author: LAWRENCE E. MOONEY, Judge.

text:
    Paula ROBINSON, Appellant, v. COURTYARD MANAGEMENT CORPORATION, and Division of Employment Security, Respondents.
    No. ED 94800.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 11, 2011.

      Paula Robinson, St. Louis, MO, pro se.
    Courtyard Management Corporation, St. Louis, MO, pro se.
    Jeannie Desir Mitchell, Jefferson City, MO, for respondents.
   LAWRENCE E. MOONEY, Judge.

The claimant, Paula Robinson, appeals the decision of the Labor and Industrial Relations Commission denying her unemployment-compensation benefits because she voluntarily left her work with the employer, Courtyard Management Corporation, without good cause attributable to the work or the employer. Because the evidence before the Commission showed that the claimant did not voluntarily leave her work, but rather was discharged for misconduct, we reverse and remand to the Commission with instructions to modify its decision in a manner consistent with this opinion.

Factual Background,

The claimant worked for the employer’s hotel as a front-desk clerk, night audit. Because the claimant worked the overnight shift, she typically communicated with the general manager by leaving notes in his office. The claimant suffered a knee injury at work, and had surgery in May 2009. She returned to light-duty work in June, and to full duty in July 2009. Because of budgetary considerations, the employer modified all job duties in the hotel, including adding duties to the claimant’s position. These new duties required more standing and walking for the claimant when she returned to full duty.

At the end of August, the claimant suffered pain and swelling in her knee. She submitted to the general manager an incident report about her swollen knee on August 30, 2009. The claimant saw a doctor the next day, and received a note recommending physical restrictions at work and a follow-up with an orthopedic specialist. The claimant provided the doctor’s note to the general manager. The general manager left two telephone messages for the claimant on September 1st, stating that the employer could accommodate the claimant’s physical restrictions. The claimant did not return the general manager’s calls, but left a note for him on September 1st, stating that she would be absent “for this week 9-1-09 through [.] ” The note provided no expected return date. The claimant testified that she did not state a return date because she did not know when she would return to work and that, given the knee pain she had endured, “I think I’ve just had enough.” She testified that she did not consider this letter as notice that she was leaving her job, but that she would return “at some point.”

The employer responded via letter on September 2nd, outlining the claimant’s schedule for the upcoming week, offering her restricted-duty work in accordance with the doctor’s August 31st note, and requesting a work-ability evaluation from the claimant’s doctor. On September 3rd, the claimant left another note for the general manager stating that she planned to follow doctor’s orders, to seek the opinion of an orthopedic specialist before returning to work, and to spend “as long as it takes” to recover. The claimant did not report for her scheduled shifts on September 1st, 3rd, 4th, 6th, 7th, 8th, 9th, and 10th.

On September 8, 2009, the claimant wrote the general manager that she had an appointment with an orthopedic specialist in March 2010, and that she would return to work thereafter. She also wrote, however, that if the swelling in her knee subsided before her March doctor’s appointment, she would return to work with restrictions. The claimant testified that she did not think about medical leave, but only about following her doctor’s August 31st orders. The record does not contain a copy of those orders, but the testimony and other exhibits reveal that the doctor released the claimant to work with restrictions, which the employer informed the claimant on multiple occasions that it could accommodate. The employer’s claims division referred the claimant to an orthopedic surgeon who evaluated her on September 10th, and released her to sedentary work. The claimant never provided this information to the employer.

The general manager left multiple telephone messages for the claimant and wrote her multiple letters in an effort to clarify her expected return date and accommodate her physical restrictions. The claimant, however, did not respond to the telephone messages nor did she respond directly to the issues raised in the employer’s letters. With regard to the general manager’s telephone messages, the claimant testified that she “was just not going to talk to him.” She never acknowledged the employer’s agreement to accommodate her physical restrictions. The employer discharged the claimant on September 10, 2009 for abandoning her job after numerous missed shifts. First a deputy and the Appeals Tribunal determined that the claimant voluntarily left her work without good cause attributable to her employer. The Commission adopted the Appeals Tribunal’s decision, and denied the claimant unemployment-compensation benefits. The claimant appeals.

Standard of Revieiv

On appeal, this Court may modify, reverse, remand for rehearing, or set aside the Commission’s decision only if the Commission acted without or in excess of its powers, the decision was procured by fraud, the facts found by the Commission do not support the award, or there was no sufficient competent evidence in the record to warrant making the award. Section 288.210 RSMo. (2000); Noah v. Lindbergh Inv., LLC, 320 S.W.3d 212, 215 (Mo.App. E.D.2010). In reviewing the Commission’s decision, we are not bound by its conclusions of law or its application of the law to the facts. Id. Where, as here, the facts are not in dispute, and the issue is the construction and application of a statute, the issue is one of law that we review de novo. Id.

Discnasion

The claimant challenges the Commission’s determination that she left her work voluntarily without good cause attributable to the work or the employer. She also challenges the Commission’s finding that she never requested leave under the Family and Medical Leave Act. Upon our review of the record, we agree that the claimant did not voluntarily leave her employment, but we find that the claimant is nonetheless disqualified from unemployment-compensation benefits because the undisputed facts showed that the employer discharged the claimant for misconduct.

A claimant is not entitled to unemployment benefits if she leaves work voluntarily without good cause attributable to such work or to the employer. Section 288.050.1(1) RSMo. (Supp.2009). The voluntary-quit provision of Missouri’s employment security law, like its other disqualifying provisions, must be strictly and narrowly construed in favor of finding that an employee is entitled to compensation. Noah, 320 S.W.3d at 215. An employee leaves work voluntarily when she leaves of her own accord, rather than being dismissed, discharged, or subjected to layoff by the employer. Id. Conversely, we will not deem a claimant to have left work voluntarily when the employer decides to end the employment relationship. Id. We will not conclude that a claimant left work voluntarily when the employer obviously discharged the employee for failing to comply with a work rule. Id.

The record contains insufficient evidence to support the Commission’s conclusion that the claimant voluntarily left her employment. The uncontroverted facts show that the employer terminated the claimant because she repeatedly failed to report to work, and failed to respond to the employer’s offers to accommodate her physical restrictions or talk with the employer about her status. The claimant’s actions did not constitute a voluntary quit because she intended to return to work when her knee had healed, and the employer decided to terminate the employment relationship following the claimant’s failure to report for work and to respond to the general manager. See id. at 216.

Nevertheless, the claimant is disqualified from unemployment-compensation benefits because the employer discharged her for misconduct. A claimant is ineligible for unemployment-compensation benefits where she has been discharged for misconduct connected with her work. Section 288.050.2; Noah, 320 S.W.3d at 216. “Misconduct” means:

[A]n act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer[.]

Section 288.030.1(23). Work-related misconduct requires a willful violation of the employer’s rules or standards, and the violation must be intended. Dameron v. Drury Inns, Inc., 190 S.W.3d 508, 511 (Mo.App. E.D.2006). The employer bears the burden of proving misconduct by substantial and competent evidence. Id. at 512.

It is a well established rule that absences due to illness or family emergency, where properly reported to the employer, do not constitute willful misconduct within the meaning of section 288.050.2. Id. at 511. The reason for this rule is obvious — if absences are due to illness or family emergency, a claimant has not willfully violated an employer’s rule. Id. (emphasis in original). Rather, the employee’s absence is fairly attributable to circumstances beyond her reasonable control. Id. at 511-12.

Here, however, the employer did not discharge the claimant simply because she missed work for medical reasons. The claimant failed to report to work for eight consecutive shifts on September 1st, 3rd, 4th, 6th, 7th, 8th, 9th, and 10th. Further, she failed to respond to the employer’s repeated offers to accommodate her physical restrictions and requests to discuss her employment status. These failures constituted a willful violation of the employer’s reasonable rules and standards and, accordingly, constituted misconduct.

Finally, we agree with the Commission’s finding that the claimant did not request medical leave. We have reviewed the entire record and conclude that the Commission’s determination on this issue is supported by sufficient competent evidence. The claimant testified that she did not think about medical leave, but only about following her doctor’s August 31st orders. The doctor, however, released the claimant to work with restrictions. The employer informed the claimant on multiple occasions that it could accommodate her restrictions, but the claimant did not respond. The employer’s claims division referred the claimant to an orthopedic surgeon who evaluated her on September 10th, and released her to sedentary work. The claimant never provided this information to the employer.

Conclusion

Given this record, we conclude that the employer discharged the claimant for her willful misconduct in failing to follow the employer’s reasonable rules and standards. We further conclude that the claimant never requested medical leave. We reverse and remand to the Commission with instructions to modify its decision in a manner consistent with this opinion.

SHERRI B. SULLIVAN, P.J., and CLIFFORD H. AHRENS, J., concur.

