author: PAUL McGHEE, Senior Judge.

text:
    Stephanie PITTMAN, Appellant, v. RIPLEY COUNTY MEMORIAL HOSPITAL, Respondent.
    No. SD 29640.
    Missouri Court of Appeals, Southern District, Division Two.
    July 26, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied Aug. 17, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Jasper N. Edmundson, Jr., Edmundson, Edmundson & Innes, Poplar Bluff, Kirk D. Holman, Amy P. Maloney, Holman Schi-vone, LLC, Kansas City, for Appellant.

      James E. Spain, Kristi J. Booker, Spain, Miller & Spain, LLC, Poplar Bluff, for Respondent.
   PAUL McGHEE, Senior Judge.

Appellant sued respondent, her former employer, alleging that she had been denied promotion to the position of emergency room supervisor at the hospital in retaliation for her complaint that she had been sexually harassed by a physician working for the hospital. She bases her retaliation claim on § 213.070. The case was tried to a jury, which found in favor of the hospital. The trial court entered judgment for the hospital, and appellant appeals. We affirm.

On November 24, 2004, appellant was working as a registered nurse in the hospital emergency room where a contract physician also worked. On that day, she found a floppy disk that the physician had taped to her office desk. Not knowing who put the disk there, or what it contained, she later viewed it with a co-worker, and they saw sexually explicit images of the physician and a female. The two coworkers immediately informed the emergency room medical director and the director of nursing of the contents of the disk. The hospital administrator called appellant to his office a few days later where they discussed the disk. As a result of the conference, the hospital adjusted her work schedule so that she would work with another physician.

The emergency room supervisor later left her employment at the hospital, and appellant and another nurse applied for the position. The director of nursing and the administrator interviewed both applicants, and in August 2005 they selected the other nurse to fill the position. Appellant continued to work in the emergency room until she resigned in March 2006.

Appellant presented evidence at trial that she was not selected as the emergency room supervisor because of her complaint against the physician, including testimony that the director of nursing later told her, in effect, that she had not been selected because of her complaint. The director of nursing denied that she had told her that, and both she and the hospital administrator denied in their testimony that they had considered the complaint in making their selection. Respondent did not dispute that the physician furnished a sexually explicit disk to appellant and that she filed a complaint of sexual harassment. The controverted liability issue submitted to the jury was whether appellant’s complaint of sexual harassment by the physician was a contributing factor in respondent’s decision not to promote her to the position of emergency room supervisor. The jury resolved the conflicting evidence against her.

In her first point, appellant asserts that the trial court abused its discretion in excluding evidence of sexual harassment by the physician as the evidence was relevant to the core issues of her action for retaliation. The disk contained 27 sexually explicit images, including photographs of the physician and a female engaging in oral sex, and a female shaving her pubic area and showering naked. The trial court did not permit appellant to show the images on the disk to the jury, but permitted her and other witnesses to testify generally about the disk. In addition, appellant attempted to introduce evidence that the physician subsequently asked a female employee to go “parking,” which she took as an invitation to have sex; that he later made vulgar sexual comments to another employee; and that he had performed inappropriate examinations of breasts of female patients. There is no indication that these comments, or the examinations, were made in the presence of appellant. The trial court excluded this evidence. The issues raised by this point are whether the excluded evidence was admissible as being both logically and legally relevant; and, if admissible, whether the trial court abused its discretion in excluding the evidence.

Respondent argues that the evidence was not logically relevant because appellant’s claim was not for sexual harassment, but was a claim of retaliatory failure to promote her because she complained to management about the harassment. Respondent also contends that the evidence was not legally relevant as it would have created a substantial likelihood that the jury would have been misled or confused by the “graphic nature” of the photographs.

Appellant principally relies on federal case law in support of her contention that the excluded evidence should have been admitted, as does respondent in support of its position. Our Supreme Court has directed that in deciding a case under the MHRA, appellate courts are guided by both Missouri law and federal employment discrimination law consistent with Missouri law. Willard v. Raga, 290 S.W.3d 768, 772 (Mo.App.2009) (citing Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007)).

Although this court gives respectful consideration to the federal cases cited by the parties, “[w]e are not bound by general declarations of law made by lower federal courts.” Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783, 784 (Mo.1973); Ranch v. K.F.C. Nat’l. Management Corp., 615 S.W.2d 28, 33 (Mo. banc 1981). See also Morris v. Karl Bissinger, Inc., 272 S.W.3d 441, 443 (Mo.App.2008). “[W]hile federal interpretations of similar procedural rules can provide us illustrative and useful guidance; they are not controlling, even if the federal rule is nearly identical to Missouri’s.” Richter v. Union Pacific R. Co., 265 S.W.3d 294, 299 (Mo.App.2008).

“Generally, the law of the forum governs the admissibility of evidence.” State v. Simon, 680 S.W.2d 346, 352 (Mo.App.1984). Matters of procedure are governed by the law of the forum, and what is substantive and what is procedural is for the court of the forum to decide. Miller v. Haynes, 454 S.W.2d 293, 298 (Mo.App.1970). Admissibility of evidence is a procedural matter governed by the law of Missouri; we resolve the issues raised by appellant as to admissibility of evidence under settled Missouri law. See Keith v. Burlington Northern R. Co., 889 S.W.2d 911, 920 (Mo.App.1994).

Fundamental to the Missouri law of evidence is the rule that evidence must be both logically and legally relevant in order to be admissible. Evidence is inadmissible if it fails to satisfy either prong of this bifurcated relevancy standard.
Evidence is logically relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case.
Legal relevance, on the other hand, requires the balancing of the probative value of the proffered evidence against its prejudicial effect on the jury. Stated another way, legal relevance is determined by weighing the probative value of the evidence against its costs, including unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Thus, logically relevant evidence is excluded if its costs outweigh its benefits. Ultimately, the determination of whether evidence is legally relevant rests within the sound discretion of the trial court. Consequently, if evidence is erroneously admitted or excluded, we will reverse only if the error results in substantial and obvious injustice. (Internal citations and quotation marks omitted). Shelton v. City of Springfield, 130 S.W.3d 30, 37 (Mo.App.2004). See also Eckerd v. Country Mut. Ins. Co., 289 S.W.3d 738, 743 (Mo.App.2009).

Trial courts have broad discretion over the admissibility of evidence and appellate courts will not interfere with their decisions unless there is a clear showing of abuse of discretion. Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003). ‘“The trial court is in the best position to evaluate whether the potential prejudice of relevant evidence outweighs the relevance. [It] is vested with broad discretion in ruling questions of relevancy of evidence and, absent a clear showing of abuse of that discretion, the appellate court should not interfere with the trial court’s ruling.’ ” Giles v. Riverside Transport, Inc., 266 S.W.3d 290, 295 (Mo.App.2008) (quoting State v. Hawkins, 778 S.W.2d 780, 782-83 (Mo.App.1989)). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court, and it is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. Hancock v. Shook, supra.

The basis of the trial court ruling excluding the evidence as not being logically relevant was that appellant’s claim was for retaliatory failure to promote her, not for the conceded act of sexual harassment. The evidence was excluded as not being legally relevant because it tended to unfairly prejudice respondent and confuse the issues presented to the jury. The ruling of the trial court was within its sound discretion; it was not clearly against the logic of the circumstances; and it was not so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. The record shows that the trial court carefully considered the admissibility issue, and it did not err in excluding the evidence. Point I is denied.

Appellant contends in Point II that the trial court abused its discretion in admitting evidence of financial data of the hospital that was hearsay and lacked proper foundation. Appellant asked for actual and punitive damages in her prayer for relief, and § 213.111.2 permits recovery of both actual and punitive damages in claims brought under the MHRA. Alhalabi v. Mo. Dept. of Natural Resources, 300 S.W.3d 518, 528 (Mo.App.2009). Appellant would have been entitled to punitive damages had she established respondent’s liability for actual damages and then proved by clear and convincing evidence that respondent’s conduct was outrageous because of its evil motive or reckless indifference to appellant’s rights. Gilliland v. Missouri Athletic Club, 273 S.W.3d 516, 520 (Mo. banc 2009).

