text:
    Charles WINSLOW, Respondent, v. Tom NOLAN, Appellant.
    No. ED 93544.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.

      Charles Alan Hurth, III, Union, MO, for Appellant.
    Joseph L. Racine, Chesterfield, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Defendant Tom Nolan (Nolan) appeals from a judgment awarding Plaintiff Charles Winslow (Winslow) damages stemming from undivided profits and unjust enrichment on Winslow’s claim of an equal partnership interest in a plumbing business. The trial court found that Nolan and Winslow had agreed to share equally the profits earned from their plumbing partnership, that the profits had not been equally divided, and that Nolan was unjustly enriched by accepting the benefits of Winslow’s labor, knowledge and experience. Because we find no substantial evidence of a partnership agreement between Winslow and Nolan in the record, and no substantial evidence of unjust enrichment to Nolan, we reverse the trial court’s judgment.

Background

On May 12, 2008, Winslow filed a petition against Nolan alleging breach of contract and unjust enrichment. A bench trial took place on June 3, 2009, during which the following evidence was adduced.

Winslow and Nolan worked as employees of the same plumbing business during 2003 and 2004. Winslow worked as a plumber and Nolan worked in the office. Winslow testified that he and Nolan had talked about starting a plumbing company specializing in backflow prevention, with Nolan providing the customer list from their current employer and Winslow performing the plumbing work. Winslow testified that he and Nolan agreed that Win-slow would acquire the necessary licenses and bonding in Winslow’s name as a master plumber and that Winslow would perform the plumbing work for the business. Nolan would provide the customer list and manage the sales aspect of the business. Winslow testified that he and Nolan agreed the business would be structured as a partnership in which they each shared 50 percent of the profits and ownership. Winslow further testified that he was not obligated to make capital contributions to the business and had no risk of loss other than his salary.

When he first discussed starting a plumbing business with Nolan, Winslow did not have a master plumber’s license required by local ordinances to operate a plumbing business in St. Louis City or St. Louis County. Once Winslow took the required test and received his master plumber’s license, he and Nolan began their plumbing business. The business was to specialize in backflow prevention work. Nolan and his daughter, Erin Hebenstreit, filed paperwork with the State of Missouri to form the plumbing business as a limited liability company. Winslow did not learn that a limited liability company had been formed until after the paperwork had been filed.

The name of the limited liability company formed by Nolan and his daughter was Accurate Backflow Systems, LLC (ABS). Winslow was not named as an owner of ABS on any of the documents filed with the State of Missouri. Winslow presented no evidence at trial that Nolan owned any interest in ABS. The only evidence of the ownership interest in ABS was presented by Nolan’s daughter who testified that she was listed as the owner of ABS.

Winslow performed the plumbing field work for ABS and also contacted potential customers to generate business for ABS. Winslow was paid a salary by ABS during his entire tenure with ABS. Winslow testified that Nolan operated as the office manager for ABS, but generated few sales. Winslow estimated that Nolan brought in about 30 percent of the customers, while Winslow generated the remaining 70 percent of the business. Winslow worked at ABS until his employment ended in May 2007.

Winslow testified that after ending his business relationship with Nolan, Winslow started his own company, doing “the same exact thing [he] did [with Nolan].” Win-slow testified he earned far more money as a business owner than as a salaried master plumber, and provided an estimate of ABS’s profits based upon his experience and knowledge from running his own company, Winslow testified that his company performed “exactly the same work” that he and Nolan did at ABS, and that the costs, methods of installation, and figuring profits were also the same. Winslow further testified that he based his estimate of profits for ABS on the financial numbers Nolan had provided to him regarding the amount of work performed at ABS. Win-slow estimated ABS’s profit margin was at least 50 percent during the first year of operation. Winslow testified that ABS earned about $150,000 in gross revenues during the first year. After deducting about $100,000 for his master plumber’s salary, Winslow claimed that $50,000 remained to be divided equally between Win-slow and Nolan. Winslow further claimed ABS earned $250,000 in annual revenues the following two years, and estimated profits of $100,000 for each year after deducting $100,000 for the master plumber salary and $50,000 in other expenses. Winslow testified that both he and Nolan should have received $50,000 in shared profits during each of those two years. In total, Winslow estimated that he was entitled to $125,000 as his share of the profits from the plumbing partnership.

Nolan presented evidence that he did not agree to enter into a partnership with Winslow. Although Nolan had commented to Winslow that ABS would “consider” sharing profits if the company earned a profit, he never agreed to share profits from the plumbing business. Nolan also presented evidence that ABS did not earn a profit in 2004, 2005 or 2006, and earned a meager profit of $324 in 2007. Nolan further presented evidence that Winslow was paid a salary as a master licensed plumber at or above the required union scale during the entire time Winslow worked for ABS. Nolan claimed that Winslow was an employee of ABS, and did not have any interest in the ownership or profits of ABS. Nolan presented testimony that his daughter owned ABS and financially ran the company while Nolan made the day-to-day operations decisions.

On July 1, 2009, the trial court entered its findings of fact and conclusions of law, finding that Winslow and Nolan had agreed to form a plumbing company in which they would equally share the profits and ownership of the company. The trial court also found that both parties were to receive compensation for their services until such time as the company became profitable, at which time both parties would receive a 50 percent division of the company’s profits. The trial court found Nolan’s evidence not credible that ABS was not profitable during 2004, 2005, and 2006, and earned a small profit for 2007, and found Winslow’s testimony “totally credible” that Nolan assured him that the company was indeed making a profit. The trial court further found that Winslow’s testimony on ABS’s profits was “totally credible and reasonable,” but allowed for fewer earned profits at the company’s inception and for other employees hired. The trial court found that ABS earned $150,000 in profits during Winslow’s tenure, which entitled Winslow to 50 percent of the profits earned, or $75,000. The trial court ruled that Nolan had been unjustly enriched and ordered that Winslow receive his fair compensation of $75,000 from Nolan.

On July 8, 2009, Nolan filed his Motion for New Trial, and amended that motion on July 28, 2009. Nolan argued that the trial court erred in awarding Winslow speculative damages not based on the evidence adduced at trial, and in applying the theory of unjust enrichment. The trial court denied Nolan’s Motion for New Trial on August 24, 2009.

Nolan filed his Notice of Appeal to this Court on August 31, 2009. This appeal follows.

Points on Appeal

Nolan raises two points on appeal. In his first point, Nolan alleges the trial court erred in finding a partnership was created between Winslow and Nolan and awarding damages to Winslow from Nolan. Nolan argues the trial court misapplied the law to the facts presented at trial because there was no evidence of a written or oral agreement establishing a partnership, no evidence of profits to divide, and no evidence of specific damages presented to the court by Winslow.

In his second point on appeal, Nolan alleges that the trial court erred in finding Nolan was unjustly enriched by accepting the benefits of Winslow’s labor and efforts because Winslow was paid wages, union dues, and was provided with a company truck throughout Winslow’s employment with ABS.

Standard of Review

Appellate review of a court-tried case is governed by Missouri Supreme Court Rule 84.13 and follows the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Accordingly, the trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. “Great deference must be given to the trial court’s resolution of conflicts in evidence, and this Court gives due regard to the court’s opportunity to have judged the credibility of witnesses before it.” In re Competency of Parkus, 219 S.W.3d 250, 255 (Mo. banc 2007).

In considering whether the judgment of the trial court is against the weight of the evidence, this Court may exercise its power to set aside the judgment “only with caution and only if it possesses a firm belief that the judgment is wrong.” MC Dev. Co., LLC v. Central R-3 Sch. Dist. of St. Francois County, 299 S.W.3d 600, 602 (Mo. banc 2009). This Court accepts all evidence and inferences therefrom in the light most favorable to the prevailing party and disregards all contrary evidence. Id.

Discussion

I. No partnership was formed because the evidence unequivocally proves the parties did not agree to share any losses or liabilities of the plumbing business.

Nolan contends that insufficient evidence exists in the record to support the trial court’s finding that a partnership existed between Winslow and Nolan, or that Winslow was entitled to damages. The evidence relating to the formation of a partnership between Winslow and Nolan is substantially contradictory. Winslow testified that although there was no written agreement, he and Nolan orally agreed to start their own plumbing business as a partnership, and that the ownership and profits would be divided equally between them. Nolan testified that no partnership agreement was entered into, written or oral, and that there was no agreement between he and Winslow to share profits or an ownership interest in the plumbing business.

We acknowledge that the trial court is the arbiter of credibility and that the trial court expressly found not credible the testimony presented by Nolan, and found credible Winslow’s testimony regarding the foundation of the plumbing partnership. We acknowledge further the parameters of our review under Murphy v. Carron, 536 S.W.2d at 32, and strictly adhere to that mandate. However, even disregarding the evidence presented by Nolan and wholly accepting as true the testimony of Winslow, we nevertheless are compelled to reverse the trial court’s judgment because the evidence presented by Winslow, although credible, fails to provide substantial evidence that a partnership was formed under the established law of Missouri.

A partnership is judicially defined as “a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business and to divide the profits and bear the loss in certain proportions.” Meyer v. Lofgren, 949 S.W.2d 80, 82 (Mo.App. W.D.1997). The law never presumes the existence of a partnership, but he who asserts its existence has the burden of showing such existence. Nesler v. Reed, 703 S.W.2d 520, 523 (Mo.App. E.D.1985). The plaintiff bears the burden of proof of presenting cogent, clear, and convincing evidence that the parties entered a definite and specific partnership agreement. Id. A partnership agreement “may be either oral or written, verbally expressed or implied from the acts and conduct of the parties themselves.” Id.

