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

text:
    STATE of Missouri, Respondent, v. Rodney A. HAWKINS, Appellant.
    No. SD 29928.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 30, 2010.

      Nancy R. Price, of Springfield, MO, for Appellant.
    Chris Koster, Attorney General, and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

A jury convicted Rodney A. Hawkins (“Appellant”) of sodomy in violation of section 566.060, RSMo Cum.Supp.1992. Appellant was sentenced to fifteen years’ imprisonment. This appeal followed. We affirm the trial court’s judgment.

Factual and Procedural History

On appeal, we review the evidence in the light most favorable to the verdict. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). Employing this standard, the following was adduced at trial.

Appellant’s daughter (“Victim”) was born in 1979. When Victim was seven or eight years old, Appellant took her into his bedroom, removed her pants and underwear, and inserted his finger into her vagina. Appellant then warned Victim not to tell anyone saying no one would believe her, and it was her fault. Victim told no one because she was scared and did not think anyone would believe her. Appellant continued to molest her in his bedroom. When Victim was nine or ten years old, she moved into her own bedroom. Subsequently, Appellant began molesting her in her bedroom and the frequency of this abuse increased. She still did not tell anyone because she was scared, humiliated, and did not think anyone would believe her.

When Victim was eleven or twelve years old, her younger sister began sharing her bedroom, and the sexual abuse temporarily stopped. The abuse resumed when Victim was twelve years old and in the seventh grade. Appellant stopped sexually abusing Victim when she was thirteen or fourteen years old and in the eighth grade. Victim again did not tell anyone because she was scared, humiliated, and it made her feel dirty. Each incident of abuse involved Appellant inserting his fingers into her vagina.

When Victim was seventeen years old, she was admitted for thirty days to Lake-land Regional Hospital (“Lakeland”), a drug rehabilitation and mental health facility. When a Lakeland counselor asked if she had been sexually abused she answered, “No.”

When Victim was twenty-six years old, her younger sister disclosed to Victim that Appellant had “done something to her.” Victim accompanied her sister to a child advocacy center (“CAC”). After her sister had been interviewed, a police officer asked Victim if she believed her sister’s story. Victim told the officer she did believe her sister because the same thing had happened to her. Victim then told the officer more details about how Appellant had abused her.

Appellant’s counsel subpoenaed Victim’s Lakeland medical records (the “records”). After an in camera review, the trial court determined that two statements from the records were relevant and allowed disclosure of that portion of the records containing those statements. The two disclosed records documented Victim’s denial of any prior physical or sexual abuse. The trial court ruled the defense could cross-examine Victim about the two statements she had made at Lakeland. The trial court denied the request of Appellant’s counsel to personally review the records to determine if they contained any additional information he could utilize at trial.

The State filed a “Trial Brief/Motion in Limine” in which it disclosed its intent to elicit information from Victim regarding her initial disclosure to authorities. The trial court ruled the prosecutor could inquire as to how Victim happened to disclose the abuse. The trial court ruled Victim could testify that: (1) she was with another child during an interview at the CAC, (2) she was asked whether she believed the child, and (3) her response was she did believe the child because it had happened to her. The trial court prohibited testimony that the child was a family member or had been placed in the protective custody of Victim.

Victim was the State’s sole witness at trial. She testified Appellant sexually abused her repeatedly when she was younger, as described above. The prosecutor sought and received permission to lead Victim regarding her disclosure to the police officer so her testimony would stay within the boundaries set by the trial court’s ruling. Defense counsel objected to the entire line of questioning on the grounds of “bolstering and ... prior bad acts evidence.” The trial court overruled the objection and granted defense counsel a continuing objection.

Victim testified she was at the CAG with a teenage girl who had made allegations about being molested. The prosecutor proceeded to question Victim about her disclosure:

Q. Were you there with a teenage girl that had made allegations about being molested?
A. Yes.
Q. And was it your understanding that there was an investigation going on?
A. Yes.
Q. And in the course of that was this girl interviewed?
A. Yes.
Q. And at the close of that interview did Officer Jones ask you about whether you believed her or not?
A. Yes.
Q. And how did you respond to that?
A. I told him I did believe her because the same thing had happened to me.
Q. And how did you react emotionally when he asked you that?
A. I broke down and cried.
Q. Were you expecting or planning on talking to an officer about what had happened to you when you went to that child advocacy center that day?
A. No.

Victim testified she did not tell anyone about being molested by Appellant because she was scared of Appellant, she was humiliated, she did not want people to know about it, and it made her feel dirty.

She also testified she was sent to Lake-land after being arrested for “minor in possession [of alcohol],” Appellant bailed her out, and then he beat her up after they got home. She explained Appellant had hit her when she was little and that was part of the reason she was scared of him. The prosecutor asked Victim why she had denied being abused when asked at Lake-land:

Q. Why when you were ask [sic] if you had been sexually abused by the counselor, why did you tell that person no?
A. Well, after I got arrested, and I went home I got beat up. I went in to school the next day and I told them what had happened. And then they sent me home and I had missed the bus that day so I met up with a friend and that’s when I ran away. When they asked that, I was scared, again, embarrassed, still very humiliated. I didn’t want people to know about it, and I still thought it was my fault.
Q. What did you think would happen if you told the counselor that it had happened?
A. Either they would keep me there or send me home and I would get beat up again.

On cross-examination, Victim testified she knew Lakeland was a secure facility. Victim admitted the staff at Lakeland, including her doctor — Dr. David Tro-baugh — asked her if she had been sexually abused:

Q. And you were asked, Have you been sexually abused, right?
A. Yes.
Q. And you were asked, Is your father sexually abusing you?
A. I don’t remember if they put it that way.
Q. And however it was put to you, you looked them dead in the eye and said no?
A. I did tell them no.
Q. Okay. Now, Dr. Trobaugh-And then with the social worker Rutan she also wanted to know about you and interviewed you, right?
A. I don’t remember her name.
Q. Some social worker did?
A. Yes.
Q. She wanted — what they do is the same — the doctors they talk to you get your whole history, right?
A. Yes.
Q. They say to help you. The social worker said the same thing, right, I want to help you, right?
A. Yes.
Q. And she asked, Are you being abused? And she said it in a context of sexual abuse. But she held it open for any kind of abuse. You said no.
A. That is correct.
Q. In this secure facility where records would be kept you said no, right?
A. That is right.

Defense counsel was permitted to cross-examine Victim using one of the records as a prior inconsistent statement. The record revealed Victim told a social worker her mother had hit her with an open hand on the night Victim was arrested on the alcohol charges. Victim acknowledged making that statement and said her mother had hit her. Victim also acknowledged not telling the social worker Appellant had beat her up. Victim said she did not say anything in her direct examination about being hit by her mother because the case being tried was not about her mother.

During a break in the testimony, Appellant’s counsel asked the trial court for leave to review the Lakeland records to see if the records included any physical examinations that would show either signs of a beating or the lack thereof. Appellant’s counsel requested ten minutes to conduct that review. The trial court granted his request. Appellant’s counsel informed the trial court he found a record of a physical examination, but because there was no indication of when it was conducted, he conceded he would not be able to use that information. Appellant’s counsel also requested use of records showing Victim had been diagnosed with major depression and prescribed Lithium to counter Victim’s testimony she had not been diagnosed with a mental illness. Appellant’s counsel was permitted to inquire into Victim’s depression diagnosis, but was not permitted to use the records to show she was prescribed Lithium. Counsel asked Victim on re-cross if she had been diagnosed with major depression at Lakeland. Victim replied she was not sure; she volunteered she had been put on anti-depressants while there but she was not sure of her diagnosis.

Appellant did not testify or present any evidence.

The prosecuting attorney’s closing argument included multiple references that Victim’s evidence was the only or the un-contradicted evidence in the case. By way of example, his remarks included:

And that [Appellant] touched [Victim’s] genitals with his hands. That is the evidence in this case Ladies and Gentlemen. That is the only evidence in this case.
And this case is about a 12-year-old girl starting to junior high she is old enough she knows these things are wrong, it keeps happening past her birthday in March of 1992 up until 1993 it happens again and again. She is humiliated. She is ashamed. And she doesn’t want anyone to know. And that is uncontradicted. That is the evidence in this case.

(Emphasis added). No objections were made during the prosecutor’s closing argument.

Prior to submitting the case to the jury, the trial court found beyond a reasonable doubt that Appellant was a prior felony offender. The jury found Appellant guilty of sodomy.

On June 26, 2009, the trial court sentenced Appellant to fifteen years in prison. This appeal follows.

Appellant’s first two points allege the trial court erred in prohibiting disclosure to Appellant of Victim’s Lakeland records because it denied Appellant: (1) meaningful discovery of relevant and material evidence; and (2) his right to meaningfully confront and cross-examine the sole witness against him. Next, Appellant contends the trial court erred in allowing Victim to testify to the circumstances surrounding her initial disclosure of abuse because it strongly implied Appellant committed an uncharged crime against another victim. Appellant’s Point IV alleges plain error in allowing the State to repeatedly argue during closing argument that the evidence was uncontroverted because it violated Appellant’s right against self-incrimination. Finally, Appellant contends the verdict is unsupported by sufficient evidence in that Victim’s testimony required corroboration.

In response, the State contends the trial court did not err because: (1) there was no abuse of discretion in not disclosing all of Victim’s records; (2) evidence of Victim’s initial disclosure did not specifically associate Appellant with an uncharged crime; (3) the prosecutor’s argument that there was no evidence contradicting Victim’s testimony did not impermissibly comment on Appellant’s decision not to testify; and (4) the verdict is supported by sufficient evidence and the corroboration rule does not apply.

The issues presented for determination here are:

1. Did the failure to permit Appellant complete access to Victim’s Lake-land records deny Appellant meaningful discovery?
2. Was the scope of Appellant’s cross-examination unduly limited as to prevent meaningful cross-examination?
3. Did Victim’s testimony clearly associate Appellant with molesting the unidentified teenage girl?
4. Were the prosecutor’s remarks in closing argument prohibited direct or indirect comment on Appellant’s failure to testify?
5. Was Victim’s testimony inconsistent and contradictory as to invoke application of the corroboration rule?

