author: GEORGE W. DRAPER, III, Judge.

text:
    STATE of Missouri, Respondent, v. Darold WALKER, Appellant.
    No. ED 93101.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 31, 2010.

      Maleaner R. Harvey, St. Louis, MO, for Appellant.

      Shaun J. Mackelprang, Jayne T. Woods, Jefferson City, MO, for respondent.
   GEORGE W. DRAPER, III, Judge.

Darold Walker (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury found him guilty of domestic assault in the first degree, Section 565.072 RSMo (2000), and armed criminal action, Section 571.015. The trial court sentenced Appellant as a prior and persistent offender and as a prior domestic violence offender to concurrent terms of twenty-five years’ imprisonment. Appellant raises two allegations of error, claiming the trial court abused its discretion in admitting evidence of prior acts of violence and plainly erred in sentencing him as a prior domestic "violence offender. We affirm the judgment as modified.

“This Court views the evidence and makes all reasonable inferences therefrom in the light most favorable to the verdict.” State v. Wilson, 256 S.W.3d 58, 62 (Mo. banc 2008). There is no dispute regarding the sufficiency of the evidence.

Appellant and G.H. (hereinafter, “Victim”) previously lived together and have a sixteen-year old child. While no longer in a relationship with one another, Appellant continued to see Victim four or five times per month while he visited with another member of Victim’s household.

On March 24, 2007, Appellant visited the other member of Victim’s household and began drinking. When Victim returned home later that evening, Appellant wanted her to leave with him. Victim refused. Appellant then struck her in the back of her neck with a pistol while cursing at her. After being hit, Victim fell to the floor, suffering severe injuries.

Victim was diagnosed with bilateral lamina fractures on the fifth and sixth cervical vertebrae. There was a bone fracture on her left side which imploded into the spinal canal and onto the spinal cord. At the same level, there was a large disk herniation which imploded and touched the spinal cord from the front. As a result, Victim lost all function in her legs and most of her left arm. Her injuries impaired all of her bodily functions from her neck down, including walking, digestion, sensations, respiration, bowel and bladder activity, and sexual functions.

The State charged Appellant as a prior and persistent offender and a prior domestic violence offender. Following a jury trial, Appellant was found guilty. The trial court sentenced Appellant as a prior and persistent offender and as a prior domestic violence offender, to concurrent terms of twenty-five years’ imprisonment. Appellant brings this two point appeal.

In his first point on appeal, Appellant claims the trial court abused its discretion in admitting Victim’s video taped deposition, describing prior acts of violence committed by Appellant upon her. Appellant alleges this evidence was not logically and legally relevant to prove he committed domestic assault in the first degree and armed criminal action.

The trial court is vested with broad discretion in the admission or exclusion of evidence. State v. Mabry, 285 S.W.3d 780, 785 (Mo.App. E.D.2009). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. This Court will not disturb the trial court’s ruling absent a clear abuse of that discretion and “the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Thurman, 272 S.W.3d 489, 495 (Mo.App. E.D.2008).

Evidence of a defendant’s prior criminal acts is not admissible unless it has a legitimate tendency to establish directly the defendant’s guilt for the crime charged. State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008). “[E]vidence of prior criminal acts may be admissible for alternative purposes such as establishing motive, intent, absence of mistake or accident, a common scheme or plan, or the identity of the person charged with the commission of the crime on trial.” Thurman, 272 S.W.3d at 495; Vorhees, 248 S.W.3d at 588. “Evidence of prior bad acts is also admissible if offered to rebut the [defendant’s] volunteered assertions from the stand that he or she has never been guilty of any misconduct.” Vorhees, 248 S.W.3d at 588 (internal citation omitted).

In this case, Victim’s deposition was admitted to establish Appellant’s intent and to rebut his claim that Victim’s injuries were the result of a simple accident. Appellant claimed Victim fell accidentally, suffering her extensive injuries when she hit her head on a cabinet; he testified he did not intend to hurt her. “In cases of murder or assault, prior misconduct by the defendant toward the victim is logically relevant to show motive, intent, or absence of mistake or accident.” State v. Tolliver, 101 S.W.3d 313, 315 (Mo.App. E.D.2003). The trial court did not abuse its discretion in admitting Victim’s deposition testimony since Appellant placed his intent at issue. Point denied.

In his second point on appeal, Appellant avers the trial court plainly erred in sentencing him as a prior domestic violence offender pursuant to Section 565.063.1. Appellant believes the State failed to prove he pleaded to or was found guilty of one domestic assault offense within the past five years.

Since Appellant never raised this issue in his motion for new trial, this point is not preserved for appeal. Rule 30.20 authorizes this Court to review “plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” It is within the Court’s discretion to review an unpreserved point for plain error. State v. Tisius, 92 S.W.3d 751, 767 (Mo. banc 2002). Plain error review is appropriate when there are allegations that the trial court improperly sentenced a defendant as a prior or a persistent offender. State v. Nesbitt, 299 S.W.3d 26, 28 (Mo.App. E.D.2009). “A sentencing court exceeds its jurisdiction when it imposes a sentence in excess of the maximum allowed by law.” State v. Peeples, 288 S.W.3d 767, 776 (Mo.App. E.D.2009).

The State concedes Appellant was sentenced improperly as a prior domestic violence offender. However, the State argues this is inconsequential as Appellant was charged properly as a persistent domestic violence offender. The State claims Appellant appreciated the State was seeking an extended term of imprisonment, and Appellant knew he was convicted of two previous domestic assaults against Victim. Further, the State avers the trial court’s sentence is a proper enhancement based upon Appellant’s status as a persistent domestic violence offender.

A persistent domestic violence offender is “a person who has pleaded guilty to or has been found guilty of two or more domestic assault offenses, where such two or more offenses occurred within ten years of the occurrence of the domestic assault offense for which the person is charged.” Section 565.063.1(3). A prior domestic violence offender is “a person who has pleaded guilty to or has been found guilty of one domestic assault offense, where such prior offense occurred within five years of the occurrence of the domestic assault offense for which the person is charged.” Section 565.063.1(4).

In this case, the charging document alleged Appellant committed two prior domestic assault felonies within the past ten years; neither offense occurred within the past five years. Further, the record demonstrates Appellant’s persistent domestic violence offender status was proven by the State at trial, including Appellant’s testimony at trial that he had two convictions of domestic assault against Victim. Even though the word persistent was not used in the charge, there was sufficient notice given to permit sentencing as a persistent offender. See State v. Vann, 7 S.W.3d 407, 411 (Mo.App. W.D.1999).

The jury found Appellant guilty of first-degree domestic assault, Section 565.072. Section 565.063.14 authorized the trial court to impose “term of imprisonment for a class A felony which term shall be served without probation or parole if the court finds the offender is a persistent domestic violence offender.... ” The trial court appropriately sentenced Appellant pursuant to this statutory requirement even though the “prior domestic violence offender” box on the judgment was checked.

However, this Court recognizes there are “other possible ramifications of Appellant’s sentence as a [prior domestic violence] offender, such as the possibility of it affecting his future parole.” State v. McGee, 284 S.W.3d 690, 713 (Mo.App. E.D.2009)(quoting State v. Halk, 955 S.W.2d 216, 217 (Mo.App. E.D.1997)). “To be entitled to vacation of sentence and remand, where the irregularity concerns determination of prior offender status, actual prejudice must be established.” State v. Madison, 997 S.W.2d 16, 22 (Mo. banc 1999).

Appellant fails to prove actual prejudice. His undisputed status as a prior and persistent offender removed the opportunity for him to be sentenced by the jury. Further, the sentence imposed by the trial court did not exceed the maximum punishment available for a class A felony.

This Court may correct Appellant’s sentence rather than remanding the case for resentencing. State v. Morris, 285 S.W.3d 407, 414 (Mo.App. E.D.2009); Halk, 955 S.W.2d at 217. Accordingly, this Court will correct the judgment and sentence to reflect Appellant’s status as a persistent domestic violence offender rather than a prior domestic violence offender. Rule 30.23. Appellant’s second point is granted in part and denied in part.

The trial court’s judgment is affirmed as modified.

ROY L. RICHTER, C.J., and GLENN A. NORTON, P.J., concur.

      . All further statutory references herein are to RSMo (2000), unless otherwise noted.

      . Sentencing for either a persistent domestic violence offender or a prior domestic violence offender who pleaded or was found guilty under Section 565.072 exposes that person to an enhancement of his or her sentence to a class A felony. Section 565.063.14.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William D. DAVIS, Appellant/Movant, v. STATE of Missouri, Respondent.
    No. ED 94040.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 31, 2010.

