author: KURT S. ODENWALD, Presiding Judge.

text:
    Mary SN DOE, Appellant, v. ROMAN CATHOLIC ARCHDIOCESE OF ST. LOUIS, an unincorporated association, and Archbishop Raymond Burke, of the Archdiocese of St. Louis, MO, Respondents.
    No. ED 93007.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 23, 2010.
    Application for Transfer to Supreme Court Denied March 29, 2010.
    Application for Transfer Denied June 29, 2010.

      Marci A. Hamilton, Washington Crossing, PA, Patrick W. Noaker, Jeff Anderson & Associates, St. Paul, MN, Kenneth M. Chackes, M. Susan Carlson, Chackes, Carlson & Spritzer, LLP, St. Louis, MO, Rebecca M. Randles, Randles, Mata & Brown Kansas City, MO, for Appellant.
    Edward M. Goldenhersh, Bernard C. Huger, Robert L. Duckels, Kirsten M. Ahmad, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for Respondents.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Plaintiff Mary SN Doe (Appellant) appeals the trial court’s dismissal of certain negligence-based claims contained in her action filed against the Roman Catholic Archdiocese of St. Louis (Archdiocese) and Archbishop Raymond Burke (Archbishop). We affirm the trial court’s dismissal.

Facts and Procedural Background

Appellant alleges she was sexually abused by Father William Poepperling when she was approximately four to six years of age in the late 1950s. Appellant attended Holy Guardian Angels Church in St. Louis, Missouri, where Father Poep-perling served. Fr. Poepperling died on May 18,1983.

Appellant filed this suit against the Archdiocese and Archbishop (Respondents) on April 26, 2005, and filed an Amended Petition on January 29, 2008. Appellant alleged six counts: (I) Child Sexual Abuse and/or Battery; (II) Breach of Fiduciary Duty; (III) Negligence; (IV) Negligent Supervision, Retention, and Failure to Warn; (V) Intentional Failure to Supervise Clergy; and (VI) Negligent Supervision of Children.

As to counts III, IV, and VI (hereinafter referred to as “negligence-based counts”), Appellant alleged that Fr. Poep-perling “was under the direct supervision, employ and control of’ Respondents, and that “[a]ll acts of sexual abuse ... took place during functions in which Fr. Poep-perling had custody or control of [Appellant] in his role as a priest and authority figure.” Appellant alleged that Respondents “reasonably should have known of Fr. Poepperling’s dangerous and exploitive propensities.” Appellant alleged that, despite such knowledge, Respondents failed to: (1) protect her from Fr. Poepperling’s sexual abuse; (2) remove Fr. Poepperling; (3) supervise Fr. Poepperling in his position of trust and authority as a Roman Catholic priest; or (4) provide adequate warning to her and her family of Fr. Po-epperling’s dangerous proclivities.

On February 8, 2008, Respondents filed a Motion to Dismiss Counts I, II, III, IV, and VI. On May 23, the trial court entered an order granting Respondents’ motion and dismissing each of those counts.

On September 12, 2008, Respondents filed a Motion for Summary Judgment with respect to Count V. On April 10, 2009, the trial court entered an order and judgment granting Respondents summary judgment on Count V, and subsequently entered final judgment as to all six counts contained in Appellant’s Amended Petition.

Appellant appeals to this Court only the trial court’s dismissal of Counts III, IV, and VI, the negligence-based counts.

Trial Court’s Dismissal of Negligence-Based, Counts

In dismissing Appellant’s pure negligence claim (Count III) and negligent supervision of children claim (Count VI), the trial court, relying on Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997), explained that “ [i]n order to determine how a ‘reasonably prudent Archdiocese’ would act, a court would have to excessively entangle itself in religious doctrine, policy, and administration.” (internal citation omitted). Thus, the trial court concluded that a “claim of negligence can not [sic] be maintained against [Respondents] as it violates the First Amendment.”

In dismissing Appellant’s claim for negligent supervision, retention, and failure to warn (Count IV), the trial court again relied upon Gibson for its findings. The trial court separately addressed Appellant’s negligent supervision, negligent retention, and negligent failure to warn allegations. As to Appellant’s negligent supervision allegation, the trial court found that “adjudicating the reasonableness of a church’s supervision of a cleric requires inquiry into religious doctrine that is prohibited by the First Amendment to the U.S. Constitution.” As to her negligent retention allegation, the trial court found that “questions of hiring, ordaining, and retaining clergy ‘necessarily involve interpretation of religious doctrine, policy, and administration’ that has the effect of inhibiting religion in violation of the First Amendment.” (internal citation omitted). As to her negligent failure to warn allegation, the trial court found that “[i]n order to determine whether [Respondents] owed [Appellant] a duty to warn, a court would have to excessively entangle itself in religious doctrine, policy, and administration.” Thus, the trial court concluded that “[t]he claims in Count IV must be dismissed.”

Point on Appeal

In her sole point on appeal, Appellant contends that the trial court erred in dismissing her three negligence-based counts pursuant to the Missouri Supreme Court’s decision in Gibson because Gibson fails to comport with United States Supreme Court precedent.

Preservation of Issue for Appeal

An issue that was never presented to or decided by the trial court is not preserved for appellate review. State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo. banc 2000); Rule 84.13(a).

Respondents characterize Appellant’s point on appeal as an invocation of Supremacy Clause principles, which undermine the trial court’s reliance on Gibson. Respondents further argue that Appellant has raised her Supremacy Clause argument for the first time on appeal, and therefore, has not preserved this argument for appeal. We note that Appellant did not expressly refer to the Supremacy Clause, or the general principle that the United States Supreme Court provides the ultimate authority on interpretations of federal constitutional law in its pleadings filed with the trial court. However, Appellant’s Response to Respondents’ Motion to Dismiss posited that the Missouri Supreme Court in Gibson “mishandled the overall First Amendment issues.” In so asserting, Appellant carefully examined United States Supreme Court jurisprudence regarding the Free Exercise Clause, the Establishment Clause, and judicial abstention in intra-church disputes. Therefore, we conclude that Appellant sufficiently presented her argument to the trial court, and has preserved her Supremacy Clause challenge to the trial court’s dismissal of the negligence-based counts.

Standard of Review

An appellate court reviews a trial court’s grant of a motion to dismiss de novo. Moynihan v. Gunn, 204 S.W.3d 230, 232-33 (Mo.App. E.D.2006). When reviewing the dismissal of a petition for failure to state a claim, appellate courts treat the facts contained in the petition as true and construe them liberally in favor of the plaintiffs. Id. at 233.

