            SUPREME COURT OF MISSOURI
                                       en banc

DENISE KAPPEL, ET AL.,                        )   Opinion issued May 12, 2020
                                              )
                             Appellants,      )
                                              )
v.                                            )   No. SC98010
                                              )
FREDRIC PRATER,                               )
                                              )
                             Respondent.      )


     APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                  The Honorable David L. Dowd, Judge

       Denise Kappel (“Ms. Kappel”) and her husband William (collectively, “the

Kappels”) sued Fredric Prater (“Dr. Prater”) for negligence following a car accident.

During trial, the circuit court admitted over the Kappels’ objection photographs of the

rental car Ms. Kappel was driving at the time of the accident. The jury found Dr. Prater

liable for $20,000 in damages. After the verdict was entered, the Kappels filed a Motion

for New Trial on Damages, which was overruled. The Kappels now appeal the circuit

court’s judgment claiming the circuit court erred in admitting these photographs because

they were neither logically nor legally relevant. This Court has jurisdiction under article

V, section 10 of the Missouri Constitution. Because the circuit court did not abuse its

discretion in admitting these photographs, the circuit court’s judgment is affirmed.
                                        Background

       While Ms. Kappel was on a business trip in the city of St. Louis, she was involved

in a motor vehicle accident with Dr. Prater. Ms. Kappel was at a stop when Dr. Prater

drove into her rental car from behind. Ms. Kappel sued Dr. Prater for damages in the

St. Louis Circuit Court, and Mr. Kappel joined as a plaintiff for his loss of consortium.

At trial, Dr. Prater offered into evidence photographs showing the post-accident damage

to the front of his car and the rear of the rental car Ms. Kappel was driving. The circuit

court admitted these photographs over the Kappels’ objection. 1 The photographs of

Ms. Kappel’s vehicle were enlargements of small, black-and-white photographs taken by

the agency from which Ms. Kappel rented her vehicle. The photographs appear to have

been taken in a garage and show the back of her vehicle from three separate angles:

straight on, the driver-side rear panel, and the passenger-side rear panel. They are grainy

and of relatively low resolution.

       At trial, the parties strongly disputed the cause and extent of Ms. Kappel’s claimed

injuries. Ms. Kappel testified Dr. Prater was traveling at 35 miles per hour when he hit

her, but Dr. Prater testified he was traveling only 15 to 20 miles per hour. Ms. Kappel

sought medical treatment the day after the collision because she was experiencing pain in

her lower back and shoulder. After physical therapy and pain treatment proved

ineffective, Ms. Kappel underwent shoulder surgery approximately four years after the

collision. Her treating physicians testified that Ms. Kappel’s lower back and shoulder


1
    The Kappels do not challenge the admissibility of the photographs of Dr. Prater’s vehicle in
this appeal.

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injuries both resulted from the car accident, and the Kappels’ other expert testified her

shoulder injury and the subsequent surgery were caused by the accident. Dr. Prater

offered expert testimony that the shoulder condition that caused Ms. Kappel’s pain and

eventually led to her surgery was degenerative and did not result from the accident.

       The jury found Dr. Prater liable for negligence and awarded $20,000 in damages,

far less than the $650,000 the Kappels had sought. The circuit court entered judgment

accordingly, and the Kappels appeal.

                                          Analysis

       This appeal concerns a single issue: whether the circuit court erred in admitting

the photographs of Ms. Kappel’s rental car into evidence. The Kappels claim the

photographs had no logical relevance and that any slight relevance they may have had

was outweighed by the photographs’ prejudicial effect. Although these photographs are

grainy enlargements of small, black-and-white photographs of the rear of Ms. Kappel’s

rental car, Dr. Prater testified these photographs fairly and accurately depicted the

condition of Ms. Kappel’s vehicle immediately following the collision. According to the

Kappels, the photographs should not have been admitted because their quality was too

low and because there was no expert evidence connecting the amount of damage to

Ms. Kappel’s vehicle to the issue of whether the collision caused the injuries she claimed.

