author: GARY D. WITT, Judge.

text:
    In the Interest of: T.S.G., Appellant, v. JUVENILE OFFICER, Respondent.
    No. WD 71641.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2010.

      Patricia A. Harrison, St. Louis, MO, for appellant.
    Michael R. Fogal, Kansas City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

T.S.G. appeals the juvenile court’s judgment that she committed acts constituting a status offense under Section 211.031.1(2)(d) of behavior injurious to her welfare. We reverse.

Factual Background

T.S.G., seventeen years old at the time of trial, was accused by her two half-brothers of sexual misconduct, because she allegedly let them touch her breasts and those of her cousin. The two brothers, E.GJr. and E.G., were ten and nine years old at the time of trial in 2009. The alleged misconduct took place from October 2005 through December 2008. At the time the accusations were made, E.G.Jr. was eight years old and E.G. was six. The mother of the boys, A.M.C., informed Children’s Division of the allegations, and the boys were interviewed by a forensic interviewer, Kristin Gilgour (“Gilgour”).

Based on these allegations, on April 2, 2009, the Juvenile Officer filed a Delinquency Petition alleging that T.S.G. committed acts, if committed by an adult, would have resulted in two counts of sexual misconduct. The juvenile court asserted jurisdiction over T.S.G. pursuant to Section 211.031.1(3), which vests original jurisdiction in the juvenile court over “any child who is alleged to have violated a state law.” A trial was held in September 2009, at which both E.GJr. and E.G. testified, along with their mother, father, and Gilg-our.

At the close of evidence, the judge took under advisement an oral motion for judgment of acquittal. When the hearing reconvened, the trial court issued its ruling. The court dismissed Count 2 of the Delinquency Petition, finding that the Juvenile Officer had failed to meet the burden of proof as to that charge. The court also found that the Juvenile Officer had failed to prove, beyond a reasonable doubt, each element of Count 1; specifically, the intent element that touching was done for sexual gratification was not proven.

The Court then, without a motion or request from either party, “amended the Petition to conform to the evidence” and found T.S.G. had committed a status offense. The court found that T.S.G. acted beyond her welfare and the welfare of E.GJr. by involving herself and E.GJr. in some sort of inappropriate contact. This basis of jurisdiction of the juvenile court is found at Section 211.031.1(2)(d), and it gives the court jurisdiction over a child who either resides or is found in the county and who is in need of treatment because “[t]he behavior or associations of the child are otherwise injurious to his or her welfare or to the welfare of others.”

The dispositional hearing was held on October 6, 2009, and T.S.G. was placed on probation in the care and custody of her mother. T.S.G. was ordered to complete the Healthy Choice Program and fifteen hours of community service. Five months later, on March 9, 2010, the juvenile court found that T.S.G. was no longer in need of the services of the court, and therefore, all prior orders were terminated, and T.S.G. was released and discharged from the jurisdiction of the Court.

As a threshold matter, we must consider whether the issue has been rendered moot prior to appellate review. Lucas v. Lucas, 307 S.W.3d 712, 714 (Mo.App. E.D.2010). “ ‘With regard to justicia-bility, a case is moot if a judgment rendered has no practical effect upon an existent controversy.’ ” State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998) (quoting Gilroy-Sims & Assocs. v. City of St. Louis, 697 S.W.2d 567, 569 (Mo.App. E.D.1985)). “ ‘The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.’ ” Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 545 n. 3 (Mo.App. W.D.1999) (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999)). “Because mootness implicates the justiciability of a case, the court may dismiss a case for mootness sua sponte.” Chastain, 968 S.W.2d at 237. “We do not decide questions of law disconnected from the granting of actual relief.” Id.

There are three narrow exceptions to this general rule that allow this Court to exercise its discretion to accept a moot case, where: (1) the action becomes moot after the case has been argued and submitted; (2) the issue is one of general public interest and importance and is capable of recurring and likely to evade appellate review, Reiz v. Bd. of Zoning Adjustment, 316 S.W.3d 331, 334-35 (Mo.App. W.D.2010) (citing State ex rel. Claudia Lee & Assocs., Inc. v. Bd. of Zoning Adjustment, 297 S.W.3d 107, 111 n. 6 (Mo.App. W.D.2009) (citations omitted)); or (3) the decision being appealed could have significant collateral consequences for one or more of the parties. Glover v. Michaud, 222 S.W.3d 347, 351 (Mo.App. S.D.2007).

Both parties request that we proceed with a determination in this case under the second exception above. T.S.G. further requests that we proceed also under the third exception above, in that because the original charge was sexual in nature and with the rapidly changing statutes in Missouri dealing with this area of the law regarding sex offender registration and the movement to make more juvenile records public, she may face significant collateral consequences in the future if we do not address the issues of the case. The Juvenile Officer concedes that there may be significant collateral consequences to T.S.G. in the future based on this adjudication, even though she is no longer under the jurisdiction of the juvenile court. Therefore, we proceed to address the issues raised by the parties.

T.S.G. raises two points on appeal. First, T.S.G. argues the juvenile court violated her rights under the Fourteenth Amendment to due process of law and to a fair trial when the Petition alleged a delinquency offense and, yet, the court amended the petition to a status offense after the close of evidence, thereby depriving her of notice of the charges against her. In her second point, T.S.G. argues there was insufficient evidence to sustain a charge of “behavior injurious to her welfare or the welfare of her brother.”

Standard of Review

“An appellate court reviews juvenile proceedings ‘like any other court-tried case, i.e., the judgment will not be disturbed unless it is against the weight of the evidence or it erroneously declares or erroneously applies the law.’ ” In the Interest of N.R.C. v. Juvenile Officer, 276 S.W.3d 883, 886 (Mo.App. W.D.2009) (quoting N.J.K. v. Juvenile Officer, 139 S.W.3d 250, 259 (Mo. App. W.D.2004)). The facts are viewed in the light most favorable to the trial court’s decision. See In the Interest of A.A.T.N., 181 S.W.3d 161, 166 (Mo.App. E.D.2005). The appellate court defers to the trial court’s determinations of the credibility of witnesses. Id.

Analysis

T.S.G. argues the trial court erroneously declared and/or misapplied the law when it found T.S.G. committed a status offense under Section 211.031.l(2)(d) because the original Petition failed to allege the status offense and, therefore, failed to provide notice of the charges against her, which violated T.S.G.’s Fourteenth Amendment right to due process of law and a fair trial.

It has long been settled that due process and fair treatment are required in juvenile court adjudications of delinquency by the Fourteenth Amendment’s Due Process Clause. See In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The essentials of due process and fair treatment are required to pass constitutional scrutiny. Id. at 30, 87 S.Ct. 1428. “Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ ” Id. at 33, 87 S.Ct. 1428.