Discussion

I. Gibson v. Brewer

In Gibson, a plaintiff alleged that a member of a diocese’s clergy sexually abused him. The defendant-diocese contested the plaintiffs allegations of (1) negligent hiring/retention of clergy, (2) negligent supervision of clergy, and (3) pure negligence. Gibson, 952 S.W.2d at 246-50. The Supreme Court of Missouri held that the United States Constitution’s Free Exercise and Establishment Clauses in the First Amendment commanded dismissal of such negligence-based claims against religious institutions. Id. In so holding, Gibson analyzed United States Supreme Court precedent and reasoned that:

Religious organizations are not immune from civil liability for the acts of their clergy. If neutral principles of law can be applied without determining questions of religious doctrine, polity, and practice, then a court may impose liability. Id. at 246 (internal citations omitted).
Questions of hiring, ordaining, and retaining clergy, however, necessarily involve interpretations of religious doctrine, policy and administration. Such excessive entanglement between church and state has the effect of inhibiting 'religion, in violation of the First Amendment. Id. at 246-47 (internal citations omitted).
By the same token, judicial inquiry into hiring, ordaining, and retaining clergy would result in an endorsement of religion, by approving one model for church hiring, ordination, and retention of clergy. A church’s freedom to select clergy is protected ‘as a part of the free exercise of religion against state interference.’ Ordination of a priest is a ‘quintessentially religious’ matter, ‘whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals of this hierarchical church.’ Id. at 247 (internal citations omitted).
Adjudicating the reasonableness of a church’s supervision of a cleric — what the church ‘should know1 — requires inquiry into religious doctrine.... [Tjhis would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision. Id. at 248 (internal citations omitted).

II. Merits of Appeal

As mentioned above, Appellant in this case implores us, an intermediate appellate court in the State of Missouri, to disregard clearly established precedent from the Missouri Supreme Court and permit her the opportunity to sustain a negligence action inquiring into whether Respondents “took due care in dealing with an employee who has access to children.” Appellant argues that Gibson’s conclusion, which grants immunity to religious organizations for certain negligence claims, mishandled the First Amendment issue and ignored United States Supreme Court precedent. In addressing the merits of this appeal, our discussion begins and ends with the constraints of our judicial authority vested by the Missouri Constitution.

Missouri’s Constitution expressly states that the Missouri Supreme Court “shall be the highest court in the state” and that its “decisions shall be controlling in all other courts.” Mo. Const, art. V, Section 2. As such, we are “constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court,” and inquiries questioning the correctness of such a decision are improper. Independence-Nat. Educ. Ass’n v. Independence Sch. Dist., 162 S.W.3d 18, 21 (Mo.App. W.D.2005) (holding a “claim that the Mis souri Supreme Court has incorrectly decided a previous case or cases is not cognizable in the Missouri Court of Appeals”); Noe v. Pipe Works, Inc., 874 S.W.2d 502, 504 (Mo.App. E.D.1994) (“[W]e are constitutionally without authority to overrule the controlling decisions of the Supreme Court”).

Though meriting our respect, decisions of the federal district and intermediate appellate courts and decisions of other state courts are not binding on us. State v. Mack, 66 S.W.3d 706, 710 (Mo. banc 2002) (holding “general declarations of law made by lower federal courts do not bind this Court”); Craft v. Philip Morris Co., Inc., 190 S.W.3d 368, 380 (Mo.App. E.D.2005) (holding that “[o]ut-of-state appellate decisions do not constitute controlling precedent in Missouri courts”). Decisions of the United States Supreme Court on matters of federal law, however, bind all state courts. See Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 221, 51 S.Ct. 453, 75 L.Ed. 983 (1931) (holding that United States Supreme Court determinations of federal questions bind all state courts and must be followed notwithstanding any contrary state decision); see Kraus v. Bd. of Educ. of City of Jennings, 492 S.W.2d 783, 784-85 (Mo.1973) (“State court judges in Missouri are bound by the ‘supreme law of the land,’ as declared by the Supreme Court of the United States.”) (internal citation omitted).

Thus, a Missouri Supreme Court interpretation of federal constitutional law constitutes the controlling law within our state until either the Missouri Supreme Court or the United States Supreme Court declares otherwise. See Martin, 283 U.S. at 221, 51 S.Ct. 453. While some authority suggests that an intermediate state appellate court should not follow decisions of its state supreme court when those decisions plainly conflict with those of the United States Supreme Court on a federal question, such suggestion is inconsequential to our review as our examination of United States Supreme Court precedent reveals no decision either directly questioning Gibson’s reasoning nor contradicting its holding; nor can we conclude that Gibson plainly conflicts with a controlling decision of the United States Supreme Court. Though numerous federal courts and out-of-state courts diverge on the issue of whether the religion clauses in the First Amendment bar plaintiffs from asserting certain negligence claims against religious institutions, those decisions do not authoritatively direct us to revisit a First Amendment analysis already conducted by the Supreme Court of Missouri. Such decisions merely inform us that reasonable courts disagree as to the application of First Amendment law to the facts at bar. Appellant devoted a considerable portion of her brief citing and summarizing the numerous lower federal court decisions and state court decisions supporting her underlying premise that the First Amendment does not prevent her causes of action for negligence. However, Appellant cites no United States Supreme Court case supporting her position, and cites no binding precedent that allows us to ignore the Missouri Supreme Court’s holding in Gibson. Simply stated, the Gibson Court held that the First Amendment barred the assertion of tort claims against a religious institution based on its alleged negligence in supervising/retaining/hiring sexually abusive clerics. Gibson, 952 S.W.2d at 246-50. Until the Missouri Supreme Court or the United States Supreme Court declares differently, Gibson constitutes controlling law in Missouri, law which we are bound to apply. As such, the trial court did not err in relying on Gibson to dismiss Appellant’s negligence-based counts as a matter of law.

Conclusion

The trial court’s judgment is affirmed as it properly applied Gibson, a controlling decision of the Missouri Supreme Court.

GEORGE W. DRAPER III, and GARY M. GAERTNER, JR., JJ., Concur.

      . Appellant’s Notice of Appeal seeks appellate review of the trial court's Order granting summary judgment as to one count and of the trial court's Order dismissing the remaining five counts. In her brief, Appellant affirmatively states that she is limiting her appeal to only the trial court’s dismissal of Counts III, IV and VI, the negligence-based counts. Appellant had abandoned her appeal as to Counts I, II, and V.

      . All references are to Mo. R. Civ. P.2008, unless otherwise indicated.

      . The Gibson Court expressly acknowledged that "this Court does not address the applicability, if any, of the Missouri Constitution to this case." Gibson, 952 S.W.2d at 246.

      . State v. Ward, 231 Wis.2d 723, 604 N.W.2d 517, 525 (2000) ("Our decisions interpreting the United States Constitution are binding law in Wisconsin until this court or the United States Supreme Court declares a different opinion or rule.”); 21 C.J.S. § 216 (2006).

      . An annotation to Art. 5, Section 2 of the Missouri Constitution provides a citation to State ex rel. Mason v. Springfield African Soc. & Improvement Club, 169 Mo.App. 137, 154 S.W. 458, 458-62 (1913) for this proposition. See also 21 C.J.S. § 216 (2006).

