Case summaries for June 23 - June 29, 2023

Appellate | Business | Civil | Constitutional | Criminal | DWI | Employment Security | Evidence | Family | Orders of Protection | Personal Injury | Post-Conviction | Real Estate

Appellate

Briefing deficiencies require dismissal 
Compliance with briefing rules protects appellate court neutrality while non-compliance threatens appellate court neutrality. Appellant’s failure to comply with rules that govern points relied on and statements of fact make it impossible to discern appellant’s argument without constructing it for him. Also, appellant seeks relief in the alternative that he did not seek in circuit court, which an appellate court will not grant. Appeal dismissed.  
In the Matter of the Foreclosure of Liens for Delinquent Land Taxes by Action in Rem, City of St. Louis, Mo., Respondents, vs. Parcels of Land Encumbered with Delinquent Tax Liens, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111094

Business

Transfer alleged under Fraudulent Transfers Act  
A judgment of dismissal, though labeled as without prejudice, was subject to appeal because appellant could not remedy the grounds for dismissal without changing the petition’s allegations. And “[t]he statute [that] relates to venue, not jurisdiction, ... has no relevance to [the Missouri Supreme] Court’s jurisdiction over [the] appeal.” The Missouri Fraudulent Transfers Act defines a transfer in fraud of creditors to include certain conduct by which a debtor parts with an interest in assets, and the debtor’s assets do not include property held by the entirety. Appellant pleaded that respondent deposited funds into a bank account held by the entirety. Those allegations stated a claim under the Act because, if true, the debtor parted with an interest in—sole access to—the funds. Fact pleading required an allegation of the ultimate fact of, not evidentiary facts demonstrating, the intent to defraud. The governing rule specifically provides that “intent ... and any other condition of mind of a person may be averred generally.” Circuit court’s judgment, dismissing the petition, reversed.  
Jenette Konopasek, Appellant, vs. Douglas and Laura Konopasek, Respondents. 
(Overview Summary) 
Supreme Court of Missouri - SC99816

Civil

Interlocutory judgment made final  
Rule setting the time for which circuit court retains authority of a matter applies only to final judgments. Circuit court issued a document denominated as a judgment, but that judgment disposed of less than all issues as to all parties, so the judgment was merely interlocutory. No time limit barred the circuit court from issuing an amended judgment to make it final. The amended judgment did not purport to be, and could not have been, an order nunc pro tunc. An order nunc pro tunc merely corrects clerical errors.  
IN RE THE MARRIAGE OF: ALEXANDER SCHIELE, Petitioner-Appellant v. CORINNE DURNAL, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37725

Petition for declaratory judgment stated a claim  
A petition states a claim if the petition’s allegations describe facts supporting relief on any theory. The petition does not need to announce the theory, the petitioner does not need to respond to a motion to dismiss, and the merits of the petition are not at issue when determining whether the petition states a claim. A petition may seek damages, injunction, and declaratory relief. Declaratory relief requires allegations of a legally protectable interest, and a justiciable and ripe controversy, for which no remedy at law is adequate. The petition met those requirements when it alleged that City was supplying water within Water District’s territory. Statutes on municipal annexation do not apply. Judgment of dismissal reversed, and petition remanded to circuit court.  
PUBLIC WATER SUPPLY DISTRICT NO. 1 of GREENE COUNTY MISSOURI, Appellant vs. CITY OF SPRINGFIELD, MISSOURI, A MUNICIPAL CORPORATION, Respondent 
Missouri Court of Appeals, Southern District - SD37695

Default judgment  
Defendants filed several motions to set aside a default judgment. Defendants did not raise personal jurisdiction in their first such motion, thus waiving that matter, and a supplement to that motion filed the next day did not cure that lapse. In another motion, respondents raised plaintiff’s standing, but not before entry of the default judgment, and so waived that matter. Also, the allegations as to standing did not describe plaintiff’s standing, they described the absence of a necessary party, for which the remedy is joinder. Defendants did not show that the necessary party was indispensable, so the circuit court did not err in denying the motions to set aside.  
Tabatha Moore, Respondent, v. Dennis Crocker and One Stop Muffler, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111163

