author: RICHARD B. TEITELMAN, Judge.

text:
    D.R. SHERRY CONSTRUCTION, LTD., Respondent, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant.
    No. SC 90442.
    Supreme Court of Missouri, En Banc.
    June 15, 2010.
    Rehearing Denied Aug. 31, 2010.

      Keigh A. Cary and John E. Franke of Franke, Schultz & Mullen P.C., Kansas City, for appellant.
    Jonathan Sternberg of Jonathan Stern-berg, Attorney, P.C., and Jason Davey of Costello Davey & Fera LLC, Kansas City, for respondent.
   RICHARD B. TEITELMAN, Judge.

American Family Mutual Insurance Company appeals a judgment for D.R. Sherry Construction, LTD., on Sherry’s claims for breach of contract and vexatious refusal to pay. The judgment is affirmed.

FACTS

Sherry is a general contractor engaged in the business of building homes. In March 2003, Sherry began constructing a home at 13395 Sycamore Drive in Platte County. In July 2003, Sherry finished construction of the home. On August 8, 2003, Sherry’s president and sole shareholder, Darrin Sherry, completed a walk-through of the house with the future homeowners and found no evidence of any structural damage to the house. The homeowners expressed satisfaction with the house and closed on its purchase on August 15, 2003. During this time, Sherry was insured under a commercial general liability policy issued by American Family.

In April 2004, the homeowners notified Darrin Sherry that the foundation and drywall were cracking. Mr. Sherry inspected the house and confirmed existence of the cracks. In July 2004, the homeowners sent a letter notifying Sherry that there were numerous re-appearing and new cracks in the foundation of the house. The letter notified Sherry that the homeowners had hired a professional engineer to inspect the house and that he had determined that the structural problems with the house were happening because the house was out of level by as much as 8 inches. The letter led Mr. Sherry to conclude in July 2004 that there was a problem with the house. Mr. Sherry investigated the house further and determined that repeated exposure of the foundation to poor soil conditions caused structural damage to the home and resulted in the house being 8 inches out of level. The homeowners threatened to file suit and demanded that Sherry repurchase the house. In March 2005, Sherry entered into an agreement with the homeowners to repurchase the house for approximately $265,000. Sherry then made a claim on the American Family insurance policy. American Family declined coverage.

In November 2005, Sherry filed suit against American Family asserting claims of breach of contract and vexatious refusal to pay. Sherry alleged that it had been insured by American Family since 1991 but did not receive a complete copy of the policy until June 2005. Sherry alleged that it was insured under policy 24 X35041-17, which expired December 5, 2003. American Family asserted that Sherry cancelled the policy in September 2003. Although the full extent of the damage was not apparent until after the policy had expired, Sherry alleged that the house’s foundational problems began during the policy period and caused progressive damage that was not apparent until after expiration of the coverage period. Consequently, Sherry maintained that there was an insurable “occurrence” during the policy period.

The trial court did not determine, as a matter of law, the scope of the coverage provided by the American Family policy. Instead, the trial court submitted the case to the jury to determine whether the American Family policy covered the damages claimed by Sherry and, if so, whether Sherry proved those damages. The trial court entered judgment on the jury’s verdict in favor of Sherry. American Family raises six points on appeal.

ANALYSIS

I. Jury Instructions

American Family asserts that the jury instructions were improper because the court did not determine the scope of coverage provided by the insurance policy and, instead, submitted the issue of coverage to the jury. As with any other contract, the interpretation of an insurance contract is generally a question of law, particularly in reference to the question of coverage. H.K. Porter Co. v. Transit Cas. Co., 215 S.W.3d 134, 140-41 (Mo.App.2006). The issue of coverage becomes a jury question only when the court determines that the contract is ambiguous and that there exists a genuine factual dispute regarding the intent of the parties. See Graham v. Goodman, 850 S.W.2d 851, 354 (Mo. banc 1993).

The trial court instructed the jury pursuant to MAI 26.06, which is the proper instruction when there is a genuine dispute as to what agreement was made and whether that agreement was breached. See Porta-Fab Corp. v. Young Sales Corp., 943 S.W.2d 686, 689 (Mo.App.1997). In pertinent part, the trial court instructed the jury as follows:

Your verdict must be for the plaintiff if you believe:
First, that there is damage to a residence located at 13395 Sycamore Dr. and the cause of the damage thereto is specifically covered in plaintiffs insurance contract with defendant, and
Second, plaintiff performed his agreement, and
Third, defendant failed to perform his agreement, and
Fourth, plaintiff was thereby damaged.

(Emphasis added.)

As American Family notes, the emphasized language requires the jury to determine whether Sherry’s property damage claim falls within the scope of coverage provided by the insurance policy. Sherry does not dispute that the instructions require the jury to make a determination as to coverage and does not argue that the language of the policy is ambiguous. Instead, Sherry asserts that it never was provided a complete copy of the insurance policy and that documents sent by American Family to Sherry reflect substantial confusion as to the terms of coverage. As such, Sherry maintains that the very terms of coverage are uncertain and that this presents a factual question regarding the parties’ intent that properly was resolved by the jury.

The record does not support Sherry’s claim of ambiguity. In its petition, Sherry alleged that it was insured by American Family pursuant to policy 24 X35041-17. Likewise, when American Family filed its motion for summary judgment, Sherry asserted in its cross-motion for summary judgment that it was covered by policy 24 X35041-17 and attached a copy of the policy to its motion. The facts set forth in American Family’s motion for summary judgment, including the factual allegation that policy 24 X35041-17 is the applicable policy, are taken as true unless contradicted by the Sherry’s response to the motion. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Therefore, from the initial pleadings in the case and continuing through the summary judgment litigation, Sherry and American Family relied on the same policy, which, in pertinent part, provides the following terms of coverage:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies....
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) This “bodily injury” or’ “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; and
(2) The “bodily injury” or “property damage” occurs during the policy period.

The trial court did not determine, as a matter of law, whether the policy would provide coverage if Sherry proved its allegation of progressive damage. Instead, the instructions in this case required the jury to make the legal determination of whether “the cause of the damage ... is specifically covered in plaintiffs insurance contract with defendant.” The trial court commits error when the question of coverage improperly is submitted to the jury. Opies Milk Haulers v. Twin City Fire Ins., 755 S.W.2d 300, 302 (Mo.App.1988); Busch & Latta Painting Corporation v. State Highway Commission of Missouri, 597 S.W.2d 189, 198 (Mo.App.1980).

Although the trial court erred in submitting the question of coverage to the jury, it does not necessarily follow that the error requires reversal. Reversal for instructional error is appropriate when the instruction misdirected, misled or confused the jury and resulted in prejudice. Edgerton v. Morrison, 280 S.W.3d 62, 66 (Mo. banc 2009). Prejudicial error is an error that materially affected the merits and outcome of the case. Hill v. Hyde, 14 S.W.3d 294, 296 (Mo.App.2000). As discussed below, American Family was not prejudiced because the policy covers Sherry’s claim of progressive damage as a matter of law and there was substantial evidence to support Sherry’s claim.

II. Progressive Damage

American Family claims that the trial court erred in overruling its motion for directed verdict at the close of all the evidence because Sherry failed to present evidence to support each element of its breach of contract claim. To make a sub-missible case for its breach of contract claim, Sherry was required to present evidence from which the jury could have a reasonable basis for finding that (1) there was a contract between Sherry and American Family that included certain rights and obligations between the parties, (2) American Family breached its obligation under the contract, and (3) American Family’s breach damaged Sherry. Teets v. Am. Family Mut. Ins. Co., 272 S.W.3d 455, 461 (Mo.App.2008). In reviewing whether the plaintiff made a submissible case, an appellate court views the evidence in a light most favorable to the plaintiff and gives the plaintiff the benefit of all reasonable inferences while disregarding all contrary evidence and inferences. Id. Whether the plaintiff made a submissible case is a question of law subject to de novo review. Id.

Under the terms of the American Family policy, Sherry is entitled to coverage if Sherry is “legally obligated” to pay damages because of property damage caused by an “occurrence” that happened during the policy period. The central issue in this case is whether Sherry’s damages claim arose during the policy period. Sherry’s insurance policy’s declaration page states that the policy period began December 5, 2002. At trial, the parties disputed the end date of the policy. American Family contended that Sherry canceled the policy in September 2003, while Sherry maintained that it did not cancel the policy and that the policy ended December 5, 2003, which is the end date on the policy’s declaration page. The standard of review requires an appellate court to view the evidence in the light most favorable to the judgment, so it is assumed that the policy ended December 5, 2003. As such, to carry its burden at trial, Sherry was required to present evidence that the property damage occurred between December 5, 2002, and December 5,2003.

Sherry argues that there is coverage because the damage began during the policy period and was progressive from that point forward. Sherry’s progressive damage theory was premised on allegations that unanticipated and repeated exposure to poor soil conditions under the house, beginning during the policy period, caused the house to settle out of level, which caused property damage to the house’s foundation. American Family argues that there is no coverage because the damage was not detected and confirmed by Sherry until July 2004. The question is whether the “occurrence” triggering coverage under the American Family policy was the poor soil condition and ensuing progressive damage or the eventual detection and confirmation of the property damage caused by those poor soil conditions.