      . All further statutory references are to RSMo. (Supp.2009).


source: Caselaw Access Project

author: DON E. BURRELL, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Earl HITCHCOCK, Defendant-Appellant.
    No. SD 30062.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 12, 2011.

      Craig A. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

A jury found James E. Hitchcock (“Defendant”) guilty of second degree murder and armed criminal action for killing Wendell Hillhouse (“Victim”) with a rifle and a baseball bat. See sections 565.021 and 571.015. After denying Defendant’s motion for new trial, the trial court sentenced Defendant as a prior offender to twenty-five years on the murder charge and ten years on the armed criminal action count. Defendant now appeals his convictions, claiming the trial court erred by allowing the State to introduce improper “other crimes and bad acts evidence” and refusing to allow defendant’s expert witness to opine that Victim could not have been shot in the manner described by Defendant’s ex-wife. Finding no such error, we affirm.

Facts

Viewed in the light most favorable to the verdict, State v. Ondo, 232 S.W.3d 622, 624 (Mo.App. S.D.2007), the facts are as follows. Defendant was married to June Hitchcock (“June”) until they divorced in 1996. Defendant and June lived in a residence located on 120 acres owned by June’s parents (“the Smiths”). Defendant also operated a salvage business on the Smiths’ property. Defendant and June reconciled two years after their divorce and lived together from 1998 until 2007, when Defendant entered into a romantic relationship with Tammy Bartlett (“Bartlett”).

June moved out of the house when Defendant began seeing Bartlett, and she eventually moved into a trailer home located on another portion of her parents’ 120 acres. In July 2008, Bartlett moved in with Defendant. Soon after, June’s father, Carl Smith, “[had] eviction papers served on [Defendant].” Defendant and Bartlett left the home and moved to a residence in Tecumseh.

Around August 2008, June began a romantic relationship with Victim and planned to many him. Victim started moving his belongings into June’s trailer home the same week Defendant was removing the rest of his belongings from the Smiths’ land. On the morning of August 15, 2008, while cleaning out a garage at his salvage yard, Defendant discovered that June had removed several replacement parts for a vehicle Defendant had purchased from her. Defendant was angry about the missing parts and called June. After Defendant calmed down, June agreed that she and Victim would help Defendant move several vehicles from the Smiths’ property to Defendant’s Tecumseh residence.

When June and Victim arrived at the salvage yard, Defendant directed each of them to drive a vehicle and follow him to the Tecumseh residence using Monastery Road, a gravel road in a secluded section of Douglas County. As the trio proceeded along Monastery Road, Defendant was apparently having car trouble and pulled the Kia he was driving over to the side of the road. By the time June reached Defendant’s vehicle, Victim and Defendant were looking at the small SUV’s engine, which was steaming. June asked Defendant what was wrong with the vehicle. Instead of answering her, Defendant opened the driver’s door of the Kia, pulled out a rifle, and shot Victim two times in rapid succession. When June began screaming, Defendant told her that she was going to die. Defendant retrieved another gun from the vehicle and managed to carry both guns with him while he dragged Victim by his feet toward some nearby woods. As Defendant dragged Victim into the woods, he told June not to run away.

After Defendant went into the woods, June attempted to flee, but she was apprehended by Defendant. Defendant then took June’s purse, which contained her cell phone and a Derringer pistol and ammunition. Defendant loaded the Derringer and kept it. He broke June’s phone into pieces and threw them across the road in the opposite direction from where he had taken Victim’s body. Defendant escorted June at gunpoint to the Kia. He then went back into the woods, carrying a baseball bat. After returning from the woods, Defendant told June that he had hit Victim two times with the bat to make sure he was dead.

Defendant took June back to the salvage yard and told her that they would “spend some time in the woods and [she] had to watch [her] parents die.” Over the course of that afternoon and into the early morning hours of the next day, Defendant took June from the scene of the crime to the salvage yard, to June’s trailer, into the woods between June’s trailer and her parents’ residence, to the Tecumseh residence, back to the scene of the crime, back to the salvage yard, and, finally, back to June’s trailer home, where they both fell asleep. While June and Defendant were at the Tecumseh residence, Defendant put a package of hotdogs in front of June and told her to eat her last meal.

The following morning, Defendant ordered June to go to the store and get him “a Pepsi and cigarettes.” Before she left, June promised not to tell anyone what had happened. Instead of taking the opportunity to flee, June bought the items and returned. She said she did so because she feared for her daughter and grandchild who lived next door. When June returned from the store, Defendant told her to take him to the salvage yard. June again promised to tell no one what had happened. After she dropped Defendant off at the salvage yard, June went to her daughter and son-in-law’s home and told them what had happened.

While June was at her daughter’s home, Defendant called and ordered her to bring him his cell phone charger, which he had left in June’s trailer home. June retrieved the charger and took it to Defendant at the salvage yard. As an excuse to get away, June told Defendant that she needed to go to Ava to replace her cell phone. June again told Defendant that she would not say anything about what had happened. Fearing that Defendant might follow her, June went to Wal-Mart and purchased a replacement cell phone. June then went to the Douglas County Sheriffs Office, where she reported that she “wanted to turn [herself] in and [her] ex-husband had killed [her] boyfriend.” June led investigators to the general area where the killing had occurred, and the officers eventually found Victim’s body. Additional facts will be set forth below as we analyze Defendant’s points.

Analysis

Points I and III: Mr. Smith’s Testimony about Defendant’s Prior “Bad Acts”

Defendant’s first and third points are closely related, and we will address them together.

Point I challenges the trial court’s decision to allow Mr. Smith to testify that Defendant “dominated and controlled [June] during their marriage, that June was scared of [Defendant], and that once, while June was driving, [Defendant] grabbed the wheel, forced June’s car into a tree, dragged her out by her hair across a ditch and ‘worked her over[.]’” Defendant contends Mr. Smith’s testimony constituted inadmissible evidence of prior bad acts and bad character that was solicited to “divert the jury’s attention and was designed to inflame the passions of the jury.”

Point III contends the trial court: 1) plainly erred by allowing Mr. Smith to testify that Defendant had “nearly cut off Mr. Smith’s grandson’s ear with a beer bottle and left [the grandson] lying beside the road[;]” and 2) should have, sua sponte, declared a mistrial because the testimony constituted improper bad char-aeter evidence “solely designed to inflame the passions of the jury.”

Defendant concedes that we may review the testimony about Defendant’s assault of Mr. Smith’s grandson only for plain error as defense counsel did not object to the evidence at trial. Defendant did object at trial to the introduction of the evidence referenced in Defendant’s first point, leading him to ask us to review that ruling for an abuse of discretion. But Defendant’s trial objection was different from the claim he now asserts on appeal. When the prosecutor asked Mr. Smith at trial whether Defendant had been “abusive towards June[,]” the following exchange took place:

[Defense counsel]: Objection, approach the bench, Your Honor.
{BENCH CONFERENCE OUT OF JURY HEARING}
[Defense counsel]: Judge, I know the State’s going to try to get into this with [June], I’m going to have a lengthy objection to that point, too, because of remoteness and time has [sic] nothing to do with this case. He can’t testify about it. Everything he knows he’s been told. [Prosecutor]: Judge, He’s testifying they’ve lived on his property right next door to him.
[Defense counsel]: I think it’s all prejudicial and ...
THE COURT: What is the relevance of the abuse?
[Prosecutor]: Why June didn’t go to the cops immediately. This man has been extremely abusive all these years they’ve been together since 1980.
THE COURT: He can’t make conclusions like abuse.
[Defense counsel]: Did you say he can he [sic] go back to 1980, Judge?
THE COURT: I didn’t say that.
[Defense counsel]: It’s over my objection.
THE COURT: Go ahead.
CONTINUING, BY [Prosecutor]:
[Prosecutor]: And what you were able to see, Mr. Smith, was-June dominated and controlled by [Defendant]?
[Mr. Smith]: Yeah.
[Prosecutor]: In your observations in living there next to them for 25 plus years, was June scared of [Defendant]?
[Mr. Smith]: Yeah.

Defendant’s complaint at trial was that the testimony concerned matters that were too remote in time and were based on second-hand knowledge. He did not object to the testimony on the ground that it constituted evidence of inadmissible “bad acts.” Defendant asserts in his reply brief that his “prejudicial” objection was interrupted by the trial court before it could be completed, and the trial court went on to ask the prosecutor about the relevance of the question, thereby incorporating lack of relevance into Defendant’s objection. Defendant also points out that his motion for new trial included an allegation of error concerning the admission of “bad acts” evidence.

