author: ROBERT G. ULRICH, Judge.

text:
    Carlos DECKARD, Jr., Respondent, v. O’REILLY AUTOMOTIVE, INC., Appellant.
    No. WD 57385.
    Missouri Court of Appeals, Western District.
    Aug. 1, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Larry Michael Schumaker, Kansas City, for appellant
    David Milton Skeens, Kansas City, for respondent.
    Before LOWENSTEIN, P.J., ULRICH, J. and HOLLIGER, J.
   ROBERT G. ULRICH, Judge.

O’Reilly Automotive, Inc. appeals the judgment of the trial court entered in favor of Carlos Deckard in the amount of $275,830 in his defamation action. O’Reilly raises several points on appeal. First, it claims that the trial court erred in denying its motion to vacate the judgment and dismiss Mr. Deckard’s petition because the court lacked subject matter jurisdiction. Second, O’Reilly argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because Mr. Deckard did not present sufficient evidence to make a submissible case of defamation. Finally, O’Reilly claims that the trial court erred in denying its motion for a new trial based on instructional error. The judgment of the trial court is reversed, and the case is remanded for a new trial.

Carlos Deckard is a former employee of O’Reilly Automotive, Inc. Mr. Deckard worked for O’Reilly for nearly eight years. At the time of his termination, Mr. Deck-ard was the assistant manager at the O’Reilly retail store in El Dorado Springs. His job duties included counter sales, paperwork, checking and approving invoices, and supervising the store when the store manager, Kevin Greven, was not working.

On Friday, January 26, 1996, Mr. Gre-ven went home sick at 11:00 a.m. leaving Mr. Deckard in charge of the store. Four other employees were working in the store that day with Mr. Deckard —Gregg Fast, Mike Spencer, Jami Crouch, and Juanita Boram. Each had been assigned an exclusive “counter number” to transact O’Reilly’s business. Between 11:40 a.m. and 12:30 p.m., someone stole approximately $160 by creating a fraudulent charge sale invoice and two fraudulent cash refund invoices. Two of the fraudulent invoices were written by someone who used Mr. Deckard’s exclusive counter number. The third fraudulent invoice was written using Gregg Fast’s exclusive counter number. When Mr. Fast discovered the fraudulent refund invoice with his counter number imprinted on it, he became suspicious and telephoned Earl Kaltenbach, the district manager. Mr. Kaltenbach made plans to travel to the El Dorado Springs store the following Monday to investigate.

The next day, Saturday, January 27, was the store manager’s scheduled day off; therefore, Mr. Deckard, as assistant store manager, was in charge of the store. As the manager on duty, Mr. Deckard processed all of the previous day’s paperwork and approved the previous day’s invoices including initialing the two fraudulent cash refund invoices.

Earl Kaltenbach arrived at the El Dora-do Springs store on Monday morning, January 29, to investigate the suspicious invoices. He and Mr. Greven spoke with Mr. Deckard about the invoices. Initially, Mr. Deckard thought the men were seeking his help in determining who had created the fraudulent invoices. By the end of the meeting, Mr. Deckard understood that Mr. Kaltenbach was “upset with” or “accusing” him.

Mr. Deckard met with Bruce Dowell and David Bellamy, loss prevention auditors with O’Reilly, the next day, Tuesday, January 30. Mr. Dowell asked Mr. Deckard to explain the three fraudulent invoices, and Mr. Deckard denied writing them. At the end of the meeting, Mr. Dowell informed Mr. Deckard that he was suspended indefinitely without pay and asked Mr. Deckard to leave the store.

On January 31, Mr. Greven, the store manager, told Jami Grouch and Jerry McCullick, employees of the store, that Mr. Deckard was no. longer with the company because he had been making false tickets and stealing company money. On February 1 or 2, Mr. Kaltenbach informed Joe Barger, the customer on whose account the fraudulent charge sale had been written, that his account had been credited and that Mr. Deckard had been dismissed over the incident. Mr. Dowell telephoned Mr. Deckard on February 2, 1996, and informed him that he was terminated for loss of confidence. Mr. Deckard testified that he understood this to mean he was fired for theft.

Mr. Deckard applied for a job with Au-toZone Auto Parts Inc, a competitor of O’Reilly, in May of 1996. On his application, Mr. Deckard wrote that he had been terminated from O’Reilly because of a disagreement with upper management. Mr. Deckard subsequently interviewed with Scott Anderson, a recruiter for AutoZone, and Mr. Anderson asked him to explain why he had been terminated by O’Reilly. Mr. Deckard told Mr. Anderson that he had been unfairly fired for theft. After learning why Mr. Deckard left his employment with O’Reilly, Mr. Anderson lost interest in hiring Mr. Deckard. Mr. Deck-ard eventually got a job at Allison Auto Parts making minimum wage with no benefits.

Mr. Deckard filed his petition for damages on December 10, 1997. In his defamation claim, Mr. Deckard alleged that O’Reilly, by and through its officers, employees, and agents, made the defamatory statement that Mr. Deckard was a thief to a number of persons in the El Dorado Springs community including other O’Reilly employees and customers and that, as a result, his reputation was damaged. Mr. Deckard also alleged that he had to repeat the defamatory statement in the course of his search for new employment. Mr. Deckard alleged that he suffered actual damages in the form of mental anguish, loss of standing in the community, personal humiliation, and loss of income and other benefits associated with his inability to find other comparable work. Mr. Deckard also sought punitive damages alleging that O’Reilly acted with malice in making the defamatory statement. Following trial, the jury returned its verdict in favor of Mr. Deckard awarding him $125,830 in actual damages and $150,000 in punitive damages. O’Reilly filed a timely motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, as well as a motion to vacate the judgment and vacate plaintiffs petition for lack of subject matter jurisdiction. The trial court denied O’Reilly’s post-trial motions. This appeal followed.

I. Jurisdiction

O’Reilly initially claims that the trial court erred in denying its motion to vacate the judgment and dismiss Mr. Deckard’s petition because the court lacked subject matter jurisdiction. O’Reilly contends that Mr. Deckard’s defamation claim came within the exclusive, primary jurisdiction of the Workers’ Compensation Law and the Labor and Industrial Relations Commission (LIRC).

The issue of the lack of subject matter jurisdiction may be raised at any time during a proceeding. Brunig v. Humburg, 957 S.W.2d 345, 348 (Mo.App. E.D.1997). A motion to dismiss for lack of subject matter jurisdiction is the proper method to raise the exclusivity of the Workers’ Compensation Law as a defense to a tort action. Burns v. Employer Health Servs., Inc., 976 S.W.2d 639, 641 (Mo.App. W.D.1998). The motion to dismiss should be granted when it appears, by a preponderance of the evidence, that the trial court lacks subject matter jurisdiction. Rule 55.27(g)(3); Burns, 976 S.W.2d at 641. Although the party raising the defense has the burden of proving lack of subject matter jurisdiction, the quantum of proof is not high. Burns, 976 S.W.2d at 641. Where a question of jurisdiction is in doubt, it should be resolved in favor of the LIRC. James v. Union Elec. Co., 978 S.W.2d 372, 374 (Mo.App. E.D.1998).

In determining whether it has jurisdiction, the court may consider affidavits, exhibits, and evidence pursuant to Rules 55.27 and 55.28. Burns, 976 S.W.2d at 641. Whether a case falls within the exclusive jurisdiction of the LIRC is a question of fact, therefore, the determination should be left to the sound discretion of the trial court. Id. Thus, the appellate court’s review is for an abuse of discretion. Id. “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration.” Id. (citation omitted).

The Workers’ Compensation Law is wholly substitutional in character, and the plaintiffs common law rights have been supplanted and superseded by the act, if the Law is applicable. Killian v. J & J Installers, Inc., 802 S.W.2d 158, 160 (Mo. banc 1991). Section 287.120, RSMo 1994, provides in pertinent part:

1. Every employer subject to the' provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The term “accident” as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person. 2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next of kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.

§ 287.120, RSMo 1994. Thus, the exclusive remedy for injury or death of an employee from an accident arising out of and in the course of employment is a claim for compensation under Chapter 287. Lovelace v. Long John Silver’s, Inc., 841 S.W.2d 682, 686 (Mo.App. W.D.1992). The Workers’ Compensation Law, however, bars common law suits for only those damages covered by the Law and for which compensation is made available under its provisions. § 287.120.2, RSMo 1994; Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 168, 165 (Mo.App.1978). Thus, an employee is free, despite the Workers’ Compensation Law, to bring suit at common law for wrongs not comprehended within the Law. Gambrell, 562 S.W.2d at 165. The key to whether the Workers’ Compensation Law precludes a common law right of action lies in the nature of the injury for which plaintiff makes claim, not the nature of defendant’s act which plaintiff alleges to have been responsible for that injury. Id. at 168.

Under the doctrine of primary jurisdiction, the LIRC also has exclusive original jurisdiction to determine the facts that establish jurisdiction or, in other words, whether the injury falls within the Workers’ Compensation Law. Killian, 802 S.W.2d at 160 (citing Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 726 (Mo. banc 1982)); Lovelace, 841 S.W.2d at 686. According to the doctrine of primary jurisdiction, a judicial court is restrained from adjudicating a question within the jurisdiction of an administrative tribunal until that tribunal has rendered its decision. Killian, 802 S.W.2d at 160. Deference to the tribunal or agency is justified where (1) administrative knowledge and expertise are demanded, (2) technical or intricate fact questions are to be determined, and (3) uniformity is important to the regulatory scheme. Id.

Determinations of whether there was an accident arising out of and in the course of employment and whether an employee’s injury resulted from an accident or an intentional act of the employer are questions requiring agency expertise; thus, the LIRC has exclusive jurisdiction to make such determinations. Id. at 160-161; Lovelace, 841 S.W.2d at 686. Conversely, the trial court retains authority to determine the fundamental issue of whether an employer/employee relationship existed at the time of injury. Killian, 802 S.W.2d at 160 (citing Jones v. Jay Truck Driver Training Center, Inc., 709 S.W.2d 114, 115 (Mo. banc 1986)).

