author: PATRICIA BRECKENRIDGE, Judge.

text:
    SAINT LOUIS UNIVERSITY and Paulo Bicalho, M.D., Appellants, v. Alice GEARY, Individually and as Personal Representative of the Estate of Phillip Sgroi, Respondent.
    No. SC 89840.
    Supreme Court of Missouri, En Banc.
    Nov. 17, 2009.

      Robyn Greifzu Fox, Philip L. Willman, Catherine Vale Jochens, St. Louis, MO, for appellants.
    Derek H. Potts, Patricia L. Campbell, Jeffrey M. Kuntz, Kansas City, MO, for respondent.
   PATRICIA BRECKENRIDGE, Judge.

Saint Louis University (“SLU”) and Paulo Bicalho, M.D., appeal the judgment in favor of Phillip Sgroi and his wife, Alice Geary, in a medical negligence action. A jury found Dr. Bicalho negligent for failing to timely diagnose and treat Mr. Sgroi’s fractured hip and found SLU, Dr. Bical-ho’s employer, vicariously liable for his negligence. SLU and Dr. Bicalho present three issues on appeal: error in the admission of videotape evidence, highlighting the issue of insurance by an improper question during voir dire, and juror nondisclosure.

The trial court’s judgment is affirmed. The trial court’s erroneous admission of videotape evidence did not prejudice SLU and Dr. Bicalho; the trial court did not abuse its discretion in denying a request for a mistrial because of an improper insurance question; and the trial court did not err in overruling a motion for a new trial for unintentional juror nondisclosure.

Factual and Procedural Background

In 2000, Mr. Sgroi suffered a stroke that affected his left side and caused him to lose the ability to walk. After months of rehabilitation, Mr. Sgroi regained the ability to walk fifty feet with a walker, rake leaves from his wheelchair, get in and out of a vehicle, attend lectures and movies, and go to restaurants. Thereafter, while on a trip, Mr. Sgroi slipped and fell on his left side. When he sought emergency treatment, he was diagnosed with a left arm fracture and a left knee contusion. Mr. Sgroi returned to St. Louis two days later and was admitted to SLU Hospital. Upon discharge, he received inpatient rehabilitation therapy.

Mr. Sgroi subsequently was readmitted to SLU Hospital for gastrointestinal issues and severe knee pain. Mr. Sgroi’s wife, Ms. Geary, requested an orthopedic consult because of her concern for his level of pain and disability. On February 19, 2002, Dr. Bicalho, an orthopedic surgeon, examined Mr. Sgroi for his complaint of severe pain in his left knee. Dr. Bicalho ordered X-rays of Mr. Sgroi’s left knee, but not of Mr. Sgroi’s left hip. The X-ray films did not show any fracture, dislocation, or joint effusion in Mr. Sgroi’s left knee. Dr. Bicalho diagnosed Mr. Sgroi with left knee pain and recommended that Mr. Sgroi be sent home with continued physical therapy-

After a few days, Mr. Sgroi was discharged from SLU Hospital and sent home. While at home, he was in extreme pain and completely bedridden. After a week passed, Mr. Sgroi could not straighten his lower left leg due to pain. By March 21, 2002, Mr. Sgroi’s pain was so bad that he returned to SLU Hospital, complaining of worsening pain in his left leg from the mid-femur to the knee. That day, an X-ray was taken that revealed a femoral fracture that was weeks old. The fracture was sufficiently old that it would have existed at the time of Dr. Bicalho’s consultation.

At the time of his latest admission, Mr. Sgroi also was suffering from a severe urinary track infection, muscles atrophied from lack of use, and a decubitus ulcer from lying in bed. As a result, surgery for the fracture had to be postponed. Mr. Sgroi eventually underwent a left hemiar-throplasty in which he received a prosthetic femur head. After he was discharged from SLU Hospital, Mr. Sgroi began several years of physical therapy, during which he temporarily regained his ability to walk short distances with a walker. Mr. Sgroi eventually ended his therapy because his hip pain had progressed to the point that it was too painful for him to stand or even get out of bed.

Mr. Sgroi subsequently underwent another hip surgery, during which it was discovered that he suffered from an infected hip prosthesis and infected hip joint. Due to the infection, Mr. Sgroi’s hip prosthesis and hip joint had to be removed during the surgery. As a result of the loss of his hip joint, Mr. Sgroi permanently lost the ability to walk.

Mr. Sgroi and Ms. Geary sued SLU, Dr. Bicalho, and others, alleging Mr. Sgroi’s healthcare providers were negligent in failing to timely and properly diagnose and treat his hip fracture. Mr. Sgroi claimed that Dr. Bicalho was negligent in failing to diagnose and treat his hip fracture during the February 19, 2002, consultation, and that SLU, as Dr. Bicalho’s employer, was vicariously liable for his negligent acts and omissions. Ms. Geary brought a claim for loss of consortium against SLU and Dr. Bicalho.

Trial was held on June 11 to 18, 2007. During voir dire, Mr. Sgroi and Ms. Geary’s counsel asked, “Is anybody here an officer, director, or shareholder of an insurance company called The Doctor’s Company?” SLU and Dr. Bicalho’s counsel objected that the question was an “improper statement of the insurance question” and moved for a mistrial. The trial court sustained the objection, but denied their request for a mistrial.

During the presentation of evidence, Mr. Sgroi and Ms. Geary’s orthopedic surgery expert, Dr. Tsourmas, testified that, to a reasonable degree of medical certainty, Mr. Sgroi had a non-displaced hip fracture on February 19, 2002, when he entered SLU Hospital. He stated that the standard of care required Dr. Bicalho to consider the possibility of a hip fracture and that-Dr. Bicalho breached the standard of care by failing to do a hip examination and by failing to order a hip X-ray on that date. Dr. Tsourmas concluded that had Dr. Bicalho properly diagnosed the non-displaced hip fracture on February 19, 2002, Mr. Sgroi could have had his broken hip pinned, which is a less drastic surgical procedure with a lower chance for infection. Because Mr. Sgroi’s hip fracture was displaced when he subsequently sought care, he required hip replacement surgery, which was a more drastic surgical procedure with a higher chance for infection.

Mr. Sgroi’s medical condition precluded him being present at trial and testifying. Because of his absence, two videotapes of Mr. Sgroi were played for the jury. The first videotape was a deposition of Mr. Sgroi taken five weeks after his surgery to remove the hip prosthesis and two weeks before trial. The second videotape was a portion of a 2001 television news story about Mr. Sgroi, showing his condition after his recovery from his stroke but before the fall. SLU and Dr. Bicalho objected to the admission of the second videotape or, alternatively, requested that the videotape be limited in length and the audio eliminated because it was not practical, instructive, or calculated to assist the jury in understanding the case, it was irrelevant, it would inflame and prejudice the minds of the jury, and the persons speaking on the videotape could not be cross-examined. The trial court overruled the objection, in part, and sustained it, in part, and allowed a portion of the videotape to be played for the jury.

The jury returned a verdict in favor of Mr. Sgroi and Ms. Geary, awarding Mr. Sgroi $775,000 for his negligence claim and Ms. Geary $50,000 for her loss of consortium claim. The trial court entered judgment in accordance with the jury’s verdict. SLU and Dr. Bicalho filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial or, in the second alternative, a motion to amend the judgment. In support of these motions, the trial court permitted them to subpoena juror Demetrius Sims for an evi-dentiary hearing to address whether Mr. Sims had failed to disclose material information during voir dire. At the hearing on juror nondisclosure, Mr. Sims testified that he previously filed a lawsuit concerning an automobile accident and that he did not respond with that information during voir dire when asked by both plaintiffs’ and defendants’ attorneys if he had ever filed any kind of lawsuit. The trial court overruled SLU and Dr. Bicalho’s post-trial motions, finding that the nondisclosure by Mr. Sims was unintentional and not prejudicial.

SLU and Dr. Bicalho appeal. They present three issues on appeal. First, SLU and Dr. Bicalho argue that the trial court erred in admitting the videotape with audio, claiming the video was not practical, instructive, or calculated to assist the jury in understanding the case, constituted hearsay, served to inflame the jury, and contained out-of-court statements not subject to cross-examination. Second, SLU and Dr. Bicalho assert that the trial court erred in denying their request for mistrial because Mr. Sgroi and Ms. Geary’s counsel improperly, and in bad faith, injected insurance into the ease, causing prejudice to SLU and Dr. Bicalho and resulting in an excessive verdict in favor of Mr. Sgroi and Ms. Geary. Third, SLU and Dr. Bicalho contend that the trial court erred in overruling their motion for new trial because of juror Sims’ intentional nondisclosure of material information. After opinion by the eourt of appeals, this Court granted Ms. Geary’s application for transfer. Mo. Const. art. V, sec. 10.

Admission of Videotape

SLU and Dr. Bicalho argue that the trial court erred in admitting the videotape of a news story about Mr. Sgroi. Mr. Sgroi and Ms. Geary offered the videotape to illustrate Mr. Sgroi’s mobility and physical and mental health before the injuries allegedly caused by Dr. Bicalho’s negligence.

