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Case summaries for May 27 - June 2, 2022


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.

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


Analysis Discussed for a Weight-of-the-Evidence Challenge 
Appellant challenged the circuit court’s denial of appellant’s affirmative defense as against the weight of the evidence. To prevail, appellant must identify the ruling challenged, gather all the evidence supporting that ruling, gather all evidence favoring appellant with resolution of conflicting evidence in favor of the identified ruling, and show why the evidence favoring the identified ruling is insufficiently persuasive. Appellant’s brief accomplishes none of those tasks. Evidence contrary to the judgment does not prevail over the judgment’s express determinations of credibility. 
Josiah Wright vs. Phillip Nash and Key Insurance Company 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84602


Automatic Change of Judge Applied in Election Contest 
In an election contest, circuit court and parties proceeded expeditiously, but one party filed a motion for automatic change of judge. Rule provides that, on the timely filing of such a motion, circuit judge loses all authority except to rule on motions already under submission before granting the change of judge. But the circuit judge denied the motion for automatic change of judge and ruled on the merits, so the Court of Appeals vacates the judgment and remands to grant the motion for automatic change of judge. “We are mindful that this a time-sensitive election contest [but reject the] argument that . . . there would have been a meaningful delay . . . had the circuit court sustained, rather than overruled, the motion for change of judge [.]” 
Michelle M. Worth, Respondent, v. Shannon R. Roden, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110616


Inevitable Discovery Doctrine Applied 
Warrantless searches are per se unreasonable unless the State shows, by a preponderance of the evidence, the application of an exception. Exceptions include the inevitable discovery doctrine, under which evidence from an unlawful search is admissible if it would have been discovered anyway. Therefore, even if a search at the site of the arrest was done in violation of police department policy, the resulting evidence was nonetheless admissible because an inventory search at the jail in compliance with police department policy would have inevitably discovered that evidence. Remanded to correct the circuit court’s records, from a guilty plea to a finding of guilt after a bench trial, nunc pro tunc. 
STATE OF MISSOURI, Plaintiff-Respondent v. BRANDON PATRICK TEEL, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD37178


Pension Board Must Correct Miscalculation 
Statutes governing the retirement benefits of Highway Patrol troopers require the governing body to correct any calculation error discovered within ten years of a trooper’s retirement, and to recover any overpayments by adjusting future payments if practicable. The “mandatory duty to correct calculation errors is not subject to principles of equity.” The governing body’s procedure to correct miscalculations was a non-contested case for which the statutes provide de novo review in circuit court. The circuit court’s judgment was erroneous, so the Court of Appeals enters the judgment that the circuit court should have. 
Judy A. Tinnin vs. MODOT & Patrol Employees' Retirement System 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84636


Failure to Rectify Found 
Termination of parental rights for failure to rectify requires proof by clear, cogent, and convincing evidence, and consideration of statutory factors that require only substantial evidence for affirmance. Parents’ repeated failures at providing safe and sanitary conditions for children supported the ground of failure to rectify, and the factors of parents’ mental conditions and non-compliance with service plans despite government agency support. Evidence contrary to a ruling does not demonstrate that the ruling was against the weight of the evidence. Statutory considerations supported a conclusion that termination was in the children’s best interest. 
In The Interest of: A.M.W., S.W., R.W., F.W., A.C.W., and G.W.; Juvenile Officer; and Department of Social Services, Children's Division vs. A.W.; and P.G. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84846 and WD84850

Conviction for Interference with Custody Affirmed 
An indictment gives the defendant notice of offenses charged sufficient for a defense, and the State need not prove any surplusage in the indictment, only the elements set forth by statute. Notice of an offense constitutes notice of all lesser included offenses, and an appellate court may enter judgment on a lesser included offense when evidence to sustain the greater offense is insufficient. An objection at a pre-trial hearing on a motion to admit hearsay did not result in an ongoing objection through trial. The State did not show that the failure to object to hearsay at trial was a strategic decision that waives plain error review. Out-of-court statements related to past events for a future prosecution constitute testimonial hearsay that is subject to the Confrontation Clause. But the Confrontation Clause does not protect a defendant who procures a witness’s absence, which circumstantial evidence may show, and the absent witness’s testimonial hearsay is admissible under the rule of forfeiture by wrongdoing. A charge of enticing a child requires proof that a separation from lawful custody occurred, not just an attempt at such separation. The elements of interference with custody include knowledge of lawful custody, which is subject to proof by circumstantial evidence. The State need not prove that defendant knew of a later court order that retained custody as set forth in an earlier court order. Statutes enhance that offense when a parent keeps a child in another State, and the date of leaving Missouri is not an element of the enhanced offense. A challenge to the sufficiency of the evidence to sustain a conviction is reviewed on the merits, and not for plain error, even without a motion for new trial. 
State of Missouri, Respondent, vs. Ogerta Helena Hartwein, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109444 

A Single Factor Supports a Basis for Termination of Parental Rights 
In an action to terminate parental rights, statutes provide the parent with the right to counsel. The record shows that appellant did not have ineffective counsel over several days of hearings with the presentation of evidence on appellant’s behalf, including multiple witnesses, and arguments. That the hearing was remotely conducted does not alter that result. The statutes provide bases for termination, and the bases for termination include factors relevant to determining whether a basis exists. Finding that a single factor exists supports a finding that a basis exists, and finding that a single basis exists supports termination of parental rights, so an appellant must negate all factors to negate all bases. Appellant’s failure to address all factors found by the circuit court, therefore, challenges fewer than all bases. A challenge to the circuit court’s findings on chemical dependency cannot support reversal because “the finding was that [appellant’s] substance use does not prevent [appellant] from being able to care for [appellant’s c]hild.” A point that cites no authority preserves nothing for review. 
Missouri Court of Appeals, Southern District – SD37317


Pre-Amendment Indictment Subject to Pre-Amendment Statute 
The statute that was in effect when the events occurred, as alleged in a charging instrument, applies. When the offenses occurred as alleged, the statute then in effect vested the circuit court with authority over respondent and provided the juvenile division with no authority over respondent. But the circuit court applied an amendment, effective only after the offenses occurred as alleged, and dismissed the charges. Dismissal reversed and cause remanded to the circuit court. 
State of Missouri vs. Antwon Todd 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84465 


Extra Character Witnesses Would Not Have Helped 
The elements of a claim for relief based on ineffective assistance of counsel include prejudice. No prejudice resulted from trial counsel’s decision to call only certain character witnesses for sentencing and not others, because those others’ testimony would have been cumulative, and character did not determine the sentence. “Indeed, when the sentencing court and the motion court are one and the same, the conclusion that ‘character witnesses would not have ameliorated the sentence [is] virtually unchallengeable under the clearly erroneous standard.’” 
Jonathon R. Varvil, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109838

Workers’ Compensation

No Interest in Medical Fee Dispute 
Workers’ compensation statutes are subject to strict construction, so courts limit authority to that expressly stated in the statutes. Statutes provide for the collection of medical fees, but do not mention pre-decision interest, so no such authority exists. “Appellants’ points relied on egregiously violate” the “straightforward and simple” rule governing appellant’s initial brief. Appellant’s reply brief violates the rule against re-arguing matters in the initial brief. 
Surgery Center Partners, LLC d/b/a Timberlake Surgery, Respondent, vs. Mondelez International, Inc., and Indemnity Insurance Company of North America, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109776