author: NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dawn Michelle COLVIN, Defendant-Appellant.
    No. SD 29826.
    Missouri Court of Appeals, Southern District, Division Two.
    May 19, 2010.

      Rosalynn Koch, Columbia, for Appellant.
    Chris Koster, Atty. Gen., Mary H. Moore, Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Dawn Michelle Colvin (“Appellant”) appeals her conviction after a jury trial of the class C felony of possession of a controlled substance, in violation of section 195.202. Appellant waived jury sentencing and she was sentenced to two-years imprisonment, with a suspended execution of sentence and five years probation. She now appeals alleging that the trial court erred in (1) admitting evidence that she had sores on her face and (2) overruling her objection to cross-examination regarding prior drug crimes. We affirm.

As Appellant does not contest the sufficiency of the evidence, we consider the facts and all reasonable inferences therefrom in the light most favorable to the verdict and reject all contrary evidence and inferences. State v. Harp, 101 S.W.3d 367, 370 (Mo.App. S.D.2003).

Facts

In the light most favorable to the judgment, the evidence was that on August 5, 2006, Appellant was stopped by Rolla police officer Adam Meyer for making a left-hand turn without signaling. Officer Meyer made contact with Appellant, explained why he stopped her, and asked for her identification and proof of insurance. Appellant did not have her driver’s license with her, but provided Officer Meyer with proof of insurance. Officer Meyer noticed Appellant’s hand was shaking and she had sores on both sides of her face that were consistent with the use of methamphetamine.

Officer Meyer asked Appellant if she was okay, to which she replied yes, and he asked her to get out of the car. Appellant asked if her ex-husband had contacted the police about her. No one had contacted Officer Meyer with regard to Appellant and he thought it was an unusual question. Appellant consented to her car being searched. Officer Meyer found a glass pipe with an off-white residue inside a black wallet in Appellant’s purse. After Appellant was advised of her Miranda rights, Officer Meyer asked her if the pipe contained methamphetamine and she confirmed that it did. Appellant was arrested and taken to the Phelps County Jail.

During a subsequent search of Appellant’s purse, Officer Meyer also found two small baggies that contained an off-white crystalline residue. Appellant claimed the pipe was not hers and that her ex-husband had planted it on her. When Officer Meyer asked if her ex-husband had planted anything else, Appellant claimed there was another pipe in a pair of cargo shorts in the trunk of her car; that pipe was also seized. A jury found Appellant guilty of possession of a controlled substance and she was sentenced by the trial court to two years in prison. The execution of the sentence was suspended, and Appellant was placed on five years probation.

Standard of Review

The trial court is vested with broad discretion to admit and exclude evidence at trial, and this Court will find error only if the lower court’s discretion was clearly abused. State v. Smith, 292 S.W.3d 595, 599 (Mo.App. S.D.2009). Judicial discretion is abused only when the ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Helms, 265 S.W.3d 894, 899 (Mo.App. S.D.2008). On direct appeal, we review the trial court’s decision for not merely error, but for prejudice, and will reverse only if the error was so prejudicial that it deprived Appellant of a fair trial. Id. In order to prove that error was prejudicial, a defendant must show a reasonable probability that absent such evidence, the verdict would have been different. State v. Danikas, 11 S.W.3d 782, 792 (Mo.App. W.D.1999).

Point I

Appellant was charged with the class C felony of possession of a controlled substance, in violation of section 195.202. She filed a pre-trial motion in limine to exclude any evidence concerning sores on her face being “meth sores,” claiming that Officer Meyer was “not qualified to testify about the origin of sores on [Appellant] as he is not a qualified expert nor medical doctor” and “[a]ny testimony regarding the meth sores would be speculation.”

At trial, Officer Meyer testified that he noticed Appellant “had sores on her.” Appellant objected that Officer Meyer was not qualified to testify or determine the sores were meth sores. The State requested the opportunity to lay the foundation for Officer Meyer’s training and experience, but Appellant further objected that any such testimony would be “particularly prejudicial.” The State proceeded to ask Officer Meyer about the sores on Appellant’s face. Again, Appellant objected based on her motion in limine; however, the motion and objections were overruled and Officer Meyer testified as follows:

[State’s Counsel]: You — the question was have you ever seen those sores— that — those type of sores before?
[Officer Meyer]: Yes, I have.
[State’s Counsel]: And what kind of — in what regard have you seen those kind of sores before?
[Officer Meyer]: People that use meth-amphetamines will consistently have those sores.

Appellant claims the trial court erred in admitting this evidence because it was irrelevant to the issue of her guilt and, even if the evidence might have been logically relevant, it was not legally relevant. We find that the trial court did not err in that the evidence was both logically and legally relevant.

Evidence is admissible if it is logically and legally relevant. Evidence is logically relevant if it tends to establish defendant’s guilt; it is legally relevant when “its probative value outweighs its prejudicial effect.” “The balancing of the effect and value of evidence rests within the sound discretion of the trial court.”

Smith, 292 S.W.3d at 599-600 (internal citations omitted). Even if evidence is improperly admitted, we will affirm the trial court’s decision unless the admitted evidence is so prejudicial as to deprive the defendant of a fair trial. State v. Clayton, 995 S.W.2d 468, 474 (Mo. banc 1999).

Appellant concedes that Officer Meyer’s testimony regarding the sores on her face might have been logically relevant. Officer Meyer testified that Appellant had sores on her face, and that such sores were consistent with methamphetamine use. This made it more likely that Appellant used methamphetamine, and thus more likely that the methamphetamine found belonged to her. Therefore, the testimony was logically relevant.

Appellant alleges, however, that Officer Meyer’s testimony was not legally relevant, in that its prejudicial effect outweighed its probative value. We disagree. Appellant argues that the State erroneously insinuated that the fact that all methamphetamine users have sores implies that all people with sores on their faces use methamphetamine, and that the jury therefore reached an illogical conclusion based on legally irrelevant evidence. This tenuous argument rests on the statement by Officer Meyer that “[p]eople that use metham-phetamines will consistently have those sores.” We do not infer the same absolute correlation from Officer Meyer’s testimony. Officer Meyer made no statements regarding characteristics shared by all methamphetamine users, nor did he make any statements regarding all people with sores on their faces. He simply stated that the types of sores he observed on Appellant’s face were consistent with the type of sores on those who use methamphetamine. We do not see how the jury could have reached any absolute, illogical conclusions about Appellant’s guilt from such a statement.

Furthermore, even if the testimony was improperly admitted, it was not prejudicial. This ease is similar to State v. Harp, 101 S.W.3d 367, 374-75 (Mo.App. S.D. 2003), where we affirmed the trial court’s allowance of two officers’ testimony regarding Harp’s appearance the day of his arrest. Id. at 376. Harp was convicted of manufacturing a controlled substance, possession of a chemical with intent to create a controlled substance, possession of a controlled substance, and possession of drug paraphernalia with intent to use it to manufacture methamphetamine. Id. at 369. Two officers testified that Harp was thin, pale, visibly shaking, and had sores, and that such characteristics indicated that he may be addicted to methamphetamine. Id. at 374. We found that even if the evidence had been improperly admitted, it was not prejudicial because other evidence was presented that established the same essential facts. Id. at 375-76.

Here, as in Harp, properly admitted evidence was presented to establish essentially the same facts as those established by the testimony regarding Appellant’s sores. Without objection, Officer Meyer testified: that upon pulling her over, he noticed her hand shaking; that her behavior was “unusual”; that after obtaining her consent to search the car, he found a glass pipe with off-white residue; that upon her arrest he found another glass pipe in the trunk of Appellant’s car; and that upon a subsequent search, he found two small baggies containing a crystalline residue. This testimony, along with the items themselves and a lab report properly admitted into evidence, also establish the same essential fact as the testimony regarding Appellant’s sores — that Appellant used methamphetamine. The testimony regarding Appellant’s sores was, therefore, not prejudicial. See State v. Ponder, 950 S.W.2d 900, 910 (Mo.App. S.D.1997) (holding that “[i]f evidence is improperly admitted, but other evidence establishes essentially the same facts, there is no prejudice to the accused and no reversible error”). Point I is denied.