Points I and II: Appellant Received Meaningful Discovery and Cross-Examination

Appellant’s first point alleges error in prohibiting disclosure of Victim’s Lakeland records, and the second point contends this prohibition unduly limited the scope of Appellant’s cross-examination. The State contends the trial court did not abuse its discretion because: (1) Appellant had the opportunity to review the records during trial and did not request to use the records identified in the brief; (2) the records do not go to the primary issue in the case; and (3) Appellant was not prejudiced because the records contained only cumulative impeachment evidence.

Because Points I and II are interrelated, we address them together. We determine whether the failure to permit complete access to Victim’s records denied Appellant meaningful discovery, and whether limitations in the scope of Appellant’s cross-examination prevented meaningful cross-examination.

Standard of Review

Claims that a trial court denied meaningful discovery are reviewed under the abuse of discretion standard. State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004). Abuse of discretion only occurs if a “ ‘ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ ” Id. (quoting In re Care and Treatment of Spencer, 123 S.W.3d 166, 168 (Mo. banc 2003)). “‘If reasonable persons can differ as to the propriety of the trial court’s action, then it cannot be said that the trial court abused its discretion.’ ” Id. (quoting Spencer, 123 S.W.3d at 168).

Similarly, the trial court has broad discretion in determining the permissible scope of cross-examination. State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001). Cross-examination is used to test the accuracy, veracity, and credibility of a witness, and is not necessarily limited to those issues that tend to prove the issues at trial. State v. Gardner, 8 S.W.3d 66, 72 (Mo. banc 1999). “However, trial judges are permitted wide latitude to impose reasonable limits on cross-examination to address concerns of prejudice, confusion of the issues, and questioning that is only marginally relevant.” State v. DeClue, 128 S.W.3d 864, 872 (Mo.App. S.D.2004). We review for prejudice and not mere error; and will affirm the trial court’s ruling unless it was so prejudicial as to deprive defendant of a fair trial. Id.

Analysis

When reviewing a claim that a defendant was denied meaningful discovery, this Court determines whether the trial court abused its discretion in such a way as to result in fundamental unfairness. Taylor, 134 S.W.3d at 26. In the context of a discovery dispute, “ ‘[fundamental unfairness occurs when the state’s failure to disclose results in defendant’s genuine surprise and the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the evidence.’ ” Id. (quoting State v. Tisius, 92 S.W.3d 751, 762 (Mo. banc 2002)). A “ ‘defendant is not entitled to information on the mere possibility that it might be helpful, but must make ‘some plausible showing’ how the information would have been material and favorable.’” Id. (quoting State v. Goodwin, 65 S.W.3d 17, 21 (Mo.App. S.D.2001)).

To protect privileged material and a defendant’s need for evidence, the United States Supreme Court established that the “trial court should conduct an in camera inspection of the evidence, and determine if it is relevant and material.” State v. Newton, 925 S.W.2d 468, 471 (Mo.App. E.D.1996) (citing U.S. v. Nixon, 418 U.S. 683, 714-15, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). A defendant’s due process rights are not violated by an in camera review and a denial of disclosure if no relevant information is contained therein. State v. Koenig, 115 S.W.3d 408, 415 (Mo.App. S.D.2008). Relevant evidence tends to confirm or refute a fact in issue, or corroborate evidence that is relevant and pertains to the primary issue in the case. State v. Freeman, 212 S.W.3d 173, 176 (Mo.App. S.D.2007). In the context of the discovery issue presented here, “ ‘[e]vi-dence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.’ ” State ex rel. White v. Gray, 141 S.W.3d 460, 464 (Mo.App. W.D.2004) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)).

“A fundamental interest secured by the confrontation clause is a defendant’s right of cross-examination.” State v. Moorehead, 811 S.W.2d 425, 427 (Mo.App. E.D.1991). “This right of confrontation encompasses the right to cross-examine a witness to determine the accuracy of his/her testimony.” Id. However, a defendant’s right to cross-examine his accuser is not without limitation. DeClue, 128 S.W.3d 864 at 872. “The opportunity for effective cross-examination does not necessarily include ‘cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Id. (quoting State v. Guinn, 58 S.W.3d 538, 547 (Mo.App. W.D.2001)). “The right to confront is satisfied if defense counsel has wide latitude at trial to cross-examine witnesses; it does not include a right to pretrial disclosure of any and all information that might assist cross-examination.” State v. Taylor, 944 S.W.2d 925, 931 (Mo. banc 1997).

Here, Appellant specifically alleges error with the failure to disclose portions of the records containing prior inconsistent statements by Victim regarding her motives for making claims against Appellant, her fear of Appellant, which parent had struck her, and that no abuse occurred. After an in camera review of Victim’s records, the trial court allowed disclosure of two portions of the records memorializing Victim’s denial of prior physical or sexual abuse. The trial court did not find any additional records Appellant sought to be relevant. Appellant does not dispute that the records he sought to introduce were protected from disclosure by the physician-client privilege and counselor-client privilege; rather, Appellant contends the privilege must yield to protect his due process right and his Sixth Amendment right to confront the witnesses against him. We disagree.

Appellant makes clear he sought the additional records for information that might reveal prior inconsistent statements or other matters bearing on Victim’s credibility. However, Appellant was able to impeach Victim on all of her prior inconsistent statements Appellant cites in his brief without the additional records.

For example, from the disclosed records and Victim’s testimony, Appellant was able to impeach the witness by showing she made inconsistent statements to mental health professionals while at Lakeland, and specifically made inconsistent statements about being physically and sexually abused by Appellant. Appellant’s counsel was permitted to use a record where Victim reported being hit by her mother as a prior inconsistent statement to cross-examine Victim about the truthfulness of the allegation that Appellant had beat her. Victim admitted on cross-examination she made an inconsistent statement to the social worker regarding her Father’s physical abuse and, in fact, Appellant’s counsel secured Victim’s admission that she lied:

Q. All right. But you didn’t tell the social worker anything about your father beating you up?
A. No.
Q. So at this time where we can go back and look at records and things like that. Your story is that the reason why we don’t have any record of this more than 12-year-old event is that you lied to the social worker?
A. Yes, I did.
Q. And you lied to the psychologist or psychiatrist, right?
A. Yes.

Appellant’s counsel also extensively cross-examined Victim about the fact that Lakeland was a secure facility and there would have been no reason why fear of Appellant would have prevented her from disclosing her abuse; Victim admitted she made inconsistent statements about Appellant to the mental health professionals despite being in a secure facility. Furthermore, he cross-examined Victim about the fact that at age nineteen she moved into a house next door to Appellant and lived there until she was twenty-three years old.

Victim admitted to previously making inconsistent statements about Appellant’s physical and sexual abuse and the situation in her household to Lakeland mental health professionals. Therefore, further use of the Lakeland records would have been cumulative impeachment. Since the Appellant was able to obtain information about additional prior inconsistent statements contained in the records directly from Victim, Victim’s statements contained in the records are not material. See State v. Belcher, 856 S.W.2d 113, 117 (Mo.App. E.D.1993); Moorehead, 811 S.W.2d at 428. Accordingly, Appellant’s due process rights were not violated by failing to disclose the additional records. “The State’s compelling interest in confidentiality overrides Defendant’s ‘need’ to discover cumulative evidence.” Koenig, 115 S.W.3d at 415. Appellant’s counsel was more than effective in demonstrating Victim’s inconsistent statements to the jury. The jury was free to believe all, part, or none of Victim’s testimony. State v. Hagensieker, 299 S.W.3d 302, 305 (Mo.App. S.D.2009).

Moreover, Appellant’s point ignores the fact the trial court granted Appellant’s counsel’s request to review the records in question during the trial. After reviewing the records, Appellant did not request to use the additional records that Appellant identifies in his brief. Appellant was subsequently permitted to inquire into Victim’s diagnosis for depression. He initially requested to address other specific information in the records, but subsequently withdrew this request. Appellant cannot claim error when he was granted the relief he requested. State v. Wright, 216 S.W.3d 196, 198 (Mo.App. S.D.2007).

We additionally recognize Appellant erroneously contends the trial court limited cross-examination of Victim “solely to her failure to claim abuse while at Lake-land.” While restrictions were placed upon disclosure of the Lakeland records, Appellant was not precluded from cross-examining Victim about her potential motives for making claims of sexual abuse against Appellant. In support, Appellant merely cites to cumulative impeachment evidence from the records that were not disclosed, and fails to direct us to instances where the trial court restricted cross-examination of Victim during trial that was not cumulative evidence or prevented him from demonstrating Victim’s potential motives. A claim of error in not permitting cross-examination is not preserved if the defendant did not attempt cross-examination at trial or did not make an offer of proof about the contents of the proposed cross-examination. State v. Raines, 118 5.W.3d 205, 211 (Mo.App. W.D.2003).

Appellant’s right to confront was also satisfied because he was given wide latitude to cross-examine Victim at trial on her motives, bias, and partiality. Signifí-cantly, the right to confront does not include a right to pretrial disclosure of any and all information that might assist cross-examination. Taylor, 944 S.W.2d at 931. Appellant was also able to effectively cross-examine and impeach Victim on the inconsistencies alleged without additional records. See Moorehead, 811 S.W.2d at 427.

It cannot be said the trial court’s ruling is clearly against the logic of the circumstances then before the trial court, and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Thus, the failure to permit Appellant complete access to Victim’s records did not deny Appellant meaningful discovery; and, the scope of Appellant’s cross-examination was not unduly limited as to prevent meaningful cross-examination. Points I and II are denied.

Point III: No Evidence of Prior Bad Acts

Appellant next contends the trial court erred in permitting Victim to testify she told a police officer investigating abuse of another teenage girl, “[t]he same thing happened to me,” because it strongly implied Appellant committed another uncharged sexual act against the teenage girl. The State argues evidence of Victim’s disclosure of abuse to a police officer did not specifically associate Appellant with an uncharged crime. Here, the issue is whether Victim’s testimony showed clear evidence associating Appellant with molesting the unidentified teenage girl.

