author: JAMES M. SMART, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Ray A. SLAUGHTER, Appellant.
    No. WD 69991.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Susan L. Hogan, Kansas City, MO, for Appellant.
    Jammie P. Rasmussen, Jefferson City, MO, for Respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   JAMES M. SMART, JR., Judge.

Ray Slaughter appeals his conviction of one count of forcible rape and two counts of forcible sodomy. He complains on appeal that the court erred in allowing the victim to testify that she thought she saw a gun handle in the bedroom in which she was attacked. The judgment is affirmed.

Facts

Ray Slaughter was charged as a prior offender with one count of forcible rape and two counts of forcible sodomy. The following evidence was adduced at his jury trial.

On or around June 7, 2000, Kelly Gab-bert, the victim, met Ray Slaughter on the street in her neighborhood. He informed her that his name was “Rayshawn.” They exchanged phone numbers and called one another over the next few days. On June 10, 2000, Slaughter picked up Gabbert at around 6:00 p.m. They went to Slaughter’s aunt’s house. They sat outside on the porch, and then went inside to watch television. Slaughter made some romantic advances, but Gabbert informed him “it was not like that.” Gabbert was unable to contact family to arrange a ride back to the house where she was staying. Slaughter told her a cab would come and get her, but the cab never showed up. At approximately 1:00 a.m., Slaughter ordered pizza and had it delivered.

After they ate, Gabbert told Slaughter she was sleepy. Slaughter showed her his cousin Erikka’s room. She went in and lay on the bed. Slaughter did not stay there. She fell asleep by herself. At some point in the night she became aware that Slaughter was also sleeping in the same bed. She went back to sleep. She awoke around 6:00 a.m. to loud music and Slaughter’s loud voice. He was saying things like “I deserve it” and “You act like you don’t want to give it to me.” Slaughter proceeded to forcibly rape and sodomize Gabbert. Gabbert said the attack lasted fifteen minutes and that she was screaming loudly.

After the attack, while Slaughter was temporarily out of the room, Gabbert tried to call her cousin to come get her. She was upset, and trying to whisper, and did not know the address of Slaughter’s aunt’s house. She hung up when Slaughter started back to the bedroom. Slaughter acted as if nothing had happened, as if everything were fine. Slaughter agreed to call a cab to take Gabbert home. He got in the cab with her. Slaughter rode with her to her home. She was crying in the cab. Slaughter was asking her to call him again. When they arrived at the destination, and he again asked, she refused emphatically, saying that she would not call him, because he raped her. She ran into the house. Gabbert did not immediately report the attack to the police because there were warrants out for her arrest. She reported the attack at 3:00 or 4:00 p.m. that day and was examined by a sexual assault nurse examiner.

Police were unable to locate Slaughter because Gabbert only knew him as “Ra-yshawn.” The case was reopened in October 2004 because of a new investigative lead. Police eventually located “Ra-yshawn” Slaughter, also known as Anthony Slater. Gabbert identified Slaughter as the man who assaulted her. DNA from Slaughter’s buccal swab matched DNA on a vaginal swab taken from Gabbert the day she reported the rape.

Gabbert said Slaughter threatened her “not to tell” by talking to his friends on the phone about her. Gabbert did not see a weapon in Slaughter’s hand at any time, but after the assault, she observed the handle of a handgun under the “tip” of the bed on which she was assaulted.

Q Did he ever have a weapon?
AI didn’t ever see one in his hand.
Q Did you ever see one at all?
A I had seen a gun up under the bed by the tip of the bed. A handgun. I don’t know—
[counsel]: Your Honor, may we approach.
(Whereupon, counsel approached the Bench and the following proceedings were had:)
[counsel]: Your Honor, at this time I would like to renew my motion in limine to not allow any testimony about this person possibly seeing the tip of a gun. There’s nothing that would link Mr. Slaughter to this gun, either actually or constructively possessing the gun and would assert that this line of testimony is uncharged misconduct and highly prejudicial.
THE COURT: Any other response?
[prosecution]: No, Your Honor.
THE COURT: It is overruled.
[counsel]: I would like to make it a continuing objection.
THE COURT: Certainly. A continuing objection on this issue all along.
[counsel]: And to allow the testimony is a violation of Mr. Slaughter’s Constitutional rights under the Fourteenth Amendment and the corresponding Missouri Constitutional amendment of process and a fair trial.
(Whereupon, the proceedings returned to open court.)
Q Ms. [Gabbert], you were describing what you saw under — up under the bed, I think is what you said. Can you tell us what you saw?
A Something that looked like a gun. I don’t know if it was real or fake.
Q When did you see that?
A That morning.
Q Did you see that before this happened or after?
A After.
Q Had there been any discussion about guns during your time that you had spent with him, with Rayshawn?
A No, not at the house, but before we had got to the house, it was in the car and he was talking to his neighbor. I don’t know, they were conversating [sic] about something and he was like, I ain’t worried about nothing, I got my protection.
⅜ ⅜ ⅜ ⅜ ⅝ ⅜
Q You told us about a comment that was made and that was made in the car on the way to Rayshawn’s house?
A Yes.
Q What did you take that, the nature of the comment, what did you conclude?
A His protection being a gun.
Q And what did you think then at that point?
A Really nothing.
Q Did you think later on that he did or did not have a gun or did you just not think about it?
A After the sexual thing, I started thinking about the comment he had made in the car.
Q How would you describe his emotional demeanor and behavior?
A Aggressive.

The jury found Slaughter guilty. He was sentenced to concurrent terms of fifteen years’ imprisonment for rape and five years’ imprisonment for each count of sodomy.

Slaughter appeals.

Standard of Review

“The trial court has broad discretion to exclude or admit evidence at trial.” State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). “This Court will reverse only upon a showing of a clear abuse of discretion.” Id. “Such abuse of discretion occurs when the trial court’s evidentiary ruling is clearly against the logic of the circumstances before the court, and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful deliberate consideration.” State v. Naasz, 142 S.W.3d 869, 878 (Mo.App.2004), “Furthermore, in matters involving the admission of evidence, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” Id.

Analysis

Slaughter claims that the trial court abused its discretion in overruling his objection to Gabbert’s testimony that she saw something that looked like the handle of a handgun by the “tip” of the bed sometime after the attack. His contention is solely that the evidence concerning a possible gun in the bedroom was inadmissible evidence of other crimes or uncharged misconduct. He says it was not logically or legally relevant to the crime with which he was charged because no weapon was used during the assault. Slaughter concludes that evidence of a possible gun had no probative value but had tremendous prejudicial effect because it was evidence of another crime.

If the gun did belong to Slaughter, he could have been guilty of an offense as a felon in possession of a firearm. But there was no evidence indicating that the gun, if it was a gun, was possessed or owned by Slaughter. The bedroom in question was not Slaughter’s bedroom, although he did seem to have appropriated it for that night. See, e.g., State v. Richardson, 515 S.W.2d 571, 572-78 (Mo.1974) (noting that where the evidence demonstrated that the defendant used one gun in the charged crime, evidence of other weapons, without more, was not evidence of other crimes). There also was no evidence that the jury was aware of, or would have thought of the possibility, that Slaughter would be guilty of another crime (felon in possession) if he owned or possessed a firearm. The jury did not learn of Slaughter having any prior convictions until he testified, significantly later, when the convictions were introduced on the issue of credibility. The jury would have had to remember and associate the presence of a possible gun with Slaughter being a convicted felon, and would have to be aware of a restriction on his right to possess a gun, to conclude that Slaughter’s possession of a gun was a crime. See State v. Goudeau, 85 S.W.3d 126, 130-31 (Mo.App.2002) (court not persuaded that the jury was aware that possession of a pellet gun in a park was a crime).

But even assuming, for argument’s sake, that the evidence was evidence of another, uncharged crime, that fact does not mean it was error to admit it. “The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes.” Naasz, 142 S.W.3d at 878. Evidence of uncharged conduct may, however, be admissible for other relevant purposes, including, among other things, “motive, intent, absence of mistake or accident, identity, or a common plan or scheme.” State v. Kelley, 943 S.W.2d 354, 356-57 (Mo.App.1997). An additional well-recognized exception exists “for the admission of evidence of uncharged crimes that are part of the circumstances or the sequence of events surrounding the offense charged.” Id. at 357.