      Brocea Smith, St. Louis, MO, for appellant.
    Chris Koster, Jamie P. Rasmussen, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

William D. Davis appeals from the motion court’s judgment denying his motion to reopen his postconviction case. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2010).


text:
    ARCH COAL, INC., et al., Respondents, v. LEXINGTON INSURANCE COMPANY, et al., Appellants.
    Nos. ED 93790, ED 93828.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Susan Ford Robertson, Kansas City, MO, Alan K. Goldstein, James L. Stock-berger, Jeffery T. McPherson, St. Louis, MO, Richard H. Nicolaides, Jr., Charles A. Hafner, Agelo L. Reppas, Chicago, IL, for appellants.
    Dennis E. O’Connell, Elizabeth C. Carver, St. Louis, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

In this declaratory-judgment action, the defendants, Lexington Insurance Company and Continental Casualty Company, each appeal the summary judgment entered by the Circuit Court of St. Louis County in favor of the plaintiffs, Arch Coal, Inc., Thunder Basin Coal Company, Michael Hannifan, and Kevin Hampleman. We have consolidated the appeals. Finding no error, we affirm.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision. The trial court’s judgment is affirmed. Rule 84.16(b)(5).


text:
    Ivan DIZDAR, Appellant, v. CITY OF ST. LOUIS, Respondent.
    No. ED 93721.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Thomas A. Connelly, St. Louis, MO, for appellant.
    Christine Hodzic, St. Louis, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Ivan Dizdar appeals from the trial court’s judgment in this action for tortious injury to a structure. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(1).


text:
    Darryl K. NELSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93053.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 31, 2010.
    Margaret M. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before ROY L. RICHTER, C.J., GLENN A. NORTON, J. and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Darryl K. Nelson appeals the judgment denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. We find the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


author: ROY L. RICHTER, Chief Judge.

text:
    Marilyn WILLIAMS, Claimant/Appellant, v. UNITED HEALTHCARE SERVICES, INC., and Division of Employment Security, Respondents.
    No. ED 95017.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 31, 2010.
    Marilyn Williams, St. Louis, MO, pro se.
    Michael Pritchett, Jefferson City, MO, for Respondenb-Div. of Empl. Sec.
    Judith I. Schulte, St. Louis, MO, for Respondent-United Healthcare.
   ROY L. RICHTER, Chief Judge.

Marilyn Williams (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. After an appeal to the Appeals Tribunal, which affirmed the deputy, Claimant filed an application for review with the Commission. The Commission affirmed the Appeals Tribunal’s decision. Claimant has now filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

The unemployment statutes require a claimant to file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. Section 288.210, RSMo 2000. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on May 12, 2010. Therefore, the notice of appeal to this Court was due on or before June 11, 2010. Sections 288.200.2, 288.210. Claimant mailed her notice of appeal to the Commission on June 12, 2010. Under section 288.240, RSMo 2000, any notice of appeal is deemed filed “as of th‘e date endorsed by the United States post office on the envelope.... ” The postmark on Claimant’s envelope was June 12, 2010. As a result, Claimant’s notice of appeal is untimely.

Unemployment benefits are solely a creature of statutory provision. Martinez v. Lear-Ed, Inc., 155 S.W.3d 809, 810 (Mo.App. E.D.2005). The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

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

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


author: PER CURIAM:

text:
    Samantha JOHNSON, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71884.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.

      Samuel I. McHenry, Kansas City, MO, for appellant.
    Larry R. Ruhmann, Jefferson City, MO, for respondent.
    Before: JAMES M. SMART, JR., P.J., MARK D. PFEIFFER, and CYNTHIA L. MARTIN, JJ.
   PER CURIAM:

Samantha Johnson appeals the Labor and Industrial Relations Commission’s (hereinafter “Commission”) determination that she is disqualified from unemployment benefits under section 288.050. She argues that the Commission erred in finding that she voluntarily left her employment. She contends the record shows that she was discharged (and that she did not, as the Commission believed, voluntarily resign her employment) and contends further that she was not guilty of disqualifying misconduct. Because the record does not show that she voluntarily resigned her employment, and because the record also does not show that Ms. Johnson was guilty of disqualifying misconduct, we reverse the judgment of the Commission.

Background

Samantha Johnson was an hourly employee for approximately seven months in the packaging department of a plant operated by Farmland Foods, Inc. She started work in October 2008. The last day she performed services for Farmland was Tuesday, May 26, 2009. On Wednesday, May 27, and Thursday, May 28, Johnson was absent from work. She reported that her car had broken down and was being repaired, which resulted in transportation and child care problems.

On both days, Johnson called prior to her shift to report that she could not come into work. She did not get an answer, but left a message. Johnson’s shift was from 7 a.m. to 3:30 p.m. Johnson is a single mother residing in the far southeast portion of Kansas City. The record does not show where the Farmland plant is located.

Johnson’s transportation issues were slightly more complicated than merely traveling to work. Because her daycare did not start accepting children until 7:30 a.m., yet her shift at work started at 7:00 a.m., she would ordinarily take her children to another person’s house rather than directly to day care. She then drove to work to try to be there for the start of her shift at 7:00. Because her car was out of commission, she claimed, she was unable to come in on May 27 and 28.

Johnson testified that she also called Farmland at 1:30 p.m. on May 28, and spoke to Sandra in the human resources department to see “if she still had a job.” She said that, in that phone conversation on the 28th, Sandra told her that she “wouldn’t have a job” if she did not “come in then at that moment.”

Johnson said she did not go into work after her 1:30 p.m. phone call to Farmland because she “just couldn’t do it” and “couldn’t make it.” She said that if she “could have” she “would have.” The next day, Johnson picked up her final paycheck.

Johnson applied for unemployment benefits. Farmland protested this claim. On August 31, 2009, the Division of Employment Security (“Division”) determined that Johnson was disqualified from benefits because she “left work with the employer voluntarily without good cause attributable to the work or the employer.”

Johnson appealed to the Division’s Appeals Tribunal, which conducted a telephone hearing on September 30, 2009. Johnson testified, as did Farmland’s human resources manager. Johnson testified as to her version of the events. The Farmland representative testified that Johnson called in on May 27 and 28 to notify of her absence. Someone in human resources entered in Farmland’s records that the absence in each case was for “personal business.” The only other relevant testimony was that the absences on May 27 and 28 put Johnson at “13 points” and “15 points” respectively. The human resources manager said that fifteen points is “termination on our attendance program.” No testimony was provided as to the functioning of the attendance policy. The Appeals Tribunal issued its decision, again finding that Johnson was disqualified from benefits because she resigned her employment voluntarily.

Johnson appealed to the Labor and Industrial Relations Commission, which affirmed and adopted the Appeals Tribunal’s decision, finding it to be “fully supported by the competent and substantial evidence on the whole record and ... in accordance with the relevant provisions of the Missouri Employment Security Law.”

Johnson now appeals to this court.

Standard of Review

An appellate court may reverse or otherwise modify the Commission’s decision only if it finds: “(1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.” Section 288.210. In the absence of fraud, the Commission’s factual findings are conclusive if supported by competent and substantial evidence. Section 288.210; Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). Whether an employee terminated employment voluntarily or was discharged is generally a factual determination. E.P.M. Inc. v. Buckman, 300 S.W.3d 510, 517 (Mo.App.2009). However, the standard of review is de novo when the issue is whether the facts found by the Commission can, as a matter of law, be considered to constitute a voluntary departure from employment. Moore v. Swisher Mower & Mach. Co., 49 S.W.3d 731, 738 (Mo.App.2001) (quotation omitted); see also Shields v. Proctor & Gamble Paper Prods. Co., 164 S.W.3d 540, 543 (Mo.App.2005). Similarly, when the issue is whether the claimant was guilty of “misconduct,” the standard of review is de novo as to whether the facts found by the Commission constitute misconduct. Williams v. Enter. Rent-A-Car Shared Servs., LLC, 297 S.W.3d 139, 142 (Mo.App.2009).

In examining the record, we “must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, 1. e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton, 121 S.W.3d at 222-23. The reviewing court is not to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Id. at 223. Instead, we must objectively review the entire record, including evidence and inferences drawn therefrom that are contrary to, or inconsistent with, the Commission’s award. E.P.M. Inc., 300 S.W.3d at 517.

Discussion

The Commission found that Johnson’s transportation problems were a personal matter, and therefore she “left her work voluntarily” and was disqualified from receiving benefits under section 288.050. That section provides that a claimant shall be disqualified if “the claimant has left work voluntarily without good cause attributable to such work or to the claimant’s employer.” Section 288.050.1(1). The phrase “left work voluntarily,” as used in the statute, actually means “left employment voluntarily,” or “voluntarily quit employment.” The “leaving work” it refers to is not that of an employee sneaking out early at the end of the day, or that of an employee being tardy or taking an unscheduled absence for a day with intent to return to work the next day. The “leaving work” it refers to is the kind of “leaving work” we usually call a resignation or an abandonment of a job or a “quit.” In other words, the intent of the subsection is to provide that a person cannot voluntarily resign and still draw unemployment compensation benefits. It also recognizes an exception: the circumstance in which the employee has resigned because of “good cause attributable to the work or the employer.”