Standard of Review

We review the trial court’s ruling on admissibility of evidence for abuse of discretion. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006).

Analysis

A criminal defendant has a right to be tried only for the offense for which he is charged. State v. Tyra, 153 S.W.3d 341, 347 (Mo.App. S.D.2005). The general rule is that evidence of prior uncharged misconduct is not admissible for the purpose of showing the propensity of the defendant to commit such crimes. Id. However, proffered evidence only runs afoul of that rule “ ‘if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes.’ ” Id. (quoting State v. Wallace, 952 S.W.2d 395, 397 (Mo.App. W.D.1997)). “ ‘The necessary nexus between the defendant and the uncharged crime does not exist when the defendant’s involvement in the other crime is speculative, when the defendant is not identified as the perpetrator, or when the other crime is attributed to someone other than the defendant.’ ” Tyra, 153 S.W.3d at 347 (quoting State v. Briscoe, 913 S.W.2d 812, 814-15 (Mo.App. W.D.1995)). “It is Appellant’s burden to prove that the challenged testimony constituted evidence of other crimes.” Id.

Here, Appellant has not shown Victim’s testimony identified Appellant as the perpetrator who molested the unidentified teenage girl. The trial court allowed the prosecutor to elicit limited information regarding Victim’s initial disclosure of Appellant’s sexual abuse to a police officer. Victim testified she was at a CAC with a teenage girl who had made molestation allegations. Victim testified that in response to the police officer’s inquiry as to whether she believed the teenage girl, Victim simply responded: “I told him I did believe her because the same thing had happened to me.” Appellant alleges the use of the phrase “the same thing” “clearly stated to the jury that the allegations involving the ‘teenage girl’ were also allegations against [Appellant].”

We find Victim’s testimony only indicative that Victim was also molested; speculation is required to connect the teenage girl’s allegations to Appellant. Victim’s statements cannot be characterized as “clear evidence associating [A]ppellant with other crimes” because her testimony is silent as to the teenage girl’s perpetrator. State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). Salient factors that might link Appellant to the teenage girl’s abuse were intentionally omitted.

Thus, this testimony does not provide the necessary nexus between Appellant and the unidentified girl’s possible perpetrator. Appellant has not met his burden of proving the challenged testimony constituted evidence of other crimes. See Tyra, 153 S.W.3d at 347. Victim’s testimony did not show clear evidence associating Appellant with molesting the unidentified teenage girl. Point III is denied.

Point TV: No Violation of Appellant’s Right against Self-Incrimination

Appellant alleges the trial court committed plain error in allowing the State to argue repeatedly during closing argument that Victim’s testimony was the only evidence and the evidence was uncontrovert-ed because such statements violated Appellant’s right against self-incrimination under the Fifth and Fourteenth Amendments to the U.S. Constitution and art. I, § 19 of the Missouri Constitution. The State responds that the prosecutor’s comments did not impermissibly comment on Appellant’s decision not to testify. Thus, we determine whether the prosecutor’s comments are prohibited direct or indirect comment on Appellant’s failure to testify.

Standard of Review

Appellant concedes the matter was not properly preserved for review because he did not object at trial and thus requests plain error review pursuant to Rule 30.20. Rule 30.20 permits plain error review if we find that the action or inaction at issue resulted in manifest injustice or a miscarriage of justice. State v. White, 291 S.W.3d 354, 358 (Mo.App. S.D.2009).

Plain error review involves a two-step process. White, 291 S.W.3d at 359. In the first step, we determine “whether there is indeed, plain error, which is error that is ‘evident obvious, and clear.’ ” State v. Coker, 210 S.W.3d 374, 385 (Mo.App. S.D.2006) (quoting State v. Roper, 136 S.W.3d 891, 900 (Mo.App. W.D.2004)). Only if this predicate step is satisfied will we then turn to the second step of inquiry to determine whether plain error actually occurred. White, 291 S.W.3d at 359.

“[P]lain error will seldom be found in unobjected closing argument.” State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992). “[A]lleged errors committed in closing argument do not justify relief under the plain error rule unless they are determined to have a decisive effect on the jury.” State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc 1988). “When considering a defendant’s claim of improper comment on his right to remain silent, the appellate court must also consider the comment in the context in which it appears.” State v. Neff, 978 S.W.2d 341, 345 (Mo. banc 1998).

Analysis

“To preserve a defendant’s right not to be forced to incriminate himself, the State is not permitted to comment, directly or indirectly, about a defendant’s failure to testify.” White, 291 S.W.3d at 359. The prosecutor makes a direct reference when using such words as “ ‘defendant,’ ‘accused’ and ‘testify’ or their equivalent.’ ” Id. (quoting Neff, 978 S.W.2d at 344). “An indirect reference is one reasonably apt to direct the jury’s attention to the defendant’s failure to testify.” Id., “An indirect reference ..., however, requires reversal only if the state makes it with ‘a calculated intent to magnify’ the defendant’s decision not to testify so as to call it to the jury’s attention.” State v. Bowles, 23 S.W.3d 775, 782 (Mo.App. W.D.2000) (quoting State v. Richardson, 923 S.W.2d 301, 314 (Mo. banc 1996)).

“Comments indicating the evidence is ‘uncontroverted’ or ‘uncontradict-ed’ are not direct, indirect, or certain references to a defendant’s failure to testify.” State v. Quinn, 871 S.W.2d 80, 81 (Mo.App. E.D.1994). In fact, the prosecutor may comment on the defendant’s failure to offer evidence. Id. Statements that the evidence “ ‘is clear and uncontroverted as to what happened;’ ” “ ‘[t]here is no evidence to the contrary;’ ” and “ ‘[y]ou have been presented with no evidence inconsistent with that[]’” have previously been upheld as constituting neither a direct nor indirect reference to a defendant’s failure to testify. White, 291 S.W.3d at 360 (quoting State v. Burks, 629 S.W.2d 535, 536 (Mo.App. S.D.1981)).

Here, the prosecutor’s closing comments, including: “That is the evidence in this case[J that is the only evidence in this case[] ... and that is uncontradict-ed[J that is the evidence in this case[J” (emphasis added), did not constitute prohibited direct or indirect comments on Appellant’s failure to testify. Each of the statements Appellant complains of are similar in nature to those previously held by this Court not to constitute direct or indirect reference to a defendant’s failure to testify. See White, 291 S.W.3d at 359; Burks, 629 S.W.2d at 536.

Because the comments in the prosecutor’s closing argument were not prohibited direct or indirect comment on Appellant’s failure to testify, Appellant has failed to prove “there is, indeed, plain error, which is error that is ‘evident, obvious, and clear.’ ” Roper, 136 S.W.3d at 900. Any further review for plain error is unnecessary. Point IV is denied.

Point V: Sufficient Evidence Supported the Jury’s Verdict

Finally, Appellant contends the trial court erred in failing to grant his motion for judgment of acquittal because the State failed to present a submissible case in that Victim’s testimony was contradictory and required corroboration. The State argues the jury verdict was supported by sufficient evidence and the corroboration rule does not apply. The issue for determination is whether Victim’s testimony was inconsistent and contradictory as to invoke application of the corroboration rule.

Standard of Review

In reviewing the denial of a motion for acquittal, we determine if the State adduced sufficient evidence to make a submissible case. State v. Davis, 219 S.W.3d 863, 866 (Mo.App. S.D.2007). “ ‘Our standard of review is whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting State v. Wright, 998 S.W.2d 78, 81 (Mo.App. W.D.1999)). In applying this standard, we “must examine the elements of the crime and consider each in turn; reviewing the evidence in the light most favorable to the judgment; disregarding any contrary evidence; and granting the State all reasonable inferences from the evidence.” Davis, 219 S.W.3d at 866. “Credibility of witnesses and the weight and value to be given their testimony are matters within the province of the jury and are not for review on appeal.” State v. Nichols, 20 S.W.3d 594, 597 (Mo.App. S.D.2000).

Analysis

In sexual offense cases, the victim’s uncorroborated testimony alone is generally sufficient to sustain a conviction. State v. Paxton, 140 S.W.3d 226, 229 (Mo.App. S.D.2004). However, the “corroboration rule” is an exception that applies in the particular context of sexual offense cases. Id. at 230. “ ‘Corroboration is mandated only when the victim’s testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is rendered doubtful such that corroboration of the victim’s testimony is required to sustain the conviction.’ ” Id. (quoting State v. Baker, 23 S.W.3d 702, 709 (Mo.App. E.D.2000)). Importantly, the “corroboration rule applies only to inconsistencies within the victim’s trial testimony and does not apply to conflicts between the victim’s trial testimony and the victim’s out-of-court statements”; contradictions between trial testimony and any previous testimony or statements are for the trier of fact to reconcile and to consider when judging the witness’ credibility. Paxton, 140 S.W.3d at 230.

A review of the transcript reveals no inconsistencies in Victim’s trial testimony and Appellant fails to direct this Court to any such inconsistencies. Those inconsistencies set forth by Appellant occur only between Victim’s trial testimony and her out-of-court statements. Appellant points to alleged inconsistencies between statements Victim made to Lakeland mental health professionals when she was seventeen and her trial testimony that asserted Appellant molested and beat her as triggering the corroboration rule. Appellant is misguided in the application of the corroboration rule as it “applies only to inconsistencies within the victim’s trial testimony and does not apply to conflicts between the victim’s trial testimony and the victim’s out-of-court statements.” See Paxton, 140 S.W.3d at 230. Here, discrepancies between Victim’s trial testimony and her pri- or statements were matters for the jury to reconcile and to consider when judging the witnesses credibility. Id. at 231.

Accordingly, Victim’s trial testimony was not inconsistent and contradictory as to invoke application of the corroboration rule. Viewing the evidence in the light most favorable to the judgment, we find sufficient evidence from which a reasonable juror might have found Appellant guilty beyond a reasonable doubt. Appellant’s point V is denied.

The judgment of the trial court is affirmed.

SCOTT, C.J., and BATES, J., Concur.

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

      . Counsel also initially asked to be able to use a record reflecting a second denial by Victim of having been abused, but he later withdrew that request.