American Family asserts that an “occurrence” under its policy is tantamount to an “accident.” Sherry does not dispute this assertion and notes that a number of cases have defined an “occurrence” as an “accident.” See American States Ins. Co. v. Mathis, 974 S.W.2d 647, 650 (Mo.App.1998). The determinative inquiry into whether there was an “occurrence” or “accident” is whether the insured foresaw or expected the injury or damages. Columbia Mut. Ins. Co. v. Epstein, 239 S.W.3d 667, 672 (Mo.App.2007). While an “accident” does not include expected or foreseeable damage, it is also true that an “accident is not necessarily a sudden event; it may be the result of a process.” Id. This principle is illustrated in Scottsdale Insurance Co. v. Ratliff, 927 S.W.2d 531 (Mo.App.1996). In Scottsdale, the plaintiff was insured under an occurrence-type commercial policy similar to the American Family policy at issue in this case. The plaintiff alleged that a pest control company negligently failed to detect a termite infestation. Id. at 534. The damage was not detected until structural problems arose after the insurance policy had expired. The plaintiff alleged that the termites were present during the alleged negligent inspection and that the termites continued to damage the house progressively. The court of appeals held that the insurer had a duty to defend the pest control company because, if true, these facts would constitute an “occurrence” under the policy. Rather than restricting coverage only to the period of time after the plaintiff had discovered the damage, the injury was a continuing one, beginning at the time of the negligent inspection and continuing until discovery. Id.

Similarly, in Stark Liquidation v. Florists’ Mut. Ins. Co., 243 S.W.3d 385 (Mo.App.2007), the plaintiff filed suit alleging that the defendant sold fruit trees infected with a disease that prevented the trees from bearing fruit and that the disease then spread to the remainder of the fruit crop. Id. at 394. The defendant’s liability insurer claimed that the property damage did not occur within the policy period because the farmer and merchant did not discover that the bacterial disease was present until several years after the policy expired. Id. at 393. Nonetheless, the court of appeals held that because the evidence showed that the bacterial infection was present from the moment the trees were delivered, the occurrence of the injury was within the policy period. Id. at 394.

Scottsdale and Stark establish the proposition that an occurrence-type policy, such as the American Family policy at issue in this ease, covers cases of progressive injury where the cause of the damage is present during the policy period but the damage is not apparent until after the policy period. Although the jury improperly was called to determine the legal issue of coverage, American Family was not prejudiced because, as a matter of law, the policy covers the type of claim made by Sherry in this case.

The issue then becomes whether Sherry presented sufficient evidence to establish an “occurrence” during the policy period. The evidence presented by Sherry in this case is analogous to Scottsdale and Stark. In both cases, the cause of the damage was present during the coverage period but was not apparent at that time. Similarly, Sherry introduced evidence showing that the home inadvertently was constructed on soil that was incapable of providing adequate support and that, as a result of this unforeseeable circumstance, the home progressively was damaged to the point of being uninhabitable. Sherry testified that his company did not foresee that the home would suffer irreparable damage from settlement. Sherry admitted that he knew the home was built on fill dirt but testified that the home was equipped with foundation piers designed to provide further stabilization and that the house passed all county inspections. Viewed in the light most favorable to the verdict, there is evidence to support Sherry’s claim that the cause of the damage commenced during the policy period and, therefore, constituted an insurable “occurrence.”

Finally, American Family argues that even if Sherry’s progressive damage theory is valid and supported by evidence, there is no coverage because Sherry was not “legally obligated” to repurchase the home. After American Family informed Sherry that it would not undertake further investigation the claim until the homeowners filed a lawsuit, Sherry repurchased the home pursuant to a settlement agreement. A settlement agreement is a contract that creates legally enforceable obligations. Because of the settlement agreement, Sherry legally was obligated to pay damages to the homeowners. American Family’s argument that Sherry was not legally obligated to pay damages is without merit.

Sherry made a submissible case of breach of contract by introducing evidence that there was a contract between Sherry and American Family, that American Family breached its obligation under the contract, and that American Family’s breach damaged Sherry. The trial court did not err in overruling American Family’s motions for directed verdict and judgment notwithstanding the verdict on Sherry’s claims for breach of contract.

III. Expert Witness

In its fourth point, American Family asserts that the trial court erred in admitting into evidence as Plaintiffs Exhibit 1 a report by engineer Ken Sido-rowicz. American Family contends that Exhibit 1 should not have been admitted because the court previously had determined that Sherry failed to establish Mr. Sidorowicz’s credentials as an expert. This point fails because American Family waived its objection to the admission of Exhibit 1. Sherry proffered the exhibit during the direct examination of Mr. Sherry, and American Family’s counsel stated there was no objection:

Q: [Sherry’s attorney] I’m going to show you what’s been previously marked as Plaintiffs Exhibit No. 1. Can you identify that, please?
A: [Mr. Sherry] This is a Foundation Evaluation done on my behalf by the engineer Ken Sidorowicz.
SHERRY’S ATTORNEY: Offer Plaintiffs 1.
AMERICAN FAMILY’S ATTORNEY: I have no objection, Your Honor.
THE COURT: One is admitted.

(Emphasis added.)

An announcement of “no objection” when evidence is sought to be admitted waives appellate review. McCormack v. Capital Elec. Constr. Co., Inc., 159 S.W.3d 387, 398 (Mo.App.2004). Consequently, American Family has preserved no argument on appeal regarding the admission of Exhibit 1.

IV. Vexatious Refusal to Pay

In its final point, American Family asserts that the trial court erred in overruling its motion for judgment notwithstanding the verdict because there was no substantial evidence to support the jury’s verdict awarding Sherry attorney’s fees for vexatious refusal to pay. Review of this claim requires this Court to accept as true the evidence and reasonable inferences therefrom in a light most favorable to the prevailing party and to disregard contradictory evidence. Georgescu v. K Mart Corp., 813 S.W.2d 298, 299 (Mo. banc 1991).

A claim of vexatious refusal to pay requires proof (1) of an insurance policy, (2) of the insurer’s refusal to pay and (3) that the insurer’s refusal was without reasonable cause or excuse. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). There is no dispute that Sherry was insured by American Family or that American Family did not pay Sherry’s claim. The dispute centers on the third element.

Viewed in the light most favorable to the jury’s verdict, the evidence showed that American Family refused to pay Sherry’s claim without reasonable cause or excuse. Sherry notified American Family of the property damage as early as July 2004. American Family took no steps to investigate Sherry’s claim until it assigned an adjuster to the claim in July 2005. There was also evidence that American Family told Sherry that it would not investigate further until the homeowners filed a lawsuit. The evidence of American Family’s delay and then refusal to investigate Sherry’s claim provided the jury with a basis for concluding that American Family unreasonably refused to pay Sherry’s valid claim for property damage. The trial court did not err in overruling American Family’s motion for judgment notwithstanding the verdict.

CONCLUSION

The judgment is affirmed.

PRICE, C.J., RUSSELL, WOLFF, BRECKENRIDGE and STITH, JJ, and SYLER, Sp.J., concur.

FISCHER, J. not participating.

      . American Family's claims of instructional error are contained in Points I and III of its brief.

      . This discussion relates to Point II and Point V of American Family’s appeal.


source: Caselaw Access Project

author: MICHAEL A. WOLFF, Judge. WILLIAM RAY PRICE, JR., Chief Justice,

license: Public Domain

text:
    STATE ex rel. David T. GARCIA, Relator, v. The Honorable Steven H. GOLDMAN, Respondent.
    No. SC 90833.
    Supreme Court of Missouri, En Banc.
    July 16, 2010.
    Rehearing Denied Aug. 31, 2010.

      Joseph Yeckel, Law Office of Joseph F. Yeckel LLC, and Grant J. Shostak, Shos-tak & Shostak LLC, St. Louis, for Relator.
    Robert P. McCulloch, David R. Truman and John Quarenghi, St. Louis County Prosecuting Attorney’s Office, Clayton, for the State.
    John L. Davidson, John L. Davidson PC, St. Louis, for Missouri Association of Criminal Defense Lawyers, which filed a brief as a friend of the Court.
   MICHAEL A. WOLFF, Judge.

Introduction

David Garcia was indicted eight years ago for a shooting that occurred 12 years ago in Kirkwood. Although he has been employed, paying taxes and living openly in Chicago for the past 10 years, the police made no serious attempt to find him until 2009, when a police officer looked him up in a computer database. After his arrest in Chicago and return to St. Louis County for trial, Garcia moved to dismiss the charge, contending that police and the prosecution violated his constitutional right to a speedy trial. The victim of the shooting was wounded seriously, but the case apparently received scant attention. In the circumstances here, the state has denied Garcia’s right to a speedy trial.

Facts

Kwan Tung Tse, the owner of the Sunny China Buffet in Kirkwood, heard a knock on the kitchen door in April 1998, opened it and let in a man who entered, talked to an employee and then left. The man returned about a minute later carrying a shotgun, shot employee Rigoberto Dominguez in the abdomen and left. Dominguez was hospitalized but survived the attack.

