, but momentarily regained her balance and continued to the medicine storage area.
After the accident her foot hurt. She had a sharp burning pain on the outside of her foot, but the day was busy and she continued her duties. Limping slightly she finished her day.
After a few days and when swelling of her foot did not subside, she consulted with Dr. T. Hoeft. He sent her for x-rays. It was determined that she had sustained a number of small fractures to her right foot.

Claimant testified that she was usually on her feet approximately fifty percent of the time she spent outside of work. There was no evidence in the record contradicting these assertions. After the injury, Claimant was diagnosed with chronic tendonitis of the peroneal tendon, which was caused in part by calcifications in the tendons of her foot. Claimant eventually underwent surgery on her foot in February of 2007.

Two doctors evaluated Claimant for purposes of the workers’ compensation hearing. Dr. Kevin Komes stated that chronic tendonitis is consistent with prolonged walking over a period of time and that a person who develops tendonitis usually has an abnormal foot motion or walking pattern over a prolonged period of time. Dr. Komes stated that because Claimant had calcium on her tendon, the act of walking could cause the bone to break and result in inflammation of the tendon or tendonitis. Dr. Truett Swaim examined Claimant and opined that her work at the hospital was the prevailing factor of her injury. This was consistent with Dr. Komes’ determination that “walking caused [Claimant’s] tendonitis.”

The ALJ found that Claimant failed to meet her burden of proving that she suffered a compensable injury under workers’ compensation law because she suffered no “more than a pedestrian stumble that could have happened anywhere, anytime, and to any person.” The ALJ entered a final award on January 15, 2009, which was affirmed, adopted and incorporated by reference in the Commission’s final award denying compensation, entered on October 6, 2009.

Standard of Review

Generally, we review the award of the Commission and not the decision of the ALJ. Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823, 827 (Mo.App. S.D.2009). “ ‘If, as here, the award of the Commission attaches and incorporates an award and decision of the ALJ, we may consider the findings, but only so far as they are consistent with the decision of the Commission.’ ” Id. (quoting Braswell v. Missouri State Highway Patrol, 249 S.W.3d 293, 297 (Mo.App. S.D.2008)).

Our standard of review is governed by section 287.495.1, which provides:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the [C]ommission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the [C]om-mission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1; Henley v. Fair Grove R-10 School Dist., 253 S.W.3d 115, 126-27 (Mo.App. S.D.2008). In analyzing the fourth ground, we must review the entire record “to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). We review questions of law de novo, and we give deference to the Commission on issues of fact. Allcom, 277 S.W.3d at 827. We also defer to the Commission’s decisions on issues dealing with the credibility of witnesses and the weighing of conflicting evidence. Smith v. Richardson Bros. Roofing, 32 S.W.3d 568, 575 (Mo.App. S.D.2000), overruled on other grounds by Hampton, 121 S.W.3d at 223.

Analysis

Claimant brings one point on appeal, asserting that the Commission erred in finding that her injury did not arise out of and in the course of her employment, pursuant to section 287.020.3(2)(b), because Claimant faced an increased risk of injury at work given that she walked much more at work than in her normal non-employment life. We agree.

Section 287.120 provides that an “employer ... shall be liable, irrespective of negligence, to furnish compensation under the provisions of the [Workers’ Compensation Law] for personal injury ... of the employee by accident arising out of and in the course of the employee’s employment[.]” Section 287.120.1 (emphasis added). In 2005, the legislature made several changes to the Workers’ Compensation Law, which included narrowing the definitions of “injury,” “accident,” and “injury arising out of and in the course of’; and changing this Court’s interpretation from a liberal statutory construction to a strict statutory construction. Strieker v. Children’s Mercy Hosp., 304 S.W.3d 189, 192 (Mo.App. W.D.2010) (citing Miller v. Missouri Highway and Trans. Com’n, 287 S.W.3d 671, 672-73 (Mo. banc 2009)).

Section 287.020.3 states:
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.[]

Section 287.020.3(2) (emphasis added). The Commission only made a finding as to section 287.020.3(2)(b), so we will review whether there was substantial evidence to support the Commission’s finding that Claimant’s injury came from a hazard or risk unrelated to employment to which Claimant was equally exposed in her normal non-employment life.

The question we must consider is whether Claimant’s injury came “from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” Section 287.020.3(2)(b). Thus, the application of this subsection of the statute involves a two-step analysis. The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker’s job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life.

A worker’s activity can provide the nexus needed to show an injury came from a hazard or risk related to employment. The risk or hazard to which Claimant was exposed due to her employment was the development of brittle bones in her foot due to tendonitis, which in turn was caused by the prolonged walking required by her job duties. Claimant was injured while dispensing medications. Thus, there is a clear connection (nexus) between the risk or hazard of injury, the injury itself and her employment.

The Commission in this case, in fact, found that the accident arose out of and in the course of employment. As the Commission found, the twisting of Claimant’s right foot as she turned the corner to go into the medicine room was the accidental event that was the prevailing factor that caused the injury. That is to say, the twisting of the ankle shattered the calcified bone which had developed by excess walking at her workplace. Had Claimant not been exposed to the excess walking, as her job required, Claimant would not have sustained the injury. The analysis of the Commission should have ended at that juncture and there would be no need to discuss section 287.020.3(2)(b). In other words, the work nexus is clear: Claimant was injured because of her exposure to the excess walking at work and it should not have been necessary to consider whether she would have been equally exposed to the risk in her normal non-employment life.

The Commission, however, addressed section 287.020.3(2)(b) and stated that “[Claimant must show that [her] employment exposed her to a risk that she would otherwise not be exposed to in her everyday life.” This is not the correct standard. The statute reads that Claimant must be “equally exposed” to the hazard or risk— not merely exposed. Section 287.020.3(2)(b) (emphasis added). The Commission omitted “equally” from the analysis. Claimant was not equally exposed to the hazard or risk outside of work in her normal non-employment life. Strict construction requires us to “give the statute its plain meaning and refrain from enlarging the law beyond that meaning.” Stricker, 304 S.W.3d at 192.

Claimant testified that she normally worked twelve-hour days, and would usually work three to four shifts a week; she was on her feet and attending to patients approximately eighty percent of each shift. During her shifts, Claimant would be walking, stooping, bending, lifting, tugging, and pulling patients. In addition, when Claimant was supervising nurse, as she was on the date of injury, Claimant would be caring for patients, dispensing medications, admitting and discharging patients, and assigning nurses new patients. Therefore, there is no question that prolonged walking was related to Claimant’s employment. In contrast, Claimant testified that she was usually on her feet approximately fifty percent of the time she spent outside of work. There was no evidence contradicting Claimant’s testimony in the record, and the Commission did not discredit Claimant’s testimony on this issue.

Strictly construing the statute, as we must, eighty-percent exposure to the risk of injury at work is not equal to fifty-percent exposure to the injury at home. Therefore, there was not sufficient evidence for the Commission to conclude that Claimant was equally exposed to the risk of breaking her foot by prolonged walking at home as she was at work. To hold that a claimant may not recover unless her employment exposed her to any risk that she was not exposed to in everyday life would eviscerate almost any claim for workers’ compensation. If a quantitative analysis is not necessary for the interpretation of section 287.020.3(2)(b), then there never would be compensable workers’ compensation claims. The legislature could not have intended such an absurd result as this.

Employer argues that Miller, 287 S.W.3d 671 (Mo. banc 2009), is controlling in this case, however, Miller is clearly distinguishable. In Miller, the claimant stated he did nothing different than usual when walking at work on the date of his injury, there was no evidence regarding the extent the claimant walked outside of work versus inside of work, and there was no explained cause of the claimant’s injury. Id. at 671-74. Here, the risk to Claimant was not mere walking, but was instead the risk of tendonitis due to prolonged walking. Claimant testified that she was on her feet eighty percent of the time at work and fifty percent of the time at home. The extent of time Claimant was on her feet in the present case is important because her injury was caused by prolonged walking over a period of time. Therefore, the more Claimant was on her feet, the more likely her injury would occur.

We find that there was insufficient evidence for the Commission to conclude that Claimant was equally exposed to the risk of injury outside of work. As a result, we reverse the Commission’s award and remand for further proceedings consistent with this opinion.

BARNEY, J., concurs in separate opinion.

SCOTT, C.J., dissents in separate opinion.

LYNCH, P.J., and FRANCIS, J., recused.

ROBERT S. BARNEY, Judge,

concurring.

I concur in the principal opinion’s determination that the Commission erred when it concluded that Claimant suffered no “more than a pedestrian stumble that could have happened anywhere, anytime, and to any person.” It is clear her injuries arose from a hazard related to her employment, and the Commission erred in its conclusion that such an accident and resulting injury could have happened to anybody outside of work. I concur in the principal opinion’s determination to reverse the Commission’s final award and remand for further proceedings.

In its “Findings of Fact,” the Commission found that Claimant “was on her feet and attending to patients approximately 80 percent of her shift. Her shift was normally 12 hours in length three or four days a week.” It further found that “Dr. T. Swain examined Claimant and opined that her work at the hospital was the prevailing factor of her injury.” It then concluded that “Claimant was injured while she was performing the duties of her job. As a supervising nurse, she was asked by a patient to go get some pain medicine.” As she was leaving the doorway “she twisted her foot. This resulted in a fracture.” It further concluded that “[i]t was, rather, the act of turning that caused her injury.” Here, there is no question that the Commission found and determined there was an accident and that it arose out of and in the course of employment.