      .We note the sealed records were entered as "Court's Exhibit 1” for the purpose of appellate review. Nevertheless, Appellant failed to deposit Exhibit 1 with this Court as required by Rules 81.12(e) and 81.16. When an exhibit is not deposited with this Court, "its intendment and content will be taken as favorable to the trial court's ruling and as unfavorable to the appellant.” State v. Davis, 242 S.W.3d 446, 449 n. 1 (Mo.App. S.D.2007). Because we are unable to review the records, we cannot conclude there was anything more in the records which could change the outcome of the trial.

      .Communications between a client and professional counselor or psychologist are privileged according to section 337.055 and section 337.540. These privileges exist without the physician-patient privilege stipulation that the communications must pertain to treatment in order to be classified as privileged. State v. Lewis, 735 S.W.2d 183, 187 (Mo.App. S.D.1987) (the physician-patient privilege is a fact determination in that only records or statements made to the physician necessary to prescribe treatment are protected).

      . Appellant is also misguided in citing State v. Davis, 186 S.W.3d 367 (Mo.App. W.D.2005), in support of his contention the trial court erred in not disclosing Victim's Lakeland records. In Davis, the issue was not whether the records should have been disclosed, after an in camera review, but whether the defendant made the requisite showing that the material contained relevant or exculpatory evidence to justify an in camera review. See Davis, 186 S.W.3d at 372.

      . This standard is previously recited and need not be repeated here.

      . The trial court prohibited testimony that the teenage girl was a family member and that she had been placed in the protective custody of Victim.

      . The testimony and circumstances in Tyra are factually similar to those in the case at hand. In Tyra, the defendant was accused of sodomizing his step-grandson and a mental health professional testified the victim's mother had remembered “that somebody in the vicinity of their home had a history of sexually abusing people, and that [the victim] had contact with this person on a regular basis.” 153 S.W.3d at 344, 346. The trial court found the testimony contained no clear evidence associating the defendant with other crimes. Id. at 347.

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

      . We additionally note statements made in closing argument "will rarely amount to plain error, and any assertion that the trial court erred for failure to intervene sua sponte overlooks the fact that the absence of an objection by trial counsel may have been strategic in nature.” State v. Cole, 71 S.W.3d 163, 171 (Mo. banc 2002).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    James CLARK, Appellant, v. Dave SCHREIMANN, et al., Respondent.
    No. WD 72497.
    Missouri Court of Appeals, Western District.
    Dec. 30, 2010.
    James R. Clark, appellant pro se.
    Caroline M. Coulter and Stephen D. Hawke, Jefferson City, MO, for respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

James Clark appeals from the trial court’s judgment declaring that Clark is not ineligible for parole, but declining to calculate Clark’s eligibility date for parole. Clark contends that “the trial court erred in entering summary judgment in favor of the Respondents because Respondents violated section 217.690.4 and section 558.019 in calculating the minimum prison term” that Clark must serve before he is eligible for parole consideration. Because the trial court afforded Clark the relief he requested in his petition for declaratory judgment, we affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Ronald D. CHRISTIAN, Appellant.
    No. WD 70718.
    Missouri Court of Appeals, Western District.
    Dec. 30, 2010.
    Susan L. Hogan, Appellate Defender, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

This is a self-incrimination case. The issue is whether, despite an otherwise valid waiver of his rights after having received the Miranda warnings, the defendant was compelled to be a witness against himself by virtue of the police informing him that (1) it would be better for him to tell his side of the story and (2) telling the truth would not hurt him. We hold that the subject statements were not coercive and that therefore the defendant was not compelled to incriminate himself. Accordingly, we affirm. Rule 30.25(b).


text:
    Clyde E. GRIFFIN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71401.
    Missouri Court of Appeals, Western District.
    Dec. 30, 2010.
    Susan E. Summers, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Karen L. Kramer, Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JAMES E. WELSH, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Clyde Griffin appeals the circuit court’s judgment denying his motion for post-conviction relief.

We affirm. Rule 84.16(b). A memorandum setting forth the reasons for this order has been provided to the parties.


text:
    STATE of Missouri, Respondent, v. William W. ELLIOTT, Appellant.
    No. WD 71682.
    Missouri Court of Appeals, Western District.
    Dec. 30, 2010.
    Matthew Ward, for Appellant.
    John M. Reeves, for Respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

William Elliott appeals his conviction following a bench trial of possession of drug paraphernalia with the intent to deliver or sell, section 195.235, RSMo Cum.Supp. 2009, and sentence of two years imprisonment. In his sole point on appeal, he contends that the trial court erred in not dismissing his case for violation of his right to a speedy trial and sentencing him upon his conviction. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The conviction is affirmed. Rule 30.25(b).


text:
    James L. BAKER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71959.
    Missouri Court of Appeals, Western District.
    Dec. 30, 2010.
    Ellen H. Flottman, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Robert J. (Jeff) Bartholomew, Jefferson City, MO, for respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

James Baker appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Baker contends that the motion court erred in denying his motion because: (1) trial counsel incorrectly advised Baker that if he entered a guilty plea to charges of sexual assault and witness tampering he would be eligible for parole after serving a portion of his sentences when, in fact, a conviction for witness tampering renders a defendant parole ineligible, and (2) no adequate factual basis to support his guilty plea to sexual abuse was established. We affirm. Rule 84.16(b).


text:
    In re The Matter of Selena Layana LAUYER-GARCIA by and through her next friend, Tye Clayton GARCIA. Tye Clayton Garcia, Appellant, v. Anna Lauver (n/k/a Koch), Respondent.
    No. WD 71690.
    Missouri Court of Appeals, Western District.
    Dec. 30, 2010.
    Nancy A. Garris, Blue Springs, MO, for Appellant.
    James H. Young, Lee’s Summit, MO, for Respondent.
    Before THOMAS H. NEWTON, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM:

Mr. Tye Clayton Garcia appeals the trial court’s judgment concerning child custody and relocation. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


author: ALOK AHUJA, Judge.

text:
    STATE ex rel. Thomas REDMOND, et al., Appellants, v. STATE of Missouri, et al., Respondents.
    No. WD 70836.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2011.
    Motion for Rehearing and/or Transfer to Supreme Court March 1, 2011.

      Richard W. Miller, Esq., Kansas City, MO, for appellant.
    Robert L. Presson, Esq., Jefferson City, MO, for respondent.
    Before: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and CYNTHIA L. MARTIN, JJ.
   ALOK AHUJA, Judge.

Thomas Redmond and Margaret Redmond appeal from a judgment on the pleadings granted to the defendants on their declaratory judgment, accounting, and mandamus claims. We affirm.

Factual Background

The Redmonds’ petition asserts claims concerning the disposition of monies received under the Master Settlement Agreement that Missouri, as well as forty-five other states and several territories, entered into with the five largest tobacco companies in November 1998. Under the Agreement, the tobacco companies agreed to make certain annual monetary payments, in perpetuity, to the settling states and territories. According to the Red-monds’ petition, the State began receiving its share of proceeds under the Agreement in Fiscal Year (“FY”) 2001, and had received a total of more than $1 billion through the end of FY 2006.

In 2003, the Missouri General Assembly enacted § 196.1100. The statute creates the Life Sciences Research Trust Fund (the “Fund”) in the state treasury, and directs that, beginning in FY 2007 and in perpetuity thereafter, the Treasurer shall deposit 25% of the monies received from the Agreement into the Fund. See § 196.1100.1. The statute also specifies that “[mjoneys in the fund shall not be subject to appropriation for purposes other than those provided in sections 196.1100 to 196.1300 without a majority vote in each house of the general assembly.” Id.

The Redmonds, who are husband and wife, each suffer from illnesses which would or could be the subject of scientific research funded by the Fund. They claim to be direct and intended beneficiaries of § 196.1100 by virtue of their status as Missouri citizens, taxpayers, and residents. The Redmonds allege that, beginning with settlement proceeds attributable to FY 1998, the State deposited substantially less money in the Fund than required by § 196.1100. They also contend that the State has expended Fund monies for purposes, such as plant and animal research, which are not authorized by §§ 196.1100-196.1130.

The Redmonds’ petition names as defendants the State, the Missouri Legislature, and the State Treasurer. The petition asserts three claims. In Count I, captioned “Declaratory Relief,” the Redmonds allege that, under § 196.1100:

moneys received from the Settlement Agreement are to be deposited by the State Treasurer into the Life Sciences Research Trust Fund and are trust moneys which are untouchable and may not be tampered with by the Legislature or the State Treasurer under the law and are to be used solely for and by the Life Sciences Research Trust Fund “to perform research to better serve the health and welfare of the residents of the State of Missouri” and “the moneys in the fund shall not revert to the credit of general revenue.”

Although ostensibly seeking a declaratory judgment, Count I prays for a judgment requiring the State and State Treasurer “to pay to the Life Sciences Research Trust Fund the principal sum of $283,364,-390 plus interest.” In Count II, the Red-monds seek

an accounting by the State Treasurer and the Legislature of their allocations and usage of all the funds generated and received by the State and the State Treasurer under the Master Settlement Agreement with the tobacco companies and the State Treasurer and the Legislature should be ordered to restore, allocate and use all those funds for their intended purpose ... of improving the health of the residents of the State, alleviating the enormous health problems caused by tobacco and implementing programs to prevent tobacco use.

Finally, in Count III the Redmonds seek a writ of mandamus ordering the State Treasurer and legislature to comply with their obligation to deposit 25% of the settlement proceeds into the Fund and, “once an accounting has been rendered, to perform the ministerial duty to restore, allocate and use the funds generated by the Settlement Agreement for their intended purposes.”

After answering, the State filed a Motion for Judgment on the Pleadings, and the Treasurer filed a Motion for Partial Summary Judgment. The circuit court granted the State’s Motion for Judgment on the Pleadings and entered judgment in favor of all defendants on all claims. The court’s judgment found that the suit was barred by sovereign immunity. It also rejected the Redmonds’ argument that § 196.1100 imposed merely “ministerial duties” on the defendants which the court could enforce by mandamus. This appeal follows.

