author: LAURA DENVIR STITH, Judge.

text:
    Elizabeth MITCHELL, et al., Appellants, v. Milton KARDESCH, M.D., Respondent.
    No. SC 90370.
    Supreme Court of Missouri, En Banc.
    June 15, 2010.

      Michael A. Gross, Law Offices of Michael A. Gross, St. Louis, for Appellants.
    David P. Ellington, T. Michael Ward, Christine A. Vaporean and Teresa M. Young, Brown & James P.C., St. Louis, for Respondent.
   LAURA DENVIR STITH, Judge.

Elizabeth Mitchell, along with her two minor children, sued Dr. Milton Kardesch for medical malpractice, claiming that Dr. Kardesch deviated from the standard of care (1) in not appropriately evaluating, diagnosing and treating her husband, Ruben Mitchell, or referring him for treatment and (2) in not acting within the standard of care upon recording abnormalities in Mr. Mitchell’s thallium stress test. Because much of the case would turn on whether the jury believed her or Dr. Kar-desch’s recitation of events, Mrs. Mitchell requested permission to ask Dr. Kardesch about his admission in his deposition that he had given a false answer in his sworn response to an interrogatory in this case about whether his license to practice medicine ever had been suspended, and to utilize the interrogatory answer and deposition if he denied what he had stated therein.

The trial court believed that the issue of Dr. Kardesch’s inaccurate answer was not relevant or material to Mrs. Mitchell’s claim and prohibited counsel from asking Dr. Kardesch about it or impeaching him with the interrogatory answer or deposition. The jury found in favor of Dr. Kar-desch on all counts. Mrs. Mitchell appeals. This Court reverses and remands for a new trial.

“It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility .... ” Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 6 (Mo.1970). To the extent State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000), and its progeny hold otherwise, they misinterpreted this Court’s prior eases and should not be followed.

While the right to cross-examine a witness on the stand is subject to the trial court’s discretion to weigh the probative value of the evidence against its prejudicial effect, State v. Freeman, 269 S.W.3d 422, 427 (Mo. banc 2008), here the plaintiffs offered to limit their questions so that the jury would not be aware of the reasons for the suspension. The probative value of showing that Dr. Kardesch allegedly was willing to give a false answer to this interrogatory to protect himself from embarrassment and the credibility of his deposition attempt to explain why he had done so were relevant to the jury’s determination of whose account of events was most credible: his or Mrs. Mitchell’s.

This Court also finds that the trial court erred in ruling that it would not permit plaintiffs to use Dr. Kardesch’s deposition and interrogatory answers as extrinsic evidence should he deny their content at trial. The Court here formalizes the ad hoc exceptions to the bar on extrinsic evidence that were recognized for prior false accusations in cases such as Black v. State, 151 S.W.3d 49, 55 (Mo. banc 2004), and for evidence that bore strongly on plaintiffs essential soundness as a witness in cases such as Roberts v. Emerson Elect. Mfg. Co, 362 S.W.2d 579, 584 (Mo.1962): where the relevance and probativeness of such evidence on the issue of the party’s character for truth and veracity is so great that it would deprive the jury of evidence highly relevant to its resolution of material issues, extrinsic evidence is admissible, subject to the trial court’s discretion to limit or exclude it so as to avoid undue prejudice. Here, the relevance of Dr. Kardesch’s willingness to swear falsely in this very case is so relevant and probative on the central issue of whose version of the facts to believe that the trial court abused its discretion in entirely excluding it.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Response of Dr. Kardesch to Mrs. Mitchell’s Call

On October 11, 2001, Ruben Mitchell awoke in the middle of the night clutching his chest after having a nightmare about death. After Mr. Mitchell left for work the following morning, Mr. Mitchell’s wife, Elizabeth Mitchell, called the office of Dr. Milton Kardesch, who was Mr. Mitchell’s general internist.

Speaking with Dr. Kardesch’s medical assistant, Mrs. Mitchell relayed the previous night’s episode. In her note documenting her conversation with Mrs. Mitchell, the medical assistant wrote: “October 11, 2001, Ruben Mitchell, diet; eats anything, night; sleep, nightmare, grabs chest, sleeps after work, never used to nap.” The medical assistant did testify she made a note of the Mitchells’ telephone number and drew a line on the message slip, later explaining at trial, “That line means that I went back to talk to Dr. Kardesch about this phone call.” The parties dispute what occurred next. Because Dr. Kardesch raises a sufficiency of the evidence issue, the evidence is set out in detail.

Dr. Kardesch’s medical assistant testified she had no specific recollection of Mrs. Mitchell’s call. Neither she nor Mrs. Mitchell could recall if Mrs. Mitchell also had mentioned chest pain, but the medical assistant said that even had Mrs. Mitchell so indicated, her practice was not to write down such complaints. Instead, she said it was her general practice to “speak to the patient, get a phone number, go back and talk to Dr. Kardesch, and I would write down whatever Dr. Kardesch would tell me the patient should do.”

Reviewing her own notes documenting both her call with Mrs. Mitchell and her related conversation with Dr. Kardesch, the medical assistant indicated the doctor believed Mr. Mitchell’s symptoms might have been related to one of Mr. Mitchell’s heart medications. This was corroborated by Dr. Kardesch’s testimony that he told his assistant that a side effect of a beta-blocker taken by Mr. Mitchell included “bad dreams and nightmares.” The assistant’s notes also stated Dr. Kardesch’s diagnosis was arteriosclerotic heart disease and to “rule out angina.” The assistant said she did not recall Dr. Kardesch directly speaking on the telephone with Mrs. Mitchell.

Dr. Kardesch later testified that he remembered Mrs. Mitchell’s telephone call regarding her husband because of the unique nature of “a phone call that involved grabbing at the chest and having a nightmare.” Dr. Kardesch confirmed both that he did not speak directly with Mrs. Mitchell on the telephone on October 11, 2001, and that his diagnoses had been arteriosclerosis and to “[r]ule out angina.” He further stated that at the time of the call he believed Mr. Mitchell’s symptoms simply pointed to a nightmare. Regardless, not wanting “to waste time” and feeling it was important that a patient with Mr. Mitchell’s “past history” seek immediate medical care, Dr. Kardesch testified that he instructed his assistant to tell Ms. Mitchell “to get Mr. Mitchell over to the emergency room.”

Dr. Kardesch’s assistant conceded at trial that she had no recollection of telling Mrs. Mitchell to take her husband to the emergency room, and her note of the conversation does not contain that advice. She said she nonetheless thought she told Mrs. Mitchell to go to the emergency room because, “It was automatic that if a patient was having chest pain, they needed to go to the emergency room, and it was never written. It was just verbal.”

Mrs. Mitchell flatly contradicted the medical assistant’s assumption that she must have said to take Mr. Mitchell to the emergency room. Mrs. Mitchell said that she never was instructed to take her husband to the emergency room: “That did not happen. If they would have told me to take him anywhere, I would have taken him immediately.” Mrs. Mitchell further testified that as her husband was a journeyman plumber with 28 years seniority, he was allowed to leave work for medical purposes and that he would have done so “immediately” if Dr. Kardeseh’s office had so directed. No one disputes that Mr. Mitchell did not go to the emergency room on October 11, 2001.

Dr. Donald Singer, a cardiologist and professor of medicine at the University of Illinois in Chicago, testified that Dr. Kar-desch deviated from the standard of care in his management of Mr. Mitchell’s medical treatment. Specifically, Dr. Singer testified that Dr. Kardesch should have spoken directly with Mrs. Mitchell to better understand Mr. Mitchell’s symptoms, and, importantly to the facts of this case, Dr. Kardesch should have “shipped the patient off to the emergency room.” Further, Dr. Singer testified that Dr. Kardesch needed to “get on this patient” and immediately order a series of tests, some of which were possible to complete within Dr. Kardesch’s office. To a reasonable degree of medical certainty, Dr. Singer testified, Dr. Kar-desch breached the standard of care in not following these procedures.

B. Belay in Ordering Stress Test

It is also undisputed that Dr. Kardesch ordered a thallium stress test at St. Joseph’s Hospital, but it was not performed until October 22, 2001, a full 11 days after he decided that Mr. Mitchell needed to have a stress test. The reason for the delay is in dispute.

According to Dr. Kardesch, after instructing his medical assistant to direct Mrs. Mitchell to take her husband to the emergency room, Mrs. Mitchell made a follow-up call to the office stating that her husband “was at work feeling fine, that he had no further chest problems and no chest pain.” Although this lessened Dr. Kardesch’s suspicions of coronary artery disease, he testified that he next asked his assistant “to schedule a stress test” and thought the test “would just be done the next day .... ” He further stated that it was “[pjretty rare” to have an occasion when St. Joseph’s was not able to perform a stress test “within a day or two” if fitting with the patient’s schedule and, if it could not, arrangements could be made at another hospital. According to Dr. Kardesch, “The plan was” to “check with Mr. Mitchell’s work schedule” and have Mrs. Mitchell let Dr. Kardesch’s office know “a good date for Mr. Mitchell to have this stress test.”

Dr. Kardesch’s assistant testified that she could not recollect the reason why the stress test was not scheduled until October 22, 2001, but in her deposition she stated that was “the first time we could get it scheduled .... ” She also agreed, “Normal procedure to do any [thallium stress] test is the next day. You always schedule it for the next day. If it isn’t scheduled, then there is a reason because of the patient’s schedule.”

The fact remains that the test was not scheduled for 11 days. Mrs. Mitchell testified this was because Dr. Kardesch’s assistant simply told her “that Dr. Kardesch was going to order a stress test” and that the assistant would “get back” to Mrs. Mitchell with the appointment. It was not until about a week later that the assistant called and told her that the stress test had been scheduled for October 22. Mrs. Mitchell said the delay was not because of her husband’s schedule, that she would have taken him to receive the stress test “[w]henever they wanted me to.” She said Mr. Mitchell’s convenience “was never an issue” and the delay “was not for [Mr. Mitchell’s] convenience. He could have

gone at any time. Must have been for their convenience.”