      . The United States District Court for the Eastern District of Missouri has addressed the same issue as Gibson — whether the First Amendment bars negligence actions against a religious institution for failing to supervise its sexually abusive clerics. In several instances, this federal district court held that because Gibson circumscribed Missouri’s negligence law pursuant to the federal constitution, it had a duty to conduct its own constitutional determination. In so doing, at least two decisions clearly held, contrary to Gibson, that the religion clauses in the First Amendment do not bar state claims of negligent hiring, retention, and supervision against a religious institution. Perry v. Johnston, 654 F.Supp.2d 996, 1003 (E.D.Mo.2009); John Doe CS v. Capuchin Franciscan Friars, 520 F.Supp.2d 1124, 1137 (E.D.Mo.2007).

      .Among the cases aligned with Gibson, decisions by the supreme courts of Maine and Wisconsin provide insight into the rationale for concluding that First Amendment considerations bar certain negligence claims against a religious institution. See Swanson v. Roman Catholic Bishop of Portland, 692 A.2d 441, 445 (Me.1997) (acknowledging that because a plaintiff's attack on the reasonableness of a church’s mercy towards a sexually abusive cleric may hinge on beliefs in penance, admonition and reconciliation as a sacramental response to sin, "[clerics] cannot be treated in the law as though they were common law employees” and it would be "unconstitutional ... to determine ... that the ecclesiastical authorities negligently supervised or retained [them]"); L.L.H. v. Clauder, 209 Wis.2d 674, 563 N.W.2d 434, 441 (1997) (acknowledging that "due to [a] strong belief in redemption, a bishop may determine that a wayward priest can be sufficiently reprimanded through counseling and prayer” and judicial review of whether the bishop should have taken some other action "would directly entangle [the court] in the religious doctrines of faith, responsibility, and obedience”).
      Among the cases opposed to Gibson, decisions by the supreme courts of Mississippi, Florida, and Colorado explain why the First Amendment poses no bar to negligence claims stemming from a sexually abusive cleric. See Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1237 (Miss.2005) (holding that "the cloak of religion ... cannot serve to shield [religious] institutions from civil responsibility for ... sexual molestation of a child” and "[n]or should it shield those who fail in their duty to protect children from it”); Malicki v. Doe, 814 So.2d 347, 364 (Fla. 2002) (emphasizing that because the core inquiry in determining whether a church-defendant should have foreseen the risk of harm to third parties was a "neutral principle of tort law,” it did not “foresee ‘excessive’ entanglement in internal church matters or in interpretation of religious doctrine or ecclesiastical law”); Moses v. Diocese of Colo., 863 P.2d 310, 319-21 (Colo.1993) (holding that the First Amendment did not a preclude negligent hiring claim where a diocese knew of priest’s problems of depression and struggles with sexual identity).


source: Caselaw Access Project

license: Public Domain

text:
    Peggy NICHOLSON, Appellant, v. ROMAN CATHOLIC ARCHDIOCESE OF ST. LOUIS, an unincorporated association, and Archbishop Raymond Burke, of the Archdiocese of St. Louis, MO, Respondents.
    No. ED 93009.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 23, 2010.
    Application for Transfer to Supreme Court Denied March 29, 2010.
    Application for Transfer Denied June 29, 2010.
    Marci A. Hamilton, Washington Crossing, PA, Patrick W. Noaker, Jeff Anderson & Associates, St. Paul, MN, Kenneth M. Chackes, M. Susan Carlson, Chackes, Carlson & Spritzer, LLP, St. Louis, MO, and Rebecca M. Randles, Randles, Mata & Brown, Kansas City, MO, for Appellant.
    Edward M. Goldenhersh, Bernard C. Huger, Robert L. Duckels, Kirsten M. Ahmad, Greensfelder, Hemker <& Gale, P.C., St. Louis, MO, for Respondents.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Plaintiff Peggy Nicholson (Appellant) appeals the trial court’s dismissal of certain negligence-based claims contained in her action filed against the Roman Catholic Archdiocese of St. Louis (Archdiocese) and Archbishop Raymond Burke (Archbishop). We affirm the trial court’s dismissal.

Fads and Procedural Background

Appellant alleges that from approximately 1953 through 1957, when she was approximately four to eight years of age, Father William Poepperling (Poepperling) sexually abused her. During the time of the alleged abuse, Poepperling served as a Roman Catholic priest at Holy Guardian Angels Church in St. Louis, Missouri. Po-epperling died on May 18,1983.

Appellant filed this suit against the Archdiocese and Archbishop (Respondents) on August 25, 2005. Appellant alleged six counts, two of which she designated as being raised against Poepperling individually even though the petition did not specifically name the late Poepperling as a Defendant in the case caption. The six counts include: (I) Child Sexual Abuse and/or Battery — Defendant Poepperling; (II) Intentional Infliction of Emotional Distress — Defendants Archdiocese and Archbishop; (III) Intentional Infliction of Emotional Distress — Defendant Poepperling; (IV) Negligence — All Defendants; (V) Negligent Supervision, Retention, and Failure to Warn — Defendants Archdiocese and Archbishop; (VI) Intentional Failure to Supervise Clergy-Defendants Archdiocese and Archbishop.

As to counts IV and V (hereinafter referred to as “negligence-based counts”), Appellant alleged that Poepperling “was under the direct supervision, employ and control of’ Respondents, and that “[a]ll acts of sexual abuse ... took place during functions in which [ ] Poepperling had custody or control of [Appellant] in his role as a priest and authority figure.” Appellant alleged that Respondents “reasonably should have known of [] Poepperling’s dangerous and exploitive propensities.” Appellant alleged that, despite such knowledge, Respondents failed to: (1) protect her from Poepperling’s sexual abuse; (2) remove Poepperling; (3) supervise Poep-perling in his position of trust and authority as a Roman Catholic priest; or (4) provide adequate warning to her and her family of Poepperling’s dangerous proclivities.

On March 25, 2008, Respondents filed a Motion to Dismiss Counts I, II, IV, and V. On September 30, the trial court entered an order granting Respondents’ motion and dismissing those four counts.

On October 3, 2008 Respondents filed a Motion for Summary Judgment with respect to Count VI. On April 9, 2009, the trial court entered an order and judgment granting Respondents’ motion, and subsequently entered final judgment as to all six counts in Appellant’s petition.

Appellant appeals to this Court only the trial court’s dismissal of Counts IV, and VI, the negligence-based counts.

Trial Court’s Dismissal of Negligence-Based Counts

In dismissing Appellant’s negligence claim (Count IV), the trial court, relying on Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997), explained that “Missouri simply does not recognize ‘negligence actions’ against religious organizations based on the sexual misconduct of clergy.”