Standard of Review

The entry of judgment on the pleadings is authorized by Rule 55.27(b). “The question presented by a motion for judgment on the pleadings is whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.” RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 424 (Mo.App. S.D.2003). “The well-pleaded facts of the non-moving party’s pleading are treated as admitted for purposes of the motion.” Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007). Because a judgment on the pleadings addresses an issue of law, our review is de novo; we grant no deference to the circuit court’s ruling. Cures Without Cloning v. Pund, 259 S.W.3d 76, 80 (Mo.App. W.D.2008).

Analysis

Section 196.1100 provides:

1. There is hereby established in the state treasury the “Life Sciences Research Trust Fund” to be held separate and apart from all other public moneys and funds of the state.... The state treasurer shall deposit into the fund twenty-five percent of all moneys received from the master settlement agreement, as defined in section 196.1000, beginning in fiscal year 2007 and in perpetuity thereafter. Moneys in the fund shall not be subject to appropriation for purposes other than those provided in sections 196.1100 to 196.1130 without a majority vote in each house of the general assembly. All moneys in the fund shall be used for the purposes of sections 196.1100 to 196.1130 only. Notwithstanding the provisions of section 33.080, RSMo, to the contrary, the moneys in the fund shall not revert to the credit of general revenue at the end of the biennium.
2. Moneys in the life sciences research trust fund shall be used strategically ... to enhance the capacity of the State of Missouri’s ability to perform research to better serve the health and welfare of the residents of the state of Missouri as a center of life sciences research and development by building on the success of research institutions located in Missouri, creating in and attracting to Missouri new research and development institutions, commercializing the life sciences technologies developed by such institutions, and enhancing their capacity to carry out their respective missions.

Section 196.1109 provides that “[a]ll moneys that are appropriated by the general assembly from the life sciences research trust fund shall be appropriated to the life sciences research board to increase the capacity for quality of life sciences research at public and private not-for-profit institutions in the state of Missouri.”

I.

The Redmonds contend, first, that the circuit court erred in determining that their claims are barred by sovereign immunity. They argue that the State waived sovereign immunity by enacting § 196.1100. In making this argument, the Redmonds rely on Crain v. Missouri State Employees’ Retirement System, 613 S.W.2d 912 (Mo.App. W.D.1981), and V.S. Dicarlo Construction Co. v. State, 485 S.W.2d 52 (Mo.1972).

The resolution of the Redmonds’ sovereign immunity arguments is controlled by State ex rel. Kansas City Symphony v. State, 311 S.W.3d 272 (Mo.App. W.D.2010), which involved very similar claims of legislative underfunding of the Missouri Arts Council Trust Fund. The statute at issue in that case, § 143.183.5, stated in relevant part:

For fiscal year 2000, and for each subsequent fiscal year for a period of sixteen years, sixty percent of the annual estimate of taxes generated from the nonresident entertainer and professional athletic team income tax shall be allocated annually to the Missouri arts council trust fund, and shall be transferred from the general revenue fund to the Missouri arts council trust fund established in section 185.100, RSMo....

In Kansas City Symphony the plaintiff-appellant argued, also, in reliance on Crain and Dicarlo, that the State had waived sovereign immunity not only by enacting § 143.183.5, but also because the Arts Fund had entered into an incentive matching agreement with the plaintiff-appellant, promising to match contributions received by the plaintiff-appellant through certain of its fund-raising activities. 311 S.W.3d at 275.

Kansas City Symphony rejected the plaintiff-appellant’s sovereign immunity claims. The Court emphasized that “[a]U waivers of sovereign immunity are to be strictly construed.” Id. at 276. The Court noted that there was no express waiver of sovereign immunity in § 143.183.5, such as that found in the statutory “sue or be sued” clause at issue in Crain. Id. at 275. Next, the Court found that Crain and Dicarlo “involvefd] clear contract principles that do not exist in this case.” Id. at 276. The Court noted that the Kansas City Symphony lawsuit had not been filed against the Arts Fund or its trustees seeking enforcement of the incentive matching agreement, that there was no indication that the legislature — as opposed to the fund’s trustees — had authorized entry into the agreement, and that the agreement itself specified that matching funds were “subject to appropriation.” Id.

The Redmonds’ sovereign immunity arguments are weaker than the plaintiff-appellant’s in Kansas City Symphony. While the mandate requiring transfer of monies to the Fund in § 196.1100.1 is similar to the statutory mandate at issue in Kansas City Symphony, in the earlier case we found that such a statute — -even in conjunction with an incentive -matching agreement which is lacking here — did not rise to the level of a waiver of sovereign immunity. A fortiori, the Redmonds, who can point to no specific agreement with the Fund promising them money from the Fund, cannot claim that § 196.1100.1 creates a contract or benefit enforceable in the courts. Moreover, as in Kansas City Symphony, the Redmonds can point to no express waiver of sovereign immunity like that at issue in Crain. We reject the Redmonds’ sovereign immunity arguments for the same reasons that we rejected the similar arguments in Kansas City Symphony.

The Redmonds argue that the defendants have mandatory duties under §§ 196.1100.1 and 196.1109 to transfer monies to the Fund and appropriate those funds for life sciences research, that those mandatory duties are enforceable through a writ of mandamus, and that a mandamus action is not subject to sovereign immunity. The plaintiff-appellant in Kansas City Symphony made a similar argument. While we acknowledged “that mandamus is an appropriate remedy to compel public officials to perform specific ‘ministerial’ or mandatory duties,” we held that the plaintiff-appellant could not demonstrate such a ministerial duty “[bjecause the transfer of funds under Section 143.183.5 was subject to appropriation.” Kansas City Symphony, 311 S.W.3d at 276. Any legislative obligation to allocate money to the Arts Fund was accordingly discretionary, and mandamus was inappropriate. Id. For reasons discussed in § II, below, we reach the same conclusion here.

II.

The Redmonds argue that § 196.1100.1’s directive that “[t]he state treasurer shall deposit into the fund twenty-five percent of all moneys received from the master settlement agreement,” and § 196.1109’s command that monies appropriated from the Fund “shall be appropriated to the life sciences research board” for specified purposes, established a mandatory duty to deposit a portion of the settlement proceeds into the Fund for use for the purposes enumerated in §§ 196.1100-196.1130, without the need for any further appropriation, and that this mandatory duty is enforceable through a writ of mandamus. Once again, we conclude that Kansas City Symphony requires rejection of the Redmonds’ argument.

As we noted in Kansas City Symphony, the use of the term “shall” in a statute “generally connotes a mandatory duty.” 311 S.W.3d at 277. “Whether the use of the word ‘shall’ in a statute is considered mandatory or directory, however, is primarily a function of context and legislative intent.” Id.

Kansas City Symphony concluded that the “context and legislative intent” of § 143.183.5 established that the legislature had discretion as to allocation of monies to the Arts Fund. The statute at issue in Kansas City Symphony, like § 196.1100.1, appears to state in mandatory and unqualified terms that specific monetary receipts of the State must be transferred into the designated trust fund. Indeed, in Kansas City Symphony the statutory obligation to allocate monies to the fund had been amended in 2003 to delete the qualification that the transfer of funds was “subject to appropriation.” See § 143.183.5, RSMo 2000. The Court recognized that the deletion of this phrase “certainly supports the Symphony’s argument that the Legislature intended that tax revenue be automatically transferred from the general revenue fund to the Arts Trust Fund.” Kansas City Symphony, 311 S.W.3d at 277. Nevertheless, the Court looked to a separate statutory provision, § 185.100.1, which provides that “[sjubject to appropriations, moneys in the fund shall be used solely for the promotion of the arts in Missouri.” (Emphasis added.) The Court also noted that “[t]he Legislature’s practice from the inception of the Arts Trust Fund has been to implement the provisions of these two statutory sections by transferring funds in an appropriations bill — another indication that it did not intend to exempt these general revenue funds from that process.” Kansas City Symphony, 311 S.W.3d at 277 (footnote omitted).

Kansas City Symphony also held that interpreting § 143.183.5 as creating a mandatory duty to transfer monies into the Arts Fund would raise constitutional concerns. Recognizing a mandatory obligation, we held, would have the effect of creating “a perpetual or automatic continuing appropriation,” in violation of the provisions of the Missouri constitution, in particular article III, § 36 and article IV, §§23 and 28, which specify that monies can only be withdrawn from the treasury by appropriation, and that appropriations can be made for no more than two fiscal years. Kansas City Symphony, 311 S.W.3d at 278.

The policy underlying the constitutional appropriations requirement is that each legislature must have discretion to respond to the financial needs of the times. As the Supreme Court observed in [State ex rel.] Fath [v. Henderson, 160 Mo. 190, 60 S.W. 1093 (1901)], “one general assembly cannot tie the hands of its successor!]]” 60 S.W. at 1097.

Id. at 278. In order to avoid these constitutional difficulties, Kansas City Symphony held that “the language of Section 143.183.5 indicating that the general revenue funds ‘shall be allocated’ and ‘shall be transferred’ to the Arts Trust Fund is directory, rather than mandatory, and does not supplant the appropriations process.” Id. at 277.

The primary considerations on which Kansas City Symphony relied are equally applicable here. As in Kansas City Symphony, while the provision specifying that money must be transferred into the Fund may appear mandatory and unqualified, the statutory provisions specifying the use or disbursement of monies from the Fund makes clear that such disbursements are subject to the legislature’s appropriations power. The statutory provision governing the use of monies contained in the Fund states that “[a]ll moneys that are appropriated hy the general assembly from the life sciences research trust fund shall be appropriated to the life sciences research board” for specified purposes. § 196.1109 (emphasis added). Section 196.1109 goes on to specify the maximum percentage “of the moneys appropriated” that may be spent on construction of physical facilities, and the percentages that must be “appropriated” “to build research capacity,” “to promote life science technology transfer and technology commercialization,” and for “research of tobacco-related illnesses.” Other references throughout §§ 196.1100-196.1130 make clear that the General Assembly plainly contemplated that no monies would actually be expended from the Fund without the intervention of the appropriations process, just as in Kansas City Symphony. Consistent with these provisions, the legislature has authorized the expenditure of money in the Fund through appropriations bills. See, e.g., H.B. 7, § 7.020, 2007 Mo. Laws 54, 56; H.B. 11, § 11.440, 2007 Mo. Laws 116, 129-30.