In the present case, after the close of the evidence, the court found that the Juvenile Officer failed to prove her case as to each element beyond a reasonable doubt. The juvenile court then proceeded to dismiss one allegation and amend the remaining allegation in the Petition, replacing the delinquency offense with that of a status offense. The status offense which the court found to have been committed by T.S.G. is found in Section 211.031.1(2)(d), and it gives the court jurisdiction over a child who either resides or is found in the county and who is in need of treatment because “[t]he behavior or associations of the child are otherwise injurious to his or her welfare or to the welfare of others.” No prior notice of this status offense was given to T.S.G. before the close of evidence. This runs afoul of the Fourteenth Amendment’s guarantee of due process and a fair trial. See State v. Billingsley, 465 S.W.2d 569 (Mo.1971).

Generally, the notice requirement of the Due Process Clause is satisfied when one is charged with a greater offense but convicted of an uncharged lesser-included offense. “If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.” State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957) (quoting AM. JUR. Indictments and Informations § 194). “Put simply, ‘a “lesser offense is not included in a greater unless it is impossible to commit the greater offense without first committing the lesser.” ’ ” State v. Tremaine, 315 S.W.3d 769, 777 (Mo.App. W.D.2010) (quoting State v. Kirkland, 684 S.W.2d 402, 406 (Mo.App. W.D.1984)). Neither party argues that the status offense in this case was a lesser included offense of the delinquency offense for which T.S.G. was originally charged.

The Juvenile Officer argues forcefully that status offenses are fundamentally different than delinquency cases, a point which weighs in favor of the juvenile in this case, not in the favor of the Juvenile Officer. While there are differences with respect to the consequences of being found to have committed a status offense and the protections provided to juveniles adjudicated to have committed status offenses, the Juvenile Officer provides no authority for the proposition that these differences justify the court’s utter lack of notice to T.S.G. that her charge was being amended after the close of all of the evidence. The fact that the allegation for which the juvenile did not receive prior notice is a status offense rather than a delinquency offense is inconsequential. In addition, T.S.G. was never offered an opportunity to present evidence in response to the “amended charge.” The Missouri Supreme Court Rules make no distinction between delinquency and status offenses with respect to the notice required. See Mo. Sup.Ct. R. 128.02. This court has addressed prior attempts to circumvent the rights of juveniles for their supposed greater good. These cases revolve around the theme of charging the juvenile with one offense, an inability to convict, and then subsequently convicting her of another in order to get her into rehabilitation. These previous attempts have similarly been rejected. See e.g., J.D.B. v. Juvenile Officer, 2 S.W.3d 150 (Mo.App. W.D.1999).

In one such case, this court held “that convicting a juvenile of a separate and distinct offense for which he was not specifically charged is a violation of the principles expounded in In re Gault.” Id. at 156. This deprives the juvenile of the opportunity to prepare her defense and allows the court to “ ‘adjudicate a juvenile to be delinquent for any offense the evidence might reveal. This would deny him of the notice of the grounds upon which the adjudication of delinquency is being pursued.’ ” Id. at 155 (quoting In the Interest of R.R.P., 545 S.W.2d 351, 357-58 (Mo.App.1976)). We find no reason to change course now.

Once the juvenile court determined that the Juvenile Officer had not proven all the elements of the delinquency offense charged, Missouri Supreme Court Rules require that the court deny the Petition and release the juvenile from its jurisdiction if there is no other basis to retain jurisdiction. See Mo. Sup.Ct. R. 128.02(c). Amending the Petition after the close of evidence to charge a separate offense, no matter how benign the motive, denies the juvenile of the notice and opportunity to be heard guaranteed to her by the Fourteenth Amendment’s Due Process Clause.

Conclusion

The judgment of the juvenile court is reversed, and the Juvenile is ordered discharged from the effects of that disposition; any records of this adjudication shall be removed from T.S.G.’s files.

All concur.

      . All statutory citations are to RSMo 2000, as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . Examples include but are not limited to the following: Section 211.063 provides restrictions on detainment of status offenders in secure detention; Section 219.021.1 precludes placement of a juvenile who has committed only a single status offense with the Division of Youth Services; Section 211.071 precludes conduct adjudicated as status offenses that would be felonies if committed by an adult for consideration as a prior adjudicated felony, in cases where a juvenile is certified as an adult.

      . The Missouri Supreme Court Rules were amended as of January 1, 2010. At the time of trial this rule was in effect as Rule 119.02.-a(7)(A) and stated: "[wjhen the evidence has been received upon the allegations of the petition, the court shall determine whether the allegations of the petition have been established in accordance with the appropriate standard of proof. If these allegations have not been so established, the court shall enter a judgment dismissing the petition.” Mo. Sup.Ct. R. 119.02 (2009).


source: Caselaw Access Project

author: CLIFFORD H. AHRENS, Judge.

license: Public Domain

text:
    Eddie HEAD, Movant, v. STATE of Missouri, Respondent.
    No. ED 93893.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 28, 2010.
    Scott Thompson, St. Louis, MO, for appellant.
    Chris Koster, Mary H. Moore, Jefferson City, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Eddie Head (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. The motion court’s judgment denying post-conviction relief is reversed. The sentence, but not the conviction, on count V (kidnapping) is vacated, and the case is remanded for re-sentencing on that count.

Background

A jury convicted Movant of two counts of first-degree robbery, kidnapping, and forcible rape. The trial court sentenced Movant to two concurrent prison terms of 10 years on the robbery counts plus consecutive terms of 15 years for rape and 12 years for kidnapping, for a total of 37 years. This court affirmed the judgment and sentence. State v. Head, 272 S.W.3d 312 (Mo.App.2008).

Movant filed a motion for post-conviction relief claiming that Movant’s trial counsel was ineffective for failing to (1) present evidence of another man’s DNA on the rape victim and (2) correct the trial court’s misapprehension of the felony class of the kidnapping conviction as relevant to sentencing. The motion court held an eviden-tiary hearing during which two witnesses testified: a DNA analyst in the St. Louis Metropolitan Police Department crime laboratory, and Movant’s trial counsel. Their testimony is discussed below as relevant to Movant’s points of error. The motion court denied relief, and Movant appeals.

Standard of Review

Our review of the motion court’s denial of post-conviction relief is limited to a determination of whether the motion court clearly erred in finding that counsel was not ineffective. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). To prove ineffective assistance of counsel, Movant must demonstrate that: (1) counsel’s performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney, and (2) Movant was prejudiced by counsel’s poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002).

To satisfy the first prong of the Strickland test, Movant must overcome a presumption that the challenged action constituted sound trial strategy. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). The second Strickland prong necessitates that Movant “s how a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Id. If Movant fails to prove either prong of the Strickland test, we need not consider the remaining prong. Buckner v. State, 35 S.W.3d 417, 420 (Mo.App. W.D.2000).