Section 510.263 authorizes a bifurcated trial in an action tried before a jury including punitive damages if requested by any party. Respondent filed a request for a bifurcated trial, but later withdrew the request. Appellant made no such request, and the case was tried in a single stage in which the parties presented their evidence on the financial condition of respondent, and the court instructed the jury on punitive damages with the other instructions. As the jury found for respondent on the liability issue, it did not reach the issue of damages.

Appellant attempted to prove the financial status and net worth of respondent by introducing into evidence a state audit of Ripley County which showed that at the end of calendar years 2005 and 2006, Ripley County had a surplus of more than $1,000,000. Respondent established that the same audit also showed the hospital owed the Internal Revenue Service more than $2,000,000. This evidence came in without objection by either party.

Respondent called its chief financial officer to testify as to its financial condition as revealed in an audit of the hospital made by a firm retained by it. She testified, over the objection of appellant, that the audit showed for the three previous years the hospital had operated at a loss, and that the liabilities of the hospital exceeded its assets by approximately $625,000. The audit set the amount of the indebtedness to the Internal Revenue Service at approximately $2,400,000. The witness testified that the audit was required by the state, and the auditors came to the hospital and obtained from her the documents they used to prepare the audit.

Appellant argues that the audit report was hearsay because no representative of the accounting firm testified to lay a proper foundation or otherwise authenticate the audit. She further argues that the evidence was inadmissible because of lack of compliance with § 490.680. That section provides that a record of an act, condition or event, if relevant, shall be competent evidence if the custodian or other qualified witness testifies to the identity and mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

Respondent contends that as the jury did not assess actual damages, it could not assess punitive damages against it, citing The Williams Carver Co. v. Poos Brothers, Inc., 778 S.W.2d 684 (Mo.App.1989). In that case, the plaintiff sued the defendant in quantum meruit, and the defendant filed a counterclaim alleging fraudulent misrepresentation and seeking punitive damages. The trial court refused to submit the punitive damages issue to the jury. The jury found in favor of the plaintiff on its quantum meruit claim and against the defendant on its counterclaim. The defendant raised as error on appeal the refusal to submit the issue to the jury. The court held that the defendant was not prejudiced by the refusal to submit the punitive damages issue as actual damages must be awarded before punitive damages may be awarded. Id. at 686.

A punitive damage claim must be brought in conjunction with a claim for actual damages, and a plaintiff must prevail on her underlying claim before she can recover punitive damages. Kelly v. State Farm Mut. Auto. Ins. Co., 218 S.W.3d 517, 526 (Mo.App.2007) (citing Misischia v. St. John’s Mercy Med. Ctr., 80 S.W.3d 848, 866 (Mo.App.2000)). In the absence of an award of actual or compensatory damages, appellant could not recover punitive damages. Agnello v. Walker, 306 S.W.3d 666, 678 (Mo.App.2010). As appellant could not recover punitive damages, we need not determine whether the trial court erred in admitting the evidence of respondent’s financial condition that its chief financial officer gleaned from the audit of the hospital. However, a review of the issue of the admissibility of the evidence on the merits discloses neither error nor prejudice. Point II is denied.

Appellant claims in Point III that the trial court abused its discretion in admitting evidence of her character and job performance as that evidence was irrelevant and immaterial and materially prejudiced the jury against her. The specific evidence which she mentions in her brief is “alleged failings in interpersonal skills, being ‘burned out’ from a previous position, and having problems with attendance.” She says that discovery and trial evidence established that her previous job performance was not a consideration by the director of nursing and the hospital administrator in deciding not to promote her.

The character of a party is generally irrelevant in a civil action and cannot be inquired into if not put in issue by the nature of the proceeding. Ackerman v. Watson, 690 S.W.2d 498, 499 (Mo.App.1985); Williams v. McCoy, 854 S.W.2d 545, 557-58 (Mo.App.1993). An exception to the rule is that a party may impeach or contradict a party on matters brought out on direct examination. Id. at 558.

The court finds no attacks on appellant’s character, but both parties presented evidence about her previous job performance. On direct examination, appellant testified as to her training to become a registered nurse in 2001, and that she commenced working in the hospital emergency room as a registered nurse in May 2001. She resigned in May 2003 for “personal reasons.” She then went to work for the Butler County Health Department, and worked there until she returned to the hospital at the invitation of the director of nursing. After the emergency room supervisor left the hospital, she became the interim supervisor and had no problems, things went smoothly, and there were no complaints about her.

She testified at length as to her certifications and skills which enabled her to perform her duties as an emergency room nurse, and that after she was not selected, the director of nursing told her that she was an excellent nurse and there was nothing wrong with her clinical skills. She testified that after she did not receive the promotion, the director of nursing began to treat her differently in that she started getting “write-ups,” and the director's demeanor changed and she would yell, holler and scream at her.

On cross-examination, she admitted having attendance and tardiness problems before she resigned in 2003; that she had referred to other employees as “brownno-sers” and “crybabies”; and that she had stated the director of nursing should be fired. During the cross-examination, she testified, “I thought I did my job great,” and that she thought she was a better emergency room nurse than the other applicant.

Appellant presented evidence to show that she was an excellent nurse and better qualified than the selected applicant; that she was denied promotion only because of her complaint about the act of sexual harassment by the physician. Respondent could properly impeach her testimony about her qualifications and job performance, and could present evidence to contradict her testimony that she was the better qualified applicant whose failure to be selected was in retaliation for her complaint. The evidence as to appellant’s job performance was both logically and legally relevant to rebut the evidence presented by her. The trial court did not err in admitting the evidence. Point III is denied.

For her final point, appellant claims that the trial court erred in denying her a new trial because the cumulative effect of erroneous evidentiary rulings deprived her of a fair trial in that irrelevant and immaterial evidence which was highly prejudicial to her was placed before the jury, while relevant and highly probative evidence was withheld from the jury’s consideration.

“It is true a new trial can be ordered due to cumulative error, even without deciding whether any single point would constitute grounds for reversal.” DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 536 (Mo.App.1991). See also Koontz v. Ferber, 870 S.W.2d 885, 894 (Mo.App.1993). However, the court will not grant relief to a party due to cumulative error when there is no showing that prejudice resulted from any rulings of the trial court. Smith v. Wal-Mart Stores, Inc., 967 S.W.2d 198, 205 (Mo.App.1998). As we find no trial court errors and no prejudice to her from the rulings of the trial court, appellant is not entitled to relief on her claim that the trial court erred in denying a new trial on the basis of cumulative errors. Point IV is denied.

“ ‘The jury is the sole judge of the credibility of witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony.’ ” Keveney v. Missouri Military Academy, 304 S.W.3d 98, 105 (Mo. banc 2010) (quoting Altenhofen v. Fabricor, Inc., 81 S.W.3d 578, 584 (Mo.App.2002)). The jury resolved in favor of respondent the factual dispute of whether appellant’s complaint was a contributing factor in the decision not to promote her. Appellant did not establish that she did not receive a fair trial, and we see no substantial and obvious injustice. The trial court did not err in denying her a new trial. The judgment is affirmed.

SCOTT, C.J., and RAHMEYER, J„ concur.

      . RSMo 2000, of the Missouri Human Rights Act (MHRA). The statute provides, inter alia, that it is an unlawful discriminatory practice to retaliate or discriminate in any manner against any person who has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to the MHRA. (Statutory citations are to RSMo 2000 unless otherwise noted.)

        . This case has been overruled on an unrelated point of law. See Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 831 n. 3 (Mo.App.2005).

      . RSMo Cum.Supp.2006.


source: Caselaw Access Project

author: LISA WHITE HARDWICK, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jason C. POWELL, Appellant.
    No. WD 70540.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.

      Kent Denzel, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Jamie P. Rasmussen, Esq., Jefferson City, MO, for respondent.
    BEFORE DIVISION ONE: LISA WHITE HARDWICK, Chief Judge, Presiding., JAMES M. SMART, JR. and ALOKAHUJA, Judges.
   LISA WHITE HARDWICK, Chief Judge.

