author: JAMES EDWARD WELSH, Judge.

text:
    STATE of Missouri, Respondent, v. Alphonso William HAMILTON, Appellant.
    No. WD 70790.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Alexa I. Pearson, Columbia, MO, for Appellant.
    Chris Koster, Jefferson City, MO, for Respondent.
    Before KAREN KING MITCHELL, P.J., JAMES EDWARD WELSH, and MARK D. PFEIFFER, JJ.
   JAMES EDWARD WELSH, Judge.

Alphonso William Hamilton appeals the circuit court’s judgment convicting him of domestic assault in the third degree, resisting arrest, and assaulting a law enforcement officer. He claims that the circuit court erred in enhancing his domestic assault conviction from a class A misdemeanor to a class D felony because he did not have the requisite number of prior convictions for enhancement. He also claims that the circuit court plainly erred in not ordering a mistrial sua sponte when the State, during its closing argument, commented upon his failure to produce witnesses. We affirm.

The sufficiency of the evidence to support Hamilton’s convictions is not in dispute. The evidence, in the light most favorable to the judgment, established that Hamilton and the victim, K.K., had been living together for two years as of June 14, 2008. On that day, K.K. went to work while Hamilton went to a large party at his cousin’s house. Hamilton arrived at the party at about 11:00 a.m. and began drinking beer shortly thereafter.

After K.K. got off work that evening, she met Hamilton at the party at about 7:30 p.m. Hamilton gave K.K. twenty dollars. A couple of hours later, K.K. noticed that Hamilton was flirting with another woman. K.K. was uncomfortable and upset by Hamilton’s behavior, so she told Hamilton that she was going home. After K.K. got into her car, Hamilton yelled at her, got into the car with her, and told her, “Okay. We’ll just go home.”

On the way home, Hamilton said that he wanted to go back to the party. K.K. refused to drive him back to the party and told him that if he wanted to go back, he could find his own ride. Hamilton became upset and started yelling at her.

When they arrived home, K.K. went into them bedroom and began to pack Hamilton’s things because she was tired and “fed up” with their relationship. Hamilton came into the bedroom and turned off the lights. Hamilton then grabbed K.K. from behind, threw her on the bed, and continuously punched her in her face with his closed fist for five to ten minutes. K.K.’s nose started bleeding.

After Hamilton stopped hitting K.K., he told her to give him back his twenty dollars. K.K. got up and went to another room to find her purse. At first, she could not find the money, so Hamilton told her to go look in her car for it. Before K.K. went to her car, she saw her car keys lying on the floor by her feet. Thinking that she could just drive away when she went to her car to look for Hamilton’s money, K.K. reached down and tried to pick up the keys. Hamilton grabbed the keys before she could reach them. He then threw K.K. up against the kitchen counter and said, “How dare you try to leave.” Hamilton hit K.K. a few more times in her face with his closed fist. When he stopped hitting her, K.K. went to the car but did not find the money. She came back in the house, found the twenty dollars, and gave it to Hamilton. Hamilton took K.K.’s car keys and, as he was leaving, told her that if she wanted her car, she would have to find him. Hamilton left but did not take K.K.’s car.

After Hamilton left, K.K. went to her neighbor’s home. The neighbor had already called the police. K.K.’s eyes were swollen almost completely shut, and her lip and cheeks were swollen. Her lip was also cut. She had big bumps on both sides of her forehead, bruises on her forehead, scratches on her face, and a bloody nose. When the police arrived, they photographed K.K.’s injuries and took her statement about the incident.

Meanwhile, Officer Sean Dutton and Sergeant Chris Kelley were dispatched to arrest Hamilton. Dutton and Kelley went to the party at Hamilton’s cousin’s house and found Hamilton there. The officers asked Hamilton what happened at his and K.K.’s house earlier in the evening. Hamilton said that he was never at his house and that he had been at the party the whole night. Dutton told Hamilton that he was under arrest. As Dutton was handcuffing Hamilton, Hamilton said, “This is bullshit.” Hamilton also told Dutton that there were “500 witnesses” who could tell the officers that he had been at the party all night.

As Dutton walked Hamilton to the police car, Hamilton pulled away from Dutton, turned around, and kicked Dutton in the groin. When some of the people from the party began to approach the officers and Hamilton, Kelley focused on keeping the crowd back while Dutton tried to get Hamilton under control. As the crowd began to get agitated, Dutton and Kelley became concerned for them safety.

Dutton eventually got Hamilton on the ground and instructed him to stop resisting arrest. Hamilton yelled and cursed at Dutton. Dutton assisted Hamilton in standing up and escorted him to the patrol car. As they were walking to the car, Hamilton told Dutton that, if he had had a gun, he would have shot Dutton when he saw Dutton approaching. Hamilton also told Dutton that, if he saw Dutton on the street, he would shoot him. At one point, Hamilton told Dutton that he would assault Dutton if he saw him and that Dutton could quote him on that. Twice, Hamilton tried to spit on Dutton. Much of Hamilton’s interaction with Dutton was recorded by Dutton’s body microphone.

The State subsequently charged Hamilton with the class D felony of domestic assault in the third degree, in violation of section 565.074, RSMo 2000; the class A misdemeanor of resisting arrest, in violation of section 575.150, RSMo Cum.Supp. 2008; and the class A misdemeanor of assault of a law enforcement officer in the third degree, in violation of section 565.083, RSMo Cum.Supp.2008.

While Hamilton was in jail awaiting trial on these charges, he wrote K.K. a letter in which he told her:

I know you are scared of me as well, and you want me out of your life as much as you still want me. At least I hope so.... [K.K.] I don’t deserve you anymore. But I’m willing to do anything to salvage some kind of relationship.... I’m so sorry [K.K.]. And I truly believe that after all we’ve been through I deserve another chance. I will do individual counseling [sic] and hopefully you would go to couples therapy with me.... I know you’re still mad at me or probly [sic] hate me. But there’s got to be some love hideing [sic] in your heart_I’ve said it enough. I fucked up. But we can make it work. I won’t hold anything over your head. I put myself in hear [sic].... I hope you have it in your heart to still love me and forgive me.

A jury trial was held in February 2009. The jury found Hamilton guilty on all three charges. The court sentenced Hamilton to concurrent terms of three years imprisonment for domestic assault, six months in jail for resisting arrest, and six months in jail for assaulting a law enforcement officer. Hamilton appeals.

In his first point, Hamilton claims that the circuit court erred in enhancing his third-degree domestic assault conviction from a class A misdemeanor to a class D felony because he did not have the requisite number of prior convictions for enhancement under section 565.074.3. He argues that section 565.074.3 is ambiguous as to whether it requires two or three prior convictions for enhancement. Hamilton asserts that, pursuant to the rule of lenity, the court should have interpreted the statute to require the State to prove that he had three prior domestic assault convictions. Because the State proved only that he had two prior convictions, Hamilton argues that the court should not have enhanced the offense from a misdemeanor to a felony. Hamilton did not raise this claim in the circuit court; hence, review, if any, would be for plain error.

Review for plain error under Rule 30.20 involves a two-step process. State v. Brink, 218 S.W.3d 440, 448 (Mo.App.2006). First, we must determine whether the claim on its face establishes substantial grounds to find that manifest injustice or miscarriage of justice has resulted. Id. “Errors are plain if they are evident, obvious, and clear.” Id. “In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 30.20.” Id,. “If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.” Id. If the circuit court improperly enhanced a sentence, a manifest injustice has occurred, and plain error review is appropriate. State v. Dixon, 24 S.W.3d 247, 250 (Mo.App.2000). We, therefore, exercise the discretion granted to us by Rule 30.20 to consider as plain error Hamilton’s claim that the court improperly interpreted section 565.047.3 to enhance his third-degree domestic assault conviction from a misdemeanor to a felony.

The interpretation of a statute is a question of law, which this court reviews de novo. State v. Barraza, 238 S.W.3d 187, 192 (Mo.App.2007). “ ‘The primary rule of statutory interpretation is to effectuate legislative intent through reference to the plain and ordinary meaning of the statutory language.’ ” Id. (quoting State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006)). “ ‘To determine whether a statute is clear and unambiguous, this court looks to whether the language is plain and clear to a person of ordinary intelligence.’ ” State v. Goddard, 34 S.W.3d 436, 438 (Mo.App.2000) (citation omitted). If the language of the statute is open to more than one reasonable interpretation, then the statute is ambiguous. Barraza, 238 S.W.3d at 192. “ ‘Where the statutory language is unambiguous, we need not resort to statutory construction and must give effect to the statute as written.’ ” State v. Graham, 149 S.W.3d 465, 467 (Mo.App.2004) (citation omitted).

Section 565.074 defines the crime of domestic assault in the third degree. Subsection 2 of section 565.074 says that the crime is ordinarily a class A misdemeanor. However, when the defendant is a repeat offender, subsection 3 of the statute provides for enhancement under these circumstances:

A person who has pleaded guilty to or been found guilty of the crime of domestic assault in the third degree more than two times against any family or household member as defined in section 455.010, RSMo, is guilty of a class D felony for the third or any subsequent commission of the crime of domestic assault. The offenses described in this subsection may be against the same family or household member or against different family or household members.

§ 565.074.3.

The information charging Hamilton with the class D felony of third-degree domestic assault alleged that Hamilton had pleaded guilty to third-degree domestic assault in August 2001 and again in October 2004. Before trial, the State offered the certified records of these other domestic assault convictions. The court received the records without objection and determined that Hamilton had been found guilty of third-degree domestic assault on these two occasions. After the jury found Hamilton guilty of third-degree domestic assault for the incident involving K.K., the court noted in its judgment that this was Hamilton’s third offense. Therefore, the court found that Hamilton’s conviction for this offense was a class D felony and sentenced him accordingly.