Meliton Gonzalez, another employee at Sunny China, followed the assailant out the door after the shooting and saw him get into a brown coupe. Gonzalez identified the assailant as David Garcia. Dominguez, the victim, and Manuel Castro, another Sunny China employee, also identified the assailant as Garcia. Dominguez told police Garcia shot him because Dominguez had been talking about Garcia’s girlfriend two days earlier. Kirkwood police interviewed three other witnesses around the time of the shooting: Nabor Garcia (Garcia’s cousin and housemate), Jesus Rojas and Moisés Aguilar.

The police found a Mossburg pump-action 12-gauge shotgun hidden in the bushes near the doorway exiting from the kitchen area. Police took photographs of the scene and prepared a diagram of the kitchen area of Sunny China. In addition, they conducted videotaped interviews of Nabor Garcia and Gonzalez. These videotapes have been lost.

Through their investigation, police obtained Garcia’s date of birth, driver’s license number, social security number and address. Police then searched the apartment Garcia shared with Nabor Garcia and canvassed the apartment complex. Police were told that if Garcia were to leave the St. Louis area, he might go to California or Illinois. Detective Michael Bales testified that he could not recall any of the locations he visited after searching the Garcias’ apartment and that he could not remember to whom he spoke at the apartment complex besides Nabor Garcia. Police were unable to locate David Garcia.

Nearly three years after the shooting, the St. Louis prosecuting attorney’s office asked Kirkwood police to make further attempts to find David Garcia, because the statute of limitations for the crime was running out. Police received information that Garcia might be in Breckenridge Hills, St. Ann or other communities in north and central St. Louis. Kirkwood police sergeant Steven Guyer attempted to locate Garcia on four days in late February or early March 2001. Guyer was admitted into three residences but did not locate Garcia. No reports were prepared documenting these efforts to locate Garcia.

Garcia was charged by indictment in February 2002 with first-degree assault. The police made no efforts to look for Garcia during the next seven years; according to a Kirkwood detective, the case had become “cold.”

In early 2009 Kirkwood Detective Steve Urbeck entered Garcia’s social security number into the Accurint computer system and received a Chicago address for Garcia. Detective Urbeck contacted the Chicago police department’s fugitive apprehension service and requested its assistance. Chicago police determined that Garcia was working at a Chicago hotel and arrested him in February 2009.

Garcia was living openly in Chicago, using his actual name, date of birth and social security number since at least 2002. The trial court found that the social security number could have been used to locate Garcia, in 2002 or before. Garcia filed tax returns from 2000 to 2008 using his real information. He opened several credit card accounts and obtained a Missouri driver’s license using his St. Louis address. Garcia’s whereabouts between the April 1998 shooting and September 2000 are unknown.

Garcia filed a motion to dismiss the indictment against him, alleging a violation of his right to a speedy trial under the Sixth Amendment to the United States Constitution. The parties stipulate that witnesses Nabor Garcia, Moisés Aguilar, Manuel Castro and Jesus Rojas cannot be found and are currently unavailable. They also stipulate that the videotaped statements of Nabor Garcia and Meliton Gonzalez are unavailable and that Sunny China was demolished two years before Garcia’s arrest. The respondent circuit court, balancing the factors discussed below and the evidence, overruled the motion to dismiss. The court found that Garcia knew that there were witnesses at the scene of the shooting, that police would be searching for him, that he fled his home address, and that there was no evidence that Garcia was aware of the indictment or arrest warrant. The court also concluded the police did not use reasonable diligence to find Garcia.

Garcia filed a petition for writ of mandamus with this Court, which issued its preliminary writ pursuant to article V, section 4 of the Missouri Constitution.

Analysis

A defendant’s right to a speedy trial arises under the Sixth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). These constitutional provisions “provide equivalent protection for a defendant’s right to a speedy trial.” State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007).

“[T]he protections of the speedy trial provisions attach when there is a ‘formal indictment or information’ or when ‘actual restraints [are] imposed by arrest and holding to answer a criminal charge.’ ” State of Missouri v. Bolin, 643 S.W.2d 806, 813 (Mo. banc 1983) (quoting Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975)). Garcia’s right to a speedy trial accrued when he was indicted in February 2002. The relevant inquiry in this case is whether the seven-year period between Garcia’s indictment and arrest violated his speedy trial rights.

The determination of whether there has been a violation of speedy trial rights involves a balancing process. In determining whether Garcia’s right to speedy trial has been violated, the Court is to consider and balance all of the circumstances and to weigh four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

1. The length of the delay is a “triggering mechanism” because until there is a “delay [that] is presumptively prejudicial,” there is no need to discuss the other factors that are part of the balancing process. Id. Missouri courts have found that a delay of greater than eight months is “presumptively prejudicial.” See McKee, 240 S.W.3d at 729. The trial court found, and both parties agree, that the nearly seven-year delay in this case between Garcia’s indictment and arrest is presumptively prejudicial.

2. The reason for the delay. Different weights are assigned to different reasons for a delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182. A deliberate attempt by the state to delay the trial is weighted heavily against the government, while “[a] more neutral reason such as negligence ... should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. The trial court found that the police did not use reasonable diligence to find Garcia. After the grand jury indicted Garcia in February 2002, there is no evidence that the police made any effort to locate Garcia until February 2009. This is indeed a lack of diligence and negligence on behalf of the state that weighs against the state.

The trial court also found that Garcia fled from St. Louis after the shooting and that he “knew there were witnesses at the scene and police would be searching for him.” The issue is whether this action should be weighed against Garcia. The state argues Garcia fled St. Louis and, therefore, should bear some responsibility for the delay in his apprehension and prosecution. Garcia argues that the state offered no evidence that he left Missouri or concealed his identity to avoid prosecution and, therefore, that the state’s negligence was the sole responsibility for the delay.

The police searched for Garcia on two occasions: once immediately after the shooting and a second time in early 2001. Garcia’s whereabouts from the time of the shooting in April 1998 until his application for a job in Chicago in September 2000 are unknown. Although the police were informed that Garcia might go to California or Illinois, there is no evidence that anyone had actual knowledge that he left the state.

Garcia lived openly and notoriously throughout the entire post-indictment period, albeit in Chicago, in a foreign jurisdiction. The trial court found that he could have been found using the same method that eventually was used to find him, by inserting his social security number into Accurint, in 2002 or before. There was no evidence that Garcia knew of the indictment against him. In the absence of evidence that Garcia did something wrong, this factor — the reason for the delay— weighs against the state.

3. The third Barker factor is the defendant’s timely assertion of his right. Garcia asserted his right to a speedy trial in December 2009, 10 months after he first found out about the indictment and was arrested. The trial court found Garcia’s assertion to be “a reasonable time frame for [Garcia] to raise this claim.” Both parties agree that this factor weighs in favor of Garcia.

4. The last Barker factor is prejudice to the defendant resulting from the delay. There are three considerations in determining whether a delay has prejudiced the defendant: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the possibility that the defense will be impaired. Bolin, 643 S.W.2d at 815 (citing Barker, 407 U.S. at 532, 92 S.Ct. 2182). These three considerations represent the interests of a defendant that the right to a speedy trial is intended to protect. Barker, 407 U.S. at 532, 92 S.Ct. 2182. Courts regard the third consideration as the most serious. Id. “[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” Id. (Emphasis added). This third consideration — impairment to Garcia’s defense — is the only one applicable in this case.

The impairment to his defense, Garcia argues, is threefold: (1) the disappearance of four witnesses; (2) the loss of the videotaped interviews of Nabor Garcia and Me-liton Gonzalez; and (3) the demolition of the crime scene, Sunny China Buffet. The state argues, and the trial court found, that Garcia presented no evidence that he was prejudiced. Generally, prejudice must be “actual prejudice apparent on the record or by reasonable inference — not speculative or possible prejudice.” State v. Edwards, 750 S.W.2d 438, 442 (Mo. banc 1988).

More recently, however, the United States Supreme Court allowed a speedy trial claim to stand absent particularized prejudice. Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Negligence, the Supreme Court said, is not “automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Id. at 657,112 S.Ct. 2686. In Doggett, the defendant was indicted in February 1980 for conspiring to import and distribute cocaine. Id. at 648, 112 S.Ct. 2686. About one month later, police officers went to the home of Doggett’s parents and found out that he had left for Colombia four days earlier. Id. at 649, 112 S.Ct. 2686. The Drug Enforcement Administration (DEA) put Doggett’s name in a computer system so that he could be apprehended on his return to the United States, but the entry expired. In September 1981, the DEA learned that Doggett had been arrested in Panama. The DEA asked for Doggett to be “expelled” to the United States, but Panama did not comply with the request. Doggett was freed in July 1982 and went to Colombia. Id. at 649, 112 S.Ct. 2686. In September 1986, he entered the United States through customs and settled in Virginia, where he married, earned a college degree, was employed and lived under his own name. In 1982, the American embassy in Panama told the State Department of Doggett’s departure to Canada, but the DEA did nothing. In 1985, the DEA discovered that Doggett went to Colombia, but it made no attempt to track him down. Id. at 649-650, 112 S.Ct. 2686. Doggett was arrested in September 1988 after a simple credit check by the marshal’s service found out where he lived and worked. Id. at 650,112 S.Ct. 2686. Doggett sought to dismiss his indictment, claiming it violated his right to a speedy trial.

