Case summaries for Feb. 21-27, 2025

Administrative | Appellate | Constitutional | Criminal | DWI | Employment security | Family | Juvenile | Orders of protection | Post-conviction | Probate

Administrative

No prejudice shown from denial of continuance 
A licensing agency’s decision to issue a license subject to probation was subject to review before the Administrative Hearing Commission, but the appellant licensee waived such relief by not seeking it. In an action to enforce the terms of probation, the agency gave more than the required 10 days’ notice before convening its evidentiary hearing on the record. The licensee showed no prejudice from the denial of a continuance, in that the licensee did not show that more time would have produced more evidence. The record supported the agency’s decision to impose additional discipline with evidence that the appellant had violated the provisions of her probation. The licensee showed no authority conditioning alcohol-restrictive provisions on a finding of alcohol dependence or impairment. To show a violation of the Americans with Disabilities Act, the licensee had to show a disability, which the licensee failed to do. Circuit court review of an administrative agency’s decision included a review of the entire record made before the agency, including evidence contrary to the decision. 
(Overview summary) 
Jamie Snethen vs. Missouri State Board of Nursing 
Missouri Court of Appeals-Western District – WD87187

Appellate

Multifarious points preserved nothing 
Appellate rules maintained the judiciary’s neutrality. One point relied on had to challenge one ruling under one standard on one theory. “Separate issues should be stated in separate points relied on … because 'separate and distinct inquiries … require discrete legal analyses.” The appellant challenged multiple theories under multiple standards without announcing any theory. The Missouri Court of Appeals dismissed the appeal. 
IN RE THE MARRIAGE OF BRIAN FLOOD and HOLLY JESSICA FLOOD, BRIAN FLOOD, Respondent v. HOLLY JESSICA FLOOD, Appellant 
Missouri Court of Appeals-Southern District - SD38517

Constitutional

No First Amendment protection for threats against government employees 
The defendants waived constitutional challenges unless raised in a pre-trial motion so the appellant defendant’s closing argument was too late to raise a constitutional challenge. Constitutional challenges to an ordinance, on its face or as applied, were distinct theories with differing analyses so one argument did not support the other theory. Constitutional provisions did not protect fighting words, so a county ordinance that barred “threatening, offensive, disorderly, abusive, or insulting language, conduct, or behavior” was not unconstitutional as applied to the defendant. 
(Overview summary) 
Jackson County, Missouri vs. Jerry Hardy Stamps 
Missouri Court of Appeals-Western District – WD87106

Criminal

Multiple acts case analyzed for plain error 
The foundation for admitting a child’s out-of-court video statement was subject to the statute specifically for such statements, not another statute generally for statements otherwise inadmissible. Under either statute, the circuit court did not abuse its discretion in admitting the victim’s statements based on indicia of reliability. Plain error included an obvious error resulting in manifest injustice or miscarriage of justice. Constitutional provisions, requiring a unanimous guilty verdict, required the verdict director in a multiple acts case either to distinguish between multiple particularized incidents or to direct that the jury be unanimous on at least one incident. Such “has been settled law for several years, rendering it more and more difficult to excuse a defendant’s failure to object to, and thus preserve, instructional error in multiple acts cases[.]” But mere reference to other incidents not particularized did not provide any basis for conviction of different incidents and so raised no unanimity issue. And the defense relied generally on credibility. Also, the defendant did not show any reasonable likelihood that the jury convicted the defendant on different incidents. The circuit court’s credibility determinations supported a finding that no improper communication between a prosecutor and the jury occurred. 
(Overview summary) 
State of Missouri vs. Jonathan Philippe 
Missouri Court of Appeals-Western District – WD86173

No plain error review for restitution 
Appellate courts could review unpreserved matters for plain error. Plain error review required the appellant to plead an obvious error that was outcome-determinative of a manifest injustice. The appellant pleaded that the circuit court ordered an amount of restitution based on conflicting evidence. That pleading did not show any error because the circuit court had authority to resolve conflicts in evidence, nor even prejudice because the evidence could have supported a greater amount. The Missouri Court of Appeals declined plain error review. 
STATE OF MISSOURI, Respondent v. JORDAN K. WOODS, Appellant 
Missouri Court of Appeals-Southern District – SD38325

Charges amended on day of trial were okay 
Charges had to include all elements of each offense charged. To comply with that requirement, the state amended its charges on the morning of trial. Whether the new element constituted a new allegation, the appellant did not raise in circuit court, so an appellate court would not hear the argument. No prejudice occurred and no continuance was necessary because the same defenses and elements applied after the filing. Curing a defect did not deny the appellant a defense. The state rehabilitated venirepersons who displayed possible bias by procuring “unequivocal assurances of impartiality” from them. “A question posed to the entire venire panel, and a venireperson’s silence in response to the question, is sufficient to rehabilitate” any such venire person and the appellant acquiesced in that rehabilitation. No plain error occurred when the circuit court submitted an instruction that omitted the element of prior convictions because the defense stipulated to the prior convictions. The record supported a finding on the date of an earlier conviction. The Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent vs. LANCE LECHNER, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38099