Point II

Appellant’s second point is that the trial court erred in overruling her objection to cross-examination that she had pre: viously been arrested for possession of controlled substances. During her direct examination, Appellant was asked if Officer Meyer asked her any questions about the pipe and baggies found inside her purse. She testified,

He asked me if it — if it was mine and if I knew what it was. And I told him no, it was not mine and I assumed from looking at the pipe I’d — my husband had used it before. I’d — I’ve, seen it before. I’ve seen the tape — the Phelps County tape. I used to know Ken Clayton. I used to cut his hair.

Prior to beginning its cross-examination of Appellant, the State asked to approach the bench and the following exchange occurred:

[State’s Counsel]: Your Honor, I believe she’s opened the door to character cross-examination.
[Trial Court]: She does that when she takes the stand.
[State’s Counsel]: I understand. But she said specifically the way she knew about methamphetamine and went through that. I can show that she has an earlier arrest for possession of methamphetamine with intent and I intend — I intend to cross her on that.

During cross-examination, Appellant testified as follows:

[State’s Counsel]: Now, earlier on direct examination you also testified that you knew that it might be methamphetamine because you know a little bit about methamphetamine. You said something about a video — I heard you say that you used to cut Ken Clayton’s hair. Is that accurate?
[Appellant]: Yes.
[State’s Counsel]: Is that the only time that you’ve had any direct knowledge of anything to do with methamphetamine?
[State’s Counsel]: [Appellant], the question was, just to refresh your recollection, is that the only way — the—the video, that you had — used to cut Ken Clayton’s hair, and prior experience with your husband, is that the only way that you knew anything about methamphetamine? Was the only exposure in your life?
[Appellant]: No.
[State’s Counsel]: No? What was the—
[Appellant]: No, it’s all — it’s everywhere. It’s—
[State’s Counsel]: Okay.
[Appellant]: — one of the worse drugs that there is.
[State’s Counsel]: Well I agree with you there. But do you have any other personal knowledge of methamphetamine?
[Appellant]: I don’t understand personal knowledge. I — I don’t understand what you’re saying.
[State’s Counsel]: Were there — was there ever an instance that you had methamphetamine on your possession before?
[Appellant]: On my possession before? No.
[State’s Counsel]: How about in 2001:
[Appellant]: It was possession of controlled substance. It wasn’t methamphetamine.
[State’s Counsel]: And what was that?
[Appellant]: It was pills.
[State’s Counsel]: And was it alleged at that time that — was that an arrest in 2001?
[Appellant]: Uh-huh.
[State’s Counsel]: What — what drug was that?
[Appellant]: I don’t recall specifically. Some were prescribed to me. Some were not.
[State’s Counsel]: Do you recall what that arrest was for?
[Appellant]: It started out as domestic dispute.
[State’s Counsel]: Do you recall what you were arrested for?
[Appellant]: Possession of a controlled] substance.

In general, it is improper to admit evidence of prior misconduct to suggest that a defendant is more likely to be guilty of the crime charged; however, evidence of prior misconduct is admissible if it is “ ‘necessary to provide a complete and coherent picture of the crime charged, the events leading up to it, or the circumstances surrounding it.’ ” Smith, 292 S.W.3d at 599 (quoting State v. Coutee, 879 S.W.2d 762, 767 (Mo.App. S.D.1994)). Additionally, where the defendant has injected an issue into a case, the State may then be allowed to admit otherwise inadmissible evidence showing that the inference arising or sought to be drawn from other evidence is not warranted. Id.

When evidence has been improperly admitted, we reverse only when the errantly admitted evidence is so prejudicial that it is outcome determinative. State v. Black, 50 S.W.3d 778, 786 (Mo. banc 2001). An error is outcome determinative when “ ‘the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence.’ ” State v. Johnson, 207 S.W.3d 24, 42 (Mo. banc 2006) (quoting Black, 50 S.W.3d at 786).

Here, Appellant placed in issue her knowledge of illegal drugs by testifying that she assumed the pipe found by Officer Meyer was related to methamphetamine use because her husband had used it and she had seen it before. Although Appellant testified that her prior arrest was for pills and not for methamphetamine, the State claimed to the court that Appellant had a previous arrest for possession of methamphetamine with intent. The question was permitted with that understanding and was proper to rebut the inference created by Appellant’s testimony on direct examination that she knew of methamphetamine because of her husband’s use of it.

Furthermore, even if Appellant’s cross-examination testimony concerning her prior arrest for drug possession was improperly admitted, it was not prejudicial. There was ample additional evidence from which the jury could have reasonably concluded that she knowingly possessed methamphetamine. As noted earlier, the testimony of Officer Meyer regarding her behavior and general demeanor following her traffic stop, as well as the drugs and drug paraphernalia found in her purse and in her car, was properly admitted. When balanced with and against this evidence, we cannot say that there was a reasonable probability that the jury would have acquitted Appellant but for the question during Appellant’s cross-examination testimony regarding her prior arrest. Point II is denied.

The judgment is affirmed.

SCOTT, C.J., LYNCH, P.J., concur.

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

      . State v. Fears, 217 S.W.3d 323, 327 (Mo. App. S.D.2007).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edward BARNES, Defendant-Appellant.
    No. SD 29904.
    Missouri Court of Appeals, Southern District, Division Two.
    May 19, 2010.

      Matthew Ward, Columbia, for Appellant.
    Chris Koster, Atty. Gen., John M. Reeves, Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Edward Barnes (“Appellant”) was convicted of one count of endangering a corrections officer, a felony under section 565.085, for spitting on a corrections officer. Following a bench trial, the trial court sentenced Appellant to a two-year prison term, to..run concurrently with a sentence he was already serving. The information charged Appellant with spitting on corrections officer Charles Mitchell on July 23, 2007. At the bench trial, however, the prosecution proved that Appellant spit on a different corrections officer, Edward Cantrell, on August 15, 2007. Cantrell was the only witness that testified at the trial. A videotape showing Appellant spitting on Cantrell was admitted into evidence. The defense made no objection to the variance between the facts alleged in the information and the facts proven at trial. Appellant now appeals the conviction.

Appellant’s sole point on appeal is that the trial court committed reversible error in convicting him of the August 15, 2007 felony of endangering corrections officer Cantrell, when the information charged Appellant with the felony of endangering corrections officer Mitchell on July 23, 2007.

Because the defense counsel failed to object to the variance between the facts alleged in the information and the facts proven at trial, our review is for plain error. State v. Rogers, 970 S.W.2d 402, 405 (Mo.App. W.D.1998).

This review involves a two step-process. First, we determine whether the claim of error facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted.... Absent a finding of facial error, an appellate court should decline its discretion to review the claim. If plain error is found, we proceed to the second step to consider whether the error actually resulted in manifest injustice or a miscarriage of justice.

State v. Stallings, 158 S.W.3d 310, 315-16 (Mo.App. W.D.2005) (internal citations omitted). The outcome of plain error review, furthermore, “depends heavily on the specific facts and circumstances of each case.” State v. Roper, 136 S.W.3d 891, 900 (Mo.App. W.D.2004). After a review of the record, we find 'no reversible error, and, consequently, no plain error, here.

“A variance alone is not conclusive to the question of whether there is reversible error.” State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992). The defendant must also be prejudiced by the variance between allegations in the information and evidence presented at trial. See State v. Crossman, 464 S.W.2d 36, 42 (Mo.1971). That is, “ ‘[ujnless the defendant can be said to have been prejudiced in that he would have been better able to defend had the information’ ” not varied from the evidence presented at trial, the defendant “ ‘should not be entitled to relief on account of the variance.’ ” State v. Lemons, 294 S.W.3d 65 (Mo.App. S.D. 2009) (quoting State v. Darden, 263 S.W.3d 760, 763-64 (Mo.App. W.D.2008)).