Using the Barker factors, the Supreme Court found that Doggett’s rights were violated. The Court readily found that the first three factors weighed against the government. In analyzing Barker’s fourth factor, prejudice to the defendant, the Supreme Court stated that “affirmative proof of particularized prejudice is not essential to every speedy trial claim,” as “excessive delay presumptively eom-promises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id. at 655, 112 S.Ct. 2686. The Court recognized that, although the government’s negligence is not weighed as heavily as deliberate actions, it is still an unacceptable reason to delay a trial. Id. at 657, 112 S.Ct. 2686. Further, the Supreme Court said, “[cjondon-ing prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority.” Id. The Court ultimately concluded that “inexcusable oversights” that resulted in the delay of Doggett’s arrest for six years entitled Doggett to relief even if he did not demonstrate actual prejudice. Id.

In this case, the state has not proven that the delay “affirmatively ... left [Garcia’s] ability to defend himself unimpaired” as required to rebut the presumption of prejudice. Id. Four witnesses to the shooting, Nabor Garcia, Moisés Aguilar, Manuel Castro and Jesus Rojas, have disappeared. In such a circumstance, Barker compels the conclusion that the prejudice to Garcia is obvious. 407 U.S. at 532, 92 S.Ct. 2182. Of the seven witnesses to the shooting that police identified, four are missing and a fifth, Kwan Tung Tse, the owner of Sunny China, described the shooter but did not identify him by name. Only two witnesses, Dominguez (the victim) and Gonzalez, appear to be available to testify as to the assailant’s identity. Their testimony will be to events that occurred more than 12 years ago. The state must show that Garcia’s defense was unimpaired. Too many witnesses and too many years have slipped away for the state to carry this burden.

Conclusion

The seven-year delay between the indictment and Garcia’s arrest violates his right to a speedy trial under the Sixth Amendment to the United States Constitution. The circuit court should have dismissed the indictment. The Court’s preliminary writ of mandamus is made permanent.

TEITELMAN, RUSSELL and STITH, JJ., concur.

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

BRECKENRIDGE and FISCHER, JJ., concur in opinion of PRICE, C.J.

WILLIAM RAY PRICE, JR., Chief Justice,

dissenting.

Because Garcia deliberately fled the state, he is the principal cause of the police’s delay in locating him. Therefore, he was required to show that actual prejudice resulted from the delay, and he was unable to do so. I respectfully dissent.

The United States Supreme Court set out the four-factor test for evaluating a speedy trial claim in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). While the majority uses the correct test, it reaches the wrong result. The second Barker factor asks “whether the government or the defendant is more to blame for the delay.” Id. On these facts, Garcia was more to blame; he left the jurisdiction. Garcia knew he was suspected of shooting Dominguez at a Chinese restaurant in front of witnesses who could identify him. He knew police would be looking for him. Still, he fled to Chicago. No one alleges here that the police acted in bad faith. See Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) (government only has duty to make diligent, good faith effort). Even if the Kirkwood police were not “a model of prosecutorial initiative and concern,” when a defendant leaves the jurisdiction after committing a crime, he cannot later claim that his right to a speedy trial was violated. State v. Black, 587 S.W.2d 865, 877 (Mo.App.1979) (government’s delay is weighed against complete lack of actual prejudice to defendant resulting from it); Reynolds v. Leapley, 52 F.3d 762, 764 (8th Cir.1995) (no speedy trial violation occurred where “most of the nine year delay was caused by the fact that [the defendant] fled the jurisdiction following his offense”); United States v. Escamilla, 244 F.Supp.2d 760, 765-66 (S.D.Texas 2003) (no speedy trial violation occurred where, even though the government’s efforts to find defendant were negligent, defendant was still the principal cause of the delay).

There is no requirement that the government make “heroic efforts to apprehend a defendant who is purposely avoiding apprehension.” Rayborn v. Scully, 858 F.2d 84, 90 (2nd Cir.1988). The majority ignores the plain fact that police departments have limited resources. Worse, the majority creates further incentive for criminal defendants to conceal themselves from justice. United States v. Salzmann, 548 F.2d 395, 404 (2nd Cir. 1976) (Feinberg, J., concurring) (allowing criminal defendants who successfully escape detection to bring speedy trial claims sanctions game playing). It was Garcia, not the state, who was the principal cause of the delay.

Because the second Barker factor weighs against Garcia, he is not entitled to a presumption of prejudice when the Court considers the fourth factor. Wilson v. Mitchell, 250 F.3d 388 (6th Cir.2001) (defendant not entitled to presumption of prejudice because he was partially responsible for the delay); Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir.1993) (Doggett presumption of prejudice not applicable to defendant who contributed two-thirds of total delay); Reynolds, 52 F.3d at 764; United States v. Bergfeld, 280 F.3d 486 (5th Cir.2002); United States v. Cardona, 302 F.3d 494 (5th Cir.2002).

The Sixth Amendment contemplates three harms arising from excessive trial delay: “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. Because Garcia was never incarcerated and because he claims he did not know about the charges against him, the “only harm to petitioner from the lapse of time was potential prejudice to his ability to defend his case.” Doggett v. United States, 505 U.S. 647, 658-59, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (O’Connor, J., dissenting). The majority concedes that speculative or possible prejudice is not enough. Majority opinion at 912 (quoting State v. Edwards, 750 S.W.2d 438, 442 (Mo. banc 1988); Doggett, 505 U.S. at 667, 112 S.Ct. 2686 (Thomas, J., dissenting) (government negligence and possible prejudice not enough for a speedy trial violation)).

Yet Garcia made no attempt to show actual prejudice, and for reason. He, like all criminal defendants, enjoys a presumption of innocence. According to the parties’ stipulation, four witnesses are now unavailable, two videotaped witness statements cannot be located, and the Chinese restaurant where Garcia shot Dominguez no longer exists. But it is the state that has to prove its case beyond a reasonable doubt. Absent a specific showing, it is difficult to see how the disappearance of the government’s key witnesses will prejudice Garcia. At minimum, “delay is a two-edged sword.” United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (the passage of time may make it difficult or impossible for the state to carry its burden); Barker, 407 U.S. at 521, 92 S.Ct. 2182 (unlike other constitutional rights, the deprivation of the right to a speedy trial may work to the accused’s advantage). Further, the seven-year delay — in itself — does not prove prejudice. The Eighth Circuit has found even a 19-year delay to not violate the Sixth Amendment. See United States v. Wangrow, 924 F.2d 1434 (8th Cir.1991). It is undisputed that Garcia did not demonstrate actual prejudice. The second and fourth Barker factors weigh in favor of the state.

Mandamus is an extraordinary remedy. Because Garcia has not shown that he has a “clear and unequivocal right” to relief, I would quash the writ. McKee v. Riley, 240 S.W.3d 720, 725 (Mo. banc 2007).

      . This Court has the authority to "issue and determine original remedial writs" pursuant to Missouri Constitution article V, section 4.1. A writ of mandamus will issue to "compel the performance of a ministerial duty that one charged with the duty has refused to perform.” Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 165-66 (Mo. banc 2006). "A litigant asking [sic] relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed.” Id. at 166.

      . "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....”

      . Article I, section 18(a) of the Missouri Constitution provides "[t]hat in criminal prosecutions the accused shall have the right to ... a speedy public trial by an impartial jury of the county.”

      . C.f. United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

      . In analyzing the “reason for the delay,” the court attributed the entire reason to the negligence of the government. There was no discussion of whether Doggett's actions constituted "flight.” Doggett, 505 U.S. at 652-53, 112 S.Ct. 2686.

      . However, much evidence does still exist— among it, the gun used in the shooting, original crime scene photos, and the victim's testimony.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    STATE ex rel. William A. STINSON, Relator, v. The Honorable Ted HOUSE, Respondent.
    No. SC 90364.
    Supreme Court of Missouri, En Banc.
    July 16, 2010.
    Rehearing Denied Aug. 31, 2010.

      Theodore G. Pashos and Scott E. Simpson, Niedner, Bodeux, Carmichael, Huff, Lenox and Pashos LLP, St. Charles, Ann P. Hagan, Hagan, Hamlett <& Maxwell LLC, Mexico, for Relator.
   PATRICIA BRECKENRIDGE, Judge.

Introduction

William Stinson was ordered by the trial court to execute a medical records authorization to release his healthcare records in a wrongful death action filed against him and his parents. This Court granted Mr. Stinson’s request for a preliminary writ of prohibition preventing the trial court from compelling execution of the authorization. Because the trial court abused its discretion by ordering Mr. Stinson to sign a medical records authorization permitting disclosure of his medical records that are protected by the physician-patient privilege, the preliminary writ is made permanent.

Factual and Procedural Background

On August 14, 2004, William A. Stinson was involved in a high-speed automobile collision that resulted in the death of Ricky J. Young. Mr. Young’s daughter, Shauna Young, is the plaintiff in the present wrongful death suit. Her amended petition for wrongful death contains two counts. The first count seeks damages against Mr. Stinson for negligently operating the motor vehicle that caused her father’s death. The allegations in the petition state that, at the time of the collision, Mr. Young was attempting to turn off of the interstate when Mr. Stinson, who was approaching from behind, moved into the left lane to pass and struck Mr. Young’s vehicle. The petition further alleges that Mr. Stinson was under the influence of intoxicants at the time of the crash and was traveling in excess of the posted speed limit.