In this case, the doctrine of primary jurisdiction did not apply to give the LIRC original jurisdiction to determine the facts that establish jurisdiction. The trial court made a determination on the fundamental issue of whether an employment relationship existed at the time of injury. The court concluded that the alleged defamatory statements and any resultant injury to Mr. Deckard’s reputation did not occur until after O’Reilly terminated Mr. Deckard’s employment. Sufficient evidence was presented to support the trial court’s conclusion. On Tuesday, January 30, Mr. Deckard was informed by Bruce Dowell, the loss prevention auditor, that he was suspended indefinitely without pay and was then asked to leave the premises. An internal memo written by Mr. Dowell indicated that the decision to terminate Mr. Deckard was made the next day, January 31. That same day, Kevin Greven, the store manager, informed other employees of O’Reilly that Mr. Deckard was no longer with the company. Mr. Greven then made the first alleged defamatory statement to Jami Crouch. The trial court, therefore, retained authority to determine whether Mr. Deckard’s injury fell within the exclusive jurisdiction of the Workers’ Compensation Law.

For the same reason that the LIRC did not have primary jurisdiction in this case, Mr. Deckard’s defamation claim did not come within the exclusive jurisdiction of the Workers’ Compensation Law. At the time of the alleged injury to Mr. Deckard’s reputation, he was no longer an employee of O’Reilly. See Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1060-1061 (8th Cir.l993)(where plaintiffs emotional distress injury did not arise until after her discharge from employment, the workers’ compensation law did not apply).

Even if an employment relationship existed at the time the alleged defamatory statements were made, Mr. Deckard’s defamation claim did not fall within the exclusive jurisdiction of the Workers’ Compensation Law for another reason. The Workers’ Compensation Law contains no provision for compensation for damage sustained by an employee from defamation by his employer. Injury to reputation is not the type of injury contemplated by the Workers’ Compensation Law. Gambrell, 562 S.W.2d at 165. With the Workers’ Compensation Law, the legislature provided a remedy for injury or death of an employee from an accident arising out of and in the course of employment. The legislature did not intend for the Law to entirely subvert every common law tort action that may arise between an employer and an employee. Mr. Deck-ard’s defamation claim against his former employer, O’Reilly, therefore, did not fall within the primary or exclusive jurisdiction of the Workers’ Compensation Law and the LIRC. The trial court had subject matter jurisdiction over the claim, and the court did not abuse its discretion in overruling O’Reilly’s motion to dismiss.

II. Qualified Privilege

In the next point, O’Reilly claims that the trial court erred in submitting the burden of proof instruction based on MAI 5th 3.06, the verdict director based on MAI 5 th 23.10(1), and the affirmative defense instruction (Instruction Nos. 5, 6, and 8). O’Reilly argues that the statements made to Jami Crouch, Joe Barger, and Scott Anderson were qualifiedly privileged and, therefore, MAI 5th 3.05 and 23.10(2), which incorporate the malice standard, should have been used. It contends that submission of the instructions based on MAI 5th 8.06 and 23.10(1) improperly placed upon it the risk of nonpersuasion on the issue of truth/falsity instead of requiring Mr. Deckard to establish the falsity of the claimed defamatory statement by clear and convincing evidence.

When a defendant is alleged to have made an actionable defamatory statement, the burden is upon the defendant to prove that it is entitled to the defense of qualified privilege. Wright v. Over-The-Road and City Transfer Drivers, Helpers, Dockmen and Warehousemen, 945 S.W.2d 481, 494 (Mo.App. W.D.1997). A communication is qualifiedly privileged when “it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty.” Rice v. Hodapp, 919 S.W.2d 240, 244 (Mo. banc 1996); Carter v. Willert Home Products, Inc., 714 S.W.2d 506, 513 (Mo. banc 1986), abrogated on other grounds by Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993) (citation omitted). Applying this principle, a communication regarding the character or qualifications of an employee or former employee “is quali-fiedly privileged if made in good faith by a person having a duty in the premises to one who has a definite interest therein.” Caiter, 714 S.W.2d at 513 (quoting Cash v. Empire Gas Corp., 547 S.W.2d 830, 833 (Mo.App.1976)). A “qualified privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty.” 50 Am.JuR.2d Libel and Slander § 276 (1995). Whether the surrounding circumstances and relationships are such as to give rise to a qualified privilege is a question of law to be decided by the trial court. Rice, 919 S.W.2d at 244; Carter, 714 S.W.2d at 513; Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 345 (Mo.1963). An appellate court’s review of a question of law is de novo. Williams v. Kimes, 996 S.W.2d 43, 44 (Mo. banc 1999).

When the trial court determines that a qualified privilege exists, the plaintiff may overcome the qualified privilege by proving by clear and convincing evidence that either (1) the defendant made the defamatory statement in bad faith or with actual malice or that (2) “the statements made exceed the exigencies of the situation.” Rice, 919 S.W.2d at 244; Carter, 714 S.W.2d at 513; Hellesen, 370 S.W.2d at 345; Wright, 945 S.W.2d at 494. The law will not infer malice where an otherwise false and defamatory communication is qualifiedly privileged; rather the existence thereof must be shown by some evidence beyond the falsity of the statement communicated. Rice, 919 S.W.2d at 244; Carter, 714 S.W.2d at 513. To prove malice, the plaintiff must show that “the statements were made with knowledge that they were false or with reckless disregard for whether they were true or false at a time when defendant had serious doubts as to whether they were true.” Rice, 919 S.W.2d at 244; Carter, 714 S.W.2d at 512. Whether the defendant acted with malice in making the defamatory statement or whether the statement made exceeded the exigencies of the situation are questions of fact for the jury, unless no substantial evidence of actual malice is presented, in which case the court should direct a verdict. Hellesen, 370 S.W.2d at 345; Wright, 945 S.W.2d at 490. Consequently, if the trial court has determined as a question of law that a qualified privilege applies and the plaintiff has made a submissible case of actual malice, a verdict director based on MAI 5th 23.10(2), which incorporates the malice standard, should be submitted to the jury. Carter, 714 S.W.2d at 513; MAI 5 th 23.10(1) Notes on Use 1 (1996).

In this case, O’Reilly’s communications to Jami Crouch and Joe Barger were qualifiedly privileged. The day after Mr. Deckard was suspended indefinitely without pay, Kevin Greven, the store manager, had a conversation with Jami Crouch and another employee of the store concerning the situation with Mr. Deckard. Mr. Greven explained to Ms. Crouch and the other employee that if customers asked for Mr. Deckard, they were to tell them only that he was not working that day. They were not to elaborate further. Mr. Greven then told Ms. Crouch and another employee that Mr. Deckard was no longer with the company because he had been making false tickets and stealing company money. Such conversation between supervisory and non-supervisory personnel was a situation for which a qualified privilege existed. Rice, 919 S.W.2d at 244. Mr. Greven’s statements to Ms. Crouch and the other employee were justified because they related to matters of common interest to the employer, O’Reilly, and its employees. First, it was reasonable that management would inform its employees that Mr. Deckard, the assistant manager, no longer worked for the company. Additionally, O’Reilly had an interest in preparing its employees to respond to reasonably anticipated inquiries from customers about Mr. Deckard’s absence. Finally, Mr. Greven’s statements concerning O’Reilly’s policy regarding employee theft and the consequences of violating that policy pertained to a subject matter about which both management and employees had some knowledge and interest. Id at 244; Schnelting v. Coors Distributing Co. of Missouri, 729 S.W.2d 212, 216 n. 4 (Mo.App. E.D.1987). O’Reilly’s communication to Ms. Crouch was, therefore, quali-fiedly privileged.

Likewise, a qualified privilege existed regarding O’Reilly’s communication to Joe Barger, the customer on whose account the fraudulent charge sale had been written. A few days after the fraudulent invoices were written, Earl Kalten-bach, the district manager, informed Joe Barger that an employee had taken money from Mr. Barger’s account, that his account had been credited, and that Mr. Deckard had been dismissed because of the incident. The business/customer relationship between O’Reilly and Mr. Barger and the problem O’Reilly had with Mr. Barger’s account created a common interest justifying a privileged communication between the two parties. O’Reilly had an interest in providing a valid explanation to Mr. Barger about the reason for the misuse of his account, known to Mr. Barger to have occurred, and that the irregular use of his account had been remedied. The communication regarding Mr. Barger’s account was, therefore, qualifiedly privileged.

The trial court erred in finding that O’Reilly did not have a qualified privilege regarding its communications to Jami Crouch and Joe Barger, although, as discussed in section IIIB below, Mr. Deckard made a submissible case of actual malice to defeat or overcome the privilege. Verdict directing instructions based on MAI 5 th 23.10(2) and the corresponding burden of proof instructions based on MAI 5 ⅛ 3.05, therefore, should have been submitted with regard to O’Reilly’s communications to Ms. Crouch and Mr. Barger to allow the jury to decide whether the statements were made in good faith without actual malice and were properly limited in their scope.

III. Submissibility of the Case

In the final point addressed in this appeal, O’Reilly claims that the tidal court erred in submitting Instruction No. 6, the verdict directing instruction, which contained three disjunctive theories of liability. O’Reilly contends that Mr. Deckard failed to present sufficient evidence to support each disjunctive alternative submitted.

Any instruction submitted to a jury must be supported by substantial evidence. Chiffin v. Kansas City Southern Ry. Co., 965 S.W.2d 458, 462 (Mo.App. W.D.1998). Whether sufficient evidence was presented to submit an issue to the jury is a legal question and not an exercise of judicial discretion. King v. Unidynamics Corp., 943 S.W.2d 262, 267 (Mo.App. E.D.1997). A case is not to be submitted to the jury unless each fact essential to liability is predicated upon legal and substantial evidence. Id. In reviewing the submissibility of an instruction, an appellate court views the evidence and reasonable inferences in the light most favorable to the instruction and disregards all contrary evidence and inferences. Id.

