author: JEFFREY W. BATES, Presiding Judge.

text:
    Torrey L. TROTTER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. SD 29894.
    Missouri Court of Appeals, Southern District, Division One.
    May 10, 2010.

      Ellen H. Flottman, Columbia, MO, for Appellant.
    Chris Koster, Atty. Gen., Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Presiding Judge.

Following a jury trial, Torrey Trotter (Trotter) was convicted of assault in the first degree, burglary in the first degree and armed criminal action. See §§ 565.050, 569.160 and 571.015. His convictions were affirmed on direct appeal to this Court in State v. Trotter, 241 S.W.3d 860, 864 (Mo.App.2007).

Thereafter, Trotter filed a timely pro se motion for post-conviction relief pursuant to Rule 29.15. Appointed counsel filed an amended motion which alleged, inter alia, that Trotter’s trial counsel was ineffective because he “failed to introduce clear and convincing evidence that [Trotter] was right-handed.” After conducting an evi-dentiary hearing, the motion court denied relief. This appeal followed.

Our review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are “clearly erroneous.” Rule 29.15(k); Clayton v. State, 63 S.W.3d 201, 205 (Mo. banc 2001). Findings of fact and conclusions of law are clearly erroneous only when, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made. Clayton, 63 S.W.3d at 205-06. “Just as in a direct appeal, we must view the facts in the light most favorable to the verdict.” Coday v. State, 179 S.W.3d 343, 346 (Mo.App.2005). This Court accepts as true all evidence and inferences favorable to the verdict; all contrary evidence and inferences are disregarded. Smith v. State, 207 S.W.3d 228, 230 (Mo.App.2006).

The relevant events occurred in Springfield, Missouri in March 2004. Trotter had children with a woman named Holly Jaske-iwicz (Jaskeiwicz). She was friends with a man named John Stafford (Stafford). Jaskeiwicz accompanied Stafford while he rented a car so they could drive to Chicago to pick up Jaskeiwicz’s children. After renting the car, Stafford and Jaskeiwicz returned to Stafford’s home. Jaskeiwicz then drove the rental car to her apartment. She was to return when she was ready to leave for Chicago.

Some time later, Jaskeiwicz called Stafford and said that she had to get some papers and would be on her way. Shortly thereafter, Stafford received another call from Jaskeiwicz. She stated that Trotter was at her apartment, sitting in the rental car. After learning of Trotter’s presence in the rental car, Stafford decided to go to Jaskeiwicz’s apartment. When Stafford arrived, Trotter was in the driver’s seat of the rental car. Stafford asked Trotter to exit the rental car. He complied, but in the process he “slammed” the door against Stafford. This led both men to throw punches at one another. Stafford testified that he “got the better” of Trotter, hitting him “several times.” Stafford eventually obtained the keys to the rental car and called his brother to drive it back to Stafford’s house.

The police arrived at Jaskeiwicz’s apartment after the fight had concluded. Trotter’s eye was swollen shut, but he told police that he did not want to press charges “[b]ecause [he] didn’t want no more to do with it.”

Trotter went to the home of a friend, Donnell Hubbard (Hubbard). Trotter’s mother, Sheryl, arrived later at Hubbard’s home after she received a telephone call that Trotter had been in a fight. Sheryl suggested that they go to Stafford’s house to “talk to him.” Sheryl drove Trotter, Hubbard and another person to Stafford’s home in her van.

Three men were present in Stafford’s home: Stafford; Stafford’s brother, Billy; and a friend named Zack Tolliver (Tolliver). Stafford was in the kitchen, talking and drinking tea with Tolliver. Billy was in his bedroom. Stafford testified that Tol-liver began hollering, “[t]hey shooting.” Stafford then heard “popping sounds” and heard voices threatening to kill him. Stafford realized that the voices belonged to Trotter and Hubbard. According to Stafford, “Hubbard was in the living room; Trotter was in the kitchen trying to shoot me.” Stafford testified that both Trotter and Hubbard had guns and were firing them.

Billy testified that he heard three or four gunshots, so he grabbed his gun from under his mattress. He saw two individuals with guns and began shooting at them. When Billy began firing, the two individuals ran out of the house. One of Billy’s bullets struck Trotter in the right arm.

Quinn Michael Martin, Stafford’s neighbor, testified that he saw two men exit Stafford’s house. The first man ran directly to a white mini-van. The second man “was running across the street, and he had a pistol in his hand, was firing.”

Dr. Thomas Kelso treated Trotter when he arrived at the emergency room after he was shot. Trotter suffered extensive bone damage as a result of his injury. Dr. Kelso testified that Trotter “would probably drop whatever he was holding in his hand.” Dr. Kelso explained that “he wouldn’t be able to flex his elbow and hold anything in this position very well because the bone was shattered above the elbow joint.” Despite this injury, however, Dr. Kelso also testified that Trotter would have been able to pick up a weapon with his left hand.

Trotter testified on his own behalf at trial. According to Trotter, both he and Hubbard were waved into the house by an “older gentleman sitting at the table in the dining room area.” According to Trotter, once they were inside the house, Hubbard pulled out a gun. Trotter claimed that he did not know Hubbard had a gun until that point. Trotter heard the gun go off, and at some point, he was shot. Trotter testified, “I grabbed my arm, and I turned around and left out of the house.” Sheryl also was called as a witness by the defense. She testified that, “[a]s far as I know [Trotter’s] right-handed.” The jury instructions on the assault and armed criminal action offenses authorized the jurors to return a guilty verdict on an accomplice liability theory, even if Trotter did not himself use a firearm during the fracas.

The motion court conducted an eviden-tiary hearing on the amended Rule 29.15 motion. Trotter’s defense attorneys, Shawn Markin (Markin) and Chris Hatley (Hatley), both testified. According to Markin and Hatley, Trotter’s theories of defense were: (1) Hubbard and Trotter were attacked by the occupants of Stafford’s house; or (2) alternatively, Hubbard had a weapon and fired it, but Trotter was not armed. Markin wanted to show that Trotter was right-handed. Considered in conjunction with Dr. Kelso’s testimony, it was hoped this evidence would tend to refute Stafford’s testimony that Trotter was holding a gun when Stafford said he was. Markin presented testimony from Sheryl that Trotter was right-handed. Trotter also testified at the evidentiary hearing. According to him, he is right-handed and would have so testified if he had been asked that question at trial. One aspect of Trotter’s amended motion claimed trial counsel was ineffective because they “failed to introduce clear and convincing evidence that [Trotter] was right-handed.” With respect to that claim, the trial court decided that Trotter failed to meet his burden of proving there was a reasonable probability that the outcome of the trial would have been different but for trial counsel’s actions:

[Sheryl’s] testimony stated that her son was right-handed. Thus, the jury had before it evidence that [Trotter] was right-handed. Again, failure to present cumulative evidence does not constitute ineffective assistance of counsel. Additionally, regardless of whether evidence was presented on whether [Trotter] was right-handed or left-handed, Dr. Kelso admitted on cross-examination that even with [Trotter’s] injury to his right arm that [Trotter] could have picked up the weapon with his left hand.

(Citation omitted.) Moreover, the motion court also concluded that Trotter could have been found guilty as an accomplice without personally firing a weapon. Therefore, the motion court denied relief.

On appeal, Trotter bears the burden of proving, by a preponderance of the evidence, that he received ineffective assistance of counsel. Rule 29.15(i). To establish ineffective assistance of counsel, Trotter must show that: (1) counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney; and (2) counsel’s poor performance prejudiced the defense. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998); see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trotter must prove each portion of this two-pronged performance and prejudice test in order to prevail on his ineffective assistance of counsel claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). To satisfy the first prong, a movant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. A movant can do this by pinpointing specific acts or omissions of counsel that resulted from unreasonable professional judgment, but the reviewing court must find these acts to be “outside the wide range of professionally competent assistance” for the movant to be successful. Id. at 690, 104 S.Ct. 2052. Trotter bears the heavy burden of overcoming the trial court’s presumption that trial counsel’s conduct was reasonable and effective. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). The second prong of the Strickland test is met when a movant shows that his attorney’s errors affected the judgment. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. A movant can prove that the judgment was affected when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

In Trotter’s sole point on appeal, he contends the motion court clearly erred in ruling that trial counsel were not ineffective, even though they failed to ask Trotter at trial whether he was right-handed. He argues that, if he had been asked this single question, there is a reasonable probability that the outcome of the trial would have been different. As support for this argument, Trotter relies upon Coleman v. State, 256 S.W.3d 151 (Mo.App.2008). After examining Coleman, we conclude that it provides no support to Trotter.

In Coleman, Ms. Hood was a neighbor of the Stanfills. In December 2003, she saw a man kick in the door of the Stanfills’ house and enter it. Id. at 152. A few minutes later, Ms. Hood saw another man enter the house and then exit with wrapped Christmas presents in his hands, which he loaded into an SUV. A third man was inside the SUV. While the first two men were still inside the Stanfills’ home, the SUV began driving away. Ms. Hood saw one of the men inside the home exit from the back and run into the neighborhood. An approaching police car began following the SUV by car, and another officer followed the runner on foot. Officer Dull, an off-duty police officer who lived behind the Stanfills’ house, responded after hearing a dispatch on the radio. As Officer Dull walked to the front of the Stanfills’ home, he noticed Coleman standing on the corner of the yard about 20-25 feet from the front porch. Officer Dull told Coleman to stay where he was, and “Coleman replied that he could not run.” Id. at 153. At trial, Coleman’s counsel failed to present available medical evidence that Coleman had a preexisting foot injury and was wearing an air brace on his ankle at the time of the burglary. Id. at 156-57. Coleman was convicted of burglary in the second degree. Id. at 154-55. His amended Rule 29.15 motion alleged, inter alia, that trial counsel was ineffective because she had failed to present evidence about Coleman’s preexisting foot injury. Id. at 154. The motion court denied relief on that ground. Id. The western district of this Court reversed because the jurors could well have inferred that: (1) Coleman was the one who kicked in the Stanfills’ door; (2) he injured himself in the process; and (3) that is why he said he “could not run” when confronted by Officer Dull. Id. at 157. Trial counsel’s failure to anticipate this reasonable inference and present evidence to negate it rendered her ineffective, to Coleman’s prejudice. Id. at 157-58. The case at bar is distinguishable from Coleman for at least three reasons.