When an employee has resigned, the employee is not eligible for benefits unless the employee shows that she resigned for good cause attributable to the work or the employer. Johnson’s argument, in essence, reveals that the Division is misinterpreting the phrase “left work voluntarily” to mean that she missed scheduled work. Johnson acknowledges that she missed scheduled work, but argues that the record here shows that she was terminated and did not voluntarily resign and was not guilty of misconduct.

No doubt the Division is swamped with claims, but there is a need to obtain sufficient detail in a hearing to allow not only a ruling but also adequate review by the Commission and by this court. Reno v. Tyson Poultry, Inc., 204 S.W.3d 347, 352 (Mo.App.2006). In this case, we know next to nothing about Farmland’s attendance policy. We know that Johnson accumulated enough absences to be dismissed under the policy. Johnson, an hourly employee who resided in far southeast Kansas City, notified Farmland on May 27 and 28 before her shift began that she would be absent due to her inoperable vehicle. She stated that when she called at 1:30 p.m. on May 28, she was told that she would be discharged if she did not come in then “at that moment.” She said she was unable to do so. She understood she was terminated.

The employer’s evidence consisted solely of the fact that Johnson had reached the mark for dismissal because her absences on May 27 and 28 brought her to “fifteen points,” which is termination. There was no explanation as to how the point system works, that is, as to how points are accumulated, or specifically of what Johnson had been informed or when the policy was communicated to Johnson.

The Commission regarded the termination of Johnson’s employment for violation of the attendance policy as unequivocally and categorically a “voluntary resignation.”

Absenteeism

It is, however, quirky to use the phrase “voluntary resignation from employment” to describe an employee’s absence due to some adverse circumstance, after the employee has conscientiously provided notice of the absence, purports to want to be at work, and claims constraint from attendance by circumstances such as sickness or some other difficulty. We understand the phrase “voluntary quit” and “abandonment” when it is applied to an employee intentionally resigning from a job, especially when the employee implies that he or she is “fed up” with the job. It is not so easily understood in the context of an absent employee whose actions have indicated a desire to keep the job. This distinction should not be a surprise. See, e.g., Miller v. NuCrown, Inc., 238 S.W.3d 233, 235 (Mo.App.2007) (termination was not voluntary “abandonment” of job when claimant faithfully called in notification of illness but was fired for absence nevertheless).

The voluntary resignation idea may have arisen from the fact that sometimes a worker will simply stop coming to work without notice, effectively resigning and abandoning the job. See, e.g., Ewing v. SSM Health Care, 265 S.W.3d 882 (Mo.App.2008); Williams v. Dutchtown Care Ctr., Inc., 313 S.W.3d 690 (Mo.App.2010). But the reality is that many times absenteeism is caused by things that are unwel-comed and uncontrolled by the worker. See, e.g., Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594 (Mo. banc 2008) (employee needed emergency medical treatment in connection with ovarian cancer); Moore, 49 S.W.3d 731 (employee arrested and detained for a charge that was later dismissed). In such cases it defies the ordinary meaning of words to call the dismissal a “voluntary quit.” See Difatta-Wheaton, 271 S.W.3d at 598; Moore, 49 S.W.3d at 738.

Difatta-Wheaton: Getting the Statute Right

In Difatta-Wheaton, the Court noted that the public policy surrounding the employment security law, Chapter 288, is to set aside “unemployment reserves to be used for the benefit of persons unemployed through no fault of their oum,” because “[ejconomic insecurity due to unemployment is a serious menace to health, morals, and welfare of the people of this state resulting in a public calamity.” 271 S.W.3d at 596 (quoting section 288.020.1) (emphasis added). “In other words, the General Assembly sought to provide help to those who were not themselves to blame for their unemployment and, in turn, to have courts construe the specific provisions of Missouri’s employment security law accordingly.” Id. at 598. The employment security law, of course, has nothing to do with the employer’s right to discharge an employee. It has to do only with the issue of benefits in connection with the loss of the job.

The Court in Difatta-Wheaton was dealing only with the issue of benefit qualification. The Court considered the import of the word “voluntarily” in the language of section 288.050 by taking into account the general statement of purpose expressed above (to benefit persons unemployed “through no fault of their own”). Id. The Court noted that the meaning of the word “fault” is “responsibility for wrongdoing or failure,” and noted that “voluntarily” means “proceeding from the will: produced in or by an act of choice.” Id.

The Court in Difatta-Wheaton had before it the case of a claimant terminated because she missed her scheduled return from an authorized medical leave. Id. at 595. She did not return to work on May 29 (the day she was scheduled to return) because of sudden excessive bleeding related to her ovarian cancer. Id. At 7:30 a.m. that morning, she left a message with her supervisor and promptly provided documentation from her doctor (by fax transmission and hand delivery) indicating her condition and stating that the physician was asserting that she was not physically ready to return to work. Id. The employer terminated her due to the absences shortly thereafter. Id. She applied for unemployment benefits. Id. The Deputy, the Appeals Tribunal, and the Commission all ruled in that case, as they had in many others, that she had voluntarily quit her employment. See id.

The Court, after considering the plain meaning of the words “voluntarily” and “fault,” stated:

It cannot be said that [the claimant] made a choice or was otherwise responsible for her ovarian cancer, its complications, or the timing of their occurrence. And, she took the steps necessary to preserve her employment given these uncontrollable factors. It would be inconsistent with the statutory language of “no fault” and “voluntarily” to hold otherwise.

Id. at 599. The Court, as we have noted, was not saying that the employer had no right to terminate the employee in that case. The Court was dealing only with the issue of whether the claimant qualified for unemployment benefits.

Rejecting the Unrealistic Terminology

The Division dismisses the significance of Difattar-Wheaton as “limited to situations involving a life-threatening medical condition.” We do not agree with that characterization. We agree that Difattar-Wheaton addresses cases in which the problems are not under the control of the worker so that the worker is not at fault. But the Court’s holding reversing the Commission is based on, and flows from, the statutory construction — the language analysis. We would have thought that the Division might want to note the Supreme Court’s analysis and understanding of the concepts of fault and voluntariness, because the Court’s analysis was not limited to cases of ovarian cancer. In our view, the Supreme Court was rejecting the unrealistic use of language in determining whether a termination for absences can be considered a “voluntary quit.”

The plain meaning of the words “fault” and “voluntariness” simply cannot always be stretched as far as the Division sometimes seems to want to stretch them. It took a fact scenario like that in Difatta-Wheaton to give the Court the perfect vehicle to address the matter. The truth (and the common sense of it) is that not every failure to show up for work is an intentional rejection of the job.

Ironically, the Division cites Difatta-Wheaton for the proposition that the claimant “voluntarily caused her own unemployment.” This would suggest that despite the plain language of the Court’s opinion, the Division clings to the view that absenteeism equals a “voluntary quit” (except in the rare case of a life-threatening cancer condition). If the Division is “pigeonholing” Difatta-Wheaton as applicable only to life-threatening cancer cases- — as simply a unique exception to the per se rule that absenteeism equals voluntary resignation — and are ignoring the analysis of the case, such pigeonholing "will perpetuate the unfortunate semantical confusion about the statutory terms.

We believe the Court was effectively suggesting that the Division discard the practice of regarding absence as always involving a voluntary resignation. Of course, there will always be some voluntary quits, and some will be associated with a worker simply not showing up without warning, never to be seen again; but not every discharge for absence can be called a voluntary quit in a culture in which words actually have meaning. Perhaps the Division, in conducting a hearing, might want to consider such matters as whether the claimant’s actions (such as failing to call in an absence) demonstrate that the claimant, in failing to provide notice, was effectively expressing an intentional rejection of the job.

Attendance Policies

Many employers allow a certain number of unscheduled absences for personal reasons before they discharge the worker. Because life has its difficulties, such a policy is not only practical from the employer’s point of view, but also better for the public welfare and more consistent with the public policy underlying the unemployment compensation law.

The General Assembly has recognized the merit of reasonable attendance policies in section 288.050.3 by amending that subsection to allow violation of attendance policies to be considered to be “misconduct” disqualifying the claimant when the claimant fails to rebut the presumption of misconduct. We suppose that the kind of misconduct that occurs in the case of excessive absence is conduct that can ordinarily be described as “negligence in such degree or recurrence as to manifest culpability.” See section 288.030.1(23). In some cases, perhaps, one could also call it “wanton ... disregard for the employer’s interests.”

The 2006 amendment to 288.050.3 provides that violation of an employer’s attendance policy may create a “rebuttable presumption” of misconduct:

3. Absenteeism or tardiness may constitute a rebuttable presumption of misconduct, regardless of whether the last incident alone constitutes misconduct, if the discharge was the result of a violation of the employer’s attendance policy, provided the employee had received knowledge of such policy prior to the occurrence of any absence or tardy upon which the discharge is based.