Discussion

Failure to introduce other DNA

Movant claims that his trial counsel was ineffective for omitting evidence that another man’s DNA was found on the rape victim. At the motion hearing, a DNA analyst testified that an unknown man’s DNA was present on the victim’s vaginal area and underwear. Movant’s counsel testified that the victim’s deposition indicated that she had had consensual intercourse with her boyfriend earlier on the evening of the rape and that Movant did not ejaculate. As such, he calculated that his case would be stronger without physical evidence. Specifically, counsel explained:

If I presented the DNA person, the State would have an explanation for who that person was or where that DNA came from.... If I said there was no DNA present whatsoever, [the State may be able to argue that] there’s a possibility that [Movant’s] DNA was there, but there was too little to be present so we couldn’t test it.... If she did not testify, I could still argue in closing there was no physical evidence to show that he raped her.

This record supports the motion court’s finding that counsel’s decision was reasonable trial strategy. The motion court’s finding that counsel was not ineffective on this basis is not clearly erroneous. Point denied.

Mistaken felony class

Movant asserts that counsel was ineffective for failing to correct the court’s misapprehension of the felony class of the kidnapping charge as relevant to sentencing. Movant was convicted of a class B felony. The range of punishment for a class B felony is 5 to 15 years while the range for a class A felony is 10 to 30 years.

The State’s Information lists the kidnapping charge as a class A felony, but the narrative language of that count describes a class B felony. Movant’s conviction was for a class B felony, though the docket sheet designates it as a class A felony. The trial transcript and the jury instruction confirm that the State intended to charge Movant with class B felony kidnapping. But in the post-verdict transcript the trial court stated the range as 10 to 30 years. The prosecutor attempted to correct the court, stating, “That’s five to 15,” to which Movant’s counsel replied, “It’s charged as an A.”

At the sentencing hearing, the trial court referred to the sentencing assessment report and stated guidelines consistent with the range of punishment for an A felony, to wit: a mitigated sentence of shock time, a presumptive sentence of 12 years, and an aggravated sentence of 16 years. The trial court then asked counsel to confirm its analysis, to which counsel replied, “It looks like everything in there was accurate.” Both the State and Mov-ant’s counsel recommended a sentence of 10 years. Ultimately, the trial court imposed 12 years. The presumptive sentence for a B felony is seven years.

At the motion hearing, Movant’s counsel testified that he couldn’t say whether, at the time of trial, he thought the kidnapping conviction was a class A or class B felony but only that he asked for 10 years concurrent with the robbery conviction because “they’re both 85 percent crimes” and thus “[Movant] wouldn’t be getting any more time on either one.” He conceded that Movant was convicted of a class B felony and that he might have been confused that it was an A felony.

In its judgment denying relief, the motion court observed:

“[DJefense counsel are only sporadically familiar with [sentencing] guidelines. It is simply not the case that competent defense attorneys regularly familiarize themselves with those guidelines and are in a position to correct miscalculations. (They should be.) Therefore it cannot be said that [counsel’s] failure was the result of his being less skillful, careful, or diligent than most of his colleagues in the defense bar.” (parenthetical in original)

Focusing only on counsel’s familiarity with the guidelines, the court made no findings regarding counsel’s own ignorance of the actual felony class of which his client was convicted.

As a preliminary matter, the State argues that Movant’s claim is actually an allegation of trial court error and therefore not cognizable under Rule 29.15. We disagree with the State’s characterization. The true basis for Movant’s claim here, albeit obscured by the wording of his point relied on, is that his own lawyer was ignorant of the felony class of his conviction and, as a result, actively misinformed the court thereof and requested sentencing based on harsher guidelines than were applicable to Movant’s offense. Movant’s claim impugns not the trial court but rather his counsel and is therefore properly raised under Rule 29.15. See Roller v. State, 84 S.W.3d 525, 528 (Mo.App.2002).

“A sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual outcome.” Wraggs v. State, 549 S.W.2d 881, 884 (Mo.1977). In Wraggs, the trial court sentenced the defendant on the mistaken belief that he had five prior convictions when in fact he only had three. The record reflected that this mistake “played a significant part” in the trial court’s sentencing decision. Id. at 886. Even though the sentences were still within the proper statutory range, the Court remanded for re-sentencing, stating, “[i]t is not for us to say that this change would not influence ... a sentencing judge to render a lesser sentence.” Id.

Similarly, in Williams v. State, 800 S.W.2d 739 (Mo.1990), the trial court sentenced the defendant to consecutive prison terms on the mistaken belief that it lacked the discretion to impose concurrent sentences. Though the dissent perceived no prejudice, the majority resolved the matter “in favor of according the trial court maximum discretion.” Id. at 740. “We cannot say that the judge might not have pronounced a less severe sentence if he thought he had the discretion to do so. The appropriate remedy is to remand for resentencing.” Id. at 741.

Also in Roller v. State, the trial court sentenced the defendant to consecutive terms on the mistaken belief that the applicable statute prohibited concurrent terms. Defense counsel attempted, unsuccessfully, to correct the error, but appellate counsel failed to raise the issue on appeal, so the defendant moved for post-conviction relief asserting ineffectiveness of appellate counsel. Following Williams, the Southern District of this court granted relief by remanding for re-sentencing at the discretion of the trial court. 84 S.W.3d at 528.

Likewise, in State v. Olney, 954 S.W.2d 698 (Mo.App.1997), based on the same mistake as in Roller, the Western District remanded for re-sentencing even though the trial court might have imposed the same punishment on remand. “Sentencing is the responsibility of the trial court and we are reluctant to impinge on trial court authority in sentencing.” Id. at 701.

In State v. Rowan, 165 S.W.3d 552 (Mo.App.2005), this court remanded a sentence that was imposed based on the trial court’s mistaken affirmative representation to the defendant about his parole eligibility. Though reviewing on direct appeal, this court found guidance by analogy in post-conviction precedent holding that defense counsel is ineffective for affirmatively misinforming a client about parole eligibility. E.g. Copas v. State, 15 S.W.3d 49, 56 (Mo.App.2000).

Here, the trial court sentenced Movant based on a materially false foundation that Movant’s own counsel perpetuated by affirmatively misinforming the court about his client’s felony class. Based on that faulty premise, counsel’s advocacy, though well-intentioned, was unwittingly deleterious to his client’s interests. And even though Movant’s sentence remained within the B felony range, we cannot say that the judge still would have imposed 12 years where the presumptive sentence was seven and the maximum was 15 rather than 30 years. Following established precedent discussed above, we leave that determination to the sound discretion of the trial court.

Conclusion

The motion court’s judgment denying post-conviction relief is reversed. Mov-ant’s convictions remain undisturbed. However, the sentence on count V (kidnapping) is vacated and set aside. The cause is remanded to the circuit court for re-sentencing, on that count only, under the guidelines for a class B felony.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J„ concur.


author: SHERRI B. SULLIVAN, P.J.

text:
    Kimberly Lynn NICHOLS, Kerri Hanna and Kelly Lynn Donaldson, Plaintiffs/Appellants, v. Joseph L. DONALDSON, Individually and as Trustee of the Walter R. Donaldson Revocable Trust, Defendant/Respondent.
    No. ED 94481.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 28, 2010.
    Thomas M. Schneider, Columbia, MO, for Plaintiffs/Appellants.
    Bradford A. Brett, Mexico, MO, for Defendant/Respondent.
   SHERRI B. SULLIVAN, P.J.