In other words, the Kappels contend Dr. Prater could not rely upon photographs to show

there was minimal damage to Ms. Kappel’s vehicle or to support the inference that this

minimal damage undercut her injury claims. Instead, the Kappels claim Dr. Prater had to




                                              3
adduce expert testimony to the effect that the damage shown in the photographs meant

Ms. Kappel’s injuries could not have resulted from the accident.

       “A trial court enjoys considerable discretion in the admission or exclusion of

evidence, and, absent clear abuse of discretion, its action will not be grounds for

reversal.” Cox v. Kan. City Chiefs Football Club, 473 S.W.3d 107, 114 (Mo. banc 2015)

(quotation marks omitted). A decision to admit or exclude evidence “constitutes an abuse

of discretion when it is clearly against the logic of the circumstances then before the court

and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack

of careful, deliberate consideration.” Id. (quotation marks omitted). And, even if the

circuit court abused its discretion in admitting certain evidence, an appellate court will

not reverse a judgment unless it believes the circuit court’s error “materially affected the

merits of the action.” Id.

       Before deciding whether the circuit court abused its discretion in admitting the

photographs, it is necessary to address precisely what arguments the Kappels are – and

are not – making in this appeal. In the Kappels’ principal brief, their Point Relied On

asserts – in addition to the claim that the photographs should not have been admitted

because they were neither logically nor legally relevant – a claim that the photographs

“lacked a foundation,” i.e., that the photographs had not been authenticated or identified. 2

Nothing in the argument section of the Kappels’ brief develops this claim and, at oral



2
   When speaking of evidence, the term “foundation” can mean all that must be shown for the
evidence properly to be admitted, including, but not limited to, authentication or identification,
logical relevance, and legal relevance. In this case, however, it is clear the Kappels’ reference to

                                                 4
argument in this Court, counsel for the Kappels conceded the photographs’ foundation

was not at issue in this appeal. 3 Instead, the Kappels’ argument on appeal is that the

photographs lacked logical or legal relevance. Nonetheless, several of the arguments the

Kappels make in support of their conclusion the photographs were not relevant actually

are arguments the photographs lacked a foundation. But these two challenges – lack of

logical or legal relevance and lack of foundation – are distinct.

       A photograph cannot be admitted unless there is evidence authenticating or

identifying it. To establish this foundation, “one offering a photograph in evidence must

show by extrinsic evidence that the photograph is an accurate and faithful representation

of the place, person, or subject it purports to portray.” State ex rel. State Highway

Comm’n v. Cone, 338 S.W.2d 22, 27 (Mo. 1960). This showing can be made with

testimony from “any witness who is familiar with the scene, object, or person portrayed

and is competent to speak from personal observation” that the photograph shows what it

purports to portray. Id.

       Relevance is a separate determination. Once the party offering the photograph

shows that it is what it purports to be, e.g., that it is a fair and accurate representation

of “X,” the party offering it must also show that “X” is both logically and legally relevant

to some issue in the trial. “Evidence is logically relevant if it tends to make the existence



“foundation” means only authentication or identification, i.e., a showing that the proffered real or
demonstrative evidence is what it purports to be.
3
   In addition to this concession, it is clear the Kappels failed to preserve for appeal any
argument they may have had regarding a lack of foundation because they did not assert it in their
motion for new trial. See State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 129 (Mo. banc

                                                 5
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, or if it tends to corroborate evidence

which itself is relevant and bears on the principal issue of the case.” Cox, 473 S.W.3d at

116 (quotation marks omitted). Logical relevance is “a very low threshold.” State v.

Anderson, 76 S.W.3d 275, 277 (Mo. banc 2002). Once logical relevance is established,

“[l]egal relevance weighs the probative value of the evidence against its costs––unfair

prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or

cumulativeness.” Id. at 276.

       The Kappels argue the photographs offered by Dr. Prater and admitted by the

circuit court are irrelevant because those photographs “barely depict anything” and their

use by Dr. Prater was not “fair.” 4 But the Kappels’ argument concerning the quality of

the photographs more properly goes to whether those photographs fairly and accurately

depict what they purport to depict, i.e., the post-accident condition of Ms. Kappel’s car.