First, it is clear that Coleman’s injury had occurred before the burglary took place, and evidence concerning that injury could have helped the jury exclude him as the person who kicked in the door or ran away from the Stanfills’ house. Since Coleman obviously was not the man in the SUV either, there was a reasonable probability that the medical evidence would have made a difference in the outcome. Here, the record demonstrates that Trotter was not injured at all until he was shot by Billy. Prior to that time, Trotter had no injury that would have prevented him from holding or shooting a gun with his right hand. The testimony of both Tolliver and Stafford would support a finding by the jury that Trotter was armed and fired a gun inside Stafford’s house. No gun, however, was found in the house. Trotter argues that this fact, coupled with Dr. Kelso’s testimony, proves that Trotter would have dropped his gun inside the house if he had been armed. The record does not support that argument. As Dr. Kelso testified, nothing about the injury to Trotter’s right arm would have prevented him from picking up a weapon with his left hand after being shot by Billy.

Second, trial counsel in Coleman did not present any evidence about the defendant’s prior foot injury and the brace on his ankle. Coleman, 256 S.W.3d at 157. Here, trial counsel presented evidence from Trotter’s own mother that he was right-handed. That evidence was not challenged in any way by the prosecution. “Failing to present cumulative evidence is not ineffective assistance of counsel.” State v. Johnston, 957 S.W.2d 734, 755 (Mo. banc 1997).

Third, the motion court correctly determined that Trotter could have been found guilty of all three offenses on an accomplice liability theory, even if he personally did not fire a weapon. Trial counsel’s alleged failure to present evidence about whether Trotter was right-handed would have had no bearing on this accomplice liability issue.

After a thorough review of the record, we do not have a definite and firm impression that the motion court erred in denying Trotter’s request for post-conviction relief. Accordingly, the motion court’s findings of fact and conclusions of law are not clearly erroneous. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001); see Rule 29.15(k). Point denied.

The motion court’s order denying Trotter’s amended Rule 29.15 motion is affirmed.

BARNEY and BURRELL, JJ, Concur.

      . All references to statutes are to RSMo (2000). All references to rules are to Missouri Court Rules (2009).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Carolyn THORNTON, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71141.
    Missouri Court of Appeals, Western District.
    May 11, 2010.
    Carolyn Thornton, Appellant Pro se.
    Jeannie D. Mitchell, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

Carolyn Thornton appeals the decision of the Labor and Industrial Relations Commission, which found that Thornton was discharged for misconduct connected with work and was, therefore, disqualified from receiving unemployment benefits. On appeal, Thornton claims that the Commission misapplied the law and that its finding was not supported by competent and substantial evidence. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The decision of the Commission is affirmed. Rule 84.16(b).


author: MARY K. HOFF, Judge.

text:
    Deanna PORTER, Employee/Claimant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 93933.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Deanna Porter, St. Charles, MO, pro se.
    Shelly A. Kintzel, Jefferson City, MO, for Respondent.
   OPINION

MARY K. HOFF, Judge.

Deanna Porter (Claimant) appeals pro se from a final order of the Labor and Industrial Relations Commission. The Commission’s order affirmed the Division of Employment Security Appeals Tribunal’s decision denying Claimant unemployment compensation benefits. Because Claimant’s brief fails to substantially comply with the appellate briefing requirements as provided by Rule 84.04 we dismiss the appeal.

Pro se appellants are held to the same standard as licensed attorneys. Blakey v. AAA Professional Pest Control, 219 S.W.3d 792, 794 (Mo.App. E.D.2007). Hence, pro se appellants must comply with the mandatory requirements of Rule 84.04 regarding appellate briefing. Johnson v. Buffalo Lodging, 300 S.W.3d 580, 582 (Mo.App. E.D.2009). A pro se appellant is not granted preferential treatment if he or she fails to meet the requirements of Rule 84.04. Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo.App. E.D.2005). Failure to comply with Rule 84.04 constitutes grounds for dismissal of the appeal. Kuenz v. Walker, 244 S.W.3d 191, 193 (Mo.App. E.D.2007).

Substantial compliance with Rule 84.04 is required in order to give proper notice to the party opponent of the precise issue on appeal. Amparan v. Martinez, 862 S.W.2d 497, 499 (Mo.App. E.D.1993). Compliance is also required because an appellate court should not speculate as to the parameters of the appellant’s argument because to do so would cast the court in the role of the appellant’s advocate. Blakey, 219 S.W.3d at 794. Dismissal is warranted “not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties.” Id. (quoting Thornton, 161 S.W.3d at 919).

Rule 84.04 clearly states the requirements for an appellate brief. The brief must contain 1) a detailed table of contents and an alphabetically-arranged table of cases and other authorities cited, all with corresponding page references, 2) a concise statement of the jurisdictional grounds, 3) a statement of facts, 4) a “Point Relied On” for each issue on appeal, 5) an argument that substantially follows the corresponding “Point Relied On,” and 6) a statement of the precise relief sought. Rule 84.04(a).

More specifically, the jurisdictional statement must set forth sufficient factual data to demonstrate the grounds upon which jurisdiction is predicated. Rule 84.04(b). The statement of facts must be fair and concise and relevant to the issue on appeal and not argumentative. Rule 84.04(c). Facts should be followed by the appropriate page reference in the legal file. Rule 84.04(i).

A “Point Relied On” must be included for each claim of reversible error and must identify the challenged administrative ruling, concisely state the legal reasons for the claim and must summarily explain, why, in the context of this case, the stated legal reasons support the appellant’s claim. Rule 84.04(d)(2).

The argument section must substantially follow the corresponding “Point Relied On.” Rule 84.04(e). In addition, this section must contain a concise statement of the applicable standard of review for each claim of error, and must advise the appellate court of how the facts of the case and principles of law interact. Rule 84.04(e).

In this case, Claimant’s brief failed to substantially comply to Rule 84.04 to such an extent that her appeal cannot be reviewed. While Claimant’s brief contains a “Table of Contents,” it does not contain the required elements. The table of contents only lists the various sections of the brief with reference to the corresponding page number. It does not, as Rule 84.04(a)(1) requires, contain a table of case law and other authority with reference to the corresponding page number.

In addition, the jurisdictional statement lacked the required content as mandated by Rule 84.04(b). Claimant’s jurisdictional statement contains no information or reference to the constitutional provisions conferring jurisdiction on this Court. Instead, the jurisdiction statement is an argumentative statement of facts.

Further, the Statement of Facts is deficient. The facts are presented in an argumentative fashion. This section contains no citation to the legal file as required by Rule 84.04(i). Claimant also fails to include a “Point Relied On,” as required by Rule 84.04(d)(2). The argument section is equally deficient. The argument does not present any standards of review, binding or persuasive principles of law, or any relevant legal authority to support a claim of error. Finally, Claimant’s brief is devoid of any request for relief.

Clearly, Claimant’s brief fails to comply with Rule 84.04 requirements. Here, the failure to comply with Rule 84.04 is so substantial that any review would require this Court to reconstruct the facts of the case, speculate about the possible claims of error, and craft an argument on Claimant’s behalf. Given these deficiencies, Claimant has preserved nothing for appellate review and, therefore, has not invoked the jurisdiction of this Court. Gant v. Lou Fusz Motor Co., 153 S.W.3d 866, 866 (Mo.App. E.D.2004). Accordingly, this appeal is dismissed.

Conclusion

The appeal is dismissed for failure to substantially comply with Rule 84.04.

GLENN A. NORTON, Presiding Judge, and ROY L. RICHTER, Judge, concur.

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


author: NANNETTE A. BAKER, Judge.

text:
    BUREAUS INVESTMENT GROUP, Respondent, v. Keith WILLIAMS, Appellant.
    No. ED 93491.
    Missouri Court of Appeals, Eastern District, Division One.
    May 11, 2010.

      Martin Perron, St. Louis, MO, for appellant.
    Gary Underwood, St. Louis, MO, for respondent.
    Jeanine Armstrong, Co-Counsel for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Keith Williams (“Williams”) appeals the City of St. Louis Circuit Court’s denial of his motion to set aside the trial court’s October 16, 2003 Judgment (“October 16, 2003 Judgment”) in favor of Bureaus Investment Group as Assignee of First USA (“Bureaus Investment Group”).

Williams raises three points on appeal. In his first point, Williams claims that the October 16, 2003 Judgment was void because it was an invalid attempt to retain jurisdiction more than thirty days after final judgment and an improper use of nunc pro tunc rules to increase the amount of the judgment by adding more interest and an award of attorney’s fees. Second, Williams claims that the trial court erred when it denied his motion to quash the execution of the garnishments because the garnishments issued were based upon the void October 16, 2003 Judgment. Third, Williams claims that the trial court erred when it denied his motion because the garnishments issued were not supported by the judgment in that they contained calculations and assessments of interest that were inconsistent with the judgment and “otherwise unlawful.”

