author: GARY W. LYNCH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eric Jerone WILLIAMS, Defendant-Appellant.
    No. SD 30225.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 6, 2010.

      Margaret M. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and Robert J. Bartholomew, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY W. LYNCH, Judge.

Eric Jerone Williams (“Defendant”) appeals the trial court’s judgment, entered following a jury trial, convicting him of three counts of statutory rape in the first degree, see section 566.032, and one count of statutory sodomy in the first degree, see section 566.062. Defendant contends that the trial court plainly erred in failing to give MAI-CR3d 304.12 as a jury instruction. Finding no plain error, we affirm the trial court’s judgment.

Factual and Procedural Background

We view the evidence and inferences drawn therefrom in the light most favorable to the verdict. State v. Schleier-macher, 924 S.W.2d 269, 272 (Mo. banc 1996). Viewed in that light, the following evidence was adduced at trial.

R.A.F., born December 17, 1994, met Defendant — who was 29 or 30 years old at the time — in April 2008 at a convenience store in Camdenton, where her mother worked. Although the two started out only as friends, and although Defendant was aware of R.A.F.’s age, the relationship ultimately became sexual. By September 6, 2008, R.A.F. and Defendant had engaged in sexual intercourse between three and five times, always in Defendant’s trailer.

On the afternoon of September 6, 2008, R.A.F. invited a friend from school, A.C.P., born January 5, 1995, to “her brother’s” trailer in Camdenton; the trailer actually belonged to Defendant. A.C.P.’s father dropped off both girls at the trailer. The trio began to play the game “Truth or Dare.” R.A.F. was dared to “[g]ive [Defendant] a blow job.” According to A.C.P., R.A.F. performed oral sex on Defendant for approximately thirty seconds while A.C.P. sat on the other end of the couch. A little later during the game, Defendant asked A.C.P. to dare R.A.F. to have sex with him, but A.C.P. refused. The group then decided to watch a movie.

During the movie, Defendant and R.A.F. went into the back bedroom, while A.C.P. remained laying on the floor of the living room. Shortly thereafter, A.C.P. walked to the back of the trailer to use the bathroom; inside the bathroom was a door that was open to the back bedroom. Through that open door, A.C.P. saw R.A.F. on top of Defendant; Defendant was completely naked, and R.A.F. was naked from the waist down. They were engaged in sexual intercourse. A.C.P. returned to the living room and fell asleep.

When she awoke a short while later, R.A.F. and Defendant were still in the back bedroom. A.C.P. returned to the doorway of the back bedroom to see what they were doing and, when R.A.F. would not pay attention to her, A.C.P. entered the room. R.A.F. then stole A.C.P.’s shorts and underwear. Defendant and A.C.P. then stole RA.F.’s pants and hid them in the living room. R.A.F. pulled A.C.P. down onto the bed and held her arms down while Defendant held down “any other part that [she] was moving.” R.A.F. told Defendant “to put his finger inside [A.C.P.] and, after he did so, asked A.C.P., “[D]o you like it?” A.C.P. replied, “[N]o[,]” and A.C.P. kicked at Defendant and R.A.F. until Defendant removed his fingers. A.C.P. stood up from the bed, put on her underwear and shorts, and told R.A.F. they needed to leave. R.A.F. did not want to go, and she told A.C.P., “[I]t will be fine, we won’t get in trouble.” A.C.P. returned to the living room and restarted the movie where she had left off. She tried to call her father, but her cell phone’s battery was dead.

A little while later, A.C.P. returned to the bathroom, and again saw, through the doorway, R.A.F. and Defendant having sexual intercourse; she could also hear the bed squeaking. Defendant was once again completely naked, and R.A.F. had on only her shirt. This time, Defendant was on top of R.A.F., who was lying on the bed. A.C.P. again told R.A.F. they needed to leave, and approximately ten minutes later, R.A.F. returned to the living room. The girls then left the trailer and walked to R.A.F.’s house, where they were picked up by A.C.P.’s father.

The following week, A.C.P. told a teacher about what had happened; the teacher sent A.C.P. to the counselor. The counsel- or had A.C.P. call her father, and then the counselor called the police. A.C.P. went to the Camdenton Police Department after school that day and related the events of September 6 to Sergeant Chris Rector and Ryan Martin of the Children’s Division. Sergeant Rector’s interview with A.C.P. was videotaped.

After speaking with A.C.P., Sergeant Rector went to Defendant’s trailer and brought Defendant to the police station for questioning. After being informed of his Miranda rights, Defendant agreed to speak with Sergeant Rector. This interview was also videotaped. Initially, Defendant “denied having any type of sexual contact with either of the girls[,]” but he eventually admitted to having sex with R.A.F. twice and sexual contact with A.C.P. on September 6, as well as to having sex with R.A.F. before that date, and his statements corroborated the state-merits made by A.C.P., including the specific movie they were watching and the manner in which he and R.A.F. engaged in sexual relations. Defendant then made a handwritten statement. Sergeant Rector also spoke with R.A.F., who further corroborated many statements of both A.C.P. and Defendant.

Defendant was arrested and charged with three counts of first-degree statutory rape pursuant to section 566.032' — -one count each for the two episodes of intercourse with R.A.F. on September 6 and one count pertaining to intercourse that occurred before that date (Counts I, II, and III) — and two counts of first-degree statutory sodomy pursuant to section 566.062 — one count for having R.A.F. perform oral sex on him on September 6 (Count IV) and one count for putting his fingers in A.C.P.’s vagina (Count V). In response to Defendant’s motion for change of venue, the case was transferred from Camden County to Laclede County. At Defendant’s trial, both R.A.F. and A.C.P. testified, as did Sergeant Rector. Both girls identified Defendant in the courtroom. Additionally, the videotaped interviews of A.C.P. and Defendant were played for the jury. Defendant did not testify, nor did he present any evidence.

During the jury instruction conference, MAI-CR3d 304.12, entitled “Verdict Possibilities: One • Defendant — Multiple Counts — Separate Verdicts!,]” was not tendered to the trial court or requested to be given by either party or otherwise discussed in any manner. Consequently, it was not submitted to the jury. The jury found Defendant guilty of all three counts of first-degree statutory rape, as well as the count of first-degree statutory sodomy pertaining to A.C.P. (Count Vj. The jury acquitted Defendant of one count of first-degree statutory sodomy pertaining to R.A.F. (Count IV). Defendant was sentenced to twenty years’ imprisonment for each of the three counts of statutory rape and forty-five years’ imprisonment for the statutory sodomy count, with all sentences to run concurrently. Following the denial of his motion for new trial, Defendant timely filed this appeal.

In his sole point on appeal, Defendant contends that the trial court erred in. failing to submit to the jury a mandatory instruction, patterned after MAI-CR 3d 304.12, requiring the jury to consider each offense separately, and that such failure so prejudiced Defendant that it resulted in manifest injustice or a miscarriage of justice.

Standard of Review

Defendant concedes that he did not properly preserve his claim of instructional error for our review; therefore, his claim is subject only to plain error review, under Rule 30.20. State v. Smith, 293 S.W.3d 149, 151 (Mo. App.2009) (internal quotations and citations omitted).

“Rule 30.20 is no panacea” for unpre-served error, and does not justify review of all such- complaints, but is used sparingly and limited to error that is evident, obvious, and clear. Not all prejudicial error — that is, reversible error — can be deemed plain error. A defendant’s Rule 30.20 burden is “much greater” — not merely to show prejudice, but manifest injustice or a miscarriage of justice— which in this context means outcome-determinative error. We are not required' to review for plain error; to do so is within our discretion. The two-step analysis is (1) did the trial court •commit evident, obvious, and clear error affecting the defendant’s substantial rights; and (2) if so, did such plain error actually result in manifest injustice or a miscarriage of justice?

As to the second step in our review, Defendant asserts, without any supporting legal analysis, that the trial court’s omission of this instruction “should be considered ‘structural error,’ ” which requires automatic reversal, without any requirement for Defendant to demonstrate actual manifest injustice or a miscarriage of justice. See generally Arizona v. Fulminante, 499 U.S. 279, 306-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Defendant, however, cites no legal authority either mandating such treatment for all claims of instructional error or supporting why this particular alleged claim of instructional error should be considered as such. Generally, instructional error is not considered to be structural error. See, e.g., State v. Carson, 941 S.W.2d 518 (Mo. banc 1997) (“A faulty instruction is grounds for reversal if the defendant has been prejudiced.”); State v. Tripp, 939 S.W.2d 513 (Mo.App.1997) (“Failure to give an MAI-CR instruction where appropriate is error and failure to follow an accompanying Note on Use is error.... However, the prejudicial effect of such error must be judicially determined.”). In fact, the only case cited by Defendant related to this assertion, State v. Goucher, 111 S.W.3d 915 (Mo.App.2003), expressly states, “Although an instruction may be mandatory, this opinion should not be read as holding that all instructional error is per se reversible. Most defective instructional procedures are subject to a prejudicial analysis.” Id. at 920 n. 8. In the absence of any citation to relevant legal authority supporting Defendant’s assertion that this particular alleged instructional error is structural error, we decline to engage in that type of analysis and proceed in accordance with our well-established standard for plain error review.