Introduction

Kimberly Lynn Nichols, Kerri Hanna and Kelly Lynn Donaldson (collectively Appellants) appeal from the trial court’s judgment awarding Joseph L. Donaldson (Respondent) $49,765.66 on their petition for partition and account and on Respondent’s counterclaim for quantum meruit. We reverse and remand.

Factual and, Procedural Background

On March 23, 1992, Walter Donaldson (Donaldson) established the Walter R. Donaldson Revocable Trust (Trust), which he amended on July 28, 1998. The primary assets in the Trust were three non-contiguous tracts of land comprising Donaldson’s 350-acre farm. The Trust named Respondent, Donaldson’s son, as successor trustee upon Donaldson’s death. Donaldson died on April 11, 2003.

The Trust provided that upon Donaldson’s death Respondent, as Trustee, was to divide the principal of the Trust into two equal shares, one in favor of Respondent and the other in favor of Appellants, who are Donaldson’s grandchildren and Respondent’s nieces. The Trust contained an option for Respondent to buy out Appellants’ share of the Trust by executing and delivering a promissory note for $125,000 in favor of Appellants’ share within 60 days of Donaldson’s death. Respondent did not exercise this option.

On November 15, 2007, Appellants filed a petition against Respondent, individually and as Trustee, alleging Respondent failed to distribute to Appellants their 50 percent interest in the Trust real estate following Donaldson’s death. Appellants sought partition of the Trust real estate in kind, an accounting, and removal of Respondent as Trustee.

On December 12, 2007, Respondent filed his answer to the petition which included a counterclaim for quantum meruit alleging that Respondent performed valuable services and made material improvements to the Trust property that “greatly benefited all beneficiaries of the [Trust]” for which he has not received compensation or reimbursement. Respondent requested a judgment against Appellants, the Trust, or the beneficiaries of the Trust which would “fairly and adequately compensate [Respondent], for his valuable and beneficial services provided to the Trust[.]”

At trial, Respondent testified that on April 4, 2003, he borrowed $182,000 from Mid America Mortgage using the Trust property as collateral. Although Donaldson was still alive at the time of the closing, Respondent signed the deed of trust for the mortgage as the Trustee. Donaldson and Appellants did not know that Respondent mortgaged the Trust property. Donaldson died seven days later.

Respondent testified that he used the proceeds from the loan to pay off debts and expenses he had incurred in farming the Trust property prior to 2003 and in operating a trucking business, including debts for farm and trucking equipment owned by him, county taxes, and supplies. Respondent testified that he and Donaldson had a verbal agreement between 1988 and 2002 that Respondent would farm the Trust property and would pay all of the taxes, upkeep, and expenses of the farming operation. During this period, Respondent did not pay any rent to Donaldson for use of the land and kept all of the income from the farming operation. Respondent agreed that the fair rental value of the farm was approximately $30,000 per year during the years that he farmed the property.

Following Donaldson’s death, Respondent did not distribute the Trust property and instead rented out the farmland to a third party, Dennis Isgrig (Isgrig), for $30,000 per year, totaling $210,000 between 2003 and February 2009. Isgrig paid the rent directly to Respondent for five years, some of which Respondent then used to pay the mortgage to Mid America Mortgage. Isgrig’s 2008 and 2009 payments were paid directly to Mid America Mortgage where the money was held in an escrow account from which the monthly mortgage payments were paid. The outstanding balance on the mortgage at the time of trial was approximately $149,000. None of the rent from Isgrig was paid to Appellants.

James Wright (Wright), a real estate appraiser, inspected and appraised the three parcels. Wright testified that Tract 1 is comprised of 120 acres with a house and has a value of $432,000. Tract 2 consists of 159 acres with a house, a barn and other improvements, and has a value of $636,000. Tract 3 consists of 70 acres, has no structures, and has a value of $210,000.

Respondent testified that Judy Donaldson, Appellants’ mother, has lived in the house on Tract 1 without paying rent since before 1985. Respondent has lived in the house on Tract 2 without paying rent to the Trust since Donaldson’s death. Respondent stated that the fair rental value of the house on Tract 2 is approximately $300 to $400 per month.

Respondent testified that he performed work on all the tracts after Donaldson died. Respondent removed fences, cleared brush, added waterways, performed dirt work, removed junk, and repaired and maintained the houses. Respondent performed the work himself, using his own equipment, and has not received compensation for any of the work. Respondent testified that this work enhanced the value of the tracts for “all of the owners.”

The trial court entered judgments on August 12, 2009; January 11, 2010; and February 16, 2010. The court ordered, based on the report of the appointed Commissioners, that the Trust property be divided in kind with Respondent receiving Tract 2 (159 acres) and Appellants receiving Tracts 1 (120 acres) and 3 (70 acres). Using Wrights’ appraisal, the court found that the land received by Appellants was worth $6,000 more than the land received by Respondent.

The court found that the $182,000 loan Respondent received from Mid America Mortgage, for which he used the Trust property as collateral, was solely a personal loan to Respondent and none of the proceeds were used for the purpose or benefit of the Trust. Since it was a personal loan, the court rejected Respondent’s request for $55,537.85 in interest and principal payments he made on the loan. The court found that Respondent was obligated to indemnify and hold Appellants harmless from any loss or expenses in connection with that loan. The court held that Respondent was obligated to pay the Trust $16,800 in back rent to compensate for living rent-free in a house on the Trust property for four years. The court disallowed Respondent’s request for utilities in the amount of $7,804.25 since those were for his personal use while living in a house owned by the Trust.

The court also disallowed Respondent’s request for $30,980 for the undepreciated value of improvements he made to the Trust farms prior to Donaldson’s death since Respondent farmed the Trust land rent-free from 1990 through 2002 and the fair rental value of the farms during that period greatly exceeded the claimed improvement costs. The court allowed Respondent’s other reimbursement requests, including his claims for post-2002 improvements; uncompensated personal labor; repairs and maintenance; real estate taxes; insurance; and diesel fuel in the total amount of $187,259.81.

The court found that Respondent personally, or his mortgagee on his behalf, received $210,000 in cash rent from Isgrig belonging to the Trust. The court held that Appellants were entitled to one-half of the $210,000 rent payments and 9 percent prejudgment interest from February 1, 2003 to August 1, 2009, totaling $29,025.

The court found that Respondent had breached his duty as Trustee by failing to distribute one-half of the corpus of the Trust to Appellants as required and by his personal use of the Trust assets, including keeping the cash rent and living on the property rent-free. Based on Respondent’s breach of his duties, the court held that an award of Appellants’ attorney’s fees and litigation expenses was appropriate under Section 456.10-1004 RSMo 2006.