The second count in Ms. Young’s petition seeks damages against Mr. Stinson’s parents and their automobile dealership for negligently entrusting Mr. Stinson with the vehicle involved in the collision. The petition alleges that Mr. Stinson’s parents knew or should have known that Mr. Stin-son was addicted to alcohol and drugs that impaired his driving ability, that he had received medical treatment for such addictions, and that he had been charged and convicted of numerous alcohol-related driving offenses prior to the August 14 collision.

In the course of discovery, Ms. Young served Mr. Stinson with a request for production asking him to execute a medical records authorization permitting the disclosure of all medical and psychological records pertaining to treatment he had received for alcohol, drug, or substance abuse problems dating back to 1990. Mr. Stinson objected to the request on the ground that the records sought were protected by physician-patient privilege, which had not been waived. The trial court overruled Mr. Stinson’s objection and ordered him to execute the medical records authorization.

Thereafter, Mr. Stinson filed a petition for a writ of prohibition in the court of appeals to prevent the trial judge from compelling Mr. Stinson to sign the medical records authorization. After granting a preliminary order in prohibition, the court of appeals quashed its order and denied Mr. Stinson’s writ petition. Mr. Stinson then petitioned this Court for a preliminary writ of prohibition, which the Court issued. Mo. Const, art. V, sec. 4.

Discussion

In his sole point relied on, Mr. Stinson argues that he is entitled to a writ of prohibition to prevent the trial court from enforcing its order requiring execution of the medical records authorization because his medical records are protected by the physician-patient privilege, which has not been waived. Mr. Stinson contends that by ordering the execution of the medical records authorization form, the trial court acted in excess of its authority, thereby entitling him to a writ of prohibition.

Prohibition is an appropriate remedy when a party is ordered to produce material that is protected from discovery by some privilege. State ex rel. Rogers v. Cohen, 262 S.W.3d 648, 650 (Mo. banc 2008). Otherwise, if privileged material were produced, the damage to the disclosing party would be irreparable and could not be repaired on appeal. Id. (citing State ex rel. Boone Ret. Ctr., Inc. v. Hamilton, 946 S.W.2d 740, 741 (Mo. banc 1997)).

The physician-patient privilege is established by section 491.060. The statute provides that a licensed physician or psychologist is “incompetent to testify ... concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician.... ” Section 491.060(5). The physician-patient privilege “applies to medical records and all aspects of discovery.” State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. banc 2006). See also Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 62 (Mo. banc 1999); State ex rel. Benoit v. Randall, 431 S.W.2d 107, 109 (Mo. banc 1968).

In the present case, the medical records sought by Ms. Young fall within the protective scope of the physician-patient privilege. The medical records authorization form submitted with Ms. Young’s request for production sought disclosure of “all personal health information pertaining to any care, treatment, evaluation, diagnosis and/or observation for medical, psychiatric or psychological services arising out of, or in any way relating to, alcohol, drug or substance abuse problems and any medical, psychiatric or psychological conditions relating thereto from January 1, 1990 to the present.” By its terms, the request seeks access to records containing information used to evaluate, diagnose, and treat Mr. Stinson. Such records assuredly would include information acquired from Mr. Stinson by a physician or psychologist to prescribe and provide treatment and, therefore, fall within the scope of the physician-patient privilege.

Additionally, there is no evidence in the record that Mr. Stinson placed any of his medical conditions in issue or took any other steps to affirmatively waive the privilege. The mere fact that Mr. Stinson has denied liability and is defending against the present suit does not constitute a waiver of the privilege. Rodriguez, 996 S.W.2d at 63. Therefore, because the requested documents fall within the scope of the physician-patient privilege and there is no evidence that Mr. Stinson waived the privilege, the privilege bars the discovery of the medical records Ms. Young requested.

Despite the applicability of the physician-patient privilege, Ms. Young argues that the trial court did not abuse its discretion by ordering Mr. Stinson to execute the medical records authorization because the requested records are relevant to her claim against Mr. Stinson’s parents for negligent entrustment. Ms. Young claims the records are relevant because they help prove that Mr. Stinson’s parents knew or should have known that he was incompetent to drive a motor vehicle.

The mere fact that the privileged medical records may be relevant to Ms. Young’s claim for negligent entrustment does not mean that the medical records are discoverable. The very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant and discoverable from the scope of discovery. See Rule 56.01(b)(1). Therefore, the fact that the medical records might be relevant to Ms. Young’s claim for negligent entrustment does not alter the conclusion that the records are undiscoverable.

Ms. Young also argues the trial court did not abuse its discretion by ordering Mr. Stinson to execute the medical records authorization because the disclosure of the requested medical records does not violate the public policy underlying the physician-patient privilege. She argues the privilege only is intended to protect patients from having the information they provide to their doctors used against them personally in a subsequent suit. Consequently, Ms. Young claims that because the medical records in this case will be used only to prove the liability of Mr. Stinson’s parents, the public policy underlying the privilege is not implicated. Ms. Young’s public policy argument ignores the language in section 491.060.

As noted previously, section 491.060 states that a licensed physician or psychologist “shall be incompetent to testify ... concerning any information which he or she may have acquired from any patient....” The language of the statute does not limit the application of the privilege only to situations in which the confidential medical information will be used against the physician’s patient. This Court must give effect to statutes as they are written. Spradlin v. City of Fulton, 982 S.W.2d 255, 261 (Mo. banc 1998). Because the legislature did not limit the scope of the privilege only to situations in which the confidential medical information will be used against the patient, the privilege applies to all circumstances in which a physician or psychologist is called on to give testimony or produce records concerning information that was acquired from a patient, regardless of whether the information will be used against the patient.

Moreover, contrary to Ms. Young’s argument, the public policy underlying the physician-patient privilege is implicated when confidential information is disclosed, even if it will not be used against the patient. “The purpose of the physician-patient privilege is to enable the patient to secure complete and appropriate medical treatment by encouraging candid communication between patient and physician, free from fear of the possible embarrassment and invasion of privacy engendered by an unauthorized disclosure of information.” State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo. banc 1989). The public policy of encouraging candid communication between patient and physician would be undermined if patients feared that their physicians or psychologists could disclose their confidential communications in any lawsuit, regardless of whether the information would be used against the patient or a third party. Information contained in a patient’s medical file becomes no less private or potentially embarrassing to the patient merely because the information will be utilized against someone other than the patient. Not surprisingly, therefore, this Court previously found that the physician-patient privilege bars the disclosure of medical records belonging to patients who were not parties to the suit. See, e.g., Benoit, 431 S.W.2d 107.

Here, Mr. Stinson faces the same possibility of embarrassment and invasion of privacy that he would face if his medical records were released to prove claims against him personally, rather than his parents. Consequently, the requested disclosure fits squarely within the policy rationale underlying the physician-patient privilege. Ms. Young’s argument to the contrary is without merit.

Conclusion

The trial court abused its discretion by ordering Mr. Stinson to sign a medical records authorization to disclose medical records that were protected by the physician-patient privilege. If the privileged medical documents were required to be produced, Mr. Stinson would suffer irreparable injury that could not be repaired on appeal. Therefore, the preliminary writ of prohibition is made permanent.

All concur.

      . Mr. Stinson's parents are officers and agents of William B. Stinson & Sons, Co. d/b/a W.B. Select Auto Center.

      . Unless otherwise noted, all statutory refer-enees are to RSMo 2000.

      . One of the elements for negligent entrustment is that the entrustor knew or had reason to know of the entrustee’s incompetence. McHaffie By and Through McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. banc 1995).


author: MICHAEL A. WOLFF, Judge. MARY R. RUSSELL, Judge,

text:
    STATE of Missouri, Respondent, v. Ryan SEELER, Appellant.
    No. SC 90583.
    Supreme Court of Missouri, En Banc.
    July 16, 2010.
    Rehearing Denied Aug. 31, 2010.

      Richard H. Sindel, Sindel, Sindel & Noble PC, Clayton, for Appellant.
    Terrence M. Messonnier, Shaun T. Mackelprang, Jayne T. Woods, Attorney General’s Office, Jefferson City, for the State.
   MICHAEL A. WOLFF, Judge.

Introduction

This is a simple story, versions of which are repeated with depressing regularity. Ryan Seeler went to a baseball game, then to a restaurant in downtown St. Louis and then headed home on westbound Interstate Highway 64 (U.S. highway 40). He had had some drinks. He drove into a construction zone on 1-64 in Chesterfield, where he struck and killed Gavin Donahue, a 22-year-old engineering student who was working on a paving project on the highway.

The crime charged, first-degree involuntary manslaughter, should be simple as well. That, unfortunately, is not so.

The Missouri statute’s simple version of the crime is this: A person in an intoxicated condition commits first-degree involuntary manslaughter if he operates a motor vehicle and acts with criminal negligence to cause the death of any person. Section 565.024.1(2). A person is criminally negligent “when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Section 562.016.5. In prosecuting Seeler, the state must specify, and the jury must find, the particular facts that lead to the conclusion that he was criminally negligent. See MAI-CR 3d 314.12.

This simple version of .involuntary manslaughter is classified as a class C felony, results in a sentence of up to seven years in prison if the defendant convicted is a first-time offender. Seeler had no prior felony record.