The State argues that the evidence of the gun was legally and logically relevant in that it supported the theory that the sexual contact took place as the result of forcible compulsion. While the State’s argument is focused on trying to fit the evidence of the gun into a logical picture (which is somewhat difficult to do because of the lack of clarity about whether the gun was Slaughter’s), we think the proper analysis is to recognize that the trial court here most likely ruled as it did simply in following the long tradition of allowing evidence of the circumstances surrounding and attendant to the incident in question so that the factfinder is allowed to know the entire context of an event. And here it appears the trial court did have a proper reason for admitting it, presumably basing its ruling on the theory of providing the jury with all the facts and circumstances surrounding the event. See, e.g., State v. Davis, 226 S.W.3d 167, 170 (Mo.App.2007). “This evidence is admissible to present a complete and coherent picture of the criminal events that transpired.” Id. “Generally, acts, statements, occurrences and the circumstances forming part of the main transaction may be shown in evidence under the res gestae rule where they precede the offense immediately or by a short interval of time and tend, as background information, to elucidate a main fact in issue.” Id. at 170-71.

The term “res gestae ” includes [tjhings done, or ... the facts of the transaction; ... the surrounding facts of a transaction explanatory of an act or showing a motive for acting; ... matters incidental to a main fact and explanatory of it, including acts and words which are so closely connected with a main fact as will constitute a part of it, and without a knowledge of which the main fact might not be properly understood.

Id. at 171. The rationale behind all of the exceptions is to admit evidence that will legitimately help the jury determine the facts. See State v. Payne, 135 S.W.3d 504, 507 (Mo.App.2004).

Numerous cases allow evidence of other misconduct to be admitted as part of the entire context of an event. See, e.g., id. at 505-08 (defendant charged with three robberies; evidence of fourth robbery committed during the same spree was admissible); State v. Morrow, 968 S.W.2d 100, 107 (Mo. banc 1998) (evidence of other uncharged crimes admissible where crimes were “part of a three day drug binge and crime spree,” to “fully and fairly [present] a complete and coherent picture of the ... whole truth to the jury”); State v. Jordan, 937 S.W.2d 262, 267-68 (Mo.App.1996) (defendant charged with murder and armed criminal action; a few days before the shooting, the defendant was arrested for driving while intoxicated and he had four loaded firearms on the seat next to him; court found that evidence of the DWI arrest “was merely a circumstance surrounding the evidence [the firearms used in the shooting]”); State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994) (the evidence of “[the defendant’s] planned use of the gun to commit a drive-by shooting was interconnected to and nearly contemporaneous ■with” the murder for which he was on trial; “it set the context for that offense” and “added to the complete and coherent picture of the murder”); State v. Davis, 806 S.W.2d 441, 443 (Mo.App.1991) (testimony that defendant, who was charged with possession of a controlled substance, had engaged in other drug transactions during surveillance “established the res gestae of the crime with which defendant was charged”; and such evidence “furnished a cohesive picture” of the charged offense).

Evidence that Gabbert saw what might have been a gun in the room where Slaughter directed her to sleep and where she was raped was admissible as part of the context of the assault. It was part of her complete story and helped give the jury “a clearer understanding of the whole criminal episode.” See David P. Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events, section 5.3.2, p. 341 (2009).

We do not mean to say that the court did not have any discretion to deny admission to the evidence of the gun handle if the court believed such evidence would have been likely to mislead the jury. However, we conclude that the evidence of the gun handle was reasonably admitted by the trial court as part of the circumstances of the event.

The “res gestae” rule allows each party freedom to argue the known facts for whatever inferences they might yield. The State here attempted to suggest that Slaughter might have placed a gun under the “tip” of the bed where the victim could see it at some time, so that the victim would supposedly be reluctant to strongly resist, or perhaps later be reluctant to make a police report. The defense, on the other hand, could have argued that the fact that Slaughter never threatened Gab-bert with a gun or specifically referred to a gun in talking to her, and the fact that he allowed Gabbert access to the gun, were all consistent with the notion that there was consensual sexual activity between the two. The jury might also wonder if Slaughter would have placed a gun (if loaded) where it would be accessible to Gab-bert if he were intending to rape her (because she might grab the gun and kill Slaughter in self-defense). The defense could thus have argued that Gabbert’s observation of the presence of the gun handle actually was inconsistent with Slaughter’s guilt of rape. And then also, it seems to us that it might be quite likely that the jury concluded that the observation of the gun handle, which was never directly connected to the defendant, did not prove much of anything.

We know that there was sexual contact between Gabbert and Slaughter. The issue was whether it was rape. The gun was one small factor among many that the jury could consider in answering the question of whether Gabbert was telling the truth when she said that it was rape. The jurors were required to carefully evaluate the testimony and all the surrounding circumstances to determine whether they were convinced beyond a reasonable doubt of the truth of the rape accusation. The trial court did not abuse its discretion in admitting evidence of the apparent gun handle because it was part of the circumstances surrounding the crime.

Conclusion

The judgment is affirmed.

HARDWICK, P.J., and AHUJA, J. concur.

      . This opinion uses a substitute name for the victim (“Kelly Gabbert”).

      . We note, for instance, that the court, in ruling on the admissibility of evidence of the defendant’s drug usage around the time of the rape, stated that the evidence should be. admitted because it was “contemporary with the whole thing.” This is consistent with out-general belief that trial judges are often alert lo the concept of admitting "res gestae” evidence to provide the jury with the entire set of contemporaneous circumstances of an event even when one or more of such circumstances may place the defendant in a negative light.


source: Caselaw Access Project

author: JOSEPH M. ELLIS, Judge.

license: Public Domain

text:
    Matthew L. BODE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70311.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      S. Kate Webber, for Appellant.
    Daniel N. McPherson, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   JOSEPH M. ELLIS, Judge.

Mathew Bode appeals from the denial of his Rule 29.15 motion for post-conviction relief by the Circuit Court of Platte County. For the foregoing reasons, the motion court’s decision is reversed in part.

Appellant was tried by jury and convicted of one count of robbery in the first degree, § 569.020; one count of armed criminal action, § 571.015; and one count of possession of a controlled substance (cocaine base), § 195.202. Appellant was subsequently sentenced as a prior and persistent offender to consecutive terms of twenty years imprisonment on the robbery count, ten years on the armed criminal action count, and seven years on the possession count. Appellant’s convictions and sentences were affirmed by this Court on direct appeal. State v. Bode, 221 S.W.3d 479, 479-80 (Mo.App. W.D.2007).

Appellant filed a timely pro se motion for post-conviction relief under Rule 29.15. An amended motion was subsequently filed by appointed counsel. Following an evi-dentiary hearing, the motion court denied Appellant’s motion. Appellant brings three points on appeal.

“Our review of the motion court’s denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous.” Stiers v. State, 229 S.W.3d 257, 260 (Mo.App. W.D.2007) (citing Rule 29.15(k)). “A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005) (internal quotation omitted).

“To prevail on an ineffective assistance of counsel claim, [Appellant] must show that (1) trial counsel’s performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) the deficient performance prejudiced [Appellant].” State v. Rich, 950 S.W.2d 337, 339 (Mo.App. W.D.1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). “To establish ineffectiveness, a defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Storey, 175 S.W.3d at 125 (internal quotation omitted). “ ‘We presume counsel to be competent, requiring proof to the contrary by a preponderance of the evidence.’ ” Stiers, 229 S.W.3d at 260 (quoting State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996)). “As to prejudice, a claimant must demonstrate prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” James v. State, 222 S.W.3d 302, 304 (Mo.App. W.D.2007) (internal quotation omitted). “Appellant must establish both the performance and prejudice prongs of this test in order to prevail on a claim of ineffective assistance, and if he fails to satisfy either prong, we need not consider the other.” Id.

In his first point, Appellant claims that the motion court clearly erred in concluding that counsel was not ineffective for refusing to allow Appellant to testify in his own defense. Appellant argues that the record demonstrates that he did not knowingly waive his right to testify and that counsel refused to allow him to testify. He further contends that prejudice must be presumed as resulting from counsel’s failure to allow him to testify.

In making this argument, Appellant views the evidence presented at the evidentiary hearing and inferences drawn therefrom in the light most favorable to himself. While Appellant testified that counsel failed to fully explain his right to testify and that counsel rested his case despite Appellant’s requests that he be allowed to testify, the trial court was not required to accept any of that testimony as credible. Slater v. State, 147 S.W.3d 97, 101 (Mo.App. W.D.2004). Contrary to Appellant’s testimony, Counsel testified that, while he could not recall his specific discussion with Appellant, he normally explains to all his clients the pros and cons of testifying and that he was sure he had discussed the possibility of testifying with Appellant. Counsel further stated that he likely discussed the fact that Appellant’s prior convictions would almost certainly be placed into evidence if he testified and that he probably advised Appellant against testifying for that reason. Counsel said that the ultimate decision whether to testify or not had rested with Appellant. Viewing the record in accordance with our standard of review, the motion court did not clearly err in finding that Appellant had failed to prove his claims.