The record shows that Appellant was adequately able to defend against the charge that he endangered corrections officer Cantrell, despite the inconsistency between the information and the proof offered at trial. Defense counsel’s actions clearly demonstrate knowledge that the facts the prosecution sought to prove at trial were in regard to the August 15th incident, rather than the July 23rd incident. At trial, no evidence was presented regarding the July 23rd incident. In fact, defense counsel offered three conduct violation reports, specifically identifying Cantrell and detailing the events of the August 15th incident, into evidence during the cross-examination of Cantrell. The State did not object and the trial court admitted the reports.

Here, Appellant fully litigated the issue of whether he was guilty of endangering a corrections officer on August 15, 2007, not the July 23rd incident. The defense, therefore, was not prejudiced by the variance. Appellant was charged with and convicted of a violation of section 565.085. Appellant suffered neither a manifest injustice nor a miscarriage of justice.

The judgment is affirmed.

SCOTT, C.J., LYNCH, P.J., concur.

      . All references to statutes are to RSMo Cum. Supp.2005, and all rule references are to Missouri Court Rules (2010), unless otherwise specified.


author: DON E. BURRELL, Judge.

text:
    Paul Grayson NEAL, Jr., Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE of Missouri, Respondent-Appellant.
    No. SD 29758.
    Missouri Court of Appeals, Southern District, Division One.
    May 26, 2010.

      Chris Koster, Attorney General, and Eva Holtz Haviv, Special Assistant Attorney General, Jefferson City, MO, for Appellant.
    Wayne Gifford, Waynesville, MO, for Respondent.
   DON E. BURRELL, Judge.

The Director of Revenue (“the Director”) revoked for one year the driving privileges of Paul Grayson Neal, Jr. (“Driver”) for refusing to submit to a breath test, a violation of section 577.041.3, RSMo Cum.Supp.2006. Driver filed a petition for a trial de novo in the circuit court pursuant to section 577.041.4. After refusing to grant the Director’s request for a continuance, the circuit court held a hearing on Driver’s petition and entered a judgment ordering the Director to reinstate Driver’s driving privileges.

The Director now appeals, asserting the trial court erred “because [it] erroneously declared and applied the law in section 517.071.1” when it denied the Director’s request for a continuance. Because section 517.071.1 mandates a continuance under the circumstances present in the case at bar, we reverse the judgment of the circuit court and remand the matter for a new trial on Driver’s petition.

Factual and Procedural History

The Director was served with notice of Driver’s petition on February 25, 2009. The return date on the summons was March 11, 2009, at 1:30 p.m., fifteen days after the date of service. The court held a hearing on Driver’s petition on the return date as set forth above. Counsel for the Director did not appear at the hearing but had mailed an entry of appearance and motion for continuance that arrived at the courthouse on the day of the hearing.

After the hearing concluded, the court entered a “Judgment Ordering Return of Drivers License” that ordered the Director to reinstate Driver’s license and driving privileges (“the reinstatement judgment”). The reinstatement judgment noted that although the Director’s motion for continuance had not yet made its way to the court file when the court held its hearing on Driver’s petition, Driver’s counsel brought the matter to the court’s attention by informing the court that he had received a copy of the Director’s entry of appearance and request for continuance.

The reinstatement judgment addressed the Director’s request for continuance as follows: “The Court finds that, even if the said documents were in the Court file that the Request for Continuance is not a Motion which is self-executing and that the Request would have to be presented to the Court by an attorney before the same could be. ruled upon.”

On March 16, 2009, the Director filed a “Motion to Set Aside Default” which asserted the reinstatement judgment should be set aside pursuant to Rule 74.05(d) because “30 days had not passed since the date of service. [The Director] mailed her Answer and Request for Continuance in this matter to the Court on February 9, 2009.” The Director also claimed she had a meritorious defense to Driver’s petition because “[Driver] was arrested upon probable cause of driving while intoxicated and refused to submit to a chemical test of his blood alcohol content.”

On March 25, 2009, a hearing was held on the Director’s motion to set aside the reinstatement judgment. The next day, the court refused to set aside the reinstatement judgment in a written “Judgment Denying Motion to Set Aside Default” which noted that the reinstatement judgment was not entered by default but was entered after “a trial held on the return date of the summons in associate circuit court wherein the trial is held on the return date of the summons, pursuant to the applicable statutes governing associate circuit courts.” The Director’s appeal timely followed.

Analysis

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

Chapter 517 of the Revised Statutes of Missouri contains the procedures that apply to cases brought “before certain associate circuit judges.” Section 517.011 states that the provisions of chapter 517 apply to all cases arising under chapter 577. Section 517.011.1; 517.011.1(3). Because Driver’s petition was filed pursuant to section 577.041, the provisions of chapter 517 apply.

Section 517.051 provides that “[e]very case shall be tried upon the return date of the summons, when the summons has been duly and timely served, or on a date to which the case has been continued.” Section 517.071.1 provides that “[a] ease shall be continued to a day certain upon the request of any party made on or before the return date of the summons.” (Emphasis added). This is in contrast to section 517.071.2, which states that “[a] case may be continued to a day certain, not exceeding thirty days,” upon (1) motion of the judge; (2) the agreement of the parties; or (3) the application of a party and for good cause shown. Section 517.071.2(1)-(3) (emphasis added).

“The use of ‘shall’ in a statute is indicative of a mandate to act. The general rule is that use of ‘shall’ is mandatory and not permissive.” Welch v. Eastwind Care Ctr., 890 S.W.2d 395, 397 (Mo.App. W.D.1995) (quoting Missouri Soc’y of Am. Coll. of Gen. Practitioners in Osteopathic Med. & Surgery v. Roderick, 797 S.W.2d 521, 524 (Mo.App. W.D.1990)).

We find the legislature’s use in section 517.071 of both “shall” and “may” in connection with requests for continuances made under different circumstances clearly indicates an intent to make mandatory the continuance of a matter when the request meets the requirements of section 517.071.1. In the case at bar, the Director’s request for a continuance was made on or before the return date — the only requirement set forth in section 517.071.1. It does not require an attorney to personally appear and argue the request. The circuit court’s refusal to grant a continuance under these circumstances constituted a misapplication of the law.

The reinstatement judgment is reversed, and the matter is remanded for a new trial on Driver’s petition.

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

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

      . This statute actually states that a person whose license has been revoked "may petition for a hearing before a circuit or associate circuit court....” Section 577.041.4, RSMo Cum.Supp.2010. Perhaps as effectively as Don Quixote battled windmills in The Man of La Mancha, we continue to "point[] out, as emphatically as we know how, that there is no ‘associate circuit court’ in the Missouri court system!” Robinson v. Director of Revenue, 949 S.W.2d 907, 910 (Mo.App. S.D.1997) (noting that the Missouri Constitution was amended by a vote of the citizens in 1976 to abolish the then-existing separate trial courts and consolidate them into what is now one “circuit court").

      . The transcript of the hearing, conducted before an associate circuit judge, is 29 lines long and consists of the court announcing the case; the attorney for Driver entering his appearance; the court noting that no one appeared on behalf of the Director; a short discussion about whether the Director had effectively asked for a continuance of the hearing; and the following exchange:
      THE COURT: All right, [attorney for Driver], are you ready to proceed?
      ATTORNEY FOR DRIVER: Yes, Your Hon- or.
      THE COURT: All right. Well, the State has the burden — the Director has the burden in this matter, and the Court will find that the Director has not met its burden. Do you wish to proceed with any evidence on your behalf?
      ATTORNEY FOR DRIVER: And that's— Under those circumstances, no, Your Hon- or.

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

      . Although the trial court also made reference to the non-existent "associate circuit court” (see footnote 2), it did correctly note that its judgment was not entered by default and that the hearing on Driver’s petition was governed by the procedures set forth in chapter 517. As a result, a challenge to a judgment reinstating driving privileges pursuant to section 577.041 based solely on Rule 74.05(d) may properly be denied. See Hibbard v. Director of Revenue, 208 S.W.3d 317 (Mo.App. E.D.2006).


text:
    David G. McGHEE, Employee-Appellant/Respondent, v. W.R. GRACE & CO., Employer-Respondent/Cross-Appellant.
    Nos. SD 30060, SD 30065.
    Missouri Court of Appeals, Southern District, Division One.
    May 28, 2010.

