author: THOMAS H. NEWTON, Chief Judge.

text:
    Kimberly O’CONNELL, Individually and as Next Friend for David Horton, A Minor Child, Appellant, v. Jon P. HORTON, Respondent.
    No. WD 71056.
    Missouri Court of Appeals, Western District.
    June 15, 2010.

      Brent L. Winterberg, Kansas City, MO, for Appellant.
    Jason A. Davey, Kansas City, MO, for Respondent.
    Before: THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   THOMAS H. NEWTON, Chief Judge.

Ms. Kimberly O’Connell (Mother) appeals the judgment of the trial court modifying a custody arrangement between herself and Mr. Jon Horton (Father). Mother argues that there was insufficient evidence to support the judgment and that the trial court erred in placing a restriction on her parenting time. We affirm as modified herein.

Factual and Procedural Background

Mother and Father were not married; they had a child, E.D.H. (Son), in 1998. Later, Mother married Mr. Timothy O’Connell (Stepfather). Father had a child with Ms. Amy Horton (Stepmother); Father and Stepmother got married. Father subsequently adopted Stepmother’s two children.

Mother and Father submitted a parenting plan concerning Son to a district court in Kansas, which approved it. The plan provided that during the school year Son would reside with Mother and spend most weekends with Father. During the summer, Mother and Father alternated weeks.

Thereafter, Mother and Stepfather had some marital problems; Mother began dating Cody Hines (Boyfriend). Mother became pregnant with Boyfriend’s child. Mother registered the Kansas parenting order in Missouri and filed a motion to modify custody, visitation, and support of Son. Shortly before Mother and Boyfriend’s child was born, Boyfriend moved in with Mother. Stepfather moved to the lower level of the home.

Father filed a motion to modify custody, visitation, and support, contending that modification was necessary because of the changed circumstances of Mother’s new baby and Mother “presently residing with her current husband and a man who is not her husband but is the man she alleges to be the father of her baby.” Mother and Stepfather subsequently filed for divorce, and Stepfather moved out of the home.

A hearing on the motions to modify was held in March 2009. Son was ten years old, received A’s and B’s in school, and played several sports. Father coached his basketball and football teams. According to Stepfather, Son suffered from asthma, allergies, and significant stomach pains for several years that his doctors felt were caused by anxiety. Sometime in 2006 Son began taking medication and in 2008 Son began receiving counseling.

Stepfather and Son had a close relationship; Stepfather, Boyfriend, and Mother testified that Stepfather stayed in the home to maintain Son’s stability. Stepfather and Mother had agreed Stepfather could continue to spend time with Son during Mother’s parenting time. Boyfriend testified that he planned to create a family with Mother and their child but that he and Mother had no current plans to marry. His relationship with Son was “[v]ery good. Still growing and loving.”

Father testified that the relationship between Son and Stepmother’s children was very good; the oldest of her children was eleven at the time of trial. Father stated that he did not see signs of significant sickness in Son and that Son wanted to be a football player. Father further claimed Mother was uninvolved with Son and that Son’s time at Mother’s had been spent primarily with Stepfather. Stepmother testified that Son and her children had a “very good” relationship but that her relationship with Son was “strained slightly because [Mother] does not like me and [Son] knows that.”

The trial court adopted Father’s parenting plan. It included: Father would have sole legal custody, Father’s residence would be designated as Son’s address, Mother and Father would retain joint physical custody but Son would now reside at Father’s house with Mother receiving parenting time every other weekend and on Wednesday nights. The order also contained a “condition” that Mother could not have overnight guests during her parenting time “to whom she is not related by blood or marriage.” Mother appeals, raising four points.

Standard of Review

Our standard of review is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Buschardt v. Jones, 998 S.W.2d 791, 795-96 (Mo.App. W.D. 1999). We affirm the judgment of the trial court “unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. at 796. We assume that the trial court was motivated by the child’s best interests, and we defer to its credibility determinations. Id. We also give the trial court more deference in child custody determinations than in other matters. Id. Consequently, we affirm the trial court’s decision unless we are “firmly convinced that the child’s welfare requires some other disposition.” Id.

Legal Analysis

In the first point, Mother argues the trial court erred in granting Father’s motion to modify because its statutory findings under section 452.375.2 were against the weight of the evidence. Section 452.410 provides that a trial court “shall not modify a prior custody decree unless ... it finds ... that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” Thus, before ordering a modification in custody, the trial court must find a change in circumstances, and determine that modification is in the child’s best interests. Bomar v. Kurtz, 951 S.W.2d 657, 660 (Mo.App. W.D.1997).

Here, the trial court did not specify its finding of “changed circumstances.” Rather, it stated that there had been changed circumstances “as set forth below.” The trial court then looked to section 452.375.2, which directs the court to use all relevant factors in determining the child’s best interests, including:

(1) The wishes of the child’s parents as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community;
(5) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved ....
(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(7) The intention of either parent to relocate his residence outside the state;
(8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent.

Bomar, 951 S.W.2d at 660.

In consideration of these factors, the trial court found Father’s parenting plan to be in the best interests of the child. The trial court stated in its findings that: Father was better able to satisfy Son’s needs for a frequent, continuing, and meaningful relationship with both parents; Mother’s past living situation was “totally inappropriate for [Son]”; “Mother is more willing to allow [Stepfather] to co-parent than she is [Father]”; “[t]here is this unusual and inappropriate relationship ... wherein mother has placed [Stepfather] above [Father] and placed her personal enjoyment above the child’s with her behavior”; “all these circumstances surrounding the mother [are] unsatisfactory for [Son]”; “Mother’s examples to the son are not in the child’s best interests” because “Mother has one child out of wedlock” and a pending dissolution action; Mother’s “living circumstances” were “very inappropriate for this child”; and consequently, “Mother has by her conduct required that father be the residential custodian of this child.”

Based on the factors cited in its judgment, we must infer that the “changed circumstances” found by the trial court were Mother’s divorce, new baby, child’s development of anxiety and depression at Mother’s home, and Boyfriend moving into the home. These findings are sufficient to support a change in circumstances. In reviewing whether modification was necessary to serve Son’s best interests, we agree with Mother that some of the trial court’s statutory findings do not support its conclusions. Specifically, no weight should be accorded to Mother’s pregnancy out-of-wedlock, especially in light of the fact that both Mother and Father had children out-of-wedlock.

However, “[b]ecause the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence,” we affirm the judgment “under any reasonable theory supported by the evidence.” Id. at 659 (internal quotation marks and citation omitted). The record shows that there was evidence to support the trial court’s finding that modification of custody was in Son’s best interest. Son had a very good relationship with his stepsiblings and half-sibling at Father’s home, and the home was a stable and positive environment. Father’s residence contrasted significantly with Mother’s transitional and unstable home situation. Evidence showed that Son’s time in Mother’s household had largely been spent with Stepfather. Further, Son’s anxieties and stresses manifested in Mother’s home; whereas in Father’s home, Son rarely became ill. While the record shows both parents to be concerned and committed to the rearing of Son, we are not firmly convinced that Son’s welfare requires some other disposition. Mother’s first point is denied.

In the second point, Mother contends the trial court erred in modifying custody because there was no nexus shown between her sexual conduct and harm to Son. In her third point, Mother similarly argues that the trial court erred because moral disapproval of co-habitation is insufficient to deprive a parent of custody. She relies on Bomar, which holds that co-habitation cannot serve as the basis for modifying custody unless directly affecting “the physical, mental, economic and social well-being of the child.’ ” Id. at 661 (quoting Humphrey v. Humphrey, 888 S.W.2d 342, 346 (Mo.App. E.D.1994)). We do not address these arguments, however, because absent the trial court’s moral condemnation or approval of Mother’s sexual conduct or co-habitation decisions, as discussed supra, there was sufficient evidence supporting the trial court’s finding of a change of circumstances and that Father’s parenting plan was in Son’s best interests. Points two and three are consequently denied.

In the final point, Mother contends that the trial court erred in ordering a parenting plan that restricted her parenting time because it made no finding that her parenting time endangers Son’s physical health or emotional development. Specifically, in its judgment the trial court declared that: “SPECIAL CONDITIONS: Mother shall not have overnight, adult guests in her home during her periods of parenting to whom she is not related by blood or marriage.”

Section 452.400.2(1) provides that “the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his or her emotional development.” This endangerment-impairment standard requires a greater showing for placing a restriction on visitation than that for a modification of custody: the trial court must “make the finding that the child’s emotional development will be impaired or that the child is in physical danger.” Gould v. Dickens, 143 S.W.3d 639, 643 (Mo.App. E.D.2004). If the trial court fails to make an explicit finding supporting the restriction, we will infer its finding from the restriction placed on the visitation. Id.

At the time of the hearing, residing in Mother’s home were Mother, Boyfriend, new baby, and Son (Stepfather had recently vacated the home). The trial court made no explicit finding that Boyfriend’s presence alone would endanger Son’s physical health or impair his emotional development. Boyfriend is the father of Mother’s baby, and testimony established that Mother and Boyfriend are attempting to build a family. We see no basis in the record for a finding of potential harm to Son from Boyfriend’s presence.