As noted by the principal opinion, since the Commission only made a finding as to section 28Y.020.3(2)(b), we review whether there was substantial evidence to support the Commission’s conclusion that Claimant’s injury came from a hazard or risk unrelated to employment to which Claimant was equally exposed in her normal non-employment life.

Therefore, employing the two-step analysis as enunciated by the principal opinion, the first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and the resulting injury is integral to the performance of a worker’s job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Therefore, where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply.

Given the factual scenario of this case there is no need to address whether Claimant was equally exposed to the hazard or risk in her normal, non-employment life, because there was a clear nexus between her work as a supervising nurse, where while going to give medicine to a patient she “turned her ankle and foot,” and her resulting injury. Clearly the activity giving rise to the accident and injury was integral to the performance of her job such that it was a risk related to her employment. Since it was related to her employment it does not matter that she could have replicated her injury away from work.

The scenario in the instant matter is far different than that of Miller, 287 S.W.3d at 672. In Miller, the claimant was merely walking in a straight line on a level surface when his knee popped. Id. Here, unlike in Miller, Claimant twisted her foot, resulting in a fracture in the bones of her right foot as she was turning a corner in order to get medicine out of a storage room. This activity was clearly related to her employment.

DANIEL E. SCOTT, Chief Judge,

dissenting.

I respectfully dissent for several reasons, but I will focus on two for brevity.

Facts Underlying the Court’s Analysis

The principal opinion builds its analysis largely upon these observations and statements from its “Factual and Procedural Background” section:

• Claimant “was usually on her feet approximately fifty percent of the time she spent outside of work.”
• “Prior to the accident, Claimant had never had any problems with her right foot.”
• “After the injury, Claimant was diagnosed with chronic tendonitis of the peroneal tendon, which was caused in part by calcifications in the tendons of her foot.”
• “[Cjhronic tendonitis is consistent with prolonged walking over a period of time.”
• “[A] person who develops tendonitis usually has an abnormal foot motion or walking pattern over a prolonged period of time.”
• “[Bjecause Claimant had calcium on her tendon, the act of walking could cause the bone to break and result in inflammation of the tendon or tendonitis.”

It is important to note that the Commission did not find any of the above. Whether Claimant had a tendon condition, its cause or effect, or the relationship of any of these to Claimant’s injury are not discussed or even mentioned in the award. Further, even if Claimant had tendonitis, no medical evidence of record purported to link it to her working conditions or walking at work.

Since the Commission did not find that Claimant had tendonitis, or its cause, or link those to her work, or even discuss such issues or evidence, I do not think this court can make its own findings, even if some evidence might support them, then use those as a basis to reverse the Commission. See § 287.495.

Miller

“The question we must consider,” according to the principal opinion, “is whether Claimant’s injury came ‘from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.’ ” I think our supreme court answered this in Miller v. Missouri Highway and Trans. Com’n, 287 S.W.3d 671, 672-74 (Mo. banc 2009), a case that specifically considered the intent and effect of current § 287.020 with respect to walking at work:

The meaning of these provisions is unambiguous. An injury will not be deemed to arise out of employment if it merely happened to occqr while working but work was not a prevailing factor and the risk involved — here, walking — is one to which the worker would have been exposed equally in normal non-employment life.

Id. at 674. The principal opinion claims to distinguish Miller because “the risk to Claimant was not mere walking, but was instead the risk of tendonitis due to prolonged walking.... The extent of time Claimant was on her feet in the present case is important because her injury was caused by prolonged walking over a period of time.”

Again, the problem is that the Commission made no such findings; these are findings made by this court on appeal. For that matter, the following excerpts from the principal opinion’s “two-step analysis” show that it suffers from the same flaw:

A worker’s activity can provide the nexus needed to show an injury came from a hazard or risk related to employment. The risk or hazard to which Claimant was exposed due to her employment was the development of brittle bones in her foot due to tendonitis, which in turn was caused by the prolonged walking required by her job duties.
... [T]he twisting of the ankle shattered the calcified bone which had developed by excess walking at her workplace. Had Claimant not been exposed to the excess walking, as her job required, Claimant would not have sustained the injury.

What the Commission did find, by contrast and after declaring Claimant’s testimony not credible in part, was that Claimant suffered “a pedestrian stumble that could have happened anywhere, anytime, to any person.” This finding is supported by the record, and thus binding on this court, bringing Miller right back into focus:

The injury here did not occur because Mr. Miller fell due to some condition of his employment. He does not allege that his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment. He was walking on an even road surface when his knee happened to pop. Nothing about work caused it to do so. The injury arose during the course of employment, but did not arise out of employment. Under sections 287.020.2, .3 and .10 as currently in force, that is insufficient.

Miller, 287 S.W.3d at 674.

My basic complaint is that the principal opinion relies on facts found by this court, not by the Commission.

      . On the date of her accident, Claimant was working as a supervising nurse. However, Claimant's official title was registered nurse, which required her to work some shifts as a supervising nurse and other shifts as a staff nurse.

      . The findings of the Administrative Law Judge (“ALJ”) were adopted by the Commission.

      . Prior to the accident, Claimant had never had any problems with her right foot.

      . All statutory references are to RSMo Cum. Supp.2005, unless otherwise indicated.

      . We note the statute contains a double negative, that “[i]t does not come from a hazard or risk unrelated to the employment^]” We have tried to discern what that sentence means by writing it in positive terms.

      . We have borrowed freely, without attribution, from a commission opinion in which all three commissioners agreed and used this analysis.

      . So too can the physical condition of the work environment. Where the physical condition of the work environment creates the hazard or risk giving rise to an injury, the physical condition provides the nexus needed to show the injury came from a hazard or risk related to employment. No further discussion of this step in the analysis is necessary in this case.

      . Possible causes, per medical testimony in the record, included a predisposition because Claimant has an extra bone in her foot.

      . It is the Commission, not this court, who is to weigh the evidence, find the facts, and in doing so is free to believe all, part, or none of the evidence presented. See Hartle v. Ozark Cable Contracting, 291 S.W.3d 814, 815 (Mo.App.2009).


source: Caselaw Access Project

author: WILLIAM W. FRANCIS, JR., Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Joseph W. MORT, Appellant.
    No. SD 30147.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 9, 2010.

      Daniel A. Juengel and Julie L. Brothers, Clayton, for Appellant.
    Chris Koster, Attorney General and Daniel N. McPherson, Assistant Attorney General, Jefferson City, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

Joseph Mort (“Appellant”) was convicted by a jury on two counts of first degree statutory sodomy in violation of section 566.062 . Appellant was sentenced to consecutive terms of life imprisonment. This appeal followed. We affirm the trial court’s judgment.

Factual and Procedural History

Appellant was charged by information with two counts of first degree statutory sodomy. Appellant was the victim’s stepfather at the time charges were filed and began abusing her when she was nine years old.

We review the facts in the light most favorable to the verdict and recite them with that standard in mind. See State v. McDonald, 321 S.W.3d 313, 315-16 (Mo.App. S.D.2010).

Appellant, the victim, the victim’s mother, and Appellant’s two children, lived at Appellant’s home in Webb City. The victim’s mother moved out and left the victim behind with Appellant. After a few months, the victim moved out of Appellant’s house and began living with her mother. She would sometimes stay with Appellant on the weekends. Appellant came into the victim’s room at night and licked her vagina during those weekend visits. He abused the victim at least one time during every weekend visit. On one occasion, the victim’s best friend was spending the night, and the two girls were playing in the computer room of the house. Appellant and a friend of his, Chad Elliott (“Elliott”), came into the room and made both girls lift up their nightgowns and pull down their shorts. Appellant touched the victim’s vagina with his hand and inserted his finger into her vagina.

On May 2, 2006, forensic interviewer Jeannie Stewart (“Ms. Stewart”), interviewed the victim. Dr. Fredric Wheeler (“Dr. Wheeler”) then performed a SAFE exam at the Children’s Center of Southwest Missouri. The Children’s Center is a not-for-profit child advocacy center that is a distinct agency from the Missouri Children’s Division. The victim told Ms. Stewart and Dr. Wheeler that Appellant had licked her vagina. The victim did not disclose any other sexual abuse at that time.

On September 29, 2006, the victim underwent a second forensic interview at the Children’s Center where she further disclosed Appellant had inserted his finger into her vagina. Both forensic interviews were videotaped. The victim again described the incident in the computer room. In the second interview, the victim said Appellant touched her vagina with his hand and inserted his finger into her vagina.

On July 1, 2008, a two-count information was filed by the State against Appellant.

On July 22, 2008, Appellant filed a motion for a bill of particulars. On August 6, 2008, the State filed a bill of particulars.

On August 6, 2009, Appellant filed a “Motion in Limine to Exclude Admission of Testimony of Dr. Fredric Wheeler” alleging his finding of sexual abuse was prejudicial and irrelevant because Dr. Wheeler could not identify the perpetrator. On August 7, 2009, Appellant and the State filed a stipulation, pursuant to section 491.075, agreeing to the admission of the videotaped statements of the victim into evidence as long as the victim also testified at trial.

At a pre-trial hearing on August 28, 2009, defense counsel argued that Dr. Wheeler’s testimony concerning the victim’s attenuated hymen was prejudicial and lacking in probative value since it was not indicative of the mouth-to-genital-contact charge included in the bill of particulars. The prosecutor responded that defense counsel had received the victim’s interviews where the victim also alleged Appellant placed his finger in her vagina. The trial court noted the charges had not been changed and the probable cause statement, which was incorporated into the original complaint, included the victim’s statement that Appellant inserted his finger into her vagina. The trial court overruled Appellant’s motion in li-mine. Appellant’s counsel then renewed the request for a bill of particulars stating specifics regarding the digital penetration. The same day the State filed a second bill of particulars.

