            SUPREME COURT OF MISSOURI
                                       en banc



DEBORAH BARKLEY,                 )
                                 )
                   Appellant,    )
                                 )
v.                               )                   No. SC94253
                                 )
MCKEEVER ENTERPRISES, INC. D/B/A )
PRICE CHOPPER,                   )
                                 )
                   Respondent.   )


          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
                   The Honorable James F. Kanatzar, Judge

                            Opinion issued February 24, 2015

       Deborah Barkley (“Barkley”) sued McKeever Enterprises, Inc. (“Price Chopper”),

alleging various torts arising out of her 46-minute detention at Price Chopper for

suspected shoplifting. At the close of the evidence, Barkley elected to submit only her

claims for false imprisonment and battery to the jury. The jury found for Price Chopper

on both claims. Barkley appeals, and the judgment is affirmed.

                                       Background

       On May 24, 2009, Barkley went to Price Chopper in Independence. While

shopping, she took various items (e.g., notebooks, a book light, toothpaste, and batteries)

from the shelves and placed them in a reusable shopping bag she carried next to her
purse. In her other hand, Barkley carried other empty reusable shopping bags. Barkley’s

husband, who also went shopping with her, placed various items in a grocery cart. When

they met to check out, Barkley’s husband unloaded the cart onto the conveyor belt while

Barkley walked past the register and handed the empty reusable bags to an employee for

use in bagging their purchases. Barkley continued to carry the bag concealing her other

items next to her purse. She made no effort to pay for the items in that bag, and they had

not been scanned along with her husband’s purchases. When the other items were paid

for, Barkley headed for the exit.

       Two loss prevention employees had been watching Barkley on Price Chopper’s

surveillance system. When they saw Barkley head for the exit without paying for the

items in the bag next to her purse, they stopped her. They confiscated the bag containing

the unpurchased items, escorted her to the store’s security office, and told her she was

being detained on suspicion of shoplifting. Barkley’s husband waited for her in the

nearby customer service area.

       Inside the security office, Barkley and the two male loss prevention employees

were joined by a female employee in accordance with Price Chopper’s policy for female

shoplifting suspects. Barkley was told to sit on a bench in the office while the employees

searched her purse, itemized and photographed the merchandise Barkley had concealed in

the reusable shopping bag, and began preparing their report. Approximately four minutes

after Barkely was first detained, the employees summoned the police when they

determined that the price of the items in Barkley’s bag exceeded the store’s threshold for

prosecution.
       As the employees were processing the items and preparing their report, Barkley

stood and approached two of the employees from behind. The third employee, who could

see her approaching, told Barkley to stay seated on the bench. Barkley refused and

continued to approach the other employees. When they turned and saw her, one of them

moved to handcuff her. Barkley resisted and, during the scuffle, she was pushed up

against a file cabinet. When the employee cuffed one of her hands and started to

handcuff the other hand behind her back, Barkley complained that this would be too

painful. The employee acquiesced and handcuffed Barkley’s hands in the front instead.

He told Barkley to return to the bench, but she refused again.

       At this point, one of the employees reached out to guide Barkley back to the

bench. She evaded this employee and ran for the door. Barkley was able to open the

door because her hands were cuffed in front of her. But, before she could get the door

open enough to escape, the employees caught up to her. While one of them pushed the

door shut and tried to pull Barkley’s hands from the door handle, the other employee

knocked Barkley’s legs out from under her. With Barkley on the floor, the employees

were able to move her handcuffs to the back so she would not be able to use her hands

again. Then, they attempted to help Barkley up and over to the bench. She refused their

assistance, however, and remained sitting on the floor until the employees completed

their report.

       When the report was finished, the employees moved Barkley’s handcuffs back to

the front and, again, tried to help her off the floor. Barkley did not resist this time, and

the employees assisted her to the bench. Approximately eight minutes later, or about


                                               3
46 minutes after Barkley was first detained near the store’s exit, the police arrived to

arrest Barkley and escort her from the store. She was charged with shoplifting in

Independence Municipal Court but later was acquitted of this charge.

        Barkley sued Price Chopper for actual and punitive damages arising out of her

detention in the store. She alleged that: (1) Price Chopper had been negligent in

supervising its loss prevention employees; (2) Price Chopper committed malicious

prosecution by instigating criminal charges that ended in her favor; and (3) Price

Chopper’s employees invaded her privacy and committed assault, battery, and false

imprisonment. Price Chopper pleaded that the merchant’s privilege and section 537.125 1

protected it from all liability to Barkley for the acts alleged.

        In October 2012, the case was tried to a jury. At the close of the evidence,

Barkley abandoned all of her claims except false imprisonment and battery. These were

submitted to the jury, together with Price Chopper’s affirmative defense to each count.

The jury found for Price Chopper on both counts. Barkley sought a new trial on the

grounds that the trial court erred in submitting an affirmative defense to the charge of

battery and that the trial court erred in admitting and excluding certain evidence. Her

motion was overruled. Barkley appeals, and this Court has jurisdiction. See Mo. Const.

art. V, § 10.

        The Court rejects Barkley’s argument that the merchant’s privilege does not

extend to claims of battery and her argument that the privilege ends when the merchant’s



1
    Unless otherwise stated, all statutory references are to the Revised Statutes of Missouri, 2000.

                                                  4
property is recovered. Instead, a merchant is privileged to detain a person – in a

reasonable manner and for a reasonable period – if the merchant has reasonable suspicion

or probable cause to believe that person is shoplifting. The merchant is entitled to

recover the property but may continue the detention to determine whether the person

actually was shoplifting and – if so – to summon the police and instigate criminal

proceedings. This privilege is not limited to claims of false imprisonment. Instead, as

long as the detention is conducted in a reasonable manner and for a reasonable time, the

privilege protects the merchant from all liability to the person detained, civil or criminal,

including liability for an assault or battery committed to effectuate the detention.

Accordingly, the judgment in favor of Price Chopper is affirmed.

                                          Analysis

       The privilege of a merchant to detain a suspected shoplifter has long been

recognized in Missouri. At first, the privilege applied only if the suspect in fact was

guilty of the crime. See Pandjiris v. Hartman, 94 S.W. 270, 272 (Mo. 1906) (the “only

plea of justification or excuse is that plaintiff was guilty of the crime for which he was

arrested”). As a result, no matter how reasonable the merchant’s suspicion may have

been, only a subsequent conviction would protect the merchant from civil liability to the

person detained. See, e.g., Titus v. Montgomery Ward & Co., 123 S.W.2d 574, 578 (Mo.

App. 1938) (concluding that, because the employee “acted indiscreetly, or with bad

judgment, or through mistake, and arrested, restrained and searched a person not guilty,

her employer is responsible”).




