author: MARK D. PFEIFFER, Judge.

text:
    STATE of Missouri, Respondent, v. Dale S. OLTEN, Jr., Appellant.
    Nos. WD 71482, WD 71483.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2010.

      Margaret M. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   MARK D. PFEIFFER, Judge.

Following a jury trial in the Circuit Court of Cole County (“trial court”), Dale Olten, Jr. (“Olten”), was convicted on one count of burglary in the first degree, § 569.160, and one count of burglary in the second degree, § 569.170, and was sentenced to two concurrent seven-year prison sentences. Olten appeals his conviction of burglary in the first degree, contending that the trial court erred in overruling his motion for judgment of acquittal, as he claims the State failed to prove beyond a reasonable doubt that Olten or Jesse Patterson (“Patterson”) were “armed” with a deadly weapon during their flight from the burglary. Olten asks this court to reverse his conviction for burglary in the first degree and impose a conviction for burglary in the second- degree. We reject Olten’s argument on appeal and affirm the judgment below.

Factual and Procedural Background

Viewing the record in the light most favorable to the jury’s verdict, the following evidence was established at trial:

On January 16, 2009, Olten, Patterson, and a man named Jeremy went to a home on Route N in Cole County with the intent to burglarize the residence. Olten and Jeremy broke glass out of a basement door and entered the home. Once all three men were inside, Olten went to a closet where he found an AR-15- rifle and a Glock pistol, Patterson located a flat-screen television, and Jeremy rummaged through jewelry. Olten and Jeremy carried the guns and jewelry to the car before returning inside to help Patterson remove the television. In all, the three men stole several items from the home, including a laptop, a camera, an M-4 rifle, two holsters, magazines for the weapons, and ammunition. After the burglary, the three men took the stolen items back to the home of Olten’s father.

On February 27, 2009, officers from both Cole and Miller Counties received word of a suspicious vehicle parked in front of a home near the border between Cole and Miller Counties. The car fit the description of a vehicle for which the officers were looking. Before the deputies could arrive, witnesses saw two men run from the house. When officers arrived, they found two driver’s licenses in the car, one belonging to Olten and another to Patterson. A search for the men promptly ensued. Patterson was eventually apprehended and taken in for questioning regarding the burglaries.

Patterson admitted that he, Olten, and Olten’s father had burglarized the Cotton home. Based on this information, officers secured a search warrant for Olten’s father’s home. During that search, officers recovered items that had been stolen from the Delgado burglary in January. A few days later, officers located both Olten and his father hiding out in an apartment in Russellville, Missouri.

Olten was arrested and charged with burglary in the first degree for the burglary of the Delgado home and burglary in the second degree for the burglary of the Cotton home. By agreement, the two Cole County circuit cases were consolidated for trial. At the close of the evidence, the trial court overruled Olten’s motion for acquittal. Subsequently, the jury found Olten guilty on both counts. The trial court denied Olten’s motion for a new trial and sentenced him to two concurrent seven-year prison terms. This timely appeal follows.

Standard of Review

Upon a challenge to the trial court’s denial of a motion for acquittal, we review to determine if the State presented sufficient evidence from which a reasonable juror may have found the defendant guilty beyond a reasonable doubt. State v. Crews, 968 S.W.2d 768, 765 (Mo.App. E.D.1998) (citing State v. Grim, 854 S.W.2d 408, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993)). In determining whether the evidence is sufficient to support a conviction, we accept as true all evidence and inferences in a light most favorable to the verdict and disregard all evidence and inferences to the contrary. State v. Sales, 255 S.W.3d 565, 566-67 (Mo.App. S.D.2008) (quoting State v. Granger, 966 S.W.2d 27, 29 (Mo.App. E.D.1998)). However, this court “may ‘not supply missing evidence or give the [State] the benefit of unreasonable, speculative or forced inferences.’ ” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)).

Analysis

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 897 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). It is the State’s burden to prove every element of the crime beyond a reasonable doubt. State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010). To prove burglary in the first degree, the State must establish that the defendant:

knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, he or another participant in the crime:
(1) Is armed with explosives or a deadly weapon or;
(2) Causes or threatens immediate physical injury to any person who is not a participant in the crime; or
(3) There is present in the structure another person who is not a participant in the crime.

§ 569.160.1 (emphasis added).

Olten argues that the trial court erred in overruling his motion for acquittal at the close of evidence and his motion for a new trial because the State failed to prove beyond a reasonable doubt that Olten or Patterson was “armed” with a deadly weapon under section 569.160. Olten contends that mere possession of a stolen gun cannot satisfy the “armed with a deadly weapon” requirement of section 569.160; thus, the State failed to present sufficient evidence to secure a conviction of Olten under the first-degree burglary statute. Olten further alleges that even if mere possession can constitute “armed with a deadly weapon” under section 569.160, there is still insufficient evidence to prove he or Patterson actually carried the weapons to the car, which the verdict director specifically required. Olten claims that Patterson’s testimony only established that the weapons were removed from the Delgado home. It does not indicate how or by whom the guns were taken out of the home.

Armed with a Deadly Weapon

Olten contends that mere possession of a stolen gun cannot constitute “armed with a deadly weapon,” within the meaning of section 569.160. He attempts to avoid the application of Missouri law by arguing that two Missouri cases, which held that stealing a firearm can be used to enhance a burglary conviction, were wrongly decided because they do not strictly construe the statute against the State.

The first case Olten asks us to disregard is State v. Crews, 968 S.W.2d 763 (Mo.App. E.D.1998). In Crews, the court held that a criminal defendant was considered “armed with a deadly weapon,” under section 569.160.1, when he unlawfully entered the victim’s home and took possession of the victim’s loaded rifle with the purpose of stealing it. Id. at 766. The defendant argued that the “legislature intended the term ‘armed’ in section 569.160(1) to mean more than stealing a firearm during a burglary.” Id. at 765. To determine the legislature’s intent, the court used the plain language of the statute and held that under the plain and ordinary meaning “a person is ‘armed’ when he equips himself with a weapon for the purpose of stealing it.” Id. at 765-66.

The second case Olten asks us to disregard is State v. Sales, 255 S.W.3d 565 (Mo.App. S.D.2008). In Sales, the defendant and his accomplices stole firearms during a burglary. The court agreed with Crews and applied the rule that defendant was “armed” with a deadly weapon when he stole firearms during the burglary and the State presented sufficient evidence to demonstrate that the defendant or another participant in the break-in stole firearms. Id. at 568. The court reasoned that “[i]n-creasing the penalty for a burglary involving the theft of a firearm comportfed] with the purpose of lessening the risk of putting innocent people in harm’s way during that burglary.” Id. at 571.

Olten argues that the analysis under Crews and Sales would allow a conviction of burglary in the first degree from the mere possession of a deadly weapon stolen during the course of the burglary. He claims that if the legislature had intended such a broad interpretation, then it would have used the word “possessed” rather than “armed.” Olten insists the word “armed” be interpreted to mean that the burglars used the weapon either to gain entry or to aid in flight. Olten cites a myriad of case law from various jurisdictions in support of his argument. We, however, find Olten’s arguments unpersuasive because the courts in Crews and Sales properly construed and applied section 569.160.

The primary goal of statutory construction is to “give effect to legislative intent as reflected in the plain language of the statute.” State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010) (citing State v. Salazar, 236 S.W.3d 644, 646 (Mo. banc 2007)). If the plain language of the statute is ambiguous, the statute must be construed in favor of the defendant. Winfrey v. State, 242 S.W.3d 723, 725 (Mo. banc 2008). However, this is only true if all other judicial canons of construction have been exhausted. Denbow v. State, 309 S.W.3d 831, 834 (Mo.App. W.D.2010).

When interpreting statutes, courts should rely on the definitions of words given by the legislature. However, when the legislature has not done so, we must give meaning to each word or phrase in the statute. Moore, 303 S.W.3d at 520. Here, the legislature has not defined the term “armed” for purposes of section 569.160. Therefore, this court will look to the plain and ordinary meaning of those words as defined in the dictionary. Id. (citing State v. Oliver, 293 S.W.3d 437, 446 (Mo. banc 2009)) (“In the absence of a statutory definition, words will be given their plain and ordinary meaning as derived from the dictionary.”). The term “armed” means “furnished with weapons.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 119 (1993). “Deadly weapon” is defined by the legislature as “any firearm, loaded or unloaded.” § 556.061(10), RSMo Cum.Supp.2008. Accordingly, the plain and ordinary meaning of the phrase “armed with a deadly weapon” is “to have or carry a gun.” Nothing in this definition requires people to bring a gun to a burglary or actually use a gun during the burglary, as urged by Olten. Moreover, the plain and ordinary meaning of the phrase in no way creates an ambiguity.