Appellant’s counsel also made an oral motion to exclude any photographs of the victim’s hymen taken during the SAFE exam performed by Dr. Wheeler. He argued that the photographs “freaked [him] out” and did not establish that Appellant was responsible for the damage to the victim’s hymen. The trial court overruled the motion finding the probative value of the photographs outweighed any prejudicial effect.

Also at the pre-trial conference, the prosecutor expressed doubt regarding the ability of the defense to call a potential witness, Shawn Boyd (“Ms. Boyd”) because she had not been disclosed as an expert witness. Defense counsel noted that Ms. Boyd was the area director for the Missouri Children’s Division and she would testify to the policies and procedures followed in the present case. The trial court deferred its decision until the State had an opportunity to conduct a voir dire examination of the witness.

During trial, the victim testified that when her mother moved out of the home, she continued to live with Appellant for a few months. During that time, he touched and licked her vagina. She also testified that after she began living with her mother again, during weekend visits to Appellant’s house he touched and licked her vagina at least one day of every weekend. She testified that on one occasion when her best friend was spending the night with her at Appellant’s residence, Appellant and his friend, Elliott, came in the computer room and Appellant touched her in the private area with his fingers. The victim’s testimony was presented without objection.

When Dr. Wheeler was called to testify, the defense made no objection regarding his testimony. During Dr. Wheeler’s trial testimony, the prosecutor offered Exhibit 6, a close-up photograph of the victim’s attenuated hymen. Defense counsel objected that the photograph was not probative, was offensive, and highly prejudicial. This was the only objection by defense counsel during Dr. Wheeler’s direct examination. Dr. Wheeler testified he did not know if the jury needed to see the photograph, but he thought it would “help[] explain some of what’s going on.” The trial court overruled the objection. Dr. Wheeler pointed out the anatomy of the vagina and used the picture to show his findings from the SAFE exam. He explained that the victim had an attenuated hymen and this condition in a girl of the victim’s age meant there had been some sort of penetration.

The State also played, without objection, the two videotaped interviews from the Children’s Center where the victim reported that Appellant placed his finger into her vagina and licked her vagina. Ms. Stewart, the forensic interviewer also testified at trial. The State did not present.any evidence relating to the investigations conducted by the Missouri Children’s Division.

After the State rested its case, but before the defense called any witnesses, the prosecutor conducted a voir dire examination of Ms. Boyd outside the jury’s presence. Ms. Boyd testified she conducted a review in September, 2006, of an investigation conducted by two Children’s Division employees regarding allegations that Elliott abused the victim’s friend, mentioned in the Children’s Center interview, and the friend’s sister. During this review, she was not evaluating whether Ms. Stewart did anything inappropriate while conducting the interviews with the victim at the Children’s Center. Ms. Boyd was unable to say there was anything improper about the victim being interviewed a second time at the Children’s Center except she noted a second interview can sometimes give the impression of possible coaching. Specifically, she pointed to a comment allegedly made by a sheriff to the victim’s mother after the first interview, stating that there was not enough evidence to go forward with the charges as an indication of possible coaching between interviews. She testified she had some training in conducting forensic interviews, and that she did not have any actual evidence that someone actually coached the victim. The trial court sustained the State’s motion to exclude Ms. Boyd’s testimony because she had not been endorsed as an expert witness and her testimony was irrelevant since there were no issues in the case regarding proper Children’s Division protocol. Defense counsel then made an offer of proof by questioning Ms. Boyd under oath. Following Ms. Boyd’s testimony, the prosecutor renewed her objection to the testimony and it was sustained by the trial court. The defense did not put on any evidence.

The State submitted instructions to the jury on Count I, alleging Appellant knowingly touched the victim’s vagina with his fingers, and Count II, alleging Appellant knowingly placed his tongue on the victim’s vagina. The defense made no objection to the jury instructions. The jury found Appellant guilty on both counts and recommended a sentence of life imprisonment on each count. The trial court ordered a Sentencing Assessment Report (“SAR”) and investigation by the Missouri Department of Corrections Board of Probation and Parole.

During the sentencing proceedings on October 16, 2009, the trial court explained it had reviewed the SAR recommending a presumptive sentence of ten years in prison and an aggravating sentence of fifteen years. The trial court also found that the jury’s assessment was within the statutory range of punishment and not excessive, and imposed a life sentence on each count. The trial court then ordered that the sentences be served consecutively. This appeal followed.

Appellant contends the trial court erred by: (1) denying Appellant’s “Motion in Li-mine to Exclude Admission of Testimony of Dr. Fredric Wheeler” because Appellant was not apprised of the hand-to-genital-contact charge in the bill of particulars; (2) overruling Appellant’s motion for judgment of acquittal in that insufficient evidence supported the jury’s verdict because the victim’s testimony was contradictory and uncorroborated; (8) admitting the photograph showing the damage to the victim’s hymen because the prejudicial effect outweighed its probative value; (4) excluding the testimony of Shawn Boyd because her testimony was relevant; and (5) sentencing Appellant to consecutive life sentences in that the punishment was unreasonable for his convictions and disproportionate compared with Elliott.

The State contends the trial court did not err because: (1) Appellant did not preserve any objection to Dr. Wheeler’s testimony because there was no objection to that testimony; (2) the victim’s testimony was not contradictory and sufficiently supported the jury’s verdict; (3) the photograph was relevant and admissible because it showed the nature of the injury suffered by the victim and helped the jury understand the medical testimony; (4) the proposed witness, Shawn Boyd, had not been endorsed as an expert and her proposed testimony was irrelevant and impermissible opinion testimony; and (5) the sentences imposed were within the statutory range of punishment, and the effect of sentences being served consecutively does not constitute an abuse of discretion. The issues presented for determination are:

1. Did Appellant preserve any objection to Dr. Wheeler’s testimony?
2. Was the victim’s trial testimony inconsistent and contradictory to require invocation of the corroboration rule?
8. Did the photograph corroborate the victim’s testimony, assist the jury in understanding testimony, or aid in proving elements of the State’s case?
4. Was Shawn Boyd’s testimony regarding the state agency’s protocol relevant?
5. Are two consecutive life sentences excessive punishment for the Appellant’s crimes?

Point I: Admission of Dr. Wheeler’s Testimony

Appellant contends the trial court erred in “denying the Appellant’s motion to exclude the testimony of Dr. Wheeler” as the State should not have been allowed to present evidence of hand-to-genital contact. The State contends the point is not preserved because Appellant’s counsel did not object to Dr. Wheeler’s testimony at trial. The issue here is whether any objection to Dr. Wheeler’s testimony was preserved.

Standard of Review

A point relied on which is premised on the denial of a motion in limine presents nothing for appellate review because a motion in limine ruling is interlocutory in nature and cannot, therefore, by itself, be reversible error. State v. Wright, 934 S.W.2d 575, 581 (Mo.App. S.D.1996). “A claimed error that was not timely objected to at trial has not been preserved.” State v. Green, 307 S.W.3d 197, 200 (Mo. App. S.D.2010). When Dr. Wheeler testified, Appellant’s counsel did not renew the objection made in the motion in limine. Thus, Appellant’s claim is not preserved and the issue Appellant attempts to raise can only be reviewed for plain error. See Wright, 934 S.W.2d at 581. “Plain error review is appropriate only when the record discloses a facial basis for concluding that ‘evident, obvious and clear error’ has occurred.” Green, 307 S.W.3d at 201 (quoting State v. Garrison, 276 S.W.3d 372, 374-75 (Mo.App. S.D.2009)). If we determine after a facial review that plain error may have occurred, we review it to determine if, as a result of that error, Appellant suffered a manifest injustice. Id.

Analysis

Evidence must be relevant to be admissible. State v. Weaver, 912 S.W.2d 499, 510 (Mo. banc 1995). “Evidence is logically relevant if it tends to make any fact at issue more or less probable or tends to corroborate other relevant evidence.” Glover v. State, 225 S.W.3d 425, 429 (Mo. banc 2007). “Legal relevance is a determination of the balance between the probative and prejudicial effect of the evidence.” Id. “Moreover, even erroneously admitted evidence is not prejudicial if similar evidence was properly admitted or came into the case without objection.” State v. McFarland, 259 S.W.3d 621, 625 (Mo.App. S.D.2008).

Dr. Wheeler’s testimony was clearly relevant to the charges. His testimony that the victim had physical signs consistent with vaginal penetration was directly relevant to the hand-to-genital charge as it tends to corroborate the victim’s testimony that Appellant touched her vagina. Appellant never objected to the description of hand-to-genital contact in the victim’s trial testimony or her out-of-court statements. He also did not object to the submission of jury instructions referring to hand-to-genital contact. Appellant even concedes in his brief that Dr. Wheeler’s testimony was “relevant and probative as to whether or not [the victim] had been vaginally penetrated by something or someone.”

Additionally, Dr. Wheeler’s testimony was similar to other properly admitted evidence. Again, before Dr. Wheeler took the stand, the victim testified without objection that Appellant touched her vagina with his fingers. Appellant also stipulated to the admission of the September 29, 2006 interview where the victim accused Appellant of inserting his finger in her vagina.

Objections to Dr. Wheeler’s testimony were not preserved and there was no “evident, obvious and clear error” in admitting Dr. Wheeler’s testimony. It was relevant to the charge of hand-to-genital contact. Point I is denied.

