## In the



# Missouri Court of Appeals Western District

JOE FRAZIER ,

Appellant ,

v. CITY OF KANSAS CITY, MISSOURI, ET AL. , Respondents . ) ) ) ) ) ) ) ) ) ) WD 77294 OPINION FILED : April 14, 2015

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Sandra Midkiff , Judge
Before Special Division : Cynthia L. Martin, Presiding Judge, Gary D. Witt , Judge and Zel M. Fischer , Special Judge Joe Frazier ("Frazier") was injured when the car in which he was riding was struck by a vehicle that was fleeing the police in a high speed pursuit . Frazier sued the city of Kansas City ("City") , the Kansas City Missouri Board of Police Commissioners ("Board") through its individual board members, and Officer Ryan Swope ("Officer Swope" ) (collectively, the "Defendants"). Frazier's cause of action against the Defendants consisted of three counts in which he alleged negligence, negligence per se , and recklessness. Before trial, the trial court granted the Defendants' motion for partial summary judgment as to some counts, leaving only the count of recklessness

. A trial2

took place on the allegations of recklessness in the Circuit Court of Jackson County after which the Defendants were found not liable for Fr azier's injuries. The trial court entered judgment for the Defendants and denied Frazier's motion for a new trial. This appeal follows. For reasons fully explained below , w e affirm.

FACTS AND PROCEDURAL HISTORY 1 On July 6, 2010, officers with the KCPD M etro Property Crimes Task Unit were conducting surveillance on a stolen truck parked at a house i n Kansas City, Missouri.
KCPD Squad #280 was on stand

- by to assist. A man later identified as Brian Rimmer ("Rimmer") left the house, got into the stolen truck, and drove to a Wal

- Mart in Raytown

. The KCPD followed Rimmer to the Wal

- Mart parking lot. While Rimmer sat in the stolen truck in the parking lot, officers approached him. Before they reached Rimmer, he sped out of the parking lot , striking an occupied parked car, and then proceed ed westbound in the eastbound lanes of 350 Highway

. Sgt. Jason Rusley (" Sgt. Rusley ") was the controlling supervisor at the scene. As Rimmer continued driving into oncoming traffic on 350 Highway at a high rate of speed with no police officers behind him , Sgt. Rusley made the decision to allow pursuit by the use of the police helicopter, stop sticks , 2 and any patrol car with lights and siren that could safely get behind the stolen truck. Over the police radio, he gave permission for officers to pursue the stolen truck , stating he needed cars with stop sticks to get in front of

1 " In reviewing a circuit court's ruling resulting in either the grant or denial of a new trial , appellate courts view the evidence in the light most favorable to the circuit court's order. " March v. Midwest St. Louis, L.L.C. , 41 7 S.W.3d 248, 253 (Mo. banc 2014) (citation omitted).

2 Stop sticks are tire deflation devices used to disable a vehicle that is being pursued by th e police.3

Rimmer. Sgt. Rusley testified that he gave permission for the pursuit because Rimmer presented a clear and immediate danger to the safety o f others

. The police helicopter was able to locate and follow Rimmer's vehicle. Officer Swope first observed Rimmer as Rimmer drove westbound in the same
direction as the flow of traffic on 63rd Street. With his lights and siren activated, Officer Swope turned west from Jackson onto 63rd Street, in pursuit of Rimmer. Officer Swope ob served Rimmer turn north into the southbound lanes of Highway 71. With his lights and siren still activ ated, Officer Swope followed Rimmer onto Highway 71

. Officer Swope dr ove his patrol car on the shoulder of the highway , remaining several hundred feet behind Rimmer

. Rimmer continued northbound in the southbound lanes of Highway
71 . At the intersection of Highway 71 and 55th Street, Rimmer c rashed into a vehicle in which Frazier was riding as that vehicle crossed through the intersection

. Office r Swope's vehicle did not come into contact with the vehicle in which Frazier was a
passenger. Rimmer was arrested and later pled guilty to multiple felonies arising out of the events occurring that day , including four counts of the class C felony of a ssault in the

s econd d egree (one count for each person who was injured as a result of the accidents that occurred during the chase , including Frazi er ), one count of the c lass C felony of tampering with a motor vehicle, one count of the class D felony of resisting arrest, one count of the class D felony of leaving the s cene of a n accident and one count of the class D felony of operating a vehicle with a suspended or revoked l icense

. Frazier filed a three

- count petition for civil damages against Officer Swope, the City and the individual m embers of the Board in which he alleged negligence, negligence4

per se and recklessness. Before trial, the court granted Defendants' motion for partial summary judgment , leaving only the count of recklessness to be submitted to the jury. At trial, Frazier presented evidence that Officer Swope caused the accident by recklessly pursuing Rimmer. Chuck Drago , a thirty

- two year veteran police officer and former Chief of Police of Oviedo, Florida, testified as an expert on police pursuit tactic s on behalf of Frazier. After serving as police chief for three years, Drago was appointed to a state agency overseeing business licensing for the state of Florida. He then went on to serve as Senior Law Enforcement Advisor to the governor. When the gov ernor left office, Drago started his own consulting firm. Drago based his opinions on his review of the " dash

- cam " footage from Officer Swope's vehicle and the radio transmissions between the officers. He t estified that he assumed Rimmer saw Officer Swope when he commenced the pursuit and that Rimmer's reckless driving was a result of the pursuit. Drago , however, did not know for certain whether Rimmer was aware that he was being pursued at various points, or whether he

was aware of the helicop ter overhead. Defendants presented evidence that Officer Swope did not violate any KCPD protocols in pursuing Rimmer and alleged that Officer Swope was not the proximate cause of the collision. The jury returned a v erdict for Defendants and the trial court entered judgment accordingly. Frazier filed a motion for a new trial arguing that various evidentiary rulings were erroneous and that the verdict was against the weight of the evidence. The trial court denied the motion. This appeal follows.5 ANALYSIS In his eight points raised on appeal, Frazier alleges error by the trial court in ( 1) granting Defendants' motions for partial summary judgment regarding his claims for negligence , ( 2) e xcluding portions of the "dash

- cam" video evidence, ( 3) excluding testimony regarding Officer Swope's prior violations of KCPD protocols, ( 4) admitting evidence of the fleeing suspect's plea of guilty to assault in the second degree by use of a vehicle , ( 5 ) admitting evidence of the amount of Frazier's medical bill "write

- offs," ( 6) overruling Frazier's Batson 3 challenges, ( 7) denying Frazier's motion for a new trial because the verdict was against the weight of the evidence, and ( 8) denying his motion for a new trial based on cumulative error. POINT I In Point I, Frazier claims the trial court erred in granting Defendants' motions for partial summary judgment regarding the counts of negligence because the rulings were based on the court's finding that there was no evidence that Officer Swope's actions were the proximate cause of the accident

. Standard of Review Our review of the trial court's grant of summary judgment is de novo

. ITT Commercial Fin. Corp. v. Mid

– Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id.

