Case summaries for May 3 - May 9, 2024

Appellate | Civil | Criminal | Juvenile | Post-Conviction | Workers' Compensation

Appellate

Appellant’s brief’s statement of facts explained
Appellant’s brief must include a statement of facts relating to the issues raised on appeal with references to the record. When appeal is from summary judgment, the summary judgment record is the sole source of facts. Appellant’s failure to reference the record makes it impossible for an appellate court to determine whether the facts were established beyond genuine dispute without acting as appellant’s advocate. The statement of facts must also be free of argument like challenging a witness’s credibility. “This repeated and pervasive noncompliance with [appellate rules] justifies dismissal here.
J.D., a minor, by and through Next Friend, MELISSA STORMENT, Plaintiff-Appellant v. JENNIFER SANDERS, DR. MARK PIPER, and HARTVILLE R-II SCHOOL DISTRICT, Defendants-Respondents
Missouri Court of Appeals, Southern District - SD37824
 

Civil

Appeal from valuation discussed
The circuit court classified a debt as appellant’s separate liability. Appellant’s challenge, based on lack of substantial evidence and the weight of the evidence, failed because of the circuit court’s express credibility determinations. A challenge to property valuation failed because appellant cited no authority showing why the circuit court’s method was error and which valuation method the circuit court should have used: earnings, liquidation, or comparable sale. A motion to re-open the record filed after the circuit court entered judgment was too late. The circuit court did not abuse its discretion when it denied appellant’s motion for new trial, to alter child support on newly discovered evidence of a child’s emancipation, because the child was not emancipated as of the judgment’s entry. Besides, a statute terminated child support for emancipation on the filing of an affidavit.
CHRISTOPHER J. GARDNER, Appellant v. CATHY J. GARDNER, Respondent
Missouri Court of Appeals, Southern District - SD38026
 

Criminal

No sua sponte mistrial, no plain error review
The elements of child molestation in the second degree include the purpose of arousing or gratifying sexual desire. “[A]n inherently sexual act . . . can alone” be evidence of an intent to gratify a sexual desire [,]” because such an act implied such a desire, and resolution of competing narratives was for the jury. The elements of a claim for plain error review included a manifest injustice or miscarriage of justice, meaning outcome-determinative, to which the absence of a sua sponte mistrial over State’s closing argument did not rise. The State referred to the lack of any explanation, other than the State’s evidence, for a mark on victim’s body. That argument did not directly highlight defendant’s choice not to testify, and the circuit court correctly instructed the jury on the burden of proof, so defendant did not show outcome-determinative error and the Court of Appeals denied plain error review. Remanded to conform the circuit court’s judgment to the jury’s verdicts.
STATE OF MISSOURI, Plaintiff-Respondent vs. ELMER ANTONIO NIETO, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37894

No plain error review for uncharged sexual misconduct
The elements of a claim for plain error review included a manifest injustice or miscarriage of justice, meaning outcome-determinative, but defendant argued only “likely” prejudice. On charges of sex crimes committed against children, constitutional provisions allowed the admission of uncharged crimes as propensity evidence on a specified foundation, and the circuit court properly instructed the jury to determine defendant’s guilt only of the crimes charged. “[T]he risk that [the jury] was inclined to convict [the defendant] for past conduct rather than for the crime charged—disobeying the court’s explicit instruction to the contrary—is low.” Also, multiple instances of such acts constitute cumulative evidence that cannot be prejudicial. The Court of Appeals declines plain error review.
STATE OF MISSOURI, Plaintiff-Respondent vs. JAMES NORMAN HARPER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37648

Courses of conduct explained for expungement
Statutes allowed a petition for expungement to address any number of criminal pleas arising from a single course of course of criminal conduct. In resolving that matter, Double Jeopardy analysis is of limited use because that analysis focuses on offenses, while the expungement statutes focus on courses of conduct. A course of conduct is a fact issue and procedural history is irrelevant. Petitioner pleaded guilty, on the same day with the same counsel, to two instances of burglary and related offenses at adjoining facilities owned by a single entity. Petitioner’s criminal conduct constituted separate courses because they occurred ten days apart at separate institutions even though petitioner “felt as if they occurred on the same day” due to medication-induced sleep disturbances.
(Overview Summary)
Benjamin J. Smith, Appellant, v. MSHP Criminal Records Repository et al., Respondents.
Missouri Court of Appeals, Eastern District - ED111779

No lesser included offense instruction required
On charges of felony resisting arrest, the defense closing argument was that defendant was not guilty first-degree assault of a law enforcement officer and armed criminal action, only felony resisting arrest. As to felony resisting arrest, that argument constituted a judicial admission that waived any appeal based on sufficiency of the evidence. An instruction on a lesser included offense—nested or not—was not due when the instruction “impermissibly deviated from” the conduct alleged in the charging instrument. “In assault cases, care must be taken in instructing the jury on lesser[]included offenses. The lesser[]included offense cannot be submitted on a theory different than that submitted for the higher degree, i.e., the manner of the assault must be essentially the same for all levels of the offense.” When the charges alleged that defendant fired a pistol at a law enforcement officer, defendant offered evidence that defendant threw the pistol to the ground, causing the pistol to discharge. But on the proffer of an instruction requiring a finding on those allegations, the circuit court did not err in refusing the proffered instruction.
(Overview Summary)
State of Missouri, Respondent, vs. Rodrick Fowler, Appellant.
Missouri Court of Appeals, Eastern District - ED111281