As noted, for purposes of our review, we accept all testimony of Winslow as truthful, credible and probative. See id. Win-slow testified that he and Nolan entered an oral agreement in which they would form ABS to specialize in backflow prevention and share equally in the profits and ownership of the business. Winslow testified that the parties conducted themselves consistent with that agreement. Winslow committed his time and efforts into acquiring the necessary licenses to conduct a plumbing business under local ordinances, and then contributed his labor and plumbing skills to operate the business. Nolan worked as the office manager and performed customer sales work. However, Winslow also testified that he had no agreement with Nolan to share any losses or liabilities of the plumbing business. In fact, Winslow testified that should the business fail, he had nothing to lose from the business other than his own salary. While we accept Winslow’s testimony regarding the sharing of profits as true, Winslow’s uncontradicted testimony that the parties did not agree on the sharing of liabilities is fatal to his claim that a partnership was formed. Substantial evidence of the formation of a partnership by Win-slow and Nolan is lacking because the parties faded to address or consider the sharing of any potential liabilities or losses of the business enterprise. Given the facts of this case as presented at trial, the absence of any agreement by the parties regarding the sharing and allocation of any possible losses or liabilities of the plumbing business precludes the formation of a partnership agreement.

Instructive to our holding is this Court’s ruling in Nesler v. Reed, 703 S.W.2d at 525, where we declared that the trial court erred in holding that a partnership existed and awarding damages to the plaintiff. In Nesler, as in this case, the plaintiff introduced evidence of an agreement to share profits, but acknowledged by his own testimony that the consideration of losses was never a part of the partnership agreement upon which he relied. Id. This Court explained, “Where the issue is intent of the parties, the absence of an agreement on the sharing of profits and losses is probative of the proposition that no partnership agreement was made.” Id. Further,

the absence of any discussion or agreement on the sharing of losses is not a minor detail. Any inference of the existence of a partnership drawn from the sharing of profits is far from conclusive, and this is particularly true where the parties, although agreeing to divide profits, do not agree to share any possible losses.

Id. (internal citations omitted). Notably, we held in Nesler that while the testimony may have supported a finding that there was an employment agreement in which the sharing of profits was an element of compensation, such testimony was insufficient to establish the parties intended a partnership. Id. at 523. Similarly, while the evidence here may have supported a finding that Winslow had an employment agreement under which he was to receive a salary and a portion of the profits, the trial court made no such finding.

In light of Winslow’s testimony and the established principles of partnership law in Missouri, we hold that there is no substantial evidence to support the trial court’s judgment that Winslow and Nolan formed a partnership agreement. Winslow has not proven he was a partner with Nolan at ABS. Thus, the judgment awarding Win-slow partnership damages is reversed.

II. Evidence does not support a finding of unjust enrichment against Noian because there was no evidence that Nolan received any benefits from Winslow’s efforts or any profits from the plumbing business.

Nolan also alleges that the trial court erred in finding that he was unjustly enriched by accepting the benefits of Win-slow’s efforts on behalf of ABS. Finding insufficient evidence in the record to support a finding that Nolan received any benefits from Winslow, we hold that the trial court erred in finding Nolan was unjustly enriched and ordering Nolan to pay Winslow $75,000.

Unjust enrichment occurs where a benefit is conferred upon a person under circumstances in which the retention by him of that benefit without paying its reasonable value would be unjust. Pitman v. City of Columbia, 309 S.W.3d 395, 402 (Mo.App. W.D.2010). This quasi-contractual theory of recovery measures not the actual amount of the enrichment, but the amount of the enrichment that, as between the two parties, would be unjust for one party to retain. Id. at 402-03. “Thus, a plaintiff must present evidence of the amount of the benefit conferred upon the defendant.” Id. at 403.

The trial court’s judgment is premised upon a finding that Nolan benefited from the fruits of Winslow’s labor, knowledge and experience. Whether or not the benefits conferred by Winslow are valued at $75,000 is inconsequential to our decision because, regardless of the value of the benefits of Winslow’s labor, knowledge and experience, the record is void of any evidence that Nolan received or accepted such benefits. Because we have found no substantial evidence to support the formation of a partnership agreement, our analysis of Winslow’s claim of unjust enrichment must look beyond Winslow’s assertion that Nolan was enriched by accepting Win-slow’s services and not paying Winslow his share of the partnership profits.

The evidence at trial shows that Win-slow worked for and was paid by ABS. We have already determined that neither Win-slow nor Nolan was a partner in ABS. Furthermore, the record before us does not include any evidence that Nolan was an owner of ABS. In fact, the evidence regarding the ownership of ABS is minimal. While there is testimony from Nolan and Hebenstreit that ABS was organized as a limited liability company and that Hebenstreit was the owner of ABS, we disregard this evidence given the trial court’s credibility findings and Murphy v. Carron, 536 S.W.2d at 32. Thus, we are left with no evidence as to the ownership of ABS, and certainly no evidence that Nolan owned any part of ABS.

Here, Winslow testified that he received a salary and benefits annually while working at ABS. There is no testimony that Winslow’s salary did not justly compensate him for the work he performed. In fact, the evidence before us is that Winslow was paid at or above union scale for the work he performed. Having received a fair salary for his work, Winslow’s only argument for unjust enrichment lies in his claim that Nolan benefited as a partner in the plumbing business from Winslow’s efforts, and has unjustly retained all of the business profits. Although Winslow testified that he was entitled to a share of profits in addition to his union scale salary and benefits and estimated his share of the profits to be $125,000, neither Winslow nor any other witness testified, nor presented any evidence, of a benefit conferred on Nolan directly by Winslow, or of any benefit conferred on Nolan by ABS. Only Nolan, not Winslow, presented evidence as to the salary Nolan was paid by ABS, and Nolan’s salary was small in comparison to the amount paid to Winslow by ABS. Evidence of Nolan’s daughter’s ownership and formation of ABS, vague evidence of business expenses, and evidence of Winslow’s salary and benefits leaves this Court without sufficient evidence to find that Nolan was unjustly enriched. We are cognizant of the trial court’s concern that profits earned by ABS have not been distributed to Winslow. But without substantial evidence that Nolan received such profits or benefited from Winslow’s efforts in generating such profits, Winslow cannot prevail against Nolan on his claim for unjust enrichment.

After a thorough review of the record presented and with a firm belief that the judgment against defendant Nolan is erroneous, we hold that there is insufficient evidence to support the trial court’s judgment. Murphy v. Carron, 536 S.W.2d at 32. Winslow has not presented substantial evidence to support his claim for half of the company’s profits because of a partnership agreement or that Nolan has been unjustly enriched as a result of Winslow’s efforts.

Conclusion

Because there is insufficient evidence on the record to support the trial court’s determination, the judgment of the trial court is reversed.

ROBERT G. DOWD, JR., and NANNETTE A. BAKER, J., Concur.


source: Caselaw Access Project

author: KURT S. ODENWALD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert W. FLEIS, Appellant.
    No. ED 93410.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.

      ALexa I. Pearson, Office of the Missouri Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Robert Fleis (Fleis) appeals the judgment and sentence following his conviction of attempted enticement of a child. Fleis argues the evidence was insufficient to support his conviction because the State did not prove Fleis believed the person with whom he was internet “chatting” was fourteen years old or that he took any actions constituting a substantial step toward the commission of the crime. Viewing the evidence in the light most favorable to the verdict, we find the State presented sufficient evidence supporting each of these statutory elements. Because a reasonable juror could have found beyond a reasonable doubt that Fleis was guilty of attempted enticement of a child, we affirm the trial court’s judgment.

Because this appeal attacks the sufficiency of the evidence to support Fleis’s conviction, the focus of our review is whether sufficient evidence was presented at trial from which a reasonable trier of fact could find Fleis guilty beyond a reasonable doubt. State v. Hopson, 168 S.W.3d 557, 561 (Mo.App. E.D.2005). “Substantial or sufficient evidence is that from which the trier of fact could reasonably find the issue in conformity with the verdict.” State v. Paulson, 220 S.W.3d 828, 832 (Mo.App. S.D.2007). In applying this standard, we must consider as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. Id.; Flemons, 144 S.W.3d 877, 884 (Mo.App. W.D.2004). To support a conviction, we must find sufficient evidence to support each element of the offense. State v. Jordan, 181 S.W.3d 588, 592 (Mo.App. E.D.2005).

Background

Viewing the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the trial court’s judgment and disregarding all contrary evidence and inferences, the following evidence was adduced at trial. See State v. Osborn, 318 S.W.3d 703, 705-06 (Mo.App. S.D.2010).

On July 10, 2006, Officer Erica Stough (Officer Stough) of the Maryland Heights Police Department entered a St. Louis “chat room,” posing as a fourteen-year-old girl using the screen name “daisyfo-ryoul992,” and listing her name as “Kayla T.” Officer Stough, posing as “Kayla,” was inactive in the chat room until she was contacted by Fleis who was using the screen name, “soccerstud21 — 99.” Fleis and “Kayla” then began a text conversation over the internet in the chat room. Within two minutes of the start of the conversation, “Kayla” told Fleis that she was fourteen years old. Fleis later told “Kayla” he was double her age. The conversation turned sexual in nature, with Fleis describing a number of sexual scenarios to “Kayla.” The two discussed meeting a number of times, but made no specific plans during their first conversation. Fleis ended the first conversation indicating that he would love to talk to “Kayla” again.