Hamilton contends that the circuit court plainly erred in enhancing the offense to a class D felony because he did not have “more than two” prior convictions for third-degree domestic assault before his conviction for the incident involving K.K. He argues that the first sentence of section 565.074.3 contains conflicting provisions. Specifically, Hamilton claims that the first part of the sentence requires proof of “more than two” prior convictions for third-degree domestic assault, while the second part of the sentence provides for enhancement for “the third or any subsequent commission of the crime of domestic assault.” Hamilton contends that the second part of the sentence providing for enhancement upon a “third” offense cannot be applicable when the first part of the sentence requires the State to prove “more than two” prior convictions. Thus, he argues, the provisions conflict and are patently ambiguous. Hamilton asserts that, under these circumstances, we must apply the rule of lenity, construe the statute against the State, and find that he was not subject to enhancement because he did not have at least three prior convictions before his present conviction. We disagree.

In interpreting section 565.074.3, Hamilton adds a word and creates an ambiguity where none would otherwise exist. The plain language of the statute does not require that a defendant have more than two prior convictions. Rather, the statute provides for enhancement if the defendant has pleaded guilty to or been found guilty of the crime of third-degree domestic assault “more than two times.” § 565.074.3. The word “prior” is not in the statute. Nothing in the statute excludes the guilty plea or finding of guilt for the offense that is presently before the court from consideration when determining whether the defendant has pleaded guilty or been found guilty “more than two times.” Moreover, the rest of the statute clearly indicates that the legislature intended that a defendant be sentenced as a class D felon for the “third or any subsequent commission” of the crime, which would include the offense that is presently before the court. Reading section 565.074.3 as it is written, and without Hamilton’s insertion of the word “prior,” we find that the phrases “more than two times” and “third or any subsequent commission” do not conflict and clearly provide for enhancing the defendant’s sentence for his third domestic assault in the third degree conviction.

Because the meaning of section 565.074.3 is plain and clear, we need not resort to the rule of lenity or any other rule of statutory construction. Hamilton pleaded guilty to or was found guilty of the crime of third-degree domestic assault more than two times: in August 2001, in October 2004, and in the present case involving K.K. Therefore, the court properly found that, for the present case involving K.K. — his third commission of the offense — Hamilton was guilty of a class D felony, and the court sentenced him accordingly. We find no error, plain or otherwise. Therefore, we deny Hamilton’s first point.

In his second point, Hamilton claims that the circuit court plainly erred in not ordering a mistrial sua sponte when the State, during its closing argument, commented upon his failure to produce witnesses. One of Hamilton’s defense theories was that the police officers who arrested him did not ask any of the witnesses at the party whether or not he had been there all night but, instead, jumped to the conclusion that K.K. was telling the truth about the incident. During Hamilton’s closing argument, defense counsel repeatedly stated that Hamilton tried to get the officers to talk to the witnesses at the party who would have confirmed his claim that he never left the party that night, but the officers refused. Defense counsel argued that, if the officers would have talked to some of the witnesses, they “probably would have not had to arrest Alphonso Hamilton.” Defense counsel also told the jury that he “let Mr. Hamilton down” by not finding these witnesses and having them testify.

In the State’s rebuttal argument, the prosecutor responded to defense counsel’s argument, saying, “And I’m going to leave you with this. The bottom line is, they can blame the officers for not interviewing people and they can say that [K.K.] made this up. But you want to know what? These are his family and friends. Where are they?” Hamilton did not object to this argument during the trial or in his motion for new trial. He asks for plain error review.

“ ‘Statements made in closing argument rarely constitute plain error.’ ” State v. Baumruk, 280 S.W.3d 600, 618 (Mo. banc), cert. denied, — U.S. —, 130 S.Ct. 144, 175 L.Ed.2d 93 (2009) (citation omitted). This is because, without an objection, the circuit court’s “options are narrowed to uninvited interference with summation, which may itself constitute error.” Id. “Under plain error review, a conviction will be reversed for improper closing argument only when it is established that the argument had a decisive effect on the outcome of the trial and amounts to manifest injustice.” State v. Deck, 303 S.W.3d 527, 541 (Mo. banc 2010). Hamilton has the burden of proving that the allegedly improper argument had a decisive effect. Id. “An argument has a decisive effect when it is reasonably probable that, absent the argument, the verdict would have been different.” Baumruk, 280 S.W.3d at 618.

We need not decide the propriety of the prosecutor’s argument in this case because Hamilton fails to show that it had a decisive effect on the jury’s verdict. The evidence against Hamilton was overwhelming. K.K.’s testimony that Hamilton repeatedly punched her in the face and the pictures showing her injuries established that he was guilty of third-degree domestic assault. Hamilton’s letter to K.K. acknowledging that she was afraid of him, apologizing to her, and admitting that he put himself in jail refuted his claim that K.K was falsely accusing him. The testimonies of Dutton and Kelley, combined with the recording from Dutton’s body microphone, established that Hamilton was guilty of resisting arrest and assaulting a law enforcement officer. Because the evidence against Hamilton was overwhelming, we fail to see how the prosecutor’s isolated comment had a decisive effect on the jury’s verdict. The circuit court did not plainly err in not ordering a mistrial sua sponte. We deny Hamilton’s second point.

We, therefore, affirm Hamilton’s convictions and sentences.

All concur.

      . Hamilton appears to argue that he suffered manifest injustice because the prosecutor’s comment compounded the prejudice that he suffered as a result of defense counsel’s failure to call witnesses from the party to testily on his behalf. Essentially, Hamilton is asking us to conclude that defense counsel was ineffective. An ineffective assistance of counsel claim is not cognizable in a direct appeal. State v. Motley, 56 S.W.3d 482, 484 n. 1 (Mo.App.2001).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Appellant, v. Lindsey D. ROBERTSON, Respondent.
    No. WD 72529.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Brent M. Nelson, Columbia, MO, for Appellant.
    Jerome S. Antel, III, Columbia, MO, for Respondent.
    Before KAREN KING MITCHELL, P.J., JAMES EDWARD WELSH, and MARK D. PFEIFFER, JJ.
   JAMES EDWARD WELSH, Judge.

The State of Missouri appeals the circuit court’s order granting Lindsey D. Robertson’s motion to suppress evidence concerning the results of a pre-arrest portable breathalyzer test. The circuit court found that the evidence did not establish that the portable breathalyzer machine had been calibrated prior to Robertson’s arrest and, therefore, no probable cause existed for her arrest. Pursuant to section 547.200.1(3), RSMo 2000, the State filed this interlocutory appeal. The State contends that the results of a portable breathalyzer test administered prior to arrest are admissible as evidence of probable cause and that the totality of the circumstances in this case establish probable cause to arrest Robertson for driving while intoxicated. We disagree and affirm the circuit court’s order granting Robertson’s motion to suppress.

The State charged Robertson with the class B misdemeanor of driving while intoxicated and the class B misdemeanor of operating a motor vehicle in a careless and imprudent manner. Robertson filed a motion to suppress, and the circuit court held a hearing. The evidence at the hearing established that, in the early morning hours of May 2, 2009, Missouri State Highway Patrolman Patrick Sublette was in his patrol car and was parked in a driveway accessing Route E in Boone County. At approximately 1:30 a.m., Sublette noticed a maroon, Toyota Tacoma pickup truck traveling northbound on Route E in an area with a posted speed limit of 40 miles per hour. When Sublette’s radar gun indicated that the truck was traveling at a speed of 53 miles per hour, Sublette pursued the truck to initiate a traffic stop. Although Sublette temporarily lost sight of the truck, a short time later, he saw the truck enter Route E from Rose Drive, and Sub-lette initiated a traffic stop at approximately 1:36 a.m.

After stopping the truck, Sublette walked up to the side of truck. The driver of the vehicle provided Sublette with a driving license identifying herself as Lindsey Robertson. Sublette saw four people within the vehicle and noticed a strong odor of intoxicants coming from the vehicle’s interior. Upon Sublette’s request, Robertson exited her vehicle to join Sub-lette in his patrol car. Sublette continued to notice a strong odor of intoxicants upon Robertson’s person. Sublette asked Robertson about her whereabouts and whether she had consumed alcohol prior to driving. Robertson explained that she was coming from The Field House in Columbia and that she had consumed about a beer-and-a-half. Robertson initially denied turning off of Route E after passing Sublette’s patrol car, but, later, she admitted that she had in fact had turned off Route E because a passenger notified her that he was going to vomit. Sublette then left his patrol car to identify the intoxicated passengers in the truck. When he left his patrol car, Sublette allowed Robertson to remain in the patrol car to telephone her father on her cellular telephone about whether to perform field sobriety tests. Upon returning to his car, Sublette asked Robertson if she would submit to field sobriety tests including a preliminary breathalyzer test, and Robertson agreed.

