author: DON E. BURRELL, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Vicki L. MIDDLEMIST, Defendant-Appellant.
    No. SD 29803.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 31, 2010.

      Alexa I. Pearson, Columbia, MO, for Appellant.

      Chris Koster, Attorney General, and Evan J. Buehheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

Vicki Middlemist (“Defendant”) was convicted following a jury trial of stealing more than $25,000, a violation of section 570.030. Defendant now timely appeals her conviction in five points relied on that allege: 1) her conviction was not supported by sufficient evidence; 2) the trial court plainly erred when it delivered to the deliberating jury a document that had not been received into evidence; 3) the trial court plainly erred when it informed the parties about the contents of a written note a juror had given the court’s bailiff; 4) the trial court abused its discretion when it denied Defendant’s pre-trial motion seeking to compel the State to produce certain bank statements and software records; and 5) the trial court abused its discretion when it admitted evidence of a garnishment and two electronic bank transfers. Finding no merit in any of Defendant’s claims, we affirm.

Sufficient evidence supported Defendant’s conviction.

“A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” Section 570.030.1. The offense is a “B felony if the value of the property or services equals or exceeds twenty-five thousand dollars.” Section 570.030.7. Proof of the offense may be based upon circumstantial evidence. See State v. Grim, 854 S.W.2d 403, 405-06 (Mo. banc 1993).

In reviewing a challenge to the sufficiency of the evidence we “must determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt.” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). In so doing, we view the evidence adduced at trial in the light most favorable to the jury’s verdict and give the State the benefit of all reasonable inferences that may be drawn from that evidence. Id.) State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003). Any evidence or inference contrary to the verdict is disregarded. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). The following summary of the evidence is in accord with these governing principles.

Defendant worked for JLD Tech Services which operated a business in Buffalo known as PIP Internet Service (“PIP”). PIP provided internet service to customers and also sold computer parts and equipment. Defendant was hired on October 10, 2005, by Raymond Keeling, PIP’s operations manager, to replace Jewell Smith, who was retiring from her full-time position with the business. Keeling was looking for someone “to strengthen our accounting processes and controls, internal management. Things like cash and inventory.” Defendant’s resume indicated that she had a bachelor’s degree in business administration. Keeling also believed that Defendant had “used QuickBooks Pro, done invoicing and accounts receivable and accounts payable.” Defendant worked at PIP from October 10, 2005, through June 28, 2007.

Smith stayed on at PIP long enough to train Defendant and then worked with her again on a couple of occasions when Smith came back to fill in. Smith said it was originally supposed to take her four days to train Defendant, but she “only worked with [Defendant] three, she caught on very quickly.” Smith trained Defendant to write out receipts for customers when they made payments, enter those payments into PIP’s billing program, then physically mark the receipts with a “check” when the information they contained had been entered into the billing program.

The receipts given to customers came from books of receipts that were pre-num-bered and “self-carboning,” thus leaving a copy for PIP when the receipt the customer received was created. The receipts showed the customer’s name, the amount paid, whether the payment was made by cash or check (as some customers using checks also requested receipts), and the signature of the employee who had prepared the receipt.

The business kept cash on hand to make change, reimburse employees for gas purchases (before the business switched to a fuel card), make incidental purchases, provide customers with refunds, and cash checks for employees. PIP began using a fuel card after Defendant suggested doing so would allow her not to have to pay the “fuel tickets” from PIP’s cash drawer. In regard to the business’s cash drawer, Smith told Defendant “that the money was [Defendant’s] responsibility, and that nobody else was to get into the money.” Defendant’s duties also included preparing the business’s bank deposits and tracking the forms used for expense reimbursements. Keeling would typically take the deposits to the bank, but Defendant would occasionally do so.

Defendant was at her desk most of the time, but other employees would occasionally accept cash payments from customers and issue them receipts if Defendant was not available. Keeling testified that, “To one degree or another any employee might have access to the cash drawer on any given day.” But if another PIP employee had received a payment from a customer, that employee would deliver the funds and receipt book to Defendant or place them on her desk. If a receipt was issued to a customer but not entered into the billing program, the customer’s account would not be credited, the charge would continue to bill, and the customer would eventually complain about receiving an additional bill or having his internet service interrupted for the alleged non-payment of an amount he had already paid.

In June 2007, Keeling began to suspect that something untoward was happening with the business’s cash after there was not enough cash in the cash drawer on a few occasions to refund money to customers or to purchase something that an employee needed. Keeling began looking at “how much cash was actually coming in the door, versus total receipts.” He concluded “that there was a lot more cash that came in the door, than that [sic] went to the bank” and that it had been going on “pretty much” during the period of time that Defendant had worked at PIP. During the course of her employment, Defendant never told Keeling that any money was missing from the cash drawer.

Part of Keeling’s investigation included comparing the total amount of cash received for internet services as recorded in the computer billing system with the cash shown as deposited on PIP’s bank statements. Keeling also consulted PIP’s accountants and investigated his own records in preparing a summary of the information he had collected.

Dallas County Sheriff Deputy Kyle Hei-dler investigated the matter and interviewed Defendant. Deputy Heidler testified that Defendant told him she was in charge of bookkeeping, receiving payments, and preparing the deposits. According to Deputy Heidler, Defendant told him that “very little” cash came through the business.

At trial, Keeling testified about particular instances when the records he had reviewed reflected that cash had been received but not deposited. Keeling testified that he then verified that the cash had not been deposited into any other bank accounts associated with PIP. Keeling testified that he believed approximately $28,000 in cash was missing and that he had prepared a document that summarized over the course of Defendant’s employment at PIP the receipts Defendant had issued for cash payments from customers, the company’s petty cash disbursements, and the cash actually deposited into the bank. This summary was received into evidence as Exhibit 18. Exhibit 18 revealed that during the time period Defendant had worked for PIP: 1) Defendant had issued receipts for cash totaling $35,936.63; 2) $6,168.00 had been disbursed from petty cash; and 3) only $2,119.03 in cash had actually been deposited with the bank. Based on Exhibit 18, the jury could reasonably infer that $27,649.60 in cash that should have been deposited never made it to the bank.

Defendant’s own expert witness, Stan Schmidt, a certified public account, concluded that “[biased on the records that were provided, ... you could sort of track the track [sic] the cash from receipt to the bank. Or whether or not it made it to the bank.” He also conceded that “quite a bit of cash came into the building.” Schmidt concluded that “[biased on the records that [he] was provided it appeared that not all of the cash made it to the bank.”

Another exhibit, Exhibit 19, was a summary Keeling had prepared which covered cash received for computer parts and other non-internet-service purchases recorded on different receipts and included cash payments receipted by PIP employees other than Defendant. Exhibit 19 was also received into evidence. Exhibit 19 showed that at the end of September 2005, before Defendant began working for PIP, actual cash deposits were $207.18 less than the total cash available for deposit. In contrast, by June 23, 2007 — Defendant’s last day at PIP — Exhibit 19 showed that actual cash deposits were $48,052.39 less than the total cash which should have been available for deposit. Based on Exhibits 18 and 19, and the testimony recited above, the jury could reasonably infer that the cash that should have been deposited into PIP’s bank account was stolen by Defendant. It could also infer that Defendant urged PIP to switch to a fuel card so that a larger pool of PIP’s cash would be available to her on a more consistent basis.

Defendant did not contest the admissibility of any of the above-recited evidence. Instead, Defendant simply argues that other PIP employees had access to the cash drawer, that PIP did not use good accounting practices, that the received exhibits contained inaccuracies, and that the State’s evidence varied as to the actual amount of cash stolen. While these were appropriate arguments to make to the jury, they provide Defendant with no help on appeal.