Mrs. Mitchell’s expert, Dr. Singer, testified that had Mr. Mitchell received a stress test October 11, 2001, there would have been signs of myocardial ischemia that were not later found due to the delay in testing. He said Dr. Kardesch “failed to appropriately evaluate, diagnose and treat Mr. Mitchell ... on or after October 11, 2001.” If the testing had been done earlier, Dr. Singer testified to a reasonable degree of medical certainty, Mr. Mitchell “would not have developed a heart attack, and he would not have this need to have an emergency catheterization, and he would not have had the [complications] that particularly resulted in the ... infarct that killed him.”

Dr. Patricia Cole testified that the delay did not affect the stress test results and that Dr. Kardesch did not deviate from the standard of care. She explained, to a reasonable degree of medical certainty, that if Mr. Mitchell showed symptoms of myocardial ischemia October 11, 2001, those same signs also would have been present during the October 22 stress test.

C. Stress Test Results

Once the thallium stress test was completed October 22, 2001, Dr. Kardesch read the results and informed the Mitch-ells that Mr. Mitchell’s test was normal and immediate treatment was not required. Further, he reported that Mr. Mitchell’s “ability to perform on the treadmill” was above average, that he had not complained of chest pain diming the stress test, and that the results of the test were “negative ... by EKG criteria.” The test, however, had to be stopped because Mr. Mitchell became short of breath. The cardiologist recorded that, at 38.7 percent, Mr. Mitchell had a “mildly depressed ejection fraction.” Dr. Kardesch explained the term “ejection fraction”:

When the heart fills up, and is beating to get the blood out, it never really empties completely. The normal amount for emptying is 50 to 60 percent. That’s called an ejection fraction.

Dr. Kardesch did not tell the Mitchells about the depressed ejection fraction as he felt the reading just “was wrong.” Dr. Kardesch explained, “It was a good test otherwise, and ... the nuclear fraction is always much lower than the echocardio-gram .... I really didn’t believe that it was truly that low, and I was going to get an echocardiogram. He continued, “And I figured, well, I was going to see him right away.” Dr. Kardesch, however, did not order an echocardiogram, and he was mistaken that he had scheduled an appointment with Mr. Mitchell right away. Mr. Mitchell had a heart attack three days later.

Dr. Singer testified that Dr. Kardesch’s failure to send Mr. Mitchell to a specialist for further testing constituted a deviation from the standard of care. If Dr. Kar-desch “did his job right ... he simply had to say, [‘] This is a potential problem. We need to have it looked at at a higher and more specialized level.... [’]” At that point, if Dr. Kardesch had sent Mr. Mitchell to receive a catheterization, according to Dr. Singer, a specialist “would have been able to fix that vessel, and that would have prevented the occurrence of the heart attack that did [Mr. Mitchell] in three days later.”

Dr. Cole testified that, to the contrary, it was not a deviation from the standard of care for Dr. Kardesch to not compare the results with the July 2000 catheterization test, in which the result was 50 percent. Both readings, she stated, constituted “a mild depression” and, in light of the different technique used on the second occasion, that test did not per se represent a signifi-

cant change from the July 2000 test. As a result, Dr. Kardesch’s reading of the stress test complied with the standard of care.

D. The Death and Subsequent Lawsuit

On the morning of October 25, 2001, Mr. Mitchell began suffering chest tightness and sweating and drove himself to the emergency room at St. Joseph’s Health Center. He was diagnosed with acute lateral myocardial infarction and underwent an immediate cardiac catheterization followed by angioplasty and the insertion of a stent. Due to complications arising from the catheterization procedure, and the decision to take Mr. Mitchell off blood thinners, a blood clot developed around Mr. Mitchell’s stent, which triggered another cardiac event. Mr. Mitchell died October 26, 2001, from complications arising from myocardial infarction and arteriosclerosis.

Mrs. Mitchell and her and her husband’s two minor children filed a wrongful death action against Dr. Kardesch on the theories that Dr. Kardesch deviated from the standard of care in: (1) not appropriately evaluating, diagnosing and treating Mr. Mitchell or referring him for treatment on or after October 11, 2001, and/or (2) not acting within the standard of care upon recording abnormalities in Mr. Mitchell’s stress test taken October 22, 2001.

Much of the trial turned on whether the jury believed Dr. Kardesch or Mrs. Mitchell. Because credibility was such a central issue, Mrs. Mitchell requested permission to ask Dr. Kardesch about a false answer that he gave in his sworn response to an interrogatory answer in this case. The interrogatory asked him to “[sjtate whether any professional license held by you has ever been suspended or revoked, or if renewal has ever been refused.” He answered “No.” In fact, his Missouri and his New York licenses to practice medicine both had been suspended due to a Missouri felony conviction unrelated to his medical abilities, as he later admitted in a deposition devoted solely to resolving this conflict between his interrogatory answer and the fact of his suspensions.

Mrs. Mitchell did not contest the court’s ruling that the underlying reasons behind the suspension itself should be excluded because it was more prejudicial than probative. Mrs. Mitchell argued below and argues in this Court, however, that the fact that Dr. Kardesch gave a false answer under oath in this very case to hide an embarrassing fact was relevant to the central issue on which the case would turn— his credibility. The trial court found the evidence collateral and prohibited plaintiffs from asking Dr. Kardesch about the suspension of his Missouri medical license, in particular, and from introducing either the false answer or Dr. Kardesch’s deposition testimony in which he admitted his answer was inaccurate and sought to justify it. The court permitted counsel to ask Dr. Kardesch only a single question: whether his interrogatory answers generally were truthful. Counsel was prohibited from showing that the doctor’s “yes” answer was not accurate.

The jury found in favor of Dr. Kardesch on all counts. Mrs. Mitchell appeals. After decision by the court of appeals, this Court granted transfer. Mo. Const, art. V, § 10.

II. STANDARD OF REVIEW

“The admissibility of evidence lies within the sound discretion of the trial court and will not be disturbed absent abuse of discretion.” Nelson v. Waxman, 9 S.W.3d 601, 603 (Mo. banc 2000). This standard gives the trial court “broad leeway in choosing to admit evidence,” and its exercise of discretion will not be disturbed unless it “ ⅛ clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.’ ” State v. Freeman, 269 S.W.3d 422, 426-27 (Mo. banc 2008), quoting, State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). In part, such broad leeway is granted to ensure the probative value of admitted evidence outweighs any unfair prejudice. Freeman, 269 S.W.3d at 427, quoting, State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002). “For evidentiary error to cause reversal, prejudice must be demonstrated.” State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009).

III. CROSS-EXAMINATION AND USE OF EXTRINSIC EVIDENCE TO SHOW PARTY’S CHARACTER FOR TRUTH AND VERACITY

Dr. Kardesch argues that the trial court acted correctly in prohibiting plaintiffs from examining him about his sworn interrogatory answer that his medical license had not been suspended and in prohibiting use of his deposition or interrogatory answer as extrinsic evidence to show that this answer was untrue. This Court disagrees.

A. Forms of Impeachment

To better understand the legal principles at issue, it is helpful to begin by comparing the categories and purposes of impeachment recognized in Missouri.

“As a general proposition, the credibility of witnesses is always a relevant issue in a lawsuit.” State v. Smith, 996 S.W.2d 518, 521 (Mo.App.1999). Impeachment provides a tool to test a witness’s perception, credibility, and truthfulness, which is essential because a jury is free to believe any, all, or none of a witness’s testimony. State v. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999); Talley v. Richart, 353 Mo. 912,185 S.W.2d 23, 26 (1945) (a party impeaches a witness to discredit the witness in the eyes of the fact-finder). For this reason, as this Court noted in Sandy Ford Ranch, Inc. v. Dill:

It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.

449 S.W.2d 1, 6 (Mo.1970). The most commonly recognized methods of impeaching a witness include:

• admission of evidence showing the witness’s incapacity or problems in his or her ability to perceive or memory;
• admission of evidence of prior convictions;
• admission of evidence of the witness’s bias, interest or prejudice;
• admission of prior inconsistent statements of the witness;
• admission of evidence of the witness’s character for truthfulness and veracity.

Each method of impeachment is governed by its own specific procedures and rules regarding cross-examination and the admissibility of extrinsic evidence. These rules developed under the common law in an attempt to permit admission of relevant evidence affecting credibility without causing undue prejudice to the other party or diverting the jury’s focus from relevant issues.

B. Cross-Examination of a Witness on the Stand for Impeachment Is Permitted under All Impeachment Categories

Cross-examination of a witness on the stand for the purpose of impeaching that witness through each of the methods just listed long has been permitted in Missouri, subject to the court’s discretion in limiting or, in rare instances, precluding such evidence entirely so as to avoid undue prejudice. Freeman, 269 S.W.3d at 427. This is true regardless of the method of impeachment being employed. For instance, Lagud v. Kansas City Bd. of Police Com’rs, 136 S.W.3d 786, 793 (Mo. banc 2004), held it was error to prohibit counsel from cross-examining a witness about his drug use as it goes to a witness’s “very capacity and competence as a witness to perceive ... ,” Numerous cases also approve cross-examination about prior convictions, even though the prior convictions do not involve similar facts, because, when “a defendant chooses to testify, he places his credibility in issue and he may be impeached by prior criminal convictions.” State v. Carothers, 710 S.W.2d 370, 371 (Mo.App.1986). See also State v. Holden, 278 S.W.3d 674, 681 (Mo. banc 2009); § 491.050, RSMo 2000.

Missouri similarly permits cross-examination where the witness’s testimony at trial is inconsistent with a prior statement, but here the cases generally require the prior statement to be about a material issue. Black v. State, 151 S.W.3d 49, 55 (Mo. banc 2004), held that a “judge cannot preclude a defendant from impeaching a prosecution witness with prior inconsistent statements if the impeachment does not concern an immaterial or collateral matter.” But the cases broadly define materiality to include statements affecting credibility. For example, Kearbey v. Wichita Se. Kan., 240 S.W.3d 175, 187 (Mo.App.2007), held that admission of prior inconsistent statements about marijuana use made by defendant in response to various medical questionnaires was admissible, noting that “the jury could infer that a person who is not consistently truthful in statements made to other persons might also be untruthful in his testimony on the witness stand.”

