author: NANNETTE A. BAKER, Judge.

text:
    STATE of Missouri, Respondent, v. Lavell E. NYLON, Appellant.
    No. ED 92172.
    Missouri Court of Appeals, Eastern District, Division One.
    March 30, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 12, 2010.
    Application for Transfer Denied June 29, 2010.

      Jessica Hathaway, MO Public Defenders Office, St. Louis, MO, for appellant.
    Shaun Mackelprang, Richard Starnes, Co-Counsel, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   NANNETTE A. BAKER, Judge.

Introduction

Lavell Nylon (“Defendant”) appeals from the judgment entered upon a jury verdict convicting Defendant of drug trafficking in the second degree and resisting arrest. The trial court sentenced Defendant as a prior and persistent offender to consecutive terms of fifteen years for the drug offense and five years for resisting arrest. On appeal, Defendant claims the trial court erred in denying his motion for judgment of acquittal for the crime of resisting arrest, in overruling his Batson challenges, and in denying his motions to suppress drug evidence and his statements to the police. We affirm in part and reverse in part.

After Defendant filed this appeal, he filed a “Motion for Remand to the Trial Court for Reconsideration of Appellant’s Suppression Motions and/or New Trial Motion in Light of Newly Discovered Evidence” (“motion to remand”). Defendant has moved this Court to remand his case to the trial court because he claims the trial court should be able to consider newly discovered evidence regarding the credibility of the State’s key witnesses against Defendant. This motion is denied.

Background

This Court reviews the facts in the light most favorable to the verdict. State v. Barriner, 111 S.W.3d 396, 397 (Mo. banc 2003). On January 7, 2007, an anonymous person approached City of St. Louis Police Officers Shell Sharp and Mike Mathews and reported that an older black male with braids and a brown jacket was selling narcotics. The officers went to the location described by the tipster and saw Defendant, who was huddled with another man in conversation. Defendant matched the tipster’s description of the man selling drugs. The police officers approached the men, who immediately separated and walked away in different directions. Defendant also put his right hand into his pants pocket. Officer Mathews ordered Defendant to remove his hand from his pocket. Defendant took a step backward, turned and began to walk away briskly. Officer Mathews followed Defendant and again instructed him to take his hand out of his pocket. Defendant then slipped in a mud hole and fell to the ground. Defendant removed his hand from his pocket to brace his fall, and when he hit the ground, a plastic bag containing numerous smaller bags fell to the ground. Officer Mathews believed the plastic bags contained crack cocaine, and later testing confirmed that the bag contained 5.11 grams of a substance with a crack cocaine base.

After falling, Defendant attempted to stand up, but Officer Mathews told him to stop and that he was under arrest. Officer Mathews grabbed Defendant, and both men fell into the mud. Defendant attempted to crawl away, but Officer Sharp came to Officer Mathews’s assistance and placed Defendant under arrest. After the police read Defendant his Miranda rights, Defendant told the officers that he would cooperate and would provide them with information on other narcotic dealers if the officers would give him a break.

Defendant was charged as a prior and persistent offender with drug trafficking in the second degree in violation of Section 195.223 and resisting arrest in violation of Section 575.150 RSMo. (Supp.2005). During jury selection, the State used five of its six peremptory strikes on African-Americans, including venirepersons Britt, Watson and Cobb. Defendant objected to all five strikes based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State responded that it struck venirepersons Britt and Watson because they lived in the area where the arrest occurred. The State also argued that two white venirepersons, Peterson and Staum, who also lived in the same area, were distinguishable from the struck African-American venirepersons. The State claimed that venirepersons Peterson and Staum were pro-State, and the State assumed Defendant would use his peremptory strikes on them. The State argued that it struck Venireperson Cobb because “she worked in a casino, so she works in the same industry.” The State did not explain who else worked in a casino. The trial court overruled Defendant’s Batson challenges.

Defendant filed motions to suppress the seized drug evidence and his statements to the police because Defendant claimed that the police lacked reasonable suspicion to approach him. The trial court ordered the motion to suppress the drug evidence to be taken with the case. Officer Mathews and Defendant testified at an evidentiary hearing on the motion to suppress the statements. The trial court found Officer Mathews’s account of the arrest credible and denied the motion.

At trial on April 16, 2008, officers Sharp and Mathews and the criminologist who tested the crack cocaine testified on behalf of the State. The State also admitted into evidence an evidence envelope, the bag of crack cocaine and a lab analysis report. When the State moved to admit the evidence envelope and the crack cocaine, Defendant stated that he had no objection to their admission. Furthermore, Defendant did not reassert his motion to suppress the drug evidence. The trial court denied the motion to suppress after hearing the evidence in the case. Defendant failed to object when Officer Sharp testified regarding Defendant’s post-arrest statements but did object to Officer Mathews’s testimony regarding the same statements. Defendant did not present any evidence at trial, and the jury found Defendant guilty. On May 1, 2008, Defendant timely filed a motion for new trial, which was denied. On May 23, 2008, Defendant was sentenced to consecutive terms of fifteen years for the drug offense and five years for resisting arrest. Defendant filed this appeal and oral arguments were conducted on December 8, 2009.

On December 4, 2009, Defendant filed the motion to remand with this Court. Defendant moves this Court to remand Defendant’s case to the trial court so Defendant can amend his motion for new trial and so that the trial court can reconsider Defendant’s motions to suppress in light of newly discovered evidence. The State opposes the motion to remand. The newly discovered evidence consists of multiple articles published in the St. Louis Post-Dispatch. The articles detailed serious issues in the City of St. Louis Police Department regarding police officers allegedly fabricating statements by confidential informants to support applications for search and arrest warrants.

The articles included information that the St. Louis Circuit Attorney’s Office declined to prosecute numerous cases involving Officer Sharp’s testimony because his testimony was no longer reliable and that he had been accused of lying on search warrant applications. Specifically, Officer Sharp had listed either a dead person or a person in jail as one of his confidential informants. The reports also stated that the St. Louis Circuit Attorney had lost confidence in Officer Mathews as a witness. In an affidavit filed as part of a warrant application, Officer Mathews had stated that he conducted surveillance on April 1, 2008, but records show that he was off duty .at the time. As a result, the Circuit Attorney dismissed charges against the subject of the surveillance and was in the process of reviewing other cases involving Officer Mathews. The reports concerned cases in 2008 and 2009 and did not include any allegations of misconduct by officers Sharp and Mathews related to their testimony in Defendant’s case.

When Defendant filed his motion to remand, the Missouri Supreme Court had before it a case involving a motion to remand because of newly discovered evidence. State v. Terry, 304 S.W.3d 105 (Mo. banc 2010). This Court withdrew Defendant’s appeal from consideration pending the Supreme Court’s decision in Terry. After the Supreme Court issued its opinion in Terry, this case was resubmitted for consideration.

Discussion

Motion to Remand for Newly Discovered Evidence

We will first address Defendant’s motion to remand on the basis of the newly discovered evidence. Defendant filed his motion to remand because newly discovered evidence exists that the police officers involved in this incident have serious credibility issues that came to light after Defendant’s trial. He argues the trial court should be able to consider this evidence in ruling on Defendant’s motions to suppress and motion for a new trial because the evidence seriously harms the credibility of the State’s two crucial witnesses.

Defendant’s motion to remand, however, does not satisfy the time limits for filing a motion for a new trial under Rule 29.11(b) because it was filed more than twenty-five days after the jury returned its verdict. The Missouri rules do not provide a means to order the granting of a new trial for newly discovered evidence outside of the time limits imposed by Rule 29.11. Terry, 804 S.W.3d at 107-09. Despite the lack of a provision in the rules, this Court has the “responsibility to avoid a ‘perversion of justice.’ ” Terry, 804 S.W.3d at 110 (quoting State v. Williams, 673 S.W.2d 847, 848 (Mo.App. E.D.1984)). Appellate courts also “have the inherent power to prevent miscarriages of justices” in certain cases of newly discovered evidence. State v. Mooney, 670 S.W.2d 510, 515-16 (Mo.App. E.D.1984). To exercise this power, the appellate court may, in limited circumstances, dismiss the appeal and remand the case to the trial court to allow the appellant to file an amended motion for new trial. Terry, 304 S.W.3d at 111-12. The exercise of this power, however, remains in the discretion of the appellate court. Id.; State v. Parker, 208 S.W.3d 331, 335 (Mo.App. S.D. 2006). For this Court to grant the motion to remand, Defendant must ordinarily show:

1. The facts constituting the newly discovered evidence have come to the mov-ant’s knowledge after the end of the trial;
2. Movant’s lack of prior knowledge is not owing to any want of due diligence on his part;
3. The evidence is so material that it is likely to produce a differen[t] result at a new trial; and
4. The evidence is neither cumulative only nor merely of an impeaching nature.

Terry, 304 S.W.3d at 109 (citing State v. Whitfield, 939 S.W.2d 361, 367 (Mo. banc 1997)).

Faced with newly discovered evidence, courts have often required that the newly discovered evidence would actually exonerate the defendant and not merely impeach a witness’s credibility. See, e.g., State v. Dunmore, 227 S.W.3d 524, 526 (Mo.App. W.D.2007); Parker, 208 S.W.3d at 334; State v. Smith, 181 S.W.3d 634, 638 (Mo.App. E.D.2006). The Missouri Supreme Court in Terry, however, noted that there may be an exceptional circumstance “where impeachment is reason to remand to the trial court to grant a new trial at the appellate court’s discretion.” Terry, 304 5.W.3d at 110 (citing Mooney, 670 S.W.2d at 516).

Missouri courts applying these standards have reversed in only three cases. In Williams, the evidence would have completely exonerated the movant if believed, and the State agreed with the movant that the case should be returned to the trial court. Williams, 673 S.W.2d at 847-48. This Court granted the motion, dismissed the appeal and remanded the case to the trial court. Id. In granting the motion, we noted that “[u]nder the unique circumstances of this case, we are willing to overlook the time constraints of Rule 29.11 as they relate to the newly discovered evidence.” Id. at 848.