The verdict directing instruction in this case was as follows:

Your verdict must be for plaintiff if you believe:

First, defendant stated that plaintiff was a thief; and
Second, defendant was at fault in making such statement; and
Third, such statement tended to deprive the plaintiff of the benefit of public confidence in his honesty or expose him to contempt in his social associations; and
Fourth, such statement was heard by one or more of the following persons:
Scott Anderson; or
Joe Barger; or
Jami Crouch; and
Fifth, plaintiffs reputation was thereby damaged.

The instruction submitted three disjunctive theories of liability: (1) that O’Reilly communicated a defamatory statement about Mr. Deckard to Scott Anderson; (2) that O’Reilly communicated a defamatory statement about Mr. Deckard to Joe Bar-ger; or (3) that O’Reilly communicated a defamatory statement about Mr. Deckard to Jami Crouch. Where an instruction is given in the disjunctive, each alternative submitted in the instruction must be supported by evidence. Griffin, 965 S.W.2d at 459; Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo.App. W.D.1994). If each allegation presented in the instruction is not supported by the evidence, the giving of the instruction is error. Id.

To make a submissible case of defamation, the plaintiff, who is not a public figure, must plead and prove the following elements: (1) publication, (2) of a defamatory statement, (3) that identifies the plaintiff, (4) that is false, (5) that is published with the requisite degree of fault, and (6) that damages the plaintiffs reputation. Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000)(citing Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993)). O’Reilly claims that insufficient evidence was presented to submit any of the three theories of liability to the jury.

A. Communication to Scott Anderson

First, O’Reilly claims that Mr. Deckard failed to present sufficient evidence that it made a defamatory statement to Scott Anderson, a recruiter for Auto-Zone. Mr. Deckard’s defamation claim regarding Mr. Anderson was based on Mr. Deckard’s self-publication during a job interview with Mr. Anderson that he had been fired from O’Reilly for theft. While communication of defamatory matter only to the plaintiff who then discloses it to third parties generally does not subject the defendant to liability, an exception exists where the utterer of the defamatory statement intends, or has reason to suppose, that in the ordinary course of events the statement will come to the knowledge of some third person. Overcast, 11 S.W.3d at 70; Herberholt v. dePaul Community Health Ctr., 625 S.W.2d 617, 624-625 (Mo. banc 1981). O’Reilly argues, inter alia, that the undisputed evidence reveals that Bruce McDowell told Mr. Deckard that he was fired for loss of confidence, and that such statement was not defamatory. It contends that Mr. Deckard’s self-publication claim based on his “embellishment” of the words uttered by O’Reilly must fail.

A statement is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Henry v. Halliburton, 690 S.W.2d 775, 779 (Mo. banc 1985). Whether a statement is capable of having a defamatory meaning is a question of law for the trial court. Id.; Ampleman v. Scheweppe, 972 S.W.2d 329, 332 (Mo.App. E.D.1998). The trial court must determine whether the communication reasonably conveyed the meaning ascribed to it by plaintiff and, if so, whether the meaning was defamatory in character. Ampleman, 972 S.W.2d at 332. In determining whether, as a matter of law, a statement is reasonably capable of a defamatory meaning, two standards are used. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 311 (Mo. banc 1993). First, the words must be stripped of any pleaded innuendo and construed in their most innocent sense. Id. The words must then be considered in context, giving them their plain and ordinary meaning. Id. In other words, the words “are to be taken in the sense which is most obvious and natural according to the ideas they are calculated to convey to those to whom they are addressed.” Id. (citing Kirk v. Ebenhoch, 354 Mo. 762, 191 S.W.2d 643, 645 (Mo.1945)). "While the two standards are not absolutely consistent, they should be considered together. Nazeri, 860 S.W.2d at 311.

The evidence at trial was undisputed that Mr. Dowell telephoned Mr. Deckard on February 2, 1996, and informed him that he was fired for loss of confidence. Mr. Dowell did not make any other statements to Mr. Deckard at that time. Although Mr. Dowell informed Mr. Deckard that he was fired for loss of confidence, Mr. Deckard subsequently told Mr. Anderson during an interview that he was terminated from O’Reilly for theft. Mr. Deckard did not republish O’Reilly’s communication to Mr. Anderson, but instead communicated his own additional words of which he now complains. O’Reilly’s statement to Mr. Deckard that he was fired for loss of confidence alone did not reasonably convey to Mr. Deckard the meaning ascribed by him — that he was fired for theft. Stripped of Mr. Deckard’s pleaded innuendo, the plain and ordinary meaning of O’Reilly’s statement to Mr. Deckard was that Mr. Deckard was fired because O’Reilly no longer had trust in him as an employee. The statement by Mr. Deckard to Mr. Anderson that he was fired for theft was not necessarily the most obvious and natural meaning O’Reilly was attempting to convey when it stated to Mr. Deckard that he was fired for loss of confidence. Arguably, O’Reilly may have lost trust in Mr. Deckard because it did not know whether he was involved in the theft or because the fraudulent transactions occurred while he was supervising the store as assistant manager and in such manner that caused O’Reilly to doubt his managerial skills. All of these conclusions are equally reasonable interpretations of O’Reilly’s statement. O’Reilly’s statement to Mr. Deckard, therefore, was not defamatory. Thus, Mr. Deckard failed to make a submissible case on the claim that O’Reilly communicated a defamatory statement about Mr. Deckard to Scott Anderson. Accordingly, submission of the verdict directing instruction, which contained the claim in the disjunctive, was erroneous. The judgment, therefore, is reversed.

An erroneous submission to the jury normally requires reversal and remand for a new trial. Griffin, 965 S.W.2d at 461. Generally, addressing other issues raised on appeal is unnecessary. Id. In this case, however, O’Reilly argues that the trial court should have granted its motion for JNOV because none of the three theories of liability were supported by substantial evidence. Consequently, O’Reilly’s contention that Mr. Deckard also failed to make a submissible case on his claims that it communicated a defamatory statement to Joe Barger and to Jami Crouch must be considered. Id. at 461-462.

B. Communications to Joe Barger and Jami Crouch

O’Reilly contends that insufficient evidence was presented to submit to the jury Mr. Deckard’s claims that it communicated defamatory statements about Mr. Deckard to Joe Barger, a customer of O’Reilly, and to Jami Crouch, an employee. Specifically, O’Reilly argues that Mr. Deckard failed to present substantial evidence that (1) O’Reilly’s statement to Mr. Barger was false and defamatory, (2) O’Reilly acted with the requisite degree of fault in making its statements to Mr. Barger and Ms. Crouch, and (3) O’Reilly’s statement to Ms. Crouch caused damage to Mr. Deckard’s reputation.

First, O’Reilly claims that insufficient evidence was presented that it made a false, defamatory statement to Joe Barger, the customer on whose account the fraudulent sale had been processed. Mr. Barger gave the following testimony at trial regarding the conversation he had with Kevin Greven and Earl Kaltenbach of O’Reilly. Q: What did they tell you happened?

A: They told me somebody had taken this from our account and that they were going to be investigating to find out what had happened.
Q: And did they come back and tell you what the results of that investigation was at some point in time?
A: Yes, they did.
Q: What did they tell you?
A: The — I think it was about three or four days after they had come down to talk to me about it. They come back down; and the district manager, Earl, had this copy of this invoice with him; and he had brought a credit with this exact amount on it where they had refunded my account. They apologized to me for this, and they told me that they had had this problem and that J.R. had been dismissed.
Q: Did they tell you anything about J.R. being dismissed except that he was gone?
A: No. They just told me that he had been dismissed over it.
Q: Did they tell you that right after they told you that they had gotten the matter resolved and who was making the fraudulent tickets?
A: No. I just took it for granted. They said he had been dismissed. So that’s what I figured it had been.
Q: Did you take it to mean he got fired for stealing?
A: Yes, sir.

O’Reilly argues that the evidence showed only that it reported “cold facts” to Mr. Barger; specifically, that a fraudulent invoice had been written on his account and that Mr. Deckard had been released as a result of the incident. O’Reilly contends that while the information may have lead Mr. Barger to infer that Mr. Deckard was fired for stealing, the statements were not defamatory. O’Reilly’s contention is without merit. As discussed in section IIIA, in determining whether a statement is reasonably capable of a defamatory meaning, the words must be construed in their most innocent sense and considered in context, giving them their plain and ordinary meaning. Nazeri, 860 S.W.2d at 311. An objective reading of the communication between Mr. Kaltenbach and Mr. Barger does not allow the words an innocent meaning. O’Reilly informed Mr. Bar-ger that somebody had taken money from Mr. Barger’s account and that Mr. Deck-ard had been dismissed over the problem. That Mr. Deckard had been fired for stealing was the most obvious and natural interpretation of such communication. O’Reilly’s specific statements that somebody had taken money from Mr. Barger’s account and Mr. Deckard had been dismissed because of the occurrence reasonably conveyed without speculation that Mr. Deckard was fired for theft. O’Reilly’s statements to Mr. Barger, therefore, were reasonably capable of a defamatory meaning. The point is denied.

Next, O’Reilly claims that Mr. Deckard failed to present sufficient evidence that it acted with the requisite degree of fault in making its statements to Mr. Barger and Ms. Crouch. O’Reilly argues that under the evidence, it was reasonable for it to conclude that Mr. Deckard was the thief, therefore, it did not act with fault, much less actual malice, in making the statements that Mr. Deckard was fired for theft.