And it is well-settled that “the interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters.” State v. Johnson, 700 S.W.2d 815, 817 (Mo. banc 1985), quoting, State v. Edwards, 637 S.W.2d 27 (Mo. banc 1982). Cross-examination about any issue, regardless of its materiality to the substantive issues at trial, is permissible if it shows the bias or interest of the witness because a witness’s bias or interest could affect the reliability of the witness’s testimony on any issue. Id.

Most relevant here, cross-examination also long has been permitted to impeach a witness on his or her character for truth and veracity. This means of impeachment, however, must be directed only toward the ultimate issue of a witness’s credibility; thus, a witness may not be impeached by evidence that his or her “general moral character is bad” or that his or her “general reputation for morality” is bad. Therefore, this form of impeachment must be confined to the witness’s character for truthfulness and veracity. State v. Gregory, 822 S.W.2d 946, 949 (Mo.App.1992). Traditionally, different limitations on such impeachment applied depending on whether the one whose character for truth and veracity being impeached was (1) the person on the stand or (2) someone else about whom the person on the stand was being questioned.

When a person, regardless of whether a party, is being questioned on the witness stand, then long-standing Missouri law holds that the person may be asked about specific instances of his or her own conduct that speak to his or her own character for truth or veracity, even where the issue inquired about is not material to the substantive issues in the case. Accordingly, Sandy Ford Ranch, Inc., states that the trial court did not err in permitting cross-examination of a witness about allegedly objectionable matters, for: “It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility .... ” 449 S.W.2d at 6. Accord, State v. Williams, 492 S.W.2d 1, 6 (Mo.App.1973).

This rule was applied in State v. Zahn, 823 S.W.2d 18, 22 (Mo.App.1991), to permit the state to cross-examine the defendant about whether “he perjured himself during his dissolution case by denying under oath that he had ever had sexual intercourse with [a woman].” After noting the point was not properly preserved, the court stated:

“Furthermore, it is within the trial court’s discretion to permit cross-examination of a witness directed toward testing his or her credibility, however irrelevant such examination may be to the basic issues.” State v. Jackson, 768 S.W.2d 614, 616 (Mo.App.1989). It is not error to allow cross-examination regarding specific instances of unconvict-ed conduct if relevant to impeach the veracity of the defendant.

Id. (emphasis added).

By contrast, if a witness is called to impeach the character of a different witness in the case for truth and veracity, then the witness on the stand initially may be asked only about the other person’s general reputation in the community for truth and veracity. Haynam v. Laclede Elec. Coop., Inc., 827 S.W.2d 200, 205 (Mo. banc 1992); State v. Trimble, 638 S.W.2d 726, 785 (Mo. banc 1982) (by taking the stand, a party places his or her reputation in issue and, therefore, the other party can offer evidence of his or her general reputation for truthfulness). Only once the witness has testified to the other’s reputation may he or she be cross-examined in good faith about specific instances of conduct, and even then only as a means of testing the accuracy of the witness’s testimony about the other’s reputation for truthfulness by asking whether the person on the stand has “heard about” a particular matter. State v. Brooks, 960 S.W.2d 479, 494 (Mo. banc 1997); Leavell v. Leavell, 114 Mo.App. 24, 89 S.W. 55, 57 (1905).

These well-settled rules were put into a state of some confusion 10 years ago in State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000). Wolfe involved the question of whether defense counsel could cross-examine an adult female witness, who claimed that defendant had kidnapped her, about a kidnapping story she admittedly had fabricated to police when she was 12 years old. Defendant argued that the similarity of the accusation made it relevant and probative and that questions about it were admissible to impeach the witness’s character for truth and veracity. And, in fact, under the cases just discussed, the law did so permit, except as limited by the trial court’s exercise of its discretion to avoid undue prejudice. The trial court in Wolfe refused to allow any cross-examination on this issue, however. This Court upheld the decision, stating:

The impeaching testimony should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity. In other words, specific acts of misconduct, without proof of bias or relevance, are collateral, with no probative value.

13 S.W.3d 248, 258 (Mo. banc 2000) (citation omitted).

Of course, as just noted, Wolfe was correct that reputation for truth and veracity is the “real and ultimate object of an inquiry” when one asks the person on the stand about someone else’s reputation. That was the subject of the sole case cited by Wolfe for this proposition, State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 182-83 (1935), in which six character witnesses were asked about the defendant’s reputation for truth and veracity. Williams was not concerned with asking the witness on the stand about his or her own character for veracity, however, much less did it state that such questions must be limited to asking the witness about his or her own reputation for veracity or truthfulness. Indeed, it would make little sense to ask a person on the stand about his or her own reputation — and the answer only could be hearsay in any event, for “reputation” by its nature is “the character imputed to a person by those acquainted with him,” not what a person thinks of himself. Black’s Law DictionaRY 1303 (6th ed.1990).

The effect of mixing these two standards was to eliminate the traditional method of impeachment of a witness on the stand by asking him or her about specific instances of conduct that bore on his or her character for truth and veracity. Sandy Ford Ranch, 449 S.W.2d at 6. Wolfe accomplished this without any discussion, analysis or recognition that it was overruling decades of cases sub silentio. For this reason, even the dissenting opinion, while noting that the majority’s statement was inconsistent with many prior cases, did not discuss that the error arose by conflating the two standards for admission of this type of impeachment evidence. To the extent that Wolfe and cases following it hold that a witness may not be impeached by asking him or her about specific instances of conduct relevant to his or her character for truth and veracity, it no longer should be followed.

Applying these principles here, the trial court erred in ruling that Missouri law did not permit plaintiffs’ counsel to ask Dr. Kardesch about his prior false interrogatory answer and his deposition admissions and explanations of it because the subject of that false answer — that his medical license had been suspended — was not independently admissible; therefore, the whole issue was “collateral.” Cross-examination may be had on issues relevant to the witness’s character for truth and veracity regardless of whether the subject of the falsehood is material. See, e.g., Zahn, 823 S.W.2d at 22; Roberts v. Emerson Elec. Mfg. Co., 362 S.W.2d 579, 584 (Mo.1962).

While the trial court, in the exercise of its discretion, can limit the admission of evidence if on balance its prejudicial value outweighs its probative value, here plaintiffs agreed to abide by the trial court’s ruling that they could not introduce evidence concerning the criminal case that formed the underlying reason for the suspension nor would they imply the suspension was related to Dr. Kardesch’s medical ability. Plaintiffs offered to work with the court and opposing counsel (and had worked out a tentative agreement) to introduce this evidence in the least prejudicial way — one that would permit them to make their argument that Dr. Kardesch hid the two-year suspension of his medical license due to embarrassment; although it did not reflect on his ability to practice medicine it did reflect on whether his version of events in regard to his treatment of Mr. Mitchell also was affected by his desire to hide facts so as to avoid embarrassment.

On these facts, the trial court abused its discretion in prohibiting counsel from examining Dr. Kardesch about his statements about his suspensions in his interrogatory answer and deposition.

C. Use of Extrinsic Evidence To Impeach Character for Truth and Veracity

The rules regarding admission of extrinsic evidence fall into two categories depending on the method of impeachment employed.

Parties are permitted to introduce extrinsic evidence to impeach a witness by showing his or her inability to perceive the events testified to; prior convictions; or to show bias, prejudice or interest in the proceeding, regardless of whether the subject of the extrinsic evidence is independently material to the case. See, e.g., State v. Johnson, 700 S.W.2d 815, 817-18 (Mo. banc 1985) (bias); State v. Pigques, 310 S.W.2d 942, 947 (Mo.1958) (bias); State v. Caston, 509 S.W.2d 39, 41 (Mo. 1974) (ability to perceive).

By contrast, parties traditionally have been limited in introducing extrinsic evidence when the form of impeachment concerns the witness’s prior inconsistent statements or the witness’s character for truth and veracity. They generally may do so when the witness denies the prior statement or specific instance of conduct only if the subject of the impeachment is material to the issues rather than collateral.

As this Court stated in Black, col-lateralness goes to relevancy: “A matter is considered to be collateral if the fact in dispute is of no material significance in the case or is not pertinent to the issues developed .... If a fact may be shown in evidence for any purpose independent of contradiction, it is not collateral.” 151 S.W.Bd at 55. Black applied these principles to the case before it, holding that the trial court abused its discretion in excluding extrinsic evidence in the form of three witnesses’ prior statements that were inconsistent with their in-court testimony because the subject of the inconsistent statements was material. Id. at 55-56.

Where the subject of the extrinsic evidence is “collateral” to the substantive issues at trial, however, then normally “the defendant’s answer with regard to his knowledge or denial of the questioned conduct is binding on the [questioner] and precludes further inquiry or extrinsic proof.” Carothers, 710 S.W.2d at 371. As State v. Long noted, this rule “furthers the general policy focusing the fact-finder [on] the most probative facts and conserving judicial resources by avoiding mini-trials on collateral issues.” 140 S.W.3d 27, 30 (Mo. banc 2004).

But Long held that in the case before it, fairness required it to recognize an exception to the rule prohibiting extrinsic evidence of nominally nonmaterial issues. It permitted the defendant to introduce “the testimony of three witnesses who said that the victim had made previous false allegations of sexual or physical assault,” stating:

In some cases, however, the rule excluding extrinsic evidence of prior false allegations fails to serve this purpose [of focusing the jury on the central issue] by shielding the fact-finder not from collateral issues, but from a central issue in the case. An issue is not collateral if it is a ‘crucial issue directly in controversy.’

Id. Long, therefore, concluded that extrinsic evidence of prior false allegations should be admissible because relevant to the central issue of credibility:

Where, as in this case, a witness’ credibility is a key factor in determining guilt or acquittal, excluding extrinsic evidence of the witnesses’ prior false allegations deprives the fact-finder of evidence that is highly relevant to a crucial issue directly in controversy; the credibility of the witness.