      R. David Ray, West Plains, MO, for Appellant.
    Jennifer Arnett, Overland Park, KS, for Respondent.
   DON E. BURRELL, Judge.

Appellant/Respondent David McGhee (“Claimant”) contracted asbestosis after years of working for Respondent/Cross-Appellant W.R. Grace & Company (“Employer”) in a plant that manufactured home insulation containing asbestos. The parties stipulated that Claimant had sustained an occupational disease that arose out of and in the course of his employment which rendered him permanently and totally disabled. The claim was tried on the issue of the amount of benefits to be awarded before an Administrative Law Judge (“ALJ”). The ALJ’s decision was thereafter affirmed and- adopted by the Labor and Industrial Relations Commission (“the Commission”). Both parties now appeal the Commission’s decision to this court, and we have consolidated their separate appeals. Agreeing with the arguments asserted by Claimant, we affirm in part and reverse in part' with instructions.

Factual and Procedural Background

Claimant began working at Employer’s Zonolite Plant in St. Louis in 1964. Employer and Claimant agree that Claimant’s average weekly wage at the time he ceased working for Employer in 1977 was $242.87. The work Claimant performed for Employer included the bagging of various materials, including Monokote (a fireproofing product) and vermiculite (a mineral used in attic insulation). The vermiculite Claimant was bagging contained asbestos. Claimant’s exposure to this asbestos eventually caused him to contract asbestosis, a disease marked by the inflammation and scarring of lung tissue, caused by the breathing of asbestos fibers and the body’s inability to expel those fibers.

Claimant testified that during the first six or seven years of his employment with Employer, he was not provided with any safety equipment or protective clothing. Claimant testified that in about 1972 or 1973, Employer began providing him with throwaway paper masks. When Employer began receiving complaints from its employees about these paper masks, it began providing a different type of mask. Employer presented no evidence in regard to its provision of safety equipment or protective clothing.

Claimant’s asbestosis was first diagnosed in 2001. Claimant sought weekly wage benefits based on the average weekly wage statute in effect in 2001. Claimant also sought past and future medical benefits and included a claim for a statutory 15% penalty based on Employer’s failure to provide safety equipment as required by law during his course of employment.

The ALJ applied the $95.00 cap on weekly wage benefits in effect in 1977— the year Claimant was last exposed to asbestos — to Claimant’s weekly wage benefits claim. The ALJ awarded Claimant past and future medical benefits and also included a 15% penalty on all benefits awarded, including medical benefits. In their respective appeals of the ALJ’s decision to the Commission, Claimant contested the ALJ’s application of the 1977 weekly benefits cap, and Employer contested the imposition of the 15% statutory penalty. While Employer did not contest the ALJ’s award of medical expenses, it did dispute the validity of including those expenses in the calculation of the 15% penalty. The Commission, with one commissioner dissenting, affirmed the ALJ’s decision and incorporated her findings.

Analysis

Standard of Review

Our review of the Commission’s decision is governed by article V, section 18 of the Missouri Constitution and by section 287.495. “The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1. “There is nothing in the constitution or section 287.495.1 that requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). “We defer to the Commission on issues of fact.” Copeland v. Associated Wholesale Grocers, 207 S.W.3d 189, 191 (Mo.App. S.D.2006). However, “[questions of law are reviewed de novo.” Id. “When the commission incorporates the ALJ’s opinion and decision, as in this case, the reviewing court will consider the commission’s decision as including those of the Administrative Law Judge.” Id. at 193 n. 5 (citing Clark v. FAG Bearings Corp., 134 S.W.3d 730, 734 (Mo.App. S.D.2004)).

Claimant’s Point on Appeal (SD30060): Date of Injury

Claimant argues the Commission erred in applying the cap in effect in 1977 to his claim for weekly wage benefits because section 287.200 provides that compensation is calculated as of the “date of the injury for which compensation is being made” and that that date for Claimant was in 2001 — the date when he was first diagnosed with asbestosis, not (as found by the Commission) the date of his last exposure to asbestos. We agree.

The resolution of this case involves the interpretation of workers’ compensation statutes and their application to Claimant’s claim. “Decisions which are clearly interpretations or applications of law, rather than determinations of fact, are reviewed by us for correctness without deference to the Commission’s judgment. ‘Findings of ultimate facts reached through application of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law’ which are reviewable for misstatement or misapplication.” Sanders v. St. Clair Corp., 943 S.W.2d 12, 16 (Mo.App. S.D.1997) (citing and quoting Simmerly v. Bailey Corp., 890 S.W.2d 12, 14 (Mo.App. S.D.1994)).

Claimant’s claim for weekly wage benefits was brought pursuant to section 287.200, which, in pertinent part, states:

1. Compensation for permanent total disability shall be paid during the continuance of such disability for the lifetime of the employee at the weekly rate of compensation in effect under this subsection on the date of the injury for which compensation is being made. The amount of such compensation shall be computed as follows:
(4) For all injuries occurring on or after August 28, 1991, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee’s average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to one hundred five percent of the state average weekly wage[.]

Section 287.200.1. As previously indicated, the parties stipulated that Claimant’s last weekly wage while working for Employer was $242.87. If the date of Claimant’s “injury” was when he was diagnosed with asbestosis in 2001, his weekly benefit under the law in effect at that time would be two-thirds of that amount, or $161.91 per week. If, on the other hand, his date of injury was the date of his last exposure to asbestos, when Claimant ceased working for Employer in 1977, the parties stipulate that his wage compensation would be capped at $95.00 per week pursuant to the version of the statute in effect at that time.

In reaching her decision that the date of Claimant’s injury for purposes of section 287.200 was 1977, the ALJ relied on Enyard v. Consolidated Underwriters, 390 S.W.2d 417 (Mo.App.St.L.D.1965). Although the ALJ noted that “the issue of the wage rate was not truly in dispute in Enyard,” she relied on Professor Larson’s interpretation of Enyard as set forth in his treatise on workers’ compensation occupational disease cases. That treatise purports to answer the question before this court as follows:

The question of which benefit level applies is encountered in its most acute form in long-latency occupational disease cases. If a worker’s last injurious exposure was in 1965 and his disability appeared in 1995, the choice between date of exposure and date of disability might well mean the difference between $50 and $850 a week.
The majority rule, as a result of either judicial decision or statutory provision, is that the level at the time of exposure does not control; rather, the time of disability, knowledge, or manifestation is decisive.
In a substantial minority of states, however, again by either statute or decision, the ‘last exposure benefit rule’ is still in force. Several states in this group have softened the impact of the rule somewhat. In Maine and Minnesota, supplemental benefits are provided which approximately close the gap between current benefits and time-of-exposure benefits.

2-53 Arthur L. Larson & Lex Larson, Larson’s Workers’ Compensation, § 53.05[1] (Desk Edition 2007). Larson’s treatise then includes Missouri within the minority of states he says follow the “last exposure benefit rule,” citing Enyard. We believe Professor Larson has oversimplified the actual holding in Enyard.

In Enyard, 390 S.W.2d at 419, the claimant had worked for a steel company from 1936 to 1943 and became disabled with advanced silicosis in 1960, thereafter filing a claim for workmen’s compensation. Id. When faced with the question of whether the claim was filed within the applicable statute of limitations period, the court held:

In latent injury or latent occupational disease the statute of limitations commences to run from the time it becomes reasonably discoverable and apparent to the employee that he has sustained a compensable injury. The injury is reasonably discoverable and apparent when the employee loses time from his work or has to seek medical advice as a result of his injury.

Id. at 422. The court next determined that the insurance carrier with coverage on the claim was the insurer for the steel company the employee worked for at the time of his most recent exposure to the hazard. Id. at 423. Although the employer liable for the injury is the employer that employed the claimant at the time of the claimant’s “last injurious exposure” to the hazard at issue, the injury does not become a “compensable injury” until “disability occurs.” Id. at 429-80. In so holding, the Enyard court stated, “We cannot believe that the legislature contemplated that employees be denied compensation merely because the relationship of employer and employee was not in existence at the time claimant became disabled from the occupational disease!.]” Id. at 430.