Defendant claims that “bad acts” evidence is inadmissible because it is legally irrelevant and more prejudicial than probative, essentially contending that an objection based on relevance or prejudice is the same thing as an objection based on admission of bad acts evidence. We have previously rejected this argument. In State v. Herrick, 814 S.W.2d 660, 662-63 (Mo.App. S.D.1991), we found that the defendant’s trial objections of “irrelevant” and “irrelevant and more prejudicial than probative” were insufficient to preserve a claim on appeal that the evidence was inadmissible proof of other crimes.

At trial, appellant’s lawyer made no contention that the evidence of appellant’s behavior toward the [victims] demonstrated other crimes. Consequently, the question whether it did and, if so, whether it came within one or more of the exceptions set forth in [State v.] Engleman, 653 S.W.2d [198, 199 (Mo. banc 1983) ], was never presented to the trial court. An appellate court will not convict a trial court of error on an issue which was not put before it to decide.

Id. at 663. See also State v. Mayes 63 S.W.3d 615, 633 (Mo. banc 2001) (claim on appeal that admission of bad acts evidence was error would be accorded plain error review only because objection at trial was based on speculation and relevancy). Thus, we find that Defendant’s trial objections were insufficient to preserve his first point for regular appellate review.

Even if it had been properly preserved, Defendant abandoned his original objections and only received what he asked for when the following exchange took place after the prosecutor asked Mr. Smith why he had evicted Defendant, and Mr. Smith responded that Defendant “got physically rough on a family member.”

[Defense counsel]: I’m going to object and ask that he be specific, Your Honor, you know, whatever he saw or observed than to just generally talk about it.

THE COURT: Overruled at this stage. Go ahead.
CONTINUING, BY [Prosecutor]:
[Prosecutor]: Okay, go ahead.
THE COURT: Be more specific.
[Prosecutor]: I didn’t understand exactly what you said, sir, you said he got physically violent toward some family members?
[Mr. Smith]: Yeah.
[Prosecutor]: How so?
[Mr. Smith]: Well he pulled June’s car into a tree, and tore it up, then he drug her out by the hair of the head and drug her across a ditch and worked her over. Then, he had my grandson, they went over to Bryant and he cut his ear nearly off, so he was starting in to ...
[Prosecutor]: Who did that?
[Mr. Smith]: [Defendant],
[Prosecutor]: The man sitting over there?
[Mr. Smith]: That man right there.
[Prosecutor]: Okay.

Defendant did not argue to the trial court that this testimony was inadmissible or should be stricken because it constituted evidence of prior bad acts admitted to prove propensity. Because Defendant has changed his claim of error on appeal, point I is reviewable only for plain error. See State v. Phillips, 939 S.W.2d 502, 505 (Mo.App. W.D.1997) (“To preserve a claim of error in the taking of evidence, an accused must object with sufficient specificity to apprise the trial court of the grounds for the objection”); State v. Goins, 306 S.W.3d 639, 647 (Mo.App. S.D.2010) (objections did not preserve point on appeal contending that evidence was prior misconduct); State v. Johnson, 483 S.W.2d 65, 68 (Mo. banc 1972) (“The ground of objection in this court is limited to that stated at the trial”); Herrick, 814 S.W.2d at 662-63; and Mayes, 63 S.W.3d at 633.

To prevail under plain error review, the “[a]ppellant must demonstrate that the error asserted so substantially affected the rights of the accused that manifest injustice or miscarriage of justice inexorably results if left uncorrected.” Phillips, 939 S.W.2d at 506.

The Admission of Mr. Smith’s Testimony Regarding Defendant’s Abuse of June And Defendant’s Assault on Mr. Smith’s Grandson Was Not Plain Error

Defendant correctly argues that prior bad acts and bad character evidence is inadmissible to show that a defendant has a propensity to commit crime. State v. Davis, 226 S.W.3d 167, 170 (Mo.App. W.D. 2007) (“A defendant has the right to be tried only on the offense for which he is charged”). Defendant bears the burden of demonstrating that the evidence he challenges constituted inadmissible evidence of prior bad acts. See State v. Turner, 242 S.W.3d 770, 778 (Mo.App. S.D.2008) (defendant did not demonstrate with specificity that gang membership was a bad act).

In the case at bar, the prosecutor asked Mr. Smith whether June was scared of, and “dominated and controlled” by Defendant. Mr. Smith simply responded, “Yeah” to each question. As the State correctly points out in its brief, this evidence fell well short of constituting evidence of specific bad acts or misconduct by Defendant.

The more detailed testimony about which Defendant complains came in only after defense counsel objected on the ground that the witness’s answer — that Defendant “got physically rough on a family member[]” — was not specific. As a result, Mr. Smith went on to testify more specifically and dramatically that Defendant had assaulted June and his grandson. Defendant made no request for relief in response to this testimony. By requesting that Mr. Smith provide specific examples of Defendant’s prior violent acts, Defendant invited the very error about which he now complains. “No criminal trial or judgment should be affected, in any manner, by an error committed at the instance of the defendant.” State v. Williams, 118 S.W.3d 308, 313 (Mo.App. S.D.2003).

Defendant cites State v. Watson, 968 S.W.2d 249 (Mo.App. S.D.1998); State v. Milligan, 654 S.W.2d 204 (Mo.App. W.D.1983); State v. Taylor, 739 S.W.2d 220 (Mo.App. S.D.1987); and State v. Spivey, 710 S.W.2d 295 (Mo.App. E.D.1986) as cases reversed on the grounds that “bad acts” evidence had been improperly received.

Watson, Milligan, and Spivey are readily distinguishable because they did not involve error invited by the defendant. 968 S.W.2d at 253-54, 654 S.W.2d at 208-09, and 710 S.W.2d at 299-301. In Taylor, the defendant referred to the objectionable evidence in opening statement and in his cross-examination of the victim. 739 S.W.2d at 223. On review, the court noted that, generally, when “a defendant presents the same evidence to which he objected when offered by the state, any claim of prejudice by presentation of the otherwise inadmissible evidence of another crime is waived.” Id. The general rule was not applied in Taylor because the defendant did not offer “evidence to the same effect as the challenged evidence.” Id. The other crimes evidence in Taylor also lacked a logical nexus with the charged crime and did not corroborate evidence which itself was relevant to the issue of the defendant’s guilt. Id.

Taylor is distinguishable from the instant case. Here, Defendant went further than the prosecution in eliciting detail about Defendant’s assaults on June and Mr. Smith’s grandson. And there was a logical connection between the assaults and June’s failure to immediately report Victim’s murder to the police because of her fear of Defendant. By eliciting the details of the evidence himself, Defendant waived any complaint he might have had.

Finally, “[ajppellate courts are wary of claims that a trial court erred in failing to declare a mistrial sua. sponte in a criminal case.” State v. Derrick, 965 S.W.2d 418, 419 n. 1 (Mo.App. S.D.1998). “To convict a trial court of an error, not put forth by the defendant (e.g., failure to declare a mistrial sua sponte), allows an accused to stand mute when incidents unfavorable to him or her occur during trial, gamble on the verdict, and then seek favorable results on appeal.” State v. Tilley, 104 S.W.3d 814, 819 (Mo.App. S.D.2003). Such a strategy places the trial court “in an untenable position, and it is contrary to the principle of law that an appellate court will not convict a trial court of an error not put before it to decide.” Id. at 819-20. It would be particularly inappropriate for this court to rule that a trial court plainly erred by failing to declare a mistrial, sua sponte, when the defendant himself elicited the testimony at issue and made no attempt thereafter to have it excluded. No miscarriage of justice or manifest injustice appears. Defendant’s first and third points are denied.

Point II: Testimony by June of Defendant’s Prior “Bad Acts”

Defendant’s second point contends the trial court erred in admitting June’s testimony that Defendant was abusive, that he stalked her, and that she was afraid of Defendant because it constituted other bad acts evidence that was more prejudicial than probative, that Defendant’s character was not at issue, and that the testimony was designed to inflame the passions of the jury. The State concedes in its brief that Defendant preserved this point for appellate review. In light of this concession, we will consider whether the trial court abused its discretion in receiving the testimony.

“A trial court has broad discretion to admit or exclude evidence at trial.” State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). We will reverse a trial court’s ruling on the admission of evidence only if it clearly abused its discretion. Id. An abuse of discretion occurs “when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005). Further, the trial court action is reviewed for prejudice caused by the error; thus, we will reverse only if the error was so prejudicial that it denied the defendant a fair trial. State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999). “Trial court error is not prejudicial unless there is a reasonable probability that the trial court’s error affected the outcome of the trial.” State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006).

As Defendant acknowledges, evidence of prior misconduct may be admissible if it is both logically relevant (has some legitimate tendency to directly establish the defendant’s guilt of the offense charged) and legally relevant (its probative value outweighs its prejudicial effect). Well-established exceptions to the inadmissibility of prior misconduct include use of the evidence to prove: “(1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan, or (5) the identity of the person charged.” State v. Blakey, 203 S.W.3d 806, 812 (Mo.App. S.D. 2006). But “[ejvidence of prior misconduct that does not fit any of the articulated exceptions may still be admissible if it is logically and legally relevant.” Id.