The next day, Officer Stough again signed onto the chat room as “Kayla,” where Fleis again initiated contact. The conversation turned sexual and Fleis said they should “meet somewhere and I can drive us somewhere private where no one will see us.” The two agreed to meet at a school near “Kayla’s” home.

Officer Stough went to the school as agreed, accompanied by other members of the police force. Fleis arrived at the school and called out “Kayla,” several times. At that point the police officers accompanying Officer Stough arrested Fleis.

Fleis was charged with one count of attempted enticement of a child, in violation of Section 566.151, RSMo.2000. Following a jury trial, Fleis was found guilty of the charge and was sentenced to six years of imprisonment.

Fleis filed his Notice of Appeal with this Court on June 16, 2009. This appeal follows.

In his sole point on appeal, Fleis alleges the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he engaged in any action with the purpose of enticing a child. Only one argument is set forth in Fleis’s “Point Relied On,” although Fleis presents two arguments in his brief. In his “Point Relied On,” Fleis asserts that the State failed to prove he believed the person with whom he was having internet chats was actually fourteen years old. The focus of Fleis’s “Point Relied Upon” is the statutory age requirement to prove enticement of a child. However, in the body of his brief, Fleis also alleges that the State failed to prove his actions constituted a substantial step toward the commission of the crime, and more specifically argues that his conduct in showing up at an arranged meeting place did not constitute a substantial step toward the enticement of a child. Although Fleis fails to meet the requirements of Rule 84.04 with regard to his second argument, we review the argument ex gratia.

1. The State presented sufficient evidence from which a reasonable juror could find that Fleis believed “Kayla” to be fourteen years old.

A person commits the crime of enticement of a child if that person, being twenty-one years of age or older, “persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the Internet or any electronic communication, any person who is less than fifteen years of age for the purpose of engaging in sexual contact.” Section 566.151.

In his first argument, Fleis claims that the State failed to prove each element of the crime as he claims the State did not present sufficient evidence that he believed the person with whom he was chatting was actually less than fifteen years old. We disagree and find that sufficient evidence exists in the record from which a reasonable juror could find that Fleis believed “Kayla” was fourteen years old.

The submitted verdict director for attempted enticement of a child required the State to prove the following beyond a reasonable doubt:

First, that between July 10, 2006 and July 11, 2006, in the County of St. Louis, State of Missouri, the defendant communicated with Officer Stough, via the internet, suggesting that she meet with him to engage in sexual conduct, and the defendant believed that Officer Stough was a 14 year old child, and
Second, that such conduct was a substantial step toward the commission of the offense of enticement of a child by attempting to entice a person less than fifteen years of age to engage in sexual conduct, and
Third, that defendant engaged in such conduct for the purpose of committing such enticement of a child, and Fourth, that the defendant was twenty-one years of age or older.

The State must prove each and every element of its case beyond a reasonable doubt. State v. Sears, 298 S.W.3d 561, 564 (Mo.App. E.D.2009). One of the elements which the verdict director required was that Fleis actually believed that the child involved was under the age of fifteen. See Osborn, 318 S.W.3d at 711-12. Fleis argues that the State failed to prove beyond a reasonable doubt that he believed “Kayla” was less than fifteen years old. While “it is difficult to acquire direct evidence of the requisite state-of-mind of a defendant, it is permissible to infer a defendant’s knowledge of the age of a victim from indirect and circumstantial evidence.” Id.

The evidence in this case, viewed in the light most favorable to the verdict is sufficient such that a reasonable juror could find Fleis believed “Kayla” to be fourteen years old. First, age was specifically discussed within the first two minutes of their conversation, when “Kayla” expressly told Fleis she was fourteen years old. Later, when asked his age, Fleis admitted he was “double your age,” and confirmed he was 28 years old.

In addition to “Kayla” stating her age during the internet chats, a number of other indicators throughout the conversations provide evidence from which a reasonable juror could infer that Fleis believed “Kayla” was fourteen years old. “Kayla” referenced living with her mother and brother a number of times, an indication that she was a young girl still living at home with her family. For instance, when Fleis asked if “Kayla” had a photo, she responded that she did not because her computer got a virus and her “mom got it cleaned up” and she “just got it back.” When Fleis asked “Kayla” if she was a “thong wearer,” “Kayla” responded that her “mom won’t let me buy them.” During the conversations, “Kayla” also said that she was home with her twin brother. When Fleis asked if he could have “Kayla’s” phone number, “Kayla” responded that her cell phone was taken away from her for talking too much. Furthermore, Fleis acknowledged “Kayla’s” young age and relationship with her mother when “Kayla” indicated she did not have any heels, and Fleis asked “does your mom have any you can wear?” “Kayla” responded that her mother’s shoes were “to[o] big.” When discussing meeting up, Fleis also asked “where can you walk to,” indicating his understanding that “Kayla” was too young to drive. These statements by “Kayla” regarding living at home with her mother and brother, as well as Fleis’s acknowledgment of her young age, could lead a reasonable juror to infer that Fleis believed “Kayla” to be fourteen years old.

“Kayla” also demonstrated naivety with regard to several sexual topics during the internet chats, also evidence from which a reasonable juror could determine that Fleis believed “Kayla” was fourteen years old. “Kayla” responded “what do [you mean]” when Fleis asked her “are you shaved or trimmed.” When Fleis asked “Kayla” if she ever masturbated, she responded that “i dont know what to do really.” After Fleis described different sexual acts to her, “Kayla” asked “would it hurt me,” “[never] had it dun,” “nothin will hurt ... will it,” and “i dont kno wi never dun it.” These responses could lead a reasonable juror to infer that Fleis believed “Kayla” was young and inexperienced.

“Kayla” also indicated hesitation and stated that she was scared and nervous when talking about adult sexual topics with Fleis. A reasonable juror also could have considered this evidence when determining whether Fleis believed “Kayla” was fourteen years old. When Fleis instructed “Kayla” to masturbate, she responded “oh i dont know,” “im scared,” “no im nerves,” “i dont think i want to do it im nerves,” and “no dont want to not now.” “Kayla” also responded “i dont know” when Fleis asked if she wanted to close her door and talk more. When discussing kissing, “Kayla” indicated that she would be nervous if she kissed Fleis and that she never kissed anyone older. Fleis then indicated that he had never kissed anyone “Kayla’s” age either.

Fleis’s argument that he did not believe “Kayla” was actually fourteen years old is testimony that the jury could reasonably reject in light of the other testimony, which the jury clearly found credible. We must defer to the jury’s superior position to assess the credibility of witnesses and the weight and value of their testimony. See Sears, 298 S.W.3d at 565. While Fleis may have produced occasional evidence to contradict Officer Stough’s testimony, on appeal our standard of review limits this Court to a review of the facts most favorable to the verdict, disregarding all contradictory evidence and inferences. Given this standard, and viewing the evidence in this light, we find sufficient evidence was presented from which a reasonable juror could have found Fleis believed the person with whom he was chatting was fourteen years old.

2. The State presented sufficient evidence from which a reasonable juror could find that Fleis took a substantial step toward the commission of the crime of attempted enticement of a child.

In his second argument, Fleis alleges the State failed to produce sufficient evidence to establish that he took a substantial step toward the commission of the crime of enticement of a child. Though Fleis admits the verdict director did not require the jury to find him guilty based upon anything other than statements made in the internet chats, Fleis alleges that showing up at the arranged meeting time and place was not sufficient evidence to show he acted with the purpose to attempt to entice a child. While Fleis is correct that an arranged meeting is not required to prove a substantial step was taken toward the commission of the crime of attempted enticement of a child, we find that the sum of Fleis’s actions were sufficient for a reasonable juror to find that he took the required substantial step toward commission of the offense.

Section 564.011, provides that a person is guilty of attempt to commit a crime when, “with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense.” The statute defines “substantial step” as “conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” Id.

Fleis appears to confuse the requirement of a substantial step to commit sexual acts with “Kayla” with the requirement of a substantial step to commit “enticement,” which is the crime charged here. To convict Fleis of attempted enticement of a child only requires that the State prove Fleis took a “substantial step” toward enticing “Kayla” for the purpose of engaging in sexual conduct with her, not that he took a “substantial step” to actually engage in the sexual conduct. The only requirement for attempting to entice a child is that “defendant’s purpose was to commit the underlying offense and that defendant took a substantial step toward its commission.” State v. Wadsworth, 203 S.W.3d 825, 832-33 (Mo.App. S.D.2006).

Here, the State presented sufficient evidence from which a reasonable juror could find beyond a reasonable doubt that Fleis’s conduct, including both his communications with “Kayla” and his driving to meet her, was a substantial step toward committing the offense of enticing a person less than fifteen years old to meet him for the purposes of engaging in sexual conduct. During the conversations, Fleis discussed participating in a variety of sexual conduct with “Kayla.” Fleis does not dispute that the nature of much of the communication was sexual or that he was the person “chatting” with “Kayla.” Furthermore, during the internet chats with “Kayla,” Fleis suggested the two meet a number of times, making statements such as, “too bad you are not alone today ... [because] I could come hang out [with] you,” “I could drive up [there and] you could meet me somewhere,” “what if i was there, would [ ] you feel differently,” “wanna join me? ... in the shower silly,” “where could you meet me at?,” “we could [e]ome back to my place I have my own pool,” “I was right in your neck of the woods today, I work off dorsett ... I wish I had a number I could have called [you] and stopped by,” “want some company in your room? ... if I came over,” “so do you want to see me?,” “I could but we need to be alone, would you want to meet me somewhere and I can drive us somewhere private where no one will see us,” “you want me to mee[t] you at your house or where, just give me the addy of where to meet you at,” “where can you walk to,” “where can we go to be alone where no one will see us, and where should I drop you back off at.” The sexual communications, along with Fleis’s communications about the two meeting, provide sufficient evidence from which a jury could find beyond a reasonable doubt that Fleis’s purpose in communicating with “Kayla” was to entice her, believing her to be less than fifteen years old, to meet him for purposes of engaging in sexual conduct, and that this communication was a substantial step toward commission of the offense. See Wadsworth, 203 S.W.3d at 833-34 (court found that each of seven separate communications with the underage child where the defendant discussed sexual material and meeting provided sufficient evidence from which a juror could find that the defendant’s purpose in the communication was to entice the child to meet him for purposes of engaging in sexual conduct and that the communication was a substantial step toward commission of the offense).