The trial court was without authority to enter the October 16, 2003 Judgment, therefore, this court has jurisdiction on appeal only to reinstate the trial court’s April 17, 2003 Judgment, and remand to the trial court to quash all garnishments that were issued in execution of the October 16, 2003 Judgment.

Factual and Procedural Background

On March 6, 2003, Bureaus Investment Group filed a “Suit on Charge Card” against Williams. Bureaus Investment Group asked for judgment against Williams for the “principal sum of $10,636.11 together with interest of 28.04% per annum from May 16, 2000, reasonable attorney’s fees, and for costs herein.” Because we base our decision on the timing of the filing of the amended judgment and its validity, we shall set forth a timeline of the relevant events.

April 17, 2003

The trial court entered a default judgment against Williams (“April 17, 2003 Judgment”). The total judgment was for $21,882.74. The judgment listed the principal amount as $10,636.11 and interest in the amount of $11,246.63.

May 28, 2003

Forty-one days after the April 17, 2003 Judgment was entered, Bureaus Investment Group filed a motion to amend the default judgment pursuant to Rule 75.01 to add attorney’s fees to the April 17, 2003 Judgment.

October 16, 2003

The trial court entered an amended default judgment in the amount of $26,065.61, which now included $2,695.78 in attorney’s fees. The words “Amended” and “Nunc Pro Tunc” were handwritten across the top of the judgment.

July 15, 2009

Williams filed a motion to set aside or vacate the default judgment and petition to stay or quash execution and petition to recover amounts wrongfully taken by garnishment.

July 23, 2009

The trial court denied Williams’ July 15, 2009 motion.

Williams now appeals the July 23, 2009 denial of his motion to set aside the October 16, 2003 Judgment and quash the execution of garnishments.

Discussion

Williams raises three points on appeal. Before we can address the merits of Williams’ points on appeal, we must determine our jurisdiction sua sponte. In re Estate of Shaw, 256 S.W.3d 72, 73 (Mo. banc 2008). In cases where the trial court has exceeded its authority in entering an order or judgment, we cannot consider the merits of the appeal, but we have the jurisdiction to confíne a trial court to its authority. Id. at 77; see also J.C.W. ex rel Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009).

“[A] trial court retains control over a final judgment for thirty days after entry and during that time period may vacate, correct, amend, or modify its judgment.” Martin, Malec & Leopold, P.C. v. Denen, 285 S.W.3d 383, 386 (Mo.App. E.D.2009); see also Rule 75.01.

Here, the trial court entered its default judgment on April 17, 2003. Under Rule 75.01, the trial court’s control was limited to thirty days after entry of the judgment. Therefore, the April 17, 2003 Judgment became final on May 19, 2003. On May 28, 2003, after the trial court no longer had control over the judgment, Bureaus Investment Group filed its motion to amend the default judgment.

Although the trial court did not have authority to enter any orders after the April 17, 2003 Judgment became final, this court is not deprived of jurisdiction to consider the appeal. Estate of Shaw, 256 S.W.3d at 77. “Appellate courts inherently have supervisory authority to confine a trial court to its jurisdiction.” Id. Without this authority, we would be unable to address the invalid judgment. Denen, 285 S.W.3d at 389.

In this case, any actions taken by the trial court after the April 17, 2003 Judgment became final were invalid. As such, all orders entered after the April 17, 2003 Judgment became final are invalid unless the trial court at the request of Bureaus Investment Group was able to amend the April 17, 2003 Judgment with authority granted by another nile.

It appears that the trial court attempted to maintain control over this case by handwriting “Nunc Pro Tunc” on the heading of the October 16, 2003 Judgment. A nunc pro tunc judgment is a common law concept that recognizes a court’s control over its records when it no longer has control over the case. Wilson v. Lilleston, 290 S.W.3d 795, 799 (Mo.App. W.D.2009). Rule 74.06(a) codified this concept. Pirtle v. Cook, 956 S.W.2d 235, 241 (Mo. banc 1997). Rule 74.06(a) provides:

(a) Clerical Mistakes — Procedure. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected with leave of the appellate court.

A court may only use a nunc pro tunc order to make the record conform to the judgment already rendered. Pirtle, 956 S.W.2d at 240. A court may not use a nunc pro tunc order to alter or amend the judgment. Id.Tt is universally held that the only true function of a nunc pro tunc order is to correct some error or inadvertence in the recording of that which was actually done, but which, because of that error or omission was not properly recorded; and, that it may not be used to order that which was not actually done, or to change or modify the action which was taken.’ ” Id. (quoting City of Ferguson v. Nelson, 438 S.W.2d 249, 253 (Mo.1969) (emphasis in original)); see, e.g., Lockett v. Mustemian, 854 S.W.2d 831, 833-34 (Mo.App. E.D.1993) (finding that the amended decree was a nunc pro tunc order because it merely added a legal description of property already described in the prior orders and known by both parties); Pirile, 956 S.W.2d at 243 (finding that the amended decree was a nunc pro tunc order because it corrected the misuse of the terms “Petitioner” and “Respondent” in the original decree so that it conformed to the court’s true judgment). “It is improper to use a nunc pro tunc order ‘to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did, or to conform to what the court intended to do but did not do.’ ” Javier v. Javier, 955 S.W.2d 224, 225-26 (Mo.App. E.D.1997) (quoting In re Marriage of Royall, 569 S.W.2d 369, 371 (Mo.App. St. Louis Dist.1978)).

To determine whether the October 16, 2003 Judgment was a proper nunc pro tunc order or a modification of the April 17, 2003 Judgment, this court must decide whether the order changes the original judgment or merely changes the record. Sullivan v. Miner, 180 S.W.3d 531, 533 (Mo.App. E.D.2006). In order to be a clerical error, the change or addition to the amended order must be discernable from the record. Id.

The April 17, 2003 Judgment was submitted to the court by Bureaus Investment Group and it provided, in part, as follows:

WHEREFORE, IT IS ORDERED AND DECREED, that Plaintiff recover of the Defendant(s) as follows:
PRINCIPAL $10,636.11
INTEREST $11,246.63
TOTAL $21,882.74 PLUS COURT COSTS
To include interest as set out in the petition from date of judgment until paid in full.

The original judgment did not include attorney’s fees, however, the October 16, 2003 Judgment provided for $2,695.78 in attorney’s fees. The trial court’s addition of attorney’s fees to the April 17, 2003 Judgment did not correct a mere clerical error but improperly modified the original decree. Thus, the trial court also had no authority under Rule 74.06(a) to enter the October 16, 2003 Judgment.

Conclusion

The trial court was without authority to enter the October 16, 2003 Judgment, therefore, the judgment is vacated. This court has jurisdiction on appeal only to reinstate the trial court’s April 17, 2003 Judgment and remand to the trial court to quash all garnishments that were issued in execution of the October 16, 2003 Judgment.

KATHIANNE KNAUP CRANE, P.J., and CLIFFORD H. AHRENS, J., concur.

      . Bureaus Investment Group did not file a brief and, therefore, our facts are limited to Williams’ brief and legal file.

      . All other rule references are to Mo. R. Civ. P. (2009), unless otherwise indicated.

      . We will refer to the judgment as the "October 16, 2003 Judgment” even though there are two dates listed on this judgment: October 16, 2003 and October 20, 2003. October 16, 2003 is the date listed on the face of the judgment while October 20, 2003 is on the file stamp. However, the City of St. Louis circuit court docket sheet states that the judgment was entered on October 16, 2003 and the garnishments refer to the judgment on October 16, 2003.

      .Between August 2006 and August 2009, five garnishments in execution of the October 16, 2003 Judgment were issued. The first garnishment was issued against Berkeley City Police Department, the second was issued against Pulaski Bank, and the last three were issued against U.S. Bank.


author: PER CURIAM.

text:
    Tony JOHNSON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93514.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 11, 2010.
    Brocea L. Smith, Saint Louis, MO, for Movant/Appellant.
    Shaun J. Mackelprang, Jayne T. Woods, Jefferson City, MO, for Respondent/Respondent.

      Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Tony Johnson appeals from the motion court’s judgment denying, following an evi-dentiary hearing, of his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 29.15. We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the motion court was not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

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


text:
    STATE of Missouri, Respondent, v. Frederick DAVIS, Appellant.
    No. ED 93247.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Rosalynn Koch, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Richard A. Starnes, Jamie P. Rasmussen, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Frederick Davis (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury convicted him of first degree trespass, Section 569.140 RSMo (2000), second degree domestic assault, Section 565.073, and second degree property damage, Section 569.120. Appellant was sentenced to a term of six months’ imprisonment on the trespass and property damage counts, and five years’ imprisonment on the second degree domestic assault count, to run concurrently. Appellant raises one point on appeal, arguing the trial court abused its discretion by admitting into evidence a letter he wrote to the victim after he was incarcerated.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. The trial court did not abuse its discretion by admitting this evidence. State v. Mabry, 285 S.W.3d 780, 785 (Mo.App. E.D.2009). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, 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:
    STATE of Missouri, Respondent, v. Kenneth Ray PAIR, Appellant.
    No. ED 93241.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Margaret M. Johnson, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, and LAWRENCE E. MOONEY, JJ.
   ORDER

PER CURIAM.

Kenneth Ray Pair appeals the judgment entered upon a jury verdict convicting him of driving while intoxicated and driving while license revoked. We find that the trial court did not err in denying Pair’s motion for judgment of acquittal. 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 30.25(b).


text:
    Michael W. MILLER, Movant, v. STATE of Missouri, Respondent.
    No. ED 93113.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Matthew Ward, Columbia, MO, for appellant.
    Chris Koster, Karen L. Kramer, Jefferson City, MO, for respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, and GARY M. GAERTNER, JR., JJ.
   ORDER

PER CURIAM.