In its accounting, the court held that Respondent was entitled to receive $105,000 for one-half of the rental payments paid by Isgrig; $8,400 for one-half of the rental value of the house occupied by Appellants’ mother; $6,000 for the difference in the appraised value of the three tracts; and $187,259.81 as reimbursement for uncompensated labor and expenses. The court held that the total amount owed Respondent was $201,659.81.

The court found that Appellants were entitled to $105,000 for one-half of Isgrig’s rental payments, plus $29,015 for interest on one-half of the cash rent. In addition, Appellants were entitled to $8,400 for one-half of the fair rental value of the house in which Respondent lived and for attorney fees in the amount of $9,769.15. The court found that the total amount owed to Appellants was $152,184.15. After setting off these amounts, the court held that Appellants were jointly and severally liable to Respondent for $49,765.66. This appeal follows.

Point on Appeal

On appeal, Appellants argue the trial court erred in entering a monetary award in favor of Respondent and against Appellants in the amount of $49,765.66 because it is unsupported by competent and substantial evidence, is against the weight of the evidence and/or is the result of a misapplication of the law to the facts herein, in that in rendering its trust accounting, the trial court failed to apply the debits and credits on a consistent basis. Specifically, Appellants contend the trial court’s accounting involving the actual and imputed trust rents were divided in half, since Appellants and Respondent were 50 percent trust beneficiaries, but Respondent received a 100 percent credit for his labor and expenditures on behalf of the trust. Appellants claim this inconsistency resulted in an erroneous monetary award in favor of Respondent instead of in favor of Appellants.

Standard of Review

On appeal, we will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Discussion

The net income for the property is gross income less the operating expenses. Schindler v. Pepple, 158 S.W.3d 784, 786 (Mo.App. E.D.2005). Although none of the rental income was actually paid to the Trust, the Trust property should have generated $210,000 in rent from Isgrig; $16,800 in rent from Respondent; and $16,800 in rent from Appellants on behalf of their mother, for a gross income of $243,600. The court found that Respondent expended $187,259.81 in improvements, labor, repairs, maintenance, taxes, insurance and fuel. Therefore, the net income for the property was $56,340.19.

Here, Respondent and Appellants each had a $16,800 liability to the Trust for the rental benefits they received since Donaldson’s death, leaving $22,740.19 in undis-bursed income. As equal Trust beneficiaries, Respondent and Appellants were each entitled to half of the remaining income, or $11,370.09. Therefore, Respondent was entitled to $11,370.09 in Trust income and $6,000 from Appellants for the difference in the appraised values of the parcels after partition, for a total of $17,370.09.

Appellants were entitled to $11,370.09 for their one-half of the Trust’s net income, statutory interest on their one-half of the net income, and their attorney’s fees. Although the trial court previously calculated the interest and attorney’s fees due, we remand to the trial court for a determination of these amounts in light of this Court’s opinion. On remand, the trial court should calculate Appellants’ statutory interest based on their percentage of the Trust’s net income after the parties’ liabilities to the Trust are considered, or $11,370.09, and the court should determine Appellants’ attorney’s fees both at trial and on appeal.

Conclusion

The judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.

CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ„ concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Daniel R. HOFFARTH, Appellant.
    No. ED 92437.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 28, 2010.
    Nancy A. McKerrow, Assistant Public Defender, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Daniel Hoffarth (Defendant) appeals the judgment of conviction entered after a jury found him guilty of three counts of statutory sodomy in the first degree. Defendant claims the trial court erred in permitting the prosecution to: (1) question the venire panel about whether various facts relating to a victim’s background would affect the venire panel’s ability to believe the victim’s testimony; (2) introduce evidence that Defendant killed the victims’ dog; (3) introduce evidence that Defendant abused the victims’ mother; and (4) introduce evidence that Defendant forced the two victims to have sex with each other. Defendant also claims that the trial court abused its discretion in excluding proffered witness testimony regarding the victims’ alleged sexualized behavior.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion would have no precedential value. We have, however, prepared a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Ronald HALKMAN, Defendant/Appellant.
    No. ED 93996.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 28, 2010.
    Brocea L. Smith, St. Louis, MO, for Defendant/Appellant.
    Shaun J. Mackelprang, Jayne T. Woods, Jefferson City, MO, for Plaintiff/Respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Ronald Halkman appeals from the trial court’s judgment entered upon a jury verdict convicting him of first-degree murder, first-degree robbery, and two counts of armed criminal action. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court committed no reversible error. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


text:
    Jedediah L. DIBERT, Individually and as Next friend to Torrianna K. Dibert and Toriann K. Dibert, Appellant, v. Layla A. ALLEN, Respondent.
    No. ED 93920.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2010.
    Michael Jackson, Jackson, MO, for appellant.
    Stephan Southard, Cape Girardeau, MO, for respondent.

      Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Jedediah Dibert (“Father”) appeals the trial court’s amended judgment modifying an earlier judgment and order establishing paternity, custody and child support. He claims one point on appeal. Father alleges that the trial court erred in rejecting his proposed parenting plan and custody order and adopting one in which Layla Allen (“Mother”) retained primary residential custody of the minor child.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Ronald NEWLON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93904.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2010.
    Jessica Hathaway, MO Public Defender Office, St. Louis, MO, for appellant.
    Shaun Mackelprang, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Ronald Newlon (“Movant”) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion alleging ineffective assistance of counsel. On appeal, Movant raises two points claiming that the motion court clearly erred in denying his motion without an evidentiary hearing. Finding no error, we affirm.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. Sup.Ct. R. (2010), unless otherwise indicated.


text:
    Johnny MOORE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93870.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 28, 2010.
    Edward S. Thompson, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Johnny Moore (Movant) appeals the St. Louis City Circuit Court’s judgment denying his motion for post-conviction relief without a hearing. Movant claims that the motion court erred in denying his claims that his trial counsel was ineffective for: (1) failing to produce as evidence a lease showing that Terrence Colvin was the tenant of 4355 Evans, the apartment where police arrested Movant; and (2) failing to investigate and produce Terrence Colvin as a witness at trial to testify that he, and not Movant, was the resident at 4355 Evans.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    David L. RAYFORD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94223.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2010.
    Lisa Stroup, MO Public Defender Office, St. Louis, MO, for appellant.
    Shaun Mackelprang, James Farnsworth, Co-Counsel, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

David Rayford (“Movant”) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion. On appeal, Movant raises two points claiming that the motion court clearly erred in denying his motion without an evidentiary hearing. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the motion court ar& based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. Sup.Ct. R. (2009), unless otherwise indicated.


text:
    STATE of Missouri, Appellant, v. Rollan S. STANLEY, Respondent.
    No. ED 93212.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2010.
    Maleaner Harvey, MO Public Defender Office, St. Louis, MO, for appellant.
    Shaun Mackelprang, Mary Moore, Jefferson City, MO, Co-Counsel for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

A jury convicted Rollan Stanley (“Defendant”) of burglary in the first degree under Section 569.160 and misdemeanor stealing under $500 under Section 570.030. The trial court sentenced Defendant as a prior and persistent offender to fifteen years on the burglary count and thirty days for the stealing count. In Defendant’s sole point on appeal, he claims that the trial court erred in denying his motion for judgment of acquittal at the close of all evidence because the State failed to prove beyond a reasonable doubt that he committed the burglary.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).