While not required to support a conviction for attempted enticement of a child, here Fleis took his communications a step further and actually drove to meet “Kayla.” In addition to chatting with “Kayla” over two days regarding engaging in sexual conduct with her and chatting about meeting her, Fleis took the “enticement” a step further and actually set up a specific meeting with “Kayla” and drove to the meeting place with the purpose of engaging in sexual contact with “Kayla.” Again, while such an additional step is not required for a conviction, this extra step provides additional evidence from which a jury could find Fleis made a substantial step toward the commission of the crime.

We find that sufficient evidence exists on the record from which a reasonable juror could have found Fleis guilty beyond a reasonable doubt of attempted enticement of a child. The evidence showed that during the internet chats, Fleis’s purpose in communicating with “Kayla” was to entice her, believing her to be less than fifteen years old, to meet him for purposes of engaging in sexual conduct, and that his conduct — including the communications and his driving to the arranged meeting place — was a substantial step toward commission of that offense. Fleis’s point on appeal is denied.

Conclusion

The judgment of the trial court is affirmed.

ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J., Concur.

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

      . In Osborn, the court noted that while Section 566.151.1 "does not contain a requirement that a defendant know that his victim is under the age of fifteen,” the approved jury instruction pertinent to this charge, MAI 320.37, provides that, "to be found guilty a defendant must have (1) known or been aware that the victim was under fifteen, or (2) intended to pursue sexual conduct with a person under fifteen.” 318 S.W.3d at 713-14. Neither in Osborn, nor here, did the State argue that the instruction inaccurately reflects the elements of the offense.


author: PATRICIA L. COHEN, Judge.

text:
    Robert MOSELEY, Appellant, v. GRUNDY COUNTY DISTRICT R-V SCHOOL and Division of Employment Security, Respondents.
    No. ED 94192.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.

      Robert C. Moseley, Arbela, MO, pro se.
    Grundy Co. District R-V School Galt, MO, pro se.
    Shelly A. Kintzel (Div. of Employment Security), Jefferson City, MO, for respondents.
   PATRICIA L. COHEN, Judge.

Introduction

Dr. Robert Moseley (Claimant) appeals pro se from the decision of the Labor and Industrial Commission (Commission), affirming the decision of the Appeals Tribunal denying him unemployment benefits. We dismiss Claimant’s appeal because his brief fails to comply with Rule 84.04 so substantially that we are unable to review this appeal.

Discussion

We hold pro se appellants to the same standards as attorneys regarding Rule 84.04’s mandatory briefing rules. Johnson v. Buffalo Lodging Assocs., 300 S.W.3d 580, 581 (Mo.App. E.D.2009). “While we prefer to dispose of a case on the merits whenever possible, if the deficiencies in the brief are such that no claims are preserved for appellate review, then we must dismiss.” Richardson v. Meritorious Care, Inc., 307 S.W.3d 684, 684 (Mo.App. E.D.2010); see also Rule 84.13(a). Due to Claimant’s substantial failure to comply with the briefing requirements of Rule 84.04, we are compelled to dismiss his appeal.

First, Claimant failed to provide an adequate statement of facts. “The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). Additionally, a statement of facts may not contain facts outside the record, and each factual statement “shall have specific page references to the legal file or the transcript.” Rule 84.04(i); see Buffalo Lodging, 300 S.W.3d at 581. “Rule 84.04(i)’s requirement that the appellant support factual statements in its brief with record citations is mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record.” Buffalo Lodging, 300 S.W.3d at 581 (quotation omitted).

Here, Claimant’s statement of facts is argumentive, incomplete, and contains statements contradicted by the record. More significantly, Claimant fails to include a single citation to the record in his statement of facts. Claimant’s failure to comply with Rule 84.04’s mandatory requirements regarding the statement of facts is grounds, in itself, to dismiss this appeal. See id.

Second, Claimant’s point on appeal fails to adhere to the requirements of Rule 84.04(d)(2). Under Rule 84.04(d)(2), a point on appeal shall: (1) identify the administrative ruling or action the appellant challenges; (2) state the legal reasons for the appellant’s claim of reversible error; and (3) explain in summary fashion why those legal reasons, in the context of the case, require reversal. Rule 84.04(d)(2)(A)-(C); Buffalo Lodging, 300 S.W.3d at 582. “The function of this rule is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.” Buffalo Lodging, 300 S.W.3d at 582 (quoting Kuenz v. Walker, 244 S.W.3d 191, 193 (Mo.App. E.D.2007)). When confronted with a deficient point relied on, it is not proper for this court “to speculate as to the point being raised by the appellant and the supporting legal justification and circumstances” because “[t]o do so would cast the court in the role of an advocate for the appellant, which we cannot be.” Boyd v. Boyd, 134 S.W.3d 820, 823-824 (Mo.App. W.D.2004).

Claimant’s sole point on appeal reads:

THE LABOR AND INDUSTRIAL RELATIONS COMMISSION ERRED IN REVERSING THE DECISION OF THE APPEAL TRIBUNAL WHICH FOUND THAT THE CLAIMANT WAS NOT ENTITLED TO BENEFITS BECAUSE (SEE R.S.MO. 288.050.1 AND 288.050.2).(A) THE COMMISSION ACTED IN EXCESS OF ITS AUTHORITY FAILING TO ACKNOWLEDGE THAT CLAIMANT WAS AN INSURED WORKER IN MAILING OF 06-05-2009; (B) THE FACTS OF THE OPERATION OF A SCHOOL DISTRICT AND ITS DELEGATION OF RESPONSIBILITIES GIVEN ADMINISTRATORS BY THE BOARD OF EDUCATION WERE APPARENTLY NOT GIVEN CONSIDERATION; (C) THE FACTS SEEM TO CHANGE WITH EACH STEP MADE IN THE APPEALS PROCESS; (D) THE APPELLANT WAS UNEMPLOYED AND WAS ELIGIBLE FOR BENEFITS.

Claimant’s point on appeal appears to raise four independent issues for our review. Each issue fails to state a legal reason for reversal or explain why, in the context of this case, those reasons constitute reversible error. See id. Claimant’s point relied on, which fails to comply with the requirements of Rule 84.04(d)(2), preserves nothing for appeal. See Washington v. Blackburn, 286 S.W.3d 818, 821 (Mo.App. E.D.2009).

Third, the argument section in Claimant’s brief violates the requirements of Rule 84.04(e). “The argument shall be limited to those errors included in the ‘Points Relied On.’ ” Rule 84.04(e). Additionally, an appellant is required to provide relevant and available legal authority in the argument or explain why such authority is not available. Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D.2008). Having provided such authority, the appellant must explain in the argument why, in the context of the case, the law supports the claim of reversible error. In re Marriage of Fritz, 243 S.W.3d 484, 487 (Mo.App. E.D.2007). If an appellant fails to support his or her claim of error beyond mere conclusions, the point is considered abandoned. Id.

Claimant’s argument section runs afoul of all of the above-mentioned requirements. First, it includes contentions beyond the scope of those included in the point relied on. Second, Claimant only provides legal authority for two of the four contentions raised in his point. Claimant neglects to explain the absence of relevant legal authority, and, regarding the two cases Claimant cites, he fails to describe the facts or applicable holdings of those cases or how those cases are applicable here. Last, Claimant’s argument section is divided into four sections, each relating to one of the four contentions raised in his point relied on. Each section, however, contains only a brief summary of facts (all of which lack citation and some of which go beyond the scope of the record) followed by a conclusory opinion, or in some sections, no discernable conclusion at all. As with Claimant’s deficient statement of facts and point relied on, his failure to comply with Rule 84.04(e)’s requirements regarding the argument is grounds for dismissal of his appeal. Lueker, 241 S.W.3d at 868.

Finally, Claimant’s brief violates Rule 84.04(h), in that it does not include or is not accompanied by an appendix that includes a copy of the decision in question and the complete text of all statutes claimed to be controlling as to a point on appeal. Violation of Rule 84.04(h) may also merit dismissal of an appeal. See Anderson v. American Family Mut. Ins. Co., 173 S.W.3d 356, 358 (Mo.App. W.D.2005).

Conclusion

Given the pervasiveness of Claimant’s violations of Rule 84.04’s mandatory briefing requirements, Claimant failed to preserve any claim for review and we dismiss Claimant’s appeal.

GARY M. GAERTNER, JR., P.J. and MARY K. HOFF, J„ Concur.

      . All references to the mies of civil procedure are to Missouri Supreme Court Rules (2010).