In dismissing Appellant’s negligent supervision, retention, and failure to warn claim (Count V), the trial court, again relying on Gibson, explained that “ ‘adjudicating the reasonableness of a church’s supervision of a cleric’ requires inquiry into religious doctrine that is prohibited by the First Amendment to the U.S. Constitution.” (internal citation omitted). The trial court explained that the “same is true as to reasonableness of retention and claims of negligent failure to warn.”

Point on Appeal

In its sole point on appeal, Appellant contends that the trial court erred in dismissing her negligence-based counts pursuant to the Missouri Supreme Court’s decision in Gibson because Gibson fails to comport with United States Supreme Court precedent.

Discussion

This same issue was raised and fully addressed in the companion case of Mary SN Doe v. Roman Catholic Archdiocese of St. Louis, 311 S.W.3d 818 (Mo.App. E.D. 2010). Based on our analysis and decision in that case, we conclude that the trial court did not err in relying on Gibson to dismiss Appellant’s negligence-based counts as a matter of law.

Conclusion

The trial court’s judgment is affirmed as it properly applied Gibson, a controlling decision of the Missouri Supreme Court.

GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J., Concur.

      . The trial court also dismissed Appellant’s Count III, even though Respondent's motion to dismiss did not discuss Count III.

      . Appellant’s Notice of Appeal seeks appellate review of the trial court's Order granting summary judgment as to one count and of the trial court’s Order dismissing the remaining five counts. In her brief, Appellant affirmatively states that she is limiting her appeal to only the trial court’s dismissal of Counts IV and V, the negligence-based counts. Appellant had abandoned her appeal as to Counts I, II, III, and VI.


author: PER CURIAM.

text:
    Wayne WILLIE, Plaintiff/Appellant, v. Larry G. GILL, Defendant/Respondent.
    No. ED 93073.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 12, 2010.
    Application for Transfer Denied June 29, 2010.
    M. Harvey Pines, Clayton, MO, for appellant.
    Mark Bishop, Hillsboro, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The plaintiff, Wayne Willie, appeals the judgment entered by the Circuit Court of Jefferson County following a jury verdict awarding him damages of $5,000 for personal injuries sustained in a motor-vehicle accident, and assessing fifty percent of the fault to the plaintiff and fifty percent to the defendant, Larry G. Gill. Finding no error, we affirm.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The trial court’s judgment is affirmed. Rule 84.16(b)(5).


text:
    Stephen PETELIK, Respondent, v. MOTOR CONTROL SPECIALISTS and Ohio Casualty Insurance Company, Appellants.
    No. ED 93220.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 14, 2010.
    Application for Transfer Denied June 29, 2010.
    Ellen E. Morgan, Ballwin, MO, for Respondent.
    Kevin M. Leahy, Catherine Vale Jo-chens, Saint Louis, MO, for Appellants.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Motor Control Specialists and Ohio Casualty Insurance Company (collectively “Appellants”) appeal the decision of the Labor and Industrial Relations Commission affirming and adopting the Administrative Law Judge’s (“ALJ”) final award of worker’s compensation benefits to Stephen Petelik (“Claimant”) for an injury suffered to his low back as a result of an August 19, 2003 work accident. Appellants also appeal the decision of the Commission declining to review the ALJ’s temporary award of worker’s compensation benefits to Claimant. No error of law appears.

An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The Commission’s final award, which incorporates the temporary award, is affirmed under Rule 84.16(b).


author: ROY L. RICHTER, Judge.

text:
    JITTERSWING, INC., Appellant, v. FRANCORP, INC., Respondent.
    No. ED 93045.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2010.
    Application for Transfer Denied June 29, 2010.

      Allen D. Kircher, St. Charles, MO, for Appellant.
    John E. Tresslar, T. Michael Wood, Teresa M. Young, St. Louis, MO, for Respondent.
   ROY L. RICHTER, Judge.

Jitterswing, LLC (“Jitterwsing”) appeals the trial court’s decision granting defendant Francorp, INC.’s (“Francorp”) Motion to Dismiss. We reverse and remand.

I. BACKGROUND

Jitterswing and Francorp entered into a contractual agreement for Francorp to perform franchise development program services. Under the contract, Francorp agreed to create a comprehensive franchise program, launch a marketing and sales campaign, and recruit, train and service franchises. Jitterswing and Francorp agreed that all documents and forms provided by Francorp would be submitted to Jitterswing’s attorney for review and approval. The parties further acknowledged that Francorp could not act as Jittersw-ing’s attorney.

The contract also contained a forum selection clause stating that “... the parties agree that any dispute arising under this Agreement shall be resolved in the state or federal courts, within the state of Illinois, and each party expressly consents to jurisdiction therein.”

In 2009, Jitterswing filed suit against Francorp in Missouri, alleging that Fran-corp had performed actions under the agreement that constituted the practice of law without a law license. Francorp filed a Motion to Dismiss citing the contract’s forum selection clause. The trial court found that the forum selection clause was applicable, and dismissed the action without prejudice. Jitterswing appeals.

II. DISCUSSION

At issue is whether the lower court, and therefore this Court, has jurisdiction over this action given the forum selection clause in the contract. Parties to a contract may agree in advance to submit to personal jurisdiction in a given court by means of a forum selection clause. Whe-lan Sec. Co., Inc. v. Allen, 26 S.W.Bd 592, 595 (Mo.App. E.D.2000). Once one party asserts that a contract contains a forum selection clause, the burden is shifted to the other party to demonstrate that the enforcement of the clause would be unjust or unreasonable. Id. We enforce a forum selection clause unless the party seeking to avoid its application sustains a heavy burden to show that the clause is unfair or unreasonable. Id.

However, the existence of a forum selection clause in a contract that requires contractual disputes to be litigated in a specific forum, does not require tort claims between the same parties to be litigated in that forum absent precise language to that effect. Service Vending Co. v. Wal-Mart Stores, Inc. 93 S.W.Bd 764, 768 (Mo.App. S.D.2002). Further, a forum selection clause in a contract does not control the site for litigation of a tort claim simply because the dispute that produced the tort claim would not have arisen absent the existence of a contract. Id. at 769.

Here, Jitterswing has a statutory tort claim against Francorp for the practice of law without a license. The claim arises under section 484.020 RSMo Cum Supp 2007 which states, in pertinent part:

1. No person shall engage in the practice of law or do law business, as defined in section 484.010, or both, unless he shall have been duly licensed therefor and while his license therefor is in full force and effect, nor shall any association, partnership, limited liability company or corporation, except a professional corporation organized pursuant to the provisions of chapter 356, RSMo, a limited liability company organized and registered pursuant to the provisions of chapter 347, RSMo, or a limited liability partnership organized or registered pursuant to the provisions of chapter 358, RSMo, engage in the practice of the law or do law business as defined in section 484.010, or both.
2. Any person, association, partnership, limited liability company or corporation who shall violate the foregoing prohibition of this section shall be guilty of a misdemeanor and upon conviction therefor shall be punished by a fine not exceeding one hundred dollars and costs of prosecution and shall be subject to be sued for treble the amount which shall have been paid him or it for any service rendered in violation hereof by the person, firm, association, partnership, limited liability company or corporation paying the same within two years from the date the same shall have been paid and if within said time such person, firm, association, partnership, limited liability company or corporation shall neglect and fail to sue for or recover such treble amount, then the state of Missouri shall have the right to and shall sue for such treble amount and recover the same and upon the recovery thereof such treble amount shall be paid into the treasury of the state of Missouri ....