Point II: Sufficient Evidence Supported the Jury’s Verdict

Appellant contends the trial court erred in failing to grant his motion for judgment of acquittal because the State failed to present' a submissible case in that the testimony of the victim was contradictory and required corroboration. The State argues the victim’s testimony was not contradictory and sufficiently supported the jury’s verdict. Here, the issue is whether the victim’s testimony was inconsistent and contradictory requiring application of the corroboration rule.

Standard of Review

“We review the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a sub-missible case.” State v. Davis, 219 S.W.3d 863, 866 (Mo.App. S.D.2007). “ ‘Our standard of review is whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting State v. Wright, 998 S.W.2d 78, 81 (Mo.App. W.D.1999)). In applying this standard, the court “must examine the elements of the crime and consider each in turn; reviewing the evidence in the light most favorable to the judgment; disregarding any contrary evidence; and granting the State all reasonable inferences from the evidence.” Id. “We defer to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony.” Id.

Analysis

In sexual offense cases, the victim’s uncorroborated testimony alone is generally sufficient to sustain a conviction. State v. Paxton, 140 S.W.3d 226, 229 (Mo.App. S.D.2004). However, the “corroboration rule” is an exception that comes into play in the particular context of sexual offense cases. Id. at 230. “ ‘Corroboration is mandated only when the victim’s testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is rendered doubtful such that corroboration of the victim’s testimony is required to sustain the conviction.’ ” Id. (quoting State v. Baker, 23 S.W.3d 702, 709 (Mo.App. E.D.2000)).

Importantly, the “corroboration rule applies only to inconsistencies within the victim’s trial testimony and does not apply to conflicts between the victim’s trial testimony and the victim’s out-of-court statements.” Paxton, 140 S.W.3d at 230. Contradictions between trial testimony and any previous testimony or statements are for the trier of fact to reconcile and to consider when judging the witness’s credibility. Id.‘Missouri courts have recognized that statements of children are inherently more likely to seem contradictory, simply because children are less skilled in articulation.’ ” Id. at 230-31 (quoting State v. Griggs, 999 S.W.2d 235, 242 (Mo.App. W.D.1998)).

“[A] child victim’s out-of-court statements possess unique strengths and weaknesses and are distinct evidence from the child’s trial testimony.” State v. Bunch, 289 S.W.3d 701, 706 (Mo.App. S.D. 2009); see also State v. Parker, 208 S.W.3d 331, 339 (Mo.App. S.D.2006) (finding videotaped interviews admitted into evidence are quasi-depositions and are distinct from a victim’s trial testimony).

Without citing any legal authority, Appellant contends the victim’s videotaped statements “became in-court testimony when presented to the jury as substantive evidence.” This proposition is contrary to established law. See Pax-ton, 140 S.W.3d at 230-31. Appellant fails to direct this court to any inconsistencies within the victim’s trial testimony, and a review of the transcript does not reveal any inconsistencies of concern within the victim’s trial testimony. Appellant only suggests inconsistencies between the victim’s trial testimony and her out-of-court statements contained in the video. Accordingly, the corroboration rule is not triggered and any suggested discrepancies between the victim’s trial testimony and her prior statements were matters for the trier of fact to reconcile and consider when judging the witness’s credibility. Id. at 230.

Here, sufficient evidence supported Appellant’s conviction. In the victim’s Children’s Center interviews, she reported Appellant inserted his finger into her vagina and licked her vagina. These were admitted pursuant to section 491.075 and played for the jury. During trial, the victim testified that Appellant touched and licked her vagina while she was living in his house and that he also licked and touched her vagina at least one day of every weekend visit to his house after she began living with her mother. Even though the victim’s trial testimony was less detailed than her statements in the videotaped interview, her trial testimony that Appellant touched her vagina with his hand was alone sufficient to prove Count I. Furthermore, during her trial testimony, the victim never recanted the allegation of digital penetration that she made in the Children’s Center interview. Either the victim’s trial testimony or her statements in the videotaped interviews constituted sufficient evidence for a submissible case. See State v. Benwire, 98 S.W.3d 618, 624 (Mo.App. W.D.2003) (holding out-of-court statements admitted under the provisions of section 491.075 are considered substantive evidence of the truth of the matter asserted and any reasonable inferences that may be drawn from those statements, “may alone constitute substantial evidence of an element of the offense charged.”).

The victim’s trial testimony was not inconsistent and contradictory to require application of the corroboration rule. Thus, viewing the evidence in the light most favorable to the judgment, we find there was sufficient evidence from which a reasonable juror might have found Appellant guilty beyond a reasonable doubt. Point II is denied.

Point III: Admission of Photograph

Appellant contends the trial court erred in admitting Exhibit 6 (a photograph of the victim’s vagina taken during the SAFE examination) because the prejudicial effect outweighed its probative value. The State argues the photograph was relevant and admissible because it showed the nature of the injury suffered by the victim, helped the jury understand the medical testimony about the injury, and why that injury supported a finding of sexual abuse. The issue here is whether the photograph was relevant to the State’s case to corroborate the victim’s testimony, help the jury understand the medical testimony, or aid in establishing an element of the crime.

Standard of Review

“A trial court has broad discretion in the admission of photographs, and its decision will not be overturned absent an abuse of discretion.” State v. Johnson, 244 S.W.3d 144, 161 (Mo. banc 2008). “ ‘[T]hat discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.’ ” State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006) (quoting State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005)). Additionally, reversal is appropriate “only if the error was so prejudicial that it deprived the defendant of a fair trial.” Id. at 223-224 (footnote omitted). “Trial court error is not prejudicial unless there is a reasonable probability that the trial court’s error affected the outcome of the trial.” Id. at 244.

Analysis

“A photograph is generally considered superior to words as a means of description; thus, a photograph cannot be rendered inadmissible merely because other evidence communicates the contents of the photograph.” State v. Snowden, 285 S.W.3d 810, 816 (Mo.App. S.D.2009). “Additionally, even if a photograph is inflammatory, it should not be excluded if it is relevant.” Johnson, 244 S.W.3d at 161. An inflammatory photograph would be one tending to arouse anger, hostility or passion. Generally, if a photograph is shocking or gruesome, it is because the crime itself was shocking or gruesome. State v. Hawkins, 58 S.W.3d 12, 24 (Mo.App. E.D.2001); Johnson, 244 S.W.3d at 161. Generally, even inflammatory photographs are admissible if they: (1) show the nature and location of wounds; (2) enable jurors to better understand the testimony at trial; and (8) aid in establishing an element of the State’s case. See Johnson, 244 S.W.3d at 161-162. They are also relevant where they corroborate a witness’s testimony. State v. Masden, 990 S.W.2d 190, 193 (Mo.App. W.D.1999).

In this case, the photograph of the damage to the victim’s hymen was relevant. It corroborated the victim’s testimony that Appellant inserted his finger into her vagina and helped establish an element of the case. The photograph also assisted the jury in understanding Dr. Wheeler’s testimony about the damage to the hymen and why that damage was consistent with penetration. If this Court assumes the photograph was inflammatory, it was because the nature of the crime was itself inflammatory. See Johnson, 244 S.W.3d at 161. The photograph corroborated the victim’s testimony, helped the jury understand the medical testimony, and aided in establishing an element of the crime; therefore, it was relevant. There is no showing that the trial court’s ruling was clearly against the logic of the circumstances and so unreasonable as to indicate a lack of careful consideration. Point III is denied.

Point IV: Exclusion of Shawn Boyd’s Testimony

Appellant contends the trial court erred in excluding witness Shawn Boyd from testifying in that her testimony was relevant and admissible. The State contends the trial court did not abuse its discretion in that the proposed testimony was irrelevant and impermissible opinion testimony. The issue for determination is whether Ms. Boyd’s testimony regarding the protocol followed by investigators for the Children’s Division was relevant in view of the evidence adduced from the Children’s Center interviews.

Standard of Review

“Generally, a trial court’s decision to exclude testimony is reviewed for an abuse of discretion, granting substantial deference to the trial court’s decision.” Eagan v. Duello, 173 S.W.3d 341, 349 (Mo. App. W.D.2005). “When reviewing allegations of improperly excluded testimony ‘[t]he focus is not on whether the evidence was admissible but on whether the trial court abused its discretion in excluding the evidence.’ ” Id. (quoting Jones v. Grant, 75 S.W.3d 858, 862 (Mo.App. W.D.2002). “This discretion is abused only when the ruling is clearly against the logic of the circumstances, or when it is arbitrary and unreasonable.” State v. Cone, 3 S.W.3d 833, 844-45 (Mo.App. W.D.1999). “Even if the exclusion of testimony is erroneous, we will not reverse the judgment absent a finding that the error ‘materially affected the merits of the action.’ ” Duello, 173 S.W.3d at 349 (quoting Jones, 75 S.W.3d at 862; Rule 84.13(b))). “‘[A] trial court’s ruling on the admissibility of evidence will be upheld if it is sustainable under any theory.’ ” State v. McLaughlin, 272 S.W.3d 506, 509 (Mo.App. E.D.2008) (quoting State v. Worrel, 933 S.W.2d 431, 436 (Mo.App. W.D.1996)).

Expert testimony must be relevant to the case at hand in order to be admitted. State v. Wright, 247 S.W.3d 161, 166 (Mo.App. S.D.2008). “The evidence must aid the jury” and “should be excluded if it unnecessarily diverts the attention of the jury from the question to be decided.” State v. Williams, 858 S.W.2d 796, 798 (Mo.App. E.D.1993).