The Redmonds contend that, under § 196.1109, the legislature can appropriate money from the Fund only to the Life Sciences Research Board. We disagree. If anything, § 196.1100.1 makes even clearer than the statutes at issue in Kansas City Symphony that future legislatures retain the authority to use settlement proceeds from the Master Tobacco Settlement Agreement for purposes other than funding the Board’s activities. In Kansas City Symphony, we concluded that the General Assembly retained the power to appropriate the funds at issue for purposes other than the Arts Fund by citing to constitutional principles and the Supreme Court’s decision in Fath. See Kansas City Symphony, 311 S.W.3d at 277-78. Here, however, the ability of future legislatures to appropriate the settlement proceeds to other purposes is explicit in § 196.1100.1 itself: “Moneys in the fund shall not be subject to appropriation for purposes other than those provided in sections 196.1100 to 196.1130 without a majority vote in each house of the general assembly.” While this provision is stated in the negative and may appear to restrict future legislatures’ power to appropriate monies to other purposes, it does no such thing, because the legislature’s exercise of its appropriations power — like its ability to enact substantive legislation — has always required a majority vote in each house of the General Assembly. Mo. Const, art. Ill, § 27. Section 196.1100.1 adds no additional restriction on the legislature’s exercise of its appropriations power than already existed.

Interpreting § 196.1100 to entirely exempt a portion of the tobacco settlement proceeds from the appropriations process would raise the same constitutional concerns as in Kansas City Symphony. While the funds at issue here come from a litigation settlement, rather than from taxes, this is a distinction without a difference, since article III, § 36 of the Missouri Constitution provides that “[a]ll revenue collected and money received by the state shall go into the treasury” (emphasis added), and may only be withdrawn by way of the legislative appropriations process. The same constitutional principles implicated in Kansas City Symphony — that appropriations are of limited duration, and that one legislature cannot constrain the appropriations authority of future legislatures — require that we reject the Red-monds’ arguments here.

The Redmonds argue that reading the word “shall” as merely directory would lead to absurd consequences. Specifically, they note that the statutory limitations on the Life Sciences Research Board’s use of appropriated funds are also expressed using the word “shall.” See, e.g., § 196.1127.3 (“Public funds shall not be expended, paid, or granted to or on behalf of an existing or proposed research project that involves abortion services, human cloning, or prohibited human research.”). The Redmonds argue that, if we interpret “shall” as being directory rather than mandatory, this would permit the Board to spend money without statutory constraint.

The manner in which the Board may spend the funds appropriated to it is not presently before us. Furthermore, the Board and the Legislature do not stand on the same footing with respect to statutory directives or commands. While a previous legislature cannot bind a future legislature’s appropriations authority for the reasons fully explained in Kansas City Symphony, a legislature can surely impose limitations on the use to which an entity such as the Board puts appropriated funds. Thus, when a previous legislature tells a future legislature that it “shall” appropriate money in a particular fashion, that “shall” is not mandatory, but directory. But when the legislature tells a subordinate body such as the Board that it “shall” do something, that directive may well be mandatory and binding. There is no inconsistency in interpreting the word “shall” differently, depending on the entity to which a statutory command is directed.

The references in § 196.1100.1 to the creation of a “trust fund” do not distinguish this case from Kansas City Symphony. There too, the controlling statute referred to a “trust fund.” See § 143.183.5 (“[S]ixty percent of the annual estimate of taxes generated from the ... tax shall be allocated annually to the Missouri arts council trust fund .... ” (emphasis added)). Citing to Board of Public Buildings v. Crowe, 363 S.W.2d 598, 607-08 (Mo. banc 1962), on which the Redmonds also rely, we held that monies in the Arts Fund were subject to appropriation before disbursement, even though they “were considered to be in the nature of a trust fund.” Kansas City Symphony, 311 S.W.3d at 279. Such funds are only “classified as special trust funds subject to disbursement for their stated purpose” after appropriation of those funds by the legislature. Id,.

We recognize that § 196.1100.1 arguably differs from § 143.183.5 in one important respect. While § 143.183.5 specifies that certain funds derived from an identified tax “shall be transferred from the general revenue fund to the Missouri arts council trust fund” (emphasis added), § 196.1100.1 provides that “[t]he state treasurer shall deposit into the [life sciences research trust] fund twenty-five percent of all moneys received from the master settlement agreement.” Section 196.1100.1 does not refer to the transfer of monies from the general revenue fund into another designated fund, but instead appears to require that a portion of the proceeds of the Master Settlement Agreement be deposited directly into the Fund. It could be argued that the Treasurer’s duty to deposit specific monies into the Fund is a mandatory obligation enforceable by mandamus, even though the disbursement of those monies from, the Fund could only be authorized by the General Assembly’s discretionary exercise of its appropriations authority. The Redmonds have not argued, however, that the Treasurer’s statutory duty to deposit money into the Fund should be enforced separate and apart from the purposes for which money is disbursed from the Fund. Instead, their consistent claim on appeal has been that monies must be deposited into the Fund so that those monies become “untouchable trust funds,” subject to expenditure only for the purposes specifically identified in §§ 196.1100-196.1130. In addition, we question whether the Redmonds would be entitled to seek an extraordinary writ of mandamus to order that money be deposited by the Treasurer into a specifically designated fund, when the General Assembly retains plenary authority as to the ultimate use to which those funds are put. “A writ of mandamus is not proper when the relief it affords will be ineffective or useless. ‘A court will not award a discretionary writ [of mandamus] ... for the mere purpose of determining an empty and barren technical right on behalf of a petitioner,’ or where the writ would be ‘useless.’ ” State ex rel. KelCor, Inc. v. Nooney Realty Trust, Inc., 966 S.W.2d 399, 403 (Mo.App. E.D.1998) (quoting Barth v. Clay, 354 Mo. 90, 188 S.W.2d 660, 662 (1945)). In any event, because the Redmonds have not separately argued for enforcement of any duty to deposit monies into the Fund, we need not definitively resolve these issues.

Conclusion

The circuit court’s judgment is affirmed.

All concur.

      . Unless otherwise indicated, statutory references are to the RSMo 2000 as updated through the 2009 Cumulative Supplement.

      . Although it is not entirely clear from the record, this figure apparently represents 25% of the total sum the Redmonds allege the State has received, or will receive, under the Agreement through the conclusion of the 2008 Fiscal Year.

      . See, e.g., § 196.1103 (specifying that "[t]he management, governance, and control of moneys appropriated from the life sciences research trust fund shall be vested in the 'Life Sciences Research Board'”); § 196.1112 (specifying multiple limitations on the use of "the moneys appropriated to the board”); § 196.1115.1 (specifying disposition of "[t]he moneys appropriated to the life sciences research board that are not distributed by the board in any fiscal year”); § 196.1121.1 (imposing restrictions on “[g]rant or contract awards made with moneys appropriated from the life sciences research trust fund"); § 196.1127.1, .3 (prohibiting use of public funds for research projects "that involve!] abortion services, human cloning, or prohibited human research”; specifying that "[t]he moneys appropriated to the life sciences research board pursuant to sections 196.1100 to 196.1124 shall be subject to the provisions of this section”).

      . The Redmonds cite State Highway Commission v. Spainhower, 504 S.W.2d 121 (Mo. 1973), for the proposition that §§ 196.1100— 196.1130 can lawfully limit the purposes for which future legislatures may appropriate money in the Fund. But Spainhower held that the legislature was prohibited by article IV, § 30(b) of the Missouri Constitution from diverting investment income earned on state road fund monies to other purposes. Id. at 125-26. The General Assembly is subject to no similar constitutional limitation with respect to monies in the Fund.

      . As explained in State ex rel. Kessler v. Hackmann, 304 Mo. 453, 264 S.W. 366, 367 (1924):
      [T]his court has held that a fund, raised by an act for a special purpose, could not be paid out of the state treasury except upon an appropriation by an act of the Legislature .... [T]he creation of a special fund is not a continuing appropriation of the fund, or of any part of it, to pay accounts drawn against it.... [T]he creation of the fund is one thing, and the appropriation of money to pay accounts against the fund is quite another thing.

      . By directing the Treasurer to deposit the tobacco settlement proceeds into a special fund within the treasury, § 196.1100.1 apparently operates as an exception to the general rule that funds received by the State be deposited in the general revenue fund. See § 33.543 ("All moneys received by this state shall be deposited in the state treasury to the credit of the general revenue fund, unless required by statute or constitutional provision to be deposited in some other specifically named fund.” (emphasis added)).

      .We note that, in connection with her Motion for Partial Summary Judgment, then-Treasurer Sarah Steelman submitted an affidavit indicating that her office had, in fact, deposited into the Fund 25% of the settlement proceeds paid to the State in FY 2007 and FY 2008. The circuit court did not address this issue because its grant of judgment on the pleadings mooted the Treasurer’s Motion for Partial Summary Judgment.


text:
    STATE of Missouri, Respondent, v. Vernando Jay SMITH, Appellant.
    No. WD 70604.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2011.
    Susan E. Summers, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Vernando Smith appeals the judgment of the Circuit Court of Platte County (“trial court”) in which Smith was convicted of, and sentenced for, assault of a law enforcement officer in the first degree and armed criminal action. On appeal, Smith argues that the trial court plainly erred in what Smith deems as sentencing retaliation by the trial court triggered by Smith’s decision to exercise his constitutional right to trial. Finding no evidence in the record to support Smith’s sentencing retaliation claim, we affirm in this per curiam order and have provided the parties a legal memorandum explaining our legal reasoning for today’s ruling. Rule 30.25(b).


author: SHARON G. LEE, J.,

text:
    Debra M. BARKES et al. v. RIVER PARK HOSPITAL, INC.
    Supreme Court of Tennessee, at Nashville.
    Feb. 10, 2010 Session.
    Oct. 20, 2010.
    Opinion on the Petition for Rehearing Nov. 30, 2010.