3 Batson v. Kentucky , 476 U.S. 79 (1986).6

Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. ITT Commercial Fin.
Cor p. , 854 S.W.2d at 377. Facts contained in affidavits or otherwise in support of a part y's motion are accepted as true unless contradicted by the non

- moving party's response to the summary judgment motion. Id. at 376. A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action; (2) the non

- movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the clai mant's elements; or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly

- pleaded affirmative defense. Id. at 381. Discussion Frazier argues that the court erred when determining that the material facts of the case were not in dispute and that there was no evidence that Officer Swope was the proximate cause of the accident that injured Frazier. He contends that whether Swope 's
p ursuit of the fleeing suspect caused the accident was a factual dispute and should have been submitted to the jury. Defendants , however, maintain that the trial court was correct in following the controlling precedent established by our Supreme Court in S tanley v. City of Independence , 995 S.W.2d 485 (Mo. banc 1999) and granting summary judgment. After reviewing the evidence submitted on summary judgment, t he trial court found our Supreme Court’s holding in Stanley to be controlling and, therefore, granted summary judgment in favor of Defendants on Frazier ' s claims of negligence and7

negligence per se . The court concluded that it was " constitutionally bound to follow the Stanley decision as the last controlling and on - point decision of the Missouri Supreme
Court. " A. Missouri Supreme Court Precedent Set in Stanley v. City of Independence
In Stanley , the court reviewed a case involving facts very similar to those in the case at bar. There, the fleeing suspect was dr iving a van that matched the description of a vehicle involved in a robbery thirty minutes earlier. Id. at 486. When the van was spotted by Officer Hill, he attempted to initiate a traffic stop by turning on the emergency lights of his marked patrol car and giving a " quick yelp " of the siren. Id. The van did not yield; instead, it fled and Officer Hill pursued act ivating the siren. Id. The officer followed the van through a residential neighborhood and on various surface streets at speeds of approximately 55 miles per hour. Id. As the fleeing van approached an intersection, the traffic in its lane was stopped a t a stoplight. Id. The van veered into the oncoming lane of traffic at nearly 70 miles an hour. Id. Michael and David Stanley were traveling in their vehicle, approaching the same intersection from the opposite direction. Id. They were in the proper lane of traffic and attempted to get out of the way of the fleeing van. Id. Their vehicle was struck by the van, and both men were killed. Id. At the moment of impact, Officer Hill was 191 feet behind the van. Id. The entire duration of the pursuit l asted 45 seconds. Id. The plaintiffs alleged that the pursuing officer was negligent in following the suspect and that his pursuit proximately caused the accident. In order to establish proximate cause, the plaintiff must show that the injury was the "na tural and probable8

consequence of the defendant's negligence." Id. a t 488 (citation omitted). The Missouri Supreme Court concluded that the pursuing officer ' s conduct was not a proximate cause of the collision, and explained: The suspects in the van made the initial decision to flee, sped through red lights and in the wrong lane of traffic, and collided with the decedents. Any negligence by [O]fficer Hill is connected to the plaintiffs' injury solely through the conduct of the fleeing van. Thus, the only conceivable causal link between the officer's alleged negligence and the collision is the conjectural effect of his pursuit on the pursued vehicle. Shortly after initiating the pursuit, the officer observed, " this guy is goin g nuts on us. " There is nothing other than speculation to reach a conclusion that the officer's conduct was a " cause of the collision. " Put another way, there is no way to tell whether the collision would have been avoided if the officer had abandoned th e pursuit after initiating it. Thus, there is no factual basis to support a finding of proximate cause. Id. It further reasoned that because "there is no way to tell whether the collision would have been avoided if the officer had abandoned the pursuit after initiating it . . . there is no factual basis to support a finding of proximate cause." Id. It then affirmed the grant of summary judgment in favor of the defendants and concluded that without a causal link between the pursuing officer and the collision, there were no facts to support a finding of proximate cause. Id. B. Trial Court’s Applic ation of Stanley v. City of Independence to Frazier ' s Facts After applying the holding of Stanley to the nearly identical undisputed facts in the case at bar, the trial court held that , just as in Stanley , the evidence did not support a causal link between the conduct of Officer Swope and the collision. Indeed, the trial court concluded that "the only conceivable causal link between Officer Swope ' s alleged9

negligence and the collision is the conjectural effect of his pu rsuit on the pursued vehicle

. " The trial court reasoned that the absence of a causal link made summary judgment proper, stating that "Plaintiff cannot, as a matter of law, show that Officer Swope, as a pursuing officer that did not collide with Plaintiff, was the proximate cause of Plaintiff's injuries." C . This Court' s Application of Stanley to Facts in Dilley v. Valentine
In Dilley , a fleeing suspect drove erratically while being briefly pursued before crashing into a vehicle driven by the plaintiffs. Dilley v. Valentine , 401 S.W.3d 544, 547 (Mo. App. W.D. 2013) . This court found that the facts were very similar to those in Stanley : the officer was pursuing a fleeing suspect with lights and siren activated, the officer’s patrol car was not involved in the accident, the patrol car was 120 feet behind the suspect’s car at the time of the accident, the duration of the pursuit was 120 seconds, and speeds of 50

- 55 miles an hour were reached. Id. at 549. We determined that Stanley was controlling on Dilley ' s negligence claims and held that whether " the collision would have been avoided had Officer Valentine abandoned the pursuit is based only on speculation. " Id.
D . Frazier ' s Attempt to Dist inguish Stanley and Dilley Based on Duration of the Car Chases Involved At oral argument, Frazier argued that Stanley is not controlling in this case as it is distinguishable based on the duration of the car chase involved. Frazier contends that the longer the chase, the greater the negligence on the part of the officer becomes because the chances of a collision increase the longer the chase continues. Frazier thus contends that10

where police pursuits last longer than the 45 second chase in Stanley , proximate cause turns into a jury issue. In the case at bar, the chase lasted approximately 120 seconds from when Officer Swope made visual contact with Rimm er ' s vehicle to when Rimmer crashed into Frazier ' s vehicle. 4 In support of his duration argument , Frazier cites Moyer v. St. Francois Cnty. Sheriff Dep ' t , 449 S.W.3d 415 (Mo. App. E.D.) which he contends should preclud e the application of Stanley to the facts at hand. In Moyer , a Francois County Sheriff ' s deputy stopped a vehicle displaying stolen license plates. Id. at 416. After the deputy asked the driver to step out of the vehicle, the driver fled the scene, sparking a ten