The personal interest news story was about how Mr. Sgroi previously was forced to drop out of a state representative race due to a stroke and how he worked to recover so he could run for that office again. The news anchor and reporter discussed the seriousness of Mr. Sgroi’s stroke and showed footage of him walking during a physical therapy session. In the video, Mr. Sgroi stated how the stroke gave him a better understanding of peoples’ challenges, gave him a new perspective on the health care system, and inspired him to promote universal health care. Interviews were conducted with other people, including Mr. Sgroi’s wife and his physician, who talked about his dedication to achieving his goals and, in particular, how hard he worked to recover from his stroke.

Before trial, SLU and Dr. Bicalho moved to preclude mention or evidence of the videotape or, in the alternative, to limit the videotape in length and eliminate its audio. They argued that the videotape was not practical, instructive, or calculated to assist the jury in understanding the case, it was irrelevant, the speakers on the video were not subject to cross-examination, and it served only to inflame and prejudice the minds of the jury. When the videotape was offered at trial, SLU and Dr. Bicalho objected to the videotape on the same grounds. When stating those grounds for objection, counsel informed the court that he did not object to all of the video, but he did object to the audio. Specifically, counsel stated:

The defendant would not have an objection if a portion of the videotape was shown indicating Mr. Sgroi’s physical abilities at the time. Although defendant would also note that this is before the fall where he broke his shoulder, which further complicated his recovery. And even with that, defendant would not have an objection without the sound which would take care of the cross-examination objection, that a portion of the videotape could be shown indicating Mr. Sgroi’s abilities at that time.

While the trial court excluded part of the video, it overruled SLU and Dr. Bicalho’s objection to the remainder of video and permitted it to be viewed by the jury.

The basic principles that govern the admission of photographs also govern the admission of motion pictures or videotapes. Morris v. E.I. Du Pont de Nemours & Co., 346 Mo. 126, 139 S.W.2d 984, 987 (1940). The party offering the videotape must lay the proper foundation and establish that it is an accurate, faithful representation of the place, person, or subject it purports to portray. McPherson Redev. Corp. v. Watkins, 782 S.W.2d 690, 691 (Mo.App.1989). “The fact that a videotape is taken before or after an event does not make it inadmissible if the extent of the changes are explained!.]” Id. at 692.

“The trial court has broad discretion in assessing the admissibility of videotapes, and its ruling will not be disturbed on appeal absent an abuse of discretion.” Gomez v. Constr. Design, Inc., 126 S.W.3d 366, 374 (Mo. banc 2004). An abuse of discretion is a judicial act that is untenable and clearly against reason and that works an injustice. Egelhoff v. Holt, 875 S.W.2d 543, 549-50 (Mo. banc 1994). “Whether a videotape should be admitted or rejected depends on whether it is practical, instructive, and calculated to assist the trier of fact in understanding the ease.” Gomez, 126 S.W.3d at 374. In addition, the trial court must balance the need and probative value of such evidence against any possible prejudicial effect that may result from its admission. Id. Trial courts are in a superior position to balance the probative value and prejudicial effect of evidence. See Egelhoff, 875 S.W.2d at 549.

SLU and Dr. Bicalho first argue that the trial court abused its discretion in admitting the videotape because there are only two types of videotapes that are practical, instructive, and calculated to assist the jury in understanding the case. For this principle, they rely on Grose v. Nissan N. Am. Inc., 50 S.W.3d 825 (Mo.App.2001). In Grose, the court articulated “two essential purposes” for allowing the admission of videotapes as evidence: (1) to recreate events at issue in the litigation, and (2) to illustrate confusing and complex physical properties or scientific principles that form the foundation of an expert’s opinion. Id. at 830. SLU and Dr. Bicalho argue that the nature of the newscast video does not fall within these two purposes, so it should have been excluded.

The “two essential purposes” listed in the Grose opinion are not an exhaustive list of all of the purposes for admitting videotapes as evidence. To the contrary, this Court has held that trial courts did not abuse their discretion in admitting videos for other evidentiary purposes. In Gomez, the Court affirmed the trial court’s admission of a videotape showing the condition of an accident site at the time the accident occurred. 126 S.W.3d at 374. In Egelhoff, the Court affirmed when a trial court allowed a videotape of the plaintiff dancing and playing billiards one and a half years after an accident caused by defendants’ negligence to rebut her claims of injury. 875 S.W.2d at 550. The court of appeals also has held a trial court did not abuse its discretion when it admitted a day-in-the-life video because the plaintiffs ill health prevented the plaintiff from being present in court and being observed by the jury. Lawton v. Jewish Hosp. of St. Louis, 679 S.W.2d 370, 372 (Mo.App.1984).

As these cases demonstrate, the proper inquiry is whether the video is practical, instructive, and calculated to assist the trier of fact in understanding the case. Gomez, 126 S.W.3d at 374. SLU and Dr. Bicalho claim that the video was not instructive to the jury because it does not accurately reflect Mr. Sgroi’s physical condition at the relevant time. They assert that the video fails to reflect his condition after his fall in December 2001, which was his condition at the time of the negligent act in February 2002. This Court agrees that the video does not accurately reflect his condition at the relevant time, but the difference in his condition does not make the video inadmissible. See McPherson Redev. Corp., 782 S.W.2d at 691. The video is still admissible, but the difference in Mr. Sgroi’s condition must be explained. Id. The difference could have been explained by plaintiffs laying a proper foundation at trial for admission of the videotape. Id. Plaintiffs did not do so. There was no testimony explaining the difference between Mr. Sgroi’s physical ability or mental acuity when the video was made in 2001 and his condition at the time of the negligent act in February 2002.

Plaintiffs’ failure to lay the proper foundation and explain differences in Mr. Sgroi’s physical condition does not aid SLU and Dr. Bicalho, however. When SLU and Dr. Bicalho objected to the admission of the video at trial, they noted the difference in Mr. Sgroi’s physical condition from the time the negligence occurred but then made statements indicating that they were not objecting on that basis. Instead, they stated that their objection was really to the audio, which has nothing to do with whether the video was an accurate portrayal of Mr. Sgroi’s physical condition. Additionally, their motion for new trial did not include the claim that the video does not accurately reflect Mr. Sgroi’s physical condition at the time of the negligence. Because the issue was not preserved for appeal, this Court will not address this argument. Egelhoff, 875 S.W.2d at 549.

In reviewing whether the video was practical, instructive, and calculated to assist the jury, this Court must consider whether the trial court abused its discretion in admitting the video. In doing so, the video must be discussed in segments-Mr. Sgroi walking during physical therapy, Mr. Sgroi speaking about his recovery and goals, and other persons speaking about Mr. Sgroi.

The segment showing Mr. Sgroi walking with a health care provider during physical therapy was offered to assist the jury in understanding the nature of Mr. Sgroi’s injuries. The effect of the alleged negligence on Mr. Sgroi’s mobility is a primary factor in his claim for damages. In this segment, the jury could observe Mr. Sgroi walking with a walker and moving about in his wheelchair. This evidence offered the jury valuable insight into Mr. Sgroi’s physical and mental abilities after his stroke but before the negligent act. The segment of Mr. Sgroi walking is practical, instructive, and calculated to assist the jury in understanding Mr. Sgroi’s physical condition and the quality of Mr. Sgroi’s life before the alleged negligence. The trial court reasonably concluded that this portion of the videotape was more probative than prejudicial, as it would assist the jury in fairly determining the full extent of Mr. Sgroi’s injuries for purposes of assessing damages.

With regard to the segments containing statements by Mr. Sgroi and others, SLU and Dr. Bicalho argue that these statements should have been excluded because they are hearsay and served only to inflame and prejudice the minds of the jury. A hearsay statement is an out-of-court statement offered for the truth of the matter asserted therein and “depends on the veracity of the statement for its value.” State v. Johnson, 284 S.W.3d 561, 584 (Mo. banc 2009). Hearsay evidence is objectionable because the person who makes the statement offered is not under oath and is not subject to cross-examination. Bartlett v. Kansas City Pub. Serv. Co., 349 Mo. 13, 160 S.W.2d 740, 742 (1942). Hearsay is inadmissible unless it fits into a recognized exception, State v. Kemp, 212 S.W.3d 135, 146 (Mo. banc 2007), or it is used for a nonhearsay purpose. State v. Foust, 920 S.W.2d 949, 954 (Mo.App.1996). A nonhearsay purpose includes offering the statement not for the truth of the matter asserted, but for some other purpose. See Johnson, 284 S.W.3d at 584.