Time was not essential in charges 
The appellant’s brief violated rules on page length, statement of facts, points relied on, and argument. But sufficiency of the evidence is always subject to review in a criminal action even without preservation. The state could have carried its burden of proof and persuasion with a single witness but had other witnesses providing evidence that, found credible, supported the judgment. And the Missouri Court of Appeals was able to resolve the rest of the appeal without compromising its neutrality. The span of time covered in the indictment was not too great for a child sex abuse case to cause a manifest injustice or miscarriage of justice so no plain error occurred. 
STATE OF MISSOURI, Plaintiff-Respondent vs. DAVID PATRICK YOUNT, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38559

No voluntary manslaughter instruction was due in first-degree murder case 
Instructions were due on request if supported by evidence for a nested lesser-included offense. A nested offense was an offense of which the elements were a subset of the greater offense’s elements. That did not describe voluntary manslaughter and first-degree murder. The defendant failed to preserve a challenge to the instruction because the defendant failed to object to the state’s second-degree murder instruction and failed to proffer an accurate instruction for voluntary manslaughter. Conviction on the greater offense negated plain error. 
STATE OF MISSOURI, Plaintiff-Respondent v. KYLE A. BYINGTON, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38378

DWI

Evidence showed causation between substances and impairment 
Preservation of any other error for appellate review after a jury trial required a motion for new trial, except sufficiency of the evidence, which was always subject to review on the merits. On a charge of driving while intoxicated, the state had to show that a substance impaired the driver. Those findings had support in evidence that the driver was disoriented, manifested physical signs of intoxication, had alcohol and methamphetamine in his system, and drove erratically. Expert testimony supported a causal link between the substances and the impairment. The driver’s blood on a bag of methamphetamine supported a reasonable inference of possession and contrary inferences were irrelevant. Otherwise, a motion for new trial filed late preserved nothing for appellate review, and the defendant did not plead plain error. The Missouri Court of Appeal affirmed the convictions. 
STATE OF MISSOURI, Respondent vs. KENTON COWGILL, Appellant 
Missouri Court of Appeals-Southern District – SD38166

Employment security

Wages defined 
Documentary evidence showed that the claimant had received a final payment for paid time off. That payment constituted wages even though the claimant did not deposit it. When the Missouri Labor and Industrial Relations Commission considered the payment in the calculation of the claimant’s benefits, the commission found an overpayment. The Missouri Court of Appeals affirmed the commission’s decision. 
(Overview summary) 
Leon Thomas, Jr., Appellant, v. Division of Employment Security, Respondent. 
Missouri Court of Appeals-Eastern District – ED112703

Delay negated overpayment 
Statutes required the Missouri Division of Employment Security to determine benefit overpayments “promptly” after a determination of disqualification. That did not happen when the claimant’s overpayment determination occurred 10 months after disqualification determination. The COVID-19 pandemic made no difference because “the Division certainly did not hold itself to the same stringent standards it imposed upon claimants.” The accrual of overpayment was therefore due to the division’s delays in an unknown amount, because the division failed to show how much, so no substantial and competent evidence supported the overpayment as found by the Missouri Labor and Industrial Relations Commission. The Missouri Court of Appeals reversed the commission’s decision. 
(Overview summary) 
Michael C. Schmidt, Appellant, vs. Division of Employment Security, Respondent. 
Missouri Court of Appeals-Eastern District – ED112598

Family

Income evidence was stale 
Maintenance was due for parties with insufficient property to support their reasonable needs without employment. The award of maintenance was not against the weight of the evidence because the evidence showed that reasonable expenses were greater than current income. But the circuit court awarded child support on evidence that did not reflect current earning capacity so that award was against the weight of the evidence. A physical custody award less than three out of 14 days did not constitute joint physical custody, but that award had support in the evidence that favored one parent with five out of eight statutory factors, the remaining factors favoring neither party. The circuit court did not err in finding that relocation of the parties’ children was in good faith and in the children’s best interest and designating the relocating parent’s address for educational purposes. The Missouri Court of Appeals remanded the action for the circuit court to characterize custody as sole custody and re-calculate child support using current information. 
CLAIRE S. WILKERSON, Respondent v. CLAY M. WILKERSON, Appellant 
Missouri Court of Appeals-Southern District – SD38454

No action for non-paternity 
A motion to dismiss for failure to state a claim tested only whether the petition’s allegations described facts on which the law offered relief. The Uniform Parentage Act allowed challenges to an affidavit of paternity based on material mistake of fact. The elements included evidence not considered before a judgment of paternity, which the petition negated: The plaintiff alleged that he knew, before signing the affidavit of child’s paternity, that the plaintiff was not the child’s father. The court did not err in dismissing the petition. 
(Overview summary)
C.M.G., Petitioner/Appellant, vs. B.M.C., Respondent/Respondent, O.R.C., Minor, and State of Missouri, Dept. of Social Services, Family Support Division, Respondent/Respondent.
Missouri Court of Appeals-Eastern District - ED112716