In a defamation claim where the plaintiff is not a public figure, the requisite degree of fault is negligence. Overcast, 11 S.W.3d at 70; Englezos v. Newspress and Gazette Co., 980 S.W.2d 25, 30 (Mo.App, W.D.1998). However, to overcome a qualified privilege or to recover punitive damages, the plaintiff is required to prove by clear and convincing evidence that the statements were made with actual malice. Overcast, 11 S.W.3d at 70; Rice v. Hodapp, 919 S.W.2d 240, 244 (Mo. banc 1996); Carter v. Willert Home Products, Inc., 714 S.W.2d 506, 512 (Mo. banc 1986)(citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)); Englezos, 980 S.W.2d at 30. Actual malice is proven with evidence that the defendant made the statement with knowledge that it was false or with reckless disregard for whether it was true or false at a time when the defendant has serious doubt as to whether it was true. Overcast, 11 S.W.3d at 70; Rice, 919 S.W.2d at 244; Carter, 714 S.W.2d at 512. A defendant acts with reckless disregard for the truth or falsity when it publishes a defamatory statement with a high degree of awareness of the probable falsity of the statement. Wright v. Over-The-Road and City Transfer Drivers, Helpers, Dockmen and Warehousemen, 945 S.W.2d 481, 497 (Mo.App. W.D.1997).

In this case, sufficient evidence was presented to support submission of the claims that O’Reilly acted with actual malice in making its defamatory statements to Mr. Barger and Ms. Crouch. Specifically, substantial evidence was offered at trial that Earl Kaltenbach, the district manager, and Kevin Greven, the store manager, made the statements that Mr. Deckard was fired for theft at a time when they knew either that the statements were false or, at least, when they had a high degree of awareness of their probable falsity. The evidence, when viewed in a light most favorable to the submission of the claims, revealed that when the statements were made, O’Reilly did not know who committed the theft and that Mr. Deckard was fired for loss of confidence, not theft. Bruce Dowell, O’Reilly’s loss prevention auditor, testified that as part of his investigation of the theft, he filed a blind complaint with the police department on the day after he suspended Mr. Deck-ard indefinitely without pay. Initially, Mr. Dowell denied that the reason he filed a blind complaint was because he did not know who made the fraudulent tickets. However, Mr. Dowell was impeached with his testimony from a prior hearing where he admitted that he filed the blind complaint because he honestly did not know who committed the theft. Furthermore, Mr. Deckard testified that Mr. Dowell told him that he was fired for loss of confidence. Mr. Dowell confirmed that Mr. Deckard was fired for loss of confidence, and not for theft, in his own testimony. The following exchange then occurred:

Q: Mr. Dowell, your testimony was Mr. Deckard was not fired for theft, is that correct?
A: Yes.
Q: So if anybody was told he was fired for theft that was a he? If a customer, for example, was told he was fired for theft that would be a lie?
A: Yes.
Q: And if any of the other employees in the store were told that he was fired for theft that would be a lie?
A: Yes.

Yet, despite the facts that O’Reilly did not know who committed the theft and that it fired Mr. Deckard for loss of confidence, Mr. Kaltenbach and Mr. Greven told Mr. Barger and Ms. Crouch, respectively, that Mr. Deckard was fired for theft. Mr. Greven acknowledged at trial that he understood Mr. Deckard was fired for loss of confidence, not for theft. Evidence was also offered that Mr. Kaltenbach also knew the reason for Mr. Deckard’s termination. As district manager, Mr. Kaltenbach’s duties included overseeing the operation of the individual stores and handling problems that arose with employees or customers. The evidence revealed that Mr. Kal-tenbach was involved with every aspect of the incident involving Mr. Deckard and that Mr. Dowell discussed the suspension and firing of Mr. Deckard with Mr. Kal-tenbach. Such evidence indicated that Mr. Kaltenbach and Mr. Greven made the defamatory statements about Mr. Deckard at a time when they knew the statements to be false or, at the very least, when they did not know whether the statements were true. Mr. Deckard, therefore, made a sub-missible case of actual malice to defeat or overcome the qualified privilege that existed regarding O’Reilly’s communications to Mr. Barger and Ms. Crouch. The point is denied.

Finally, O’Reilly contends that insufficient evidence was presented that its Communication to Ms. Crouch damaged Mr. Deckard’s reputation. It initially claims that the record supports the conclusion that Ms. Couch did not consider Mr. Deckard’s reputation to have been damaged as evidenced by their continuing friendship. While Ms. Crouch did testify that she and Mr. Deckard remained friends after he was fired, she also testified about Mr. Deckard’s overall reputation in the community before and after he was fired. After stating that prior to being fired, Mr. Deckard had a good reputation, Ms. Crouch testified as follows:

Q: What was it after he was fired from O’Reilly’s?
A: A lot of questions on whether it was good or bad. I mean, there was a lot of doubt.

Such evidence implied not only that O’Reilly’s statement that Mr. Deckard was fired for theft had become common knowledge within the community, but also indicated that Ms. Crouch was aware of a decline in Mr. Deckard’s reputation within the community. Nazeri, 860 S.W.2d at 314; Balderree v. Beeman, 837 S.W.2d 309, 325 (Mo.App. S.D.1992). Sufficient evidence was, therefore, presented that O’Reilly’s communication to Ms. Crouch damaged Mr. Deckard’s reputation.

Next, O’Reilly argues that even if sufficient evidence was presented that Mr. Deckard’s reputation had been damaged, Ms. Crouch first learned that Mr. Deckard was fired for theft from Mr. Deckard himself, thus breaking any causal connection between O’Reilly’s statement to Ms. Crouch and damage to Mr. Deckard’s reputation. The record, however, refutes this argument. The record reveals that although Mr. Deckard told Ms. Crouch on the evening of January 30 that O’Reilly “had accused him of making a ticket and taking money for it,” that he did not do it, and that he was suspended until further notice, Ms. Crouch first learned that Mr. Deckard had been fired for theft the next morning when Kevin Greven, the store manager, told her and another employee that Mr. Deckard “would no longer be with us because he had been making false tickets and stealing money.” The evidence suggests that a nexus existed between O’Reilly’s statement and the damages claimed. Mr. Deckard, therefore, made a submissible case that O’Reilly’s communication to Ms. Crouch damaged his reputation. The point is denied.

IV. Conclusion

In conclusion, O’Reilly’s communications to Joe Barger and Jami Crouch were qual-ifiedly privileged; therefore, verdict directing instructions based on MAI 5 th 23.10(2) and the corresponding burden of proof instructions based on MAI 5th 3.05 should have been submitted with regard to those communications. Additionally, Mr. Deckard presented sufficient evidence to support his defamation claims regarding O’Reilly’s communication to Mr. Barger and Ms. Crouch. Mr. Deckard’s claim that O’Reilly communicated a defamatory statement about him to Scott Anderson, however, was not supported by substantial evidence. Because the verdict directing instruction submitted Mr. Deckard’s three theories of liability in the disjunctive, the trial court erred in giving the instruction. The judgment is, therefore, reversed, and the case is remanded for a new trial.

LOWENSTEIN, P.J. and HOLLIGER, J. concur.

      . It appears the charge sale invoice was created to balance out the two cash refund invoices.

      . Because employees of O’Reilly received a commission on sales they made, the employees knew each other’s counter number in case they had to ring up another employee’s sale. An employee, however, was not to use another employee’s counter number on a return.

      . Because it is held in section IIIA below that Mr. Deckard failed to make a submissible case on his claim that O'Reilly communicated a defamatory statement to Scott Anderson, O'Reilly’s claim under this point that the communication to Scott Anderson was qualifiedly privileged is not addressed.

      . Evidence was offered at trial that O'Reilly filed a “blind” complaint with the police because it did not know who committed the theft.

      . Clear and convincing evidence is evidence that instantly tilts the scales in the affirmative when weighed against the evidence in opposition and that causes the fact finder to have an abiding conviction that the evidence is true. Lopez-Vizcaino v. Action Bail Bonds, Inc., 3 S.W.3d 891, 893 (Mo.App. W.D.1999).

      . O’Reilly did not assert at trial or in its points relied on in this appeal that Mr. Kal-tenbach or Mr. Greven were not acting within the scope of employment when they made the defamatory statements about Mr. Deckard. See Carter, 714 S.W.2d at 511 (holding that an employer is liable for the defamatory statement of an employee if the employee was in the scope and course of employment when publication of the statement occurred).

      . O’Reilly’s remaining points on appeal are not addressed.


source: Caselaw Access Project

author: GARY M. GAERTNER, Presiding Judge.

license: Public Domain

text:
    Kembert THOMAS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 77241.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 1, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellant, Kembert Thomas, (“appellant”), appeals the judgment of the Circuit Court of the City of St. Louis dismissing his Rule 29.15 motion for postconviction relief as untimely. We affirm.

Appellant was convicted of murder in the second degree, section 565.021, RSMo 1994, and armed criminal action, section 571.015. This court affirmed the judgment of conviction and sentence of two consecutive life sentences. State v. Thomas, 991 S.W.2d 191 (Mo.App. E.D.1999). Our mandate was issued on June 7,1999.

Appellant filed a pro se Rule 29.15 motion for postconviction relief, which was stamped received by the Clerk of the Circuit Court on September 8, 1999, ninety-one days after our mandate from direct appeal was issued. On September 17, 1999, appellant was appointed counsel by the motion court. On September 21, 1999, the state filed a motion to dismiss appellant’s pro se Rule 29.15 motion for being untimely filed. On September 24, 1999, appellant’s appointed counsel filed both a request for additional time to file an amended motion and suggestions in opposition to the state’s motion to dismiss. On September 25, 1999, the motion court granted appellant’s request for additional time to file an amended motion. On November 9, 1999, the motion court issued an order and judgment dismissing appellant’s Rule 29.15 motion for being untimely filed.

Appellant raises four points on appeal. In his first point, appellant alleges the trial court lacked jurisdiction to sentence and convict him. In his second point, appellant alleges the motion court erred in denying his allegation that both trial and appellate counsel were ineffective for failing to raise his jurisdictional argument. In his third point, appellant alleges the motion court erred by failing to apply the “mailbox” rule in determining the timeliness of his Rule 29.15 motion. In his fourth claim, appellant challenges the constitutionality of the time limits imposed by Rule 29.15. Appellant’s appeal can be resolved on the issue of whether the motion court clearly erred by dismissing appellant’s Rule 29.15 motion as untimely; therefore, we address this issue first.