A verdict is not flawed because it was based on circumstantial evidence or because that circumstantial evidence failed to exclude every reasonable theory of innocence. Grim, 854 S.W.2d at 406-08. An inference from the facts contrary to the verdict is not considered unless it “necessarily give[s] rise to a reasonable doubt in a reasonable juror’s mind.” Id. at 413. The issue is not whether someone else could have stolen the money, but whether the jury could have found the essential elements of the charged offense beyond a reasonable doubt based upon the evidence presented and the reasonable inferences drawn from it. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Defendant was in charge of PIP’s cash. Keeling and other PIP employees testified that it was Defendant’s responsibility to accept payments from customers, issue receipts, then post the payments received and prepare the bank deposits. Defendant admitted that she was in charge of bookkeeping, receiving payments, and preparing deposits. When other employees accepted cash, they gave the cash and receipt book back to Defendant. Because a customer who had his internet access shut off or continued to be billed for an amount he had already paid could be expected to complain about it, a reasonable inference is that customer payments (including cash payments) were recorded. And while the estimates of the total amount of cash stolen varied as the matter was being investigated and tried, the evidence of the most conservative loss figure of $27,649.60 presented at trial via Exhibit 18 exceeded the $25,000 minimum required by section 570.030.7.

Defendant, who was in the best position to know, never told Keeling that any cash was missing. Defendant recommended that PIP begin using a fuel card so that more cash would consistently be on-hand. A reasonable juror could conclude from the evidence received at trial that at least $27,649.60 of PIP’s cash did not get deposited into PIP’s bank account because Defendant had stolen it. Therefore, Defendant’s conviction was supported by sufficient evidence. Point I is denied.

Defendant failed to show that a document not received in evidence was actually sent to the jury.

During Keeling’s testimony, Defendant’s counsel stipulated to the admission into evidence of PIP’s receipt books and bank statements, respectively marked as Exhibit 14 and Exhibit 15. The bank statements were in a binder Keeling retrieved from his briefcase. Defendant’s second point alleges the trial court committed plain error when it later sent Exhibit 15 (the bank statements) to the jury because she assumes that at the time Exhibit 15 was delivered to the jury it also contained, in the back pocket of the binder, a typewritten police report authored by Deputy Heidler that had not been admitted into evidence. This assumption is based on something that occurred well after trial when Defendant’s appellate counsel was preparing the record on appeal.

When the prosecutor sent the trial exhibits to Defendant’s appellate counsel, Deputy Heidler’s typewritten report was inside the back pocket of Exhibit 15. Defendant’s appellate counsel noted that his office did not conduct “a detailed inspection of the exhibits when they were received from the prosecutor, ... [and] counsel currently has no information suggesting that the deputy’s report was not in the binder when it was received from the prosecutor’s office.” (Emphasis added).

The State does not dispute the fact that Deputy Heidler’s police report was not received into evidence and referred to “arguably inadmissible evidence regarding Defendant’s previous convictions and her taking a polygraph test.”

“Rule 30.20 [] provides in relevant part that we may, in our discretion, consider plain errors affecting substantial rights when we find that manifest injustice or a miscarriage of justice has occurred. Plain errors are evident, obvious, and clear.” State v. Williams, 306 S.W.3d 183, 185 (Mo.App. E.D.2010) (citing State v. Morris, 285 S.W.3d 407, 413 (Mo.App. E.D.2009)). Defendant bears the burden of proving that plain error actually occurred. State v. Lemons, 294 S.W.3d 65, 71 (Mo.App. S.D.2009). We believe that Defendant’s statement that she has no information suggesting that the police report was not inside Exhibit 15 when it was delivered to the jury attempts to stand that burden of proof on its head.

The record does not indicate that Deputy Heidler’s statement was included with Exhibit 15 when it was provided to the jury during its deliberations. Exhibit 15 was handed by Keeling to the prosecutor during trial. Defense counsel stated that he had no objection to admission of the exhibit. During his closing argument, Defendant’s counsel stated, “Ladies and gentlemen, you’ll have an opportunity, if you want to, to look through that white binder [Exhibit 15], at all of those [PIP] bank statements and I certainly would urge you to do so.” When the deliberating jury sent the trial court a note asking for all of the exhibits, the following exchange took place in defense counsel’s presence:

[THE COURT]: Let’s take a look at the evidence.
[prosecutor]: It’s all there, I think.
THE COURT: Go through it again, and make sure.
[prosecutor]: Well, we did.
THE COURT: I understand, do it one more time. I want you to make sure.
(WHEREUPON, the attorneys collected all of the applicable exhibits)

The court’s final day of trial docket entry then states, “All exhibits withdrawn by respective counsel.”

Of course the possibility that Deputy Heidler’s police report had been included in Exhibit 15 when it was given to the jury was not called to the attention of the trial court because its association with Exhibit 15 was not observed until many months later. It is unknown whether Keeling ever had the deputy’s report or whether the deputy had ever had possession of Exhibit 15 before it was submitted to the jury. Defendant has not presented us with any evidence that the jury ever saw, let alone relied on, Deputy Heidler’s police report in reaching its verdict. We fail to see how a trial court could commit plain error by failing to address a matter it had no knowledge of and which has not been shown to have actually occurred.

“In order to be entitled to relief under the plain error rule, ‘[a] defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant’s rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected.’ ” State v. Miller, 139 S.W.3d 632, 634 (Mo.App. S.D.2004) (quoting State v. Deckard, 18 S.W.3d 495, 497 (Mo.App. S.D.2000)). No such showing has been made here. Point two is denied.

Defendant affirmatively waived any complaint about the juror’s note.

During the second day of trial, the trial court notified all counsel that one of the jurors had given a note to the bailiff and addressed the matter as follows:

THE COURT: All right, we’re out of the hearing of the jury, we have had a juror hand a note to the bailiff. I am going to read the note. We’ll see what it is. “Dollar amounts of checks employees cashed out of the drawer. Anyone make a habit of large checks?” Those are swell questions, but jurors don’t get to ask questions, for obvious reasons. I’m going to respond.
[defense counsel]: As only you can.
THE COURT: Right. Let me go and get my instructions.
THE COURT: Okay. Counsel, my response that I would propose is as follows: You will recall the evidence as presented to you. I am unable to give you additional information. Any objection to that response?
[prosecutor]: No, your Honor.
[defense counsel]: No, your Honor.

Defendant alleges the trial court plainly erred in denying her motion for new trial in that the juror had acted improperly by sending this note because the court had previously instructed the jurors not to discuss the case with anyone and not to share their notes. Defendant asserts she was prejudiced by this error when the State then recalled Keeling to the witness stand and he testified that the employee checks that were written to PIP for cash were “reduced from the alleged amount of missing cash;” that those checks were “[f|ac-tored out” of the total amount of missing cash; that the individual amounts of the checks for cash were small, “[n]othing really large enough to cause an alarm[;]” and “the total of the list of checks was probably less than 2,000 dollars from the entire time period from the combination of the total employees.”

Defendant waived this alleged error for purposes of even plain error review when her counsel affirmatively stated, “No, your Honor” in response to the trial court’s question about whether counsel had any objection to its proposed method of handling the matter. State v. Goudeau, 85 S.W.3d 126, 128-29 (Mo.App. S.D.2002). Defendant also voiced no objection when Keeling was recalled and testified about the matters the juror had referred to in his or her note. Point three is denied.

Documents sought from State not shown to be in its possession

A defendant is entitled to evidence in the State’s possession that is: (1) favorable to the defendant; and (2) material to either guilt or punishment. State v. Artis, 215 S.W.3d 327, 338 (Mo.App. S.D.2007); Rules 25.03(A)(9) and 25.04(A). “[A] defendant is not entitled to information on the mere possibility that it might be helpful, but must make some plausible showing how the information would have been material and favorable.” State v. Goodwin, 65 S.W.3d 17, 21 (Mo.App. S.D.2001) (internal quotations omitted).

Although the trial court granted certain portions of Defendant’s pre-trial motion to compel discovery, it denied Defendant’s request that the court compel the prosecutor to produce bank statements for companies associated with PIP for the years 2002 through 2007, documentation from BillMax (PIP’s computer billing system) for income and receipts for the years 2002 through 2007, and documentation from Quick Books (PIP’s computer accounting software) for income and expenses for the years 2002 through 2007. Defendant’s fourth point alleges the trial court abused its discretion when it refused to order the State to produce those documents.