June testified that during the course of her marriage to Defendant, Defendant displayed a temper, put guns to her head, pulled her hair, and broke furniture. She also testified that Defendant stalked her before and after the divorce. She testified that when she confronted Defendant about his relationship with Bartlett, Defendant hit her with a wet towel and tried to stab her finger with a knife.

The State concedes that this evidence constituted evidence of other crimes but contends it was not introduced to prove propensity. Instead, the State says it was offered to explain why “the main State’s witness in this case” delayed reporting Victim’s death for approximately twenty-four hours. The State cites multiple cases holding that prior bad acts are admissible to explain that a witness’s fear of the defendant led to a delay in reporting a matter to the police. Of those cited, Middleton v. State, 80 S.W.3d 799 (Mo. banc 2002), is most pertinent to this discussion.

In Middleton, the defendant was convicted of killing two people. 80 S.W.3d at 803. Middleton alleged his appellate counsel was ineffective by failing to challenge the admission of evidence and subsequent closing argument that a witness did not go to police with his information until he learned that a third person was dead and remembered that the defendant indicated the third person was a “snitch” and should be killed. Id. at 808. Defense counsel asked the witness if it was true that he had not immediately gone to the police with his information about the victim. On re-direct, the prosecutor asked the witness why he had waited. Id. Defense counsel objected both to the question and the prosecutor’s subsequent closing argument reference to the response the witness had given. Id. Appellate counsel did not pursue a claim of error based on the admission of other crimes evidence. Appellate counsel was not found ineffective for making that choice because the testimony at issue was admissible in rebuttal to explain why the witness had waited before contacting the police. Id. at 808-09.

Here, Defendant did not object to the prosecutor’s opening statement reference to Defendant’s abuse and domination of June. Instead, Defendant signaled that he would be addressing the matter head-on when he said the following in his opening statement:

I don’t know, her dad, [Carl] Smith, you know, the evidence will be, he only evicted [Defendant] only because June wanted him gone because she’s jealous over the new girlfriend, [Bartlett], that he’s moved in. Yeah, they were married, and they were divorced, yeah they had some fusses, but, you know, I don’t think the evidence is going to be, at least from our side of the case, that she was abused, ever injured. They had two kids together, April and Larry. They just kind of had a normal get together, get untogether [sic] type marriages [sic] that you see around here sometimes, you know, the kids both turned out okay. It wasn’t great, it wasn’t terrible. I think the evidence is going to show that June is still in love with [Defendant] and was very jealous of him. Now, what’s really significant about this case is that, you know, as I said before, June never tells anybody when she can get away from him and I think you’re going to find the evidence is going to show you folks, there’s lots of opportunity for June [ ] to get away from this vicious man. But she never took advantage of any of that according to what she wants you to believe. Even when he sent her to the store, allegedly, to get cigarettes and sodas that next morning, Saturday morning, around 10:00, 10:30, maybe 11:00. When you come to Squires from where, I don’t know if you all know where this is, but it’s out by Rockbridge, toward that area, and Souder, the little store down there. When you come all the way from there to town, you’re almost half way to Ava, but yet she said she had to turn around and go back. I don’t know if she’s going to testify that she was afraid her daughter and grand-kids would be killed, but if it is, that ain’t going to work because they aren’t afraid of their dad, they love their dad.

In light of these statements, the evidence Defendant challenges was admissible to explain why June delayed reporting the murder.

Defendant’s reply brief asserts June did not claim that the prior bad acts caused her to delay reporting the murder, citing testimony from June that she did not “bolt” when she was driving one of the vehicles in front of Defendant because he “would have caught [her] [;] ” and that she returned to her home after going to the store because her son-in-law was working on the power there and she “was worried about [her] daughter and grandbaby because they were right next door.” This argument ignores the fact that June also testified that 'Defendant had caught her before as she had tried to flee in a vehicle. June’s fear of Defendant was also relevant to explain why Defendant’s close proximity to June’s daughter, son-in-law, and grand-baby was worrisome to her.

Defendant also argues that more general testimony from June about past events and her testimony of how the murder took place would have sufficed to explain her fear of Defendant without injecting any details of past abuse. Defendant’s characterization in opening statement of the relationship with June as a “normal” one with “some fusses” but no abuse or injury called for a particular description of the abuse and injury involved.

The testimony now challenged by Defendant was logically and legally relevant to respond to Defendant’s challenge to June’s credibility based on her delay in going to the police. As discussed above, Defendant had also earlier indicated when Mr. Smith was being questioned that he preferred specificity over generalities. The testimony from June was largely similar to and cumulative of the detailed testimony Mr. Smith had presented at Defendant’s insistence. Point two fails.

Point TV: Exclusion of Certain Expert Testimony

Defendant’s final point claims the trial court erred in sustaining the State’s objection that prevented Defendant from eliciting testimony from Gene Gietzen, a “forensic scientist,” that:

[1.] the shooting could not have occurred the way June said it did;
[2.] a person would have to go 4}⅛ feet from the left of the driver’s door to arrive at an angle where it would have been possible for a weapon to be discharged striking the victim in the neck and the abdomen, which was contrary to June’s statements;
[3.] Gietzen found inconsistencies when comparing June’s statements [with] the crime scene evidence; and
[4.] because the abdominal wound had soot and the neck wound did not, Gietzen believed that the shots were 21 from two different distances, which also was contrary to June’s statementsand testimony.

“Questions as to the admissibility of [proffered] expert testimony in a criminal proceeding are within the sound discretion of the trial court.” State v. Bounds, 716 S.W.2d 458, 460 (Mo.App. E.D.1986). The admissibility of experimental evidence is also within the sound discretion of the trial court. State v. Roberts, 873 S.W.2d 638, 642 (Mo.App. W.D.1994).

Defendant bears the burden of demonstrating that the trial court abused its discretion in refusing to admit such testimony and that Defendant was thereby prejudiced. See Bounds, 716 S.W.2d at 460.

Defense counsel made an offer of proof by having Gietzen testify outside the presence of the jury. In that offer, Gietzen testified that his previous experience included working as a police officer, a crimi-nalist, and as the supervisor of the Springfield Regional Crime Lab. In the course of his career, Gietzen worked in the areas of crime scene investigation; blood, drug, and arson analysis; firearms examinations; identification chemistry; and latent prints. Gietzen testified that Bartlett brought Defendant’s Kia to a meeting with Gietzen and defense counsel at the murder site. Gietzen relied on defense counsel’s determination of the approximate location of the crime as “there were no measurements in the police reports that would pinpoint the location of where [Victim] was found that [they] could use to go back exactly to that scene.” Gietzen propped open the hood of the Kia and measured from the top of the hood to the headlight. He also measured the distance from the radiator cap to both the front and rear of the driver’s door.

Next, Gietzen attempted a “crime scene reconstruction” that, based upon various angles, tried to determine “whether or not a person standing by the driver’s door and outwards from the driver’s door could discharge a firearm striking the victim in the neck and in the abdomen.” He also considered the fact that there were soot marks on Victim’s abdominal wound, but not on his neck wound. Using this information, Gietzen opined that while it would have been possible for the shooter to shoot Victim in both the neck and abdomen while they were standing in one place if the shooter was standing four-and-one-half feet from the driver’s door, a shooting from that distance would not have deposited any soot on the body.

Gietzen also testified that he reviewed a police photo that showed a bullet that had been recovered from an area between Victim’s back and his T-shirt, along with other photos of a lead bullet with copper jacket-ing, including one that was out of focus, recovered during the autopsy. He stated that the bullet jacketing was “rolled back.” In Gietzen’s opinion, the bullet’s condition and the soot on the abdomen indicated that the bullet was fired at close range while Victim was on the ground.

Gietzen testified that he inspected the surface of the ground and considered the pathologist’s report of drag marks on the chest and right side of Victim’s body. Gietzen opined that the marks on Victim’s side were consistent with being dragged by the heels, but horizontal marks on Victim’s chest were not consistent with this. He thought there should be signs of dragging on the upper back, and he did not see those in the photographs he had examined.

The offer of proof also included Giet-zen’s testimony that he observed “Decade” brand cigarettes in police photographs of the crime scene and later in photographs of a Ford Explorer. Deputy Huddleston testified that a Decade brand cigarette pack was found at the crime scene in a ditch on the opposite side of the road. He also testified that a trooper had searched June’s Explorer. June testified that Defendant had her drive him to her trailer in her Explorer.