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


text:
    Sandra Dee HILL, Petitioner/Respondent, v. Richard D. HILL, Respondent/Appellant.
    No. ED 93381.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 28, 2010.
    Gillespie, Hetlage & Coughlin, LLC, Lawrence G. Gillespie, Clayton, MO, for Appellant.
    James Hutchison, Forth & Snyder, PC, Michael H. James, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J, MARY K. HOFF, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Richard D. Hill appeals from the trial court’s judgment entered on his Motion to Vacate Judgment and Request for New Trial or in the Alternative for the Court to Reopen, Amend or Modify its Judgment and Decree of Dissolution of Marriage and Paternity dissolving his marriage to Sandra Dee Hill. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. An extended opinion would have no precedential value or serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    Dearl JACKSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71051.
    Missouri Court of Appeals, Western District.
    Oct. 12, 2010.
    Mark A. Grothoff, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Dora A. Fichter, Esq., Jefferson City, MO, for respondent.
    BEFORE DIVISION ONE: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Chief Judge and CYNTHIA MARTIN, Judge.
   Order

PER CURIAM.

Dearl Jackson appeals from the denial of his Rule 29.15 post-conviction claim, which alleged the ineffective assistance of his appellate counsel. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.

AFFIRMED. Rule 84.16(b).


author: VICTOR C. HOWARD, Judge.

text:
    Angela BOND, Appellant, v. SITE LINE SURVEYING, Respondent, Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Respondent.
    No. WD 72142.
    Missouri Court of Appeals, Western District.
    Oct. 12, 2010.

      David A. Slocum, for Appellant.
    Douglas M. Greenwald, for Respondent.
    Before Division Two: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   VICTOR C. HOWARD, Judge.

Angela Bond (Employee) appeals the final award of the Labor and Industrial Relations Commission (Commission) denying her workers’ compensation benefits. The Commission found that Employee’s injury did not arise out of and in the course of her employment. On appeal, Employee claims that the Commission’s final award was not supported by substantial and competent evidence. The final award is affirmed.

Factual and Procedural Background

On May 17, 2007, Employee was the owner and president of Site Line Survey-mg (SLS). Employee testified that at approximately 4:30 that afternoon, she was walking through the office taking paperwork to the office manager when she tripped over a telephone cord causing her to fall to the ground. When she fell, she landed on the right side of her body and immediately felt pain in her right wrist and head.

Several people were present at SLS when Employee fell, although no one actually saw her fall. Patty Young (SLS’s office manager and Employee’s aunt) and Jennifer Renner (Employee’s mother) were in the office with Employee, and Warren Bond (Employee’s brother) was in the break room at the time of the fall. Ms. Young testified that she was sitting at her desk behind Employee when she heard the phone on her desk “kind of jiggle and hit the floor” and then Employee hit the floor. She turned around and saw Employee laying on her right side moaning. Ms. Young and Ms. Renner, who was sitting at another computer station in the office, went to assist Employee. Employee complained of pain in her right arm and wrist and head. Ms. Renner, who is also a nurse, recommended that Employee go home and put ice on her wrist. Employee took Ms. Renner’s advice and left work.

Employee did not go directly home but went to Picture This! Studios, a photography business that Employee often did work for as a subcontractor. Employee testified that she went there to drop off a disk from a wedding and to notify the owner, Angela Needs, that she would not be able to photograph a wedding scheduled for May 19 because of her injured wrist. Ms. Needs testified that she and Employee share a professional relationship but are friendly when they work events together. When asked to identify Employee for the court, Ms. Needs said that she was the “blond bombshell” sitting right there. Ms. Needs explained that Employee came to her business on the afternoon of May 17, 2007, and informed her that she had fallen at work and would not be able to photograph the May 19 wedding. Ms. Needs testified that Employee’s right wrist appeared to be swollen, discolored, and mangled and that Employee was favoring her wrist and was in pain.

Employee testified that after leaving Picture This!, she went home, took some Tylenol, and iced her wrist with a bag of frozen vegetables. At 5:20 pm, Conley Stamper, a consultant for SLS, visited Employee at her home to have her sign some contracts. He testified that when Employee answered her door, she appeared shaken and in pain and was holding a bag of frozen vegetables on her right arm near her wrist. He further stated that he noticed some swelling on her wrist and that she was favoring it. Mr. Stamper was at Employee’s house for approximately five minutes. He testified that he previously worked at SLS from 1996 until 2006 and that at one point, he was romantically involved with Employee’s mother, Ms. Renner.

Employee did not seek any medical treatment for her wrist on May 17, 2007, hopeful it was only a sprain. She went to bed that night at 9:00 pm. She further stated that during the night, she fell out of her bed when she lost her balance as she was attempting to get up and avoid her three sleeping dogs. She testified that she thought she fell backwards and landed on her bottom. She denied injuring or re-injuring her right wrist when she fell out of bed. She also denied that her fall out of bed was the result of a seizure.

Employee testified that she occasionally has nocturnal seizures that have resulted in a fractured spine, broken toe, and fractured ribs in the past. She explained that she is not aware that she is having a seizure at the time but that when she wakes up, she discovers that she has bitten her tongue and has blood-shot eyes and flu-like symptoms. Employee testified that she did not have any of these symptoms on the morning of May 18, 2007.

Employee further testified that she had an argument with her fiance, Scott Paul-son, that morning. She and Mr. Paulson lived together but slept in separate bedrooms. According to Employee, Mr. Paul-son was not home on the evening of May 17 before she went to bed and that he smelled of alcohol that next morning. She also testified that she told Mr. Paulson about her wrist injury at work the day before and her fall out of bed later that night. She denied telling Mr. Paulson that she had suffered a seizure or that she had hurt her wrist in a fall at home. She testified that her mother took her to the Truman Medical Center emergency room at 10:00 am that morning.

Mr. Paulson testified by deposition, after he and Employee had broken up, that he believed he was home on the evening of May 17 and that Employee never mentioned falling at work that day or that she was having any problem with her wrist. He stated that they went to bed that night, each going to their separate bedrooms, and that early the next morning, Employee came into his room and woke him up. She was very lethargic and holding her wrist. Mr. Paulson testified that based on his experience with Employee’s seizures and her behavior, he knew that she had had a seizure. He stated that he got some ice for her wrist, took her back to bed, and lay down with her. Finally, Mr. Paulson testified that he called Employee’s doctor’s office in the morning and reported that Employee had had another seizure and fell out of bed and that they thought she might have fractured her wrist. He then took Employee to the emergency room.