The General Assembly recognized that it is difficult for the employer to prove that the claimant was guilty of fault in being absent if the claimant contends otherwise because the employer lacks access to the pertinent information. The legislature decided that once the employer has established that there is an attendance policy and proves that the claimant had notice of the policy at the time of all the pertinent absences, and that the claimant still exceeded the allowed absences, the burden shifts to the claimant to show that the claimant was not guilty of “misconduct.” If the claimant manages to persuade the hearing officer that he or she was the victim of circumstances beyond his or her control, the claimant may prevail. The claimant bears the risk of non-persuasion.

Here, Johnson showed that her nonattendance on May 27 and 28 was due to a transportation problem. We do not have knowledge of the circumstances of any other absences. Transportation to work, of course, is generally the responsibility of the employee. Woolridge v. Labor & Indus. Relations Comm’n, 643 S.W.2d 317, 319 (Mo.App.1982). Nevertheless, the employee’s failure to report in as scheduled due to transportation problems does not necessarily or automatically in the abstract mean the employee is guilty of misconduct. See, e.g., Williams, 297 S.W.3d at 143-44. On the other hand, if an employee frequently fails to honor scheduled work times in violation of the employer’s policy, that fact may raise a presumption that the employee is “negligent in such degree or recurrence as to manifest culpability,” or is “wantonly disregarding the interests of the employer.”

After casually skipping work (carelessly using up their allotted absences) and thereby putting themselves in a position where they are then more vulnerable to the difficulties of life such as transportation, sickness, and child care difficulties, employees cannot expect, upon termination, to draw unemployment compensation as though they were terminated through no fault of their own. Section 288.050.3. At the same time, we also recognize that the employer wishing to avoid unemployment claims should have a reasonable attendance policy that is communicated clearly to the employee so that the conscientious employee has appropriate warning and a reasonable opportunity to avoid termination.

The recent amendments suggest that the General Assembly has been attempting to direct the analysis away from the unrealistic use of the concept of “voluntary quit” and is seeking to show a preference for “misconduct” analysis in cases in which the employee purports to want to remain employed but is absent.

A rule that absenteeism is always a voluntary quit tends to be efficient and tidy to administer, and helps protect the financial soundness of the compensation fund, but also to a significant extent defeats the expressed purpose of the fund (to compensate those losing work through no fault of their own).

The word “voluntary” is not defined in Chapter 288. Therefore, we assume the word was intended to have its ordinary meaning. Section 1.090. The concept of “voluntary quit” should therefore, we submit, presumably be reserved for those cases in which the employee not only does not show up, but also impliedly rejects the employment and the employer by some action such as failing to provide notification of the absence.

The word “misconduct,” in contrast to the word “voluntary,” is defined in Chapter 288. Section 288.030.1(23). We know from that definition that “misconduct” can include negligence that is of such a degree or recurrence as to be culpable (in other words, conduct in which we recognize fault — fault to which responsibility is assigned). Id. For cases in which the employee is under a reasonable attendance policy and purports to be trying to keep the job, a “misconduct” analysis based on recurring negligence amounting to culpability would seem to make more sense. Difatta-Wheaton, 271 S.W.3d at 596-97. The issue would be whether the degree of fault amounts to sufficient culpability to warrant a denial of benefits. A misconduct analysis allows the circumstances of the absences to be considered, and the statutory presumption shifts the risk of non-persuasion to the claimant under 288.050.3.

We understand that our courts have not always been receptive to the idea that repetitive unexcused absences constitute misconduct. See, e.g., Cubit v. Accent Mktg. Servs., LLC, 222 S.W.3d 277 (Mo.App.2007); Williams, 297 S.W.3d at 143 (declining to accommodate an argument based on the statutory presumption because the Commission, “as fact finder,” did not base its finding on that provision). But, as we have noted, to try to make a case of negligent, excessive absence into a voluntary resignation case does not seem to be open to us under the plain meaning of the word “voluntary” in the statute. And there is a significant problem with always treating absences as a resignation: that approach does not differentiate on the basis of fault. It sweeps away the claim of the conscientious people (like the claimant in Difatta-Wheaton) in the same way as it strikes at claims of the wantonly indolent. We do not think the statute was ever so designed.

Not a Case of Voluntary Quit

Here, the claimant called in notification of absence before her shift each day, and when she called to check on the status of her job, she was told that she then had accumulated fifteen points and that she was terminated unless she reported in at that moment.

We assume, because the employer apparently treated all non-work-related absences the same, that this was a so-called “no-fault” attendance policy (actually more accurately called a “no excuses” policy), meaning that all absences for non-work-related reasons are treated the same, whether health, transportation, child care, bereavement, or other. We do not know when the respective points in this case were accumulated other than on May 27 and 28.

The Commission further argues that this was a voluntary quit because Johnson had access to other means of transportation, perhaps referring to the fact that some employees may have friends or relatives with cars or the fact that taxicabs and buses exist. It is true that she was able to show up the day after her termination to pick up her paycheck. This does not prove that she had immediate transportation the day before, May 28, when told to come in “at once” to avoid being fired, and accordingly it does not prove that she was rejecting the job by choosing not to come in. In other words, it does not prove that she voluntarily resigned.

The argument that she “had transportation” (which may refer to an assumption as to the availability of taxicabs and buses) cannot be persuasive because our record is void of information as to the location of the plant. The argument also misses the point to the extent that it suggests that an absence of two days due to transportation difficulties, with the employee providing conscientious notification to the employer, and the failure on the second day to come in “at once” upon notification, in the absence of other information, is necessarily a voluntary resignation rather than a discharge. It would look like a “discharge” to any ordinary person using language in an ordinary way.

The Commission argues alternatively that even if she did not have other transportation, this was a voluntary quit because Johnson would not have come into work until her car was fixed. Of course, there was no evidence that her termination was based on the anticipated schedule for her car to be fixed, but was based on her accumulation of points and on her failure to come in “at that moment.” In any event, this was not a case in which it was understood that it would take a certain length of time to fix her car, and in which she refused to make alternative transportation arrangements. The evidence does not show that Ms. Johnson resigned her employment.

Misconduct

The Division also argues alternatively that perhaps this case could have been considered a matter of possible “misconduct,” which would, if found to exist here, make Johnson ineligible to receive unemployment benefits under section 288.050.2.

Misconduct is defined as

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Section 288.030.1(23). Whether an employee is discharged for misconduct connected with work is a question of law that we review de novo. Williams, 297 S.W.3d at 142.

Despite the fact that the General Assembly had amended 288.050.3, the deputy’s determination in this case, which was adopted by the Commission, never discussed the issue of misconduct. Its sole finding was that Johnson’s “lack of transportation was a personal matter” and that she “voluntarily left her work.” Nevertheless, the employer was entitled to prove and argue before the Appeals Tribunal the issue of misconduct. It did not take significant advantage of that opportunity in that forum, but in any event, we will uphold a decision of the Commission if the Commission clearly got the right result, but for the wrong reason. See Firmer, 298 S.W.3d at 584. Therefore, we consider the record to evaluate whether it shows that Johnson was discharged for misconduct.

Although absenteeism can, under 288.050.3, raise a rebuttable presumption of misconduct, absenteeism by itself is not necessarily misconduct. Moore, 49 S.W.3d at 739. The record in its present state is insufficient to show that Johnson was guilty of misconduct as defined in 288.030.1(23). It is obvious here that the employer did not create a “rebuttable presumption” of misconduct, because the employer did not establish that notice of the attendance policy was provided to the claimant and when the notice was provided.

Record

The entire record of the testimony of the human resources manager, the employer’s sole witness, is as follows:

* * *
Q. What is the last day the claimant performed work for the employer?
A. It appears ... that it would have been May 26, 2009.
Q. What hours did she work on that date?
A. It looks like ... approximately 7 a.m. to 3:30 p.m.
Q. Why didn’t she work May 27?
A. We show her attendance that she reported — she called in for personal business.
Q. Did she indicate what that personal business was?
A. If she was I can’t tell by looking at this attendance record, (sic)
Q. Then what occurred?
A. That put her at 13 points. And then she subsequently called in on May 28 for personal business and that put her to 15 points which is termination on our attendance program.
Q. You know what personal business was on May 28?
A. No, I don’t.
Q. What more would you like to tell me relevant to the claimant’s separation from work?
A. I don’t have anything [else] relevant to her separation....

The hearing officer (the “referee”) then asked each party whether they had “anything more that [either of them] wished to tell [her] today.” Both parties declined to offer anything further.

The referee said at the start of the hearing that “misconduct” could also be an issue in the hearing. The employer, however, made no attempt to prove misconduct. Because under 288.050.3 the employer has the burden of proof on the issue of misconduct, the employer naturally would have the burden of presenting evidence to either prove misconduct or to raise the rebuttable presumption. The claimant would then, if the presumption is raised, have the risk of non-persuasion in seeking to rebut the presumption.