Jason Powell appeals his conviction on two counts of first-degree child molestation, following a jury trial. Powell contends the circuit court erred in: (1) denying his motion for a mistrial after the prosecutor asked on cross-examination whether he had “ever molested anyone”; and (2) overruling his objections to the minor victims holding teddy bears on the witness stand at trial. For reasons explained herein, we affirm the judgment of conviction.

Factual and PROCEDURAL History

Minors H.S. and M.S. lived in a home with several family members, including their uncle, Jason Powell. Powell often took the many children in the home on trips to the park, to the store, and to go fishing.

On October 11, 2004, Powell took six of his nieces and nephews, including H.S., in his van to go fishing at Cole Camp Creek. Kim McDonald had stopped at the creek and noticed two people in the back of a van who she believed were engaged in sexual activity. When McDonald approached the van, Powell climbed into the front seat and said he was looking for fishing tackle, even though McDonald had not asked him what he was doing. Powell appeared to be holding someone behind him from moving into the front of the van.

McDonald went down to the creek and saw five children playing by the water. Soon thereafter, she saw H.S. walking from the van to the creek while crying. Concerned with what she witnessed, McDonald went to a nearby convenience store and contacted police.

McDonald returned to the creek and saw Powell in the van with H.S. Powell got angry upon seeing McDonald; he called the other children back into the van and drove away. Deputy Sheriff Roy Locke arrived a few minutes later. McDonald gave Locke a description of the van and told him which way Powell had driven.

Locke encountered the van about a mile down the road parked in some brush. There were children playing down by the creek. The side door of the van was open, and H.S. was crying while sitting inside the van. Powell was kneeling in front of her. When Locke asked Powell what was going on, Powell said he was fixing a fishing pole. Locke did not see a fishing pole in the van. When H.S. got out of the van she pulled her pants up higher around her waist and put on her shoes before joining the other children by the creek.

Upon further investigation, H.S. and her older sister M.S. told authorities that Powell had forced them to have sex with him on several occasions. Powell was charged ■with two counts of first-degree child molestation, a violation of Section 566.067.

At the jury trial, Powell’s counsel objected when eleven-year-old H.S. carried two teddy bears as she approached the witness stand to testify. Powell’s counsel argued, during a sidebar conference, that there wasn’t any reason H.S. needed to hold the teddy bears while on the stand. The trial judge overruled the objection, stating that “there [was] some new section of law in the State of Missouri that the Court shall make accommodations for young witnesses and particularly witnesses in these kinds of cases.”

H.S. testified at trial that Powell had sexual intercourse with her on October 11, 2004, the date when McDonald had approached the van at Cole Camp Creek. She said that Powell had forced her to have sexual intercourse with him on many occasions, at his home and when they went on fishing trips, since the time she was seven years old. H.S. also testified that Powell had sexual intercourse with M.S. in the van during fishing trips.

Sixteen-year-old M.S. also carried a teddy bear to the witness stand, and Powell’s counsel renewed his objection. During a sidebar conference, the prosecutor stated that the teddy bear had been used to help M.S. feel more comfortable during counseling sessions. The court overruled the objection, stating that the benefit of the teddy bear to M.S. outweighed any alleged prejudicial effect.

M.S. testified that she did not go fishing with Powell on October 11, 2004, but she had gone on a number of other fishing trips with Powell. She said that Powell forced her and H.S. to have sexual intercourse with him in the van during many of these trips. She also testified that Powell had sexual intercourse with her in other locations since she was seven years old. M.S. testified that she kept quiet about the abuse because Powell had said he would kill her and her parents if she told anyone what he had done to her.

Powell testified at trial and denied ever having sexual intercourse with H.S. or M.S. During cross-examination, the prosecutor asked Powell, “Have you ever molested anyone?” Powell responded, “No.” Powell’s counsel objected and argued there was no factual basis for the question. Outside the hearing of the jury, the court told the prosecutor, “You’re asking about anyone and that is a prior bad act. If you’ve got a conviction you can inquire about that conviction.” The prosecutor responded, “I think there’s a very good possibility that he’s done something similar to this before.” The court sustained the objection, explaining that the prosecutor was only entitled to ask Powell about prior convictions.

Powell’s counsel moved for a mistrial. The court denied the motion and instructed the jury to disregard the prosecutor’s last question. The prosecutor rephrased the question and asked Powell if he had ever been convicted of, pled guilty to, or received treatment for a sex-related crime. Powell responded, “No.”

The jury returned a guilty verdict on both counts of first-degree child molestation. The court sentenced Powell to consecutive six-year prison terms. Powell appeals.

Analysis

Motion for Mistrial

In Point I, Powell contends the circuit court abused its discretion in overruling his motion for a mistrial after the prosecutor asked him whether he had ever molested anyone. We review the denial of a motion for a mistrial for abuse of discretion. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock our sense of justice and indicate a lack of careful consideration. State v. Moyers, 266 S.W.3d 272, 278 (Mo.App.2008).

Powell testified in his own defense that he did not commit the offenses alleged in this case. He did not testify broadly that he never molested anyone. During cross-examination, the prosecutor asked Powell, “Have you ever molested anyone?” Powell’s counsel objected to the question, and the court sustained the objection and instructed the jury to disregard the question. The court denied Powell’s further request for a mistrial. On appeal, Powell argues the question was a bad faith attempt by the prosecutor to influence the jury with improper evidence of prior misconduct. He asserts the inquiry so prejudiced the jury against him that a mistrial was mandated.

Generally, evidence of prior uncharged misconduct is inadmissible for the sole purpose of showing a defendant’s propensity to commit criminal acts. State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001). This rule exists because “[ejvidence of other crimes, when not properly related to the cause on trial, violates a criminal defendant’s right to be tried only for the crime with which he is charged.” State v. White, 230 S.W.3d 375, 378 (Mo.App.2007).

However, “[a] defendant may be cross-examined about his prior convictions for the purpose of impeaching his credibility.” State v. Weber, 814 S.W.2d 298, 301 (Mo.App.1991); § 491.050. Prior convictions can be proven by record or through cross-examination of the defendant. § 491.050. Cross-examination is limited by a “general requirement of fairness ... and if there is no reasonable basis on which to base such a cross-examination, it should not be made.” State v. Creason, 847 S.W.2d 482, 486 (Mo.App.1993). Thus, it is improper for a prosecutor to raise an unsupported inference of prior criminal misconduct by the defendant under the guise of impeachment. State v. Amos, 490 S.W.2d 328, 330 (Mo.App.1972).

“[W]e do not infer bad faith merely from a prosecutor’s failure to produce record evidence of a defendant’s convictions after his denial of such convictions.” Weber, 814 S.W.2d at 302. “[A] prosecutor does not have an affirmative duty to lay a documentary foundation prior to questioning a defendant about prior convictions, nor does he have the affirmative duty to establish the bona fides of such questioning after a defendant’s denial.” Id.

In Amos, the trial court denied a motion for mistrial after the prosecutor displayed what appeared to be an official FBI “rap sheet,” not offered into evidence, before the jury while persisting to question the defendant about a number of felonies after the defendant unequivocally denied having ever been convicted of a felony. 490 S.W.2d at 329-32. On appeal, we reversed and granted a new trial, explaining that “[t]he full course of the impeachment cross-examination created an unmistakable, although legally unsupportable, inference that defendant had been convicted of grand larceny.” Id. at 331.

In Powell’s case, the prosecutor did not persist in a course of questioning that created an unsupportable legal inference; instead, he properly rephrased his question after the circuit court sustained the objection by defense counsel. Once Powell denied having any prior convictions or treatment for a sex-related offense, the prosecutor did not in any manner imply to the jury that he was aware Powell had molested someone in the past. Considering these circumstances, we do not believe the prosecutor’s questioning was in bad faith.

We also disagree that that the court was required to grant a mistrial. “The declaration of a mistrial is a drastic remedy to be exercised only in those extraordinary circumstances in which the prejudice to the defendant cannot otherwise be removed.” Johnson, 901 S.W.2d at 62.