This interpretation of “armed with a deadly weapon” is also consistent with one of the obvious purposes behind the first-degree burglary statute — “ ‘to increase the penalty for someone who puts an innocent in harm’s way during a burglary.’ ” Sales, 255 S.W.3d at 570 (quoting State v. Washington, 92 S.W.3d 205, 209 (Mo.App. W.D.2002)). “When a defendant has in his possession a firearm, ‘the victim is placed in fear and cannot be expected to inquire into the condition of the gun. The danger remains that the reaction by the victim or some third person to the appearance of the gun will cause harm to befall someone[.]’ ” Id. (quoting State v. Luna, 99 N.M. 76, 653 P.2d 1222, 1223 (1982)). By increasing the penalty for burglary when armed with a deadly weapon, the legislature intended to deter criminals from possessing deadly weapons during a burglary so as to prevent harm to innocent persons. Consequently, once Olten carried the AR-15 rifle, the Glock pistol, and the M-4 rifle to the car during the burglary of the Delgado residence, he was “armed” within the meaning of section 569.160(1); thus, the trial court properly permitted the jury to consider the verdict director for burglary in the first degree. See Crews, 968 S.W.2d at 766.

Sufficiency of the Evidence

As discussed above, when determining whether evidence was sufficient to support a conviction, we accept as true all evidence and inferences in the light most favorable to the verdict and disregard all evidence and inferences to the contrary. Sales, 255 S.W.3d at 566-67. Patterson’s testimony was integral in securing Olten’s conviction, the sufficiency of which is contested by Olten. In pertinent part, Patterson testified that:

A. [Olten] entered the bedroom, went to the closet, and then in the closet there was an AR 15 assault rifle and a 40 cal Glock.
A. And then there was bunch of jewelry and different things that Jeremy was going through.... Then I entered the living room and proceeded to grab a big screen T.V. ..., but I couldn’t get it by myself, so they went and took everything to the car that they had, and then came back....

Patterson’s testimony does not explicitly establish which of the three men carried the weapons to the car. Olten claims that because Jeremy’s name was not included in the verdict director and because the State did not submit accessory liability in the jury instruction, there is insufficient evidence to prove he or Patterson was armed with the weapons, as the verdict director required.

Olten’s argument, however, completely ignores the standard of review in this case. When Patterson’s testimony is viewed in the light most favorable to the verdict, even though Patterson did not explicitly testify that Olten carried the weapons to the car, Patterson’s testimony created a reasonable inference that after Olten found the weapons in the closet, he took them to the car before returning to help carry the television. Likewise, it is reasonable to infer that after Jeremy looked through the jewelry, he took the jewelry to the car before returning to help carry the television. Consequently, the evidence from which the jury found that Olten was armed with a deadly weapon during his flight from the burglary was neither unreasonable nor speculative.

Conclusion

After reviewing the evidence in the light most favorable to the verdict, we find that the State presented sufficient evidence from which a reasonable juror could have found Olten guilty beyond a reasonable doubt of burglary in the first degree. We, therefore, affirm Olten’s conviction of burglary in the first degree and, consequently, affirm the judgment below.

JAMES EDWARD WELSH, Presiding Judge, and KAREN KING MITCHELL, Judge, concur.

      . All statutory references are to Revised Statutes of Missouri (2000) unless otherwise noted.

      . See State v. Moyers, 266 S.W.3d 272, 275 (Mo.App. W.D.2008) ("This court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, disregarding all contrary evidence and inferences.”).

      .The home belonged to E. and J. Delgado. '

      . The home was occupied by John Cotton.

      . The first-degree burglary case (Case No. 09AC-CR01283) was denominated Count I, and the second-degree burglary case (Case No. 09AC-CR00710) was denominated Count II.

      . While Count I and Count II were separately appealed, assigned case numbers (WD71482 and WD71483, respectively), and consolidated by this court (WD71482), Olten fails to make any mention of Count II in his appellate brief and therefore abandons Count II on appeal. Rule 30.20; see, e.g., O’Neal v. State, 766 S.W.2d 91 (Mo. banc 1989); Herron v. State, 498 S.W.2d 530, 531 (Mo. 1973); State v. Johnson, 362 Mo. 833, 245 S.W.2d 43, 49 (1952). Consequently, Count I is the only subject of this appeal.

      . Drafted pursuant to section 569.160, the first-degree burglary verdict director stated, in pertinent part:
      As to Count I, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about January 16, 2009, in
      the County of Cole, State of Missouri, the defendant knowingly entered or remained unlawfully in an inhabitable structure located at 10109 Route N, and owned and possessed by E. and J. Delgado, and Second, that defendant did so for the purpose of committing the crime of stealing therein, and
      Third, that while the defendant was in immediate flight from the inhabitable structure, he or Jesse Patterson was armed with a deadly weapon, and
      Fourth that Jesse Patterson was a participant with the defendant in the commission of the offense,
      then you will find the defendant guilty under Count I of burglary in the first degree.
      (Emphasis added.)

      . Olten cites several cases including State v. Befford, 148 Ariz. 508, 715 P.2d 761, 763 (1986) (in order to be “armed” during a burglary, the defendant must "possess the item considered a deadly weapon or dangerous instrument in such a manner as to indicate his willingness or present ability to use it as a ‘weapon.’ ”); and State v. Brown, 162 Wash.2d 422, 173 P.3d 245, 249 (2007) (a person is armed for purposes of first-degree burglary enhancement only if the firearm is easily accessible and readily available for use). For a discussion as to why we do not find any of the cited cases persuasive, see State v. Sales, 255 S.W.3d 565, 568-70 (Mo.App. S.D.2008).

      . Because we find Crews and Sales were properly decided, we incorporate much of the analysis from those cases in our ruling today.


source: Caselaw Access Project

author: WILLIAM W. FRANCIS, JR., Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Eric L. HOPPER, Appellant.
    No. SD 30201.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 23, 2010.

      Kent Denzel, Columbia, MO, for Appellant.
    Chris Koster, Attorney General and Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

A jury convicted Eric L. Hopper (“Appellant”) of second-degree murder in violation of section 565.021 and abuse of a child in violation of section 568.060. Appellant was sentenced to two concurrent terms of twenty years’ imprisonment. This appeal followed. We affirm the trial court’s judgment.

Factual and Procedural History

Because Appellant challenges the sufficiency of evidence establishing the cause of the victim’s death, it is necessary for us to review in some detail the evidence adduced at trial. The following evidence is summarized in the light most favorable to the verdict. State v. Croka, 693 S.W.2d 133, 134 (Mo.App. W.D.1985).

Appellant’s son (“T.M.”) was four months old in December 2006. On December 1, 2006, Angela Snider, T.M.’s mother, took T.M. to the doctor because he had some congestion. The doctor found no other injuries or ailments. Ms. Snider also noted T.M. had no bruises, cuts, or scrapes on his face or body.

On December 2, 2006, at approximately 8 a.m., Appellant picked T.M. up from Ms. Snider for visitation. Appellant took T.M. to his home where they played for awhile. At some point, Appellant gave T.M. a small amount of methamphetamine residue to keep T.M. awake to play. T.M. then took a nap. When T.M. woke up, he was fussy and crying. Appellant changed his diaper and then tried to feed him. T.M. would not eat and made a mess. Appellant admitted he was aggravated and washed T.M.’s hands and face roughly, then let him cry in his walker while he had a cigarette. Appellant then placed T.M. on the floor. Two times T.M. started to fall over and two times Appellant pushed him upright. Both times T.M. struck his head against the hard wooden sofa frame. After the second blow to his head, T.M. got a dazed look in his eyes. Appellant picked T.M. up and sat with him in his recliner until he noticed T.M.’s face was getting cold. At that point, Appellant contacted his mother, Glenda Queen, because T.M. was unresponsive.

Ms. Queen arrived and subsequently took T.M. to her house. Appellant left and went to his neighbor’s house. Ms. Queen’s daughter summoned Cindy Shaffer, a neighbor, and told her she thought T.M. was dead. Ms. Shaffer called 911 and was instructed on how to perform infant CPR. She noticed T.M. “had red splotches all over his face, his nose was red, and he had like red little patches all over his cheeks, his chin, forehead” and that he “was really cold, kind of almost a blue, just really cold.” Two police officers arrived and began driving T.M. to the hospital; he was transferred to an ambulance en route. The emergency medical technician observed: T.M.’s skin was pale and cold to the touch; he was unresponsive; and T.M. was showing no signs of life. T.M. was pronounced dead shortly after arrival at the hospital.