The portion of the video in which Mr. Sgroi spoke was offered for a nonhearsay purpose. It was not offered for the truth of the matter asserted- — that Mr. Sgroi was more sensitive to others because of his stroke and that he believed health care was a human right that he wanted to promote — but to demonstrate his mental abilities and attitude before his hip surgery and subsequent recovery. Such evidence was relevant and admissible. Due to Mr. Sgroi’s poor physical condition, his only opportunity to testify on his own behalf was through the video deposition recorded two weeks before trial and shortly after he had surgery to remove the hip prosthesis. The video deposition, however, did not convey Mr. Sgroi’s physical and mental abilities before the alleged negligent act. The video deposition only displayed Mr. Sgroi’s poor, post-surgery physical condition where his cognitive functions were impaired by pain medication. The audio allowed the jury to observe that Mr. Sgroi was articulate, vivacious, and enthusiastic about life. These are relevant to the issue of the injury Mr. Sgroi suffered as well as to his mental abilities. It also countered SLU and Dr. Bicalho’s suggestion in their opening statement that Mr. Sgroi’s current condition resulted from his stroke and other physical ailments rather than any negligence. The trial judge could reasonably believe Mr. Sgroi’s statements on the videotape were not being submitted for hearsay purposes, but rather to show Mr. Sgroi’s mental acuity and attitude.

The remaining portion of the video — -which contains the news anchor’s introductory remarks, the news reporter’s commentary, and comments by the physical therapist, Ms. Geary, and Mr. Sgroi’s doctor — includes out-of-court statements that have no nonhearsay purpose and do not fit within any exception to the hearsay rule. Because the remaining portion of the video included inadmissible hearsay, the trial court erred in admitting it.

The improper admission of hearsay evidence requires reversal if such evidence was prejudicial. In re A.A.T.N., 181 S.W.3d 161, 170 (Mo.App.2005). SLU and Dr. Bicalho claim prejudice from the admission of statements that Mr. Sgroi worked very hard to recover after his stroke and that he intended to run for election in the future. They argue these statements created sympathy for Mr. Sgroi and served to inflame the minds of the jury.

The improperly admitted hearsay evidence was not prejudicial because it was cumulative to other evidence admitted without objection. Cumulative evidence is additional evidence that reiterates the same point. Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466, 483 (Mo.App.2001). “A complaining party is not entitled to assert prejudice if the challenged evidence is cumulative to other related admitted evidence.” Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 590 (Mo.App.2008). Statements by the physical therapist, Ms. Geary, and Mr. Sgroi’s doctor that he worked hard to recover from his stroke were cumulative to Ms. Geary’s subsequent testimony that Mr. Sgroi worked very hard to recover after his stroke. Statements by the news anchor and news reporter that Mr. Sgroi intended to run for state representative were cumulative to Mr. Sgroi’s deposition testimony that he intended to run for election in the future. The subsequent testimony by Ms. Geary or Mr. Sgroi was admitted without objection. Therefore, SLU and Dr. Bical-ho were not prejudiced by the erroneous admission of the hearsay statements on the video.

Insurance Question

SLU and Dr. Bicalho next assert that the trial court erred in denying their request for a mistrial because Mr. Sgroi and Ms. Geary’s counsel improperly, and in bad faith, injected insurance into the case by identifying The Doctors Company as an insurance company in a question during voir dire. SLU and Dr. Bicalho argue that the improper question caused prejudice to them and resulted in an excessive verdict in favor of Mr. Sgroi and Ms. Geary.

“This Court has held that the constitutional right to a trial by jury includes the right to a fair and impartial jury.” Ivy v. Hawk, 878 S.W.2d 442, 444 (Mo. banc 1994). Parties have a right to know if jurors or their families have an interest in the outcome of the litigation, and the trial court “has no discretion to deny a party the right to ask the preliminary ‘insurance question’ if the proper foundation is laid.” Id. Counsel has laid a proper foundation when he or she requests, prior to voir dire and on the record, that he or she be permitted to ask the “insurance question.” Id.

The accepted procedure in Missouri for asking the preliminary “insurance question” is as follows: “1) first getting the judge’s approval of the proposed question out of the hearing of the jury panel, 2) asking only one ‘insurance question,’ and 3) not asking it first or last in a series of questions so as to avoid unduly highlighting the question to the jury panel.” Id. at 445 (Emphasis added). The accepted procedure for asking the preliminary insurance question requires counsel to specifically state to the trial judge the question that will be asked of the venire panel. Id. The form of the question is at the trial court’s discretion, but “it generally encompasses whether any members of the panel or their families work for or have a financial interest in the named insurance company.” Id. Identifying the company in the question as an insurance company when the name of the company does not include the word “insurance” improperly and unnecessarily highlights the issue of insurance. Id. at 445 n. 1.

Here, out of the presence of the venire panel, Mr. Sgroi and Ms. Geary’s counsel advised the court that he wanted to ask the insurance question. Counsel asked only one question, and it was not the first or last question in voir dire. Counsel failed, however, to get the judge’s approval of the specific question he asked. Counsel asked, “Is anybody here an officer, director, or shareholder of an insurance company called The Doctor’s Company?” (Emphasis added). SLU and Dr. Bicalho objected that it was an improper question and requested a mistrial. The trial court sustained the objection but denied then' request for a mistrial.

SLU and Dr. Bicalho assert that “the precise wording of the specific question was never discussed and thus [Mr. Sgroi and Ms. Geary] did not follow the proper procedure to obtain the judge’s approval of the proposed ‘insurance question’ out of the hearing of the panel.” SLU and Dr. Bicalho contend that because Mr. Sgroi and Ms. Geary’s question identified The Doctors Company as an insurance company, the question improperly highlighted the insurance issue and a mistrial was required.

SLU and Dr. Bicalho are correct in their understanding that Ivy requires a party who wants to ask the insurance question to explicitly recite to the trial court the question to be asked. 878 S.W.2d at 445. Ivy also stands for the proposition that the word “insurance” should not be injected into the question when not a part of the insurance company’s name. Id. However, Ivy does not require a declaration of a mistrial if the accepted procedure for asking the insurance question is not followed precisely. See id.

When the proper procedure is not followed, it is within the trial court’s discretion whether to grant a mistrial due to a reference to insurance, and such decisions will not be disturbed absent a manifest abuse of discretion. Taylor v. Republic Auto. Parts, Inc., 950 S.W.2d 318, 321 (Mo.App.1997). To establish a manifest abuse, there must be a grievous error where prejudice otherwise cannot be removed. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 867 (Mo. banc 1993). Although the insurance question omits the word “insurance” where it can, mere use of the word “insurance” does not alone warrant reversal or a mistrial. Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 787 (Mo.1977).

When determining whether a mistrial is required, the trial court should focus on whether the question is asked in good faith. Callahan, 863 S.W.2d at 871. If an insurance question is asked not in good faith, but for the purpose of injecting insurance coverage into the minds of the jurors, the ensuing prejudicial effect deprives the defendant of his right to a fair trial. Id. If the mention of insurance was in good faith, the trial court must decide if the improper highlighting of insurance prejudiced the jury. The trial court is in a superior position than an appellate court to determine if a question was motivated by good or bad faith or if there was any prejudicial effect on the jury. Taylor, 950 S.W.2d at 321.

In the present case, SLU and Dr. Bical-ho point to no evidence that supports their claim that the insurance question was asked in bad faith beyond the fact that counsel used the words “insurance company.” Other portions of the record support a finding that counsel’s use of the word “insurance” was not done in bad faith. First, counsel attempted to follow the accepted procedure and requested permission from the trial court to ask the insurance question. Second, when SLU and Dr. Bicalho requested a mistrial, the following discussion occurred out of the hearing of the jury:

[Mr. Sgroi’s and Ms. Geary’s counsel]: Judge, we talked about this in chambers
The Court: Whoa, whoa. We didn’t say what question you were going to ask. I assumed that you were aware of the insurance question.
[Mr. Sgroi’s and Ms. Geary’s counsel]: Well, I don’t think that I agree you can’t identify it as an insurance company.

From this dialogue, the trial court could have found that counsel did not know that the word “insurance” should not be used, if at all possible, in the insurance question. Counsel’s misunderstanding of the law supports a finding that counsel did not act in bad faith. With evidence that supports the trial court’s finding of no bad faith, this Court must defer to the trial court which was in the best position to recognize bad faith or prejudice.

SLU and Dr. Bicalho make two other arguments that the record shows prejudice that requires a mistrial. First, they point to venireperson Grohman’s repeated references to insurance that occurred after plaintiffs’ counsel asked the insurance question. However, all of these comments about insurance logically followed from questions about tort reform, medical malpractice, and putting a price on pain and suffering. SLU and Dr. Bicalho did not object to these questions, although they did renew their request for mistrial after Mr. Grohman stated that the insurance company would be paying any jury award for damages. The trial court was not compelled to believe that Mr. Grohman’s references to insurance resulted from the improper insurance question. Mr. Groh-man’s references to insurance more likely were generated by the questions on tort reform and medical malpractice than the insurance question. The trial court did not abuse its discretion in remedying the situation by permitting Mr. Grohman to be stricken for cause rather than declaring a mistrial.