                                              5
       In 1941, however, this Court abandoned this restriction. Expressly overruling

Pandjiris, this Court held:

       In an effort to harmonize the individual right to liberty with a reasonable
       protection to the person or property of the defendant, it should be said in
       such a charge of false imprisonment, where a defendant had probable cause
       to believe that the plaintiff was about to injure defendant in his person or
       property, even though such injury would constitute but a misdemeanor, that
       probable cause is a defense, provided, of course, that the detention was
       reasonable.

Teel v. May Dep’t Stores Co., 155 S.W.2d 74, 78 (Mo. 1941) (quoting Collyer v. S. H.

Kress & Co., 54 P.2d 20, 23 (Cal. 1936)) (quotation marks omitted).

       Based on the evidence in that case, Teel holds as a matter of law that there was no

“unreasonable or unlawful detention of plaintiff … up to the time of obtaining the return

of the goods.” Id. at 79. But, rather than let the plaintiff go when they recovered the

stolen merchandise, the store employees detained her until she signed a confession

admitting to the attempted theft. The Court held that this was actionable. Id. at 80.

       If the employees did not believe plaintiff’s explanation, the Court noted that the

employees “might have been within their rights if they had called the authorities to take

[Plaintiff] into custody and preferred charges against [Plaintiff] ….” Id. at 79. But Teel

holds it is “well settled that unreasonable delay in releasing a person, who is entitled to be

released, or such delay in calling, taking him before or turning him over to proper

authorities … would thereafter amount to false imprisonment.” Id. As a result, the Court

remanded the case for a new trial because “neither the privilege to restrain plaintiff for

the purpose of obtaining return of the goods or in order to turn her over to the proper

authorities … would give [a merchant] any authority to hold plaintiff to compel her to


                                              6
give a confession in violation of her civil rights under the Constitution of this State.” Id.

at 80.

         The General Assembly codified Teel in 1961 in what is now section 537.125 (later

amended in 1985). Subsection 2 of this statute provides:

         2. Any merchant, his agent or employee, who has reasonable grounds or
         probable cause to believe that a person has committed or is committing a
         wrongful taking of merchandise or money from a mercantile establishment,
         may detain such person in a reasonable manner and for a reasonable
         length of time for the purpose of investigating whether there has been a
         wrongful taking of such merchandise or money. Any such reasonable
         detention shall not constitute an unlawful arrest or detention, nor shall it
         render the merchant, his agent or employee, criminally or civilly liable to
         the person so detained.

§ 537.125.2 (emphasis added).

         The remaining two subsections of section 537.125 expound on the privilege set

forth in subsection 2. Subsection 3 explains when that privilege is triggered, i.e., what

constitutes “reasonable grounds or probable cause to believe that a person has committed

or is committing a wrongful taking.” It states:

         3. Any person willfully concealing unpurchased merchandise of any
         mercantile establishment, either on the premises or outside the premises of
         such establishment, shall be presumed to have so concealed such
         merchandise with the intention of committing a wrongful taking of such
         merchandise within the meaning of subsection 1, and the finding of such
         unpurchased merchandise concealed upon the person or among the
         belongings of such person shall be evidence of reasonable grounds and
         probable cause for the detention in a reasonable manner and for a
         reasonable length of time, of such person by a merchant, his agent or
         employee, in order that recovery of such merchandise may be effected, and
         any such reasonable detention shall not be deemed to be unlawful, nor
         render such merchant, his agent or employee criminally or civilly liable.




                                              7
§ 537.125.3 (emphasis added). Subsection 4 then describes the breadth of the privilege

and the liabilities from which the merchant is protected:

       4. Any merchant, his agent or employee, who has reasonable grounds or
       probable cause to believe that a person has committed a wrongful taking of
       property, as defined in this section, and who has detained such person and
       investigated such wrongful taking, may contact law enforcement officers
       and instigate criminal proceedings against such person. Any such contact
       of law enforcement authorities or instigation of a judicial proceeding shall
       not constitute malicious prosecution, nor shall it render the merchant, his
       agent or employee criminally or civilly liable to the person so detained or
       against whom proceedings are instigated.

§ 537.125.4 (emphasis added).

       Accordingly, under the principles first adopted in Teel and later codified in section

537.125, a merchant is privileged to detain – in a reasonable manner and for a reasonable

time – any person the merchant has a reasonable suspicion or probable cause to believe is

committing (or has committed) a wrongful taking of the merchant’s property. The

merchant may detain such a person for the purpose of recovering the merchandise and

also for the purpose of investigating whether a wrongful taking actually occurred (or was

occurring) and, if so, for the purpose of contacting law enforcement and instigating

criminal proceedings. Provided this detention is conducted in a reasonable manner and

for a reasonable time, the merchant is protected from all liability (civil and criminal) to

the person detained.




                                              8
        I.      Point One

        At trial, Barkley argued that Instruction No. 9 2 (i.e., the verdict director on her

claim of battery) should be given by itself. She objected to the proposed “tail” to this

instruction referring the jury to Instruction No. 10 3 (i.e., Price Chopper’s affirmative

defense to the battery claim). Specifically, Barkley objected that Instruction No. 10:

        … submits inapplicable and inappropriate defenses to plaintiff’s battery
        claim. It misstates the law with respect to plaintiff’s battery claim and the
        law with respect to defenses to battery. Further, we object because it is not
        supported by the evidence and misleads the jury as to the law and the
        evidence.

        In her motion for a new trial, Barkley restated this objection and added a new

claim that Instruction No. 10 constitutes “prohibited conjunctive submission of multiple


2
    As given, Instruction No. 9 reads:
        Your verdict must be for plaintiff if you believe:
                First, defendant intentionally pulled plaintiff’s arms behind her back,
                handcuffed her, knocked her to the floor and pulled her to a sitting
                position as her hands were handcuffed behind her back, and
                Second, defendant thereby caused plaintiff bodily harm,
        unless you believe that plaintiff is not entitled to recover by reason of Instruction
        Number 10.
3
    As given, Instruction No. 10 reads:
        Your verdict must be for defendant [Price Chopper] on plaintiff Deborah
        Barkley’s claim for battery if you believe:
                First, plaintiff Deborah Barkley either refused to follow defendant’s loss
                prevention officers’ instructions or attempted to flee the loss prevention
                office, and
                Second, defendant’s loss prevention officers handcuffed and leg swept
                plaintiff for the purpose of resisting plaintiff’s attempt to flee the loss
                prevention office, and
                Third, defendant’s loss prevention officers used only such force as was
                reasonable and necessary to prevent plaintiff from fleeing the loss
                prevention office.

                                                   9
theories of defense all of which are not supported by either the law or the evidence, see

MAI 1.02.” She does not raise this unpreserved “multiple theories” claim on appeal,

however, and that claim is abandoned.