      . For instance, Claimant alleged in his facts that "the Principal told [Claimant] that he could accept the recommendation as it would be submitted to the Board, which they will accept, or submit a resignation which I (the Principal) will have to have in hand prior to the Board meeting. At no point, contrary to the Appeals Tribunal ‘Findings of Fact' was the idea ever mentioned by the administrator that ‘Claimant had the option of going before the board to address retention of his employment.’ ” The record, however, reveals that Claimant expressly admitted that the Principal explained to him that it was his "option” to either "resign” or "go before the board" and that it is the Board’s decision whether to discharge Claimant and that they are not required to follow the Principal's recommendation.

      . We note that Claimant's point on appeal is inherently flawed because, contrary to Claimant’s assertion of error, the Labor and Industrial Relations Commission affirmed the Appeals Tribunal's decision denying Claimant unemployment benefits.

      . For example, Claimant contends at one point that he was entitled to unemployment benefits because he was "constructively discharged" from his previous employment, which was never mentioned in the point relied on.


author: ROBERT S. BARNEY, Presiding Judge.

text:
    David MORGAN, Appellant, v. STATE of Missouri, Respondent.
    No. SD 30140.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 25, 2010.
    Mark A. Grothoff, Columbia, for Appellant.
    Chris Koster, Atty. Gen. and Karen L. Kramer, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Presiding Judge.

David Morgan (“Movant”) appeals the motion court’s denial following an eviden-tiary hearing of his postconvietion motion filed pursuant to Rule 29.15. In his sole point on appeal, Movant maintains he received ineffective assistance of counsel in that his trial counsel failed to establish that a confidential informant working for the Southeast Missouri Drug Task Force, .Michael Bane (“Mr. Bane”), did not have his shoes, socks and bandana removed pri- or to his controller, Missouri Highway Patrol Sergeant Mark McClendon (“Sergeant McClendon”), sending Mr. Bane to purchase methamphetamine from Movant. Movant asserted that §uch evidence would have called into question the validity of Sergeant McClendon’s trial testimony and would have provided additional evidence questioning the origin of the methamphetamine Mr. Bane turned over to the police. We affirm the judgment and findings of the motion court.

The record reveals Movant was charged via “Amended Information” on June 12, 2002, with one count of the class C felony of sale of a controlled substance, methamphetamine, a violation of section 195.211, and one count of the class B felony of sale of a controlled substance, marijuana, also a violation of section 195.211(“the first case”). Movant was also charged as a persistent misdemeanor offender under section 558.016.5. On August 14, 2002, Movant was then charged by separate “Information” with two counts of the class B felony of sale of a controlled substance, methamphetamine, a violation of section 195.211 (“the second case”). These cases were consolidated by agreement prior to trial.

A jury trial was held on January 13, 2003. Viewing the facts in the light most favorable to the jury’s verdict as to the second case, Coday v. State, 179 S.W.3d 343, 347 (Mo.App.2005), the evidence reveals that on January 17, 2002, Mr. Bane provided information to Sergeant McClen-don relating to his ability to buy methamphetamine from Movant. It was arranged that Mr. Bane would receive $40.00 for each successful drug purchase made on behalf of the authorities. Prior to Mr. Bane going to meet Movant, he met with Sergeant McClendon and Sergeant McClendon “searched Mr. Bane, ... made him empty his pockets, checked his waistband, checked his socks, made him take his hat off’ as well as “searched his vehicle, underneath the seats and in the glove box, over the visors, in the seats.” Mr. Bane then picked up Movant at his home and the two rode together in Mr. Bane’s vehicle to an apartment on South Main Street, in Kennett, Missouri. On the way over, Mr. Bane gave Movant $100.00. Upon arrival, Movant got out of the vehicle and went inside while Mr. Bane circled the block. Mr. Bane retrieved Movant and Movant then gave Mr. Bane a baggie, which was later found to contain .20 grams of methamphetamine. After Mr. Bane dropped Movant off at his house, Mr. Bane again made contact with Sergeant McClen-don and he handed the baggie of methamphetamine over to Sergeant McClendon. Although Mr. Bane had a tape recorder with him during the transaction, it was later discovered that the tape recorder was not operating properly and it failed to record any portion of the foregoing transaction between Movant and Mr. Bane.

Thereafter, on January 24, 2002, Mr. Bane, again, contacted Sergeant McClen-don and informed him that he could make another purchase from Movant. After searching Mr. Bane using the same procedure as during the previous search, Sergeant McClendon put a tape recorder on Mr. Bane as well as a wireless transmitter so that the transaction could be heard as it occurred. As before, Mr. Bane picked Movant up at his home; gave him $100.00; and drove him to the apartment on South Main Street. On the way over, Mr. Bane asked Movant if his dealer could get large quantities of methamphetamine and Mov-ant indicated his supplier only dealt with grams. Mr. Bane then dropped Movant off. When he picked Movant back up a few minutes later, Movant gave Mr. Bane a baggie, which was found later to contain .12 grams of methamphetamine. Movant then explained to Mr. Bane that his dealer had offered him his choice of two different baggies and he had chosen the larger of the two bags. The two men returned to Movant’s home. Subsequent to leaving Movant’s residence, Mr. Bane then met up with Sergeant McClendon; gave him the baggie containing methamphetamine; and turned over the tape recorder and wireless transmitter. At trial, Sergeant McClen-don testified he heard the entire transaction via the wireless transmitter and a tape recording of the transaction was played for the jury.

Movant did not testify at trial and offered no evidence or witnesses. At the close of the evidence, the jury found Mov-ant guilty of both counts of selling methamphetamine as charged in the second case; however, the jury was unable to reach a verdict in relation to the first case such that the trial court declared a mistrial as to its two counts. On February 10, 2003, Movant was sentenced as a prior offender to two concurrent terms of ten years in the Missouri Department of Corrections.

Movant then appealed those convictions to this Court in State v. Morgan, 120 S.W.3d 795 (Mo.App.2003). This Court affirmed the conviction relating to the January 24, 2002, transaction, but reversed the conviction relating to the January 17, 2002, transaction. Id. at 799.

Following his direct appeal, Movant timely filed a pro se Rule 29.15 motion on January 20, 2004. Movant was then appointed counsel and an “Amended Motion to Vacate, Set Aside or Correct Sentence and Judgment” was filed on May 31, 2005. In his motion, Movant asserted ineffectiveness of trial counsel because his trial counsel, Susan Warren (“Ms. Warren”), “failed to establish that [Mr. Bane’s] shoes, socks and bandana were not removed prior to him being sent to allegedly purchase methamphetamine [from MJovant.” Movant argued Sergeant McClendon testified at trial that Mr. Bane’s person and vehicle were searched prior to Mr. Bane being dispatched to pick up Movant; however, trial counsel failed to establish that Sergeant McClendon testified at the preliminary hearing that the shoes, socks and bandana of Mr. Bane were not removed during the search. Movant asserted this would have called into question the validity of Sergeant McClendon’s testimony, and would have provided additional evidence questioning the origin of the methamphetamine Mr. Bane turned over to the police.

An evidentiary hearing was held on June 19, 2009. At the hearing an affidavit from Ms. Burke, who represented Movant at the preliminary hearing, was entered into evidence. Ms. Burke’s affidavit stated:

I have examined a copy of my notes[] from [the August 13, 2002, preliminary hearing].... Testifying at the preliminary hearing was [Sergeant McClendon] and confidential [informant (and alleged buyer) [Mr.] Bane. It was established at the evidentiary hearing regarding the January 24, 2002[, sale] that Mr. Bane met with members of the Drug Task Force and received money for buying drugs from Movant. Mr. Bane testified that during the search of his person prior to the alleged buy, the shoes, bandana and clothing [Mr.] Bane was wearing were not removed. (Similarly, on the January 17, 2002[,] sale, it was also established that the shoes, bandana and clothing were not removed.) I would have been willing and available to testify to the foregoing at Movant’s jury trial.

Ms. Warren testified that she was aware that Movant’s case file contained handwritten notes from Ms. Burke which Ms. Burke had made at the preliminary hearing, and that those notes indicated Mr. Bane had testified at the preliminary hearing that Sergeant McClendon had failed to remove his shoes, his bandana and other clothing when he searched him prior to the drug deal. She appears to have equivocated regarding whether it was trial strategy not to have established at trial that Mr. Bane’s shoes, socks and bandana were not examined by Sergeant McClendon.

At the conclusion of the hearing the motion court took the matter under advisement. On September 15, 2009, the motion court entered its “Judgment” and “Findings of Fact and Conclusion of Law” denying Movant’s request for Rule 29.15 postconviction relief. In its decision, the motion court stated that

[e]ven if [M]ovant’s trial attorney had established that [Mr.] Bane was not fully searched there is no reasonable probability that the outcome of the case against [M]ovant would have been different and [M]ovant was not prejudiced by such failure. The recorded conversations and independent witness testimony clearly counter Movant’s claim that [Mr.] Bane secreted drugs on his person and made-up the January 24, 2002, purchase of methamphetamine from [M]ov-ant.

This appeal by Movant followed.

Our review of the denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005). The motion court’s findings and conclusions are clearly erroneous “only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made.” State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992); Marschke v. State, 185 S.W.3d 295, 302 (Mo.App.2006). Additionally, “[credibility of [a] witness is a determination to be made by the motion court [and] [t]his Court must defer to the motion court’s determination on matters of credibility.” Berry v. State, 225 S.W.3d 457, 462 (Mo.App.2007) (internal citations omitted). “The findings of the motion court are presumptively valid.” Fry v. State, 244 S.W.3d 284, 285 (Mo.App.2008).