In considering prejudice to the defendant, our court has held that despite the general rule prohibiting propensity evidence of uncharged crimes, “fvjague and indefinite references to misconduct do not warrant a mistrial unless the reference is clear evidence of the defendant’s involvement in another crime.” State v. Norris, 237 S.W.3d 640, 644 (Mo.App.2007). We are mindful that the trial court is in the better position to evaluate the prejudicial effect of the incident giving rise to the request for a mistrial and determine whether a curative instruction is adequate to cure any prejudice. Johnson, 901 S.W.2d at 62. We must presume the jury followed the trial court’s instructions to disregard improper questions. Woods v. Friendly Ford, Inc., 248 S.W.3d 699, 707 (Mo.App.2008).

Here, the prosecutor asked Powell if he had ever molested anyone, to which Powell responded, “No.” While improper, this question was brief, vague, and indefinite, and the circuit court timely instructed the jury to disregard the question. Additionally, the jury was provided Instruction No. 2, patterned on MAI-CR 3d 302.02, which directed that they “must not assume as true any fact solely because it is included in or suggested by a question asked [of] a witness” and “[a] question is not evidence, and may be considered only as it supplies meaning to an answer.”

The circuit court had the opportunity to evaluate, first hand, any potential prejudicial effects from the prosecutor’s question. The court’s explanation to the prosecutor and the curative instructions indicate that it acted carefully to guard against any improper influence on the jury. Accordingly, the court did not abuse its discretion in denying the motion for mistrial. Point I is denied.

Objections to Teddy Bears

In Point II, Powell contends the circuit court abused its discretion in overruling his objection to the child witnesses holding teddy bears during their trial testimony. Powell argues there was no indication that eleven-year-old H.S. or sixteen-year-old M.S. were unable to testify without the comfort items. He also asserts the teddy bears unfairly bolstered the witnesses’ testimony and made the jury more sympathetic to their allegations.

The trial court has considerable discretion in matters regarding examination of witnesses. State v. Gollaher, 905 S.W.2d 542, 546 (Mo.App.1995). “The exercise of that discretion should not be disturbed on appeal unless it has been abused or substantial harm has been improperly done to the complaining party.” Id. at 546-47.

Courts often allow non-standard procedures in cases involving the examination of minors in sexual abuse cases:

Young children, who are victims of sexual abuse, have great difficulty in recounting to juries the sordid details of their painful experience. Wide latitude should be granted to trial courts so that such victims can recount their experiences without being overwhelmed by crippling emotional strain. Their testimony is often of critical importance since they are often the only occurrence witness.

State v. Pollard, 719 S.W.2d 38, 42 (Mo.App.1986). However, behavior or argument designed solely to appeal to the jury’s emotional sympathy for a witness is irrelevant and, therefore, improper. See State v. Knese, 985 S.W.2d 759, 774 (Mo. banc 1999).

Although not in effect at the time this case was tried, Missouri law currently permits courts to consider whether a child should be allowed to have a toy, blanket or similar item while testifying. § 491.725. This trend follows judicial decisions in other jurisdictions, where courts have found the practice acceptable upon weighing the beneficial effects of the comfort items against any potential prejudice. See State v. Hakimi, 124 Wash.App. 15, 98 P.3d 809, 811-12 (2004) (trial court did not abuse its discretion in permitting two nine-year-old sexual assault victims to testify while holding a doll when it determined the security the object provided the witnesses outweighed any potential prejudice); State v. Marquez, 124 N.M. 409, 951 P.2d 1070, 1074 (1997) (trial court did not abuse its discretion in permitting twelve-year-old sexual assault victim to testify while holding a teddy bear because “[t]he trial court properly balanced the prejudicial effect of the teddy bear against the necessity of the teddy bear’s calming effect”); State v. Cliff, 116 Idaho 921, 782 P.2d 44, 46-47 (1989) (trial court properly allowed eight-year-old sexual assault victim to testify while holding a doll when guardian ad litem testified doll had a calming effect on child). But cf. State v. Palabay, 9 Haw. App. 414, 844 P.2d 1, 5-7, 10-11 (1992) (error, albeit harmless, for the trial court to permit twelve-year-old sexual assault victim to testify while holding teddy bear over the objections of defense counsel when “there [was] no evidence on the record to indicate the compelling necessity for [the victim] to hold a teddy bear while testifying”).

While Missouri courts have not directly addressed this issue, we are guided by analogous decisions involving minor witnesses testifying about traumatic events. In Pollard, we found no prejudicial harm to the defendant when the trial court permitted the mother of the six-year-old sexual assault victim to sit near the counsel table while the victim testified. 719 S.W.2d at 42. In Gollaher, we declined to find plain error when the trial court permitted the grandfather of an eight-year-old girl, who had witnessed the defendant sodomize her young brother, to stand by the witness box and hold the girl’s hand while she testified. 905 S.W.2d at 546.

In this case, the trial court had the opportunity to observe the child witnesses and fully consider the usefulness of the teddy bears against the possibility of any prejudice. The record indicates H.S. and M.S. carried the teddy bears as a source of familiarity and comfort while testifying about very traumatic events in their lives. There is nothing to suggest that the stuffed animals were merely an attempt to cater to the emotional sympathy of the jurors. No reference was made to the teddy bears by any of the witnesses or counsel in the presence of the jury.

We recognize that the children’s ages (eleven and sixteen) may have counseled against the need for such accessories. We also emphasize that trial courts must be cognizant of the possibility that comfort items or other accommodations for minors may unfairly engender sympathy for complaining witnesses. When an objection is raised, courts should require some explanation of the need for such items, particularly when the items will be used during the testimony of teenage children. Nevertheless, in this case, we conclude that the trial court properly weighed the impact of the teddy bears on the witnesses and the jury, and did not abuse its discretion in overruling Powell’s objection. Point II is denied.

Conclusion

We affirm the judgment of conviction.

All Concur.

      . All statutory citations are to the Revised Missouri Statutes 2000, as updated by the Cumulative Supplement 2009.

      . Although it is not clear from the record, the trial judge may have been referring to the Child Witness Protection Act, which did not take effect until August 28, 2009, approximately nine months after Powell’s trial. The Act provides that a child, seventeen years of age or younger, may have a "toy, blanket, or similar item in his or her possession while testifying" in certain types of judicial proceedings and under specified conditions. §§ 491.725.2(1), 491.725.3(4)


author: JOSEPH M. ELLIS, Judge.

text:
    Helen J. PADEN (Kerns), Appellant, v. David S. KERNS, Jr., Respondent.
    No. WD 71182.
    Missouri Court of Appeals, Western District.
    Aug. 17, 2010.

      William C. Votypka, for Appellant.
    James A. Nadolski, for Respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   JOSEPH M. ELLIS, Judge.

Helen Paden (“Mother”) appeals from a judgment modifying the decree dissolving her marriage to David Kerns (“Father”) by terminating his child support obligation based upon the emancipation of the couple’s two children. For the following reasons, the judgment is reversed, and the cause is remanded for further proceedings.

The marriage between Mother and Father was dissolved by the Circuit Court of Buchanan County on September 19, 1991. That decree of dissolution was modified in 1993 to place sole physical custody of the couple’s two sons, Bo Kerns and Joseph Kerns, with Mother, and Father was ordered to pay $465.00 per month in child support. In 2004, Father’s child support obligation was increased by the court to $700.00 per month. On October 2, 2008, Father filed a motion to have the children declared emancipated.

At the evidentiary hearing on Father’s motion, in addition to stipulating that Bo was indeed emancipated, the following facts were stipulated:

Mother’s attorney: Joseph Kerns is 19 years old. He graduated from high school in 2008, in May of 2008.
Father’s attorney: January.
Mother’s attorney: January of 2008. He enrolled in college at Metropolitan Community College at Longview by October 1st of that year. He enrolled in 12 hours of classes. And there was one particular class in which he had an issue with his grades. And the instructor had withdrawn him from the class to sort of protect his GPA and assigned a W grade as opposed to an F. Joseph is now currently enrolled in over 12 hours of classes for the spring semester of 2009. And I believe that that is the — those would be the undisputed facts pertaining to the education portion of this.
The Court: All right. Let’s talk about — finish with that. Mr. Nadolski, anything you want to add to it.
Father’s attorney: No, Your Honor, other than the fact that there was some issues about notice and all that. But I think what Mr. Wortman cited on the record is probably the most relevant information for your consideration under that statute, yes.