Investigators spoke with Appellant that same afternoon. They informed him of his Miranda rights, and Appellant agreed to speak with them. Appellant explained he picked T.M. up at 8 a.m. that morning and played with his son for a couple of hours before putting him down for a nap. Appellant said T.M. was fussy when he woke up from the nap and he accidentally dropped T.M. in the kitchen on the linole-urn floor while he was fixing a bottle. Appellant said he called his mother when he noticed T.M. had “a dazed look in his eyes.”

Forty-five minutes to an hour later, investigators again questioned Appellant after having learned T.M.’s head injuries were severe and did not appear to have been the result of being dropped on the floor “from a limited distance.” Appellant recounted a similar story through T.M.’s nap. He added that the injury to T.M.’s nose could have occurred when he flipped T.M. over while changing his diaper and T.M. rubbed his face into the blanket on the floor. He repeated he had dropped T.M. on the kitchen floor. Appellant said T.M. took the bottle briefly, then refused it, so he put the baby on the floor and tried to get him to play. Appellant told investigators T.M. started to fall over and when Appellant pushed him upright, T.M. hit his head against a wooden part of the sofa frame; T.M. fell a second time and when Appellant pushed him against the sofa, T.M. again hit his head. Subsequently, Appellant agreed to give a video statement.

After investigators received partial autopsy results, Appellant was again questioned. The investigator told Appellant T.M.’s injuries were “very very serious” and he did not believe Appellant had told him the truth. Again, Appellant recounted a similar story through the point of T.M.’s nap. Appellant then told investigators: he was tired; things were not going well at work as his job was seasonal, it was ending, and he had bills to pay; T.M. woke up from his nap crying; and he took T.M. from the sofa where he was napping, put him forcefully down on a blanket to change him, and when he flipped T.M. over by the ankles, T.M. landed on his face instead of his belly as he had intended. The rest of Appellant’s story — changing T.M.’s diaper, dropping him while in the kitchen fixing a bottle, and twice pushing him against the sofa so that T.M. struck the back of his head — was the same as Appellant had previously described. Appellant added that after T.M. struck his head the first time, he continued to cry but after he struck his head the second time, T.M. got a dazed look in his eyes. Appellant picked T.M. up and sat with him until he noticed T.M.’s face getting cold. He then called his mother because he thought something was wrong.

During the investigation, Appellant was told toxicology reports were requested and he was asked whether he had given T.M. any drugs. Appellant then responded for the first time that on the morning of T.M.’s death, he had ‘taken a small amount of methamphetamine residue from a “snort” tube (a white piece from an old ink pen) he had lying around and placed it on T.M.’s tongue so T.M. would be able to stay awake and play. Appellant also told investigators he was a regular methamphetamine user, and had been using marijuana and methamphetamine the previous day.

Prior to trial, Appellant filed a motion in limine to exclude any evidence regarding his admission that he placed a small amount of methamphetamine on T.M.’s tongue. During pre-trial proceedings, the trial court ruled the evidence would be admissible because it occurred around the same time T.M.’s injuries were sustained. Before opening statements, Appellant renewed his objection and the trial court reaffirmed its ruling. The trial court recognized it as a continuing objection.

At trial, the State called witnesses Angela Snider, Glenda Queen, Cindy Shaffer, the police officer who transferred T.M. to the ambulance, the emergency medical technician who performed CPR on T.M., and two investigators who questioned Appellant. These witnesses testified as to the events recounted above. The video statement of Appellant was also played for the jury.

Additionally, forensic pathologist Dr. Russell Dietaker (“Dr. Dietaker”) described the results of the autopsy and presented photographs of T.M.’s injuries. Dr. Dietaker testified T.M. had numerous abrasions on his face and head, as well as bruising on his arms consistent with being gripped. T.M. also had a large bruise on the back of his head, a broken rib, and internal bruising of the abdominal area. Dr. Dietaker also explained there was “quite extensive bruising underneath the scalp.” T.M. had two skull fractures. The fracture on the right side of his head was large and branching, indicating a significant amount of force had been applied to T.M.’s head. Additionally, Dr. Dietaker stated there “was a collection of blood over the cerebral compression, convexity, or over the top of there was a liquid layer of substance. There’s also subarachnoid hemorrhage, which is a bleeding on the surface of the brain itself.” T.M. sustained damage to his optic nerves and retinal areas and Dr. Dietaker explained all these findings as indications of significant force.

Dr. Dietaker was of the opinion that a five-foot drop onto a linoleum floor would not have caused the described injuries. He testified:

[I]]f it were a fall, it would be a fall from a significant height, 10 or 20 feet or more. If it were a blow, it would have to be a significant blow. Not a slap. This could either be a punch, or alternatively the child being struck into something. I can’t say specifically whether there was a blow applied to the head, or the head was forced into something, but, in either instance, it would be significance [sic] force applied.

Dr. Dietaker explained the two fractures indicated more than one impact was involved, but he could not be absolutely sure as a very quick significant blow such as a car accident or a very heavy object such as a television could also have created both fractures. Dr. Dietaker again noted a “single drop from that distance, wouldn’t have caused those fractures.” Dr. Dietaker was never specifically asked his opinion as to the cause of T.M.’s death.

Prior to the close of the State’s case, the parties announced a stipulation regarding the results of T.M.’s toxicology tests. The following stipulation was read to the jury and they were told it was a part of the record in the case:

The toxicology report shows that no amphetamines were found in [T.M.’s] system. If the toxicologist were to testify, he would say that this finding could mean that methamphetamine residue was placed on [T.M.’s] tongue, and not absorbed into his system, or it could mean that methamphetamine residue was not placed on [T.M.’s] tongue.

Appellant maintained T.M.’s injuries were accidental and that Appellant’s statements were the product of coercive police interrogation. In support of this theory, Appellant presented the testimony of psychologist Dr. Thomas Blansett, who had evaluated him prior to trial. Dr. Blansett opined that Appellant was highly susceptible to suggestion and likely would yield to someone in authority, like a police officer. In rebuttal, the State presented psychologist Dr. Byron English, who rejected Dr. Blansett’s opinion regarding Appellant’s tendencies when confronted by authorities.

Appellant testified in his own defense. He stated that while it was true he dropped T.M. on his head, he denied the other events he confessed to police, including putting methamphetamine residue on T.M.’s tongue. He claimed he told police those things only because they were yelling at him and did not seem to believe his story about how T.M. was injured. He further testified he never intended to harm his son.

The jury convicted Appellant of second-degree murder and abuse of a child resulting in death.

Appellant contends the trial court erred in: (1) overruling his motion for judgment of acquittal because there was insufficient evidence demonstrating the cause of T.M.’s death; and (2) admitting the evidence Appellant placed methamphetamine on T.M.’s tongue as it was inadmissible, uncharged misconduct, and deprived him of a fair trial. The issues for determination are:

1. Was there sufficient evidence to prove the injuries Appellant inflicted on T.M. caused his death ?
2. Was it an abuse of discretion to admit evidence showing Appellant placed methamphetamine residue on T.M.’s tongue ?

Sufficient Evidence to Show Cause of Death

In Appellant’s first two points, he contends the trial court erred in overruling his motion for judgment of acquittal and in entering a judgment of guilty on both counts in that the evidence was insufficient to establish, beyond a reasonable doubt, Appellant caused T.M.’s death because no expert opinion was offered as to the cause of T.M.’s death. It is significant to note that Appellant admits “he caused [T.M.’s] injuries” and only disputes whether the jury was entitled to infer those injuries were the cause of T.M.’s death.

Standard of Review

When reviewing a challenge to the sufficiency of the evidence, we determine whether there is sufficient evidence from which a reasonable juror could have found Appellant guilty beyond a reasonable doubt. State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003). We must consider the evidence in the light most favorable to the State and grant the State all reasonable inferences from the evidence, while disregarding contrary inferences “unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.” Id. This Court may “ ‘not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.’ ” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)). ‘We defer to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony.” State v. Davis, 219 S.W.3d 863, 866 (Mo.App. S.D.2007).

Analysis

Appellant was charged with second-degree murder in violation of section 565.021.1(1) and abuse of a child resulting in death in violation of section 568.060.3(2). Thus, to sustain Appellant’s convictions as to both counts, the State had to prove Appellant’s conduct caused T.M.’s death. “Circumstantial evidence may be sufficient if the facts in evidence are such that every person of average intelligence would know that the wound was mortal in character.” Croka, 693 S.W.2d 133 at 135. Expert testimony from a physician is not always required to prove cause of death. Id.