In his sole point relied on, Movant maintains the motion court clearly erred in denying his Rule 29.15 motion “because a review of the record leaves a definite and firm impression that [Movant] was denied effective assistance of counsel.... ” Mov-ant asserts Ms. Warren “failed to act as a reasonably competent attorney would under the same or similar circumstances by failing to adduce evidence that [Mr.] Bane’s shoes, socks, and bandana were not removed prior to [him] being sent to purchase methamphetamine” from Movant. He argues he

was prejudiced by his counsel’s failure to introduce such evidence in that it would have contradicted the testimony of ... [Sergeant McClendon], casting doubt on [Sergeant] McClendon’s credibility, and would have supplied additional factual evidence to be considered by the jury regarding whether [Mr.] Bane could have had drugs hidden on him prior to the alleged buy from [Movant],

According to Movant, had this evidence been introduced, “a reasonable probability exists that the result of [Movant’s] trial would have been different.”

A movant bears the burden of proving, by a preponderance of the evidence, that he received ineffective assistance of counsel. Rule 29.15(i). To establish ineffective assistance of counsel, a movant must show that: “(1) counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney;” and (2) counsel’s poor performance prejudiced the defense. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998); see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong, a movant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “The reviewing court presumes that the trial attorney’s conduct was reasonable and was not ineffective.” Clayton v. State, 68 S.W.3d 201, 206 (Mo. banc 2001). The second prong of the Strickland test is met when a movant shows that his attorney’s errors affected the judgment. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. A movant can prove that the judgment was affected when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Movant must prove each portion of this two-pronged performance and prejudice test in order to prevail on his ineffective assistance of counsel claim. Sanders v. State, 788 S.W.2d 856, 857 (Mo. banc 1987). “A reviewing court need not consider the performance prong before the prejudice prong and may dispose of the claim on lack of sufficient prejudice alone.” Reynolds v. State, 87 S.W.3d 381, 384 (Mo.App.2002).

Here, it is our view that even if the thoroughness of the search of Mr. Bane had been explored by Ms. Warren, it would not have adversely affected the jury’s credibility determination of Sergeant McClendon’s testimony because Mr. Bane’s testimony at the preliminary hearing was not contradictory to that given by Sergeant McClendon at trial. At trial, Sergeant McClendon testified that he “searched Mr. Bane, ... made him empty his pockets, checked his waistband, checked his socks, [and] made him take his hat off.” While Ms. Burke’s notes indicate that Mr. Bane had testified at the preliminary hearing that Sergeant McClendon did not have him remove any clothing, his shoes, or his bandana, the two statements were not contradictory. Sergeant McClendon never claimed to have made Mr. Bane remove his clothing, shoes, or bandana.

Furthermore, “[t]o establish ineffective assistance for counsel’s failure to impeach a witness, the movant must show that the impeachment of the witness would have provided the defendant a viable defense or otherwise changed the outcome of the trial.” Davidson v. State, 308 S.W.3d 311, 317 (Mo.App.2010). Given the overwhelming evidence pointing' to Movant’s guilt, it is difficult to discern how the outcome of the trial would have changed had trial counsel specifically impeached Sergeant McClendon regarding not checking Mr. Bane’s clothing, shoes and bandana. Despite this ostensible failing, the tape recording of the entire transaction was presented to the jury, revealing in intimate detail Movant’s part in the illegal transaction, first by illegally purchasing the methamphetamine from Movant’s source, and then selling the methamphetamine to Mr. Bane. Mr. Bane testified to having received the illegal substance from Movant and Sergeant McClendon testified to receiving the illegal substance from Mr. Bane. “There was abundant evidence to convict Movant.” Dugan v. State, 112 S.W.3d 126, 127 (Mo.App.2003). It is our view that Movant did not receive ineffective assistance of counsel. He simply has not met his burden of proving the outcome of his case would have been different and he cannot demonstrate prejudice. Reynolds, 87 S.W.3d at 384; see Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Point denied.

The Judgment and Findings of Fact and Conclusions of Law of the motion court are affirmed.

LYNCH and BURRELL, JJ., Concur.

      . All rule references are to Missouri Court Rules (2009).

        . All statutory references are to RSMo 2000.

      . While Movant’s motion asserted that it was Sergeant McClendon who testified Mr. Bane's shoes, hat and clothing were not removed, this Court believes based on the testimony at the evidentiary hearing and statements in the parties' briefs that it was, in fact, Mr. Bane who had given the foregoing testimony. As such, this Court will refer to Mr. Bane as making those statements at Movant’s preliminary hearing.

      . Ms. Burke's notes, which were attached to her affidavit at the evidentiary hearing, read: ‘ 'bandana — not removed ... shoes not removed ... no clothing removed....”


text:
    STATE of Missouri, Respondent, v. Paula D. HALL, Appellant.
    No. SD 29929.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 25, 2010.

      Ellen H. Flottman, Columbia, for Appellant.

      Chris Koster, Atty. Gen. and Robert J. (Jeff) Bartholomew, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Presiding Judge.

Paula D. Hall (“Appellant”) appeals her conviction by a jury for one count of the class A felony of murder in the second degree, a violation of section 565.021. Appellant was sentenced by the trial court to twenty years in the Missouri Department of Corrections. In her sole point relied on, Appellant challenges certain statements made by the State during closing argument. We affirm the judgment and sentence of the trial court.

During closing argument at the trial in this matter, counsel for Appellant told the jury: “Now, why do[es the State] want [Appellant]? I don’t know. [Appellant] has had no criminal convictions. None. Okay? The State stipulated and I concede that [Appellant] has no prior criminal convictions.” During the State’s rebuttal closing argument, the following was said:

THE STATE: A few more things. I just want to point out what the defense says. The defense says, well, the State agreed [Appellant] doesn’t have a criminal record. I don’t recall [the State] saying that in front of you. If you remember it that way, maybe it happened, but I don’t remember. I only remember the defense saying it....
COUNSEL FOR APPELLANT: Can we approach?
(The following remarks were made at the bench, outside the hearing of the jury-)
COUNSEL FOR APPELLANT: Judge, we spoke to the State prior to this afternoon. They said they would stipulate that she does not have a criminal record.
THE STATE: And they never offered the stipulation, so it’s not been put into evidence. And they talked about — I did agree to it. They never offered the stipulation.
THE COURT: If you agreed to it, you’ve got to agree with it.
THE STATE: Not when it was never offered to the jury. No, sir. It was never offered. They have to still present the stipulation.
COUNSEL FOR APPELLANT: Now he’s trying to present it like, well, then maybe she does have a criminal record. That’s not right.
THE COURT: Let’s get off that, okay?
THE STATE: Okay.
(Bench conference concluded.)

At the close of the evidence, Appellant was convicted of the crime charged.

Thereafter, Appellant filed a “Motion for New Trial” in which she alleged the State’s closing argument “led the jury to believe [Appellant] had a criminal history ...” such that “counsel’s credibility and [Appellant’s] criminal history [were] put into question....” Appellant further maintained that “[t]his remark was stated solely to mislead the jury, as the State knew [Appellant] in fact had no criminal history.” A hearing was held on this motion on February 25, 2009. At this hearing, the following argument was made by counsel for Appellant:

COUNSEL FOR APPELLANT: And then there was the statement at closing argument that led the jury to believe that [Appellant] had a criminal history. We had an agreement. Yes, [my co-counsel] was supposed to stipulate to that in closing that [Appellant] had no criminal history, and that’s the defense’s mistake for not doing that. However, we had an agreement with [the State] that we would not have to put anyone on the stand to testify that she did not have any criminal history. We didn’t put witnesses on the stand because of that agreement. We could have put witnesses on the stand to testify that she had no criminal history, nothing, not anything, but we didn’t because of that agreement. And we get up and we tell the jury that she has no criminal history, not even a speeding ticket, and [the State] gets up and stands in front of that jury and says, and I quote, ‘You have heard the defense say that [Appellant] has no criminal history. You did not hear the State say that.’
That was a direct attempt on the part of the [State] to mislead that jury into thinking that I had lied to them and that [Appellant] had a criminal history. We would have put people on that stand had it not been for that agreement. And [the State] did that for the sole purpose of misleading that jury, because there’s no other reason for that statement other than to mislead that jury into believing that we had lied to them and that [Appellant] did have a criminal history.
THE COURT: Of course, actually, well, the fact she did not have a criminal history is not necessarily evidence, is it?
COUNSEL FOR APPELLANT: It’s not evidence, Judge, but it put [Appellant’s] credibility at issue and it put my credibility at issue. It made the jury-think that we had lied to them. Well, if we’d lied to [the jury] about her criminal history, what makes [the jury] think we wouldn’t have lied to them about everything else. It was a very prejudicial remark and for the sole purpose of misleading the jury.

The motion was taken under advisement and was, apparently, later denied by the trial court. At the sentencing hearing on May 22, 2009, counsel for Appellant admitted Appellant had been charged with stealing, and that she received a suspended imposition of sentence on that charge.

In her point relied on, Appellant asserts the trial court abused its discretion in overruling her “objection to the [State’s] closing argument when the [State] told the jury that [it] did not recall agreeing ‘in front of you’ that [Appellant] did not have a criminal record.... ” She maintains this comment violated her rights as it “was misleading in that it implied to the jury both that [Appellant] did in fact have a criminal record, and that defense counsel was attempting to argue outside the evidence.”

Typically, a trial court has broad discretion in controlling the scope of closing argument and the trial court’s rulings will be cause for reversal only upon a showing of abuse of discretion resulting in prejudice to the defendant. State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006); see State v. Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003). “‘The rule is that un-sworn remarks of counsel in opening statements, during the course of trials or in arguments are not evidence of the facts asserted.’” Forrest, 183 S.W.3d at 226 (quoting State v. Dowell, 25 S.W.3d 594, 609 (Mo.App.2000)).

