Case summaries for Feb. 24 - March 2, 2023

Administrative | Appellate | Civil | Criminal | Employment Security | Evidence | Juvenile | Post-Conviction | Probate

Administrative

Failure to follow regulation on denying applications requires grant of application  
Licensing agency’s regulation requires that the denial of an application must specify any information missing from an application, but the agency denied an application for lack of a document not listed in the agency’s denial letter, and the Administrative Hearing Commission did likewise. Court of Appeals orders the license issued.   
Mo Cann Do, Inc., Appellant, vs. Missouri Department of Health and Senior Services, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110329

Appellate

Reason for reversal required  
Rules of appellate procedure require appellant’s brief to articulate points relied on for appellate relief, but appellant’s brief includes no points relied on, and appellant’s argument does not show why reversal is necessary. To rule on such a brief “risks the appellant’s argument being understood or framed in an unintended manner.” Motion to sanction appellant denied but appeal dismissed.   
Progressive Casualty Insurance Company, Respondent, vs. Kenneth Moore, Appellant, and Lashun Givands, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110432

Civil

Motion to set aside default fails on credibility  
Rule allows a circuit court to set aside a default judgment on a motion that, among other things, shows good cause for the default. That means, not only alleging good cause, with some mental state better than recklessness, but also proving good cause, for having defaulted in the underlying action. Proof by testimony is subject to the circuit court’s credibility determinations. The circuit court did not abuse its discretion by disbelieving movant’s testimony and denying the motion to set aside.   
KDD ENTERPRISES, LLC, GREGORY WILLIAMS, and JYO, LLC, Plaintiffs-Respondents v. JUSTIN JEFFRIES, Defendant-Appellant and DIVENERGY, LLC, Defendant-Respondent  
Missouri Court of Appeals, Southern District - SD37491

Criminal

Possession shown  
Neither defendant’s motions to suppress nor for a new trial, nor any other motion or objection, sought exclusion of the arresting officer’s body cam recording, a gun box, or a firearm; so admitting those items into evidence was subject only to plain error review on appeal, which defendant did not seek. Defendant showed no prejudice from a witness’s “brief, vague, and isolated” reference to an outstanding warrant for defendant when overwhelming evidence showed defendant’s guilt of the offense charged. On charges of possessing and trafficking, the State must show that defendant knew the contraband’s nature and had control over that contraband. The contraband was in the glove compartment of a car occupied by three persons, but the State showed that only defendant had superior access: the keys to the glove compartment, which contained a further locked container to which defendant had the key. That evidence was enough to survive a motion for acquittal.    
STATE OF MISSOURI, Plaintiff-Respondent vs. DARIUS E. BROWN, Defendant-Appellant  
Missouri Court of Appeals, Southern District - SD37256

Multiple sentences default to concurrent  
Circuit court inquired of the parties as to whether multiple sentences must run consecutively but imposed—pronounced—sentence without specifying. Statute and rule provide a “bright-line principle” that multiple sentences run concurrently unless imposed otherwise. Written judgment records sentences as consecutive so the Court of Appeals remands for correction of the written judgment.   
STATE OF MISSOURI, Respondent v. RAMIE A. HALBROOK, Appellant  
Missouri Court of Appeals, Southern District - SD37288

Plain error review denied 
Appellant charged error in the absence of a sua sponte declaration of mistrial or issue of a sua sponte curative instruction, on the State’s argument of future danger; and the admission of a recorded interview in which the interrogating officer stated that children do not lie about events like those charged. Appellant did not preserve either charged error for review. Only plain error review is available for unpreserved error, at an appellate court’s discretion, only if appellant shows the occurrence of a manifest injustice or miscarriage of justice. Manifest injustice or miscarriage of justice means an outcome determinative error. If any error occurred, the context of the record shows that neither was outcome determinative. Inconsistencies in child victim’s testimony do not change that outcome. Plain error review denied, and convictions affirmed. 
STATE OF MISSOURI, Respondent vs. SHAWN KELLY MARTIN, Appellant
Missouri Court of Appeals, Southern District - SD37408 

Employment Security

Claim preserved but not resolved  
An initial decision shows that claimant alleged the factual basis for his claim, an administrative notice of appeal was sufficient to preserve the issue for an appeals tribunal, and claimant’s application for review preserved his claim for review before the Labor and Industrial Relations Commission. Claimant’s appellate brief does not conform to appellate rules, but claimant’s argument is nonetheless discernible, so the Court of Appeals rules on the appeal. The appeal requires findings and conclusions on claimant’s theory, which neither the deputy, nor the appeals tribunal, nor the Commission did, so the Court of Appeals remands the claim to the Commission.   
John J. Benoist, Jr., Appellant, vs. Westin Trading, Inc., and Division of Employment Security, Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110753

Credibility determines claim  
Voluntarily quitting work for a non-work-related reason negates a claim for benefits. But that does not include illness, and claimant ceased work because claimant contracted COVID, so staying home from work with COVID does not support denial of claimant’s claim. But claimant was a temporary worker, for whom, statutes provide, the expiration of an assignment, without application for another assignment, constitutes a voluntary quit that negates a claim. Competent and substantial evidence showed that claimant did not apply for another assignment, which refutes claimant’s appeal.   
Melanie L. Hill, Appellant, vs. S.M. Huber Enterprises, Inc., and Division of Employment Security, Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110563