The State characterized Gietzen’s crime scene reconstruction as simply an opportunity for him to improperly testify that June was not telling the truth about what had occurred. The trial court ruled that Gietzen could testify to the jury about the measurements he had made and that defense counsel could argue in closing that the shooting could not have happened the way June described it. The prosecution objected to Gietzen testifying that Victim was on his back when he was shot in the abdomen because he was not qualified to give such an opinion and he did not test the bullet or perform scientific experiments to substantiate his opinion. After questioning Gietzen about his qualifications and experience, the trial court permitted both sides to ask additional questions before making the following ruling:

THE COURT: I don’t think that he should be able to testify as to what happened here because he doesn’t know, but I think you should be able to testify as to what he’s observed in other cases that look similar to this. I don’t think he can tell from the pictures as to what happened here, but I think he should be entitled to testify as to his experience in wounds like this one. What do you say about that?
[Defense Counsel]: If that’s the Court’s ruling, I’ll accept it.

The foundation for Gietzen’s opinion concerning drag marks on Victim’s body was challenged by the State on the basis that he could not testify that the ground appeared the same on the date of the murder as when he saw it later. The trial court ruled as follows:

[h]e can testify of the effect of dragging on the body. He did not examine the body, he did not examine himself the area where the body was dragged, so I don’t think he could testify about those things. The jury can look at them and they can look at the autopsy results and search their memories and they can remember any damage to the body themselves.

The trial court also ruled that Gietzen could testify, based upon his experience, about how bullets react when shot. The State objected to Gietzen’s testimony that he observed Decade brand cigarettes in photos of June’s Explorer and from a photo near the scene as cumulative. The trial court ruled that Gietzen could testify about his observation of the cigarettes in the photos.

The State argues that Defendant’s offer of proof was insufficient to preserve these matters for our review and that we can only speculate as to the actual testimony that would have been presented.

“An offer of proof must show three things: 1) what the evidence will be; 2) the purpose and object of the evidence; and -3) each fact essential to establishing the admissibility of the evidence.” State v. Tisius, 92 S.W.3d 751, 767 (Mo. banc 2002). The sufficiency of the offer of proof in this case is not critical because Defendant was actually permitted to offer to the jury most of the evidence he complains was excluded. And the trial court properly excluded the remaining portions of Giet-zen’s proposed testimony.

“Evidence of experiments conducted out of court are admissible, within the discretion of the trial court, ‘if it is shown that the experiments were conducted under conditions substantially similar in essential particulars to the conditions prevailing at the time of the occurrence in suit.’ ” Roberts, 873 S.W.2d at 642 (quoting State v. Starr, 676 S.W.2d 311, 314 (Mo.App. S.D.1984)). Gietzen was allowed to testify to the jury that he inspected the Kia after it was brought back to the area near the murder and to discuss photographs he had taken of his work. He testified that he made certain measurements, including the distance from the open hood to the radiator cap; the front of the vehicle to the front of the driver’s door; and the front of the vehicle to the rear of the driver’s door. Gietzen also testified that he “found that outside the door radius, with the door fully opened, would be, four and a half feet would be approximately a little bit beyond that, so the door would open somewhere around four feet[.]” Some of his photographs were admitted as exhibits.

In his testimony to the jury, Gietzen confirmed that he reviewed the autopsy report and photos of Victim’s body insofar as they addressed the bullet found in Victim’s back. Gietzen testified that his experience with similar appearing bullets was “consistent with the bullet being discharged while the victim laid on a hard surface.” He also testified that the bullet “mushroom[ed]” as expected with a hollow-point bullet. The jury also heard Gietzen testify that he went out to the “general area, in the vicinity of where the body was found.” Gietzen testified that he had experience in interpreting drag marks on bodies. He stated that “[i]f a person is drug [sic] by the heels they would have the, the majority of the body weight would be shifted to the shoulder area, upper back, shoulder area, that’s where one would expect to find evidence of drag marks.” Gietzen also testified that he observed packages of Decade brand cigarettes in police photos taken at the crime scene and in June’s Explorer.

Gietzen testified that the soot on the body indicated a shot from close range. Gietzen was not permitted to give the jury his opinion about the significance of soot being present in the abdominal wound but not in the neck wound, but as the State points out, the pathologist who testified addressed this issue and provided the same information Defendant wanted to present through Gietzen — that one wound was a contact wound and one was inflicted from a longer distance. The pathologist testified that the difference in soot “would imply that the gunshot wound # 1 [neck] was farther away, the flesh was farther away from the muzzle of the gun than gunshot wound # 2 [abdomen].” He also agreed with defense counsel that the “belly” shot would have probably been within 12 inches and no more than 18 inches. As a result, the testimony Defendant desired was presented to the jury, with the exception of an opinion from Gietzen that June was lying.

“[T]he general rule is that expert testimony is inadmissible if it relates to the credibility. of witnesses because it invades the province of the jury.” State v. Link, 25 S.W.3d 136, 143 (Mo. banc 2000). A witness may “testify to specific facts that discredit the testimony of another witness, as long as the witness does not comment directly on the truthfulness of another witness.” Id. “[A]n expert witness may testify that he disagrees with the scientific conclusions reached by another expert witness.” Id. at 144. In this situation, “the experts are merely disagreeing over the proper scientific conclusion which should be accorded a set of facts.” Stone v. City of Columbia, 885 S.W.2d 744, 747 (Mo.App. W.D.1994).

Defendant wanted Gietzen to testify that he, an expert, had determined that June was lying about the shooting. Such testimony would have been improper as invading the province of the jury to determine June’s credibility. See Link, 25 S.W.3d at 143. Thus, the trial court properly excluded any testimony from Gietzen that “the shooting could not have occurred the way June said it did.” It was likewise improper for Gietzen to testify that June’s statements were inconsistent with his own observations. Gietzen did not witness the event in question, and June was not reviewing the evidence as a scientist. The trial court then properly allowed defense counsel to argue to the jury in closing that the shooting couldn’t have happened the way June said it happened.

The trial court did not abuse its discretion concerning the allowable scope of Gietzen’s testimony. Point IV is also denied, and the judgment of the trial court is affirmed.

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

      . Unless otherwise indicated, all statutory references are to RSMo 2000.

      . Because the trial court did not specify whether the sentences were to run concurrently or consecutively, they are presumed to run concurrently under section 558.026.1. See also State ex. rel Zinna v. Steele, 301 S.W.3d 510, 515 (Mo. banc 2010) (Rule 29.09 embodies the policy of section 558.026.1 so that sentences run concurrent if a consecutive sentence is not orally pronounced by the trial court). Unless otherwise noted, all rule references are to Missouri Court Rules (2010).

      . As Ms. Hitchcock has the same last name as Defendant, she will be referred to by her first name for purposes of clarity. No disrespect or familiarity is intended.

      . The Taylor Court also found that ''[t]he state’s argument that defendant's mention of the assault in opening statement resulted in a waiver of any complaint about the evidence of the unrelated crime is without merit. An opening statement does not constitute evidence.” Id. After Taylor, the Missouri Supreme Court stated that "a defendant's opening statement can open the door to evidence of a prior crime.” State v. Rutter, 93 S.W.3d 714, 727 (Mo. banc 2002). "When evidence is inadmissible because it is not relevant, it can nevertheless become admissible because a party has opened the door to it with a theory presented in an opening statement.” Id. Thus, a theory presented in defendant’s opening can cause otherwise irrelevant evidence to become relevant and admissible. Id. "When a defendant injects an issue into a case, the state may offer[ ] otherwise inadmissible evidence in order to explain or counteract a negative inference raised by the issue.” State v. Bolds, 11 S.W.3d 633, 639 (Mo.App. E.D.1999). As noted above, defense counsel addressed June’s delay in reporting the murder in his opening statement. We are not inclined to find that Defendant opened the door by his initial statement because the prosecutor had already stated in his opening that June "was abused, she [sic] dominated by him, she was controlled. When they divorced in 1996 it was so bad she had to move to Arkansas to get away from the guy.” However, Defendant voiced no objection when the State made the references in its opening statement.

      . See State v. Coutee, 879 S.W.2d 762, 768 (Mo.App. S.D.1994) (prior misconduct of defendant admissible, in part, to explain witness’ delay in calling police); but see State v. Pennington, 24 S.W.3d 185, 191 (Mo.App. W.D.2000) (other crimes evidence not admissible to explain witness’ actions in blocking defendant's car). The evidence was especially probative here because Defendant used June's reporting delay to attack her credibility.


author: PER CURIAM.

text:
    Michelle SHOULTS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94595.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 18, 2011.
    Emmett D. Queener, Columbia, MO, for appellant.
    Chris Koster, Richard A. Starnes, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Michelle Shoults appeals from the judgment denying her Rule 24.035 motion without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court’s denial of post-conviction relief was not clearly erroneous. Rule 24.035(h), (k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties, for their use only. We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. R.Crim. P.2010, unless otherwise indicated.


author: KENNETH M. ROMINES, J.

text:
    Sandra J. HUTSON (Buhl), Appellant, v. Richard C. BUHL, Respondent.
    No. ED 94028.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 18, 2011.