However, it is equally recognized that the permissible field of argument is broad, and so long as counsel does not go beyond the evidence and issues drawn by the instructions or urge prejudicial matters or a claim or defense which the evidence and issues drawn by the instructions do not justify, he is permitted wide latitude in his comments.

State v. Blakeburn, 859 S.W.2d 170, 174 (Mo.App.1993). “In ruling on the propriety of the closing argument, the challenged comment must be interpreted in light of the entire record rather than in isolation.” Id. Further, “there must be a reasonable probability that the verdict would have been different had the error not been committed” by the trial court. State v. Johns, 34 S.W.3d 93, 116 (Mo. banc 2000).

However, “[t]he standard of review for alleged error in closing argument depends upon whether defense counsel objects.” State v. Lockett, 165 S.W.3d 199, 205 (Mo.App.2005). “ ‘[F]ailure to properly object to closing argument at the time it is made to a jury results in a waiver of any right to complain of the argument on appeal, even if the point is preserved in an after trial motion.’ ” State v. Samuels, 88 S.W.3d 71, 83 (Mo.App.2002) (quoting Nishwitz v. Blosser, 850 S.W.2d 119, 124 (Mo.App.1993)); see State v. Lingle, 140 S.W.3d 178, 190 (Mo.App.2004). “This is because ‘if the objection is not timely, the trial court has no opportunity to take corrective action at the time the remarks were made.’ ” Samuels, 88 S,W.3d at 83 (quoting Nishwitz, 850 S.W.2d at 124). “Therefore, when counsel does not object to an allegedly improper argument at the time it is made, the error is not preserved for review.” Lingle, 140 S.W.3d at 190.

Here, when the State’s comments relating to Appellant’s criminal record were made to the jury, counsel for Appellant responded by asking to approach the bench. Although expressing displeasure at the State’s remarks, no express objection was made by defense counsel at that time. Nor did defense counsel request any curative measures be taken by the trial court, such as a mistrial or an admonishment to the jury. The trial court did not enter an express ruling on the issue and, instead, instructed the State “to get off that ...” topic. It is our view, then, that Appellant failed to preserve this issue for our review in that counsel did not properly object to the State’s remarks. Samuels, 88 S.W.3d at 83.

While Appellant does not request plain error review, it is within this Court’s discretion to review this issue pursuant to Rule 30.20. It has long been held that “ ‘[p]lain error relief as to closing argument should rarely be granted and is generally denied without explanation.’ ” State v. Crowe, 128 S.W.3d 596, 600 (Mo.App.2004) (quoting State v. Garner, 14 S.W.3d 67, 76 (Mo.App.1999)). Such review “is discouraged because the ‘trial court’s options are narrowed to uninvited interference with summation.’ ” Id. at 601 (quoting State v. Brown, 953 S.W.2d 133, 141 (Mo.App.1997)). “In order to establish that the [trial] court committed plain error during closing arguments, [a defendant] must make a sound, substantial showing that manifest injustice or a miscarriage of justice will result if [this Court fails to] grant relief.” Id.

With that being said, “when complained of remarks come in the rebuttal portion of argument by the [S]tate, the trial court may consider whether the comments were invited” in that “[t]he [S]tate may go further by way of retaliation in answering the argument of the defendant than would be normally allowed.” State v. Pratt, 858 S.W.2d 291, 292 (Mo.App.1993) (internal citation omitted). The State “has considerable leeway to make retaliatory arguments at closing” and it “may retaliate to an issue raised by the defense even if [the] comment would be improper.” State v. Sanchez, 186 S.W.3d 260, 265 (Mo. banc 2006). Here, it was Appellant’s counsel who first stated in closing argument that the State had stipulated Appellant had no prior criminal convictions, although such a stipulation had not been introduced at trial. The State was, therefore, well within its rights in rebuttal to address this issue raised for the first time by Appellant in its closing argument. See Pratt, 858 S.W.2d at 292; Sanchez, 186 S.W.3d at 265. In this instance, the State’s closing argument was not improper in that it was rebutting the remarks made by defense counsel that were inaccurate. The trial court did not abuse its discretion by its action. See Forrest, 183 S.W.3d at 226. Appellant has failed to prove the trial court’s actions rose to the level of manifest injustice or a miscarriage of justice. See Sanchez, 186 S.W.3d at 265. Point denied.

The judgment and sentence of the trial court is affirmed.

LYNCH and BURRELL, JJ„ concur.

      . All statutory references are to RSMo 2000.

      . As Appellant does not challenge the sufficiency of the evidence to support her conviction, we need not fully detail the facts which led to the charges at issue except to state that Appellant was charged with beating Freda Heyn to death with a golf club and then disposing of her body in the Mark Twain National Forest.

      . All rule references are to Missouri Court Rules (2009).

      . As previously related. Appellant’s counsel later admitted the failure to introduce the stipulation was an error on the part of Appellant’s defense team, and that it should have been introduced at trial.


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

text:
    STATE of Missouri, Respondent, v. James ANTHONY, Appellant.
    No. SD 29789.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 26, 2010.

      Rosalynn Koch, Columbia, MO, for Appellant.
    Chris Koster, Attorney General and John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

A jury convicted James Anthony (“Appellant”) of first degree assault in violation of section 565.050 (Count I) and armed criminal action in violation of section 571.015 (Count II). Appellant was sentenced to twenty years’ imprisonment on Count I and ten years’ imprisonment on Count II to run concurrently. This appeal followed. We affirm the trial court’s judgment.

Factual and Procedural History

In the early morning hours of December 9, 2007, Brian Reeves (“Officer Reeves”), an off-duty Springfield Police Officer, and John Birmingham (“Mr. Birmingham”), property manager for Birmingham & Associates Property Management, were patrolling properties in downtown Springfield. At approximately 3:00 a.m., Officer Reeves and Mr. Birmingham heard a disturbance and saw two men arguing in front of a night club. One of the men, “John Doe,” was described as tall, thin and younger than the other. The other man, Appellant, was described as short with a medium build and older than John Doe.

As Officer Reeves and Mr. Birmingham moved closer, someone from the crowd stepped between the two men breaking up the disturbance, and the men walked away from each other. A few moments later, both men turned around, walked back toward each other, and resumed arguing. Appellant began pushing John Doe vrith his chest and pinned him against the wall. The two men separated slightly before Officer Reeves and Mr. Birmingham heard a gunshot and saw a muzzle flash emanate from the direction of Appellant toward John Doe. John Doe jumped as if he was being shot at and ran away. Appellant chased him for eight to ten feet, then raised his gun and fired another shot.

After the first shot, Officer Reeves radioed for police assistance. When Appellant was apprehended by police, he told Officer Ringgold he shot at someone a couple times after being shot at first. Appellant also said he shot at the man’s feet and the man was “all upon” his “girl” so he “took it outside.”

Appellant was charged with first degree assault and armed criminal action.

During trial, Officer Reeves testified that following the first separation of the men, “the [Appellant] starts advancing on [John Doe] and uses his — I call it chest bumping. Physically touches his chest to the other person’s and pushes him back up against the wall about right here.” Officer Reeves noted that Appellant continued to push the victim until they separated slightly and it then appeared that Appellant shot in the direction of the victim. Officer Reeves also testified that after the victim “start[ed] to retreat or escape from the situation” the Appellant “started after” John Doe and fired another shot as John Doe turned away and accelerated to a run.

Similarly, Mr. Birmingham testified “they physically got into it, and, you know, I would say that the [Appellant] pinned him up against that wall. So I think they clashed, and he, you know, physically moved him around the side and threw him up against the side Of that building.” He went on to testify that John Doe jumped like he was being shot at and ran from Appellant. Appellant chased John Doe approximately eight to ten feet and “extended one arm, and had a gun in that hand, and fired at the individual” running away. He stated that he did not see a gun in John Doe’s hand as he was running away. On cross-examination, Mr. Birmingham testified that Appellant was being “antagonized” by John Doe during the initial verbal argument.

Officer Ringgold testified that while he was collecting biographical information following Appellant’s arrest, Appellant stated he shot at someone a couple times after the individual shot at him first. This was the only evidence in the trial on the issue of self-defense.

During trial, at the jury instruction conference, the State offered Instruction 13, pursuant to Missouri Approved Instructions — Criminal, Third Edition (“MAI-CR Bd”) 306.06:

One of the issues in this case is whether the use of force by the defendant against John Doe was in self-defense. In this state, the use of force including the use of deadly force to protect oneself from harm is lawful in certain situations.
A person can lawfully use force to protect himself against an unlawful attack. However, an initial aggressor, that is, one who first attacks or threatens to attack another, is not justified in using force to protect himself from the counterattack that he provoked.
A person who is the initial aggressor in an encounter can regain the privilege of using force in lawful self-defense if he withdraws from the original encounter and clearly indicates to the other person his desire to end the encounter. Then, if the other person persists in continuing the incident by threatening to use or by using force, the first person is no longer the initial aggressor, and he can then lawfully use force to protect himself.
In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger.
If he has such a belief, he is then permitted to use that amount of force that he reasonably believes to be necessary to protect himself.
But a person is not permitted to use deadly force, that is, force that he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes he is in imminent danger of death or serious physical injury.
And, even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to protect himself.
As used in this instruction, the term “reasonable belief’ means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.
On the issue of self-defense in this ease, you are instructed as follows:
If the defendant was not the initial aggressor in the encounter with John Doe, or if he was the initial aggressor and clearly indicated to John Doe his withdrawal from the encounter,
and if the defendant reasonably believed he was in imminent danger of harm from the acts of John Doe and he used only such non-deadly force as reasonably appeared to him to be necessary to defend himself, then he acted in self-defense, or
if the defendant reasonably believed he was in imminent danger of death or serious physical injury from the acts of John Doe and he reasonably believed that the use of deadly force was necessary to defend himself, then his use of deadly force was in lawful self-defense.
The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty.