In Mooney, the defendant had been convicted of molestation of a minor. 670 S.W.2d at 511. At trial, the alleged victim was the only person who testified to the molestation. Id. Six months after the hearing on the defendant’s motion for a new trial, the alleged victim was taped admitting that he made up the story and that his trial testimony was false. Id. The defendant filed a motion with this Court to allow the newly discovered evidence to be considered. Id. This Court noted that “in a case of this kind appellant must have some forum in the judicial system to present this issue, particularly where the case is still in the process of appeal.” Id. at 515. This Court determined that the facts of the case were a special situation because the only witness who testified about the essential facts of the crime had recanted after the time period for a motion for a new trial had lapsed. Id. at 515-16. In such a situation, this Court held that it had the “inherent power to prevent miscarriages of justice” and remanded the case to the trial court to allow the defendant to file a motion for a new trial based on the newly discovered evidence. Id.

Finally, the Missouri Supreme Court in Terry, the case for which this appeal was withdrawn, addressed a motion to remand based on newly discovered evidence. Terry, 304 S.W.3d at 106-07. In Terry, the defendant had been convicted of first degree statutory rape. Id. The conviction was based largely on the testimony of the alleged victim. Id. The alleged victim was pregnant at the time of the trial and testified that only the defendant could be the father because she had not had sex with anyone else. Id. The prosecutor frequently emphasized that the alleged victim was pregnant and that the defendant was the father of the child. Id. However, the alleged victim gave birth after trial, and a DNA test, performed after the time period for a motion for a new trial had already lapsed, found a zero percent probability that the defendant was the father. Id. at 107-09. The Court granted the motion to remand and dismissed the appeal. Id. at 111-12.

In granting the motion, the Court stated that “newly discovered evidence during an appeal usually is not enough for a new trial, but here, the newly discovered forensic evidence, if verified, appears to be central to the case and shows that [the defendant] was convicted with the aid of false testimony from the alleged victim.” Id. The Court held that the newly discovered DNA evidence satisfied the four requirements established in Whitfield: the evidence was not discovered until after trial; the evidence was not discoverable until after trial; the evidence was material, and it was not merely impeachment evidence. Id. at 109-10; Whitfield, 939 S.W.2d at 367. Although the evidence did not completely exonerate the defendant, it was sufficient that the evidence showed that the victim perjured herself. Id. at 105-10. The Court stated that although the jury generally weighs the effect of impeachment evidence, the jury has nothing to weigh in eases of perjury, and therefore, the evidence was not merely impeachment evidence. Id. at 109-10. The Court, however, did comment on Mooney and noted that Mooney represents a special circumstance where even mere impeachment evidence can support remand. M

In this case, the Post-Dispatch articles state that the St. Louis Circuit Attorney’s Office dropped charges in cases involving officers Sharp and Mathews because of concerns about the reliability of the officers’ testimony and statements made in warrant applications. The articles specifically allege that both officers have lied in warrant applications. The articles do not include any allegations related to the instant case and are based on incidents that occurred after Defendant’s arrest.

Defendant can establish the first two elements discussed in Terry because of the timing of the conduct discussed in the articles. The facts constituting the newly discovered evidence did not come to the attention of Defendant before the end of the trial because the articles were not published and the Circuit Attorney’s Office apparently did not stop using the officers’ testimony until after Defendant’s trial. In addition, Defendant did not fail to exercise due diligence by failing to know of this conduct because the articles had not yet been published. Defendant could not have known of the future actions of the Circuit Attorney’s Office at the time of his trial. Turning to the third element, the State’s case was based entirely on the testimony of officers Sharp and Mathews. Evidence that the officers’ credibility has been eviscerated to the extent that the St. Louis Circuit Attorney’s Office dismissed cases involving their testimony could have a dramatic effect on the jury’s weighing of the testimony in this case.

The final element, however, does not support granting Defendant’s motion to remand. The newly discovered evidence in this case would only impeach the credibility of Officers Sharp and Mathews. The articles do not include any allegation that the officers fabricated their testimony in the present case or any allegations of misconduct at the time of Defendant’s arrest. Unlike in Williams, the evidence’s only use would be to attack the credibility of the officers for their later-in-time fabrications, and the State opposes the motion. 673 S.W.2d at 847-48.

Although a motion for remand on the basis of impeachment evidence may be granted in light of Mooney and Terry, the circumstances of this case are readily distinguishable and do not support the exercise of our discretion to grant the motion to remand. Mooney involved the taped recantation of the alleged victim’s testimony. 670 S.W.2d at 512. In Terry, the newly discovered evidence consisted of forensic evidence that, if verified, would conclusively show that the alleged victim had perjured herself. Terry, 304 S.W.3d at 109-10. Though the newly discovered evidence in this case does have considerable impeachment value, it does not rise to the level of the evidence in either Mooney or Terry. There has not been any showing that the newly discovered evidence has any relation to the facts of this case beyond its impeachment value. There is no evidence that the officers fabricated their testimony in this case. Therefore, we find that the circumstances of this case do not support the exercise of our discretion in granting the extraordinary remedy of remanding this case to the trial court. The motion is denied.

Points on Appeal

We will now address Defendant’s four points on appeal. In his first point, Defendant claims that the trial court erred in denying his motion for judgment of acquittal at the close of evidence, in entering judgment on the jury’s verdict and in sentencing him for the crime of resisting arrest because the State presented no evidence that he resisted arrest by fleeing from the officers. In his second and third points, Defendant alleges the trial court erred in overruling his Batson challenges because the State’s proffered reasons for the strikes were pretextual. In his final point, he argues the trial court erred in denying his motion to suppress because the officers lacked reasonable suspicion to approach and seize Defendant.

Resisting Arrest

In his first point on appeal, Defendant claims the trial court erred in overruling his motion for judgment of acquittal, in entering judgment on the jury’s verdict of guilty and in sentencing Defendant to five years’ imprisonment for the count of resisting arrest. Specifically, Defendant argues that the State presented no evidence to prove Defendant “resisted by fleeing from the officers” as required under the statute and the applicable jury instruction. We agree.

“We will affirm a trial court’s denial of a motion for judgment of acquittal if, at the close of evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense.” State v. Edwards, 280 S.W.3d 184, 189 (Mo.App. E.D.2009) (internal citations omitted). In determining if the State presented sufficient evidence, we view the evidence in the light most favorable to the verdict and grant all reasonable inferences that may be drawn therefrom. State v. Agnew, 214 S.W.3d 398, 400 (Mo.App. E.D.2007). We also disregard all contrary evidence and inferences. Id.

Section 575.150.1 provides that a person commits the crime of resisting arrest if he or she knows or reasonably should have known that a law enforcement officer is making an arrest, and the person, for the purpose of preventing the officer from effecting the arrest, “resists the arrest ... by using or threatening the use of violence or physical force or by fleeing from such officer.” Section 575.150.1(1) RSMo. (Supp.2005). A person can resist arrest either by using or threatening to use physical violence or physical force, or by fleeing. Id. In this case, the State elected to charge Defendant with resisting arrest by fleeing. The trial court submitted the following jury instruction based on MAI CR3d 329.60 to the jury for the resisting arrest count:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 7, 2007, in the State of Missouri,
Michael Mathews was a law enforcement officer, and
Second, that Michael Mathews was making an arrest of the defendant for possession of controlled substance, and
Third, that the defendant knew or reasonably should have known that a law enforcement officer was making an arrest of the defendant, and Fourth, that for the purpose of preventing the law enforcement officer from making the arrest, the defendant resisted by fleeing from the officer, then you will find the defendant guilty under Count II of resisting arrest. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Defendant only challenges the sufficiency of the evidence as to the fourth element, whether the State produced sufficient evidence that “the defendant resisted by fleeing from the officer[.]” Neither MAI CR3d 329.60 nor Section 575.150 defines “flee.” Absent a statutory definition, we give the words in a statute their plain and ordinary meaning as derived from a dictionary. State v. Payne, 250 S.W.3d 815, 820 (Mo.App. W.D.2008) (citing Columbia Athletic Club v. Dir. of Revenue, 961 S.W.2d 806, 809 (Mo. banc 1998)). The American Heritage Dictionary defines “flee” as “to run away, as from trouble or danger,” “to pass swiftly away,” “vanish” or “to run away from.” The American Heritage Dictionary of the English Language 672 (4th ed.2006).

In this case, the State alleged that Defendant resisted arrest when after falling in a mud hole he attempted to crawl away from Officer Mathews. To support this charge, Officer Mathews testified that he grabbed Defendant as Defendant attempted to get out of the mud hole and continued to hold him as both Defendant and Officer Mathews fell to the ground. Officer Mathews testified that: “[Defendant] attempted to crawl away from me, I still had a hold of him, and I yelled out to him stop, stop moving, stop resisting, you’re under arrest.” Officer Sharp testified that as he went to assist Officer Mathews in making the arrest, Defendant was “trying to get away” and was “trying to ... crawl away.”

Since the State charged Defendant with resisting arrest by fleeing, it had to prove that Defendant actually fled consistent with the plain and ordinary meaning of the word “flee” because there is no statutory definition. The State’s evidence merely established that Defendant attempted to crawl away but that Officer Mathews maintained his grasp of Defendant. This was insufficient to show that Defendant “ran away” or “passed swiftly away.” Based only on this testimony, the jury could not make a reasonable inference that Defendant fled by only attempting to crawl away. Although we view the evidence in the light most favorable to the verdict and grant all reasonable inferences therefrom, there was insufficient evidence from which a reasonable juror could have concluded that Defendant resisted arrest by fleeing. Point granted.

We reverse the judgment of the trial court and vacate Defendant’s conviction and sentence on the resisting arrest count.

Batson Challenges

In his second and third points on appeal, Defendant claims that the trial court clearly erred in overruling his objections to the State’s exercise of its peremptory strikes against multiple African-American venire-persons. Defendant argues that the State’s strikes of venirepersons Britt, Watson and Cobb violated Batson because the State’s reasons for the strikes were pre-textual Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We disagree.

We review the trial court’s denial of a Batson challenge for clear error. State v. Johnson, 284 S.W.3d 561, 571 (Mo. banc 2009). When reviewing for clear error, this Court will not reverse the trial court’s decision unless after a review of the entire evidence, we are left with the definite and firm conviction that a mistake was made. State v. McFadden, 216 S.W.3d 673, 675 (Mo. banc 2007); State v. Hopkins, 140 S.W.3d 143, 148 (Mo.App. E.D.2004). In making this determination, we accord the trial court “great deference because its findings of fact largely depend on its evaluation of credibility and demeanor.” Kesler-Ferguson v. Hy-Vee, Inc., 271 S.W.3d 556, 558 (Mo. banc 2008); see also State v. Gray, 887 S.W.2d 369, 384 (Mo. banc 1994).

