07:57 AM

Case summaries for June 30 - July 6, 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.

Appellate | Criminal | Evidence | Tax


Briefing deficiencies bar review of appeal’s merits  
When an appellant fails to comply with briefing rules, to a degree that the appellate court must speculate on appellant’s theory, the appellate court cannot reach the merits of the appeal. Appellant’s failure to comply with rules that govern the statement of facts, points relied on, and argument make a ruling on the appeal unfair to respondent and divert judicial resources from other parties before the appellate court. The ruling appealed is the dismissal of a claim before the Labor and Industrial Relations Commission, but appellant addresses the merits of that claim, which the Commission never decided. Appeal dismissed.  
Shannon Maxwell vs. Division of Employment Security 
(Overview Summary)
Missouri Court of Appeals, Western District - WD85874

Evidence contrary to judgment is no help  
In a bench trial, no after trial motion is necessary to preserve an issue for appeal, if raised to the circuit court in some fashion. “The omission of the required preservation statement [in appellant’s brief]” is an immediate and obvious red flag to the court indicating that the appellant cannot demonstrate that the claimed error was properly preserved for appellate review and, therefore, should be considered by the court as a tacit concession that it was not preserved for appellate review.” Circuit court made “extensive findings of fact” in support of its ruling, and appellate rules provide that any issues not specifically resolved by a written finding of fact are implicitly made in favor of the prevailing party. In an appeal based on the theory that no substantial evidence supports the challenged ruling, or that the ruling is against the weight of the evidence, evidence contrary to that ruling is irrelevant. Appellant’s evidence, supporting their claim to ownership of farm equipment, does not factor into their appeal.  
Angela Lewis vs. Dennis Lewis and Deborah Lewis  
(Overview Summary)
Missouri Court of Appeals, Western District - WD85395


Dismissal upheld   
The State filed an indictment, and the defense filed a motion to dismiss, on which the circuit court heard evidence outside the pleadings from both parties. Because the State consented to such evidence, any error in reviewing that evidence constituted invited error, so no plain error review is available. On the evidence, no clear error is facially apparent, so no plain error occurred in dismissing the indictment.    
State of Missouri, Appellant, vs. Ashley Colville, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110771

Deliberation found   
“Sufficiency[-of-the-evidence] claims are considered on appeal even if not briefed or not properly briefed in the appellate courts.” The elements of murder in the first degree include deliberation, which means reflection, rather than reflexive action, and is shown by an opportunity to cease an attack. Circumstantial evidence is sufficient. “The term ‘circumstantial’ can connote a lack of credibility in common parlance, but all it means here is that the State may supply indirect and inferential evidence to prove a criminal defendant’s mental state because the intangible nature of thoughts makes direct proof rare if not nonexistent.” Such evidence included a history of acrimony between appellant and victim, preparations for the killing, preparations for an escape, multiple wounds to the victim, switching weapons to continue the attack, flight from the scene, and disposal of evidence. Voluntary intoxication is not a defense. A challenge to witness credibility asserts evidence contrary to the verdict, which an appellate court ignores. Inconsistent statements are for the jury to evaluate.    
STATE OF MISSOURI, Plaintiff-Respondent vs. SETH ANDREW GOMEZ, Defendant-Appellant   
Missouri Court of Appeals, Southern District - SD37330


May testify to ultimate issue   
The elements required to engage an appellate court’s discretionary plain error review include clear error on the face of the record. No such error occurred when an expert witness testified that child victim’s post-traumatic stress disorder was the result of sexual assault. “[A]n expert is permitted to testify as to [an] opinion on an ultimate issue in a criminal case as long [as] the opinion does not state that the defendant is guilty of the crime.” Appellant did not meet the threshold for plain error review, so the Court of Appeals affirms the judgment.    
STATE OF MISSOURI, Respondent vs. CURTIS JEROME WEBB, JR., Appellant   
Missouri Court of Appeals, Southern District - SD37484


State Tax Commission calculations upheld   
Constitutional provisions bar intentional undervaluation, and any plan of intentional discrimination in the valuation, of real properties. Whether intentional undervaluation, or a plan of intentional discrimination, occurred depends on actual values used, including revised valuations found by the Board of Equalization, and any resulting adjustments. Taxpayers did not show any abuse of discretion in the State Tax Commission’s hearing officer’s denial of late discovery and other discovery rulings. The Commission’s findings had support in the record as to using a median appraisal level instead of a weighted mean of central tendency, whether increases in sales prices significantly distorted the valuation of unsold properties, whether the occurrence of regressivity was within tolerance, and whether the common and taxpayer levels of assessment were unduly disparate.    
Crown-Diversified Industries, Corp., et al., Respondent, vs. Jake Zimmerman, Assessor, St. Louis County, Missouri, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110120