Case summaries for July 25-31, 2025

Civil | Criminal | Employment | Evidence | Family | Personal injury | Post conviction | Real estate

Civil

City succeeded to board of police commissioners’ liability 
The State Legal Expense Fund had to represent, defend, and indemnify employees of the Board of Police Commissioners. The city succeeded the board, expressly assumed the defense of its employees generally, and specifically agreed in open court to pay the liabilities of two employees. Those facts supported a conclusion that the city was liable for a judgment against the two employees by non-contractual indemnity. 
(Overview summary) 
Michael J. Holmes, Appellant, vs. Kenneth Zellers, Andrew Bailey, Mayor Tishaura Jones, Bettye Battle-Turner, Richard Gray, Thomas Irwin, Erwin Switzer, Francis Slay, and City of St. Louis, Respondents. 
Missouri Court of Appeals-Eastern District – ED112676

Criminal

Instruction’s variance from indictment was not prejudicial 
Submitting an instruction that varied from the information was reversible error only if it was material and prejudiced the defense. “[T]here is only one form of murder in the first degree. The mens rea for first-degree murder requires knowingly causing the death of a person after deliberation[,]” and whether the eventual victim was the intended victim was not material, because the statutes provided for transferred intent. Also, the appellant showed no prejudice because evidence was inculpatory, whoever the intended or eventual victim was. The Missouri Court of Appeals remanded the judgment to conform the circuit court’s written judgment to its spoken judgment and as required by statute. 
(Overview summary) 
State of Missouri vs. Michael W. Myers 
Missouri Court of Appeals-Western District – WD86932

Employment

Affirmative defense not pleaded 
Summary judgment was due any party who established beyond genuine dispute the facts on which the law entitled the moving party to a favorable ruling. A defendant could do so by alleging and evidencing facts that described an affirmative defense, but any affirmative defense had to appear in an answer, which never happened. Raising an affirmative defense in the motion for summary judgment was no substitute for pleading an affirmative defense in the answer. When the movant failed to cross that threshold, the non-movant’s response was irrelevant. 
(Overview summary) 
Lucas E. Wilkinson, Appellant, vs. Farmers Holding Companies, D/B/A Capital Sand, Inc., Respondent. 
Missouri Court of Appeals-Eastern District – ED112865

Evidence

Evidence of threatening gesture was not speculative 
Evidence was relevant when it tended to prove or disprove an element of the offense charged. On a charge of first-degree harassment, the state showed consciousness of guilt with evidence that, at the preliminary hearing, the defendant made a gesture that pantomimed shooting of a pistol toward victims. The circuit court did not err in admitting that evidence. And other overwhelming evidence of guilt negated any prejudice. 
(Overview summary)
State of Missouri, Respondent, vs. Narvel S. Harmon, Appellant. 
Missouri Court of Appeals-Eastern District – ED112815

Testimony was generalized and not particularized 
An expert witness could testify as to a witness’s testimony but could testify as to indicia of reliability personally observed as background for an examination. “[A]n expert is permitted to testify as to his or her 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.” The state’s expert testified as to the development of nine-year-olds in general and their inability to fabricate a perpetrator and means of trauma. No plain error occurred when the circuit court did not intervene in that testimony sua sponte. 
(Overview summary) 
State of Missouri vs. Nancy Russell 
Missouri Court of Appeals-Western District – WD86606

Tacit admissions discussed 
A witness testified that a confederate had declared that the confederate and defendant committed an offense together. No Confrontation Clause problem arose because the declaration was outside of any governmental context and the witness testified at trial. The declaration constituted a tacit admission by the defendant so no plain error occurred when the circuit admitted it. Limiting instructions were presumptively effective and defendant failed to show otherwise. And the disputed evidence was cumulative of a “far more compelling direct account.” For those reasons, severing the trials of the defendant and the confederate was unnecessary. The defendant did not show that testimony about the defendant’s type being an underaged child constituted inadmissible propensity evidence. Even if photographs were not legally relevant, the defendant did not show that they were outcome determinative. 
(Overview summary)
State of Missouri vs. Michael Hendricks 
Missouri Court of Appeals-Western District – WD86570

Family

Termination of parental rights affirmed 
The appellant waived review of the social study’s admission into evidence by stating “no objection” and objecting in a motion for new trial was no substitute for a timely objection. Sufficient evidence supported a finding that five out of seven statutory factors showed that termination of parental rights was in the child’s best interest. Abuse of discretion occurred when circuit courts denied motions to re-open the evidence and no inconvenience to the circuit court or disadvantage to any party would have followed, which was usually the case when the motion occurred before judgment. But after judgment, the appellant’s motion to re-open the evidence constituted a great inconvenience to the circuit court and would have been unfair to the respondent county juvenile office. Asking an appellate court to re-weigh the evidence constituted a failure to resolve disputed evidence in favor of the judgment as required for an against-the-weight-of-the-evidence challenge. 
IN THE INTEREST OF D.J.Z., a minor child under seventeen years of age, MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDRENS DIVISION, and, CRAWFORD COUNTY JUVENILE OFFICE, Petitioners-Respondent v. D.Z., Respondent-Appellant 
Missouri Court of Appeals-Southern District – SD38618