(emphasis added)

The forum selection clause in the contract between Jitterswing and Francorp stated that the “... parties agree that any dispute arising under this Agreement shall be resolved in the state or federal courts, within the State of Illinois, and each part expressly consents to jurisdiction therein.” This language is nearly the same as the language used in the contract in Service Vending Co., 93 S.W.3d at 767. There the court found that the language of the forum selection clause was not specific enough to encompass tort claims between the parties to the contact. Id. at 768-69. In accordance with Service Vending Co. we find that the language in the forum selection clause in the contract between Jitterswing and Francorp is not specific enough to encompass the tort claim for practice of law without a law license.

Further, even if the forum selection clause were to encompass tort claims, outbound forum selection clauses will not be enforced in Missouri if they are unfair or unreasonable. Burke v. Goodman, 114 S.W.3d 276, 279-80 (Mo.App. E.D.2003). We find that enforcing the forum selection clause in the contract between Jitterswing and Francorp would create an unfair result. Jitterswing’s claim for practice of law without a license occurred in Missouri and arises under Section 484.020. If required to bring its claim in Illinois, Jit-terswing would be without recourse, as this is a tort claim created by a Missouri statute, and the courts of Illinois would be without jurisdiction.

Therefore, because the forum selection clause’s language was not sufficiently specific to encompass a tort claim and because enforcing the forum selection clause would create an unfair result, we reverse and remand.

III. CONCLUSION

We reverse and remand.

KENNETH M. ROMINES, C.J., and GARY M. GAERTNER, JR., J., concur.

      . All further statutory citations are to RSMo Cum Supp 2007

      . The forum selection clause in Service Vending Co. stated that in “... the event litigation arises between Wal-Mart and [SVC] due to this Agreement, it is expressly agreed that such dispute will be governed by the laws and tried in the State of Arkansas." Service Vending Co. 93 S.W.3d at 767.


text:
    Sharolynne Y. WALLER, Appellant, v. Corey A. ROGERS, Respondent.
    No. ED 93525.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 2010.
    Application for Transfer Denied June 29, 2010.
    Sharolynne Y. Waller, St. Louis, MO, pro se.
    Susan M. Herold, St. Louis, MO, for respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III., J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Sharolynne Y. Waller appeals from the trial court’s grant of summary judgment in favor of Corey Rogers on Waller’s Amended Petition containing parent’s claims for medical expenses and for the loss of society and service of her sons. We have reviewed the briefs of the parties and the record on appeal and find no error. An extended opinion would serve no prece-dential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2009).


author: SHERRI B. SULLIVAN, P.J.

text:
    STATE of Missouri, Plaintiff/Appellant, v. Michael DOWELL, Defendant/Respondent.
    No. ED 92846.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 2010.
    Application for Transfer Denied June 29, 2010.

      Shaun J. Mackelprang, John M. Reeves, Jefferson City, MO, for Plaintiff/Respondent.

      Thomas E. Marshall, Columbia, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA COHEN, J.
   SHERRI B. SULLIVAN, P.J.

Introduction

The State of Missouri (the State) appeals from the judgment of the trial court granting Michael Dowell’s (Respondent) motion to dismiss with prejudice the State’s charge against him of the aggravated forcible rape of Victim, Section 566.030, based on collateral estoppel resulting from Respondent’s acquittal by jury of first-degree murder and its lesser-included offenses in a prior trial involving the same victim and the same underlying events. We affirm.

Factual and Procedural Background

On January 5, 1991, Victim attended a wedding reception in Old Monroe, Missouri. After leaving the reception at approximately 11:30 p.m., Victim’s car became stuck just off Route N on Big Box Road. Glen Corter (Corter), who had been driving behind Victim from the reception that he had also attended, stopped to assist Victim, but could not get her car out of the ditch. Corter testified he took Victim to pick up Sheila Weber’s (Weber) baby from babysitter Melissa Young (Young) and drop the baby off at Weber’s house and then looked for someone with a 4-wheel drive vehicle to pull Victim’s car out of the ditch. Corter testified that he found a couple with a truck at a convenience store willing to help and so he took them to Victim’s car. Corter stated that after Victim’s car was successfully pulled out, Victim gave Corter a bottle of Schnapps and brandy and they went their separate ways. Dennis Noack (Noack), who worked at the Convenience Corner gas station, located at the intersection of Route 79 and Route 47, testified that he saw Victim at about 2:00 a.m., looking like she had a bad night. Noack testified that Victim bought a burrito, talked about the roads getting bad due to the winter weather, and said she “had to go down on Highway W,” which is about eight miles west of the gas station on Route 47. Weber testified that Victim returned to Weber’s house alone at 2:30 a.m. Weber said Victim seemed upset and declined an offer to spend the night. John Greco (Greco), who had also attended the reception, testified that he saw Victim parked at Charlie’s Liquor store on Route 47, near the intersection of Route 47 and Highway W, at approximately 2:30 a.m.

On Sunday, January 6, 1991, Victim’s car was seen in a driveway off Highway W, less than a quarter mile north of Route 47. The car had a blown tire that looked like it had been driven on for a while. Deputy Sheriff Michael Chidster (Chidster) testified that tire tracks in the snow indicated the car had pulled into the drive from the north, and that the vehicle had been driving on W from a northerly direction coming back toward Highway 47. North on Highway W was the opposite direction from Victim’s home. The driver’s seat was found pushed all the way back. Victim’s mother testified that Victim was five feet five inches or five feet six inches tall and always drove with the seat pulled very close to the steering wheel.

On Monday, January 7, 1991, at approximately 2 or 3 p.m., Billy Collins (Collins), who lived nearby, found Victim’s body in a ditch on Highway W several miles north of Route 47. Mark Sprock and Gilbert Rimel had actually seen the body from a distance, thought it might be a mannequin, went to Collins’ house, and Collins agreed to go down and determine if the body was real. Collins touched Victim’s body, found it was soft and that her feet were dirty, and called the Lincoln County Sheriffs Department.

Dr. Mary Case (Dr. Case) of the St. Louis County Medical Examiner’s Office performed the autopsy of Victim. Dr. Case found seven lacerations on Victim’s scalp. Dr. Case noted numerous bruises and abrasions on Victim’s body, which she determined were caused by blunt trauma. Dr. Case concluded that the cause of Victim’s death was closed head injury caused by blunt force trauma. She testified that all of Victim’s injuries were consistent with having occurred at or around the same time. Dr. Case also made a finding of probable sexual assault, based upon the circumstances in which Victim was killed, to-wit: she was killed up-close, out of public view and her clothing was removed. Dr. Case opined that these circumstances suggested a sexual assault.