When a trial court is alleged to have abused its discretion in denying a discovery request, we review whether the trial court’s action resulted in fundamental unfairness to the accused. State v. Scott, 926 S.W.2d 864, 871 (Mo.App. S.D.1996). “ ‘Fundamental unfairness is determined by whether discovery of the evidence would have affected the outcome of the trial.’ ” State v. Deason, 240 S.W.3d 767, 774 (Mo.App. S.D.2007) (quoting State v. Merrick, 677 S.W.2d 339, 343 (Mo.App. E.D.1984)).

We first note that Defendant is only speculating about whether the records she sought would have been helpful. Defendant’s assertion is that without a “complete” financial picture of PIP, she was “unable to present theories to counter the State’s allegations that she stole money, or to counter the alleged value of the money claimed to be missing.” This falls well short of showing the trial court that the documents would have been both material and helpful.

But the more fundamental flaw in Defendant’s claim of error is that she has not shown that the State possessed the records she sought. “If Defendant knew of the existence of records that were not provided through discovery and were not in the State’s possession, [s]he could have subpoenaed those records but failed to do so.” Artis, 215 S.W.3d at 339 (citing Rule 26.02(b)). Without a showing that the State had these records and refused to produce them, Defendant cannot demonstrate that it was fundamentally unfair for the trial court to deny her motion to compel their production. Point four is denied.

The garnishment was admissible to show motive.

In April 2007, Defendant observed PIP employee Tyler Lane sign a receipt for a wage garnishment that a “Court Deputy” said needed to be delivered to Keeling. After Lane put the garnishment on Keeling’s desk, Defendant went into Keeling’s office and removed it, later telling Deputy Heidler that she took the garnishment from Keeling’s office because her attorney needed it. A copy of the garnishment was admitted into evidence as Exhibit 18 over Defendant’s objection. The garnishment was based on a $2,286.95 judgment from the Circuit Court of Laclede County, Missouri where the garnishor was a “John S. Hood” and the garnishee was “Vicki Middlemist (Ise-man).”

A trial court has broad discretion in admitting evidence. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). Whether the trial court erred in admitting evidence is reviewed for an abuse of that broad discretion. Id. We will reverse only if the trial court’s ruling “was so prejudicial that it deprived the defendant of a fair trial.” Id. at 223-24 (quoting State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999)). Defendant alleges the trial court committed such an abuse of its discretion by admitting evidence of the garnishment because it was evidence of an inadmissible “uncharged crime[ ] or bad act[ ].”

The general rule is that evidence of other crimes cannot be used to show that the defendant has a propensity to commit crime. State v. Taylor, 166 S.W.3d 599, 605 (Mo.App. S.D.2005) (citing State v. Burns, 978 S.W.2d 759, 761 (Mo. banc 1998)). In order to invoke the rule against the use of other crimes evidence, Defendant must show that the testimony was evidence of uncharged misconduct. See State v. Destefano, 211 S.W.3d 173, 179 (Mo.App. S.D.2007).

Even if we were to assume that the evidence about the garnishment was evidence of a prior uncharged criminal act, Defendant cannot prevail. “When evidence of a defendant’s prior criminal act is both logically relevant (has a tendency to directly establish defendant’s guilt on the crime currently charged) and legally relevant (its probative value outweighs its prejudicial effect), it is admissible.” State v. White, 291 S.W.3d 354, 357 (Mo.App. S.D.2009) (citing State v. Nichols, 207 S.W.3d 215, 227 (Mo.App. S.D.2006)). “The balancing of the effect and value of evidence rests within the sound discretion of the trial court.” State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993).

Exceptions to the general rule against admitting evidence of prior uncharged crimes include situations in which they are relevant to show motive. State v. Vorhees, 248 S.W.3d 585, 588 (Mo. banc 2008). Here, the logical relevance of the garnishment was to show motive. Evidence that Defendant had an unpaid debt that had reached the point of garnishment was probative of whether Defendant had a motive to steal money. The additional reasonable inference favorable to the State was that Defendant hid the existence of that debt from her boss to prevent arousing any suspicion by him that she was having financial difficulties — a suspicion that might cause her to lose her unfettered access to PIP’s cash.

The trial court was in the best position to weigh the risk of undue prejudice against the probative value of the evidence. Bernard, 849 S.W.2d at 13. Any risk of undue prejudice was slight. Having your wages garnished based on a civil judgment is not a crime. And it is doubtful that even Defendant’s attempt to hide it from her boss would be seen by a reasonable juror as evidence of a propensity to commit a criminal offense. Appellant does not argue that specific details of the underlying debt were disclosed to the jury, and the jury heard Defendant’s explanation for taking the garnishment from Keeling’s desk. Because the garnishment evidence was both logically and legally relevant, the trial court did not err in receiving it.

Defendant waived any objection to evidence of the electronic bank transfers.

Deputy Heidler had subpoenaed Defendant’s bank records, and he asked Defendant about two electronic bank transfers of $237.00 each that had transferred money from PIP’s bank account into Defendant’s personal account. Defendant told Deputy Heidler that each transfer equaled the cost of one year’s internet service from PIP. Defendant told Deputy Heidler that she had personally paid for one year’s internet service for a woman who could not afford to pay. Deputy Hei-dler said Defendant told him that when the woman did not pay her back, Defendant “repaid herself by debiting her card, and it ended up being twice. And at one point [ ] she said that was on her.”

While Defendant asserts that the trial court’s admission of evidence relating to Defendant’s electronic bank transfers also violated the “prior bad acts” rule, the State’s assertion that Defendant did not preserve the issue for our review is well-taken.

Preservation of evidentiary questions for appeal requires an objection at the time the evidence is sought to be introduced along with the same objection being carried forward on appeal. Rogers v. B.G. Transit Corp., 949 S.W.2d 151, 153 (Mo.App.1997). An objection to the admissibility of evidence must be specific. Carter v. St. John’s Reg’l Ctr., 88 S.W.3d 1, 19 (Mo.App.2002). The purpose of this rule is to ensure that the trial court is informed of the reasons of the objection so that it can thereby make a reasoned and informed ruling. Id. Any grounds that are not raised in the objection are considered waived, and a party is prevented from raising such grounds for the first time on appeal. Id. at 18; McHaffie v. Bunch, 891 S.W.2d 822, 830 (Mo. banc 1995). Changing the grounds for the objection or broadening the grounds is also prohibited. Firestone v. Crown Ctr. Redevelopment Corp., 693 S.W.2d 99, 106-07 (Mo. banc 1985). An appellate court will only reverse on a new basis for exclusion of evidence when plain error has occurred. Nelson v. Waxman, 9 S.W.3d 601, 605 (Mo. banc 2000).

State v. Hoy, 219 S.W.3d 796, 809 (Mo.App. S.D.2007).