The only portion of Enyard that dealt with the Commission’s computation of the employee’s weekly wage reads as follows:

In its final point Consolidated [the employer’s insurance company at the time of the employee’s last exposure to the hazard] contends that the Commission erred in not complying with the statute concerning the computation of the weekly wage, pointing out that § 287.250 RSMo.1959, 15 V.A.M.S., prescribes that wages of employees are to be computed on the basis of the annual earnings which the injured person received during the year next preceding the injury. We have heretofore held that in an occupational disease case the injury occurred at the time of claimant’s last exposure while in the employ of Scullin [the employer that last exposed the claimant to the type of hazard at issue], which employment terminated January 2, 1948. As heretofore pointed out, it was stipulated[] by all the parties that claimant’s average weekly earnings for the last year of his employment with Scullin was $31.13, which was the average weekly wage during the last year of claimant’s employment as found by the Commission. Having found that claimant’s injury occurred at the time of his last exposure in the employ of Scullin, the Commission’s finding is correct and we rule this point against Consolidated.

Id. at 430-31 (emphasis added).

While Enyard did refer to the date of injury as the date of last exposure to the hazard at issue, it did so in the context of determining which employer and insurance carrier was liable for the payment of any compensation related to the employee’s occupational disease. In regard to when the employee incurred a duty to give timely notice of his injury to his employer and when the applicable statute of limitation began to run on the employee’s claim, the Enyard court found that these were not implicated until a compensable injury had occurred — a date it found to be the date of disability, not the date of injury. Id. at 430. Although Enyard set forth the weekly wage being earned by the employee at the time of his last exposure to the hazard, it did not make a determination as to what, if any, statutory limitation would apply to any weekly wage benefit awarded. As a result, Enyard does not resolve the issue before us.

It should also be noted that in an occupational disease case, the eastern district of this court did not follow Enyard’s definition of the date of injury. In Prater v. Thorngate, Ltd., 761 S.W.2d 226 (Mo.App. E.D.1988), the claimant employee worked as a sewing machine operator from 1983 to 1986. That employment required her to exert pressure on fabric in a repetitive manner for 40 hours per week. Id. at 227. In 1984, the claimant developed symptoms of bilateral carpal tunnel syndrome, which was ultimately diagnosed in 1985. Id. at 227-28. The Eastern District found that the claimant was not barred from recovery for failing to “give notice thirty days after her problems began in December 1984.” Id. at 228. In so holding, the court stated:

[T]he notice statute does not bar recovery in this case. An employee with an occupational disease is not considered “injured” until the time when the disease causes a compensable injury. Renfro v. Pittsburgh Plate Glass Co., 235 Mo.App. 226, 130 S.W.2d 165, 171 (1939). This is the time when the disease causes the employee to become disabled and unable to work. Sheehan v. Springfield Seed & Floral, 733 S.W.2d 795, 798 (Mo.App.1987).

Id. at 228-29. The court went on to note:

We have doubts, however, whether section 287.420 even applies to cases of occupational disease. The statute uses the terms “injury” and “accident.” “Injury” is defined as “in no case except as specifically provided” including occupational disease. § 287.020.3,1 RSMo 1986. “Accident” refers to a sudden or violent event, § 287.020.2, RSMo 1986, and does not mesh with the definition of occupational disease, § 287.067.1, RSMo 1986. Thus, the notice statute does not facially apply to occupational diseases. In addition, occupational disease does not fit under the purpose of the notice statute, which is to “give the employer a timely opportunity to investigate the facts as to whether an accident did occur, and, if it did, to promptly furnish medical attention to the employee to minimize the injury.” Klopstein v. Schroll House Moving Co., 425 S.W.2d 498, 503 (Mo.App.1968).

Id. at 229.

In Renfro v. Pittsburgh Plate Glass Co., 235 Mo.App. 226, 130 S.W.2d 165 (Mo.App. St.L.D.1939), the claimant employee was exposed to silica dust and demonstrated signs of illness as early as 1935 but was not disabled as a result of his occupational disease until 1937. Id. at 170. The court in Renfro held that it was erroneous for the Commission to find that the date of injury was any time before the employee suffered a loss of earning power, stating, “[T]he purpose of a workmen’s compensation act is not indemnity for any physical ailment, but for loss of earning power, disability to work.” Id. at 171-73.

Claimant’s position before the ALJ was that under section 287.200, the weekly compensation rate is calculated using the “date of the injury for which compensation is being made[,]” citing Prater. As the ALJ properly noted, Prater did not involve a dispute about the applicable weekly benefit rate — it was about whether the claimant timely provided her employer with notice of her injury pursuant to section 287.420. Prater, 761 S.W.2d at 228-29. It appears that neither Enyard nor Prater are directly on point and that the question before us is one of first impression in regard to an occupational disease claim brought in 2001.

As earlier noted, section 287.200 governs the amount of workers’ compensation benefits to be paid in the event of a permanent total disability and states that “[c]ompensation for permanent total disability shall be paid during the continuance of such disability for the lifetime of the employee at the weekly rate of compensation in effect under this subsection on the date of the injury for which compensation is being made.” Section 287.200.1 (emphasis added).

In construing a statute, this court must consider the words used in the statute in their plain and ordinary meaning in order to ascertain the intent of the lawmakers. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). The legislature is presumed not to enact meaningless provisions. When the legislature amends a statute, it is presumed to, have intended the amendment to have some effect. Id. Where no exceptions are made in terms, none will be made by mere implication or construction. Rathjen v. Reorganized School Dist. R-II of Shelby County, 365 Mo. 518, 284 S.W.2d 516, 522 (Mo. banc 1955). If the language of the statute is unambiguous, there is no basis for construction of the statute and the court must give effect to the statute as it is written. State ex rel. Mo. State Bd. v. Southworth, 704 S.W.2d 219, 224 (Mo. banc 1986).

Tunstill v. Eagle Sheet Metal Works, 870 S.W.2d 264, 271 (Mo.App. S.D.1994).

The difficulty in construing this statute lies in the inherent conflict between the concepts of injury — generally a distinct event that occurs at a particular point in time — and occupational disease — a process that occurs gradually over time. This court is now directly tasked, without any specific direction from the legislature, with determining the date on which Claimant’s occupational disease “injury” “occurred” for purposes of determining the appropriate statutory limit on weekly wage benefits payable under section 287.200. If Claimant’s occupational disease “injury” for purposes of section 287.200 “occurred” at the time he became disabled and unable to work, the applicable date of injury was in 2001, when he was diagnosed as having asbestosis, and section 287.200.1(4) would govern the weekly wage benefits cap applicable to his claim. Under section 287.200.1(4), the weekly compensation for “all injuries occurring on or after August 28, 1991” is “an amount equal to sixty-six and two-thirds percent of the injured employee’s average weekly earnings as of the date of the injury[.]”

If, on the other hand, the “date of injury” for purposes of section 287.200 was the date of Claimant’s last exposure to asbestos dust, his injury occurred in 1977. If 1977 is Claimant’s date of injury for purposes of section 287.200, then any limitation on his weekly wage benefits would be determined using the version of section 287.200 in effect in 1977. The weekly compensation percentage in effect at that time was also sixty-six and two-thirds percent of the employee’s earnings, but the weekly wage benefit cap was $95.00. Section 287.200.1, RSMo Cum.Supp.1975.

Because coverage for occupational diseases was not contemplated at the time the original workers’ compensation statutes were enacted, the courts have had difficulty in applying the law to claims for occupational disease. For example, the Workers’ Compensation Act’s definition section states that, “[t]he terms “injury” and “personal injuries” shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body [...]. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form[.]” Section 287.020.3 (emphasis added). This section (which has also remained unchanged) has caused confusion in the courts ever since the legislature began to recognize claims for occupational diseases. See Prater, 761 S.W.2d at 229 (declining to decide whether the 1986 notice statute, section 287.420, applied to occupational disease claims in the “hope that the legislature will clarify the problem”). Unfortunately, this hope is one that has remained unrealized.