While the trial court disapproved of Mother based on the past living condition of Stepfather and Boyfriend in Mother’s home, “[p]ast conditions are material only to the extent that they clarify and cast light on existing conditions.” Bomar, 951 S.W.2d at 662 (internal quotation marks and citation omitted). Moreover, moral misconduct is not the issue, but whether the conduct is detrimental to the child’s welfare. Gould, 143 S.W.3d at 643. Absent any showing of harm, the trial court’s own moral judgment of either past or present conditions cannot serve as the basis for the restriction. See id.

Because the record does not support that future danger to Son’s physical health or emotional development required a restriction in Mother’s parenting time, the trial court abused its discretion. Mother’s fourth point is granted.

Conclusion

The trial court’s judgment is amended to strike the entry of the “special condition.” See Rule 84.14. We affirm the judgment in all other respects.

WELSH and WITT, JJ., concur.

      . There was dispute at trial whether the plan offered by Mother was complete or accurate. However, no other plan was provided as evidence by Father.

      . All statutory references are to RSMo 2000 and the Cumulative Supplement 2009.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James HAMILTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93868.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Terrence M. Messonnier, Jefferson City, MO, for Respondent.

      Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

James H. Hamilton (hereinafter, “Mov-ant”) appeals from the denial of his Rule 29.15 post-conviction motion without an ev-identiary hearing. Movant was convicted of forcible rape, Section 566.030 RSMo (2000), forcible sodomy, Section 566.060, and kidnapping, Section 565.110. Movant was sentenced, as a prior offender, to twenty years’ imprisonment each on the forcible rape and forcible sodomy counts, to run concurrently. Movant was also sentenced to five years’ imprisonment for the kidnapping count, ordered to run consecutively to the other convictions. Movant’s convictions were affirmed on direct appeal. State v. Hamilton, 212 S.W.Sd 171 (Mo.App. E.D.2007). Subsequently, Movant filed a motion for post-conviction relief pursuant to Rule 29.15, which the motion court denied without an evidentiary hearing.

Movant raises three points on appeal. In his first two points, Movant argues defense counsel was ineffective for failing to locate, interview, and endorse witnesses which he claims would provide him with a viable defense. In his third point, Movant argues defense counsel was ineffective for failing to litigate a motion to suppress with respect to statements he made to the police.

We have reviewed the briefs of the parties, the legal file and transcript, and find the motion court’s decision was not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).

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


text:
    Timothy GALLAGHER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93698.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.
    Gwenda Renee’ Robinson, St. Louis, MO, for appellant.
    Chris Koster, Mary H. Moore, Jefferson City, MO, for appellee.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Timothy Gallagher (Movant) appeals from the motion court’s judgment denying, without an evidentiary hearing, his amended Motion under Rule 24.035 to Vacate, Set Aside or Correct Judgment and Sentence (Amended Motion.) We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P.2010, unless otherwise indicated.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Robert GAMBLE, Defendant/Appellant.
    No. ED 93540.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 15, 2010.
    Brocea L. Smith, St. Louis, MO, for Appellant.
    Shaun J. Maekelprang, Terry M. Mes-sonnier, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Robert Gamble appeals from the trial court’s judgment entered upon a jury verdict convicting him of second-degree murder and armed criminal action. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion in controlling voir dire. State v. Johnson, 207 S.W.3d 24, 40 (Mo. banc 2006). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


text:
    Nathaniel MCDANIEL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93579.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 15, 2010.
    Gwenda Renee’, Robinson, District Defender, Saint Louis, MO, for Appellant.

      Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Nathaniel McDaniel appeals the judgment denying his Rule 24.085 motion for post-conviction relief without an evidentia-ry hearing. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    Kevin G. VARTY, Respondent, v. Linda I. VARTY, Appellant.
    No. ED 93453.
    Missouri Court of Appeals, Eastern District, Division One.
    June 15, 2010.
    Alan Freed, Clayton, MO, for appellant.
    Maia Brodie, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P. J., CLIFFORD H. AHRENS, J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Linda and Kevin Varty were granted a dissolution of marriage on March 17, 2009. Linda appeals from the trial court’s denial of monthly maintenance to her and its imputation of income to her. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


text:
    Tork RODGERS, Appellant, v. GAINEY TRANSPORTATION and Division of Employment Security, Respondents.
    No. ED 93497.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 15, 2010.

      John J. Ammann St. Louis, MO, for appellant.
    Ninion S. Riley, Jefferson City, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Tork Rodgers (Claimant) appeals from the order of the Labor and Industrial Relations Commission (Commission) finding him ineligible for unemployment benefits because he was discharged for misconduct connected with his work. We affirm.

We have reviewed the briefs and the record on appeal, and we conclude that the Commission’s decision is supported by competent and substantial evidence on the whole record, and no error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided the parties a memorandum, for their information only, setting forth the reasons for this order.

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


text:
    Jerry RACKLEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93284.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.
    Jo Ann Rotermund, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Mary H. Moore, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, Jr., J.
   ORDER

PER CURIAM.

Jerry Rackley (hereinafter, “Movant”) appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant was convicted of unlawful use of a weapon, Section 571.030 RSMo (2000). The trial court imposed a $3,500 fine. Movant’s conviction was affirmed on direct appeal. State v. Rackley, 260 S.W.3d 432 (Mo.App. E.D.2008). Subsequently, Movant filed a motion for post-conviction relief pursuant to Rule 29.15, which the motion court denied without an evidentiary hearing.

Movant raises two points on appeal alleging the motion court clearly erred in declining to find trial counsel ineffective. First, Movant claims trial counsel rendered ineffective assistance by failing to object when the knife was introduced into evidence because it was the product of an illegal search. Second, Movant claims trial counsel rendered ineffective assistance by failing to raise in the motion for new trial the trial court’s denial of Movant’s motion to suppress as trial court error.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Edwards v. State, 200 S.W.Bd 500, 509 (Mo. banc 2006). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, for the use of the parties only, setting forth the reasons for our decision. We affirm the motion court’s denial of Movant’s Rule 29.15 motion pursuant to Rule 84.16(b).


text:
    Gary DETMER and Bennington Commons, LLC, Plaintiffs/Respondents, v. OLD REPUBLIC TITLE CO. OF ST. LOUIS, INC., Defendant/Appellant.
    No. ED 93368.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 15, 2010.
    Helfrey, Neiers & Jones, P.C., Douglas P. Roller, Nicholas P. VanDeven, St. Louis, MO, for appellant.
    Green Jacobson, P.C., Allen P. Press, W. Scott Rose, Clayton, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Old Republic Title Company of St. Louis, Inc., (Old Republic) appeals from the trial court’s judgment entered upon a jury verdict in favor of Gary Detmer and Bennington Commons, LLC, (referred to collectively as Detmer) on Detmer’s petition alleging breach of contract .

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The judgment of the motion court is based on findings of fact that are not clearly erroneous. Rule 84.16(b)(2). No error of law appears. An extended opinion would have no prece-dential value. We affirm the judgment pursuant to Rule 84.16(b). The parties have been furnished a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . Detmer's petition initially alleged breach of contract, negligence, and breach of fiduciary duty, but only the breach-of-contract claim was submitted to the jury.


text:
    Abdelfattah ZARHOUNI, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71071.
    Missouri Court of Appeals, Western District.
    June 22, 2010.

      Alexa I. Pearson, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before: THOMAS H. NEWTON, C.J., JAMES E. WELSH, and ALOE AHUJA, JJ.
   THOMAS H. NEWTON, Chief Judge.

Mr. Abdelfattah Zarhouni appeals the trial court’s judgment denying his motion for post-conviction relief. We reverse in part and otherwise affirm.

Factual and Procedural Background

Mr. Zarhouni was charged with second-degree assault, section 565.060, and pleaded guilty. Pursuant to a plea agreement, the State requested a seven-year sentence but did not oppose Mr. Zarhouni’s request for a 120-day “shock treatment,” which would have provided for Mr. Zarhouni’s release on probation after serving 120 days. See § 559.115. The plea court denied probation, sentenced Mr. Zarhouni to seven years in the Missouri Department of Corrections — the maximum penalty under the statute — running concurrent with a sentence he was currently serving, and ordered “restitution fixed at $9,000.”

Pursuant to Rule 24.035, Mr. Zarhouni filed a pro se motion for post-conviction relief. Appointed Counsel filed an amended motion alleging Mr. Zarhouni’s sentence was unlawful and that he received ineffective assistance of counsel. After a hearing, the motion was denied. Mr. Za-rhouni appeals, raising two points.

Standard of Review

We review the appeal of a denial of post-conviction relief under a clearly erroneous standard. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006) ^citing Rule 24.035(k)). The motion court’s finding and conclusions “are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.” Id. (internal quotation marks and citation omitted).

Legal Analysis

In his first point on appeal, Mr. Zarhouni argues that the motion court erred because the plea court exceeded its authority in imposing a seven-year prison term and ordering him to pay restitution— without placing him on probation.