Michael W. Miller appeals from the motion court’s judgment denying, following an evidentiary hearing, his amended Motion under Rule 29.15 to Vacate, Set Aside or Correct Judgment and Sentence and Request for Evidentiary Hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An extended opinion would have no prece-dential 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).

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


text:
    STATE of Missouri, Respondent, v. Mario SPIGHT, Appellant.
    No. ED 92969.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Kent Denzel, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Terrence M. Messonnier, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, and GARY M. GAERTNER, JR., JJ.
   ORDER

PER CURIAM.

Defendant, Mario Spight, appeals from the judgment entered after the trial court found him guilty of robbery in the first degree and armed criminal action. 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. Marvin HARMON, Defendant/Appellant.
    No. ED 92950.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Alexandra E. Johnson, St. Louis, MO, for appellant.
    Chris Koster, John M. Reeves, Jefferson City, MO, for respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, and GARY M. GAERTNER, Jr., JJ.
   ORDER

PER CURIAM.

Marvin Harmon appeals from the trial court’s judgment entered upon a jury verdict convicting him of burglary in the second degree, in violation of Section 569.170 RSMo 2004. We have reviewed the briefs of the parties and the record on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential 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 Criminal Procedure 80.25(b) (2009).


text:
    STATE of Missouri, Respondent, v. Laron SWOPES, Appellant.
    No. ED 92826.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Stacey Sullivan Rosenberger, Special Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Laron Swopes (Defendant) appeals from the trial court’s judgment, following a jury trial, convicting him of one count of assault in the first degree, in violation of Section 565.050, RSMo Cum.Supp.2006, one count of armed criminal action, in violation of Section 571.015, two counts of assault in the third degree, in violation of Section 565.070, and one count of unlawful use of a weapon, in violation of Section 571.030. Defendant argues on appeal that the trial court erred by accepting inconsistent verdicts, overruling his motion for judgment of acquittal, and entering judgment against him pursuant to an unconstitutional criminal statute. Because Defendant’s claims lack merit, we affirm the trial court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and find Defendant is entitled to no relief on appeal. An extended opinion would have no precedential 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. Shaun C. KING, Appellant.
    No. ED 92791.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Stacey Sullivan Rosenberger, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Robert J. (Jeff) Bartholomew, Asst. Atty. Gen., Jefferson City, MO, for respondent.

      Before GLENN A. NORTON, P.J., MARY K HOFF, and LAWRENCE E. MOONEY, JJ.
   ORDER

PER CURIAM.

The defendant, Shaun Cortez King, appeals the judgment and sentence entered by the Circuit Court of the City of St. Louis following his conviction by a jury of one count of first-degree statutory sodomy, in violation of section 566.062 RSMo. (Supp.2009). The trial court sentenced the defendant as a prior and persistent offender to 25 years’ imprisonment. Finding no error, we affirm.

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 trial court’s judgment. Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Stanley GRANDBERRY, Defendant/Appellant.
    No. ED 92526.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 11, 2010.
    Shaun J. Mackelprang, John W. Grant-ham, Jefferson City, MO, for Plaintiff/Respondent.
    Maleaner R. Harvey, St. Louis, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., and PATRICIA COHEN, JJ.
   ORDER

PER CURIAM.

Stanley Grandberry (Appellant) appeals from the trial court’s judgment and sentence entered upon a jury verdict finding Appellant guilty of stealing a motor vehicle in violation of Section 570.030 and resisting arrest in violation of Section 575.150. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion in judging the appropriateness of specific questions and in the conduct of voir dire, State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000); that there is sufficient evidence from which a reasonable juror might have found Appellant guilty beyond a reasonable doubt, State v. Grim, 854 S.W.2d 403, 405 (Mo.banc 1993); and there was no instructional error, plain or otherwise, Missouri Rule of Criminal Procedure 30.20 (2008). We have, however, provided a memorandum setting forth the reasons for our decision to the parties for then* use only. We affirm the judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo 2006, unless otherwise indicated.


author: DANIEL E. SCOTT, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Jonathan D. HENDERSON, Appellant.
    No. SD 29944.
    Missouri Court of Appeals, Southern District, Division Two.
    May 13, 2010.
    Rosalynn Koch, Columbia, MO, for Appellant.
    Chris Koster, Atty. Gen., Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

Appellant, a persistent offender serving probation for robbery, was charged with robbing eight convenience stores. After waiving a jury, he was acquitted on Count VII and found guilty of the others. We affirm six convictions, but reverse and remand as to Count V.

Background

Robbery is stealing by force. See State v. Jolly, 820 S.W.2d 734, 735 (Mo.App.1991); § 569.030.1. As relevant here, “forcible” stealing means a threat or use of immediate physical force to (1) compel stolen property to be delivered up, or (2) prevent or overcome resistance to its taking or retention. § 569.010(1).

As to Counts I, II, III, IV, VI, and VIII, the trial court specifically found that Appellant struggled with or used force against each store clerk in stealing the money. Appellant concedes the sufficiency of the evidence supporting those convictions, so we need not detail those six crimes.

The two points on appeal focus on the evidence and guilty finding as to Count V. The evidence on that count was that Appellant entered an Express Lane store about midnight, got a beverage from the cooler, approached the counter, and handed the clerk a $5 bill. According to the clerk, she opened the cash register and Appellant “jumped up over and went to grab money out.” He “kind of brushed” her arm, she “jerked back,” and he grabbed money and fled. Per store policy, the clerk did not resist, nor did Appellant hit, grab, pull, or use any force against her. She “kind of stepped back a little ways and just let him do what he was doing,” and there was no struggle.

At trial, Appellant agreed he was guilty of stealing on this count, but argued that “he did not rob anybody.” The trial court noted that the clerk “did not fight back. She backed away from the register. She couldn’t remember for sure if there was contact or not, but she backed away because she had been trained to back away.” Nonetheless, the court found that robbery had occurred:

In this case, the defendant did put his hand into the cash register when opened by the clerk. The act of the defendant reaching into the drawer is an act of actual force. Without him putting his hands into the drawer, he would not be able to steal that money.
That — The drawer was in the possession of the victim. The victim would not have had — would not have had to have given the money to him except his actions was that he took the money. She had been trained not to resist if someone was robbing the store. And this is a robbery, not a shoplifting that escalated to a robbery.
In the State versus Jolly case, the defendant was convicted of robbery when he pulled the bank bag from the grip of the clerk without ever touching the clerk. This case is figuratively similar because the drawer belonged to the clerk. And when she is in possession of that, he has to reach in and take money from that drawer, which is the same as taking the bank bag from the person. And that clerk only relented to him putting his hand in the drawer and backing away because of that threat of force of the defendant, that he was going to take the money.

Point I

Point I seeks to reverse all seven robbery convictions. Appellant claims the trial court used an erroneous legal standard, citing its Count V finding that “reaching into the [cash] drawer” was adequate force for robbery. Appellant concedes the trial court “did specifically articulate evidence of struggles when it rendered its findings” on other counts, and those convictions “could have been justified even under a correct standard.” “Nevertheless,” Appellant urges, “despite the existence of sufficient evidence, if the findings were made under an incorrect legal standard,” none of the convictions can stand.

The State maintains that Point I should be denied as to Counts I, II, III, IV, VI, and VIII, given the evidence and court findings that Appellant struggled with or used force against these clerks. However, the State would grant Point I as to Count V, arguing that “the mere taking or snatching of property is not sufficient,” and “[f]or the purpose of finding Appellant guilty under Count V, the trial court interpreted Jolly as being satisfied by Appellant reaching into a drawer that was in the possession of the cashier.”

Counts I, II, III, IV, VI, and VIII

We agree with the State that the Count I, II, III, IV, VI, and VIII convictions should be affirmed. All were based on express findings of force that are unchallenged by Appellant and supported by the record. The trial court knew force was needed for a robbery conviction; its reference to Jolly related solely to Count V.

Count V

We also agree that the trial court’s analogy to Jolly was flawed. There, a bank employee was carrying bank deposits when the defendant “grabbed the bag and pulled with both hands.” 820 S.W.2d at 735. The victim’s fingernail was ripped off in the struggle, but the defendant did not touch, threaten, or try to strike the victim. Id. The robbery conviction was affirmed because “a struggle took place.” Id. at 736. The taking “was accomplished with some degree of violence. This was no mere purse-snatching; [the parties] actually struggled over the bag.” Id.

These quotes show the error in equating Count V with Jolly. Count V was essentially a snatching; the defendant and victim in Jolly “actually struggled” during the theft.

Count V is more like State v. Tivis, 884 S.W.2d 28 (Mo.App.1994). Defendant Tiv-is “yanked” a purse from a woman’s shoulder, but “did not threaten her with physical force, there was no struggle over the purse, Tivis did not touch her and she was not injured.” Id. at 29.

Tivis did not express any threat against Ms. Tagel and the only evidence of force was that the purse was “yanked” from her shoulder. However, Ms. Tagel specifically testified that there was no struggle over the purse. Tivis grabbed the strap of the purse and took it from her shoulder without touching or injuring Ms. Tagel. The evidence is insufficient to support Tivis’ conviction for robbery in the second degree.

Id. at 30. Contrast State v. Childs, 257 S.W.3d 655, 660 (Mo.App.2008) (distinguishing Tivis and affirming robbery conviction where defendant “tussled” with victim for her car keys, then stole her car).