Defendant filed a motion in limine to exclude the evidence because “the two transfers constitute prior uncharged misconduct and are not legally or logically relevant....” Defendant also asserted that “[t]he circumstances of the charged crime and the transfers are so remote that the transfers become irrelevant....” The trial court denied the motion in limine seeking to exclude the evidence. At trial, Defendant was permitted to approach the bench after the State’s first question to Deputy Heidler about whether he had questioned Defendant about the electronic transfers. Counsel’s objection was as follows:

[defense counsel]: Your Honor, we would lodge an objection on these trans-aetion[s] based on the foundation. Anything that Deputy Heidler states isn’t based on his personal knowledge but what he may have seen on the internet or through other documents, and I think that’s the best evidence. It[’]s hearsay, and it lacks relevance.
THE COURT: He asked if he talked to your client, that’s the question.
[defense counsel]: This is in regard to two electronic transfers.
THE COURT: We’re not there yet.
[defense counsel]: Okay

After a few more questions on the topic, the deputy stated that Defendant’s bank account showed two transfers, and defense counsel was permitted to approach again. That exchange was as follows:

[defense counsel]: I believe this is the point where the State is going to try to introduce evidence of those two transfers, and we would lodge our objection based on foundation, and there’s already evidence of that, banks [sic] accounts were subpoenaed. Those haven’t been produced. It[’]s also hearsay based on those bank accounts.
THE COURT: Where are you going with this?
[prosecutor]: Your Honor, there is an admission. I’m simply trying to explain to the jury, in his conversation with [Defendant] she admitted that she transferred money from PIP to her personal accounts. And it won[’]t make any sense to the jury if we don’t give a little background as to why he’s asking her about those. He’s simply going to say that he had uncovered a couple of suspicious bank transfers and that he talked to her about those transfers, and that she admitted that yes, she had transferred the money to her account. And no, she had never paid any money back to PIP.
THE COURT: Okay. And your objection is what, now?
[defense counsel]: Well, for one, relevance. Second, improper foundation. And, last, its hearsay based.
THE COURT: It sounds like an admission against interest to me, objection overruled.

The trial court, then denied Defendant’s request for a continuing objection to any testimony about the electronic transfers, and instructed Defendant to “make objections when you think you need to.”

After the trial court denied a continuing objection, Deputy Heidler continued to testify about the electronic bank transfers. Defendant made only one more objection, and that objection was made only after the question had been asked and answered and was unaccompanied by any request that the testimony be stricken. Then, during cross-examination, Defendant’s attorney also questioned Deputy Heidler about the electronic transfers, allowing the deputy to cover the same ground again. By failing to timely lodge an objection each time a question sought to elicit this information, Defendant failed to preserve the issue for our review. State v. Lloyd, 205 S.W.3d 893, 900-01 (Mo.App. S.D.2006).

Strategy may evolve during a trial. A defendant who drops an objection to a certain line of questioning denies the trial court the opportunity to reconsider its previous rulings and for that reason is not allowed to later complain about the matter on appeal if the verdict goes against him. See State v. McWhorter, 240 S.W.3d 761, 764 (Mo.App. S.D.2007); State v. Campbell, 122 S.W.3d 736, 742 (Mo.App. S.D.2004). Instead of continuing to dispute the admissibility of any evidence about the electronic bank transfers, defense counsel chose instead to attempt to minimize its impact using cross-examination and closing argument.

Defendant’s final point is also denied, and the judgment of conviction is affirmed.

BATES, P.J., and BARNEY, J.

      . All references to section 570.030 are to RSMo Cum.Supp.2006.

      . Because Defendant’s fifth point includes more than one claim of error, it is multifarious and fails to comply with Rule 84.04 (as made applicable by Rule 30.06(c)). State v. Garrison, 276 S.W.3d 372, 378 n. 4 (Mo.App. S.D.2009). Because the State has not objected to the multifarious nature of the point and we can discern the nature of Defendant’s complaints, we choose to exercise our discretion to review point five on the merits. See Dixon v. Thompson, 235 S.W.3d 568, 571 (Mo.App. S.D.2007).

      . Other evidence adduced from Deputy Hei-dler will be discussed below in our analysis of Defendant's third point.

      . All rule references are to Missouri Court Rules (2010).

      . The State disputes the classification of this evidence as uncharged crimes or misconduct. Defendant replied by noting the following argument by the State in its closing that characterized Defendant's actions regarding the garnishment and electronic bank transfers as "not right”:
      Now, the garnishment and the money transfer. I’m not going to belabor this point, you heard the evidence. It just shows the way that she operated in that office. A garnishment on her wages, then you go in and take it off the desk. That's not right. You know, that's not right. You know that you would never transfer money from your employers account to yourself under any circumstances. Even if you felt like you had a right to do it, you would go to the boss and say, hey I really think you guys owe me this money. You don’t just do it in stealth. But, this whole operation was stealth and there was just a lot of disregard for what was the right thing to do throughout.

      . The State argues that Defendant waived this objection. Because the evidence about which Defendant complains was admissible, we do not need to decide the waiver issue.

      . Later, when the prosecutor raised both the garnishment and the electronic transfers in his closing argument, defense counsel did not object. Instead, Defendant’s attorney also addressed both matters in his closing argument, telling the jury that taking the garnishment to Defendant's attorney was raised "just to make her look bad[]’’ and that Defendant had explained the electronic transfers.

      . Defendant also has not demonstrated that the admission of the evidence about which she now complains "manifested] prejudice affecting a substantial right.” State v. Hoy, 219 S.W.3d 796, 810 (Mo.App. S.D.2007) (citation omitted). "Prejudice is not considered apparent when there is ample other evidence to support the conviction." State v. Campbell, 122 S.W.3d 736, 741 (Mo.App. S.D.2004) (citing State v. Fuente, 871 S.W.2d 438, 443 (Mo. banc 1994)). As noted in our review of Defendant’s first point on appeal, there was ample evidence to support the jury’s conclusion that Defendant had stolen more than $25,000 in cash. In light of the fact that the sum involved in the electronic transfers was minimal in comparison (and presumably could also have been included in the stealing charges brought against Defendant), the evidence challenged in Defendant’s fifth point was not so inflammatory as to be unduly prejudicial.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    William J. CARTER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70863.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Frederick J. Ernst, for Appellant.
    Shaun J. Mackelprang, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

William Carter appeals the judgment of the motion court denying his Rule 24.035 motion for postconviction relief following an evidentiary hearing. Mr. Carter pleaded guilty to two counts of first-degree robbery, section 569.020, RSMo 2000, and was sentenced to two concurrent terms of fourteen years imprisonment. On appeal, he claims that counsel was ineffective for failing to submit evidence at the sentencing hearing concerning the extent to which he had engaged in substance abuse treatment and that had counsel presented such testimony, there was a reasonable probability that he would have been granted probation, institutional treatment, or a shorter sentence. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    In the Matter of Care and Treatment of Richard E. MILLER, a/k/a Richard E. Miller, a/k/a Richard F. Miller, a/k/a Richard Earl Miller, a/k/a R. Miller, a/k/a Robert Miller, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70882.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.

      Emmett D. Queener, Columbia, MO, for Appellant.
    James R. Layton, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Mr. Richard E. Miller appeals the trial court’s judgment committing him to the custody of the Department of Mental Health after a jury found him to be a sexually violent predator.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    OBERMILLER CONSTRUCTION SERVICES, INC., Appellant, v. PUBLIC WATER SUPPLY DISTRICT NO. 5 OF CASS COUNTY, Respondent.
    No. WD 70901.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.

      Charles E. Weedman, Harrisonville, for Appellant.
    Gerard Eftink, Raymore, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOE AHUJA, Judge and KAREN KING MITCHELL, Judge.
   JOSEPH M. ELLIS, Judge.

Obermiller Construction Services, Inc. (“OCS”) appeals from a judgment entered in the Circuit Court of Cass County awarding OCS $61,095.98 on its petition for damages against Public Water Supply District No. 5 of Cass County (“PWSD # 5”) and awarding $125,000.00 in liquidated damages and $20,000.00 in attorney’s fees to PWSD # 5 on its counterclaim for liquidated damages. For the following reasons, the judgment is affirmed.

On September 30, 2003, OCS and PWSD # 5 entered into a contract under which OCS agreed to construct certain water lines in Cass County. During the course of building those water lines, OCS encountered rock that needed to be removed. After removing the rock, OCS attempted to charge PWSD #5 additional fees for the removal of the rock. PWSD # 5 refused to pay the additional sum because OCS had assumed the risk of any rock removal under the provisions of the contract. On November 4, 2005, OCS filed a petition for breach of contract and damages. Subsequently, PWSD # 5 filed its answer and counter-claim for liquidated damages. The petition, answer, and counterclaim were all eventually amended prior to trial.