Section 557.011 authorizes the trial court’s dispositions on a finding of guilt. State v. Roddy, 998 S.W.2d 562, 565 (Mo.App. S.D.1999). These dispositions include: (1) imposing a prison sentence, (2) assessing a fine, (3) suspending the imposition of sentence, (4) suspending the execution of sentence and ordering probation, or (5) imposing detention for a period as a condition of probation. Id. In Roddy the trial court attempted to order both imprisonment and restitution. Id. Because section 557.011 does not authorize the trial court to impose a prison sentence while also requiring restitution, the Roddy court concluded such an order was beyond the court’s authority. Id.

Here, the motion court found that the restitution order was proper under section 559.100, which authorizes a court to order restitution as a condition of probation or parole. That section states:

1. The circuit courts of this state shall have power, herein provided, to place on probation or to parole persons convicted of any offense over which they have jurisdiction....
2. The circuit court shall have the power to revoke the probation or parole previously granted and commit the person to the department of corrections. The circuit court shall determine any conditions of probation or parole for the defendant that it deems necessary to ensure the successful completion of the probation or parole term, including the extension of any term of supervision for any person while on probation or parole. The circuit court may require that the defendant pay restitution for his crime. The probation or parole may be revoked for failure to pay restitution or for failure to conform his behavior to the conditions imposed by the circuit court. The circuit court may, in its discretion, credit any period of probation or parole as time served on a sentence.

§ 559.100.

The motion court found this section to authorize the order of restitution “if and when [Mr. Zarhouni] was released on parole.” We find this interpretation to strain the plain language of the statute. The provision authorizes the circuit court to order restitution as a condition of probation or parole at the time of granting such probation or parole. We do not read it to authorize the trial court to order restitution as a future condition of parole, while sentencing the defendant to a term of imprisonment, particularly in light of Roddy. Consequently, the plea court did not have the authority to order Mr. Zarhouni to serve a seven-year term and pay restitution. While the State argues that the statement about restitution “was merely a reference to a possible condition of parole at some later date” and was consequently surplusage, we find the effect to be the same. Therefore, we modify the judgment and strike the portion of the judgment requiring restitution. See Rule 84.14. Mr. Zarhouni’s first point is granted.

In his second point on appeal, Mr. Zarhouni contends that the motion court erred because he was denied effective assistance of counsel in that his plea counsel never informed him that: (1) he could be sentenced to serve seven years; and (2) he could be sentenced to seven years and ordered to pay restitution. Because we have already reversed the judgment’s order of restitution, we do not address the second part of the argument.

To succeed on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance was below the standard of a reasonably competent attorney and that he was prejudiced by the subpar performance. State v. Roll, 942 S.W.2d 370, 374-75 (Mo. banc 1997). To show prejudice in the context of a guilty plea, the defendant must show that absent the errors of counsel, he would not have pled guilty and would have demanded to go to trial. Id. at 375.

A guilty plea “must be a voluntary expression of the defendant’s choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” Id. Plea counsel may thus be ineffective if counsel’s actions rendered the defendant’s plea unknowing or involuntary. Dobbins, 187 S.W.3d at 866. If plea counsel’s representation about sentencing was mistaken, the defendant was entitled to rely on it, and the reliance was reasonable, the defendant’s ability to enter a knowing and voluntary plea may be impinged. Id. at 866-87.

Mr. Zarhouni argues that counsel erroneously informed him that he would receive a 120-day “shock treatment,” that this fell below the standards of a reasonably competent attorney, and that he was prejudiced by this error because had he known he would be sentenced to serve seven years, he would have chosen to go to trial. His guilty plea, he contends, was not knowing or voluntary.

Mr. Zarhouni however did not show that plea counsel made a mistaken representation about sentencing on which he was entitled to rely. Both lawyers responsible for Mr. Zarhouni’s plea representation testified that the plea agreement was for a seven-year sentence, with the State agreeing not to oppose Mr. Zarhouni’s request for a 120-day “shock treatment” with subsequent probation. Mr. Zarhouni then testified at the plea hearing that he understood he could be sentenced to serve seven years:

[PLEA COURT]: Did you understand that was going to be [the State’s] recommendation, seven and go?
[MR. ZARHOUNI]: Yes.
[PLEA COURT]: Has anybody made you any promise that’s not been stated here in order to get you to plead guilty against your will?
[MR. ZARHOUNI]: No, sir.
[PLEA COURT]: Do you understand that your attorney can give you advice and make recommendations to you, but it has to be your decision as to whether or not you plead guilty.
[MR. ZARHOUNI]: Yes, sir.
[PLEA COURT]: Is that what you want to do?
[MR. ZARHOUNI]: Yes, sir.
[PLEA COURT]: Now the 120 thing, the 120-day deal ... I’m not bound by that. The only thing I’m agreeing to do is everybody’s in agreement that you will get a seven-year sentence. I may ask a couple more questions of counsel, but I’m not bound by giving you that 559 120-day release thing. I might do it and I might not. If I don’t do it, I’m not going to let you withdraw your plea. Okay? ... You follow me?
[MR. ZARHOUNI]: Yes.

Consequently, the record reflects that Mr. Zarhouni knew there was no promise of probation and that the plea court could order him to serve seven years. Although at the post-conviction motion hearing, Mr. Zarhouni testified that he was told that he would not receive seven years imprisonment, the motion court was not required to find his testimony credible, particularly where the record from the plea hearing refutes his claim. Mr. Zarhouni’s second point is denied.

Conclusion

For the foregoing reasons, the motion court’s judgment upholding Mr. Zarhouni’s seven-year sentence is affirmed; the judgment upholding the plea court’s entry of a restitution order is reversed, and the judgment is modified pursuant to Rule 84.14.

WELSH and AHUJA, JJ. concur.

      . Statutory references are to RSMo 2000 or the Cumulative Supplement 2009. Rule references are to Missouri Court Rules 2009.

      . The attorney who negotiated the plea was not available at the plea hearing; a colleague from his office served as substitute counsel.

      . Section 559.021.2 authorizes a court to order restitution as a condition of probation. See State v. Roddy, 998 S.W.2d 562, 565 (Mo.App. S.D.1999).


author: VICTOR C. HOWARD, Judge.

text:
    Sara LIVINGSTON, et al., Appellant-Respondents, v. BAXTER HEALTH CARE CORPORATION, Respondent-Appellant.
    Nos. WD 71257, WD 71312.
    Missouri Court of Appeals, Western District.
    June 22, 2010.

      Robert W. Tormohlen, for Appellant-Respondent.
    Paul P. Hasty, Jr., for Respondent-Appellant.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   VICTOR C. HOWARD, Judge.

The heirs of Ruth Baxter appeal the trial court’s judgment upon a jury verdict awarding them a total of $500,000 on their wrongful death and pain and suffering claims against Baxter Health Care Corporation (“BHCC”). They claim that the trial court erred in: (1) applying Kansas’s statutory limits on non-economic damages; and (2) denying the heirs’ motion for judgment notwithstanding the verdict because BHCC faded to make a submissible case of comparative fault. BHCC also appeals the judgment and contends that the trial court erred in: (1) refusing to modify the jury instruction on the claim for pain and suffering; and (2) denying its motion for a directed verdict on the pain and suffering claim. The judgment of the trial court is affirmed.

Factual and Procedural Background

Ruth Baxter (“Decedent”) died on August 17, 2006, after being involved in a car accident with Deborah Beal, an employee of BHCC who was acting in the scope of her employment at the time of the accident. Decedent’s heirs brought a wrongful death claim against BHCC, and the administrator of Decedent’s estate brought an action against BHCC to recover damages for pain and suffering experienced by Decedent.

According to the evidence presented at trial, the accident occurred at approximately 2:30 p.m. on Interstate 1-35 near Ottawa, Kansas. Beal was driving a Chrysler 300 and Decedent was driving a Volkswagen Golf. Beal was traveling north in the right hand lane of 1-35 when she rear-ended Baxter’s vehicle. The occupants of the vehicle traveling behind Beal, Austin Souto and his mother Wendy Taylor, saw the collision occur. Souto saw Decedent’s vehicle burst into flames as it was spinning after the collision. Souto and Taylor pulled over to the side of the road to check on Beal, who was still in her vehicle, but were unable to get close to Decedent’s vehicle because of the fire.

As a result of the collision, the front end of Beal’s car was damaged, and Beal suffered a broken nose and abrasions on her knees and forehead. The rear end of Decedent’s vehicle was damaged, but the driver’s compartment was not damaged by the impact. An autopsy showed that Decedent suffered a broken arm and that she had inhaled smoke after the impact. Therefore, Dr. Erik Mitchell, who performed the autopsy, determined that Decedent had survived the initial impact but had died as a result of burns. Dr. Mitchell’s autopsy also revealed that there was no evidence that Decedent sustained a skull fracture or bleeding in the brain, but he noted that he could not medically determine whether or not Decedent was conscious between the time of the impact and the time of her death.

On December 8, 2008, Heirs filed their fourth amended petition alleging a cause of action for wrongful death against BHCC due to its employee’s negligence. Heirs also filed a survival claim against BHCC to recover damages on behalf of Decedent’s estate for pain and suffering experienced by Decedent as a result of Beal’s negligence. Before trial, Heirs filed a motion for partial summary judgment requesting a ruling that Missouri law controlled the case. The trial court disagreed and indicated that Kansas law would govern the case. Heirs later filed a motion to reconsider their motion for partial summary judgment, arguing that while Kansas substantive law may control some of the issues in the case, Missouri law should control the amount of damages Heirs could recover. The trial court denied the motion.