       In the court of appeals, Barkley asserted two claims based on Instructions Nos. 9

and 10. 4 Her first point relied on in that brief states:

       Point I: The Trial Court erred in refusing Plaintiff’s proposed verdict
       directing instruction submitting her battery claim which did not include
       reference to the affirmative defense of resisting invasion of property as
       hypothesized in M.A.I. instruction 32.10 and instead giving, at Defendant’s
       request and over Plaintiff’s objection, Instruction Number 9, which
       included reference to such defense, and Instruction Number 10, submitting
       such defense because such refusal and submissions do not comply with the
       requirements of Rule 70.02 V.A.M.R. in that Plaintiff’s proposed verdict
       directing instruction was applicable to Plaintiff’s battery claim and thus was
       required to be given to the exclusion of any other instructions on the same
       subject and because Instructions Numbers 9 and 10 direct the jury to find
       for Defendant if it believed that Defendant used reasonable force to prevent
       Plaintiff from fleeing the Loss Prevention Office and such facts do not
       constitute a defense to battery under the applicable law and such
       instructions thereby misstated the applicable law, misdirected the jury and
       misled the jury resulting in prejudicial error.

       Under Rule 84.04(d)(1)(A), an appellant’s point relied on must first identify the

action of the trial court that is being challenged. In Point I, Barkley challenges the trial

court’s decision to reject her verdict director on the battery claim and to give, instead,

Instructions Nos. 9 and 10, presenting both the battery claim and an affirmative defense

to that claim. Next, under Rule 84.04(d)(1)(B), the appellant must use the “because”

clause to “state concisely the legal reasons for the appellant’s claim of reversible error.”


4
   Barkley sought to supplement these claims after this Court granted transfer, but, as discussed
below, Rule 83.08(b) does not permit an appellant to alter the basis of claims raised in the court
of appeals.

                                               10
Here, Barkley claims it was error to give Instructions Nos. 9 and 10 because they “do not

comply with the requirements of Rule 70.02 V.A.M.R.” Finally, Rule 84.04(d)(1)(C)

requires the appellant’s point relied on to explain why, “in the context of the case, those

legal reasons support the claim of reversible error.” Barkley offers two explanations

why Instructions Nos. 9 and 10 violate Rule 70.02. First, she explains that “Plaintiff’s

proposed verdict directing instruction was applicable to Plaintiff’s battery claim and thus

was required to be given to the exclusion of any other instructions on the same subject.”

Second, Barkley explains that there is no affirmative defense allowing Price Chopper to

use force to prevent her from fleeing, even if the force used was reasonable.

       The determination of whether a jury was instructed properly is a question of law,

which this Court reviews de novo. Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8,

13 (Mo. banc 2013). That review considers the evidence “in the light most favorable to

the submission of the instruction, and if the instruction is supportable by any theory, then

its submission is proper.” Bach v. Winfield-Foley Fire Protection Dist., 257 S.W.3d 605,

608 (Mo. banc 2008). Even if the giving of a particular instruction was error, however,

this Court will vacate a judgment based on the jury’s verdict “only if the error resulted in

prejudice that materially affects the merits of the action.” Klotz v. St. Anthony’s Med.

Ctr., 311 S.W.3d 752, 767 (Mo. banc 2010).

       As set out in her first point, Barkley claims that Instruction No. 9 should have

been given without the “tail,” referring to the affirmative defense in Instruction No. 10.

She argues that, because Instruction No. 9 is the battery instruction provided in MAI

23.02, it must be given by itself and without reference to any other instruction. For


                                             11
support, Barkley cites Rule 70.02(b), which provides: “Whenever Missouri Approved

Instructions contains an instruction applicable in a particular case that the appropriate

party requests or the court decides to submit, such instruction shall be given to the

exclusion of any other instructions on the same subject.” Barkley’s claim fails.

          MAI 23.02, the pattern verdict director on which Barkley relies, specifically

requires that the following language be added whenever an affirmative defense is

submitted: [“unless you believe that plaintiff is not entitled to recover by reason of

Instruction Number ______ (here insert number of affirmative defense instruction)].”

The “tail” on Instruction No. 9 complies with this requirement; therefore, the trial court

did not err in giving Instruction No. 9 in that form. See Edgerton v. Morrison, 280

S.W.3d 62, 68 (Mo. banc 2009) (denying a similar claim and holding that the addition of

the phrase “as submitted by Instruction No. 11” to verdict form “did not mislead the

jury”).

          Barkley’s alternative argument in Point I is that Price Chopper was not privileged

to use any force – even reasonable force – to prevent her from fleeing once the store

employees had recovered the merchandise hidden in her bag. In other words, she

contends that the protection of the merchant’s privilege does not extend to claims of

battery and, even if it does, Barkley contends that the privilege ends as soon as the

merchant recovers its merchandise. Both contentions are incorrect.

          First, even though Teel dealt with a claim of false imprisonment, the merchant’s

privilege is not limited to such claims. The privilege to detain necessarily includes the

privilege to use reasonable force (i.e., a battery), or to threaten the use of such force (i.e.,


                                               12
an assault), to accomplish this detention. As the Supreme Judicial Court of

Massachusetts noted, the merchant’s privilege would be “meaningless if reasonable force

cannot be used. It makes no sense to assume that shoplifters caught in the act will simply

comply with a request to wait for the police to arrive.” Commonwealth v. Rogers, 945

N.E.2d 295, 306 (Mass. 2011).

       In addition, Barkley’s argument that the merchant’s privilege does not protect

merchants from claims of battery contradicts the language of section 537.125. The

statute explicitly permits the merchant to do several things, including detaining the

suspect in a reasonable manner and for a reasonable time, investigating whether the

suspect committed a wrongful taking, and contacting law enforcement to initiate criminal

proceedings. But the protection for merchants provided by section 537.125 is not limited

to the claims most closely associated with those actions, i.e., false imprisonment, slander,

or malicious prosecution. Instead, section 537.125 protects the merchant from all

liability (civil and criminal) to the person detained.

       Barkley’s second contention also fails. She argues that the only purpose of the

merchant’s privilege is to recover stolen property and, therefore, the privilege ends as

soon as that purpose is achieved. The only basis for her argument is section 537.125.3,

which states that the merchant is permitted to detain the suspect “in a reasonable manner

and for a reasonable length of time … in order that recovery of such merchandise may be

effected.” But Barkley’s argument ignores the remainder of the statutory language and

the common law breadth of this privilege.