- mile pursuit reaching speeds of up to 120 miles per hour. Id. The chase ended when the suspect ' s vehicle collided with the plaintiff s ' vehicle . The deputy ' s vehicle was not involved in the collision. Id. After the plaintiffs filed a negligence action again st the county, the county filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law because the deputy was not the proximate cause of the accident or of Plaintiffs ' injuries. Id. at 417. The trial court granted summary judgment, finding no factual basis to support proximate causation. Id. On appeal, the Eastern District of this court , over dissent, noted that " proximate

cause " referred to the " reasonable and probable consequence of the act or omission of
defendant " citing Sanders v. Ahmed , 364 S.W.3d 195, 210 (Mo. banc 2012) but reiterated that " the defendant ' s conduct must simply be a contributing cause of the plaintiff ' s injury

4 Although Frazier argued that there was a factual dispute between the parties as to whether the car chase lasted seven minutes or whether it lasted two minutes, Drago testified that Officer Swope's veh icle did not begin to pursue Rimmer until Officer Swope reached 63 rd and Jackson. Frazier conceded at oral argument that the duration of the chase from that location to the point of impact was approximately two minutes.11

rather than the sole cause . . . " Id. (citing Coggins v. Laclede Gas Co. , 37 S.W.3d 335, 339 (Mo. App. E.D. 2000) (referring to what is required to make a prima facie showing of causation; i.e., that the defendant’s negligent conduct more probably than not was the cause of the injury ) ) . It then went on to distinguish its facts from Stanley and Dilley

. The only distinguishing facts are the differing durations of the pursuits in each

case . In Stanley , the pursuit lasted 45 seconds; in Dilley , the pursuit lasted approximately 120 second s; in Moyer , where the distance traveled was as long as ten miles at speeds up to 120 miles per hour, the pursuit lasted approximately 300 seconds; and here, as in Dilley , Officer Swo pe' s pursuit of Frazier lasted 12 0 seconds. 5 The Moyer court reasoned that , unlike cases that involve a shorter pursuit such as Stanley and Dilley , " common sense supports an inference that, as the time and distance between an officer and a fleeing suspect grows, the more likely it becomes that the suspect will cease fleeing in a reckless

manner . " Moyer , 449 S.W.3d at 418. The Moyer court found Dilley to be "factually indistinguishable" from Stanley but distinguished both from its facts based solely on the length of the pursuit

. W e , however, find Dilley to be on point and not distinguishable from the facts at hand. 401 S.W.3d 544. In sum, we find no distinction in the duration of pursuit, nor in any other significant fact that would make the application of Dilley and Stanley in appropriate to the facts i n the case at bar

. 6

5 Frazier has not alleged or estab lished that Rimmer was aware that he was being pursued by the police helicopter, nor does he allege that the helicopter played a role in causing the accident.

6 In the case at bar, Rimmer fled in his vehicle upon seeing officers on foot approaching him i n a parking lot. He struck an occupied vehicle and proceeded to drive at a high rate of speed, going the wrong way on a divided highway for approximately five minutes before Officer Swope even began his pursuit of the vehicle. These facts support a findi ng that the cessation of the pursuit by Officer Swope would have had little impact on Rimmer's driving.12

E. Frazier's Attempt to Distinguish Stanley Based on Admission of Expert Testimony In addition to the differing chase durations, Frazier argues that his expert ' s testimony distinguishes this case from Dilley and Stanley in that his expert established genuine issues of material fact thus making proximate cause a factual jury issue. Frazier's expert, Drago, opined that Officer Swope negligently violated KCPD procedures when he initiated the chase and that his "failure to follow policy and national standards, his reckless disregard for the safety of the public, eventually caused the
accident ." (E mphasis added). Drago concluded that " the police caused Mr. Rimmer to drive in the manner in which he drove for the entirety of the pursuit until the crash." (E mphases added). The procedures and protocol governing the initiation of a vehicle pursuit are outlined in the KCPD Procedures and Protocol manual , Annex B, titled "Police Vehicle Pursuit Procedure." Drago opined that the following section was violated by Officer Swope and that the violation made his actions negligent and reckless : C. Initiating or Continuing Pursuit
1. Officers will not initiate a vehicle pursuit unless they determine that ther e is reasonable belief that the suspect presents a clear and imme diate danger to the safety of ot hers. Factors inv olved in this decision may include the commission of a dangerous felony. This determination should be continually evaluated during the pursuit. If the officer decides to initiate a pursuit, Code One Operation will be utilized throughout the entire duration of the pursuit.
N OTE: Officers will not initiate a vehicle pursuit if the suspect vehicle is a stolen auto unless it has been involved in a dangerous felony. This prohibition includes situations such as a serious traffic13 violation and DUI's, except where the suspect vehi cle presents a clear and immediate danger to t he safety of others. Frazier argues that there was no dangerous felony to justify the pursuit of Rimmer in the stolen vehicle. He also maintains that the situation was not one of a "clear and immediate dange r to the safety of others" but one that the police created by pursuing Rimmer. He concludes that Officer Swope violated KCPD protocols because Frazier did not present a clear and immediate danger to others. The uncontroverted facts, however, as stated i n both motions for summary judgment and admitted by Frazier, do not support this conclusion. The evidence here establishes that Rimmer was driving erratically before being pursued and was creating a clear and present danger to the public prior to the purs uit being initiated. Rimmer crashed into an occupied vehicle before he left the Wal