Moreover, Appellant wholly failed to prove that he sustained any prejudice as a result of counsel not calling him to testify in his own defense. Contrary to Appellant’s contention on appeal, to be entitled to any relief, he was required to prove that he suffered prejudice as a result of counsel’s failure to present Appellant’s testimony at trial. See Williams v. State, 205 S.W.3d 300, 314-15 (Mo.App. W.D.2006); Lawrence v. State, 160 S.W.3d 825, 831 (Mo.App. S.D.2005). At the evidentiary hearing, Appellant did not describe, in any fashion, what his testimony would have been had he testified at trial. Accordingly, the motion court had no means of assessing whether Appellant’s testimony would have aided or been detrimental to Appellant’s case. The motion court properly found that the record did not establish that, but for counsel’s failure to call Appellant to testify, the result of the proceeding would have been different. James, 222 S.W.3d at 304. Point denied.

In his second point, Appellant claims that the motion court clearly erred in finding that counsel was not ineffective for failing to obtain a mental evaluation of Appellant. He further claims the motion hearing record established by a preponderance of the evidence that he had not been competent to stand trial.

“Section 552.020.1 states that ‘[n]o person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.’ ” Zink v. State, 278 S.W.3d 170, 183 (Mo. banc 2009). “The standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.” Id. (internal quotation omitted) “A defendant is presumed competent to stand trial, and the burden is on the defendant to show he is incompetent.” Id.

When considering whether trial counsel was ineffective for failing to investigate whether the defendant is incompetent to stand trial, “this Court must look to the reasonableness of counsel’s conduct from counsel’s perspective at the time and eliminate hindsight from consideration.” Cook v. State, 193 S.W.3d 378, 386 (Mo. App. S.D.2006). “The suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial.” Id. (internal quotation omitted). “An investigation is unnecessary when an accused has the ability to rationally consult with his attorney and understand the court proceedings.” Williams v. State, 111 S.W.3d 556, 560 (Mo.App. W.D.2003).

Trial counsel testified that, while Appellant appeared to have some mental issues, he did not appear to be incompetent to stand trial. Counsel testified that Appellant had been able to discuss the case with him, including potential witnesses and issues that might arise.

The motion court found counsel’s testimony to be credible and did not believe Appellant’s testimony about his condition prior to and during trial. The court also noted physician’s notes from Appellant’s medical treatment while awaiting trial in the Platte County Jail that indicated that Appellant, while depressed and anxious about his trial, was alert and oriented at all times, was not overtly psychotic, and was cognitively intact. The court also relied upon its own observations of Appellant during the course of trial. Based upon the foregoing evidence, the motion court did not clearly err in determining that trial counsel was not ineffective for failing to obtain a mental evaluation of Appellant’s competence to stand trial.

Appellant also failed to prove prejudice, in that he has not offered any credible evidence establishing that he would, indeed, have been found to be incompetent to stand trial. Thomas v. State, 249 S.W.3d 234, 239 (Mo.App. E.D.2008). “[T]he suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial.” Id. (internal quotation omitted). Whether a post-conviction movant was able to consult with his counsel with a reasonable degree of rational understanding and was able to sufficiently understand the proceedings against him, despite his alleged mental condition, is a factual determination for the motion court. Id. The motion court found counsel’s testimony that Appellant was able to consult with him and appeared to understand what was going on to be credible. The motion court also found that Appellant’s testimony related to his condition at the time of trial was not credible, and Appellant did not present any medical evidence establishing incompetence. The motion court properly found that Appellant failed to prove that he would have been able to successfully raise an incompetence challenge to his trial had counsel pursued a mental evaluation. Point denied.

In his final point, Appellant claims that the motion court clearly erred and violated his right to due process when it failed to include findings of fact and conclusions of law addressing the claims from his pro se motion. He contends that the lack of such findings precludes meaningful appellate review.

In his pro se motion, Appellant raised four additional claims that were not addressed in his amended motion but were adopted by reference in that motion. Appellant claims (1) that appellate counsel was ineffective for failing to raise a claim that the trial court erred in failing to advise Appellant of his right to testify or to make a finding on the record that Appellant knowingly, intelligently, and voluntarily had waived that right, (2) that trial counsel was ineffective for failing to file and pursue a motion to suppress the store clerk’s identification of Appellant as the robber, (3) that trial counsel was ineffective for failing to file a motion to suppress the hooded sweatshirt identified by the clerk and failing to object to its admission at trial, and (4) that trial counsel was ineffective for failing to obtain an interpreter or auxiliary aids for his mental disability under the Americans with Disabilities Act.

“Under Rule 29.15, a motion court is required to issue findings of fact and conclusions of law on each issue presented .... ” Taylor v. State, 269 S.W.3d 42, 44 (Mo.App. W.D.2008). “While there is no precise formula to which findings of fact and conclusions of law must conform, this is not an ambiguous requirement, nor is it simply a formality.” Id. at 44-45 (internal quotations and citations omitted). “The motion court is not required to issue itemized findings of fact and conclusions of law, but its findings and conclusions must be specific enough to allow an appellate court to conduct a meaningful review.” Id. at 45 (internal quotation omitted).

“A motion court’s failure to issue findings of fact and conclusions of law as required by Rule 29.15Q) is error and generally necessitates that the case be remanded with a directive to make the required findings.” Weekley v. State, 265 S.W.3d 319, 322 (Mo.App. S.D.2008). “There are, however, several exceptions to this general rule.... ” Id. One of these exceptions arises where “the motion court grants a hearing on the motion and the movant fails to present substantial evidence at the hearing to support that allegation.” Id. (internal quotation omitted). Where the movant has failed to present evidence at the hearing to provide factual support for a claim in his or her post-conviction motion, the claim is deemed to have been abandoned, and no finding by the motion court is required. Id. at 323.

Appellant failed to present any evidence supporting his first, third, and fourth pro se claims. As such, those claims are deemed to have been abandoned, and the motion court was not required to issue any findings related thereto.

The only pro se claim on which Appellant presented any evidence was his claim that counsel was ineffective for failing to file and pursue a motion to suppress the store clerk’s identification of him. During the evidentiary hearing, Appellant asked counsel why he didn’t attempt to have the court suppress or exclude from evidence the store clerk’s identification of him as the robber from a photographic lineup. Counsel responded that he made no attempt to do so because he did not believe that the photographic lineup was suggestive or otherwise objectionable. However, the trial court was not required to accept counsel’s testimony as credible or as correct as a matter of law. As judicial notice was taken of the record in the underlying criminal conviction, the photographic lineup and the testimony related thereto were in evidence for the motion court to review to determine whether a reasonably competent attorney would have objected thereto and, if so, whether the defendant suffered prejudice as a result of that failure.

“Meaningful appellate review is premised upon sufficiently specific findings of fact and conclusions of law which are responsive to the movant’s claim.” Gaddis v. State, 121 S.W.3d 308, 311 (Mo.App. W.D.2003). As the record could conceivably have supported a finding by the motion court in favor of Appellant on his claim related to the photographic lineup, as unlikely as that result may appear to be, the motion court was required to issue findings of fact and conclusions of law on the subject. Taylor, 269 S.W.3d at 44. Since the motion court’s findings of fact and conclusions of law do not address Appellant’s claim in any fashion, the motion court’s decision fails to comply with Rule 29.15(j). Benedict v. State, 139 S.W.3d 264, 266 (Mo.App. W.D.2004). This Court may not supply the necessary findings and conclusions by implication as doing so would constitute improper de novo review on appeal. Gaddis, 121 S.W.3d at 311.

Accordingly, the case is reversed and remanded with directions that the motion court enter findings of fact and conclusions of law addressing Appellant’s pro se claim that counsel was ineffective for failing to file and pursue a motion to suppress the store clerk’s identification of him. In all other respects, the judgment is affirmed.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise noted.

      . "The absolute authority to make certain fundamental decisions in criminal cases, including whether to testify, is a personal right of the defendant that cannot be made by counsel.” Slater v. State, 147 S.W.3d 97, 101 (Mo.App. W.D.2004). “A criminal defendant has a constitutional right to testify on his own behalf and because that right to testify is a fundamental constitutional guarantee, only the defendant himself is empowered to waive that right.” Hurst v. State, 301 S.W.3d 112, 118 (Mo.App. E.D.2010). "Although the decision to testify rests solely with the defendant, a defendant is entitled to receive reasonably competent advice.” Id. However, "[t]rial counsel's advice to his client about whether or not to testify is a matter of trial strategy which, barring exceptional circumstances, is not a ground for post-conviction relief.” Slater, 147 S.W.3d at 101.


text:
    William D. CONE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70432.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Rebecca L. Kurz, for Appellant.