“Under the Equal Protection Clause, a party may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror’s gender, ethnic origin or race.” State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). A party objects to such a strike by making a Batson challenge, which has three steps. Batson, 476 U.S. 79, 106 S.Ct. 1712; Johnson, 284 S.W.3d at 571. In the first step of a Batson challenge, the defendant must object to the State’s peremptory strike of one or more specific venire persons as being for an improper purpose. Johnson, 284 S.W.3d at 571. The State must then come forward with a race-neutral reason for the strike “that is more than an unsubstantiated denial of discriminatory purpose.” McFadden, 216 S.W.3d at 675. This explanation is “deemed race-neutral unless a discriminatory intent is inherent in the prosecutor’s explanation, even if that explanation has a disparate impact on minority venireper-sons.” Marlowe, 89 S.W.3d at 468.

If the State can articulate an acceptable reason, the burden shifts to the defendant to show that the State’s proffered reasons are merely pretextual and that the strike was racially motivated. McFadden, 216 S.W.3d at 675; State v. Hampton, 163 S.W.3d 903, 904 (Mo. banc 2005). “In determining pretext, the main consideration is the plausibility of the prosecutor’s explanations in light of the totality of the facts and circumstances surrounding the case.” State v. Johnson, 207 S.W.3d 24, 35 (Mo. banc 2006). The trial court should consider “whether the explanation is (1) race-neutral, (2) related to the case to be tried, (3) clear and reasonably specific, (4) legitimate.” McFadden, 216 S.W.3d at 676. The existence of similarly situated white jurors who were not struck is a crucial factor. Marlowe, 89 S.W.3d at 469. An identical comparison is not necessary, as “a per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable.” McFadden, 216 S.W.3d at 676.

Defendant challenged five of the State’s peremptory strikes but has only appealed the trial court’s denial of the challenges for venirepersons Britt, Watson and Cobb. After Defendant challenged the State’s strikes, the trial court asked the State for its race-neutral reasons for exercising each of the challenged strikes. The State responded that it struck venirepersons Britt and Watson because they lived in the area of the arrest. The State also stated that it did not have a good reason for striking Venireperson Cobb but struck her because “she worked in a casino, so she works in the same industry” but did not specify who else worked in the same industry.

After the State provided its reasoning, Defendant made no further argument regarding Venireperson Cobb. Defendant, however, did say that Venireperson Britt had said that he did not know anything about the case and did not have any bias. The State then attempted to distinguish two white jurors, venirepersons Staum and Peterson, who also lived in the same area but were not struck by the State. The State argued that venirepersons Staum and Peterson were pro-State and that the State expected that Defendant would strike them. In fact, Defendant did strike venirepersons Staum and Peterson. Defendant responded that they were still similarly situated jurors because the State did not actually strike them.

The trial court then considered the credibility of the prosecutor and noted the composition of the State’s strikes and the jury panel after the strikes. The State used five of its six peremptory challenges on African-American jurors, and the resulting jury consisted of three African-American jurors and nine white jurors. The trial court also stated that “the State’s exercise of strikes showed some selectivity.” The trial court then said that it was concerned that even if the State expected Defendant to strike certain jurors, the State could still not strike only jurors of one race unless it could distinguish the jurors. The State responded that it had distinguished the jurors. The State argued that Venireperson Peterson’s statements showed that he was pro-State, and the trial court agreed. Venireperson Peterson’s statements do not actually support this argument, but Defendant failed to challenge the State’s characterization before the trial court. The State further claimed that the tone and manner of Veni-reperson Staum in discussing her prior drug conviction suggested that she was pro-State. The State supported this claim by mentioning that Defendant must have noted the same tone because Defendant actually struck Venireperson Staum. The trial court found the State’s arguments to be persuasive and overruled the challenges.

On appeal, Defendant argues that the State’s proffered reasons for striking veni-repersons Britt and Watson were pretex-tual because the State did not actually strike similarly situated white jurors. Defendant also argues that the State’s explanation for striking Venireperson Cobb was a pretext for discrimination because the State’s reasoning was not clear and the State failed to strike a white juror with whom the State was uncomfortable.

The trial court did not err in overruling the Batson challenges to the State’s strikes of venirepersons Britt, Watson and Cobb. For all of the challenged venirepersons, the State provided a race-neutral explanation for its strikes. The State explained that it struck venireper-sons Britt and Watson because they lived in the same area where the arrest took place. “ [F]amiliarity with the scene of a crime is a legitimate, race-neutral reason for exclusion of the panel member from the jury.” State v. Williams, 956 S.W.2d 942, 947 (Mo.App. W.D.1997). Similarly, the State said that it struck Venireperson Cobb because of her occupation as a casino employee. The employment of a venire-person is a valid race-neutral reason to exercise a strike. Johnson, 207 S.W.3d at 37. Although the State did not explain why it considered Venireperson Cobb’s employment important, the State still met its burden in the second Batson step because it must only provide a race-neutral application beyond a mere unsubstantiated denial. McFadden, 216 S.W.3d at 675; Marlowe, 89 S.W.3d at 469. The persuasiveness and plausibility of the proffered explanation is not considered until the third step of a Batson challenge. Marlowe, 89 S.W.3d at 469; State v. Wright, 972 S.W.2d 305, 307 (Mo.App. W.D.) (citing Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769,131 L.Ed.2d 834(1995)).

Because the State provided race-neutral explanations for the challenged strikes, the burden shifted to Defendant to prove that the State’s reasoning is merely a pretext for racial discrimination. McFadden, 216 S.W.3d at 675; Hampton, 163 S.W.3d at 904. We accord the trial court great deference in determining if the State’s reason was mere pretext because the trial court must evaluate the credibility and demeanor of the State as well as the venirepersons. Gray, 887 S.W.2d at 384.

For Venireperson Cobb, Defendant failed to challenge the State’s proffered explanation for exercising the strike. On appeal, Defendant cannot challenge an explanation that was not properly challenged before the trial court. State v. Costello, 101 S.W.3d 311, 312 (Mo.App. E.D.2003). Because Defendant failed to challenge the State’s justification, Defendant has not made an effective Batson challenge and therefore failed to preserve this issue for appeal. State v. Williams, 24 S.W.3d 101, 121 (Mo.App. W.D.2000); Wright, 972 S.W.2d at 307. The point related to this issue is denied.

Defendant, however, did challenge the State’s race-neutral justification, living in the area, for venirepersons Britt and Watson. Defendant argued that the State failed to strike similarly situated white jurors, specifically venirepersons Peterson and Staum. The existence of similarly situated white jurors who were not struck is a crucial factor that a court should consider in determining if the stated reasons were pretextual. Marlowe, 89 S.W.3d at 469. The State contends that the jurors are not actually similarly situated because their comments and demeanor showed that they were pro-State and Defendant was likely to strike them. The record does not support the State’s argument that Venireperson Peterson’s comments suggested that he was pro-State, but Defendant failed to make this argument to the trial court. Defendant cannot now make this argument on appeal because it was not presented to the trial court. State v. Bass, 81 S.W.3d 595, 611 (Mo.App. W.D.2002). The State argued that Venireperson Staum’s manner when discussing her prior drug conviction suggested that she was pro-State. Defendant did argue that Venireperson Staum stated that she would be objective but did not challenge the pro-State characterization made by the State. Although references to demeanor should be heavily scrutinized, prosecutorial hunches based on demeanor and manner can be a sufficient basis for using a peremptory strike. State v. McFadden, 191 S.W.3d 648, 655 (Mo. banc 2006) (noting that vague references to demeanor should be heavily scrutinized); State v. Morrow, 968 S.W.2d 100, 114 (Mo. banc 1998) (finding a venireperson’s hesitation and body language was a legitimate basis for a strike). The State’s perception of venirepersons Peterson and Staum as being pro-State is further supported by the fact that Defendant actually did strike both of them.

Because of the perceived pro-State demeanor of venirepersons Peterson and Staum, the State also believed that Defendant was likely to strike them. The Missouri Supreme Court found a juror to be not similarly situated to a struck juror in part because the prosecutor expected the defendant to strike the juror. State v. Smith, 944 S.W.2d 901, 913 (Mo. banc 1997). The State successfully distinguished venirepersons Peterson and Staum from venirepersons Britt and Watson because of their pro-State manner and the State’s belief that Defendant would strike them for the same reason.

Although a crucial factor, whether a similarly situated white juror exists is not dispositive of whether the strikes were discriminatorily made. Marlowe, 89 S.W.3d at 469; State v. Collins, 290 S.W.3d 736, 742 (Mo.App. E.D.2009). The trial court also considered other factors including the make-up of the jury and the State’s strikes and the credibility of the prosecutor. The trial court noted that the State had shown some selectivity in exercising its challenges and asked for further explanation from the State. After the State stated its belief that the venireper-sons were pro-State, the trial court implicitly found the State credible because the trial court found the State’s explanations persuasive. Based on the totality of the circumstances in this case, Defendant failed to meet its burden of showing that the State’s explanation was merely a pretext for discrimination. Point denied.

Search and Seizure

In his final point on appeal, Defendant claims the trial court erred in denying Defendant’s motions to suppress drug evidence seized from Defendant and Defendant’s post-arrest statements. Defendant argues that the police officers did not have a reasonable suspicion to approach Defendant, and the drug evidence and post-arrest statements were the fruit of an illegal seizure. We disagree.

We ordinarily review the denial of a motion to suppress to determine if there was substantial evidence to support the decision and will only reverse if the trial court’s ruling is clearly erroneous. State v. Gaw, 285 S.W.3d 318, 319-20 (Mo. banc 2009); State v. Ross, 254 S.W.3d 267, 272 (Mo.App. E.D.2008). In making this determination, we view the evidence and all reasonable inferences therefrom in the light most favorable to the trial court’s ruling. Ross, 254 S.W.3d at 272. Because the trial court has a superior opportunity to determine the credibility of witnesses, we defer to the trial court’s credibility determinations and factual findings. Gaw, 285 S.W.3d at 319-20; Ross, 254 S.W.3d at 272. However, we review questions of law, including whether conduct violates the Fourth Amendment, de novo. Gaw, 285 S.W.3d at 320; Ross, 254 S.W.3d at 273.