In addition, Father submitted a print out of Joseph’s grades for the Fall semester listing a “W” as his grade for Introductory Algebra, and Mother submitted a letter from the Associate Dean of Student Development for the college to Joseph that read:

This letter is regarding our decision to withdraw you from the Mathematics 40 class in which you were enrolled Fall 2008.
The date at which we withdrew you was past the date for assessment, meaning that an automatic grade of “W” was assigned. The instructor has the right to change the “W” to an “F” if he/she so chooses. Your instructor chose not to do so since Fall 2008 was your first semester here and the “F” would adverse [sic] your Grade Point Average. It was an attempt on our part to give you a fresh start next semester.
The reason for the withdrawal boiled down to the obvious reality for both of us that you were not academically prepared for MATH 40 curriculum [sic]. You had shown on your last test that you had not mastered factoring and the class was proceeding to the next level, but mastering factoring was essential for moving on.
I wish we could have detected the issue earlier but we did not. You were technically enrolled full time at the college and remained so for the semester, since the W is a grade. I trust this is understandable to you, and if you or either or both of your parents have questions, they call can [sic].

Following the evidentiary hearing, the circuit court entered its judgment declaring that both children were emancipated. With regard to Joseph, the court found that, while he had graduated from high school and enrolled in twelve hours of college classes the following Fall, Joseph had withdrawn from a three hour class and, therefore, only completed nine hours of coursework. For this reason, the court concluded that Joseph did not satisfy the requirements of § 452.340.5 to avoid becoming emancipated. Mother brings three points on appeal from that judgment.

As in any court tried case, we must apply the standard of review established in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Peine v. Peine, 200 S.W.3d 567, 571 (Mo.App. W.D.2006). “The judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. “In our review, we are to defer to the trial court’s determinations of credibility, viewing the evidence in the light most favorable to the court’s judgment and disregarding all contrary evidence and inferences.” Scruggs v. Scruggs, 161 S.W.3d 383, 388 (Mo.App. W.D.2005). Questions of law, on the other hand, are reviewed de novo. In re Marriage of Maggi, 244 S.W.3d 274, 277 (Mo.App. S.D.2008).

As applicable to this case, Section 452.340.5 states:

If when a child reaches eighteen, ... [i]f the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school ... and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-one, whichever first occurs....

The statute goes on to provide that “[w]hen enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement.” § 452.340.5. “Missouri courts liberally construe section 452.340.5 to be consistent with the public policy of promoting the pursuit of higher education.” Waddington v. Cox, 247 S.W.3d 567, 571 (Mo.App. E.D.2008).

In her first point, Mother claims that the trial court’s finding that Joseph withdrew himself from the math class was not supported by substantial evidence and/or was against the weight of the evidence. Mother notes that both the stipulated facts and the letter from the college reflect that Joseph was involuntarily withdrawn from the class by his teacher and the college.

The parties stipulated that “the instructor had withdrawn [Joseph] from the class.” The letter from the college, admitted without objection, further explains how the college and the instructor decided to withdraw Joseph from the course after the date for assessment and that the instructor had the option of giving him an “F” or a “W” as a result. Aside from stipulating that Joseph was withdrawn from the class, Father did not present any evidence that would support a finding that Joseph voluntarily withdrew from the class, and Father did not offer any evidence, cross-examination, or testimony challenging the credibility of the letter from the college. Aceord-ingly, the trial court’s finding that Joseph voluntarily withdrew himself from the class is not supported by substantial evidence and is against the weight of the evidence.

Since that erroneous determination does not, in and of itself, require reversal, we next turn to Mother’s third point on appeal. Mother claims that the trial court misapplied the law in treating the “W” received by Joseph after being involuntarily withdrawn from the class differently than if he had received an “F” from the instructor for the purposes of § 452.340.5. The trial court specifically found that Joseph’s withdrawal did not constitute failing the class “under any category of failing.”

Where a student voluntarily withdraws from a class prior to its completion, he or she clearly fails to meet the requirements of the statute that the student complete the class. On the other hand, where a child receives a failing grade in a course, provided the child does not fail half or more of his or her classes, the child is deemed to satisfy the requirements of § 452.340.5.

Thus, in the case at bar, had Joseph voluntarily chosen to withdraw from the class prior to the date of evaluation (a/k/a the deadline for voluntary withdrawal), he would clearly have failed to satisfy the twelve hour requirement of § 452.340.5. On the other hand, having been involuntarily withdrawn from the class at a later date, had his instructor elected to give him an “F”, Joseph would clearly have satisfied the statutory requirement under the provisions of the most recent amendment since he would have received a failing grade in the class. We are left to determine the legal effect of the college’s assignment of a “W” grade designation after Joseph had been involuntarily withdrawn from the class and whether the trial court erroneously concluded that it was not a failing grade.

Under the specific facts of this case, where the college treated an involuntary withdrawal of a student from the class as the functional equivalent of an “F” and the instructor had the choice of assigning a grade of “W” or “F” to the student, the “W” received by Joseph should be treated no differently than if he had received an “F” in the class for the purposes of § 452.340.5. The college effectively informed Joseph that he had already failed the course and that it no longer wanted him present in the classroom. To allow the instructor’s act of leniency in deciding to spare Joseph’s grade point average from an “F” to unknowingly and automatically trigger Joseph’s emancipation would serve no rational purpose. Joseph should be in no different position with regard to emancipation than another student who was involuntarily withdrawn from a class but was assigned an “F” by the professor. The “W” received by Joseph was a “failing grade” for the purposes of § 452.340.5.

For the foregoing reasons, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

All concur.

      . All statutory references are to RSMo Cum. Supp.2007 unless otherwise noted.

      . Father has argued at trial and on appeal that Joseph cannot be deemed to have completed 12 hours because he did not end up with credit for twelve credit hours for the semester. From the transcript, it appears the trial court shared that view. Father relies extensively on Lombardo v. Lombardo, 35 S.W.3d 386, 391 (Mo.App. W.D.2000), wherein this Court held that, in order to ‘'complete” 12 hours of credit under § 452.340.5, a child must receive 12 credit hours for their coursework. However, subsequent to Lombardo, in 2007, § 452.340.5 was amended to provide that "[w]hen enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement.” § 452.340.5. Since credit hours are not awarded for failed classes, Lom-bardo was effectively overruled and does not apply to any coursework after the amendment went into effect. See In re Marriage of Maggi, 244 S.W.3d 274, 278 (Mo.App. S.D.2008).

      . Obviously, a class can be successfully failed without attending class, doing the work, or taking exams.

      . Having reached this conclusion we need not consider Mother's second point on appeal wherein she claims Joseph should not have been deemed emancipated because the record establishes that manifest circumstances beyond Joseph's control prevented him from completing 12 hours worth of classes.


author: PER CURIAM.

text:
    Bedford MITCHELL, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 92863.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 17, 2010.
    Lisa M. Stoup, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Robert J. Bartholomew, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Bedford Mitchell (Movant) appeals from the judgment denying his motion for post-conviction relief under Rule 24.035 after an evidentiary hearing. The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value and we affirm by written order. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    1000 EDGEWATER, L.L.C. f/k/a Hemco Four, L.L.C., Respondent, v. Bruce DEGROOT, Appellant.
    No. ED 93644.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 17, 2010.
    Patrick S. Butler, Eureka, MO, for Appellant.
    Nicholas P. Van Deven, Saint Louis, MO, for Respondent.
    Before ROY L. RICHTER, C.J., GLENN A. NORTON, J., GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Bruce DeGroot appeals the trial court’s judgment in favor of 1000 Edgewater, L.L.C. f/k/a Hemco Four, L.L.C. on its petition for breach of lease and personal guaranty. We find that the trial court did not err in finding DeGroot personally liable under the guaranty.

An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Tommy W. BROTHERTON, Appellant.
    No. ED 93513.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 17, 2010.
    Craig A. Johnston, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Mary Highland Moore, Jefferson City, MO, for Respondent.