      Daniel McPherson, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   JOSEPH M. ELLIS, Judge.

William D. Cone appeals from the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. For the following reasons, the judgment is affirmed.

Cone practiced psychiatry in West Plains, Missouri, from 1979 through 1994, when he lost his license, at the age of 70, after it was discovered that he had been having sexual relations with two of his patients. Also as a result of those patients’ allegations, on January 1997, Cone was charged with six counts of first degree sexual assault, § 566.040, and thirteen counts of first degree deviate sexual assault, § 566.070. Following a jury trial, Cone was found guilty as charged and was sentenced to consecutive terms of seven years imprisonment on each of the nineteen counts. His convictions and sentences were affirmed by this Court on direct appeal. State v. Cone, 3 S.W.3d 833, 845 (Mo.App. W.D.1999).

Cone filed a motion for post-conviction relief under Rule 29.15 that was subsequently denied. On December 9, 2005, newly retained counsel filed a motion on Cone’s behalf asking the motion court to find that Cone had previously been abandoned by post-conviction counsel and for leave to file an amended Rule 29.15 motion. After the State stipulated that Cone had been abandoned by counsel, the motion court entered its order permitting Cone to file an amended post-conviction motion.

In his amended Rule 29.15 motion, Cone alleged that trial and appellaté counsel were ineffective for failing to challenge his prosecution as violating the due process and ex post facto clauses of the United States and Missouri constitutions. He also claimed that trial counsel was ineffective for failing to consult with and call a psychiatrist to rebut the expert testimony presented by the State. Finally, Cone argued that trial counsel was ineffective for failing to challenge the affidavit of probable cause. Following an evidentiary hearing, the motion court denied Cone’s motion. Cone brings three points on appeal from that decision.

“Our review of the motion court’s denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous.” Stiers v. State, 229 S.W.3d 257, 260 (Mo.App. W.D.2007) (citing Rule 29.15(k)). “A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005) (internal quotation omitted).

“To prevail on an ineffective assistance of counsel claim, [Appellant] must show that (1) trial counsel’s performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) the deficient performance prejudiced [Appellant].” State v. Rich, 950 S.W.2d 337, 339 (Mo.App. W.D.1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). “To establish ineffectiveness, a defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Storey, 175 S.W.3d at 125 (internal quotation omitted). “ “We presume counsel to be competent, requiring proof to the contrary by a preponderance of the evidence.’ ” Stiers, 229 S.W.3d at 260 (quoting State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996)). “As to prejudice, a claimant must demonstrate prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” James v. State, 222 S.W.3d 302, 304 (Mo.App. W.D.2007) (internal quotation omitted). “Appellant must establish both the performance and prejudice prongs of this test in order to prevail on a claim of ineffective assistance, and if he fails to satisfy either prong, we need not consider the other.” Id.

In his first point, Cone claims that the motion court clearly erred in determining that trial and appellate counsel were not ineffective for failing to challenge his prosecution as violating his right to due process. He relies on the principle that “due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997). He argues that the definition of incapacitated applied in his case was contrary to that adopted in the common law and that he had no notice or fair warning that his actions were criminal. He further claims that the statutes failed to give fair warning of the conduct they prohibited.

Under the applicable statutory language, “[a] person commits the crime of sexual assault in the first degree if he has sexual intercourse with another person to whom he is not married and who is incapacitated.” Cone, 3 S.W.3d at 840 (quoting § 566.040.0.1, RSMo 1986). Similarly, “[a] person commits the crime of deviate sexual assault in the first degree if he has deviate sexual intercourse with another person to whom he is not married and who is incapacitated.” Id. (quoting § 566.070, RSMo 1986). At trial Cone admitted to having performed the alleged sexual acts but challenged whether the victims were incapacitated because of their mental conditions.

On appeal, Cone contends that his patients did not share the same characteristics as the victims that had previously been deemed incapacitated under the common law and that he could not have reasonably known that the patients were legally incapacitated under the existing law when he had sexual intercourse with them. He argues that prior cases had established incapacity through evidence of impaired reality, delusional thinking, or severe developmental disability. He claims that trial and appellate counsel should, therefore, have challenged his prosecution as violating due process because he could not have reasonably foreseen that his actions would be deemed criminal.

The bulk of the eases relied upon by Cone for the treatment of when a woman is incapacitated predate the enactment of § 556.061(13), the applicable statutory definition of “incapacitated.” The only case cited by Cone applying § 556.061(13) utilized the same definition applied by the trial court in Cone’s case and found the evidence presented therein sufficient to support the defendant’s conviction. See State v. Buck, 724 S.W.2d 574 (Mo.App. W.D.1986). Buck offers no guidance related to the factual scenario presented in the case at bar.

At the time Cone had sexual intercourse with the victims, “incapacitated” was defined by statute as “that physical or mental condition, temporary or permanent, in which a person is unconscious, unable to appraise the nature of his conduct, or unable to communicate unwillingness to an act.” § 556.061(13), RSMo 1986. At trial, the State presented three psychiatric experts that testified that both victims were incapacitated “in that they were unable to appraise the nature of their conduct and were unable to communicate their unwillingness to act.” The jury found Cone guilty after being instructed, consistent with the statutory language, “that it must find and believe from the evidence beyond a reasonable doubt that, at the time, the patient was, because of a mental condition, unable to appraise the nature of her conduct or unable to communicate her unwillingness to engage in such conduct.” Cone, 3 S.W.3d at 840. On direct appeal, this court determined that “there was substantial evidence from which a jury could find that [the victims] did not appreciate the nature of their conduct in committing sexual acts with the defendant” and “were unable to understand their conduct was sexual in nature.” Id. at 842.

Cone was convicted under the language of the statutes in effect at the time he committed his crimes. The trial court did not overrule existing law or otherwise expand the statutory language. As noted by the motion court, the “definition reads the same today as it did the day Cone stripped his victims of their ability to resist him, plied them with drugs and alcohol, and forced them into a deviate sexual relationship under the guise of ‘regression therapy.’ ” Any claim of a breach of due process was meritless, and therefore, the motion court did not err in finding that neither trial counsel nor appellate counsel was ineffective for failing for bring such a claim. Point denied.

In his second point, Cone claims that the motion court should have found that counsel was ineffective for failing to call an expert in psychology or psychiatry to rebut the State’s evidence that the victims were incapacitated. He claims that a reasonably competent attorney would have located and called such an expert.

“To show ineffective assistance by failing to locate and present expert witnesses, Movant has the burden to show such experts existed at the time of trial, that they could have been located through reasonable investigation, and the testimony would have benefited the defense.” Williams v. State, 226 S.W.3d 871, 873 (Mo.App. S.D.2007) (internal quotation omitted).

The record reflects that, during a pretrial hearing thirteen days before trial, trial counsel informed the court that, while he felt the defense would benefit from expert testimony, he had contacted ten to twelve psychiatrists and visited the Men-ninger Clinic in Topeka, Kansas, but had been unable to find an expert willing to testify in the case. Counsel also testified that Cone had unsuccessfully attempted to convince some of his colleagues to testify on his behalf. He further noted Cone’s inability to pay more than a couple thousand dollars to an expert. The trial court commented that counsel appeared to have done all he could do with regard to obtaining an expert to testify on Cone’s behalf.

The morning of Cone’s trial, Cone told counsel that he had received a message from a third party that an expert in Topeka, Dr. Gilbert Parks, was willing to testify in the case on Wednesday of that week. Counsel stated that he had not spoken with the expert and did not know what his testimony would be. Cone also indicated that he had not spoken with the expert and had not seen his curriculum vitae. The State objected to the endorsement of the witness on the day of trial, and the court sustained that objection.

At the evidentiary hearing, Cone entered into evidence the deposition of Dr. William Logan. He claimed that a reasonably competent attorney would have located Dr. Logan or a similar expert to testify on his behalf.

Following the Rule 29.15 evidentiary hearing, the motion court found that trial counsel had made significant efforts to find expert witnesses to testify on Cone’s behalf. The court determined that counsel had conducted a reasonable investigation for an expert and had acted in a competent manner in deciding to proceed to trial at the initial pretrial hearing.