Clear error review of the denial of a motion to suppress, however, requires that the moving party properly preserved the trial court error. Edwards, 280 S.W.3d at 188. The denial of a motion to suppress is an interlocutory order that is subject to change during trial. Id. Therefore, a party seeking to preserve any claimed error related to the denial of a motion to suppress must make a specific objection when the evidence is offered at trial. Id. If the moving party fails to properly object at trial, then the claimed errors may only be reviewed for plain error. Id. This Court will only reverse under plain error review “where the ruling of the trial court results in a miscarriage of justice or a manifest injustice.” State v. Coyne, 112 S.W.3d 439, 443 (Mo.App. E.D. 2003); see also Rule 30.20.

At trial, Defendant stated that he had no objection to the State’s introduction of the crack cocaine into evidence. Defendant also did not object to Officer Sharp’s testimony regarding Defendant’s statements but did object to Officer Mathew’s testimony regarding the same statements. Defendant failed to properly object to the admission of the statements and the drug evidence, and therefore, he has failed to preserve this issue for appellate review. Edwards, 280 S.W.3d at 188. Because Defendant failed to preserve this issue for review, we will only review for plain error.

The Fourth Amendment of the United States Constitution and the Missouri Constitution, article 1, section 15, guarantees a person’s right to be free from unreasonable searches and seizures. State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). Under the Fourth Amendment, a police officer must generally have at least probable cause to justify a search or seizure. State v. Dye, 272 S.W.3d 879, 881 (Mo.App. S.D.2008). A police officer, how ever, may stop a suspect for a limited duration if the officer has a reasonable suspicion supported by articulable facts that the person is engaged in criminal activity. Id. These protections of the Fourth Amendment, however, do not apply until the suspect has actually been “seized.” State v. Mosby, 94 S.W.3d 410, 416 (Mo.App. W.D.2003).

Not every police-citizen encounter constitutes a “seizure.” State v. Dixon, 218 S.W.3d 14, 18 (Mo.App. W.D. 2007). “A ‘seizure’ occurs when the totality of the circumstances surrounding the incident indicates that a reasonable person would have believed that he was not free to leave.” State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007) (internal citations omitted). We look at the totality of the circumstance in determining whether a police encounter constitutes a seizure. Id. We will also consider the following non-exhaustive list of factors: “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” State v. Stacy, 121 S.W.3d 328, 332 (Mo.App. W.D.2003). A “seizure” does not occur until the suspect actually submits to the police’s assertion of authority or the police apply physical force against the suspect. State v. Deck, 994 S.W.2d 527, 535 (Mo. banc 1999) (citing California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)); Mosby, 94 S.W.3d at 416.

Defendant filed pretrial motions to suppress the drug evidence and his post-arrest statements. The trial court stated that the motion to suppress the drug evidence could be taken with the case. For the motion to suppress the statements, Officer Mathews testified at the motion hearing to the following facts: Officers Sharp and Mathews approached Defendant after receiving an anonymous tip of drug activity. Defendant was at the location described by the tipster and matched the tipster’s description of the man selling drugs. Officer Mathews approached Defendant and ordered him to take his hand out of his pocket. Defendant did not remove his hand and began to walk away from the officer. Officer Mathews again ordered Defendant to remove his hand, but Defendant again failed to comply. Defendant then fell into a mud hole and while falling, dropped several bags of crack cocaine. Officer Mathews grabbed Defendant and with the help of Officer Sharp arrested Defendant for drug trafficking in the second degree and for resisting arrest. After Officer Mathews read Defendant his Miranda rights, Defendant stated that he would provide information about drug dealers if given a break on these charges.

Defendant also testified at the evidentia-ry hearing. He denied making any statement, and he denied that he had any drugs on him at the time of the arrest. Defendant testified that Officer Sharp ordered him to turn around to be searched and then forced him to the ground after Defendant started to walk away. Defendant testified that he stopped resisting the police after Officer Mathews pointed his gun at Defendant. The trial court explicitly credited the testimony of Officer Mathews and denied Defendant’s motion to suppress the statements. Defendant’s motion to suppress the drug evidence was also denied on the day of the trial.

On appeal, Defendant claims the trial court erred in overruling his motions to suppress because officers did not have a reasonable suspicion of criminal activity to allow them to approach Defendant. Defendant argues that an anonymous tip without an independent basis to suspect illegal activity was insufficient to provide reasonable suspicion. Therefore, the trial court should have suppressed Defendant’s statements and the seized drug evidence because they were the fruit of an unlawful stop.

The trial court did not err in overruling Defendant’s motions to suppress because Defendant was not seized by police at the time the officers approached Defendant. We defer to the trial court’s credibility determinations and factual findings. Gaw, 285 S.W.3d at 819-20; Ross, 254 S.W.3d at 272. The trial court found Officer Mathews credible when he testified that Defendant did not voluntarily submit to the officer’s orders to remove his hands. The State showed that Defendant did not voluntarily submit to Officer Mathew’s show of authority and that at the time of the initial approach, the officers had not yet applied physical force against Defendant. Defendant was thus not seized at the time the officers approached him. Mosby, 94 S.W.3d at 416.

Defendant’s failure to comply distinguishes this case from State v. Gabbert, on which Defendant relies. 213 S.W.3d 713 (Mo.App. W.D.2007). In Gabbert, the defendant actually complied with the officer’s order to remove his hands. Id. at 718-19. The trial court found that he had been seized, and the appellate court affirmed the granting of the motion to suppress. Id. Here, Defendant did not comply and was therefore not seized. The protections of the Fourth Amendment did not yet apply, and the officers did not need probable cause or even a reasonable suspicion merely to approach Defendant. Mosby, 94 S.W.3d at 416. Point denied.

Conclusion

The evidence was insufficient to support Defendant’s conviction for resisting arrest. We therefore reverse the judgment of the trial court and vacate Defendant’s conviction and sentence for resisting arrest. We affirm the judgment of the trial court on all other points.

KATHIANNE KNAUP CRANE, P.J., and CLIFFORD H. AHRENS, J., concur.

      . Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1987).

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

      . All statutory references are to RSMo.2000, unless otherwise indicated.

      . Robert Patrick, City Officer Impugned; Drug Case Dismissed, St. Louis Post-Dispatch, Dec. 1, 2009, at Al; Heather Ratcliffe, Officers Named 1 Dead, 1 Jailed as Informers, St. Louis Post-Dispatch, Aug. 29, 2009, at A4; Robert Patrick & Heather Ratcliffe, Confidential Informers Spur Inquiry, St. Louis Post-Dispatch, Aug. 19, 2009, at Al.

      . All rule references are to Mo. Sup.Ct. R. (2009), unless otherwise indicated.

      . The trial court granted Defendant additional time to complete his motion for new trial consistent with Rule 29.11(b).

      . Defendant argues that the trial court agreed sarcastically. Our review is limited to the cold record, and we are unable to find that the statement was made sarcastically.

      . Defendant cites State v. Martin for the proposition that although he did not properly object at trial, the error was still preserved. 79 S.W.3d 912 (Mo.App. E.D.2002). In Martin, the appellate court held that the defendant preserved the alleged trial court error even though the defendant responded "no objection” when the evidence was offered for admission. Id. at 915. The defendant had filed a motion to suppress before trial and then reasserted the motion at the start of the trial. Id. The trial court ordered the motion to be taken with the case and ruled on the motion at the end of the trial. Id. In this case, Defendant failed to reassert the motion to suppress during trial and also did not object to the admission of the evidence. Therefore, Martin does not apply to the facts of this case.

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

      . The trial court ordered the State not to discuss parts of Defendant’s statement regarding Defendant’s recent release from prison, but this part of the trial court’s order is irrelevant to the resolution of Defendant’s point on appeal.


source: Caselaw Access Project

author: KATHIANNE KNAUP CRANE, Presiding Judge.

license: Public Domain

text:
    ST. LOUIS COUNTY, MISSOURI, Plaintiff/Appellant, v. Robert C. WATSON, et al., Defendants, and John S. Garagnani, and Doris A. Garagnani, Defendants/Respondents.
    No. ED 93472.
    Missouri Court of Appeals, Eastern District, Division One.
    March 30, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 12, 2010.
    Application for Transfer Denied June 29, 2010.

      Paul J. Puricelli, Stone, Leyton & Gershman, P.C., St. Louis, MO, for appellant.

      Robert Denlow, Paul G. Henry, Denlow & Henry, St. Louis, MO, for respondents.
   KATHIANNE KNAUP CRANE, Presiding Judge.

This appeal raises the question whether a trial court abuses its discretion by awarding a landowner interest under the last sentence of section 523.045 RSMo (2000) on a damage award in an abandoned condemnation proceeding if the landowner does not introduce evidence that it suffered a deprivation of property rights beyond the loss of use of money while the proceedings were pending. Because a trial court has the discretion to award interest without such evidence, we affirm.

Plaintiff, St. Louis County, (the County) is a charter county and a political subdivision of the State of Missouri. On December 19, 2006, the County filed a petition in condemnation in the Circuit Court of St. Louis County to condemn a number of parcels of property as part of the North-Park tax increment financing project. In its petition, the County sought to condemn, inter alia, property owned by defendants, John S. Garagnani and Doris A. Garagnani (the landowners), which they were using for a towing and auto repair business. On May 3, 2007, the court-appointed commissioners filed a report in which they assessed the landowners’ net damages at $840,000.00. The County and the landowners each filed exceptions to the commissioners’ report and requested a trial setting. The County did not pay the damages assessed by the commissioners into the court and did not take title to or possession of the land while the proceedings were pending.

Over two years later, on July 7, 2009, the County filed its written election to abandon the condemnation proceedings. The landowners filed a motion for assessment of interest pursuant to section 523.045. They sought statutory interest in the amount of $109,222.88, which represented interest at the rate of six percent per annum on the commissioners’ $840,000.00 award from the date of that award to the date the County elected to abandon the condemnation proceedings. After hearing argument, the trial court entered a judgment awarding interest to the landowners in the amount of $109,222.88. The County appeals.

For its sole point on appeal, the County asserts that the trial court erred in awarding interest to the landowners pursuant to the last sentence of section 523.045 because the landowners did not introduce any evidence that they suffered a deprivation of their property rights, by which it means a loss other than a loss of the right to receive and use the amount of the award. It contends that such a showing is a necessary precondition to the trial court’s exercise of its discretion to award interest under section 523.045. We disagree.