OCS’s amended petition, upon which the case was eventually tried, alleged four counts. The first count asserted a claim for damages based upon breach of contract claim. The second count asked for reformation of the contract between the parties based upon mutual mistake as to the amount of rock that would need to be removed to complete the project. The third count sought rescission of the contract based upon unilateral mistake by OCS as to the amount of rock removal involved in the project. In the final count, OCS requested an award in quantum me-ruit for the work performed.

Prior to trial, the trial court determined that the second and third counts requesting equitable relief should be tried to the court prior to the first and fourth counts being submitted to a jury. OCS objected to that ruling and asked that all of its claims be tried to the jury. The trial court overruled OCS’s objection. After the second and third counts were tried to the court, on August 7, 2008, the Court entered judgment in favor of PWSD #5 on those counts and set the remaining counts for jury trial. Subsequently, both parties waived jury trial on the remaining issues, and the remainder of the case was tried to the court. On March 20, 2009, the trial court entered its Memorandum, Order and Judgment. The court found in favor of PWSD # 5 on the first three counts of OCS’s petition but found in favor of OCS on its quantum meruit claim and awarded OCS $61,095.98 on that claim. The court found in favor of PWSD # 5 on its liquidated damages claim and awarded PWSD # 5 $125,000.00 in damages and $20,000.00 in attorney’s fees.

In its sole point on appeal, OCS claims the trial court denied OCS its right to jury trial by requiring the second and third counts of its petition to be tried to the court. OCS argues that, because the ultimate goal of its petition was to obtain a monetary award, the remedy sought was at law and a jury trial was required.

“The Missouri Constitution provides that ‘the right of trial by jury as heretofore enjoyed shall remain inviolate.’ ” State ex rel. Barker v. Tobben, 311 S.W.3d 798, 800 (Mo. banc 2010) (quoting Mo. Const, art. I, § 22(a) ). In civil cases, however, “the right to trial by jury attaches only to actions at law for which damages may be awarded, but not to suits in equity.” Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 352 (Mo. banc 2006). Where cases involve mixed issues of law and equity, the legal claims should be tried to a jury and the equitable claims and defenses should be tried to the court. Barker, 311 S.W.3d at 800. The trial court should decide the equitable claims consistently with the jury’s factual findings relevant to the claim. Id. “The trial court has discretion to try such cases in the most practical and efficient manner possible, consistent with Missouri’s historical preference for a litigant’s ability to have a jury trial on claims of law.” State ex rel. Leonardi v. Sherry, 137 S.W.3d 462, 473 (Mo. banc 2004).

Given the claims that were asserted in OCS’s amended petition, the circumstances in this case clearly dictated that the most practical manner in which to try the case was the one adopted by the trial court. In its second count, OCS asked the trial court to reform the contract based on mutual mistake. In its third count, OCS asked the trial court to allow rescission of the contract based upon unilateral mistake. “ ‘Reformation of a written instrument is an extraordinary equitable remedy....’” Ethridge v. TierOne Bank, 226 S.W.3d 127, 132 (Mo. banc 2007) (quoting Morris v. Brown, 941 S.W.2d 835, 840 (Mo.App. W.D.1997)). Likewise, “rescission is ... an equitable remedy, and ... the unilateral mistake doctrine balances the equities.” Nitro Distributing, 194 S.W.3d at 349. Thus, both reformation based upon mutual mistake and rescission based upon unilateral mistake are equitable remedies. Indeed, these are extraordinary equitable remedies that “should be granted with great caution and only in clear cases of fraud or mistake.” Alea London Ltd. v. Bono-Soltysiak Enters., 186 S.W.3d 403, 415 (Mo.App. E.D.2006). “Equitable issues that traditionally have been tried to the court shall still be tried to the court.” Leonardi, 137 S.W.3d at 474. The fact that reformation or rescission, if either of these equitable remedies were granted, might make it easier for OCS to recover under its breach of contract or quantum meruit claims does not somehow convert these equitable claims into legal ones as asserted by OCS. OCS asked the court to use its equitable powers to rewrite (reform) or entirely erase (rescind) the contract. Accordingly, count’s two and three of OCS’s petition asserted equitable claims properly tried to the court. Furthermore, until it was determined whether either of these equitable remedies would be granted, the merits of OCS’s breach of contract and quantum meruit claims, and of PWSD # 5’s counterclaim, could not be assessed by the jury.

The trial court did not err in denying OCS’s request that its reformation and rescission claims be tried to a jury. Point denied.

The judgment is affirmed.

All concur.


text:
    Benjamin A. TERRY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71022.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Dora A. Fichter, Jefferson City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Benjamin Terry appeals the circuit court’s judgment denying his motion for post-conviction relief. After a jury trial, Terry was convicted in Henry County Circuit Court of one count of murder in the first degree, Section 565.020 (RSMo 2000).

Because the findings and the conclusions of the motion court, which denied Terry’s post-conviction relief motion, are not clearly erroneous, we affirm. Rule 84.16(b). A memorandum setting forth the reasons for this order has been provided to the parties.


author: PER CURIAM.

text:
    In the Interest of: B.A.A., Appellant, v. JUVENILE OFFICER, Respondent.
    No. WD 71142.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.

      Patricia A. Harrison, Esq., St. Louis, MO, for appellant.
    Michael R. Fogal, Esq., Kansas City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Chief Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM.

B.A.A., a juvenile, appeals the circuit court’s judgment sustaining allegations that he committed acts, which if he were an adult, would be incest in violation of Section 568.020, RSMo. Cum.Supp.2009. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.

AFFIRMED. Rule 84.16(b).


text:
    Fred CERRA, Appellant, v. Alan GORMAN, Respondent.
    No. WD 71171.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Jeffrey S. Eastman, Gladstone, MO, for Appellant.
    Alan Gorman, Raymore, MO, Respondent Acting Pro Se.
    Before VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Mr. Fred Cerra appeals the trial court’s judgment in a partition action, awarding 100% of the property in kind to Mr. Alan Gorman. We affirm.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    CAMPUS LODGE OF COLUMBIA, LTD., Appellant, v. Christina Ann JACOBSON, Respondent.
    No. WD 71503.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.

      Steve Scott, for Appellant.
    Christina Ann Jacobson, Respondent pro-se.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   JOSEPH M. ELLIS, Judge.

Campus Lodge of Columbia, Ltd. (Campus Lodge) appeals from the trial court’s judgment denying it relief on its petition for damages. For the following reasons, we affirm.

Christina Jacobson signed a lease agreement with Campus Lodge covering a term from August 20, 2008, through July 31, 2009. Jacobson rented a bedroom in a four-bedroom unit and, under the terms of the lease agreement, she had exclusive use of one bedroom and bathroom and shared use of the kitchen and living/dining room areas with the other residents who occupied the remaining three bedrooms.

As part of her lease agreement, Jacobson signed a “Flat Screen Television Addendum.” The addendum acknowledged that Jacobson’s unit would be furnished with a flat-screen television in the common area. The portion of the addendum most pertinent to this appeal stated:

I, Christina, acknowledge the shared financial responsibility between myself, my roommate(s) and any applicable guarantor(s) for the payment of all necessary charges as associated with the television, any of the associated components, and/or the interior of the apartment due to misuse, neglect, or removal of said unit. Estimated charges for the replacement of the television begin at $1500/television, which do not include an estimate for charges for any damage or replacement costs related to the components and/[or] the interior of the apartment.

On February 11, 2009, Jacobson went to work at 4:30 p.m. and returned to her apartment around midnight. When she returned, Jacobson testified that the patio door was open and the television was missing. Jacobson testified that she immediately called the police, filed a report, and left her residence because she did not feel safe. The next morning, Jacobson testified that she notified Campus Lodge and they conducted an inspection of the apartment. Jacobson testified that Campus Lodge informed her that a window in her roommate’s bedroom was open and the screen to that window was damaged. Jacobson did not have access to that room.

Campus Lodge later informed Jacobson that she was responsible for the $1,500 in damages. Ultimately, when Jacobson did not pay, Campus Lodge filed a petition in the Circuit Court of Boone County seeking $1,500 for the missing television and attorneys fees. The case was submitted to the trial court and the court entered judgment in favor of Jacobson. Campus Lodge now appeals.