The state however, apparently sought a harsher penalty than the class C felony punishment that the simple version of the involuntary manslaughter law allows. There is a more complicated option offered in section 565.024, which allows the state to charge Seeler with involuntary manslaughter as a class B felony, which carries punishment of up to 15 years in prison. This class B felony, as described in section 565.024.1(3)(a), defines the crime of involuntary manslaughter as to “[clause the death of any person not a passenger in the vehicle operated by the defendant, including the death of an individual that results from the defendant’s vehicle leaving a highway ... or the highway’s right-of-way. ...”

Citing this more complicated option of a class B felony, the indictment charged that Seeler acted “[w]hile under the influence of alcohol and/or a controlled substance causing] the death of Gavin Donahue by striking him with a motor vehicle while operating a motor vehicle with criminal negligence in that defendant was driving in a close[d] construction zone, thereby leaving said highway’s right-of-way....”

After the close of the state’s evidence, the defense moved for acquittal because the evidence did not show that Seeler’s car had left the highway’s right-of-way. In response, the state requested leave to amend the indictment and substitute an information in which the phrase “leaving the highway’s right-of-way” (quoted above) was replaced with “drove into a lane closed to traffic.”

Seeler objected that the timing of the amended charge was prejudicial because it changed the facts charged — Seeler’s defense had come prepared to respond to the charge that his car had left the highway’s right-of-way. The trial court allowed the amended class B felony charge over Seeler’s objection.

The jury found Seeler guilty of the amended charge and recommended seven years in prison, which the court imposed.

Seeler’s appeal raises two questions: (1) whether the statute is unconstitutionally void for vagueness; and (2) whether the amended information' — which changed the state’s factual theory after the state’s evidence had been presented — was prejudicial.

The Court concludes:

(1) Though confusing, the manslaughter law is not vague. Its meaning can be discerned. It is not unconstitutional.
(2) The change in the factual basis of the charge, as contained in the information and in the jury instruction— after the state had presented its evidence — was prejudicial to Seeler’s opportunity to defend himself against the offense as charged. Seeler came to trial prepared to defend against the charge that he left the highway’s right-of-way and the amendment rendered his defenses inapplicable.

The circuit court’s judgment is reversed, and the case is remanded.

Facts and Procedural History

Seeler attended a Cardinals baseball game in July 2007 in St. Louis. He left the game around 11 p.m. and went to a downtown restaurant that serves liquor. At 1:45 a.m., Seeler left to go home. According to Seeler, between 6:30 p.m. and 1:45 a.m. he drank four beers — two at the game and two at the restaurant — and ate two hot dogs. As Seeler was driving west on Interstate 64 (U.S. highway 40), he noticed signs indicating road work ahead. The two left lanes were blocked off, starting on westbound 1-64 at Olive Blvd., leaving only the far right lane open. Construction cones were set up such that they intruded into the open right lane, forcing motorists onto the shoulder and rumble strips. According to Seeler’s defense, the cones were anywhere from 168 to 175 feet apart, which he contends was not sufficient to close the lane.

As Seeler entered the Chesterfield valley, he traveled behind a dump truck in the far right lane. The dump truck moved into the middle lane, and Seeler followed. Seeler then followed the truck back into the right lane. Because Seeler was driving on the shoulder and rumble strips, he re-entered the middle lane. As he did so, he struck Donahue, who was re-striping the newly paved road.

After the accident Seeler was not administered any field-sobriety tests, but he was placed under arrest and taken to a nearby hospital where, pursuant to a warrant, his blood was drawn to test for the presence of alcohol. Three tests were done on two separate blood draws from Seeler (one at 7:55 a.m. and another at 8:25 a.m.). The average of the three tests indicated a blood alcohol content of .16 percent. Using a regression analysis based on the difference between the two blood samples, Dr. Christopher Long, a toxicologist, testified that Seeler’s blood alcohol level at the time of the accident was around 0.24 percent — or three times the legal limit of 0.08 percent.

Seeler was indicted in August 2007 and charged with involuntary manslaughter pursuant to section 565.024.1(3)(a). The indictment charged that Seeler “committed the class B felony of involuntary manslaughter in the first degree [when he], while under the influence of alcohol and/or a controlled substance eaus[ed] the death of Gavin Donahue by striking him with a motor vehicle while operating a motor vehicle with criminal negligence in that defendant was driving in a closefd] construction zone, thereby leaving said highway’s right-of-way, and Gavin Donohue was not a passenger in the vehicle operated by the defendant.”

At the beginning of trial, Seeler filed a motion to dismiss the indictment on the ground that the statute is unconstitutionally vague as to whether “leaving a highway’s right-of-way” is an element of the offense. The motion was overruled. At the close of the state’s evidence, Seeler filed a motion to dismiss the indictment, or to enter judgment of acquittal, arguing that no evidence was produced that he ever left the “right-of-way.” The state requested leave to file an information in lieu of indictment to clarify that Seeler was being charged with leaving the open part of the highway, which the court granted. The next day, the information was filed that substituted “defendant was driving in a construction zone and drove into a lane closed to traffic” for the indictment’s language of “defendant was driving in a close [sic] construction zone, thereby leaving the highway’s right-of-way.” Seeler objected to the substitution as prejudicial.

The jury found Seeler guilty of first-degree involuntary manslaughter and, in accordance with the jury’s recommendation the trial court sentenced him to seven years in prison. Seeler appeals.

The Various Shades of First-Degree Involuntary Manslaughter

Seeler was charged with involuntary manslaughter pursuant to section 565.024, which provides:

1. A person commits the crime of involuntary manslaughter in the first degree if he or she:
(1) Recklessly causes the death of another person; or
(2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person; or
(3) While in an intoxicated condition operates a motor vehicle in this state, and, when so operating, acts with criminal negligence to:
(a)Cause the death of any person not a passenger in the vehicle operated by the defendant, including the death of an individual that results from the defendant’s vehicle leaving a highway, as defined by section 301.010, RSMo, or the highway’s right-of-way; or
(b) Cause the death of two or more persons; or
(c) Cause the death of any person while he or she has a blood alcohol content of at least eighteen-hundredths of one percent by weight of alcohol in such person’s blood;....

(Emphasis added).

Seeler was convicted under section 565.024.1(3)(a). A conviction under section 565.024.1(1) or (2) results in a class C felony, while a conviction under section 565.024.1(3)(a), (b) or (c) results in a class B felony. Subdivisions (2) and (3) — quoted above — contain similar language that criminalizes causing the death of another person while intoxicated and acting with criminal negligence. In addition, subdivision (3) paragraphs (a), (b) and (c) — quoted above — list additional circumstances that, when present, raise the offense to a class B felony.

A fair reading of the law — which is not the basis of the indictment — is that the class B felony set forth in section 3 includes causing the death of a person not a passenger in the defendant’s vehicle. The decedent may be the driver or passenger in another vehicle, a person standing in the highway, or a person who is struck by the defendant when the defendant’s car leaves the highway.

The Vagueness Challenge

The void-for-vagueness doctrine assures that laws give fair and adequate notice of proscribed conduct and protects against arbitrary enforcement. State ex rel. Nixon v. Peterson, 253 S.W.3d 77, 81 (Mo. banc 2008). The distinctions between and among the various shades of involuntary manslaughter are confusing, but the law’s proscriptions are understandable. The law is confusing for lawyers and judges to discern the essential elements of class B involuntary manslaughter, but the conduct proscribed is clear enough. The law is confusing, but not vague.

Criminal negligence is an ultimate fact that, in a jury trial, must be decided by the jury. See, e.g., State v. Stone, 280 S.W.3d 111, 116 n. 3 (Mo.App.2009). A person is criminally negligent “when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Section 562.016.5.

The state has the burden of proving every element of a crime beyond a reasonable doubt. State v. Clemons, 643 S.W.2d 803, 805 (Mo. banc 1983). According to the jury’s verdict, the state did prove these elements: that Seeler, while intoxicated, drove his vehicle in a criminally negligent manner and that Gavin Donahue’s death resulted. The jury instruction’s specification of the manner in which Seeler was criminally negligent is that he drove in a lane closed to traffic. This factual specification is sufficient for the jury, if it so finds, to conclude that Seeler acted with “criminal negligence.”

But this specification, as to driving in a lane closed to traffic, came after the state had presented its evidence on its factual theory — as specified in the indictment— that Seeler was “driving in a elose[d] construction zone, thereby leaving said highway’s right-of-way-” Seeler came to trial to defend by showing that he did not leave the highway’s right-of-way, and that if he did leave the right-of-way, the choice was not negligent. When the defense challenged the sufficiency of the state’s case by arguing that the evidence did not show that Seeler’s vehicle had left the highway’s right-of-way, the state moved to substitute an information with a different factual specification, a motion that the trial court granted.

Did the Amendment of the Charge Prejudice the Defense?

This Court reviews a trial court’s decision to allow an amendment of a charging document for abuse of discretion. State v. Smith, 242 S.W.3d 735, 742 (Mo.App.2007). Seeler argues that the trial court erred in granting the state’s motion to substitute an information in lieu of the original indictment because it prejudiced his substantial rights by making his prepared defenses inapplicable.