At trial, BHCC objected to Heirs’ proposed jury instruction for the pain and suffering claim, arguing that the instruction did not inform the jury that it must find that Decedent was conscious in order to award damages. BHCC also moved for a directed verdict on the claim because Heirs had not presented evidence that Decedent was conscious between the time of the impact and her death. The trial court overruled BHCC’s objection and motion and submitted Heirs’ instruction to the jury. Based on BHCC’s argument that Decedent was either stopped or driving below the legal minimum speed limit, an instruction on comparative negligence was also submitted to the jury.

The jury returned verdicts in favor of Heirs, awarding $450,000 in non-economic damages on the wrongful death claim and $750,000 in non-economic damages for the pain and suffering claim. The jury assessed twenty percent of the fault to Decedent and eighty percent to Beal. Because Kansas statutory law limits non-economic damages to $250,000 for wrongful death claims and personal injury survival claims, the trial court reduced both awards to $250,000. Heirs filed a motion for judgment notwithstanding the verdict (“JNOV”) in which they contended that BHCC had failed to make a submissible case of comparative fault and that the trial court erred in applying Kansas law to limit Heirs’ non-economic damages. The trial court denied Heirs’ motion. This appeal by Heirs and BHCC followed.

Choice of Law

We address first the issue of whether Missouri law or Kansas law applies to the measure of Heirs’ damages. A forum state will choose the applicable law according to its own conflict of law principles. Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 285 (Mo.App. E.D.2002). When determining which state’s law applies to a tort action generally, Missouri courts apply the “most significant relationship” test set out in section 145 of the Restatement (Second) of Conflict of Laws. Id. Section 145 states:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a)the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws § 145 (1971).

Section 175 of the Restatement (Second) of Conflict of Laws pertains specifically to wrongful death actions and provides that the law of the state where the injury occurred will apply to determine the rights and liabilities of the parties “unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in [section] 6 to the occurrence and the parties, in which event the local law of the other state will be applied.” It is not solely the number of contacts which determines the choice of law but which state, “when those contacts are considered in the perspective of Restatement (Second) [section] 6 choice of law principles ... has the most significant relationship to the occurrence and parties, and so is entitled to have its law determine the particular issue.” Nelson v. Hall, 684 S.W.2d 350, 360 (Mo.App. W.D. 1984). The choice of law principles under section 6 are:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2) (1971).

BHCC contends that section 175 of the Restatement (Second) of Conflict of Laws mandates the application of the law of the state where the accident occurred, absent exceptional circumstances. BHCC misconstrues section 175 in its argument. This court has concluded that the text, comments, and notes in both sections 145 and 175 “impress the general rule, subject only to rare exceptions, the local law of the state where conduct and injury occur will apply to determine ‘whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actor’s conduct was entitled to legal protection.’” Nelson, 684 S.W.2d at 356 (quoting Restatement (Second) of Conflict of Laws § 145 cmt. d). Therefore, absent exceptional circumstances, the law of the state where the conduct and injury occurred will apply to determine whether a cause of action for wrongful death accrued at all from the conduct and whether the actor met that state’s applicable standard of care. See id. at 359.

If Heirs were contending that the relevant causes of action accrued in Missouri or that Missouri’s standard of conduct should apply, section 175 would require them to demonstrate that exceptional circumstances existed which warranted the application of Missouri law, rather than Kansas law. However, Heirs do not contest the trial court’s application of Kansas law regarding the substantive issues of the case, i.e., whether a cause of action accrued at all and whether Beal or Decedent violated Kansas’s applicable standard of care. Instead, Heirs assert that Missouri has a superior interest in having its law apply to the issue of damages. In this regard, this court has readily recognized that choice of law questions are determined on an issue-by-issue basis and that “the state where the tort was committed may not be the state with the superior interest in such an issue as the amount of damages a jury may return on the cause of action.” Id. at 352. As to such issues, sections 175 and 178 provide not a presumption to be overcome by a showing of exceptional circumstances but, rather, provide a default rule where, all things being equal, the law of the state where the injury occurred will apply. However, where another state has a more significant relationship to the occurrence and the parties, the law of that state will apply to the issue. Therefore, the choice of law determination in this case turns on whether Missouri, under the principles stated in section 6 of the Restatement, has a more significant relationship to the occurrence and the parties with respect to the particular issue of damages.

Heirs contend that the trial court erred in applying the Kansas statutory limits on non-economic damages because Missouri, which does not impose limitations on non-economic damages recoverable for the types of claims pursued by Heirs, has a more significant relationship to the occurrence and parties than Kansas with regard to damages. Although the accident and death occurred in Kansas, Heirs note that Missouri has the following contacts with the occurrence and parties: both drivers were Missouri residents; both vehicles involved in the accident were titled and garaged in Missouri; and Decedent’s estate was opened in Missouri. In addition, Heirs argue that Missouri has a strong interest in compensating the family of a Missouri decedent in a Missouri court in accordance with its law on damages.

In light of the section 6 choice of law principles relevant to this case, we look to the policies of Missouri which underlie its laws on damages. Missouri law, unlike Kansas law, does not place a strict cap on the amount of non-economic damages recoverable for the wrongful death and pain and suffering of a decedent. See § 537.090, RSMo Cum.Supp.2009. As recognized in Carver v. Schafer, 647 S.W.2d 570 (Mo.App. E.D.1988),

The policies behind allowing a full measure of recovery are three fold. One policy is to provide for the economic well-being of the decedent’s dependents so that they will not become wards of the state. A second policy is to provide funds with which to pay creditors of the decedent. A third policy furthered by allowing unrestricted judgments for wrongful death is to promote the admonitory effect such judgments would have on potentially negligent defendants.

Id. at 577. Although Heirs claim that Missouri’s policies will be impaired if its damages law is not applied, the evidence presented in this case does not indicate that the policies identified in Carver will be impaired. As none of the plaintiffs are residents of Missouri, there is no danger that they will become wards of the state of Missouri. With regard to the second policy identified, the parties did not adduce evidence at trial regarding Decedent’s creditors. As to the third policy, Missouri has an interest in promoting an admonitory effect on negligent defendants in that BHCC conducts business in Missouri; that interest is diminished here, where the injury-causing conduct occurred in another state. However, because BHCC also conducts business in Kansas, Kansas arguably has an interest in having its statutory cap applied in order to protect a corporation doing business in Kansas from an excessive jury verdict. Because BHCC conducts business in both Kansas and Missouri, thereby giving both states an interest in having its damages law apply, we cannot say that Missouri has a more significant relationship to the issue of damages on the basis that BHCC conducts business in Missouri.

The evidence demonstrates that Missouri has very limited contacts with the parties to the case. Heirs note that both drivers were Missouri residents and that both vehicles involved in the accident were titled and garaged in Missouri. The fact that the vehicles were titled and garaged in Missouri does not bolster Heirs’ argument that Missouri has a stronger interest than Kansas as to non-economic damages, an issue which is relevant to the parties, not the property which was involved in the accident. Furthermore, the fact that both drivers were Missouri residents has little bearing on the issue of Missouri’s relationship to the parties’ compensation where neither Missouri resident is a party to the case.

Finally, Heirs argue that Missouri has an interest in compensating the family of a Missouri decedent in a Missouri court in accordance with its law on damages. In support of this claim, Heirs cite Hicks v. Graves Truck Lines, Inc., 707 S.W.2d 439 (Mo.App. W.D.1986). In analyzing whether Missouri law, rather than Kansas law, should apply to determine the comparative fault of the parties, the court in Hicks concluded that Missouri’s interest in having its law applied stemmed from “a policy of compensating Missouri residents in the courts of this state in the manner which this state’s laws have declared.” Id. at 442. However, Heirs are not Missouri residents. Heirs point out that Decedent’s estate was opened in Missouri, but an estate is not a natural or artificial person, or a recognized legal entity. See Estate of Munzert, 887 S.W.2d 764, 766 (Mo.App. E.D.1994). Therefore, Decedent’s estate is not a Missouri resident that Missouri has an interest in compensating, and the rationale in Hicks is inapplicable to the facts of this case.

These facts leave us with a situation in which neither Kansas nor Missouri has an interest that outweighs the interest of the other state in protecting the defendant from the law of the other state, and none of the parties being compensated are Missouri residents. Therefore, we find that Missouri lacks contacts substantial enough to create a more significant relationship to the occurrence and the parties which would warrant the application of Missouri law instead of Kansas law regarding the damages recoverable by Heirs. The trial court did not err in applying Kansas law to the damages recoverable and in reducing each verdict to $250,000. Heirs’ point is denied.

Submissibility of Comparative Fault Claim

In their second point on appeal, Heirs contend that the trial court erred in denying their motion for JNOV because BHCC failed to make a submissible case of comparative fault in that they did not produce competent evidence showing that Decedent’s vehicle was stopped in the roadway or that she was driving below the legal speed limit.