- Mart parking lot, and began driving the wrong way on a divided highway. It was after these events that the pursuit was initiated.
As Rimmer drove at a high rate of speed on Highway 350, traveling the wrong direction on a divided highway , the controlling commander, Captain Wood , and Sgt. Rusley determined that, because the vehicle was traveling the wrong way and then "continued going the wrong way even once the divided hig hway was no longer divided," officers should attempt to use sto p sticks to disable the vehicle. They called for any officer that could safely get behind the vehicle to begin pursuit. A police helicopter joined the pursuit by following Rimmer a s he sped through city streets and reporting his location to officers on the ground. There was no evidence14

that Rimmer was ever aware of the helicopter's presence. Office r Swope remained several hundred feet behind Rimmer as Rimmer drove the wrong direction on Hig hway 71 (another divided highway) and eventually collided with Frazier's vehicle at an intersection.
T he determination of whether proximate cause exists is a judicial function. Kilmer
v. Mun , 17 S.W.3d 545, 552 n.19 (Mo. banc 2000). The trial court concluded that Drago' s opinion was based on conjecture and speculation

. Drago t estified that he assumed Rimmer saw Officer Swope when he commenced the pursuit and that Rimmer's reckless driving was a result of the pursuit. Drago , however, did not know fo r certain whether Rimmer was even aware that he was being pursued at various points, or whether he was aware of the helicop ter overhead. T he court further found that Officer Swope was not the proximate cause of the accident ; rather, the actions of Rimmer were the proximate cause of the accident

. It concluded that, w ith the causation element negated, Frazier could not prevail on his negligence counts. Indeed, a defendant may establish a right to judgment as a matter of law by showing facts that negate any one of the elements of the claimant's cause of action

. ITT Commercial Fin. Corp

. , 854 S.W.2d at 381.
O ur Supreme Court ’s holding in Stanley is controlling on this point . W e find no error in the trial court's grant of partial summary judgment as to the negligence and negligence per se claims . Point I is denied. POINT II In Point II, Frazier argues that the trial court erred when it exclud ed the first portion of Officer Swope's dash board camera ( " dash

- cam " ) video from evidence in the15

trial on the remaining count of recklessness

. He argues that, although the first portion of the video is prior to Officer Swope encounter ing Rimmer's vehicle, it should have been admitted as evidence of Officer Swope' s state of mind leading to the pursuit

. The dash

cam video in question begins when Officer Swope received the call for a pursuit of Rimmer's vehicle and continues until the end of the pursuit. The trial court excluded the portion of the vi deo of Officer Swope driving from the time he received the call until he first encountered Rimmer's vehicle. The trial court allowed the jury to view the portion of the video beginning from Officer Swope ' s first visual of Rimmer's vehicle to the accident which ended the pursuit. Standard of Review
We review the trial court's admission and exclusion of evidence for an abuse of discretion. " The admission or exclusion of evidence rests in the sound discretion of the trial court, and the court's decision will be reversed only if it constitutes an abuse of discretion. " Secrist v. Treadstone, LLC , 356 S.W.3d 276, 280 (Mo. App. W.D. 2011) (citation omitted). " The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of ca reful deliberate consideration." Id. (citation omitted). "The trial court is accorded considerable discretion in ruling on the admi ssibility of evidence, particularly where a subjective determination of relevancy must be made." Id. (citation omitted). We employ this same standard of review for Points II, III, IV and V and it will not be repeated therein

.16 Discussion Frazier contends that because Officer Swope's state of mind was relevant to whether he was acting recklessly in his pursuit of Rimmer, the dash

- cam video should have been admitted in its entirety. The trial court disagreed and admitted only the portion

st arting from the point in time when Officer Swope first encountered Rimmer 's vehicle

.

" To be admissible, evidence must be both logically relevant and legally relevant. " Mansfield v. Horner, 443 S.W.3d 627, 651 (Mo. App. W.D. 2014) (citation omitted). "Eviden ce is logically relevant if it make[s] the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. " Id. (citation and internal quotation marks omitted). "Legal relevance, on the other hand, concerns the balance between the probative value and the prejudicial effect of the evidence." Id. (citation omitted). "That balancing requires the trial court to 'weigh the probative value, or usefulness, of the evide nce against its costs, specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of time, or needless presentation of cumulative evidence.'" Id. (citation omitted). "If the cost of the evidence outweig hs its usefulness, the evidence is not legally relevant and should be excluded." Id. (citation omitted). Here, t he co urt reasoned that the video footage from before Officer Swope first

saw the vehicle driven by Rimmer was irrelevant as to whether Officer Swope 's pursuit of Rimmer recklessly caused Rimmer to collide with the vehicle in which Frazier was riding

. The court stated that sinc e Frazier was claiming that the police pursuit caused Rimmer's erratic driving, "any action of Officer Swope unbeknownst to Mr. Rimmer17

could not have caused or directly contributed to cause Mr. Rimmer's erratic driving and, thus, the ultimate collision between Mr. Rimmer and Plaintiff." It concluded that any evidence of Officer Swope's driving prior to being in direct purs uit of Rimmer was "not legally or logically relevant to any claim." Frazier argues that the court erred in this determination because Officer Swope's driving prior to encountering Rimmer was probative as to his claim of Officer Swope's recklessness. In support, Frazier cites two criminal cases where evidence of erratic driving before a collision was admitted into evidence. In State v. Feger , 340 S.W.2d 716 (Mo. 1960), the defendant was charged with manslaughter for causing an accident while intoxicat ed and driving erratically. The court allowed the evidence of defendant's erratic driving from bef

ore the collision because when one of the parties is charged with being
intoxicated before the accident, "the court may admit testimony as to the manner in w hich such party was driving his motor vehicle a substantial distance from the place of the accident for the purpose of substantiating the charge." Id. at 725 (citations omitted). The erratic driving was admissible to establish that the defendant's abilit y to operate a vehicle was impaired by the consumption of intoxicants. Frazier also relies on State v. Coates , 862 S.W.2d 418 (Mo. App. S.D. 1993). In
Coates , the conduct of a driver accused of drinking and driving, that included swerving, speeding and running stop signs before a collision , was likewise admitted into evidence. The facts of these cases are not analogous to th ose here and we fail to discern anything useful from the m applicable to the civil matter currently before us

.18

In further support of his contention that the dash

- cam video was relevant, Frazier relies on a statement originating in a torts hornbook that "recklessness looks to the tortfeasor's state of mind." Hatch v. V.P. Fair Foundation, Inc. , 990 S.W.2d 126, 139 (Mo. App. E.D. 1999) (citing W ILLIAM L. P ROSSER & W. P AGE K EETON , P ROSSER AND K EETON ON T ORTS 211 (5th ed. 1984)). He then cites a third case for the proposition that the "state of mind is a continuing condition that may be proved by statements evidencing state of mind either before or following a relevant time period." Haynam v. Laclede Elec. Coop