The section giving rise to a claim for occupational disease reads as follows:

An employee shall be conclusively-deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 7 of section 287.067, RSMo.

Section 287.063.1. In regard to determining the appropriate time period within which an occupational disease claim may be brought, the General Assembly has specifically determined that the statute of limitation “shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that a compensable injury has been sustained[.]” Section 287.063.3. Claimant’s specific claim for asbestosis falls under section 287.067.5, which applies to any “disease of the lungs -or respiratory tract” resulting from exposure to “carcinogens [ ... ] if a direct causal relationship is established.”

When looking to the language of section 287.200, it appears clear to us that the legislature was considering only compensable injuries, as it requires the calculation to be based on rates in effect “on the date of the injury for which compensation is being made.” Section 287.200.1 (emphasis added). Therefore, it would contradict the plain language of the statute to hold that the “date of injury” referred to in section 287.200 was the “date of last exposure” or some other time period before the injury became compen-sable. Compensation is not “being made” because Claimant was last exposed to asbestos in 1977; rather, compensation is “being made” because Claimant has an occupational disease that was diagnosed in 2001. “Exposure to disease-producing conditions is not synonymous with contraction of the disease.” Tunstill, 870 S.W.2d at 272. Furthermore, we presume the General Assembly is aware of Prater, Tunstill, and other modern cases defining “date of injury” for various purposes as the date on which an injury becomes “com-pensable.” And, although the legislature made amendments to the workers’ compensation statutes in 2005 and 2008, it left the language of 287.200 unchanged. “In construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts[.]” Kilbane v. Director of the Dep’t of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976) (quoting Gross v. Merchants-Produce Bank, 390 S.W.2d 591, 597 (Mo.App.KC.D.1965)). The Enyard case was decided before section 287.200 was enacted with its language referring to the “date of the injury for which compensation is being made.”

We find that the date of injury for purposes of determining which compensation rate cap should be applied under section 287.200 is the date on which the injury becomes “compensable” — the date on which the claimant becomes disabled. For this reason, we find that the Commission misapplied the law when it capped Claimant’s weekly benefits at $95 pursuant to the cap in effect in 1977. Instead, the applicable cap is the one that was in effect in 2001 — sixty-six and two-thirds percent of the Claimant’s average weekly earnings at the time he left Employer’s employment, in this case, $161.91. Point granted.

Because the Commission misapplied the law, this portion of its order must be reversed, and the matter remanded for the entry of a compensation award that sets Claimant’s weekly wage benefits at $161.91 per week.

Employer’s Point on Appeal (SD 30065): Assessment of the 15% Statutory Penalty

Employer’s point on appeal reads as follows:

THE COMMISSION ERRED IN AFFIRMING THE ADMINISTRATIVE LAW JUDGE’S IMPOSITION OF A 15% PENALTY ON ALL BENEFITS AWARDED BECAUSE [CLAIMANT] HAS NOT MET HIS BURDEN OF PROOF TO ESTABLISH THAT EMPLOYER FAILED TO COMPLY WITH SAFETY STATUTES, IN THAT NO EVIDENCE WAS OFFERED REGARDING THE ALLEGED FAILURE TO COMPLY EXCEPT CLAIMANT’S OWN TESTIMONY WHICH IS LEGALLY INSUFFICIENT TO SUPPORT SUCH A FINDING.

While this point seems to challenge the evidentiary basis for the imposition of any statutory penalty, it could also be interpreted more narrowly as challenging its imposition on “all benefits” awarded to Claimant. Based on the arguments Employer made to the ALJ, we presume that Claimant’s medical benefits would be the portion of “all benefits” being challenged, but the point does not so indicate. In any event, we need not resolve the matter because the argument section that follows the point challenges only the evi-dentiary basis for the imposition of any penalty. As a result, any challenge to the applicability of the statutory penalty to any particular portion of Claimant’s award has been abandoned. See Summer Chase Second Addition Subdivision Homeowners Ass’n v. Taylor-Morley, Inc., 146 S.W.3d 411, 418 (Mo.App. E.D.2004) (“Issues raised in the points relied on that are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review”) (citation omitted).

The portion of Employer’s point preserved for our review alleges that Claimant failed to present competent evidence proving that Employer failed to comply with safety statutes in effect during the course of Claimant’s employment because Claimant’s own testimony is legally insufficient.

“We determine whether the award is supported by competent and substantial evidence ‘by examining the evidence in the context of the whole record.’ ” Custer v. Hartford Ins. Co., 174 S.W.3d 602, 609 (Mo.App. W.D.2005) (quoting Moriarty v. Treasurer of the State of Missouri, 141 S.W.3d 69, 72 (Mo.App. E.D. 2004) and Hampton, 121 S.W.3d at 223). “We must ascertain ‘whether the Commission could have reasonably made its findings and reached its result upon consideration of all of the evidence before it.’” Custer, 174 S.W.3d at 609 (quoting Henley v. Tan Co. Inc., 140 S.W.3d 195, 198 (Mo.App. S.D.2004)). We must examine the entire record “to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Custer, 174 S.W.3d at 609.

Section 287.120.4 provides that “[w]here the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.” Chapter 292 was enacted in 1939 and required employers to provide their employees with appropriate safety equipment. The relevant statutes have not been changed by the General Assembly since 1989. Section 292.300 requires:

That every employer of labor in this state engaged in carrying on any work, trade or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed, shall for the protection of all employees engaged in such work, trade or process, adopt and provide approved and effective devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade or process.

Section 292.310 classifies the types of articles that are considered dangerous to health:

The carrying on of any process, or manufacture, or labor in this state in which antimony, arsenic, brass, copper, lead, mercury, phosphorus, zinc, their alloys or salts or any poisonous chemicals, minerals, acids, fumes, vapors, gases, or other substances, are generated or used, employed or handled by the employees in harmful quantities, or under harmful conditions, or come in contact with in a harmful way, are hereby declared to be especially dangerous to the health of the employees.

Finally, section 292.320 specifically requires employers to provide clothing and respirators to employees engaging in processes that create “noxious or poisonous dusts.”

Every employer in this state to which sections 292.300 to 292.440 apply shall provide for and place at the disposal of the employees so engaged, and shall maintain in good condition without cost to the employees, working clothes to be kept and used exclusively by such employees while at work and all employees therein shall be required at all times while they are at work to use and wear such clothing; and in all processes of manufacture or labor referred to in this section which are productive of noxious or poisonous dusts, adequate and approved respirators shall be furnished and maintained by the employer in good condition and without cost to the employees, and such employees shall use such respirators at all times while engaged in any work productive of noxious or poisonous dusts.

All of these statutes were in effect and applied to Employer during Claimant’s period of employment.

“The rule is that the burden of proof rests on the claimant in a workmen’s compensation proeeeding[.]” Gudde v. Heiman Grain, Inc., 830 S.W.2d 574, 576 (Mo.App. W.D.1992), overruled on other grounds by Hampton, 121 S.W.3d 220. “To be entitled to the fifteen percent increase under section 287.120.4, a claimant must demonstrate the existence of the statute or order, its violation, and a causal connection between the violation and the compensated injury.” Akers v. Warson Garden Apartments, 961 S.W.2d 50, 53 (Mo. banc 1998), overruled on other grounds by Hampton, 121 S.W.3d 220. “Regarding section 287.120.4, we observe that the ‘purpose of the penalty is to encourage employers to comply with the laws governing safety.’ ” Pavia v. Smitty’s Supermarket, 118 S.W.3d 228, 244 (Mo.App. S.D.2003) (quoting Parker v. Springfield Ry. Servs./Anheuser-Busch, Inc., 897 S.W.2d 103, 108 (Mo.App. S.D.1995)).