The standard of review of the trial court’s denial of a motion for JNOV and directed verdict is the same — we must determine whether the non-moving party made a submissible case. Hodges v. City of St. Louis, 217 S.W.3d 278, 279-80 (Mo. banc 2007). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and disregard unfavorable evidence. Id. at 280. To make a submissible case, the non-moving party must present substantial evidence establishing each element of the claim. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 184 (Mo.App. W.D. 2006). “Substantial evidence is competent evidence from which the trier of fact can reasonably decide the case.” Id.

The trial court submitted BHCC’s comparative fault instruction, which instructed the jury to assess a percentage of fault to Decedent if it believed that Decedent was negligent by either stopping her vehicle in a traveled lane of the interstate or by operating her vehicle in a traveled lane of the interstate at a speed of less than forty miles per hour. The jury ultimately assessed twenty percent of the fault to Decedent. Heirs argue that the only evidence produced by BHCC on this issue was erroneously admitted hearsay evidence from Wendy Taylor and Austin Souto, the occupants of the car which was traveling behind Beal. A trial court’s decision regarding the admissibility of evidence will be affirmed absent a clear abuse of discretion. Peters v. ContiGroup, 292 S.W.3d 380, 392 (Mo.App. W.D.2009).

At trial, portions of the deposition testimony of Taylor and Souto were entered into evidence. Souto testified that when he spoke to Beal after the accident, she told him that Decedent’s car was stopped in the middle of the roadway. Although Taylor could not recall Beal’s exact words, she thought that Beal may have made a similar statement to her. Heirs contend that this was the only evidence that could have possibly supported the comparative fault instruction but that it was inadmissible hearsay. However, when asked what she remembered about the impact, Beal testified that she remembered thinking, “Why is this ear stopped on the interstate?” Heirs argue that Beal’s lone statement is not substantial or competent evidence, particularly when Beal previously testified that she had very little recollection of the incident. This argument goes to the weight of Beal’s testimony, which is to be determined by the jury.

Additional testimony from Taylor, Souto, and Bill Kennedy, an accident reconstruc-tionist, also supports the submission of the comparative fault instruction. At trial, Heirs presented the testimony of Kennedy, who concluded that the difference between the speeds of Beal’s vehicle and Decedent’s vehicle was approximately sixty miles per hour. He estimated that Decedent was driving about forty miles per hour and that Beal was driving about one hundred miles per hour at the time of the impact. However, Souto testified that he did not see anything that indicated that Beal’s car was going at a different speed than his vehicle, which was traveling at sixty-five to seventy miles per hour. He stated that Beal’s vehicle appeared to be staying about the same distance apart from his vehicle. Taylor testified that she thought Beal’s vehicle appeared to be traveling less than one hundred miles per hour.

Based on Kennedy’s testimony that there was a sixty mile per hour difference in the speeds of the vehicles and Souto and Taylor’s testimony that indicated Beal’s vehicle was traveling at a speed of less than one hundred miles per hour, there was sufficient evidence from which the jury could infer that Decedent was driving at a speed of less than forty miles per hour. Furthermore, based on Beal’s testimony that she wondered why Decedent’s car was stopped in the road, there was testimony from which the jury could have found that Decedent’s car was stopped, or at least that it was traveling at a speed of less than forty miles per hour. Therefore, the record contained evidence on the issue of comparative fault in addition to the statements of Souto and Taylor which Heirs contend were inadmissible hearsay. “ ‘A party cannot be prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence is merely cumulative to other evidence admitted without objection.’ ” Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo. banc 2007) (quoting Shelton v. Williamson (In re Estate of Looney), 975 S.W.2d 508, 514-15 (Mo.App. S.D.1998)). Where there was additional evidence supporting the comparative fault instruction, BHCC made a submissible case, and the trial court did not err in denying Heirs’ motion for JNOV. Heirs’ point is denied.

Submissibility of Pain and Suffering Claim

In their cross-appeal, BHCC first contends that the trial court erred in failing to direct a verdict in BHCC’s favor on the estate’s pain and suffering claim. BHCC argues that Heirs failed to produce competent evidence from which the jury could have found that Decedent was conscious after the collision.

Under Kansas Law, Decedent’s estate could bring a cause of action to recover damages for pain and suffering that Decedent could have recovered had she survived. See K.S.A. § 60-1801. However, such damages “are recoverable only for pain and suffering which is consciously experienced.” Gregory v. Carey, 246 Kan. 504, 791 P.2d 1829, 1333 (1990). “The determination of whether an injured party has experienced conscious pain and suffering may be established by either a lay witness or an expert medical witness.” Id. at 1334.

In Kansas cases where evidence of consciousness is provided by lay witnesses, there is generally testimony showing that the decedent responded to statements with either sounds or movement, or simply that the witnesses had seen the decedent move or heard the decedent make noise. See, e.g., Smith v. Printup, 254 Kan. 315, 866 P.2d 985, 1012 (1993) (a witness testified that the decedent appeared to respond with a two-syllable sound and body movement to the witness’s statement that help was on the way); Folks v. Kansas Power & Light Co., 243 Kan. 57, 755 P.2d 1319, 1330 (1988) (a police officer testified that the decedent had appeared to be conscious and was making noises); Pape v. Kansas Power & Light Co., 231 Kan. 441, 647 P.2d 320, 325 (1982) (the decedent had moaned and squeezed his wife’s hand in response to her request to squeeze if he understood her).

Although Heirs contended at trial that Decedent was conscious between the time of the impact and her death, BHCC points out that there were no eyewitnesses who could testify as to Decedent’s condition between the time of the impact and her death. Additionally, Dr. Mitchell testified that he could not medically determine whether or not Decedent was conscious. In light of what BHCC characterizes as an absence of evidence of consciousness, BHCC suggests that this case is analogous to two cases applying Kansas law. See Cochrane v. Schneider Nat’l Carriers, Inc., 968 F.Supp. 613 (D.Kan.1997); St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043 (1989).

The decedent in Cochrane was driving on a Kansas highway when his car collided with a tractor-trailer. 968 F.Supp. at 614. The decedent was found unconscious, was not breathing, and did not make any sounds but had a pulse. Id. The decedent never regained consciousness, and medical records showed that he sustained injuries to the occipital area of his head. Id. at 614-15. After the decedent died from his injuries, a survival claim for pain and suffering was brought on behalf of his estate. Id. at 615. On this issue of post-impact conscious pain and suffering, the court found that the plaintiffs had failed to present evidence of consciousness after the impact. Id. at 617. Although the plaintiffs had offered medical records that showed the decedent had moved his toes and legs in response to touch, the plaintiffs could not show that the movements were anything beyond involuntary muscle responses. Id. The court in St. Clair similarly found that there was insufficient evidence indicating that a decedent who died in a car accident was conscious after the impact where the decedent had a pulse, but no one testified that she responded to stimuli or made any noises or movement. 781 P.2d at 1049.

BHCC argues that a traumatic impact, such as a vehicle collision, which precedes death can reasonably be expected to cause a loss of consciousness at the time of the impact. See Garay v. Mo. Pac. R. Co., 38 F.Supp.2d 892, 901 (D.Kan.1999) (applying Kansas law). The court in Garay thus distinguished Cochrane and St. Clair, noting that, where the decedents died from injuries sustained in car accidents involving a traumatic impact, it was impossible to determine without speculation at what point the decedents lost consciousness. Id. BHCC contends that, therefore, Heirs must come forward with affirmative evidence of consciousness. However, the facts of St. Clair and Cochrane are readily distinguishable from this case. In those cases, the decedents sustained fatal injuries as a result of the collision itself. In the case at hand, the impact was clearly not as traumatic as that in St. Clair and Cochrane where Decedent suffered very few injuries as a result of the impact but, rather, died as a result of burns from the ensuing fire.

The totality of the evidence, viewed in the light most favorable to the verdict, shows the following: the driver’s compartment of Decedent’s car was not damaged by the impact; Decedent was not thrown from or within the vehicle; Decedent was alive and inhaling smoke after the impact; both parties suffered only relatively minor injuries as a result of the impact, and Beal was conscious after the impact; Dr. Mitchell did not find any evidence that Decedent had sustained a skull fracture or experienced bleeding in the brain. Although Heirs have not presented direct evidence demonstrating consciousness, where the facts of the case indicate the absence of an impact traumatic enough to cause any serious injuries, like those experienced by the decedents in Cochrane and St. Clair, we find that the aforementioned evidence was sufficient to create a jury question as to whether Decedent was conscious between the time of the impact and the time of her death. Therefore, the trial court did not err in failing to direct a verdict in favor of BHCC on the estate’s pain and suffering claim. BHCC’s point is denied.

Jury Instruction for Pain and Suffering Claim

In its final point on appeal, BHCC contends that the trial court erred in failing to instruct the jury that, on the claim for pain and suffering, it was required to find that Decedent “consciously” experienced pain and suffering after the accident. The relevant portion of the challenged jury instruction, which was patterned after MAI 37.03, provided the following:

If you assess a percentage of fault to Deborah Beal, then, disregarding any fault on the part of Ruth Baxter, you must determine the total amount of plaintiffs’ damages to be such sum as will fairly and justly compensate The Estate of Ruth Baxter for any damages you believe Ruth Baxter sustained for mental anguish or pain and suffering as a direct result of the occurrence mentioned in the evidence.