The motion court’s conclusion that counsel acted competently is not clearly erroneous. Counsel made a diligent but unsuccessful effort to obtain an expert to testify at trial. Counsel is not required to continue consulting experts until he or she has found one that will support the defendant’s case. State v. Ashley, 940 S.W.2d 927, 933-34 (Mo.App. W.D.1997). The mere fact that the defendant was able to later obtain an expert that would have provided an opinion supporting the defense does not establish that counsel could have found such an expert at the time of trial or that they were ineffective for failing to do so. Id. “While defense counsel could have continued to consult additional experts in the hope of finding one that might support [the defense], counsel is not required to seek out an expert who might provide more helpful testimony.” Worthington v. State, 166 S.W.3d 566, 575 (Mo. banc 2005). Point denied.

In his final point, Cone claims that the motion court erred in determining that counsel was not ineffective for failing to challenge the affidavit of probable cause used to support his arrest warrant. Cone asserts that the affidavit contained statements made with reckless regard for the truth because they were based on expert opinions not widely accepted in the field of psychiatry and that the arrest warrant could have successfully been challenged under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Specifically, Cone challenges the statement made by the special prosecutor in the affidavit that he had reviewed the reports of the psychiatric examinations of the victims by three doctors, each of whom had opined that the victim that they examined had been unable to appreciate the nature of their conduct in engaging in sexual activities with Cone and was unable to communicate her unwillingness to engage in the sexual acts requested by Cone. Cone claims the prosecutor recklessly relied upon those comments because he knew the doctors were applying a standard of incapacity contrary to existing case law.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held that:

[Wlhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 155-56, 98 S.Ct. at 2676. Even assuming that Franks applies to challenges to arrest warrants as well as search warrants, Cone has failed to identify any evidence that would have needed to be suppressed as fruit of that arrest warrant. Accordingly, he has not established any prejudice from counsel’s failure to make a Franks challenge to the affidavit supporting his arrest warrant.

Moreover, Cone’s Franks claim is based primarily upon an assertion that the statements of the doctors that the special prosecutor relied upon were false. “Merely to allege that the affidavit contained false information does not suffice. The defendant must also show that the affiant knew of the falsity or submitted the affidavit with reckless disregard for its truth or falsity.” State v. Leisure, 772 S.W.2d 674, 683 (Mo.App. W.D.1989) (overruled on other grounds in Joy v. Morrison, 254 S.W.3d 885, 888 n. 7 & 888-89 (Mo. banc 2008)) (emphasis added). “Although challenges to the truthfulness of such affidavits are permitted ..., the deliberate falsity whose impeachment is permitted is only that of the affiant, not of any nongovernmental informant.” State v. Gilmore, 665 S.W.2d 25, 29 (Mo.App. E.D.1984).

As to his claim that the prosecutor recklessly relied upon the doctors’ opinions because he knew the doctors were applying a standard of incapacity contrary to existing case law, as noted supra, the applicable definition of “incapacitated” is set forth in § 556.061(13). Nothing in the affidavit indicates that the doctors or the special prosecutor applied a contrary definition.

The motion court properly found that the failure to file a motion to suppress under Franks did not constitute ineffective assistance of counsel. Point denied.

The judgment is affirmed.

All concur.

      . Cone cites to State v. Cunningham, 100 Mo. 382, 12 S.W. 376 (1889); State v. Williams, 149 Mo. 496, 51 S.W. 88 (1899); State v. Warren, 232 Mo. 185, 134 S.W. 522 (1911); and State v. Schlichter, 263 Mo. 561, 173 S.W. 1072 (1915).

      . Though not raised in his post-conviction motion or in his point relied on, Cone additionally attempts to argue that the motion court should have found counsel was ineffective for failing to make a motion for a continuance on the day of trial to allow Dr. Parks to testify on his behalf. Even were this issue preserved for appellate review, it would be wholly without merit. Cone did not present any evidence at the motion hearing establishing that Dr. Parks had actually been available to testify at trial, what his credentials as an expert were, or what Dr. Parks's testimony would have been. The motion court had no reason to consider any claim whatsoever related to Dr. Parks.


author: KAREN KING MITCHELL, Judge.

text:
    PLANNED INDUSTRIAL EXPANSION AUTHORITY OF KANSAS CITY, Appellant, v. IVANHOE NEIGHBORHOOD COUNCIL and Brown-Caldwell Christian School, Respondents.
    No. WD 70655.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    As Modified June 1, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      William E. Quirk, Daniel R. Zmijewski and Anthony W. Bonuchi, Kansas City, MO, for Appellant.
    Allison Bergman, Patrick L. Kenney and Michele P. Gellis, Kansas City, MO, for Respondent Ivanhoe Neighborhood Council.
    Sherwin L. Epstein and Allen T. Zugel-ter, Overland Park, KS, for Respondent Brown-Caldwell Christian School.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is a condemnation action in which the trial court found that Appellant Planned Industrial Expansion Authority of Kansas City (“Expansion Authority”) failed to fulfill its statutory obligations to conduct good faith negotiations with the owners of certain property that the Expansion Authority sought to condemn. We affirm and remand for a determination of appropriate attorneys’ fees.

Facts and Procedural Background

The Expansion Authority is a statutory agency that was created by a vote of the City Council of Kansas City, Missouri (“the City”) under section 100.320. In 2004, the Expansion Authority prepared a redevelopment plan for the Ivanhoe Gardens Redevelopment Area (“Ivanhoe Gardens”) in Kansas City, Missouri. Under section 100.420, the Expansion Authority was authorized to “exercise the power of eminent domain in the manner and under the procedure provided for corporations in chapter 523, RSMo.”

Before a city’s expansion authority may exercise the power of eminent domain, it is required to go through good faith negotiations with the owners of the properties sought to be acquired. § 523.256. Good faith negotiations include, among other things, submitting an offer to the owners of the properties pursuant to section 523.253. Id. The offer must include either an appraisal conducted by licensed appraisers who used generally accepted appraisal practices or an explanation with supporting financial data for the expansion authority’s determination of the value of the property. § 523.253.2. In addition, an expansion authority is required to give the “existing merchants, residents, and present businesses ... the first option to redevelop the area.” § 100.310(9).

The Expansion Authority’s development plan contemplated acquiring the properties that make up Ivanhoe Gardens. This appeal concerns two tracts of land that are located in Ivanhoe Gardens: 2008 East 39th Street, where the Horace Mann School building sits (“school lot”), and 3820 Garfield, which is a small empty lot (“empty lot”). The school building, which is the centerpiece of the redevelopment plan, has been abandoned since the 1980’s. At the time the Expansion Authority drafted its development plan, the school lot was owned by Brown-Caldwell Christian School (“Brown-Caldwell”). The Expansion Authority’s development plan sought to convert the building and the surrounding properties into approximately eighty units of single- and multi-family housing.

The Expansion Authority submitted its general development plan to the City as it was required to do under section 100.400. In December 2004, the City approved the Expansion Authority’s general development plan.

In July 2007, the Expansion Authority published notice of the development plan and requested bids to redevelop Ivanhoe Gardens. The Expansion Authority received proposals from three entities— Ivanhoe Neighborhood Council (“Ivanhoe”), Swope Community Builders, and Prairie Dog Development LLC (“Prairie Dog”). Swope Community Builders abandoned its bid, leaving only the proposals of Ivanhoe and Prairie Dog. Ivanhoe is a nonprofit corporation that represents the interests of members of the community who would be affected by the redevelopment of Ivanhoe Gardens. One of its purposes is to coordinate and combine the resources of its members to accomplish what a single resident or a single merchant could not accomplish on its own.

While the Expansion Authority was considering the redevelopment proposals, Ivanhoe offered to purchase Ivanhoe Gardens from Brown-Caldwell for $650,000.

On February 1, 2008, the Expansion Authority accepted Prairie Dog’s proposal and notified the City of the Expansion Authority’s intent to enter into a development contract with Prairie Dog. At the time the Expansion Authority approved Prairie Dog’s proposal, both tracts of land were still owned by Brown-Caldwell. The Expansion Authority accepted Prairie Dog’s proposal, purportedly “based on their responsiveness to the proposal, their extensive experience in the development of this type of project, and their financial wherewithal to get the project accomplished.”

Even though its proposal had been rejected, Ivanhoe continued its efforts to purchase Ivanhoe Gardens. On April 16, 2008, it entered into an agreement to purchase the school building for $650,000 and the empty lot for $10.

On April 29, 2008, the Expansion Authority notified Ivanhoe and Brown-Caldwell of its intent to file a condemnation petition to obtain the school lot and the empty lot if the parties could not agree on a purchase price. That letter explained that the parties were entitled to their own counsel, to make a counteroffer and engage in further negotiations, to obtain their own appraisal, and to have just compensation for the condemned property determined by a court-appointed panel of condemnation commissioners. Thirty days later, on May 30, 2008, the Expansion Authority submitted a written offer to purchase the school building and the empty lot for $180,400.