                                              13
       Teel recognizes that a merchant is allowed to restrain a suspected shoplifter in a

reasonable manner and for a reasonable time for three purposes, i.e., “for the purpose of

investigation,” as well as “for the purpose of obtaining return of the goods or in order to

turn her over to the proper authorities[.]” Teel, 155 S.W.2d at 79-80. Section 537.125,

too, permits reasonable detentions not only for the purpose of recovering the property, as

noted in subsection 3, but also for the purpose of “investigating whether there has been a

wrongful taking of such merchandise or money.” § 537.125.2. The statute expressly

authorizes that, once a merchant “has detained such person and investigated such

wrongful taking, [it] may contact law enforcement officers and instigate criminal

proceedings against such person[.]” § 537.125.4. As a result, not only does section

537.125 not reject the principle from Teel that a merchant may detain a suspect in a

reasonable manner and for a reasonable time in order to turn her over to the police, it

expressly incorporates and reinforces that principle.

       Accordingly, the Court holds that the merchant’s privilege is not extinguished the

instant the merchandise is recovered. Instead, the merchant is privileged to detain the

person to determine whether the person actually was committing (or had committed) a

wrongful taking and – if so – to detain that person for the purpose of summoning the

police and initiating criminal proceedings. As long as the detention is carried out in a

reasonable manner and for a reasonable time, the merchant cannot be liable to the person

detained under any theory, civil or criminal, including a claim that the merchant used or




                                             14
threatened to use reasonable force to accomplish the detention. Accordingly, Barkley’s

claim that there is no affirmative defense to her claim of battery is rejected. 5

       Barkley also attempts to argue that Instruction No. 10 is not a proper modification

of the MAI 32.10 instruction because the acts it references (i.e., that Barkley “refused to

follow defendant’s loss prevention officers’ instructions or attempted to flee the loss

prevention office”) are not “unlawful acts” of the type referred to in the directions for

using MAI 32.10. This argument is not properly before this Court, however.

       Barkley did not claim at trial (or in her new trial motion) that Instruction No. 10

inaccurately stated the elements of the merchant’s privilege that Price Chopper pleaded

(and the trial court found adequate proof to submit) as an affirmative defense to battery.

Instead, she argued that Price Chopper had no affirmative defense to battery. That is why

her objection at trial was only that Instruction No. 9 should be given without a “tail” and

Instruction No. 10 should not be given at all. In the court of appeals, too, Barkley’s Point

I did not claim that Instruction No. 10 improperly articulated Price Chopper’s affirmative

defense. Instead, as at trial, Point I claimed only that Price Chopper had no affirmative

defense to her claim of battery and, therefore, the trial court erred by giving Instruction

No. 10 and by altering Instruction No. 9 to refer to it.

       When this Court granted transfer pursuant to Rule 83.04, Barkley asserted – for

the first time in this case – that Instruction No. 10 was not properly drafted and/or that the


5
   Other jurisdictions with statutes similar to section 537.125 have found that the privilege
includes a right to detain for the police after recovery of the items and an investigation. See
Jacques v. Sears, Roebuck & Co., 285 N.E.2d 871, 874, 876 (N.Y. 1972); Cooke v. J. J.
Newberry & Co., 232 A.2d 425, 427-28 (N.J. Super. App. Div. 1967).

                                                 15
evidence was insufficient to support the specific factual propositions recited there (rather

than arguing that the evidence was insufficient to support any affirmative defense to

battery, which is what Barkley argued in the trial court and the court of appeals). To

accomplish this, Barkley used her substitute brief to add three new claims to her Point I.

Specifically, Barkley added claims that Instruction No. 10: “(1) hypothesized facts not

supported by the evidence, (2) included unauthorized deviations from M.A.I. 32.10 by

failing to hypothesize unlawful conduct as required in M.A.I. 32.10 paragraph 1, [and]

(3) misstated the law in that they purport to authorize the use of force in response to

conduct which is not unlawful[.]” Such new claims are not permitted.

       Rule 84.13(a) unambiguously provides that “allegations of error not presented to

or expressly decided by the trial court shall not be considered in any civil appeal from a

jury tried case.” In addition, Rule 83.08(b) provides that – if an appellant elects to file a

substitute brief after transfer – it “shall not alter the basis of any claim that was raised in

the court of appeals brief[.]” Accordingly, Barkley’s new arguments are not properly

before the Court and will not be addressed. See Blackstock v. Kohn, 994 S.W.2d 947,

953 (Mo. banc 1999) (Court may not review challenge to instruction where appellant “did

not raise this claim before the court of appeals”).

       Barkley’s new argument, now championed by the dissenting opinion in this Court,

did not originate with Barkley in the trial court. It originated with the dissenting opinion

in the court of appeals. Absent some constitutional imperative not present here, however,

it simply is not the role of the court of appeals or this Court to grant relief on arguments

that were not presented to or decided by the trial court. This rule abides regardless of the


                                               16
merits of the new argument. 6 “Appellate courts are merely courts of review for trial

errors, and there can be no review of a matter which has not been presented to or

expressly decided by the trial court.” In re Adoption of C.M.B.R., 332 S.W.3d 793, 814

(Mo. banc 2011) (quoting Robbins v. Robbins, 328 S.W.2d 552, 555 (Mo. 1959). See

also Brown v. Brown, 423 S.W.3d 784, 788 (Mo. banc 2014) (“issue that was never

presented to or decided by the trial court is not preserved for appellate review”); Smith v.

Shaw, 159 S.W.3d 830, 835 (Mo. banc 2005). This is why Rule 84.13(a) unambiguously

provides that “allegations of error not presented to or expressly decided by the trial court

shall not be considered in any civil appeal from a jury tried case,” and it is why

Rule 83.08(b) prohibits appellants from “alter[ing] the basis of any claim that was raised

in the court of appeals brief[.]”

          II.    Point Two

          Barkley’s second point relied on (both in this Court and the court of appeals)

states:

          Point II: The Court erred in giving Instruction No. 10, defendant’s
          affirmative defense to battery, because it was not supported by competent
          and substantial evidence in that Instruction No. 10 hypothesized that all of
          the batteries inflicted upon plaintiff were inflicted after and as a result of
          her alleged attempt to flee the loss prevention office when in fact the

6
   Because Barkley did not preserve or properly raise any claim regarding the language of
Instruction No. 10, the Court takes no position on whether it was the best way – or even a proper
way – to present the merchant’s privilege and section 573.125 as an affirmative defense to a
claim of battery. At trial, Price Chopper used MAI 32.13 to present this affirmative defense to
Barkley’s claim of false imprisonment, and Barkley does not challenge that instruction or the
jury’s verdict against her in this appeal. But, perhaps believing that it applied only to claims of
false imprisonment, Price Chopper did not use MAI 32.13 as the basis for its affirmative defense
to battery in Instruction No. 10. Instead, it modified MAI 32.10 (resisting invasion of property)
in order to present the reasonableness of the force that was used to effect Barkley’s detention.