      Terry Rottler, Ste. Genevieve, MO, for appellant.
    Lawrence G. Gillespie, Clayton, MO, for respondent.
   KENNETH M. ROMINES, J.

Background and Procedural History

Appellant Sandra J. Hutson (Wife) and Respondent Richard C. Buhl (Husband) were granted a dissolution of marriage on 9 November 1989. At the time of the divorce the couple had two children— M.C.B., born 14 April 1986; and K.M.B., born 22 December 1988. In the decree, Husband was ordered to maintain medical insurance for both children and pay one-half of all uninsured medical expenses.

In 1996, both Husband and Wife filed Motions to Modify child support and custody. The court denied Husband’s motion to transfer custody but granted Wife’s motion to increase child support payments. The original decree remained in effect as to all other provisions.

On 7 November 2003, Wife filed a Motion for Contempt for Husband’s failure to pay child support, maintain insurance for the children and pay his portion of the uninsured medical costs. In its 4 March 2004 Judgment, the court found Husband delinquent in payment of $3,423.41 for uncovered medical expenses and held him in contempt for unpaid child support in the amount of $25,190.03.

On 15 December 2004, Husband’s obligation to pay support for M.C.B. was terminated as she had entered active military duty. On 24 July 2006, Husband filed a Motion to Modify his child support obligation retroactive to 14 April 2004 due to M.C.B.’s emancipation. On 31 August 2006, Wife filed a Motion to Revive Judgment for child support and other non-child support obligations. An Order for Revival of Judgment was granted on 13 November 2006.

On 19 February 2009, Wife filed another Motion for Contempt against Husband, again for non-payment of child support and medical care. Wife also asked for associated legal expenses. On 28 October 2009, the court found that husband was still delinquent for insurance premiums and medical costs in the amount of $3,423.41 from the March 2004 judgment, that Wife had incurred an additional $10,528 for insurance premiums and uncovered medical expenses since 2004, and that Husband had failed to pay $1,500 as ordered in the original decree. The court ordered Husband to pay $3,423.41 for the March 2004 judgment, $1,500 for the original decree, $5,264 (one-half of the insur-anee premiums and uncovered medical expenses incurred since 2004) and $782.36 for past due child support as of 81 August 2009. The court also lowered Husband’s child support obligation, retroactive to 1 January 2005. The court denied Wife’s request for attorney’s fees. Both Husband and Wife filed Motions to Reconsider which were denied. Wife appeals.

Standard of Review

The standard of review in divorce proceedings is the same as in any other court-tried case. Foraker v. Foraker, 133 S.W.3d 84, 92 (Mo.App. W.D.2004). The trial court’s judgment should be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). If there is conflicting evidence this Court will defer to the determinations of the trial court. Burney v. McLaughlin, 63 S.W.3d 223, 228 (Mo.App. S.D.2001). However, when the facts are not disputed or the evidence is not in conflict, there is no deference to the trial court’s judgment. Id.

Discussion

In her first point on appeal, Wife claims that the trial court erred in the method it used to calculate the amount of reimbursement for medical expenses. The original divorce decree called for Husband to pay all of the insurance premiums and half of uncovered medical costs. In its judgment, the trial court lumped together the amounts Wife had paid for insurance premiums and uncovered medical expenses for the children and divided the total by two.

The trial court’s judgment essentially resulted in an improper modification of the original decree in that Husband would only pay half of the insurance premiums. When a court modifies child support obligations it must include the reasons for the modification in the record. Willcockson v. Willcockson, 924 S.W.2d 57, 58 (Mo.App. W.D.1996). Failure to do so is reversible error. Id. However, the court did not claim to be making a modification to this portion of the decree. Instead, it stated it was simply enforcing the original decree. But by failing to apportion the premiums and the uncovered medical expenses according to unmodified terms the trial court erroneously enforced the decree.

Husband argues, and the trial court agreed, that when insurance premiums go unpaid they become uninsured medical expenses that should be reimbursed at that rate. However, there is no case law to support this interpretation. Husband relies on Forde v. Forde for the proposition that it is allowable to classify delinquent insurance premiums as uncovered medical expenses. Like in this case, in the divorce decree at issue in Forde, Husband was ordered to pay all of the insurance premiums and half of the uncovered medical expenses for his children. Forde v. Forde, 190 S.W.3d 521, 524 (Mo.App. E.D.2006). While the trial court in that case indeed awarded Wife reimbursement for only half of the money spent by her on insurance premiums, that was not the issue on appeal and the Court passed no judgment on the correctness of that decision. The issue raised on appeal was a procedural rather than substantive one. Id. at 529. The case does not bolster Husband’s position.

To interpret the decree in the way advocated by Husband would be contrary to the governing rules of construction. Judgments are to be construed using the same rules of construction as written instruments. Dover v. Dover, 930 S.W.2d 491, 495 (Mo.App. W.D.1996). When the language used in the judgment is plain and unambiguous, it should be given its literal meaning. Id. The provision in the divorce decree relating to medical expenses is unambiguous. The decree is very specific that Husband is to pay the total amount of insurance premiums. The court’s erroneous enforcement is reversible error.

Alternatively, Husband argues that Wife’s claims are barred by the ten-year limit on revival of judgments under Rule 74.09. Husband’s argument fails for two reasons. First, he failed to raise this defense at trial. Objections to revival based on Rule 74.09 and Section 516.350 must be presented at the date set for showing cause why judgment should not be revived. Cornett v. Williams, 908 S.W.2d 872, 874 (Mo.App. W.D.1995). Husband raised this limitation defense for the first time on appeal. Second, the judgments against him (medical expenses dating back to the 1989 divorce) had been revived. Although each periodic payment is presumed to have been paid after ten years from the date the payment is due, a judgment can be revived by personal service on the defendant before the expiration of the ten-year time period. Section 516.350.2. It is not a strict requirement that a motion be titled “Motion to Revive Judgment” in order to revive judgment under Section 516.350, but rather that one parent be given notice through personal service that the other parent still intends to enforce the decree. See DeMoranville v. Tetreault, 654 S.W.2d 71, 73 (Mo. banc 1983). As such, the payments dating back to the original 1989 decree were first revived in 1996 by Husband and Wife’s cross Motions to Modify. They were revived again in 2003 by Wife’s “Motion for Contempt,” granted on 4 March 2004; Wife’s “Motion to Revive Judgment,” granted on 13 November 2006; and finally with Wife’s “Motion for Contempt,” granted on 28 October 2009.

Finally, Husband claims that wife has attempted to improperly split her cause of action for medical expenses dating back to the original decree because she requested them in both her 2003 and 2009 Motions for Contempt but not in her 2004 Motion to Revive. Rather than splitting her claim, Wife simply continued to assert her right, thereby retaining that right through revival, to amounts that remain unpaid. Indeed, in its October 2009 judgment, the trial court specifically delineated between those expenses that were still unpaid from the 2004 judgment and those expenses incurred since that time. Wife was not seeking to relitigate the 2004 judgment but rather to have that judgment enforced. Furthermore, in ongoing litigation like this where obligor persistently fails to pay his obligations, the obligee need not plead every possible amount owed in every motion she files. It is enough if she revives the judgment every ten years. As such, there was no improper splitting of causes.

As it is unclear from the record on appeal which expenses were premiums and which were uninsured medical expenses, the case will be remanded to the trial court for a calculation of these amounts.

In her second point on appeal, Wife claims that the trial court erred in the amount it awarded her for medical expenses. It is unclear exactly how this point differs from the first point, but it appears Wife is claiming that the trial court inappropriately excluded expenses for M.C.B.’s medical treatment at Cottonwood Residential Treatment Center, incurred before emancipation but paid for after. As support of minor children is a continuing obligation, Husband was responsible for expenses incurred before daughter’s emancipation, regardless of when the expenses were fully paid. See In Interest of T.G., 965 S.W.2d 326, 335 (Mo. App. W.D.1998). Since the judgment in the instant case did not apportion out which distinct expenses were included in its lump award, it is impossible for this Court to review this point.

In her third point on appeal, Wife claims she was entitled to an award of attorney’s fees under Section 452.355.2, which provides that the court shall order obligor to pay obligee’s reasonable attorney’s fees if the court finds that obligor has failed to comply with a child support order without good cause. Wife argues that absent an explicit finding by the court of good cause as to why Husband failed to comply with child support order, an award of attorney’s fees is mandatory, not discretionary.