Rule 23.08 allows an information to be amended or substituted for an indictment during the trial. The rule says:

Any information may be amended or an information may be substituted for an indictment at any time before verdict or finding if:
(a) No additional or different offense is charged, and
(b) A defendant’s substantial rights are not thereby prejudiced. No such amendment or substitution shall cause delay of a trial unless the court finds that a defendant needs further time to prepare a defense by reason of such amendment or substitution.

In this case, the substituted information came within the time to do so under the rule. Seeler concedes that there is no issue as to whether the new information charged an additional or different offense; therefore, this Court must determine whether the trial court’s allowing the information in lieu of the indictment prejudiced Seeler’s “substantial rights.”

The test for determining prejudice is whether the planned defense to the original charge still would be available after the amendment and whether the defendant’s evidence would be applicable before and after the amendment. State v. Taylor, 375 S.W.2d 58, 63 (Mo.1964); State v. McGinness, 215 S.W.3d 322, 324 (Mo.App.2007). If Seeler’s defenses were unavailable under the new information, and the evidence he adduced in cross-examination of the state’s witnesses was no longer applicable after the information was substituted, he has been prejudiced.

Seeler’s defense strategy centered on proving that he did not leave “the highway’s right-of-way” as charged in the original indictment. Seeler’s defense sought to establish two things: first, that he never left the “right-of-way” of the highway; and second, even if he did leave the “right-of-way,” his actions were reasonable and did not amount to criminal negligence. The statute applies only when the defendant leaves a highway as defined in section 301.010. The closed construction zone still would be part of the highway as defined in section 301.010, but is it part of the right-of-way, an undefined term in this context? Seeler’s defense was that it was.

Seeler says his defense strategy is apparent in two different lines of questioning prior to the substitution of the information. First, Seeler’s counsel questioned witnesses about where Donahue was standing before Seeler’s van struck Donahue and where Donahue and Seeler’s van were located when Donahue was struck. Seeler focused on this evidence to establish that he was physically on the highway and, therefore, never left the “right-of-way.” Second, Seeler’s counsel questioned witnesses about the fact that the cars on the road all were driving on the rumble strips and on the shoulder. Seeler focused on this evidence to establish that, if going over the white lines was considered “leaving the right-of-way,” every car was doing it and, therefore, his actions were reasonable and not criminally negligent. Seeler argues that the substitution of the information made this information irrelevant.

At the close of the state’s evidence, Seeler filed a motion to dismiss, arguing that the state had not established that Seeler had left the highway’s right-of-way. The prosecution countered by requesting leave to amend the indictment by excluding the allegation that Seeler left the “right-of-way.” The court granted leave to amend by substituting the information in lieu of the indictment and then overruled Seeler’s motion to dismiss. Removal of the charge that Seeler left the highway’s right-of-way made irrelevant Seeler’s defense that he did not leave the right-of-way — a defense that appeared to be proved by evidence of the location of Donahue and of Seeler’s van. The amended charge in the information shifted the focus of the evidence to the question of whether Seeler’s driving in the center lane was in a lane closed to traffic instead of a right-of-way. Therefore, Seeler’s evidence that the center lane was still part of the right-of-way was no longer applicable.

The state argues that Seeler’s defense that he did not actually leave the “right-of-way” is a technical defense. “Loss of a technical defense is not the type of defense referred to under Rule 23.08.” State v. Endicott, 881 S.W.2d 661, 664 (Mo.App.1994). The removal of language in the charging document that is unnecessary to the crime charged does not amount to prejudice under Rule 23.08. State v. Bratton, 779 S.W.2d 633, 635 (Mo.App.1989). In this case, the indictment treated the allegation as to the highway or its right-of-way as a necessary part of the case, and therefore, Seeler’s defense that he did not actually leave the “right-of-way” is not a technical defense.

Seeler, as noted, also argues that section 565.024 is void for vagueness. In rejecting the challenge to the vagueness of the statute, the Court does not read the statute as authorizing the state to shift its factual theory in the midst of a trial. The General Assembly certainly may choose to slice up the prohibition of killing into as many separate scenarios as the mind can imagine. “Thou shalt not kill” suffices as a fundamental religious principle, but the criminal law is not so simple. Imagine, for instance, that a legislator’s constituent is killed by an inebriated driver who drives off a highway and strikes him while the constituent is minding his own business. The legislator certainly may persuade his colleagues to enact a slice of a crime of homicide to cover this factual scenario and include an enhanced punishment. See, for instance, section 565.024.1(3), under which Seeler was charged. Indeed, the criminal code collects many such slices enacted over time to respond to the many ways that human beings can cause death or misery. To that point, a fair reading of this provision, as noted, is that it is a class B felony, first-degree involuntary manslaughter, if the defendant causes the death of a person not a passenger in his vehicle or causes the death of two persons, regardless of whether they are his passengers. If he causes the death of one person who is a passenger in his vehicle, it is a class C felony.

The challenge that this cumbersome criminal code poses for the state’s prosecutors is to choose the right statutory section that fits the facts of an individual case. In doing so, the prosecution must pick its factual theory and stick with it. To do otherwise may cause “substantial prejudice” to the right of the defendant to present a defense to the offense as charged. Rule 23.08.

Conclusion

When the state was allowed to amend the indictment by substituting an information in lieu of the indictment, Seeler was prejudiced because the defenses he prepared for trial — which were relevant to the original specification in the indictment— were no longer relevant.

The judgment of the circuit court is reversed, and the case is remanded.

PRICE, C.J., TEITELMAN and STITH, JJ., concur.

RUSSELL, J., dissents in separate opinion filed; BRECKENRIDGE and FISCHER, JJ., concur in opinion of RUSSELL, J.

MARY R. RUSSELL, Judge,

dissenting opinion.

I respectfully dissent. I disagree with the majority’s conclusion that the defendant was prejudiced when the State amended the language in the charge against him. I would affirm the trial court’s judgment.

So long as the defendant properly was charged and convicted, it is not this Court’s task to Monday-morning-quarterback the State’s decision to charge him with a certain crime or to present to the jury a particular theory of the case. This case involves the serious matter of a young man’s death at the hands of a drunken driver; there is no reason to make this sad case into a means for hindsight criticism of the policy considerations and semantics relied on by the legislature in passing a constitutional statute.

1. There is no “right-of-way” element at issue in this case

The defendant was convicted and sentenced for the class B felony of involuntary manslaughter as set forth under section 565.024.1(3)(a), RSMo Supp.2007. I take issue with those portions of the majority’s opinion that suggest that the defendant’s conviction under section 565.024.1(3)(a) required the State to prove that the defendant left the highway or its right-of-way. The majority at Page 11 states: “The statute applies only when the defendant leaves a highway ... [; t]he closed construction zone still would be part of the highway as defined in section 301.010, but is it part of the right-of-way, an undefined term in this context?” And at Page 13 it suggests that the issue of whether the defendant left the right-of-way was “a necessary part of the case.”

There should be no doubt that leaving the highway or right-of-way is not an element of the crime articulated in section 565.024.1(3)(a). The phrase in the statute stating “including the death of an individual that results from the defendant’s vehicle leaving a highway ... or the highway’s right-of-way” does not outline a required showing for the State’s case. Instead, this language illustrates a type of victim who might be included in the category of “any person not a passenger in the vehicle operated by the defendant.” The phrase clarifies that the non-passenger victim of the drunken driver may be a person wholly unconnected to the roadway, much less to the drunken driver.

In the defendant’s case, the jury was not required to find that the defendant left the technical bounds of the highway or right-of-way because the facts of this case did not warrant that analysis. Instead, the jury was tasked with determining if the State proved that the defendant: (1) was driving drunk; and (2) while driving drunk, acted with criminal negligence by entering the construction zone and driving in a lane closed to traffic; and (3) this criminal negligence caused the non-passenger victim’s death. The majority does not dispute that the State proved each of these elements.

II. The defendant was not prejudiced

While the majority does not disagree that the State proved each of the elements necessary for the defendant’s conviction under section 565.024.1(3)(a), the majority also concludes that the defendant’s conviction was invalid. It contends that he was prejudiced when the State was permitted to file an information that removed language alleging that he had left the highway’s right-of-way. I disagree with the majority’s conclusion that the defendant was prejudiced by the filing of the information.

As the majority notes, the trial court’s decision to allow the State to file the amended language in the information is reviewed only for an abuse of discretion. An abuse of discretion is found when the trial court’s decision is clearly against the logic of the circumstances then 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. Fassero, 256 S.W.3d 109, 115 (Mo. banc 2008). In this case, there was no abuse of discretion because the trial court’s decision to permit the State to file the information was logical, reasonable, and carefully made.

At the close of the State’s evidence, the defendant moved to dismiss the State’s indictment against him, arguing that the State’s evidence failed to support its indictment language stating that he had left the highway’s right-of-way. The State noted that the instruction in the case would conform to the evidence and offered to file an information in lieu of the indictment that would correct the defendant’s misunderstanding that the charges against him hinged on his leaving the right-of-way. The defendant complained that he had prepared his defense to focus on his having not left the highway’s right-of-way. But the trial court responded that the defendant had “always been on notice that the charge was that he was driving while intoxicated, and with criminal negligence, and caused the death of the victim ... by driving in a closed construction zone.” It noted that the State’s proposed changes to the indictment did not change the facts of the case and “[didjn’t cause any prejudice.” Immediately after the trial court denied his motions, the defendant began the presentation of his evidence. At no point during the trial did he request a continuance in light of the State’s amended language in the information.