Constitutional

Constitutional challenge waived 
Missouri Constitution protects the right to a jury trial, but statute bars an uninsured motorist from collecting damages for pain and suffering, so appellant raised a constitutional challenge to that statute in circuit court. But appellant also waived jury trial, and so failed to preserve that challenge.    
Susan F. Bridegan, Appellant, vs. Gary L. Turntine, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99700

Criminal

No reasonable expectation of privacy in abandoned property 
“[I]t is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object.” When defendant abandoned a backpack, defendant also abandoned any Fourth Amendment protections from a search of the backpack, including the contents of closed compartments. Double jeopardy does not bar the circuit court from trying defendant twice for the same offense on defendant’s motion for a new trial based on evidentiary error. On defendant’s motion to suppress evidence, defendant made no objection to the State’s reliance on evidence admitted earlier, and so waived any error.  
State of Missouri vs. Timothy R. Fernandez 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85536

Arraignment is not a critical stage 
Sixth Amendment provides the right to criminal defense counsel, at all critical stages of a criminal action, and a rule requires circuit court to advise defendant of the right to appointed counsel. But the rule does not require the circuit court to appoint counsel, and an arraignment is not a critical stage, unless defendant can show prejudice from counsel’s absence. Rule requires a transcript of an arraignment only if defendant appears without counsel and waives appointment of counsel, which defendant did not show. Defendant showed no prejudice from a delayed hearing on bond. Defendant did not show that a mental examination was necessary to determine culpability or ability to participate in defense. Defendant cannot broaden an objection made in circuit court in the Court of Appeals.  
State of Missouri vs. Robert A. Woolery 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85530

Waiver of counsel no good 
Waiver of counsel requires a Faretta hearing and signature on a form prescribed by statute. As to the latter, unpreserved errors are subject to plain error review. As to the former, no objection is necessary to preserve error in a pro se waiver for de novo review. The Faretta hearing determines whether waiver of counsel is knowing, voluntary, and intelligent through “a penetrating and comprehensive examination of all the circumstances.” Discussions during arraignment are no substitute for the Faretta hearing requirements. Missing from the circuit court’s colloquy with appellant were the nature of the charges, the range of punishment, and the possible defenses. On the communication of those matters, if satisfied, the circuit court must include the signed form in the record and “the failure to use the written form as mandated is reversible error.”  
State of Missouri vs. Tyesha Lynette Peck 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85256

Propensity evidence and multiple acts instructions okay 
The Missouri Constitution bars prosecution for any offense other than those charged but allows evidence of uncharged conduct as propensity evidence, if the evidence’s probative evidence outweighs the danger of unfair prejudice, as the weighing of several factors shows. In a criminal action, constitutional provisions protect the right to a unanimous jury verdict on any one alleged act. A jury verdict is not unanimous if jurors all find that the defendant is guilty of some act but not the same act. Where multiple acts are distinguishable by their respective facts, like distinct conduct or time, instructions distinguishing a specific instance to the exclusion of all others charged protected the defendant’s right to a unanimous verdict. Even when the defense states “no objection” to jury instructions, appellate courts will review for plain error. “Unless and until the [Missouri] Supreme Court re-evaluates the availability of plain error review of jury instructions in a criminal case, particularly where the defendant has affirmatively expressed no objection to the instructions at trial or has tendered a similarly defective instruction, we are without authority to conclude that plain error review has been waived.”  
State of Missouri vs. Rocky L. Coyle 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85186