In viewing all the evidence and reasonable inferences in favor of the verdict, we find it reasonable to conclude that every person of average intelligence would know from experience or general knowledge that the injuries inflicted by Appellant upon T.M., an infant, were mortal in character. Although Dr. Dietaker failed to specifically offer an opinion as to the cause of T.M.’s death, the circumstantial evidence permits an inference of a causal relationship between T.M.’s injuries and his death so as to support the verdict. This evidence includes: (1) the physician’s finding that T.M. was without injury or ailment other than congestion the previous day; (2) Appellant’s statements regarding T.M.’s appearance and demeanor before and after Appellant struck T.M.’s head against the hard surface; (3) other witness testimony that T.M. remained lifeless after the blows to his head; (4) Dr. Dietaker’s extensive testimony regarding the seriousness of T.M.’s injuries; and (5) Dr. Dietaker’s conclusion as to the force necessary to inflict such injuries.

In addition to the testimony that showed the severe consequence of the blows to T.M.’s head, Dr. Dietaker described the severity of T.M.’s head injuries, internally and externally, and presented photographs of these injuries. Specifically, Dr. Dietaker testified T.M. had a large bruise on the back of his head, extensive bruising under the scalp, and two skull fractures. The fracture on the right side of T.M.’s head was described as “large and branching.” He also stated there “was a collection of blood over the cerebral compression, convexity, or over the top of there was a liquid layer of substance ... and bleeding on the surface of the brain itself.” Dr. Dietaker testified there was also damage to the optic nerves and retinal areas.

Significantly, Dr. Dietaker testified to the substantial force necessary to cause these injuries and concluded a drop onto a linoleum floor from five feet could not have caused the described injuries, but rather required a fall from a significant height, or a significant blow, which might include T.M. being struck into something. He concluded these injuries were a result of a significant amount of force being applied to T.M.’s head. He further explained that the two fractures indicated more than one impact was involved, although he opined a very quick significant blow, or a very heavy object, could also create both fractures.

T.M.’s mother testified T.M. had no bruises, cuts, scrapes or scabs before he was left with Appellant. Multiple lay witnesses testified to T.M.’s state before and after he sustained the severe head injuries. Furthermore, Appellant explained some of the normal infant behaviors T.M. exhibited just before sustaining the head injury; i.e., playing, napping, crying, and squirming.

Notably, Appellant noticed an immediate change in T.M. after the second time Appellant struck his head against the hard surface. Appellant noticed T.M. “didn’t have any movement” after that. Appellant stated the first time he struck T.M.’s head against the sofa he continued to cry, but after the second time he struck T.M.’s head, T.M. got a dazed look in his eyes and Appellant soon noticed his face was getting cold. At this time, Appellant himself recognized something was seriously wrong with T.M. Ms. Queen’s daughter observed T.M. appeared to be dead. Ms. Shaffer, the neighbor who performed CPR on T.M., also noticed T.M. “was really cold, kind of almost a blue, just really cold.” The emergency medical technician continued CPR on T.M. until he arrived at the hospital, where he was pronounced dead shortly thereafter. The direct observations of witnesses demonstrated T.M. immediately became unresponsive and never showed any sign of life after the second impact of T.M.’s head on the hard surface.

Appellant testified he never intended to harm his son and that while he did drop T.M., he had fabricated some of his other statements to investigators. Nevertheless, we are required to give deference to the jury’s credibility decisions. State v. Herrington, 315 S.W.3d 424, 425 (Mo.App. S.D.2010). Unlike the reviewing tribunal, which only sees the cold record and does not have the opportunity to judge the witnesses who gave testimony, the jurors were able to view first-hand all the witness testimony placing them in a superior position to determine witness credibility and the weight and value of their testimony. The jury was entitled to believe some, all, or none of the testimony of witnesses when arriving at their verdict. Id.

In this day and age, a person of .average intelligence would know that a severe and significant blow to an infant’s head could be mortal. T.M., a four-month-old infant, did not sustain a simple skull fracture. T.M. had multiple fractures, extensive bruising under the scalp, and bleeding on the surface of his brain. These extensive injuries required a significant amount of force to inflict. Witnesses, and Appellant himself, testified to the dramatic effect Appellant’s actions had on T.M. as he was a healthy infant crying and playing until the second time Appellant struck his head against a hard surface causing his eyes to become dazed, and his body to turn cold, blue and lifeless. We are persuaded the totality of evidence adduced regarding the cause of T.M.’s death allows every person of average intelligence to conclude, without the benefit of unreasonable, speculative or forced inferences, that the head injuries caused by Appellant were mortal for T.M.

Appellant attempts to distinguish this case from Croka, and State v. Harris, 870 S.W.2d 798, 811 (Mo. banc 1994), because those cases involved a gunshot wound, producing almost immediate death to the victim, unlike these facts. We find Appellant’s attempt to distinguish the cases on the grounds that a gunshot is more serious than continually striking an infant’s head on a hard object with a significant amount of force unavailing. Appellant argues that “evidence of consequences following immediately upon the shooting is not present in this case.” In Harris, the medical examiner failed to testify the gunshot the victim sustained caused his death. Nevertheless, the Missouri Supreme Court found the medical examiner’s testimony about the effects of the gunshot on the victim, coupled with eyewitness testimonies about victim’s reaction after being shot, and the fact the victim was dead before paramedics were summoned, was sufficient to support the conviction when all evidence and inferences properly drawn from it were considered. Id. at 811. Here, the evidence of the consequences following Appellant’s actions are comparable — T.M. became unresponsive immediately after Appellant struck his head the second time and never showed any signs of life thereafter.

We find the totality of evidence adduced regarding the cause of T.M’s death was sufficient to prove the injuries Appellant inflicted on T.M. caused his death. Thus, when all the evidence and inferences properly drawn from it are considered, sufficient evidence exists to support the conviction. Points I and II are denied.

No Erroneous Admission of Evidence

Next, Appellant contends the trial court abused its discretion by admitting into evidence testimony that Appellant put methamphetamine residue on T.M.’s tongue in that it was evidence of uncharged misconduct neither logically nor legally relevant to prove Appellant struck T.M.’s head against a hard surface, and it did not fit within any exception to the prohibition against introducing evidence of uncharged crimes. He further argues that even if it did have some probative value, it was greatly outweighed by its prejudicial effect. The State contends: (1) the evidence was relevant as part of the circumstances directly surrounding the crime; (2) the evidence controverted Appellant’s testimony that T.M.’s injuries were the result of an accident; and (3) Appellant was not prejudiced in that there was overwhelming evidence of his guilt.

Standard of Review

“The trial court is vested with broad discretion to admit and exclude evidence at trial, and this Court will find error only if the lower court’s discretion was clearly abused.” State v. Colvin, 312 S.W.3d 436, 438 (Mo.App. S.D.2010). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Furthermore, we review the trial court’s decision not merely for error, but for prejudice, and will reverse only if the error was so prejudicial that it deprived Appellant of a fair trial. Id. In order to prove that error was prejudicial, a defendant must show a reasonable probability that absent such evidence, the verdict would have been different. State v. Tillman, 289 S.W.3d 282, 294 (Mo.App. W.D.2009).

Analysis

A criminal defendant has the right to be tried only for the crime charged, and for this reason, the general rule is that evidence of uncharged crimes or prior misconduct is not admissible at trial unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008). However, there are several well-established exceptions to this rule, and such evidence may be admitted if it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan, or the identity of the person charged with the commission of the crime on trial. Id.; State v. Bernard, 849 S.W.2d 10,13 (Mo. banc 1993). “ ‘An additional exception is recognized for evidence of uncharged crimes that are part of the circumstances or the sequence of events surrounding the offense charged. This evidence is admissible to present a complete and coherent picture of the events that transpired.’ ” State v. Morrow, 968 S.W.2d 100, 107 (Mo. banc 1998) (quoting Harris, 870 S.W.2d at 810) (internal citations omitted).

“The list of exceptions to the general rule is not exclusive but, in each instance, announce a judicial conclusion that the prior-bad-acts evidence is both logically and legally relevant.” State v. Roberts, 948 S.W.2d 577, 591 (Mo. banc 1997). Evidence is logically relevant if it tends to establish defendant’s guilt; it is legally relevant when its probative value outweighs its prejudicial effect. Colvin, 312 S.W.3d at 439. “ ‘The balancing of the effect and value of evidence rests within the sound discretion of the trial court.’” Id. (quoting State v. Smith, 292 S.W.3d 595, 599-600 (Mo.App. S.D.2009)).

