Case summaries for Apr. 3 - Apr. 9

Criminal | DWI | Insurance | Post-Conviction | Real Estate | Workers' Compensation

Criminal

Upgrade on Registry Depends on Timing of Offense
Statutes governing sex offender registry classify lower level offenders offending repeatedly at a higher level, if already required to register, but not if multiple offenses required registration simultaneously under a later amendment.
Eric Edward Bacon, Respondent, vs. Missouri State Highway Patrol, Colonel David Todd and St. Charles County Prosecuting Attorney, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107919

Juror Misconduct Waived
Rule allows severance of charges for trial on a showing of substantial prejudice, meaning potential juror confusion over which events related to which offenses, which defendant did not show. Circuit court did not err in refusing to clear the courtroom of police officers, who were in plain clothes and bore no visible sign of being police officers, nor an offer of proof as to the presence of police officers on which the circuit court had already made a record. Defendant waived any error as to juror misconduct by failing to ask for the juror’s removal. Court of Appeals denies plain error review of propensity evidence. No plain error occurred when the circuit court allowed generalized testimony about the behavior of child victims, nor when circuit court ordered no mistrial sua sponte after the prosecutor corrected closing argument to omit a fact not in evidence. A challenge to the judgment based on the insufficiency of the evidence, but focusing on evidence favoring the defense, has no analytical value.
STATE OF MISSOURI, Plaintiff-Respondent v. BLAINE URIAH DOWNUM, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36081

DWI

Demonstrative Evidence of Alcohol Consumed Okay
Equally valid inferences from the evidence, contrary to the inferences that a jury must draw to convict defendant, do not negate jury’s inferences from the evidence. Evidence that defendant obtained 13 beers, and that he neither threw away nor gave away any, supported an inference that defendant consumed all 13 beers. That inference supported the State’s demonstrative evidence in the form of 12 beer bottles during closing argument and a finding of guilty on a charge of driving while intoxicated. Even if overruling defendant’s objection to that demonstrative evidence were an abuse of discretion, other evidence of intoxication supported a conviction, even without blood or breath tests.
State of Missouri, Respondent, vs. Lance M. Swalve, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107538

Insurance

Vexatious Refusal Award Affirmed
Statutes governing an action for vexatious refusal to pay provide that the elements of that claim include whether insurer’s refusal to pay was without reasonable cause or excuse, and evidence relevant to that element includes events up to start of trial, not just up to the filing of a petition for vexatious refusal to pay. That includes limits of coverage, and evidence of settlement offers, compared to undisputed medical bills and uninsured motorist insurance. It also includes insurer’s investigation after the filing of a petition for vexatious refusal to pay. Uncontested medical records and litigation protracted by insurer made a submissible case on that element. Therefore, relevant evidence included the insurer’s investigation after the filing of the petition, which included depositions of insurer’s representatives and instructions not to answer questions, which made a submissible case on the element of insurer’s cause or excuse. Evidence that witness was an insurance lawyer with experience in uninsured motorist coverage provided a foundation for witness to testify as an expert on vexatious refusal, and how much experience was for the defense went to the weight of that testimony, so circuit court did not abuse its discretion in allowing that evidence into the record.
Farzad S. Qureshi, Respondent, vs. American Family Mutual Insurance Company, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107661

Post-Conviction

Must Plead Facts Relevant to Timely Filing
A motion must allege facts under which is due, and relief is due only on timely filing or a court-made exception to the timely filing requirement, so those allegations must appear in the record or a motion. That requirement is never waived and a court must address it sua sponte so, when the only relevant facts appearing in the record and motions show untimely filing, Court of Appeals remands to circuit court for dismissal of the action with prejudice.
John Dodd Jackson, Jr., Movant/Appellant, vs. State of Missouri, Respondent/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107664

Claim Not Raised in Circuit Court
After sentencing, a motion under one rule filed can only raise matters not allowed under another rule. Any claim not raised is waived. Movant did not raise his claim, that his guilty plea was not knowing and voluntary, in circuit court under either rule. Appeal dismissed.
State of Missouri vs. Timothy Wolf
(Overview Summary)
Missouri Court of Appeals, Western District - WD83075

No Prejudice Shown in Faulty Plea Offer
Movant argued that she would have taken a plea offer if she had known about parole eligibility, but if the prosecutor had understood parole eligibility under the plea offer, the prosecutor would have withdrawn the plea offer. Movant showed neither “that the prosecutor would not have discovered his mistake before [m]ovant had an opportunity to enter her plea,” nor that the circuit court would have rejected the plea for the same reason, so movant did not carry her burden of proving prejudice.
CONNIE SANDERS-FORD, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36169

Real Estate

Receiving Benefits Ratified Refinancing
A principle is liable for an agent’s activities, even those without authority, when the principal ratifies those activities. Ratification of a contract is “express or implied adoption or confirmation, with knowledge of all material matters [,]” which evidence that the principal “acquiesced in and accepted the transaction as his own” may imply. Evidence that appellant accepted the benefits of the contract is strong evidence of ratification, so circuit court did not err in concluding that the whole record showed appellant’s ratification of mortgages signed in her name by a third party.
Peoples National Bank, N.A., Respondent/Plaintiff-Counterclaim Defendant, vs. Patricia Fish, et al., Appellant/Defendant-Counterclaim Defendant, vs. U.S. Bank, N.A., Respondent/Third-Party Cross-Claim Counter Plaintiff.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107584

Workers’ Compensation

Uncontroverted Evidence Requires Award
Employability includes claimant’s condition and the state of the job market. Medical evidence of claimant’s condition supported a conclusion of total disability, without using the words “total disability,” with accompanying vocational expert testimony. A party may controvert such evidence by impeaching that evidence or by presenting evidence to the contrary. Medical evidence on claimant’s physical condition, which is just one factor in determining the ultimate issue of employability, did not controvert vocational expert testimony. The Labor and Industrial Relations Commission has expertise of its own, but it cannot ignore uncontroverted evidence without “expressly” finding the evidence not credible. That uncontroverted evidence figures into the Court of Appeals’ review of the Commission’s decision, because the Court of Appeals reviews that decision against the whole record, not just the evidence favoring the decision.
Cherisse Williams, Appellant, vs. Treasurer of Missouri as Custodian of Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108262