There was evidence that the clerk’s arm was “brushed” during the Count V theft. This was de minimus contact incidental to the money snatch, not a threat or use of force to overcome resistance. The trial court did not base the Count V conviction on it, nor could we. Compare Tivis, 884 S.W.2d at 30 (victim specifically testified that there was no struggle) with similar testimony here.

Thus, we reverse the Count V conviction. This moots Point II of the appeal, which seeks to reverse the same conviction for insufficient proof of force.

Conclusion

The Count I, II, III, IV, VI, and VIII convictions are affirmed. We reverse the Count V conviction, and inasmuch as Appellant admitted he was guilty of stealing on that count, we remand for further proceedings. See Tivis, 884 S.W.2d at 31-32.

LYNCH, P.J., and RAHMEYER, J., concur.

      . See § 558.016. Statutory references are to RSMo 2000.

      . From the clerk’s other testimony and surveillance videos admitted into evidence, it is plain that Appellant did not jump across or otherwise cross over to the clerk's side of the counter. He simply reached across the counter, grabbed money from the cash drawer, and ran.

      . Although Jolly's conviction was affirmed, the case was remanded for resentencing under a separate point of error. Id.

      . The State cites Childs and other cases to support its view that forcible stealing requires "only a minimal level of force.” Since the State is urging us to reverse and remand Count V nonetheless, we note these cases solely for the reader’s benefit. See Hughes v. State, 204 S.W.3d 376, 381 (Mo.App.2006)(guilty plea admission that defendant "struggled" with store personnel while trying to escape with stolen goods); State v. Applewhite, 771 S.W.2d 865, 867-68 (Mo.App.1989)(pushing store manager aside, knocking him up against a door, and knocking his hands away as he tried to grab defendants); State v. Harris, 622 S.W.2d 742, 744-45 (Mo.App.1981)(shoving security guard with shoulder, "not an accidental bump,” and pulling stolen clothes from guard’s grasp).


text:
    Carl S. SUTHERLAND, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93517.
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Chris Koster, Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Carl Sutherland (Movant) appeals from the judgment of the Circuit Court of St. Louis County denying, without an eviden-tiary hearing, his Rule 29.15 motion for post-conviction relief.

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 opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Terry WALKER, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93778.
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.
    Brocea Smith, Assistant Public Defender, St. Louis, MO, for appellant.
    Robert J. (Jeff) Bartholomew, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Movant, Terry Walker, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the 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.

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


text:
    Bernard SCOTT, Appellant, v. POTTER ELECTRIC SIGNAL COMPANY and Division of Employment Security, Respondents.
    No. ED 93554.
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.

      Bernard Scott, St. Louis, MO, pro se.
    Potter Electric c/c UC Express, Hazel-wood, MO, pro se.
    Larry Ruhmann, Jefferson City, MO, for respondents.
   NANNETTE A. BAKER, Judge.

Introduction

Bernard Scott (“Appellant”) appeals pro se from an order of the Labor and Industrial Relations Commission, which affirmed a decision of the Division of Employment Security Appeals Tribunal denying employment compensation benefits. Appellant’s brief fails to comply with the rules of appellate procedure so substantially that we cannot review this appeal, and therefore it is dismissed.

Discussion

Pro se. appellants are held to the same standards as attorneys regarding the mandatory appellate briefing rules of Rule 84.04. See Pointer v. State, Dept. of Social Servs., 258 S.W.3d 453, 454 (Mo.App. E.D.2008). “Judicial impartiality, judicial economy, and fairness to all parties preclude courts from granting pro se litigants preferential treatment.” Pruett v. Pruett, 280 S.W.3d 749, 751 (Mo.App. S.D.2009). While we prefer to dispose of a case on the merits whenever possible, if the deficiencies in the brief are such that no claims are preserved for appellate review, then we must dismiss the appeal. Schaefer v. Altman, 250 S.W.3d 381, 384 (Mo.App. E.D.2008).

Here, Appellant failed to comply with Rule 84.04 in almost every respect. First, Appellant’s statement of facts does not contain a “fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). Further, Appellant fails to support any of his factual statements with citations to the legal file or transcript. Rule 84.04(i); Lueker v. Missouri W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D.2008) (record citations in appellate briefs are “mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record”).

Second, Appellant does not comply with Rule 84.04(d)(2), which requires each point relied on to identify the administrative ruling or action challenged, to provide a concise statement of the legal reasons for the claim on appeal, and explain why the legal reasons support the claim of error. In fact, Appellant does not have a point relied on in his brief.

Third, Appellant fails to comply with Rule 84.04(e) in that he has no argument portion of his brief, and preserves nothing for review. Appellant’s argument should demonstrate how principles of law and the facts of the case interact. Carden v. Missouri Intergovernmental Risk Mgmt. Ass’n, 258 S.W.3d 547, 557 (Mo.App. S.D.2008). Here, it appears that Appellant has incorporated an argument into his statement of facts.

Fourth, Appellant’s brief violates Rule 84.04(e), because it fails to set forth the applicable standard of review for agency decisions, presents no legal arguments for reversal, and contains no citations to legal authorities. Rule 84.04(e). Also, Rule 84.04(h)(1) provides that a party’s brief shall contain an appendix containing the “judgment, order, or decision in question.” Rule 84.04(h)(1). There is no appendix in Appellant’s brief containing the judgment from which he appeals.

Further, Appellant’s brief contains no table of cases, statutes or other authorities cited in violation of Rule 84.04(a)(1). And finally, Appellant’s brief does not contain a proper jurisdictional statement as required by Rule 84.04(b).

Conclusion

Appellant’s brief so substantially fails to comply with the briefing requirements of Rule 84.04 that it preserves nothing for appellate review. Thornton v. City of Kirkwoood, 161 S.W.3d 916, 919 (Mo.App. E.D.2005). The appeal is dismissed.

KATHIANNE KNAUP CRANE, P.J., and CLIFFORD H. AHRENS, J., concur.

      . Since we are granting Respondent's motion to dismiss the appeal, we need not address Respondent's Motion to Strike Appellant’s Brief.

      . All rule references are to Mo. Rules Civ. P.2000, unless otherwise indicated.


author: JAMES EDWARD WELSH, Judge.

text:
    Ronald N. JAEGERS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70611.
    Missouri Court of Appeals, Western District.
    May 25, 2010.

      Frederick J. Ernst, Kansas City, MO, for Appellant.
    Robert J. Bartholomew, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   JAMES EDWARD WELSH, Judge.

Ronald N. Jaegers appeals the circuit court’s judgment denying his Rule 24.035 motion without an evidentiary hearing. Jaegers pleaded guilty to aggravated stalking. In this appeal, Jaegers alleges the circuit court clearly erred in denying his motion without an evidentiary hearing because he alleged facts, which if true would entitle him to relief and which are not refuted by the record. Specifically, Jaegers claims that he felt coerced into pleading guilty because his attorney demanded payment of additional money that Jaegers did not have to continue to represent Jaegers at trial. We affirm.

Our review of the circuit court’s ruling on a Rule 24.035 motion is limited to determining whether or not its findings and conclusions are clearly erroneous. Rule 24.035(k). Findings and conclusions are clearly erroneous only if we have a definite and firm impression that a mistake was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006). To be entitled to an evidentiary hearing on a motion for postconviction relief, (1) a movant must allege facts — not conclusions — which, if true, would be the basis for relief, (2) the facts alleged must raise matters not refuted by the record, and (3) the matters complained of must establish that the mov-ant’s case was prejudiced. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). The circuit court can deny an evidentiary hearing if any of the three prongs is not satisfied. Coke v. State, 229 S.W.3d 638, 641 (Mo.App.2007). Moreover, when a defendant pleads guilty, a claim of ineffective assistance of counsel is immaterial except to the extent that it renders the plea involuntary and entered without sufficient knowledge. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997).

In his amended Rule 24.035 motion, Jaegers alleged:

[I]mmediately prior to pleading guilty, plea counsel told Movant that plea counsel would require an additional $5,000 to continue to represent Movant. Defense counsel did not explain to Movant whether or how Movant might be able to get representation if he could [not] afford the additional $5,000 fee. As Mov-ant did not have $5,000 and was not aware that defense counsel might not be permitted to withdraw or that Movant might be entitled to appointed counsel, Movant felt that he would be left without representation if he did not plead. Thus, Movant felt coerced to plead guilty rather than proceed without an attorney.

That counsel told Jaegers that he would require an additional $5,000 to continue to represent Jaegers is not an allegation of fact that would be the basis for relief. Such a statement is not in and of itself coercive. We recognize that in Price v. State, 171 S.W.3d 154, 157-58 (Mo.App.2005), this court’s Eastern District found that a movant was entitled to an evidentia-ry hearing on the movant’s claim that his counsel was ineffective for coercing him to plead guilty because he could not pay counsel’s legal fees for trial. In Price, however, the movant alleged that his counsel would not take his case to trial until the legal fees were paid and that, when counsel was told that the movant could not afford to pay the fee, counsel pressured or coerced the movant into pleading guilty. Id. at 156. Jaegers made no such allegations in his amended Rule 24.035 motion.

Moreover, the Price court concluded that the circuit court’s inquiry concerning promises or threats was not specific enough to conclusively refute the movant’s specific allegation that counsel told movant that he would not take the case to trial until the legal fees were paid. Id. at 157. Such is not the case for Jaegers. In Price, the court concluded: “A negative response to a routine inquiry regarding whether any promises or threats had been made to induce a guilty plea is too general to encompass all possible statements by counsel to his client.” Id. The record in this case, however, sufficiently refutes Jaegers’s con-clusory allegation that his guilty plea was involuntarily entered because his attorney told him that he would require an additional $5,000 to continue to represent Jaegers.