Dr. Case also found six “tiny, very superficial” lacerations, one to three millimeters or l/25th to 3/25ths of an inch in length, in the posterior fourchette, of the inferior margin of the vagina. Dr. Case noted the lacerations could have resulted from consensual sex, and did not use these tiny lacerations as the basis of her opinion of probable sexual assault.

Dr. Thomas Young (Dr. Young), former medical examiner for Jackson County, disagreed with Dr. Case’s finding of probable sexual assault. Dr. Young opined that the “tiny lacerations” were “little, tiny, yellowish scrapes ... post-mortem scrapes that were made well after she died.” Dr. Young’s opinion was that because there was no evidence of blood on the scrapes or in the underpants, it was doubtful the injuries occurred while she was alive. Dr. Young believed that the absence of blood on Victim’s body, bra, and underpants indicated that Victim was physically assaulted while fully clothed.

Although there was a lack of blood, Grant found a semen stain on Victim’s underpants. Grant was unable to detect semen in a vaginal wash sample taken from Victim’s body but detected semen on a vaginal swab. The vaginal swab was analyzed using the most recent DNA detection method of the time, “RFLP,” and a DNA profile was created. Grant found no sperm cells in the vaginal wash, vaginal smears, rectal smears, underpants or oral smears.

In April, 2000, Brian Hoey (Hoey) of the MSHPL, analyzed the evidence using the newer “PCR-STR” process to generate a DNA profile. Material from the vaginal swab had been used up in earlier analysis, and Hoey found no male DNA in either the vaginal wash or the smears from the vaginal wash. However, Hoey was able to extract DNA from the underpants in the form of semen. Hoey’s analysis of the material from the underwear showed the absence of sperm and several peak height imbalances in the DNA alleles, both of which suggest degradation, in that the sample had possibly been there for several days. Hoey testified that semen and sperm samples can survive up to five days on the human body. He further testified that semen samples with no sperm in them are generally deemed over 72 hours old.

In December of 2006, Respondent gave a blood sample which was analyzed for DNA using the PCR-STR process. Profiles generated by PCR-STR cannot be compared to profiles generated by RFLP. Hoey compared a sample of Respondent’s DNA, taken from a blood sample, to the DNA taken from the underwear and found them consistent. Hoey could not determine when the sample had been left, the circumstances surrounding when it was left, or whether the contact was consensual.

The State charged Respondent with first-degree murder, armed criminal action, rape, and in the alternative, rape with infliction of serious physical injury. After a change of venue, the Boone County circuit court dismissed the armed criminal action and the rape count as time-barred. Because the State sought the death penalty, the rape with the infliction of serious physical injury count was severed as required by Section 565.004.1.

Respondent filed a Motion to Present Evidence of Third Party Guilt as to Corter, which the trial court granted in part. At the wedding reception Corter had been drunk and grabbed Victim’s arm, trying to dance with her. Victim had pushed him away. Corter also was with Victim the night she disappeared. Corter also confessed to four people after Victim’s death that he had killed her, to-wit: Kimberly Faye Gott (Gott), who testified that she was attending a party at a friend’s house when Corter cornered her downstairs, laughed, and said he killed Victim. Gott reported the incident to the police and filed a written statement. Weber testified that she and a friend were at a bar in Winfield when Corter approached them. They asked the bouncer to remove him from the bar, and Corter stated that if they kept it up, that they would “end up dead just like [Victim].” Christine Dubach (Dubach), the same witness who had seen Corter grab Victim at the reception, testified that in 1994, she was at the Flat Rock swimming hole with her three daughters and others when Corter stated “You remember [Victim]? Well, I killed her. Pm getting by with it.” Christina Kirby (Kirby) testified that in the spring of 1994, Corter was at her apartment during a gathering and stated that he had beaten Victim with a crowbar. Dennis Anderson (Anderson) testified that several months before Victim’s death, he had seen Corter and another man, not Respondent, trying to force Victim into a truck. Anderson testified he intervened.

On October 3, 2008, after trial, the jury found Respondent not guilty of first-degree murder, and the lesser included offenses of second-degree murder and involuntary manslaughter. Respondent moved to dismiss with prejudice the remaining rape with the infliction of serious physical injury count based on collateral estoppel. Over Respondent’s objection the trial court granted the State’s Motion to Dismiss without prejudice. The State then filed the same rape charge with the infliction of serious physical injury in Lincoln County circuit court. Respondent again moved to dismiss with prejudice based on collateral estoppel. After a hearing, the trial court granted the motion. This appeal follows.

Point on Appeal

The State contends that the trial court erred in dismissing the State’s prosecution of Respondent for aggravated forcible rape on the grounds of collateral estoppel because when Respondent’s first jury acquitted Respondent of murdering Victim, the jury did not necessarily make factual findings acquitting Respondent of aggravated forcible rape against Victim, in that the jury could have simply concluded that Respondent did not have the culpable mens rea for any degree of murder, i.e., the jury could have concluded that Respondent committed aggravated forcible rape against Victim, a crime that has no mens rea, but that Respondent did not possess a culpable mental state as regards murder in causing Victim’s death.

Standard of Review

Collateral estoppel and equitable estoppel are affirmative defenses. Ryan v. Ford, 16 S.W.3d 644, 647 (Mo.App. W.D. 2000). Sustaining a motion to dismiss based on an affirmative defense requires that the defense be irrefutably established by the pleadings. Id. “Our review of a motion to dismiss assumes ‘every fact pleaded in the petition to be true.’ ” Id., quoting Honigmann v. C & L Restaurant Corp., 962 S.W.2d 458, 459 (Mo.App. E.D. 1998). “Moreover, ‘[a] plaintiff is entitled to the benefit of every favorable inference which may reasonably be derived from the facts pleaded.’ ” Ryan, 16 S.W.3d at 647-48, quoting Honigmann, 962 S.W.2d at 459. “Although a trial court’s evidentiary findings warrant deference from the appellate courts, that deference does not apply where the law has been applied in error.” Ryan, 16 S.W.3d at 648. “We review determinations of law de novo.” Id.

