concurring.
I concur in the affirmance of the trial court’s judgment. I write separately regarding the jury misconduct issue and the submissibility question.
First, I respectfully suggest that to accept the dissent’s analysis of the jury misconduct claim would expand the scope of Travis v. Stone, 66 S.W.3d 1 (Mo.banc 2002), and State v. Stephens, 88 S.W.3d 876 (Mo.App.2002), beyond permissible limits and establish a previously unrecognized exception to the hearsay rule in juror misconduct cases.1 This is shown by the dissent’s assertion that the “relevance of Juror No. 2’s statement lies in the mere fact that she brought into the jury room outside information not offered in trial[ ]” and by its conclusion that it “cannot find that the four jurors gave hearsay testimony.” As I understand it, the dissent deems the jurors’ testimony admissible because of the presumptive effect of Juror No. 2’s comments upon the state of mind of other jurors. In doing so, the dissent fails to recognize that (1) the ultimate dispositive fact issue was whether Juror No. 2 actually gathered extrinsic evidence. Stephens, 88 S.W.3d at 883, and (2) “even if relevant, hearsay evidence is inadmissible.” State v. Mease, 842 S.W.2d 98, 110 (Mo.banc 1992).2
The Travis court, 66 S.W.3d at 4, cites with approval Stotts v. Meyer, 822 S.W.2d 887 (Mo.App.1991), for the proposition that “it is permissible to elicit testimony about juror misconduct that occurred outside the jury room, such as the alleged gathering of extrinsic evidence at issue here.” In my view, however, that statement does not give rise to a special rule for juror misconduct cases which allows jurors to testify about what an allegedly errant fellow juror told them regarding his or her activity in gathering extrinsic evidence. I believe that neither Travis nor Stotts stands for such a proposition. To the contrary, Stotts makes it clear that such evidence is not competent or admissible to provide juror misconduct.
In Stotts, the jury misconduct allegation was that, during deliberations, several jurors visited an accident scene. One juror, Flippo, testified at a post-trial hearing on appellant’s request for a new trial. The new trial motion was denied, and an appeal followed. On appeal, the Stotts court confined its review to the evidence adduced via juror Flippo, explaining:
“Counsel learned about the misconduct of several other jurors through Juror Flippo. Juror Flippo’s affidavit reveals *374that he gained the information concerning the visits of one or more jurors to the accident scene, in the course of juror deliberations. What transpires during the deliberations between fellow jurors cannot be scrutinized because it’s an invasion into the sanctity of the jury room. Further, it is inadmissible hearsay. As a result, we focus on the testimony of Juror Flippo at the hearing of September 28,1990.”
822 S.W.2d at 888, n. 1 (citation omitted) (emphasis supplied).
The Stotts court focused only on Flip-po’s misconduct, i.e., his actual gathering of extrinsic evidence by personally visiting the accident scene.
As noted earlier, the ultimate question here is whether juror misconduct actually occurred (Stephens, 88 S.W.3d at 883); specifically, whether Juror No. 2 actually gathered extrinsic evidence. Appellant’s allegation that Juror No 2 engaged in such conduct was not self-proving, but had to be proven by him via admissible evidence. Id.; Stotts, 822 S.W.2d at 888, n. 1.
The only evidence that Juror No. 2 went outside the record to gather evidence came from fellow jurors who testified about what Juror No. 2 told them. Such evidence was, in my view, clearly hearsay. Stotts, 822 S.W.2d at 888, n. 1. See generally, Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 120[2] (Mo.banc 1995) (holding, “[w]hen a witness offers the out-of-court statements of another to prove the truth of the matter asserted in the statement, the testimony is hearsay”); William A. Schroeder, 22A Missouri Practice: Missouri Evidence § 800.1 n. 1 (2000). As such, it was a “species of evidence not competent” to prove the ultimate dispositive fact, i.e., whether Juror No. 2 actually gathered extrinsic evidence. See Opponents, 564 S.W.2d at 556[5], Being inadmissible evidence that was timely objected to, it should not have been considered by the trial judge. Stotts, 822 S.W.2d at 888, n. 1.
The fact that the trial judge overruled Respondent’s objections to the hearsay evidence is of no consequence. We are to presume that the trial court sorted out the incompetent, irrelevant, and inadmissible evidence and based its decision upon the competent and relevant evidence. Mullenix-St. Charles Props, v. City of St. Charles, 983 S.W.2d 550, 557[13] (Mo.App.1998). Indulging in the presumption that Judge Dally based his decision upon competent and admissible evidence, we are left with a record that wholly fails to show Juror No. 2 gathered extrinsic evidence; consequently, Judge Dally did not abuse his discretion in refusing to grant a new trial based upon alleged juror misconduct.
Second, I have carefully read the more than 1200 pages of trial testimony and other relevant parts of this record, and from that examination, I have concluded that Respondent presented sufficient causation evidence to support the trial court’s denial of Appellant’s motion for judgment notwithstanding the verdict.
. Unlike this case, neither Travis nor Stephens involved hearsay evidence issues. In Travis, the evidence of juror misconduct was presented by the testimony of the juror who actually gathered the extrinsic evidence; consequently, no hearsay question existed. In Stephens, the misconduct issue arose because the prosecutor wrote a letter to defense counsel advising that a juror, during a recess, had visited the park where the victim had regained consciousness. Moreover, Stephens was decided upon prejudice grounds. As such, evidentiary issues were not present.
. I see the following from Opponents, etc. v. Petitioners for Form., etc, 564 S.W.2d 552[3-5], 556 (Mo.App.1978), as apropos here:
“Proof results from evidence which convinces the mind of an ultimate fact. Not all that convinces and so tends to prove an issue constitutes legal evidence, however; it must also be admissible in a court of justice. Hearsay evidence is not of a species not competent to prove a fact, and therefore inadmissable.” (Citations omitted.)