“The question of whether or not a jury was properly instructed is a question of law.” Rice v. Bol, 116 S.W.3d 599, 606 (Mo.App. W.D.2003). A jury ver-diet will not be reversed on the ground of instructional error unless it appears that the instruction “misdirected, misled, or confused the jury, resulting in prejudice to the party challenging the instruction.” Id. The test for determining whether the jury was misdirected, misled, or confused is “ ‘whether an average juror would correctly understand the applicable rule of law’ ” being conveyed by the jury instruction. Id. (quoting Lashmet v. McQueary, 954 S.W.2d 546, 550 (Mo.App. S.D.1997)). Prejudice resulting from an instructional error is sufficient to warrant reversal if the error materially affected the merits and outcome of the case. Id.

In drafting the jury instructions, the trial court used the applicable MAI jury instructions except where it believed it was necessary to modify an MAI instruction to reflect a difference between Missouri and Kansas law. In a case where Kansas substantive law governs, if an MAI jury instruction correctly states the substantive law of Kansas, that instruction must be given. Hicks, 707 S.W.2d at 446. BHCC asserts that the instruction given did not correctly state the substantive law of Kansas in that it did not require the jury to find that Decedent “consciously” suffered mental anguish or pain and suffering.

The trial court did not err in failing to include the word “consciously” in the jury instruction for the pain and suffering claim. Inherent in the very notion of a person suffering mental anguish or pain and suffering is that they did so consciously. The addition of the word “consciously” was not necessary for the jury to understand that they were required to find that Decedent was conscious at some point between the time of the impact and the time of her death, especially when BHCC’s attorney reminded the jury during closing argument that it had to find that Heirs had proven consciousness in order to return a verdict in favor of Heirs. Therefore, it is unlikely that the submitted instruction misdirected, misled, or confused the jury, as an average juror would understand that he or she was required to find that Decedent “consciously” suffered mental anguish or pain and suffering. BHCC’s point is denied.

The judgment of the trial court is affirmed.

All concur.

      . The heirs involved in the case are Decedent’s children, Sara Livingston, James Baxter, and Jane Baxter Jones, and Decedent's grandchildren, Matthew Lloyd and Kristin Lloyd. Although the heirs brought the wrongful death claim, and the pain and suffering claim was brought in the name of Decedent's estate, for the sake of simplicity, appellants will be referred to collectively as "Heirs.”

      . At trial, Dr. Mitchell testified that Decedent's death was probably not directly related to the inhalation of carbon monoxide but was, rather, more likely caused by bums from the fire.

      . Section 178 provides that "[t]he law selected by application of the rule of § 175 determines the measure of damages in an action for wrongful death.” See also State ex rel. Broglin v. Nangle, 510 S.W.2d 699, 701-02 (Mo. banc 1974).

      . Courts examining Kansas's statutory limitation on non-economic damages have noted that "[t]he $250,000 cap is designed to prevent juries from awarding excessive damages out of sympathy for a decedent's family.” See, e.g., Estate of Sisk v. Manzanares, 270 F.Supp.2d 1265, 1278 (D.Kan.2003)

      . While Beal was initially a named defendant, she was later dismissed from the case.

      . Heirs are residents of Colorado, Kentucky, Michigan, and Germany, and BHCC is incorporated in Illinois.

      . The standard of review applicable to Heirs’ second point on appeal also applies to BHCC's claim.

      . The record shows that Beal suffered a broken nose and abrasions to her knees and forehead. Decedent suffered a broken arm, but Dr. Mitchell could not determine if it was a result of the impact or a result of thermal injuries, which could have caused the muscles to shrink, thereby breaking the arm bone.

      . BHCC’s argument applies to both the damages instruction and the instructions on comparative fault, which BHCC asserts should have required a finding that Decedent experienced conscious pain and suffering.

      . Furthermore, we note that Kansas's pattern instruction itself does not use the term “conscious” when defining the damages allowed in a survival action for personal injury. See P.I.K. 171.02.


author: PER CURIAM:

text:
    Shaun E. FOX, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70416.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Ruth Sanders, for Appellant.
    John W. Grantham, for Respondent.

      Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Shaun Fox appeals from the denial of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal published opinion; however, a memorandum explaining the reason for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Joseph Jesse SNYDER, Appellant.
    No. WD 70424.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Ruth Sanders, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq. and Jayne T. Woods, Esq., Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Joseph J. Snyder appeals his convictions for first-degree murder, first-degree burglary, two counts of attempted first-degree murder, and three counts of armed criminal action. In his sole Point Relied On, Snyder argues that the trial court erred in allowing the State to elicit testimony that while being questioned by the police, Snyder asserted his right to remain silent and requested to speak to an attorney. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Randy E. KOCH, Appellant.
    No. WD 70442.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Ellen H. Flottman, Columbia, MO, for appellant.

      Shaun J. Mackelprang and Robert J. Bartholomew, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Randy E. Koch appeals his conviction of driving while intoxicated as a chronic offender, which is a class B felony pursuant to 577.023.5 RSMo. Koch was sentenced to twenty years imprisonment. We affirm his conviction pursuant to Rule 30.25(b).


text:
    Jerloin WEAVER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70682.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Frederick J. Ernst, for Appellant.
    John M. Reeves, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

Jerloin Weaver appeals the denial of his Rule 24.035 motion after an evidentiary hearing. On appeal, Weaver claims that the motion court clearly erred in denying his motion because his attorney provided ineffective assistance of counsel in that he failed to file a motion to suppress or present evidence in support of a motion to suppress. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    Bernard M. DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70749.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Craig A. Johnston, for Appellant.
    Jayne T. Woods, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Bernard Davis appeals from the motion court’s denial of his Rule 29.15 motion for post-conviction relief and contends that his trial counsel was ineffective for failing to properly object and raise in his post-trial motion the fact that Davis was visibly restrained by a leg brace, waist restraints, and handcuffs throughout his trial. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no prece-dential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Sean T. WRIGHT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70939.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Rosemary E. Percival, for Appellant.
    James B. Farnsworth, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

Sean Wright appeals the judgment of the motion court denying his Rule 29.15 motion for postconviction relief following an evidentiary hearing. He sought to vacate his convictions for first-degree statutory sodomy and second-degree statutory sodomy and consecutive sentences of life and seven years imprisonment, respectively. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment of the motion court is affirmed. Rule 84.16(b).


text:
    Jonathan M. GAZAWAY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70391.
    Missouri Court of Appeals, Western District.
    June 29, 2010.
    Stephen M. Patton, Esq., Kansas City, MO, for appellant.

      Shaun J. Mackelprang, Esq., and Dora A. Ficher, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR., and ALOKAHUJA, JJ.
   ORDER

PER CURIAM:

Jonathan Gazaway appeals the circuit court’s judgment denying his motion for post-conviction relief. After a jury trial, Gazaway was convicted in Jackson County Circuit Court of assault in the first degree, armed criminal action, and unlawful use of a weapon. On appeal, Gazaway argues that his trial counsel was ineffective: for failing to develop evidence to support a sudden passion defense at trial, and failing to seek an instruction on a lesser-included offense based on sudden passion; for failing to present evidence to support a defense-of-third-person defense; and for failing to present the testimony of two particular witnesses. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Cortez L. CADENHEAD, Appellant.
    No. WD 70559.
    Missouri Court of Appeals, Western District.
    June 29, 2010.
    Susan E. Summers, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and GARY D. WITT, JJ.
   Order

PER CURIAM:

Cortez Cadenhead appeals his convictions of murder in the first degree and armed criminal action. He argues that the trial court plainly erred in its failure to intervene sua sponte to exclude police testimony that his co-participant’s confession was consistent with Cadenhead’s confession. Affirmed. Rule 30.25(b).


text:
    Cory ANDERSON and Cary Anderson Individually and as Personal Representatives of the Estate of Gregory J. Anderson, Appellants, v. HEARTLAND GOLF DEVELOPMENT II, LLC, Respondent.
    No. WD 71568.
    Missouri Court of Appeals, Western District.
    June 29, 2010.

      Brian J. Madden and Diane Watkins, Kansas City, MO, for appellants.
    Michelle R. Stewart and Peter Maharry, Overland Park, KS, for respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Cory and Cary Anderson appeal the judgment of the circuit court, which granted summary judgment in favor of Heartland Golf Development II, LLC.

We affirm. Rule 84.16(b). A memorandum setting forth the reasons for this order has been provided to the parties.


text:
    Kenny L. CURRIE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71048.
    Missouri Court of Appeals, Western District.
    June 29, 2010.
    Matthew Ward, Esq., Columbia, Mo, for appellant.
    Shaun J. Mackelprang, Esq., and John W. Grantham, Esq., Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK and CYNTHIA MARTIN, Judges.
   ORDER

PER CURIAM.

Kenny Currie appeals the denial of his Rule 24.035 motion to withdraw his guilty plea. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the circuit court’s judgment denying post-conviction relief.