Id. at 30-31.

This Court’s decision in Roberts, 362 S.W.2d at 584, similarly had permitted extrinsic evidence in the form of deposition testimony of plaintiff to be used to impeach plaintiffs testimony at trial that all of his lawyers had “joined the mob” who were against him. The Court stated that, while “the relationship between plaintiff and his lawyers and counsel for defendant, strictly speaking, was immaterial,” plaintiffs lack of ability to get along with his lawyers and others as well as his persecution complex and belief in a conspiracy against him “would be of value to the jury in assessing and evaluating plaintiffs essential soundness, credibility and reliability as a witness.” Id.

These cases approve exceptions to the bar on extrinsic evidence of a witness’s character for truth and veracity where the evidence in question, even if not dealing with the substantive issues in the case, is very probative of and relevant to credibility. The difficulty with this approach is that it does not assist litigants or the courts in defining when credibility is to be considered central and therefore subject to being shown through extrinsic evidence, and when not. An analogy can be drawn, however, to cases permitting the admission of extrinsic evidence showing a witness’s bias, prejudice, interest, prior convictions or inability to perceive; the rationale on which the latter cases rely is the same as that used in Long to justify introduction of extrinsic evidence of a witness’s character for truth and veracity.

As a result, in State v. Solven, 371 S.W.2d 328 (Mo. banc 1963), this Court held that evidence of bias, prejudice or interest is always relevant:

The interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters, and where the interest or bias is denied by the witness, it may be shown by the testimony of others, and even where such interest or bias is admitted by the witness, the extent of it may be shown, though much is left to the discretion of the trial court as to how far the inquiry may go into the details of the difficulty, disagreement or other transaction which caused the hostility, prejudice or ill feeling.

Id. at 331 (emphasis added). State v. Edwards, 637 S.W.2d 27, 29-30 (Mo.1982), and State v. Johnson, 700 S.W.2d 815, 817 (Mo. banc 1985), reaffirm that extrinsie evidence showing bias or interest is never irrelevant and is admissible subject to the trial court’s discretion to avoid undue prejudice.

Similarly, Lagud held that where the extrinsic evidence goes to the witness’s intoxication or similar reasons that affect the witness’s perception, then “the subject of the witness’s testimony is not a collateral issue but bears directly on the ability of the witness to accurately describe those events.” 136 S.W.3d at 793. Accord, State v. Caston, 509 S.W.2d 39, 41 (Mo. 1974).

The focus of both exceptions is the need to admit highly probative and relevant evidence for the jury’s consideration in determining whether to credit a witness’s testimony. An important distinction nonetheless does exist between cases involving extrinsic evidence of bias as compared with cases involving extrinsic evidence of character for truth and veracity. That distinction may explain why, historically, extrinsic evidence has not been permitted in the latter instance. For while the bias of a testifying witness toward a party or issue is nearly universally going to be highly relevant and probative because it will affect whatever issue the person is testifying about, the same may not always be true concerning extrinsic evidence of character for truth and veracity. This is because the fact that a person has told a lie on an irrelevant issue that is remote in time or subject may make the extrinsic evidence of little value in determining the -witness’s character for truth and veracity. As a result, the cases have adopted a general rule prohibiting such evidence because in most instances the risk of prejudice and the distraction of a mini-trial would outweigh the benefit of allowing such evidence.

The adoption of ad hoc exceptions in cases such as Long and Roberts, however, indicates that the better rule, and one that would provide more consistent guidance, would be to recognize that the real issue to be decided by the trial court is whether admission of the extrinsic evidence would be more probative or more prejudicial. In cases involving character of the witness for truth and veracity, it will be the unusual case where that balancing weighs in favor of admission of extrinsic evidence. But where it does so, such evidence should be admitted. In Long, therefore, because the extrinsic evidence concerned prior false allegations to authorities of a matter similar in nature to the alleged wrongful conduct in which the witness claimed defendant engaged, the truthfulness of the witness was highly relevant and probative to the credibility of the case’s key witness. Although Long did not expressly weigh the probative value against any prejudice of the evidence, it in effect held that where the evidence is so highly probative and relevant, the court abused its discretion by excluding it.

Applying these rules regarding admission of extrinsic evidence here, plaintiffs sought to impeach the defendant’s character for truth and veracity by presenting extrinsic evidence of Dr. Kar-desch’s own statements under oath in this very case showing he gave a false answer in an interrogatory asking whether his license to practice medicine had been suspended. The probative value and relevance of his willingness to answer this interrogatory falsely (if such is shown) is high. This is so not because the suspension itself is highly relevant (it is not as it was based on a ground not related to the doctor’s medical ability) but because it showed the defendant was willing to dissemble to hide facts about his medical background that he found embarrassing. This reflects on the credibility of his testimony at trial about what he told Mrs. Mitchell and whether his testimony was accurate or was offered instead to avoid embarrassment. On these facts, the trial court abused its discretion in entirely excluding such extrinsic evidence.

IV. SUFFICIENCY OF EVIDENCE

Dr. Kardesch argues that even assuming arguendo that it was error for the trial court to exclude the evidence that he had given a false sworn interrogatory answer in this case, the error was not prejudicial. Although he does not phrase this argument as one addressing the sufficiency of the evidence, this is the necessary intendment of Dr. Kardesch’s argument, for it is his position that even if all facts are to be viewed in the light most favorable to Mrs. Mitchell: (1) there is no genuine issue of material fact relating to whether Dr. Kar-desch acted within the appropriate standard of care, and/or (2) reasonable minds could not differ in concluding that Dr. Kardesch acted within the appropriate standard of care. While Dr. Kardesch clearly believes he should win on the merit s, a case -will be taken out of the jury’s hands only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993), Rule 74.04(c)(6), or if reasonable minds, in viewing the evidence in the light most favorable to the non-moving party, only could find in the moving party’s favor. Edgerton v. Morrison, 280 S.W.3d 62, 68 (Mo. banc 2009); Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590 (Mo. banc 2007).

Here, however, Mrs. Mitchell presented expert testimony, set out in detail above, that Dr. Kardesch’s failure to send Mr. Mitchell to the emergency room or to a specialist for treatment when Mrs. Mitchell first called, and the failure to follow up with a cardiologist following the stress test, failed to meet the standard of care and to a reasonable degree of medical certainty caused Mr. Mitchell’s injury and death. That Dr. Kardesch does not believe these opinions are credible does not mean the jury could not find them credible. Factual determinations of matters in dispute, including the weighing of medical opinions, rest solely within the province of the jury. See In re Care and Treatment of Spencer, 123 S.W.3d 166, 168 (Mo. banc 2003). It “is error for the court to declare as a matter of law a result or legal effect which is within the exclusive province of the jury to determine.” Glowacki v. Holste, 295 S.W.2d 135, 139 (Mo. banc 1956).

V. CONCLUSION

For all of the reasons stated above, the circuit court’s judgment is reversed, and the case is remanded. If a new trial occurs, plaintiffs may cross-examine Dr. Kar-desch about his interrogatory answer and, if necessary, impeach him with it and with his deposition testimony, subject to the trial court’s exercise of discretion to limit such testimony so as to avoid distraction of the jury or undue prejudice to Dr. Kar-desch.

All concur.

      . For purposes of clarity, all plaintiffs sometimes are referred to collectively as "Mrs. Mitchell.”

      . The trial court did permit plaintiffs' counsel to ask Dr. Kardesch whether his interrogatory answers as a whole were truthful but forbid counsel from following up this answer.

      . While there was not directly conflicting factual testimony as to Dr. Kardesch's course of conduct upon reading the stress test results, the jury’s assessment of his credibility may have affected its belief of his explanation as to why he failed to send Mr. Mitchell to a cardiologist after getting the low ejection fraction reading on the stress test.

      . In addition, evidence creating or highlighting a contradiction, while directed to the accuracy of a witness’s testimony by supplying contradictory factual evidence, also inherently affects credibility by undermining confidence in the reliability of the victim’s testimony. Waters v. Barbe, 812 S.W.2d 753, 757 (Mo.App.1991).

      . Lagud continued that therefore "[t]he intoxication of a witness as of the time the events took place that are the subject of the witness’s testimony is not a collateral issue but bears directly upon the ability of the witness to accurately describe those events”. See also State v. Caston, 509 S.W.2d 39, 41 (Mo.1974) (cross-examination about intoxication of witness at time of event bears directly on perception and is admissible); State v. Phillips, 939 S.W.2d 502, 505 (Mo.App.1997) (same).

      . State v. Spencer, All S.W.2d 404, 405 (Mo.1971) (reversible error to permit cross-examination of whether the witness "had two illegitimate children before she married appellant”); see also Taylor v. State, 262 S.W.3d 231, 244-45 (Mo. banc 2008) (where this Court held that evidence of a witness’s racism and criminal history were not proper as it did not directly attest to the witness’s veracity).

      . State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 183-84 (1935) (where an African-American woman accused of murder claimed self-defense, this Court expressly overruled cases allowing for impeachment by evidence of general morality and held "the trial court committed error in admitting testimony of the [defendant’s] bad general reputation for morality”).

      .The reason for allowing evidence of a witness’s character for truth and veracity, while generally not allowing evidence of a bad general moral character, is that a witness's character for truth and veracity does not put the witness’s overall character in issue, but rather only the witness's credibility — the ultimate issue. See State v. Harlow, 327 Mo. 231, 37 S.W.2d 419,421 (1931).

      . Cases citing and applying or distinguishing this statement in Wolfe include decisions of this Court, see, e.g., State v. Couch, 256 S.W.3d 64, 69 (Mo. banc 2008) (quoting rule), and Wilson, 256 S.W.3d at 61 (quoting rule), as well as those of the court of appeals, see, e.g., State v. Corwin, 295 S.W.3d 572, 579 (Mo.App.2009) (refusing to allow cross-examination of complaining witness about specific instances of her conduct); State v. J.L.S., 259 S.W.3d 39, 48 (Mo.App.2008) (quoting rule but admitting evidence as proof of bias as means of avoiding rule); and Kuehne v. State, 107 S.W.3d 285, 294 (Mo.App.2003) (same).