Here, we find the trial court did not abuse its discretion in admitting evidence that Appellant placed methamphetamine residue on T.M.’s tongue the morning of his death. A part of the defense was Appellant accidentally caused T.M.’s injuries resulting in his death, as opposed to intentional conduct on Appellant’s part. The evidence was part of the sequence of events leading up to T.M.’s death and necessary to present a complete and coherent picture of the crimes charged. Appellant explained to investigators he had placed methamphetamine residue on T.M.’s tongue the same morning he continually struck T.M.’s head. Appellant’s intentional conduct toward T.M. after picking T.M. up and taking T.M. into his sole custody is probative of Appellant’s increasing frustrations in attempting to care for T.M. The events which occurred the morning of T.M.’s death, including any abusive conduct toward T.M., provide important context for a jury to understand Appellant’s subsequent abuse that caused T.M.’s fatal injuries.

The State is also correct that this evidence is admissible because it tends to show T.M.’s injuries were not the result of an accident. Evidence of prior bad acts may also be admissible when the defendant claims that the victim’s injuries were the result of an accident. State v. Candela, 929 S.W.2d 852, 871 (Mo.App. E.D.1996). In this case, Appellant claimed that T.M.’s injuries were the result of an accident and that he never intended to harm T.M. Because Appellant’s intent was at issue, evidence of Appellant’s purposeful mistreatment of T.M. earlier that morning was admissible to support the State’s position that Appellant knowingly inflicted T.M.’s injuries. See State v. Franklin, 854 S.W.2d 55, 58 (Mo.App. W.D.1993) (holding that evidence of a child’s malnourishment was probative of defendant’s feelings for the child, was relevant as proof of defendant’s general animosity toward him, and supported the inference that defendant intended to cause him serious physical injury when the child’s death was caused by a blunt impact to the abdomen). Similarly, placing residue of an illegal drug on T.M.’s tongue was potentially harmful to the infant’s well-being. It was probative of the Appellant’s feelings for T.M. and his intentional disregard for T.M.’s well-being, and supported the inference that Appellant intended to cause him serious physical injury. Appellant’s abuse of T.M. falls under a well-established exception to the prohibition of evidence of prior bad acts as it tends to establish Appellant’s intent to harm T.M. and the absence of an accident in T.M.’s death.

Finally, the evidence was not so prejudicial as to require reversal. It is unlikely this evidence influenced the jurors to create a reasonable probability that the jury would have acquitted but for its admission as overwhelming evidence of Appellant’s guilt was adduced during trial. That evidence is recounted in the analysis of Appellant’s first two points in this opinion and need not be recounted here.

Therefore, there is no showing the trial court’s ruling was clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. We find the trial court did not abuse its discretion in overruling Appellant’s objection to this evidence. Accordingly, Appellant’s Point III is denied.

The judgment and sentence of the trial court is affirmed.

SCOTT, C.J., and BATES, J., Concur.

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

      . Count I alleged Appellant "knowingly caused the death of [T.M.] by striking the victim's head on a hard surface” and count II alleged Appellant "knowingly inflicted cruel and inhuman punishment upon [T.M.], a child less than seventeen years old, to wit; 4 months, by striking his head repeatedly on a hard surface, fracturing the child’s skull, and thereby caused the death of the child.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . To sustain a conviction for second-degree murder, the State must introduce evidence allowing a reasonable inference that the defendant knowingly caused the death of the victim. § 565.021.1(1).

      . To sustain a conviction for abuse of a child, the State must adduce evidence that the defendant knowingly inflicted cruel and inhuman punishment on a child who was less than seventeen years old. § 568.060.1(1). The crime is a class A felony if the child dies as a result of the injuries sustained. § 568.060.3(2).

      . Appellant also aims to distinguish this case from three others in which a conviction was rendered without direct evidence of the cause of death. See State v. Ellison, 980 S.W.2d 97 (Mo.App. W.D.1998), State v. Hayes, 15 S.W.3d 779 (Mo.App. S.D.2000), and State v. Daniels, 179 S.W.3d 273 (Mo.App. W.D.2005). However, we find it unnecessary to address these three cases, as each involves an act of concealing or mutilation of the body in an attempt to cover up the killing. Since there is evidence of the immediate consequence of Appellant smashing T.M.’s head on a hard surface, it is unnecessary to compare these cases.

      . It is of no consequence that the trial court held it admissible on other grounds as a trial court's ruling on the admissibility of evidence will be upheld if it is sustainable on any theory. State v. McLaughlin, 272 S.W.3d 506, 509 (Mo.App. E.D.2008).

      . Appellant’s attorney argued that "even if you believe the statement that [Appellant] shoved in baby’s head, pushed that baby’s head, that baby's head against a hard object, the board on the couch, that that was not an intentional act on [Appellant’s] part to harm the baby.”


text:
    Brittany CROWDER, Claimant/Appellant, v. A.J. GROCERIES CORPORATION, and Division of Employment Security, Respondents.
    No. ED 95600.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 30, 2010.
    Brittany Crowder, St. Louis, for appellant.
    Michael Pritchett, Jefferson City, A.J. Groceries, St. Louis, for respondent.
   Brittany Crowder (Claimant) has filed a notice of appeal from the Labor and Industrial Relations Commission’s (Commission) decision regarding her application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was disqualified from receiving unemployment benefits because she had been discharged for misconduct connected with her employment. Claimant sought review with the Appeals Tribunal, which affirmed the deputy’s determination. Claimant then filed an application for review with the Commission. On August 18, 2010, the Commission issued its decision dismissing Claimant’s application for review as untimely. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

The unemployment statutes require a claimant to file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. Section 288.210, RSMo 2000. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000.

Here, the Commission mailed its decision to Claimant on August 18, 2010. Therefore, the notice of appeal to this Court was due on or before Tuesday, September 17, 2010. Sections 288.200.2, 288.210. The secretary of the Commission certified that Claimant filed her notice of appeal on September 30, 2010, which is untimely. The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phil lips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Because unemployment benefits are solely a creature of statutory provision, this Court cannot create an exception where none exists. See, Martinez v. Lea-Ed, Inc., 155 S.W.3d 809, 810 (Mo.App. E.D.2005).

The Division’s motion to dismiss is granted. The appeal is dismissed.

KURT S. ODENWALD, J. and GARY M. GAERTNER, JR., J., concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Jeannie R. SWOPE, Appellant.
    No. WD 70522.
    Missouri Court of Appeals, Western District.
    Dec. 7, 2010.
    Kent Denzel, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before Division One: JAMES M. SMART, JR., P.J., MARK PFEIFFER, and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

Jeannie Swope appeals her conviction following a jury trial for attempt to manufacture a controlled substance. She claims the trial court erred in denying a mistrial and in failing to disqualify the prosecuting attorney. The judgment is affirmed. Rule 30.25(b).


author: D. MICHAEL SWINEY, J.,

text:
    BAIRD TREE COMPANY, INC. v. CITY OF OAK RIDGE, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 10, 2010 Session.
    April 26, 2010.
    Permission to Appeal Denied by Supreme Court Oct. 12, 2010.
    David H. Dunaway, LaFollette, Tennessee, for the Appellant, Baird Tree Company, Inc.
    Benjamin K. Lauderback, Knoxville, Tennessee, for the Appellees, City of Oak Ridge and Jerry Dover, individually and as Electric Operations Manager for the City of Oak Ridge.
    Frank M. Fly, Murfreesboro, Tennessee, for the Appellee, Seelbach and Company, Inc.
    William A. Blue, Jr., Nashville, Tennessee, for the Appellee, Environmental Consultants, Inc.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.

In 2004, Baird Tree Company, Inc. (“Baird Tree”) unsuccessfully bid on a tree trimming and removal project with the City of Oak Ridge (“Oak Ridge”). Baird Tree filed a lawsuit claiming, inter alia, that Oak Ridge’s bidding process violated the Tennessee Trade Practices Act, Tenn. Code Ann. § 47-25-101. We affirmed the Trial Court’s grant of summary judgment to the defendants because the contract at issue was a contract for services, not goods, and, therefore, the Tennessee Trade Practices Act did not apply. We also concluded that Baird Tree could not challenge the bidding process because it had failed to submit a valid bid in the first place. See Baird Tree Co., Inc. v. City of Oak Ridge, No. E2007-01933-COA-R3-CV, 2008 WL 2510581 (Tenn.Ct.App. June 24, 2008). When the same project came up for bid in 2007, Baird Tree again submitted a fatally defective bid. When it was not awarded the contract, Baird Tree filed the present lawsuit raising various challenges to Oak Ridge’s bidding process. The Trial Court granted summary judgment to all defendants. We, again, conclude that Baird Tree does not have standing to challenge the bidding process because it submitted a fatally defective “bid” in the first place. The judgment of the Trial Court is, therefore, affirmed.