Appellate review of the denial of a postconviction motion is limited to the determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. State v. Tokar, 918 S.W.2d 753, 761 (Mo.banc 1996); Rule 29.15(k).

Rule 29.15(b) states, in pertinent part:
If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within ninety days after the date the mandate of the appellate court is issued.

“A post-conviction [sic] motion is considered filed when deposited with the circuit court clerk,” Lewis v. State, 845 S.W.2d 137, 138 (Mo.App. W.D.1993), not when the motion is mailed. Day v. State, 864 S.W.2d 24, 25 (Mo.App. S.D.1993). “Missouri courts have repeatedly held that the time limits of Rule 29.15 are valid and mandatory.” State v. Ricker, 936 S.W.2d 167, 173 (Mo.App. W.D.1996). “The appellate courts of this state have historically rejected applying the mailbox rule to the filing of postconviction relief motions.” Stidham v. State, 963 S.W.2d 351, 353 (Mo.App. W.D.1998); See also State v. Collier, 918 S.W.2d 354, 356 (Mo.App. W.D.1996). “An untimely pro se motion for postconviction relief is a fatal defect which cannot be cured by a timely amended motion.” Morgan v. State, 8 S.W.3d 151, 153 (Mo.App. S.D.1999); See also Stidham, 963 S.W.2d at 353; Leatherwood v. State, 898 S.W.2d 109, 112 (Mo.App. S.D.1995). An appellant’s failure to plead and prove a timely postconviction motion constitutes waiver of any right to proceed. Forister v. State, 991 S.W.2d 159, 160 (Mo.App. E.D.1999). The Missouri Supreme Court has held the time limits imposed by Rule 29.15 are constitutional. State v. Simmons, 955 S.W.2d 752, 771 (Mo.banc 1997); State v. Roll, 942 S.W.2d 370, 374 (Mo.banc 1997).

Appellant does not dispute his pro se Rule 29.15 motion was filed untimely. Appellant does not point to any specific mistake or wrongdoing on the part of a third party which prohibited his pro se Rule 29.15 motion from being timely filed. Instead, appellant prays for implementation of the “mailbox” rule and challenges the constitutionality of Rule 29.15. In light of the well-settled law of Missouri, we find these claims are without merit.

Additionally, appellant argues he was not given the proper time by the motion court to amend his pro se Rule 29.15 motion. However, his untimely filed pro se Rule 29.15 motion was a fatal defect which could not have been cured by an amended motion. Therefore, the motion court was not clearly erroneous in dismissing appellant’s pro se Rule 29.15 motion for being untimely filed.

Since our review is limited to the determination of whether the motion court was clearly erroneous in dismissing appellant’s pro se Rule 29.15 motion, we are without jurisdiction to review appellant’s other two points on appeal.

Based on the foregoing, we affirm the dismissal of appellant’s Rule 29.15 motion by the motion court.

PAUL J. SIMON, J., and JAMES R. DOWD, J., concur.

      . All statutory references are to RSMo 1994.

      . The ninetieth day was actually September 5, 1999, which fell on a Sunday. September 6, 1999 was a legal holiday (Labor Day). Therefore, pursuant to Rule 44.01, the actual due date of appellant’s Rule 29.15 motion was September 7, 1999. Regardless, appellant was one day late for timely filing of his Rule 29.15 motion.


author: EDWIN H. SMITH, Judge. PATRICIA BRECKENRIDGE, Judge,

text:
    Lloyd HUBBARD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 57484.
    Missouri Court of Appeals, Western District.
    Aug. 1, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Susan K. Glass, Asst. Attys. Gen., Jefferson City, for Respondent.
    Before: BRECKENRIDGE, P.J., and SMART and EDWIN H. SMITH, JJ.
   EDWIN H. SMITH, Judge.

Lloyd Hubbard appeals from the motion court’s order denying his Rule 24.035 motion for post-conviction relief after an evi-dentiary hearing. The appellant pled guilty, pursuant to a plea agreement, in the Circuit Court of Clay County, before the Honorable Michael J. Maloney, to assault of a law enforcement officer in the first degree, § 565.081, and armed criminal action, § 571.015. As a result of his convictions, he was sentenced, as a persistent offender, § 558.016, to consecutive terms of imprisonment of twenty years, to be served consecutive to a prison sentence he was serving on an unrelated charge.

The appellant raises two points on appeal. In Point I, he claims that the motion court erred in denying his Rule 24.035 motion because its finding that he was competent to plead guilty, and thus, his pleas were voluntary, was clearly erroneous in that: (1) “the court’s competency determination was based on incorrect and unreliable testimony provided by the state’s expert”; and (2) “the court placed undue emphasis on Hubbard’s demeanor at the plea and sentencing proceedings.” In Point II, he claims that the motion court erred in denying his Rule 24.035 motion- because he received ineffective assistance of counsel in that his plea counsel failed to adequately investigate and determine his competency to plead guilty and allowed him to plead guilty, although he doubted his competency to do so.

We affirm.

Facts

Pleas of Guilty

On April 24, 1996, an indictment was returned by a Clay County grand jury charging the appellant with three counts of assault of a law enforcement officer in the first degree, § 565.081, and three counts of armed criminal action, § 571.015. On July 18, 1996, the appellant’s defense counsel, Bert Godding, filed a motion for a psychiatric examination of the appellant, pursuant to §§ 552.020 and 552.030, which was granted on July 31,1996.

On September 13, 1996, Dr. Deja Suthi-kant of the Missouri Department of Mental Health met with the appellant for approximately one hour and forty minutes at the St. Joseph State Hospital for purposes of evaluating him. In his report to the court following the examination, he diagnosed the appellant with antisocial personality disorder, depressive disorder not otherwise specified, and polysubstance abuse, but concluded that “none of these mental disorders fall within the meaning of mental illness as described in Chapter 552 and Chapter 630, RSMo.” He also found that the appellant had a seizure disorder and was malingering. He concluded that the appellant had the capacity to understand the proceedings against him and assist in his own defense. On September 18, 1996, the appellant’s counsel submitted to Dr. Suthikant a completed questionnaire provided by him, as well as release forms for the appellant’s medical records at St. Joseph State Hospital, Truman Medical Center, Children’s Mercy Hospital, and Fulton Diagnostic Center. Dr. Suthikant’s report of the appellant’s psychiatric examination was filed with the court on September 25, 1996.

On October 11, 1996, the appellant’s counsel filed an “Objection to Findings Made Pursuant to Mental Examination and Motion for Re-Examination” alleging that Dr. Suthikant’s “mental examination was completed without any records from the hospitalizations defendant had at Truman Medical Center, Children’s Mercy Hospital, Fulton Diagnostic Center, and St. Joseph State Hospital.” He requested that a second psychiatric examination be performed by the “Department of Mental Health ... and/or a private psychiatrist.” On October 24, 1996, the trial court entered an “Order for Completion of Mental Examination,” ordering that “the Department of Mental Health’s designee or Dr. Suthikant review and examine defendant’s hospitalization records and file a completed report as to the findings.”

On or about January 3, 1997, Dr. Suthi-kant sent a letter to the court indicating that he had reviewed the appellant’s records from Children’s Mercy Hospital and St. Joseph State Hospital. He reported that, based on these records, “there were no indications that [the appellant] had exhibited any psychotic symptoms at the two institutions.... As a matter of fact, the records from Youth Center of St. Joseph State Hospital confirmed our primary diagnosis that he had Antisocial Personality Disorder.” He concluded again that the appellant “didn’t talk like a psychotic person, he did not act like a psychotic person, and he didn’t look like a psychotic person. Therefore, the only probable diagnosis is malingering.”

On January 15, 1997, the trial court, the Honorable Michael J. Maloney, held a competency hearing. At the hearing, Dr. Suthikant was the only witness called. He testified that the appellant, in his opinion, was not suffering from a mental disease or defect that prevented him from understanding the nature of the proceedings against him. He further testified that after his initial examination of the appellant and report, he reviewed the appellant’s records and that his review of the records did not change his diagnosis. He testified that the appellant told him that he was epileptic and taking Haldol, Dilantin, and Phenobarbital, which are medications used to treat epilepsy and psychosis. He also testified that he believed the appellant was malingering and that he did not do any psychological testing on the appellant because “it would be wasting the time and money of the state,” in that the appellant would not cooperate. He testified that the appellant was uncooperative in that he did not answer many of the questions and, at times, he would say that he did not know the answer to a question, but if the question were asked again, he would provide some information. The appellant did not present any evidence at the hearing. At the conclusion of the hearing, the trial court found that the appellant did not have “a mental disorder that falls within the meaning of mental illness described in Chapters 552 and 630 of the Revised Statutes of Missouri.” The court further found that the appellant had “the capacity to understand the proceedings against him and to assist in his own defense.” The appellant’s counsel then made an oral motion requesting that a second psychiatric examination of the appellant be done at a time when he was not taking medication, which was denied by the court.

On March 24, 1997, the appellant’s trial counsel filed an “Objection to Findings Made Pursuant to Mental Examination and Motion for Re-Examination.” In the motion, the appellant’s counsel informed the court that sometime after January 15, 1997, the appellant had attempted to commit suicide while in the Clay County jail by swallowing two AA batteries. He also informed the court that records from the Clay County jail indicated that the appellant “was on anti-hallucinatory medication at the time of the examination by Dr. Suthikant.” He further informed the court that the appellant had been transferred from the county jail to the Missouri Department of Corrections on an unrelated charge and that “[t]he Department of Corrections ha[d] since determined that he is in need of psychiatric treatment, and is considering placing the [appellant] in the Farmington facility.” He requested that the court “order further evaluation be done ... by the Department of Mental Health, through its representatives and employees, and/or a private psychiatrist ... or, in the alternative, to allow an independent mental examination to be done on the [appellant].” On April 3, 1997, the trial court held a hearing on the appellant’s motion, after which the court denied it.