Analysis

Here, the trial court did not abuse its discretion in finding Ms. Boyd’s testimony irrelevant. Her testimony went to a collateral matter: whether investigators for the Children’s Division followed agency protocols in their investigations. In sustaining the State’s objection to Ms. Boyd’s testimony, the trial court explained “there are no issues in this case about what proper Family Services or Children’s Division protocol is in these kinds of cases.” The trial court questioned the relevancy of Ms. Boyd’s testimony regarding whether another separate agency, the Children’s Center, followed the state agency’s protocol. In carefully considering the admissibility of this evidence, the trial court distinguished how an expert with qualifications as a psychologist and a forensic interviewer, for example, may provide proper evidence about the protocol to properly interview a child who is alleged to have been a victim of a sex crime. However, any variations in the protocol of the state agency and the Children’s Center were not relevant and would unnecessarily divert the attention of the jury.

Ms. Boyd’s testimony regarding the state agency’s protocol was not relevant to the evidence in the Children’s Center interviews. She was not going to provide opinions as to any impropriety of the videotaped interviews. There is no showing the trial court’s decision to exclude Ms. Boyd’s testimony was clearly against the logic of the circumstances and so unreasonable as to indicate a lack of careful consideration. Point IV is denied.

Point V: Consecutive Life Sentences

Appellant contends the trial court erred in sentencing Appellant to consecutive life sentences in that the sentences, tantamount to life without parole, are an unreasonable sentence for his convictions. Appellant does not claim the statutory range of punishment is itself excessive or disproportionate to the crimes for which he is convicted. Instead, he argues the sentences actually imposed were excessive because they were ordered to run consecutively and that it was disparate compared to Elliott, who committed the same type of offense against the victim and received only seven years’ imprisonment. Appellant also argues the sentences were retribution for exercising his right to a jury trial. The State contends the trial court did not err because the sentences imposed were within the statutory range of punishment, and the effect of the sentences being served consecutively is within the trial court’s discretion. The issue here is whether the trial court’s exercise of discretion sentencing Appellant for two terms of life imprisonment, to run consecutively, resulted in unreasonable or excessive punishment.

Standard of Review

“A trial court’s sentencing decision is reviewed for abuse of discretion.” State v. Palmer, 193 S.W.3d 854, 857 (Mo.App. S.D.2006). “An abuse of discretion occurs when the trial court’s action is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful consideration.” Id. at 857-58.

Analysis

The trial court retains discretion to order consecutive or concurrent sentences. § 558.026; Williams v. State, 800 S.W.2d 739 (Mo. banc 1990); State v. Burgess, 800 S.W.2d 743 (Mo. banc 1990). Section 557.036.1 directs courts to “decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the [Appellant] and render judgment accordingly.” “Substantial deference is due to the legislature’s determination of proper punishment.” State v. Pribble, 285 S.W.3d 310, 314 (Mo. banc 2009). “When the sentence imposed is within the range prescribed by statute, it cannot be judged excessive, and the consecutive effect of the sentences does not constitute cruel and unusual punishment.” State v. Mubarak, 163 S.W.3d 624, 631 (Mo.App. S.D.2005).

Appellant’s punishment is within the statutory range. Statutory sodomy in the first degree where the victim is less than 12 years old authorizes a maximum sentence of life imprisonment and a minimum sentence of ten years. § 566.062(2). Section 558.026 explicitly places the determination of concurrent or consecutive sentencing within the trial court’s discretion. Appellant’s complaints on severity of punishment should be directed to the legislature as “matching prison terms with particular crimes is, as a general matter, the legislature’s province.” Pribble, 285 S.W.3d at 314.

The nature and the potential social harm of this crime are indeed serious and alarming. Appellant, the step-father at the time of the abuse, was entrusted with the care of his stepdaughter and instead sexually abused her in his home. A sex crime against a minor is considered heinous and detrimental to the long-term physical and mental well-being of the victim. Appellant’s brief itself admits sex crimes against minors are heinous. It is apparent that such a serious crime may carry with it a serious penalty without constituting excessive punishment. See State v. Lachterman, 812 S.W.2d 759 (Mo.App. E.D.1991), overruled on other grounds by State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993). In Lachterman, the trial court found consecutive sentences of 30 years’ imprisonment without probation or parole for two counts of sodomy of a minor boy were not excessive, cruel or unusual, where sentences were within range of punishment prescribed by statute.

Appellant further contends the trial court’s sentence was in response to Appellant exercising his right to a jury trial since Elliott received a lesser sentence for similar conduct. Appellant overlooks that the very jury he requested recommended life sentences. Again, “Section 557.036.1 provides that a trial court shall decide the extent or duration of defendant’s sentence under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant.” State v. Collins, 290 S.W.3d 736, 746 (Mo.App. E.D.2009). “The trial court has a duty to impose a sentence on a case-by-case basis, and to fashion the punishment to both the crime and the criminal.” Id. “We assume the trial court’s experience and expertise enables the trial court to consider appropriate sentencing factors and to disregard improper matters.” Id. “Trial courts have broad discretion in their sentencing function.” Id.

Here, we find no indication the trial court’s sentence punishes Appellant solely for proceeding to trial. Rather, the trial court explained it received and reviewed the SAR and after listening to both parties’ contentions, found neither sentence to be excessive. Before ordering the sentences to run consecutively, the trial court noted its discretion to determine whether the sentences imposed are to run consecutively or concurrently. Appellant does not refer us to any part of the record indicating an effort by the trial court to impose retribution against Appellant for proceeding to trial. We find the trial court considered appropriate sentencing factors. Furthermore, Appellant’s argument that his crimes are to be compared to Elliott as a component in rendering his sentence is unsupported because the law is clear that the imposition of a sentence is to be determined on a case-by-case basis. See Collins, 290 S.W.3d at 746.

We were not present during trial or sentencing. Appellant is asking this Court to substitute its judgment for that of the trial court, which was present to observe and preside over these phases of trial. This we cannot, and will not, do. See State v. Taylor, 746 S.W.2d 102, 105 (Mo.App. W.D.1988) (noting the appellate court is not to substitute its judgment for that of the trial court in considering the appropriateness of a particular sentence).

In light of the seriousness of these crimes, we cannot say the punishment imposed is excessive for the crimes. The trial court did not abuse its discretion. There is no showing the trial court’s decision was against the logic of the circumstances and was so unreasonable as to indicate a lack of careful consideration. Point Y is denied.

The judgment of the trial court is affirmed.

RAHMEYER, P.J., and BATES, J., Concur.

      . All references to statutes are to RSMo 2000, unless otherwise indicated. All rule references are to Missouri Court Rules (2010).

      . Each count alleged that Appellant "had deviate sexual intercourse with [the victim], who was less than twelve years old.” Count I alleged that it occurred "on or about June, 2005” and Count II "on or about April, 2006.”

      .Elliott pled guilty to three counts of second degree statutory sodomy in violation of section 566.064. He was sentenced to seven years’ imprisonment for each count to be served concurrently. He sexually abused the victim in this case, the victim’s friend, and the friend’s sister.

      . The Missouri Children’s Division was formerly known as the "Division of Family Services.”

      . It stated in part: "The conduct of the Defendant constituting 'deviate sexual intercourse' as charged by the State includes the Defendant placing his mouth on the vagina of the victim, and doing so for the purpose of arousing or gratifying his own sexual desire or the sexual desire of the victim.”

      .The second bill of particulars stated: "The conduct of the Defendant constituting 'deviate sexual intercourse' as charged by the State includes the Defendant placing his tongue on the vagina of the victim and placing his finger inside the victim's vagina, and doing so for the purpose of arousing or gratifying his own sexual desire or the sexual desire of the victim.”

      . Appellant seems to argue he was not fully apprised of the charges against him. His point relied on recites:
      The trial court erred in denying the [Appellant’s] motion to exclude the testimony of Dr. Wheeler, allowing the prosecution to present evidence of hand-to-genital contact because the bill of particulars did not include that conduct and the trial court's reliance on the probable cause affidavit to the complaint was not proper to apprise a [Appellant] of the charges against him and robbed him of his rights to due process and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Appellant condemns the trial court for not holding the State to the bill of particulars, although no objection was voiced at trial. His argument claims the bill of particulars was insufficient, which is wholly apart from any objections concerning the admissibility of Dr. Wheeler's trial testimony. However, the second bill of particulars includes the allegation of hand-to-genital contact and Appellant stipulated to the admission of the videotaped interviews into evidence. The interviews contained evidence to support all the allegations.

      . We address Appellant's point challenging sufficiency of the evidence here because it is presented as the second point relied on in his brief. Appellant's third point challenging the admission into evidence of a photograph is taken up after we discuss sufficiency of the evidence simply because it is presented by Appellant in that manner.

      . All allegations of inconsistencies cited by Appellant concern the charge of hand-to-genital contact (Count I).

      . Appellant’s third point does not include any page references to the legal transcript or file; thus, it fails to comply with Rule 84.04(i). Carlson v. Healthcare Services Group, Inc., 215 S.W.3d 382, 383 (Mo.App. S.D.2009). A brief that violates Rule 84.04(i) fails to preserve any error for appellate review. Id. "Under such circumstances, we do not generally dismiss the appeal unless the briefing deficiencies impede disposition of the case on its merits.” Pattie v. French Quarter Resorts, 213 S.W.3d 237, 238 (Mo.App. S.D.2007). Because the State has not objected to this point and we can discern the nature of Appellant's complaints, we choose to exercise our discretion, ex gratia, to review Point III on the merits.

      . The exhibit was filed with this Court and the Court has observed it. It is not inflammatory on its face, and it cannot be concluded that it arouses anger, hostility or passion.

      . Because this Court concludes the trial court did not err in excluding Ms. Boyd’s testimony, we need not address the question of whether she was an untimely disclosed expert.