In cases for failure to pay child support, a court is not required to award the prevailing party reasonable attorney’s fees absent a showing by the obligee and a finding by the court of lack of good cause on the part of the obligor to pay the support. Morgan v. McBee, 174 S.W.3d 640, 645 (Mo.App. W.D.2005). However, that finding can be inferred from the court’s judgment. Poppe v. Poppe, 866 S.W.2d 186, 189 (Mo.App. W.D.1993). If the trial court in this case had simply denied Wife attorney’s fees without explanation, we could infer that it found good cause for Husband’s failure to pay and affirm the denial. That was not the case here.

In its judgment, the court stated that it was denying Wife’s request for attorney’s fees for failure to present evidence as to the parties’ financial resources: “That inasmuch as no evidence was submitted as to the financial resources of the parties, the Court denies Petitioner’s request for attorney’s fees ...” The requesting party is not required to present such evidence under the applicable subsection of the statute. Id. It appears the trial court was basing its judgment on subsection 1 of the statute, the subsection pertaining to attorney’s fees in dissolution cases. Section 452.355.1. This subsection requires the court to consider the financial resources of each party before awarding attorney’s fees. Subsection 2, pertaining to cases for past due support, does not contain a parallel requirement. As the trial court erroneously applied the law, the case should be remanded for a decision based on the correct subsection of the statute.

Husband argues that Wife’s claim for attorney’s fees was abandoned because it was not included in her Motion for Reconsideration, Amendment or Rehearing. Husband’s contention is incorrect. In cases tried without a jury, neither a motion for a new trial nor a motion to amend is required to preserve an issue for appeal. Rule 78.07. Wife asked for attorney’s fees in her Motion for Contempt and presented unobjected to evidence on this issue at trial. This was enough to preserve the issue for review. Vaughn v. Willard, 37 S.W.3d 413, 416 (Mo.App. S.D.2001). The case is remanded to the trial court for a calculation of these fees.

Conclusion

We reverse in part and affirm in part. The trial court failed to properly enforce unmodified portions of the original divorce decree and failed to apply the appropriate subsection pertaining to the award of attorney’s fees. The case is remanded to the trial court to determine the amount paid by Wife for medical premiums and uninsured medical expenses. Husband shall be ordered to pay the total balance for the premiums and one-half the total for uninsured medical expenses. The court shall apply Section 452.355.2 to determine an award of reasonable attorney’s fees for Wife.

ROY L. RICHTER, C.J. and KATHIANNE KNAUP CRANE, J., concur.

      . All statutory references are to RSMo (2008). RSMo 516.350 is the statute governing the presumption of payment and revival of decrees awarding child support.


text:
    Chad KRAEMER, Respondent, v. QUALITY HEATING & AIR CONDITIONING, INC., Appellant, and Division of Employment Security, Respondent.
    No. ED 94885.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 18, 2011.
    Michael J. Bobroff, St. Louis, MO, for appellant.
    Ninion S. Riley, Michael Pritchett, Jefferson City, MO, for respondent DES.

      Jeffrey E. Hartnett, St. Louis, MO, for respondent Chad Kraemer.
   KENNETH M. ROMINES, J.

Background and Procedural History

Respondent Chad Kraemer (Kraemer) was employed by Appellant Quality Heating & Air Conditioning, Inc. (Quality) as a pipe fitter foreman. On the morning of 26 June 2009, Quality’s president informed Kraemer that he would be coming to the job site later that day to discharge a member of Kraemer’s crew, Chad Huff. The president arrived later with the company’s vice president and terminated Mr. Huff. Offended by Mr. Huffs dischai-ge, Kraemer spoke with Quality’s vice president just after the firing and told him he no longer wanted to be foreman. The vice president responded “That’s okay. You’re done here, too,” and demanded Kraemer surrender the keys to his company truck and cell phone.

Kraemer filed a claim for unemployment benefits on 30 June 2009. A Division deputy determined that Kraemer was disqualified from receiving benefits because he left his job voluntarily without good cause attributable to his work. Kraemer appealed that decision. After a hearing, the Appeals Tribunal affirmed the deputy’s decision. Kraemer then appealed to the Labor and Industrial Relations Commission (Commission), which reversed the denial of benefits, finding that Kraemer was entitled to unemployment benefits because he was discharged for reasons other than misconduct. Quality now appeals the decision of the Commission. We affirm the Commission’s decision.

Standard of Review

On review, this Court may modify, reverse, remand for rehearing, or set aside the decision of the Commission if: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the making of the decision. Section 288.210. The Commission’s findings of fact are conclusive and jurisdiction of the appellate court is limited to questions of law. Id. The Commission’s decision should not be overturned unless it is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).

Discussion

This case turns on whether Kraemer left work voluntarily or not. If he left work voluntarily, he is not entitled to unemployment benefits. Section 288.050.1. If he was discharged for reasons other than misconduct, he may be entitled to benefits. Miller v. Kansas City Station Corp., 996 S.W.2d 120, 124 (Mo.App. W.D.1999). Appellant claims Kraemer voluntarily quit all employment with Quality when he informed the vice president he no longer wanted to be foreman. The Division determined that by that statement Kraemer was resigning only the foreman position but was not resigning his employment entirely. It concluded that Quality discharged Kraemer when the vice president told him “You’re done here, too,” and made him surrender his keys and phone.

The question of whether an employee voluntarily left work or was involuntarily discharged is a factual determination to be made by the Commission. Cotton v. Flik Intern. Corp., 213 S.W.3d 189, 193 (Mo.App. E.D.2007). This is because the issue often comes down to conflicting testimony and the Commission is in a better position to judge witness credibility. See Scrivener Oil Co., Inc. v. Crider, 304 S.W.3d 261, 266-67 (Mo.App. S.D.2010). The Commission specifically recited that Kraemer’s version of events was more credible. It found that the vice president discharged Kraemer when he told him he was “done.” This Court is bound by the Commission’s factual findings and cannot make the contrary finding that Kraemer quit. Cotton, 213 S.W.3d at 193.

Conclusion

The determination of whether an employee quit or was fired is a factual one to be made by the Labor and Industrial Relations Commission. This Court is bound by that decision. The Commission concluded that Kraemer was discharged for reasons other than misconduct and was entitled to unemployment benefits. We affirm.

ROY L. RICHTER, C.J. and KATHIANNE KNAUP CRANE, J. concur.

      . All statutory references are to RSMo (2008).


text:
    Demetrice GOLDSBY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93891.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 18, 2011.
    Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Demetrice Goldsby (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 24.035 motion. Movant contends that the motion court clearly erred in denying his claims for post-conviction relief, after a hearing, because: (1) there was an insufficient factual basis for Movant’s guilty plea to the charge of first-degree child molestation in that the prosecutor failed to state that Movant’s “sexual contact” with T.G. (Victim) was for the purpose of “arousing or gratifying sexual desire of any person”; and (2) Movant’s plea counsel was ineffective in both failing to inform Movant that he would have to complete the Missouri Sex Offender Program (MOSOP) before becoming eligible for parole and advising Movant that he would serve approximately forty-five days in prison because of his credit for time served.

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

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

      . All rule references are to Mo. Sup.Ct. R. (2009).


text:
    Raymond BARRETT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94486.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 18, 2011.
    Maleaner R. Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Raymond Barrett (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying without an evidentiary hearing his Rule 24.035 motion for post-conviction relief. Movant asserts that the motion court clearly erred in denying his claim that plea counsel provided ineffective assistance by failing to request that Movant be screened for eligibility for the long-term drug treatment program under Section 217.362.

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

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


text:
    Melvin E. ANDERSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 72069.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2011.
    Gary E. Brotherton, Columbia, MO, for appellant.
    Chris Roster, Atty. Gen., Shaun Mackel-prang, Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JAMES M. SMART and THOMAS M. NEWTON, Judges.
   ORDER

PER CURIAM.

Melvin Anderson appeals the denial of his Rule 29.15 motion, following his conviction for second-degree murder and distribution of a controlled substance. For reasons explained in a memorandum provided to the parties, we find no error and affirm the judgment denying post-conviction relief.

AFFIRMED. Rule 84.16(b).


author: PER CURIAM:

text:
    Rebecca FRISCH, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 72168.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2011.
    Pamela L. Cone, for Appellant.
    Bart A. Matanic, for Respondent.
    Before Division One: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM:

Rebecca Frisch appeals from the Labor and Industrial Relations Commission Division’s (Commission) decision to affirm and adopt the decision of the Division’s Appeals Tribunal that Frisch was discharged by Heartland Regional Medical Center for misconduct connected with her work. After a thorough review of the record, we conclude that the Commission’s award was supported by sufficient competent evidence.