Discussion

Collateral estoppel involves the determination of an issue of ultimate fact by a valid and final judgment. State v. Johnson, 485 S.W.2d 106, 112 (Mo.1972). The doctrine of collateral estoppel only applies in a criminal case when the issue determined in the prior case is the same as the issue in the pending case. State v. Manning, 682 S.W.2d 127, 130 (Mo.App. E.D.1984), citing State v. Thomas, 625 S.W.2d 115, 125 (Mo.1981). The application of collateral estoppel is a doctrine which is embodied in the 5th Amendment guarantee against double jeopardy. State v. Coleman, 773 S.W.2d 199, 200 (Mo.App. E.D.1989); Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Booker, 540 S.W.2d 90, 92 (Mo. App.St.L.1976). Collateral estoppel “ ‘means simply that when an issue of ultimate fact has been determined by a valid final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” Coleman, 773 S.W.2d at 201, quoting Ashe, 397 U.S. at 443, 90 S.Ct. 1189. “To establish that the present prosecution is barred by defendant’s prior acquittal, ‘the burden is on [defendant] to show that the verdict there necessarily decided the issues now in litigation.’ ” Coleman, 773 S.W.2d at 201, quoting Booker, 540 S.W.2d at 93.

In Ashe, the Supreme Court stated that when the previous acquittal was based on a general verdict, the collateral estop-pel inquiry ‘requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’

Coleman, 773 S.W.2d at 201, quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189. “Recently our Supreme Court has expressed the view that collateral estoppel forecloses consideration of an issue only when that issue was unambiguously decided in the earlier case.” Coleman, 773 S.W.2d at 201, citing State v. Rodden, 728 S.W.2d 212, 220 (Mo. banc 1987). “ ‘Since it is usually impossible to, determine with any precision upon what basis the jury reached a verdict in a criminal case, it is a rare situation in which the collateral estoppel defense will be available to a defendant.’ ” Booker, 540 S.W.2d at 93, quoting United State v. Tramunti, 500 F.2d 1334, 1346 (2d Cir.1974).

“Collateral estoppel is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice.” Ashe, 397 U.S. at 443, 90 S.Ct. 1189. “It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. “Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court’s decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161.” Id. “As Mr. Justice Holmes put the matter in that case, ‘It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.’ ” Id., quoting Oppenheimer, 242 U.S. at 87, 37 S.Ct. 68. “As a rule of federal law, therefore, ‘(i)t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of ‘mutuality’ or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government’s evidence as a whole although not necessarily as to every link in the chain.’ ” Id., quoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir.1961).

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’

Id. at 443-44, 90 S.Ct. 1189. “The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” Id. at 444, 90 S.Ct. 1189, quoting Sealfon, 332 U.S. at 579, 68 S.Ct. 237. “Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral es-toppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.” Id.

To establish that the present rape prosecution is barred by the murder acquittal, Respondent bears the burden of showing that the verdict in the murder case necessarily decided the issues present in the rape prosecution. See Booker, 540 S.W.2d at 93; Tramunti, 500 F.2d at 1346.

Applying the above stated principles to the instant case, we find that Respondent has carried his burden and that collateral estoppel precludes Respondent being charged with the aggravated forcible rape of Victim in 1991, for the following reasons.

In charging Respondent with the murder of Victim, the State, in its Notice of Intent to Seek the Death Penalty, alleged that Respondent had committed a felony in conjunction with the murder, to-wit: rape. The State’s theory throughout trial was that Respondent killed Victim, because he raped her. The State in its opening and closing arguments asserted that Respondent abducted, held hostage, raped, killed and dumped Victim, all in one continuous span of events. It was a series of actions, each logically following the other, culminating in murder to silence Victim as to the multitude of atrocities committed upon her. Now, in arguing that it should be able to try the forcible rape case against Respondent, the State contends that it is possible that the jury found that Respondent beat Victim in the head with a blunt instrument, but maybe did not mean to kill her. This illogical argument flies in the face of the theory that the State relied upon throughout the murder trial, that the only reason Respondent allegedly killed Victim is because he raped her.

The 1991 Missouri Approved Instruction (MAI) 320.02.1A for the charge of aggravated rape defines the “serious physical injury” element of aggravated forcible rape as “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” There exists no rational basis that a jury could conclude beyond a reasonable doubt that Respondent committed the violence constituting and contained within the definition of aggravated forcible rape, after the jury in the murder trial found that Respondent did not beyond a reasonable doubt commit the violence that resulted in the death of Victim.

Instruction No. 6 for first-degree murder, given to the jury in the murder trial stated:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about January 7, 1991, in the County of Lincoln, State of Missouri, [Respondent] caused the death of [Victim] by striking her in the head with a blunt instrument, and
Second, that [Respondent] knew or was aware that his conduct was causing or was practically certain to cause the death of [Victim], and
Third, that [Respondent] did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief, Then you will find [Respondent] guilty of murder in the first degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find [Respondent] not guilty of murder in the first degree.

Instruction No. 7 for second-degree murder, given to the jury in the murder trial stated:

If you do not find [Respondent] guilty of murder in the first degree, you must consider whether he is guilty of murder in the second degree under this instruction.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 7, 1991, in the County of Lincoln, State of Missouri, [Respondent] caused the death of [Victim] by striking her in the head with a blunt instrument, and
Second, that [Respondent] knew or was aware that his conduct was causing or was practically certain to cause the death of [Victim], Then you will find [Respondent] guilty of murder in the second degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find [Respondent] not guilty of murder in the second degree.

Instruction No. 8 for involuntary manslaughter, given to the jury in the murder trial stated:

If you do not find [Respondent] guilty of murder in the second degree, you must consider whether he is guilty of involuntary manslaughter under this instruction.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 7, 1991, in the County of Lincoln, State of Missouri, [Respondent] caused the death of [Victim] by striking her in the head with a blunt instrument, and
Second, that [Respondent] recklessly caused the death of [Victim], then you will find [Respondent] guilty of involuntary manslaughter.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find [Respondent] not guilty of involuntary manslaughter.
In determining whether [Respondent] recklessly caused the death of [Victim], you are instructed that a person acts recklessly as to causing the death of another person when there is a substantial and unjustifiable risk he will cause death and he consciously disregards that risk, and such disregard is a gross deviation from what a reasonable person would do in the circumstances.

The jury acquitted Respondent on all three of these charges.

Dr. Case’s testimony via deposition was played to the jury in its entirety. Dr. Case opined that there was a sexual assault component to the crime, and that the lethal blow to the head and all other inflicted injuries occurred at or about the same time. The State’s theory of its case against Respondent was that he killed Victim because he raped her. The motive for the murder was sexual assault. The State on several occasions sought to introduce evidence of the sexual assault against Victim to help prove its case for murder against Respondent. The State successfully introduced this evidence, even though there was no rape or sexual assault charge being prosecuted against Respondent in the trial. The only reason Respondent was arrested and charged for Victim’s murder was because the DNA found in her underpants matched Respondent’s DNA. There was no other direct evidence tying Respondent to the crimes against Victim. Furthermore, there was no testimony that Respondent was at the reception or anywhere in the area at the time of the crimes. No one, not even the families or friends of Victim and Respondent, had ever seen Respondent with Victim.