This case involves the last sentence of section 523.045, which allows the trial court to award interest in condemnation lawsuits when the condemnor abandons the condemnation proceeding more than thirty days after the commissioners’ award and the condemnor did not pay the award to the property owners or the court during the initial thirty days. That sentence provides:

If, within thirty days after the filing of any such commissioners’ report, the con-demnor shall have neither paid the amount of the award to said persons or to the clerk for them nor filed its written election to abandon the appropriation, but shall thereafter timely file such written election to abandon, then the court may, upon motion filed by said persons within ten days after the filing of said election, assess against the condemnor six percent interest on the amount of the award from the date of the filing of the commissioners’ report to the date of the filing of such election, enter judgment thereon and enforce payment thereof by execution or other appropriate proceeding.

Section 523.045.

It is beyond dispute that this award of interest “is not a matter of right, but is discretionary with the trial court.” 66, Inc. v. Crestwood Commons Redevelopment, 998 S.W.2d 32, 40 (Mo. banc 1999) (Crestwood Commons IV). See also 66, Inc. v. Crestwood Commons Redev. Corp., 130 S.W.3d 573, 586 (Mo.App.2003) (Crestwood Commons V); City of St. Charles v. Imperial Catering, 6 S.W.3d 151, 152 (Mo.App.1999); Cottleville v. American Topsoil, Inc., 998 S.W.2d 114, 119 (Mo.App.1999).

The statutory allowance of interest on the money a property owner is entitled to receive when the commissioners’ report is made is not for damages suffered as a result of the pendency of the condemnation proceedings; rather, the statute provides for interest as compensation for the property owner’s loss of the right to receive and use the money while the condemnation proceeding is pending. Missouri State Park Bd. v. McDaniel, 513 S.W.2d 447, 451-52 (Mo.1974). See also Crestwood Commons TV, 998 S.W.2d at 40; Crestwood Commons v. 66 Drive-in, Inc., 882 S.W.2d 319, 321 (Mo.App.1994) (Crest-wood Commons II). As explained in McDaniel, even though a property owner’s land is not “taken” prior to abandonment, “that does not mean that an owner can lose nothing by litigation, especially prolonged litigation over the amount of his compensation.” 513 S.W.2d at 450. It added: “Some loss seems certain where the condemnor does not pay into court the amount of the commissioners’ award, which the landowner would have the right to take and use.” Id. It continued: “Usually the longer the delay the greater the loss to the landowner.” Id. McDaniel draws a clear distinction between an award of interest, which represents the loss of the right to receive and use the money, and damages, which represent other costs a property owner might suffer during the condemnation period. Id. at 450-52.

A trial court has the power to exercise its discretion to award interest under this section of the statute based on the loss of the right to receive and use the money; no other evidence of loss is required, and evidence of non-recoverable damages in the form of other costs or monetary damages the property owner may have incurred during the pendency of the proceedings is irrelevant. Crestwood Commons II, 882 S.W.2d at 322; American Topsoil, 998 S.W.2d at 119. In Crest-wood Commons II, the trial court had conducted a hearing at which the property owner adduced evidence of the costs it incurred during the 206 days prior to abandonment. However, we affirmed the trial court’s judgment awarding the property owner interest under the last sentence of section 523.045 on other grounds, and we specifically held that the evidence that the property owner suffered any loss, other than the loss of use of money, prior to abandonment was irrelevant. 882 S.W.2d at 322. We held that the trial court did not abuse its discretion in awarding interest because the property owner had lost the return it could have earned by making use of the award from the date of the report, which was what the interest award represented. Id.

In American Topsoil, the trial court had offered the property owner an evidentiary hearing on its motion for interest under the last sentence of section 528.045, which the property owner declined. The court subsequently denied the motion. On appeal, we held that the trial court had not abused its discretion in denying interest. 998 S.W.2d at 120. We implicitly recognized that it would be improper for the trial court to deny interest based on the property owner’s failure to prove any nonrecoverable damages resulting from the condemnation award. Id. However, we determined that the trial court’s mention of the property owner’s declination of its offer to hold an evidentiary hearing did not indicate that the trial court improperly based its decision on that failure. Id. Instead, the trial court was giving the property owner an opportunity to show any circumstances that would make a discretionary award of interest equitable because of any practical deprivation of property rights. Id.

The County argues that the phrase “practical deprivation of property rights,” which appears in American Topsoil, 998 S.W.2d at 119, and in Crestwood Commons V, 130 S.W.3d at 586, requires a property owner to establish a loss of proprietary rights at an evidentiary hearing. The phrase “practical deprivation of proprietary rights” as used in those opinions does not refer to or require evidence of nonrecoverable damages in the form of costs or monetary damages incurred during the pendency of the condemnation proceedings. In American Topsoil, we specifically emphasized that a property owner was not required to prove non-recoverable damages. 998 S.W.2d at 120. The phrase “practical deprivation of property rights” only refers to the underlying rationale for the statutory award of interest covering the period when the property has not been taken but is subject to condemnation, as this concept is set out and explained in McDaniel, 513 S.W.2d at 450. The phrase does not expand or alter McDaniel.

In sum, the last sentence of section 523.045 consigns the award of interest to the broad discretion of the trial court. Because the loss of the right to receive and use the money is a sufficient basis for the court to award interest, a trial court can exercise its discretion to award interest under this part of the statute without an evidentiary hearing. Point one is denied.

Conclusion

The judgment in the landowners’ favor is affirmed.

CLIFFORD H. AHRENS and NANNETTE A. BAKER, JJ., concur.

      . All further statutory references are to RSMo (2000) unless otherwise indicated.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Kenneth CLAYTON, Appellant.
    No. ED 92919.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 6, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 12, 2010.
    Application for Transfer Denied June 29, 2010.

      Kevin L. Schriener, Clayton, MO, for Appellant.
    Shaun J. Mackelprang, Terrence M. Messonnier, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Kenneth Clayton (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury convicted him of one count of assault in the first degree, Section 565.050 RSMo (2000), and one count of armed criminal action, Section 571.015 RSMo (2000). Appellant was sentenced as a prior and persistent offender to two terms of twenty-five years’ imprisonment, to run concurrently.

Appellant raises four points on appeal. First, Appellant challenges the sufficiency of the evidence to sustain his assault conviction. Second, Appellant argues the trial court plainly erred in overruling his objection to the State’s peremptory strike of an African-American female venireperson in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Third, Appellant claims the trial court plainly erred in submitting a jury instruction which he argues misstated an element of the offense of armed criminal action. Fourth, Appellant asserts the trial court plainly erred by overruling his motion to suppress identification testimony in that he claims the police used unduly suggestive procedures when procuring the pretrial identifications.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. We find no error of law. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


author: DAVID C. DALLY, Special Judge.

text:
    Autumn RILEY, Plaintiff-Respondent, v. Guy HEADLAND, Defendant-Appellant.
    No. SD 29716.
    Missouri Court of Appeals, Southern District, Division Two.
    April 14, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied May 6, 2010.
    Application for Transfer Denied June 29, 2010.

      H. Edward Ryals, St. Louis, John M. Vaught, Denver, CO, for Appellant.
    Benjamin A. Stringer, Steven J. Blair, Springfield, for Respondent.
   DAVID C. DALLY, Special Judge.

Guy Headland (Defendant) appeals the trial court’s judgment that awarded future medical and future non-economic damages, claiming that the trial court failed to apply the correct legal standard for awarding such damages. We affirm.

Factual and Procedural Background

This cause arose out of a motor vehicle collision in the City of Springfield between Autumn Riley (Plaintiff) and Defendant. Defendant had spent several hours after work drinking before starting home and colliding with the rear of Plaintiffs vehicle. Prior to trial, Plaintiff filed a Motion for Partial Summary Judgment on the issue of liability. Defendant did not file a response and the trial court entered judgment sustaining Plaintiffs summary judgment motion.

A bench trial was held on the issue of damages only and the trial court entered written Findings of Fact and Conclusions of Law and Judgment. The court awarded Plaintiff $900,000.00 in damages resulting from the collision. The trial court found that Plaintiff sustained, and is reasonably certain to sustain in the future, the following damages:

Past Medical $ 27,824.31
Future Medical $146,496.53
Past non-economic $100,000.00
Future non-economic $625,679.16
Total $900,000.00

Defendant timely appealed the award of future damages.

Discussion

Defendant’s sole point on appeal states, “The trial court committed reversible error in awarding damages for the future consequences of [Plaintiffs] injuries where it failed to apply the correct legal standard for awarding such damages.” We note that Defendant’s Point Relied On is deficient for failing to comply with Rule 84.04(d) in a number of ways. Rule 84.04(d) states:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action] because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].”

Defendant’s point relied on is deficient in that it does not state the legal reasons for his claim of reversible error and why, in the context of the case, such legal reasons support his claim of reversible error. Defendant’s point claims the trial court failed to apply the “correct legal standard” without describing the erroneous legal standard that was applied or the “correct legal standard” that should have been applied. We are not being overly technical. It is important that the rule be followed so we “do not become advocates by speculating on facts and on arguments that have not been made.” Arch Ins. Co. v. Progressive Casualty Ins. Co., 294 S.W.3d 520, 522 (Mo.App.2009) (quoting Bridges v. American Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo.App.2004)). A deficient point relied on forces us “to search the argument portion of the brief or the record itself to determine and clarify the appellant’s assertions, thereby wasting judicial resources, and, worse yet, creating the danger that the appellate court will interpret the appellant’s contention differently than the appellant intended or his opponent understood.” Moran v. Mason, 236 S.W.3d 137, 141 (Mo.App.2007) (quoting Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo.App.2000)). Cognizant of this danger, however, we proceed ex gratia to consider the merits of Defendant’s point as best we can discern it. See Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997).

We must affirm the judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Pomona Mobile Home Park v. Jett, 265 S.W.3d 396, 398 (Mo.App.2008). The issue of whether the court applied the correct legal standard is a question of law that we review de novo. Kesler-Ferguson v. Hy-Vee, Inc., 271 S.W.3d 556, 558 (Mo. banc 2008).