Employee’s medical records reflected that Mr. Paulson called the office of Dr. Carrie Lehr at 9:27 am on May 18. The office notes stated, “fiancée called, pt had sz last night and possibly has fractured wrist.” The notes also reflected Dr. Lehr’s recommendation that Employee go to the emergency room.

The Truman Medical Center records reflected, “The patient presents with a chief complaint that she fell out of bed last night and hurt her wrist.” Employee testified that she did not think she gave that history to the ER doctor. Additionally, an outpatient progress note from the same day reflects, “She apparently sustained this falling out of bed.” Employee testified that these notes were inaccurate and that Mr. Paulson was a possible source of the inaccurate information. The hospital records showed that Employee suffered two fractures in her right wrist. The bones were impacted, or driven into each other.

Employee saw Dr. James Brannon at Truman Medical Center about her wrist on May 23. A progress note from that day reflected, “Patient is [sic] slipped and fell on Thursday of the last week.” Employee testified that she gave Dr. Brannon this history and that her mother was present and Mr. Paulson was not. Dr. Brannon performed surgery on Employee’s wrist on May 25. Employee’s follow-up care was shifted to Dr. William Reed. Dr. Reed examined Employee on June 7 and recommended occupational therapy. Dr. Reed noted Employee’s history as “This is a 38-year-old female that tripped and fell over a phone cord at work.” In an October 2007 letter to SLS’s insurance carrier, Dr. Reed documented Employee’s loss of motion in her wrist and rated her disability at 10% permanent partial impairment of the upper extremity. Employee was reevaluated by Dr. Reed in May 2008, and Dr. Reed recommended an EMG.

In February 2009, Employee was evaluated by Dr. John Pazell, an orthopaedic surgeon. After reviewing Employee’s medical records and performing a physical examination, Dr. Pazell submitted a written medical evaluation recommending an EMG of Employee’s right upper extremity and an MRI of her right shoulder. Dr. Pazell opined that the May 17, 2007 slip and fall at work “was the prevailing factor leading to the development of the fracture right radius and the injury to her right shoulder.”

Employee testified that she continues to experience numerous physical problems from her work injury including pain in her right hand and wrist, loss of strength in her right wrist, loss of range of motion in her right wrist, numbness and tingling in her right hand, and pain in her right shoulder.

Employee filed a claim for compensation with the Division of Workers’ Compensation. In her claim, Employee alleged that the injury occurred when she tripped and fell while moving office furniture. The Division’s Administrative Law Judge (ALJ) held a hearing and thereafter issued a final award finding that Employee sustained a compensable work injury within the course and scope of her employment at SLS.

The Commission reversed the award of the ALJ and denied compensation. For several reasons stated in its decision, the Commission found that Employee’s “fractured right wrist did not arise out of and in the course of her employment on May 17,-2007. Although employee may have suffered a minor fall at work, we find that the weight of the evidence suggests that her double fracture occurred at her home later that night or in the early morning of May 18, 2007.” This appeal by Employee followed.

Standard of Review

In cases where the Commission reverses the decision of the ALJ, the Commission’s final award and not the ALJ’s decision is reviewed. Snyder v. Consol. Library Dist. No. 3, 306 S.W.3d 133, 135-36 (Mo.App. W.D.2010). In reviewing the Commission’s award, the appellate court shall review only questions of law. § 287.495.1, RSMo Cum.Supp.2009. It may modify, reverse, remand for rehearing, or set aside the award based on factual determinations only on the grounds prescribed by statute: (1) that the Commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the Commission do not support the award; or (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Id.; Dubose v. City of St. Louis, 210 S.W.3d 391, 394 (Mo.App. E.D.2006). The appellate court reviews the Commission’s award to determine whether it is “‘supported by competent and substantial evidence upon the whole record.’ ” Dubose, 210 S.W.3d at 394 (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003)). It defers to the Commission on issues of fact but reviews questions of law de novo. Id. Additionally, the appellate court defers to the Commission on issues concerning the credibility and weight to be given to conflicting evidence. Id.

Analysis

In her sole point on appeal, Employee contends that the Commission’s finding that Employee’s injury did not arise out of and in the course of her employment was not supported by substantial and competent evidence.

In 2005, the Missouri General Assembly made sweeping changes to the Workers’ Compensation Law, Chapter 287, RSMo. Under the current Law, “[a]n injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.” § 287.020.3(1). “Prevailing factor” is defined as “the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.” Id. Furthermore, section 287.800.1 now requires this Court to strictly construe the provisions of the Workers’ Compensation Law. Smalley v. Landmark Erectors, 291 S.W.3d 737, 738 (Mo.App. E.D.2009); Gordon v. City of Ellisville, 268 S.W.3d 454, 459 (Mo.App. E.D.2008).

“The claimant in a worker’s compensation case has the burden to prove all essential elements of her claim including a causal connection between the injury and the job.” Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 376 (Mo.App. W.D.2006)(internal quotation marks and citations omitted). ‘“Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause.’ ” Lingo v. Midwest Block & Brick, Inc., 307 S.W.3d 233, 236 (Mo.App. W.D.2010)(quoting Gordon, 268 S.W.3d at 461). The weight afforded a medical expert’s opinion is exclusively within the discretion of the Commission. Sartor v. Medicap Pharmacy, 181 S.W.3d 627, 630 (Mo.App. W.D.2006). Furthermore, where the right to compensation depends on which of two medical theories should be accepted, “the issue is peculiarly for the Commission’s determination.” Goerlich v. TPF, Inc., 85 S.W.3d 724, 731 (Mo.App. E.D.2002)(internal quotation marks and citation omitted), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

The Commission’s finding that Employee’s injury did not arise out of and in the course of her employment was supported by competent and substantial evidence upon the whole record. Evidence was presented that Employee suffers from a seizure disorder that has resulted in broken bones in the past. Employee herself testified that she fell out of bed during the night of May 17 or early morning of May 18, 2007, although she denied having a seizure or hurting her wrist at that time. Mr. Paulson testified that Employee did not tell him that she hurt her wrist at work before going to bed that night. He also testified that he had witnessed Employee’s prior nocturnal seizures and the symptoms that arose from them. He stated that early the next morning, Employee came into his room and woke him up. She was very lethargic and holding her wrist. Based on his experience with Employee’s seizures and her behavior, he knew that she had had a seizure. Mr. Paulson’s testimony and the office notes of Dr. Lehr demonstrated that Mr. Paulson called Employee’s doctor the next morning and reported that Employee had had a seizure and possibly fractured her wrist. The Truman Medical Center emergency room records reflected that Employee “presented] with a chief complaint that she fell out of bed last night and hurt her wrist.”