Discussion

Our analysis of the first step in our review leads us to conclude that the trial court here committed evident, obvious, and clear error affecting Defendant’s substantial rights. MAI-CR 3d 304.12 provides the pattern for a jury instruction to read, “The defendant is charged with a separate offense in each of the [Inseri number.] counts submitted to you. Each count must be considered separately. You should return a separate verdict for each count and you can return only one verdict for each count.” The corresponding “Notes on Use” mandates that “[t]his instruction is to be used when one defendant is charged in separate counts and may be convicted of an offense under each count.” Here, Defendant was charged with multiple counts of first-degree statutory rape and sodomy, and the trial court failed to give this instruction to the jury. As the State concedes, the failure to give a mandatory instruction to the jury is error. State v. Deck, 303 S.W.3d 527, 545 (Mo. banc 2010). This error, coupled with a defendant’s right to have each charge considered separately by the jury, see State v. Rudd, 759 S.W.2d 625, 630 (Mo.App.1988), leads us to the conclusion that Defendant has satisfied the first step in our review for plain error. We now turn to the second step to determine whether the trial court’s failure to give MAI-CR 3d 304.12 to the jury in this case actually resulted in manifest injustice or a miscarriage of justice.

In order to establish that an alleged instructional error rose to the level of plain error, an appellant “must demonstrate that the trial court so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury’s verdict.” State v. Taylor, 134 S.W.3d 21, 28 (Mo. banc 2004). However, when such an issue of instructional error has not been preserved for appeal, that error must rise to the level of manifest injustice or a miscarriage of justice. Id. “Instructional error, even if clear and obvious, is rarely found to result in manifest injustice or a miscarriage of justice, requiring reversal for plain error.” State v. January, 176 S.W.3d 187, 193 (Mo.App.2005) (citing State v. Roe, 6 S.W.3d 411, 415 (Mo.App.1999)).

The general proposition that “if multiple offenses are submitted against a single defendant, the different offenses submitted should be distinguished[ ]” is well-established. Rudd, 759 S.W.2d at 630. In the absence of such a distinguishing instruction, however, the relevant inquiry becomes whether the jury was confused by the manner in which the charges against the defendant were presented, or if “the jury clearly understood that the defendant was charged with different offenses in distinct counts and that each offense was to be considered separately.” Id. We are convinced of the latter in this case.

First, the jury received separate verdict directors for each of the five counts against Defendant. Each of these verdict directors contained information specific to the particular count with which it dealt, including the particular minor alleged to have been involved and the particular manner of sexual activity alleged to have been performed.

Second, the jury heard evidence supporting each of the five counts against Defendant and heard Defendant confess to the specific acts charged in Counts I, II, III, and V. Moreover, the jury found Defendant guilty on these four counts in a separate verdict form for each count.

Finally, while finding Defendant guilty on Counts I, II, III, and V, the jury acquitted Defendant on Count IV, which pertained to R.A.F. performing oral sex on Defendant on September 6, 2008, a charge based solely upon A.C.P.’s testimony. Such a split verdict indicates that the jury considered each count individually and thus conformed to the procedure outlined in the omitted instruction.

These circumstances demonstrate that the jury clearly understood its responsibility and was not confused by the trial court’s failure to give MAI-CR 3d 304.12. Furthermore, Defendant offers nothing but speculation as to how the trial court’s failure to give the instruction consequently prejudiced him, and we cannot base a determination of prejudice upon mere speculation. See State v. Rodgers, 641 S.W.2d 83, 85 (Mo. banc 1982). The absence of any prejudice precludes any determination that Defendant suffered a manifest injustice or a miscarriage of justice by the trial court’s omission of an instruction patterned after MAI-CR 3d 304.12. See Smith, 293 S.W.3d at 151. Defendant’s point is denied.

Decision

The trial court’s judgment is affirmed.

BARNEY, P.J., and BURRELL, J., concur.

      . All statutory references are to RSMo Cum. Supp.2006, unless otherwise indicated.

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

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


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Dwayne L. CARTER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71878.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2010.

      Rosalynn Koch, Columbia, MO, for Appellant.
    Dora Fichter, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM:

Mr. Dwayne Carter appeals from the trial court’s judgment denying his motion for post-conviction relief under Rule 24.035 without an evidentiary hearing. Mr. Carter pled guilty to second-degree drug trafficking, section 195.223, and was sentenced to twelve years imprisonment.

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


text:
    Edward Frances VOLLMER, Sr., Respondent, v. Kelley Ann Bakert VOLLMER, Appellant.
    No. WD 71460.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    Ronald H. Bartlett, Esq., Columbia, MO, for appellant.
    Mary J. Browning, Esq., Jefferson City, MO, for respondent.
    Before: JOSEPH M. ELLIS, P.J. and ALOE AHUJA and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

' Kelley Ann Bakert Vollmer appeals the circuit court’s modification of a custody decree awarding sole legal custody of her son to her ex-husband Edward Frances Vollmer. Ms. Vollmer argues that the evidence failed to establish a substantial change in circumstances or that the best interests of the child justified awarding sole legal custody to Mr. Vollmer. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


author: JEFFREY W. BATES, Judge.

text:
    THE CADLE COMPANY II, INC., Plaintiff-Appellant, v. Raymond HUBBARD and Holly Hubbard, Defendants-Respondents.
    No. SD 30510.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 28, 2010.

      David Paul Renovitch, Clayton, MO, for Appellant.
    John F. Scott, Poplar Bluff, MO, for Respondents.
   JEFFREY W. BATES, Judge.

The Cadle Company II, Inc. (Cadle) appeals from a judgment denying Cadle’s request to register a judgment pursuant to Rule 74.14. The trial court dismissed the case with prejudice and entered judgment for defendants Raymond and Holly Hubbard (referred to collectively as Defendants and individually by their given names). The court decided that Cadle had not complied with the requirements of Rule 74.14. The judgment is reversed, and the cause is remanded.

On June 4, 2009, Cadle filed a petition to register a foreign judgment. The petition alleged that Cadle had' obtained a judgment against Defendants in California state court and that the judgment remained unsatisfied. An authenticated copy of the judgment was attached to the petition. The petition also had attached to it an affidavit from Cadle’s counsel. The affiant provided Cadle’s name and address and a last known address for Defendants on Rocky Branch Lane in Poplar Bluff, Missouri.

According to the docket sheet, Raymond and Holly were each sent a notice of registration of foreign judgment by the circuit clerk on June 5, 2009. The docket entry states: “Notice of Registration^] Document ID: 09-NFFJ-4, for HUBBARD, RAYMOND N; Document ID: 09-NFFJ-5, for HUBBARD, HOLLY G; Notice of registration of foreign judgment sent by certified mail.” On June 9, 2009, the clerk noted on the docket sheet that individual certified-mail return receipts had been received from Raymond and Holly. The court file contains a copy of the notice of registration sent to Holly. This document is titled “Notice of Filing of Foreign Judgment[.]” It was signed by a Butler County deputy clerk and stated that “[e]nclosed is a copy of a foreign judgment registered in this court under Supreme Court Rule 74.14. This notice is being mailed to you in compliance with Supreme Court Rule 74.14(c).” The document lists Holly’s address as 118 Rocky Branch Lane, Poplar Bluff, Missouri. The bottom left corner of this document contains the following description: “OSCA (4-99) CV170 (NFFJ).” For reasons unexplained by the record, the court file does not contain a copy of the notice of filing of foreign judgment form sent to Raymond.

On June 16, 2009, attorney John Scott (Scott) entered his appearance for Defendants. That same day, Scott filed Defendants’ objections to the petition to register the foreign judgment. In relevant part, the objections stated that “[Cadle] has failed to comply with Rule 74.14 in attempting to register this foreign Judgment.” In subsequent suggestions sent to the judge, Scott argued that “Plaintiff did not follow Rule 74.14 as it pertains to providing certain notices and certain verifications of the underlying judgment. Specifically, Plaintiff failed to provide the properly authenticated Judgment and has failed to provide proper notice to Defendants.”

On March 15, 2010, the trial court dismissed the case with prejudice and entered judgment for Defendants. The judgment states that “UPON review of the file, legal memoranda and Motions, along with arguments of counsel, the Court finds that Plaintiff has not complied with Supreme Court Rule 74.14.... ” This appeal followed.

On appeal, we review de novo the trial court’s legal conclusion that the California judgment could not be registered because Cadle failed to comply with Rule 74.14. Miller v. Dean, 289 S.W.3d 620, 624 (Mo.App.2009); Big Tex Trailer Mfg., Inc. v. Duff Motor Co., Inc., 275 S.W.3d 384, 386 (Mo.App.2009). The trial court based its decision upon the docket entries and documents in the court file. On appeal, we independently review those entries and documents to reach our own conclusions about their legal effect. See Doctor’s Associates, Inc. v. Duree, 30 S.W.3d 884, 887 (Mo.App.2000).

Rule 74.14 is the procedural rule governing the enforcement of foreign judgments in Missouri. This rule is based upon the 1964 version of the Uniform Enforcement of Foreign Judgments Act (UEFJA). 13 Uniform Laws Annotated 155 (West 2002); Lewis v. Roskin, 895 S.W.2d 190, 199 (Mo.App.1995). Cadle argues that it complied with Rule 74.14 and that the trial court’s contrary ruling was erroneous. We agree.

The judgment does not explain in what manner Cadle failed to comply with Rule 74.14. Below, Defendants argued that the California judgment was not properly authenticated and that they did not receive proper notice.

We first address the authentication issue. In relevant part, Rule 74.14(b) states that “[a] copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any circuit court of this state.” In order to be properly authenticated, a foreign judgment must bear the attestation and seal of the clerk of the court and be certified by a judge. See 28 U.S.C.A. § 1738 (West 2006); § 490.130; Food Services Corp. v. Rheam, 145 S.W.3d 484, 489 (Mo.App.2004). We have examined the copy of the California judgment in the legal file, and it meets these authentication requirements. Thus, the trial court could not have properly relied upon the alleged lack of authentication as a basis for denying Cadle the right to register the California judgment.