The trial court’s judgment specifically states that Plaintiff “sustained and is reasonably certain to sustain in the future” the damages awarded by the court. This is the correct legal standard for future damages as stated in Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 210-211 (Mo. banc 1991) and Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 130 (Mo. banc 2007). In addition, “[t]rial judges are presumed to know the law and to apply it in making their decisions.” State v. Carlock, 242 S.W.3d 461, 465 (Mo.App.2007) (quoting State v. Feltrop, 803 S.W.2d 1, 15 (Mo. banc 1991)).

Defendant argues that even though the trial court recited the proper legal standard in its judgment awarding future damages, its decision should be reversed because it was based upon evidence admitted under an incorrect legal standard that was objected to at the time of admission. The latter assertion has no merit and is fatal to Defendant’s point.

The following exchange took place between Plaintiffs counsel and Dr. Boyd Crockett while testifying concerning Plaintiffs future damages:

[Plaintiffs counsel]: All right. Sometimes, Doctor, the phrase reasonable degree of medical certainty is used in litigation. For today’s purposes, I want you to assume that that definition means that your opinion is held to be more likely than not. Okay?
[Dr. Crockett]: Yes.

Defendant argues that the remainder of Dr. Crockett’s testimony should not have been admitted into evidence because it was not based on reasonable certainty, and because his counsel made a proper and contemporaneous objection to all testimony based upon this erroneous standard, calling it speculative and without foundation.

Following the exchange quoted above, Defendant’s counsel stated, “I’m going to object as to — .” The trial court responded, “Okay,” and Plaintiffs counsel continued with the questioning. The following exchange then took place:

[Plaintiffs counsel]: You have provided a list of future care needs in this case; is that correct?
[Dr. Crockett]: Yes, sir.
[Plaintiffs counsel]: And are the list of future care needs recommendations that you are making to this Court and that you believe [Plaintiff] will need as a result of the annular tear that she suffered due to the accident of July 21st, 2006?
[Dr. Crockett]: Yes, sir.
[Plaintiffs counsel]: You hold those opinions—
[Defendant’s counsel]: Objection to foundation, speculation, Your Honor.
The Court: Okay. What’s the lack of foundation?
[Defendant’s counsel]: I don’t think he’s laid a basis for future treatment. There is just no foundation at this point yet, Your Honor.
[Plaintiffs counsel]: I don’t know what foundation — additional foundation I would require.
The Court: I will overrule the objection.

Defendant’s counsel never attempted to inform the court of which foundational element he considered to be deficient or why the testimony was speculative. Defendant did not object to the testimony on the ground that Dr. Crockett’s testimony was not to the standard of “reasonable certainty.”

“In order to preserve an issue for appeal, a party must object to the alleged error at trial; furthermore, the party must object on the particular grounds he or she wishes to argue on appeal.” Catroppa v. Metal Bldg. Supply, Inc., 267 S.W.3d 812, 816 (Mo.App.2008) (citing Robinson v. Em piregas, Inc. of Hartville, 906 S.W.2d 829, 836 (MoApp.1995)).

“A general objection of lack of foundation does not call to the court’s attention the aspect of the foundation which is considered lacking. As such it is inadequate to preserve the matter for review.” Stewart v. Director of Revenue, 702 S.W.2d 472, 476 (Mo. banc 1986) (quoting Pazdernik v. Decker, 652 S.W.2d 319, 321 (Mo.App.1983)). See also Carter v. St. John’s Regional Medical Center, 88 S.W.3d 1,18-19 (Mo.App.2002).

Defendant’s general objection to Dr. Crockett’s testimony regarding future damages as being without foundation and speculative was not preserved for our review as it failed to specify which foundational element was deficient and to inform the court how the testimony was based upon speculation. Point denied. Judgment affirmed.

SCOTT, C.J., and LYNCH, P.J., concur.


author: DON E. BURRELL, Judge.

text:
    R. Ross POOL and Tammie Pool, Plaintiffs-Appellants, v. FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI, Defendant-Respondent.
    No. SD 29823.
    Missouri Court of Appeals, Southern District, Division One.
    April 19, 2010.
    Rehearing Denied May 11, 2010.
    Application for Transfer Denied June 29, 2010.

      Matthew J. Devoti, St. Louis, MO, for Appellants.
    Patrick A. Bousquet, St. Louis, MO, for Respondent.
   DON E. BURRELL, Judge.

Ronnie R. Pool (“Ross”) and Tammie Pool (“Tammie”) (collectively, “Plaintiffs”), husband and wife, sued their insurance company, Farm Bureau Town & Country Insurance Company of Missouri (“Farm Bureau”), over its handling of a property damage claim. Plaintiffs asserted claims based on breach of contract (Count I), breach of fiduciary duty (Count II), and fraud (Count III). The trial court entered summary judgment in favor of Farm Bureau on Plaintiffs’ breach of fiduciary duty and fraud claims. Plaintiffs’ remaining contract claim was tried to a jury. The jury rendered a verdict in favor of Farm Bureau, and the trial court entered judgment in accordance with that verdict. When the trial court denied Plaintiffs’ Motion for New Trial, this appeal timely followed.

Plaintiffs allege the trial court committed reversible error by: (1) permitting Tammie to be cross-examined with a facsimile copy of a document entitled Construction Authorization (“the Construction Authorization”); (2) receiving the Construction Authorization into evidence; (3) submitting a jury instruction that did not require the jury to find all of the ultimate facts necessary to establish Farm Bureau’s affirmative defense of accord and satisfaction; and (4) granting summary judgment to Farm Bureau on Plaintiffs’ breach of fiduciary duty claim. Finding merit in Plaintiffs’ instructional error claim, we affirm the trial court’s judgment in favor of Farm Bureau on Plaintiffs’ breach of fiduciary duty claim, reverse the judgment in favor of Farm Bureau on Plaintiffs’ contract claim, and remand the matter for a new trial on Plaintiffs’ contract claim.

Facts

In February of 2003, a water pipe inside Plaintiffs’ home burst. The released water traveled through the wall, under the floor, and eventually pooled in the crawlspace beneath the house. That water ultimately warped the center beam supporting the floor joists and caused the roof and the walls in the kitchen and bedroom to settle. At the time of these events, Plaintiffs had in effect a homeowners’ insurance policy acquired from Farm Bureau that provided coverage for damage to the home incurred as a result of sudden, accidental and direct loss as well as coverage for any personal property that was thereby physically destroyed or rendered unusable. In the event of such a loss, the policy provided that “[a]t our option, we "will pay to you actual cost of the damage or the cost of repairs so that your property is returned to the same condition it was prior to the loss.” The term “you” was defined by the policy as “the named insured.” Ross was listed in the policy as the named insured.

Ross was deployed in Iraq as an active member of the United States Marine Corps when the pipe burst. When Tammie contacted Farm Bureau to report the water damage, the agent she spoke with on the telephone informed her that only Ross, as the named insured, could initiate a claim. Farm Bureau did not open a property loss claim for Plaintiffs until nearly two months after the pipe burst.

Once Farm Bureau opened the claim, Tammie began searching for a contractor to make the necessary repairs. Mark Fuchs (“Fuchs”) was the claims representative Farm Bureau assigned to handle Plaintiffs’ claim. Fuchs informed Tammie “that the choice of contractor was hers and hers alone,” and that he had no preference as to whom she chose. Fuchs’s supervisor, Bruce Bruemmer, also stated that it was the homeowner’s decision as to who to hire to fix any damages incurred. Tammie testified that she obtained two estimates, one from Good Construction and another from Commercial Installations. Fuchs rejected the $81,300 Commercial Installations estimate as too high or lacking sufficient detail and testified that he never received an estimate from Good Construction. Fuchs attempted to speak with a representative from Commercial Installations but had been unable to reach him.

During this same time period, Fuchs had become acquainted with Anthony “Tony” Breedlove (“Breedlove” or “Tony”) of Mastercraft Construction (“Master-craft”) when Breedlove made a cold call on Fuchs to solicit business from Farm Bureau. Fuchs testified that Breedlove had a computer program that would write a detailed estimate, so Fuchs contacted Breedlove to ask him to do an estimate on Plaintiffs’ home. Breedlove testified that he had received such a call from Fuchs informing him that Plaintiffs were having a difficult time finding a contractor and asking if he would be “willing to go down there.” Breedlove agreed to go to Plaintiffs’ home to prepare an estimate.

Breedlove testified that the first time he went to Plaintiffs’ home, he had Tammie sign the Construction Authorization before he began working on his estimate. Breed-love testified that the Construction Authorization was a form document that authorized Mastercraft to work with Farm Bureau and to begin the repair work on Plaintiffs’ home. It also explained that Mastercraft was not employed by or affiliated with Farm Bureau in any way and authorized Farm Bureau to add Master-craft as an additional payee on any checks issued by Farm Bureau for repairs made to Plaintiffs’ home. This was the standard authorization he had used with all of his clients. Breedlove testified that he then faxed a copy of the Construction Authorization to Farm Bureau “to allow them to put our names on the checks.” Fuchs also testified that Mastercraft was placed on the checks Farm Bureau issued at “[Tam-miej’s request.” Tammie testified that the signature on the Construction Authorization appeared to be hers.

Farm Bureau approved the estimate given by Mastercraft and eventually issued three checks to pay for the repairs made to Plaintiffs’ home. Each of those checks was made payable to “Ronnie R. Pool and Mastercraft Construction, Tony.” Tammie testified that she had asked Fuchs to make the checks payable solely to her “[bjecause then I would have a choice of the estimates that I had, and then I could handle it rather than using a Power of Attorney!] You know, just less hassle.” Tammie testified that she did not want Mastercraft’s name on the checks but that Fuchs told her it was “company policy” to put the name of the policyholder and the contractor on the checks.

Tammie allowed Mastercraft to begin working on her home after she received a claim check with both names on it. As to the first joint check issued by Farm Bureau to Ross and Mastercraft, Tammie and Breedlove both signed it, and Tammie took it to the bank and had it converted to a cashier’s check. Tammie put $2,000 of the check’s proceeds in her bank account, giving the rest to Breedlove/Mastercraft. When Breedlove received the next two joint checks from Fuchs, he picked up Tammie, whose car was not operable, and they went to the bank together to cash them. Tammie endorsed the second check (in the amount of $15,688.70) and gave it to Breedlove. Breedlove then had Tammie keep the third check (in the amount of $4,584.80), telling her it was “insurance” that he would finish the job. At no time during this process did Tammie indicate that she did not wish to hire Mastercraft as the contractor. Tammie testified, however, that she believed she had no choice but to permit Breedlove/Mastercraft to work on her home because “he was on the check.”