Judgment affirmed. Rule 84.16(b).


author: DAVID R. FARMER, J.,

text:
    Susan L. BOWMAN, Individually and as Surviving Spouse of Anthony J. Bowman, Deceased and as Next Friend of Joel Bowman, a Minor v. CITY OF MEMPHIS.
    Court of Appeals of Tennessee, at Jackson.
    Jan. 19, 2010 Session.
    Jan. 27, 2010.
    Application for Permission to Appeal Denied by Supreme Court June 17, 2010.
    Ronald D. Krelstein, Germantown, Tennessee, for the appellant, Susan L. Bowman.
    Henry L. Klein, Memphis, Tennessee, for the appellee, City of Memphis.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, P.J., W.S. and J. STEVEN STAFFORD, J., joined.

The trial court dismissed Plaintiffs claim under the Governmental Tort Liability Act for damages arising from alleged malicious harassment under Tennessee Code Annotated §§ 4-21-101 & 701 based on. Plaintiffs failure to allege malicious harassment based on race, color, religion, ancestry or national origin. Plaintiff appeals. We affirm.

The facts relevant to our disposition of this appeal are not disputed. On April 28, 2004, PlaintiffAppellant Susan L. Bowman (Ms. Bowman), acting individually, as surviving spouse of Anthony J. Bowman, and as next of friend of Joel Bowman, a minor, filed a complaint and amended complaint in the Circuit Court for Shelby County pursuant to the Governmental Tort Liability Act (“GTLA”). In her complaint, Ms. Bowman sought damages for loss of spousal and filial consortium pursuant to Tennessee Code Annotated § 20-5-113, and damages for emotional distress and trauma under §§ 4-21-101 & 701.

Ms. Bowman alleged in her complaint that, on May 14, 2003, police officers shot and killed her husband, Dr. Anthony J. Bowman (Dr. Bowman), in the course of responding to her 911 call for assistance. She asserted that she had informed 911 operators that Dr. Bowman was “acting erratically and appeared to be emotionally distraught”; that Dr. Bowman apparently had left the family home; and that Dr. Bowman suffered from and was taking medication for bi-polar disorder. Ms. Bowman further alleged that Dr. Bowman returned to the family home and that, when she and police officers also returned to the home, Dr. Bowman placed a handgun to his head and threatened to kill himself. She asserted that Dr. Bowman ran up and down a flight of stairs and left the home through the front door. Ms. Bowman alleged that Dr. Bowman had the handgun pointed as his head during the incident, that he did not point the gun at anyone else, and that he did not threaten to harm anyone other than himself. She alleged that police officers shot Dr. Bowman multiple times and killed him despite the fact that “though emotionally disturbed, Dr. Bowman was not a threat to anyone else.”

In her complaint, Ms. Bowman asserted that the police officers were acting within the course and scope of their employment, and that the City of Memphis was liable for the officers’ actions under the doctrine of respondeat superior under Tennessee Code Annotated § 4-21-701. Ms. Bowman also alleged that the officers’ use of deadly force was intentional and willful, and asserted Dr. Bowman was deprived of his constitutional rights under Article 1, Sections 7 & 8, of the Tennessee Constitution. She alleged that she and her minor son were within the “zone of danger” when Dr. Bowman was killed, and that they continue to suffer from emotional distress. Ms. Bowman further asserted that police officers conducted an illegal search of her home and Dr. Bowman’s vehicle, and forced her into a police car for questioning. She alleged deprivation of her constitutional rights against unreasonable search and seizure. Ms. Bowman prayed for compensatory and punitive damages for herself and her minor son pursuant to Tennessee Code Annotated §§ 20-5-110 & 113 and § 4-21-701 and pursuant to the GTLA. She also prayed for costs, prejudgment interest, and attorney’s fees.

The City of Memphis (“the City”) answered and moved to dismiss the complaint for failure to state a claim. The City generally denied Ms. Bowman’s claims, asserted that Dr. Bowman posed a threat to others, and further asserted that the actions of the police officers was justified. The City asserted that Ms. Bowman had not 'stated a claim for malicious harassment under Tennessee Code Annotated § 4-21-701 and under the GTLA.

The trial court dismissed Ms. Bowman’s claim for malicious harassment under § 4-21-701 on the grounds that Ms. Bowman had failed to allege conduct motivated by considerations of race, color, ancestry, religion or national origin as required by case law construing the statute. In October 2007, the trial court granted permission for interlocutory appeal to this Court. We denied permission in January 2008. The supreme court also denied review. In April 2008, Ms. Bowman moved to amend her complaint to allege a cause of action under 42 U.S.C. § 1983. It is unclear from the record transmitted to this Court whether the trial court has granted that motion.

In January 2009, the trial court made its order dismissing Ms. Bowman’s claim for malicious harassment final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Ms. Bowman filed a timely notice of appeal to this Court. Oral argument was heard in this matter on January 19, 2010.

Issue Presented

The issue presented for our review, as we slightly re-word it, is whether the trial court erred in granting the City’s motion to dismiss Ms. Bowman’s claim under Tennessee Code Annotated § 4-21-701 on the grounds that Ms. Bowman failed to allege conduct motivated by race, color, religion, ancestry or national origin.

Standard of Review

A Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim tests only the legal sufficiency of the complaint itself. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994). The grounds for such a motion is that the allegations of the complaint, if considered true, are not sufficient to constitute a cause of action as a matter of law. Id. A motion to dismiss should be granted only if it appears that the plaintiff cannot establish any facts in support of the claim that would warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999). We review a trial court’s award of a motion to dismiss de novo, with no presumption of correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997).

Discussion

As Ms. Bowman acknowledges, this Court previously has held that, to establish a claim for malicious harassment under Tennessee Code Annotated § 4-21-701, the plaintiff/victim must demonstrate that the defendant intentionally intimidated the plaintiff from the free exercise of a constitutionally protected right, and that the offending conduct was motivated by the plaintiff/victim’s race, color, religion, ancestry or national origin. Oates v. Chattanooga Pub. Co., 205 S.W.3d 418, 427-28 (Tenn.Ct.App.2006), perm. app. denied (Tenn. Sept. 25, 2006); Levy v. Franks, 159 S.W.3d 66, 80 (Tenn.Ct.App.2004), perin. app. denied (Tenn. Dec. 6, 2004). Ms. Bowman respectfully asserts, however, that Levy and its progeny were wrongly decided. She asserts that the supreme court set forth the elements of a claim for malicious harassment under the statute in Washington v. Robertson County, 29 S.W.3d 466 (Tenn.2000), and that the supreme court did not include conduct motivated by race, color, religion, ancestry or national origin as a requisite element. Ms. Bowman asserts, in short, that Levy was wrongly decided and urges us to overrule it.

We recently addressed this argument in Davidson v. Bredesen, No. M2008-01298-COA-R3-CV, 2009 WL 4059090, at *10-11 (Tenn.Ct.App. Nov.23, 2009). In Davidson, we declined to overrule Levy, and reaffirmed that to establish a claim for malicious harassment under Tennessee Code Annotated § 4-21-701 the plaintiff must demonstrate conduct motivated by race, color, religion, ancestry or national origin. We reaffirm this holding again today.

As the supreme court noted when tracing the history of the statute in Washington, the cause of action for malicious harassment is contained within the Tennessee Human Rights Act (“THRA”). Washington v. Robertson County, 29 S.W.3d 466, 471 (Tenn.2000). As the Washington court observed, the THRA “in general, addresses discrimination based on race, creed, color, religion, sex, gender, or national origin.” Id. (citing Tenn.Code. Ann. § 4-21-101, et. seq. (1998)). The Washington court analyzed the legislative history of the act and concluded that its purpose was to create “a civil remedy for so-called ‘hate crimes’ committed by ethnic and racial supremecist (sic) groups ... in addition to, but separate from, the applicable criminal statutes set forth first in Tenn.Code Ann. § 39-17-313 and then in Tenn.Code Ann. § 39-17-309.” Id. As the Washington court noted, section 39-17-313 as it existed when § 4-21-701 was enacted provided:

It shall be unlawful for any person knowingly to intimidate or harass another person because of that person’s race, color, religion, ancestry origin ...

Id. at 469 (quoting Tenn.Code Ann. § 39-17-313 (1990)).

We again reject the argument that, in Levy, this Court imposed elements on the statutory scheme that were not intended by the General Assembly or that improperly extended the supreme court’s holding in Washington. As we stated in Davidson, the supreme court and the General Assembly have had ample opportunity to reverse or supercede our holding in Levy, and have declined to do so.

Holding

At oral argument of this matter, Ms. Bowman concedes that she cannot in good faith allege that the police officers’ conduct complained of in this case was motivated by considerations of race, color, religion, ancestry or national origin. In light of the foregoing discussion, we affirm dismissal of Ms. Bowman’s claim for malicious harassment under Tennessee Code Annotated §§ 4-21-101 & 701. Costs of this appeal are taxed to the Appellant, Susan L. Bowman, and her surety, for which execution may issue if necessary.