When the State asked Sublette at the suppression hearing what he observed when he administered the portable breathalyzer test, Robertson’s attorney objected based upon a lack of foundation for the test. The circuit court initially sustained the objection. The State then questioned Sublette further about the portable breathalyzer test machine:

Q. Trooper Sublette, are you familiar with the PBT [ (portable breathalyzer test) ] that you carry?
A. Yes.
Q. And is it one that’s assigned specifically to you?
A. Yes.
Q. Have you operated it throughout your capacity as a highway patrolman?
A. Yes, I have.
Q. Are you aware of how often it’s calibrated and who might calibrate it?
A. Yes.
Q. Okay. Who calibrates it?
A. Down at the radio shop at Troop F Headquarters—
[ROBERTSON’S ATTORNEY]: Well, Judge, I’m going to object. This is hearsay, obviously, if somebody else is going to be—
THE COURT: Objection will be sustained.
[ASSISTANT PROSECUTING ATTORNEY]: The question is whether he’s aware that it’s calibrated, your Hon- or.
THE COURT: And I think he was testifying to hearsay. Lay your foundation if it’s not.
BY [ASSISTANT PROSECUTING ATTORNEY]:
Q. It is calibrated at Troop F Headquarters?
A. When I have my PBT calibrated, I take it.to the radio shop and I — one of the radio operators does it while I stand there and watch them. They have a wet bath solution. I watch them hook up the PBT to the wet bath, blow into it, and observe the reading. It’s a—
[ROBERTSON’S ATTORNEY]: I’ll—
A. —.10 solution, and it’s always—
[ROBERTSON’S ATTORNEY]: Judge, I’m going to object again to the lack of foundation for this. It’s beyond the—
THE COURT: Objection will be overruled.
BY [ASSISTANT PROSECUTING ATTORNEY]:
Q. How often do you take that down there to have it calibrated?
A. We don’t have a set policy on how often it has to be taken down. Looking at my maintenance records on it, it appears that I take it down about every two months or so.
Q. All right. Now, you’ve had opportunities to utilize this portable or preliminary breath test in your experience. Is that right?
A. Yes.
Q. And do you compare the results that you would read on the preliminary test with the Data Master or any other type of breathalyzer at the locations you would use those, whether it be the sheriffs department or other departments?
A. I don’t keep a specific logging comparing one-to-one. However, it is my experience that the reading on the preliminary breath test is generally consistent—
[ROBERTSON’S ATTORNEY]: Well, Judge, I’m going to object. This is, again, lack of foundation for the reading on the portable breath test, plus definitely lack of foundation on the evi-dentiary breath test. He’s just generally talking about — He’s talking about other tests and we don’t know what he’s talking about.
THE COURT: Objection will be overruled.
BY [ASSISTANT PROSECUTING ATTORNEY]:
Q. Okay. You found them to be consistent with each other?
A. They are — I have never found an inconsistency in them. They are generally consistent. If I were to ever find an inconsistency, then I would ask that the unit be replaced or recalibrated or checked out. In the three years I’ve had it, I’ve never had a problem with it.
Q. And on May 2nd of 2009, did you have any reason to believe that your preliminary breath test in your vehicle was improperly maintained or inaccurate?
A. No.
Q. When Ms. Robertson provided a breath sample for the PBT, what did you observe?

Robertson’s attorney then objected again for lack of foundation, and the circuit court overruled the objection. Robertson’s attorney asked to voir dire the witness and engaged in this inquiry with Sublette:

Q. Trooper, you do not know and do not understand the scientific process by which this instrument takes a sample of breath and determines the blood-alcohol content; correct? That’s outside your expertise. Is that right?
A. That’s fair, yes.
Q. So you don’t know that this instrument uses science that’s generally accepted by the scientific community. Is that correct? You don’t know how it works?
A. I know that I operate the — the PBT that I have has an automatic mode and a manual mode. I operate it in the automatic mode. And' according to the manual, it says that if they provide an adequate breath sample, the instrument observes the curve and length of the breath and takes a reading.
Q. But the science behind it, you don’t under — you don’t know what the science even is?
A. I don’t have a science degree with regard to the PBT.
Q. All right. So you don’t know that that thing is based upon science that’s generally accepted in the community or among scientists, do you?
A. I don’t know the foundation behind that.

Robertson’s attorney then renewed his objection regarding the portable breathalyzer test for lack of foundation, and the circuit court overruled the objection. On cross-examination, Sublette said that he did not know when the portable breathalyzer machine was calibrated prior to May 2, 2009, which was the date of the arrest in this case. Sublette said that “[i]t wasn’t until July of 2009 that [he] started taking it to the radio shop to have it calibrated.”

In regard to the portable breathalyzer test, Sublette testified that, at 2:03 a.m., he gave Robertson the breathalyzer test using the Lifeloc Portable Breath Test machine. Prior to administering the portable breathalyzer test, Sublette asked Robertson if she had anything in her mouth. While the portable breathalyzer machine was in automatic mode, Sublette collected a breath sample which showed a reading that was in excess of 0.08 percent.

Sublette then asked Robertson to perform other field sobriety tests, such as counting and reciting portions of the alphabet, as well as balance and walking tests. Robertson was able to do the counting and alphabet tests. On the one-leg stand test and the walk-and-turn test, Sub-lette noticed no standard clues of impairment.

During his contact with Robertson, Sub-lette said that he noticed that Robertson’s eyes were watery, bloodshot, and glassy. Sublette also categorized Robertson’s attitude as argumentative. When he asked Robertson where she would rate herself on a scale if one equals “being completely sober” and ten equals “being falling-down drunk,” Robertson indicated that she was a “two.”

Just prior to her arrest at 2:23 a.m., Robertson provided a second breath sample into the portable breathalyzer machine. Sublette observed a result well in excess of 0.08 percent. Prior to this breath sample, Sublette had continuously observed Robertson for fifteen minutes. Sublette then placed Robertson under arrest for the offense of driving while intoxicated. At the suppression hearing, the video recording of the stop, which included the interactions between Sublette and Robertson and the field sobriety tests, was received into evidence.

After the suppression hearing, the circuit court issued an order granting Robertson’s motion to suppress. The circuit court found that, because no record existed establishing that the portable breathalyzer machine had been calibrated prior to Robertson’s arrest, no probable cause existed for the arrest. The State appeals that ruling via an interlocutory appeal pursuant to section 547.200.1(3), RSMo 2000, which allows the State through the prosecuting attorney to appeal “from any order or judgment the substantive effect of which results in .... [suppressing evidence.”

In its sole point on appeal, the State contends that the circuit court erred in granting Robertson’s motion to suppress because the results of the portable breathalyzer test, which was administered prior to Robertson’s arrest, were admissible as evidence of probable cause and the totality of the circumstances in this case establish probable cause to arrest Robertson for driving while intoxicated. We disagree.

Our review of the circuit court’s sustaining a motion to suppress is limited to determining whether or not substantial evidence supported the ruling. State v. Peery, 303 S.W.3d 150, 153 (Mo.App.2010). We consider all the evidence and reasonable inferences in the light most favorable to the circuit court’s ruling and defer to the circuit court’s factual findings and credibility determinations. Id,.; State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). We will reverse a circuit court’s ruling on a motion to suppress only if the decision is clearly erroneous and leaves us with a definite and firm impression that a mistake has been made. State v. Dixon, 218 S.W.3d 14, 18 (Mo.App.2007). However, although we review the circuit court’s conclusions as to the historical facts under a clearly erroneous standard, the issue of whether or not the Fourth Amendment has been violated is an issue of law that we review de novo. Peery, 303 S.W.3d at 153.

The State contends that the circuit court erred in concluding that the results of the portable breathalyzer test had to be suppressed because no record existed establishing that the portable breathalyzer machine had been calibrated prior to Robertson’s arrest. The State asserts that the results of the portable breathalyzer test could be considered for determining probable cause, regardless of evidence of calibration.

Section 577.021.1, RSMo Cum. Supp.2009, expressly permits an officer to administer a portable breathalyzer test prior to the arrest of a person suspected of driving while intoxicated. That section says: § 577.021.1. That section further provides that “[a] test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content.” § 577.021.3. The use of the portable breathalyzer test, therefore, is “strictly limited by statute.” State v. Duncan, 27 S.W.3d 486, 488 (Mo.App.2000). It is used to indicate “the presence of alcohol based on a breath sample” and “is designed for use by police officers to assist them in determining whether they have probable cause to arrest a suspect.” Id.

Any state, county or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012.

As such, the portable breathalyzer test “is not subject to the same Department of Health Regulations that govern breath analysis tests admissible to prove that a defendant was intoxicated. See Mo. Code Regs, title 19, §§ 25-30.011-25-30.060.” Id. Indeed, section 577.021.3 specifically says, “The provisions of sections 577.019 and 577.020 shall not apply to a test administered prior to arrest pursuant to this section.” Subsection 3 and 4 of section 577.020, RSMo Cum.Supp.2009, instructs that chemical tests of a person’s breath, blood, saliva, or urine to determine a person’s blood alcohol content must be performed according to methods and standards approved by the Department of Health. Pursuant to section 577.021, these methods and standards are not applicable to a portable breathalyzer test administered prior to a person’s arrest. Moreover, the requirements for the validity of chemical tests contained in section 577.026, RSMo 2000, do not apply to the administration of a portable breathalyzer test. State v. Stottlemyre, 35 S.W.3d 854, 860 (Mo.App.2001). We, therefore, agree with the State that proof of calibration of the portable breathalyzer machine was not required for admissibility of the results of the portable breath test under section 577.021.

Admissibility of the results of the portable breath test, however, is not the issue because the circuit court clearly admitted the results into evidence for the purpose of the hearing on the motion to suppress. The State’s real complaint is that the circuit court did not accept and rely on the results of the portable breath test. Viewing the evidence in the light most favorable to the circuit court’s findings and ignoring any evidence to the contrary, as we must do in this case, it appears that the circuit court found the results of the portable breath test inconsistent with all the other evidence in the case. The circuit court received into evidence a video recording of the stop that included the interactions between Robertson and the trooper and included the field sobriety testing. Even the trooper conceded that, but for the results of the portable breath test, he probably would not have had probable cause to arrest Robertson for driving while intoxicated. Thus, to establish probable cause, the State was willing to rely solely on the results of the portable breath test. The circuit court, however, was not so willing given that it had reservations about the calibration history of the portable breath machine.

Indeed, the Missouri Supreme Court has recognized in a driving license revocation case that the lack of calibration of a portable breathalyzer machine may impact the circuit court’s finding as to whether the results obtained from the portable breathalyzer test were credible. York v. Dir. of Revenue, 186 S.W.3d 267, 272 (Mo. banc 2006), overruled on other grounds by White v. Dir. of Revenue, 321 S.W.3d 298 (Mo. banc 2010). In York, the circuit court had found that the officer lacked the proper training to administer the portable breathalyzer test and that “no evidence existed to establish that the device used was properly calibrated, maintained or even working at the time it was used.” Id. The Supreme Court deferred to the circuit court’s credibility determinations and found that the circuit court acted within its discretion when it ruled that the portable breathalyzer test evidence was not credible. Id.

Further, in Paty v. Director of Revenue, 168 S.W.3d 625, 632 (Mo.App.2005), this court’s Eastern District found in a driving license revocation case that a circuit court could disregard the results of a portable breathalyzer test as unreliable. The Paty court deferred to the circuit court’s factual findings that the portable breathalyzer machine had probably never been calibrated and that the officer did not know how the machine worked internally, had not received any training in the use of the machine, and did not properly administer the test. Id. at 631-32.