Initial aggressor language okay 
Evidence that defendant fled a crime scene is admissible to show consciousness of guilt and negates defenses of mistaken identity and self-defense. A positive identification of the driver leading a high-speed police pursuit, in a car identical to the one in which appellant fled the crime scene, was unnecessary for probative value to outweigh prejudice and went to the weight of that evidence. The State offered evidence from which a reasonable juror could find beyond a reasonable doubt that defendant was the initial aggressor. That evidence supported an instruction stating that an initial aggressor has no right to self-defense against the counter-attack that the initial aggressor provoked. 
State of Missouri, Respondent, vs. Christopher C. Pool, Jr., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110620

No sanction on late cumulative evidence 
Rule requires State disclosure of evidence and allows sanctions for failure to comply, but circuit court did not abuse its discretion in denying a motion for sanctions based on the disclosure of cumulative evidence—a Ring doorbell camera video—four days before trial. Defendant waived any objection to a juror by waiting until the close of evidence to seek an alternate, and the Court of Appeals declines to review for plain error.  
State of Missouri, Respondent, v. Oscar Garner, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110405

Location of arrest irrelevant when arrest is reasonable 
“[I]n the absence of statute, municipal police officers have no official power to apprehend offenders beyond the boundaries of their municipality.” Statutes did not extend city of Poplar Bluff police officers’ authority to the city of Campbell. But that is irrelevant to Fourth Amendment considerations on a motion to suppress when an arrest is not unreasonable. “For felony offenses, warrantless arrests based on probable cause are constitutionally reasonable.” Whether probable cause supported the defendant’s arrest was not the subject of defendant’s motion to suppress. Order granting motion to suppress vacated.  
State of Missouri, Appellant, vs. Nicholas A. Barton, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99886

Conservatorship-exploitation appeal untimely 
In a criminal action, the circuit court’s pronouncement and imposition of sentence in defendant’s presence and in open court constitutes the final judgment, which starts the 10-day time to file a notice of appeal. An amended judgment entered later was unauthorized, so it was a nullity. The notice of appeal was late. The Missouri Supreme Court dismisses the appeal and remands the action to circuit court, with orders to vacate the amended judgment and enter a written version of the judgment as spoken.   
State of Missouri, Respondent, vs. Lindsay Michelle Forbes, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99658

DWI

Twenty Minute Lawyer Call Abandoned 
A driver’s conditional refusal of a breath test is a refusal except when the condition is contacting a lawyer, which the driver may attempt for 20 minutes, as allowed by statute. The statute “is satisfied if ‘the [20-]minute statutory period expires or the driver abandons the attempt.’” Abandoning the attempt includes when the driver quits trying to talk to a lawyer, even before the 20 minutes has run. Appellant talked with appellant’s lawyer, was read the implied consent information, and refused the test. Those facts support a conclusion that driver abandoned consultation with counsel, satisfying the 20-minute provision. Even if appellant showed a violation of the 20-minute provision, reversal would require a showing of prejudice, which does not occur when a driver refuses the breath test after consulting with counsel. 
JAMES WILLIAM GAMBLIN, Petitioner-Appellant v. DIRECTOR OF REVENUE, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37960

Employment Security

No review of claim’s merits 
On judicial review of a decision from the Labor and Industrial Relations Commission, an appellate court can only address the issues that the Commission addressed. So, when the Commission addressed only the late filing of claimant’s administrative appeal with the Commission, that is the only issue that an appellate court can address. When the Commission did not reach the merits of the claim, an appellate court cannot reach the merits of the claim. Dismissed.  
Maria-Fernanda Fast vs. Division of Employment Security 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85872

Evidence

Propensity evidence discussed 
In cases of sexual offenses against a minor, the Missouri Constitution allows evidence of uncharged conduct as propensity evidence on conditions including probative value outweighing unfair prejudice. Probative value had support in a judicial finding by clear, cogent, and convincing evidence; in the strong similarity between the uncharged conduct and charged offenses; and in the only other evidence being the victims’ testimony. Prejudice consists in the danger that a jury will want to convict defendant of uncharged conduct, against which jury instructions countervailed; and how the State presents the evidence, which a dispassionate presentation of records downplayed. Defense questioning on why parties believed the victims opened the door to evidence that defendant attempted suicide, which is relevant to consciousness of guilt.  
State of Missouri, Respondent, vs. Christopher D. Robertson, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110552