We next address the notice issue. After the filing of the foreign judgment and a required affidavit, the circuit clerk is required to mail a notice to the judgment debtor and make a note of the mailing in the docket. Rule 74.14(c)(2). Based upon our review of the docket sheet, both of those actions were taken. The June 5th docket entry states that Raymond and Holly were each sent a notice of filing of foreign judgment form by certified mail, which gave them notice of the registration. On June 9th, the clerk noted in the docket that individual certified-mail return receipts had been received from Raymond and Holly. Accordingly, we hold that Defendants received the notice to which they were entitled from the circuit clerk.

Defendants argue, however, that the trial court could properly deny registration of the California judgment because the Missouri court file does not contain a copy of the notice of filing of foreign judgment form that was mailed to Raymond. We find no merit in this argument. As noted above, Rule 74.14' is based upon the 1964 version of the UEFJA. We are required to interpret and construe Rule 74.14 so as to effectuate its general purpose to make uniform the law of those states that adopt the UEFJA. Rule 74.14(f). In other states that have adopted the UEFJA, their appellate courts have held that the purpose of the notice requirement is simply to give the judgment debt- or notice of the filing of the foreign judgment. See, e.g., Nix v. Cassidy, 899 So.2d 998, 1001 (Ala.Civ.App.2004); State, Inc. v. Sumpter & Williams, 553 N.W.2d 719, 723 (Minn.Ct.App.1996); Concannon v. Hampton, 584 P.2d 218, 221 (Okla.1978). When the judgment debtor has actual knowledge of the filing, the failure of the clerk and/or the judgment creditor to follow the notice provisions in the UEFJA is not prejudicial and provides no basis for a trial court to prohibit registration of the foreign judgment. See, e.g., Miller v. Eloie Farms, Inc., 128 Ariz. 269, 625 P.2d 332, 333 (Ariz.Ct.App.1980); In re Mead, 374 B.R. 296, 301-03 (Bankr.M.D.Fla.2007); Sparaco v. Sparaco, 309 A.D.2d 1029, 765 N.Y.S.2d 683, 685-86 (N.Y.App.Div.2003). We agree with the foregoing decisions and interpret Rule 74.14(c) in like fashion. The record in this case conclusively establishes that, one week after the circuit clerk noted on the docket that certified-mail return receipts had been received from Raymond and Holly, Scott entered his appearance for Defendants and filed objections to registration of the foreign judgment on their behalf. Assuming arguendo that Raymond did not receive the same notice form that was mailed to Holly, there was no prejudice because Raymond had actual knowledge of the filing of the California judgment. See Lewis v. Roskin, 895 S.W.2d 190, 199 (Mo.App.1995) (holding that the clerk was not required by Rule 74.14(c) to mail notice of the filing of the foreign judgment to the judgment debtor because he was the person who filed the foreign decree). Thus, the trial court could not have properly relied upon the absence of the notice of filing of foreign judgment form in the court file as a basis for denying Cadle the right to register the California judgment. Cadle’s point is granted.

The trial court’s judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.

SCOTT, C.J. and FRANCIS, J., Concur.

      . All references to rules are to Missouri Court Rules (2009). All references to statutes are to RSMo Cum.Supp. (2008) unless otherwise specified.

      . A judgment denying registration of a foreign judgment is appealable pursuant to § 511.760.11 RSMo (2000); Acclaim Systems,

        Inc. v. Lohutko, 247 S.W.3d 601, 604 (Mo.App.2008).

      . Defendants also argue that the judgment should be affirmed because Cadle did not send notice directly to the judgment debtors or their attorney. The first argument fails because Rule 74.14(c)(2) does not require the judgment creditor to provide notice to the judgment debtor. Instead, the rule states that “the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk.” The use of the word "may" in this rule indicates that action by the judgment creditor is permissive, rather than mandatory. See Lorenzini v. Short, 312 S.W.3d 467, 471 (Mo.App.2010). The second argument fails because Rule 74.14(c) does not require either the circuit clerk or the judgment creditor to send the notice of the filing of the foreign judgment to a judgment debtor's attorney.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James Edward WHITE III, Defendant-Appellant.
    No. SD 30174.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 29, 2010.

      Matthew Ward, Columbia, for Appellant.
    Chris Koster, Atty. General, John M. Reeves, for Respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

James Edward White III (“Appellant”) was convicted by a jury of voluntary manslaughter for the 2006 shooting death of his wife. He claims the trial court erred in allowing evidence of a prior altercation with his wife where he pointed a gun at her. We find no error and affirm the conviction.

Ms. White was shot in the early evening of November 26, 2006. Appellant called 911 and told the dispatcher that a gun had gone off and his wife had been shot in the head. Ms. White was lying on the ground in the laundry room while Appellant was next to her attempting to give her “rescue breathing.” A double-barrel shotgun was lying on top of the washer and dryer with a shell in each barrel. The one in the left barrel had been used. Ms. White died from the gunshot wound, which had been fired from a close distance. The officers investigating her death noted that Ms. White’s car was parked outside the house with the engine running and the parties’ son sitting in the back seat. Her purse was in the car along with an envelope containing an engagement ring and a wedding band.

Appellant spontaneously stated: “I killed my wife.” He wrote a statement in which he claimed that earlier in the day he had gone to Eagles, a bar, and had arrived home a little before 4:00 p.m. He claimed that he and Ms. White started arguing over money for Christmas; he left and drove around the block and then came back to his house at least two different times. When he got home the second time, he claimed Ms. White drove around the block and came back. Appellant claimed he took their child out to the car in the driveway and was coming back into the house from the garage when Ms. White came at him with a shotgun, he grabbed the barrel, and “it went off.”

Ms. White’s coworker testified that there had been an incident at work when Appellant drove up to the company parking lot where Ms. White was waiting. He got out of the car and started yelling at Ms. White, then opened the passenger door to his car and pushed her into the passenger seat. Another incident occurred in November 2006, when Appellant pulled into the parking lot after driving very fast. He exited his car, opened the passenger door and started yelling at Ms. White who was sitting in the passenger seat. Ms. White had thrown up in the car and Appellant exclaimed, “You made me fu-ing late for work, and now I have to clean this shit up off the carpet.” He then grabbed Ms. White by her right arm and “yanked her out of the car so hard that she literally did a 180.... ” Ms. White had a hand print on her arm for the rest of the day.

Appellant argues that an event which occurred four years prior to the shooting that is the subject of this appeal is evidence of an uncharged prior bad act, is not relevant on the issue of whether Ms. White was accidentally shot by a shotgun, and even if probative, is greatly outweighed by the prejudice caused in confusing and misleading the jury. We review the court’s admission of the evidence for an abuse of discretion. State v. Taylor, 298 S.W.3d 482, 491-92 (Mo. banc 2009). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Blakey, 203 S.W.3d 806, 811 (MoApp. S.D.2006). Furthermore, reversal is appropriate only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999).

A witness was allowed to testify that in April of 2002, Appellant and his wife, with some family friends, went to a speedway in Alabama to watch a NASCAR race. When Appellant left with two other friends to ride around the park, his wife stayed behind. Upon his return, he and Ms. White argued, Appellant choked her over them car, pulled out a pistol and pointed it at her. The witness was able to talk Appellant into giving her the gun. It is this incident that was testified to at trial and of which Appellant complains.

The Missouri Constitution provides a criminal defendant with the right to be tried only for the offense charged. Mo. Const, art. I, sections 17 and 18(a); State v. Pennington, 24 S.W.3d 185, 189 (Mo.App. W.D.2000). “Evidence of prior bad acts is not admissible for the purpose of showing the propensity of the defendant to commit the charged crimes.” State v. Tolliver, 101 S.W.3d 313, 315 (Mo.App. E.D.2003). “Evidence of prior bad acts may be admissible, however, if it is logically relevant in that it has some tendency to establish directly the defendant’s guilt of the charged crimes and if its probative value outweighs its prejudicial effect.” Id. The evidence is only admissible in cases of murder or assault if “prior misconduct by the defendant toward the victim is logically relevant to show motive, intent, or absence of mistake or accident. Such evidence is only admissible for those purposes, however, if the defendant puts motive, intent, mistake or accident at issue in the case.” Id.

Remoteness in time of a prior bad act is ordinarily a factor that goes to the weight of the evidence, not its admissibility. State v. Danikas, 11 S.W.3d 782, 790 (Mo.App. W.D.1999). In a murder case, all that is necessary is that the defendant place his intent into issue, or claim that the victim’s death was the result of an accident for evidence of prior misconduct toward the victim to be logically relevant; for the evidence to be admissible, its probative value must also outweigh its prejudicial effect. Tolliver, 101 S.W.3d at 315.

The test for reversal is not whether we would have ruled the evidence was more prejudicial than probative, and thus not legally relevant; the test is whether the trial court abused its discretion in ruling the evidence was legally relevant to the prejudice of the defendant. See Middleton, 995 S.W.2d at 452 (discussing abuse of discretion standard applied to the admission of evidence). On the record before us, we cannot say the trial court’s ruling, which allowed into evidence a specific act of Appellant’s misconduct directed toward the victim, was so arbitrary and unreasonable as to shock our sense of justice and indicate a lack of careful consideration in light of the fact that Appellant’s defense was that the shooting, which killed the victim, was an accident. Evidence of the 2002 incident was highly probative of whether the shooting was an accident, as Appellant claims, or intentional, as the State claims.

Appellant’s defense in this case was that the shooting was an accident. In view of the testimony of the coworker concerning Appellant’s very recent violence against his wife, we find that the highly probative value of the testimony concerning the 2002 event outweighed its prejudicial effect. The jury also had the evidence of the victim’s car running with the child in the driveway, Appellant’s own statement that the parties had quarreled just prior to the shooting, and that Ms. White had removed her engagement ring and her wedding ring. It was for the jury to determine whether Appellant shot his wife while trying to take the gun from her or in some other manner.

