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Case summaries for May 7 - May 13, 2021


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.

Criminal | Family | Juvenile | Probate | Utilities | Workers' Compensation


Inquiry Necessary for Child Victim’s Extrajudicial Statements
Statute governing admission of child declarant’s out-of-court statements requires a finding of reliability under a totality of the circumstances, but the circuit admitted such statements on evidence only that testimony accurately related the declarant’s statements, without considering “time, content[,] and circumstances.” Those statements constituted the only evidence of defendant’s guilt, which shows that admitting the statements into evidence prejudiced the defendant. Remanded for a supplemental hearing to determine whether the statements are reliable or whether a new trial is necessary. Defense expert’s offer of proof did not show scientific support for expert’s critique of interviews with declarant, and strayed into an opinion of declarant’s credibility, so that testimony is not admissible on remand.
State of Missouri vs. Thomas Eugene Antle
(Overview Summary)
Missouri Court of Appeals, Western District - WD83333

Different Theories Preserve No Error
During voir dire, prosecution asked venire persons about their recall of major life events, and defense objected that such questioning did not measure the fairness and impartiality of prospective jurors. On appeal, appellant argues that the challenged questioning sought a commitment from prospective jurors, which is not the same objection as raised in circuit court, and preserves no error from voir dire.  No plain error occurred because the questioning went to prospective jurors’ ability to judge credibility. Acquittal on greater charge, and conviction on lesser included offense, show the absence of manifest injustice and absence of miscarriage of justice.
State of Missouri vs. Justin A. Fields
(Overview Summary)
Missouri Court of Appeals, Western District - WD81843

Tampering Conviction Affirmed
When appellant challenges a criminal conviction for insufficient evidence, an appellate court looks for evidence on which a reasonable fact-finder could find appellant guilty beyond a reasonable doubt, and does not weigh the evidence. Appellant asserted that he had permission to use victims’ vehicle from victims’ daughter, while victims testified that victims barred appellant and daughter from using the vehicle. That record supported a finding that appellant knowingly operated the vehicle without victims’ consent, which supported a conviction for first degree tampering.
State of Missouri, Respondent, v. Nathaniel James Frakes, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108925

No Prejudice from Evidence of Uncharged Crime
Propensity evidence, in the form of an uncharged crime, is not generally admissible. When charged with an assault on victim, evidence of defendant’s unrelated altercation with someone else earlier that night did not give a complete picture of the assault on victim, so circuit court erred in admitting it. But other evidence, including defendant’s DNA at the crime scene, was sufficient for a conviction, so the error was not “so prejudicial that it deprived [appellant] of a fair trial.”
State of Missouri, Respondent, v. Kavion Thomas, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108921

Retrial Case Transferred
On a charge of unlawful possession of a firearm, defense counsel’s opening statement constituted an admission that defendant had felony convictions, which dispensed with the need for evidence on that element. After mistrial, Constitution requires any retrial to occur not later than the next term of court, and defendant preserved that challenge to circuit court’s authority over retrial. Whether that language is mandatory or directory, and whether rule on continuances applies, are questions of first impression and general interest. Transferred to Supreme Court of Missouri.   
State of Missouri, Respondent, v. Gregory Shegog, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108716


Challenges to Acknowledgment of Paternity Are Limited
Statute provides that an Acknowledgment of Paternity constitutes a legal finding of fact subject to challenges not made by any party. Statutes allow modification of child support on a substantial and continuing change in circumstances. Statute providing continuous authority in circuit court over its judgment of support does not apply to administrative orders “absent judicial review” so an administrative order certified and docketed in circuit court, but never subjected to judicial review, did not preclude an action in circuit court.
F.J.M., Individually and as Next Friend for A.E.J.J. vs. F.L.J.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83840


Guardianship Affirmed
In an action for the appointment of a guardian, parents are presumed the best custodians of their children. Rebutting that presumption was evidence that appellant was “unfit, unwilling, or unable” as evidenced by failure to maintain contact with children for five years even when scheduled. Appellant did not show that the weight of the evidence was otherwise. “The against-the-weight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence [.]” Failure to pay the filing fee with the notice of appeal does not rob the Court of Appeals of its authority over the appeal.
In the Interest of: B.K.F, II and D.J.F.; D.Q. and Juvenile Officer vs. M.K.F.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84019, WD84020, WD84042 and WD84043


DNA Rule Prevails Over Privilege
Both Uniform Parentage Act and Probate Code provide methods of proving parentage and “the two statutes were not intended to modify or affect each other [,]” so to prove paternity for intestate succession, probate code governs. Statute describes the foundation needed to admit expert testimony, and circuit court’s evaluation of the evidence supported a finding that respondent met those requirements as to DNA evidence, so the circuit court did not abuse its discretion in admitting the expert testimony. Clear and convincing evidence, including DNA of appellants and respondent, showed that respondent was an heir of decedent. Physician-patient privilege applies only when physician treated patient, which did not occur in the procurement of DNA evidence from respondents. Appellants waived any error in admitting evidence to which they affirmatively stated “no objection.” Any error in admitting cumulative evidence is harmless.
In The Estate of: William Ira Andress, Deceased.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108755


Net Operating Loss Explained for ISRS
Statutes provide that a public utility can bill an infrastructure replacement surcharge (“ISRS”), without a general rate action, but subject to approval from the Public Service Commission. The Commission calculated an ISRS to include a net operating loss carryover per project, which resulted in a hypothetical loss, but federal statutes define net operating loss to include all sources of income and results only in an actual loss. Statutes require a remand with temporary rates for repayment to customers of amounts collected under the Commission’s unlawful order.
In the Matter of the Petition of Missouri-American Water Company for Approval to Change an Infrastructure System Replacement Surcharges; Missouri-American Water Company and Missouri Public Service Commission vs. Office of the Public Counsel
(Overview Summary)
Missouri Court of Appeals, Western District - WD83924

Workers’ Compensation

Preexisting Disabilities Count Toward Permanent Total Disability
Statutes provide that permanent total disability can result from a job-related condition, combined with more prior conditions that are not job-related, so Court of Appeals remands to determine whether claimant’s repetitive motion trauma is such a prior condition.
Michael A. Lexow, Appellant, v. Boeing Co., Employer, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108853