      . We note Appellant does not challenge the sentences as cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution or Article I § 21 of the Missouri Constitution.


author: JAMES EDWARD WELSH, Judge.

text:
    Aan STANTON, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71646.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.

      Aan Stanton, New York, NY, Appellant Acting Pro Se.
    Ninion S. Riley, Jefferson City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Judge.

Aan Stanton appeals the decision of the Labor and Industrial Relations Commission dismissing his claim for unemployment benefits. The Commission affirmed and adopted the decision of the appeals tribunal dismissing Stanton’s appeal for failure to appear. We dismiss Stanton’s appeal.

Stanton was terminated from his employment with New Prime, Inc., on June 11, 2009. He subsequently filed a claim for unemployment benefits with the Division of Employment Security. New Prime filed a letter of protest alleging that Stanton was discharged because New Prime’s safety department disqualified him due to his having “numerous citations.” A Division deputy issued a determination that Stanton was disqualified from receiving benefits because he was discharged for misconduct connected with work.

Stanton appealed the deputy’s decision to the Division’s appeals tribunal. On August 10, 2009, the appeals tribunal mailed Stanton a “Notice of Telephone Hearing.” The notice set Stanton’s case to be heard by telephone on August 20, 2009, at 12:30 p.m. The notice contained clear instructions directing Stanton to provide an accurate telephone number at which he could be reached at the time of the hearing. The front of the notice said in bold type: “Your case may be dismissed if you fail to provide an accurate telephone number.” In addition to the instructions on the front of the notice, the back of the notice contained further instructions and included these warnings in bold type:

WARNING: FAILURE TO FOLLOW THESE INSTRUCTIONS MAY RESULT IN A DECISION BEING MADE WITHOUT CONSIDERATION OF YOUR EVIDENCE.
If your telephone number does not appear on the front of this notice and you do not report your telephone number by calling the toll-free number on the front, you will not be called for the hearing. It is your responsibility to report a telephone number where you can be reached promptly. The referee will not wait for you to be located or paged. The referee will only dial twice if the provided number is busy or is answered by an answering machine or voice mail.

At 12:30 and 12:35 p.m. on August 20, 2009, the appeals tribunal referee called the number Stanton had provided. Both times, the referee received voice mail. The appeals tribunal dismissed Stanton’s appeal for failure to appear. Thereafter, Stanton filed an application for review with the Commission. In his application, Stanton stated that he “did not understand” that he “was to stay at home on the 20th and wait on a call.” The Commission issued its decision affirming and adopting the appeals tribunal’s decision. Stanton requested that the Commission reconsider its decision, but the Commission denied his request.

Stanton filed this appeal. In his sole point relied on, he claims that the Division deputy’s decision denying him unemployment benefits misapplies the law and is not supported by evidence showing that he willfully and knowingly engaged in misconduct connected with work. Stanton does not allege any error on the part of the Commission with respect to the Commission’s decision to affirm the dismissal of his case for failure to appear at the hearing.

We review the Commission’s decision, however, and not the decision of the Division deputy or appeals tribunal. England v. Regan Mktg., Inc., 939 S.W.2d 62, 65 (Mo.App.1997). Appellate review of the Commission’s decision in employment security matters is governed by section 288.210, RSMo 2000. We may modify, reverse, remand for rehearing, or set aside the Commission’s decision on only these grounds: “(1) the Commission acted without or in excess of its power; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient, competent evidence in the record to warrant the making of the award.” Lewis v. Fort Zumwalt Sch. Dist., 260 S.W.3d 888, 889-90 (Mo.App.2008) (citing § 288.210).

Our review is confined to those points of error that the appellant properly raises on appeal. Id. at 890. In this case, Stanton has failed to allege any reviewable point of error on the part of the Commission. The Commission’s decision upheld the dismissal of Stanton’s case. Stanton, however, does not address this issue in his brief. Rule 84.13(a) provides that “allegations of error not briefed or not properly briefed shall not be considered in any civil appeal.” Furthermore, “ ‘[a] question not presented in an appellant’s brief will be considered abandoned on appeal and no longer an issue in the case.’ ” Lewis, 260 S.W.3d at 890 (citation omitted). Because Stanton’s appeal does not contest the dismissal of his case for failure to appear at the hearing, he has abandoned that issue. Id. Having failed to raise the grounds upon which the Commission dismissed his claim, Stanton presents no appealable issue for this court to review. Id.

We, therefore, dismiss Stanton’s appeal.

All concur.

      . Section 288.190.3, RSMo Cum.Supp.2009, gives the appeals tribunal the authority to dismiss for the appellant’s failure to appear, as it states: "[I]n any case wherein the appellant, after having been duly notified of the date, time, and place of the hearing, shall fail to appear at such hearing, the appeals tribunal may enter an order dismissing the appeal.”


author: GARY W. LYNCH, Presiding Judge.

text:
    BRIAR ROAD, L.L.C., Plaintiff-Respondent, v. LEZAH STENGER HOMES, INC., Defendant-Appellant.
    No. SD 29930.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 16, 2010.

      Craig F. Lowther, Lowther Johnson, Attorneys at Law, L.L.C., Springfield, MO, for Appellant.
    Stuart H. King, Hosmer King & Royce, L.L.C., Springfield, MO, for Respondent.
   GARY W. LYNCH, Presiding Judge.

Lezah Stenger Homes, Inc. (“Stenger Homes”) appeals the judgment of the trial court ordering it to convey Lot 23, Spring Creek Phase VI (“the property”), to Briar Road, L.L.C. (“Briar Road”). Finding no merit in any of Stenger Home’s five points on appeal, we affirm the judgment.

Factual and Procedural Background

Stenger Homes and George W. Hull and Minnie J. Hull entered into a written Lease Agreement with Option to Purchase (“Lease”) of the property on October 31, 2001. Paragraph fifteen of the Lease set forth an option to purchase in favor of the Hulls that specified a sale price of $198,500.00, if exercised, with the Hulls receiving full credit for a $56,000.00 nonrefundable option payment, leaving a balance of $142,500.00 due to Stenger Homes at closing. Paragraph five of the Lease provided that the Hulls would not “assign or sublet the [property] without the written consent of [Stenger Homes], which consent shall not be unreasonably withheld.” By its terms, the Lease was to terminate on October 31, 2003, but the parties agreed to extend all its terms and conditions, including the option to purchase, on a month by month basis. Sten-ger Homes advised the Hulls by letter dated January 81, 2006, that the Hulls had until April 1, 2006, to exercise the option to purchase the property and until June 1, 2006, to close.

In November 2005, the Hulls assigned their option to purchase the property to Briar Road, which is a limited liability company. The Hulls were its original members. On March 24, 2006, the Hulls’ attorney notified Stenger Homes in writing of their intent to exercise the option to purchase the property in accordance with the terms of the Lease as extended. The same letter informed Stenger Homes that the property was under contract for sale to a third party, with a tentative closing set for April 14, 2006. The closing did not occur because on April 6, 2006, Stenger Homes sent a letter to the Hulls’ attorney, who also represented Briar Road, stating that

[Stenger Homes] has received correspondence from Great American Title that [the Hulls] have assigned their interest in the Lease Agreement with Option to Purchase to [Briar Road]. I then spoke with C.J. King, who sent copies of the Articles of Incorporation and Operating Agreement to me. This Lease Agreement is not assignable without the written consent of [Stenger Homes]. [Stenger Homes] does not consent to the assignment and will not, under any circumstances deed the property to anyone other than [the Hulls].

Briar Road filed its initial petition in the Circuit Court of Greene County on April 19, 2006, five days after the closing on the property failed to occur. In an earlier appeal, this Court reversed the trial court’s grant of summary judgment in favor of Stenger Homes and remanded the case to the trial court for further proceedings. Briar Road, L.L.C. v. Lezah Stenger Homes, Inc., 256 S.W.3d 131 (Mo.App.2008) (“Briar Road I ”).

At the trial following remand, the Hulls’ real estate agent, C.J. King, testified that before November 4, 2005, and before listing the property for sale, she inquired of Ron Stenger — acting on behalf of Stenger Homes — as to whether Stenger Homes would transfer the property to a limited liability company formed by the Hulls. King testified that Stenger answered affirmatively. King further testified that she had many conversations with representatives of Stenger Homes between the March 24, 2006, notice of the Hulls’ exercise of the option and the scheduled closing on April 14, 2006, and afterward, all in an attempt to figure out a plan to close on the property.

The trial court entered its judgment expressly finding, inter alia, that “[o]n November 4, 2005, the Hulls executed their Assignment of Rights in favor of Briar Road” and that “[t]he Hulls and Briar Road intended and agreed that the assignment of the option to purchase the [property] would be effective upon and following the Hulls’ notice of exercise of their option to [Stenger Homes].” In addition, the trial court found “no basis for requiring consent to the assignment of the contract to purchase the real estate [.] ” The judgment ordered Stenger Homes to convey the property to Briar Road by warranty deed and to pay damages for breach of contract, damages for diminution in value of the property, and interest. Stenger Homes timely appealed.

Standard of Review

As this was a court-tried case, we review pursuant to the well-known principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. “[W]e accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence.” Deck v. Deck, 64 S.W.3d 870, 873 (Mo.App.2002). We recognize the superior position of the trial court in assessing factors such as credibility, sincerity, and character of the witnesses. Id.