Plaintiffs’ contract claim against Farm Bureau included an allegation that Farm Bureau’s failure to pay their claim was vexatious, not because Farm Bureau failed to pay an agreed-upon amount to repair the damages to Plaintiffs’ home, but because Farm Bureau failed to comply with its policy language that indicated payment would be made to the insured alone, not to the insured and the contractor. In defending that portion of Plaintiffs’ claim, Farm Bureau questioned Tammie about the Construction Authorization she had apparently signed. After Tammie admitted that the signature on the Construction Authorization appeared to be hers, the trial court also received the document into evidence over Plaintiffs’ “best evidence” objection. The Construction Authorization received into evidence was the document Farm Bureau had received via facsimile transmission from Breedlove. Breedlove testified that the original Construction Authorization signed by Tammie was no longer available, as his file relating to the work he did for Plaintiffs had been destroyed.

In total, Mastercraft received more than $22,000 of the $27,092.27 paid by Farm Bureau on Plaintiffs’ claim. Within one month of Breedlove receiving the second check, Mastercraft stopped work on Plaintiffs’ home, which is no longer habitable. Tammie testified that she did not use any of the money she had retained from the checks issued by Farm Bureau to prevent any further deterioration to the home. Tammie also did not alert anyone at Farm Bureau that Breedlove had walked off the job until at least five months after he had done so.

Analysis

Point I: Admission of the Construction Authorization

Plaintiffs’ first point alleges the trial court abused its discretion by allowing Farm Bureau to cross-examine Tammie with the Construction Authorization and then receiving it into evidence because “[Farm Bureau] failed to establish an adequate foundation for admission of [the Construction Authorization], in that [the Construction Authorization] is a copy of a facsimile which [Farm Bureau] failed to demonstrate was trustworthy and [Farm Bureau] failed to demonstrate was a true copy of a writing that once existed.” Plaintiffs argue that no witness testified that the document “was a correct duplicate of a document that once existed.” Because this issue is sure to arise on retrial, we will address it. See City of Lee’s Summit v. R & R Equities, LLC, 112 S.W.3d 38, 43 (Mo.App. W.D.2003); Yingling v. Hartwig, 925 S.W.2d 952, 957 (Mo.App. W.D.1996).

A. Standard of Review

“The admission or exclusion of evidence is a matter of trial court discretion.” Intertel, Inc. v. Sedgwick Claims Mgmt. Sens. Inc., 204 S.W.3d 183, 193 n. 3 (Mo.App. E.D.2006). We will reverse the trial court’s ruling only “if the court has clearly abused its discretion.” Id. at 195. “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and so arbitrary and unreasonable that the ruling shocks the sense of justice and indicates a lack of careful deliberation.” Id. “Upon review, we must view the evidence and any reasonable inferences in the light most favorable to the verdict, and disregard any contrary facts and inferences.” Sparkman v. Columbia Mut. Ins. Co., 271 S.W.3d 619, 623 (Mo.App. S.D.2008).

We first note that Plaintiffs’ point is multifarious in violation of Rule 84.04 in that it attempts to challenge two separate rulings in a single point relied on. See State ex rel. Roster v. Allen, 298 S.W.3d 139, 144 (Mo.App. S.D.2009). To allow an attorney to refer to a document while attempting to impeach a witness’s testimony during cross-examination is not the same ruling as allowing the document itself to be received as substantive evidence. To impeach a witness with a prior inconsistent statement, “[t]he witness must be given a chance to refresh his recollection of the prior statement and to admit, deny, or explain it.” Johnson v. National Super Mkts., Inc., 752 S.W.2d 809, 812 (Mo.App. E.D.1988). A different foundation is necessary to support the admission of a document under the best evidence rule.

Although we may choose to review a defective point as long as the deficiency does not impede a disposition on the merits, Bolz v. Hatfield, 41 S.W.3d 566, 571 (Mo.App. S.D.2001), there is no need for us to determine whether we should do so in this case because Plaintiffs have failed to cite any authority supporting their argument that the trial court erred in allowing defense counsel to refer to the contents of the Construction Authorization while cross-examining Tammie. As a result, this portion of Plaintiffs’ first point is deemed abandoned and fails for that reason. See Donovan v. Temporary Help, 54 S.W.3d 718, 720 (Mo.App. E.D.2001).

B. The Best Evidence Rule

The remaining portion of Plaintiffs’ first point challenges the admission of the Construction Authorization under the “best evidence rule.” “The ‘best evidence rule applies only when the evidence is offered to prove the terms or contents of a writing or recording.’ ” Boroughf v. Bank of Am., N.A., 159 S.W.3d 498, 503 (Mo.App. S.D.2005) (quoting Cooley v. Director of Revenue, 896 S.W.2d 468, 470 (Mo. banc 1995)). “The principal reason for the rule is the danger of mistransmission of the contents of a writing when evidence other than the writing itself is offered for the purpose of proving its terms.” Id. “For example, the exact words used are critically important in the case of deeds, wills or contracts, where even a slight variation of those words may mean a great difference in the rights conferred under the document.” Id. “A trial court has broad discretion when ruling upon a complaint that proffered documentary evidence violates the best evidence rule, and the court’s decision is subject to reversal only in cases of clear abuse.” Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 53 (Mo.App. S.D.2004).

In the instant case, Farm Bureau did not seek admission of the Construction Authorization to prove its exact terms or even to prove that it had actually been executed by Tammie. Instead, Farm Bureau introduced the document as evidence that the Construction Authorization faxed to Farm Bureau provided Farm Bureau with a good-faith basis to believe that Tammie had authorized Farm Bureau to include Mastercraft as a joint payee on the checks it issued; it was relevant as a defense to Plaintiffs’ claim that Farm Bureau’s decision to make the claim checks jointly payable to its named insured and Mastercraft was willful and without reasonable cause or excuse. See Shirkey v. Guarantee Trust & Life Ins. Co., 258 S.W.3d 885, 888-89 (Mo.App. W.D.2008). When used for that purpose, the facsimile copy of the Construction Authorization possessed by Farm Bureau was the “original” document at issue and the best evidence rule was not implicated. Plaintiffs’ first point is denied.

Point II: Jury Instruction No. 7

Plaintiffs’ second point alleges the trial court erred in submitting Instruction No. 7 to the jury because the instruction did not require the jury to find all of the ultimate facts necessary to establish Farm Bureau’s affirmative defense of accord and satisfaction. Specifically, Plaintiffs allege the instruction did not ask the jury to determine whether Plaintiffs had agreed to allow Farm Bureau to issue claim checks that included Mastercraft as a joint payee.

A. Standard of Review

“This Court reviews de novo, as a question of law, whether a jury was properly instructed.” Morgan v. State, 272 S.W.3d 909, 911 (Mo.App. W.D.2009). “Although our review is de novo, we do view the evidence in the light most favorable to the submission of the instruction and we disregard evidence and inferences to the contrary.” Bradford v. BJC Corp. Health Svcs., 200 S.W.3d 173, 178-79 (Mo.App. E.D.2006). Furthermore, “we will not reverse a verdict for instruction error unless the error is prejudicial in that it materially affects the merits of the action.” St. Charles County v. Olendorff, 234 S.W.3d 492, 495 (Mo.App. E.D.2007).

B. Non-MAI Instructions

Rule 70.02 governs the provision of instructions to juries. McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162, 168 (Mo.App. E.D.2006). “When there is no applicable MAI instruction, a non-MAI instruction may be given if it conforms to the requirements of Rule 70.02 in that it is simple, brief, impartial and free from argument.” City of Kansas City v. Habelitz, 857 S.W.2d 299, 303 (MoApp. W.D.1993). “And in giving such a non-MAI instruction, ‘the court must adopt an instruction that follows the substantive law and can be readily understood by the jury.’ ” Morgan, 272 S.W.3d at 911 (quoting Lewis v. State, 152 S.W.3d 325, 329 (Mo.App. W.D.2004)); Rule 70.02(b). “The instructions together must require a finding of all the ultimate facts necessary to sustain a verdict.” Durley v. Board of Police Comm’rs, 238 S.W.3d 685, 687 (Mo.App. E.D.2007). “In order for us to reverse on instructional error, we must find that the instruction at issue misdirected, misled, or confused the jury, and prejudice resulted.” Id. “As a general proposition it is error to remove an essential element of a case from the jury’s consideration.” Huff v. Union Elec. Co., 598 S.W.2d 503, 515 (Mo.App. E.D. 1980). “However, a jury should not be required to find an element or fact not actually contested or in issue.” Id.

C. Accord and Satisfaction

“An accord is an agreement for the settlement of a previously existing claim by a substituted performance.” Hiblovic v. Cinco-T.C., Inc., 40 S.W.3d 921, 923 (Mo.App. E.D.2001). “Satisfaction is the performance of the agreement.” Id. “An accord and satisfaction requires both the accord and satisfaction.” Id. “Whether an accord and satisfaction has been reached is generally a question of fact.” Id. “Accord and satisfaction must meet the basic requirements of a simple contract.” Alaska Fed. Sav. & Loan Ass’n. v. Hoffman, 485 S.W.2d 118, 123 (Mo.App.K.C.D. 1972). “The contract hinges primarily on the matter of intention, and if the facts regarding intention are in dispute, such disputed facts are for the determination of the jury.” Id. Finally, “[t]he issue of accord and satisfaction must be determined according to the existing facts at the time of the settlement.” Id. at 124. “Insurance policies are contracts, and the rules of contract construction apply.” Arbeitman v. Monumental Life Ins. Co., 878 S.W.2d 915, 916 (Mo.App. E.D.1994). “Contract interpretation is a question of law.” Inter-tel, 204 S.W.3d at 196. “The words of an insurance contract are given their ordinary meaning.” Arbeitman, 878 S.W.2d at 916.

D. Contents of Instruction No. 7

Instruction No. 7 stated: “Your verdict must be for Defendant if you believe: First, Plaintiffs and Defendant agreed that Plaintiffs [sic] insurance claim would be settled for $27,092.27, and Second, Defendant provided Plaintiffs with settlement checks totaling $27,092.27.” The problem with this instruction is that none of the facts it submitted to the jury were in dispute. Plaintiffs admitted that they had agreed to settle their claim for $27,092.27 and that Tammie had received and accepted all three settlement checks without disputing their amounts. What Plaintiffs disputed was whether they had agreed to allow Farm Bureau to make Mastercraft/Breedlove a joint payee on those checks.