      . See also 3A Wigmore on Evidence, §§ 1020 at 1011 (Chadboum rev.1970) ("an important class of matter clearly admissible, namely, facts relating to bias, corruption, or other specific deficiencies of the witness. It is not merely matters which are a ‘part of the case,’ that may be the subject of self-contradiction, but any matter which would have been otherwise admissible in evidence." Wigmore continues, "In applying the foregoing test, it is obvious that there are two classes of facts of which evidence would have been admissible independently of the self-contradiction: (1) facts relevant to some issue in the case under the pleadings; (2) facts admissible to discredit the witness as to bias, corruption, or the like.” Id. § 1021 at 1011).

      . In fact, in State v. J.L.S., 259 S.W.3d 39, 48 (Mo.App.2008), the court of appeals noted that prior cases had avoided the need addressed in Long to adopt an exception to the rule excluding extrinsic evidence as to character for truth and veracity by simply stating that prior false allegations are admissible to show bias. Logically, however, such allegations do not address bias but a willingness to accuse falsely; prior cases simply were attempting to get around the rule excluding what was otherwise very probative and relevant evidence.

      . For instance, in Wilson, 256 S.W.3d at 62, this Court held that even cross-examination of a child victim of a sex crime about whether she had lied to her mother about who crashed the family car was inadmissible because its potential prejudice far outweighed its probative value.


source: Caselaw Access Project

author: MARY R. RUSSELL, Judge.

license: Public Domain

text:
    Ann SPRADLING, et al., Appellants, v. SSM HEALTH CARE ST. LOUIS, et al., Respondents.
    No. SC 90613.
    Supreme Court of Missouri, En Banc.
    June 29, 2010.

      Joan M. Lockwood, Stephen R. Woodley of Gray, Ritter & Graham PC, St. Louis, for the Spradlings.
    Jeffery T. McPherson, Thomas B. Weaver, Timothy J. Gearin, Anna T. Selby of Armstrong Teasdale LLP, Kenneth W. Bean, Jaime L. Sitton of Sandberg, Phoenix & von Gontard PC, St. Louis, for health care defendants.
    Stephen G. Reuter of Lashley & Baer PC, Anne Garcia of St. Louis University Medical Center, St. Louis, for Saint Louis University.
   MARY R. RUSSELL, Judge.

The issue in this medical negligence case is whether the health care affidavit filed pursuant to section 538.225.2 was based upon an opinion by a “legally qualified health care provider” who actively practiced “substantially the same specialty” as the defendant. This Court finds that the phrase “substantially the same specialty” used in section 538.225.2 does not require that a “legally qualified health care provider” have the same board certification as the defendant. While the legislature did not define “substantially the same specialty,” one who repeatedly performs the same procedure as that allegedly performed negligently qualifies as one who actively practices “substantially the same specialty” as the defendant. The legally qualified health care provider here meets this standard. The judgment is reversed, and the case is remanded.

I. Background

Ann and Gene Spradling filed the underlying medical negligence lawsuit against SSM Health Care St. Louis d/b/a SSM St. Mary’s Health Center and SSM Medical Group, Inc. (collectively “Defendants”). Their petition alleged that Ann, who had been admitted to St. Mary’s Health Center after suffering a fall, was diagnosed with compression fractures in her lower back. The next month, Ann returned to St. Mary’s, where Dr. William Sprieh, a neurosurgeon, performed a vertebroplasty. Following the vertebroplasty, she complained of pain and paralysis in her lower extremities. When St. Mary’s discharged Ann, she did not have the use of her lower extremities and was admitted to a nursing home where she continues to reside.

After filing a medical negligence lawsuit, plaintiffs are required to comply with the health care affidavit statute, section 538.225.1, which states:

In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiffs attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.

The Spradlings’ attorney filed an affidavit stating that they had obtained a written opinion of Dr. John M. Mathis, finding that Dr. Sprieh failed to use reasonable care in his treatment of Ann. The affidavit also stated that Dr. Mathis was certified in both diagnostic radiology and nuclear medicine radiology.

After the filing of the affidavit, Defendants moved to dismiss the complaint under section 538.225.6, which requires the trial court to dismiss the action without prejudice “[i]f the plaintiff or his attorney fails to file such affidavit.” Defendants contended that the affidavit filed by the Spradlings’ attorney failed to comply with the requirements of section 538.225.1 in that the written opinion must be of a “legally qualified health care provider.” Defendants asserted that because Dr. Mathis was a radiologist, he did not practice “substantially the same specialty” as Dr. Sprieh, a neurosurgeon.

The trial court dismissed the Spradlings’ suit without prejudice, finding that pursuant to section 538.225.2, Dr. Mathis, a radiologist, was not a “legally qualified health care provider” because he did not actively practice “substantially the same specialty” as the defendant, a neurosurgeon. The Spradlings appealed. Because the Spradlings’ challenge includes the validity of section 538.225, this Court has exclusive jurisdiction over the appeal. Mo. Const, art. V, sec. 3.

II. Standard of Review

Statutory interpretation is an issue of law that this Court reviews de novo. -S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009). This Court’s task in statutory interpretation is to discern the intent of the legislature from the language used. Id. In doing so, this Court considers the language’s plain meaning. Id.

III. Analysis

A. Legally Qualified Health Care Provider

The health care affidavit statute, section 538.225, first was promulgated in 1986. At its inception, section 538.225, RSMo 1986, provided that a plaintiff filing an action against a health care provider for damages for personal injury must file a health care affidavit. The affidavit must state that the plaintiff has obtained the written opinion of a “legally qualified health care provider” that the defendant “failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use reasonable care directly caused or directly contributed to cause the damages claimed in the petition.” Id.

This Court has recognized that the statute was a “legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services.” Mahoney, 807 S.W.2d at 507. Mahoney instructed that the legislature intended section 538.225 to dismiss medical negligence lawsuits that lack “even color of merit” and “to protect the public and litigants from the cost of ungrounded medical malpractice claims.” Id.

Although section 538.225, RSMo 1986, did not define “legally qualified health care provider,” in 2005, the legislature passed House Bill 393, which did include a definition:

As used in this section, the term “legally qualified health care provider” shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.

Section 538.225.2.

The issue presented by this case is whether the trial court correctly interpreted section 538.225.2 in dismissing the action because Dr. Mathis was not a “legally qualified health care provider” as defined by the statute. This issue requires the resolution of two questions. First, this Court must determine whether the phrase “substantially the same specialty” applies to those health care providers actively practicing and those who are retired. Second, because the legislature did not define “substantially the same specialty,” this Court must ascertain the meaning of the phrase.

B. Actively Practicing v. Retired

In interpreting section 538.225.2, the first question posed is which phrase or phrases “substantially the same specialty” modifies. The Spradlings contend that “substantially the same specialty” modifies “within five years of retirement from actively practicing,” so that the health care provider only must have practiced substantially the same specialty as the defendant if he or she is retired. Defendants claim, however, that it also modifies “actively practicing,” so that whether the health care provider actively practices or is retired, he or she must have “substantially the same specialty” as the defendant.

This Court was faced with another situation involving the applicability of a modifier in Norberg v. Montgomery, 351 Mo. 180, 173 S.W.2d 387 (1943). At issue in Nor-berg was the following statutory language:

Wherever in this act the term “accounting officer” shall appear, it shall be deemed to mean the county clerk, county comptroller, county auditor, accountant or other officer or employee keeping the principal records of the county.

Section 10934, RSMo 1939.

The parties’ dispute in Norberg centered on which words “keeping the principal records of the county” modified: “other officer or employee” or all of the positions named. Norberg, 173 S.W.2d at 389. This Court took a two-step approach in its interpretation of the statute. Id. at 389, 390. First, it considered all sections of the county budget law and harmonized them to give effect to the legislature’s intent. Id. at 389. From its review of the county budget law, this Court determined that the legislature’s intent was that “keeping the principal records of the county” modified all the positions named. Id. at 390. It found that the “accounting officer” must “keep the principal records of the county,” but depending on the county, that person may be the county clerk, county comptroller, county auditor, accountant, or other officer or employee. Id.

Next the Court determined that the grammatical construction of the statute supported its interpretation. Id. Under the last antecedent rule, relative and qualitative words are to be applied only to the words or phrases preceding them. Id. The relative and qualitative words “are not to be construed as extending to or including others more remote.” Id. In reaching its holding that the phrase “keeping the principal records of the county” modified all of the officers named, the Court found that the last antecedent rule is not always mandatory in statutory interpretation. Id. It is “merely an aid to construction and will not be adhered to where extension to a more remote antecedent is clearly required by consideration of the entire act.” Id. “Where several words are followed by a clause as much applicable to the first and other words as to the last, the clause should be read as applicable to all.” Id.

In applying this two-step approach here, the legislative intent first must be discerned. The intent of the legislature in passing House Bill 393 was to strengthen the requirements for filing a medical malpractice action. House Bill 393 was yet another “legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services.” See Mahoney, 807 S.W.2d at 507. The effect of the revisions to section 538.225, including the adoption of a definition for “legally qualified health care provider,” was to dismiss medical negligence lawsuits that “lack even color of merit” at an early stage of litigation. See id. While the legislature intended to protect medical professionals from baseless lawsuits, it also intended to protect the public from rising health care costs as a result of baseless lawsuits. See id.

To adopt the Spradlings’ proposed interpretation of the statute would not meet the legislature’s purpose. If this Court were to adopt the Spradlings’ proposed interpretation, only those health care providers within five years of retirement would have had to practice “substantially the same specialty” as the defendant. That interpretation would not follow the legislature’s intent. To honor that intent, “substantially the same specialty” must modify “actively practicing” as well as “within five years of retirement from actively practicing.”