The trooper in this case testified that he did not know when the portable breathalyzer machine was calibrated prior to May 2, 2009, which was the date of arrest in this case. The trooper said that “[i]t wasn’t until July of 2009 that [he] started taking it to the radio shop to have it calibrated.” Moreover, the trooper testified that he did not know how the portable breathalyzer machine worked, in that he did not understand the scientific process by which the machine took a sample of breath and then determined the blood-alcohol content. In finding that no record existed establishing that the portable breathalyzer machine had been calibrated prior to Robertson’s arrest, we infer that the circuit court questioned the reliability of the portable breathalyzer test and concluded that the portable breathalyzer test was not credible. We, therefore, defer to the circuit court’s determination on the credibility of the portable breathalyzer test evidence. Sund, 215 S.W.3d at 723.

Without the portable breathalyzer test results, the trooper in this case did not have probable cause to arrest Robertson. Indeed, the trooper testified that, although Robertson smelled of intoxicants and had watery, bloodshot, and glassy eyes, he probably would not have arrested Robertson without the results from the portable breathalyzer test. Robertson performed several sobriety tests without any difficulty. She counted and recited the portions of the alphabet that the trooper asked her to do, and she completed the one-leg stand test and the walk-and-turn test without any standard clues of impairment. Although Robertson was stopped for speeding, speeding is not a sign of intoxication. After reviewing and taking into account the credibility of all the evidence, the circuit court exercised its discretion and sustained the motion to suppress. We find that the circuit court did not clearly err in granting Robertson’s motion to suppress the evidence concerning the portable breathalyzer test. We affirm.

All concur.

      . For clarity, the results of the portable breath test were admitted by the circuit court at the suppression hearing.

      . This is a criminal case, and, therefore, the test for admission of scientific evidence is the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In a civil matter, such as York, our courts follow the test set forth in section 490.065, RSMo 2000. However, even if the foundational requirements for admission of scientific evidence are met, it is still a discretionary decision for the circuit court to admit or deny the admission of the proffered evidence. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 173 (Mo.App.2006). While relevant to the issues in a motion to suppress, the use of the portable breath test to establish probable cause for the arrest may not be relevant to the issues before a jury in a criminal trial. This is especially true when the indicium of reliability of the probable breath test is called into question, as was done in this case.


author: DON E. BURRELL, Judge.

text:
    In re The MARRIAGE OF: Cindy A. ANGELL and Donald C. Angell. Cindy A. Bauer, f.k.a. Cindy A. Angell, Petitioner-Respondent, v. Donald C. Angell, Respondent-Appellant.
    No. SD 30114.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 16, 2010.

      James R. Sharp, Springfield, MO, for appellant.
    Charles (Ed) Lee, Springfield, MO, for respondent.
   DON E. BURRELL, Judge.

Donald C. Angelí (“Father”) appeals a modification judgment that increased his court-ordered child support from $650 per month to $1,200 per month. Father challenges the judgment in two points relied on that claim: 1) no substantial evidence supported the trial court’s finding that a substantial and continuing change of circumstances had occurred since the time of the court’s prior decree; and 2) the monthly income attributed to Father was not supported by substantial evidence and was based on a misapplication of the law in that his necessary business expenses were not deducted from his gross income.

Because the evidence that the child of the parties (“Child”) had a significant and ongoing need for professional counseling and medication constituted substantial evidence of a substantial and continuing change in Child’s circumstances since the time of the divorce, and the trial court properly applied the law in calculating Father’s income, we affirm the trial court’s modification judgment.

Factual and Procedural Background

The facts presented here are in accordance with our standard of review — the facts, and the reasonable inferences drawn therefrom, are viewed in the light most favorable to the judgment. Selby v. Smith, 193 S.W.3d 819, 824 (Mo.App. S.D.2006). Father and Cindy A. Bauer (“Mother”) divorced on December 22, 2004. Child was a toddler at the time of the divorce.

The Dissolution Action

The parties’ dissolution decree granted them joint legal custody of Child and designated Mother’s address as the address of Child for educational and mailing purposes. The trial court found Mother’s gross income to be $2,540 per month (from a pizza business awarded to Mother in the decree). It determined Father’s gross income to be $7,420 per month (as an employee of New York Life Insurance Company). The trial court’s Form 14 child support calculation produced a presumed support amount of $771 per month. By agreement of the parties, the trial court deviated downward from the presumed amount and ordered Father to pay Mother child support of $650 per month.

The Modification Action

Both parties remarried. At the time the modification action was tried — over portions of five days scattered between June 24, 2008, to July 28, 2009 — Father had two additional children with his second wife, and Mother had two additional children with her second husband. Father continued to work for New York Life and testified that his income was based upon the productivity of the agents who worked under him during the previous year, plus monthly bonuses paid when an “agent hits a certain amount of income every month.... ” In 2007, Father’s gross income was $194,749.00. From January 1, 2008, to April 25, 2008, Father had earned $74,300.61.

Mother submitted a proposed Form 14 that used a monthly income for Father of $19,415.91 — an extrapolation from the income Father had earned from January 1, 2008, to April 25, 2008 ($74,300.61). In November 2005, Mother sold the pizza business she had been awarded in the divorce for $115,000 and began working part-time (two days a week) as a self-employed nail technician. Mother, using the income she had earned from January 1, 2008 through June 12, 2008, testified that she made approximately $431.50 per month “gross profit,” after paying salon expenses and overhead, and used that figure for her Form 14 income.

Father did not prepare his own Form 14 calculation. Instead, he took photocopies of Mother’s proposed Form 14 calculations and re-labeled them as Father’s exhibits 33a and 33b.

When the modification trial concluded (in July 2009), Child was eight years old and had been seeing a counselor since March 2006. At the time the modification action was tried, Child was seeing his counselor about once every three weeks. Child had not been seeing a counselor at the time of the parties’ divorce. Child’s counselor recommended that counseling continue with sessions remaining on the same schedule for awhile, then decrease to once a month, and eventually cease altogether.

After he started counseling, Child was diagnosed as having attention deficit hyperactivity disorder (ADHD). Medication was prescribed, and Child continued to take it at the time the modification action was tried. Under the terms of the dissolution judgment’s joint parenting plan, Father was obligated to pay for Child’s medical insurance, plus 75% of any uninsured medical expenses. Mother was obligated to pay the remaining 25%. Child participated in Cub Scouts, soccer, and “T-ball.” He participated in his enlarged families’ events such as trips, camping, and birthday celebrations. Child’s counselor testified that the custody arrangement with “[MJother monitoring [Child’s] day-to-day school activities” seemed to be working for Child and she hesitated to recommend a change in his school-week schedule. Mother testified that the $650 per month in child support she received from Father did not come close to covering Child’s expenses.

The trial court found that, since the time of the parties’ divorce, there had been “substantial changes of a continuing nature with regard to the circumstances of the parties such that the original court ordered child support amount of $650 per month is now unreasonable and that the same should be modified.... ” The trial court found that Mother was “no longer working full time outside the home or on weekends, making [Mother] more available as a child care provider[.]”

The trial court found that none of the Form 14 calculations submitted by the parties were correct and calculated its own. The trial court determined that Father’s monthly gross income was $19,416 and that Mother’s monthly gross income was $432 per month. Although the presumed amount of Father’s child support obligation based on that calculation was $1,547 per month, the trial court found it unreasonable and departed downward to the sum of $1,200 per month. Additional relevant facts will be set forth as necessary in our analysis of Father’s points.

Standard of Review

A trial court’s decision to modify child support is “reversed only for abuse of discretion or misapplication of the law.” Mann v. Hall, 962 S.W.2d 417, 419 (Mo.App. W.D.1998). “Our review ... is limited to determining whether the judgment is supported by substantial evidence, whether it is against the weight of the evidence, whether it erroneously declares the law or whether it erroneously applies the law.” Selby, 193 S.W.3d at 824. In addition, deference is granted to the trial court’s superior position to determine the credibility of witnesses. Id. “The trial court is therefore free to believe or disbelieve part, all, or none of the testimony of any witness, and may disbelieve even uncontra-dicted testimony.” Id.

Analysis

Point I: Sufficiency of Evidence of Changed Circumstances

Father’s first point states:

The trial court erred in finding that there was a substantial change of a continuing nature with regard to the circumstances of the parties as to make the terms of the court’s original child support order of $650.00 per month unreasonable because said finding was not based on substantial evidence in that the original child support order was not based on the Missouri Child Support Guidelines at the time it was entered in 2004 and therefore the presumption that a substantial and continuing change in circumstances exist if the presumed child support amount is different from the current amount by twenty percent or more is not applicable to the case at bar; there was no evidence that the current needs of the minor child are substantially different now than at the time the original child support order was entered in 2004; and there was evidence that Mother voluntarily reduced her income since the entry of the original dissolution decree.

Before addressing his point, we must first deal with Mother’s claim that Father failed to preserve this issue for our review. Mother argues that “[t]he trial court’s findings and judgments [sic] for increasing [Father’s] child support liability can not be challenged on appeal because [Father] failed to follow the law on evidence, in that Father failed to submit any of his own Form No. 14 (Child Support Worksheet) calculations at trial.” In support of her claim, Mother cites Ibrahim v. Ibrahim, 825 S.W.2d 391, 398 (Mo.App. S.D.1992); Hackmann v. Hackmann, 847 S.W.2d 193, 194 (Mo.App. E.D.1993), and Boudreau v. Benitz, 827 S.W.2d 732, 737 n. 15 (Mo.App. E.D.1992), as supporting the proposition that a parent “challenging] a child support judgment must have submitted a Form No. 14 at trial or else appellate review is barred.”

Father’s response to Mother’s lack of preservation argument is that the fact that some of his exhibits were the same as Mother’s “should not matter as the issue at trial, and on this appeal, is whether there was a sufficient change in circumstances since the original child support order was entered to justify a new support obligation being entered.” We agree.