Discussion

The trial court’s finding of the existence of an assignment is supported by substantial evidence and is not against the weight of the evidence

Stenger Homes’ first point challenges the trial court’s factual finding that Briar Road was assigned the rights to the option to purchase the property pursuant to an assignment of rights agreement executed by the Hulls. Stenger Homes claims that there was no substantial evidence to support the trial court’s conclusion and it was against the weight of the evidence because the purported assignment of rights document, Plaintiffs Exhibit 7, was never admitted into evidence. Specifically, Stenger Homes asserts that there was no substantial evidence supporting the trial court’s finding that Briar Road was a proper assignee of the option to purchase without the admittance of that document into evidence. Before discussing this point, however, we must address a preliminary matter — what is Plaintiffs Exhibit 7?

Unfortunately, Stenger Homes chose not to deposit Plaintiffs Exhibit 7 with this Court. See Rule 81.16(a); Southern District Special Rule 4. While Stenger Homes in its brief refers to Plaintiffs Exhibit 7 as the “purported Assignment of Rights,” in the absence of this exhibit, we are unable to confirm from the record before us that this exhibit is the original assignment of rights document relied upon by Briar Road. Likewise, in its absence, we cannot definitively determine whether Plaintiffs Exhibit 7 is one and the same document referred to as the “Assignment of Rights” dated November 4, 2005, in our opinion in Briar Road I, 256 S.W.3d at 133.

As the appellant here, Stenger Homes had the obligation and duty to provide a full and complete record on appeal. Rule 81.12(c) and (e); Smith v. Associated Natural Gas Co., 7 S.W.3d 530, 535 (Mo.App.1999). When an exhibit is not deposited with this Court, “the intendment and content of the exhibit [will be] taken as favorable to the trial court’s ruling and as unfavorable to the appellant.” Brown v. Brown, 14 S.W.3d 704, 708 n. 5 (Mo.App.2000).

The record reflects that before Briar Road initially offered Plaintiffs Exhibit 7 into evidence, Plaintiffs Exhibit 33 had been admitted into evidence without objection. Plaintiffs Exhibit 33 is Stenger Homes’ amended responses to Briar Road’s request for admissions of facts and genuineness of documents. Therein, Sten-ger Homes admitted, among other matters, that “on November 4, 2005, the Hulls assigned their option to purchase the subject real property to Briar Road, LLC”; that Exhibit C to the petition was “a true and accurate photocopy of an Assignment of Rights executed by George W. Hull and Minnie J. Hull on November 4, 2005”; and that Stenger Homes was aware of “no basis in law or in fact to dispute that Exhibit C to the Petition filed herein is a true and accurate photocopy of an Assignment of Rights executed by George W. and Minnie J. Hull on November 4, 2005.” Exhibit C is a copy of a document entitled “Assignment of Rights,” dated November 4, 2005. An identical copy of this document is attached as Exhibit C to Briar Road’s first amended petition. Additionally, the wording of the document attached as Exhibit C to both petitions is identical to the wording of the “Assignment of Rights” dated November 4, 2005, set forth verbatim in Briar Road I, 256 S.W.3d at 133.

In light of Plaintiffs Exhibit 33, as well as both parties’ apparent concessions that Plaintiffs Exhibit 7 is the original assignment of rights document, this opinion will presume that an examination of Plaintiffs Exhibit 7 would support that it is the original “Assignment of Rights” document dated November 4, 2005, a copy of which was attached as Exhibit C to Briar Road’s initial and first amended petitions and thereafter referenced in Briar Road’s requests for admissions of facts and genuineness of documents and Stenger Homes’ responses to such requests, and the document set forth verbatim and referred to as “Assignment of Rights” dated November 4, 2005, in Briar Road I. With this preliminary matter resolved, we now turn to our discussion of Stenger Homes’ point.

The premise of Stenger Homes’ point— the assignment document was not admitted into evidence — is incorrect. When Plaintiffs Exhibit 7 was first offered into evidence by Briar Road, the trial court sustained Stenger Homes’ lack-of-foundation objection and declined to admit the document. When Briar Road next attempted to admit Plaintiffs Exhibit 7, Stenger Homes objected on the basis of lack of foundation and hearsay. The trial court responded, “Well I’m going to — I’m going to stick with my [sic] objection until I get a chance to reread this. I’ve read it a hundred times, but I can’t — I sleep, and then some of it goes away.” On the third and final attempt at admission, the trial court stated that it would “stay with [its] ruling on it, but ... place it in here to supplement the record [.] ” The final remark made by the trial court about Plaintiffs Exhibit 7, however, was, “I’m going to read your cases before I make a final decision. At this point I’m going to stay with my guns on the objection.” The trial court’s last statement and its statement after the second offer indicate that the trial court considered its rulings up to that point to be interlocutory and that the exhibit’s admission into evidence was subject to a final decision by the trial court before entering its judgment but after rereading а, document or documents and reading some proffered cases.

In its judgment, the trial court expressly found that “[o]n November 4, 2005, the Hulls executed their Assignment of Rights in favor of [Briar Road].” Because the trial court in its judgment relied on facts supported only by Plaintiffs Exhibit 7 and specifically referenced the document marked as Plaintiffs Exhibit 7 by its title, “Assignment of Rights,” the only logical conclusion is that the trial court reconsidered its previous interlocutory rulings and finally admitted Plaintiffs Exhibit 7 into evidence. Cf. In re Estate of Graham, 59 S.W.3d 15, 21 (Mo.App.2001) (“to hold now that the documents were not in evidence would be contrary to the actions of the court”). Stenger Homes’ contrary premise is nothing more than an illogical attempt to pull up its point by its own bootstraps.

Stenger Homes’ point relied on does not address or challenge in any manner the admissibility of Plaintiffs Exhibit 7 on appeal. That exhibit supports the trial court’s finding that “[o]n November 4, 2005, the Hulls executed their Assignment of Rights in favor of [Briar Road][,]” such that this finding is supported by substantial evidence and is not against the weight of the evidence. Stenger Homes’ first point is denied.

The trial court’s finding that the Hulls and Briar Road intended and agreed that the assignment was to become effective at a later date is supported by substantial evidence and is not against the weight of the evidence

Stenger Homes’ second point asserts that there was “no evidence that the parties to the assignment had any intent or agreement that the assignment of the option to purchase would not be effective until the Hulls provided notice of the exercising of their option.” Thus, Stenger Homes argues that the trial court’s finding that “[t]he Hulls and Briar Road intended and agreed that the assignment of the option to purchase the [property] would be effective upon and following the Hulls’ notice of exercise of their option to [Stenger Homes]” is not supported by substantial evidence and is against the weight of the evidence. Because we find that the trial court’s finding is a reasonable inference drawn from the circumstantial evidence before it, we disagree.

“This court does not determine what the trial court could have found; instead, it determines whether the trial court’s actual finding is unsupported by substantial evidence or against the weight of the evidence.” McCoy v. Scavuzzo, 250 S.W.3d 1, 9 (Mo.App.2008). For both challenges, we assess the evidence that supports the trial court’s finding, and for against-the-weight-of-the-evidence challenges, we evaluate the remaining portions of the record on appeal as well. See Houston v. Crider, 317 S.W.3d 178, 186-88 (Mo.App. S.D.2010).

The “Assignment of Rights” dated November 4, 2005, does not specify when or under what conditions it was to become effective. The Hulls, not Briar Road, gave notice of their intent to exercise the option, more than four months following their execution of the assignment of rights document. King, the Hulls’ real estate agent, testified that after the Hulls exercised their option to purchase, she provided a copy of the assignment of rights document to the closing company. King testified that Briar Road never asserted any rights as a tenant and did not want to be a tenant of the property. Likewise, Ron Stenger acknowledged that Briar Road never attempted to act as a tenant of the property, never paid rent, and never notified Sten-ger Homes that it had any claim to be a tenant. In summary, Briar Road took no actions as a tenant in the four months between the assignment of rights document and the exercise of the option by the Hulls, the exercise of the option was done in the name of the Hulls and not Briar Road, and the assignment of rights document was presented only after the option was exercised. The record thus contains evidence from which the trial court could reasonably draw the inference that the parties intended and agreed for the assignment to be effective only after the Hulls exercised their option to purchase, and there is no contradictory testimony or evidence in the record.

Substantial evidence supports the trial court’s finding that the parties to the assignment intended and agreed that the assignment was to become effective only upon notice of the Hulls’ intent to exercise the option to purchase, and with no contrary evidence in the record, this finding is not against the weight of the evidence. Stenger Homes’ second point is denied.

The trial court’s conclusion that Stenger Homes’ consent was not required for a valid assignment of the option to purchase was not an erroneous declaration or application of the law

In its third point, Stenger Homes contends that the trial court erroneously declared or applied the law when it held that the consent of Stenger Homes was not required for the assignment of rights from the Hulls to Briar Road. Stenger Homes asserts that “paragraph 5 of the Lease specifically provided that the Hulls shall not assign or sublet the Premises without the written consent of Stenger Homes and such requirement also applies to the assignment of the option of the right to purchase the [property].”

The first sentence of paragraph five of the Lease with Option to Purchase provides: “[The Hulls] shall not assign or sublet the Premises without the written consent of [Stenger Homes], which consent shall not be unreasonably withheld.” “Premises” is defined in that agreement as “real estate legally described as: All of Lot 23 in Spring Creek Phase VI, a subdivision in Springfield, Greene County, Missouri.”