Employer argues that Claimant did not present any evidence that the injury occurred prior to the time period where the company furnished masks to its employees or that his “current disease was causally related to any occupational exposure related to an alleged failure by the Employer to provide work clothes.” Employer further argues that there was no evidence “that the masks provided were anything other than ‘adequate and approved,’ which is the statutory standard.”

Claimant’s amended claim for compensation specifically alleged a violation of section 292.320 by Employer for failing to provide the required protective equipment. Via deposition, Dr. Hyers testified that asbestosis is contracted by the breathing of asbestos mineral fibers. According to Dr. Hyers, when these fibers are inhaled, they “set up an inflammatory reaction in the lungs.” The fibers “can’t be digested by the body in any way,” they “can’t be transported out, so the fibrotic process, the scarring process tends to perpetuate in the lungs.”

Claimant testified that although Employer had a safety officer visit the plant and perform breathing tests on the employees, no protective clothing or respirators of any kind were provided to employees until 1972 or 1973. Claimant presented evidence that Employer was subject to these laws during Claimant’s term of employment, and that Employer failed to provide him with a respirator from 1964 until 1972 or 1973. Claimant testified that the first masks Employer provided in 1972 or 1973 were “just throwaway masks just like you buy at the hardware store” with “a little rubber-band type thing” that held it to the employee’s head. According to Claimant, the safety officer then visited the site and “made them [Employer] get rid of all them [sic] masks because they wasn’t [sic] approved for what [the employees] were working in.”

Claimant also presented a “Health Consultation” prepared by the Missouri Bureau of Environmental Epidemiology in cooperation with the U.S. Department of Health and Human Services. This report explained in detail the use of asbestos in Employer’s plant, the level of harmful exposure to employees during the relevant time periods, any safety precautions taken by Employer, the health risks associated with asbestos, and conclusions that were consistent with Claimant’s situation and testimony.

There was ample evidence that Employer was aware of the hazard at the time Claimant was employed at its Zonolite plant. In addition to the statutes previously cited, OSHA regulation of asbestos-exposed workers began in 1971, and testing in 1971 revealed levels of asbestos dust in the Zonolite plant in excess of the permitted amounts.

In making a determination of whether the record contains sufficient evidence to support the award, we do not reweigh the evidence. Custer, 174 S.W.3d. at 610. “Findings of fact made by the Commission within its powers are conclusive and binding.” Id. “Accordingly, ‘on issues concerning credibility and the weight to be given conflicting evidence, we defer to the Commission’s judgment.’ ” Id. (quoting Moriarty, 141 S.W.3d at 72). The ALJ specifically found that “[a] safety officer examined the employees at the plant, suggesting that someone suspected exposure to a hazard.” Furthermore, asbestosis has been a recognized disease for decades. See Counts v. Bussman Mfg. Co., 298 S.W.2d 508, 510 (Mo.App.St.L.D. 1957).

In this case, there was no contrary evidence. Employer presented no evidence to contradict that presented by Claimant, and the ALJ did not find Employer’s argument on the issue persuasive, stating, “It is no answer to say, without any medical support, that [Claimant] might have contracted asbestosis after the date that disposable face masks and later when respirators were provided. [Claimant]’s medical evidence clearly demonstrates that [he] contracted asbestosis as a result of breathing asbestos fibers that cannot be transported out of the body. [ ... ] There is certainly nothing in the record that would support a finding that it was only the exposure after 1972 that caused the occupational disease.”

Sufficient competent evidence supported the Commission’s award of the 15% statutory penalty. Point denied.

Decision

That portion of the Commission’s order affirming the award to Claimant of the 15% statutory penalty is affirmed. That portion of the Commission’s award affirming the capping of Claimant’s weekly wage benefits at $95 is reversed, and the Commission is hereby directed to enter an award granting Claimant weekly wage benefits in the amount of $161.91. In all other respects, the award of the Commission is affirmed.

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

      . Unless otherwise noted, all references to statutes are to RSMo 2000.

      . Each party’s brief actually includes two separately numbered paragraphs as points relied on. However, only one of each parties’ "points” contains an allegation of error. The other simply asserts that the Commission did not err in granting the relief the other party now challenges on appeal.

      . While the insurer did stipulate to this being the wage the employee was earning, it did not stipulate that this was the correct wage period to use in calculating the employee’s benefits. Id. at 421.

      . The language of this section remains unchanged as of the writing of this opinion.

      . The General Assembly also had the benefit of the reasoning of Renfro, supra, and its progeny, which yields a similar result: "We are unable to perceive how it can logically or justly be held that there is a compensable injury in an occupational disease case until there is disability on the part of the employee which affects his earning power.” Renfro v. Pittsburgh Plate Glass Co., 235 Mo.App. 226, 130 S.W.2d 165, 170 (Mo.App.St.L.D.1939).


text:
    Kelly Lynn JOHNSON, Petitioner-Appellant, v. David Scott DEBYLE, Respondent-Respondent.
    No. SD 29612.
    Missouri Court of Appeals, Southern District, Division One.
    May 28, 2010.

      Christopher S. Warden, Joplin, MO, for Appellant.
    James R. Sharp,.- Springfield, MO, for Respondent.
   DON E. BURRELL, Judge.

Kelly Johnson (“Mother”) appeals the judgment dissolving her marriage to David Debyle (“Father”). In seven, somewhat overlapping points on appeal, Mother alleges the court committed reversible error by: 1) awarding custody of the children to Father instead of to third-party intervenors; 2) issuing a parenting plan that is so vague and indefinite as to constitute an unenforceable, conditional judgment; and 3) wrongly dividing multiple bank accounts the parties held during the marriage. We affirm in part, reverse in part, and remand the cause for further proceedings consistent with this opinion.

Factual and Procedural Background

Viewed in the light most favorable to the judgment, Hunt v. Hunt, 65 S.W.3d 572, 578 (Mo.App. S.D.2002), the facts are as follows. Mother and Father were married for almost eleven years when they separated in January of 2005. The parties have two minor children: L.D., born January 17, 1997; and K.D., born June 1, 2000.

On August 4, 2005, Mother filed a petition to dissolve the marriage. At some point after the petition was filed, Mother’s parents, Carole and Earl Johnson (“Inter-venors”), decided to seek custody of their grandchildren and were allowed to intervene in the case on June 18, 2007. The case was tried fourteen months later, on August 28, 2008. Mother requested sole custody of the children in her petition and at trial.

The trial court’s judgment granted Father “sole legal and sole physical custody” of the children and found Mother to be an unfit parent. Although the court acknowledged that Father had narcissistic personality traits, it did not find him to be an unfit parent and found that Terry Wolf, a licensed professional counselor, best described Father’s situation at the time of trial “by stating that Father had a toxic relationship with Mother exacerbating his narcissistic characteristics.” Mother was awarded regular parenting time every other weekend and on Tuesdays after school, but had several restrictions placed on her visitation. The nature of those restrictions will be more fully discussed in our analysis of Mother’s third point. Additional facts relevant to the disposition of this appeal will also be set forth in the context of our analysis of the points to which they relate.

Standard of Review

In a dissolution proceeding, we will affirm the trial court’s judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.” In re Altergott, 259 S.W.3d 608, 613 (Mo.App. S.D. 2008). Appellate courts should “exercise extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence, and [should] do so only upon a firm belief that the judgment was wrong.” In re D.M.S., 96 S.W.3d 167, 171 (Mo.App. S.D.2003). We defer to the trial court’s credibility determinations, recognizing that the court is free to accept or reject all, part, or none of the testimony presented. Trunko v. Trunko, 642 S.W.2d 673, 674-75 (Mo.App. E.D.1982). Especially in regard to child custody decisions, the trial court’s determinations are entitled to deference even if some of the evidence would support a different conclusion. MacCurrach v. Anderson, 678 S.W.2d 459, 463 (Mo.App. E.D.1984); Hunt, 65 S.W.3d at 578.