Background

This is the second occasion we have had to consider an appeal from two different lawsuits involving the same primary parties and virtually identical subject matter. The present lawsuit was filed in September 2007 by Baird Tree against several defendants, including Oak Ridge. In a nutshell, Baird Tree claimed that it was improperly excluded from bidding on a tree trimming and tree removal contract that was opened for bids by Oak Ridge in 2007.

This is not the first time Baird Tree has made such a claim. In fact, Baird Tree filed a previous lawsuit in 2004 when an earlier tree trimming and tree removal contract was awarded by Oak Ridge to Seelbach and Company (“Seelbach”). Seelbach has been a defendant in both lawsuits. In the first lawsuit, Baird Tree claimed, among other things, that the defendants had violated the Tennessee Trade Practices Act, Tenn.Code Ann. § 47-25-101, et seq., (the “TTPA”). The Trial Court granted summary judgment to the various defendants after finding: (1) the TTPA did not apply to the tree trimming and removal contract at issue because it was a contract for services, as opposed to goods; and (2) Baird Tree lacked standing to pursue the claims set forth in the complaint because it never submitted a valid bid in the first place.

Baird Tree appealed the Trial Court’s grant of summary judgment to the defendants. In June 2008, this Court affirmed the judgment of the Trial Court in Baird Tree Co., Inc. v. City of Oak Ridge, No. E2007-01933-COA-R3-CV, 2008 WL 2510581 (Tenn.Ct.App. June 24, 2008), no appl. perm, appeal filed {“Baird I”). Due to the relevance of and similarities between Baird I and the present appeal, we will quote heavily from our earlier Opinion:

Oak Ridge began accepting bids in July of 2004 for a two year project involving tree trimming, tree removal, brush and limb chipping, etc. Plaintiff was one of three bidders on this project. The two other bidders were Wolf Tree Trimming (‘Wolf Tree”) and Seelbach and Company, Inc. (“Seelbach”). After bidding was completed and the contract was awarded to Seelbach, Plaintiff filed this lawsuit primarily alleging that the bidding process was improper and Plaintiff was the lowest bidder and should have been awarded the contract. Plaintiff also claimed that Oak Ridge violated the Tennessee Trade Practices Act, Tenn.Code Ann. § 47-25-101, et seq. (the “TTPA”). Plaintiff sought compensatory damages in the amount of profit it would have realized had it been awarded the contract.
Oak Ridge filed a motion for summary judgment claiming, inter alia, that the undisputed material facts established that it was entitled to a judgment as a matter of law because: (1) Plaintiffs bid failed to meet the necessary bidding requirements; (2) even if Plaintiffs bid did meet the necessary requirements, Plaintiffs bid was not the lowest bid; and (3) Plaintiff failed to state a claim upon which relief could be granted under the TTPA.

Id., at *1 (footnote omitted).

As stated, one of the issues in Baird I was whether Baird Tree even had submitted a valid bid and, if not, whether that failure had any impact on the claims raised in the complaint. The defendants argued that Baird Tree’s “bid” was woefully inadequate due primarily to Baird Tree’s intentional refusal to provide much of the requested information. There was a substantial amount of proof on this issue:

One of the exhibits is an August 20, 2004, letter from Jerry Dover (“Dover”), the Electric Operations Manager for Oak Ridge. This letter was sent to Mr. Bobby Baird, the owner and president of plaintiff Baird Tree Company, Inc. Dover’s letter concerned the bid that had been submitted by Plaintiff. In this letter, Dover stated that Oak Ridge was “having difficulty determining your firm’s qualifications and ability to perform the work as outlined in the bid documents.” The letter then provides a detailed description of additional information needed by Oak Ridge. According to the letter, Plaintiffs bid did not provide three references for whom work similar to that being bid on was performed. Next, the bid documents required Plaintiff to furnish a list of five “right of way and tree trimming/herbicide application (spraying) contracts performed in the last twelve months.” According to Dover, this information was not supplied by Plaintiff. Finally, Dover stated that Plaintiff had not complied with the requirement in the bid documents to furnish a list of all contracts presently being performed. The letter then states:
This letter is to advise you that the information supplied with the bid is inadequate in that the information requested under this item was not supplied. Please supply a list of all such similar contracts presently being performed along with the names and telephone numbers of the persons with whom the contractor has primary contact. If your firm has no such contracts, so state in your reply.
The City wishes to proceed with summarizing of the bid responses to the referenced contract as expeditiously as possible. Please furnish the requested information and clarifications in writing by the close of business August 25th, 2004.
On August 23, 2004, Mr. Baird sent a response to Dover’s letter. In this letter, Mr. Baird flat out refused to supply any additional information. Mr. Baird’s response states, in part, as follows:
On August 23, 2004,1 received a letter from you in which you required a detailed response by August 25, 2004. I find this to be an unreasonable request and in the interest of time and brevity this letter is hereby forwarded.
In response to your letter the following information is submitted:
A) This company has submitted to you adequate information regarding the references and evidence of outstanding execution and workmanship.
B) Baird Tree Company, Inc. has all required State Licenses for Tree Trimming and Brush Control along overhead power lines.
It is my belief that your additional requirements are onerous in that they are particularly prejudicial to small, locally owned businesses....
In your letter, you have placed tremendous emphasis on requesting an in depth detailed listing of erroneous requirements....
In closing, we will follow up by submitting to you a list of questions we would like answered concerning the verification process utilized to confirm your current contractors are meeting contract specifications, (emphasis added)
Not surprisingly, Mr. Baird was questioned during his deposition about the contents of his response. When he was asked why Plaintiff did not send any additional information to Oak Ridge as requested in the letter dated August 20, 2004, Mr. Baird stated: “I guess we felt we’d give them all the information that was necessary.” Mr. Baird admitted at his deposition that Plaintiff was unable to furnish some of the additional requested information. For example, Plaintiff did not have five right of way and tree trimming/herbicide application contracts in the past year. Mr. Baird also testified that Oak Ridge’s requirement that a bidder have a certain number of crews was “unreasonable.” When Oak Ridge pressed Mr. Baird for an explanation as to why he felt the bidding requirements were unreasonable, Mr. Baird stated that be believed it was because Oak Ridge was trying to create bidding requirements specifically to exclude Plaintiff from being able to successfully bid on the contract. When asked why Oak Ridge would try to do that, Mr. Baird stated “I don’t know.” Mr. Baird admitted that neither he nor his company ever had problems with anyone in the past, with the possible exception of Dover whom Mr. Baird claimed on one occasion spoke to him with a “tone of the voice” that Mr. Baird did not like.
As to Mr. Baird’s assertion that the needed number of crews was unreasonable, the documents created by Oak Ridge when analyzing the bids provide as follows as to the crews available for Plaintiff:
Bidder lacks depth in number of crews. There is concern if a major storm event were to occur that other utilities in the area would be affected and would not release the contractor’s crews.
Plaintiff presented nothing in the record to indicate that Oak Ridge’s concern about the number of crews Plaintiff had available was anything less than legitimate.
In addition to what is set forth above, there were other components of Plaintiffs bid that were incomplete or simply unresponsive to the requirements contained in the bidding documents. The following is an excerpt from Mr. Baird’s deposition:
Q. Does Baird have a substance abuse policy in writing?
A. Yes.
Q. Did you submit that to the City?
A. No.
Q. Any reason why not?
A. [That is the way] we had always answered before. We had never had any problems in the past with it....
Q. Do you have a formal, written employee-training program?
A. Yes.
Q. Did you provide a list of the requirements of that program for each class of worker as part of your bid package?
A. No.
Q. Why not?
A. I probably just answered the questions down through there like we normally had, you know....
Q. Is there any reason why you did not include your safety manual with your bid?
A. We normally turn this stuff in like this, and they accept it, and we just — we thought you all would accept it like that.
The bidding contract also required the bidder to have a full-time arborist on staff. Plaintiff did not have such an employee, but instead used an arborist on a consulting basis.

Baird I, 2008 WL 2510581, at *1-4 (footnote added).