Campus Lodge contends that the trial court’s judgment was against the weight of the evidence and the trial court erroneously declared and applied the law because the addendum clearly provided that Jacobson was responsible for the television. We affirm the trial court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Mur phy v. Carron, 586 S.W.2d 30, 32 (Mo. banc 1976).

A lease in Missouri acts as both a conveyance and a contract, and a damaged party has available the usual contract remedies in the event a provision of a lease is breached “including damages, reformation and rescission of the contract.” Premier Golf Mo., LLC v. Staley Land Co., LLC, 282 S.W.3d 866, 873 (Mo.App. W.D.2009). We review the court’s interpretation of the lease de novo. R & J Rhodes, LLC v. Finney, 231 S.W.3d 183, 187 (Mo.App. W.D.2007).

Our rules for contract interpretation are as follows:

[A] contract must be construed as a whole. It must be viewed from end to end and corner to corner. The intent of the parties is presumed to be expressed by the natural and ordinary meaning of the language in the contract. If, however, the language is unclear, the trier of fact may look past the corners of the contract to ascertain the intent of the parties. In so doing the trier of fact should interpret the contract in the light most favorable to the party who did not draft the contract.

Parker v. Pulitzer Publ’g Co., 882 S.W.2d 245, 249 (Mo.App. E.D.1994) (internal quotations and citations omitted). “To establish a prima facie case [of breach of lease], a plaintiff must establish the existence of a valid lease, mutual obligations arising under the lease, that defendant did not perform, and that plaintiff was thereby damaged by the breach.” TA Realty Assocs. Fund V, L.P. v. NCNB 1500, Inc., 144 S.W.3d 343, 347 (Mo.App. E.D.2004).

Campus Lodge has failed to establish that Jacobson breached the lease agreement because there was no evidence that Jacobson failed to perform some obligation under the lease. Under the terms of the lease, as expressed by their natural and ordinary meaning, Jacobson was responsible for the “payment for all necessary charges as associated with ... the interior of the apartment due to misuse, neglect, or removal of said [television] unit.” However, there was no evidence that Jacobson ever misused, neglected, or removed the television in question. In fact, the “Lock Audit Report,” which was submitted into evidence, shows that Jacobson secured the unit at 4:35 p.m. on the night of February 11, 2009, and returned to the apartment on February 12, 2009, at 12:09 a.m. The lock audit report is consistent with Jacobson’s testimony and proves that Jacobson was not neglectful as she secured the apartment before leaving. Because Campus Lodge failed to show that Jacobson failed to perform some obligation under the contract, the trial court’s judgment is not against the weight of the evidence and the trial court did not erroneously declare or apply the law.

The trial court could also have denied Campus Lodge recovery for breach of lease based on its failure to prove damages. Campus Lodge argues that the provision of the lease that “[estimated charges for the replacement of the television begin at $1500/television” established “a minimum liquidated amount of $1,500” for misuse, neglect, or removal of the television. As Campus Lodge notes, however, an enforceable liquidated damages provision reflects the amount which the parties “agree shall be payable in the case of breach.” Warstler v. Cibrian, 859 S.W.2d 162, 165 (Mo.App. W.D.1993) (internal quotation omitted). Here, a statement that “estimated charges ... begin at” a particular amount does not reflect the parties’ agreement that the “estimated charges” would automatically become due and payable by the tenant on breach of the Flat Screen Television Addendum, whatever the extent of Campus Lodge’s actual damages. Instead, the quoted language is more naturally read simply as an admonition to tenants of the significant potential financial liability they were incurring by leasing a unit in which a flat-screen television was located. We do not believe this language relieved Campus Lodge of the obligation of proving actual damages, which it wholly failed to do. Point denied.

Campus Lodge further contends that the trial court erroneously declared and applied the law because, under the concept of “waste,” Jacobson, as a tenant, is hable for her failure to return the premises to Campus Lodge in the same condition as it was when she first occupied the apartment. Campus Lodge further notes that the lease agreement contained a waste provision clause:

Except for repairs necessary from Resident’s occupancy because of normal wear and tear, Resident agrees to leave the Premises in the same or better condition upon Resident vacating the Premises.
Resident shall not remove any of Landlord’s fixtures, appliances, or equipment from the Premises for any reason.

“Waste is the failure of a tenant to exercise ordinary care in the use of the leased premises or property that causes material and permanent injury thereto over and above ordinary wear and tear.” Hill v. Boyer, 72 S.W.3d 284, 285 (Mo.App. S.D.2002) (internal quotation omitted and emphasis added). Again, we find that the trial court did not erroneously declare or apply the law because there was no evidence that Jacobson failed to exercise ordinary care in the use of the apartment, which is required to prove waste, and there was no evidence Jacobson violated the terms of the waste provision in the lease agreement.

Campus Lodges cites Mason v. Stiles, 21 Mo. 374 (1855), as support for its argument that a tenant is responsible for the actions of a third party in an action for waste. Campus Lodge also cites secondary legal sources for this proposition.

Mason involved a petition for damages by owners of a building who leased to the defendants, who in turn employed a clerk who blew up the store and entirely destroyed the building. Id. Our Supreme Court held that the lessee was responsible for the damage caused by the lessee’s clerk. Id. at 378-79. Campus Lodge fails to show how Mason is controlling in this case when the facts in Mason are not at all on point with the facts in the case sub judice.

Further, secondary legal sources do not support Campus Lodge’s position. American Jurisprudence 2d states that a tenant may be liable for waste in cases of loss by theft. 78 Am.Jur.2d Waste § 24 (2002). However, the citation provided in the footnote to that statement is to Bresnakan v. Hieles, 260 Mich. 32, 244 N.W. 218, 219-20 (1932), where the Michigan Supreme Court held that leaving a door unlocked was not the proximate cause of loss of fixtures being stolen from the leased premises, so as to render the tenant liable to the landlord on the theory of permissive waste. The court stated:

This brings us to the question of whether defendant, as a tenant at will, is liable to respond in damages for fixtures taken and carried away by a thief. We cannot hold such to be commissive or permissive waste. Certainly it was not com-missive waste for such contemplates participation, at least to some extent, by the tenant and no such claim is made. Permissive waste, at least, requires a showing that it was allowed by the tenant or was the proximate result of want of reasonable care on his part.

Id.

None of the citations provided by Campus Lodge supports its proposition that Jacobson is liable for the cost of the television under the concept of waste, and Campus Lodge has failed to show that Jacobson failed to exercise ordinary care. Accordingly, we find the trial court did not err in denying Campus Lodge relief. Point denied.

The trial court’s judgment is affirmed.

All concur.


text:
    Lorenzo LADINER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71644.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Mark A. Grothoff, Columbia, MO, for Appellant.
    Terrence M. Messonnier, Jefferson City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH and KAREN KING MITCHELL, JJ.
   ORDER

PER CURIAM:

Lorenzo Ladiner appeals the circuit court’s judgment denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. We affirm. Rule 84.16(b).


text:
    Anthony L. BURDICK, Appellant, v. Nancy L. McCurley FLACH, Respondent.
    No. WD 71711.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    John W. Dennis, Jr., Independence, MO, for appellant.
    Nancy Flach, Respondent Pro Se.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Anthony Burdick (“Father”) appeals from the trial court’s judgment granting Nancy McCurley Flach’s (“Mother”) motion to modify judgment and denying Father’s motion to prevent the relocation of Child, Father’s motion for transfer of custody, and both parties’ motions for compensatory time. Father contends the trial court erred in: (1) denying his motions for continuance and for a mental examination of Mother; (2) failing to provide a complete record on appeal and thereby denying Father a meaningful review; (3) granting Mother permission to relocate because there was insufficient evidence that relocation was in Child’s best interests; (4) denying Father’s request for physical custody as it would be in Child’s best interests; and (5) ordering a new physical custody schedule that was not in Child’s best interests. We affirm. Rule 84.16(b).