The grammatical construction of section 538.225 supports this interpretation. Using the last antecedent rule, the Spra-dlings’ proposed interpretation would not be correct because “substantially the same specialty” would modify only “within five years of retirement from actively practicing.” It would not extend to modify “actively practicing.” Considering the legislature’s intent in passing House Bill 393 and the grammatical construction of the statute, “substantially the same specialty” is as applicable to “actively practicing” as it is to “within five years of retirement from actively practicing.” The trial court did not err in its interpretation that “substantially the same specialty” applies to actively practicing health care providers, such as Dr. Mathis.

C. “Substantially the Same Specialty”

The next issue in interpreting section 538.225.2 is determining the meaning of “substantially the same specialty.” The legislature did not provide statutory guidance, so this Court’s task is to determine what the legislature intended from the plain meaning of the phrase. If the legislature does not expressly define statutory language, it is given its plain and ordinary meaning, as typically found in the dictionary. Derousse v. State Farm Mut. Auto. Ins. Co., 298 S.W.3d 891, 895 (Mo. banc 2009). “Specialty” is defined as “an aptitude or special skill in a particular endeavor.” WebsteR’s ThiRD New International Dictionary Unabridged 2186 (1993).

The legislature chose to modify “specialty” with the phrase “substantially the same.” “‘Substantially,’ as the word is used in the statute, is synonymous with ‘practically', ‘nearly’, ‘almost’, ‘essentially’ and ‘virtually.’ ” Lane v. Lensmeyer, 158 S.W.3d 218, 227 (Mo. banc 2005). By using that phrase, the legislature recognized that there may be situations in which the health care provider who gives an opinion as to the standard of care may not have the exact board certification as the defendant. Instead, the health care provider may have a different board certification but may practice “substantially the same specialty” because of an expertise in the medical procedure at issue. Many medical procedures are not peculiar to one board certification. See, e.g., John I. Brewer, Good Fences Make Good Neighbors: The Scope of Medical Specialties, 16 Obstetrics & Gynecology 235 (1960) (explaining how other specialties overlap with obstetrics and gynecology).

To rebut the Defendants’ motion to dismiss, the Spradlings filed an affidavit by Dr. Mathis, which included his curriculum vitae. During the course of his career, Dr. Mathis has performed or assisted in more than 3,000 vertebroplasties and remains in the active practice of medicine, including performing vertebroplasties. He also has served in several leadership roles for the American Society of Spine Radiology and the American Society of Neuroradiology. In the span of 15 years, he has given more than 50 lectures and 15 scientific presentations about vertebroplasty. Dr. Mathis has written at least 15 book chapters as well as at least 20 peer-reviewed scientific publications concerning vertebroplasty. He co-authored the first book about verte-broplasty, which first was printed in 2002. Additionally, from 2000 to 2007, he served as a medical consultant for education for a bone cement company. As a part of that position, Dr. Mathis taught physicians, including neurosurgeons, how to perform vertebroplasties.

While Dr. Mathis is a radiologist rather than a neurosurgeon, his experience establishes that he was actively practicing “substantially the same specialty” as the defendant in that he has sufficient experience in performing vertebroplasties. Dr. Mathis is not board certified in the same field of medicine as Dr. Sprich. But under Webster’s dictionary definition of “specialty,” Dr. Mathis has “an aptitude or special skill” in performing vertebroplasties, as evidenced by his performance of or assistance in over 3,000 vertebroplasties. In addition, his publications, lectures, and seminars exhibit his academic interest and expertise in vertebroplasties.

Dr. Mathis is the type of “legally qualified health care provider” as intended by the legislature when it used the phrase “substantially the same specialty.” By enacting section 538.225, the legislature sought to prevent plaintiffs from relying on opinions from health care providers with minimal to no experience in performing the procedure in question. The Spra-dlings’ reliance on Dr. Mathis’ opinion was the type of reliance the legislature sought to authorize. The trial court’s dismissal of the action was error.

IV. Conclusion

The judgment is reversed, and the case is remanded.

All concur.

      . All statutory references are to RSMo 2000 and Supp. 2009 unless otherwise noted.

      . Vertebroplasty is:
      A procedure used to relieve the pain of vertebral compression fractures. Under x-ray guidance, a needle is inserted into the affected vertebra and a bone cement [is] injected into the vertebra. Hardening of the cement stabilizes the fractured vertebra.
      6 J. E. Schmidt, Attorneys’ Dictionary of Medicine and Word Finder 9 (Supp. 2005).

      .Section 538.225.6 governs when the alleged error is a faulty affidavit. Another provision, section 538.225.7, which was not invoked by Defendants, governs when the alleged error is the expert's written opinion. Here, the Defendants alleged under section 538.225.6 that the affidavit was faulty in that Dr. Mathis was not a "legally qualified health care provider.”

      .Defendants' motion to dismiss the appeal is denied because the points relied on comply with Rule 84.04. Further, a dismissal without prejudice for failure to comply with section 538.225 is an appealable judgment. See Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991).

      . In Fields v. Curators of the University of Missouri, 848 S.W.2d 589 (Mo.App.1993), the court gave a definition of "legally qualified health care provider.” As noted by the court, "health care provider” was defined under section 538.205(4), RSMo 1986. Id. at 590. The court's task was to determine the effect of the modifier "legally qualified.” The court found that "legally qualified” meant that the health care provider must meet the requirements for an expert witness. Id. In other words, the witness must have "acquired, by technical training and practical experience, special knowledge not shared by men in general,” so that the witness may testily as to the proper standard of care. Id.

      . In fact, a health care professional may have no board certification at all. While the majority of physicians choose to become board certified, it is an optional, voluntary process. John J. Smith, Legal Implications of Specialty Board Certification, J. Legal Med., Mar. 1996, at 73-74. However, many hospitals and managed care organizations require board certification. See id. at 74.

      . "Specialty boards generally discount the impact of certification on physicians and medical practice." Smith, note 6, at 77. "They ... emphasize that certification is not necessary for a physician to practice a specialty.” Id. at 78.

      . Dr. Mathis likely would be qualified to be an expert at trial. See section 490.065.1 ("In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”).

      . Dr. Mathis was certified by the American Board of Radiology in diagnostic radiology and nuclear medicine radiology.

      . The Spradlings raised numerous constitutional issues in their brief. However, they need not be addressed as this case can be resolved by statutory interpretation. See State ex rel. Brown v. Shaw, 129 S.W.3d 372, 373 (Mo. banc 2004).


author: PATRICIA L. COHEN, Judge.

text:
    Kimberly WILLIAMS, Appellant, v. DUTCHTOWN CARE CENTER, INC., and Division of Employment Security, Respondents.
    No. ED 93850.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 25, 2010.
    Rehearing Denied June 29, 2010.

      John J. Ammann, St. Louis, MO, for appellant.
    Joshua M. Schindler, Clayton, MO, Jeannie D. Mitchell, Jefferson City, MO, for respondents.
   PATRICIA L. COHEN, Judge.

Introduction

Kimberly Williams (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) finding her ineligible for unemployment benefits because she voluntarily left her employment without good cause attributable to her work or her employer. We reverse and remand.

Factual and Procedural Background

On June 19, 2009, a deputy for the Missouri Division of Employment Security (Division) disqualified Claimant from receiving unemployment benefits based on its finding that Claimant voluntarily left her work on August 20, 2008 without good cause attributable to her work or her employer, Dutchtown Care Center, Inc. (Employer). Claimant appealed the deputy’s decision to the Division’s Appeals Tribunal. On August 11, 2009, the Appeals Tribunal conducted a telephone hearing, at which the following evidence was adduced:

Employer hired Claimant to work as a housekeeper in March 2008. Employer’s employee handbook contained a “no call, no show” policy, which provided: “An absence of two (2) or more consecutively scheduled work days, without calling your Supervisor, will be treated as a voluntary quit.” On March 28, 2008, Claimant signed an acknowledgment stating that she received the employee handbook and agreed to read and abide by its policies.

Claimant’s last day of work was August 28, 2008. About one hour prior to her next scheduled work shift on August 30, 2008, Claimant called her supervisor, Tony Skinner, to inform him that she would not be coming to work that day because her minor son was suffering medical complications from a gunshot wound. Claimant and Mr. Skinner offered contradictory evidence regarding whether Claimant spoke directly to Mr. Skinner at this time. Claimant testified that, when she called in on August 30, 2008, she talked to Mr. Skinner, and “he just said call — call them and let them know about [her] son....” However, Mr. Skinner testified that he received a voice message from Claimant but did not speak to her personally.

Lilly Landy, Employer’s administrator, testified that Employer expects its employees to pick up their monthly work schedules prior to the first day of each month, and Claimant did not pick up a copy of her September schedule prior to September 1, 2008. Claimant was scheduled to work on September 1, September 6, September 7, and September 9, but she neither called in nor reported to work on these days. Claimant testified that she “just assumed when [she] called in on the 30th they were going to hold [her] job.”

Approximately two weeks after Claimant’s August 30, 2008 call to Mr. Skinner, Claimant called Mr. Skinner to inquire about returning to work, and Mr. Skinner told her she “was fired.” Claimant subsequently filed a claim for unemployment compensation. Employer protested the claim, alleging that Claimant voluntarily quit because she did not report to work for four consecutive shifts on September 1, September 6, September 7, and September 9, 2008.

On August 14, 2009, the Appeals Tribunal issued its decision denying Claimant benefits on the grounds that Claimant voluntarily left her employment without good cause attributable to the work or Employer. Claimant filed an application for review with the Commission, and the Commission affirmed and adopted the Appeals Tribunal’s decision. Claimant appeals.

Standard of Review

On appeal from a decision in an unemployment benefits proceeding, this court may modify, reverse, remand for rehearing, or set aside the award upon finding that: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Mo.Rev. Stat. § 288.210 (2000); Korkutovic v. Gamel Co., 284 S.W.3d 653, 655-56 (Mo.App. E.D.2009). We will affirm the Commission’s decision if we find, upon a review of the whole record, that there is sufficient competent and substantial evidence to support the Commission’s decision. E.P.M., Inc. v. Buckman, 300 S.W.3d 510, 513 (Mo.App. W.D.2009).