The trial court did not abuse its discretion in allowing the evidence of the 2002 incident. The judgment is affirmed.

BATES and FRANCIS, JJ„ concur.


author: DON E. BURRELL, Judge.

text:
    William Patrick GLEASON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. SD 30298.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 29, 2010.
    Margaret M. Johnston, Columbia, MO, for Appellant.

      Chris Koster, Attorney General, and, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

On October 10, 2006, William P. Gleason (“Movant”) pleaded guilty to two counts of the class D felony of criminal nonsupport. See section 568.040. Pursuant to a negotiated plea agreement, Movant received two suspended, concurrent four-year sentences and was placed on a five-year term of probation. The State also agreed to dismiss several misdemeanor charges then pending against Movant.

Two years later, the court found after an evidentiary hearing that Movant had violated various conditions of his probation. The court revoked probation and executed Movant’s previously suspended sentences. After arriving at the Department of Corrections, Movant filed a Rule 24.035 motion claiming that his plea had been involuntarily coerced because his attorney failed to “investigate facts that would have provided exculpatory evidence.”

After holding an evidentiary hearing, the motion court denied relief. Movant now timely appeals that denial, claiming in a single point relied on that the motion court “clearly erred in denying [Movantj’s claim that his guilty plea was entered in an unknowing, involuntary, and unintelligent manner, and that his attorney was ineffective for failing to investigate whether [Movant] had made Western Union child support payments to his ex-wife[.]”

Because Movant had personal knowledge of the very information he alleges his trial counsel failed to discover, Movant’s guilty plea was not entered unknowingly or involuntarily, and we affirm the motion court’s denial of post-conviction relief.

Background

The Guilty Plea

At the hearing on Movant’s request to enter a guilty plea, the prosecutor informed the trial court that the mother of Movant’s two children reported that she had not received any child support from Movant during 2004. The records of the Division of Child Support Enforcement also showed that Movant had failed to make any of his court-ordered child support payments in 2004. Movant agreed that he was pleading guilty to the charges against him because what the prosecutor said was true. Movant confirmed that he had discussed the negotiated plea agreement with his attorney and understood its terms. The trial court accepted Movant’s guilty plea and sentenced him as previously indicated.

Movant was represented by a different attorney at his probation revocation hearing in April 2008. At that hearing, Movant admitted that he had been arrested in January 2008 for driving while intoxicated, had failed to pay his child support, and had consumed alcohol in violation of a special condition of his probation. Movant confirmed that his attorneys did, or tried to do, everything he had asked them to do. He told the trial court that he had no concerns about the quality of his representation.

The Motion Hearing

At the December 2009 hearing on his Rule 24.035 motion, Movant told a different story. Movant testified that he “made payments directly to [his ex-wife] that were never brought up.” But contrary to the claim set forth in his amended motion, Movant testified more than once at his hearing that he did not tell his trial attorney that he had made such payments or that Movant had receipts evidencing them.

Movant’s trial attorney testified that he had recently changed offices and was not able to review Movant’s file before the motion hearing. He testified that he had other clients with nonsupport cases and understood that payment of child support was at least a partial defense. He did not “recall anything specifically that [Movant] told [him] that he made any payments at all. And if [Movant] had, [he] would have looked into it to try to see if [they] could do anything to get rid of the charges.” Trial counsel also testified:

I would have asked him if he’d made any payments on his child support. And if he made me aware of it I would have looked into it. If they were just — if they were Western Union receipts, I think that’s something he might have said, that’s something I would need him to bring to my attention. I don’t think there’s any other way for us to find out about those other than for him to bring those to us.

The motion court denied Movant’s request for relief, finding that Movant: 1) did not prove that his attorney “failed to exercise the customary skill and diligence of a reasonably competent attorney under the same or similar circumstances[;]” and 2) did not prove that he was prejudiced by the acts or omissions of his attorney and, but for the attorney’s error, would have gone to trial. The motion court found that “Movant had considerable experience in criminal cases, and the court does not believe that if he had receipts for child support payments, he would not have shown them to his attorney, nor would the attorney have failed to use the information.”

Analysis
Movant’s point relied on states:
The motion court clearly erred in denying [Movant]’s claim that his guilty plea was entered in an unknowing, involuntary, and unintelligent manner, and that his attorney was ineffective for failing to investigate whether he had made Western Union child support payments to his ex-wife, because this riolated [Movantj’s rights to due process of law and the effective assistance of counsel, guaranteed by the 6th and 14th Amendments to the U.S. Constitution and Article I, §§ 10 and 18(a) of the Missouri Constitution, in that [Movant]’s trial attorney, [ ] testified inconsistently at the post-conviction hearing that he could recall very little about the case and would have looked into any claims by [Movant] that he had made child support payments, but he also testified that [Mov-ant] “might have said” he had Western Union receipts, but it was [Movant]’s responsibility to produce the receipts, and since he did not do so, there was no other way for [trial counsel] to find out about the payments. The court’s finding that [Movant] did not prove what information [trial counsel] failed to discover, that a reasonable investigation would have revealed it, or that it would have aided or improved his position was contrary to the hearing testimony.

“The motion court’s findings are presumed correct.” Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). Our review is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k); see also Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The findings and conclusions are considered clearly erroneous only if our review of the entire record leaves us with the “firm impression that a mistake has been made.” Moss, 10 S.W.3d at 511. In conducting our review, we “defer to the credibility determinations of the motion court.” Hill v. State, 301 S.W.3d 78, 84 (Mo.App. S.D.2010).

It is true that a failure by defense counsel to investigate important evidence may render counsel’s assistance ineffective. Clay v. State, 954 S.W.2d 344, 349 (Mo.App. E.D.1997). But when the “conviction results from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made.” State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997).

Movant argues in his brief that “he could not remember whether he had told [trial counsel] about the Western Union receipts, but [trial counsel] remembered them. [Trial counsel] testified that [Mov-ant] might have said that there were Western Union receipts, but said that it was [Movant]’s responsibility to bring him the receipts.” The State counters that when [trial counsel’s comment is viewed in context with his other testimony, “it becomes clear that [trial counsel] was referring to the prior portions of the evidentiary hearing.” We agree.

Movant overlooks the fact that his counsel’s testimony acknowledging a statement by Movant regarding Western Union receipts was made after he had listened to Movant’s testimony at the post-conviction hearing. Immediately before referring to Movant’s claim, the trial attorney testified that he “would have asked [Movant] if he’d made any payments on his child support. And if he made me aware of it I would have looked into it.” This statement was consistent with his other testimony that if Movant had told him that he had made any payments at all, he would have looked into it to see if he could “do anything to get rid of the charges.”

The assertion in Movant’s brief that he did not remember whether he told his trial attorney about the Western Union receipts is clearly refuted by the following testimony from Movant at the motion hearing,

[motion counsel]: Okay. Now, did you ever — you said that you had made payments?
Movant: Yes.
[motion counsel]: But that you didn’t discuss those payments with [trial counsel]?
Movant: Never brought it up.
[motion counsel]: Okay. Did you have— possess receipts for those payments?
Movant: I do.
[motion counsel]: Did you at the time?
Movant: Yes.
[motion counsel]: Did you ever discuss those receipts with [trial counsel]?
Movant: I don’t believe I ever did.

Later, after first indicating a lack of memory, Movant again rejected an opportunity to confirm that he told his attorney about the receipts.

[motion counsel]: And did you make any effort to inform [trial counsel] at the time about those payments and the fact that you had receipts?
Movant: I can’t remember. I don’t think so.

Movant admitted at his hearing that he did not tell his attorney that he had made direct child support payments to his ex-wife via Western Union and kept the receipts; yet Movant claims trial counsel was ineffective for failing to investigate and uncover this information. The reasonableness of investigation depends significantly on the information provided by the defendant, and trial counsel can reasonably rely on a defendant’s statements (or lack thereof in a situation where he would be expected to speak) in determining what investigation to conduct and what defenses to pursue. See Hufford v. State, 201 S.W.3d 533, 539 (Mo.App. S.D.2006).

By failing to tell his attorney that he had made child support payments for which he was not getting credit, Movant deprived his counsel of any reason to attempt to determine whether Movant had actually made such payments. While we might imagine a scenario in which a defendant had knowledge of crucial information but did not disclose it because he was ignorant of its legal significance, that is not the case here. Any layperson charged with a willful failure to pay child support would understand that the actual payment of such support would, be a relevant defense. Even if Movant had actually made child support payment in 2004 to the mother of his children via Western Union — a proposition the motion court explicitly rejected — Movant’s guilty plea would not have been entered unknowingly or involuntarily because Movant already had firsthand knowledge of the information and its legal significance.

Our review of the record has not left us with a definite and firm impression that a mistake has been made. Movant’s point is denied, and the motion court’s decision to deny post-conviction relief is affirmed.

BARNEY, P.J., and LYNCH, J., Concur.

      . All statutory references are to RSMo 2000. At the time of Movant’s offense and conviction, section 568.040.1 provided: ''[A] parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law.”

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

      . Movant also failed to allege that the receipts would have proved that Movant had met his child support obligations for 2004. See Cariaga v. State, 147 S.W.3d 122, 126 (Mo.App. S.D.2004) (for purposes of post-conviction motion, evidence of "withholdings for child support obligations which were substantially less than [the] court-ordered monthly child support payment” did not establish a viable defense of lack of knowledge).


text:
    Donald Alan BYRD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. SD 30125.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 30, 2010.

      Jessica M. Hathaway, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, and Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

A Pemiscot County jury found Donald A. Byrd (“Movant”) guilty of four counts of statutory sodomy in the first degree for sexually molesting his step-daughter (“Victim”) between September 2002 and March 2005, beginning when Victim was eight years old. This court affirmed those convictions in an unpublished order and memorandum. State v. Byrd, No. 28417, slip op. (MoApp.S.D. Nov. 4, 2008). After our mandate issued, Movant timely filed a pro se motion seeking post-conviction relief under Rule 29.15. Appellate counsel was appointed and filed an amended motion on Movant’s behalf.