No extension for good cause   
Agency sent two separate decisions, the first determining that an overpayment existed and the second demanding repayment. Good cause provisions extend the filing deadline to appeal denial of a claim but not a determination of overpayment. The Court of Appeals affirms a decision of the Labor and Industrial Relations Commission, when the law and facts support the decision, even though the Commission cited an inapplicable statute.     
Iria Hapsari Kline, Appellant, v. Division of Employment Security, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110502

No extension for good cause   
Agency sent two separate decisions, the first determining that an overpayment existed and the second demanding repayment. Good cause provisions extend the filing deadline to appeal denial of a claim but not a determination of overpayment. The Court of Appeals affirms a decision of the Labor and Industrial Relations Commission, when the law and facts support the decision, even though the Commission cited an inapplicable statute.     
Iria Hapsari Kline, Appellant, v. Division of Employment Security, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110500

Evidence

Propensity evidence admissible  
No plain error occurred when the circuit court allowed evidence of defendant’s propensity to commit the charged offense as the Missouri Constitution provides: in the form of uncharged conduct “substantially similar” to the charged offense, in that the victims were all underaged girls; helpful to the jury in finding the facts on the elements of the charged offense, in that the disputed evidence was corroborative of the victim’s testimony; the evidence was dispassionately presented and argued; and the circuit court instructed the jury to rule only on the charged offense. Counsel’s “announcement of a plan to object in the future” did not constitute an objection, and counsel did not take up the circuit court’s offer of a continuing objection, so the disputed evidence is subject only to plain error review. Plain error requires a manifest injustice or miscarriage of justice, like a distracted jury or lost chance of likely acquittal, which appellant did not show.   
State of Missouri, Respondent, v. Todd R. Shepard, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110268

Juvenile

Dispositional ruling moot  
On appeal, appellant juvenile sought a modification to the circuit court’s adjudication order but, pending appeal, the circuit court granted that modification. No effective relief remained for an appellate court to grant, so the appeal is moot. Appeal dismissed.    
In the Interest of: A.B.W., Juvenile Officer, vs. A.B.W.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85049

Accomplice liability shown  
Statutes provide that the elements of accomplice liability include purpose, specifically the purpose of promoting an offense. A purpose to promote a terroristic threat was evident in appellant’s conduct, which included assisting classmates with Snapchat technology after hearing them discuss the threat and spreading the threat. The circuit court’s finding, that appellant acted with the purpose of promoting the threat, was not against the weight of the evidence.   
In the Interest of: M.T.W. vs. Juvenile Officer  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85020

Post-Conviction

Decision on DNA was strategically sound  
The elements of a claim for post-conviction relief based on ineffective assistance of counsel include counsel’s sub-standard performance that undermines confidence in the conviction. Investigators found cigarette butts found at the crime scene had no DNA of defendant, and one had DNA of a third person, but trial counsel offered no evidence on that matter. But whether the third person was the shooter was mere speculation, the supporting evidence would have weakened the defense theory that investigators’ science was no good on ballistics, the strategic choice was sound, and the choice of witnesses is virtually beyond challenge. A point relied on, unrelated to a claim in the motion, preserves nothing even for plain error.  
ANGALINE RYAN, Appellant vs. STATE OF MISSOURI, Respondent   
Missouri Court of Appeals, Southern District - SD37272

Evidentiary hearing on incorrect advice required  
Misinformation constitutes ineffective assistance of plea counsel and, if reasonably and prejudicially relied on, renders a guilty plea involuntary. Plea counsel under-estimated movant’s soonest parole eligibility, the motion alleged, but for which movant would have gone to trial. Those allegations describe a claim on which post-conviction relief could be based. Nothing in the record refuted those allegations so an evidentiary hearing was necessary before ruling on the motion. Remanded for an evidentiary hearing.   
Isaiah Forman, Appellant, v. State of Missouri, Respondent.   
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110319

Excessive sentence subject to direct appeal  
Rule governing post-conviction relief is not the sole remedy for an unlawful sentence. A sentence modified by circuit court order after judgment is unauthorized by law because imposing a sentence exhausts the circuit court’s authority. Remanded with instructions to vacate the modified sentence.   
STATE OF MISSOURI, Respondent v. KEVIN RAY JOBE, Appellant  
Missouri Court of Appeals, Southern District - SD37496

Probate

Invited error rejected
When plaintiffs’ petition for an accounting cited the Fraudulent Transfers Act, plaintiffs invited the circuit court to apply that Act, so any error in applying that law was invited. Invited error is not grounds for relief. Judgment affirmed.  
In the Estate of Sandra Louise McLaughlin, NICOLE McLAUGHLIN and BRANDON McLAUGHLIN, Appellants vs. ROBERT CANMAN, personally and as Personal Representative of the Estate of Sandra McLaughlin, and BARBARA WAYNER, NANCI MOLENAAR-LOTKOWSKI and SUSAN LUBIENIECKI, Respondents
Missouri Court of Appeals, Southern District - SD37394