At the docket call of the case on June 12, 1997, the appellant’s counsel renewed his March 24, 1997, request for a second mental examination, informing the court that the appellant had been placed in a psychiatric unit at the Farmington Correctional Center (the FCC). The court overruled the motion, after which the appellant’s trial counsel informed the court that the appellant wished to enter pleas of guilty pursuant to a plea agreement.

On June 13, 1997, the appellant, pursuant to a plea agreement, pled guilty to one count of assault of a law enforcement officer in the first degree, § 565.081, and one count of armed criminal action, § 571.015. At the plea hearing, the following exchange occurred between the appellant and the court:

Q. I am required to inquire as to your state of mind. Are you presently under the influence of alcohol or drugs?
A. Just medication that the doctors have got me on.
Q. I want to ask you about medication. I believe from what you’ve just said that you’re not under the influence of any alcohol.
A. No, sir, I’m not.
Q. And you’re not under the influence of any controlled substance?
A. No, sir.
Q. Okay. This medication that you’re taking, what condition does that correct?
A. It keeps me from hallucinating and hearing things.
Q. Okay. When you take the medication, do you take it in the quantity that the doctor has prescribed?
A. Yes, sir.
Q. Do you take the medication at the times the doctor has said for you to take the medication?
A. Yeah.
Q. Does this medication enable you to have a clear mind and think straight and prevent you from having these hallucinations that you’ve mentioned?
A. No, sir. If I don’t take the medicine, I’ll see things and hear things, and my mind won’t be right.
Q. Have you been taking your medication regularly enough so that you’re not affected by that today?
A. Yes, sir.
Q. When you’re taking your medication properly, are you able to make decisions that are intelligent decisions?
A. Yes, sir.
Q. In other words, do you know what you’re doing when you’re taking your medication correctly?
A. Yes, sir.
Q. It’s my belief from what we’ve said so far up to the time we just started talking about this was that you understand my questions as I ask them and you give me a straight answer to everything I ask.
A. Yes, sir.
Q. It seems to me we’re communicating quite well. Do you agree with that?
A. Yes, sir.

The court found that the appellant was “offering his plea voluntarily, that he’s doing it intelligently ... [and] that he knows what he’s doing here today and is doing what he thinks is best for himself.” On July 31, 1997, the court sentenced the appellant, as a persistent offender, to two consecutive terms of imprisonment of twenty years in the Missouri Department of Corrections, to be served consecutive to a term of imprisonment he was serving on an unrelated charge.

Post-Conviction Proceedings

On October 1, 1997, appellant timely filed a pro se Rule 24.035 motion to vacate, set aside, or correct judgment and sentence. On May 11, 1998, appointed counsel filed an amended Rule 24.035 motion, alleging, inter alia, that the appellant was denied due process of law because he was “not competent at the time of the plea.” He also claimed that he received ineffective assistance of plea counsel because his counsel

failed to adequately investigate [the appellant’s] mental health status before the guilty plea. Plea counsel failed to have an independent expert examine [the appellant] to determine if he was competent at the time of the offense and competent to plead guilty. Plea counsel was ineffective for allowing [the appellant] to plead guilty despite the fact that he doubted, or should have doubted, [the appellant’s] competency to plead guilty.

On January 9,1999, an evidentiary hearing on the appellant’s motion was held before the Honorable Michael J. Maloney. At the hearing, the appellant’s motion counsel introduced into evidence his medical records from the Clay County jail. These records indicated that on May 28, 1996, the appellant reported “periods of loss of consciousness resembling seizure disorder” and said that it had happened two times since his admission. On August 8, 1996, the appellant appeared “withdrawn, suspicious, reports paranoid delusions of control (‘things crawling in my head trying to control me’) — no hallucinations reported but are suspected.” The appellant was prescribed Mellaril, an anti-psychotic medication. The records also indicate that on October 17, 1996, the appellant was “disoriented, having auditory and tactile hallucinations Voices want to get me and take my brain away’ ‘things (bugs) crawling in my head.’ Withdrawn, little contact.” A consultation by Dr. Daniel Ward, a consulting psychiatrist for the Clay County jail, was ordered. The records indicate that Dr. Ward examined the appellant on October 19,1996. Dr. Ward’s notes indicate that the appellant was hallucinating and reported that he had bugs crawling on him and in his head and was hearing voices inside his head. According to Dr. Ward’s notes, the appellant appeared confused and was slow in his responses to questions and frequently gave no responses. Dr. Ward diagnosed the appellant as having an organic mental disorder or chronic schizophrenia and discontinued his use of Mellaril, prescribing Hal-dol, another anti-psychotic medication.

The appellant’s motion counsel also introduced into evidence at the evidentiary hearing his records from the Missouri Department of Corrections. They indicated that the appellant was transferred from the Clay County jail to the Fulton Reception and Diagnostic Center (the FRDC) on or about February 6, 1997, and that upon his arrival he was “virtually non-responsive” and “placed on suicide watch.” The records also indicate that on or about February 11, 1997, he reported that he had a history of “hallucinations where he ‘sees and hears violent stuff with black guys,— people burning.’ Also hears laughter and voices that want him to go with them.” The records further indicate that sometime shortly after his arrival at the FRDC, he was examined by Dr. Z. Ajans, a consulting psychiatrist. The appellant reported active hallucinations to Dr. Ajans. Dr. Ajans found that he had “limited cognitive functioning and appeared to be disoriented to his location, current date and time,” and “his insight and judgment were impaired.” He diagnosed him as having an “Organic Mental Disorder with hallucinations and explosive outbursts,” increased his dosage of Haldol, and referred him to the Social Rehabilitation Unit in the FCC for closer supervision and treatment.

The appellant’s records from the Missouri Department of Corrections indicate that he was admitted to the Social Rehabilitation Unit in the FCC on February 15, 1997, where a clinical caseworker assistant evaluated him. She reported that he was “cooperative during the intake interview, but appeared to have difficulty concentrating by the display of delayed responses.” He reported to her that he “ ‘used to see demons, real evil looking ... They try to hurt me ... They get inside of me, then I cry and get violent.’ ” She noted that he appeared to “legitimately be suffering from a chronic mental health condition.”

Dr. Delaney Dean, a licensed psychologist and an attorney, testified at the motion hearing that she examined the appellant on April 30, 1998, at the request of motion counsel at the FCC for three hours and fifteen minutes. She testified that the appellant was easily distracted and intermittently scanned the small examination room because it seemed to him that someone was trying to sneak up on him. He reported to Dr. Dean that he experienced hallucinations, heard voices that told him they were going to hurt him, and felt bugs crawling in his head. She testified that his strategy for dealing with the hallucinations, not sleeping at night when they were worse, was atypical of malingering.

Dr. Dean testified that she performed several psychological tests on the appellant and that, based on his overall performance on these tests, she concluded that he was paranoid and “certainly suffering from serious mental illness.” When asked for her diagnosis of the appellant, she testified that the most likely diagnosis was paranoid schizophrenia, but that he could have a “psychotic disorder due to a general medical condition ... or some other type of brain damage,” which could be checked with a neurological examination. However, she also testified that he had a very severe mental defect “within the meaning of the law” and that at the time he pleaded guilty, he was not competent to do so, did not have the ability to consult with his counsel with a reasonable degree of rational understanding, and did not have a rational or factual understanding of the proceedings against him.

The appellant’s plea counsel testified at the hearing that he visited the appellant numerous times at the Clay County jail while his case was pending and that during his visits, he was led to believe that the appellant had a mental illness. He testified that on several occasions the appellant was “zoned out” and would stare at the table and not respond to his questions. He also testified that the appellant had informed him that he suffered from epilepsy. He testified that he was led to believe that the appellant suffered from “an ongoing mental condition that needed to be addressed” after he learned that on or about February 7, 1997, he attempted to commit suicide by swallowing two AA batteries and smeared feces on himself and the walls. He testified that he had lingering doubts about the appellant’s mental condition on June 12, 1997, when he orally renewed his motion for a second mental examination.

The appellant’s plea counsel also testified that he did not secure a second independent mental examination of the appellant because he was not aware at that time that the Office of the State Public Defender would cover the expense of getting an independent mental examination and had he been aware of that policy, he would have gotten a second examination. He also testified that he was not aware of the existence of the appellant’s records from the Clay County jail until after he pled guilty and was sentenced and had he known of their existence, he would have wanted to interview Dr. Ward and call him as a witness at the appellant’s competency hearing on January 15, 1997. He admitted that the appellant told him that he was seen by Dr. Ward at the jail and had been prescribed medication, but that he did not take any action to interview Dr. Ward. He further testified that he was not aware, prior to the appellant entering his guilty pleas, of the existence of Dr. Ajans’s report following his examination of the appellant in February 1997. He stated that even though the examination and report were completed after the appellant’s competency hearing on January 15, 1997, the report contained information that he would have wanted to present to the trial court before the appellant entered his guilty pleas. His plea counsel also admitted that while he was aware in May 1997 that the appellant had been transferred to the FCC, he did not attempt to get copies of the appellant’s records from there because by the time he had been admitted there, his competency hearing had already been completed. Following the appellant’s plea counsel’s testimony, the case was continued to April 23,1999.

On April 23, 1999, the State called Dr. Suthikant to testify. His testimony at the hearing was consistent with his earlier report and testimony at the appellant’s competency hearing on January 15, 1997, finding that he was competent to proceed. The court took the appellant’s Rule 24.035 motion under advisement. On July 1, 1999, the motion court issued its findings of fact and conclusions of law and entered its order denying the appellant’s motion.

This appeal follows.

Standard of Review

Our review of the denial of a Rule 24.035 motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Rule 24.035(k); Reynolds v. State, 994 S.W.2d 944, 945 (Mo. banc 1999), cert. denied, 528 U.S. 1120, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). Findings and conclusions are clearly erroneous only if, after review of the entire record, we are left with a definite and firm impression that a mistake has been made. Reynolds, 994 S.W.2d at 945.

I.