                                                17
       evidence showed that numerous batteries were inflicted upon her before the
       alleged attempt to flee the loss prevention office.

       When read through the rubric of Rule 84.04(d)(1)(C), Point II also challenges the

trial court’s decision to give Instruction No. 10 as an affirmative defense to battery.

Here, however, Barkley claims that the legal reason the trial court erred in giving

Instruction No. 10 is “because” that instruction was not supported by the evidence.

Barkley then explains Instruction No. 10 was not supported by the evidence “in that” it

presumes all of the batteries committed by Price Chopper were inflicted after (and,

therefore, as a result of) her attempt to flee even though the evidence shows that she

suffered other batteries before attempting to flee. Because she insists some of the

batteries came before – and, therefore, did not result from – her attempt to flee, Barkley

claims that, even if the jury found the facts required by Instruction No. 10, that defense

would excuse only some – but not all – of the batteries in Instruction No. 9.

       As above, this Court cannot consider Barkley’s Point II because it seeks to assert a

claim that was never presented to – or ruled on by – the trial court. Barkley raised this

same claim in the court of appeals, so – unlike Point I – she did not compound her failure

to preserve this claim in the trial court by violating Rule 83.08(b), as well. Nevertheless,

under Rule 84.13(a), Barkley’s failure to assert her claim in Point II to the trial court

precludes any review of that claim here. See Blackstock, 994 S.W.2d at 953 (after

rejecting one challenge to a jury instruction under Rule 83.08(b) because it was not raised

in the court of appeals, this Court rejected another challenge to the same instruction under




                                              18
Rule 84.13(a) because appellant “failed to object on this ground at the instruction

conference” at trial).

       Barkley’s objection to Instruction No. 10 at trial (and in her motion for a new trial)

was based on her assertion that the merchant’s privilege ended as soon as the store

recovered its merchandise and, even if it continued, the privilege did not permit Price

Chopper to use any force – even reasonable force – to detain her. Barkley did not argue

that there were two (or two sets of) batteries, i.e., those occurring prior to her attempted

flight and those occurring after. Nor did she argue that Price Chopper’s affirmative

defense was sufficient to justify only the latter and not the former. Because Barkley did

not present these claims to the trial court, Rule 84.13(a) precludes this Court from

considering them now. See Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 823 (Mo.

banc 2000) (“Where an alleged error on appeal relating to an instruction differs from the

objections made to the trial court, the error may not be reviewed on appeal.”); Emery v.

Wal-Mart Stores, Inc., 976 S.W.2d 439, 445 (Mo. banc 1998) (same); Reid v. St. Louis &

S.F. Ry. Co., 187 S.W. 15, 18 (Mo. 1916) (“What we hold is that, when counsel stated he

had only a certain objection to make, he thereby limited the trial court's examination of

the instruction to that one objection, and limits himself to that objection on appeal.”).

       Barkley responds that she raised a general objection at trial that Instruction No. 10

was “not supported by the evidence” and argues that this should be sufficient to preserve

her current claim that the trial court erred in giving Instruction No. 10 because that

instruction erroneously implies that all of the batteries occurred after her attempted flight.

The Court disagrees. Nothing in the trial transcript or Barkley’s motion for a new trial


                                             19
suggests that Barkley made – or that the trial court expressly rejected – the claim that

Instruction No. 10 failed to distinguish between those batteries which occurred after she

attempted to flee and those which occurred before she attempted to flee. Accordingly,

Barkley’s second point was not preserved and cannot be reviewed in this Court.

       Even if Barkley had preserved this argument, it would fail because the scope of

the batteries at issue in this case is determined by Instruction No. 9. The description of

the batteries in Instruction No. 9 was written by Barkley – not Price Chopper – and it also

fails to draw any distinction between pre-flight and post-flight batteries. Barkley cannot

complain that Instruction No. 10 fails to draw a distinction that she failed to draw in

Instruction No. 9. See Outman v. Union News Co., 237 S.W. 800, 801 (Mo. 1922)

(appellant “cannot complain of defendant’s instruction 8, as it is in harmony with her

own instruction”); Lange v. Missouri Pac. Ry. Co., 106 S.W. 660, 665 (Mo. 1907) (“party

cannot complain of an instruction which is in harmony with one given at his own

request”).

       It was Barkley – not Price Chopper – who decided what batteries to submit to the

jury and whether to submit them in one count or two. And it was Barkley – not Price

Chopper – who chose to describe the single count of battery in Instruction No. 9 as

follows: “[D]efendant intentionally pulled plaintiff’s arms behind her back, handcuffed

her, knocked her to the floor and pulled her to a sitting position as her hands were

handcuffed behind her back.” These acts all occurred after Barkley attempted to flee, not

before. Barkley admits – in her court of appeals brief and in her substitute brief – that the

only time her hands were handcuffed behind her, the only time she was knocked to the


                                             20
floor, and the only time she was “pulled to a sitting position” on the floor, was after she

ran to the door. Barkley cannot parse the record on appeal in hopes of finding a version

of the facts that will contravene the giving of Instruction No. 10 because this “Court

reviews the record in the light most favorable to submission of the instruction.” Hayes v.

Price, 313 S.W.3d 645, 650 (Mo. banc 2010).

       Finally, even if Instruction No. 9 encompasses actions that occurred both before

and after Barkley attempted to flee, Instruction No. 10 excused any batteries that

occurred due to her attempted flight or her failure to follow the employees’ commands.

One way to effect a detention is to tell the detainee to stay put, and then use force when

the detainee refuses to comply. As the dissenting opinion points out, the real question in

this trial was whether the Price Chopper employees’ commands – and their subsequent

force to compel compliance with those commands – were reasonable. But that question

is for the jury, not this Court, to resolve. Barkley and Price Chopper argued this question

extensively to the jury, and the jury gave its answer. Whatever flaws there may (or may

not) be in Instruction No. 10, it effectively focused the jury’s attention on this central

question, and there is no basis to reject the answer the jury gave.

       Accordingly, because Barkley’s claim was not preserved in the trial court, and

because that claim lacks merit even if it had been preserved, this point is denied.

       III.   Points III and IV

       Barkley’s third and fourth points challenge the admission and exclusion of certain

items of evidence. The trial court has broad discretion in admitting or excluding

evidence. Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011). A trial


                                              21
court abuses its discretion only when its ruling 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.” In re Care &

Treatment of Donaldson, 214 S.W. 3d 331, 334 (Mo. banc 2007). Even when an

evidentiary ruling is in error, this Court will not set aside the jury’s verdict unless that

error likely changed the outcome of the case. Rule 84.13(b).