Instruction 13 included the initial aggressor language found in paragraph [1] of “Part A-General Instructions,” MAI-CR 3d 306.06. Appellant’s counsel tendered Instruction D as the self-defense instruction. Instruction D is also based on MAI-CR 3d 306.06, but differed from Instruction 13 in that it did not include “initial aggressor” language and defined “serious physical injury.” The trial court rejected Appellant’s self-defense Instruction D and instead submitted the State’s tendered Instruction 13 on self-defense, over the objection of Appellant’s counsel.

The jury convicted the Appellant on both counts. This appeal followed.

Appellant contends the trial court erred by: (1) including initial aggressor language in Instruction 13 since no evidence supported that Appellant was the initial aggressor; and (2) refusing to submit an instruction regarding Appellant’s right to use deadly force to protect himself. The State contends there was no error because Instruction 13 complied with the MAI-CR 3d self-defense instruction, and evidence supported Appellant was the initial aggressor. The issues presented for determination here are:

1. Was sufficient evidence presented that Appellant was the initial aggressor?

2. Did the trial court properly instruct the jury on Appellant’s right to use self-defense?

Standard of Review

The standard of review is disputed by the parties. Appellant submits that both issues should be reviewed de novo; whereas, the State contends the issues should be reviewed using an abuse of discretion standard. The “ ‘[sjubmission or refusal to submit a tendered jury instruction is within the trial court’s discretion.’ ” State v. Davis, 203 S.W.3d 796, 798 (Mo.App. W.D.2006) (quoting State v. Smith, 949 S.W.2d 901, 905 (Mo.App. S.D.1997)). This court’s review is limited to whether the trial court abused its discretion in sub-. mitting or refusing the instruction. Id.; State v. Ondo, 232 S.W.3d 622 (Mo.App. S.D.2007). “An abuse of discretion occurs if a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a careful lack of consideration.” State v. Johnson, 231 S.W.3d 870, 877 (Mo.App. S.D.2007). In reviewing the adequacy of jury instructions, we determine whether sufficient evidence existed for that instruction, viewing the evidence and inferences in the light most favorable to the instruction and disregarding any contrary evidence. State v. Burns, 292 S.W.3d 501, 505 (Mo.App. S.D.2009). “Further, this court will not reverse a conviction for mere error; the Appellant must demonstrate both the error and the prejudice arising from the error.” Davis, 203 S.W.3d at 799.

Analysis

Appellant argues the trial court erred in including initial aggressor language in Instruction 13 because no evidence supported that Appellant was the initial aggressor since Officer Reeves and Mr. Birmingham did not see what transpired before Appellant and John Doe began arguing; therefore, the instruction misled the jury. The State contends the inclusion of initial aggressor language was not an abuse of discretion because substantial evidence demonstrated Appellant was the initial aggressor. Here, the issue is whether substantial evidence supported the inference that Appellant was the initial aggressor.

Rule 28.02(c) provides “[wjhenever there is an MAI-CR instruction or verdict form applicable under the law and Notes on Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form.” MAI-CR 3d 306.06, Notes on Use 4(a) provides that the initial aggressor language should be used “[i]f there is evidence the defendant was the initial aggressor,” whereas, the initial aggressor language should not be used “[i]f there is no evidence indicating the defendant was the initial aggressor or provoked the incident....”

“ ‘It is axiomatic that instructions must be supported by substantial evidence and the reasonable inferences to be drawn therefrom.’ ” Walton v. State, 240 S.W.3d 783, 787 (Mo.App. S.D.2007) (quoting Coday v. State, 179 S.W.3d 343, 354 (Mo.App. S.D.2005)). “Substantial evidence is that which, if it is true, is probative and can constitute the basis for a jury verdict.” Sparkman v. Columbia Mut. Ins. Co., 271 S.W.3d 619, 624 (Mo.App. S.D.2008). “ ‘An initial aggressor is one who first attacks or threatens to attack another.’ ” State v. Walton, 166 S.W.3d 95, 100 (Mo.App. S.D.2005) (quoting State v. Hughes, 84 S.W.3d 176, 179 (Mo.App. S.D.2002)). “The state need not present undisputed evidence that defendant was an initial aggressor in order to submit the issue to the jury. Conflicting evidence as to who was the initial aggressor presents an issue of fact for the jury to decide.” Id.

The record shows substantial evidence was presented that Appellant was the initial aggressor. Both Officer Reeves and Mr. Birmingham testified that Appellant was the first to initiate physical contact with John Doe by pushing him against the wall following the verbal argument. Officer Reeves noted that Appellant continued to push the victim until they separated slightly and it appeared that Appellant shot in the direction of the victim. Mr. Birmingham testified John Doe jumped like he was being shot at and ran from Appellant. Both witnesses testified that Appellant chased John Doe and again shot at him as he was running away. Mr. Birmingham did not see a gun in John Doe’s hand as he was running away. The testimony of either Officer Reeves or Mr. Birmingham constitutes substantial evidence for a jury to conclude Appellant was the initial aggressor.

Although some evidence was presented that John Doe could have been the initial aggressor, the jury was not required to accept this evidence as credible and even if the jury accepted the evidence as credible, it did not necessarily negate evidence Appellant was the initial aggressor. There was evidence from which the jury could find Appellant was the first to physically attack or threaten to attack; and therefore, Appellant was the initial aggressor in the incident that led to the shooting. Conflicting evidence as to who was the initial aggressor presents a question of fact for the jury to decide. Hughes, 84 S.W.3d at 179. The evidence as to the initial aggressor viewed in the light most favorable to the instruction, supports a reasonable inference that Appellant was the first aggressor. There is no showing that the trial court’s instruction on initial aggressor was against the logic of the circumstances and so unreasonable as to indicate a lack of careful consideration. We find sufficient evidence supported the conclusion that Appellant was the initial aggressor. This point is denied.

Appellant also argues the trial court erred in failing to instruct the jury on Appellant’s right to use deadly force. However, the State correctly contends that the trial court instructed the jury in Instruction 13 on the right to use deadly force. Appellant is correct that the trial court “has an obligation to submit a self-defense instruction if the issue is supported by the evidence, when viewed in the light most favorable to the defendant.” State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992). However, pursuant to Rule 28.02, MAI-CR 3d 306.06 is the mandatory instruction to be given when instructing on self-defense. State v. Beck, 167 S.W.3d 767, 779 (Mo.App. W.D.2005). Thus, Appellant’s contention fails because the trial court instructed the jury on the right to self-defense in Instruction 13, patterned after MAI-CR 3d 306.06. That instruction includes a statement of the law on when an individual has a right to use deadly force. Since Appellant makes no additional argument that Instruction 13 was contrary to substantive law, we find the trial court properly instructed the jury on the lawful use of deadly force. Accordingly, this point is denied.

The trial court’s judgment is affirmed.

RAHMEYER, P.J., and BATES, J., concur.

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

      . Instruction D reads:
      One of the issues as to Count I is whether the use of force by the defendant against John Doe was in self-defense. In this state, the use of force, including the use of deadly force, to protect oneself from harm is lawful in certain situations.
      In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger.

        If he has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to protect himself.
      But a person is not permitted to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes he is in imminent danger of death or serious physical injury.
      And, even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to protect himself.
      As used in this instruction, the term "reasonable belief” means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.
      On the issue of self-defense as to Count I, you are instructed as follows:
      If the defendant reasonably believed he was in imminent danger of death or serious physical injury from the acts of John Doe and he reasonably believed that the use of deadly force was necessary to defend himself, then he acted in lawful self-defense.
      The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty under Count I.
      As used in this instruction, the term "serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.

      . Appellant relies on State v. Huffman, 711 S.W.2d 192, 193 (Mo.App. E.D.1986) for the proposition that de novo review is appropriate because "[wjhether the evidence requires the giving of a self-defense instruction is a question of law.” However, Appellant misstates the issue. Here, the parties were in agreement that the evidence required that a self-defense instruction should be given. It is the giving of Instruction 13 instead of Instruction D that is at issue, not whether a self-defense instruction should be given.

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

      . Evidence that could suggest John Doe first attacked includes Officer Ringgold’s testimony that Appellant stated John Doe first shot at him. This was contradicted by Officer Reeves and Mr. Birmingham's testimonies that only Appellant fired a weapon. Also, the Appellant points to Mr. Birmingham’s statement that John Doe "antagonized" Appellant as evidence that John Doe first attacked; however, if accurate, there is no evidence that it even rose to the level of an attack, or a threat of attack, and it would not conclusively negate Appellant as the initial aggressor. Finally, the Appellant argues that the main witnesses did not see the fight from the beginning and thus, there was no evidence that Appellant was the initial aggressor. Again, it is not a question of witnessing the start of the "fight”; rather, the jury could have determined that the first act of violence or threat of violence occurred when Appellant pushed John Doe against the wall.

      . Appellant does not allege Instruction 13 was contrary to substantive law; rather, he contends that the jury was simply not instructed on the right to use deadly force even though he asserted self-defense and the evidence supported such an instruction.