In Ibrahim, a father contested the child support amount awarded at the time of his divorce on the grounds that it did not conform to the requirements of Rule 88.01 regarding the calculation of presumed child support using Form 14. 825 S.W.2d at 397.

In denying the point on appeal, we stated:

On appeal, a party who wishes to challenge the child support award on the basis that it does not conform to the requirements of Rule 88.01 may include in the legal file copies of Civil Procedure Form No. 14 that were before the trial court. [The father] did not do this. He has not shown that he submitted a completed Civil Procedure Form No. 14 to the trial court. This is akin to pursuing a different theory for recovery on appeal than was pursued at trial. As such, “this Court will not, on review, convict a lower court of error on an issue which was not put before it....” Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982).

Id. at 398. In Hackmann, the Eastern District reached a similar conclusion, stating “[fjather has not filed a Form No. 14. Because Rule 88.01 was mandatory at the time the modification proceeding came to trial, we find all of [father’s claims are barred from appellate review under the reasoning of Ibrahim.” 847 S.W.2d at 194. In Boudreau, it exercised its power to resolve the child support dispute “[i]n view of the long and bitter nature of this litigation,” 827 S.W.2d at 736, but noted

Rule 88.01, formulated in 1989 at the behest of § 452.340.7, RSMo Supp.1989, requires both parties to complete Form 14, which is a worksheet for calculating the “presumed child support amount.” The completed forms are to be made part of the record. Here no form or forms were included in the legal file. An appellant seeking relief from a child support award without including these completed forms is doing so at his or her peril. See Ibrahim v. Ibrahim, 825 S.W.2d 391 (Mo.App. S.D.1992).

Id. at 737 n. 15.

Ibrahim has been held not to bar appellate review if the parent does not challenge the trial court’s calculation of child support, but instead contests proof of the threshold issue of a substantial and continuing change in circumstances. Bell v. Gilliam, 852 S.W.2d 198, 200 (Mo.App. S.D.1993). Although the mother in Bell failed to file a Form 14, we held that that failure did not bar review of her claim that the required change in circumstances had not been demonstrated.

We do not agree that, under the circumstances of the instant case, this failure [to submit a Form 14] is determinative of this appeal. Here, [mother’s] challenge to the child support award is not on the basis that it fails to, but should, conform to the child support guidelines calculated pursuant to Civil Procedure Form No. 14 and presumed correct by Rule 88.01. Rather, her complaint is that [father] failed to satisfy his burden to show a substantial and continuing change of circumstances so as to authorize the modification. Therefore, the instant case is distinguishable from Ibra-him, and the issue here is not controlled by it.

Id. See also Brooks v. Brooks, 871 S.W.2d 42, 44 (Mo.App.E.D.1993) (father’s failure to submit Form 14 did not bar appeal where his “challenge is directed only to mother’s failure to satisfy her burden to show a substantial and continuing change of circumstances so as to authorize the modification”). Thus, Father’s argument in his reply brief that any failure to file Form 14 at trial “would not have precluded him from challenging the trial court’s finding that there was a substantial and continuing change in circumstances to warrant modifying the original child support order[ ]” is correct.

Turning now to that challenge, Father offers three arguments in support of his position: 1) Mother could not establish a prima facie case of a substantial change in circumstances by virtue of the difference between child support as stated on the original Form 14 and the trial court’s new Form 14 calculation; 2) the evidence did not demonstrate that Child’s current needs have substantially changed since the dissolution decree was entered in 2004; and 3) Mother chose to voluntarily reduce her income and Father “should not be penalized for Mother’s voluntary actions in selling the business which reduced her income.”

First, Father argues that “the presumption that a substantial and continuing change in circumstances existfs] if the presumed child support amount is different from the current amount by twenty percent or more is not applicable to the case at bar[.]” The referenced presumption is set forth in section 452.370.1, which states:

If the application of the child support guidelines and criteria set forth in section 452.340 and applicable supreme court rules to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, a prima facie showing has been made of a change of circumstances so substantial and continuing as to make the present terms unreasonable, if the existing amount was based upon the presumed amount pursuant to the child support guidelines.

(Emphasis added).

The basis for Father’s argument is that the original child support ordered was not the presumed child support amount of $771 as calculated on Form 14, but was instead the reduced amount agreed to by the parties of $650. Father cites Hueckel v. Wondel, 270 S.W.3d 450 (Mo.App. S.D.2008) for our statement that:

The twenty-percent provision in section 452.370.1 is inapplicable when the existing child support amount is not based upon the presumed amount under the child support guidelines, and a moving parent must submit other evidence showing a substantial and continuing change of circumstances, such as changes in the parents’ respective financial conditions and changes in the child’s needs.[]

Id. at 456.

While the parties’ briefs primarily address the statutory presumption, it appears that Father is attacking a presumption that was never relied on by the trial court — its modification judgment contains no reference to it. While “[t]he statute provides that a twenty-percent change constitutes a prima facie case of substantial and continuing change; [ ] it does not require that the movant show a twenty-percent change in order to meet his burden of proving a substantial and continuing change.” Rogers v. Rogers, 923 S.W.2d 381, 385 (Mo.App. W.D.1996) (emphasis in original). “Instead, a substantial and continuing change in circumstances may be established in other ways.” Eaton v. Bell, 127 S.W.3d 690, 697 (Mo.App. W.D.2004). In Hueckel (the very case cited by Father), the modification of child support was affirmed because, even without the statutory presumption of a change in circumstances, there was evidence “that daycare and counseling for the child were now incurred and [fjather’s employment had changed to full-time employment.” 270 S.W.3d at 456. As a result, “[substantial evidence supported] a finding that there was a substantial and continuing change of circumstances.” Id.

Mother cites In re Marriage of Cook, 636 S.W.2d 419 (Mo.App. S.D.1982) as recognizing that inflation and the needs of a growing child may serve as valid grounds for a modification of child support. Id. at 421. “Inflationary trends and the needs of a growing child are valid reasons for modification if it is demonstrated that these conditions render the original decree unreasonable.” Id.

As noted by Father, Mother did not specifically document all of Child’s expenses or demonstrate which specific items had increased since the 2004 divorce. The income and expense statement Mother introduced into evidence at the start of the modification trial showed her with an $11,000 per month shortfall that she said was covered by her current husband and credit cards. Mother testified that Child’s current monthly expenses totaled $1,240, but she conceded that this amount included an inaccurate amount of $120 for counseling. She also admitted her figures were estimates and “guesstimates.”

Nonetheless, “[a] party’s testimony as to children’s expenses is sufficient evidence upon which to base an award of child support. Such testimony need not be proved with absolute particularity, and the trial court may, at its option, accept or reject such evidence.” Davies v. Davies, 887 S.W.2d 800, 804 (Mo.App.E.D.1994) (citation omitted). Mother’s testimony was sufficient to prove that Child’s needs had increased in the four-and-a-half years that had elapsed between the divorce and the end of the modification trial. Some of those changes were easily predictable at the time of the divorce and some were not. Easily predictable was that Child would change from a preschooler to a student. It could also be anticipated that Child would become involved in extracurricular activities as he grew, but the extent of that future participation is not easily predicted.

The significant changes in this case were not predictable at the time of the divorce. Child’s family has grown on both sides to include a total of four other children who both generate and participate in family activities. More importantly, Child was not in counseling at the time of the divorce. That counseling began in 2006 and remained ongoing at the time of the modification trial. During the course of Child’s counseling, he was diagnosed as having ADHD and began taking medication. Child’s need for counseling is expected to continue for some time.

We defer to the trial court’s determination of the credibility of the witnesses and the weight to be given to their testimony. Whether we would have reached the same conclusion based on the evidence presented is not the issue. When we view the evidence in the light most favorable to the judgment, we find that the trial court did not abuse its discretion in determining that a substantial and continuing change in Child’s needs had occurred since the time of the divorce.

“Once the party seeking modification has met the burden of showing changed circumstances, the child support shall be determined in conformity with criteria set forth in section 452.340 and applicable Supreme Court Rules.” Eaton, 127 S.W.3d at 697; see also section 452.370.2. Father is correct that “an increase in the income of a parent obliged to pay child support is not, by itself, a sufficient reason to increase the award.” Bellis v. Bellis, 664 S.W.2d 12, 13 (Mo.App. S.D.1983). “Simply stated, absent proof of increased expenses of the children, the changes in income of Mother and Father are irrelevant.” Talley v. Bulen, 193 S.W.3d 881, 886 (Mo.App. S.D.2006). “However, once there is a showing of changed circumstances so substantial and continuing as to make the terms of the existing order unreasonable, the parent’s increased income or enhanced wealth becomes a relevant factor in judging his ability to provide greater support.” Bellis, 664 S.W.2d at 13 (citations omitted).

Father argues that the trial court erred in finding the original child support order unreasonable because “Mother voluntarily reduced her income since the entry of the original dissolution decreet,]” citing Payne v. Payne, 206 S.W.Bd 379 (Mo.App. E.D.2006), for its approval of imputing income to a parent in the proper case as a means of “discouraging] parents from deliberately limiting their work to reduce income and thus evade responsibilities to their families!.]” Id. at 384. Father is correct that “[t]rial courts have discretion to impute income to an underemployed or unemployed parent when calculating child support awards.” Id. Father’s increase in income does not automatically translate into an increase in child support. It also follows that Mother’s decrease in earnings does not automatically translate into a decrease in her responsibility to support Child. Talley, 193 S.W.3d at 886.

In any event, an imputation of income to Mother in this case would not help Father for three reasons. First, as discussed above, Father’s argument does not address the trial court’s finding that Child’s needs had grown and changed despite increases or decreases in his parents’ incomes. Second, Child entered counseling after Mother sold the pizza business and the counselor recommended that Child’s school-week schedule with Mother continue because it was working for Child. “What constitutes the appropriate circumstances to impute income is fact-dependent and must be determined case-by-case.” Payne, 206 S.W.3d at 385. The trial court found that Mother was “no longer working full time outside the home or on weekends, making [Mother] more available as a child care provider!.]” While the evidence would have supported a conclusion by the trial court that Mother could work outside the home a bit more, the trial court did not abuse its discretion in determining that Mother had not deliberately reduced her income as a means of reducing her responsibility to support her family.