Perhaps the human resources manager did not have anything else “relevant to the separation” or “anything more to tell” because the manager was accustomed to the procedure whereby all the employer had to say was that the employee was terminated for non-attendance for personal reasons, and that testimony alone would assure a ruling for the employer. The employer would be expected to know, however, that such limited information alone might not be enough, especially with regard to misconduct.

If the parties do not understand what facts are pertinent, the referee, of course, can make sufficient enquiry of the parties to determine the facts necessary to reach a conclusion. See, e.g., Smith v. Labor & Indus. Relations Comm’n, 656 S.W.2d 812, 817-20 (Mo.App.1983). Here, while the referee did not ask the human resources manager specific questions based on the statutory misconduct concepts, the referee did ask the employer: “What more would you like to tell me relevant to the claimant’s separation?” The employer declined to present any more facts related to the policy, the absences, and the employee’s knowledge of the policy. Then the employer again declined a second chance to state any facts that could either prove misconduct or raise a presumption of misconduct. Had the referee precluded an opportunity for the employer to develop a presumption of misconduct, we could consider, in fairness to the employer, remanding for further evidence. But that is not the case here.

Summary and Conclusion

The sparse record shows that Ms. Johnson purported to want to keep her job. She called in her absences on these two days. The fact that she accumulated too many points under the attendance policy does not by itself prove that she voluntarily resigned. She was discharged for excessive points under the attendance policy. It was error to determine that she voluntarily resigned her employment.

The record discloses very little information about Ms. Johnson’s absences. We know she was absent the two days of May 27 and 28, and that she claimed she could not get there. The employer did not present the facts necessary to prove misconduct or to create a presumption of misconduct pursuant to section 288.050.3. Because the record suggests this case involved a “no fault” attendance policy, and because we know very little about any absences other than those on May 27 and 28 (when the claimant was absent due to transportation difficulties), the evidence was insufficient to support a finding of misconduct.

The judgment of the Commission is reversed.

      . All statutory references are to the Revised Statutes of Missouri (RSMo) 2000, updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . This is seen from die very next sentence of the statute which uses the phrase "voluntarily quit employment” as synonymous with "left work voluntarily.” Section 288.050.1(1). Subsection .3 of the statute specifically addresses the matter of absenteeism and tardiness as it may relate to the concept of "misconduct.”

      . In many earlier cases involving excessive absences, the issue was approached as one of “misconduct” rather than as an issue of "voluntary quit.” See, e.g., Div. of Emp’t. Sec. v. Gardner-Denver Mach., Inc., 941 S.W.2d 13 (Mo.App.1997); Kelley v. Manor Grove, Inc., 936 S.W.2d 874 (Mo.App.1997); G.C. Servs. Ltd. P'ship, v. Labor & Indus. Relations Comm’n, 913 S.W.2d 411 (Mo.App. 1996). In those cases the ruling was typically in favor of the claimant. In 1997, the General Assembly, perhaps in response to such cases, amended 288.050 to recognize that absenteeism could rise to the level of “misconduct," but the amenders did not specify, as a practical matter, how the inquiry would be approached.

      . It should be obvious that an unreasonable attendance policy might not properly allow the attribution of any fault to the employee in connection with a discharge. Generally, one would expect an employer to have a "reasonable” policy because it is good business as well as a kindness to the employees to have such a policy.

      . In that case, the employer did introduce attendance records and the attendance policy. Cubit, 222 S.W.3d at 281. In any event, as noted in footnote 5 in Cubit, the 2006 revision of the statute was not in effect during the time in question in that case. Id. at 283, n. 5.

      . In Williams, the court declined to accommodate a misconduct argument based on the presumption, saying that the Commission, "as fact finder,” did not base its finding of misconduct on the presumption. 297 S.W.3d at 143. This court did not say what fact was found that precluded the argument. Ordinarily, of course, a respondent can argue that the Commission got the right result as a matter of law, and ask us to affirm, and we will, even if the Commission employed the wrong reason in reaching the right result. See Finner v. Americold Logistics, LLC, 298 S.W.3d 580, 584 (Mo.App.2009).

      .This, of course, would exclude absences that employers are compelled by law to accommodate. The practice of the Division in calling absenteeism cases a "voluntary quit” may have accelerated the trend by employers to have "no excuses” policies in that the employer can be confident that absenteeism cases will result in a denial of unemployment claims because they will be called "voluntary quits,” even when, in fact, that terminology is sometimes a perversion of the word "voluntary.”

      . The record indicates that Ms. Johnson resided in the 7400 block of East 107th (in the southeast part of Kansas City).

      . Counsel for the Division thought Johnson said at the hearing that her car was not fixed for another week, while it appeared to us that she meant that her car was fixed that Saturday. In any event, we have no reason to believe that the Commission even considered the retrospective testimony as to when the car was fixed.

      . If an employer has a "no fault” policy, which does not distinguish between excusable and non-excusable absence, and if the employer therefore fails to keep track of any reasons given by the employee for an absence, the employer will obviously have a more difficult time proving misconduct than it would under an attendance policy that records fault. But regardless of whether the policy is one of fault or no-fault, if the employer creates the presumption of misconduct, the success of the claimant will then obviously depend on the ability of the claimant to persuade the hearing officer that the absences were not due to the claimant's fault.


author: JOSEPH M. ELLIS, Judge.

text:
    Fred L. TODD, Jr., Respondent, v. Phillip PLACK, Appellant.
    No. WD 71693.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.

      Bruce B. Brown, for Appellant.
    Fred L. Todd, Jr., Respondent pro-se.
    Before Division Three: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   JOSEPH M. ELLIS, Judge.

Phillip Plack appeals from a judgment entered by the Circuit Court of Ray County granting a full order of child protection against him. For the following reasons, the judgment of the circuit court is reversed.

On October 6, 2009, Fred Todd, Jr. filed a petition for child protection on behalf of his step-daughter, C.W., in the Circuit Court of Ray County. At the time the petition was filed, C.W. was sixteen years old, and Plack was nineteen years old. The petition alleged that Plack had been dating C.W. and that, on October 4, 2009, while at Worlds of Fun in Kansas City, Missouri, Plack had lost his temper, pushed C.W. into a wood fence, and caused C.W. to injure her back. The following day, the circuit court entered an ex parte order of child protection against Plack and appointed a court appointed special advocate for C.W.

Following a hearing on October 21, 2009, the circuit court entered a Judgment/Full Order of Protection against Plack for a period of six months, or until April 21, 2010. Plack timely appealed from that judgment, raising three different claims of error.

Although not raised on appeal, we must first determine whether this ease is moot. The full order of protection was entered on October 21, 2009, and was set to expire on April 21, 2010. The record does not reflect that it was extended, and we, therefore, assume it has expired. Stiers v. Bernicky, 174 S.W.3d 551, 553 (Mo.App. W.D.2005). In deciding to exercise our discretion to review a case with similar facts on the merits, the Stiers court stated:

This court has, on several occasions, dismissed an appeal from a full order of protection based on mootness where the order had expired and was not extended. Nonetheless, an appellate court may decide an otherwise moot issue if it is of general public interest and importance, recurring in nature, and will otherwise evade appellate review. Missouri appellate courts have used this discretion to review the merits of a challenge to a child protection order.
It is difficult to obtain appellate review of protection issues prior to the expiration of a full order of protection. This is because section 455.516.1 provides that the duration of such an order shall not exceed 180 days. We are also mindful of the stigma that can attach to a person who is adjudicated a “stalker.” This stigma does not disappear simply because the order has expired. Such person may be forced, in an application for certain kinds of employment or in an application for licensure, to disclose the order of protection.

Stiers, 174 S.W.3d at 553 (citations omitted). While the public interest exception to the mootness doctrine is narrow, if an issue in a moot case is unlikely to be present in a live controversy capable of appellate review in the future, the public interest exception applies. State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998). In this case, the question of whether an order of protection can be based upon a finding of “stalking” under § 455.505.1, where the evidence presented involves only a single incident of allegedly improper conduct, presents an issue of general public interest and importance, recurring in nature, which may evade appellate review due to the brief duration of orders of protection. Stiers, 174 S.W.3d at 553; In the Interest of R.T.T., 26 S.W.3d 830, 834 (Mo.App. S.D.2000). For these reasons, we exercise our discretion to review the merits of Plack’s appeal.

When reviewing a trial court’s entry of an order of protection, as in any court-tried matter, “we will sustain the trial court’s order unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Leaverton v. Lasica, 101 S.W.3d 908, 910-11 (Mo.App. S.D.2003). “Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case.” Id. at 911.