Knowledge inferred for tampering
Joinder was not an abuse of discretion for offenses for which the evidence was “uncomplicated and distinct, and the jury is properly instructed to return separate verdicts for each offense charged [.]” Proper joinder negated a claim for severance, unless the defendant wanted to testify as less than all charges, in which case defendant’s motion must set forth the likely prejudice. On a claim of juror misconduct, credibility determinations are for the circuit court and juror testimony, if found credible, supported denial of a mistrial. In a challenge to the sufficiency of the evidence, circumstantial evidence was equivalent to direct evidence. The elements of tampering in the first degree included possession of something with knowledge that the owner’s permission was lacking, which the jury could infer from “the exclusive and the unexplained [or explained but disbelieved] possession of a recently stolen vehicle [,]” alterations to that vehicle, and a variety of behaviors evidencing guilt. The Court of Appeals remanded the judgment for correction nunc pro tunc to show a conviction for tampering in the first degree instead of unlawful possession of a firearm.
STATE OF MISSOURI, Plaintiff-Respondent vs. ROBERT C. ROST, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37732

Juvenile

Counsel made the argument allegedly omitted
In a juvenile action, a circuit court dismissed the action and transferred appellant juvenile to a court of general authority. Appellant did not show that counsel was inadequate for failure to argue laches when counsel made that argument without using the word “laches.” Also, appellant did not show that any prejudice resulted because the factors for certification favored the ruling. That ruling was subject to appeal on a claim of ineffective counsel because the record was sufficient. Despite deficiencies in appellant’s brief, the Court of Appeals could discern the merits of appellant’s argument and so determined to rule on the merits. Under either possible standard, meaningful hearing or substandard performance resulting in prejudice, the Court of Appeals affirmed the ruling.
(Overview Summary)
In the Interest of: B.A.V. vs. Juvenile Officer
Missouri Court of Appeals, Western District - WD86093

Evidence on brain development was not relevant
In a juvenile action, a circuit court dismissed the action and transferred appellant to a court of general authority. Appellant juvenile did not show that counsel was inadequate for failure to offer expert evidence on adolescent brain development because such evidence was irrelevant to the most important factors for certification that favored the ruling. That ruling was subject to appeal on a claim of ineffective counsel because the record was sufficient. Despite deficiencies in appellant’s brief, the Court of Appeals could discern the merits of appellant’s argument and so determined to rule on the merits. Under either possible standard, meaningful hearing or substandard performance resulting in prejudice, the Court of Appeals affirmed the ruling.
(Overview Summary)
In the Interest of A.M.S. vs. Juvenile Officer
Missouri Court of Appeals, Western District - WD86022

Additional evidence on services would not have helped
In a juvenile action, a circuit court dismissed the action and transferred appellant juvenile to a court of general authority. Appellant did not show that counsel was inadequate for failure to offer more evidence on services available to appellant. Appellant did not show that counsel was inadequate for failure to offer expert evidence on adolescent brain development because such evidence was irrelevant to the most important factors for certification that favored the ruling. That ruling was subject to appeal on a claim of ineffective counsel because the record was sufficient. Despite deficiencies in appellant’s brief, the Court of Appeals could discern the merits of appellant’s argument and so determined to rule on the merits. Under either possible standard, meaningful hearing or substandard performance resulting in prejudice, the Court of Appeals affirmed the ruling.
(Overview Summary)
In the Interest of: T.L.L. vs. Juvenile Office
Missouri Court of Appeals, Western District - WD86004
 

Post-Conviction

No viable defense in expert pharmacological expert testimony
On a claim of ineffective assistance of trial counsel, the elements include prejudice, meaning that acquittal was likely without counsel’s substandard performance. Trial counsel offered no expert on DNA to support a “secondary transfer” opinion on how movant’s DNA reached victim’s underwear. Movant showed no resulting prejudice because the circuit court found against the fact testimony supporting that theory. Trial counsel offered no pharmacological expert testimony on the effect of victim’s medication. Movant did not show resulting prejudice because such testimony included “no evidence that would tend to indicate that Victim’s memory or perception of reality was ever impacted by her taking” the medication, and would have shown only that the medication caused hallucinations in “0.1-1% of patients [.]” Even with such expert presentations, acquittal was not likely, especially given the overwhelming evidence of guilt.
(Overview Summary)
Jeffrey J. Deleon, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED111372

No exception to timely filing requirement shown
The elements of a claim for post-conviction relief included “pleading and proving by a preponderance of the evidence that the [original] motion was timely filed.” Because the original motion was informal, and did not require legal assistance to draft it, lack of counsel was not an exception to the timely filing requirement. Exceptions to the timely filing requirement included third-party interference, which could include COVID-19 restrictions, but movant did not show that exception. Movant’s late filing waived all relief, so no remand is required for findings of fact and conclusions of law on the merits.
CLAYTON D. COUNTS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37822

Workers’ Compensation

Commission credibility determinations controlled
Claimant had the burden of proof to not only produce evidence that, if believed, met the elements of the claim, but also to persuade the fact-finder. The fact-finder was the Labor and Industrial Relations Commission, and appellate courts were bound by the Commission’s credibility determinations. The Commission found most credible the evidence showing that claimant was permanently and totally disabled from two primary injuries, without pre-existing injuries, rendering those pre-existing injuries moot and the Second Injury Fund liable for no part of the award.
DAVID CASEY, Claimant-Appellant v. MISSOURI STATE TREASURER as CUSTODIAN of the SECOND INJURY FUND, Additional Party-Respondent
Missouri Court of Appeals, Southern District - SD38016