Second, SLU and Dr. Bicalho contend that the jury’s verdict was excessively high due to this injection of insurance into the case. They offer no support for this assertion. An award of $775,000 was not excessively high compensation to a fifty-five-year-old who suffered excruciating pain during the seven weeks between Dr. Bical-ho’s failure to diagnose the hip fracture and the resulting hip surgery, who undertook years of rehabilitation to recover his ability to walk, and who then lost his hip joint, which permanently deprived him of the ability to walk. The trial court did not abuse its discretion in denying SLU and Dr. Bicalho’s request for mistrial. Because counsel did not inject “insurance” in bad faith and there was no grievous error where prejudice could not otherwise be removed, the trial court did not abuse its discretion by denying a mistrial.

Juror Nondisclosure

SLU and Dr. Biealho finally contend that the trial court erred in overruling their motion for a new trial because of intentional nondisclosure of material information by juror Demetrius Sims. Mr. Sims did not disclose that he had filed a lawsuit for injuries from an automobile accident. SLU and Dr. Biealho contend that Mr. Sims’ failure to respond to unequivocal questions requesting information about filing lawsuits was intentional nondisclosure and per se prejudicial, so they are entitled to a new trial.

In determining whether to grant a new trial for juror nondisclosure, the court first must determine whether a nondisclosure occurred at all. State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001). Nondisclosure can occur only after a clear question is asked during voir dire. Brines By Harlan v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). An unequivocal question triggers a venireperson’s duty to disclose. Id. Silence to an unequivocal question establishes juror nondisclosure if the information is known to the juror. Id.; Heinen v. Healthline Mgmt., Inc., 982 S.W.2d 244, 248 (Mo. banc 1998).

During voir dire, plaintiffs’ counsel asked, “Could you raise your hand if you’ve ever filed any kind of lawsuit before? Not just a medical case but automobile accident, anything like that, filed a lawsuit, could you raise your hand?” Eleven venirepersons answered and described the lawsuits they had filed. Three persons answered that they had filed lawsuits for automobile accidents. Mr. Sims did not raise his hand or otherwise respond during this questioning.

Later during voir dire, SLU and Dr. Bicalho’s counsel also asked about filing lawsuits. Counsel stated that the filing of a lawsuit is accomplished by merely filing a piece of paper with the clerk and paying the fee. He then asked, “[H]ave all of you told us any time that you have ever filed a lawsuit against anyone else [other than a family law case]?” After an inquiry whether the question included lawsuits filed in the course of employment, counsel for SLU and Mr. Biealho again inquired, “Anyone else here ever filed a lawsuit on behalf of yourself or a close family member that we haven’t already heard about?” Mr. Sims did not raise his hand or otherwise respond.

At the post-trial hearing, Mr. Sims testified that he had filed a lawsuit for injuries from an automobile accident and he did not reveal that fact during voir dire. Because the questions asked by plaintiffs’ and defendants’ counsel were clear and unequivocal, the questions triggered Mr. Sims’ duty to disclose. His silence to those unequivocal questions was juror nondisclosure.

Once nondisclosure is established, it must be determined whether the nondisclosure was intentional or unintentional. Mayes, 63 S.W.3d at 625. This determination is left to the sound discretion of the trial court. Williams By Wilford v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987). Intentional nondisclosure occurs: “1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable.” Id. “Unintentional nondisclosure exists where, for example, the experience forgotten was insignificant or remote in time, or where the [venireperson] reasonably misunderstands the question posed.” Id.

“[B]ias and prejudice will normally be presumed if a juror intentionally withholds material information.” Mayes, 63 S.W.3d at 625. Accordingly, a finding of intentional nondisclosure of a material issue is tantamount to a per se rule mandating a new trial. Heinen, 982 S.W.2d at 248. However, if nondisclosure was unintentional, “a new trial is not warranted unless prejudice resulted from the nondisclosure that may have influenced the jury’s verdict.” Mayes, 63 S.W.3d at 625. In the case of unintentional nondisclosure, the party seeking the new trial has the burden of proving prejudice. Heinen, 982 S.W.2d at 250. Moreover, the record must support all allegations of nondisclosure and prejudice. Id. at 248, 250. The trial court’s findings are “given great weight and will not be disturbed on appeal unless the trial court abused its discretion.” Brines, 882 S.W.2d at 139.

The trial court’s ruling on SLU and Dr. Bicalho’s claim of juror nondisclosure was made after a post-trial evidentiary hearing. At that hearing, Mr. Sims testified that he filed a prior lawsuit for personal injuries from an automobile accident and the suit was settled out of court. He testified that if he had heard the question asking potential jurors whether they ever were involved in a lawsuit, he would have disclosed his prior filing. He stated that he must have missed the question or he would have answered. He further testified that he had not thought about his prior settlement when considering the facts of this case.

In its order denying SLU and Dr. Bical-ho’s post-trial motions, the trial court expressly found Mr. Sims’ testimony to be credible based on his demeanor during the post-trial hearing. The trial court believed Mr. Sims’ mind may have wandered or he was not paying attention at the time “the question” about prior lawsuits was asked. Although this Court gives great weight to the trial court’s findings, the record does not support the finding by the trial court that Mr. Sims reasonably failed to answer because of inattention. While it might have been reasonable for Mr. Sims to miss a single question, in this case, there were multiple unequivocal questions about filing a lawsuit and numerous answers in response. It is not reasonable to believe that Mr. Sims’ mind wandered or that he was not paying attention during the entire time of multiple questions about filing lawsuits being asked and answered.

Because there was no reasonable inability of Mr. Sims to comprehend the information solicited by the questions asked, the second prong of the intentional disclosure inquiry requires consideration of whether Mr. Sims actually remembered the experience of filing the lawsuit or whether it was of such significance that his purported forgetfulness is unreasonable. Williams, 736 S.W.2d at 36. If it is found that he either remembered or should have remembered that he filed a lawsuit, his nondisclosure would be found intentional and per se prejudicial, requiring a new trial. Id. at 37.

Evidence in the record supports a finding that Mr. Sims perceived his automobile-accident lawsuit as insignificant, so his forgetfulness was reasonable. This case differs from Brines, where this Court found a juror’s failure to disclose in a medical malpractice suit that he had been sued on eight occasions, seven times by doctors to collect for medical services, compelled a finding that it was intentional nondisclosure. 882 S.W.2d at 139. In this case, Mr. Sims filed his one lawsuit six years before he served as a juror in this case. The lawsuit was for negligence in an automobile accident, rather than for medical negligence like the suit at issue. The suit was settled and did not go to trial, and Mr. Sims received the nominal amount of $1,800 from the settlement. Mr. Sims did not remember the names of the defendant or his attorney in the matter until the names were mentioned in questioning at the post-trial hearing. These facts support the finding that the Mr. Sims’ nondisclosure resulted from the insignificance of the lawsuit to Mr. Sims, so his failure to remember his lawsuit during the trial was reasonable and his nondisclosure unintentional.

Because the record supports the trial court’s finding that Mr. Sims’ nondisclosure was unintentional, SLU and Dr. Bicalho have the burden of proving prejudice resulting from the nondisclosure that may have influenced the jury’s verdict. Mayes, 63 S.W.3d at 625; Reinen, 982 S.W.2d at 250. In this case, the trial court expressly found there was no prejudice from Mr. Sims’ unintentional nondisclosure. Like other findings of fact, the trial court’s finding of a lack of prejudice will be disturbed on appeal only for abuse of discretion. Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298, 306 (Mo. banc 1992). “Only when the appellate court is convinced from the totality of the circumstances that the right to a fair trial and the integrity of the jury process has been impaired should the trial court be found to have abused discretion.” Id.

The trial court’s finding of no prejudice was based on its belief that Mr. Sims’ testimony at the post-trial hearing was credible and that he was not withholding relevant information intentionally because he responded to a voir dire question regarding whether anyone had ever broken a leg. The trial court further believed that Mr. Sims had no reason or motivation to conceal the lawsuit and that his prior litigation did not play a role in his deliberations; therefore, a new trial was not warranted.

The mere fact that Mr. Sims filed a previous personal injury lawsuit for injuries suffered in an automobile accident does not demonstrate he was prejudiced against SLU and Dr. Bicalho. Moreover, SLU and Dr. Bicalho did not attach much significance to the filing of this type of lawsuit. They did not even question the venirepersons who responded that they previously filed lawsuits for injuries suffered in automobile accidents.

SLU and Dr. Bicalho have not shown that the trial court abused its discretion in determining that Mr. Sims’ nondisclosure was unintentional and not prejudicial. The record supports the trial court’s determination. Looking at the totality of the circumstances, this Court does not find that SLU and Dr. Bicalho’s right to a fair trial and an impartial jury was compromised. Therefore, the trial court did not abuse its discretion by overruling their motion for a new trial.

Conclusion

SLU and Dr. Bicalho were not prejudiced by the erroneous admission of videotape evidence. The trial court did not abuse its discretion in denying a mistrial because of an improper insurance question or in overruling a motion for a new trial for unintentional juror nondisclosure. Therefore, the trial court’s judgment is affirmed.

PRICE, C.J., TEITELMAN, RUSSELL, FISCHER and STITH, JJ., and PARRISH, Sr.J., concur.