. , Inc. , 827 S.W.2d 200 , 204

- 05 (Mo. banc 1992) (emphasis added). H owever, Frazier makes no argument as to what " statements " were made by Officer Swope in the excluded portion of the video. Further , Frazier fails to establish how the actions of Officer Swope prior to Rimmer even being aware of his presence could have caused Rimmer to take any actions. Without more, w e fail to find Haynam persuasive. The lack of legal support for Frazier's position, combined with Drago's opinion that Officer Swope caused Rimmer to drive erratically only after he became involved in the pursuit at 6 3rd Street and Jackson, supports the trial court's decision to exclude the first portion of the dash

- cam video. As a subpart of this argument , Frazier argues that he was prejudiced by the trial court's ruling that only part of the video could be presented because the court's ruling came on the morning of trial and involved his first witness. The court had previously ruled that the entire video would be admissible , yet reversed itself after the Defendants filed a renewed motion in limine a week before trial . Frazier, however, did not include an allegation of prejudice in his Point Relied On. We do not consider an argument not19

preserved in the Point Relied On. Bellemere v. Cable

- Dahmer Chevrolet, Inc. , 423 S.W.3d 267, 273 (Mo. App. W.D. 2013) (citation omi tted). Finally, a trial court has the right to confine testimony to the time periods it deems relevant. Dunham v. Estate of Hamilton , 718 S.W.2d 152 , 156 (Mo. App. W.D. 1986) (citation omitted). "Where evidence is excluded, the issue is not whether the evidence was 'admissible,' it is whether the trial court abused its discretion in excluding it."
Govreau v. Nu

- Way Concrete Forms, Inc., 73 S.W.3d 737, 743 (Mo. App. E.D. 2002) (citation and quotat ion marks omitted). While we would affirm the trial court's admission of this entire video to give the jury a full picture of all events leading up to the accident , we do not find that the exclusion of the first portion of the video constitute s an abuse o f discretion.
Because the court's reasoning was not against the "logic of the circumstances , " it was not an abuse of discretion. See S ecrist , 356 S.W.3d at 280 (citation omitted). Point II is denied. POINT III In Point III, Frazier contends that the trial court erred in excluding testimony regarding Officer Swope's prior violations of KCPD protocols

. He contends that the excluded testimony was "relevant and probative" to his claim of recklessness

. Discussion Frazier attempted to admit evidence of a disciplinary report involving Officer Swope concerning five prior violations of KCPD protocol . The violations did not involve the collision of July 6, 2010 between Rimmer and Frazier ; rather, they concerned a20

Dece mber 7, 2008 traffic stop conducted by Officer Swope. The violations at issue included: ( 1) putting his hands in his pockets while at the car, ( 2) approaching the car without waiting for back

- up, ( 3) turning off his microphone while speaking to the occupants of the vehicle , ( 4) driving too fast without using his emergency equipment, and ( 5) allowing one of the occupants to drive the vehicle away even though he/she was unlicensed. Prior to trial, the Defendants filed a motion in limine to exclude ev idence , inter alia , of KCPD protocol violations involving Officer Swope that we re un related to the accident at hand

. The Defendants , citing Maugh v. Chrysler Corp. , 818 S.W.2d 658, 661 (Mo. App. W.D. 1991) , argued that previous violations we re collateral matters and impeachment and contradiction are not allowed on collateral matters

. They maintained
that a previous violation of policies unrelated to the accident and not involving police pursuits, was a c ollateral matter . "The test as to whether a matter is collateral . . . is whether the party seeking to introduce it for purposes of contradiction w ould be entitled to prove it as a part of his case." Benedict v. N. Pipeline Constr. , 44 S.W.3d 410, 427 (Mo. App. W.D. 2001) (citations omitted) . " It is not error to exclude offers to impeach on immaterial or collateral matters." Peters v. ContiGroup , 292 S.W.3d 380, 392 (Mo. App. W.D. 2009) (citation omitted). The court granted Defendants' motion in limine and excluded Officer Swope's previous unrelated vio lations of protocol. Its order did not set forth its reasoning. At trial, Frazier made an offer of proof and conducted a voir dire examination of Officer Swope outside the presence of the jury . The court did not alter its previous ruling.21

Frazier a rgues that the court's ruling was erroneous because the evidence went to ( 1) Officer Swope's "credibility and bias" concerning whether he violated protocol or any procedures on July 6, 2010, and ( 2) Officer Swope's state of mind on July 6, 2010. As to the first contention of error, when questioned about the prior protocol violations, Officer Swope admitted to each of the alleged violations

. Although Frazier now argues that evidence of Officer Swo pe's previous violations was relevant to cast doubt on his truthfulness, such evidence would cast doubt on Officer Swope's truthfulness or veracity only if he were to have been found to lie, deny, hide, or attempt to cover

- up the violations. " ' Contradiction ' is not the same as ' impeachment. ' " Feiteira v. Clark Equip. Co., 236 S.W.3d 54, 63 (Mo. App. E.D. 2007)

. " 'Impeachment' is directed to the credibility of a witness for the purpose of discrediting the witness and ordinarily
furnishes no fac tual evidence, whereas 'contradiction' is directed to the accuracy of a witness' testimony and supplies additional evidence." Id. (citation omitted). Nothing in the proffered evidence contradicted anything that Officer Swope testified to at trial , and
Fr azier fails to explain how this evidence would impeach any actions or testimony by Officer Swope

. In addition to this argument, Frazier maintains that Officer Swope's violation of procedures in 2008 was relevant as to whether he did, in fact, violate procedures in the 2010 pursuit of Rimmer. 7 Notably, the court had evidence from several officers, as well

as from Officer Swope, that no procedures were violated in the pursuit of Rimmer's

7 Evidence of a past violation is not conclusive that a subsequent violation occurred. Although Frazier argues that past violations support his alleg ation of Officer Swope's reckless state of mind, the past violations do not resemble those at issue. Frazier fails to establish how these previous violations are relevant other than his blanket assertion that they somehow establish that he violated differ ent procedures several years later.22

vehicle. Frazier's expert, however, did testify that some procedu res were violated during the pursuit based on his review of the dash

- cam video from Officer Swope's ve hicle. However, none of th e violations testified to by Drago were similar , or in any way , related to the violations alleged in the 2008 report.
E videnc e of previous violations that occurr ed two years earlier is collateral as they involved neither the same parties nor the same policy violations. T here is no error in excluding collateral matters. Peters , 292 S.W.3d at 392