Child support payment affirmed 
In an action to determine child support due, the record supported the calculations of the Missouri Family Services Division, including the division’s correction of its earlier error. The record also showed that the appellant obligor had counted Kansas payments twice. Therefore, the circuit court did not err in affirming the division’s decision. 
(Overview summary) 
Bryan L. Oliver vs. Lindsay King, F/K/A Lindsay Oliver, State of Missouri, Department of Social Services, Family Support Division 
Missouri Court of Appeals-Western District – WD87471

Juvenile

Critical factors supported certification 
Factors that supported certification of a juvenile to stand trial under the general criminal law did not weigh equally. The most critical included the offense’s violence and the appellant juvenile’s maturity and sophistication, which the state showed with evidence that the juvenile tried robbing a drug dealer at gunpoint, resulting in the death of a confederate. The statutes also required the circuit court to consider racial disparity, which the circuit court satisfied with a statement that race was not a factor. The juvenile charged certification counsel with ineffective assistance, for failure to call an expert witness on in child psychiatry and adolescent brain development, but showed no resulting prejudice. 
(Overview summary) 
In the Interest of: J.M.J., Jr. 
Missouri Court of Appeals-Eastern District – ED112446

Orders of protection

Full order reversed 
The circuit court’s grounds for a full order of protection included sexual assault. But the petition did not allege sexual assault, the petitioner offered no evidence of sexual assault, and the judgment made no findings on sexual assault. Other grounds for a full order of protection included battery, assault, harassment, and stalking. Assault required placing in fear of physical harm. Battery required physical harm. Evidence that the respondent pushed petitioner down did not — alone — show fear or harm so it did not show assault or battery. Harassment required substantial emotional distress, which the petitioner did not support with any testimony. A “bare statement that [petitioner] felt threatened at times does not amount to substantial evidence of harassment[.]” The petitioner’s allegations of surveillance supported an ex parte order but were not self-proving and did not support a full order without evidence. Stalking required fear of physical harm, to which petitioner did not testify. 
(Overview summary) 
C.M.M., Respondent, vs. A.M.C., Appellant. 
Missouri Court of Appeals-Eastern District - ED112435

Post-conviction

No self-defense instruction was due
Post-conviction relief was due if counsel’s substandard performance prejudiced the movant. The movant could show no prejudice when trial counsel failed to object to the State’s inquiries on the credibility of directly opposite versions of the events because the jury would have to determine credibility with or without an objection. Counsel is never ineffective for making a meritless argument. An instruction on self-defense with deadly force was due when a forcible felony was imminent or happening. An argument for that instruction would have been meritless because movant’s testimony showed only that he was apprehensive of victims robbing him, not that robbery was happening or imminent. And trial counsel did get an instruction on self-defense with deadly force, which was a strategically sound request. The Court of Appeals affirmed the judgment denying relief.
RONALD R. SPRADLING, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD38432

Clear error explained
Judgments on motions for post-relief were subject to review for clear error, meaning that conclusions of law were de novo review for law, and findings of fact could occasionally be rejected even if supported by substantial evidence. The State had probable cause to charge the movant with murder in the first degree by accomplice liability so that charge did not constitute coercion of movant’s plea of guilty to a lesser charge. Movant also cited counsel’s decision not to seek a bond. Relief was due if prejudice resulted from ineffective counsel. Plea counsel was ineffective only if a guilty plea was less than voluntary and knowing. No such allegation or evidence was in the record, and the plea colloquy showed the opposite.
KIMBERLY K. HENDERSON, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD38380

Probate

No self-dealing under durable power of attorney 
The Missouri Court of Appeals removed from the record exhibits related to a separate appeal. The appellants’ breach of rules regarding an appeal from summary judgment did not require the Court of Appeals to depart from its neutrality while resolving the appeal. The Durable Power of Attorney Act imposed fiduciary duty on attorneys in fact, so the authority to alter beneficiary designations must be “expressly enumerated and authorized[, and] general language authorizing an agent to change a beneficiary designation was insufficient to authorize the attorney[s] in fact to designate [themselves] the transfer-on-death beneficiary of … assets.” A broad and vague grant of authorization, for the attorneys in fact to use assets for their own benefit, did not authorize changing a payable-on-death designations to themselves. Spoken instructions were irrelevant. The Court of Appeals affirmed summary judgment against the attorneys in fact. 
(Overview summary) 
First Community Credit Union v. Samuel Rowley, Sheryl A. Rowley, Appellants, and Archdiocese of St. Louis, Respondent. 
Missouri Court of Appeals-Eastern District - ED112630