WOLFF, J., not participating.

      . All defendants except SLU and Dr. Bicalho subsequently were dismissed, without prejudice.

      . He was in an extended care facility and required a reclining wheelchair because he could not sit up at a right angle.

      . SLU and Dr. Bicalho also claim on appeal that the videotape contains impermissible character evidence. This objection to the videotape was raised for the first time on appeal. A party may not raise or expand an objection to evidence on appeal that it did not make at trial. Egelhoff v. Holt, 875 S.W.2d 543, 549 (Mo. banc 1994). Therefore, the argument is not addressed.

      . Mr. Sgroi died while the case was on appeal. Ms. Geary, as personal representative of Mr. Sgroi’s estate, was substituted for Mr. Sgroi.

      . The portion of the video excluded contained the news reporter’s comments about Mr. Sgroi's goal to run for the state house of representatives, his confirmation that he intends to run, and the news anchor's closing comments about Mr. Sgroi's problems with his insurance carrier.

      . This Court also has given deference when trial courts exercise their broad discretion to exclude day-in-the-life videos of injured plaintiffs because the plaintiffs were present in court and could be observed by the jury. Helm v. Wismar, 820 S.W.2d 495, 497 (Mo. banc 1991); Haley v. Byers Transp. Co., 414 S.W.2d 777, 780 (Mo.1967).

      . Although SLU and Dr. Bicalho did not expressly state at trial that their objection was hearsay, the record shows that the objection that the speakers were not subject to cross-examination sufficiently brought the hearsay issue to the trial court’s attention.

      . Follow-up questions are at the discretion of the trial court. Ivy, 878 S.W.2d at 446.

      . In McCaffery v. St. Louis Pub. Serv. Co., this Court held that it was improper to characterize Transit Casualty Company as an insurance company. 363 Mo. 545, 252 S.W.2d 361, 367 (1952). However, this Court believed that "this characterization in the one general question ... under the circumstances of this case could not have been prejudicial or certainly not so prejudicial as to convict the trial court of an abuse of discretion in refusing to discharge the jury because of the question.” Id. This Court deferred to the trial court's judgment, recognizing that it “was in a position to know.” Id.

      . Id. Because a party is allowed to ask the proper, preliminary insurance question as a matter of right, parties need not prove prejudice if denied the right to ask the question. Ivy, 878 S.W.2d at 446. The prejudice that could result from not asking a proper, preliminary insurance question outweighs any prejudice that results from it. Id. at 444; Callahan, 863 S.W.2d at 871.

      . A venireperson only is required to disclose what the venireperson knows. Silence to a clear question is a full disclosure if the venire-person lacks sufficient knowledge of the matter in order to answer the question. Heinen v. Healthline Mgmt., Inc., 982 S.W.2d 244, 248 (Mo. banc 1998) (juror fully disclosed despite failing to answer a question about a lawsuit to which he was party because he was unaware of the lawsuit).


source: Caselaw Access Project

author: PATRICIA BRECKENRIDGE, Judge. WILLIAM RAY PRICE, JR., Chief Justice,

license: Public Domain

text:
    Adam Ford WHITE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 90400.
    Supreme Court of Missouri, En Banc.
    Aug. 3, 2010.
    Motion to Modify Opinion Denied Sept. 21, 2010.

      Matthew L. Dameron, Atty. General’s Office, Jefferson City, for appellant.
    James E. Switzer, James E, Switzer LLC, Clinton, for respondent.

      . The statute says "state;" however, the director of revenue has the responsibility of defending lawsuits at the trial level for driver’s license suspensions and revocations under section 302.535. 12 CSR 10-24.020(5) ("The director of revenue shall be represented at trials de novo under section 302.535.1, RSMo by attorneys from the Department of Revenue, Office of the General Counsel.")

   PATRICIA BRECKENRIDGE, Judge.

Adam Ford White was arrested for driving while intoxicated in violation of section 577.010, RSMo 2000. Thereafter, the director of revenue suspended his license, under section 302.505, for being arrested on probable cause to believe he was driving with a blood alcohol content of .08 percent or greater. Mr. White filed a petition with the trial court to review the suspension of his license. After a trial de novo, the trial court reinstated his driving privilege. The director appeals. The director claims the trial court’s judgment is against the weight of the evidence and misapplies the law regarding probable cause. In section 302.535, the statute authorizing the trial de novo, the legislature placed the burden of proof on the director and provided that Missouri rules of civil procedure apply, which include the rule that the evidence is viewed in the light most favorable to the trial court’s judgment. Additionally, as in any court-tried civil case, the trial court can disbelieve all, some, or none of the director’s evidence on the contested issue of probable cause. Applying this law, the trial court’s judgment was not against the weight of the evidence and the trial court did not misapply the law. The trial court’s judgment is affirmed.

Factual and Procedural Background

On September 20, 2007, a Missouri Highway Patrol sergeant stopped Mr. White after observing that he failed to signal when turning. During the stop, the sergeant administered a series of field sobriety tests and then arrested Mr. White for driving while intoxicated. Following Mr. White’s arrest, the sergeant transported him to the Henry County jail and administered a breath test, which showed' that his blood alcohol content was above the legal limit. Thereafter, the director administratively suspended Mr. White’s driver’s license under section 302.505. Mr. White filed a petition for judicial review of the administrative suspension in the Henry County circuit court, citing section 302.311, RSMo 2000. Although Mr. White stated in his petition that he was seeking judicial review under section 302.311, RSMo 2000, the trial court held a trial de novo, as authorized by section 302.535.

At the trial de novo, Mr. White stipulated that the only contested issue was whether the officer had probable cause to arrest him for driving with excessive blood alcohol content. Specifically, Mr. White stipulated to the foundation for and admissibility of the blood alcohol test taken at the Henry County jail. The director then called as a witness the sergeant who arrested Mr. White. The sergeant testified that he noticed Mr. White’s vehicle when it passed his patrol vehicle. The officer followed Mr. White’s vehicle until he observed him turn into a parking lot without using his turn signal. The sergeant pulled into the lot and activated his emergency equipment. After stopping the vehicle, the officer discovered that Mr. White’s turn signal was not working. However, while the vehicle was stopped, the sergeant noticed a strong odor of alcohol coming from Mr. White and empty beer cans on the floor of his vehicle. He questioned Mr. White about consuming alcohol, and, although Mr. White initially denied drinking, he did admit that he had consumed alcohol earlier in the day.

The sergeant testified that he then administered field sobriety tests to Mr. White. Mr. White tested positive for alcohol on the portable breathalyzer test. The sergeant stated that Mr. White also exhibited five of six clues indicating intoxication during the horizontal gaze nystagmus test and swayed when he took the test. Additionally, he failed the walk-and-turn test because he pivoted on his left foot rather than taking tiny steps. The sergeant again testified that he observed that Mr. White swayed and added that his eyes were bloodshot. He testified that, based on his experience, training, and observations of Mr. White’s performance of the field sobriety tests, he believed Mr. White was intoxicated, so he arrested Mr. White.

On cross-examination, the sergeant testified that there was nothing abnormal about Mr. White’s driving other than the fact that Mr. White passed him while the sergeant was driving the speed limit and that he failed to signal a turn. Specifically, the sergeant did not observe Mr. White weaving in the traffic lanes or other erratic driving. When Mr. White exited his vehicle, he did not stumble or touch his vehicle for stability. Although there were empty beer cans on the floor of Mr. White’s vehicle, the sergeant did not detect any odor of alcohol in the vehicle. The sergeant described the odor of alcohol emanating from Mr. White as strong, when he was sitting in the patrol car. When questioned further, the sergeant acknowledged that he had marked in his written alcohol influence report that there was only a moderate odor of alcohol emanating from Mr. White when he was in the patrol car.

The sergeant then was cross-examined about his methodology in performing the horizontal gaze nystagmus test. When asked whether Mr. White was facing the roadway when the test was administered, the sergeant testified that he did not remember. He reluctantly acknowledged that the National Highway Traffic Safety Administration suggests that a person not face the roadway while being tested so the person’s eyes would not be stimulated by traffic, but he stated he did not believe it was a requirement. He also testified that the only swaying he observed was Mr. White moving in a one-inch circle — moving half an inch from the center in each direction — during the horizontal gaze nys-tagmus test. When questioned about his instructions for the one-leg-stand test, a detail of his instructions to Mr. White differed from his direct testimony.

At the end of the sergeant’s testimony, his alcohol influence report about Mr. White was admitted into evidence. While in his direct testimony, he testified that his attention was drawn to Mr. White because he was speeding, in the narrative of the alcohol influence report, the sergeant stated that Mr. White’s vehicle “slowly passed” his vehicle. The director rested, and Mr. White did not present any evidence. In its judgment, which did not include findings of fact or conclusions of law, the trial court found in favor of Mr. White and ordered his license reinstated. The director appeals.