      David Randolph Smith, Edmund J. Schmidt III, and John B. Carlson, Nashville, Tennessee, for the appellant, Debra M. Barkes, individually and as surviving spouse of Jewell Wayne Barkes.
    C.J. Gideon, Jr., Bryan Essary, and Brian Cummings, Nashville, Tennessee, for the appellee, River Park Hospital, Inc., d/b/a River Park Hospital.
    Robyn E. Smith and William B. Hubbard, Nashville, Tennessee, for amicus curiae Tennessee Hospital Association.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, and GARY R. WADE, JJ., joined. WILLIAM C. KOCH, JR., J., not participating.

In this medical negligence case, we review a jury verdict against a hospital based on the hospital’s failure to enforce its policies and procedures in patient care. Tennessee law has long recognized that a hospital has a duty to its patients to exercise that degree of care, skill, and diligence used by hospitals generally in its community. After reviewing the record, we hold that material evidence supports the jury’s determination that the hospital was 100% at fault for the patient’s death. We therefore reverse the Court of Appeals and reinstate the verdict of the jury.

Factual and Procedural History

On the morning of July 26, 2000, Wayne Barkes tilled his garden and then used an ax and other hand tools to clear and clean up the yard at his home. Around noon, Mr. Barkes stopped working and went inside the house because his left arm was hurting. He soaked his arm in water and then applied an ice pack to it. When the pain did not subside and Mr. Barkes began to feel worse, his wife drove him to the emergency room at River Park Hospital (“River Park” or “the hospital”) in McMinnville, Tennessee, for medical treatment.

When they arrived at River Park’s emergency room, Mr. Barkes sat in a chair while Mrs. Barkes filled out the admission paperwork for him. At 4:18 pm, he was initially seen and triaged by Jeff Jolly, a paramedic employed by River Park. Mr. Barkes complained of pain in his left forearm and wrist. Mrs. Barkes testified that she also told paramedic Jolly that Mr. Barkes was sick to his stomach, although Mr. Jolly denied receiving this information. Mr. Jolly took Mr. Barkes’ vital signs, which indicated his blood pressure was 130/70, his pulse was 100, and his respiratory rate was 20.

After Mr. Jolly’s triage evaluation, Mr. Barkes was seen by Sherry Kinkade, a nurse practitioner. Ms. Kinkade examined Mr. Barkes’ left forearm and diagnosed a sprain due to overuse. Not observing any symptoms suggestive of a cardiac problem, Ms. Kinkade did not deem a cardiac workup necessary or appropriate. Ms. Kinkade admitted that she did not ask Mr. Barkes if he was a smoker or if he had a family history of cardiac problems. She further admitted that it was more probable than not that she did not ask Mr. Barkes about other things that she left blank on his emergency room chart, such as whether he suffered from asthma, arthritis, cancer, migraines, hepatitis, cardiac problems, tuberculosis, or drug and/or alcohol abuse.

Ms. Kinkade then discussed Mr. Barkes’ presentation and symptoms and her diagnosis with Dr. Rosa Stone, the emergency room physician. After this consultation, Dr. Stone agreed with the diagnosis and treatment plan and signed the discharge papers for Mr. Barkes. Mr. Barkes was discharged from River Park’s emergency room at 4:45 pm, with instructions to take an over-the-counter pain reliever, to ice his forearm, and to rest the arm. He was not seen or evaluated by a physician.

Less than two hours after leaving the hospital with a diagnosis of an arm sprain, Mr. Barkes collapsed and his wife found him unconscious on the bathroom floor of them home. At 7:27 pm, Mr. Barkes arrived by ambulance at River Park. Attempts to resuscitate him from cardiac arrest were unsuccessful, and he was pronounced dead of a myocardial infarction and sudden cardiac death.

Mrs. Barkes brought this wrongful death action against River Park and several other defendants, including paramedic Jolly, nurse practitioner Kinkade, Dr. Stone, several additional physicians, PhyAmerica (the medical group that employed the physicians who staffed the hospital’s emergency room), and other entities related to the Hospital Corporation of America (“HCA”) and the TriStar Health System. By the time of trial, the only remaining defendant was River Park; the claims against the other defendants had been either voluntarily or involuntarily dismissed. River Park alleged comparative fault claims against PhyAmerica employees Nurse Kinkade, Dr. Stone, and Dr. Mark Weeks, the co-director of the emergency department at the time of Mr. Barkes’ death.

In her claim against River Park, Mrs. Barkes asserted that the care and treatment provided to her husband in the hospital’s emergency room fell below the standard of reasonable care under the circumstances. Specifically, Mrs. Barkes alleged that had Mr. Barkes been triaged by a registered nurse instead of a paramedic, and had he been seen and examined by a physician instead of a nurse practitioner, the appropriate inquiries would have been made and the potential warning signs of a heart attack would have been observed. Mrs. Barkes also argued that had a physician examined her husband, the physician would have observed that Mr. Barkes had many potential risk factors for a heart attack, including being a heavy smoker, being obese with high cholesterol levels and having a family history of heart disease.

At trial, Mrs. Barkes presented the expert testimony of a hospital administrator with twenty-nine years of experience at various Middle Tennessee hospitals, a board-certified emergency medicine physician, and a cardiologist, all of whom testified that the treatment of Mr. Barkes in River Park’s emergency room fell below the applicable standard of reasonable care for a hospital under the circumstances. These experts agreed that the failure of River Park to follow its own written policy requiring that a physician see and examine every patient who presented at the emergency room was evidence of River Park’s breach of its duty to provide reasonable care.

At the end of the week-long trial, the trial court partially granted River Park Hospital’s motion for directed verdict, dismissing claims against River Park pertaining to maintaining a safe environment and negligent hiring, claims that River Park was negligent in the establishment of policies and procedures, and claims that River Park did not properly oversee the care provided in the Emergency Room. The only remaining claim of direct liability against the hospital that survived was whether River Park was liable for not enforcing the written policies and procedures existing at the time of Mr. Barkes’ treatment.

The jury returned a verdict finding River Park 100% at fault for the death of Mr. Barkes. The jury found no fault on the part of the individual health care providers who remained in the case due to River Park’s comparative fault claims. The trial court approved the verdict and entered judgment in the amount of the jury’s monetary award.

River Park appealed. The Court of Appeals reversed the trial court’s judgment on the jury verdict, holding that Tennessee law does not recognize a theory of corporate liability under which the hospital could be found responsible to a patient absent a finding of vicarious liability for negligence by a treating health care professional. Barkes v. River Park Hosp., Inc., No. M2006-01214-COA-R3-CV, 2008 WL 5423981, at *1 (Tenn.Ct.App. Dec. 29, 2008). Because the jury verdict found River Park 100% at fault and assigned zero fault to the individual treating health care providers, the Court of Appeals held the verdict to be inconsistent and irreconcilable and remanded the case for a new trial. We granted Mrs. Barkes permission to appeal.

Hospital Liability To Patients

The issue presented on appeal is whether Mrs. Barkes may recover against River Park Hospital under a direct theory of negligence. The jury found the hospital 100% at fault for failing to enforce its written policies and procedures in the course of Mr. Barkes’ treatment. We therefore must determine whether Tennessee law permits a cause of action against a hospital for failing to enforce its policies and procedures in patient care.

We have not previously addressed the doctrine of corporate negligence as to hospitals, and we need neither adopt nor reject it to resolve this appeal. Instead, we rely on prior Tennessee decisions permitting direct negligence actions against hospitals that have failed to exercise reasonable care in discharging duties owed directly to patients. For example, in Thompson v. Methodist Hosp., this Court stated that “[t]he measure of duty of a hospital is to exercise that degree of care, skill, and diligence used by hospitals generally in that community.” 211 Tenn. 650, 367 S.W.2d 134 (1962) (quoting 41 C.J.S. Hospitals § 8). We also have affirmed hospital liability where the “hospital failed to discharge its duty to make its premises safe.” Pullins v. Fentress County Gen. Hosp., 594 S.W.2d 663, 670 (Tenn.1979). Furthermore, we have stated that “a hospital is required to exercise such reasonable care toward a patient as his known condition may require, and the extent and character of this care depends upon the circumstances of each case,” O’Quin v. Baptist Mem,’l Hosp., 184 Tenn. 570, 201 S.W.2d 694, 697 (1947), and that “[w]hen a patient enters a hospital ... he is entitled to such reasonable attention as his safety may require.” James v. Turner, 184 Tenn. 568, 201 S.W.2d 691, 694 (1941). Tennessee law clearly recognizes that hospitals owe a duty of reasonable care to their patients and may be directly liable to patients independent of any liability based on the hospital’s employees or agents. As such, Mrs. Barkes’ cause of action against River Park is cognizable in Tennessee, and the Court of Appeals erred when it held that there was no basis on which River Park could be held directly liable to Mrs. Barkes.

Sufficiency of the Evidence

We now review the proof presented by Mrs. Barkes at trial to determine whether there is sufficient evidence supporting the jury’s verdict finding River Park to be 100% at fault. “Findings of fact by a jury in a civil action shall be set aside only if there is no material evidence to support the verdict.” Tenn. R.App. P. 13(d). To determine if there is material evidence to support the jury verdict, we “take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allow all reasonable inferences to sustain the verdict, and discard all countervailing evidence.” Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn.2006) (quoting Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704-05 (Tenn.2000)).