On appeal in Baird I, we initially concluded that the contract at issue was a contract for services and, therefore, the TTPA was not applicable. Id., at *5-7. As to the validity of Baird Tree’s underlying bid, we stated:

The next issue is whether the Trial Court erred when it determined that Plaintiffs bid was invalid. The undisputed material facts demonstrate that the bidding documents required the bidder to have a full time arborist on staff, which Plaintiff did not have. The undisputed material facts demonstrate that there were numerous deficiencies in Plaintiffs original bid. Although not required to do so, Dover sent a letter to Plaintiffs owner and president requesting the additional necessary information. Mr. Baird refused to supply any additional information and even went so far as to inform Dover that he (i.e., Mr. Baird) would be sending questions to Dover that he wanted answered. The Trial Court correctly characterized this response as being “in your face.” This Court is at a loss as to how a company can send such a response to legitimate questions that were raised about its bid, and then complain when it is not awarded the bid.
Regardless of the propriety of Mr. Baird’s response, the question on appeal is whether Oak Ridge successfully negated an essential element of Plaintiffs claims or conclusively established an affirmative defense. See Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004). Before Plaintiff can claim it was entitled to be awarded the bid, it must begin by showing its bid was valid and subject to being accepted. The undisputed material facts demonstrate that Plaintiffs bid was not valid for the numerous reasons discussed above. Consequently, Oak Ridge has successfully negated an essential element of Plaintiffs claim that it was entitled to be awarded the bid, and the Trial Court correctly granted summary judgment to Oak Ridge on that claim....
Because Plaintiff did not submit a valid bid, the issue of whether Plaintiff was the lowest bidder is moot. Likewise, because Plaintiff was not a valid bidder, it has no standing to attack the validity of Seelbach’s bid. Any remaining issues are rendered moot.

Baird I, 2008 WL 2510581, at *7-8 (emphasis added).

We now return to the present case. The contract at issue in Baird I had been extended for one year and was set to expire on June 30, 2007. Before opening up the bidding process for the new contract, Oak Ridge sought an independent review of its bidding process on this project. According to Jerry Dover’s affidavit filed in the present case:

Prior to putting together the pre-qual-ification packet, a decision was made by the City to ask for an independent third-party review of the prior contract and bid documents by a knowledgeable agency and to ask that third party to draft a pre-qualification and bid package, based on their expertise, to help streamline the process and to help the City find the most qualified vendors.
The City had previously hired and worked with Environmental Consultants, Inc. (ECI) to have them review the trimming practices, development inspection forms, and to train City inspectors on tree trimming inspection techniques. ECI performed this work professionally and very well. While they were engaged in those previous duties the City also learned that ECI would also review tree pruning contracts, so inquiries were made as to their ability and willingness to perform a review of the City’s existing tree trimming contract and to suggest and make changes to the pre-qualification packets in an effort to streamline the bidding process and help the City locate vendors who could most efficiently help the City with its needs. ECI was hired and performed these services for the City. ECI recommended a pre-qualifi-cation process to the City [which] the City adopted in full.
Based on the specific suggestions and comments from ECI the pre-qualification packages were put together and were sent out to eight vendors, including Baird Tree, (original paragraph numbering omitted; footnote added)

As set forth in Dover’s affidavit, the pre-bid qualification package was sent to Baird Tree and seven other companies. The seven other companies submitted complete responses to the package. Baird Tree submitted the following response:

The qualification requirements are as follows:
• Licensed to provide Utility Line Clearance Services in the State of Tennessee.
# 00021425 Unlimited s — Right of Way/Tree Trimming
• Acknowledgment that the company will name the City of Oak Ridge as an additional insured on its insurance policy for this project.
We Acknowledge
• Ability to comply with all applicable security requirements and regulations of the U.S. Department of Energy while performing work within secured areas of the Oak Ridge National Laboratory, Y-12 Plant, K-25 Plant, and the City’s Waste Water Treatment Plant.
Accepted
• ISA Certified Arborist on staff, at management level. Indicate the person with the certification by name and title, length of employment with company, and copies of certifications/licenses.
Certified Contractor will be available
• Tennessee Licensed pesticide applicator in the right-of-way category.
Tennessee Charter # 478
• Documented experience performing similar services for at least three (3) electric utilities in the Southeast.
Knoxville Utilities — Lenoir City Utilities — Rockwood Utilities
• Documented safety program and provide a copy of the company’s safety manual.
Available at our office — will provide if selected
• Documented substance abuse policy and any drug-screening program.
Available at our office — will provide if selected
• Documented training program of proper tree pruning practices following ANSI A-300 Guidelines to protect the Health and Condition of Trees.
Will meet requirements if selected
• At least $20,000,000 in documented utility line clearance business in each of the last five (5) years. Include Utility name and Utility address. Provide full contact information including name, address, phone and fax numbers and email address.
Enormously unreasonable
• Inventory of equipment, including age, that will be available for this project. 5 years or newer available
• Documented ability to provide assistance with storm related restoration with references of utilities where these services were provided. References shall include full contact information including name, address, phone and fax numbers and email address.
Enormously unreasonable
• Acknowledgment that the company will obtain a completion and performance bond, as well as a labor and material bond, in the amount of one hundred percent (100%) of the contract price with good and sufficient surety acceptable to the City in connection with this project.
Will provide
• Acknowledgment that no officer or employee of the City of Oak Ridge has a financial interest in the company. Acknowledged
• Acknowledgment that the company will comply with all federal, state, county and local laws, ordinances, statutes, and regulations applicable to this project....
Acknowledged
• Completion of the attached Safety Experience Data Sheet.
Attached
• City of Oak Ridge Business License Will provide if awarded contract

Although Baird Tree indicated that it had completed, the Safety Experience Data Sheet, it had not. The first two questions on the Safety Experience Data Sheet asked Baird Tree to list the company’s Interstate Modification Rate for the past three years, and to indicate the number of employee injuries using last year’s TO-SHA/OSHA report. Baird Tree stated this information was “Unavailable at this time.” While Baird Tree indicated that it conducts documented safety inspections and has a safety representative who visits and audits the job sites, Baird Tree did not respond when asked the frequency that these events occur. Finally, Baird Tree was asked to submit evidence of its present safety program and practices, including its safety manual. Baird Tree responded: “Available at our office — will provide if selected.”

In the 2007 complaint, Baird Tree again claimed a violation of the TTPA, as well as an illegal restraint of trade in violation of the common law. Baird Tree further asserted claims for tortious interference with prospective economic advantage. Baird Tree sued Oak Ridge, as well as Jerry Dover, its Electric Operations Manager. Dover was sued in both his official and individual capacities. As noted earlier in this Opinion, Baird Tree also sued ECI and Seelbach. Baird Tree sought compensatory damages not to exceed $1,000,000, and punitive damages not to exceed $9,000,000.

In May of 2009, following extensive argument by counsel for all parties, the Trial Court granted all of the defendants’ motions for summary judgment. The Trial Court first acknowledged our holding in Baird I that the TTPA applied to tangible goods, not intangible services, “[a]nd that is what this contract is for, it’s for services, tree pruning, tree removal, et cetera, so that portion of the Motion should be granted.” The Trial Court then stated, among other things:

“[I]n lieu of setting the parameters [of the contract] again, [the City of Oak Ridge] hired a consultant to set the parameters and they followed the consultant. That is an undisputed fact, they followed the consultant’s ... requests and advice, that’s what they paid them for in terms of setting the qualifications for bid.
Filed as ... Collective Exhibit H, there was a pre-bid package. The City of Oak Ridge even submitted to Baird Tree Company a request for proposal ... and notified them of the new bid that was coming out.
Again, bear in mind that this is while the previous case was pending, and Mr. Baird, again, left off, one, two, three, four, five, six, seven, eight, eight qualifications, those that were listed in Exhibit H....
Again, it’s kind of like an “in your face”, but the issue is whether he would have had to submit a proposal at all because his allegation is that it was a ... [common law] unreasonable restraint of trade for services.
The undisputed fact is that the City of Oak Ridge acted on the advice ... of a retained consultant, Environmental Consultant, a/k/a ECI, Inc. There was nothing to refute that.... Regardless of the amount [of documented utility line clearance business in each of the last five years that each bidder was required to have], that is what their consultant advised in response to that.... That is an undisputed fact. That is what their consultant advised them to do, and that’s not an unlawful restraint of trade. They acted on the recommendations of the consultant that they hired to do this job.
Let me again make it very abundantly clear. Just as we did in [Baird /,] in the pre-qualifications, Mr. Baird still to this day has not filed anything that would even make him qualify. If he had requested a — if he didn’t like the $20,000,000.00 and requested a modification or whatever, but he still doesn’t have an arborist. He still doesn’t have an arborist.
You know, again, it’s part of the “in your face” thing that he has done.... Whether he bid or didn’t bid, he didn’t even qualify. Not counting the $20,000,000.00, there are many numerous things that I read off in this case. He didn’t qualify, regardless. You can set aside the $20,000,000.00, he wouldn’t have been valid to begin with....
I don’t find that this in any way meets Trau-Med of America v. Allstate Insurance Company, [71 S.W.3d 691 (Tenn. 2002)]....
I specifically find that had the $20,000,000.00 not even been in there, he wouldn’t have qualified anyway regardless of the fact that he didn’t even bid on this case. So Motion is granted_