. Moreover, Frazier did not need to prove previous violations in order to prove any element of his claims against the Defendants. See Benedict , 44 S.W.3d at 427. Point III is denied. POINT IV In Point IV, Frazier argues that the trial court erred in admitting evidence that
Rimmer pled guilty to assault in the second degree as a result of the collision "because such evidence invaded the province of the jury on causation" in that it "created the impression that Rimmer had already been adjudicated to be the cause of the accident at is sue." Discussion In response to Frazier's argument, Defendants maintain that Frazier was the first to introduce evidence on th is issue to the jury. They further contend that the evidence was cumulative when Frazier later objected to Defendants presenting similar evidence to the jury. While Rimmer ple d guilty to multiple felonies, the only conviction which was admitted into evidence was the charge based o n the vehicular assault on Frazi er.23

Although we disagree with Defendant s ' characterization that Fra z i er "introduced" this evid ence, it did come into evidence, without objection , during Defendant s ' cross examinat ion of Fra zier when he stated that he had testified at Rimmer's sentencing hearing on the criminal charges . Frazier also testified that Rimmer h ad apologized to him. There was no object ion to the se questions. Thus, Frazier cannot now complain about the admi ssion of Rimmer's criminal prosecution at a later point since he failed to object when the evidence was first presented

. Precision Elec., In c. v. Ex

- Amish Specialties, Inc. , 400 S.W. 3d 802, 810 (Mo. App. W.D. 2013) (citation omitted). Moreover, i t was only after Frazier's testimony regarding Rimmer ' s sentencing hearing that the Defendants , later and over objection, were allowed to read to the jury the charge against Rimmer of assault in the second degree . At that point, the evidence was cumulative. " A party cannot be prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence is merely cumulative to other evide nce admitted without objection." Delacroix v. Doncasters, Inc. , 407 S.W.3d 13, 46 n.23 (Mo. App. E.D. 2013) (citing S wartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo. banc 2007)). In so holding, we are not persuaded by Frazier’s reliance on Nelson v. Holley , 623 S.W.2d 604 (Mo. App. W.D. 1981) , which held that a non - party's guilty plea to careless
and reckless driving and of speeding in connection with the accident was inadmissible and pr operly excluded upon objection. This is because, in Ne lson , the statement was excluded as inadmissible hearsay , which is not the basis of the objection in the instant

case. Id. at 607. Thus, Nelson is inapposite. Point IV is denied.24 POINT V In Point V, Frazier contends that " the trial court erred in a llowing the defendants to introduce evidence [of] the amount of write

- offs on plaintiff's medical bills and in failing to grant plaintiff a new trial on the issue, because, under Missouri law, a cre dit or offset is, pursuant to R SMo. § 490.715.5, an affirm ative defense which must be plead and in that defendants failed to plead an offset or credit as an affirmative defense." 8
Discussion Frazier argues that because the Defendants did not plead the affirmative defense of credit and off

- set, it was er ror for t he trial court to admit evidence of the amount of write

offs that his various medical providers undertook. Defendants argue that it was not necessary to plead the write

- offs as an affirmative defense. Because the jury found for
the defense on the issue o f liability we do not have to reach this issue regarding damages.

" When a jury finds against the plaintiff on the issue of the defendant's liability, rulings on matters relating only to the amount of damages to which the plaintiff might be entitled to receive, if the defendant was liable, cannot be considered so prejudicial as to constitute reversible error. " Miller v. Riss & Co ., 259 S.W.2d 366, 372 (Mo. 1953); see also Lush v. Woods, 978 S.W.2d 521, 525 (Mo. App. W.D. 1998) ; Turner v. Norfolk &
W. Ry . Co ., 785 S.W.2d 569, 573 (Mo. App. W.D. 1990). "This authority is binding on this court as we are obligated to follow Supreme Court precedent." Precision Elec. , 400

8 Although Frazier contends that the court erroneously denied his motion for a new trial, he neglects to offer support for or otherwise include this in the argument section of his brief. "When a party fails to develop a point relied on in the argument sect ion, it is deemed abandoned." Lack v. Payne , 151 S.W.3d 862, 867 (Mo. App. S.D. 2004). Additionally, the inclusion of an additional allegation that the court erred in denying a motion for a new trial makes this point multifarious. State v. Brightman , 38 8 S.W.3d 192, 196 (Mo. App. W.D. 2012).25

S.W.3 d at 813 ( where party affirmatively injects insurance coverage into evidence, a complaint by that party over the admission of insurance coverage after jury finds against it cannot later be basis for new trial). Accordingly, because the issue of write

- offs and credi ts affects only the amount of medical damages available to Frazier had the jury found that Defendants were liable for his injuries, and the jury made no such finding of liability, its admittance cannot be considered reversible error. Point V is denied. POINT VI In Point VI, Frazier argues that the trial court erred in "overruling plaintiff's
Batson challenges and in not granting plaintiff a new trial on the issue, because plaintiff, an African

- American, timely raised his Batson challenges and, in that D efendants' proffered reasons for striking African

- Americans from the jury were clearly pre

- textual and the trial court's ruling resulted in no African

- Americans sitting on the jury." Standard of Review We review the trial court's ruling on a Batson chal lenge for clear error. State v.
M c Fadden , 191 S.W.3d 648, 651 (Mo. banc 2006). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Discussion Frazier alleges that the trial court erred when it overruled his Batson challenges to the Defendants ’ use of preemptory strikes to eliminate three African

- American venire members

. He contends that although Defendants stated that they struck the se venire26

members because each had b een arrested , th e strikes were pretextual since Defendants did not strike other venire members who had also been arrested but were not African

American

. Frazier further argues that a s a result of the court 's rulings on his Batson challenges, there were no African

- Americans on the jury.
In Kesler

- Ferguson v. Hy

- Vee, Inc. , our Supreme Court reiterated the three

- step procedure to be followed , as set forth in State v. Parker , 836 S.W.2d 930, 934 (Mo. banc 1992) , when a party makes a Batson challenge in either a civil or criminal case. 9 271 S.W.3d 556, 558

- 59 (Mo. banc 2008). First, a n opponent of a preemptory challenge must identify the venire member struck by the proponent and identify the cognizable racial group to which the venire member belong s . Id. at 559 (citation omitted). In the second step, the burden shifts to the proponent of the strike to come forward with a race - neutral
reason that is more than simply a denial of a discriminatory purpose. Id. (citation omitted); see also S tate v. Col lins, 290 S.W.3d 736, 741 (Mo. App. E.D. 2009)