Analysis

Points I, II, & IV: Custody of the Minor Children

Mother’s first, second, and fourth points all relate to her allegation that the trial court erred in awarding custody of the children to Father instead of to In-tervenors because it failed to consider Father’s domestic violence towards the children and his narcissistic personality disorder. As earlier noted, Mother testified at trial that she should be awarded sole custody of the children. Mother’s assertion on appeal that custody of the children should have been awarded to In-tervenors was not the relief she requested from the trial court. Furthermore, Intervenors have not appealed the trial court’s custody decision.

“On appeal, a party is bound by the position he took in the trial court and will not be heard on a different theory.” In re Short, 847 S.W.2d 158, 167 (Mo.App. S.D. 1993). Having asked the trial court to grant sole custody of the children to her, Mother is precluded from arguing on appeal that the trial court erred by failing to award custody to Intervenors. See In re Murphey, 207 S.W.3d 679, 688 (Mo.App. S.D.2006). Points I, II, and IV are denied.

Point III: Enforceability of the Parenting Plan

Mother’s third point contends the provisions in the parenting plan that set forth the conditions Mother must meet before being allowed to exercise unsupervised visitation are so vague and indefinite that they render the judgment unenforceable as an unauthorized, conditional judgment. We disagree.

“Provisions in a decree relating to child custody or visitation should be definite and indefinite provisions are void and unenforceable.” Hunt, 65 S.W.3d at 577. As a general rule, a judgment is considered indefinite and unenforceable if “enforcement of [the] judgment is conditional upon the occurrence or non-occurrence of future acts.” Burch v. Burch, 805 S.W.2d 341, 343 (Mo.App. E.D.1991). For example, provisions that order an automatic change of child custody when a future event occurs have regularly been held unenforceable because the judgment predetermines what would constitute a significant change in circumstances. Id.

Here, however, the terms challenged by Mother relate to the exercise of her visitation rights — they are not provisions that would pre-authorize a change in child custody. As earlier indicated, the trial court specifically found Mother to be an unfit parent based on her history of drug abuse. In light of that finding, the trial court’s parenting plan provided that Mother’s visitation with the children would be supervised unless certain conditions were met. The relevant provisions are as follows:

All of Mother’s visitation pursuant to this Parenting Plan shall be supervised at all times by Parenting Solutions of Joplin or by Carole Johnson until such time that Mother submits to a hair follicle test and the test shows negative for all illegal substances. Mother shall be tested at Occumed and shall be photographed at each test to assure Mother’s identity. Mother shall provide all test results to Father. After testing negative, Mother shall have unsupervised visitation as set forth herein, however Mother shall submit to hair follicle testing every 60 days thereafter and provide Father with copies of each test results [sic]. Should Mother fail a test or not provide a test result, then Mother’s visitation shall be supervised at all times and continue to be supervised until Mother provides a negative hair follicle test result. Testing shall continue each 60 days until Mother has provided 12 consecutive negative test results. Thereafter, Mother shall submit to hair follicle testing upon written request of Father and at Father’s cost unless the test shows positive in which event Mother shall pay for the test. Upon a positive test, Mother’s visitation shall again be supervised until a negative hair follicle test result is provided. Mother shall thereafter again be tested every 60 days until 24 consecutive tests are negative. Mother shall bear the cost of all testing except a test requested by Father in writing that shows negative results. In addition to the hair follicle testing, [Mother] shall submit to UA testing within 24 hours of receipt of Father’s written request. A positive test result for alcohol or illegal drugs shall be treated as and result in the same supervised visitation as a positive hair follicle test.

Contrary to Mother’s assertion that these conditions allow Father to require “unlimited drug testing” before Mother may begin exercising unsupervised visitation, the above-quoted language indicates that Mother’s visitation will be unsupervised as soon as she has one hair follicle drug test that shows a negative result. And, although Mother is correct in asserting that provisions governing whether visitation will be supervised or unsupervised must not be indefinite and vague, the case she cites, Pilger v. Pilger, 972 S.W.2d 628 (Mo.App. S.D.1998), does not help her.

In Pilger, the provision the court found unenforceable was “[t]he condition that visitation be ‘under such supervision and conditions as the mother determines that the children will be safe[.]’ ” Id. at 630. The specific, detailed provisions governing whether Mother’s visitation will be supervised or unsupervised in the case at bar are the antithesis of the provision found unenforceable in Pilger. Point III is denied.

Points V, VI, and VII: Property Division

Mother’s fifth through seventh points all assert the trial court erred by failing to categorize certain property as marital or non-marital and then divide it in an equitable manner. Specifically, Mother challenges the distribution of accounts the parties had with Community Bank and Trust, American Century, Janus Fund, Signature Bank, and Arvest Bank.

Section 452.330 governs the division of property in a dissolution proceeding. Jarvis v. Jarvis, 131 S.W.3d 894, 899 (Mo.App. W.D.2004). “It mandates a two-step process by the trial court: (1) the court must set aside to each spouse his or her separate property, and (2) divide the remaining marital property.” Tipton v. Tipton, 993 S.W.2d 567, 568 (Mo.App. S.D.1999) (emphasis in original). This process requires the trial court to make individual findings as to whether each asset is marital or non-marital property. Id. “Until a decision is made as to whether certain property is separate, this court can not adequately determine whether a just division of marital property occurred.” Id. (quoting In re Steele, 844 S.W.2d 104, 105 (Mo.App. S.D.1992)).

Here, the court’s judgment, with one exception, simply awards property to Mother or Father without first determining whether the assets are marital or non-marital. Without the trial court engaging in the mandatory two-step process outlined above, it is impossible for this Court to address Mother’s arguments and determine if a just division of marital property occurred. See Wilkerson v. Wilkerson, 50 S.W.3d 281, 283 (Mo.App. S.D.2000). Points granted.

Decision

The trial court’s judgment is reversed as to the division of property. In all other respects, the judgment is affirmed. The case is remanded to the trial court which is hereby directed to first classify and then divide property in a manner consistent with the requirements of section 452.330. The trial court may, in its discretion, permit additional evidence to be presented on remand.

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

      . The judgment at issue is the second amended judgment of dissolution entered January 13, 2009.

      . Mother’s fourth point challenges the trial court’s decision to allow Mr. Wolf to render expert testimony about Father’s alleged personality disorder. Because the issue is relevant only to the court's custody decision, we need not address it.

      . Mother also challenges as vague and indefinite terms in the judgment that purport to govern when Father may cease attending court-ordered counseling for his alleged personality disorder. Because these terms relate only to Father (who does not appeal) and have no purported effect on Mother’s visitation rights, they will not be addressed.

      . All statutory references are to RSMo 2000.


author: PER CURIAM.

text:
    Avis HAYMON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94016.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 8, 2010.
    Brocea Smith, Missouri Public Defender Office, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Foster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Avis Haymon (Movant) appeals from the motion court’s denial, without an evidentia-ry hearing, of his Rule 24.035 amended motion for post-conviction relief. Movant entered pleas of guilty to amended charges of second-degree murder and armed criminal action and was sentenced to twenty years and three years of imprisonment for the crimes, respectively, to run concurrently. Finding no clear error in the motion court’s ruling, we affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Kevin HAMMERSCHMIDT, Plaintiff/Appellant, v. Michael S. WRIGHT, Defendant/Respondent.
    No. ED 93906.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 8, 2010.

      Kevin Hammerschmidt, Jefferson City, MO, Acting pro se.
    Michael S. Wright, Warrenton, MO, Acting pro se.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J„ and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Kevin Hammerschmidt (Appellant) appeals from the trial court’s judgment dismissing his petition for Declaratory Judgment alleging that Michael S. Wright violated the Sunshine Law. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court did not err in dismissing Appellant’s petition. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . Section 610.010 et seq. RSMo 2006.


text:
    Howard B. CHAPMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93846.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 8, 2010.
    Brocea L. Smith, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Karen L. Kramer, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Howard Chapman (“Movant”) appeals from the denial of his Rule 29.15 motion for post-conviction relief without an evi-dentiary hearing. Movant argues the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because he pleaded facts, not refuted by the record, showing that his sentencing counsel was ineffective for failing to object or to move to quash the panel when the State elicited prejudicial and inflammatory remarks from the jury panel during voir dire for Movant’s re-sentencing.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).