Rule of completeness inapplicable to video fragments 
The defense objected to the admission of a security camera recording under the rule of completeness. “The rule of completeness provides that when either party introduces part of an act, occurrence, transaction, or statement, the opposing party may introduce or inquire into other portions of the whole to rebut adverse inferences that ‘might arise from the fragmentary or incomplete character of the evidence introduced by his adversary.’” Because the device only recorded in 30-second bursts, there was no complete video, and the rule of completeness did not apply. A motion for acquittal made before the circuit court instructs the jury depends on whether the evidence meets the elements of the offense charged, not on the content of a verdict director. The State alleged that defendant shot at one victim, but the verdict director omitted the word “at.” That omission did not constitute a material variance and did not mislead the defense. As to another victim, the State’s evidence established the elements of first-degree murder, and an extra instruction on defendant’s age required no supporting evidence because it is relevant to sentencing, not guilt. 
State of Missouri, Respondent, vs. Troy Jackson-Bey, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110308 

Excited utterance admissible 
Hearsay is inadmissible, with specified exceptions, including an excited utterance. An excited utterance is a statement made in spontaneous reaction to a startling event and is deemed reliable because it occurs without reflection. Circuit court did not err in overruling defendant’s objection to evidence relating a statement from defendant’s son inculpating defendant. Circumstantial evidence supports a conviction if, though not in each particular but in its totality, it connects the defendant to each element of the crime. 
STATE OF MISSOURI, Respondent v. STEVEN RAY ENDSLEY, Appellant
Missouri Court of Appeals, Southern District - SD37572 

Family

Other parent’s rights not terminated 
Statutes allow termination of parental rights on a finding that a listed basis for termination exists, which the circuit court made, and a finding that termination of parental rights is in the child’s best interests. The children’s best interests are subject to a statutory list of non-exclusive factors, which the circuit court also found. Whether the children’s other parent’s parental rights are terminated is a factor, but not a determinative factor, in determining whether to terminate the parental rights of appellant. Appellant showed no abuse of discretion in the termination of appellant’s parental rights.  
IN THE INTEREST OF: S.M.L.E. and W.W.L.E., minor children under seventeen years of age GREENE COUNTY JUVENILE OFFICE, Plaintiff-Respondent v. S.W.E., Natural Father, Respondent-Appellant 
Missouri Court of Appeals, Southern District - SD37900 and SD37901

Orders of Protection

Deficient briefing results in dismissal of appeal 
Rules of appellate procedure refine relevant facts and applicable law to inform the other parties and the courts of appellant’s theory and prevent “speculating about the nature of his claims and assuming the role of his advocate, which [an appellate court] cannot do.” The Court of Appeals cannot discern appellant’s theory because appellant’s brief fails to comply with rules governing the statement of facts, points relied on, and argument. Dismissed.  
R.M. vs. Tre L. King 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85539

Multiple theories support full order 
Statutes provide that a full order of protection may issue on multiple theories, all of which the record supports: domestic violence by stalking and abuse, in the form of assault and harassment, the latter of which included threatening respondent’s pets.    
L.A.C., Respondent, vs. R.A.P., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110930

Personal Injury

Admission of liability does not bar evidence of liability 
Even defendant’s complete judicial admission of liability does not bind plaintiff, and plaintiff may elect either to offer evidence of liability, or to proceed on liability alone. And to proceed on liability alone was not an option for plaintiff, because defendant’s judicial admission of liability was not complete, because a judicial admission of negligence on one allegation does not constitute a judicial admission of negligence on any other allegation. Even if admitting evidence of liability was error, defendant showed no prejudice from such error, especially in a bench-tried case.    
Marlayna Kenney vs. Kailey K. Myers 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85014 and WD85111