       First, Barkley argues that the trial court erred in admitting, over her timely and

specific objection, letters written by her physician that detail her physical condition in

2007 and 2011. Barkley asked her doctor to write these letters in support of her requests

to be excused from jury duty. She claims that they are improper character evidence and

are not relevant to any issue in the case. Even if the letters are relevant, Barkley contends

they served only to “alienate and foster resentment by the Jurors who were serving” and,

therefore, their prejudicial effect outweighed whatever probative value they may have

had. Accordingly, Barkley claims the admission of this evidence was reversible error and

a new trial is required.

       At trial, Barkley argued that the letters and related testimony were “not probative

to any issue” and were “highly prejudicial.” The trial court ruled that, given the nature of

the damages Barkley was seeking, evidence of her physical condition both before and

after the incident at Price Chopper was relevant and the letters would be admitted on that

basis. Barkley insisted that she already had conceded substantial preexisting health

problems and, therefore, there was no need for the 2007 and 2011 letters. The trial court

overruled her objections on the ground that Price Chopper was not limited to Barkley’s


                                              22
evidence of her prior conditions, and it found that the letters were not unduly prejudicial. 7

This ruling was not an abuse of discretion.

       In personal injury claims, evidence concerning the plaintiff’s health and physical

condition that tends to prove or disprove the nature or extent of plaintiff’s alleged injuries

is admissible. Eickmann v. St. Louis Pub. Serv. Co., 323 S.W.2d 802, 806 (Mo. 1959).

Accordingly, the letters detailing Barkley’s physical condition both two years before and

two years after the 2009 incident at Price Chopper were logically relevant. State v.

Tisius, 92 S.W.3d 751, 760 (Mo. banc 2002) (evidence is logically relevant if it tends to

make any fact of consequence more or less likely than it would be without the evidence).

A plaintiff does not get to decide which evidence will (and will not) be used to prove or

disprove particular facts, nor is a defendant prohibited from presenting relevant evidence

merely because the plaintiff already has done so.

       Legal relevance, on the other hand, “weighs the evidence’s probative value against

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

or cumulativeness.” Johnson v. State, 406 S.W.3d 892, 902 (Mo. banc 2013) (quotation

marks omitted). Here, the probative value of these letters is clear because they detail

Barkley’s conditions both before and after she allegedly was injured at Price Chopper.

And, despite her protestations to the contrary, it does not appear there was any unfair

prejudice in admitting them. If the statements in these letters are true, and no one argued



7
   The trial court ordered Price Chopper not to use these letters to challenge Barkley’s veracity
(e.g., by suggesting Barkley had fabricated or exaggerated her conditions to get out of jury
service), and Barkley does not claim that this limitation was violated.

                                                23
they were not, there is no reason to assume that the jury would have held Barkley’s

requests to be excused from jury duty against her. Even if there is a reasonable

likelihood that the jury would misuse this evidence in that way, the proper remedy would

be a limiting instruction, not exclusion. Barkley requested no such instruction.

Accordingly, the trial court did not abuse its discretion in ruling that the letters (and the

physician’s testimony concerning them) were admissible. This point is denied.

       Finally, Barkley argues that the trial court erred in excluding: (1) personnel

records showing that one of Price Chopper’s employees had received reprimands for

similar conduct both before and after Barkley’s incident; and (2) court records showing

that a different plaintiff brought a similar claim against Price Chopper in the past.

Because Barkley argues that these records were relevant solely to her claim for punitive

damages, this claim cannot succeed. Even if this Court assumes for the sake of argument

that the trial court erred in excluding these records, that error cannot have been

prejudicial to Barkley. The jury never reached the question of punitive damages, or had

occasion to consider the evidence relevant to that claim, because the jury found for Price

Chopper on both Barkley’s battery and false imprisonment claims. Accordingly, any

error by the trial court regarding the evidence for or against such damages was harmless.

This point is denied.




                                              24
                                         Conclusion

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



                                                           ___________________________
                                                           Paul C. Wilson, Judge



Russell, C.J., Breckenridge and Fischer, JJ., concur;
Stith, J., concurs in part and dissents in part in separate opinion filed;
Draper and Teitelman, JJ., concur in opinion of Stith, J.




                                              25
                    SUPREME COURT OF MISSOURI
                                           en banc
DEBORAH BARKLEY,                                 )
                                                 )
       Appellant,                                )
                                                 )
v.                                               )      No. SC94253
                                                 )
McKEEVER ENTERPRISES, INC.                       )
D/B/A PRICE CHOPPER,                             )
                                                 )
       Respondent.                               )


                            Opinion Concurring in Part and
                                  Dissenting in Part

       I concur in the principal opinion’s holding that section 537.125, RSMo 2000

permits a merchant to detain a suspected shoplifter “in a reasonable manner and for a

reasonable length of time for the purpose of investigating whether there has been a

wrongful taking of such merchandise or money,” § 537.125.2, and “in order that recovery

of such merchandise may be effected,” § 537.125.3. Such reasonable detention will not

subject the merchant to the risk of suit for unlawful arrest or detention. Id. But this does

not answer the key questions in this appeal – what is “a reasonable manner” and “a

reasonable length of time” for a merchant to detain a person?

       Ms. Barkley would have this Court hold that continued detention is per se

unreasonable once the store employee reacquires the merchandise from the suspected
shoplifter. She argues, at that point, the “purpose of investigating whether there has been

a wrongful taking of such merchandise” has been completed and “recovery of such

merchandise” has “been effected.” §§ 537.125.2, .3.

       I agree with the principal opinion that this argument ignores subsection 4 of

section 537.125. The latter states in relevant part that a merchant “who has detained such

person and investigated such wrongful taking, may contact law enforcement officers and

instigate criminal proceedings against such person” without risk of being liable for

malicious prosecution or other criminal or civil liability. I agree with the principal

opinion that, read together, subsections 2, 3, and 4 permit the merchant to detain the

suspected shoplifter after the merchandise has been reacquired if the purpose of the

continued detention is further investigation or contacting law enforcement officers and

awaiting their arrival for the instigation of criminal proceedings.

       I differ from the principal opinion as to what constitutes a “reasonable manner” of

detention, however. In particular, the statute, as just quoted, only authorizes use of

“reasonable means” of detention for the purpose of investigating the allegedly wrongful

taking and while awaiting law enforcement authorities.          The principal opinion, by

contrast, affirms a verdict based on an instruction that permitted the use of physical force

when Ms. Barkley failed to follow the store employees’ instructions and when she

attempted to flee the store’s security office. That instruction did not require the jury to

find that such physical force was necessary to recover the merchandise or to detain her at

the store while waiting for authorities to arrive. In light of Ms. Barkley’s testimony that

                                                 2
she simply wanted to go tell her husband where she was and what was going on, and in

light of the irrelevance of obedience of employee instructions to any of these statutory

issues, this distinction could have been dispositive.