The Expansion Authority attached to its letter appraisals of the properties that formed the basis of its offer. The letter also stated that its offer was unconditional and would be open for thirty days, after which condemnation proceedings would be instituted. Neither Ivanhoe nor Brown-Caldwell made a counteroffer or engaged in any negotiations.

On July 11, 2008, the Expansion Authority filed its condemnation petition. It named both Ivanhoe and Brown-Caldwell as defendants. Ivanhoe and Brown-Caldwell opposed the Expansion Authority’s petition. Ivanhoe and Brown-Caldwell moved to dismiss the petition on the ground that the Expansion Authority had not fulfilled its statutory obligation to negotiate in good faith, in that the appraisals the Expansion Authority included in its offer were not made using generally accepted appraisal procedures. Ivanhoe also moved to dismiss on the ground that it had a statutory “first option” to redevelop Ivanhoe Gardens, which the Expansion Authority had not honored.

Among the issues at the hearing was the credibility of the appraisals that the Expansion Authority submitted to Ivanhoe along with its offer. The Expansion Authority’s appraisals valued the school lot at $180,000 and the empty lot at $400. The Expansion Authority used two appraisers: B.E. appraised the empty lot, and M.W. appraised the school lot. Both B.E. and M.W. were licensed appraisers.

After hearing the testimony of the appraisers, the circuit court concluded as follows:

[T]he appraisals provided fell short of a good faith appraisal, despite their attempt to comply with generally accepted appraisal practices. The testimony of the appraisers told a different story, bringing into question their motive for a low appraisal value by their inability to explain various items in their reports, including, but not limited to, the drastic adjustments made of comparable properties, the date and type of sale of comparable properties, and the failure to talk to the owner much less consider the recent sale of the property in question.

(Emphasis added.)

The appraisers made certain adjustments to the comparable sale prices of other properties that they used to determine the value for Ivanhoe Gardens. M.W. made substantial adjustments to the sale prices of all of the comparable sales he reviewed. In doing so, he concluded that Ivanhoe Gardens was substantially less valuable than all of the comparable sales. As noted, the trial court found that the appraisers demonstrated “an inability to explain” these “drastic adjustments” resulting in a devaluated appraisal of Ivanhoe Gardens.

In finding that the appraisals provided fell short of the good faith standard, the circuit court also relied on the date and types of comparable sales that the appraisers used when making comparisons to Ivanhoe Gardens. The appraisers did not account for the passage of time between the dates of certain of their comparable sales and the date of their appraisal of Ivanhoe Gardens. For example, B.E. testified that market conditions can change with the passage of time, yet, in some eases, she made no effort to make adjustments for such changes and did not explain why she had not made the adjustments. Likewise, M.W. did not make any adjustments for the passage of time, even though one of his comparable sales was nearly a decade old.

The appraisers also failed to account for the type of sales that occurred with respect to their comparable properties. For example, B.E. relied on “comparable sales” that were, in fact, not traditional sales, but rather foreclosure auctions, which are known to yield lower prices than traditional sales yield.

Further, the circuit court found that in appraising the fair market value of Ivanhoe Gardens, the Expansion Authority’s appraisers did not take into account the recent sale of Ivanhoe Gardens from Brown-Caldwell to Ivanhoe at a purchase price of $650,000. Ivanhoe and Brown-Caldwell presented evidence that the sale was an arms-length transaction, and the appraisers did not explain why they failed to account for the recent sale of Ivanhoe Gardens.

The circuit court also found that the Expansion Authority violated section 100.310(9) in that it failed to provide Ivanhoe, which the court found to qualify as a “present business” under the statute, with the “first option” to develop Ivanhoe Gardens, in that the Expansion Authority rejected Ivanhoe’s proposal in favor of Prairie Dog’s.

The circuit court dismissed the Expansion Authority’s condemnation petition on two independent, alternative grounds: (1) the Expansion Authority failed to satisfy the “good faith negotiations” requirement of section 523.256, and (2) the Expansion Authority failed to grant Ivanhoe its statutory right to a “first option” to redevelop the properties. Because the petition was dismissed, the court also awarded attorneys’ fees and costs to both Ivanhoe and Brown-Caldwell. See § 523.256.

This appeal follows.

Standard of Review

“Before a court may enter an order of condemnation, the court shall find that the condemning authority engaged in good faith negotiations prior to filing the condemnation petition.” § 523.256 (emphasis added).

Appellate courts have twice addressed a trial court’s determination of good faith under this statute, which was enacted in 2006. In City of Richmond, Heights v. Waite, 280 S.W.3d 770, 774 (Mo.App. E.D. 2009), the Eastern District of this court applied a de novo standard of review when the circuit court’s determination of good faith turned on a question of law, such as statutory interpretation. However, when the circuit court’s determination of good faith turned on a question of fact, this court stated that it would affirm the circuit court’s judgment if there was substantial evidence to support it. City of Kansas City v. Chung Hoe Ku, 282 S.W.3d 23, 27 (Mo.App. W.D.2009).

A circuit court’s determination of whether the good faith requirements of section 523.256 were met is no different from the proceedings in any other court-tried case. Accordingly, we will apply the standard announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), which the courts in Waite and Ku essentially applied without explicitly citing that standard. Waite, 280 S.W.3d at 780 (reversing because the trial court erroneously declared and applied the law); Ku, 282 S.W.3d at 33 (affirming because there was substantial evidence to support the trial court’s findings of fact). In reviewing the circuit court’s determination made pursuant to section 523.256, “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy, 536 S.W.2d at 32.

Discussion

The Expansion Authority argues that the circuit court erred in dismissing its condemnation petition for failure to comply with the “good faith negotiations” requirements of section 523.256. We disagree.

As noted above, section 523.256 mandates that a condemning authority enter into good faith negotiations with the owners of the property sought to be condemned. Further, the statute outlines what is to be deemed “good faith”:

A condemning authority shall be deemed to have engaged in good faith negotiations if:
(1) It has properly and timely given all notices to owners required by this chapter;
(2) Its offer under section 523.253 was no lower than the amount reflected in an appraisal performed by a state-licensed or state-certified appraiser for the condemning authority, provided an appraisal is given to the owner pursuant to subsection 2 of section 523.253 or, in other cases, the offer is no lower than the amount provided in the basis for its determination of the value of the property as provided to the owner under subsection 2 of section 523.253;
(3) The owner has been given an opportunity to obtain his or her own appraisal from a state-licensed or state-certified appraiser of his or her choice; and
(4) Where applicable, it has considered an alternate location suggested by the owner under section 523.265.

§ 523.256. The only “good faith” requirement at issue in this appeal is subsection (2) of section 523.256, the good faith offer.

Under section 523.253, which section 523.256 incorporates in subsection (2), a condemning authority must submit an offer to the owners of the property to be condemned and, along with the offer, it must submit, among other things, an appraisal of the property to be condemned or an explanation with supporting financial data for its determination of the value of the property. § 523.253.2. In this case, the Expansion Authority attempted to comply with § 523.253.2 by submitting an appraisal along with its offer. In such cases, the appraisal must be “made by a state-licensed or state-certified appraiser using generally accepted appraisal practices.” § 523.253.2(2).

If the requirements of section 523.253 are not met, then the petition for condemnation must be dismissed. Waite, 280 S.W.3d at 779. Under section 523.256, the circuit court was required to dismiss the petition for condemnation upon finding that the Expansion Authority did not enter into good faith negotiations with the property owners. The issue here is whether the circuit court erred in finding that the Expansion Authority failed to fulfill the prerequisite to good faith negotiations, the making of an offer that meets the requirements of section 523.253, which, in this case, includes that an appraisal, made using generally accepted appraisal practices, be sent to the property owners along with the Expansion Authority’s purchase offer.

The circuit court found that:

the appraisals provided fell short of a good faith appraisal, despite their attempt to comply with generally accepted appraisal practices. The testimony of the appraisers told a different story, bringing into question their motive for a low appraisal value by their inability to explain various items in their reports, including, but not limited to, the drastic adjustments made of comparable properties, the date and type of sale of comparable properties, and the failure to talk to the owner much less consider the recent sale of the property in question.