AFFIRMED. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Gerald D. WARD, Appellant.
    No. WD 70825.
    Missouri Court of Appeals, Western District.
    June 29, 2010.
    Edward A. Williams, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Gerald D. Ward appeals the circuit court’s judgment denying his Rule 29.07(d) motion to withdraw his guilty plea. We affirm. Rule 84.16(b).


text:
    Andre DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70712.
    Missouri Court of Appeals, Western District.
    June 29, 2010.
    Frederick J. Ernst, for Appellant.
    Daniel N. McPherson, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

Andre Davis appeals the judgment of the motion court denying his Rule 29.15 motion for postconviction relief following an evidentiary hearing. He sought to vacate his convictions for sexual abuse, section 566.100, RSMo 2000; forcible rape, section 566.030, RSMo Cum.Supp.2009; kidnapping, section 565.110, RSMo Cum. Supp.2009; robbery in the first degree, section 569.020, RSMo 2000; and two counts of armed criminal action, section 571.015, RSMo 2000, and consecutive sentences of fifteen years, life, fifteen years, thirty years, forty-five, years, and forty-five years imprisonment, respectively. Davis contends that he was denied effective assistance of counsel when counsel adduced evidence of the victim’s misidentifieation of another person, which was inconsistent with the defense theory that the relationship was consensual and that the sexual assault claims were fabricated to cover an illicit relationship with Davis. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The judgment of the motion court is affirmed. Rule 84.16(b).


author: LISA WHITE HARDWICK, Judge.

text:
    STATE of Missouri, Respondent, v. Thomas REANDO, Appellant.
    No. WD 70472.
    Missouri Court of Appeals, Western District.
    June 29, 2010.

      William J. Swift, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and James B. Fransworth, Esq., Jefferson City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR., and ALOK AHUJA, Judges.
   LISA WHITE HARDWICK, Judge.

Thomas Reando appeals his convictions for second-degree involuntary manslaughter and two counts of second-degree assault. Following a bench trial, he contends the circuit court erred in entering judgment on all three of the offenses because: (1) the convictions violated his right against double jeopardy; and (2) the charging information was defective in failing to apprise him of the mental state the State was required to prove. For reasons explained herein, we affirm.

Factual and Procedural History

On April 4, 2007, Reando was driving westbound on Route N in Harrison County with his younger brother, Dustin Lambert, and their friend, C.B., as passengers. Reando had been drinking. Despite the hills, curves, and a posted speed limit of 55 mph on Route N, Reando was travelling at about 65 mph.

Cathy Holliday was eastbound on Route N as she rounded the curve at the top of a hill and saw Reando’s vehicle in her lane. Holliday attempted to veer left, but Rean-do’s vehicle collided with the passenger side of Holliday’s vehicle. Dustin was killed in the collision; Holliday and C.B. were seriously injured.

In November 2007, the Harrison County Prosecutor filed an information charging Reando with second-degree involuntary manslaughter for the death of Dustin Lambert, and two counts of second-degree assault for injuries to Holliday and C.B. With regard to each offense, the information alleged that Reando acted with criminal negligence by operating a motor vehicle on the wrong side of the road. At Reando’s request, venue was transferred to Grundy County, where on April 22, 2008, an amended information was filed with the same charges and allegations.

On May 24, 2008, the Missouri Highway Patrol issued Reando multiple traffic citations arising from the accident, including a ticket for failing to drive on the right half of the roadway, a misdemeanor offense pursuant to Section 304.015.2. While the felony charges were pending in Grundy County, Reando pleaded guilty to the misdemeanor and was sentenced to thirty days in the county jail.

Reando then filed a motion to dismiss the felony charges, arguing that his continued prosecution for the felonies violated his right to be free from double jeopardy. He claimed the “failure to drive on the right half of the road” as charged under Section 302.015 was a lesser-included offense of involuntary manslaughter and second degree assault. The Grundy County Circuit Court took the motion under advisement.

The State sought leave to file a Second Amended information that included the same three charges but alleged criminal negligence by operating a motor vehicle in a careless and imprudent manner. The circuit court overruled Reando’s objections to the timeliness of the amendment and granted leave to file the Second Amended Information.

Reando waived a jury and consented to a bench trial. The circuit court denied Reando’s motion to dismiss, finding no double jeopardy. After hearing the evidence, the court found Reando guilty on all counts and sentenced him to a total of fourteen years in prison. Reando appeals.

Analysis

Double Jeopardy

In his first point on appeal, Reando contends the circuit court violated his right against double jeopardy by entering judgment on the convictions for involuntary manslaughter and two counts of second-degree assault. Because he had previously pled guilty to the misdemeanor offense of failing to drive on the right half of the road, Reando argues that same misconduct is a lesser included offense of the three felonies and that he has been improperly subjected to double punishment. Our review of this double jeopardy claim is de novo and, thus, without deference to the circuit court’s determination. State v. Kamaka, 277 S.W.3d 807, 810 (Mo.App.2009).

“The Fifth Amendment to the United States Constitution guarantees the right against double jeopardy, and the Due Process Clause in the Fourteenth Amendment extends that protection to the state prosecutions.” State v. George, 277 S.W.3d 805, 807 (Mo.App.2009). “The doctrine of double jeopardy generally protects defendants from successive prosecutions for the same offense after an acquittal or conviction and from multiple punishments for the same offense.” Id.

Double jeopardy principles do not, however, automatically preclude prosecution for multiple offenses arising out of the same conduct. If the conduct establishes commission of more than one offense, a person may be prosecuted for each offense unless one is “included in the other.” Section 556.041. One offense is considered “included” in another if “[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged!.]” Section 556.046.1(1). “An offense is a lesser included offense if it is impossible to commit the greater without necessarily committing the lesser.” State v. Derenzy, 89 S.W.3d 472, 474 (Mo.banc 2002).

In considering whether one offense is included in another, our courts apply the “same elements” test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and codified at Section 556.041 and 556.046.1(1). State v. Burns, 877 S.W.2d 111, 112 (Mo.banc 1994).

“[W]e simply determine the elements of the offenses at issue and compare them. If this comparison establishes that they do not each have an element that the other offense lacks, the guarantee against double jeopardy bars the prosecution of the second offense. If both offenses have elements that the other lacks, the guarantee does not bar the subsequent prosecution.”

State v. Clark, 263 S.W.3d 666, 671 (Mo.App.2008) (internal citations omitted). “[0]nly the statutory elements of the offenses are relevant, not the evidence adduced at trial.” State v. Dennis, 153 S.W.3d 910, 919 (Mo.App.2005).

Reando pled guilty to a misdemeanor traffic offense under Section 304.015.2, which provides in relevant part:

Upon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction pursuant to the rules governing such movement;
(2) When placing a vehicle in a position for and when such vehicle is lawfully making a left turn in compliance with the provisions of section 304.014 to 304.025 or traffic regulations thereunder or of municipalities;
(3) When the right half of the roadway is closed to traffic while under construction or repair;
(4) Upon a roadway designated by local ordinance as a one-way street and marked or signed for one-way traffic.

This offense requires proof of three elements: (1) that Reando was driving a vehicle on “a public road or highway of sufficient width”; (2) that he failed to drive on the right half of the road; and (3) that none of the four listed exceptions apply.

These elements differ significantly from the felony offenses for which Reando was convicted. “A person commits the crime of involuntary manslaughter in the second degree if he acts with criminal negligence to cause the death of any person.” Section 565.024.3. Thus, the State was required to prove: (1) that Reando acted with criminal negligence; (2) to cause the death of any person. And, as charged in Reando’s case, “[a] person commits the crime of assault in the second degree if he: ... [r]ecklessly causes serious physical injury to another person[.]” Section 565.060.1(3). This offense also required proof of two elements: (1) that Reando acted recklessly; (2) to cause serious physical injury to another person.

Based on the statutory elements of the offenses, it is clear that failing to drive on the right half of the road is not a lesser included offense of either second-degree involuntary manslaughter or second-degree assault. The misdemeanor offense contains elements — driving on a public roadway and failing to remain on the right half of the road — which are not necessary elements of either second degree involuntary manslaughter or second degree assault. The felony crimes can be committed without proof that a defendant was driving at all. Additionally, the felony offenses require proof of death or serious physical injury, while the misdemeanor violation does not require proof of any injury. Because the misdemeanor has elements the felony offenses lack and vice versa, the Double Jeopardy Clause does not bar Reando’s prosecution on the felonies. See Kamaka, 277 S.W.3d at 813.

Reando argues that the misdemeanor offense is a lesser included offense of the felonies because the State would have been unable to prove criminal negligence or recklessness without first proving he drove on the wrong side of the road. This argument relies upon the evidence or facts the State used to prove the felony offenses, not on the elements of those offenses — an approach that was expressly rejected by the Supreme Court in United States v. Dixon, 509 U.S. 688, 703-04, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Driving on the wrong side of the road is not an inherent part of the proof required to show criminal negligence or recklessness; thus, it is not a necessary fact to establish any of the felonies and does not qualify as a lesser-included offense under the provisions of Section 556.046.1(1). See Kamaka, 277 S.W.3d at 814-15. Here, for example, the State presented additional evidence that Reando acted negligently and recklessly by driving at an excessive speed after he had been drinking. The State’s case was not solely based on the fact that Reando drove on the side of the road, and none of the elements of the felony, charges either expressly or implicitly required proof that Reando drove on the wrong side of the road.