Finally, as Mother points out in her brief, “even if the trial court had imputed to Mother her former monthly earnings in the pizza business, [ ] $2,540.25, that would have had little or no impact on [Father’s modified child support liability as determined by the trial court.” When Mother’s income as stated on the trial court’s Form 14 is replaced with $2,540.25, the presumed child support amount would be $1,275 with credit to Father for overnight visits and no credit to Mother for any additional child rearing costs — an amount still exceeding the $1,200 amount actually ordered by the trial court.

The trial court did not abuse its discretion in determining that a substantial and continuing change in Child’s circumstances had occurred since the time of the parties’ divorce that made the previous child support amount unreasonable. Point one is denied.

Point II: Sufficiency of Evidence of Father’s Income

Father’s second point asserts:

The trial court erred in determining the income of Father in calculating the presumed child support amount because said finding was not based on substantial evidence and misapplied the law in that the trial court based its finding on Father’s income on the gross amount of money paid to him by New York Life Insurance Company through April 25, 2008 without taking into consideration Father’s ordinary and necessary business expenses required to earn that income; and the income imputed to Father of $19,416.00 per month greatly exceeds Father’s historical income history and did not take into consideration the downward turn of the economy that will inevitably reduce his income.

As earlier noted, Father adopted Mother’s Form 14 calculations as his own. One of the Form 14 calculations submitted by Father showed Father’s gross monthly income to be $19,415.91. The trial court used that figure (rounding up .09 to $19,416) on its Form 14 calculation. Father will not now be heard to challenge the very income figure he provided. “A party cannot complain on appeal about an alleged error in which that party joined or acquiesced at trial.” In re Marriage of Gardner, 973 S.W.2d 116, 126 (Mo.App. S.D.1998). See also Blevins v. Blevins, 249 S.W.3d 871, 875 (Mo.App. W.D.2008) (father cannot invite error by filing a Form 14 that imputed no income to mother and then complain that trial court imputed no income to mother).

Father’s second point is also denied, and the judgment of the trial court is affirmed.

BARNEY, P.J., and LYNCH, J., Concur.

      . Both the original dissolution case and the instant action to modify the decree were tried before a family court commissioner, whose recommended findings and conclusions were tlien adopted by an associate circuit judge as the judgment of the circuit court. We collectively refer to the commissioner and adopting judge as "the trial court.”

        . See Civil Procedure Form No. 14, used pursuant to Rule 88.01. All rule references are to Missouri Court Rules (2009).

      . But Father’s second point goes on to challenge the actual amount of that modified award. It is only at that point that Father’s adoption of Mother's Form 14 will prove to be his undoing.

      . Unless otherwise noted, all statutory refer-enees are to RSMo 2000.

      . "A finding that a party's income increased more than 20 percent, by itself, is not a valid basis for a prima facie showing of a substantial change of circumstances warranting a modification of child support.” State ex rel. Boston v. Tuckness, 958 S.W.2d 325, 326 (Mo.App. W.D.1998). However, the increase in a parent's income is still relevant to consider along with other factors. Id.

        . In Hueckel, the original child support was $375 per month, a downward deviation from the presumed Form 14 amount of $409 per month. 270 S.W.3d at 452. The precise amount of the new child support order was not disclosed in the opinion, perhaps because the father failed to include "facts in his statement of facts to support his allegation regarding a twenty-percent change in the child support amount.” Id. at 456.

      .But, "[wjhere the time between the original award and the modification is relatively short, the movant does not carry his burden simply by testifying to predictable general increases in the children’s expense due to aging and inflation, since we presume that such factors are taken into account in making the original award." Id. In Cook, less than 14 months had elapsed from divorce to the modification trial and the court gave "the increased age of the children and the effects of inflation little value[J” Id. Here, the period is much longer.

      . Certainly it was not easily predictable that Child would be participating in events involving four other siblings he had acquired since the time of the divorce.

      . Section 452.370.2 provides: "When the party seeking modification has met the burden of proof set forth in subsection 1 of this section, the child support shall be determined in conformity with criteria set forth in section 452.340 and applicable supreme court rules.”

      . In making findings concerning custody, the trial court considered the testimony of Child’s counselor and stated:
      [C]hildren with "ADHD,” which includes [Child], need stability and consistency in their care and home and school environments, and that "ADHD” children do not handle significant changes well, such as a change of school or residential custodian. In fact, the evidence showed such significant changes could be detrimental to [Child], and that [Child] has thrived, been well cared for and made significant progress in coping with his "ADHD” under the current ‘residential custody’ placement with [Mother], The Court recognizes that [Father] has contributed to [Child]’s care and progress in his treatment of "ADHD.”

      . The trial court found that Mother's income of $432 did "not exceed the amount set forth on the table in the directions for preparation of die Form 14 Worksheet which would enti-Üe a line 11 adjustment.”


author: VICTOR C. HOWARD, Judge.

text:
    Gary ANDERSON, Appellant, v. INT’L ASSOC. OF OPERATIVE MILLERS, Respondent.
    No. WD 72082.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2010.

      Reginald C. Giffin, for Appellant.
    Vaughn Burkholder, for Respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   VICTOR C. HOWARD, Judge.

Gary Anderson appeals the trial court’s grant of summary judgment in favor of the International Association of Operative Millers (“IAOM”) on his retaliatory discharge claim. On appeal, Anderson contends that the trial court erred in granting IAOM’s motion for summary judgment because genuine issues of material fact existed as to whether: (1) Anderson’s report of a potential antitrust violation to the president of IAOM constituted actionable whist-leblowing; (2) his employment was terminated in retaliation for whistleblowing; and (3) those who terminated his employment had knowledge of his whistleblowing. The judgment of the trial court is affirmed.

Factual and Procedural Background

Gary Anderson filed a petition against his former employer, IAOM, alleging that IAOM terminated his employment on May 30, 2007, in retaliation for Anderson’s report of a potential antitrust violation by one of IAOM’s committees. Anderson, who was the executive vice president of IAOM, alleged that he reported the violation to James Doyle, IAOM’s president at the time. According to Anderson’s petition, Doyle then engaged in a pattern of retaliatory conduct against Anderson which eventually led to the termination of his employment by the Board of Directors (“the Board”). IAOM filed a motion for summary judgment, which the trial court granted.

IAOM is a not-for-profit corporation and a trade association of flour millers. Anderson began his employment with IAOM on September 1, 2001, and served as its executive vice president until his employment was terminated on May 30, 2007. Doyle was a member of IAOM’s Executive Committee from 2003 until May 2007, was a member of the Compensation Committee from May 2006 to May 2007, and served as IAOM’s president from May 2005 to May 2006.

In May or June of 2005, shortly after Doyle began his term as president, Anderson decided to voice concerns regarding the activities of IAOM’s Employee Relations Committee (“the ERC”). In 2002, Anderson reviewed the minutes of ERC meetings and began to believe that the ERC was engaging in the suppression of wages in violation of antitrust laws. Anderson’s report to Doyle occurred during a routine telephone conversation during which he, as the executive vice president, would discuss activities that the president would participate in throughout the upcoming year. In his deposition, Anderson stated that he made the following comments to Doyle regarding the potential antitrust violation:

Jim, I have some serious concerns about what’s taking place in [the ERC]. I believe that what they’re doing in [the ERC] is illegal. I’ve worked with two associations that have had consent decrees with the Justice Department before. I’ve worked in a multi-employer bargaining association.... [W]e need to get this stopped. They’re going to get the Association and themselves in serious trouble. Will you go with me to speak to either the committee or to the committee chair and see if we can get this stopped?

After Anderson expressed his concerns, Doyle did not seem upset or angry. However, Doyle changed his tone, told Anderson that the ERC needed to clean up its minutes and said that he had to go.

In December 2005 or January 2006, Anderson and Doyle had a second phone conversation during which they discussed the development of an employee handbook. During this conversation, Anderson suggested to Doyle that “what [IAOM] could really use is a sexual harassment policy that included Board members, a conflict of interest policy that included Board members and an antitrust policy.” The two phone conversations were the only instances during which Anderson discussed any issues relating to antitrust with Doyle. Anderson never talked to anyone other than Doyle regarding his concerns about a potential antitrust violation.

Anderson alleges that after he reported the potential antitrust violation, Doyle began to engage in a pattern of retaliatory conduct that eventually led to the termination of Anderson’s employment. Most of the actions Anderson identifies were related to policy changes Doyle sought to implement during his one-year term as president of IAOM. Anderson claims that through these policy changes, Doyle began micromanaging Anderson’s office hours and his evaluations of his staff, and made information requests at times when Anderson was already overwhelmed with other work. Anderson asserts that Doyle drafted an employee handbook without input from Anderson. However, an e-mail from Doyle to Anderson reflects that Doyle drafted a set of employment policies but informed Anderson that they were not set in stone and that Doyle wanted his feedback on them. Anderson testified in his deposition that he did not believe Doyle really wanted his input on the policies but, rather, that the e-mail was Doyle’s way of letting Anderson know that he had already made the decisions regarding employment policies. Lastly, Anderson claims that Doyle began raising an issue regarding a possible conflict of interest based on the fact that Anderson had hired Q & A Marketing, his wife’s graphic design and marketing firm, to work on a quarterly publication for IAOM.