Following the hearing, the Trial Court adopted all of its rulings made from the bench and entered an order stating as follows:

1. That the State of Tennessee does not recognize a common law restraint of trade civil action. This claim is dismissed as a matter of law.
2. The Tennessee Trade Practices Act does not apply to contracts for services, and this civil action concerns contracts for services, as recognized by the Court of Appeals in Baird I.... This claim is dismissed as a matter of law.
3. For reasons discussed at oral argument, including the Defendant, Jerry Dover’s argument that he is immune from prosecution on the Plaintiffs claim for intentional interference with business relationships under the Tennessee Governmental [Tort] Liability Act, the Court grants the Defendant, Jerry Dover’s Motion for Summary Judgment. Further, the claim for punitive damages against the Defendants, City of Oak Ridge and Jerry Dover, are also dismissed as a matter of law.
4. The Defendants, City of Oak Ridge, Jerry Dover and Environmental Consultants, Inc., successfully have negated essential elements of plaintiffs claims alleging intentional interference with business relationships or shown plaintiff cannot prove essential elements of these claims at trial, for the reasons set forth in the Court’s ruling from the bench. These claims are dismissed.
5. The Court finds that the Plaintiff has not stated a cause of action against Defendant Seelbach directly and that the Defendant Seelbach was made a party because the Defendant Seelbach was the successful bidder. The Court finds that the Defendant Seelbach is, therefore, not directly liable for any claim the Plaintiff may have in this lawsuit. Furthermore, as the claims against the Defendants, City of Oak Ridge, Jerry Dover and ECI, have been dismissed, the Defendant Seelbach is also dismissed as a Defendant in this lawsuit.
6. That because the Defendants, City of Oak Ridge, Jerry Dover, and ... ECI have been dismissed, the Defendant Seelbach is also dismissed as a matter of law.
7. Since all parties answered the Plaintiffs Motion for Partial Summary Judgment, the Plaintiffs Motion concerning shortening the time for response to Plaintiffs Motion is therefore moot. Additionally, because this Court has dismissed this cause of action, the Plaintiffs Motion concerning requiring the Defendant, ECI, to furnish additional discovery is also now moot.

Plaintiff appeals raising numerous issues. Initially, Plaintiff claims the Trial Court erred when it granted any and all of the defendants’ motions for summary judgment. Plaintiff then claims that the Trial Court erred when it dismissed its claims for a violation of the TTPA, a common law violation of restraint of trade, and for interference with prospective economic advantage.

Discussion

Our Supreme Court reiterated the standard of review in summary judgment cases as follows:

The scope of review of a grant of summary judgment is well established. Because our inquiry involves a question of law, no presumption of correctness attaches to the judgment, and our task is to review the record to determine whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn.1991).
A summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). The party seeking the summary judgment has the ultimate burden of persuasion “that there are no disputed, material facts creating a genuine issue for trial ... and that he is entitled to judgment as a matter of law.” Id. at 215. If that motion is properly supported, the burden to establish a genuine issue of material fact shifts to the non-moving party. In order to shift the burden, the movant must either affirmatively negate an essential element of the nonmovant’s claim or demonstrate that the nonmoving party cannot establish an essential element of his case. Id. at 215 n. 5; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn.2008). “[CJonclusory assertion[s]” are not sufficient to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn.1998). Our state does not apply the federal standard for summary judgment. The standard established in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn.1998), sets out, in the words of one authority, “a reasonable, predictable summary judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L.Rev. 175, 220 (2001).
Courts must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). A grant of summary judgment is appropriate only when the facts and the reasonable inferences from those facts would permit a reasonable person to reach only one conclusion. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000). In making that assessment, this Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11. Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn.2009).

We affirm the Trial Court’s judgment in the present case for one of the same reasons we affirmed its judgment in Baird I. Specifically, Baird Tree never submitted a valid bid and, therefore, lacks standing to challenge the validity of the bidding process. With respect to the 2007 bidding process, the “bid” submitted by Baird Tree was deficient in many ways: (1) Baird Tree (still) did not have a certified arborist on staff, as required by the express terms of the pre-qualification package; (2) Baird Tree refused to provide a copy of its safety manual unless it was the winning bidder; (3) Baird Tree refused to provide a copy of its substance abuse policy unless it was the winning bidder; (4) Baird Tree refused to document its “ability to provide assistance with storm related restoration with references of utilities where these services were provided,” choosing instead to simply refer to this requirement as “Enormously unreasonable”; (5) Baird Tree failed to complete the Safety Experience Data Sheet; (6) Baird Tree refused to furnish a copy of its Oak Ridge business license; and (7) Baird Tree failed to demonstrate that it had “[a]t least $20,000,000 in documented utility line clearance business in each of the last five (5) years,” again referring to this require-raent as “Enormously unreasonable.” We think Baird Tree’s bid was properly characterized by counsel for ECI at oral argument on the motion for summary judgment wherein counsel stated: “Quite frankly, Your Honor, what they did is they flipped them off.” Counsel correctly added that Baird Tree then refused to answer many questions, including the question requesting $20,000,000 in documented utility line clearance business in each of the last five years.

As we stated in Baird I:

The Trial Court correctly characterized [Baird Tree’s response to Oak Ridge’s request for additional information] as being “in your face.” This Court is at a loss as to how a company can send such a response to legitimate questions that were raised about its bid, and then complain when it is not awarded the bid.
Regardless of the propriety of Mr. Baird’s response, the question on appeal is whether Oak Ridge successfully negated an essential element of Plaintiffs claims or conclusively established an affirmative defense. See Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004). Before Plaintiff can claim it was entitled to be awarded the bid, it must begin by showing its bid was valid and subject to being accepted. The undisputed material facts demonstrate that Plaintiffs bid was not valid for the numerous reasons discussed above. Consequently, Oak Ridge has successfully negated an essential element of Plaintiffs claim that it was entitled to be awarded the bid, and the Trial Court correctly granted summary judgment to Oak Ridge on that claim.

Baird I, 2008 WL 2510581, at *7.

We now face that same issue once more. We, again, are at a loss as to how a company can submit an altogether inadequate and incomplete bid on a project, and then complain when it is not awarded that project. “Before [Baird Tree] can claim it was entitled to be awarded the bid, it must begin by showing its bid was valid and subject to being accepted.” Id. To hold otherwise, literally, would allow anybody with a chainsaw, even though he did not complete the bid documents, to mount an attack to Oak Ridge’s bidding process simply by claiming they were improperly excluded. This is an untenable result and would significantly disrupt a legitimate bidding process.

We conclude, as we did in Baird I, that Oak Ridge successfully negated an essential element of Baird Tree’s claim that it was entitled to be awarded the bid, and the Trial Court correctly granted summary judgment on that claim. Because Baird Tree never submitted a valid bid in the first place and lacks standing to challenge the bidding process, all remaining issues as to all defendants are moot.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Anderson County Circuit Court solely for collection of the costs below. Costs on appeal are taxed to the Appellant, Baird Tree Company, Inc., and its surety, for which execution may issue, if necessary.

      . There also were significant problems with the three references provided by Baird Tree. Baird I, 2008 WL 2510581, at ⅜3. For the sake of brevity, we will not detail all of those problems.

      . Environmental Consultants, Inc., also is a named defendant in the present case.

      . Three of these other companies apparently have the same parent company.

      . We have altered Baird Tree’s answers by putting them in bold type.

      . Baird Tree’s challenge to the pre-qualification package centers around the requirement that it have "[a]t least $20,000,000 in documented utility line clearance business in each of the last five (5) years.’’ Baird Tree claims that it was this requirement that was improperly added for the sole purpose of excluding smaller companies such as Baird Tree from consideration. Had this been the only requirement in the pre-qualification package that Baird Tree failed to meet, then our conclusion as to whether Baird Tree had standing likely would be different. If we held that the failure to meet a challenged requirement, in and of itself, resulted in a lack of standing, then someone illegally excluded would never be able to challenge the propriety of the bid’s requirements. That is not our holding here because Baird Tree’s failures with respect to the bid it actually submitted far exceeded simply failing to have ”[a]t least $20,000,000 in documented utility line clearance business in each of the last five (5) years.”

      . Because Baird Tree never submitted a valid bid in the first place, this failure, likewise, would negate any claim for damages allegedly resulting from Baird Tree not being awarded the contract.