On appeal, the director argues the trial court’s judgment was against the weight of the evidence and misapplied the law regarding probable cause. The director asserts that, based on the facts and circumstances in this case, a prudent, cautious, and trained officer would have probable cause to believe that Mr. White was driving while intoxicated. This Court granted transfer after memorandum opinion by the court of appeals. Mo. Const, art. V, sec. 10.

Section 302.535 Places Burden of Proof on State and Requires Application of Rules of Civil Procedure

The director claims that there was substantial and uncontroverted evidence that supported the arresting officer’s probable cause determination and, therefore, that trial court’s judgment is against the weight of the evidence. The director argues that because the trial court made no findings of fact on the officer’s credibility and the director’s evidence was not controverted, this Court need not defer to the trial court’s factual determinations. In support of this argument, the director cites prior decisions of this Court and the court of appeals regarding the parties’ burden of producing evidence and the discretion given to the trial court’s determination of the credibility of the director’s evidence in section 302.535 cases.

Section 302.535 governs judicial review of an administrative suspension or revocation of a person’s license, pursuant to section 302.505, when the person is arrested on probable cause to believe that the person was driving with a blood alcohol content of .08 percent or more. Section 302.535.1 permits a person aggrieved by the director’s decision to request a trial de novo in the circuit court. In such trials de novo, the legislature expressly placed the burden of proof on the state and expressly provided that the trial be conducted according to Missouri rules of civil procedure. Section 302.535.1 reads:

Any person aggrieved by a decision of the department may file a petition for trial de novo by the circuit court. The burden of proof shall be on the state to adduce the evidence. Such trial shall be conducted pursuant to the Missouri rules of civil procedure and not as an appeal of an administrative decision pursuant to chapter 536, RSMo. The petition shall be filed in the circuit court of the county where the arrest occurred. The case shall be decided by the judge sitting without a jury.

(emphasis added). The director’s burden of proof has two components — the burden of production and the burden of persuasion. Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 53 (Mo. banc 2001). The burden of production is “a party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as summary judgment or a directed verdict.” Black’s Law DictionaRY 223 (9th ed.2009). The burden of persuasion is defined as “[a] party’s duty to convince the fact-finder to view the facts in a way that favors that party.” Id. By also placing the burden of “adduc[ing]” evidence on the director, in addition to its assignment of the burden of proof to the director, the legislature emphasized its intention that it is the director who must bear the burden of producing evidence. See section 302.535.1.

When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontra-dicted or uncontroverted evidence. Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo.1963). If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. Id. “Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it.” Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999) (internal citations omitted).

Regarding the trial court’s findings about the evidence, certain statutes and rules require a trial court to make written findings of fact in its judgment. E.g., section 452.375.6 (mandating written findings of fact when a trial court makes a child custody determination); section 211.447.7 (requiring written findings when parental rights are terminated); and Rule 29.15(j) (directing that the motion court “shall” enter written findings on the Rule 29.15 motion as to whether a postconviction relief hearing is held). In the absence of a statute or rule requiring written findings of fact, Rule 73.01(c) governs and provides that a trial court is required to make written findings of fact only when requested to do so by a party. Similarly, section 510.310 provides that a party may request written findings, but written findings are not required for appellate review of court-tried cases. Section 510.310.2, .4, RSMo 2000. Rule 73.01(c) also provides that when there are no written findings, the evidence “shall be considered as having been found in accordance with the result reached;” in other words, in the light most favorable to the judgment.

In prior cases cited by the director, this Court and the court of appeals ruled contrary to the assignment by the legislature of the burden of proof and the burden of producing evidence in section 302.535 as well as its direction that the rules of civil procedure govern trials de novo. The divergence from the legislative mandate in section 302.535 began with decisions of this Court in the mid-1990s in two section 577.041 cases in which a driver’s license was suspended or revoked for refusal to submit to a chemical test.

In Berry v. Dir. of Revenue and Reinert v. Dir. of Revenue, this Court reversed the trial court’s reinstatement of the driver’s license because it found that the trial record did not support a finding that the officer lacked reasonable grounds to arrest the driver. Berry v. Dir. of Revenue, 885 S.W.2d 326, 328 (Mo. banc 1994); Reinert v. Dir. of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995). In so holding, the Court noted, in Berry, that there was no conflict in the evidence and, in Reinert, that the driver did not introduce any evidence. Berry, 885 S.W.2d at 328; Reinert, 894 S.W.2d at 164. In Reinert, this Court reversed despite the driver’s express argument that Rule 73.01(c) required that all fact issues be considered and found in accordance with the result reached, which supported the trial court’s judgment because the trial court could have disbelieved the officer’s testimony. Reinert, 894 S.W.2d at 164.

After Reinert, the court of appeals acted on the implicit statement made by these cases that appellate courts should give less deference to the trial court’s assessment of the evidence and the trial court’s credibility determinations in section 302.535 trials de novo. The court of appeals understood Reinert to mean that “when the evidence supporting revocation is uncontroverted and the trial court has not specifically found the director’s witness incredible, appellate courts will not presume that the trial judge found a lack of credibility and will not affirm on that basis.” Mathews v. Dir. of Revenue, 8 S.W.3d 237, 238 (Mo.App.1999); see also Sitzes v. Dir. of Revenue, 928 S.W.2d 3, 6 (Mo.App.1996) (citing Reinert in reversing the trial court’s reinstatement of driving privileges). The term “uncontroverted evidence” was used in these cases to describe the circumstance in which the driver did not present evidence that contradicted the director’s evidence or was contrary to the director’s evidence. As a result of these cases, for an appellate court to affirm the reinstatement of driving privileges, a written finding by the trial court was required if it found a witness lacked credibility when the evidence was “uncontroverted.” Thereafter, this Court adopted the court of appeal’s interpretation of Reinert, as stated in Mathews. Brown v. Dir. of Revenue, 85 S.W.3d 1, 7 (Mo. banc 2002).

The holding of this Court in Verdoom v. Director of Revenue further strayed from the fundamental law regarding the burden of proof, the burden of producing evidence and the legislature’s assignment of these burdens in section 302.535. 119 S.W.3d 543 (Mo. banc 2003). After recognizing that the director had the burden of proof and articulating the evidence necessary to prove the director’s case, the Court went on to give the director’s uncontroverted evidence a presumption of validity and to require the driver to present evidence to rebut that presumption of validity. Id. at 546. Although the Court found that the “director retains the burden of proof throughout the proceeding,” it nevertheless assigned to the driver the burden of producing evidence. Id. Specifically, the Court stated, the driver’s “rebuttal evidence should challenge the presumption of validity established by the director’s prim a facie case.” Id. No provision in section 302.535 creates a presumption that the director’s evidence establishing a prima fa-cie case is true or shifts the burden to the driver to produce evidence to rebut such presumption. Rather, Verdoom’s holding is contrary to the plain language of section 302.535.1, which states that “[t]he burden of proof shall be on the state to adduce the evidence.” Verdoom was followed in Coyle v. Director of Revenue and York v. Director of Revenue. 181 S.W.3d 62, 65 (Mo. banc 2005); 186 S.W.3d 267, 269-70 (Mo. banc 2006).

In 2007, in Guhr v. Director of Revenue, this Court clarified the difference between uncontradicted evidence and uncontested evidence. 228 S.W.3d 581 (Mo. banc 2007). This Court held that “the trier of fact has the right to disbelieve evidence, even when it is not contradicted.” Id. at 585 n. 8 (internal citations omitted). When the facts of the case are contested, this Court defers to the trial court’s assessment of the evidence. Id. It is only when the evidence is uncontested that no deference is due to the trial court’s findings. Id. Then, the issue is legal and there is no finding of fact to which to defer. Id.

Despite distinguishing between a fact finder’s treatment of uncontradicted and uncontested evidence, this Court stated that “[a]lthough ‘the trier of facts has the right to disbelieve evidence, even when it is not contradicted,’ there is nothing in this record to indicate that the trial court disbelieved any of the evidence.” Id. (internal citations omitted). This Court held, apparently because the record contained no findings about credibility, that the trial court’s judgment that the officer lacked probable cause to believe that Mr. Guhr was driving while intoxicated was against the weight of the evidence. Id. at 586. While the Court correctly articulated the distinction between uncontradicted and uncontested evidence, it followed the rule adopted in Brown that Rule 73.01(c) is inapplicable to license revocation cases and that written findings that witnesses are not credible are necessary even though there is no statute or rule that requires written findings absent a request by a party.

These cases fail to follow the legislative mandate of section 302.535.1 to place the burden of proof, including the burden of production of evidence, on the director and to apply the rules of civil procedure. Additionally, the director’s evidence is given a presumption of validity that is not supported by general principles of law applicable to court-tried civil cases or by the language of sections 302.505 and 302.535. The cases confuse the law and contribute to inconsistent decisions at the trial and appellate level. To the extent that these cases or any other prior case applied section 302.535 to create a presumption of validity of the director’s evidence, to place a burden on the driver to produce evidence that controverts or contradicts the director’s evidence for the trial court to disbelieve the evidence on a contested issue, or to require written factual findings absent a request by a party, the cases are overruled. Accordingly, the specific provisions of section 302.535 should govern any trial de novo under section 302.505 and any appeal therefrom. Moreover, trial court judgments in driver’s license suspension and revocation cases under section 302.535 are reviewed as any court-tried civil case. See Guhr, 228 S.W.3d at 584.