As such, this argument challenges the authentication or identification of the photographs,

i.e., the claim the Kappels failed to preserve and concede they have abandoned, rather

than challenging the photographs’ logical or legal relevance. Accordingly, the Court will




2000) (holding “issue[s] that [were] never presented to or decided by the trial court [are] not
preserved for appellate review”); Rule 78.07.
4
   Running throughout much of the Kappels’ argument is the suggestion that Dr. Prater’s use of
the photographs of Ms. Kappel’s vehicle was “unfair” because Dr. Prater’s counsel first denied
having any photographs of that vehicle but – two years later – realized the rental car agency had
taken photographs and disclosed them. The circuit court allowed the Kappels’ counsel to explain
to the jury that the photographs had not been timely produced and that they were low-resolution
enlargements of the small black-and-white photographs the agency had taken. The Kappels do
not claim in their Point Relied On in this appeal that the circuit court erred in failing to exclude

                                                 6
address this argument only to the extent it bears on the Kappels’ challenges to the

photographs’ relevance.

       Taking as given that the photographs fairly and accurately portray what they are

offered to show (i.e., the condition of Ms. Kappel’s vehicle following the accident), this

Court holds that the circuit court did not abuse its discretion in admitting those

photographs. An abuse of discretion in deciding to admit evidence “occurs when the

circuit court’s ruling is clearly against the logic of the circumstances and is so

unreasonable as to indicate a lack of careful consideration.” State v. Tisius, 362 S.W.3d

398, 407 (Mo. banc 2012) (quotation marks omitted). Here, the circuit court determined

the condition of Ms. Kappel’s vehicle following the accident was logically relevant to the

issues of the relative speeds of the two vehicles at the time of the collision and whether

the resulting collision caused her claimed injuries. This determination was not against

the logic of the circumstances or indicative of a lack of careful consideration because the

jury could believe there was some correlation not only between the extent of the damage

to Ms. Kappel’s vehicle and the speed with which Dr. Prater struck her, but also between

the extent of the damage to her vehicle and the injuries she actually sustained in the

collision. Expert evidence buttressing (or rebutting) this correlation may have aided the

jury, but it cannot be said that – without expert testimony – such a correlation is so far

beyond the jury’s knowledge and experience that they could make no fair and logical use

of the photographs.


these photographs as a sanction for a discovery violation or that the explanation counsel was
allowed to give to the jury was inadequate or incomplete.

                                                7
       The Kappels argue this Court should follow DiCosola v. Bowman, 794 N.E.2d 875

(Ill. App. Ct. 2003), and hold that – absent expert testimony connecting the vehicle

damage depicted in post-accident photographs to the plaintiff’s injuries – such

photographs are not relevant and, therefore, not admissible. But DiCosola was expressly

overruled on this point in Peach v. McGovern, 129 N.E.3d 1249, 1257 (Ill. 2019). There,

the Illinois Supreme Court stated:

       In the case at bar, the photos were introduced to determine whether plaintiff
       was telling the truth about his injuries when there was minor damage to the
       parties’ vehicles: plaintiff’s back bumper was dented, and defendant had a
       bent license plate, and the front bumper was cracked. As set forth above,
       the essential question in deciding the admissibility of postaccident
       photographs is whether the jury understands the evidence and can relate the
       vehicular damage depicted in the pictures to the injury without the aid of an
       expert. This is an evidentiary question to be resolved by the trial judge.
       ….
       Regarding credibility, as earlier observed, there was contradictory
       testimony from plaintiff regarding the nature and speed of the impact….
       Plaintiff reported to his doctor that his truck had been rear-ended, estimated
       the speed of the impact to be about 25 to 30 miles per hour, and informed
       the police officer that there was minor damage to both vehicles. Plaintiff
       also testified that his back bumper was dented and four days after the
       accident his truck was no longer driveable. Defendant testified that she was
       at a complete stop behind plaintiff’s car and rolled into the back of
       plaintiff’s vehicle. The photographs depicted minor physical damage to
       both vehicles as a result of the accident.
       Given these facts, the circuit court could properly have found that the
       pictures, when considered with other evidence, were relevant to prove the
       matters at issue were more or less probable. Thus, we cannot say that the
       court abused its discretion by admitting the photographs without requiring
       expert testimony.
       Additionally, requiring an expert physician or auto reconstruction engineer
       to testify and explain evidence that is understood by the jurors imposes
       financial burdens on an already expensive discovery and trial process.
       Requiring an expert witness when there is no prior accident or preexisting
       injury forces parties to the task of finding and employing experts instead of


