28
February
2020
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04:17 PM
America/Chicago

Case summaries for Feb. 21 - Feb. 27

Summary

Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.

Construction | Criminal | Evidence | Family | Juvenile | Personal Injury | Post-Conviction

Construction

Prejudgment Interest Due
Circuit court’s denial of a continuance had support in trial counsel’s familiarity with the case, notice of trial date, and ample time for discovery and subpoenas. Hardship and a conclusory allegation of an ongoing investigation did not compel circuit court to allow an untimely amended answer. When plaintiff paid for the release of a mechanic’s lien, evidence supporting plaintiff’s judgment for unjust enrichment included the absence of any agreed price for extra work or any other good faith grounds for filing the lien. Duress, including pressure from plaintiff’s client to clear the lien, made the payment involuntary. The funds paid were immediately due and therefore liquidated for purposes of prejudgment interest. Plaintiff’s accompanying letter, denying liability and protesting payment, constituted a demand. Plaintiff’s evidence did not establish that defendant’s delayed performance was defendant’s fault.
Newell Machinery Co., Inc. vs. Pro Circuit, Inc
(Overview Summary)
Missouri Court of Appeals, Western District - WD82327 and WD82364

Criminal

Knowledge Inferred
“[A] defendant should not be permitted to call a witness and use that witness’ refusal to testify to infer the witness’ guilt and thus defendant’s innocence.” When circuit court ruled accordingly, defendant made no offer of proof, so review of that ruling is for plain error only. Evidence supported an inference that defendant knew about methamphetamine in a car he shared with another.
STATE OF MISSOURI, Respondent vs. PATRICK D. FRIEND, Appellant
Missouri Court of Appeals, Southern District - SD35986

No Merger of Child Abuse and Felony Murder
Statute governing video testimony of child witnesses provides that a foundation for admissibility includes the totality of specified circumstances that include consistency and mental state. Felony murder statute characterizes as murder any death occurring in the commission of “any” felony, except murder and manslaughter, which consist of the cause of death itself and therefore merge. Child abuse is therefore a predicate for, and does not merge with, felony murder.
State of Missouri, Respondent, vs. Vincent L. Jones, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107425

Voir Dire Too Fact-Specific
State’s voir dire called for jurors to commit themselves to a specific result on specific evidence, and predisposed the jury to favor the State, creating bias instead of eliminating it. Circuit court abused its discretion by letting that continue to defendant’s prejudice. Defense objection was sufficiently specific to preserve the issue.
State of Missouri, Respondent, vs. Kenol Celian, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107197

Instruction Due on Defense of Another
Incomplete instructions can make counsel’s arguments misleading. If any evidence supports a justification instruction, the circuit court must submit it, even if not asked by or inconsistent with the defense. If the facts as they appeared to defendant would have justified appellant in using force to defend himself, they justified appellant in using force to defend another. Unpreserved instructional error is subject to review for plain error.
State of Missouri, Plaintiff/Respondent, vs. Christopher Endicott, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107254

Uncharged Offenses Were Part of Common Scheme
Evidence of uncharged crimes is generally inadmissible, unless proof of one tends to prove the other, especially with forgeries. Passing three bad checks at three banks in one day shows such a common scheme or plan.
State of Missouri, Respondent, vs. Morris Edwin Miller, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107671

State’s Objections to Peremptory Strikes Upheld
Equal Protection bars a peremptory strike on the basis of gender. The presence of similarly situated female venire persons, not subject to a peremptory strike, showed that defendant attempted to strike male venire persons based on their gender. Proffered gender-neutral explanations were illogical. On a challenge to the sufficiency of the evidence to support a conviction, Court of Appeals sees only the evidence and inferences supporting the conviction.
STATE OF MISSOURI, Respondent vs. CODY RANDALL MCKENZIE, Appellant
Missouri Court of Appeals, Southern District - SD35689

Evidence

Expert Testimony on Delayed Disclosure Okay
Statute provides that the foundation for expert testimony includes reliable principles and methods reliably applied. That language is identical to a federal rule of evidence, in which the reliability factor is the subject of federal case law, but that case law does not control. Different considerations apply for determining the reliability of expert testimony about child victim delayed disclosures.
State of Missouri vs. Lewis C. Marshall
(Overview Summary)
Missouri Court of Appeals, Western District - WD81911

Family

Voluntary Overpayments Treated Differently
Statute provides that the qualifications for testifying as an expert include skill, knowledge, experience, or training, so licensure or certification are not indispensable, and circuit court erred in excluding testimony. That testimony does not alter the conclusion that a child of the marriage is not employable. Circuit court must appoint a guardian ad litem on allegations of child abuse but child abuse did not include defending against the physical assaults of a dangerously violent child. An award of child support is subject to modification only if it becomes unreasonable under a substantial and continuing change of circumstances, like changes in income. A parent cannot reduce their support obligation by avoiding work, but the record supports a finding that respondent timed her retirement to maximize her benefit and attend to her children’s needs. As to the uninsured medical expenses that respondent paid, respondent’s testimony alone was enough to support a finding on the amount. The record shows that the circuit court based its award of attorney fees on all relevant factors. No credit against future child support obligations was due based on overpayments because those overpayments were voluntary, as shown by appellant’s knowledge that he was overpaying. But a credit is due against retroactive child support for voluntary overpayments, so Court of Appeals recalculates retroactive child support due and modifies judgment accordingly.
Jody S. Eichacker, Respondent, vs. Richard F. Eichacker, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED106976

Juvenile

Hearings Explained
Evidence that appellant took a crowbar to several vehicles would have supported a conviction for Property Damage in the Second Degree if appellant were an adult. Hearings for adjudication and disposition are necessary on a motion to modify disposition, and they cannot happen at once, because the former is subject to the law of evidence and the latter is not. Remanded for a dispositional hearing.
In the Interest of: B.O. vs. Juvenile Office
(Overview Summary)
Missouri Court of Appeals, Western District - WD82883

Personal Injury

Hospital Lien Does Not Reach Patient’s Insurance
Though hospital lien statute’s purposes include treatment for patients without regard to whether insurance will pay for that treatment, hospital lien statute’s plain language excludes any claim on uninsured motorist benefits. That is because the statute creates a lien on the proceeds from claims by the injured person against the tortfeasor, and the tortfeasor is neither the insurer nor insured. Plaintiff raised no genuine dispute as to the facts established by defendant’s motion for summary judgment.
Truman Medical Center, Inc. d/b/a Truman Medical Centers vs. Progressive Casualty Insurance CO.
(Overview Summary)
Missouri Court of Appeals, Western District - WD82762

Summary Judgment on Negligent Entrustment Affirmed
Rules governing summary judgment allow more time for discovery, but appellants did not ask until after briefing, and refusing to extend the proceedings further was not an abuse of discretion. On a claim of negligent entrustment, neither previous negligent conduct, nor earlier offenses of different types, established habitual recklessness. “The failure to obey the Motor Vehicle Financial Responsibility Law” does not show negligence because it has no causal link with injury.
Yuriy Matsyuk vs. Viktor Pantyukhin and Lyubov Pantyukhin
(Overview Summary)
Missouri Court of Appeals, Western District - WD82414

Post-Conviction

Argument on Adolescence Sufficient
No evidentiary hearing is necessary to deny a motion that alleges facts already refuted on the record. The record shows that trial counsel argued for mitigation based on the characteristics of adolescence as much as trial counsel should. And failing to argue the characteristics of adolescence more specifically did not prejudice movant because the circuit court considered those characteristics more specifically.
Christopher Scroggins vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82439