      Before ROY L. RICHTER, C.J., GLENN A. NORTON, P.J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Tommy Wayne Brotherton (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury convicted him of one count of first degree statutory sodomy, Section 566.062 RSMo (2000) and one count of first degree child molestation, Section 566.067 RSMo (2000). Appellant was sentenced to a term of life imprisonment for the statutory sodomy conviction and fifteen years’ imprisonment for the child molestation conviction, to run concurrently. Appellant raises one point on appeal challenging the sufficiency of the evidence to sustain his conviction for statutory sodomy.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. We find no error of law. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Annie TREADWELL, Appellant, v. The LUTHERAN HOME FOR AGED, Respondent.
    No. ED 94355.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 17, 2010.
    John D. Foley, Anna, IL, for Appellant.
    Amy L. Young, Cape Girardeau, MO, for Respondent.
    Before ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., and JAMES R. HARTENBACH, Sp. J.
   ORDER

PER CURIAM.

Annie Treadwell appeals the Labor and Industrial Relations Commission’s decision denying her workers’ compensation benefits. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Dwayne WINGO, Defendant/Appellant.
    No. ED 93197.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 17, 2010.
    Ellen H. Flottman, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Defendant, Dwayne J. Wingo, appeals from the judgment entered after a jury found him guilty of robbery in the first degree and resisting arrest. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Johnny Lee MCKINNEY, Appellant.
    No. ED 93237.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 17, 2010.
    Timothy J. Forneris, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Daniel N. McPherson, Jefferson City, MO, for Respondent.
    Before ROY L. RICHTER, C.J., GLENN A. NORTON, P.J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Johnny McKinney (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury convicted him of one count of first degree robbery, Section 569.202 RSMo (2000) , two counts of first degree assault, Section 565.050, and three counts of armed criminal action, Section 571.015. Appellant was sentenced to a term often years’ imprisonment on the robbery and assault convictions, and three years’ imprisonment on each armed criminal action conviction, to run concurrently.

Appellant raises two points on appeal. First, Appellant argues the trial court abused its discretion when it denied his motion for a continuance to depose the victims and another witness. Second, Appellant claims the trial court plainly erred in admitting impeachment testimony from a defense attorney who advised Appellant to surrender to the police.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).

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


text:
    Ted E. DAVISON, Jr., Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93401.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 17, 2010.
    John K. Tucci, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Movant, Ted E. Davison, Jr., appeals from the judgment denying his Rule 29.15 motion after an evidentiary hearing. An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Robert SLACK, Appellant.
    No. ED 93182.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 17, 2010.
    Timothy Forneris, Saint Louis, MO, for Appellant.
    Chris Koster, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

      Before ROY L. RICHTER, C.J., GLENN A. NORTON, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Robert Slack appeals the judgment entered upon a jury verdict convicting him of one count of first-degree sodomy and one count of child molestation in the first degree. No error of law appears. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 30.25(b).


text:
    In the Interest of: S.M.J. and B.C.J.
    Nos. ED 93902, ED 93903.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.
    E. Rex Bradley, Louisiana, MO, for appellant.
    Nicole D. Volkert, Paris, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

A.C.J. (Mother) appeals the Judgment and Order of the juvenile court terminating her parental rights to her minor children, S.M.J. and B.C.J. We have reviewed the briefs of the parties and the record on appeal, and we conclude that the juvenile court’s decision finding statutory grounds for termination by clear, cogent, and convincing evidence is supported by substantial evidence; and that the juvenile court did not abuse its discretion in finding termination to be in the best interest of the children. Section 211.447.6 RSMo Supp. 2010; In re P.L.O., 131 S.W.3d 782, 788-89 (Mo. banc 2004); In re S.R.J., 250 S.W.3d 402, 406 (Mo.App. E.D.2008). 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) (2010).


author: MARY K. HOFF, Judge.

text:
    Hairl JOHNSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93541.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.

      Alexandra Johnson, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Respondent.
   MARY K. HOFF, Judge.

Introduction

Hairl Johnson (Movant) appeals from the motion court’s judgment denying his amended Rule 24.035 motion for post-conviction relief. On appeal, Movant argues that the motion court clearly erred because his plea counsel provided him ineffective assistance that impinged on the voluntariness and understanding of his guilty pleas. We reverse.

Factual and Procedural Background

The State of Missouri (the State) charged Movant with four underlying drug-related counts. These counts stemmed from two separate incidents. First, regarding an incident occurring on February 15, 2001, Movant was charged with one class B felony count of second degree drug trafficking, in violation of Section 195.223 , one class C felony count of possession of a controlled substance, in violation of Section 195.202, and one class A misdemeanor count of possession of drug paraphernalia, in violation of Section 195.233. Second, regarding an incident occurring on May 8, 2001, Movant was charged with one class C felony count of possession of a controlled substance, in violation of Section 195.202.

Pursuant to a negotiated written plea agreement dated May 18, 2004, Movant agreed to plead guilty to all four of the above-mentioned counts in exchange for the State’s promise to refrain from proving he was a prior and persistent drug offender and to instead recommend to the plea court that Movant receive concurrent sentences of fifteen years imprisonment on each felony count. Had Movant gone to trial and lost, the State would have proffered evidence that Movant was a prior and persistent offender, and Movant likely would have faced a maximum sentence of life imprisonment without the possibility of parole. At the guilty plea and the subsequent sentencing hearing, both held on May 18, 2004, the plea court accepted the parties’ written plea agreement and sentenced Movant to three concurrent fifteen-year prison terms for each felony count and an additional concurrent one-year prison term for the sole misdemeanor count. During the sentencing hearing, the plea court also stated on the record:

By agreement of the State and the defendant, the Court further orders the defendant be granted credit toward his sentence for the time he spent on bond in the above referenced cases. The Court has signed a separate order to that effect.

The plea court verbalized this bond-credit understanding after it had initially indicated that it would accept the terms agreed upon in the written plea agreement and after Movant stated on the record that he was pleading “guilty.” The terms of the written plea agreement contained no provision mentioning or incorporating this secondary understanding to grant Movant credit for the time he spent on bond, and it expressly provided that it “constitutefd] the entire agreement between [Movant] and the State of Missouri.”

Notwithstanding the plea court’s order, the Missouri Department of Corrections did not credit Movant for the time he had spent on bond. Thus, Movant subsequently filed a pro se motion for post-conviction relief under Rule 24.035 on August 18, 2004. Counsel was appointed and filed an amended motion on Movant’s behalf on November 24, 2004. In his amended motion, Movant claimed that he was denied effective assistance of counsel because, in choosing to plead guilty, he relied on positive, incorrect representations made by his plea counsel, the state, and the plea court that he would be granted jail time credit for time spent on bond. Accordingly, Movant contended that his reliance on these positive representations produced a mistaken belief as to his sentence that rendered his guilty plea unknowing and involuntary.

After conducting an evidentiary hearing in which both Movant and his plea counsel testified, the motion court denied Movant’s amended motion for post-conviction relief. This appeal follows.

Standard of Review

Our review of the motion court’s denial of post-conviction relief pursuant to Rule 24.035 is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k). Findings and conclusions are clearly erroneous if, upon review of the record, we are left with a “definite and firm impression that a mistake has been made.” Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). Movant bears the burden of proving by a preponderance of the evidence that the motion court erred in its ruling. Id.

Discussion

In his sole point on appeal, Movant contends that the motion court erred in denying his amended motion because he was deprived of effective assistance when his plea counsel misinformed him as to the availability of jail time credit for time spent on bond and when his plea counsel, the state, and the plea court all affirmatively represented to him that he would receive such bond time credit as a part of his plea agreement.

To prevail on an ineffective assistance of counsel claim, Movant must demonstrate (1) that his plea counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that his plea counsel’s deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Roberts, 276 S.W.3d at 836. A defendant who pleads guilty waives all claims of error except those affecting the voluntariness of the plea or the understanding with which the plea was made. Roberts, 276 S.W.3d at 836. To satisfy the prejudice requirement, a defendant who has pleaded guilty must demonstrate that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Redeemer v. State, 979 S.W.2d 565, 569 (Mo.App. W.D.1998).