text:
    Theresa Vivian TONASKET, Appellant, v. Anthony Lynn TONASKET, Respondent.
    No. WD 71889.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    James 0. Swaney, for Appellant.
    Sandra G. Hessenflow, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Theresa Tonasket appeals the judgment of the trial court modifying a dissolution decree. In several points on appeal, she challenges the court’s determinations regarding visitation, child support, and attorney fees. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment of the trial court is affirmed. Rule 84.16(b).


text:
    Sharon SIMS, Appellant, v. CITY OF INDEPENDENCE, Missouri, Respondent.
    No. WD 71975.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Mav H. Mirfasihi, for Appellant.
    Merry M. Tucker, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Sharon Sims appeals the trial court’s grant of summary judgment in favor of the City of Independence on Sims’s petition to recover damages for injuries allegedly caused by a dangerous condition on the City’s property. On appeal, Sims claims that a genuine issue of material fact existed as to whether the City had the right to exclusive possession and control of the property where the injury occurred. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    Rondell CORNELIUS, Appellant, v. STATE of Missouri, Respondent.
    No. WB 71225.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Robert J. (Jeff) Bartholomew, Jefferson City, MO, for respondent.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Rondell Cornelius appeals the trial court’s judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Cornelius contends that the trial court erred because he was denied effective assistance of counsel in that his trial counsel failed to act as a reasonably competent attorney. Specifically, Cornelius contends that his counsel failed to investigate and present expert psychiatric testimony at the hearing on his motion to suppress his statements. Cornelius asserts that such expert testimony would have supported his contention that his waiver of rights was not knowing, voluntary, and intelligent because he was not mentally competent to execute a valid waiver of rights. Cornelius claims that had such testimony been presented, his statements would have been suppressed and a reasonable probability exists that the outcome of his trial would have been different. We affirm. Rule 84.16(b).


text:
    In The Interest of: H.A.D., Missouri Children’s Division, Respondent, v. J.L.B. (Father), Appellant.
    No. WD 72026.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    William P. Devoy, Esq., Brookfield, MO, Gary L. Gardner, Esq., Jefferson City, MO, for appellant.
    Frederick P. Tucker, Esq., Macon, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge Presiding, JAMES E. WELSH, J. and BRIAN WIMES, SP. J.
   Order

PER CURIAM.

J.L.B. appeals the judgment terminating his parental rights to his daughter, H.A.D. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.

AFFIRMED. Rule 84.16(b).


author: JANICE M. HOLDER, C.J.,

text:
    STATE of Tennessee v. Sheryl Ann MARSHALL, Jessica Pickett, and Monica Butler.
    Supreme Court of Tennessee, at Nashville.
    Feb. 12, 2010 Session Heard at Murfreesboro.

    Sept. 3, 2010.

      Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General, and Preston Shipp, Assistant Attorney General, for the appellant, State of Tennessee.
    David A. Doyle and Robert T. Depew, Gallatin, Tennessee, for the appellees, Sheryl Ann Marshall, Jessica Pickett, and Monica Butler.

      . Oral argument was heard in this case on February 12, 2010, in Murfreesboro, Rutherford County, Tennessee, as part of this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

   OPINION

JANICE M. HOLDER, C.J.,

delivered the opinion of the Court,

in which CORNELIA A. CLARK, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

Three tenants of the Gallatin Housing Authority were indicted under the theft of services statute, Tenn.Code Ann. § 39-14-104, for failing to report to the housing authority earnings that would have increased their rent. On the tenants’ motion, the trial court dismissed the indictments, and the Court of Criminal Appeals affirmed the dismissal. Applying the canon of statutory construction ejusdem gen-eris, we hold that the definition of services in section 39 — 11—106(a) (35) does not include public housing. We therefore affirm the Court of Criminal Appeals.

Facts and Procedure

Sheryl Ann Marshall, Jessica Pickett, and Monica Butler executed leases with the Gallatin Housing Authority (GHA). Because the rent required by each lease was based on the lessee’s income, each lessee was required to provide updated income information annually. GHA verified this information and calculated the lessee’s rent for the next year. According to the affidavits of complaint, Ms. Marshall, Ms. Pickett, and Ms. Butler failed to report earnings that would have increased their rent. After including their unreported earnings, GHA computed that Ms. Marshall owed $4,882.90 in additional rent and late fees and that Ms. Pickett and Ms. Butler owed $4,856 and $2,483 respectively. Separate indictments charged Ms. Marshall, Ms. Pickett, and Ms. Butler with “unlawfully and intentionally obtaining] services of the value of $1,000 or more from Gallatin Housing Authority by deception, fraud, false pretense or other means” in violation of Tennessee Code Annotated section 39-14-104 (2006).

The defendants filed identical motions to dismiss their indictments, arguing that the statutory definition of “services” does not include public housing. At a hearing on the defendants’ motions, the trial court received into evidence a lease agreement between the GHA and Ms. Butler, which the parties agreed was representative of the leases of Ms. Marshall and Ms. Pickett. The trial court found that no provision in the lease fell within the statutory definition of services and dismissed the indictments against all of the defendants. The Court of Criminal Appeals affirmed the orders of dismissal. We granted the State’s application for permission to appeal.

Analysis

“A person commits theft of services who: (1) Intentionally obtains services by deception, fraud, coercion, false pretense or any other means to avoid payment for the services.... ” Tenn.Code Ann. § 39-14-104. For the purposes of this offense, “ ‘[services’ includes labor, skill, professional service, transportation, telephone, mail, gas, electricity, steam, water, cable television or other public services, accommodations in hotels, restaurants or elsewhere, admissions to exhibitions, use of vehicles or other movable property.” Tenn.Code Ann. § 39-11-106(a)(35) (2006); Tenn.Code Ann. § 39-14-104 sentencing comm’n cmt. At issue in this case is whether obtaining a lease for public housing may constitute theft of services pursuant to section 39-14-104. This issue is a matter of statutory interpretation to which we apply a de novo standard of review. State v. Wilson, 132 S.W.3d 340, 341 (Tenn.2004).

The definition of services in section 39-11 — 106(a)(35) lists specific items but does not list public housing. When a statutory definition states that it “includes” specific items, we have held that the “enumerated items are illustrative, not exclusive.” Gragg v. Gragg, 12 S.W.3d 412, 415 (Tenn.2000). Our task therefore is to examine the term “public housing” to determine whether it may fairly be included among the non-exclusive terms listed in the statutory definition of services.

Public housing is readily distinguishable from most of the statute’s specifically listed terms and categories. For example, public housing has no relationship to labor, skill, professional service, transportation, admissions to exhibitions, or use of vehicles or other movable property. The pertinent part of the definition states that “ ‘[services’ includes ... other public services, accommodations in hotels, restaurants or elsewhere.” Tenn.Code Ann. § 39-ll-106(a)(35). Obtaining public housing therefore may constitute a theft of services only if public housing is similar to accommodations in hotels or restaurants or if it falls within “other public services” and “or elsewhere,” two of the statute’s non-specific categories. These terms are designed to broaden the scope of the statute beyond the specific listing of terms in the statute. The breadth of these phrases is uncertain, and we consider them in context to determine legislative intent. State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000).

Our role in statutory interpretation is to give a statute the full effect of the General Assembly’s intent without unduly restricting or expanding the statute’s intended scope. Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn.2010) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995)). “[W]e presume that every word in the statute has meaning and purpose and should be given full effect if the obvious intent of the General Assembly is not violated by so doing.” Id. (citing In re C.K.G., 173 S.W.3d 714, 722 (Tenn.2005)). We find the General Assembly’s intent in the plain and ordinary meaning of the statute’s language if the language is unambiguous. Wilson, 132 S.W.3d at 341. “When the meaning of a statute is in question, we rely upon well-established canons of statutory construction.” State v. Sherman, 266 S.W.3d 395, 401 (Tenn.2008).