                                             8
       simply permitting the jury to apply common sense and experience to
       evidence relevant to the causation issue in the case. …
       Witness testimony about the speed of the vehicles, the force of impact, and
       the existence or extent of any resulting injuries in an automobile accident
       does not necessarily require scientific, technical, or other specialized
       knowledge in order for the trier of fact to understand the evidence and
       determine a fact in issue.
       Juries are entitled to infer that which resides squarely in the center of
       everyday knowledge, the certainty of proportion, and the resulting
       recognition that slight force most often results in slight injury and great
       force most often is accompanied by great injury. Further, nothing prevented
       plaintiff from offering expert proofs for the purpose of persuading the
       factfinder to overcome an absence of proportionality between the force of
       the impact and the cause and severity of the resulting injuries…. Of course,
       such expert proofs address the weight to be given to photographs of impact,
       not their admissibility.
       Consequently, we find that the photographs were relevant because they had
       a tendency to make a fact that was of consequence to the determination of
       the action, the existence and extent of plaintiff’s injuries, more probable or
       less probable than it would be without the evidence and to aid in the
       determination of credibility of the parties and, thus, admissible. Therefore,
       we conclude that the circuit court did not abuse its discretion in admitting
       the postaccident vehicular photographs without requiring expert testimony.

Id. at 1260-62 (citations and quotation marks omitted). The Courts finds this reasoning

persuasive.

       That the photographs were legally relevant is even less in doubt. The logical

relevance discussed above is not outweighed by any unfair prejudice to the Kappels, i.e.,

any danger that the photographs would confuse the issues, mislead the jury, cause undue

delay or result in the presentation of needlessly cumulative evidence. Instead, these

photographs (and the photographs of Dr. Prater’s car, the admissibility of which the

Kappels concede in this appeal) could help the jury decide between conflicting experts as

to whether and what extent Ms. Kappel’s shoulder injury was caused by the collision.



                                             9
       If these photographs can be used even in the absence of expert testimony

explaining how the minimal damage to Ms. Kappel’s vehicle refutes her injury claims,

and this Court holds they can be, the Kappels also maintain the photographs lacked

logical and legal relevance because they are of such low quality and resolution that they

do not show with any clarity whether or how badly damaged Ms. Kappel’s vehicle

actually was. As noted above, to the extent this challenges the foundation laid for the

photographs, i.e., whether they fairly and accurately depict the condition of Ms. Kappel’s

vehicle after the collision, that argument was not preserved for appeal and affirmatively

conceded by Kappels’ counsel in this Court.

       To the extent this argument challenges the relevance of these photographs,

however, the Court rejects this argument because it misperceives the relative roles of the

judge and jury. The judge merely determines that the jury may consider the photographs

in deciding the disputed issues; it is up to the jury to decide whether and to what extent it

finds the photographs persuasive on those issues. The Kappels cross-examined Dr. Prater

as to what the photographs did and did not show and were free to argue to the jury in

closing that the photographs were inconclusive as to the amount of damage to

Ms. Kappel’s car and, even if the damage was relatively minor, point out to the jury that

there was no evidence her injuries were inconsistent with a collision causing relatively

minor damage to the car. In the end, the photographs show what they show, and

Dr. Prater’s counsel’s characterization of them as showing “minimal” damage and the

argument that this supported the defense expert’s views on causation were well within the

bounds of proper closing argument. See State ex rel. State Highway Comm’n v. Eilers,


                                             10
406 S.W.2d 567, 570-71 (Mo. 1966) (“These points of differences between what the

photograph shows and what is contended to be the actual facts may be made the basis for

cross-examination, thus enabling the jury to give proper weight to the evidence.”);

Shepard v. Harris, 329 S.W.2d 1, 11 (Mo. banc 1959) (explaining decisions regarding

credibility and weight of admissible evidence are for the jury).

                                           Conclusion

       For the reasons set forth above, the trial court’s judgment is affirmed.



                                                       _____________________________
                                                       Paul C. Wilson, Judge

All concur.




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