. "To be sufficient, the explanation need only be race

- neutral, reasonably specific and clear, and related to the particular case to be tried." Parker , 836 S.W.2d at 934 (citation omitted).
A ' race - neutral explanation ' in the context of a Batson challeng e simply means " an explanation based on something oth er than the race of the juror. " Hernandez v. New
Y ork , 500 U.S. 352, 360 (1991). "This second step of the Batson challenge process does not require an ex planation that is persuasive, or even plausible." Collins , 290 S.W.3d at

9 In Edmonson v. Leesville Concrete Co. , 500 U.S. 614 (1991), the United States Supreme Court extended its holding in Batson to apply to civil litigants. Bowl s v. Scarborough , 950 S.W.2d 691, 700 n.4 (Mo. App. W.D. 1997) (citation omitted). " Parker remains the definitive statement of Missouri procedure in Batson cases." Bowls , 950 S.W.2d at 700 (Mo. App. W.D. 1997) (citing House v. Mo. Pac. R.R. , 927 S.W.2d 538, 541 (Mo. App. E.D. 1996)). The procedures set forth in Parker are applicable to both civil and criminal cases. Id

.27

741 (citation omitted). Unless a discriminatory intent is inherent in the proponent' s explanation, the reason offer ed will be deemed race

- neutral. Id. at 741

- 42 (citation omitted). Third, " assuming the striking party is able to articulate an acceptable explanation
for the strike , the party asserting the Batson challenge then needs to show that the striking party's proffered reasons for the strikes are pretextual and that the strikes were racially motivated ." Benedict , 44 S.W.3d at 419 (citation omitted). "In the third step, the circuit court may consider the credibility and demeanor of reasons proffered to support striking a member of the venire." Kesler

- Ferguson , 271 S.W.3d at 559 (citation omitted). The

court "must primarily consider the plausibility of the striking party's explanations in light of the tot ality of the facts and circumstances surrounding the case." Benedict , 44 S.W.3d at 420 (citations omitted). In reviewing the three

- step Batson process employed in this case , step one was met when Frazier timely r aised Batson challenges to the Defe ndants' strikes of venire members 35, 46 and 50. In step two, Defendants had the burden to provide race

- neutral reasons for each strike. As to member 35, Defendants stated that she had questioned whether being arrested mean t just being in handcuffs or ac tually going to jail. She then confirmed that she had been arrested. Defendants had also determined from other records that she was unemployed. The court overruled the Batson challenge , finding that Defendants had stated a race

- neutral reason to strike member 35. At that point, the burden shifted back to Frazier , and he failed to offer any information to support his28

contention that the Defendants' reason s were pretextual. Frazier thus failed to meet his burden with regard to panel member 35. As to panel members 46 and 50, both of these panel members were potential alternate jurors. 10 Regarding member 46, Defendants stated that she, as well as various members of her family, had been arres ted in the past. Defendants knew that the next available panel member had no arrests so they chose to strike member 46. The court found that this was a race

- neutral reason. Frazier did not offer any argument or information that this reason was merely pretextual and thus did not meet his burden to prove the re ason was pretextual and the strike in fact discriminatory. With regard to panel member 50, Defendants stated that the member's son had been fired by the City 's Water Department. Frazier likewise offered no argument as to how this reason was merely pretex t and again failed to meet his burden

.

" When reviewing the trial court's decision regarding a Batson challenge, b ecause of the extensive role of the trial court and because the findings of fact turn largely on an evaluation of credibility, a reviewing court must give great deference to those findings."
B enedict, 44 S.W.3d at 420 ( internal quotation marks and citation omitted). " The trial court's determination of the propriety of the strike will not be reversed unless it was

10 Both of the alternate jurors selected were dismissed from service prior to deliberation. In State v. Carter , 889 S.W.2d 106, 109 (Mo. App. E.D. 1994), habeas relief denied by Carter v. Kemna , 255 F .3d 589 (8th Cir. 2001), the court stated that " Batson does not stand for the proposition there is a Constitutional right to be an alternate juror." The court ruled that, when no alternate jurors deliberate, the alternate venireperson's exclusi on does not violate the constitutional rights of either the defendant or the excluded alternate venireperson. Id. We need not address this issue because we have determined that the court properly overruled Frazier's Batson challenges. Accord State v. Ja ckson , 385 S.W.3d 437, 441 (Mo. App. W.D. 2012); State v. Dow , 375 S.W.3d 845, 850 n.4 (Mo. App. W.D. 2012); Goodman v. Holly Angle, LMT , 342 S.W.3d 458, 464 (Mo. App. W.D. 2011).29

clearly erroneous, that is, we are left with a firm conv iction that a mistake was made." Id. (citation omitted). Finally, although Frazier argues that because there were no African

- Americans on the jury, the trial court erred in overruling his Batson challenges , our Supreme Court has already held that "disparate impact alone will not convert a facially race

- neutral explanation into a per se violation of equal protection." Parker , 836 S.W.2d at 934 (citing Hernandez , 500 U.S. at 361)

. This contention has no legal support. In applying the three

- step process, we find that the trial court did not clearly err in denying Frazier's Batson challenge s because he failed to overcome his burden of showing that the Defendants' proffered reason s for the strikes of any of the venire members were merely a pretext for discrimination. This point is denied. POINT VII In Point VII, Frazier contends that "the trial court erred in denying plaintiff's motion for new trial , because the jury's verdict was against the wei ght of evidence in that the evidence demonstrated that plaintiff suffered serious injuries as a result of Officer Swope's recklessness." Standard of Review We review the decision whether to grant a new trial for an abuse of discretion

. Hall v. Utley , 443 S.W.3d 696, 701 (Mo. App. W.D. 2014) (citation omitted). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks one's sense of justice and indicates a lack of careful consideration. Id.30

T he trial court is vested with broad discretion when ruling on a motion for a new trial. Koppe v. Campbell , 318 S.W.3d 233, 240 (Mo. App. W.D. 2010) (citation omitted). To the extent our anal ysis requires us to weigh the evidence, we do so in the light most favorable to the trial court's decision , pursuant to our Supreme Court's recent holding in Badahman v. Catering St. Louis