After carefully reviewing the record, we observe the following material evidence:

• River Park’s policy in effect at the time of Mr. Barkes’ treatment stated, “Any patient arriving at the Emergency Department will be seen by the emergency department nurse; triaged; and then seen by the appropriate physician.” It also stated, “All patients presenting for treatment in the emergency room are assessed by an emergency physician.”
• Alan Markowitz, PhD., an expert witness regarding hospital administration, testified that the standard of care at the time of Mr. Barkes’ treatment for hospitals similarly situated to River Park was for a registered nurse to triage the patient and a physician to “lay hands” on the patient, which is commensurate with River Park’s policy.
• Nurse Practitioner Kinkade, the medical provider who treated Mr. Barkes, testified that she was not aware of River Park’s policy requiring every patient presenting in the emergency department to be seen by a physician.
• Dr. Rosa Stone, who was working in River Park’s emergency department at the time of Mr. Barkes’ treatment, also testified that she was not aware of River Park’s policy requiring that any patient be seen by the appropriate physician.
• Dr. Stone testified that, when being consulted by Nurse Practitioner Kinkade about Ms. Kinkade’s decision to discharge Mr. Barkes, she asked Ms. Kin-kade whether Mr. Barkes exhibited any signs of myocardial infarction, specifically whether he had prior cardiac history, shortness of breath, any other pain, and chest pain, to exclude cardiac related illness.
• Dr. Stone testified that she “would have reevaluated him” had she known that Mr. Barkes had a family history of cardiac problems, had high cholesterol, was pale, was sweating, was nauseous, was overweight, and was a smoker, all of which is information that a physician might elicit when evaluating a patient.
• Dr. Morton J. Kern, an expert witness, testified that the “treatment of Mr. Barkes was below the standard of care for emergency rooms looking at patients of this same presentation,” and that had the appropriate standard of care been applied, “Such treatment, I believe, would have saved his life.”

To obtain a favorable verdict from the jury, Mrs. Barkes was required to show at trial that River Park failed to exercise that degree of care, skill, and diligence used by hospitals generally in the hospital’s community, Thompson, 367 S.W.2d at 138 (quoting 41 C.J.S. Hospitals § 8), and that its failure was the cause in fact and a proximate cause of the patient’s death. See, e.g., Hale v. Ostrow, 166 S.W.3d 713, 716 (Tenn.2005) (“A negligence claim requires proof of the following familiar elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause.” (citing Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998))). Based on the material evidence presented at trial, the jury was entitled to draw the reasonable conclusion that the hospital’s failure to inform the emergency room health care providers of its policies and its failure to effectively implement a system of oversight and enforcement of its policies was negligence that caused Mr. Barkes’ death. We therefore hold that material evidence supports the jury verdict.

Conclusion

We hold that Tennessee law recognizes that hospitals may be found directly liable to their patients. We reaffirm prior Tennessee decisions permitting negligence actions against hospitals that have failed to exercise reasonable care in discharging duties owed directly to patients. We further hold that there is material evidence supporting the jury’s verdict that River Park Hospital was 100% at fault for Mr. Barkes’ death. The judgment of the Court of Appeals therefore is reversed, and the judgment of the trial court approving and entering the jury verdict is reinstated. Costs on appeal are assessed to the appel-lee, River Park Hospital, Inc., d/b/a River Park Hospital, for which execution may issue if necessary.

OPINION ON THE PETITION FOR REHEARING

River Park Hospital has filed a Tenn. R.App. P. 39 petition for rehearing requesting this Court to reconsider its opinion filed on October 20, 2010. We have carefully reviewed the entire record and appellate briefs, from all of which we conclude that our opinion addressed and considered all issues raised by River Park in its appeal.

In its petition for rehearing, River Park advances two primary arguments. First, River Park asserts that this Court’s opinion failed to address the issue of whether the jury’s verdict was inconsistent and irreconcilable. Second, River Park argues that the Court’s opinion failed to address the situation where a hospital could be found liable when none of the individual health care providers were found to have committed medical malpractice. These two arguments essentially address the same point — can a hospital be liable to its patients for breach of its duty of care absent any liability of other health care providers? We answered this question in the affirmative based on prior well-settled precedent in Tennessee.

We held that a hospital has a duty to its patients to exercise that degree of care, skill, and diligence used by hospitals generally in its community. We relied on prior Tennessee decisions that permitted direct negligence actions against a hospital for failing to exercise reasonable care in discharging duties owed directly to patients. Because of this direct duty of care, a hospital may be directly liable to a patient independent of any vicarious liability of its employees. Thus, a hospital can be negligent for failing to enforce its policies and procedures in patient care absent a finding that other health care providers were also negligent. It necessarily follows then that a verdict finding River Park liable for breaching its duty of care to Mr. Barkes by, among other things, failing to enforce its policy that all patients seen in the emergency room will be seen by an appropriate physician is not inconsistent and irreconcilable with a verdict finding that other health care providers who treated Mr. Barkes did not deviate from the standard of care they owed to Mr. Barkes.

We carefully reviewed the record to ensure that the verdict was supported by material evidence. We found that it was. The jury verdict was supported by proof from which it could be reasonably concluded that the negligence and the resulting injury to Mr. Barkes resulted from an institutional failure that was, in essence, managerial and administrative in nature. The hospital developed rules and policies designed to ensure that its patients receive quality care, as is required in order to obtain and maintain accreditation by the Joint Commission on Accreditation of Healthcare Organizations and to comply with the standard of care applicable to its patients. A hospital’s responsibility to administer and oversee the activities of its emergency department includes a duty to create and maintain effective lines of communication to health care providers practicing within its walls in order to ensure that they are aware of and following the hospital’s policies and procedures. The administration of the hospital is also responsible for implementing an effective system of oversight to enforce its policies.

River Park again urgés us to follow the ruling of Gafner v. Down East Community Hospital, 735 A.2d 969 (Me.1999), relied on by the Court of Appeals in this case. No other court outside of Maine has relied on and followed Gafner in the eleven years since it was decided, and we do not find Gafner’s reasoning to be persuasive. Maine appears to be the lone state, or very nearly so, which has refused to recognize a theory of direct liability for hospitals. The great majority of courts in our sister states that have considered the issue have recognized some form of the direct liability theory of negligence. See Strubhart v. Perry Mem’l Hosp. Trust Auth., 903 P.2d 263, 269 (Okla.1995) (noting that “[i]n recent years other jurisdictions deciding the question have virtually unanimously adopted some form of this theory ... based on an independent duty of the institution itself owed directly to patients”).

Our recognition of a theory of direct liability does not result in the imposition of strict liability against hospitals for injuries suffered by its patients, nor will it make hospitals a guarantor of patients’ health irrespective of individual negligence or force hospitals to regulate the medical decisions of doctors practicing in the hospital. Well-established principles of negligence are applicable to actions alleging a theory of direct liability. See Blanton v. Moses H. Cone Mem’l Hosp. Inc., 319 N.C. 372, 354 S.E.2d 455, 457 (N.C.1987) (noting that “what has been called corporate negligence ... is no more than the application of common law principles of negligence and is not some recently developed doctrine upon which liability is based”). The theory of direct liability is not a new concept, for as we have noted, Tennessee courts have long recognized that hospitals owe certain duties of care to patients that come to them for treatment and healing.

Accordingly, the petition for rehearing is respectfully denied and the costs of this petition are taxed to River Park Hospital, Inc ., d/b/a River Park Hospital, for which execution may issue if necessary.

WILLIAM C. KOCH, JR., J., not participating.

      . Mrs. Barkes voluntarily dismissed her claims against the River Park physicians, Nurse Kinkade, and PhyAmerica when their medical malpractice insurance carrier went into bankruptcy. HCA and TriStar were dismissed by summary judgment. The claim against paramedic Jolly was voluntarily dismissed although Mrs. Barkes continued to pursue her vicarious liability claim against River Park for paramedic Jolly's alleged negligence.

        . Unless the negligence is obvious and readily understandable by an average layperson, expert testimony will be required to demonstrate the applicable standard of care and breach of that standard. See Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn.1999); Baldwin v. Knight, 569 S.W.2d 450, 456 (Tenn.1978).

      . See also, e.g., Fletcher v. S. Peninsula Hosp., 71 P.3d 833, 842 (Alaska 2003); Tucson Med. Ctr., Inc. v. Misevch, 113 Ariz. 34, 545 P.2d 958, 960 (Ariz.1976) (en banc); Elam v. College Park Hosp., 132 Cal.App.3d 332, 183 Cal.Rptr. 156, 158-65 (Cal.Ct.App.1982); Kitto v. Gilbert, 39 Colo.App. 374, 570 P.2d 544, 550 (Colo.Ct.App.1977); Insinga v. LaBella, 543 So.2d 209, 214 (Fla.1989); Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140, 189 S.E.2d 412, 414 (Ga.1972); Darling v. Charleston Cmty. Mem’l Hosp., 33 IU.2d 326, 211 N.E.2d 253, 258 (Ill.1965); Ferguson v. Gonyaw, 64 Mich.App. 685, 236 N.W.2d 543, 550 (Mich. Ct.App.1975); Larson v. Wasemiller, 738 N.W.2d 300, 305 (Minn.2007); Gridley v. Johnson, 476 S.W.2d 475, 483-85 (Mo.1972); Foley v. Bishop Clarkson Mem’l Hosp., 185 Neb. 89, 173 N.W.2d 881, 884 (Neb.1970); Oehler v. Humana Inc., 105 Nev. 348, 775 P.2d 1271, 1272 (Nev.1989); Corleto v. Shore Mem’l Hosp., 138 N.J.Super. 302, 350 A.2d 534, 537-38 (N.J.Super. Ct. Law Div.1975); Raschel v. Fish, 110 A.D.2d 1067, 488 N.Y.S.2d 923, 925 (N.Y.App.Div.1985); Blanton v. Moses H. Cone Mem’l Hosp., Inc., 319 N.C. 372, 354 S.E.2d 455, 457-58 (N.C.1987); Benedict v. St. Luke’s Hosps., 365 N.W.2d 499, 504 (N.D.1985); Strubhart, 903 P.2d at 275-76; Thompson v. Nason Hosp., 527 Pa. 330, 591 A.2d 703, 707-08 (Pa.1991); Pedroza v. Bryant, 101 Wash.2d 226, 677 P.2d 166, 170 (Wash.1984) (en banc); Utter v. United Hosp. Ctr., Inc., 160 W.Va. 703, 236 S.E.2d 213, 215-16 (W.Va.1977); Johnson v. Misericordia Cmty. Hosp., 99 Wis.2d 708, 301 N.W.2d 156, 164 (Wis.1981).