That motion alleged Movant’s trial counsel was ineffective for: 1) “failing to challenge Juror # 1, Dale Hall, for cause or peremptorily, or for failing to move for a mistrial after Mr. Hall revealed he knew Movant and his family in the middle of trial[;]” 2) failing to file a pre-trial motion seeking a “pretrial reliability hearing” to prove that the anticipated testimony of two “jailhouse informants” was “inherently unreliable, more prejudicial than probative, and [ ] should be excluded[;]” and 3) failing to impeach Victim’s mother (“Mother”) with testimony she had given during a previous “Section 491 hearing.”

After an evidentiary hearing, the motion court issued findings of fact and conclusions of law as required by Rule 29.15(j) and attached them to a “Judgment” denying Movant’s request for relief. Movant now appeals that denial in three points relied on that mirror the allegations of his amended motion.

Finding no merit in any of Movant’s claims, we affirm the motion court’s denial of post-conviction relief.

Standard of Review

The motion court’s findings are presumed correct. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). We will overturn them only if we find that either the findings of fact or conclusions of law are clearly erroneous. Id. This standard has been met if a review of the whole record leaves us with the “definite and firm impression that a mistake has been made.” Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005).

To receive post-conviction relief based on a claim of ineffective assistance of counsel, Movant must prove by a preponderance of the evidence to the motion court that (1) his counsel failed to exercise the customary level of skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and (2) his counsel’s failure to exercise such skill and diligence was actually prejudicial to his case. Id.; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To satisfy the first prong, Mov-ant must overcome the strong presumption that his counsel’s performance was objectively reasonable and effective. Worthington, 166 S.W.3d at 573. Doing so requires Movant to point to “specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). Reasonable choices of trial strategy cannot serve as the basis for a claim of ineffective assistance of counsel. Zink, 278 S.W.3d at 176.

“The second prong of Strickland requires a determination whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). If Movant failed to satisfy either of the two prongs, we need not consider the other. Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003).

Analysis

We will address Movant’s points in turn, adding as necessary any additional relevant facts within the context of our analysis of the point to which they relate.

Counsel was not ineffective for failing to challenge juror Hall

Movant’s first point contends the motion court clearly erred in denying post-conviction relief because trial counsel was ineffective for “failing to move to strike juror Dale Hall for cause or ask for a mistrial after Mr. Hall disclosed he knew [Movant] because trial counsel had information that Mr. Hall knew [Movant] and had negative feelings about him, in that there was evidence that [Movant] told his attorney as much during trial and no reasonable attorney would leave a possibly biased juror on the panel to decide [Mov-ant]’s guilt.”

Under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, a criminal defendant is entitled to a fair and impartial jury. To successfully claim counsel was ineffective for failing to strike a venireper-son peremptorily or for cause, “the movant must show that a juror who was actually biased sat on the petit jury.” State v. Davis, 963 S.W.2d 317, 330 (Mo.App. W.D.1997) (emphasis added). “Where a venire-person’s answer suggests a possibility of bias, that person is not qualified to serve as a juror unless, upon further questioning, he or she is rehabilitated by giving unequivocal assurances of impartiality. State v. Stanley, 124 S.W.3d 70, 77 (Mo.App. S.D.2004).” “The decision to strike a venireperson is generally a matter of trial strategy.” Boyd v. State, 86 S.W.3d 153, 158 (Mo.App. E.D.2002).

After Victim and Mother had testified for the State at trial, juror Hall informed the trial court that Victim and her family used to live across the street from him in Hayti, Missouri. Hall told the court he had not recognized their names and had never interacted with them in any way. He told the judge that he believed he could still be a fair juror and was allowed to remain on the jury. Movant’s counsel did not request that Hall be removed from the jury. When the trial had concluded, the trial court asked Movant if he was satisfied with his legal representation. Movant said that he was and did not complain that Hall had been a member of his jury.

At the motion hearing, Movant and his trial counsel, Darren Todd, presented conflicting testimony. Todd testified that Movant told him during voir dire that Hall may have been familiar with Movant and his family and might have been a neighbor at one time. Todd said Movant told him that this familiai’ity was “good” because Hall “would realize that [Victim] and her family were somewhat untruthful.” Todd thought it was strange that Hall failed to speak up during voir dire when asked if he knew any of the parties, but chose not to question him about it because Movant thought Hall would be a “good” juror. After Hall disclosed his knowledge of Victim’s family during the trial and told the judge he could be fair, Todd said that he talked with Movant and they decided it was still in Movant’s best interest for Hall to remain a juror.

Movant testified that Hall used to live across the road from him and Victim’s family. Movant said he had not interacted with Hall, except for one negative incident where Movant alleged he had to call the police after he suspected that Hall’s son had broken into his car and stolen some CDs. Movant testified that he told Todd about this negative incident during jury selection and that Todd responded that he would rather keep Hall on the jury. Todd testified that he had no recollection of Movant ever telling him about any dispute between Movant and Hall’s son.

Movant argues that because Hall was biased against him, trial counsel acted unreasonably in failing to strike him from the jury. This claim is clearly refuted by the record. Hall brought the issue to the attention of the trial court. He stated that he did not know or interact with Movant and Victim’s family in any way — he simply recognized them as former neighbors. After telling the court that he used to live across the street from them, Hall unequivocally assured the judge that it would not prevent him from being an impartial juror. Whether Hall did not recognize Movant during voir dire , or did not reveal it at that time, Movant recognized Hall and told Todd that his serving on the jury would be a “good” thing for Movant.

Movant’s only suggestion of potential bias was his claim that he had called the police about his suspicion that Hall’s son had stolen some of Movant’s CDs. Although Movant testified that he told Todd about the incident and that Todd wanted to keep Hall on the panel anyway, the motion court was entitled to reject that testimony, especially in light of Todd’s having no recollection of any such disclosure and Movant’s failure to complain about Hall being a juror when asked about his counsel’s performance at the conclusion of the trial.

Because the motion court may believe or disbelieve any evidence, we defer to the motion court’s determination of the credibility of Movant’s testimony. Watts v. State, 248 S.W.3d 725, 732 (Mo.App. S.D.2008). Even if the motion court had found Movant’s story credible, that testimony would have been insufficient to indicate that Hall was actually biased against Movant and thereby unfit to sit on the jury. “A possibility of prejudice is not sufficient to disqualify a juror: ‘It must clearly appear from the evidence that the challenged venireperson was in fact prejudiced.’ ” Pearson v. State, 280 S.W.3d 640, 646 (Mo.App. W.D.2009) (quoting State v. Walton, 796 S.W.2d 374, 377 (Mo. banc 1990)). No such evidence existed here. Movant’s first point is denied.

Counsel was not ineffective for failing to request a pretrial reliability hearing regarding informant testimony

In his second point, Movant claims “trial counsel was ineffective for failing to move before trial to exclude evidence from [] two jailhouse informants, because courts have recognized the inherent unreliability of jailhouse informants, and the interests of justice and a fair trial required a pretrial reliability hearing to permit the trial court to ascertain the reliability and probative value of [ ] jailhouse testimony.”

The referenced witnesses were Darrell Kuehl and David Holifield — individuals with whom Movant shared a pod at the Pemiscot County Jail for approximately two-and-a-half months while awaiting trial. The two men were friends and were awaiting trial on charges that they had jointly engaged in stealing. Both testified during Movant’s trial that they met Movant at the jail, where Movant admitted to each of them that he had sexually abused Victim. Both men wrote official statements outlining the details of the charged acts, as revealed by Movant, including the number of times the abuse had occurred and the various towns in which it had taken place. The details of the two statements were strikingly similar.

At the motion hearing, Todd testified that his general strategy in dealing with jailhouse informants involved asking them about any deals they had received from the State in exchange for their cooperation, then arguing to the jury that this deal-making undermined the credibility of their testimony. But Todd did not actually carry out that strategy in'Movant’s case; he did not cross-examine the witnesses about any deals they might have made with the State. Todd’s explanation at the motion hearing was that prosecutors in Pemiscot County usually do not offer any such deals to jailhouse witnesses until after they have testified. Todd testified that although he did not speak with either informant before trial, he did review their written statements and did not consider them to be reliable. Movant testified at the motion hearing that he never talked to Kuehl and Holifield about his case.

It should be noted that Movant’s claim on appeal is not that Todd was ineffective for failing to cross-examine Kuehl and Ho-lifield about any deals they might have received from the State in exchange for their testimony. Instead, Movant’s claim is that the testimony of “jailhouse informants” is inherently unreliable and prejudicial and that Todd was ineffective for failing to move for a “required” pretrial hearing to test the reliability of their testimony. The motion court correctly found this claim to have no merit.

The authority Movant cites for the proposition that pre-trial hearings should be held to determine the reliability of incarcerated informant witnesses is from foreign jurisdictions. Missouri law requires no such procedure. Counsel is not ineffective for failing to request a hearing he has no right to receive. See Harp v. State, 209 S.W.3d 560, 564 (Mo.App. S.D.2007) (“Trial counsel is not ineffective for failing to do a meaningless act”). Moreover, even if such a procedure existed in Missouri, Movant failed to demonstrate a reasonable probability that the trial court would have excluded the testimony if such a hearing had been held — much less a reasonable probability that the outcome of the trial would have been different without it. Without such proof, Movant could not satisfy the prejudice prong of the Strickland, test. Deck, 68 S.W.3d at 429. Mov-ant’s second point fails.