The insurance contract drafted by Farm Bureau provided that, “[a]t our option, we will pay to you [Ross, the named insured] actual cost of the damage or the cost of repairs so that your property is returned to the same condition it was prior to the loss.” Farm Bureau admitted that it made its checks payable not to “Ronnie R. Pool,” but to “Ronnie R. Pool and Mastercraft Construction, Tony[.]” Because the payment of the cost of repairs to both the named insured and the contractor was in contravention of the parties’ original written agreement, the disputed matter of fact to be resolved by the jury was whether Plaintiffs had agreed to a modification (an accord) of the payment provision set forth in the insurance policy.

Tammie testified that she did not agree to have the checks made jointly payable to Ross and Mastercraft. Farm Bureau had received a document that indicated otherwise — that Plaintiffs had agreed to have Mastercraft added as a joint payee on the claim checks. As argued by Plaintiffs, this critical disputed question of fact should have been submitted to the jury for its resolution, and Instruction No. 7 contained no such submission. In short, Instruction No. 7 asked the jury to make findings on matters that were not actually in dispute and omitted the only ultimate fact question the jury should have been directed to resolve. Because Instruction No. 7 imper-missibly allowed the jury to find in favor of Farm Bureau on its affirmative defense of accord and satisfaction without first finding that the parties had reached an agreement to have the claim checks made payable to both the named insured and the contractor, it constituted a misstatement of the law.

Having found the instruction to be erroneous, we must next determine whether Plaintiffs were prejudiced by the error. “For prejudice to be found sufficient to reverse for instructional error, the error must have materially affected the merits and outcome of the case.” Rice v. Bol, 116 S.W.3d 599, 606 (Mo.App. W.D.2003). See also Conley v. Fuhrman, 355 S.W.2d 861, 866-67 (Mo. banc 1962). In a case where there is conflicting evidence from which more than one inference can be drawn, “the drawing of the inference is properly left to the jury.” Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102, 110 (Mo. banc 1973). “Likewise, on the ultimate test [ ] if the facts and legitimate inferences to be drawn from the evidence are in dispute (as they are in this case) the issue is one for the jury.” Id. (parenthetical comment in original).

Here, even if the jury believed by a preponderance of the evidence that Farm Bureau had breached the terms of its written agreement (the insurance policy) regarding to whom claims checks would be made payable, Instruction No. 7 allowed it to enter a judgment in favor of Farm Bureau without having to find that Plaintiffs had subsequently agreed to accept payment in a different form. In other words, if the jury had been required to determine whether Plaintiffs had agreed to have Mastercraft/Breedlove included as a joint payee on the claim checks, and found that they had not done so, then the jury could not have found in favor of Farm Bureau on its affirmative defense of accord and satisfaction and might have entered a verdict in favor of Plaintiffs.

Farm Bureau argues that the provision requiring payment to “you” under the contract does not mean payment to “only you.” We do not find this argument persuasive for two reasons. First, Farm Bureau sought to strictly enforce “you” as “only you” to the point of excluding Tammie as á payee on the checks or as a person with authority to open an insurance claim. Farm Bureau’s actions in dealing with Plaintiffs show that it interpreted “you” to mean “the named insured” (Ross) to the exclusion of all others. Secondly, “[i]n construing the terms of an insurance policy, this Court applies the meaning which would be attached by an ordinary person of average understanding if purchasing insurance, and resolves ambiguities in favor of the insured.” Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007) (internal punctuation omitted). “This rule, often referred to as the doctrine of ‘contra proferent[e]m,’ is applied ‘more rigorously in insurance contracts than in other contracts’ in Missouri.” Burns v. Smith, 303 S.W.3d 505, 509-10 (Mo. banc 2010) (quoting Mansion Hills Condo. Ass’n v. American Family Mut. Ins. Co., 62 S.W,3d 633, 637 (Mo.App. E.D. 2001)). We would thus construe the policy language against Farm Bureau and determine that “you” means “the named insured” to the exclusion of all others. Point granted.

Point III: Summary Judgment for Farm Bureau on Breach of Fiduciary Duty Claim

Plaintiffs’ third point alleges the trial court erred in granting summary judgment in favor of Farm Bureau on Plaintiffs’ breach of fiduciary duty claim. Although Plaintiffs acknowledge that an insurer generally does not owe fiduciary duties to its insured when the insured is making a first party claim against the insurer, they argue that Farm Bureau assumed such a duty as a matter of law when it became involved in selecting Mas-tercraft to handle the repairs to Plaintiffs’ home.

A. Standard of Review

We review de novo the trial court’s grant of summary judgment. Conway v. St. Louis County, 254 S.W.3d 159, 163 (Mo.App. E.D.2008). “When considering appeals from summary judgment, we review the record in the light most favorable to the nonmovant, and give that party the benefit of all reasonable inferences.” Hi-blovic, 40 S.W.3d at 923. “In addition, if the trial court fails to specify the grounds upon which it granted summary judgment, we will affirm the grant of summary judgment if it is proper under any theory supported by the record and presented on appeal.” Conway, 254 S.W.3d at 164. “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of granting the motion initially.” Gambill v. Cedar Fork Mut. Aid Soc’y, 967 5.W.2d 310, 312 (Mo.App. S.D.1998). “As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s judgment.” Id.

B. Summary Judgment

“Pursuant to Missouri Supreme Court Rule 74.04(c)(6), the trial court shall grant summary judgment if ‘the motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” Conway, 254 S.W.3d at 163. A defending party is “entitled to summary judgment if [it] can show facts that negate any element of a cause of action or if they can show there is no genuine dispute as to the existence of facts necessary to support a properly pleaded affirmative defense.” Id. at 164. “Plaintiffs must show a genuine dispute as to the facts underlying defendants’ right to judgment on either ground.” Id. “Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion.” ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “Summary judgment should only be maintained where facts are not in dispute so that the prevailing party can be determined as a matter of law.” Rogers v. Frank C. Mitchell Co., 908 S.W.2d 387, 388 (Mo.App. E.D.1995)..

The trial court granted Farm Bureau’s motion for summary judgment regarding Plaintiffs’ breach of fiduciary duty claim without issuing a statement of its reasons for doing so. As such, we must determine whether any theory in the record supports it.

C.The Existence of a Fiduciary Relationship

Farm Bureau’s motions for summary judgment argued that Plaintiffs failed to aver facts showing the existence of a fiduciary relationship between Plaintiffs and Farm Bureau. To make a sub-missible case for breach of fiduciary duty, Plaintiffs “had to present facts showing: (1) the existence of a fiduciary relationship between the parties, (2) a breach of the fiduciary duty, (3) causation, and (4) harm.” Grewell v. State Farm Mut. Auto. Ins. Co., 162 S.W.3d 503, 508 (Mo.App. W.D.2005). “A fiduciary relationship may arise as a matter of law by virtue of the parties’ relationship, e.g., attorney-client, or it may arise as a result of the special circumstances of the parties’ relationship where one places trust in another so that the latter gains superiority and influence over the former.” Shervin v. Huntleigh Sec. Carp., 85 S.W.3d 737, 740-41 (Mo.App. E.D.2002).

“Fiduciary duty is not created by a unilateral decision to repose trust and confidence; it derives from the conduct or undertaking of the purported fiduciary which is recognized by the law as justifying such reliance.” Farmers Ins. Co., Inc. v. McCarthy, 871 S.W.2d 82, 87 (Mo.App. E.D.1994). Missouri law is clear that “an insurer, who is entrusted to defend a claim on behalf of the insured, acts in a fiduciary capacity.” Grewell, 162 S.W.3d at 509. In the situation where a third party is suing an insurer’s policy holder, it is the insurance company’s control over the claim that creates a fiduciary relationship between insurer and insured. When the insured is suing its own insurance company, the opposite is true:

The postulate for this fiduciary relationship is notably absent in claims by an insured against an insurer under policies of property and related types of insurance. Such claims are not controlled by the insurer to the exclusion of the insured nor is the specter of a judgment against an insured in excess of coverage a present danger if an insurer fails to exercise good faith. In first party claims by insureds against insurers under policies affording coverage for loss or damage to property and related types of insurance, the parties occupy a contractually adversary or creditor-debt- or status as opposed to standing in a fiduciary relationship.

Duncan v. Andrew County Mut. Ins. Co., 665 S.W.2d 13, 19 (Mo.App. W.D.1983). There is no dispute that this was a first party claim by Plaintiffs against their insurer, Farm Bureau. As a matter of law, the parties’ relationship was adversarial, not fiduciary. The trial court correctly ruled in favor of Farm Bureau because the first element of Plaintiffs’ breach of fiduciary duty claim — the existence of a fiduciary duty^ — could not be established as a matter of law. Point III is denied.

Decision

Because Instruction No. 7 erroneously failed to direct the jury to determine all of the ultimate facts necessary to support Farm Bureau’s affirmative defense of accord and satisfaction to Plaintiffs’ contract claim and Plaintiffs were prejudiced thereby, the judgment as to Count I is reversed and the cause is remanded for a new trial on that claim in a manner consistent with this opinion. In all other regards, the judgment of the trial court is affirmed.

BARNEY, J., and BATES, P.J., Concur.

      . Ronnie R. Pool was referred to in the transcript by his middle name, Ross. Because Ross and Tammie Pool share the same last name, we use their first or middle names in this opinion solely for ease of identification.

      . Plaintiffs do not challenge the trial court’s summary judgment in favor of Farm Bureau on Plaintiffs’ fraud count.

      .As more fully explained hereafter, we make reference in this opinion to evidence both favorable and unfavorable to the judgment entered by the trial court because Plaintiffs’ points are governed by different standards of review.

      . Tammie had a Power of Attorney that authorized her to act on Ross’s behalf.

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

      . See Duncan v. Andrew County Mut. Ins. Co., 665 S.W.2d 13, 19 (Mo.App. W.D.1983) ("In first party claims by insureds against insurers under policies affording coverage for loss or damage to property and related types of insurance, the parties occupy a contractually adversary or creditor-debtor status as opposed to standing in a fiduciary relationship”).