In Point I, the appellant claims that the motion court erred in denying his Rule 24.035 motion for post-conviction relief because its finding that he was competent to plead guilty, and thus, his pleas were voluntary, was clearly erroneous in that: (1) “the court’s competency determination was based on incorrect and unreliable testimony provided by the state’s expert”; and (2) “the court placed undue emphasis on Hubbard’s demeanor at the plea and sentencing proceedings.” As to the appellant’s claim, the motion court found that:

Movant claims he was incompetent at the time of his plea and that acceptance of a plea from an incompetent person violates Section 552.020 of our statutes, which prohibits the trial, conviction or sentence of any person who as the result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense.
The evidence that Movant had no mental disease or defect which caused him to lack the necessary capacity is persuasive. The evidence to the contrary is not. The Court has the benefit of the record made at the time of the plea and sentence, as well as the benefit [o]f being a participant in making the record in the first instance. Nothing about the Movant’s demeanor, mannerisms, or way of responding to questions or statements raised any suspicion of incompetency to proceed. It is found that Movant did not lack the necessary capacity when he pleaded guilty and when he was sentenced.
The court finds that Movant was competent at the time of his plea. He had a mental disease or defect, but this mental disease or defect did not cause him to lack the capacity to understand the proceedings against him or to be unable to assist in his own defense.

For the reasons discussed, infra, we cannot say that these findings are clearly erroneous.

“Due process requires that a person who wishes to plead guilty must be competent to do so and must enter the plea knowingly and voluntarily.” State v. Shafer, 969 S.W.2d 719, 731 (Mo.banc 1998), cert. denied, 525 U.S. 969, 119 S.Ct. 419, 142 L.Ed.2d 340 (1998). See also State v. Tilden, 988 S.W.2d 568, 577 (Mo.App.1999) (holding that “[i]t is a violation of a defendant’s due process right to a fair trial to convict and sentence him while he is legally incompetent”). This is so in that “a guilty plea is a waiver of several constitutional rights,” Shafer, 969 S.W.2d at 731, and “‘it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive” his right[s]Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir.1990) (quoting Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815, 821 (1966)).

“The suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial [or plead guilty].” Henderson v. State, 977 S.W.2d 508, 511 (Mo.App.1998). “In fact, an accused may be mentally retarded in some degree and still be competent to stand trial or enter a knowing, intelligent plea of guilty.” Id.; State v. Frezzell, 958 S.W.2d 101, 104 (Mo.App.1998). “The test for competency is ‘whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding^] and whether he has a rational as well as [a] factual understanding of the proceedings against him.’ ” Woods v. State, 994 S.W.2d 32, 36 (Mo.App.1999) (quoting State v. Vansandts, 540 S.W.2d 192, 202 (Mo.App.1976)). In this respect, § 552.020.1 provides that “[n]o person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.”

In this point, the appellant is attacking the sufficiency of the evidence to support the motion court’s finding that he was competent to plead guilty and as such, that his plea was voluntary. Specifically, he is contending that in determining his competency to plead, the court should not have relied on the testimony of the State’s expert witness, Dr. Suthikant, and should have given little weight, if any, to his responses and demeanor at the plea and sentencing proceedings. We disagree.

A. Court’s Reliance on Testimony of State’s Expert

It is well settled in the, law that we are to pay deference to the motion court’s superior opportunity to judge a witness’s credibility. Perry v. State, 11 S.W.3d 854, 858 (Mo.App.2000); Jenkins v. State, 9 S.W.3d 705, 707 (Mo.App.1999). The court is free to believe or disbelieve the testimony of any witness, even if un-contradicted. Colbert v. State, 7 S.W.3d 471, 474 (Mo.App.1999). Here, the record reflects that the motion court, as well as the plea court, which were the same, found Dr. Suthikant’s testimony to be credible and never wavered from its reliance on the same in finding the appellant competent to proceed. The appellant contends that it did in that after the competency hearing it agreed with Dr. Suthikant that the appellant was not suffering from a mental disease or defect and was a malingerer, and after the motion hearing, it found to the contrary. From this, he contends that because the court had rejected Dr. Suthi-kant’s findings, it necessarily had accepted the appellant’s evidence to the contrary, such that, other than the court’s personal observations, which according to him were not sufficient on which to base a finding of competency, the court lacked the required evidence on which to base a finding of competency. The record does not support such a contention.

After the competency hearing, the court found: “I find on the basis of the evidence that the Defendant does not have a mental disorder that falls within the meaning of mental illness described in Chapters 552 and 630 of the Revised Statutes of Missouri.” (Emphasis added.) Any fair reading of this finding makes it clear that the court was not finding that the appellant did not have a mental disease or defect, but only that he did not have a mental disorder that fell within the definition of mental illness as defined in Chapter 552. This was consistent with Dr. Suthi-kant’s report which stated, in pertinent part: “It is the opinion of these examiners that the accused has a mental disorder of Antisocial Personality Disorder, Depressive Disorder NOS, and Polysubstance Abuse but none of those mental disorders fall within the meaning of mental illness as described in Chapter 552 and Chapter 630, RSMo.” After the motion hearing, the court found:

The court finds that Movant was competent at the time of his plea. He had a mental disease or defect, but this mental disease or defect did not cause him to lack the capacity to understand the proceedings against him or to be unable to assist in his own defense.

We fail to see how this finding is contrary to the court’s finding after the competency hearing or the finding of Dr. Suthikant throughout, that the appellant was competent to proceed. As such, contrary to the appellant’s contention, it is clear from the record that the motion court, as did the plea court, relied on Dr. Suthikant’s findings in determining that the appellant was competent to proceed.

The appellant makes several additional arguments as to why the court below was in error in relying on Dr. Suthikant’s testimony and findings: (1) that he only spent one hour and forty minutes with him, as opposed to the appellant’s expert, who spent three hours and fifteen minutes; (2) that information provided to the court about the appellant’s medical records not reflecting that he had sustained a head injury when he was a boy was misleading; and (3) that his evaluation was not thorough because he did not verify the medications the appellant was taking, he did not perform any psychological testing, and he discounted the appellant’s past seizures. As to the time spent with the appellant, we find no basis for concluding that one hour and forty minutes was, per se, insufficient. As to providing misleading information regarding a past “head injury,” even assuming that this was the case, this would only go to the weight of the evidence when viewed in light of all the evidence in the record, which the appellant concedes included the records which indicated that he had hit his head when he was two and four, causing him to lose consciousness. Dr. Suthikant testified at the motion hearing that he did not consider this medically as a “head injury.” The motion court had before it all this evidence. In any event, we cannot say that this factor should have reasonably caused the court to totally disregard all of Dr. Suthikant’s findings. Finally, as to the thoroughness of Dr. Suthi-kant’s examination, the appellant was free to argue that point at the hearing, which he did, and the court was free to give this argument the weight it felt was warranted. Much of this argument centered around what the appellant’s expert thought was required to adequately evaluate him as opposed to what Dr. Suthikant thought was necessary, which was a matter for resolution by the motion court.

When reduced to its essence, the appellant’s argument is nothing more than his disbelief as to how Dr. Suthikant reached his determination that the appellant was competent to proceed in light of the records brought to light before the motion court. In this regard, he points out the fact that the records showed that he had been committed to the state hospital when he was younger and was prescribed an anti-psychotic drug. Although the psychiatrist who recommended that he be committed described him as “borderline psychotic,” when he was discharged there was no evidence found of psychosis. He also points to the jail and prison records which indicated that he suffered from seizures and hallucinations and had been diagnosed as having an “organic mental disorder” or “chronic schizophrenia” requiring medication. He further points to bizarre behavior while incarcerated, such as swallowing batteries and smearing feces on himself. Finally, he champions his expert’s testimony that he was not competent to proceed because he suffered from paranoid schizophrenia.

Accepting the fact that the appellant’s evidence was contradictory to that of the State, this is not a sufficient basis for us to determine that the motion court erred in finding that the evidence would support a finding of competency. Even accepting the appellant’s evidence that he suffered from a mental disorder, including paranoid schizophrenia, does not mean he was incompetent to proceed. In State v. Jaynes, 949 S.W.2d 633 (Mo.App.1997), the Eastern District of this court affirmed the trial court’s determination of competency despite the finding by the court that:

Defendant suffers from a mental disease, namely delusional disorder (paranoid/persecutory). She is actively psychotic, and is medicated with an anti-psychotic drug, Mellaril. However, she does not lack the capacity to understand the proceedings against her and is currently capable of assisting in her own defense.
Therefore, the Court finds that Defendant is competent to proceed.

Id. at 637. There, the State’s expert testified that:

he had reviewed Defendant’s medical records and found that Defendant had three other diagnoses of mental disease. He agreed that Defendant suffered] from a delusional disorder of the perse-cutorial type, which was not curable but treatable and controllable through anti-psychotic medication. He further testified that Defendant had an excellent understanding of the charges - against her, as well as her plea bargain options, the range of punishment, and the fact that she would not have to testify.

Id. at 637-38. The Jaynes court, in affirming the trial court’s determination of competency, held: “Although there was conflicting evidence regarding Defendant’s competency, it is within the trial court’s province to resolve the conflict.” Id. at 638. Stated another way by this court in State v. Frezzell, 958 S.W.2d 101 (Mo.App.1998): “The actual presence of some degree of mental illness or need for treatment does not necessarily equate with incompetency to stand trial.” Id. at 104.

Having reviewed Dr. Suthikant’s report and his testimony in both the competency and motion hearings, when coupled with the motion and plea courts’ observations, which we discuss, infra, we are not firmly convinced that the motion court’s finding of competency was in error.

B. Court’s Reliance on Its Personal Observations

Finally, the appellant contends that the motion court placed undue emphasis on its own personal observations of the appellant’s demeanor at the plea and sentencing proceedings. We disagree.