Counsel was not ineffective for failing to impeach Victim’s mother with her prior inconsistent statement

Movant’s final point claims Todd was “ineffective for not impeaching [Mother] with a prior inconsistent statement that [Victim] had said she would do ‘whatever it takes’ to get [Movant] out of the house several weeks before she disclosed the abuse.” Under section 491.074, “a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.”

Generally, counsel’s decision “not to impeach a witness with a prior inconsistent statement is a matter of trial strategy and cannot be the basis for finding ineffective assistance of counsel.” Reynolds v. State, 87 S.W.3d 381, 385 (Mo.App. S.D.2002); see also State v. Mahoney, 165 S.W.3d 563, 568 (Mo.App. S.D.2005) (“Subjects covered during cross-examination are generally matters of trial strategy and left to the judgment of counsel”). “The mere failure to impeach a witness does not entitle a movant to post-conviction relief.” Fry v. State, 244 S.W.3d 284, 287 (Mo.App. S.D.2008). To prevail, Movant must show that counsel’s “failure to present the impeachment evidence was unreasonable and outside the realm of trial strategy.” Id. at 288.

The following facts are relevant to this claim. On April 27, 2006, the trial court held a pretrial “Section 491 hearing” to determine whether the State would be allowed to present as substantive evidence at Movant’s trial various out-of-court statements Victim had made. See section 491.075. During the hearing, Mother testified that Victim first told her about the abuse on March 9, 2005, while they were traveling in the car to pick Movant up from work. Mother testified that about three months earlier, Victim had told her that Victim would “do whatever it takes” to get Movant out of the house.

At Movant’s trial, when Todd asked Mother on cross-examination if Victim had ever indicated to her that Victim wanted Movant “out of the house,” Mother responded, “No, she never said nothing [sic] like that.” Trial counsel did not attempt to impeach Mother with her prior testimony that she had. At the motion hearing, Todd indicated that he consciously chose not to do so because Mother was “crying uncontrollably” at that point, and it appeared to him that every one of the jurors was also crying. Todd testified that “beating up on this lady” by impeaching her at that point would have been “less helpful than going to the next stage, which was credibility.”

A strategic choice to either limit or not impeach a witness at all for fear that doing so would alienate the jury or create sympathy for the State’s witnesses is a reasonable one. See State v. Chambers, 891 S.W.2d 93, 110 (Mo. banc 1994) (“There is no evidence that trial counsel could have exposed additional prior inconsistent statements without alienating the jury”); Fry, 244 S.W.3d at 287-88 (denying the movant’s ineffective assistance of counsel claim after counsel failed to impeach a witness’s credulity with a prior stealing conviction on the basis that such impeachment might anger or upset the jury). The motion court found that Todd’s decision not to impeach Mother with her prior inconsistent testimony was reasonable trial strategy under those circumstances and that Movant had failed to prove that there was a reasonable probability the outcome of Movant’s tidal would have been different if Todd had done so. This finding was not clearly erroneous.

The motion court also correctly found that Movant had failed to satisfy the prejudice prong of the Strickland test by failing to demonstrate a reasonable probability that the outcome of Movant’s trial would have been different if Mother had been impeached with her prior inconsistent statement. Deck, 68 S.W.3d at 429. From Todd’s other cross-examination of both Victim and Mother, the jury was already well-aware that Movant and Victim did not get along well. To the extent that Mov-ant’s trial strategy involved attacking Victim’s credibility by showing that she was biased against Movant, that objective had already been accomplished. Movant’s third point is also denied, and the motion court’s denial of post-conviction relief is affirmed.

BARNEY, P.J., and LYNCH, J„ Concurs.

      . Unless otherwise indicated, all rule references are to Missouri Court Rules (2009).

      . We presume Movant is referring to section 491.075, which, at the time of Movant's criminal conduct, allowed pre-trial statements made by persons less than twelve years old to be admitted at trial as substantive evidence if certain conditions were met. Unless otherwise indicated, all statutory references are to RSMo 2000.

      ."An order sustaining or overruling a motion filed under the provisions of this Rule 29.15 shall be deemed a final judgment for purposes of appeal by the movant or the state.” Rule 29.15(k), Missouri Court Rules (2010).

      . We presume that Mother and Victim would not have been present in the courtroom during voir dire and that Hall's first opportunity to observe them would have occurred when they entered the courtroom to testify.

      . Any such procedure would also be contrary to our existing law, which reserves solely to the jury all determinations of witness credibility. See, e.g., State v. Holt, 592 S.W.2d 759, 774 (Mo. banc 1980).

      . There was also a risk that the jury would interpret Mother’s prior testimony as showing Victim was desperate to get the source of her ongoing sexual abuse out of the house, not that Victim did not like Movant because he disciplined her.


author: JEFFREY W. BATES, Presiding Judge.

text:
    Phillip R. BARKER, as Administrator of the Estate of Brenda Lynn Barker, deceased, Phillip R. Barker, individually, Mindy Billington, and Angie Pace, Plaintiffs-Appellants, v. Kimberly A. SCHISLER, D.O., Defendant-Respondent.
    No. SD 29003.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 3, 2011.

      John Womick, Ralph R. Bloodworth, III, Herrin, IL, for Appellants.
    Ted R. Osburn, Cape Girardeau, MO, for Respondent.
   JEFFREY W. BATES, Presiding Judge.

Phillip Barker, Mindy Billington and Angie Pace (hereinafter referred to individually by their first names and collectively as Plaintiffs) brought a wrongful death action against Dr. Kimberly Schisler (Dr. Schis-ler) to recover damages resulting from the death of Brenda Barker (Barker), Phillip’s wife and mother of Mindy and Angie. The wrongful death claim was tried to a jury, which returned a verdict in favor of Dr. Schisler. This appeal followed. Plaintiffs contend the trial court made three erroneous evidentiary rulings that warrant reversal. Finding no merit in these contentions, we affirm the trial court’s judgment.

An appellate court views the facts in the light most favorable to the jury’s verdict. Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d 368, 370 n. 1 (Mo.App.2010); Berra v. Danter, 299 S.W.3d 690, 694 (Mo.App.2009). So viewed, the following evidence was presented at trial.

Dr. Schisler is a family practice physician with an office in Poplar Bluff, Missouri. In 2000, Barker became one of Dr. Schisler’s patients. Between 2000 and 2003, Dr. Schisler had seen Barker approximately 32 times for health issues like anemia, blood pressure problems, routine upper respiratory infections, etc. In July 2003, Dr. Schisler gave Barker a nonrefillable prescription for 60 Lorcet tablets for low back pain. This medication, which is used for pain relief and fever reduction, is a combination of acetaminophen and the opioid narcotic hydrocodone.

On the morning of December 31, 2003, Barker called and obtained an appointment to see Dr. Schisler. Barker and Phillip went to Dr. Schisler’s office. Dr. Schisler took a history from Barker. She said “she just felt bad.” She had body-aches, and her temperature at home was 103°. She also reported pain in her right lower rib area. She had reported the same type of pain during past office visits. Barker said she had been absolutely fíne the prior day. Dr. Schisler observed that Barker looked the same as she had on prior occasions. She did not appear clinically short of breath. The abrupt onset of symptoms and the fact that it was flu season led Dr. Schisler to suspect Barker had influenza. During Barker’s physical examination, Dr. Schisler listened to Barker’s lungs. Dr. Schisler did not hear any sounds of crackles, wheezes or rattles, which are present when a patient has pneumonia. Barker did not appear to need immediate hospitalization.

Dr. Schisler ordered a chest x-ray because Barker was complaining of pain in her right lower rib area. This condition was causing Barker a lot of pain. After the technicians took the x-ray (the 12-31-03 film), Dr. Schisler examined it to make sure the radiologist had a good film to read. She expected to get the radiologist’s report in due course. She did not ask that the report be expedited so it would be ready within 24 hours. Dr. Schisler diagnosed Barker with influenza. Barker was given a prescription for Tamiflu, which is an antiviral medication specifically for influenza. Dr. Schisler also gave Barker a shot of Toradol, which was an anti-inflammatory medication to help -with muscle and body aches. Dr. Schisler told Barker to call if she was not better in 24 hours.

At the appointment, Barker also said she was out of Lorcet and asked for a refill. Dr. Schisler gave Barker a prescription for 60 Lorcet tablets to treat her back pain. The prescription stated Barker should take one tablet every six hours as needed. Dr. Schisler advised Barker that the Lorcet was just for her chronic low back pain and should not be taken while she had the flu. Dr. Schisler gave that instruction because Lorcet could affect Barker’s respiratory system, which was already affected by the flu. Phillip did not hear Dr. Schisler’s instruction to Barker about not taking the Lorcet.

Barker returned home with Phillip and arrived between 12:30 and 1:00 p.m. Phillip then took the prescriptions to a Kroger pharmacy, had them filled and returned home. Barker immediately began to take both medications. Phillip was actively involved in giving Barker these medications. He recalled that one of the prescription medications was supposed to be taken every six hours, according to the label. Phillip testified that, if Barker was hurting, she may have taken more than the prescribed amount of medication to relieve the pain.

Over the next 24 hours, Barker’s symptoms did not improve. She did not call Dr. Schisler. Sometime after 11:00 p.m. on January 1st, Barker told Phillip that she was getting worse. She decided to wait until morning to call the doctor. Sometime between 2:00 and 4:00 a.m. on January 2nd, Barker died. Thereafter, the 12-31-03 film was read by a radiologist. The report stated that: (1) the x-ray revealed a vague opacity in the upper right lobe; (2) pneumonia and malignancy were considerations; and (3) clinical correlation was advised.