While other evidence was presented through Employee’s testimony and the testimony of Ms. Young, Ms. Renner, Ms. Needs, and Mr. Stamper that Employee’s injury resulted from a fall at work, the Commission discredited this evidence citing the disparity between Employee’s description of the workplace fall in her claim for compensation (tripped while moving furniture) and at trial (tripped over phone cord), Employee’s less than definite denial that she told emergency room workers that she hurt her wrist when she fell out of bed, and Employee’s close relationships with the other witnesses. Instead, the Commission found credible and gave more weight to Mr. Paulson’s testimony and the emergency room records despite some inaccuracies in the records unrelated to the causation issue. These determinations of credibility and weight to be given to the evidence were for the Commission. Du-bose, 210 S.W.3d at 394.

Employee contends that Dr. Pazell’s report, in which he opines that Employee’s fall at work was the prevailing factor in causing her right wrist fracture, is dispositive of the issue of medical causation because his opinion was the only medical opinion in the case addressing the issue and the Commission was wholly silent with respect to the doctor’s opinion and credibility and, therefore, was not free to arbitrarily disregard or ignore the un-impeached and undisputed evidence. In support of this contention, Employee cites Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902 (Mo.App. E.D.2008). “[Acceptance or rejection of medical evidence is for the Commission and it is free to disbelieve uncontradicted and unim-peached testimony.” Id. at 907. “If the Commission expressly declared that it disbelieves uncontradicted or unimpeached testimony, or if reference to the award shows that the Commission’s disbelief of the employee or his or her doctor was the basis of the award, then the general rule ... applies.” Id. “The Commission may not arbitrarily disregard and ignore competent, substantial, and undisputed evidence of witnesses who are not shown by the record to have been impeached and the Commission may not base its findings upon conjecture or its own mere personal opinion unsupported by sufficient and competent evidence.” Id. See also Wright v. Sports Assoc., Inc., 887 S.W.2d 596, 600 (Mo. banc 1994), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003); Merriman v. Ben Gutman Truck Serv., Inc., 392 S.W.2d 292, 297 (Mo.1965). Thus, “where the record is wholly silent concerning the Commission’s weighing of credibility, the Commission may not arbitrarily disregard or ignore competent, substantial, and undisputed evidence of witnesses.” CardweU, 249 S.W.3d at 907-08.

Employee’s contention fails for several reasons. First, her argument ignores the burden of proof in a workers’ compensation case, namely that the claimant has the burden of proving all essential elements of a claim including causation. Royal, 194 S.W.3d at 376; Decker v. Square D Co., 974 S.W.2d 667, 670 (Mo.App. W.D.1998). “In cases in which more than one event could have caused a condition but only one is compensable, a claimant has the burden of proving the nature and extent of disability attributable to his or her job duties or workplace.” Decker, 974 S.W.2d at 670. An employer is not obligated to disprove a claimant’s case or, specifically, to establish that another event caused the employee’s injury. Roberts v. Mo. Highway & Transp. Comm’n, 222 S.W.3d 322, 333 (Mo.App. S.D.2007); Decker, 974 S.W.2d at 670. The employer, SLS, was not obligated to establish by medical evidence or otherwise that Employee’s injury was caused by a fall from bed during a nocturnal seizure. See Decker, 974 S.W.2d at 670 (employer was not obligated to establish that employee’s carpal tunnel syndrome was caused by something other than his job). Instead, Employee had the burden to prove a direct causal link between her injury and her job. Royal, 194 S.W.3d at 376; Decker, 974 S.W.2d at 670.

Furthermore, Dr. Pazell’s report did not constitute undisputed evidence of medical causation, and the Commission’s award demonstrates that the Commission gave little or no weight to it. In the section, summary of medical care, in his written evaluation prepared some twenty-one months after Employee suffered her injury, Dr. Pazell wrote:

I had the opportunity to evaluate her and take her history. Basically, it is as follows.
On May 17, 2007, she was coming down the hall in her office at her place of employment and she tripped. She had on a wedge shoe and tripped apparently over a phone cord. She fell, struck her head, and landed on her outstretched hand. She had immediate discomfort, limited motion, and tenderness in her hand. She was concerned about the fact that it might perhaps be a strain. She went home, applied ice, and subsequently went to Truman Medical Center with a history of wrist pain. There is some conjecture that she fell out of bed and hurt her wrist. This is not accurate. She hurt wrist in the presence of witnesses at her place of employment. Whatever happened that night would only at best aggravate the issue.

At the end of his evaluation, Dr. Pazell opined that the May 17, 2007 slip and fall at work “was the prevailing factor leading to the development of the fracture right radius and the injury to her right shoulder.”

The parties did not dispute that a fall caused Employee’s injury. Employee presented evidence that a fall at work caused her injury while SLS presented evidence that Employee’s injury was caused by a fall as a result of a nocturnal seizure. Dr. Pazell’s opinion that Employee’s fall at work caused her injury seemingly was not based on medical judgment but rather the history provided to him by Employee and the doctor’s own determination of the witnesses’ credibility. Moreover, Dr. Pazell did not evaluate the other possible cause of Employee’s injury — a nocturnal seizure— but summarily dismissed the “conjecture” as inaccurate. While the doctor apparently reviewed Employee’s medical records, which contained information regarding her seizure disorder, his report did not indicate that he was even aware of the specific circumstances of the other possible cause. Such limitations of Dr. Pazell’s opinion went to the weight afforded to the opinion, which was exclusively within the province of the Commission. See McBurney v. Cameron, 248 S.W.3d 36, 49 (Mo.App. W.D.2008)(in medical malpractice case, where expert did not opine regarding one of two possible causes, such limitations of his expertise went to the weight of his opinion, which was for the finder of fact to determine). Reference to the award shows that the Commission did not believe the doctor’s opinion that a fall at work was the prevailing factor in causing Employee’s wrist injury. The Commission explicitly discredited Employee and her witnesses, who offered similar evidence and who the doctor relied upon. Additionally, it specifically credited the emergency room records and Mr. Paulson’s testimony showing a different cause of the injury. Thus, the record was not wholly silent on the issue of credibility, and the Commission did not base its findings on mere personal opinion unsupported by sufficient and competent evidence. The Commission was, therefore, free to disregard Dr. Pazell’s report. See Cardwell, 249 S.W.3d at 907. But see Angus v. Second Injury Fund, — S.W.3d -, —(Mo.App. W.D.2010)(the Commission erred in disregarding the sole, un-contradicted expert medical opinion and instead adopting its own personal opinion as to causation where the Commission found claimant to be credible, the causation issue was a complex medical issue, and all of the medical evidence presented supported the doctor’s causation opinion). The point is denied.

The final award of the Commission is affirmed.

All concur.

      . All statutory references are to RSMo Cum. Supp.2009 unless otherwise indicated.