Perhaps wishing to avoid the more deferential standard of review we apply to the circuit court’s findings of fact, the Expansion Authority does not argue that the circuit court erred in finding that the appraisals did not meet the standard of a “good faith appraisal.” Rather, it argues that the circuit court lacked the authority to determine the credibility of the Expansion Authority’s appraisals in a proceeding based on section 523.256. According to the Expansion Authority, “the question before the court at this stage [was] not whether there was a ‘good faith appraisal,’ but solely whether the appraisals were performed by a state-licensed or state-certified appraiser using ‘generally accepted appraisal practices.’ ” The Expansion Authority argues in its Reply brief that the circuit court conceded that the appraisals were made using a generally accepted appraisal practice — the comparables sales approach. However, at oral argument, the Expansion Authority stated that the trial court “essentially concluded as a matter of law” that the appraisers did not use generally accepted appraisal practices. We understand the Expansion Authority’s position to be that the circuit court found that a generally accepted appraisal method— the comparable sales approach — was used but that the appraisers did not use that method in good faith.

The Expansion Authority’s argument fails because, contrary to its argument: (1) the circuit court did find that the appraisals were not made using generally accepted appraisal practices, and (2) the circuit court did not exceed its authority in allowing the appraisers to be cross-examined on their claim that they used generally accepted appraisal practices.

1. The circuit court found that the appraisers did not use generally accepted appraisal practices.

The circuit court found that the appraisals did not meet section 523.253’s requirement of being made “using generally accepted appraisal practices.” The circuit court found that, despite the appraisers’ attempts to use generally accepted appraisal practices, the “testimony of the appraisers told a different story.” (Emphasis added.) The clear meaning of the coui't’s finding was that the appraisers did not follow generally accepted appraisal practices, i.e., that the appraisers’ testimony on cross-examination contradicted their testimony on direct examination that they used generally accepted appraisal practices. Moreover, the Expansion Authority’s argument on this point implies that it is possible for an appraisal to fall “short of a good faith appraisal” while still meeting the standard of “generally accepted appraisal practices.” The Expansion Authority has cited no authority for the proposition that it is a “generally accepted appraisal practice” to submit an appraisal in less than good faith, and we would reject that proposition in any case. Since the court clearly found the appraisals “fell short of a good faith appraisal,” it follows that the court found that the appraisals did not meet the standard of “generally accepted appraisal practices.” Therefore we reject the Expansion Authority’s argument that the circuit court conceded that the appraisers used a “generally accepted appraisal practice.” The court did not so concede and in fact found the contrary.

2. The circuit court did not exceed its authority in considering cross-examination testimony that tended to show that the appraisers did not use generally accepted appraisal practices.

The Expansion Authority argues that the cross-examination of the appraisers was inappropriate and/or irrelevant. According to the Expansion Authority, it met its burden when the appraisers testified that they used generally accepted appraisal practices, and the circuit court lacked the authority to explore the appraisers’ credibility at the hearing. We disagree.

The Expansion Authority bases its argument on this point largely on a case that predates the existence of sections 523.253 and 523.256. In State ex rel. Missouri Highway & Transportation Commission v. Anderson, 735 S.W.2d 350, 351-52 (Mo. banc 1987), the Supreme Court of Missouri made absolute a writ of prohibition that prevented the trial court from permitting discovery on the condemning authority’s appraisals. The Court held that “the relationship between the market value of the property and the offer is not of material significance in determining the existence of the good faith negotiations required by § 523.010 and Rule 86.01.” Id. at 354 (emphasis added). The Court noted further that “the niceties of the manner in which an appraiser arrived at his appraisal, and perhaps even the appraisal itself, have no real significance at the initial hearing.” Id.

However, the proceedings in Anderson concerned the condemning authority’s alleged failure to meet the requirements of section 528.010 and Rule 86.04; it was not a proceeding under section 523.253 or section 523.256. Id. at 352-53. Indeed, Anderson was decided almost twenty years before sections 523.253 and 523.256 were enacted, and thus it did not concern the good faith requirements of these sections. Section 523.010 and Rule 86.04 require only that the petition state that the condemning authority and the landowner could not agree on a purchase price or alternatively that the landowner lacks capacity to contract or cannot be found. Courts have interpreted section 523.010 and Rule 86.04 to require a “good faith negotiation” before condemnation proceedings can continue, id. at 354; State ex rel. Mo. Highway & Transp. Comm’n v. Rantz, 43 S.W.3d 436, 440 (Mo.App. S.D. 2001); however, prior to the 2006 amendments, “good faith negotiations” did not presuppose, as sections 523.253 and 523.256 now require, the landowner’s receipt of an appraisal “made using generally accepted appraisal practices” or an “explanation with supporting financial data for its determination of the value.” See Anderson, 735 S.W.2d at 354. Since Anderson was decided before sections 523.253 and 523.256 were enacted, it does not stand for any proposition relevant to the good faith requirement of those sections, vis-a-vis generally accepted appraisal practices.

The Expansion Authority argues that the 2006 amendments to chapter 523 do not affect a condemning authority’s requirement to negotiate in good faith. We disagree. The legislature enacted the 2006 amendments to chapter 523 in response to Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), which held that it did not violate the United States Constitution when private property was taken and given to another private entity for public development purposes even when the property was not located in a blighted area. Dale A. Whitman, Eminent Domain Reform in Missouri: A Legislative Memoir, 71 Mo. L.Rev. 721, 723 (Summer 2006). Thus, the legislature’s aim was to strengthen the rights of landowners in eminent domain actions. Id. The precise language at issue here — the requirement that any appraisal be conducted using generally accepted appraisal practices — was inserted “to prevent condemnors from providing the landowner with slipshod or incompetent appraisals.” Id. at 749.

Thus, section 523.253 gave landowners the added protections that an appraisal (or an explanation with supporting financial data) be included in the condemning party’s good faith offer and that any appraisal be made using generally accepted appraisal practices. These protections did not exist at the time the Court decided Anderson.

In arguing that the circuit court exceeded its authority in considering the cross-examinations of the appraisers, the Expansion Authority cites Waite, a post-2006 amendment case, for the following:

Our inquiry into the City’s “good faith” is limited to the following questions: Did the City give Seller the required notices? Did the City make an offer that was not less than the amount reflected in its appraisal? Did Seller have an opportunity to obtain her own appraisal? Did the City consider alternate locations that may have been suggested by Seller? If the answer to these questions is yes, the City has met the statutory requirements of good faith negotiation as expressly defined under Section 523.256.

280 S.W.3d at 778.

However, the Expansion Authority cites Waite out of context. In Waite, the Eastern District of this court stressed that its analysis of good faith under section 523.256 presupposed compliance with section 523.253.

Incorporated into the statutory requirements for good faith negotiation is the prerequisite that an “offer” pursuant to Section 523.253 has been extended to Seller. Only if the offer mandated by Section 523.253 has been given to Seller do we consider whether the condemning authority engaged in good faith negotiations under Section 523.256.... Were the trial court correct in its assessment of the Purchase Agreement, we would affirm its Judgment under Section 523.253 and need not undertake any analysis of whether the City engaged in “good faith negotiation.”

Id. at 778-79. Of course, an “offer” under section 523.253 does not pass muster if the appraisal included with it was not made using “generally accepted appraisal practices.” As such, before the circuit court addresses the limited questions noted in' Waite (compliance with section 523.256), it must first address the threshold question of whether the requirements of section 523.253 were met, see id., and, from the 2006 amendments onward, that issue necessarily includes an inquiry into whether any included appraisal was made using “generally accepted appraisal practices.” § 523.253.2(2).

Thus, contrary to the Expansion Authority’s argument, the circuit court did not exceed its authority in considering the cross-examination of the appraisers on the limited issue of the credibility of their claim that they used generally accepted appraisal practices.

We stress that section 523.253 does not contemplate a full determination of the fair market value of the subject property at the initial hearing. A condemning authority need only show that its appraisal was made by a state-licensed appraiser who used generally accepted appraisal practices. However, contrary to the implications of the Expansion Authority’s argument, the circuit court is not required to take the appraisers’ testimony at face value, without any further inquiry as to whether generally accepted appraisal practices were in fact used. Blind acceptance of an appraiser’s testimony would render sections 523.256 and 523.253 meaningless and would permit the condemning authority to provide landowners with “slipshod or incompetent appraisals,” the precise evil the legislature sought to avoid in enacting section 523.253. Whitman, 71 Mo. L.Rev. at 749.

Accordingly, the trial court did not ex'ceed its authority. Point denied.

3. Attorneys’ fees

The Expansion Authority further argues that the circuit court erred in finding that Brown-Caldwell, as the owner and holder of a note secured by a deed of trust upon Ivanhoe Gardens, was “an owner” of Ivanhoe Gardens for purposes of awarding attorneys’ fees under section 523.256. We disagree.