In appeals from a court-tried civil case, the trial court’s judgment will be affirmed 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). To set aside a judgment as “against the weight of the evidence,” this Court must have a firm belief that the judgment is wrong. Id.

In reviewing a particular issue that is contested, the nature of the appellate court’s review is directed by whether the matter contested is a question of fact or law. See City of St. Joseph v. Vill. of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005) (questions of law are reviewed de novo); Bd. of Educ. of City of St. Louis v. Mo. State Bd. of Educ., 271 S.W.3d 1, 7 (Mo. banc 2008) (when reviewing questions of fact, deference is given to the fact-finder). When the facts relevant to an issue are contested, the reviewing court defers to the trial court’s assessment of the evidence. York, 186 S.W.3d at 272.

It is only when the evidence is uncontested that no deference is given to the trial court’s findings. Guhr, 228 S.W.3d at 585 n. 3. Evidence is uneontest-ed in a court-tried civil case when the issue before the trial court involves only stipulated facts and does not involve resolution by the trial court of contested testimony; in that circumstance, the only question before the appellate court is whether the trial court drew the proper legal conclusions from the facts stipulated. Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979). Evidence also is uncontested when a party “has admitted in its pleadings, by counsel, or through the [party’s] individual testimony the basic facts of [other party’s] case.” All Am. Painting, LLC v. Fin. Solutions & Assocs. Inc., 315 S.W.3d 719, 723 (Mo. banc 2010). In such cases, the issue is legal, and there is no finding of fact to which to defer. Guhr, 228 S.W.3d at 585 n. 3; All Am. Painting, 315 S.W.3d 719, 722-23.

One way a party contests an issue is by contesting the evidence. To contest evidence, a party need not present contradictory or contrary evidence. While a party can contest evidence by putting forth evidence to the contrary, Howdeshell v. Dir. of Revenue, 184 S.W.3d 193, 199 (Mo.App.2006), a party also can contest evidence by cross-examination, see Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 6 (Mo.1970), or by pointing out internal inconsistencies in the evidence. Id. For example, “[a] legitimate factual dispute or credibility determination is presented by ... cross-examination of a witness for the Director which raises a legitimate credibility dilemma with respect to a material aspect of the Director’s case.” Fume v. Dir. of Revenue, 238 S.W.3d 177, 181 (Mo.App.2007) (internal citations omitted). A party also may contest evidence by arguing to the trial court that the witness is not credible as apparent from the witness’s demeanor, Beckemeier v. Baessler, 270 S.W.2d 782, 787 (Mo.1954), or because of the witness’s bias or the witness’s incentive to lie. State v. Johnson, 700 S.W.2d 815, 817 (Mo. banc 1985).

When evidence is contested by disputing a fact in any manner, this Court defers to the trial court’s determination of credibility. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); Rule 84.13(d)(3). A trial court is free to disbelieve any, all, or none of that evidence. York, 186 S.W.3d at 272. Appellate courts defer to the trial court on factual issues “because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo. banc 2009) (internal citations omitted). The appellate court’s role is not to reevaluate testimony through its own perspective. Id. at 653. Rather, the appellate court confínes itself to determining whether substantial evidence exists to support the trial court’s judgment, id.; whether the judgment is against the weight of the evidence — “weight” denoting probative value and not the quantity of evidence, O’Shea v. Pattison-McGrath Dental Supplies, 352 Mo. 855, 180 S.W.2d 19, 23 (1944); or whether the trial court erroneously declared or misapplied the law. Murphy, 536 S.W.2d at 32.

Judgment Is Not Against the Weight of the Evidence

In this case, Mr. White contested in the trial de novo whether the officer had probable cause to arrest him for an alcohol-related offense, one of the required elements of proof in a review of a license suspension or revocation under section 302.505.1. Verdoorn, 119 S.W.3d at 545. In entering judgment in his favor, the trial court found that the director failed to prove the officer had probable cause. The director’s appeal from the trial court’s decision challenges both the factual and legal determinations of the trial court regarding probable cause. The first claim of error by the director is that the trial court’s judgment was against the weight of the evidence because there was substantial and uncontroverted evidence of probable cause. Therefore, this Court will focus its inquiry on whether the director proved that the sergeant had probable cause to arrest Mr. White for violating an alcohol-related offense.

The proper analysis to determine whether an officer had probable cause is set out in Brown:

The probable cause required for the suspension or revocation of a driver’s license is the level of probable cause necessary to arrest a driver for an alcohol-related violation. That level of probable cause will exist “when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist.” Probable cause, for purposes of section 302.505, will exist “when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed.” The level of proof necessary to show probable cause under section 302.505 “is substantially less than that required to establish guilt beyond a reasonable doubt.” “There is a ‘vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt.” The trial court must assess the facts “by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.”

85 S.W.3d at 4 (citations omitted). In conducting that analysis, the surrounding facts and circumstances must take into account the trial court’s right to disbelieve the director’s evidence. Id. United States Supreme Court precedent gives guidance about the deference that should be given to credibility decisions of the trial court when reviewing whether probable cause existed under the constitutions of the United States and Missouri. State v. Damask, 936 S.W.2d 565, 570 (Mo. banc 1996) (Missouri’s search and seizure protections are coextensive with the federal constitutional protections).

In Ornelas v. United States, the Supreme Court held that “determinations of ... probable cause should be reviewed de novo on appeal.” 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The de novo review is an independent review and the Court has never “expressly deferred to the trial court’s determination.” Id. at 697, 116 S.Ct. 1657. Rather, the trial court’s determination of probable cause is reviewed for abuse of discretion. Id. at 695 n. 3, 116 S.Ct. 1657. The trial court’s probable cause determination is reviewed by establishing the facts and applying the law to those facts:

The first part of the analysis involves only a determination of the historical facts, but the second is a mixed question of law and fact: “[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory or [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.”

Id. at 696-97, 116 S.Ct. 1657 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)). The Court cautioned that “a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id. at 699, 116 S.Ct. 1657. The reviewing court also should consider background facts such as “the distinctive features and events of the community” and the police officer’s “lens of his police experience and expertise,” that inform the trial court’s assessment of the historical facts. Id. at 699-70, 116 S.Ct. 1657.

Likewise, this Court reviews probable cause determinations de novo under an abuse of discretion standard and gives deference to the inferences the trial court made from the historical facts, including the trial court’s credibility determinations. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Million illustrates how to apply the standard:

The trial court is afforded the luxury of cool deliberation — an advantage generally unavailable to persons charged with actual enforcement of the law. Nevertheless, we review the trial court’s decision on appeal under an abuse of discretion standard. Only if the trial court’s judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court’s ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court’s ruling is plausible in light of the record viewed in its entirety, this Court “may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

Id. at 183-84 (citations omitted). Applying this standard, the Court found that, even though the trial court did not issue findings of fact, the record showed that the trial court apparently did not believe the trooper’s testimony regarding his perception of the smell of marijuana in the searched compartment and, in light of the trial court’s credibility determinations, its finding of no probable cause was not clearly erroneous. Id. at 184. Therefore, appellate courts must defer to the trial court’s ability to weigh the credibility of the witness when reviewing de novo whether the officer had probable cause that the driver was intoxicated. Wesley v. Dir. of Revenue, 309 S.W.3d 442, 445-16 (Mo.App.2010); Smith v. Dir. of Revenue, 259 S.W.3d 84, 88-89 (Mo.App.2008); Fume, 238 S.W.3d at 180-81.

Under this analysis, although Mr. White did not testify or introduce exhibits and he stipulated to the results of the blood alcohol test taken at the Henry County jail, Mr. White contested the factual and legal determination of probable cause. His cross-examination of the sergeant pointed out inconsistencies in the officer’s testimony that called into question either his recollection of the events or his credibility and, as a result, undermined his testimony on direct examination and his statements in his written report. Because the director’s evidence was contested, the trial court was free to accept or reject any or all of the sergeant’s testimony regarding probable cause. Furne, 238 S.W.3d at 181.

The trial court could have believed that the sergeant was mistaken or applied an unreasonable standard regarding the indi-cia of intoxication that was the basis for the probable cause determination. While the sergeant stated that he noticed Mr. White because he was “speeding” when he drove past the officer’s vehicle, in his alcohol influence report he indicated that Mr. White “slowly” passed his vehicle. The sergeant testified that he noticed a “strong odor” of intoxicants coming from Mr. White when Mr. White was in the patrol car, but he marked in his alcohol influence report that the odor was “moderate.” He testified that he believed Mr. White was “swaying,” but the conduct that he characterized as swaying was Mr. White moving in a one-inch circle — moving half an inch from the center in each direction — while taking the horizontal gaze nystagmus test. The sergeant also testified that he found that Mr. White failed the walk-and-turn test because Mr. White made one mistake in the complicated directions for the test. Yet, when the officer testified to the directions he gave Mr. White for another field sobriety test, the one-leg-stand test, the officer made a mistake similar to Mr. White’s by failing to recite a part of the directions consistently. Additionally, the trial court viewed the officer’s demeanor when testifying, and such observations are a proper consideration in the court’s assessment of the credibility of the director’s evidence. See Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985).