Reando relies on Clark, 263 S.W.3d 666 and State v. Steck, 68 S.W.3d 625 (Mo.App.2002), two cases that applied the Blockburger “same elements” test to identify lesser-included offenses. In Clark, this court held the defendant’s conviction on a “resisting a lawful stop” violated the Double Jeopardy Clause because the first two elements of the charge were the same as those to which he had already pled guilty under a city ordinance requiring drivers to pull over when an emergency vehicle approaches. 263 S.W.3d at 673-74. In Steck, the court found a municipal conviction for DWI barred a subsequent state prosecution for second-degree assault charged under Section 565.060.1(4) (for driving in an intoxicated state and causing injury to another) because the DWI was a lesser included offense. 68 S.W.3d at 626. Because the elements of the second degree assault as pleaded entirely encompassed the elements of the municipal DWI, the prosecution was barred under the “same elements” test of Blockburger. Id. at 626-27.

Unlike the situations in Clark and Steck, the elements of Reando’s misdemeanor offense are not included in any of his charged felony offenses. His failure to drive on the right side of the road was evidence of his criminal negligence and recklessness, but that conduct was not an “element” of those crimes. See Hoover v. Denton, 335 S.W.2d 46, 48-49 (Mo.1960), and Daws, 311 S.W.3d at 809. Accordingly, the circuit court did not put him in double jeopardy by entering judgment on the convictions for second-degree involuntary manslaughter and second-degree assault. Point I is denied.

Sufficiency of the Information

In Point II, Reando contends the Second Amended Information failed to apprise him of the mental state the State was required to prove to convict him of the involuntary manslaughter and assault charges. The Second Amended Information alleged, in pertinent part, the following:

[The State] charges that the defendant, in violation of Section 565.024 RSMo, committed the class D felony of involuntary manslaughter in the second degree ... in that on or about April 4, 2007, ... the defendant caused the death of Dustin Lambert by being the driver of an automobile in which Dustin Lambert was a passenger, by operating the motor vehicle with criminal negligence in that the defendant was operating the motor vehicle in a careless and imprudent manner, causing an accident[.]
[The State] charges that the defendant, in violation of Section 565.060, RSMo, committed the class C felony of assault in the second degree ... in that on or about April 4, 2007, ... the defendant recklessly caused serious physical injury to Kathy (sic) Holliday acting with criminal negligence in that the defendant was operating the motor vehicle in a careless and imprudent manner causing it to strike the vehicle that Kathy (sic) Holli-day was driving, causing serious physical injury to Kathy (sic) Holliday[.]
[The State] charges that the defendant, in violation of Section 565.060 RSMo, committed the class C felony of assault in the second degree ... in that on or about April 4, 2007, ... the defendant recklessly caused serious physical injury to C.B. by acting with criminal negligence in that the defendant was operating a motor vehicle that C.B. was a passenger in; in a careless and imprudent manner and caused the vehicle to strike another vehicle, causing serious physical injury to C.B.

Reando claims prejudice because he was required to defend against multiple mental states as to each count. He also asserts the use of multiple mental states reduced the State’s burden of proof on the felony offenses.

Although Reando objected to the State’s request for leave to file the Second Amended Information and raised the claim in his new trial motion, the basis for his objection was timeliness and not the sufficiency of the charge. Consequently, his newly raised claim on appeal is subject to a narrow scope of review for actual prejudice.

An information or indictment will be deemed insufficient, where the issue is raised for the first time after a verdict or judgment, “only if it is so defective that (1) it does not by any reasonable construction charge the offense of which the defendant was convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced.”
A defendant is only entitled to relief based on a post-trial claim that the information is insufficient if the defendant demonstrates actual prejudice.

State v. Williams, 126 S.W.3d 377, 380-81 (Mo.banc 2004) (internal citations omitted).

To test the sufficiency of an indictment, we must consider whether it contains all of the essential elements of the statutory offense and clearly informs the defendant of the facts constituting the offense. State v. Hodges, 829 S.W.2d 604, 606 (Mo.App.1992). Here, the charging document cited the statutes under which Reando was charged and the level of culpability required for his conviction. That level of culpability was reflected in the information under each count: criminal negligence for second degree involuntary manslaughter and recklessness for second degree assault. It alleged the date of the offenses and the specific acts providing the factual basis for the charges. The Second Amended Information was adequate to inform Reando of the charges against him.

Although the Information further alleged that Reando had driven his vehicle in a “careless and imprudent manner,” this general description of his conduct did not misstate the necessary culpable mental state. The language was used to broadly describe the conduct leading to the charges. Such language is surplusage and does not entitle Reando to a new trial. Section 545.030.1(14).

The State v. Ricker case on which Rean-do relies is distinguishable. 936 S.W.2d 167 (Mo.App.1996). In Ricker, the information charged the defendant with acting “recklessly” when the first-degree assault statute required that he act “knowingly.” 936 S.W.2d at 170. The court reversed the conviction because the necessary culpable mental state was misstated in the charging document. Id. at 171. The misstatement reduced the State’s burden of proof and allowed the jury to convict the defendant of first degree assault for acting recklessly instead of knowingly. Id. By contrast, the information in Reando’s case included the requisite mental state and also provided a statutory reference to which the circuit court could refer if there was any question about the applicable standard. The inclusion of additional factual information in the information did not lower the State’s burden of proof, particularly in this bench-tried case where the circuit court is presumed to understand and apply the proper mental state. State v. Poole, 216 S.W.3d 271, 277 (Mo.App.2007).

Reando further argues his defense was hampered because he was forced to defend against the multiple and contradictory mental states in the Second Amended Information. His defense was that his brother’s death and the injuries to Cathy Holliday and C.B. were the result of a tragic unfortunate accident for which he lacked the requisite mental state. As explained herein, the Second Amended Information was sufficient to apprise Reando of the charges against him, the requisite mental states, and the factual bases for the allegations. Although there were separate mental states listed for each offense, there was nothing to contradict the State’s obligation to prove criminal negligence for second degree involuntary manslaughter and recklessness for second degree assault. Reando has not demonstrated how he would have defended the matter differently if the information had not contained the additional facts on which his charges were based. In the absence of any specific indication that his defense was hindered by the alleged defects in the information, Reando is not entitled to relief. See Williams, 126 S.W.3d at 381.

Reando has failed to demonstrate any defects in the Second Amended Information that resulted in actual prejudice. Accordingly, we find no error and deny his second point on appeal.

Conclusion

We affirm the circuit court’s judgment.

All Concur.

      . All statutory references are to Revised Statutes of Missouri (2000) as updated by the Cumulative Supplement (2009) unless otherwise noted.

      . Notably, Dixon overruled the Supreme Court’s prior holding in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), a case with remarkably similar facts to those before us.
      In Grady, the defendant drove his car over the double yellow line and crashed into oncoming traffic, killing one person and seriously injuring another. 495 U.S. at 511, 110 S.Ct. 2084. He pled guilty to misdemeanor traffic tickets for DWI and failing to keep right of the median. Id. at 512-13, 110 S.Ct. 2084. Later, he was charged with manslaughter and assault for reckless conduct that included driving too fast for the road conditions and operating a vehicle while intoxicated. Id. at 513, 110 S.Ct. 2084. Grady argued the felony prosecutions were barred by double jeopardy because the State would rely on the prior traffic offenses to prove the manslaughter and assault charges. Id. at 514-15, 110 S.Ct. 2084. The Supreme Court agreed, concluding that even though the charges survived the Blockburger "elements” test, "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 521, 110 S.Ct. 2084.
      Three years later, the Court overruled Grady finding its "same conduct” rule to be inconsistent with earlier Court precedent and "the clear common-law understanding of double jeopardy.” Dixon, 509 U.S. at 704, 113 S.Ct. 2849. The Court concluded the government could bring charges against a defendant even if the charges depend on proof of conduct for which that defendant had already been prosecuted, unless those charges are barred by the Blockburger "same elements” test. Id. at 703-04, 712, 113 S.Ct. 2849; State v. Bums, 877 S.W.2d 111, 112 (Mo.banc 1994).

      . The reasoning in Clark was recently overruled in State v. Daws, 311 S.W.3d 806 (Mo.banc 2010), wherein the Court held that the presumption of flight (arising from the failure to heed emergency signals) is merely an evi-dentiary rule and not an "element” of the offense of resisting arrest. Id. at 809. Therefore, the "elements” of the two charges were not the same and would not support a double jeopardy claim. Id.

      . In State v. Parkhurst, 845 S.W.2d 31, 35 (Mo.banc 1992), the Supreme Court determined that failing to include the "knowingly” level of culpability in an information was not a fatal defect under circumstances such as we have here. The statute containing the mental state was included in the information and other factual allegations gave the defendant adequate notice of the crime with which he was charged. Id.


text:
    Daniel W. LOEHR, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71341.
    Missouri Court of Appeals, Western District.
    July 6, 2010.
    Nancy A. McKerrow, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES E. WELSH, and KAREN KING MITCHELL, JJ.
   ORDER

PER CURIAM:

Mr. Daniel Loehr appeals the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief. Mr. Loehr claims the trial court erred in denying his claim for jail time credit.

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