At the plea hearing, Jaegers testified that he had plenty of time to discuss his case with his attorney and that his attorney had done everything he had asked him to do and had not done anything he had not wanted him to do. When the circuit court asked Jaegers if he was happy with his counsel’s representation and advice, Jaegers answered, “Very satisfactory, sir.” Jaegers said that he felt that counsel had done a good job for him. When the circuit court asked Jaegers whether anybody had threatened or abused either him or a family member in order to get him to enter his plea, Jaegers replied, “No.” Postconviction relief based on ineffective assistance of counsel can be denied where the movant repeatedly assures the court that he is satisfied with counsel’s performance and that counsel has done everything he requested. Chaney v. State, 223 S.W.3d 200, 208 (Mo.App.2007).

Further, the record establishes that at sentencing Jaegers indicated that he might want to withdraw his guilty plea because the aggravated stalking charge at issue may not have happened in Lafayette County but in Clay County. When discussing this issue, Jaegers’s attorney told the circuit court:

Mr. Jaegers and I talked about what it would take if he wanted all of this investigation to occur. And so far he hasn’t done the things he needs to do to continue to retain me to do that. So if he wants to withdraw his guilty plea I would have to ask the Court to withdraw from the case.

Even after counsel informed the court that he and Jaegers had talked about what it would take if Jaegers wanted to continue an investigation on the case, Jaegers never indicated to the court that he was being coerced by counsel to plead guilty. If Jaegers truly felt pressured into pleading guilty by counsel’s statements, he had ample opportunity to express his duress to the circuit court at this time.

We affirm the circuit court’s judgment denying Jaegers’s Rule 24.035 motion without an evidentiary hearing.

All concur.


text:
    In the Interest of: J.H.E., J.L.E. and C.R.E., J.H.E. and C.A.E., Appellants, v. MISSOURI CHILDREN’S DIVISION, Respondent.
    Nos. WD 71577, WD 71578, WD 71579.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Frederick P. Tucker, Macon, MO, for Appellants.
    William P. Devoy, Brookfield, MO, for Plaintiffs.
    Gary L. Gardner, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

J.H.E. and C.A.E. appeal the juvenile court’s judgment terminating their parental rights to J.H.E., J.L.E., and C.R.E. They contest the sufficiency of the evidence supporting the court’s findings.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Catherine Anne FLOWERS, Appellant, v. Steven A. MARTIN, Respondent.
    No. WD 71371.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Gary E. Brotherton, Columbia, MO, for Appellant.
    Michelle N. Higinbotham, Belton, MO, for Respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   Order

PER CURIAM:

Catherine Anne Flowers appeals the Judgment of Modification of Child Custody, Visitation, and Support, entered by the Circuit Court of Platte County, whereby her former husband, Steven A. Martin, was granted sole legal and physical custody of their three children. We affirm in this per curiam order and have provided a memorandum to the parties explaining our ruling today. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. James H. LOYD, Appellant.
    No. WD 70546.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Matthew Ward, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Robert J. Bartholomew, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

James Loyd appeals from his conviction after a jury trial of one count of child molestation in the first degree. In his sole point on appeal, he argues that the trial court plainly erred in failing to prevent the State from making reference to, and presenting evidence of, a specific statement he had made to police, when the court had issued a pretrial ruling in limine excluding the statement. We affirm. Because a published opinion would have no prece-dential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Christopher W. POWELL, Appellant.
    No. WD 70259.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    John P. Ryan, Jr., Grandview, MO, for appellant.
    Shaun J. Mackelprang and John M. Reeves, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., THOMAS H. NEWTON, C.J., and JAMES M. SMART, JR., J.
   Order

PER CURIAM:

Christopher Powell appeals his conviction of assault in the second degree, driving while intoxicated with injury, section 565.060. Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Lamar D. QUARLES, Appellant.
    No. WD 70334.
    Missouri Court of Appeals, Western District.
    May 25, 2010.

      Susan L. Hogan, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Jamie P. Rasmussen, Esq., for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Lamar Quarles appeals his convictions after a jury trial of first-degree murder, first-degree robbery, and two counts of armed criminal action. Quarles contends that his convictions for first-degree murder and the associated armed criminal action count must be reversed, because there was insufficient evidence from which the jury could find that he deliberated before killing his victim. We affirm. Because a published opinion would have no prece-dential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Torry JOHNSON, Appellant.
    No. WD 69929.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Susan L. Hogan, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq. and Jayne T. Woods, Esq., Jefferson City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   ORDER

PER CURIAM.

Torry Johnson was convicted by jury of second-degree murder, armed criminal action, second-degree burglary, and stealing. On appeal, he challenges the sufficiency of the evidence to support the convictions for second-degree murder and armed criminal action. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the convictions.

Judgment affirmed. Rule 30.25(b).


text:
    Lance LESKINEN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70224.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Frederick J. Ernst, Esq., Kansas City, MO, for appellant.

      Shaun J. Mackelprang, Esq. and Karen L. Kramer, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Lance Leskinen was convicted in 2005 of one count of first-degree statutory sodomy. He appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Leski-nen argues that his trial counsel was ineffective because counsel failed to timely discover the specific date on which the offense was alleged to have occurred, and failed to investigate and present evidence and alibi witnesses which could have established his whereabouts on that date. 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:
    STATE of Missouri, Respondent, v. Mark ROTTINGHAUS, Appellant.
    No. WD 71910.
    Missouri Court of Appeals, Western District.
    May 25, 2010.

      James L. McMullin, Kansas City, MO, for Appellant.
    Yamini Laks, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES E. WELSH, and GARY D. WITT, JJ.
   JAMES EDWARD WELSH, Judge.

Mark Rottinghaus appeals the circuit court’s judgment denying his application for unconditional release under section 552.040, RSMo 2000. Rottinghaus asserts that the State failed to prove by clear and convincing evidence that he is presently suffering from a mental disease or defect that makes him presently dangerous to himself and others, that he is presently unable to conform his conduct to the requirements of the law, and that, in the foreseeable future, he is likely to have a mental disease or defect and be unable to conform his conduct to the requirements of the law. We affirm.

On November 18, 1997, while experiencing a manic episode due to bipolar disorder, Rottinghaus began breaking and throwing furniture out of his home. Rot-tinghaus then broke into multiple homes around his residence in Jackson County, breaking and throwing furniture. After entering one home, Rottinghaus engaged in an argument with a female in that home. Rottinghaus grabbed the woman, stabbed her in her midsection, and then began hitting her in the head with dishes. Two male neighbors responded to the woman’s screams. Rottinghaus stabbed and killed one of the men who came to the woman’s aid. Thereafter, Rottinghaus was arrested by the Kansas City Police Department.

On February 25, 1998, Rottinghaus was ordered into the custody of the Department of Mental Health for evaluation for fitness to proceed and responsibility for his crime. The initial mental evaluation revealed that, when the offenses occurred, Rottinghaus was suffering from “mental disease or defect, specifically Bipolar I Disorder, Manic Episode, With Psychotic Features[.]” The evaluation concluded that Rottinghaus suffers from a mental disease or defect, “specifically Bipolar I Disorder, Most Recent Episode Manic, In Partial Remission, and Adjustment Disorder With Depressed Mood.” The examiners believed that, at the time of the alleged criminal conduct, Rottinghaus “did not know or appreciate the nature, quality, or wrongfulness of his conduct and was suffering from a mental disease or defect by which he was incapable of conforming his conduct to the requirements of the law.” A second mental evaluation found that Rottinghaus has suffered from bipolar disorder since 1996 and that, at the time of the alleged criminal conduct, Rottinghaus was incapable of appreciating the wrongfulness of his conduct as a result of the bipolar disorder.

On January 27, 1999, the circuit court found Rottinghaus not guilty of second degree murder, two counts of assault in the second degree, and three counts of armed criminal action by reason of mental disease or defect. The court concluded that, at the time of the criminal conduct, Rottinghaus “did not know or appreciate the nature, quality, or wrongfulness of his conduct and was incapable of conforming his conduct to the requirements of the law, and was suffering from a mental disease or defect excluding responsibility for such conduct[.]” The circuit court committed Rottinghaus to the Department of Mental Health for custody, care, and treatment in a secure State mental hospital.

Rottinghaus received treatment for bipolar disorder as early as August 1996 through the Veteran’s Administration Medical Center (“VA”). The physician at the VA treated Rottinghaus with Lithium. In 1996, with his doctor’s consent, Rotting-haus stopped taking Lithium for a two-month period. After two months, Rotting-haus returned to the VA “exhibiting labile affect and some disorganization in his thinking process.” Rottinghaus was then put back on Lithium. Rottinghaus’s medical records indicate that in April 1997, he displayed mild affective instability and crying spells for little reason. In late 1997, without his physician’s knowledge, Rot-tinghaus stopped taking Lithium. It was during this period that Rottinghaus committed the stabbings and murder that resulted in his commitment to the Department of Mental Health.

Rottinghaus currently resides at Guhle-man Forensic Center, an intermediate security facility. On February 10, 2009, Rot-tinghaus filed a first amended application for unconditional release with the circuit court.