Detective Gary Pride of the Poplar Bluff Police Department and Butler County Coroner Larry Cotrell (Coroner Cotrell) went to Barker’s home to investigate her death. As part of the investigation, police collected all of the prescription medication that Barker had been taking before she died. One medication box contained Tami-flu. The label showed that: (1) this prescription had been filled at the Kroger pharmacy on 12-31-03; (2) the quantity of capsules was 10; and (3) the directions were to take one capsule by mouth twice a day. There were six capsules remaining in the box. Another bottle contained a prescription for Lorcet. The label showed that: (1) this prescription had been filled at the Kroger pharmacy on 12-31-03; (2) the quantity of tablets was 60; and (3) the directions were to take one tablet by mouth every six hours as needed. There were 40 tablets remaining in the bottle. Coroner Cotrell arranged for an autopsy to be performed.

Dr. Russell Deidiker (Dr. Deidiker), a pathologist at Mineral Area Regional Medical Center in Farmington, performed Barker’s autopsy. Dr. Deidiker concluded that the cause of death was bilateral bacterial pneumonia. As part of the autopsy, samples of Barker’s blood were sent to a toxicology laboratory in St. Louis. The toxicology report was positive for opiates. Dr. Deidiker’s autopsy report did not discuss the results of the toxicology tests. Based upon the autopsy report, Coroner Cotrell later issued a death certificate listing Barker’s cause of death as acute bronchial pneumonia.

In January 2005, Plaintiffs filed suit against Dr. Schisler. The petition alleged that Dr. Schisler had been negligent in failing to diagnose and treat Barker’s pneumonia. The case was tried to a jury, which returned a verdict for Dr. Schisler. Plaintiffs present three evidentiary issues for decision. The relevant facts will be presented in connection with our discussion of each point.

Point II

Plaintiffs’ second point contends the trial court erred by not permitting them to use a publication during the cross-examination of Dr. Schisler and her expert, Dr. Gary Salzman (Dr. Salzman). This point arises from the following facts.

Dr. Steven Sahn (Dr. Sahn) was one of the Plaintiffs’ expert physician witnesses. During his direct examination, he testified that several groups had generated guidelines for diagnosing and treating pneumonia. The American Thoracic Society (ATS) was one such group. Dr. Sahn testified that the ATS guidelines described the standard of care. With respect to the treatment of a specific patient, however, Dr. Sahn acknowledged that “the guidelines are just guidelines. You have to use your clinical judgment.” Dr. Sahn did not testify that he believed the ATS guidelines were generally accepted and regarded as authoritative within the medical profession.

Dr. Salzman was one of Dr. Schisler’s expert physician witnesses. During cross-examination, he testified that he was familiar with the ATS guidelines. At a later point in his cross-examination, he was asked if he disagreed with the ATS guidelines. Defense counsel objected that there had been no foundation laid for the use of this publication because no one had established that it was authoritative. The trial court agreed. Dr. Salzman then testified that the ATS guidelines provided “guidance to the standard of care,” but they were not authoritative. In fact, Dr. Salz-man disagreed with most of what the guidelines said. Plaintiffs’ counsel then asked if Dr. Salzman would ignore the ATS standards in treating patients. Defense counsel objected that no one had yet testified that the ATS guidelines were authoritative and that Plaintiffs’ counsel was not phrasing his questions in the exact language used in the guidelines. The trial court agreed and sustained the objection. Plaintiffs’ counsel did not make an offer of proof.

During Dr. Schisler’s cross-examination, she testified that she was aware of the ATS guidelines. They were among several different guidelines used by physicians. Dr. Schisler had not read the ATS guidelines for a long time, so she was not sure whether or not she agreed with everything in them. After Plaintiffs’ counsel had the guidelines marked as Plaintiffs’ Ex. 25, defense counsel objected that no one had laid the foundation that the exhibit was authoritative. At the request of Plaintiffs’ counsel, Dr. Schisler briefly and silently reviewed the exhibit. During the review process, Plaintiffs’ counsel asked Dr. Schisler to look at several pages in the exhibit. The record contains no information about what was on those pages. Dr. Schisler testified that the ATS guidelines were not authoritative. Plaintiffs’ counsel then asked the witness, ‘You’ve read some of the things I suggested to you. Do you see anything in there that you disagree with?” Defense counsel objected that this was an improper question and that no foundation had been laid to use the document. The trial court sustained the objection. Plaintiffs’ counsel did not make an offer of proof.

Plaintiffs contend that the trial court erred by not permitting Dr. Salzman or Dr. Schisler to be cross-examined about the ATS guidelines. Plaintiffs argue that the trial court used the wrong legal standard in determining whether the ATS guidelines could be used during cross-examination. We disagree.

We review the trial court’s ruling on the scope and extent of cross-examination for abuse of discretion. Embree v. Norfolk & Western Ry. Co., 907 S.W.2d 319, 325 (Mo.App.1995). In order to use written material to cross-examine an expert, the propounding party must establish that said material is generally accepted and regarded as authoritative within the profession. Herrera v. DiMayuga, 904 S.W.2d 490, 494 (Mo.App.1995). The witness’ mere familiarity with the text is not sufficient. State v. Love, 963 S.W.2d 236, 245 (Mo.App.1997). The propounding party may establish that written material is authoritative through his own expert outside the hearing of the jury or during cross-examination of the opposing expert. Herrera, 904 S.W.2d at 494. Once this prerequisite is met, counsel may cross-examine the opposing expert by framing a proposition in the exact language of the text or treatise and asking the witness whether he or she agrees with it. Foster v. Barnes-Jewish Hosp., 44 S.W.3d 432, 438 (Mo.App.2001).

Plaintiffs argue that Dr. Sahn’s testimony provided a sufficient foundation for later use of the ATS guidelines in the cross-examination of Dr. Salzman and Dr. Schis-ler. We find that argument unpersuasive. While Dr. Sahn was familiar with the ATS guidelines, he did not testify that this publication was generally accepted and regarded as authoritative in the medical profession. Embree, 907 S.W.2d at 326. Indeed, Dr. Sahn conceded that the ATS guidelines “are just guidelines. You have to use your clinical judgment.” Plaintiffs have cited no case, and this Court is aware of none, holding that testimony like that given by Dr. Sahn is sufficient to establish the authoritativeness of medical literature for use in cross-examination.

Given the state of the record when Plaintiffs’ counsel sought to cross-examine Dr. Salzman about the ATS guidelines, it was necessary for the witness to first acknowledge the authoritativeness of the publication. Gridley v. Johnson, 476 S.W.2d 475, 481 (Mo.1972); Herrera, 904 S.W.2d at 494. Because Dr. Salzman did not do so, the trial court correctly sustained defense counsel’s objection. See Coats v. Hickman, 11 S.W.3d 798, 804 (Mo.App.1999). The same rationale applies to the trial court’s decision to sustain the objection to questions about the ATS guidelines posed to Dr. Schisler. When that line of questioning commenced, no expert witness had testified that the ATS guidelines were authoritative. Because Dr. Schisler did not do so, the trial court’s ruling was correct. Id.

We also note that Plaintiffs’ counsel never used the proper format to question either Dr. Salzman or Dr. Schisler. None of the questions framed a proposition in the exact language of the author and then asked the witness whether he or she agreed with it. Because the proper procedure was not followed, the trial court’s evidentiary rulings were correct for this reason as well. See Foster, 44 S.W.3d at 438-39.

Finally, we note that Plaintiffs’ counsel made no offer of proof when the objections to his proposed cross-examination of Dr. Salzman and Dr. Schisler were sustained. Without a specific offer of proof, appellate courts generally do not review the question of excluded evidence. Noel v. Noel, 278 S.W.3d 217, 225 (Mo.App.2009). The lack of an offer of proof precludes Plaintiffs from demonstrating on appeal that the trial court improperly ex-eluded any relevant and material evidence. See English v. Empire Dist. Elec. Co., Inc., 220 S.W.3d 849, 854 (Mo.App.2007); Crain v. Newt Wakeman, M.D., Inc., 800 S.W.2d 105, 108 (Mo.App.1990). Point II is denied.

Point III

Plaintiffs’ third point contends the trial court erred by admitting testimony from Dr. Henry Simmons (Dr. Simmons), a medical expert retained by Dr. Schisler, concerning Barker’s use of Lorcet prior to her death. This point arises from the following facts.

Prior to trial, Plaintiffs filed a motion in limine concerning Dr. Simmons’ testimony. The motion asserted that Dr. Simmons had utilized a “volume of distribution” method in calculating the amount of opiates in Barker’s blood when she died. The suggestions in support of the motion argued that, based upon § 490.065.3, Dr. Simmons’ opinion should be excluded because this volume of distribution method was not reasonably relied upon by experts in his field. During a pretrial hearing, the trial court denied the motion.

During the Plaintiffs’ case-in-chief, they called Dr. Deidiker as a witness. He gave the following testimony. As a part of the autopsy, samples of Barker’s blood were sent to a toxicology laboratory in St. Louis. The analysis was performed by lab director Christopher Long (Long). The toxicology report was positive for opiates. The level of hydrocodone was .17 micrograms per milliliter. Dr. Deidiker talked to Long about that result. Long said that, if there was another explanation for Barker’s death, Dr. Deidiker should not worry about the hydrocodone level. That was consistent with what Dr. Deidiker had read in medical literature. Where there was no other explanation for the cause of death, hydrocodone levels of .12 or .18 micrograms per milliliter had been described as fatal. In other situations, persons who had been pulled over for erratic driving had hydrocodone levels as high as .19 micrograms per milliliter. Based upon the conversation with Long and other information gleaned during the autopsy, Dr. Deidiker concluded that Barker’s hydroco-done level was not relevant to her cause of death. Dr. Deidiker’s autopsy report did not discuss the toxicology results. Plaintiffs also presented testimony from Coroner Cotrell. Based upon Dr. Deidiker’s autopsy report, Coroner Cotrell issued a death certificate listing Barker’s cause of death as acute bronchial pneumonia.