Post-Conviction

Mitigation case sufficient 
On a claim for ineffective assistance of trial counsel, movant did not show that further evidence of mitigation would have made any difference in sentencing, because such evidence was largely cumulative and consisted of further details of evidence already presented.  
Thu Hong Nguyen vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85341

Impeachment sufficient 
Impeachment is a matter of trial strategy, some prior inconsistent statements are insignificant, and “trial counsel effectively presented his impeachment evidence [that was] consistent with his articulated trial strategy.” Statute enhanced movant’s sentence on a finding that movant was a sexual predator, based on a guilty plea entered before the conviction, so neither trial counsel nor appellate counsel were ineffective for deciding not to challenge that finding. Movant did not show that trial counsel was ineffective for failure to seek an amendment to one count, based on the prosecution’s stated uncertainty as to whether the evidence satisfied the elements of that charge, because the prosecution was mistaken: the evidence was sufficient.  
Andrew Shores vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85314

Prejudice not shown 
“The question in an ineffective assistance claim is not whether counsel could have or even, perhaps, should have made a different decision, but rather whether the decision made was reasonable under all the circumstances [and whether], counsel’s unprofessional errors ... undermine confidence in the outcome.” Trial counsel’s choices of when to object and when not to object to expert testimony were soundly strategic. To forego impeachment related to uncharged conduct, especially with evidence that was cumulative or not probative, was a soundly strategic choice to avoid distracting the jury. Movant did not show that an objection at trial to, or a point on appeal challenging, multiple acts verdict directors would have likely changed the outcome.  
Joseph T. Sousley vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85175

Credibility determines ruling 
Movant alleged that plea counsel was ineffective, for inducing movant to enter an unknowing and involuntary plea of guilty, by promising that time served would reduce movant’s sentence.  The circuit court found movant’s supporting testimony not credible and found credible plea counsel’s contrary testimony and other evidence. Those determinations are controlling and undisturbed on appeal.  
Tamell Campbell, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110661

Real Estate

Ejectment and adverse possession rulings affirmed 
The elements of appellants’ claim for adverse possession include hostile possession, meaning “defiance of, rather than in subordination to, the rights of others.” Challenging the circuit court’s finding for respondent on that issue, as against the weight of the evidence, appellants failed to address the evidence supporting the circuit court’s finding, resolve conflicts in favor of that finding, and show that the finding lacks support in that evidence. The circuit court’s finding on hostile possession did not negate any element of respondents’ claim for ejectment. Affirmed.  
Charles E. Copper Jr. and Anita J. Copper vs. Minter D. Ringen and Diane E. Ringen, As Co-Trustees of the Minter D. Ringen and Diane E. Ringen Family Trust, U/A Dated March 25, 2021 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85620 

Attorney fees awarded in action over express appurtenant easement  
Despite appellant’s briefing deficiencies, the Court of Appeals can understand some of appellant’s arguments, and appellant’s history of misconduct supports a full explanation of the law supporting the circuit court’s judgment for respondents. An easement is a property right enforceable at law or in equity. Appellant’s admissions, that respondents have an easement that benefits their dominant estate and burdens appellant’s servient estate, “are conclusive against Appellant [.]” Evidence at trial also showed that respondents own an express easement appurtenant to their property and show the easement’s location. An appurtenant easement, once recorded, runs with the estates and survived further conveyances.  Statutes on establishing private roads and widening roads are inapplicable, and no balance of interests is relevant. Appellant’s intentional misconduct constitutes a special circumstance that supports an award of attorney fees, including on appeal, the amount of which the circuit court shall determine on remand for that purpose.  
Orin Wallace, and Donna Wallace, Respondents, v. Michael P. Byrne, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110783