In his first point, Plack claims that the trial court erred in granting the full order of protection because the evidence did not support a finding that he had stalked C.W. Under § 455.505.1, a parent or guardian may seek and obtain “[a]n order of protection for a child who has been subject to abuse by a present or former adult household member or person stalking the child.” The petitioner must prove the necessary elements for an order of protection by a preponderance of the evidence. Stiers, 174 S.W.3d at 553. Since Plack had never been a member of C.W.’s household, Todd was required to plead and prove that Plack had been stalking C.W. Id. at 553-54; In re A.T.H, 37 S.W.3d 423, 427 (Mo.App. S.D.2001).

Section 455.501(10) defines “stalking” as:

[WJhen an adult purposely and repeatedly engages in an unwanted course of conduct with regard to a child that causes another adult to believe that a child would suffer alarm by the conduct. As used in this subdivision:
(a) “Course of conduct” means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or contact;
(b) “Repeated” means two or more incidents evidencing an continuity of purpose; and
(c) “Alarm” means to cause fear of danger of physical harm.

(emphasis added). Thus, to establish stalking, the petitioner must prove “a pattern of conduct composed of a series of acts over a period of time” that serve no legitimate purpose. Stiers, 174 S.W.3d at 555 (internal quotation omitted). “For conduct to have ‘no legitimate purpose,’ it must be found to be not sanctioned by law or custom, to be unlawful, or not allowed.” Glover v. Michaud, 222 S.W.3d 347, 351 (Mo.App. S.D.2007) (internal quotation omitted).

As argued by Plack at the close of the petitioner’s case and at the close of all evidence, absolutely no evidence was presented at the evidentiary hearing of a repeated, unwanted course of conduct toward C.W. All evidence presented related to a single incident, and as to that incident, the trial court found Plack had no intent to harm C.W. The judge expressly stated, at the close of the petitioner’s evidence, “I don’t see any stalking.” The judge further indicated at the end of the hearing that the court was granting an order of protection solely because Plack had lost his temper on one occasion, and it was possible that it might happen again.

As emphasized by Plack at the motion hearing, both under the clear language of the statute and the case law, where the responding party has never resided with the child, entry of a full order of protection without substantial evidence to support a finding of stalking is wholly improper. See Stiers, 174 S.W.3d at 553-54; In re A.T.H, 37 S.W.3d at 427; In re R.T.T., 26 S.W.3d 830, 837-38 (Mo.App. S.D.2000). Accordingly, the judgment of the trial court is reversed, and the cause is remanded to the trial court with instructions to vacate its full order of protection.

All concur.

      . Respondent declined to file a brief in connection with this appeal. Accordingly, we must “review the case on its merits without the aid of a respondent’s brief.” Stiers v. Bernicky, 174 S.W.3d 551, 553 (Mo.App. W.D.2005).

      . All statutory references are to RSMo Cum. Supp.2004 unless otherwise noted.

      . All of the evidence submitted at trial, including the testimony of C.W. and Plack, security reports, and police reports, provides a consistent version of the incident. While the two were walking back from a work break at Worlds of Fun, where they were both employed, C.W. slapped Plack on the back of the head seven or eight times. Plack told her not to do it again. When she slapped him again, Plack pushed her away, causing C.W. to strike a fence and injure her back.

      . Having reached this conclusion on Plack's first point, we need not consider his remaining points on appeal.


author: KAREN KING MITCHELL, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Justin J. LOWE, Appellant.
    No. WD 70744.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.

      Susan E. Summers, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Chief Judge, and CYNTHIA L. MARTIN, Judge.
   KAREN KING MITCHELL, Presiding Judge.

This is an appeal from a judgment of conviction following a jury trial in the Circuit Court of Jackson County (“trial court”). Appellant Justin J. Lowe was convicted of voluntary manslaughter, robbery in the first degree, and two counts of armed criminal action. We affirm.

Factual and Procedural Background

On or about December 23 or 24, 2006, Justin Lowe arrived at the house that his mother (“Mother”) and grandfather (“Grandfather”) shared in south Kansas City. Lowe wanted to take a van that he owned and kept at Mother’s house to Iowa to see his girlfriend (“Girlfriend”) and his daughter and to spend Christmas with them. Mother did not want Lowe to take his van to Iowa because, among other reasons, Lowe’s van had expired tags, Lowe had a suspended driver’s license, and the van was uninsured. Mother, therefore, would not give Lowe the keys to his van. This greatly upset Lowe, and he argued with Mother for most of Christmas day. Finally, on Christmas evening, Mother tired of arguing with Lowe about the van and gave Lowe the keys. Lowe planned to drive the van to Iowa the next day. Lowe did not know that, before giving him the keys, Mother had done something to the ignition fuse so that the van would not start.

Mother testified that on the morning of December 26, 2006, Lowe seemed to be in a better mood. Mother left the house to run some errands, came home for lunch, and then went to one of her jobs to clean a swimming pool. After she finished with the pool, Mother ran another errand. While she was out, she called home to ask someone to take something out of the freezer for dinner. Lowe answered the phone and told Mother that Grandfather had gone to the store. Mother suspected that Lowe had sent Grandfather to the store so that Grandfather would have to move his car, which had been parked behind Lowe’s van.

When Mother returned home at approximately 1:00 p.m., she noticed that Grandfather’s car was gone. Neither Grandfather nor Lowe appeared to be at home. Mother assumed that Grandfather had taken Lowe to Iowa. This upset Mother a bit, and she called her sister to discuss this with her. At some point, Mother noticed Grandfather’s coat hanging on a chair in the kitchen. Mother did not think that Grandfather would have left the house without his coat, so Mother began looking around for Grandfather again. After she had looked everywhere else in the house, Mother went to the garage and looked inside Lowe’s van. In the van she found Grandfather lying with his shirt pulled up over his head. Mother called 911 and went to a neighbor’s house for help.

The neighbor returned to the house with Mother and looked for a pulse on Grandfather. The neighbor found none and noted that Grandfather did not appear to be breathing. The police and ambulance arrived at the house, and Grandfather was pronounced dead at the scene. A hammer was found partially under Grandfather’s body. Some rubber tubing had been wrapped around Grandfather’s body.

Mother called Girlfriend in Iowa and left her a message that Lowe was probably on his way there. Lowe did arrive at Girlfriend’s home in Coralville, Iowa, and Girlfriend met Lowe outside. Girlfriend saw Grandfather’s car and asked Lowe where Grandfather was. Lowe responded that he had “knocked him out.” Police arrived at Girlfriend’s house about three minutes after Lowe had arrived. Lowe ran from the scene and was picked up by police a few blocks away. Police found a credit card and car keys belonging to Grandfather in Lowe’s pockets. Lowe was arrested and taken to the police department.

While Lowe was at the police department, he called Girlfriend who then told Lowe that Grandfather was dead. Lowe cried hysterically when he heard that Grandfather was dead. Girlfriend asked Lowe what he had been thinking and Lowe responded that “he wasn’t.”

At trial the medical examiner testified that during an autopsy he found a number of injuries to Grandfather’s body. Among these were two fairly dramatic injuries to the right side of Grandfather’s head. The first of these was a laceration in the temple area in front of the right ear measuring two and three-quarters inches in length and two and one-quarter inches in depth. This injury produced a depressed skull fracture, in which bone was pushed inward damaging the underlying brain tissue. A second laceration, measuring one and one-quarter inch in length, was found behind the right ear. It extended into the temporomandibular joint, where the jaw connects to the base of the skull. The autopsy also revealed contusions and hemorrhaging at the base of the neck, indicating blunt force trauma to the right side of the neck, as well as several acute abrasions, bruises, and laceration-type injuries to the right shoulder consistent with blunt force trauma. The medical examiner testified that these injuries, which were in close proximity to the two head injuries, were caused by two or three blows to the shoulder. Grandfather’s fifth, seventh, and eighth ribs were fractured prior to his death. There were also injuries to Grandfather’s right abdominal area. There were also a number of injuries to the left side of Grandfather’s body including a black eye, and bruises and abrasions to the lower lip, elbow, and lower extremities. Some of these injuries may have been caused by Grandfather’s falling after he was struck. The medical examiner testified that it was his belief, to a reasonable degree of medical certainty, that the two blows to the head had caused Grandfather’s death.

Mother testified that Lowe had many learning problems as a child. Lowe had been removed from kindergarten and placed in a special pre-kindergarten class. Lowe was diagnosed with severe learning disabilities and was placed in special remedial courses throughout his childhood.

Lowe did not testify at trial, so there was no direct evidence as to what happened between Lowe and Grandfather immediately preceding Grandfather’s death. However, Timothy Cefarelli, a convicted criminal, testified as to admissions that Lowe allegedly made to him when the two were in jail together. Cefarelli reported that Lowe had admitted hitting “his best friend” three times with a hammer. According to Cefarelli, Lowe told him that Lowe’s “friend,” with whom he had been living, had been drunk and had started a fight with Lowe, which ended with the hammer blows. Lowe also reportedly told Cefarelli that his friend was still alive when Lowe left the residence for Iowa.