The law on this issue was resolved in Briar Road I, wherein this Court stated that

with respect to the exercise of the option that was part of the Lease Agreement with Option to Purchase, there is authority for the proposition that when a tenant who possesses an option to purchase the leased real estate exercises that option, the landlord is bound to convey the real estate in compliance with the option agreement; that by exercising the option the tenant has a right to assign its rights pursuant to the terms of the option without the landlord’s consent. See Leegar Realty Corp. v. Electromatic Mfg. Corp., 272 A.D. 1069, 74 N.Y.S.2d 766 (1947). See also 3 Thompson on Real Property, § 1156, pg. 573 (1980); 52 C.J.S. Landlord and Tenant § 119 pg. 186 and § 128 pg. 198 (2003). Once a lessee exercises an option to purchase leased real estate, the lessee is in possession of that property pursuant to a contract to purchase. Bullock v. Cutting, 155 A.D. 825, 140 N.Y.S. 686, 688 (1913). The contract to purchase that is created upon the exercise of the option is separate and apart from the lease agreement. Id., 140 N.Y.S. at 688. A requirement in the lease agreement that the lessor consent to the assignment of the lease is not necessarily applicable to the contract to purchase the real estate that results from the exercise of the option. Id. Whether there is a basis for requiring consent to the assignment of the contract to purchase the real estate to defendant separate from the requirement for consent to be given to the assignment of the lease may be addressed at trial.

256 S.W.3d at 139.

From the evidence adduced at trial, the trial court concluded that “upon the Hulls’ exercise of the option to purchase on March 24, 2006, the lease agreement was terminated and the parties were left with a bilateral contract,” and that there was no basis for requiring consent to the assignment of the purchase option separate from the consent to be given to the assignment of the lease.

An option vests the buyer with the power of acceptance, and once the buyer accepts the offer in the prescribed manner, the option is considered exercised so as to create a binding bilateral contract. In re Estate of Schulze, 105 S.W.3d 548, 550 (Mo.App.2003). Upon the exercise of the option by the Hulls on March 24, 2006, the lease agreement was terminated, and the parties were left with a bilateral real estate contract. Id. At that moment, the assignment from the Hulls to Briar Road became effective, unless the consent of Stenger Homes to such assignment was required by paragraph five of the Lease.

As observed in Briar Road I and quoted above, a provision in a lease requiring consent of the lessor to assign the premises is not necessarily applicable to a contract to purchase the premises created by the exercise of an option to purchase contained in that lease. Briar Road I, 256 S.W.3d at 139. The trial court received testimony on the purposes of the Lease’s consent requirement and whether there was an independent basis for requiring consent to assign the real estate contract created by the exercise of the option to purchase contained in the Lease. That evidence consisted of the testimony of Stephanie Montgomery, an officer and director of Stenger Homes, and a judicial admission that Stenger Homes’ trial counsel made during the testimony of Ron Stenger.

During her testimony, Montgomery acknowledged that the Lease was a form document used by Stenger Homes and that the Hulls neither proposed additions nor changes to any of the language in the form. When asked about the purpose of the consent requirement in the Lease, Montgomery explained that it was put in the document so that Stenger Homes “would have control over who lived in the home that we owned.” Montgomery proffered no basis or purpose for the application of the Lease’s consent requirement to the assignment of the contract to purchase created by an exercise of the option to purchase.

Counsel for Briar Road sought to inquire of Ron Stenger during his testimony as to the existence of any other purposes for the consent requirement in the Lease when trial counsel for Stenger Homes interposed the following objection:

[COUNSEL]: Well, Your Honor, the lease itself contains the assignment provision. It’s not in the option to purchase, and the option to purchase was not right [sic] whenever that was put in the lease. The purpose of the lease is exactly what [plaintiffs counsel] has just stated. The landlord wants to know who’s there and whether or not they can pay.
So at the time he’s asking about the purpose — and I’m going to object to him framing this as an option to purchase— why would you care as long as someone gets the money? He’s getting the cart after the horse here because the critical time on why it was there is when it was a lease, not when it was an option to purchase.

A judicial admission can be made by a party or an attorney. Francis v. Richardson, 978 S.W.2d 70, 73 (Mo.App.1998). It is “a more or less formal act done in the course of judicial proceedings which waives or dispenses with the production of evidence and concedes for the purpose of the litigation that a certain proposition is true.” Id. (quoting Hewitt v. Masters, 406 S.W.2d 60, 64 (Mo.1966)). Its effect is to remove “the proposition in question from the field of disputed issues in the particular case wherein it is made.” Id. (quoting Mitchell Engineering Co. v. Summit Realty Co., Inc., 647 S.W.2d 130, 140 (Mo.App.1982)).

Stenger Homes’ trial counsel attempted to limit the scope of Briar Road’s inquiry of Ron Stenger as to the purpose of the consent requirement in the Lease by conceding that its purpose was only related to the landlord’s desire “to know who’s there and whether or not they can pay [,] ” and had nothing to do with the option to purchase because “why would you care as long as someone gets the money?” Briar Road and the trial court had the right to rely upon these concessions and the consequent removal of this disputed issue from the case. Id.

The trial court concluded that the testimony did nothing to establish any independent underlying basis for a purchase-option consent requirement. Because this fact issue is a matter of witness credibility, we defer to the trial court’s superior opportunity to assess credibility, sincerity, and character. See Deck, 64 S.W.3d at 873. Taking this view of the facts, as we must, and coupled with the judicial admission by Stenger Homes’ trial counsel, we find no basis to conclude that the trial court either erroneously declared or applied the law. Stenger Homes’ third point is denied.

Stenger Homes’ fourth and fifth points are moot

In its fourth point, Stenger Homes challenges the trial court’s holding that Sten-ger Homes did not have a reasonable basis on which to withhold consent to the assignment. This issue is moot pursuant to our finding that consent was not required in the first instance, as discussed above under Stenger Homes’ third point.

In its fifth point, Stenger Homes claims that the trial court erroneously held that the Hulls had the right to exercise the option to purchase the property on March 24, 2006, because if the November 4, 2005, assignment was valid, as the trial court held, the Hulls were divested of their option on that date. Because the parties intended and agreed for the assignment to become effective upon the Hulls’ notice of their intent to exercise the option, as we discussed under Stenger Homes’ second point, this issue is also moot.

Decision

The trial court’s judgment is affirmed.

RAHMEYER, J., and FRANCIS, J., concur.

      . Briar Road’s motion for leave to file a supplemental legal file, taken with the case, is sustained, and the supplemental legal file is deemed filed.

      . In its brief, Briar Road objects to Stenger Homes’ inclusion of a line in their Statement of Facts which reads, “Additionally, [Stenger Homes] had no information that either the Hulls or [Briar Road] had the money to close or the ability to perform under the option to purchase.” Briar Road asserts that Stenger Homes knew that Briar Road’s contract price with the third party was higher than the purchase price under the option to purchase. We agree that the record supports that Sten-ger Homes had knowledge of the terms of the proposed closing to the third party on April 14, 2006, sufficient to allay fears of inability to close, and we sustain the objection and order the line stricken accordingly.

      . Briar Road objects to statements in Stenger Homes' statement of facts in its brief regarding Stenger Homes’ lack of prior knowledge of and consent to the assignment from the Hulls to Briar Road. While it is unclear from the record whether Stenger Homes consented to the specific assignment to Briar Road, through King's testimony it is evident that Stenger Homes had knowledge of the Hulls’ desire to assign their option to purchase to an unidentified limited liability company and that it acquiesced to such an assignment. Therefore, we sustain Briar Road's objection and order those statements stricken.

      . In its brief filed with this Court in Briar Road I, Stenger Homes represented to this Court that "[tjhere is no dispute that the purported assignment of rights was made upon [sic] November 4, 2005.”

      . Stenger Homes' trial counsel premised this objection on the fact that "there’s been ... no discussion of it whatsoever." Apparently, trial counsel's objection was based on his belief that the exhibit had not been properly authenticated. See Partney v. Reed, 889 S.W.2d 896, 901 (Mo.App.1994) ("Before a writing can be admitted into evidence its proponent must show that it is, in fact, what it is claimed to be."). Stenger Homes' trial counsel later supported this objection by further arguing to the trial court that "no witness has testified about Plaintiff’s Exhibit 7" and "I’m entitled to cross-examine somebody regarding the assignment of rights, which is at the-at the heart of this case." While the most common method of authentication may be through the testimony of a witness, authentication can be proved by other methods as well. See William A. Schroeder, 23 Missouri Practice, Missouri Evidence § 900.1 (3d ed.2008). One of these alternative methods of authentication is through the use of requests for admissions and responses thereto, as authorized by Rule 59.01. Id.

      Stenger Homes' appellate counsel in this appeal was not its trial counsel.
      All rule references in this opinion are to Missouri Court Rules (2010).

      . Nothing in the record identifies the document or documents the trial court was going to reread.

      . Briar Road correctly points out that Stenger Homes' point contains no list of legal authority immediately following it as required by Missouri Court Rule 84.04(d)(5). We prefer to decide a point on its merits rather than dismiss it for briefing deficiencies, but we will generally only do so where the argument and point relied on together are sufficient to ascertain the issues being raised. Stangeland v. Stangeland, 33 S.W.3d 696, 703 (Mo.App.2000). "Although deficient points preserve nothing for appellate review, we may choose to review them if the deficiency does not impede a disposition on the merits." DeLong

        Plumbing Two, Inc. v. 3050 N. Kenwood LLC, 304 S.W.3d 784, 788 (Mo.App.2010). Briar Road relies on Eagle ex rel. Estate of Eagle v. Redmond, 80 S.W.3d 920, 924 (Mo.App.2002), for the proposition that an appellate court cannot reach the merits of a claim of error where arguments about the claim are not developed. But here, that is not the case. We find that the point relied on and the associated arguments adequately delineate the issue being raised. See Stangeland, 33 S.W.3d at 703.