. 11
When considering a challenge that a judgment is against the weight of the evidence and the evidence would support two different but reasonable conclusions, appellate courts must defer to the circuit court' s assessment of that evidence. Ivie v. Smith, 439 S.W.3 d 189, 206 (Mo. banc 2014) ( citations omitted). Appellate c ourt s defer on credibility determinations because the circuit court is in a better position to weigh the contested and conflicting evidence in the context of the whole case. Id

. " The circuit court is able to judge directly not only the demeanor of witnesses, but also their sincerity and character and other trial intangibles that the record may not completely reveal." Id

. Our standard of review " takes into consideration which part y has the burden of proof and that the [ fact finder ] is free to believe all, some, or none of the evidence offered to prove a contested fact, and the appellate court will not re

- find facts based on credibility determinations through its own perspective

. " Id. " This includes facts expressly found in

11 The Supreme Court clarified the standard of our review regarding evidenti ary issues in cases where a trial court has granted a new trial based on the jury's verdict as being against the weight of the evidence. Badahman v. Catering St. Louis , 395 S.W.3d 29, 40

- 41 (Mo. banc 2013). The Court noted that the previous opinions sett ing forth the standards of review (reviewing the evidence in the light most favorable to the verdict in a denial of a new trial and most favorable to the moving party in the grant of a new trial) should be clarified to avoid confusion. The Court concluded that "the best way to articulate the proper standard of review in the grant or denial of a motion for new trial is that the evidence is reviewed in 'the light most favorable to the circuit court's order.' " Id. at 40

- 41.31

the written judgment or necessarily deemed found in accordance with the result reached. " Id

. (citation s omitted). Additionally, " [i] n order for the trial court to grant a motion for new trial, the error compla ined of as a basis for the motion must be prejudicial to the party seeking the new trial." Balke v. Cent. Mo. Elec. Coop. , 966 S.W.2d 15, 25 (Mo. App. W.D. 1997). Discussion This point violates Rule 84.04 (d)

- (e) 12 in multiple aspects such that it s deficiencies

are dispositive

. Frazier's entire argument section under this point is as follows: Based on all the arguments fully briefed in sub

- parts I through VI above, incorporated by reference, a new trial should have been granted. The errors fully briefed in sub

- parts I through VI above, prejudiced Plaintiff in that he was denied a fair and equitable trial. Based on the above, the trial court ’ s discretion was abused when it denied a new trial to the Plaintiff. First, the argument section do es no t contain support for the p oint presented , which was that "the jury's verdict was against the weight of evidence in that the evidence demonstrated that plaintiff suffered serious injuries as a result of Officer S wope's recklessness." A weight

- of

- the

- evidence argument is not developed in the argument section. In fact, there is no reference to "weight of the evidence" anywhere in the brief other than a footnote stating that Frazier moved for a new trial based on the argument that the verdict was agains t the weight of the evidence. "An appellant must develop the contention raised in the point relied on in the argument section of the brief." Horwitz v. Horwitz , 16 S.W.3d 599, 605 (Mo. App. E.D. 2000) (citation s omitted).

12 All rule references are to Misso uri Supreme Court Rules (2014).32

Second, Frazier 's argument con tains "bare conclusions without linking those conclusions to specific evidence and without providing any rationale supporting the conclusions." Carlisle v. Rainbow Connection, Inc. , 300 S.W.3d 583, 586 (Mo. App. E.D. 2009) (citation omitted). "Mere concl usions and the failure to develop an argument with support from legal authority preserve nothing for review. ” Id. (citation omitted). "If a party does not support contentions with relevant authority or argument beyond conclusory statements, the point is deemed abandoned." Id. at 585 (citation omitted). Moreover, the use of incorporation by reference is not sufficient in the argument section of a Point Relied On. Von Ruecker v. Holiday Inns, Inc. , 775 S.W.2d 295, 299 (Mo. App. E.D. 1989) (point is deeme d abandoned where argument is a half page in length, cites no authority and incorporates by reference another part of the record).
But even setting aside all of the Rule 84.0 4 violations, Frazier's point is entirely without legal support as none of his previous Poi nts Relied On actually contain argument as to how each alleged error resulted in prejudice ; rather, each previous point argues why

a particular ruling was erroneous. As stated above, e vidence of prejudice is required in order to grant a new tr ial

. Balke , 966 S.W.2d at 25

. "When a party fails to develop a point relied on in the argument section, it is deemed abandoned." Lack , 151 S.W.3d at 867 (citation omitted)

. Further, Frazier bore the burden of proof to establish his cause of action. The fact finder was free to disbelieve the evidence which he brought forth to support his cause of action. White v. Dir. of Revenue , 321 S.W.3d 298, 312 (Mo. banc 2010). We defer to the33

factual findings of the trial court. Frazier fails to address how t he cause must be reversed under this standard of review. This point is denied.

POINT VIII In his last point, Frazier contends that the trial court erred in denying h is motion for a new trial, which alleged that the verdict was against the weight of the evidence, "because cumulative error resulted " from all of the allegedly erroneous rulings contained in the prior points above

. Standard of Review As stated above, a trial court has great discretion in determining whether to grant a new trial. Hall , 443 S.W.3d at 701. Its decision is presumed to be correct and will be reversed o n appeal only for an abuse of discretion. Mason v. Wal

- Mart Stores, Inc. , 91 S.W.3d 738, 741 (Mo. App. W.D. 2002) (citations omitted). Discussion

" An appellate court may grant a new trial based on the cumulative effects of errors, even without a specific finding that any single error would constitute grounds for a new trial. " Koontz v . Ferber , 870 S.W.2d 885, 894 (Mo. App. W.D. 1993) (citation omitted). " However, relief will not be granted for cumulative error when there is no showing that prejudice resulted from any rulings of the trial court. " Id. (citation omitted). Frazier's last point suffers from the same fatal flaw as Point VII in that he again violates Rule 84.04 and does not provide support for his point. His Point Relied On34

identifies the ruling at issue as the court's denial of his motion for a new trial beca use the verdict was against the weight of the evidence. However, he does not develop this argument. H is argument section consists of only two sentences, without citations to legal authority and again cross

- references previous arguments made as to how the court's rulings were erroneous. He concludes by asserting that the errors "prejudiced Plaintiff in that he was denied a fair and equitable trial." Because we did not find error in Frazier's first seven points and because he neglected to present any arg ument that prejudice resulted from any of the trial court's rulings , we refuse to grant relief for cumulative error. Point VII I is denied. CONCLUSION The judgment of the trial court is affirmed.

__________________________________ Gary D. Witt, Judge All concur