Lowe’s trial lawyer requested that the trial court give the jury an instruction on involuntary manslaughter in addition to the instructions it gave on first-degree murder, second-degree murder, and voluntary manslaughter. The trial court refused to give the involuntary manslaughter instruction. The jury convicted Lowe of voluntary manslaughter. Lowe’s attorney filed a motion for new trial, again contending that the jury should have been instructed on involuntary manslaughter, and the motion was denied. This appeal follows.

Standard of Review

“In reviewing whether a trial court erred in failing to instruct the jury

on a lesser-included offense, we review the evidence in a light most favorable to the defendant.” State v. Newberry, 157 S.W.3d 387, 393 (Mo.App. S.D.2005). A trial court is not required to give an instruction on a lesser included offense unless the defendant requests the instruction and there is a basis for acquittal on the greater offense. § 556.046.2; State v. Williams, 313 S.W.3d 656, 658-60 (Mo. banc 2010). ‘“In order for there to be a basis for an acquittal of the greater offense, there must be some evidence that an essential element of the greater offense is lacking and the element that is lacking must be the basis for acquittal of the greater offense and the conviction of the lesser.’ ” State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004) (quoting State v. Barnard, 972 S.W.2d 462, 466 (Mo.App. W.D.1998)). Any doubt as to the propriety of submitting the instruction on a lesser included offense should be resolved in favor of submission of the instruction, leaving it to the jury to decide. Williams, 313 S.W.3d at 660; State v. Thomas, 161 S.W.3d 377, 380 (Mo. banc 2005). Nevertheless, a lesser included instruction is not required in every case. A defendant is not entitled to an instruction on a lesser included offense unless the instruction is supported by “evidence of probative value ” and “inferences which logically flow from the evidence.” State v. Deckard, 18 S.W.3d 495, 499 (Mo.App. S.D.2000) (internal quotation marks and citations omitted). A lesser included instruction need not be given unless a reasonable juror could draw inferences from the evidence presented that an essential element of the greater offense has not been established. Williams, 313 S.W.3d at 660. Where the issue is whether a necessary mental element of the greater offense has been established, a lesser included instruction need not be given if no rational fact finder could conclude that the defendant acted without the requisite mental state. State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997).

Legal Analysis

The trial court submitted instructions for: first-degree murder, which is when a defendant knowingly causes the death of another person after deliberation or “cool reflection” on the matter, §§ 565.002(3), 565.020.1; State v. Johnson, 284 S.W.3d 561, 572 (Mo. banc 2009); second-degree murder, which is when a defendant knowingly causes the death of another person, or, with the purpose of causing serious physical injury, causes the death of another person, § 565.021.1; and voluntary manslaughter, which is when a defendant causes the death of a person under circumstances that would constitute second-degree murder, except that he acts under the influence of sudden passion arising from adequate cause, §§ 565.023.1(1), 565.002(1), 565.002(7). For the purposes of second-degree murder, a defendant acts knowingly when he is aware that his conduct is practically certain to cause death. The jury acquitted Lowe of the murder charges but found him guilty of voluntary manslaughter. Lowe claims that the jury should also have been instructed on involuntary manslaughter. We disagree.

Involuntary manslaughter occurs when a defendant “[rjecklessly causes the death of another.” § 565.024.1(1). The reckless mental state is further defined as when a defendant “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” § 562.016.4. The only difference between the elements of the crime of voluntary manslaughter and that of involuntary manslaughter is the defendant’s mental state.

Here, to prove voluntary manslaughter, the State could prevail under either of two theories: that, under sudden passion arising from adequate cause, Lowe (1) knowingly caused Grandfather’s death; or (2) purposefully caused Grandfather serious physical injury, which resulted in his death. §§ 565.023, 565.021. For Lowe to be entitled to an instruction for involuntary manslaughter, a reasonable juror must be able to infer from the evidence presented that Lowe did not act knowingly or purposefully but that he acted recklessly in causing Grandfather’s death.

I. No rational juror could acquit Lowe of knowingly causing Grandfather’s death.

Lowe argues that his low intelligence was evidence that he was not practically certain that his actions would cause Grandfather’s death. We disagree.

If “no rational juror could reasonably conclude that the defendant did not act knowingly” based on the evidence presented, an instruction for the lesser included offense of manslaughter need not be given. State v. Mason, 272 S.W.3d 257, 262 (Mo.App. W.D.2008). That is, Lowe was entitled to an instruction on involuntary manslaughter only if there was sufficient evidence from which a rational jury could have found that Lowe was not aware that his conduct was practically certain to cause Grandfather’s death. Id.; §§ 565.023, 565.021, 562.016.3(2).

No rational jury could have so found.

a. Evidence that Lowe acted knowingly

The existence of a mental state required for conviction of a charged offense is often difficult to prove through direct evidence. “ ‘The mental elements establishing [the offense charged] may be proved by indirect evidence and inferences reasonably drawn from the circumstances surrounding’ the offense.” Santillan, 948 S.W.2d at 576 (quoting State v. Turner, 623 S.W.2d 4, 7 (Mo. banc 1981)).

Missouri courts have found the nature of the conduct that led to the victim’s death to be evidence of whether the defendant acted knowingly. See, e.g., Thomas, 161 S.W.3d at 381; Mason, 272 S.W.3d at 261; Newberry, 157 S.W.3d at 396. Because a person is presumed to have intended for death to follow from acts that are likely to produce that result, a defendant’s intentional use of a deadly weapon on a vital part of a victim’s body to inflict a fatal injury transcends recklessness so that no rational fact finder could conclude that he did not act knowingly. Newberry, 157 S.W.3d at 395-96. Where death is practically certain to result from the defendant’s conduct, the logical inference is that the defendant intended to kill the victim; thus the facts are sufficient to permit a finding of intent to kill. Id. at 396.

Here, Lowe admits striking Grandfather in the head with a hammer. The uncon-troverted evidence is that Lowe struck Grandfather multiple times on the right side of his head and neck and on the right shoulder. One blow penetrated two and one-quarter inches into Grandfather’s brain. This evidence is sufficient to support the conclusion that Lowe acted knowingly in causing Grandfather’s death.

b. Diminished Capacity

Despite the fact that Lowe struck Grandfather multiple times on the right side of his head and neck, and on the right shoulder, and that one blow penetrated two and one-quarter inches into Grandfather’s brain, Lowe argues that due to his low intelligence he was not practically certain that death would result from his actions. Although the defense did not characterize its claim as such, the evidence and theory offered by Lowe appears to be one of diminished capacity. See State v. Walkup, 220 S.W.3d 748, 755 (Mo. banc 2007). Evidence of a mental disease or defect may be used to demonstrate that the defendant did not have the culpable mental state that is an essential element of the crime. § 552.015.2(8). Unlike a claim of not guilty by reason of mental disease or defect, the diminished capacity defense contemplates full responsibility, but only for a lesser crime. Diminished capacity is not an affirmative defense for which the defendant bears the burden of proof, but simply involves the presentation of evidence sufficient to allow a reasonable juror to conclude that an element of the offense charged was negated. Walkup, 220 S.W.3d at 754-55.

In order to prevail on a diminished capacity defense, a defendant must introduce evidence that he or she suffered from a mental disease or defect.... But, the existence of a mental disease or defect will not alone suffice to diminish the defendant’s criminal responsibility. The jury must still determine, considering all the evidence, whether the mental disease or defect prevented the defendant from forming the requisite mental state....

Nicklasson v. State, 105 S.W.3d 482, 484-85 (Mo. banc 2003) (citations omitted). “The existence of a mental disease or defect not connected to the formation of an intent or existence of a relevant state of mind, does not require the submission of a lesser included offense.” State v. Thompson, 695 S.W.2d 154, 161 (Mo.App. S.D.1985).

1. Evidence of Lowe’s learning disabilities did not negate the “knowing” element of voluntary manslaughter.

Lowe attempted to put on evidence of a mental disease or defect through the cross-examination testimony of Mother. Mother testified that Lowe had learning difficulties throughout his school years— that he was put in a special pre-kindergar-ten class rather than regular kindergarten. She also testified that Lowe continued with special remedial classes through high school and that he had been diagnosed with severe learning disabilities. However, there was no testimony regarding the nature of Lowe’s learning disability or how his difficulties in school affected his ability to function in other settings. Contrary to the assertion in his brief to this court, there was no evidence presented at trial that Lowe had “low intelligence,” as there was no evidence that learning disabilities always reflect upon an individual’s IQ. No expert testimony was offered. In short, there is no evidence in the record connecting Lowe’s difficulty in school to an inability to understand the consequences of striking someone in the head with a hammer. Therefore, there was insufficient evidence connecting Lowe’s learning disabilities to the existence of the relevant state of mind, and the evidence does not support the submission of an instruction for the lesser included offense of involuntary manslaughter.