Rule 23.08 provides in relevant part: “Any information may be amended or an information may be substituted for an indictment at any time before verdict or finding if: (a) [n]o additional or different offense is charged, and (b) [the] defendant’s substantial rights are not thereby prejudiced.” I agree with the majority that, consistent with the allowances of Rule 23.08, nothing in the information altered the crime with which the defendant was charged. Unlike the majority, however, I do not find that the defendant’s “substantial rights” were prejudiced.

The majority contends that the defendant suffered Rule 23.08 prejudice because the removal of the right-of-way language in the information rendered irrelevant his planned defenses centering on his having remained on the highway’s right-of-way. I disagree with the majority’s conclusion that the defendant’s loss of his right-of-way defense was more than the mere loss of a technical defense. The majority wrongly assumes that the indictment treated the right-of-way allegation as “a necessary part of the case.” The State’s amended language in the information had no impact on the elements of the crime that the State was required to prove: (1) the defendant, while in an intoxicated condition, operated a motor vehicle in this state; (2) when so operating, he acted with criminal negligence; and (3) this criminal negligence caused the death of any person not a passenger in his vehicle. Because the issue of whether the defendant left the right-of-way was immaterial to the elements the State had to prove for his conviction, the right-of-way issue was merely a technical defense. The defendant suffered no violation of Rule 23.08 when this technical defense became unnecessary after the information was filed. See State v. Endicott, 881 S.W.2d 661, 664 (Mo.App. 1994).

I also disagree with the majority’s finding that the defendant suffered Rule 23.08 prejudice because the amended language in the information “shifted the focus of the evidence.” State v. Taylor, 375 S.W.2d 58, 63 (Mo.1964), held that “[t]he test of prejudice is whether a defense under the charge as originally made would be equally available after the amendment and whether defendant’s evidence would be equally applicable after as well as before the amendment.” Unlike the majority, however, I would not extend Taylor to find that the defendant was prejudiced when he was left without a reason to raise defenses that were irrelevant to the elements of the crime charged. The defendant suffered no Rule 23.08 prejudice when his anticipated argument to the jury was altered, as he was not prejudiced by the inability to argue an unnecessary fact. See State v. Bratton, 779 S.W.2d 633, 635 (Mo.App.1989) (noting that there can be no prejudice under Rule 23.08 when the language removed from the charging document is unnecessary to the crime charged).

The amended language in the information did not confront the defendant with additional factual allegations. See id. The information removed the right-of-way allegation and simply rephrased the allegation that he was driving in a “close[d] construction zone” to the equivalent allegation that he was driving “in a construction zone and drove into a lane closed to traffic.” In my view, the defendant’s non-right-of-way defenses remained relevant after the information was filed. In addition to arguing that he never left the right-of-way, the defendant also argued that, even if he had left the right-of-way, his actions were reasonable and not criminally negligent. He argued that he did not act with criminal negligence because the construction zone lane closures were confusing and other drivers were driving similarly to him. He further asserted in his defense that he was not intoxicated at the time he struck the victim with his vehicle. The defendant’s intoxication defense and his defense that he did not act with criminal negligence were still available to him after the information was substituted in lieu of the indictment.

Rule 23.08 permits alterations in the charge language “at any time before verdict or finding,” which clearly contemplates that the charge language may need to be altered — and the defendant’s defense may need to be reconsidered accordingly— at a time past the State’s presentation of the evidence. The defendant’s position in this case is, in essence, an argument that Rule 23.08’s time limitation should be read as “at any time before the defendant’s counsel prepares his trial notebook.” It seems disingenuous to allow the defendant to claim that he was prejudiced substantially by the amended language in the information when, even though he had notice that he should alter his defense strategy, he did nothing to bolster his defenses to address the State’s presented evidence. He complains that he would have cross-examined the State’s witnesses differently, but he fails to explain why he did not have adequate time to recall those witnesses during his presentation of evidence.

Contrary to the majority’s findings, the defendant suffered no Rule 23.08 prejudice. The trial court should not be convicted of abusing its discretion for reaching that reasonable conclusion.

III. Conclusion

For the foregoing reasons, I would affirm the trial court’s judgment.

      . All statutory references are to RSMo Supp. 2007 unless otherwise indicated.

      . Under Missouri’s complex scheme of sentencing laws, an offender sentenced to prison for the class B felony of first-degree involuntary manslaughter must serve 85 percent of his sentence before being eligible for parole. Section 565.024.2. There is no such minimum specified for a person sentenced to prison for the class C felony of first-degree involuntary manslaughter. In this case, the jury recommended seven years on the B felony, instead of the 15-year maximum, and because it is a B felony, Seeler would be required to serve at least 85 percent of the seven years before being paroled. If a defendant receives seven years on a class C felony, however, the time served generally will be less than 85 percent of the sentence because there is no minimum requirement.

      . Because Seeler challenges the validity of the statute, this Court has jurisdiction of this direct appeal. Mo. Const, art. V, sec. 3.

      . The information charged that Seeler “while under the influence of alcohol caused the death of Gavin Donohue by striking him with a motor vehicle when operating a motor vehicle with criminal negligence in that [Seeler] was driving in a construction zone and drove into a lane closed to traffic, and Gavin Dono-hue was not a passenger in the vehicle operated by [Seeler],

      . Section 565.024.2 provides:
      Involuntary manslaughter in the first degree under subdivision (1) or (2) of subsection 1 of this section is a class C felony. Involuntary manslaughter in the first degree under subdivision (3) of subsection 1 of this section is a class B felony. A second or subsequent violation of subdivision (3) of subsection 1 of this section is a class A felony. For any violation of subdivision (3) of subsection 1 of this section, the minimum prison term which the defendant must serve shall be eighty-five percent of his or her sentence. Any violation of subdivisions (4) and (5) of subsection I of this section is a class B felony.

      . The term ''right-of-way'' is not defined in the criminal statute. The term “public right-of-way” is defined in section 67.2677(12) regarding video service providers; its definition restates a common understanding of the term: "the area of real property in which a political subdivision has a dedicated or acquired right-of-way interest in the real property, including the area on, below, or above the present and future streets, alleys, avenues, roads, highways, parkways, or boulevards dedicated or acquired as right-of-way and utility easements dedicated for compatible uses.”

      . "Any public thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways or alleys in any municipality.”

      . A "technical defense" is a defense that is immaterial or does not affect substantial rights. Black’s Law Dictionary 1463 (6th ed.1990).

      . While the statute, as it is written, does tend to place less importance on the death of one passenger — as distinct from the death of one person not a passenger — the enhanced penalty for the deaths of two passengers perhaps shows a legislative purpose to encourage designated drivers to stay sober. Or perhaps to discourage drunks from driving carpools. It is not the courts' role, of course, to second-guess the reasons for these distinctions.

      . This statute provided in relevant part that a person committed the crime of involuntary manslaughter in the first degree if he or she:
      (3) While in an intoxicated condition operate[d] a motor vehicle in this state, and, when so operating, act[ed] with criminal negligence to:
      (a) Cause the death of any person not a passenger in the vehicle operated by the defendant, including the death of an individual that resulted] from the defendant's vehicle leaving a highway, as defined by section 301.010, RSMo, or the highway’s right-of-way[.]
      All statutory references are to RSMo Supp. 2007.

      . A section 565.024.l(3)(a) conviction requires the State to prove: (1) the defendant, while in an intoxicated condition, operated a motor vehicle in this state; (2) when so operating, he acted with criminal negligence; and (3) this criminal negligence caused the death of any person not a passenger in his vehicle. The statute does not require that the State prove a given location of the incident beyond its being "in this State.”

      . The original indictment stated that the defendant:
      [C]ommitted the class B felony of involuntary manslaughter in the first degree ... [when he], while under the influence of alcohol and/or a controlled substance caused the death of Gavin Donohue by striking him with a motor vehicle when operating a motor vehicle with criminal negligence in that defendant was driving in a close[d] construction zone, thereby leaving said highway’s right of way and, Gavin Do-nohue was not a passenger in the vehicle operated by the defendant.

      (emphasis added).
      In the information substituted in lieu of the indictment, the State altered its theory of how the defendant acted with criminal negligence:
      [C'Jommitted the class B felony of involuntary manslaughter in the first degree ... [when he], while under the influence of alcohol caused the death of Gavin Donohue by striking him with a motor vehicle when operating a motor vehicle with criminal negligence in that defendant was driving in a construction zone and drove into a lane closed to traffic, and Gavin Donohue was not a passenger in the vehicle operated by the defendant.
      (emphasis added).

      . Under both the indictment and the information, the defendant's crime fell under the provisions of section 565.024.1 (3)(a), as the victim of the involuntary manslaughter clearly was alleged to be a person “not a passenger” in the defendant's vehicle.

      . The majority cites no persuasive authority supporting its conclusion that the defendant was prejudiced for Rule 23.08 purposes because he was left without a reason to counter an irrelevant issue at trial.