While we defer to the Commission’s findings of fact, we are not bound by the Commission’s conclusions of law or its application of the law to the facts. Korkutovic, 284 S.W.3d at 656. “[T]he standard of review is de novo when the issue, as it is here, is whether the facts found by the Commission can, as a matter of law, be considered to constitute a voluntary departure from employment.” Moore v. Swisher Mower & Mach. Co., Inc., 49 S.W.3d 731, 739 (Mo.App. E.D.2001) (quotation omitted); see also Shields v. Proctor & Gamble Paper Prods. Co., 164 S.W.3d 540, 543 (Mo.App. E.D.2005).

Discussion

In her first point on appeal, Claimant argues that the Commission erred in denying her unemployment benefits because its finding that she voluntarily left her employment was not supported by competent and substantial evidence. We agree.

Under Section 288.050, a claimant is not eligible for unemployment benefits if a deputy finds that the claimant: (1) “has left work voluntarily without good cause attributable to such work or to the claimant’s employer”; or (2) “has been discharged for misconduct connected with the claimant’s work.” Mo.Rev.Stat. §§ 288.050.1(1), 288.050.2. The disqualifying provisions of Section 288.050 are strictly and narrowly construed in favor of finding that an employee is entitled to compensation. Sokol v. Labor & Indus. Relations Comm’n of Mo., 946 S.W.2d 20, 28 (Mo.App. W.D.1997). Nonetheless, where, as here, the employer claims that the employee voluntarily left her employment without good cause attributable to the employer, the employee has the burden of proving either that she left for good cause attributable to her employer, or that she did not voluntarily leave work but rather was discharged. Id.

Our review of the record reveals insufficient competent and substantial evidence to support the Commission’s conclusion that Claimant voluntarily quit. The uncontroverted evidence shows that on August 30, 2008, Claimant called Mr. Skinner to inform him that, due to a family medical emergency, she would not be reporting to work. Employer’s written policy provided that employees who failed to call in two consecutive absences would be deemed to have quit. Claimant was scheduled to work four shifts in September 2008, for which she did not report or call in to work. Claimant assumed that Employer knew she was absent from work because she was caring for her son. After approximately two weeks passed during which Claimant did not communicate with Employer, she called to inquire about her job and ask to return to work. At this time, Mr. Skinner informed Claimant that she was fired. The Commission determined that Claimant “did not call in properly to report her absence.”

Based on the entire record, we find that Claimant did not voluntarily quit, but rather was discharged for violating Employer’s “no call, no show” policy by failing to report for work or call in her absences for four consecutive work shifts. See Moore, 49 S.W.Bd at 738. “[T]he plain meaning of the statutory words ‘left work voluntarily’ simply cannot be construed to include what is obviously a discharge for failing to comply with a work rule.” Id. (emphasis in original).

The Division relies on Ewing v. SSM Health Care for the proposition that an employee voluntarily abandons her employment when she violates her employer’s “no call, no show” policy. 265 S.W.3d 882, 887 (Mo.App. E.D.2008). However, the facts in Ewing are distinguishable. In Ewing, the employee missed five days of work due to the death of her brother. Id. at 884. Although she reported her first three absences in accordance with employer’s policy, she failed to report the subsequent two absences. Id. Without contacting her employer to inquire about her employment status, the employee assumed she was fired and filed for unemployment benefits. Id. This court affirmed the Commission’s determination that the employee voluntarily quit, reasoning that “because [the employee] was never notified that she no longer had her job, her decision not to report to work or call ... can reasonably be viewed by the Commission as demonstrating Claimant’s intent to voluntarily resign her employment.” Id. at 886. Here, by contrast, Claimant did attempt to return to work, and was informed that she no longer had a job.

Having determined that the Commission’s conclusion that Claimant voluntarily quit her job was not supported by sufficient evidence, the question becomes whether Employer discharged Claimant for misconduct connected with work. Mo. Rev.Stat. § 288.050.2. The Missouri Employment Security Law defines “misconduct” as:

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

Mo.Rev.Stat. § 288.030.1(23). In cases involving a discharge from work, the employer “bears the burden of proving by a preponderance of the evidence that [the claimant] willfully violated the rules or standards of the employer.” Dobberstein v. Charter Communications, Inc., 241 S.W.3d 849, 852 (Mo.App. E.D.2007) (quotation omitted). The record before us is insufficient to complete a meaningful review of whether Employer met its burden of proving Claimant willfully violated Employer’s rules or standards. See e.g., Lindsey v. Univ. of Mo., 254 S.W.3d 168, 174 (Mo.App. W.D.2008); Berwin v. Lindenwood Female College, 205 S.W.3d 291, 296 (Mo.App. E.D.2006). We therefore remand this case to the Commission for further findings of fact and conclusions of law on the issue of misconduct connected with work.

Conclusion

The Commission’s decision is reversed and the matter is remanded.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., J., concur.

      . Because we reverse and remand on the basis that the Commission erred in holding that Claimant voluntarily left her employment, we need not address Claimant’s second point in which she claims that the Appeals Tribunal failed to develop a full and complete record or substantial competent evidence.

      . We note that an employer's characterization of a separation from employment as a voluntary quit or a discharge is not binding on the Division or on the courts. See Madewell v. Div. of Employment Sec., 72 S.W.3d 159, 166 (Mo.App. W.D.2002); Reno v. Tyson Poultry, Inc., 204 S.W.3d 347, 350 (Mo.App. W.D. 2006). "While the terms that the parties use to describe cessation of an employee’s employment may be instructive, the relevant facts and circumstances are controlling." Moore, 49 S.W.3d at 737-38. Citing Ayers v. Sylvia Thompson Residence Ctr., the Division conceded at oral argument that an employer’s characterization of a separation from employment as a discharge or voluntary quit may be instructive, but it is not dispositive. 211 S.W.3d 195, 199 (Mo.App. W.D.2007).


author: PER CURIAM.

text:
    James L. CRONIN, Appellant, v. David S. JOHNSON, Jr., and Johnson & Commonwealth Group, L.C., Respondents.
    No. ED 93701.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 25, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.

      Sean W. Westhoff, Clayton, MO, for appellant.
    Gregory P. May, St. Louis, MO, for respondents.
   ORDER

PER CURIAM.

James L. Cronin, Jr. d/b/a Hawk Distribution Services (Cronin) appeals from the judgment of the Circuit Court of St. Louis County granting David Johnson Jr.’s (Johnson) and Commonwealth Group, L.C.’s (Commonwealth) motions to dismiss Cronin’s first amended petition. On appeal, Cronin claims the trial court erred in granting the motions to dismiss for failure to state a claim upon which relief can be granted because Cronin stated causes of action for breach of contract against Commonwealth and for tortious interference with contract against Johnson. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

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


author: PER CURIAM:

text:
    CITIBANK (SOUTH DAKOTA) N.A., Respondent, v. Jean LOVING, Appellant.
    No. WD 70945.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Joseph M. Backer, Independence, MO, for Appellant.
    Michael H. Berman and J. Brock Row-att, Kansas City, MO, for Respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   Order

PER CURIAM:

Jean Loving appeals the judgment of the Circuit Court of Vernon County in favor of Citibank (South Dakota) N.A. relating to a credit card agreement. On appeal, Loving raises five points of claimed trial court error ranging from alleged pleading and procedural errors to errors relating to the admission of evidence. We affirm in this per curiam order and have provided a memorandum explaining our ruling today to the parties. Rule 84.16(b).


author: GARY W. LYNCH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Maurice Cornelius RICHARDSON, Defendant-Appellant.
    No. SD 29633.
    Missouri Court of Appeals, Southern District, Division Two.
    June 14, 2010.

      Matthew Ward, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY W. LYNCH, Presiding Judge.

Maurice Cornelius Richardson (“Defendant”) appeals the trial court’s judgment convicting him of one count of robbery in the first degree, pursuant to section 569.020, and one count of resisting arrest, pursuant to section 575.150. Defendant contends that the trial court erred in overruling his motion to suppress and admitting at trial evidence obtained in a search of his automobile and in denying his request to withdraw his waiver of a jury trial. We affirm.

Factual and Procedural Background

At approximately 2:00 a.m. on August 80, 2006, an African-American male, wearing a ski mask, a red shirt, dark pants, and tennis shoes, walked into a Fast & Friendly convenience store in Springfield, pulled a knife on the clerk, and demanded all the money in the cash register. The clerk gave the robber all of the cash from the register, which was in small denominations of ten dollars and less, and the robber left the store. The clerk walked out of the store while calling 911 and, when police officers drove up seconds later, motioned toward an alley in the direction that the robber had taken. Officer Whisnant, as directed by the clerk, drove up the alley near the store and into an adjoining street. After several minutes, Whisnant saw a vehicle backing out of a driveway nearby. The vehicle was moving very slowly, and its lights were not on. Whisnant followed the vehicle until it stopped, and Defendant got out of it holding wads of cash in his hands.

After a chase and a struggle, in which Defendant dropped cash on the ground along the way, officers were able to stop and handcuff Defendant. Officer Whis-nant gave custody of Defendant to another officer and examined Defendant’s vehicle. Through the back window, he observed a red shirt, dark pants, and tennis shoes. Through the front door left open by Defendant when he exited the vehicle, Whisnant saw a knife on the floorboard in front of the driver’s seat. "Whisnant directed another officer to conduct a search of the vehicle. Defendant was charged with one count of robbery in the first degree and one count of resisting arrest.

On March 7, 2008, the trial court accepted Defendant’s Waiver of Trial by Jury form after a hearing in which the court found that Defendant had freely, voluntarily, and intelligently waived his right to a trial by jury. On May 14, 2008, Defendant sent the trial judge a letter asking to withdraw the waiver. At a hearing on May 30, 2008, the judge denied the request to rescind the jury-trial waiver.