During Dr. Schisler’s case-in-chief, she called Dr. Simmons as a witness. He was an M.D. physician licensed in Arkansas, and he served as the medical director for the poison center at the University of Arkansas. He also taught courses in toxicology and emergency medicine. He had a bachelor’s degree in chemistry and a Ph.D. in interdisciplinary toxicology. After graduating from medical school, he did a two-year residency in family medicine. He also had two years of experience working in emergency medicine. He had board certifications in family medicine, emergency medicine and toxicology.

During Dr. Simmons’ direct examination, he testified that Dr. Schisler’s treatment of Barker met the applicable standard of care. Dr. Simmons also was asked to give his opinion on the cause of Barker’s death. Plaintiffs’ counsel objected “as to foundation.” During a bench conference, Plaintiffs’ counsel stated that, if Dr. Simmons based his opinion on the volume of distribution method, Plaintiffs objected because that method was not accepted in the scientific community. The trial court ruled that Dr. Schisler’s counsel should “|[g]o a little further into the credentials and what [the witness] did first[.]” Dr. Schisler’s counsel did so at some length.

Dr. Simmons testified that his past work experience included the review of toxicology reports to analyze causation. He reviewed toxicology reports a number of times each year when looking at autopsy data. Barker’s toxicology report showed .17 micrograms of the opiate hydrocodone (Lorcet) in her blood. Dr. Simmons was familiar with opiates because he had prescribed these drugs for 15 years and had taught about them four times each year for 15 years. At a high enough dose, an opiate can profoundly depress the central nervous system so that a person stops breathing and dies from lack of oxygen. The effect of hydrocodone on a person is dependent on such things as the dosage taken, whether the person had developed a tolerance to the drug, etc. When Dr. Simmons was asked if Barker was tolerant to opioids on December 31, 2003, Plaintiffs’ counsel objected to “[f]oundation.” The court overruled the objection. Dr. Simmons testified that Barker was not opioid tolerant. Dr. Simmons testified that the .17 micrograms of hydrocodone in Barker’s blood was within the range that had been associated with death. Dr. Simmons was asked to assume that Barker, who was five feet, ten inches tall and weighed 350 pounds, took 20 Lorcet tablets during the 40-hour time period between noon on December 31st and her death on January 2nd. By approximately 4:00 a.m. on January 2nd, Dr. Simmons opined that the hydrocodone would have reduced Barker’s ability to breathe. In combination with the reduction in blood-oxygen levels caused by the pneumonia, he testified that the hydrocodone level could have caused Barker to die suddenly. Dr. Simmons would not have expected the same result if Barker had taken only the prescribed amount of hydrocodone. During the foregoing portions of Dr. Simmons’ testimony, Plaintiffs’ counsel repeatedly made the same “foundation” objection, which was overruled by the trial court. At the conclusion of Dr. Simmons’ direct examination, he was asked to give an opinion as to Barker’s cause of death. The “foundation” objection asserted by Plaintiffs’ counsel was overruled. Dr. Simmons testified that Barker died from complications of opioid toxicity in combination with her developing pneumonia. Dr. Simmons opined that the hydrocodone in Barker’s system impaired her respiration and ability to cough to clear secretions.

During cross-examination, Dr. Simmons testified that he had not used or relied upon the volume of distribution calculation in forming his opinions. His opinions were based upon the clinical scenario, the fact that Barker’s hydrocodone level was within the range associated with fatality and the fact that Barker was not opioid tolerant. After recross-examination was completed, Dr. Simmons was excused. The court then took a short recess. When the trial reconvened, Plaintiffs’ counsel moved to strike all of Dr. Simmons’ testimony on the grounds that he did not have proper qualifications and his opinions had changed since he was deposed. That request was denied.

Plaintiffs contend that the trial court erred by permitting Dr. Simmons to testify about Barker’s opiate use and cause of death. Plaintiffs argue that Dr. Simmons’ testimony was not based upon proper foundation and was not reasonably reliable, all in violation of § 495.065.3. Plaintiffs also argue that Dr. Simmons’ opinions should have been stricken because he did not know what Barker’s actual cause of death was.

Neither of the foregoing arguments is preserved for appeal. The only time that Plaintiffs specifically challenged Dr. Simmons’ testimony as not being in compliance with § 490.065.3 was in their motion in limine seeking to prohibit the doctor from testifying about the volume of distribution method of calculating blood opiate levels. The motion in limine preserved nothing for appellate review. See Ratcliff v. Sprint Missouri Inc., 261 S.W.3d 534, 551 (Mo.App.2008). At trial, Plaintiffs reasserted that objection only to the extent Dr. Simmons relied upon the volume of distribution calculation. The witness testified several times that he did not do so. His opinions were based upon the clinical scenario, the fact that Barker’s hy-drocodone level was within the range associated with fatality and the fact that Barker was not opioid tolerant. Plaintiffs’ “foundation” objections to other aspects of Dr. Simmons’ testimony were general and preserved nothing for appellate review. See Thompson v. Rockett, 313 S.W.3d 175, 181 (Mo.App.2010); Catroppa v. Metal Bldg. Supply, Inc., 267 S.W.3d 812, 816-17 (Mo.App.2008). Because Plaintiffs did not specifically rely upon § 490.065.3 as the basis for the objections to Dr. Simmons’ testimony, this foundational argument was waived and cannot be considered. See Rinehart v. Shelter General Ins. Co., 261 S.W.3d 583, 592 (Mo.App.2008); Peters v. General Motors Corp., 200 S.W.3d 1, 15-16 (Mo.App.2006). Similarly, Plaintiffs moved at trial to strike all of Dr. Simmons’ testimony on the two grounds noted above. On appeal, Plaintiffs advance a different argument that was not presented below. The grounds advanced on appeal are limited to those stated at trial. Rinehart, 261 S.W.3d at 592. Therefore, we cannot consider Plaintiffs’ new argument asserted for the first time on appeal. State ex rel. Selby v. Day, 929 S.W.2d 286, 288 (Mo.App.1996). Point III is denied.

Point IV

Plaintiffs’ fourth point contends the trial court erred in not permitting lab director Long to testify that Barker’s opiate use could not have been the cause of her death. This point arises from the following facts.

Long was not a physician. He had a bachelor’s degree in chemistry, a master’s degree in medical biology and a Ph.D. in toxicology. During Long’s direct examination, he was asked to give his opinion on whether the drugs in Barker’s blood had any effect on causing her death. Defense counsel objected on the ground that the question called for a medical opinion Long was not qualified to give. The trial court sustained the objection. During an offer of proof, Long gave the following testimony:

Q And in this case, in your opinion to a reasonable degree of medical certainty as a toxicologist, did any of the drugs individually or collectively cause this patient’s death?
A No.

After hearing the offer of proof, the trial court adhered to its earlier ruling and excluded this evidence. Plaintiffs argue that the trial court’s ruling was erroneous. We disagree.

We review the exclusion of evidence for abuse of discretion. Sparkman v. Columbia Mut. Ins. Co., 271 S.W.3d 619, 622-23 (Mo.App.2008). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it, and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). We find no such abuse of discretion here. In Hagen v. Celotex Corp., 816 S.W.2d 667 (Mo. banc 1991), our Supreme Court held that only one of the plaintiffs’ experts expressed a competent opinion as to the relationship between asbestos products and the decedent’s death. Id. at 670. This witness, a treating internist, testified to a reasonable degree of medical certainty that dust from products containing asbestos directly caused or directly contributed to cause the decedent’s cancer and death. Id. At trial, plaintiffs also offered the testimony of a Dr. Daugherty, an expert chemist and toxicologist. The trial court prohibited Dr. Daugherty from giving an opinion about the cause of the decedent’s cancer or death because Dr. Daugherty was not a medical doctor. Id. at 675. Our Supreme Court affirmed that ruling, noting that “the testimony of the chemist-toxicologist, Dr. Daugherty, was not received as evidence of the cause of death and is not competent for that purpose.” Id. at 670 n. 6. Point IV is denied.

The judgment of the trial court is affirmed.

BARNEY and BURRELL, JJ„ Concur.

      . Phillip also brought a claim for lost chance of survival in his capacity as the administrator of Barker’s estate. At the close of Plaintiffs’ evidence, the trial court directed a verdict against administrator Phillip on the lost chance of survival claim. Further discussion of this claim is unnecessary because the directed verdict ruling has not been challenged on appeal.

      . Plaintiffs’ first point states: "The standard of review for questions of law is de novo while questions regarding the admissibility of evidence in this case is an abuse of discretion standard.” This abstract statement of law does not state what trial court ruling is challenged, and the argument discusses only the applicable standard of review. Accordingly, Point I is denied. See McDonald v. McDonald, 946 S.W.2d 743, 745 (Mo.App.1997).

      . The authoritativeness of the ATS guidelines was not established by judicial notice, which is the only other way a foundation for use of that publication in cross-examination could be laid. See Crain v. Newt Wakeman, M.D., Inc., 800 S.W.2d 105, 107 (Mo.App.1990).

      . References to § 490.065 are to RSMo (2000). Section 490.065.3 specifically provides:
      The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.

      . In any event, Plaintiffs’ motion sought to strike all of Dr. Simmons’ testimony. The portion of his testimony concerning Dr. Schis-ler’s compliance with the standard of care is not challenged on appeal and was admissible. Because Plaintiffs’ motion to strike encompassed clearly admissible evidence, the trial court did not err in denying the motion. See State v. Gilpin, 320 S.W.2d 498, 504 (Mo.1959); State v. Kleypas, 602 S.W.2d 863, 870 (Mo.App.1980).