While a defendant’s demeanor may not be dispositive of his or her competency to stand trial, Bouchillon, 907 F.2d at 593, the court is certainly free to consider demeanor when determining competency and give it the weight it determines is warranted. State v. Wise, 879 S.W.2d 494, 507 (Mo. banc 1994); Wise v. State, 785 S.W.2d 325, 326 (Mo.App.1990); Reynolds v. Norris, 86 F.3d 796, 800 (8th Cir.1996). In this regard, the court found:

The evidence that Movant had no mental disease or defect which caused him to lack the necessary capacity is persuasive. The evidence to the contrary is not. The Court has the benefit of the record made at the time of the plea and sentence, as well as the benefit [o]f being a participant in making the record in the first instance. Nothing about the Movant’s demeanor, mannerisms, or way of responding to questions or statements raised any suspicion of incompetency to proceed. It is found that Movant did not lack the necessary capacity when he pleaded guilty and when he was sentenced.

A thorough reading of the record would substantiate that the appellant appeared to be well aware of the nature of the proceedings and understood the questions being asked by the court. Thus, we cannot say that to the extent the motion court relied on its observations of the appellant at the plea and sentencing proceedings in making its determination of the appellant’s competency, it was error.

For the reasons stated, we find that the evidence was sufficient for the motion court to find that the appellant had “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and ha[d] ‘a rational as well as factual understanding of the proceedings against him,’ ” Wise, 879 S.W.2d at 507 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (1960) (per curiam)), and that its findings and conclusions in this regard, in denying the appellant’s Rule 24.035 motion, were not clearly erroneous. Point denied.

II.

In Point II, the appellant claims that the motion court erred in denying his Rule 24.035 motion because he received ineffective assistance of counsel in that his plea counsel failed to adequately investigate his mental health status, failed to have an independent mental examination performed, and allowed him to plead guilty despite his own doubts about the appellant’s competency to do so. He claims that if his counsel had investigated his mental health status more thoroughly, including obtaining a second mental examination, and presented such evidence to the trial court prior to the time he entered his guilty pleas, the court would have found that he was incompetent to plead guilty and would not have accepted his pleas. As to the appellant’s claim, the motion court found that:

Movant claims that he did not receive the effective assistance of counsel in the proceedings which culminated in a plea bargain, the pleas, and the sentences .... It is claimed that counsel failed to adequately investigate Movant’s mental health status before the guilty plea; that counsel failed to have an independent expert examine Movant to determine if he was competent at the time of the offense and competent to plead guilty; and that counsel allowed Movant to plead guilty when counsel doubted, or had reason to doubt, Movant’s competency to plead guilty.
As to the second factual basis, counsel did fail to use the required skill. It was a rookie mistake, made by a hard working young lawyer dedicated to serving his clients’ interests to the best of his ability. Nevertheless, Movant did not get the representation that is his constitutional right.
The next question is whether Movant was prejudiced by counsel’s lack of awareness. All of the evidence has now been gathered, including the jail records referred to above. The independent mental examination which could have been conducted before the plea or trial has now been conducted. On the basis of the evidence presented in this case, which includes all of the evidence which was, or should have been, submitted in the underlying criminal case, it is found that defendant was competent to plead guilty and to be sentenced. Counsel’s lack of knowledge1 that clients of the Public Defender could have independent mental examinations did not prejudice the movant. The legal conclusion is that Movant must satisfy a two-prong test by showing both a lack of skill and prejudice thereby. The factual finding is that Movant was not prejudiced.

To prevail on a claim of ineffective assistance of counsel, the movant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), requiring proof by a preponderance of the evidence that: (1) his or her counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances; and (2) he or she was prejudiced as a result. Sams v. State, 980 S.W.2d 294, 296 (Mo. banc 1998). If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and the movant’s claim of ineffective assistance of counsel must fail. State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1580, 143 L.Ed.2d 674 (1999). The movant bears the burden of proving his or her grounds for relief by the preponderance of the evidence. Id.; Rule 24.035®. To satisfy the performance prong, the movant must overcome the presumptions that “the challenged action was sound trial strategy” and that counsel “rendered adequate assistance” and “made all significant decisions in the exercise of reasonable professional judgment.” Nunley, 980 S.W.2d at 292.

As to the prejudice prong, where a movant has pleaded guilty the prejudice prong “ ‘focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.’ ” Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985)). Normally to satisfy the prejudice prong in the context of a guilty plea, a movant “must show a reasonable probability that, but for counsel’s unprofessional errors, [he] would not have pleaded guilty and would instead have insisted upon going to trial.” Nunley, 980 S.W.2d at 292. Thus, generally “‘once a plea of guilty has been entered, the effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea.’ ” Redeemer v. State, 979 S.W.2d 565, 569 (Mo.App.1998) (quoting Roland v. State, 824 S.W.2d 526, 529 (Mo.App.1992)). However, a movant’s claim that his or her counsel was ineffective for failing to properly investigate his or her mental health status and present such information to the court “does not lend itself very well to the ‘outcome’ test in Strickland.” Bouchillon, 907 F.2d at 595 n. 20. Since to allow an incompetent person to plead guilty is a per se due process violation, whether an incompetent person would still have pled guilty despite his or her counsel’s ineffective assistance is irrelevant. Id. Instead, in such a situation, “[w]ith respect to the prejudice prong of a claim of ineffective assistance of counsel, [the movant] need only demonstrate a ‘reasonable probability’ that he was incompetent, ‘sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). “This is a lower burden of proof than the preponderance standard.” Id. As such, in the context of a guilty plea where the movant has alleged that he or she was incompetent to plead guilty and his or her counsel was ineffective for failing to adequately investigate his or her mental health status, in determining whether the movant was prejudiced by his or her counsel’s ineffective assistance, the motion court must first determine whether there was a reasonable probability that the movant was incompetent. Id. If the motion court determines that there was not a reasonable probability that the movant was incompetent, the inquiry can proceed to a second level, where the court determines whether the movant, but for his or her counsel’s unprofessional errors, would not have pleaded guilty and would instead have insisted upon going to trial.

In this case, our holding in Point I on the issue of the appellant’s competency to plead guilty disposes of the prejudice prong on his claim of ineffective assistance of counsel. In Point I, we held that the motion court’s finding that the appellant was competent to proceed was not clearly eiToneous. As such, even if the appellant could satisfy the performance prong test by showing that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances when he allowed him to plead guilty despite his doubts as to his competency and failed to adequately investigate his mental health status and have an independent mental examination performed, he was not prejudiced. See Reece v. State, 891 S.W.2d 868, 866 (Mo.App.1995) (holding that where a movant has filed a Rule 24.036 motion for post-conviction relief after pleading guilty, alleging as grounds for relief that he was incompetent to plead guilty and he received ineffective assistance of counsel because his counsel failed to investigate his competency to plead guilty and failed to litigate that issue, the court’s finding that the evidence supported the motion court’s finding that the movant was competent to plead guilty rendered his claim of ineffective assistance of counsel “moot” because he was not prejudiced by any alleged deficient performance on the part of his counsel); Bouchillon, 907 F.2d at 595 (holding that where the petitioner filed a petition for a writ for habeas corpus following guilty pleas alleging that he was incompetent to plead guilty and he received ineffective assistance of counsel because his counsel failed to investigate his competency to plead guilty, in addressing his ineffective assistance of counsel claim, the court’s “ruling on the issue of incompetence in fact [where it found him incompetent to plead guilty] disposes of the prejudice prong of the Strickland test because if [the petitioner] was incompetent his plea was ineffective and he was prejudiced by its entry”). As such, we cannot say that the motion court’s findings and conclusions in denying the appellant’s Rule 24.035 motion as to this claim were clearly erroneous.

Point denied.

Conclusion

The order of the motion court denying the appellant’s Rule 24.035 motion for post-conviction relief, after an evidentiary hearing, is affirmed.

SMART, J., concurs.

BRECKENRIDGE, P.J., dissents in separate opinion.

PATRICIA BRECKENRIDGE, Judge,

dissenting.

I respectfully dissent. The majority correctly states the law governing the determination of a criminal defendant’s competency to stand trial and to enter a plea of guilty. The majority misapplied this law, however, in reaching its conclusion that the motion court’s findings and conclusions were not clearly erroneous and that Mr. Hubbard did not suffer a manifest injustice. To the contrary, the motion court clearly erred in determining that the weight of the evidence supported the motion court’s finding that Mr. Hubbard was competent to proceed and that he was not prejudiced by his defense counsel’s failure to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances.

At the time of his guilty plea, Mr. Hubbard suffered from a chronic mental illness. There was extensive credible evidence that he was actively psychotic throughout the time the criminal charges were pending, and he was determined by a psychologist-attorney at the Missouri Department of Corrections to have a very severe mental defect “within the meaning of the law,” prior to the time he entered his guilty plea. Dr. Suthikant’s testimony that Mr. Hubbard did not have a mental illness and he was a malingerer was rejected by the motion court. Nevertheless, the motion court, and this court in affirming its judgment, finds that Mr. Hubbard’s demeanor at the time he entered his plea of guilty and his responses to questions asked provided sufficient evidence to outweigh the evidence of his active, severe mental illness. I disagree. The weight of the evidence proves that Mr. Hubbard’s mental illness was a mental disorder that falls within the definition of mental illness as defined in Chapter 552. Mr. Hubbard should have been permitted to withdraw his guilty plea because he lacked the mental capacity to understand the proceedings against him and to assist in his defense. Section 552.020.1.

The motion court clearly erred in determining that Mr. Hubbard’s demeanor on the day he entered his guilty plea outweighed the extensive evidence that he was suffering from a chronic mental illness with active hallucinations at the time he entered his guilty plea. Mr. Hubbard will suffer a manifest injustice if he is not allowed to withdraw his guilty plea. The motion court’s judgment should be reversed and the motion court should be directed to order that Mr. Hubbard be allowed to withdraw his guilty plea.

      . All rule references are to the Missouri Rules of Criminal Procedure (1997), unless otherwise indicated.

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . The appellant does not claim on appeal that if this court finds that the motion court's finding that he was competent to plead guilty was not clearly erroneous, then he was still prejudiced by his counsel’s ineffective assistance because but for the ineffectiveness of his counsel, he would not have pleaded guilty and would have/insisted upon going to trial.