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Case summaries for April 21 - April 27, 2023


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.

Constitutional | Criminal | Evidence | Family | Post-Conviction


No Free Speech for Terrorist Threats 
Constitutional protections for free speech do not apply to threats of violence. On a charge of making a terrorist threat, circuit court’s findings of fact are subject to deference on appeal, including whether juvenile’s threat was a mere jest. The record supported the circuit court’s findings, so the circuit court did not err in concluding that juvenile was guilty of a delinquency offense and ordering a disposition of probation under the juvenile officer’s supervision. 
In the Interest of: D.J.T.S. vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85142


Defects of Notice Waived 
Failure to file a bill of particulars raises a presumption of satisfaction with notice, waives defects in the charging instrument, and negates even plain error. Victim’s description of defendant’s conduct raised a reasonable inference that defendant committed the conduct described in statute, supported an instruction on that offense, and supported the jury’s finding. Victim’s testimony, of awakening to find defendant’s hand outside her underwear, supported an inference that defendant was taking a substantial step toward getting his hand beneath victim’s underwear. The possibility of a different inference does not negate a jury’s finding. Statute requires a reliability hearing for admitting child victim statements into evidence, unless the child victim testifies at trial, which negates plain error. In charges of multiple acts, no plain error occurred in jury instructions, because the State’s closing arguments confined the State’s case to specific acts and avoided a verdict that was less than unanimous.  
State of Missouri, Respondent, vs. Haverley Bracy, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109927


Photograph of Victim’s Wound Admissible 
“If a photograph is shocking or gruesome, it is generally because the crime itself was shocking or gruesome.” A post-surgical photograph of a victim’s wound, dressed and with blood cleared away, was not more inflammatory than probative. Defense’s offer of stipulation to the severity of the wound does not bar a corroborative photograph in support of expert testimony. Statute governing “admissibility of expert testimony requires simply that it be relevant, reliable, and proffered by a qualified expert[,]” and the testimony of State’s expert on gunshot wounds and pain was admissible under that standard.  
State of Missouri, Respondent, v. Mark Aaron, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110394


Termination of Parental Rights Affirmed  
The circuit court found an untreatable addiction disabling appellants from caring for their child. That finding had support in clear, cogent, and convincing evidence. And appellants failed to preserve that matter, and others, for review in a motion to amend the judgment. The evidence also supported a finding of insufficient compliance with their service plans regarding: releases of medical records to, and meetings with, State personnel; regular and consistent contact with child; housing conditions; and treatment for addictions. Those findings supported a conclusion that grounds for terminating parental rights existed for failure to rectify. The circuit court resolves conflicts in evidence and the appellate courts defer to those determinations. Circuit court’s findings, on the statutory factors determining the child’s best interests, show the circuit court’s evaluation of the evidence. Judgment terminating parental rights affirmed.  
In the Interest of: A.O.B. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110921

Property Division Recalculated 
In an action for dissolution of marriage, circuit court may incorporate the parties’ settlement agreement, but cannot alter the provisions of that agreement. The circuit court’s property division, departing from the parties’ clear and unambiguous agreement, was also contrary to the evidence. The Court of Appeals recalculates the property division and enters the judgment that the circuit court should have entered.  
In Re the Marriage of: Leslie E. Cheek, Petitioner/Respondent, v. Kevin R. Cheek, Respondent/Appellant, v. Kaleb Cheek, Third-Party Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110511


Abandonment Inquiry Required 
Rule sets forth deadlines for filing an initial motion and an amended motion. Rule provides that circuit court may extend the time for filing an amended motion, but that extension must occur within the time for filing the amended motion. The circuit court did not extend that deadline within that time, and appointed counsel filed the amended motion after the deadline, which raises a presumption of abandonment. Those facts require an inquiry to determine whether appointed counsel abandoned movant. Abandonment forgives the late filing, so the inquiry determines which motion the circuit court rules on, the initial motion or the amended motion. Remanded for an inquiry into abandonment.  
Donald Nussbaum vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85400

Briefing Deficiencies Require Dismissal 
When movant files a motion for post-conviction relief, no response is required from the State. A point relied on that alleges multiple instances of ineffective counsel is multifarious and preserves nothing for review. Rules of appellate practice require that a point relied on must plead prejudicial error. A statement of facts must be relevant to appellant’s claim. Argument must cite law, refer to facts, and show reversible error. Failure to comply with those rules leaves an appellate court to speculate on appellant’s theory, which leads to advocating for appellant, which the court must not do. Appeal dismissed.    
SPENSER A. FARR, Appellant vs. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District - SD37645