Evidence that Lowe had learning disabilities, without evidence that reasonably connects the learning disabilities to Lowe’s inability to understand the likely result of his conduct, does not negate the reasonable inference that Lowe was practically certain that death would result from striking Grandfather in the head with a hammer and thus did not require the submission of the lesser included offense of involuntary manslaughter based on diminished capacity.

2. Other evidence cited by Lowe does not negate the “knowing” element of voluntary manslaughter.

Other than Mother’s testimony that Lowe had some sort of learning disability that affected his performance in school, the only evidence upon which Lowe relies relates to his conduct after the attack on Grandfather. According to Girlfriend’s testimony, Lowe told her that he had “knocked out” Grandfather. Girlfriend also testified that Lowe cried “hysterically” when she told him that Grandfather was dead. Lowe argues that his statement and actions are evidence that he was not practically certain that his actions would result in Grandfather’s death.

Generally, where the nature of the defendant’s attack on the victim is such that it only supports the inference that he intended to kill or seriously injure the victim, the fact that the defendant denies an intention to kill is not sufficient to require an instruction for a lesser degree of the offense charged because the statements of defendant are so unreasonable and inconsistent with physical facts and the conduct of the defendant that they do not support a finding of recklessness. Deckard, 18 S.W.3d at 503; see also Mason, 272 S.W.3d at 261. Similarly, Lowe’s telling Girlfriend that he had “knocked out” Grandfather and his being upset when she confronted him with the fact that Grandfather was dead are not sufficient evidence for a rational juror to conclude that, despite the fact that Lowe repeatedly struck Grandfather with a hammer about the head and upper body and left him wrapped in tubing in the back of a van (making it more difficult for him to seek help and less likely that he would be found in time to be helped if he did not die immediately as a result of his injuries), Lowe did not knowingly kill Grandfather.

In addition, Lowe argues that his failure to take adequate steps to conceal evidence at the scene and the fact that he fled to a place where he was likely to be found are evidence that would support the giving of the lesser included instruction. However, Lowe did take steps to conceal his crime. After the attack he took a shower. Girlfriend testified that upon his arrival at her home in Iowa, he told her that “he needed to dump [Grandfather’s] car.” When the police arrived at Girlfriend’s home, Lowe fled. From this evidence a reasonable juror could only conclude that Lowe was conscious of his guilt. Therefore, for Lowe’s argument to succeed, we must accept that it would be reasonable for a juror to conclude from this evidence that because Lowe did not take all steps that he could have to conceal his crime or his whereabouts, he understood he had engaged in criminal conduct but did not understand the likely results of his conduct. This is not a reasonable inference from the evidence presented.

Lowe’s conduct after he attacked Grandfather, standing alone, is not sufficient to support the giving of the instruction for the lesser included offense of involuntary manslaughter. Nor is this evidence sufficient to connect the alleged mental defect to the mental state required to support a conviction for voluntary manslaughter so as to negate an element of the greater offense.

Mere argument that the defendant lacked the required mental state is insufficient “when the physical facts and the defendant’s conduct renders such [argument] unreasonable and inconsistent with common experience.” State v. Stidman, 259 S.W.3d 96, 104 (Mo.App. S.D.2008). Here, it is unreasonable and inconsistent with common experience to suggest that Lowe was not practically certain that Grandfather’s death would result from striking him twice in the head with a hammer with sufficient force to create a two- and-one-quarter-inch indentation in Grandfather’s brain. Cf. Newberry, 157 S.W.3d at 395-96 (holding that the trial court did not err in refusing to instruct on the lesser included offense of involuntary manslaughter where the defendant struck the victim once in the head with the claw end of a hammer and the hammer penetrated two inches into the brain); Mason, 272 S.W.3d at 261 (holding that the fact that the defendant stabbed the victim twice in the back and once each in the neck and shoulder with enough force to bend the knife and severely injure several internal organs would not support an instruction for involuntary manslaughter); State v. Hamlett, 756 S.W.2d 197, 200-01 (Mo.App. S.D. 1988) (holding that an instruction on the lesser included offense of involuntary manslaughter was properly refused where victim died of a massive brain hemorrhage because blows to the head by fist and feet were a means likely to produce death).

We are mindful that our Supreme Court has made it clear that a lesser included instruction is warranted when evidence supports differing conclusions as to the defendant’s mental state. Santillan, 948 S.W.2d at 576. But this does not mean that any evidence, no matter how limited or lacking in probative value, will support the giving of an instruction on a lesser included offense. Nor does this standard eliminate the need to connect evidence of a mental defect to the mental state that the evidence is offered to negate. Further, our Supreme Court continues to apply the reasonable juror standard, requiring that an instruction be given for a lesser included offense only “[i]f a reasonable juror could draw inferences from the evidence presented that an essential element of the greater offense has not been established.” Williams, 313 S.W.3d at 660; see also Santillan, 948 S.W.2d at 576. As explained, no reasonable juror could conclude from the evidence in this case that Lowe was not practically certain that his actions would result in Grandfather’s death, and therefore Lowe was not entitled to a lesser included offense instruction. Williams, 313 S.W.3d at 660.

II. No rational juror could conclude that Lowe did not purposefully cause Grandfather serious physical injury.

Lowe’s arguments are also unavailing because the evidence he cites suggests that Lowe purposefully caused Grandfather serious physical injury that led to his death. The intent to kill or to seriously injure the victim is sufficient to support conviction of the greater offense of second-degree murder or voluntary manslaughter. See Newberry, 157 S.W.3d at 397; § 565.021.1(1) (“A person commits the crime of murder in the second degree if he ... with the purpose of causing serious physical injury to another person, causes the death of another person.”); § 565.023.1(1) (“A person commits the crime of voluntary manslaughter if he ... [e]auses the death of another person under circumstances that would constitute murder in the second degree ... except that he caused the death under the influence of sudden passion arising from adequate cause.”). The statement to Girlfriend that he “knocked out” Grandfather and the fact that Lowe partially tied Grandfather up supports the finding that Lowe intended to senously injure Grandfather. See Newberry, 157 S.W.3d at 397. By stating that he had “knocked out” Grandfather, Lowe acknowledged that, in striking Grandfather over the head with a hammer, it was his purpose to knock him unconscious, and therefore to cause serious physical injury to him, which is an element of voluntary manslaughter and is not an element of involuntary manslaughter. §§ 565.021, 565.023, 565.024. Therefore, such evidence did not necessitate an instruction based on involuntary manslaughter. § 556.046.2.

Conclusion

No reasonable juror could find that Lowe was not aware that Grandfather’s death was practically certain to result from Lowe’s striking him, at least twice, in the head with a hammer. In addition, no reasonable juror could find that Lowe did not purposefully cause Grandfather serious physical injury, which led to his death, when he hit Grandfather in the head with a hammer for the purpose of knocking him unconscious and then left him restrained in a van inside a garage where it was unlikely that he would be able to seek help or would be found in a timely fashion. Accordingly, we hold that the trial court did not err in refusing to give the jury an instruction on the offense of involuntary manslaughter. We therefore affirm the judgment of the trial court.

LISA WHITE HARDWICK, Chief Judge, and CYNTHIA L. MARTIN, Judge, concur.

      . In this case, because Lowe claims that the trial court erred in failing to offer an instruction on a lesser included offense, we recite the facts and review the evidence in the light most favorable to Lowe, the defendant below. State v. Battle, 32 S.W.3d 193, 195 (Mo.App. E.D.2000).

      . We have found no case where a defendant argued that the trial court should have given an instruction for a lesser included offense based on the allegation that the defendant’s mental deficiency negated an element otherwise supported by the evidence without there being an allegation of diminished capacity. We note that normally when a defendant presents evidence of diminished capacity, the diminished-capacity instruction, MAI-CR3d 308.03, is requested and given. It is not clear that Lowe met the procedural requirements for asserting diminished capacity, but we need not reach that issue to resolve this case because we conclude that the evidence upon which Lowe relies does not negate the mental element of voluntary manslaughter.

      . During the sentencing phase of the trial, a licensed clinical social worker testified on Lowe's behalf. The social worker testified that Lowe had "borderline intellectual functioning,” that he had attention deficit disorder, and that his IQ and his learning abilities caused him to function in "the eighth percentile of intellectual functioning.” This evidence was not before the jury during the guilt phase, however.

      . In finding that the attack at issue in Hamlett was not reckless and thus the defendant was not entitled to an instruction for involuntary manslaughter, the Hamlett court noted that the attack was "deliberate, not accidental.” 756 S.W.2d at 200-01. In State v. Beeler, 12 S.W.3d 294, 299 (Mo. banc 2000), the Supreme Court rejected the proposition that recklessness requires accidental or culpably negligent conduct. While some of the Ham-lett court's reasoning may no longer be valid after Beeler, the ultimate conclusion that Hamlett's assault on the victim "by fists and feet, was a means likely to produce death, [and thus] Hamlett [was] presumed to have intended that death would follow his acts,” appears to remain good law. 756 S.W.2d at 201.