Ejusdem generis is a canon of statutory construction that dictates that “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.” Black’s Law Dictionary 594 (9th ed.2009); Sallee v. Barrett, 171 S.W.3d 822, 829 (Tenn.2005). In this way, ejusdem generis limits the breadth of the general phrase so that neither the general phrase nor the specific terms are inoperative. Compare Arcadia v. Ohio Power Co., 498 U.S. 73, 78, 111 S.Ct. 415, 112 L.Ed.2d 374 (1990) (observing that ejusdem generis prevents a general phrase from “swallowing what precedes it”) with James v. United States, 550 U.S. 192, 200, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (observing that “Congress’ inclusion of a broad residual provision ... indicates that it did not intend the preceding enumerated offenses to be an exhaustive list”). Additionally, when applied to a criminal statute, the canon of ejusdem generis clarifies the breadth of the general phrase so that the statute provides adequate notice of the proscribed activity. Cf. United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008) (reciting the fundamental principle that “no citizen should be held accountable for a violation of a statute whose commands are uncertain”).

Applying ejusdem generis to section 39-ll-106(a)(35), the breadth of “or other public services” is limited to a class that includes telephone, mail, gas, electricity, steam, water, and cable television. In other sections of the Tennessee Code, the General Assembly has listed these services as examples of utilities. See Tenn.Code Ann. §§ 65-4-101(6) (2004), 65-31-102(12) (2004 & Supp.2009). Public housing is distinct from a class comprised of utilities. Public housing provides a dwelling accommodation, see Tenn.Code Ann. § 13-20-413 (1999), whereas utilities are used to make a dwelling accommodation habitable and comfortable. Moreover, the General Assembly has enacted separate statutory schemes to regulate utilities and public housing. Compare TenmCode Ann. §§ 65-4-101 to -506 (2004 & Supp.2009) with Tenn.Code Ann. §§ 13-20-101 to - 614 (1999 & Supp.2009). We therefore conclude that “other public services” does not encompass public housing.

Applying ejusdem generis to the phrase “accommodations in hotels, restaurants, or elsewhere” limits the breadth of “or elsewhere” to a class comprised of restaurant accommodations and hotel accommodations. The General Assembly defines a “restaurant” as “an eating establishment ... that gives, or offers for sale, food to the public, guests, or employees.” Tenn.Code Ann. § 39-17-1802(12) (Supp. 2009); see Tenn.Code Ann. § 62-7-107(a)(3) (2009); § 68-14-302(6)(A) (2006 & Supp.2009). Public housing provides a dwelling, and its accommodations are clearly distinct from accommodations at a restaurant. The issue therefore is whether public housing accommodations are in the same class as hotel accommodations.

The General Assembly defines “hotel” as “a place where sleeping accommodations are furnished for pay to transients or travelers.” Tenn.Code Ann. § 68-14-302(8) (emphasis added). In comparison, the General Assembly describes public housing as “dwelling accommodations” that a housing authority rents or leases to persons of low income. TenmCode Ann. § 13-20-113 (1999). A dwelling unit is “a building or structure used as a place of residence.” TenmCode Ann. § 13-20-102(10) (1999) (emphasis added). The General Assembly has enacted separate statutory schemes to regulate accommodations in hotels and accommodations in public housing. Compare Tenn.Code Ann. §§ 62-7-101 to -112 (2009) and §§ 68-14-301 to -327 (2006 & Supp.2009) with TenmCode Ann. §§ 13-20-101 to -614. Additionally, public housing leases are subject to the Uniform Residential Landlord and Tenant Act, Tenn. Code Ann. §§ 66-28-101 to -521 (2004 & Supp.2009); see TenmCode Ann. § 66-28-201(e)(1) (2004), whereas “[transient occupancy in a hotel” is exempted from that Act. TenmCode Ann. § 66-28-102(c)(3) (2004 & Supp.2009). These statutes demonstrate that the General Assembly considers public housing to be distinct from hotel accommodations. We conclude that public housing accommodations are dissimilar from hotel accommodations and therefore that “or elsewhere” does not encompass public housing.

We reach our conclusions today by relying on a well-established canon of statutory construction and by consulting legislative history and other statutory schemes enacted by the General Assembly. The rule of lenity further supports our conclusion.

[W]hen the fair import of the language of a penal statute, in the context of the legislative history and case law on the subject, still results in ambiguity, the rule of strict construction would apply to limit the statute’s application to those persons or circumstances clearly described by the statute. In other words, “the rule of lenity is a tie-breaker when there is an otherwise-unresolved ambiguity.”

State v. Horton, 880 S.W.2d 732, 735 (Tenn.Crim.App.1994) (quoting United States v. White, 888 F.2d 490, 497 (7th Cir.1989)); see State v. Denton, 149 S.W.3d 1, 17 (Tenn.2004) (stating that “in criminal cases, all ambiguities will be resolved in favor of the defendant” (citing State v. Rogers, 992 S.W.2d 393, 400 (Tenn.1999))). The United States Supreme Court has described the rule of lenity as “rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his [or her] conduct is prohibited.” Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); accord State v. Richmond, 171 Tenn. 1, 100 S.W.2d 1, 3 (1937). “[T]o ensure that a legislature speaks with special clarity when marking the boundaries of criminal conduct, courts must decline to impose punishments for actions that are not ‘plainly and unmistakably’ proscribed.” Dunn, 442 U.S. at 112-13, 99 S.Ct. 2190 (quoting United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917)). As such, we would resolve the ambiguity in favor of Ms. Marshall, Ms. Pickett, and Ms. Butler.

Conclusion

For the reasons articulated above, we hold that the theft of services offense does not apply to public housing. The Court of Criminal Appeals therefore properly affirmed the trial court’s dismissal of the indictments against the defendants. Costs of this appeal are assessed against the appellant, the State of Tennessee.

      . Since the defendants’ indictments, the General Assembly has enacted section 39-14-153 (Supp.2009). This section makes it an offense for a recipient of public housing to obtain dwelling accommodations by knowingly concealing a material fact if the concealment results in ”[t]he person’s lease or rental payment being less than the person would otherwise be required to pay under the housing authority's income qualification standards.” Tenn.Code Ann. § 39 — 14—153(a)(2).

      . Subsequent to the indictments in this case, the Tennessee General Assembly added the following language to the end of this definition: "and any other activity or product considered in the ordinary course of business to be a service, regardless of whether it is listed in this subdivision (35) or a specific statute exists covering the same or similar conduct.” Tenn.Code Ann. § 39-1 l-106(a)(35) (Supp. 2009).

      . We are mindful that ejusdem generis cannot be used to defeat the intent and purpose of the legislature. See United States v. Alpers, 338 U.S. 680, 682, 70 S.Ct. 352, 94 L.Ed. 457 (1950). The General Assembly enacted both sections 39-ll-106(a)(35) and 39-14-104 as part of the Criminal Sentencing Reform Act of 1989, ch. 591, sec. 1, 1989 Tenn. Pub. Acts 1169, 1174, 1208-09. In its lengthy debate amending and adopting the Act, neither the General Assembly nor its committees discussed the breadth of the theft of services offense or the definition of services. We find nothing in the statute's legislative history that is contrary to our conclusions today.

      . Section 65-4-101(6) defines "public utilities,” in pertinent part, as any entity that owns, operates, manages, or controls "within the state, any interurban electric railway, traction company, all other common carriers, express, gas, electric light, heat, power, water, telephone, telegraph, telecommunications services, or any other like system.” (Emphasis added). Section 65-31-102(12) defines "utility,” in pertinent part, as "any line, system or facility used for producing, storing, conveying, transmitting, or distributing communications, electricity, gas, petroleum, petroleum products, hazardous liquids, water, steam, sewerage and other underground facilities.” (Emphasis added).

      . To the extent that "accommodations ... elsewhere" has been interpreted broadly to include monthly accommodations, these cases are overruled. See State v. Davis, No. 02C01-9704-CC-00139, 1998 WL 208854, at *2 (Tenn.Crim.App. Apr. 30, 1998).