The record supports the trial court’s conclusion that the sergeant lacked probable cause to arrest Mr. White for violating an alcohol-related offense. The trial court’s judgment was not against the weight of the evidence.

Trial Court Did Not Misapply the Law

The director also argues that precedent overwhelmingly supports a finding of probable cause; therefore, the trial court misapplied the law. To support her argument, the director cites to numerous cases in which the trial court found that an arresting officer, under similar circumstances, had probable cause. This argument relies on the now-rejected presumption of validity of the director’s evidence and does not take into account the trial court’s ability to disbelieve the director’s contested evidence.

Whether probable cause existed always will depend on the particular facts of the ease.

Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.... There is no precise test for determining whether probable cause exists; rather, it is based on the particular facts and circumstances of the individual case.

Guhr, 228 S.W.3d at 584-585. In light of the standard of review, this Court defers to the trial court’s view of the evidence and will not second guess the trial court on the contested facts. Id. at 585 n. 3; Hinnah, 77 S.W.3d at 620. As stated above, the trial court was free to believe or disbelieve any or all of the contested evidence at trial. York, 186 S.W.3d at 272. Moreover, the record shows that the sergeant’s testimony created conflicts in the director’s case. Although cases exist in which the trial court found the officer had probable cause on similar facts, the trial court was free to draw the conclusion there was no probable cause based on its determination of the credibility of the director’s evidence. The trial court did not misapply the law.

Conclusion

In section 302.535, the legislature placed the burden of proof and the burden of production of evidence on the director and provided that trials de novo shall be conducted pursuant to the Missouri rules of civil procedure. In other respects, the general law and procedures governing court-tried civil cases apply. Because the director did not request written findings and, pursuant to Rule 73.01(c), the evidence on the contested issue of probable cause is viewed in the light most favorable to the judgment, the trial court could have disbelieved the director’s evidence and, therefore, its judgment was not against the weight of the evidence. Moreover, the trial court did not erroneously declare or misapply the law. Accordingly, the trial court’s judgment is affirmed.

TEITELMAN, RUSSELL, WOLFF, FISCHER and STITH, JJ, concur.

PRICE, C.J., concurs in separate opinion filed.

WILLIAM RAY PRICE, JR., Chief Justice,

concurring.

I concur in the result reached by the majority opinion. White contested the evidence against him. The record thus indicates a basis for the trial court to disbelieve the director’s evidence. However, I would not overrule the long and consistent precedent of this Court established in Guhr v. Dir. of Revenue, 228 S.W.3d 581, 586 (Mo. banc 2007); York v. Dir. of Revenue, 186 S.W.3d 267, 272 (Mo. banc 2006); Coyle v. Dir. of Revenue, 181 S.W.3d 62, 65 (Mo. banc 2005); Verdoom v. Dir. of Revenue, 119 S.W.3d 543, 546-547 (Mo. banc 2003); Brown v. Dir. of Revenue, 85 S.W.3d 1, 7 (Mo. banc 2002); Reinert v. Dir. of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995); Berry v. Dir. of Revenue, 885 S.W.2d 326, 328 (Mo. banc 1994).

      . All statutory citations are to RSMo Supp. 2009 unless otherwise indicated.

      . A person exceeds the legal limit for blood alcohol content when the "alcohol concentration in the person's blood, breath, or urine [is] eight-hundredths of one percent or more by weight[.]” Section 302.505.1. "A person commits the crime of 'driving with excessive blood alcohol content' if such person operates a motor vehicle in this state with eight-hundredths of one percent or more by weight of alcohol in such person's blood." Section 577.012.1.

      . A driver is authorized to seek review by a circuit court of his or her license revocation or suspension under three statutory provisions. Those statutes are section 302.311, RSMo 2000, authorizing appeals for suspensions or revocations due to excessive points following driving-related offenses and providing general authority for appealing license suspensions and revocations; section 302.535, authorizing appeals for a suspension or revocation relating to driving with an excessive blood alcohol content; and section 577.041, authorizing appeals for revocations of non-commercial driver's licenses for refusal to submit to chemical testing. Because Mr. White’s license was suspended for driving with an excessive blood alcohol content, he should have petitioned for a trial de novo under section 302.535 instead of section 302.311. See Kinsman v. Dir. of Revenue, 58 S.W.3d 27, 31 n. 2 (Mo.App.2001), overruled, on other grounds by Hinnah v. Dir. of Revenue, 77 S.W.3d 616 (Mo. banc 2002). Mr. White is not hindered by his citation of the wrong statute, however, because it is the substance of his pleading that controls, not its form. See Robinson v. Dir. of Revenue, 32 S.W.3d 148, 152-53 (Mo.App.2000).

      . Section 302.505.1 states that the director of revenue "shall suspend or revoke the license of any person upon [a] determination that the person was arrested on probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine was [.08%] or more by weightf.]”

      . Although section 577.041 states that the arresting officer must have "reasonable grounds” to believe the person was driving while intoxicated, " '[r]easonable grounds' is virtually synonymous with probable cause.” Guhr v. Dir. of Revenue, 228 S.W.3d 581, 584 (Mo. banc 2007) (quoting Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002)). As a result, this Court has cited to section 577.041 cases interchangeably with section 302.535 cases when discussing the issues related to probable cause, the standard of review, and the deference given to implicit and explicit factual findings. See Brown v. Dir. Of Revenue, 85 S.W.3d 1, 4 n. 4 (Mo. banc 2002).

      . The meaning the courts imposed on "controvert” in section 302.535 and section 577.041 cases requires the driver to produce evidence for the trial court to disbelieve the director's evidence. See Guhr, 228 S.W.3d at 585 n. 3. This concept is at odds with well-accepted principles of law and the express direction of section 302.535 that the burdens of proof and production are on the director. Accordingly, the concept of "uncontroverted evidence” to require the production of contrary evidence to contest an issue or evidence is improper, and the concept of "contested evidence” is the appropriate concept as it correctly denotes disputing or litigating a claim without requiring an affirmative offer of evidence contradicting the director’s evidence.

      . For an in depth explanation of this confusion of the law and resulting inconsistent decisions, see generally Alison K. Spinden, Note, Shared Speech and Double Vision: Missouri’s Supreme Court is Unsteady on DWI Standard, 72 Mo L.Rev. 1411 (2007).

      . This Court’s ruling — that the requirement for the trial court to make written findings whenever it found the director’s evidence not to be credible is contrary to Rule 73.01(c)— does not preclude the director from obtaining such findings. Under Rule 73.01(c) and section 510.310, the director can request factual findings about the credibility of her witnesses in every case, if desired.

      . Mr. White's case was not based on only stipulated facts; therefore, this standard does not apply here.

      . During review of a license suspension or revocation under section 302.505.1, the trial court is to determine whether the suspension is supported by evidence that: (1) the driver was arrested on probable cause for violating an alcohol-related offense; and (2) the driver’s blood alcohol concentration exceeded the legal limit of .08 percent. Verdoorn, 119 S.W.3d at 545. The director must establish the grounds for suspension by a preponderance of the evidence. Id.

      . The director’s claim that her "uncontro-verted” evidence proved probable cause is based on prior case law that this Court is overruling and will not be addressed further.

      . The clear error standard of review of historical facts comes from the federal rules of civil procedure: "Findings of fact ... will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed. R. Civ. Pro. 52(a) (as cited in Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). The United States Supreme Court has interpreted the standard to mean "[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504. The United States Supreme Court also has recognized that Rule 52(a) "emphasize[s] the special deference to be paid [to] credibility determinations.” Id. While this Court is not bound by the federal rules of civil procedure, Missouri applies the same "clearly erroneous” standard to review of a trial court's probable cause determination for abuse of discretion. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990).

      . The sergeant's instructions to Mr. White for walk-and-turn test were that Mr. White was to stand on an imaginary line, place his hands down at his side, and then place his right foot in front of his left foot while standing on the imaginary line. Mr. White was then to take nine steps forward, touching heel to toe, while counting out loud. On the ninth step, Mr. White was to make a pivot with his left foot by taking a series of small steps and return the nine steps, counting out loud, and touching heel to toe. Mr. White followed all the instructions except that he made the pivot on his left foot by spinning rather than taking a series of small steps as instructed.

      . The sergeant described his instructions for the test as requiring Mr. White to stand on one foot while raising the other foot approximately six inches off the ground, while keeping that foot parallel to the ground. Mr. White was then required to count out loud for ten seconds by stating "one thousand one, one thousand two," etc., while looking at the tip of his toe. On cross-examination, the sergeant testified that Mr. White was instructed to point the toe of the raised foot toward the ground.