At the hearing on Rottinghaus’s application for unconditional release, Dr. Kavita Pendurthi, M.D., a psychiatrist employed by the Department, testified regarding Rottinghaus’s mental disease. Pendurthi has been treating Rottinghaus since 2005. Pendurthi testified that Rottinghaus’s current psychiatric diagnosis is “bipolar disorder NOS [(not otherwise specified);] alcohol abuse in remission while in a controlled environment; [and] personality disorder NOS [ (not otherwise specified) ] with narcissistic and borderline traitsf.]” According to Pendurthi, Rottinghaus’s bipolar disorder is not in remission. Pendurthi prescribed Depakote for Rottinghaus’s bipolar symptoms, but Rottinghaus refuses to take the medicine. According to Pen-durthi, Rottinghaus began refusing his De-pakote in 2007, and, since that time, his symptoms of bipolar disorder have increased. These symptoms include increased paranoia, irritability, agitation, anger, aggression, impulsivity, crying spells, and some periods of grandiosity. Pendur-thi testified to a reasonable degree of psychiatric certainty that Rottinghaus has a mental disease that renders him dangerous to himself and others. Pendurthi said that she cannot state that in the reasonable future Rottinghaus is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others. Pendurthi also testified that Rotting-haus is not able to conform his conduct to the requirements of the law.

Charlene Coe-Gilmore is a licensed psychologist, supervisor, and program coordinator at Fulton State Hospital. She has worked at Fulton State Hospital for twenty five years and became Rottinghaus’s case manager and therapist in 2007. Coe-Gilmore testified that Rottinghaus displays behaviors of exaggerated irritability, im-pulsivity, chronic sleep disturbances, depression, tearfulness, and aggression. Coe-Gilmore stated that Rottinghaus antagonizes others to the point that staff intervention is sometimes needed to prevent someone from getting hurt. According to Coe-Gilmore, Rottinghaus denies that he has a mental illness and refuses to take medication. Coe-Gilmore said that Rot-tinghaus has a mental illness and that he is dangerous to himself and others. She said that her opinions regarding Rottinghaus’s dangerousness is due to his mental illness and not merely because of personality issues. She also said that she has concerns that Rottinghaus would not choose to conform his conduct to the requirements of the law.

Department Incident Reports document some of Rottinghaus’s aggressive behavior. In 2003, Rottinghaus punched a peer and cursed, hit, and kicked staff. In 2005, Rottinghaus pulled his roommate’s hair. In 2006, Rottinghaus engaged in a verbal argument with a peer that then required additional staff for safety. In 2006, Rot-tinghaus pushed a staff member who intervened in a verbal altercation which Rot-tinghaus had with another peer. Also, in 2006, Rottinghaus rushed a peer with his arms raised, and support staff had to separate the two clients. Moreover, Rotting-haus’s Treatment Plan Review noted that, in September 2008, Rottinghaus became disruptive and was yelling at a peer and would not stop until staff stepped between Rottinghaus and the peer. Further, Pen-durthi testified that, in February, Rotting-haus got mad at his roommate and punched his roommate in the leg and scratched his neck.

Pendurthi said that Rottinghaus has continuous conflicts with his roommates and staff and that he overreacts to minor interaction or incidents. Both Pendurthi and Coe-Gilmore said that Rottinghaus is accusatory, loud, argumentative, verbally aggressive, hypersensitive, and believes people are against him.

According to Pendurthi, she would not recommend that Rottinghaus be placed in a minimum security facility let alone recommend unconditional release. She also said that at the current intermediate security facility she does not even recommend Rottinghaus for unescorted “grounds passes” because Rottinghaus is not dependable and trustworthy. Pendurthi said that, even in the ward with staff watching him, Rottinghaus is able to get to other patients and injure them.

Dr. A.E. Daniel testified on behalf of Rottinghaus. Daniel had seven visits with Rottinghaus between 2001 and 2008. Daniel found that Rottinghaus has a current diagnosis of “Bipolar Affective Disorder I, most recent episode, Manic (1997) in Full Remission;” “Alcohol Abuse, in Remission, Under Controlled Environment (Per Fulton State Hospital Records);” and “Mixed Personality Traits — Antisocial and Borderline Type.” Daniel’s report states that Rot-tinghaus has never been physically aggressive to fellow patients or staff and that he has never placed anyone in physical danger. Daniel believes Rottinghaus’s last manic episode was in 1997 and thus opined that Rottinghaus’s bipolar disorder is currently in remission. Daniel testified that, because Rottinghaus’s mental illness is in remission, Rottinghaus does not have a mental disease or defect as to cause him to be dangerous to himself or others and he is able to conform his conduct to the requirements of the law. However, Daniel recommended that Rottinghaus have a forensic monitor and that he continue treatment with a psychologist to modify his personality problems after his release.

The circuit court found that Rotting-haus presently has a mental disease that renders him dangerous to the safety of himself and others. The court found Pen-durthi more credible than Daniel on the issue of whether Rottinghaus’s mental illness is in remission. The court also found Pendurthi more credible regarding Rot-tinghaus’s capacity to appreciate the criminality of his conduct and the capacity to conform his conduct to the requirements of the law. On July 23, 2009, the circuit court denied Rottinghaus’s application for unconditional release. Rottinghaus appeals.

When reviewing a judgment on an application for unconditional release, we will affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. State v. Larrington, 280 S.W.3d 178, 181 (Mo.App.2009). We exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and only with a firm belief that the decree of judgment is wrong. Id.

A verdict of not guilty by reason of mental disease or defect supports an inference of continuing mental illness. Greeno v. State, 59 S.W.3d 500, 504 (Mo. banc 2001). The Constitution, therefore, allows a person who has been found not guilty by reason of mental disease or defect to be confined in a mental institution “until such time as he has regained his sanity or is no longer a danger to himself or society.” Id. (citing Jones v. United States, 463 U.S. 354, 370, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983)).

In Missouri, the statutory standard for unconditional release is found in section 552.040.9, RSMo 2000, which provides:

No committed person shall be unconditionally released unless it is determined through the procedures in this section that the person does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering the person dangerous to the safety of himself or others.

The procedure for a hearing on an application for unconditional release is governed by section 552.040.7. It requires the circuit court to consider the following factors in addition to any other relevant evidence in determining if the committed person should be unconditionally released:

(1) Whether or not the committed person presently has a mental disease or defect;
(2) The nature of the offense for which the committed person was committed;
(3) The committed person’s behavior while confined in a mental health facility;
(4) The elapsed time between the hearing and the last reported unlawful or dangerous act;
(5) Whether the person has had conditional releases without incident; and
(6) Whether the determination that the committed person is not dangerous to himself or others is dependent on the person’s taking drugs, medicine or narcotics.

§ 552.040.7.

Because Rottinghaus was committed upon acquittal on the grounds of mental disease or defect excluding responsibility for murder in the second degree, which is a “dangerous felony” as defined in section 556.061(8), RSMo Cum.Supp.2009, section 552.040.20 further provides that Rotting-haus:

shall not be eligible for conditional or unconditional release under the provisions of this section unless, in addition to the requirements of this section, the court finds that the following criteria are met:
(1) [Rottinghaus] is not now and is not likely in the reasonable future to commit another violent crime against another person because of [his] mental illness; and
(2) [He] is aware of the nature of the violent crime committed against [the victim] and presently possesses the capacity to appreciate the criminality of the violent crime against [the victim] and the capacity to conform [his] conduct to the requirements of law in the future.

Moreover, section 552.040.7(6) provides that the burden of persuasion is on the party seeking unconditional release to prove by clear and convincing evidence that the committed person does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering the person dangerous to the safety of himself or others. “Clear and convincing evidence is evidence that instantly tilts the scales in the affirmative when weighed against the opposing evidence and that leaves the fact finder with the abiding conviction that the evidence is true.” Grass v. State, 220 S.W.3d 335, 339 (Mo.App.2007).

Rottinghaus recognizes all these standards but asserts that the Eighth Circuit Court of Appeals in Revels v. Sanders, 519 F.3d 734 (8th Cir.2008) reversed the burden of persuasion when it held that sections 552.040.7 and 552.040.9 denied an insanity acquittee, who sought an unconditional release, due process of the law under the United States Constitution. According to Rottinghaus, the burden of persuasion is now upon the State to prove by clear and convincing evidence that he has a mental disease or defect rendering him dangerous to the safety of himself or others. Indeed, even the circuit court concluded that the Revels case called into question the validity of placing the burden of persuasion upon Rottinghaus, and the circuit court placed the burden upon the State to prove by clear and convincing evidence that Rottinghaus still suffers from a mental illness rendering him dangerous to the safety of himself or others. We disagree with the shifting of this burden.

In Revels, the petitioner appealed the denial of his petition for a writ of habeas corpus in which he challenged the Missouri Court of Appeals’ denial of his application for unconditional release. Id. at 735. The Eighth Circuit Court of Appeals granted a conditional writ of habeas corpus because it concluded that the Missouri Court of Appeals violated Revel’s due process rights by imposing on him an evidentiary burden contrary to United States Supreme Court precedent. Id. In particular, the Revels court found that the Missouri Court of Appeals unreasonably applied the United States Supreme Court’s opinion in Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), in determining that the State could continue to confine Revels based on future dangerousness alone. Revels, 519 F.3d at 743-44.

The Supreme Court held in Foucha that “Louisiana’s statutory release provision, which provided that the state could continue to confine indefinitely an acquittee in a mental facility who, although not mentally ill, might be dangerous to himself or to others if released,” violated due process. Revels, 519 F.3d at 741 (citing Foucha, 504 U.S. at 73, 77, 112 S.Ct. 1780). The Fou-cha court concluded that “the statute violated due process because such an ‘acquit-tee may be held as long as he is both mentally ill and dangerous, but no longer.’” Revels, 519 F.3d at 741 (quoting Foucha, 504 U.S. at 77, 112 S.Ct. 1780). Thus, pursuant to Foucha, “an application for release of an insanity acquittee has two components: (a) a present mental illness and (b) dangerousness stemming from that illness.” Revels, 519 F.3d at 741 (citing Foucha, 504 U.S. at 77, 112 S.Ct. 1780).