“The validity of a plea of guilty depends on whether it was made voluntarily and intelligently.” Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999). A plea of guilty is not made voluntarily “if the defendant is misled, or is induced to plead guilty by fraud or mistake.” Roberts, 276 S.W.3d at 836. The defendant must enter the guilty plea with sufficient knowledge of its direct consequences. Reynolds, 994 S.W.2d at 946.

Direct consequences are those which “definitely, immediately, and largely automatically follow the entry of a plea of guilty.” Huth v. State, 976 S.W.2d 514, 516-17 (Mo.App. E.D.1998). It is well settled in Missouri that both the trial court and a defendant’s plea counsel have a duty to inform such defendant of the direct consequences of pleading guilty, but neither has a duty to advise such defendant of a guilty plea’s collateral consequences. Id. at 516. In Redeemer, the Western District held that “[k]nowledge that a criminal defendant will not receive credit for the time that he or she was free on bond ... is not a direct consequence of pleading guilty,” thus a defendant’s plea counsel will not be found to be ineffective for failing to advise the defendant as to the unavailability of such credit. 979 S.W.2d at 573.

Movant in this case, however, does not claim that his plea counsel merely neglected to inform as to the non-availability of bond time credit. Rather, Movant’s claim contends that all parties involved— his plea counsel, the State, and the plea court — erroneously misinformed him that he would receive, as a part of his entire plea agreement, jail time credit for the time he was free from custody on bond. See State v. Williams, 978 S.W.2d 454, 460 (Mo.App. E.D.1998) (holding that because Sections 558.031 and 559.100 limit credit toward the services of a sentence of imprisonment to time in prison, jail, custody, or periods of probation or parole, a defendant is not entitled to jail time credit for time while free from custody on bail). In cases where counsel affirmatively misinforms a client about any consequence of pleading guilty, direct or collateral, and thereby causes such client to possess a mistaken belief regarding his sentence, the critical “test is whether a reasonable basis exists in the record for such [a mistaken] belief.” Conley v. State, 301 S.W.3d 84, 88-89 (Mo.App. S.D.2010). Missouri courts may find that a defendant’s mistaken belief about his sentence impinged his ability to enter a guilty plea with sufficient voluntariness and understanding if (1) the mistake is reasonable and (2) the mistake is based upon a positive representation upon which the defendant was entitled to rely. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006).

Furthermore, because Movant raises this issue of mistaken belief in the context of an ineffective assistance of counsel claim, he must also demonstrate that it was objectively unreasonable for his plea counsel to so advise him and that, but for his counsel’s incorrect advice, there is a reasonable probability that he would have chosen to go to trial rather than plead guilty. Savage v. State, 114 S.W.3d 455, 458 (Mo.App. E.D.2003) (holding a defendant may be deprived of ineffective assistance where his plea counsel affirmatively misinforms him as to a consequence of pleading guilty); State v. Abernathy, 764 S.W.2d 514, 516 (Mo.App. S.D.1989) (holding that where counsel renders erroneous advice to a criminal client and the client enters a guilty plea, the voluntariness of the plea depends on whether advice was within the range of competence demanded of attorneys in criminal cases and whether the client was prejudiced).

We find two cases—Pettis v. State, 212 S.W.3d 189, 191-95 (Mo.App. W.D.2007), and Brown v. Gammon, 947 S.W.2d 437, 438 (Mo.App. W.D.1997) — aid our analysis in this case. In Pettis, both the defendant and the trial court possessed mistaken beliefs attributable to an affirmative, yet erroneous, representation by plea counsel as to the consequences of the defendant’s sentence. There, the trial court considered whether to impose a consecutive or concurrent sentence in exchange for the defendant’s plea of guilty to one count of possession of a controlled substance within a correctional institution. Pettis, 212 S.W.3d at 191-95. During the defendant’s sentencing hearing, the court asked the defendant’s plea counsel about the effect a consecutive four-year sentence would have on the defendant’s parole-eligible life sentence that he was already serving. Id. at 194. The defendant’s plea counsel affirmatively represented on the record that a consecutive sentence would not transform the defendant’s prior sentence into life without the possibility of parole. Id. at 194. This representation was incorrect and ignorant of the Board of Probation and Parole’s rule that, upon imposition of a consecutive term of imprisonment, the defendant’s parole-eligible life sentence would definitely, immediately, and automatically convert to a sentence of life without possibility of parole. Id. at 194. Thus, when the trial court sentenced the defendant to a consecutive sentence of four years, his parole opportunities were foreclosed, and he sought post-conviction relief, which was denied. Id. at 192-94. On appeal, the Western District held that both the defendant and the trial court possessed a mistaken belief that his parole eligibility would not be entirely extinguished by the imposition of a consecutive sentence and that the representations made by the defendant’s counsel constituted ineffective assistance, which prejudiced his defense. Id. at 194-95. Accordingly, the Western District reversed the motion court’s judgment denying Pettis’s post-conviction relief and remanded the case with directions for the trial court to re-sentence him. Id. at 195.

In Brown, the defendant petitioned for habeas corpus, contending that he was being detained unlawfully because his guilty plea was involuntary. There, the trial court promised the defendant an “opportunity” to be placed on probation if he pleaded guilty to a sentence of twenty years and completed a court-ordered substance abuse program within a 120-day window rather than accept the twelve-year sentence recommended by the State. Brown, 947 S.W.2d at 441. The Board of Probation and Parole evaluated the defendant’s performance in the program. Id. at 440. The Board reported to the trial court that the defendant would only be able to complete eleven weeks of the full twelve-week program prior to the end of the 120 days. Id. at 440. The defendant’s inability to complete the program was not attributable to anything other than lack of time. Id. at 440. In fact, the defendant had received a “fair” rating. Id. at 440. Based on this report, the trial court denied the defendant probation at the end of the 120-day period. Id. at 440. The defendant then argued that the trial tourt’s decision to deny him probation impinged upon the voluntariness of his guilty plea “because his plea rested on the trial court’s promise to release him after 120 days if he completed the program.” Id. at 440. The Western District agreed. It explained that the trial court neglected to clarify the “opportunity” it was affording to the defendant. Id. at 441. The defendant did not understand that the granting of probation at the end of the 120 days was entirely within the discretion of the trial court and that there could be no binding agreement entitling him to probation. Id. at 441. Thus, the Western District held that the defendant possessed a reasonable mistaken belief as to his sentence, a belief attributable to positive representations of the trial court upon which he was entitled to rely. Id. at 441. Because this mistaken belief rendered the defendant’s guilty plea involuntary, the Western District vacated the defendant’s judgment and sentence and remanded the case so that he would have an opportunity to withdraw his plea. Id. at 441.

Movant’s circumstances are similar to those of the defendants in Pettis and Brown. Here, the positive representations upon which Movant was entitled to rely prompted his mistaken belief regarding the consequences of his guilty plea. Here, the positive representations made to Movant suggesting that bond time credit was a permissible component of his plea agreement were incorrect. See Williams, 978 S.W.2d at 460. These representations were articulated clearly on the record and memorialized in two written court orders. Given the plea court’s pronouncement that he would receive credit toward his sentence for the time he spent on bond, Movant’s mistaken belief that the law permitted him to obtain such credit was reasonable.

Moreover, Movant’s plea counsel rendered him ineffective assistance by representing that such a bond credit agreement was possible and by facilitating this agreement during Movant’s guilty plea negotiations when Missouri law clearly provided that defendants may not receive such credit. On the record, Movant’s plea counsel admitted that he was not sure if the law permitted the plea court to grant jail time credit for time on bond. “By any objective measure, a reasonably competent attorney would not make such a representation when he or she had no knowledge of the consequences.” Pettis, 212 S.W.3d at 194. Also, the prejudice to Movant in this case is clear. The record reflects that Movant’s decision to plead guilty rested on his mistaken belief that both the written agreement and the bond credit agreement would be honored. Because Movant’s bond credit agreement cannot be honored under the law, we cannot say that his guilty pleas were entered voluntarily. Point granted.