Personal injury

No liability to third party for prescription to patient 
The elements of negligence included a duty, from the defendant to the plaintiff’s decedent, to prevent any harm that was reasonably foreseeable. Reasonably foreseeable included knowledge of a condition dangerous to the plaintiff’s decedent and the likelihood — not the mere possibility — of harm. The record, and the physician/patient privilege, supported a finding that harm to the plaintiff’s decedent was reasonably foreseeable when the defendant prescribed medications for a patient. The circuit court did not err in rejecting a proffered instruction to the contrary. The appellants had to set forth their arguments for that rejected instruction on the record during an instruction conference and referencing written arguments in response to a motion for summary judgment “preserved the issue by a hair.” 
(Overview summary) 
J.N., a Minor, by and through his Next Friend, Colleen Nentwig and Colleen Nentwig, Individually, Appellants, and Ryne Dobson, Plaintiff, v. Dr. Dale Anderson, Respondent. 
Missouri Court of Appeals-Eastern District – ED113033

Post-conviction

Witness not called, no prejudice 
On a claim that trial counsel was ineffective for failing to call a witness, the elements included testimony from that witness that would have negated an element of the offense charged. The testimony that the movant cited neither negated any element nor supported a motive to fabricate, and could have helped the state, which negated prejudice. “Additionally, a defendant cannot claim ineffective assistance of counsel when he knowingly and voluntarily submits to Counsel’s proposed trial strategy.” The record supported a finding that the movant agreed with trial counsel’s strategy. 
(Overview summary) 
Justin Bonds, Appellant, vs. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District – ED112879

Support required for findings on abandonment 
Appointed counsel’s late filing of an amended motion raised a presumption of abandonment, which generally required the circuit court to conduct an independent inquiry to determine which motion to adjudicate. The circuit court found that appointed counsel had abandoned the movant and “‘[i]n an abundance of caution[,]” addressed the merits of both the movant’s initial pro se and amended motions in its judgment denying postconviction relief.” But the circuit court did not make a record on the issue of abandonment, leaving the Missouri Court of Appeals “with the unsupported findings of the motion court[.]” The Court of Appeals vacated the judgment and remanded the action for a hearing on abandonment. 
GLENDA M. YOUNG, Appellant vs. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals-Southern District – SD38514

No remand needed 
Ordinarily, amended procedural rules applied to pending actions. But an amendment to the rule setting the deadline for filing an amended motion provided that the unamended deadline applied to pending actions. Relying on the amended rule’s new deadline, post-conviction counsel miscalculated the deadline for filing an amended motion, and filed the amended motion late with no fault of the movant, so no inquiry was necessary. And the circuit court ruled on the amended motion so the Missouri Court of Appeals could review the judgment. The movant charged sentencing counsel with ineffective assistance for failure to call two witnesses, and the circuit court did not err in finding that neither witness added anything to the sentencing assessment report, so the movant experienced neither ineffective assistance nor prejudice. 
KENNETH M. SAUTER, JR., Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District – SD38346

State performed on plea bargain promise 
In plea bargaining, the state had to perform on any promise that induced movant to accept the bargain, and the movant charged that the state failed to recommend a certain sentence as promised. But the state did not fail to perform on that promise; it stated that it “deferred” to the circuit court, which merely acknowledged that the circuit court was free to depart from the state’s recommended sentence. The record thus refuted the movant’s claim, but the circuit court convened an evidentiary hearing anyway, and the circuit court did not err in denying the movant’s claim. At the plea hearing, the circuit court’s colloquy with the defendant was sufficiently specific to constitute an opportunity for the defendant to express any dissatisfaction with counsel’s performance, and to make a record that refuted the movant’s claims of coercion. The movant could have claimed Brady violations before raising them in the motion, so the motion was too late to raise the Brady claims, and the circuit court did not err in denying those claims without an evidentiary hearing. Any claim not raised in a motion was waived. 
(Overview summary) 
Randy G. Teter vs. State of Missouri 
Missouri Court of Appeals-Western District - WD87012

Real estate

Abandoned housing act discussed 
The Abandoned Housing Act provided that an owner of real property could move to restore their possession. On such a motion, a hearing was necessary before ruling, but a hearing on a second such motion rendered any error harmless. And the appellant failed to raise the matter in circuit court, waiving it on appeal, including as a challenge to the sufficiency of the evidence. The evidence could be insufficient to support a ruling, or the evidence’s weight could be against the ruling, but those two conclusions required differing analyses in support; their appearance together in one point rendered the point multifarious. The plaintiff non-profit’s failure to file a quarterly report was not relevant, substantial evidence supported the circuit court’s findings on the cost of rehabilitation, including a management fee that the circuit court had to award. 
(Overview summary) 
Neighborhoods United vs. Monique Vaughn 
Missouri Court of Appeals-Western District - WD87236