Based upon the Supreme Court’s holding in Foucha, the Revels court concluded that the rule, “that a state may continue to hold an insanity acquittee who seeks unconditional release even if he is not presently mentally ill, must be rejected.” Id. at 742. The Revels court stated: “[OJnce an insanity acquittee has shown the absence of a present mental illness, his continued confinement constitutes ‘punishment,’ which Foucha expressly rejected as a proper basis for the confinement of one who is not criminally responsible for his criminal actions.” Id. at 742-43 (citing Foucha, 504 U.S. at 80, 112 S.Ct. 1780) (emphasis added). Clearly, the Revels court did not reverse the burden of persuasion as Rottinghaus contends and as the circuit court found. Even after Revels, the burden of persuasion remains on the party seeking unconditional release to prove by clear and convincing evidence that he does not have a mental disease or defect rendering him dangerous to the safety of himself or others. According to Revels, if an insanity acquittee proves by clear and convincing evidence that he does not have a mental disease, then he is entitled to unconditional release. Id. at 742-43.

But, even if Revels had reversed the burden of persuasion, we are not bound to follow the Eighth Circuit’s decision. State v. Storey, 901 S.W.2d 886, 900 (Mo. banc 1995). Indeed, we are constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court. State v. Aaron, 218 S.W.3d 501, 511 (Mo.App.2007); Mo. Const. art. V, § 2. The Missouri Supreme Court has said:

A verdict of not guilty by reason of insanity establishes that the person committed a criminal act and that he or she committed the act because of mental illness. When a criminal defendant establishes that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society. So long as the ... presumption of continuing mental illness has not been broken following an acquittal by reason of insanity, the burden of proof need not shift to the state.

Greeno, 59 S.W.3d at 504 (citation omitted); see also State v. Tooley, 875 S.W.2d 110, 113 (Mo. banc 1994). The Greeno court determined that the insanity acquit-tee also bore the burden of proving by clear and convincing evidence that he would not be dangerous to others if released. Greeno, 59 S.W.3d at 504-05.

We, therefore, will consider Rotting-haus’s point on appeal in light of this burden of persuasion and determine whether the circuit court’s judgment denying Rot-tinghaus’s application for unconditional release was against the weight of the evidence, or erroneously declared or applied the law.

In support of his contention that substantial evidence did not support the circuit court’s judgment that Rottinghaus currently suffers from a mental disease or defect, Rottinghaus relies on the testimony of Doctor A.E. Daniel. Daniel opined that Rottinghaus’s current diagnosis is “Bipolar Affective Disorder I, most recent episode, Manic (1997) in Full Remission.” The State’s expert, Doctor Kavita Pendurthi, however, testified that Rottinghaus currently suffers from bipolar disorder and that the illness is not in remission. The circuit court found Pendurthi more credible than Daniel and found that clear and convincing evidence established that Rot-tinghaus still suffered from a mental illness. Moreover, Pendurthi and Coe-Gil-more testified that Rottinghaus is a danger to himself and others because of his mental disease, and they pointed to several behaviors and incidents supporting this conclusion. Pendurthi testified that she would not even recommend that Rotting-haus be placed in a minimum security facility let alone recommend unconditional release. She said that at the current intermediate security facility she does not even recommend Rottinghaus for unescorted “grounds passes” because Rotting-haus is not dependable and trustworthy. Pendurthi said that, even in the ward with staff watching him, Rottinghaus is able to get to other patients and injure them. Daniel testified that the 1997 criminal offenses were the last reported dangerous or unlawful acts committed by Rottinghaus, but the circuit court found that the experts’ testimony and the documentary evidence established otherwise. “[Wjhether the evidence is ‘clear and convincing’ relies in large part upon credibility issues, which we leave to the circuit court, which had an opportunity to observe the witnesses in light of the surrounding circumstances.” State v. Gratts, 112 S.W.3d 12, 19 (Mo.App.2008).

In making its determination to deny Rottinghaus’s request for unconditional release, the circuit court considered all of the factors outlined in section 552.040.7. Substantial evidence supported the circuit court’s findings on all of these factors.

The first factor considered by the circuit court was whether or not Rottinghaus presently has a mental disease or defect. § 552.040.7(1). The evidence established that both Pendurthi and Daniel testified that Rottinghaus presently has the mental illness of bipolar disorder. Daniel merely opined that the illness was in remission. The circuit court, however, found that, with regard to whether Rottinghaus’s mental disease was in remission, Pendurthi was more credible than Daniel.

The second factor considered by the circuit court was the nature of the offense for which Rottinghaus was committed. § 552.040.7(2). As noted previously, Rot-tinghaus while in a manic state broke into neighboring houses, threw and destroyed items from those houses, assaulted a woman by stabbing her, and stabbed and killed a man trying to assist the woman.

The third factor considered by the circuit court was Rottinghaus’s behavior while confined in a mental health facility. § 552.040.7(3). The testimony of Pendur-thi and Coe-Gilmore established that Rottinghaus continues to display mood instability and related hostility, verbal aggression, paranoia, impulsivity, and over reaction to minor incidents. Moreover, Rottinghaus has refused to take medications and is not compliant with recommended treatment.

The fourth factor considered by the circuit court was the elapsed time between the hearing and the last reported unlawful or dangerous act. § 552.040.7(4). The hearing in this case took place on February 20, 2009. Pendurthi testified that, in February, Rottinghaus got mad at his roommate and punched his roommate in the leg and scratched his neck. In September 2008, Rottinghaus became disruptive and was yelling at a peer and would not stop until staff stepped between Rot-tinghaus and the peer. In 2006, Rotting-haus rushed a peer with his arms raised, and support staff had to separate the two clients. In 2006, Rottinghaus pushed a staff member who intervened in a verbal altercation which Rottinghaus had with another peer. Also, in 2006, Rottinghaus engaged in a verbal argument with a peer that then required additional staff for safety. In 2005, Rottinghaus pulled his roommate’s hair. In 2003, Rottinghaus punched a peer and cursed, hit, and kicked staff.

The fifth factor considered by the circuit court was whether Rottinghaus has had previous conditional releases without incident. § 552.040.7(5). The evidence established that Rottinghaus has not had any conditional releases since he was committed to the Department of Mental Health.

Finally, the sixth factor considered by the circuit court was whether the determination that Rottinghaus is not dangerous to himself or others is dependent on Rot-tinghaus’s taking drugs, medicine, or narcotics. § 552.040.7(6). Pendurthi testified that Rottinghaus is a danger to himself and others. She said that she has prescribed medication to treat the symptoms of Rottinghaus’s bipolar disorder but that Rottinghaus refuses to take the medication. The criminal incidents for which Rottinghaus was committed to the Department of Mental Health occurred while Rot-tinghaus refused to take prescribed medication. Rottinghaus even denies that he has a mental illness according to Coe-Gilmore.

In addition to these six factors, because Rottinghaus was committed upon acquittal on the grounds of mental disease or defect excluding responsibility for murder in the second degree, which is a “dangerous felony,” the circuit court also considered whether (1) Rottinghaus “is not now and is not likely in the reasonable future to commit another violent crime against another person because of [his] mental illness,” and (2) he is aware of the nature of the violent crime he committed and presently possesses the capacity to appreciate the criminality of the violent crime and the capacity to conform his conduct to the requirements of law in the future. See § 552.040.20. At the hearing, both Pendurthi and Coe-Gilmore testified that Rottinghaus has a mental disease that renders him dangerous to the safety of himself or others. Pendurthi also said that Rottinghaus does not have the capacity to conform his conduct to the requirements of the law in the future. She said that, due to Rottinghaus’s hypomanic state, she did not believe Rottinghaus could control his impulsivity. Although Rottinghaus’s expert, Daniel, said that Rottinghaus “is not now and is not likely in the reasonable future to commit another violent crime” because his mental disease is in remission and that Rottinghaus could conform his conduct to the requirement of the law in the future, the circuit court did not find Daniel’s testimony to be credible.

Given all this evidence, we find substantial evidence supported the circuit court’s judgment denying Rottinghaus’s application for unconditional release. Rotting-haus did not establish by clear and convincing evidence that he does not have, and in the reasonable future is not likely to have, a mental disease or defect rendering him dangerous to the safety of himself or others. § 552.040.9. While the circuit court erroneously shifted the burden of proof to the State as was advocated by Rotting-haus, the circuit court correctly concluded that, even under those parameters, Rot-tinghaus was not entitled to an unconditional release. We, therefore, affirm the circuit court’s judgment.

All concur.

      . Rottinghaus asserts that the circuit court relied solely on his refusal to take medication as dispositive of the issue of dangerousness and that, pursuant to Jensen v. State, 926 S.W.2d 925, 928 (Mo.App.1996), it was error for the circuit court to rely solely on that evidence. Indeed, in Jenson, the court held that the fact that a person has to take medication to control his mental illness cannot be the sole basis for denying the individual’s request for unconditional release. Id. at 928. Contrary to Rottinghaus's assertion, the circuit court considered multiple factors in making its determination concerning dangerousness, including Rottinghaus’s aggressiveness and hostility in multiple incidents.

      . There is no dispute that Rottinghaus is aware of the nature of the crimes that he committed and that he appreciated the criminality of those crimes.