During the period of time between Anderson’s report to Doyle and his termination, Keith Horton served on IAOM’s Executive Committee. In his affidavit, Horton stated that during the time he served on the committee, he and other officers of IAOM began to develop concerns regarding Anderson’s job performance. He was concerned that Anderson was not performing his duties on time or adequately, was not performing tasks which the committee directed him to perform, and was not keeping regular office hours. On February 12, 2007, Horton sent an e-mail to Anderson asking him to update the committee members on several issues they had concerns about. In response to Horton’s inquiry regarding staff performance reviews, Anderson stated that he had not had time to complete them yet and that he objected to Board members playing any role in the staff evaluation process. As to the committee’s proposed office hours for Anderson and his staff, Anderson stated that he would not ask his staff to work an additional 2.5 hours per week without extra compensation. Horton’s e-mail also sought updates regarding the status of IAOM’s quarterly publication and IAOM’s compliance with a recent audit.

Horton found Anderson’s responses to the e-mail to be evasive and became more concerned about his job performance. Therefore, he arranged to have a conference call with Anderson in which he sought clarification on several issues, such as performance reviews, office hours, the status of IAOM’s publication, and compliance with an audit. As IAOM’s May 2007 annual conference approached, the committee still had concerns about Anderson’s job performance. Horton stated that Anderson produced inaccurate materials for the conference and that he still had not addressed a number of the issues the committee had brought to his attention in October 2006 and February 2007. Therefore, Steve Curran, the outgoing president of IAOM, called a Board meeting at which Horton, as the newly-elected president, would preside. The Board meeting took place on May 8, 2007. Several past presidents, including Doyle, were in attendance so the Board could obtain a historical perspective on the ongoing issues with Anderson.

At the conclusion of the meeting, all attending Board members unanimously voted to terminate Anderson’s employment. The minutes of the meeting reflect that those attending discussed Anderson’s failure to comply with Board directives; deficiencies in organization and printed materials at the conference; and negative feedback from IAOM members, committee members, and staff. The minutes also included a list of ten specific issues supporting the Board’s decision to termination Anderson’s employment:

Late (5 months), and inaccurate [Board] minutes.
Failure to address the “Conflict of Interest” with Q & A Marketing.
Failure to complete staff performance reviews and implement wage increases.
Failure to implement the Employee Handbooks.
Failure to outsource competitive Healthcare, without initiation of Jim Doyle.
Failure to send [Requests for Proposals] to specified cities for future conference location.
Failure to implement office hours as directed by the [Board], and failure to be at the office on a regular basis, Monday — Friday.
Failure to implement the Francis & Frank recommendations as directed by the [Board],
Failure to keep the International Miller publication up to date (publications were almost a full 12 months behind schedule).
Inaccurate conference materials.

The minutes included a statement that the board members felt Anderson’s dereliction of duty and continuous refusal to comply with Board directives constituted sufficient grounds for termination. Handwritten notes from the meeting included a notation that “Jim Doyle feels we have adequate documentation for dismissal.” Doyle also attended a meeting with several other IAOM members in which they sought legal counsel on how to proceed with the termination. However, Doyle was not a Board member and did not have a vote on the issue of whether Anderson would be discharged. Anderson was told on May 30, 2007, that his employment was being terminated.

On October 7, 2008, Anderson filed his petition alleging that he had been unlawfully discharged from his employment with IAOM in retaliation for his reports regarding possible antitrust violations. IAOM filed a motion for summary judgment, which the trial court granted. First, the court determined that Kansas substantive law applied to Anderson’s claim because Kansas had the most significant relationship to the claim. As to Anderson’s whis-tleblower claim, the court found that Anderson could not establish a causal relationship between his conversations with Doyle and the termination of his employment, citing the length of time between the conversations and the termination and the lack of any evidence that, at the time Anderson was discharged, anyone in IAOM other than Doyle knew of Anderson’s concerns or his report to Doyle. This appeal by Anderson followed.

Standard of Review

An appellate court’s review of an appeal from summary judgment “is essentially de novo.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Whether or not summary judgment should be granted is an issue of law, and “an appellate court need not defer to the trial court’s order granting summary judgment.” Id. We review the record in the light most favorable to the party against whom summary judgment was entered. Id. “Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.” Id. (citations omitted).

“Summary judgment is appropriate where the moving party establishes a right to judgment as a matter of law and that no genuine issue of material fact exists.” United Mo. Bank, N.A. v. City of Grandview, 105 S.W.3d 890, 895 (Mo.App. W.D.2003). The defending party in the lawsuit may establish a right to judgment as a matter of law by showing facts that negate any one of the elements of the claimant’s cause of action. Id.

Discussion

As a preliminary matter, Anderson contends in his first point on appeal that the trial court erred in requiring him to show by clear and convincing evidence that there were genuine issues of material fact because the trial court should have employed a preponderance of the evidence standard at the summary judgment stage. However, it does not appear from the language of its judgment that the trial court held Anderson to a clear and convincing evidence standard in the summary judgment proceedings; rather, the court merely stated when setting out the elements for a whistleblower claim that “in order to prevail on his claim for retaliatory discharge, [Anderson] must show [the elements] by clear and convincing evidence.” (Emphasis added.) Furthermore, because this court’s review of the trial court’s judgment is de novo, the trial court’s purported use of an incorrect standard is irrelevant, as we can employ the proper standard set out above. Therefore, Anderson’s first point is denied.

In his remaining points, Anderson claims that the trial court erred in granting summary judgment in favor of IAOM because genuine issues of material fact existed as to whether: (1) his report constituted actionable whistleblowing; (2) Anderson had established causation via evidence of a pattern of retaliatory conduct by Doyle; and (3) those who terminated his employment were acting under the influence of Doyle. Because we find Anderson’s third point to be dispositive, we do not address his remaining arguments.

Kansas follows the employment-at-will doctrine, which permits an employer to discharge an employee for good cause, no cause, or even wrongful cause. Shaw v. Sw. Kan. Groundwater Mgmt. Dist. Three, 42 Kan.App.2d 994, 219 P.3d 857, 861 (2009). Under Kansas law, termination of employment for whistleblowing constitutes an exception to the employment-at-will-doctrine, which allows the discharged employee to make a retaliatory discharge claim. Id. A plaintiff must meet the following three elements to make a prima facie case of retaliatory discharge based on whistleblowing:

(1) a reasonably prudent person would have concluded that the employer or a coworker was engaged in activities that violated rules, regulations, or the law pertaining to public health and safety and the general welfare; (2) the employer had knowledge that the employee reported the violation prior to his or her discharge; and (3) the employee was discharged in retaliation for making the report.

Id. at 862.

The second element — whether the employer had knowledge of the employee’s report prior to his discharge — is the element pertinent to Anderson’s argument on appeal. Anderson acknowledges that the trial court granted summary judgment partially on the ground that his report was to Doyle only and that the Board, who actually discharged Anderson, had no knowledge of the report. Anderson makes no claim that the Board knew of the report. Rather, he bases his argument on the theory that Doyle influenced the Board’s decision and that, therefore, his retaliatory conduct should be imputed to the Board. In making his argument, Anderson relies primarily on a Tenth Circuit case in which the court utilized such a theory in a retaliatory discharge case. See EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.Bd 476 (10th Cir.2006).

In BCI, the Tenth Circuit discussed a theory known as “subordinate bias liability,” or the “cat’s paw” doctrine, which “refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” Id. at 484. The Tenth Circuit found that, in order to prevail on a subordinate bias claim, a plaintiff must establish that the subordinate had more than mere influence on or input in the decisionmaking process; rather, “the issue is whether the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action.” Id. at 487. The court added that an employer could avoid liability under this theory by conducting an independent investigation of the allegations against the employee because, in that situation, “the employer has taken care not to rely exclusively on the say-so of the biased subordinate, and the causal link is defeated.” Id. at 488 (noting that simply asking an employee for his version of events could defeat an inference that the decision was based on discrimination).

In applying the theory to the facts of BCI, the Tenth Circuit found that the deci-sionmaker had relied exclusively on biased information from a subordinate, made no independent inquiry into the matter, and did not ask the employee for his side of the story before discharging him. Id. at 491. Although the employer argued that it had conducted an independent inquiry, where the investigation involved only pulling the employee’s personnel file, which contained no information regarding the incident for which he was ultimately discharged, the court found that the investigation was inadequate as a matter of law. Id. at 492-93.

The facts of this case are distinguishable from the circumstances in BCI in that Anderson has not met the causation test set out by the Tenth Circuit. Anderson points to several facts, arguing that they could create a reasonable inference that Doyle influenced the Board’s decision. However, the Tenth Circuit test requires more than the mere influence or input of the subordinate — it requires that the subordinate’s actions caused the discharge. Furthermore, the facts Anderson refers to show nothing more than influence or input from Doyle. First, Anderson alleges that the Compensation Committee, of which Doyle was a member, voted to terminate his employment on March 15, 2007. However, the facts clearly show that Anderson was not terminated until after the Board meeting where the Board members voted to terminate his employment, and Anderson alleges no facts which show that the Board’s vote was somehow a result of any actions or recommendations of the Compensation Committee.

Anderson also claims that Doyle’s influence on the Board’s decision is demonstrated by a note in the minutes of the May 8, 2007 meeting, which stated that “Jim Doyle feels we have adequate documentation for dismissal.” Although Doyle attended the meeting, he did not have a vote as to whether Anderson would be discharged, and the record indicates that he and other past presidents were in attendance at the meeting to provide a background on the ongoing issues IAOM had with Anderson. These facts, given the most generous interpretation, fail to show more than mere influence or input by Doyle, especially where the documentation supporting dismissal included information collected by other members of IAOM.

Anderson further claims that Doyle’s actions caused his discharge because the reasons for the Board’s decision were primarily based on Doyle’s policy changes. But the Board’s reasons for discharge were broader than Doyle’s changes, and Doyle’s policy changes themselves were not the basis for Anderson’s discharge — it was the fact that Anderson simply failed to comply with many of them, for various reasons. Anderson’s failure to comply with the changes was a concern for the Board. As the e-mail exchanges between Anderson and Keith Horton reveal, Anderson refused to ask his staff to work additional hours. One of the bases for his discharge was his failure to implement office hours. Anderson also stated in the e-mails that he had not completed staff performance reviews, and he objected to Board members playing a role in the staff evaluation process. One of the bases for his discharge was his failure to complete staff performance reviews. In his deposition, Anderson stated that he did not provide input on an employee handbook despite being asked to because he did not believe that Doyle truly wanted his input. Anderson’s defense for his failure to implement many of Doyle’s and the entire Executive Committee’s policy changes was that he answered only to the Board, and he questioned whether these changes were actually directed by the Board. In his deposition, Anderson stated that if there was a doubt in his mind about what he was being told by an individual, he would “need to have a discussion with the Board about that before I could take action on it.” Despite this statement, Anderson never followed up on any of the policy changes with the Board; he simply ignored them. Therefore, Anderson cannot show that Doyle’s policy changes caused his discharge.