For these reasons, we find that motion court erred in denying Movant post-conviction relief. “If a defendant is misled or induced to enter a plea of guilty by ... mistake, ... then the defendant should be permitted to -withdraw the plea.” Dobbins, 187 S.W.3d at 867; see also Brown, 947 S.W.2d at 441. Thus, because Movant was reasonably mistaken as to the terms of the entire plea agreement, the causes are remanded to the trial court to provide Movant the opportunity to withdraw his guilty pleas.

Conclusion

The motion court’s judgment denying Movant’s amended motion for post-conviction relief is reversed. The causes shall be remanded to the trial court to provide Movant the opportunity to withdraw his guilty pleas.

GARY M. GAERTNER, JR., Presiding Judge, and PATRICIA L. COHEN, Judge, Concur.

      . All rule references are to Mo. R.Crim. P.2009, unless otherwise indicated.

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

      . In the State's information, these three counts are delineated as Cause No. 011-1200.

      . In the State's information, this count is delineated as Cause No. 011 — 1691B.

      .Because Movant was pleading guilty to charges filed under two different charging documents and two different cause numbers, two written plea documents were executed. These two documents incorporated each other by reference and constituted the "written plea agreement" mentioned above.

      . Because Movant was pleading guilty to charges filed under two charging documents and two different cause numbers, the record contains two written orders to this effect. Both written orders contain identical language: "By agreement with the State and defense, the Court hereby orders that the defendant be granted credit toward his sentence for time spent on bond in the above-styled cause.”

      . The record indicates that the evidentiary hearing was held on June 10, 2005, but that Movant’s amended motion was not denied until July 20, 2009. It is not clear from the record or from the parties' briefs the reason for this four-year delay.


text:
    John C. DUVALL, Appellant, v. Chris KOSTER, Attorney General of Missouri, Respondent.
    No. ED 94195.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.
    John C. Duvall, Helena, OK, pro se.
    David J. Hansen, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

John C. Duvall (“Duvall”) appeals from the judgment of the trial court dismissing his complaint against the Office of the Missouri Attorney General (“the Attorney General”). Duvall sets forth eight points concerning whether he had standing and whether the trial court had jurisdiction regarding his claims that the Attorney General violated the law in his investigation and prosecution of crimes.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. 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).


text:
    Corry ROBINSON, Movant/Appellant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 93931.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.
    Scott Thompson, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, JR., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Corry Robinson (Movant) appeals from the motion court’s judgment denying his amended Rule 24.035 motion for post-conviction relief without an evidentiary hearing. On appeal, Movant argues that the motion court clearly erred because his plea counsel provided him ineffective assistance by failing to adequately investigate his case, thus rendering his guilty plea involuntary. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find Movant is entitled to no relief on appeal. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the motion court’s judgment pursuant to Rule 84.16(b).


text:
    In the Interest of: X.H., a minor.
    No. ED 93801.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.
    Patricia Harrison, Coren Brown, Sarah Hall, Rebecca Reed, and Andrew VonGon-tard, Saint Louis University Law Clinic, St. Louis, MO, for Appellant.
    Margaret E. Gangle, Juvenile Officer, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

X.H. appeals the from the judgment of the juvenile court finding him to have committed the delinquent offenses of first-degree robbery, in violation of Section 569.020, RSMo 2000, and third-degree assault, in violation of Section 565.050, and ordering X.H. into the legal and physical custody of the Division of Youth Services for appropriate placement. We affirm.

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

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


text:
    Don BEARD, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93751.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.
    Timothy J. Forneris, MO Public Defender Office of State Courts Administrator, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Don Beard (Movant) appeals from the motion court’s findings of fact, conclusions of law, and order (judgment) denying his Amended Motion to Vacate, Set Aside, or Correct the Judgment or Sentence and Request for Evidentiary Hearing (PCR Motion), filed pursuant to Rule 29.15, on his convictions for attempted child molestation and attempted victim tampering. We affirm.

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


text:
    John MARKLE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93718.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.
    Jessica Hathaway, Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Jamie P. Rasmussen, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

John Markle (“Movant”) appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evidentia-ry hearing. Movant contends the motion court clearly erred in denying his Rule 24.035 motion without an evidentiary hearing because he alleged facts, not conclusively refuted by the record, that (1) the guilty plea to the charge of armed criminal action lacked a factual basis, and (2) the guilty plea to the charge of murder in the second degree lacked a factual basis.

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 24.035(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).


text:
    Leonard J. JOSEPH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93693.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.
    Timothy Forneris, Assistant Public Defender, Missouri Public Defender Office, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Leonard Joseph (Joseph) appeals from the motion court’s denial, without an evi-dentiary hearing, of his Rule 29.15 amended motion for post-conviction relief. 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)(2).


text:
    STATE of Missouri, Respondent, v. Andrew GOODHART, Appellant.
    No. ED 93061.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.
    Michael F. Jones, Clayton, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Andrew Goodhart (Defendant) appeals from the judgment of the Circuit Court of Jefferson County convicting him of first-degree statutory sodomy. Defendant contends that the trial court erred in: (1) admitting an unedited video of Defendant’s confession in which the interviewing detective accused Defendant of touching two other young girls; and (2) prohibiting Defendant’s psychiatrist from testifying as to whether Defendant was “prone to lying to make friends” to support Defendant’s defense that he lied during his confession. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find that: (1) Defendant waived appellate review of the trial court’s admission of the unedited video of Defendant’s confession; and (2) the trial court did not err in prohibiting Defendant’s psychiatrist’s testimony. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Charlie E. GENTRY, III, Defendant/Appellant.
    No. ED 93318.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.

      Margaret M. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Charles E. Gentry, III (Gentry) appeals from the trial court’s judgment, following a bench trial, convicting him of three counts of stealing, in violation of Section 570.030, and one count of resisting arrest, in violation of Section 575.150. Gentry raises two points on appeal. First, he argues that, because his arrest was unlawful, certain subsequently obtained statements and evidence should have been excluded at trial. Second, he argues that the trial court violated his constitutional right to be free from double jeopardy when it found him guilty of three counts of stealing rather than just one. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find Gentry is entitled to no relief on appeal. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Shohn METCALF, Appellant.
    No. ED 93188.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.
    William J. Swift, Assistant Public Defender, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

A jury convicted Shohn Metcalf (Defendant) of domestic assault in the first degree and felonious restraint. Defendant appeals on the grounds that the trial court abused its discretion in: (1) prohibiting defense counsel from cross-examining the victim about statements she made about the nature of her relationship with Defendant; and (2) prohibiting defense counsel from arguing in closing that the victim’s facial fractures were caused by a fall and not by Defendant intentionally striking her. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion would have no precedential value. We have, however, prepared a memorandum opinion for the use of the parties only-setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Othel MOORE, Appellant.
    No. ED 93488.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 24, 2010.
    Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Othel Moore (Defendant) appeals the judgment of conviction entered after a jury found him guilty of two counts of robbery in the first degree and two counts of armed criminal action. Defendant claims the trial court erred in: (1) denying his motion to sever the offenses, and (2) sustaining the State’s objection to defense counsel’s hypothetical question to the veni-re panel. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion would have no precedential value. We have, however, prepared a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


author: PER CURIAM:

text:
    Dawn M. (Meyr) CARAFENO, Respondent, v. Gerald L. MEYR, Appellant.
    No. WD 71259.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Mark E. Rector, Esq., Lebanon, MO, for appellant.
    Paul T. Graham, Esq., Jefferson City, MO, for respondent.
    Before Division Two: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Gerald L. Meyr appeals the trial court’s judgment modifying a decree of dissolution. Meyr contends the trial court erred by reapportioning the parties’ percentage shares of the minor children’s non-covered medical, educational, and extraordinary expenses based on his ex-wife’s motion requesting that the court redetermine his child support obligation. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    James E. DARDEN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71220.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Nancy A. McKerrow, for Appellant.
    Richard A. Starnes, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

James Darden appeals the motion court’s denial of his Rule 29.15 motion following an evidentiary hearing. On appeal, Darden claims that the motion court clearly erred in denying his motion because his trial attorney provided ineffective assistance of counsel. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).