       Because of the errors in the submission of these affirmative defenses, I would

reverse and remand for a new trial under instructions properly submitting the affirmative

defenses authorized by section 537.125.

       More specifically, as the principal opinion correctly notes, Ms. Barkley was

detained by two security employees at Price Chopper after they saw her fail to pay for

some items she had placed in one of the reusable cloth bags she carried with her as she

shopped. Although the principal opinion uses the term “concealed” in the cloth bag,

thereby suggesting that she put the items in the bag to steal them, the jury acquitted her of

shoplifting. In light of that verdict, a more appropriate term would be that the items were

“placed” in the cloth bag. 1

       After Ms. Barkley was acquitted of shoplifting, she sued Price Chopper on

multiple theories including the theories of false imprisonment and battery. In support of

these claims, she testified at the trial that she was diabetic, disabled, and on pain

medication, and carried her medications with her when she went with her husband and


1
  “Conceal” is defined as, “[t]o keep from being seen, found, observed, or discovered;
hide.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 381 (4th ed.
2006). Other definitions include “to prevent disclosure or recognition of,” “avoid
revelation of,” “refrain from revealing,” “withhold knowledge of,” “draw attention from,”
“treat so as to be unnoticed,” “to place out of sight,” “withdraw from being observed,”
and “shield from vision or notice.” WEBSTER’S THIRD NEW INT’L DICTIONARY 469 (1993).
                                                3
granddaughters to buy groceries at Price Chopper.        She says she went with one

granddaughter to look for diabetes test strips while her husband took the cart and other

granddaughters and collected groceries. As she shopped separately with the grandchild,

she said, she picked up a few items and put them in the red cloth bag (her husband having

the cart) and just forgot about them at checkout.

         As shown on a videotape of the 46-minute detention, 2 once Ms. Barkley was

brought into the security office, the employees emptied everything out of her purse to

examine it (presumably for stolen property) and took her driver’s license for

identification. For reasons not explained in the record, they looked at her prescription

containers and then left them on the counter when they replaced her other items and

moved her purse and shopping bags over to the top of a cabinet near where she was

sitting. The security employees determined that the value of the items found in the

shopping bag was sufficiently high that they called law enforcement. While everyone

waited for the police, the employees filled out paperwork, Ms. Barkley took her cell

phone out of her pocket to call her husband to let him know where she was and what was

going on. One of the employees grabbed her phone from her and put it on the counter,

where she could not use or reach it. She testified that she twice asked the employees to

contact her husband. They refused and asked her questions for the paperwork. At this

point, Ms. Barkley’s identity was not in question – the employees had her purse, her cell


2
    The videotape has no sound.

                                                4
phone, her prescription medicines, her driver’s license, and had mostly filled out the

paperwork with information about the incident. After waiting about two minutes, Ms.

Barkley got up from the bench and walked over to where the employees were standing by

the counter. She says she did so because of concern about her medications still being on

the counter rather than back in her purse and to ask again about contacting her husband,

but the employees said they did not hear what she said and just saw she had come up to

stand next to them. They immediately grabbed her and handcuffed her, she claims while

one stated, “I didn’t tell you to get up off the f---ing bench” and called her a “druggie”

and repeatedly used profanity. She says the employees refused her request that they

contact her husband who was sitting outside with the grandchildren.

       At this point, as noted by the principal opinion, Ms. Barkley tried to reach the door

to the office – she says to let her husband know what was going on - the employees say

so she could flee – and she was grabbed, her legs knocked out from under her, and her

handcuffs were moved so that her arms were handcuffed behind her rather than in front

of her. She was left sitting on her legs on the floor for a long period, before the

employees finally helped her up and to walk back to the bench, where she sat down and

the employees removed the handcuffs. She remained on the bench until a policewoman

arrived.

       Ms. Barkley ultimately submitted her case to the jury on the theories of false

imprisonment and battery. Ms. Barkley attempted to submit her battery claim without a

tail referring the jury to an instruction submitting the store’s affirmative defense of

                                                5
reasonable detention. As noted above, I agree with the principal opinion that the trial

court properly ruled that section 537.125 does codify a merchant’s privilege to detain a

suspect for a reasonable time and in a reasonable manner, and that the store was entitled

to submit an affirmative defense based on the statute. I disagree, however, that the

affirmative defense submitted was the one authorized by the statute.

       Ms. Barkley’s verdict director submitted that “defendant intentionally pulled

plaintiff’s arms behind her back, handcuffed her, knocked her to the floor and pulled her

to a sitting position as her arms were handcuffed behind her back.” Ms. Barkley’s

counsel argues on appeal that the first pulling her arms behind her back and handcuffing

her occurred when she first got up from the bench, and the knocking her to the floor and

pulling her to a sitting position and handcuffing her behind her back occurred after she

tried to open the office door, and that the submitted affirmative defenses would not make

any of this conduct privileged. I agree.

       Section 537.125, gives a merchant a privilege to “detain such person in a

reasonable manner and for a reasonable length of time for the purpose of investigating

whether there has been a wrongful taking of such merchandise or money” and so that the

merchant “may contact law enforcement officers and instigate criminal proceedings.”

       This is not the affirmative defense submitted by Price Chopper in its affirmative

defense instruction, however. Because there is no form M.A.I. for submitting such an

affirmative defense, Price Chopper modified M.A.I. 32.10, titled “Battery Actions –

Resisting Invasion of Property.” M.A.I. 32.10 is as follows:

                                               6
       Your verdict must be for defendant if you believe:

       First, plaintiff attempted to (here describe unlawful act such as “enter
       defendant's home” or “take defendant's property”) when plaintiff had no
       right to do so, and

       Second, defendant (here describe defensive measures such as “struck
       plaintiff”) for the purpose of resisting plaintiff’s attempt, and

       Third, defendant used only such force as was reasonable and necessary to
       prevent plaintiff from (here repeat act described in Paragraph First).

       This format could not be exactly followed here, because if it were, Price

Chopper’s instruction would have to submit in paragraph second that it used force to

resist the taking of its property and in paragraph third that it used only such force as was

necessary to prevent that taking. As Price Chopper already had recovered the property

before it used any force, this would not do. So it instead needed to submit why it was

authorized to continue to hold Ms. Barkley after it recovered its merchandise, even

though it already had her identifying information. That authorization comes from section

537.125, which creates a very specific basis on which a merchant may continue to detain

the suspect without risk of suit – the merchant must have reasonable grounds to believe

there has been a wrongful taking and the continued detention must be for the purpose of

investigating whether there had been a wrongful taking or to wait for the arrival of law

enforcement.