Section 523.256 provides:

If the court does not find that good faith negotiations have occmred, the court shall dismiss the condemnation petition, without prejudice, and shall order the condemning authority to reimburse the owner for his or her actual reasonable attorneys’ fees and costs incurred with respect to the condemnation proceeding which has been dismissed.

(Emphasis added.)

For the purposes of eminent domain, the owner and holder of a note secured by a deed of trust upon the subject property is an “owner” of the property. Morgan v. Willman, 318 Mo. 151, 1 S.W.2d 193, 200 (1927). “A mortgagee with a security interest in real estate may have a right to compensation if the mortgaged property is taken or damaged for public use because the mortgagee’s interest in real estate is considered ‘property.’ ” Barket v. City of St. Louis, 903 S.W.2d 269, 271 (Mo.App. E.D.1995).

Since the owner and holder of a note secured by a deed of trust upon property to be condemned qualifies as an “owner” of that property, Morgan, 1 S.W.2d at 200; Barket, 903 S.W.2d at 271, Brown-Caldwell was entitled to attorneys’ fees pursuant to section 523.256. Point denied.

In addition, we grant Respondents’ motions for appellate attorneys’ fees. When the legislature has provided for an award of attorneys’ fees, it would be inconsistent with legislative intent for us to deny attorneys’ fees on appeal. Bldg. Owners & Managers Ass’n v. City of Kansas City, 231 S.W.3d 208, 214 (Mo.App. W.D.2007). Accordingly, we remand to the circuit court for the determination of a proper award of appellate attorneys’ fees.

For the reasons stated above, we affirm the circuit court’s judgment and remand for a determination of appropriate appellate attorneys’ fees.

JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.

      . All statutory references are to RSMo 2000, as updated though the 2009 cumulative supplement.

      . We also reject the Expansion Authority's characterization at argument of sections 523.253 and 523.256 as creating a "safe harbor” for condemning authorities. The implication of this argument is that these statutes were intended to provide protections to condemning authorities. As is set out above, we believe the intent of the General Assembly in enacting these provisions was to protect property owners, not condemning authorities.

      . The Expansion Authority could have complied with section 523.253 by providing an “explanation with supporting financial data for its determination of the value.” However, it chose to include an appraisal with its offer, and therefore it was bound to comply with section 523.253.2(2).

      . Since the lack of good faith negotiations is an independent basis to affirm the judgment, we need not decide whether Ivanhoe was entitled to and received a “first option" to redevelop the property.

      . Both Brown-Caldwell and Ivanhoe filed motions pursuant to Special Rule XXIX of the Missouri Court of Appeals, Western District.


author: DANIEL E. SCOTT, Chief Judge.

text:
    Shirley HALL, Appellant, v. WAL-MART STORES EAST, LP, Respondent.
    No. SD 29938.
    Missouri Court of Appeals, Southern District, Division Two.
    April 30, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied May 21, 2010.
    Application for Transfer Denied June 29, 2010.

      Phillip J. Barkett, Jr., Cook, Barkett, Maguire & Ponder, L.C., Cape Girardeau, for Appellant.
    Patrick R. Douglas, Blanton, Rice, Nic-kell, Cozean & Collins, LLC, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

Shirley Hall won a slip-and-fall jury verdict against Wal-Mart, but challenges the pretrial determination of her medical expenses under § 490.715.5(2), a statute that

creates a “rebuttable presumption” that “the dollar amount necessary to satisfy the financial obligation to the health care provider” represents the value of the medical treatment rendered. However, section 490.715.5(2) also allows the trial court, upon the motion of any party, to determine the value of the medical treatment “based upon additional evidence, including but not limited to” “[t]he medical bills incurred by a party.”

Berra v. Danter, 299 S.W.3d 690, 696-97 (Mo.App.2009). Finding no merit to Hall’s sole point on appeal, we affirm the judgment.

Legal and Procedural Background

Prior to trial, Hall furnished her medical bills and affidavits per § 490.525. Wal-Mart moved for a § 490.715.5(2) determination. Each party filed written suggestions and a hearing was held. The relevant figures were these:

$12,457.21 — Total medical bills.
$4,838.91 — Medicare payments.
$4,931.95 — Federally mandated write-offs.
$7,525.26 — Total bills less mandated write-offs.

The trial court ruled that $7,525.26 was the limit of medical bills to be submitted to the jury. At trial, the jury found Wal-Mart 100% at fault and awarded Hall $10,000 in damages.

“Interplay” Between § 490.715.5 and § 490.525

“The issue before this court,” urges Hall, “concerns the interplay between RSMo § 490.715.5 and RSMo § 490.525.” Her sole point claims the trial court “incorrectly interpreted RSMo § 490.715.5(2) as limiting the amount of damages that [Hall] was entitled to submit to the jury despite evidence, in the form of affidavits under RSMo § 490.525, which rebutted the presumption granted under RSMo § 490.715.5(2) upon which the trial court relied.” Her argument in this regard can be summarized as follows:

1. Hall submitted affidavits, with her medical bills, stating that the charges were reasonable.
2. Since Wal-Mart filed no counter-affidavits, Hall’s affidavits were sufficient under § 490.525.2 “to support a finding ... that the amount charged was reasonable.”
3. From this, Hall essentially argues that § 490.525.2 compelled the trial court to accept those billed charges, and no lesser figure, as her medical treatment’s “value” under § 490.715.5(2).

Hall’s logic fails for several reasons. First, some of her affidavits make no mention of the charges or their reasonableness, and some of her charges have no affidavit at all. Second, although § 490.525 permits a court or jury to find in accordance with an affidavit, it does not so require. As relevant here, § 490.525 simply “allows proof by affidavit that an amount charged for services rendered was reasonable.” Lester E. Cox Medical Centers v. Richards, 252 S.W.3d 236, 239 (Mo.App.2008). Third, the “reasonableness” of Hall’s medical bills first and foremost is an issue of evidentiary foundation. Unreasonable medical charges almost certainly would not be relevant, admissible, or something Hall could recover even if § 490.715.5 were not in play.

Hall’s attempt to blend § 490.525 and § 490.715.5 concepts fails. The lack of counter-affidavits may have allowed the trial court to consider Hall’s medical bills, but did not end the § 490.715.5 analysis.

Unpreserved Arguments

Hall’s other arguments do not involve “the interplay between RSMo § 490.715.5 and RSMo § 490.525” or otherwise relate to the point relied on, and thus are not properly before us. “Arguments raised in the argument portion of the brief only and not included in the point relied on are not preserved for appeal.” Sexton v. Omaha Property and Cas. Ins. Co., 231 S.W.3d 844, 846 n. 2 (Mo.App.2007). Ex gratia review satisfies us that no such argument merits relief or further discussion.

Conclusion

We deny Hall’s sole point and affirm the judgment.

LYNCH, P.J., and McGHEE, Sp.J., concur.

      . Unless otherwise indicated, statutory references are to RSMo (Cum.Supp.2008).

      . Subsections 2, 3, and 4 of § 490.525 state:
      2. Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.
      3. The affidavit shall:
      (1) Be taken before an officer with authority to administer oaths;
      (2) Be made by the person or that person's designee who provided the service;
      (3) Include an itemized statement of the service and charge.
      4.The party offering the affidavit in evidence or the party's attorney shall file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least thirty days before the day on which evidence is first presented at the trial of the case.

      .In relevant part, § 490.715.5 provides that:
      (1) Parties may introduce evidence of the value of the medical treatment rendered to a party that was reasonable, necessary, and a proximate result of the negligence of any party.
      (2) In determining the value of the medical treatment rendered, there shall be a rebut-table presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. Upon motion of any party, the court may determine, outside the hearing of the jury, the value of the medical treatment rendered based upon additional evidence, including but not limited to:
      (a)The medical bills incurred by a party;
      (b) The amount actually paid for medical treatment rendered to a party;
      (c) The amount or estimate of the amount of medical bills not paid which such party is obligated to pay to any entity in the event of a recovery.

      . The parties seem to agree that Hall's medical providers could collect only what they were paid by Medicare and any applicable supplement, and that the gap between the Medicare payment ($4,333.91) and the trial court's valuation ($7,525.26) involved a Medicare supplement.

      . Later, this was increased to $7,553.53 to cover additional pharmacy charges.

      . Indeed, Hall's sole point violates Rule 84.04(d) and arguably preserved nothing for appellate review. We have exercised our discretion to consider the point in light of Hall’s argument about it, but her other arguments are too different from her point for such treatment.