Finally, although Anderson claims he never got the opportunity to tell his side of the story, the undisputed facts indicate that Anderson was confronted about many of the issues for which he was discharged. These same facts also show that Keith Horton, who presided over the May 8, 2007 Board meeting, conducted an inquiry into the issues with Anderson. Horton testified that he was concerned about Anderson’s job performance. The February 12, 2007 e-mail from Horton to Anderson requested Anderson’s status regarding staff performance reviews, office hours, IAOM’s quarterly publication, health insurance information, and compliance with a recent audit. After receiving Anderson’s response, Horton became even more concerned and told Anderson he wanted to set up a conference call in order to further discuss the same issues addressed by the e-mails. Horton also had concerns about the accuracy and timeliness of Anderson’s Board meeting minutes and had corrected mistakes in Anderson’s minutes.

The undisputed facts of the case show no more than the possibility that Doyle influenced or had input in the decision to terminate Anderson’s employment. This does not meet the Tenth Circuit’s test for subordinate bias liability, which requires a plaintiff to show that the subordinate’s actions caused the discharge. Furthermore, the undisputed facts show that Horton, who presided over the May 8, 2007 Board meeting and had a vote in the decision to discharge Anderson, conducted an independent inquiry into the issues with Anderson and spoke directly to Anderson about many of them. Horton authored the minutes of that meeting and listed the ongoing issues with Anderson, many of which Horton addressed with Anderson. Anderson cannot establish that the deci-sionmakers “rel[ied] exclusively on the say-so” of Doyle. See BCI, 450 F.3d at 488. Therefore, where Anderson cannot take advantage of the subordinate bias liability theory recognized by the Tenth Circuit and alleges no facts which show that any member of the Board knew of his reports to Doyle, Anderson has failed to establish a genuine issue of material fact as to whether IAOM had knowledge of his report prior to his discharge. The trial court did not err in granting summary judgment in favor of IAOM.

The judgment of the trial court is affirmed.

All concur.

      . Presidents served for a one-year term at IAOM. During the time periods relevant to this case, Steve Curran served as president from May 2006 to May 2007, and Keith Horton served as president from May 2007 to May 2008.

      . Anderson claimed in his deposition that a meeting took place on March 15, 2007, during which IAOM's Compensation Committee agreed to terminate his employment. However, Anderson has not provided any evidence showing that this committee had the authority to discharge him; furthermore, the record indicates that the Board formally voted on the termination at the May 8, 2007 meeting and that his employment was terminated on May 30, 2007.

      . The record reflects that the employment relationship between Anderson and IAOM was centered in Kansas. Neither party challenges the trial court's application of Kansas substantive law to Anderson’s claim.

      . While a court applying Kansas law is not bound to follow the precedent of the Tenth Circuit, the authority may be considered persuasive. See State v. Thompson, 284 Kan. 763, 166 P.3d 1015, 1039 (2007).


text:
    Ruth BAILEY, Claimant-Appellant, v. PHELPS COUNTY REGIONAL MEDICAL CENTER, Employer-Respondent.
    No. SD 30794.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 21, 2010.

      James J. Logan, Kirkwood, for Appellant.
    Todd Laurence Beekley, Bradley L. McChesney, St. Louis, for Respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

Ruth Bailey (“Appellant”) appeals from the denial of her claim for workers’ compensation benefits. The Labor and Industrial Relations Commission (“the Commission”) found that the injury, which occurred while Appellant was employed by and at Phelps County Regional Medical Center (“Employer”), did not arise out of the course and scope of employment. We affirm the decision of the Commission.

Appellant’s brief fails to substantially comply with Rule 84.04. Appellant’s statement of facts consists of six sentences. Rule 84.04(c) requires an appellant to provide this Court with “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Appellant’s statement of facts and argument section have no specific page references to the legal file or transcript, as required by Rule 84.04(f). Compliance with Rule 84.04(f) “ ⅛ mandatory and essential for the effective functioning of appellate courts, which cannot spend time searching the record to determine if factual assertions are supported by the record.’ ” Yates v. Briggs & Stratton, 302 S.W.3d 776, 777 (Mo.App. S.D.2010) (quoting Brown v. Shannahan, 141 S.W.3d 77, 80 (Mo.App. E.D.2004)). “ ‘An argument that violates Rule 84.04(i) wholly fails to preserve any error for review.’ ” Brown v. Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 147 (Mo.App. W.D.2007) (quoting Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 165 (Mo.App. S.D.2002)). Appellant’s violations of Rule 84.04(c) and Rule 84.04(f), standing alone, warrant dismissal of this appeal. Yates, 302 S.W.3d at 777.

Appellant’s point relied on is slightly longer than the statement of facts. In it, she claims:

THE LABOR AND INDUSTRIAL RELATIONS COMMISSION ERRED IN ITS FINDINGS THAT THE FACTS AND EVIDENCE IN THE CASE DID NOT ESTABLISH THAT RUTH ANN BAILEY DID NOT HAVE AN ACCIDENT THAT AROSE OUT OF AND IN THE COURSE AND SCOPE OF EMPLOYMENT. THE DECISION HAS REVERSIBLE ERROR BECAUSE THE COMMISSION RELIED ON THE CASE OF BIVINS V. ST. JOHN’S REGIONAL HEALTH CENTER, 272 S.W.3d 446 [Mo.App. S.D.2008]. THE BIVINS CASE WAS A MAJOR RATIONALE FOR THE DECISION.
IN THE CONTEXT OF THIS CASE THE COMMISSION IN RELIANCE OF BIVINS CONCLUDED ERRONEOUSLY THAT THE FACTS DID NOT GIVE RISE TO AN ACCIDENT ARISING OUT OF AND IN THE SCOPE OF EMPLOYMENT. THERE IS MUCH RELIANCE ON HER ALLEGED LACK OF CREDIBILITY BASED ON CONFLICTING HISTORIES GIVEN TO THE VARIOUS TREATING DOCTORS. WHEN VIEWED IN THE TOTALITY OF EVEIDENCE [SIC] PRODUCED AND TESTIMONY GIVEN BY RUTH ANN BAILEY SHE CLEARLY SET OUT AN ACCIDENT ARISING OUT OF AND IN THE COURSE OF HER EMPLOYMENT WITH THE PHELPS COUNTY REGIONAL MEDICAL CENTER.

Rule 84.04(d)(2) requires each point relied on to “(A) identify the administrative ruling or action the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Appellant’s point does not comply with Rule 84.04(d) in that it does not tell us the law on which she bases her claim of error, nor does she tell us how, although she uses the words “in the context of the case,” the facts in her case support her claim of error. Points relied on that do not comply with Rule 84.04(d) present nothing for appellate review. Coale v. Hilles, 976 S.W.2d 61, 65 (Mo.App. S.D.1998). To interpret Appellant’s point as written would force us to advocate for Appellant, which we cannot do. Christomos v. Holiday Inn Branson, 26 S.W.3d 485, 487 (Mo.App. S.D.2000). We would be justified in dismissing the appeal for these violations alone.

Appellant’s argument section of her brief is of limited assistance in trying to discern her claim. She states the Commission relied upon the Bivins case, although there is no cite in the argument to support that claim and, more importantly, the Bivins case is not mentioned in the award. Appellant then argues the differences between Bivins and her case. She states she was on duty and was walking quickly because she was called to the nurses’ station. She gives no other facts in her argument about her injury. Again, there is no citation to any legal authority other than Bivins to support her claim for benefits.

The violations of Rule 84.04 found in Appellant’s brief seriously hinder our review. “Failure to substantially comply with Rule 84.04 preserves nothing for review and warrants dismissal of an appeal.” McCullough v. McCullough, 195 S.W.3d 440, 442 (Mo.App. S.D.2006). Nevertheless, we have gratuitously reviewed Appellant’s claim.

Respondent argues that Appellant failed to cite the appropriate standard of review, failed to explain how the facts found by the Commission do not support the award, and failed to explain why there was not sufficient competent evidence in the record to warrant the making of the award. We agree.

Respondent claims that Appellant was walking down the hall when her knee simply popped out of place; Respondent states the Commission actually relied upon Miller v. Missouri Highway and Transportation, 287 S.W.3d 671 (Mo. banc 2009), in denying the claim. Respondent argues that the Commission did not err in making that finding because Appellant failed to prove a rational connection between the accident, injury, and employment.

When reviewing a decision of the Commission, this Court

“must examine the whole 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. Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.”

Id. at 672 (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003)). We defer to the Commission on issues concerning credibility and weight to be given conflicting evidence. Kent v. Goodyear Tire & Rubber Co., 147 S.W.3d 865, 868 (Mo.App. W.D.2004).

The Commission relied upon Miller. Appellant has cited to nothing that distinguishes Miller from her case. The Commission determined that Appellant’s knee simply popped out of place while she was walking. While there was evidence provided by Appellant that contradicts that factual finding, the determination is supported by the facts in evidence of statements made by Appellant to her treating physicians. Furthermore, there is sufficient competent evidence in the record to warrant the making of the award.

The judgment is affirmed.

SCOTT, C.J., FRANCIS, J, concur.

      . All rule references are to Missouri Court Rules (2010), unless otherwise specified.

      . Appellant’s injury may very well be distinguishable from Miller. The record may support a finding that her injury arose out of and in the course of her employment and that employment was the prevailing factor in causing her injury; however, unless we become Appellant’s advocate, which we cannot do as explained previously, we cannot make that determination.