       To apply section 537.125 correctly, therefore, MAI 32.10 had to be modified so

that it instructed the jury that it should find for defendant if it found that defendant had

reasonable grounds to believe there was a wrongful taking and that it continued to detain

                                                7
plaintiff for a reasonable time and in a reasonable manner in order to investigate whether

there had been a wrongful taking or to await law enforcement. In other words, unlike in

the example given in MAI 32.10, it is not the allegedly wrongful taking that justified the

use of force; rather, it is the desire to continue investigating and await law enforcement.

       One way MAI 32.10 could have been modified to accomplish this purpose that

would have been in accordance with section 537.125 would have been to add an

additional paragraph, so that the instruction would read something like the following:

       Your verdict must be for defendant if you believe:

       First, plaintiff attempted to take defendant’s property when plaintiff had no
       right to do so, and

       Second, defendant intentionally pulled plaintiff’s arms behind her back,
       handcuffed her, knocked her to the floor and pulled her to a sitting position
       as her arms were handcuffed behind her back, and

       Third, defendant did so for the purpose of investigating whether there had
       been a wrongful taking of its property or to detain plaintiff until law
       enforcement officers arrived, and

       Fourth, defendant used only such force as was reasonable and necessary to
       investigate whether there had been a wrongful taking of its property or to
       detain plaintiff until law enforcement arrived.

       Instead, Price Chopper modified MAI 32.10 so it instructed that the jury should

find for defendant if it found that plaintiff did not follow its employee’s instructions and

attempted to flee its security office, stating:

       “First, plaintiff Deborah Barkley either refused to follow defendant’s loss
       prevention officers’ instructions or attempted to flee the loss prevention
       office, and


                                                  8
       Second, defendant’s loss prevention officers handcuffed and leg swept
       plaintiff for the purpose of resisting plaintiff’s attempt to flee the loss
       prevention office, and

       Third, defendant’s loss prevention officers used only such force as was
       reasonable and necessary to prevent plaintiff from fleeing the loss
       prevention office.”

       Defendant’s instruction was erroneous.        It told the jury that Ms. Barkley’s

wrongful conduct was not the taking of property from Price Chopper without paying for

it but failing to follow defendant’s loss prevention officers’ instructions and attempting to

flee the loss prevention office. It told the jury that if the officers handcuffed and leg

swept her to keep her from fleeing that office or because she failed to follow instructions,

then the jury had to find for defendant. It nowhere explained how the failure to follow

instructions was relevant to its defense but simply posited that it was wrongful and

somehow connected.

       These submissions are not authorized by section 537.125. Refusing to follow

defendant’s employees’ instructions is not the same as refusing to await law enforcement.

Trying to leave a security office is not the same as refusing to await the arrival of law

enforcement. And neither of these two acts is the unlawful act that justified the detention

– that unlawful act, the one that should have been submitted, was the taking of items

without paying for them, and the jury should have been required to find that this wrongful

taking occurred before it could consider the alleged privilege.

       This distinction is key to liability, for section 537.125’s defenses only apply for

the purpose of reacquiring the merchandise and investigating and holding the person for

                                                 9
law enforcement.     Those means may not be used merely to make a person follow

employee instructions or not leave the security office. And as the employees already

knew who Ms. Barkley was and had her purse, ID, and medications, she was not fleeing

to avoid identification. Had the jury been properly instructed that force was reasonable

only if used to investigate or to hold her for law enforcement, it might well have found

that the force was not used in a reasonable manner when it was used because she failed to

follow instructions and tried to leave the office to talk with her husband.

       The principal opinion says that even if the instruction were incorrect in submitting

these defenses, it is simply a matter of incorrect wording and Ms. Barkley did not object

to the wording of the instruction. But, the problem with the instruction is not the

particular words used but the very concept that failing to follow instructions or leaving

the security office are submissible as affirmative defenses at all. Counsel for Ms. Barkley

did adequately make this objection at the instruction conference, stating:

       [Ms. Barkley’s counsel]: We object to the giving of Instruction 9 in its
       present form with the tail referring to the affirmative defense submitted by
       defendant because that defense submits inapplicable and inappropriate
       defenses to plaintiff's battery claim. It misstates the law with respect to
       plaintiff's battery claim and the law with respect to defenses to battery.
       Further, we object because it is not supported by the evidence and misleads
       the jury as to the law and the evidence.
               ….
       [The Court]: Moving on to instruction No. 10 submitted by the defendant,
       is there an objection to this instruction?
       [Ms. Barkley’s Counsel]: Yes, Judge, I object to it for the same reasons that
       I stated with respect to Instruction 9.
       …. [Ms. Barkley arguing distinction of case cited by counsel for defendant]
       … and the facts in this case don’t warrant or justify the submission of this
       instruction in this case.

                                                10
       While the principal opinion is correct that this objection certainly is not a model, it

specifically raises the issue that defendant’s affirmative defense instruction “misstates the

law with respect to plaintiff's battery claim and the law with respect to defenses to

battery.” This was minimally adequate under Rule 84.13 to preserve counsel’s point on

appeal that the affirmative defense instruction did not submit an authorized defense and is

not authorized by section 537.125. The objection further was adequate to preserve Ms.

Barkley’s additional objection that Instruction 10 submitted facts that were not supported

by the evidence – specifically that the instruction submitted that Ms. Barkley was

handcuffed to prevent her from fleeing whereas she notes it is undisputed that only the

second handcuffing allegedly was for that purpose and that the first was because she

“failed to follow instructions” of Price Chopper’s security officers. 3 Counsel was not

required to tell the court how Price Chopper could improve the instruction by removing

the reference to employee instructions and making the flight defense apply only to the

second battery and modifying it to clarify that Ms. Barkley’s intent had to be to flee

before police arrived, not just to leave the security office.

       Finally, Ms. Barkley’s Point II in the court of appeals did directly and specifically

raise the impropriety of submitting “fleeing the loss prevention office” as an excuse for




3
  Contrary to the principal opinion’s statement, instructions 9 and 10 clearly submit both
batteries, which is why there are two references to handcuffing plaintiff rather than just a
single reference.
                                               11
the batteries that occurred prior to her attempt to open the door to the security office. 4

This was adequate to preserve that issue under any application of Rule 83.08.

         For these reasons, I would remand for a new trial at which both parties should

more carefully follow the statute in preparing the jury instructions.




                                                     _________________________________
                                                           LAURA DENVIR STITH, JUDGE




4
    Point II said that Instruction 10 was improper because:

         it was not supported by competent and substantial evidence in that
         Instruction No. 10 hypothesized that all of the batteries inflicted upon
         plaintiff were inflicted after and as a result of her alleged attempt to flee the
         loss prevention office when in fact the evidence showed that numerous
         batteries were inflicted upon her before the alleged attempt to flee the loss
         prevention office.



                                                   12