After a bench trial on November 25, 2008, at which Defendant was represented by counsel, the trial court found Defendant guilty of one count of robbery in the first degree and one count of resisting arrest. The trial court sentenced Defendant to eighteen years’ imprisonment for the robbery count and seven years’ imprisonment for resisting arrest, to be served concurrently.

This appeal timely followed.

Discussion

Defendant raises two points on appeal. We address them in the order presented.

Admission of Evidence from Search of Defendant’s Automobile

Defendant contends in his first point on appeal that the trial court erred in overruling his motion to suppress evidence seized as a result of the search of his automobile and abused its discretion in admitting this evidence at trial. Defendant contends the evidence should have been suppressed because it was the result of an unlawful search and seizure that violated the Fourth Amendment to the United States Constitution and Article I, Section 15 of the Missouri Constitution. Defendant claims that the search and seizure did not come within the search-incident-to-arrest exception to the warrant requirement and were thus unlawful because he was unable to reach items within the automobile at the time the search occurred. Defendant further claims that the police had no justification for the search other than to discover weapons or destructible evidence that Defendant might access. We disagree.

The ruling below should be reversed only if it is clearly erroneous. State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). Only when we are left with a definite and firm belief that a mistake has been made will we deem the trial court’s ruling “clearly erroneous.” State v. Renfrow, 224 S.W.3d 27, 31 (Mo.App.2007). In our review, we consider evidence presented at the pre-trial hearing on the motion to suppress as well as any additional evidence presented at trial. State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009). We view all facts and reasonable infer-enees in the light most favorable to the trial court’s ruling. Id. We defer to the trial court’s factual findings and credibility ' determinations. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). Whether the conduct at issue violates the Fourth Amendment is a matter of law that an appellate court reviews de novo. Id.

Warrantless searches or seizures are per se unreasonable under the Fourth Amendment, but there are certain recognized exceptions. State v. Moore, 99 S.W.3d 579, 582 (Mo.App.2003). The State has the burden of justifying the warrant-less search by showing that it falls within one or more of these exceptions. Id. Here, the State justifies the warrantless search under both the “search incident to lawful arrest exception” and the “automobile exception.”

Search incident to arrest

In 2009, the United States Supreme Court re-examined its Fourth Amendment jurisprudence regarding searches of vehicles incident to arrest. Arizona v. Gant, — U.S.-, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (discussing, inter alia, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), Thornton v. U.S., 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), and Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)). Gant held that when a recent occupant of a vehicle has been placed under arrest, police may search the passenger compartment of the vehicle without a warrant when the arrestee is within reaching distance of the passenger compartment or when “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. The Gant majority underscores the distinction between its holding that permits vehicle searches undertaken with the reasonable belief that offense-related evidence will be found within an arrestee’s vehicle and the well-established “automobile exception.” See id. at 1721. The automobile exception, which we discuss below, requires that an officer have probable cause to believe an automobile contains evidence of a crime, whereas the exception found in Gant requires only that it is “reasonable to believe” that evidence of the specific offense of arrest will be found in the passenger compartment. Id.

Here, there is no dispute that Defendant was unable to reach the passenger compartment of his vehicle at the time of the search, so the first Gant exception for a search incident to arrest does not apply. Defendant was handcuffed, and testimony shows that he was either inside or outside a patrol car in the custody of an officer at the time, or already at the jail. Accordingly, we analyze only whether it was reasonable under Gant for the police to believe that evidence of the offense of arrest, in this case the robbery of the convenience store, could be found in the vehicle.

The police saw Defendant leaving the area of the robbery in his vehicle minutes after the robbery of cash at knife-point was reported. He was driving a vehicle with no lights on at 2:00 a.m. in the middle of the night. When Defendant stepped out of his vehicle, he had wads of cash in both hands. Defendant fled from the officers on foot but was quickly apprehended and arrested for robbery and resisting arrest. When the police subsequently examined the vehicle from the outside, they were able to see clothing inside that matched the description of that worn by the robber, as well as a knife. Under these circumstances, the police had an objectively reasonable basis for believing that evidence relevant to the robbery would be found in Defendant’s vehicle. The search incident to Defendant’s arrest was therefore authorized under Gant. See 129 S.Ct. 1710.

The automobile exception

A search of an automobile pursuant to probable cause to believe that contraband, weapons, or evidence of a crime within the automobile is a well-established exception to the Fourth Amendment warrant requirement. See Gant, 129 S.Ct. at 1721 (discussing U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)); State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). The principles that underlie this “automobile exception” are that citizens have a “less significant expectation of privacy in their automobiles than in their homes and offices,” and that the inherent mobility of an automobile “often presents an exigent circumstance making procurement of a search warrant unfeasible[.]” Id. “Probable cause may arise when the facts and circumstances within the knowledge of the seizing officer are sufficient in themselves to produce in a man of reasonable caution a belief that the contents of the automobile offend the law.” Id.

Here, Officers Whisnant and Clawson arrived at the scene of a convenience store robbery of cash within one minute of the clerk’s call to 911. The officers followed a vehicle near the scene, and later lawfully arrested Defendant, who had since exited that same vehicle with his fists full of cash. After assigning custody of Defendant to another officer, Whisnant examined the interior of the vehicle from the outside. Through the back window, and through the partially-open driver’s side door, Whis-nant saw a red shirt, blue or black pants, white tennis shoes, and a partially-exposed knife. The store clerk had reported that the robber had worn a red shirt and dark pants and had wielded a knife. We find that these facts and circumstances were sufficient to allow a person of reasonable caution to believe that the contents of the vehicle offended the law. Thus, probable cause existed to search the vehicle without a warrant under the “automobile exception.”

After reviewing the entire record, this Court is not left with a definite and firm belief that a mistake has been made by the trial court as to the admissibility of the evidence obtained by the search of Defendant’s automobile. The trial court did not err in overruling Defendant’s motion to suppress the evidence discovered in his vehicle or in admitting such evidence at trial. The warrantless search was reasonable within the meaning of the Fourth Amendment, both as a search incident to arrest and as a search performed pursuant to the “automobile exception.” Accordingly, Defendant’s first point is denied.

Denial of Defendant’s Request to Withdraw Jury-Trial Waiver

Defendant’s second point on appeal asserts the trial court abused its discretion in refusing Defendant’s request to withdraw his jury-trial waiver. Missouri law allows criminal defendants to waive their right to a jury trial and submit their cases to the court. Rule 27.01(b). A defendant does not have a constitutional right to withdraw a valid jury-trial waiver, and whether that waiver may be withdrawn is discretionary with the trial court. State v. Morton, 648 S.W.2d 642, 643 (Mo.App.1983). Judicial discretion is abused only when the ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Christeson, 50 S.W.3d 251, 261 (Mo. banc 2001).

Defendant does not claim that his waiver of a trial by jury was invalid. Defendant testified at the March 7, 2008, hearing regarding his waiver that he was aware that he had a right to a jury trial and that he knew that his case was set for a jury trial the next week. Defendant stated that he intended to have his case tried by the court alone, and he answered affirmatively all of the trial court’s questions regarding his understanding of the jury-trial process. Defendant stated that he freely and voluntarily gave up his right to a trial by jury. The trial court accepted Defendant’s waiver and removed his jury trial from the next week’s docket.

Defendant’s bench trial was scheduled for May 28, 2008. The trial was subsequently continued, at the State’s request, until July 30, 2008. On May 14, Defendant sent the trial judge a letter asking to withdraw his jury-trial waiver. A hearing on that request was held on May 30, 2008, at which the trial judge denied the request to withdraw the jury-trial waiver. Defendant, although given the opportunity to present any evidence he desired in support of his motion, declined to do so. The trial court found that Defendant’s waiver form was accepted upon a finding that he freely, voluntarily, and intelligently gave up his right to a jury trial and that allowing Defendant to withdraw the waiver at that time would work an injustice on other litigants and a hardship on the court. In making the latter finding, the trial court stated:

I further find this to be true: At the time of your waiver of jury trial you had a jury trial the very next week. It may have been the No. 1 setting on March 11th. You came in and you agreed to waive jury trial on March 7th so as to avoid that jury trial.
The Court then put another case in for that place because the Court has a lot of cases waiting their turn for a jury trial. And I would find that to now let you withdraw your right to jury trial [sic] would delay many other cases for many, many months, and that would work an injustice to all the other people awaiting their constitutional right to a jury trial, a constitutional right which you waived. So it would work a hardship on this Court and it would work a hardship on many other litigants.

Defendant argues, without any citation to or support from the record, that there was sufficient time to set a jury trial without causing undue hardship or delay. Defendant attempts to distinguish the facts of his case from those in Menton by pointing out that the defendant in Morton requested withdrawal of his waiver only one month before trial, whereas here, Defendant sent a letter to the judge approximately two and a half months before his trial date. See Morton, 648 S.W.2d 642. Defendant has failed, however, to direct us to anything in the record refuting the trial court’s finding that allowing Defendant to withdraw his waiver and schedule a jury trial would “work a hardship on this Court and it would work a hardship on many other litigants.” Because the trial court is in the unique position of possessing intimate knowledge of its docket and schedule, in the absence of any contrary evidence, we cannot say that this finding was clearly against the logic of the circumstances or so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. The trial court’s denial of Defendant’s request to withdraw his valid jury-trial waiver was not, therefore, an abuse of discretion. Defendant’s second point is denied.

Decision

The judgment of the trial court is affirmed.

SCOTT, C.J., and RAHMEYER, J., concur.

      . All references to section 569.020 are to RSMo 2000.

      . All references to section 575.150 are to RSMo Cum.Supp.2005.

      . The protection provided to Missouri citizens by Article I, Section 15 is coextensive with that provided by the Fourth Amendment of the United States Constitution. State v. Rushing, 935 S.W.2d 30, 34 (Mo. banc 1996). Therefore, our analysis is confined to a discussion of Defendant's Fourth Amendment claim.

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