There was testimony from Victim’s sister that Victim had dated an African-American male in the past, but hid it from her mother because she feared her mother would not accept such a relationship. Respondent’s statements to his mother while he was incarcerated that he did have sex with Victim explains the presence of his semen on Victim’s underwear. However, it does not necessarily implicate him in Victim’s alleged sexual assault because the semen had degraded to such a degree to scientifically reveal the possibility that it had been deposited there some time before the crime took place.

The expert medical testimony presented at trial was that the DNA in the form of semen found on Victim’s underpants, which matched Respondent’s DNA, had likely been there for at least 72 hours. This expert medical conclusion was based on the lack of sperm present in the semen sample, and other scientific indicia of degradation. Victim’s body was found 36 hours after being seen alive at the Convenience Corner gas station. Hoey agreed that the conditions in which Victim’s body was found, i.e., snow, ice and sub-freezing temperatures, would have stopped the sample from further degradation. Therefore, the jury could have believed, based on the evidence presented at trial, that the discovery of Respondent’s DNA on Victim’s underpants did not conclusively connect him to the murder of Victim.

The State argues that collateral estoppel does not preclude it from pursuing the aggravated forcible rape charge against Respondent because “a rational jury could have found that Respondent inflicted the violence upon [Victim] that resulted in her death, but in doing so lacked the requisite intent to be guilty of either first degree murder or its lesser included offenses.” This argument runs counter to the State’s contention at trial that the “rape was germane only to provide motive, identification, and intent on the part of [Respondent] as to the murder case.” The State continues that since aggravated forcible rape does not contain an intent element, and since the jury did not necessarily find that Respondent did not commit the violence against Victim, the jury did not necessarily decide an ultimate fact in Respondent’s favor that the State would have to prove in the aggravated forcible rape case.

We find that this is the precise kind of hypertechnical argument that Ashe says is not to be applied. Ashe, 397 U.S. at 443-44, 90 S.Ct. 1189. “Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an,issue other than that which the defendant seeks to foreclose from consideration.’” Id. at 444, 90 S.Ct. 1189, quoting Mayers & Yar-brough, supra n. 5, at 38-39.

The State would like us to accept the scenario, here illustrated in its practical light and without the use of the term mens rea, that it is possible that a jury could rationally find that Respondent viciously beat Victim, hit her in the head hard enough to cause internal bleeding, and left her nearly naked in a ditch on the side of the road in brutal winter weather, but did not mean to kill her, and was not even reckless in doing so, but that he did cause the same serious physical injury in pursuit of raping her. This is not a realistic and rational conclusion from the charges; theory of the case; testimony, both lay and expert; evidence; and instructions.

The State’s technically restrictive “mens rea ” argument simply amounts to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal. See Ashe, 397 U.S at 444, 90 S.Ct. 1189. Also, there was no theory, much less evidence, presented at trial that Respondent perpetrated the violence but was unaware of the reckless nature of his actions or the probable deadly consequences. Rather, the State’s theory was that Respondent meant to kill Victim as it was a rape-homicide, i.e., the rape was the motive itself for the murder. The defense theory was that the State had the wrong defendant altogether, and Respondent had nothing to do with the crime. Therefore, for the jury to concoct a scenario of deadly physical violence by Respondent yet lack of intent to kill would not reasonably follow from the theories and evidence presented at trial. To come to this conclusion would be irrational and unrealistic in light of the parties’ hypotheses of what happened to Victim and the ultimate facts presented throughout the trial, from the charges to the cases in chief to the closing arguments to the instructions. Our inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings. Seal-fan, 332 U.S. at 579, 68 S.Ct. 237. As such, we reject the State’s hypertechnical analysis and unrealistic assessment of the ultimate facts decided by the jury’s verdict.

The U.S. Supreme Court’s reasoning in Ashe is instructive. In Ashe, four men were charged with robbing six men playing a poker game, and stealing one of the poker player’s car. Id. at 437, 90 S.Ct. 1189. The four men were subsequently charged with seven offenses, robbing each one of the six poker players and stealing the car. Id. at 438, 90 S.Ct. 1189. The defendant Ashe was acquitted by a jury of robbing one of the six men, in a general verdict. Id. at 439, 90 S.Ct. 1189. Thereafter he was charged and brought to trial for the robbery of another one of the six poker players. Id. He filed a motion to dismiss the charge, based on his previous acquittal. Id. The trial court denied the motion to dismiss and Ashe was subsequently convicted of robbing the second poker player. Id.

The case made its way up to the Supreme Court, by federal writ of habeas corpus, and the Court held that where the defendant was charged in separate counts with robbery of each of the six poker players and was tried on one count and was acquitted for insufficient evidence, where the identity of the defendant was the single rationally conceivable issue in dispute, collateral estoppel precluded the subsequent prosecution of the defendant for the robbery of a different player. Ashe, 397 U.S. at 445-46, 90 S.Ct. 1189. In coming to this conclusion, the Court reasoned that “[straightforward application of the federal rule to the present case can lead to but one conclusion.... For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that [first robbery victim] had not been a victim of that robbery.” Id. at 444-45, 90 S.Ct. 1189. “The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers.... And the jury by its verdict found that he had not.” Id. at 445, 90 S.Ct. 1189. “The federal rule of law, therefore, would make a second prosecution for the robbery of [the second robbery victim] wholly impermissible.” Id.

Such is the issue in the instant case. There is no indication in the record that the jury could rationally have found that Victim was not assaulted and murdered. The single rationally conceivable issue before the jury was the identity of the perpetrator. And the jury found that the perpetrator was not Respondent. This conclusion is further bolstered by the substantial evidence of third-party guilt presented by Respondent in the murder case.

For the foregoing reasons, the State’s Point on Appeal is denied.

Conclusion

We hold that the trial court correctly applied the principles of collateral estoppel in granting, with prejudice, Respondent’s motion to dismiss the charge of aggravated forcible rape. The judgment of the trial court is affirmed.

ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ., concur.

      . All statutory references are to RSMo Cum. Supp.1990, unless otherwise indicated.

      . Thomas Grant (Grant) of the Missouri State Highway Patrol Laboratory (MSHPL) found no blood on Victim's underwear.

      . See also Coffey v. United States, 116 U.S. 436, 442-43, 6 S.Ct. 437, 29 L.Ed. 684 (1886); Frank v. Mangum, 237 U.S. 309, 333-34, 35 S.Ct. 582, 59 L.Ed. 969 (1915); and Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180(1948).

      . " 'If a later court is permitted to state that the jury may have disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant did not contest, the possible multiplicity of prosecutions is staggering. * * * In fact, such a restrictive definition of "determined” amounts simply to a rejection of collateral estoppel, since it is impossible to imagine a statutory offense in which the government has to prove only one element or issue to sustain a conviction.' " Ashe, 397 U.S. at 444, 90 S.Ct. 1189, quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38 (1960).

      . Respondent's Motion to Strike Exhibits is denied.