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Case summaries for July 28 - Aug. 3, 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 | Family | Insurance | Post-Conviction | Probate | Utilities


Plea deal nixes appeal  
A criminal defendant may waive the right to an appeal and, when that waiver is part of a reduced sentence and chance of parole, the courts “will not hesitate in holding the defendant to his part of the bargain.” The record shows that defendant waived his right of appeal after consulting with counsel, so the Court of Appeals dismisses the appeal.   
State of Missouri, Respondent, v. Michael K. Humphrey, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110491


Criminal history was a shield, and a sword, but not plain error  
On a charge of robbery in the first degree, the State alleged that appellant stole money and a cell phone, but the State produced no evidence of a cell phone. That did not constitute insufficient evidence of robbery first degree, merely a variance from which appellant showed no manifest injustice or miscarriage of justice. The Court of Appeals declines plain error review on the variance. Statutes require circuit court to determine status as a persistent offender before sending the case to the jury. Failure to do so constitutes clear, open, and obvious error. But appellant failed to show manifest injustice or miscarriage of justice because the defense cited appellant’s criminal history, and the sentences run concurrently, so appellant will not serve more time than a sentence without persistent offender enhancement. “[W]here the defendant is using the facts of his prior felony conviction status ... as a shield [,] we see no manifest injustice where those same facts [are] wielded as a sword, especially where the sword created no actual increase to his total authorized sentence for his criminal convictions.”   
State of Missouri vs. Antwoine R. King  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85149

Intent to kill shown without cause of death  
When defendant makes motions for acquittal at the close of the State’s evidence, and presents evidence of his own, defendant waives the circuit court’s ruling on that motion. Appellate courts will review a challenge based on sufficiency of the evidence even when not properly briefed. The elements of murder in the second degree include conduct causing the death of victim and awareness that such conduct was practically certain to cause death. The State substantiated those elements, and satisfied the corpus delecti rule, with evidence that defendant frequently berated victim and eventually pushed victim to the floor where victim’s head made a loud thud, and concealed the victim’s body. One fact may support multiple direct inferences without constituting inference stacking.  
State of Missouri vs. Joseph Duane Elledge  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85109

Admission against penal interest inadmissible  
Evidence of an alternate perpetrator is admissible only if such evidence directly connects such person to the offense, while the proffered hearsay statement of the person did not describe the victim. Purported alternate perpetrator’s hearsay statement, even against penal interest, who testified at trial is never admissible. Exclusion of evidence that did not support any defense did not prejudice defendant. Evidence of uncharged crimes was not mere propensity evidence; and was admissible because it included a confession, and a statement of motive, and was cumulative of other confessions. Defendant’s knowing mental state was subject to proof by inference including defendant’s previous threats, statements of motivation, and attempts at cover-up.    
State of Missouri vs. Kylr Charles Yust  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84633

Knowledge of arrest shown  
The offense of resisting arrest by flight includes the element that the defendant knew, or reasonably should have known, that defendant was being arrested when defendant fled. The State carried its burden with evidence that a uniformed sheriff’s employee, with whom defendant was acquainted, arrived at defendant’s home in a marked sheriff’s department car and announced a warrant for defendant’s arrest; as defendant fled, the sheriff’s employee told defendant to stop because defendant was under arrest; and defendant kept running. Conviction affirmed.     
STATE OF MISSOURI, Plaintiff-Respondent vs. RAYMOND CROSS, Defendant-Appellant  
Missouri Court of Appeals, Southern District - SD37587

No continuance to find new counsel 
“The right to be represented by counsel of one's own choosing is qualified by the public's right to the effective and efficient administration of justice.” To gain a last-minute continuance, defendant must show a complete breakdown in communication, but the record shows regular contact and thorough discussion between defense counsel and defendant. Defendant neither alleged nor showed any prejudice from the denial of his motion. Conviction affirmed. 
STATE OF MISSOURI, Respondent v. RODNEY BAKER, Appellant 
Missouri Court of Appeals, Southern District - SD37713


No plain error in comments on credibility during interview   
The State offered a video recording of law enforcement interviewing the defendant. The interview included the interviewer's comments on the victim's credibility, but the recording was not offered for those comments, only as context for the defendant's statements. Therefore, admitting the recording was no basis for plain error review, and did not require the circuit court to sua sponte order redaction, or a limiting instruction, or declare a mistrial. In any event, the defense stated, "No objection" to the recording and thus waived any review, including for plain error.   
State of Missouri, Respondent, vs. Herbert Welch, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110318

Evidence of injuries admissible  
A photograph of a gruesome crime will be a gruesome photograph and is not subject to exclusion for that reason alone. The disputed photographs depicted victim’s injuries and corroborated testimony on the cause of death. The circuit court did not abuse its discretion in admitting the photographs. Duly qualified expert’s demonstrative exhibit was cumulative of other evidence, and illustrated how specific injuries occur, and was therefore harmless even if it were error to admit it.    
STATE OF MISSOURI, Plaintiff-Respondent v. MITCHELL BRUMFIELD, Defendant-Appellant  
Missouri Court of Appeals, Southern District - SD37173


Termination of parental rights affirmed  
Grounds to terminate parental rights include abuse and neglect, and factors in both those grounds include an irreversible mental condition that renders a parent incapable of parenting, which the circuit court found. That finding had support in an expert’s report that was 14 months old; but other, current evidence also supported that finding. And the circuit court also found other grounds for termination based on neglect as shown by the factors of chemical dependency and failure to support. Appellant does not challenge those findings. Judgment terminating parental rights affirmed.  
In the Interest of T.E.L.I. Greene County Juvenile Office, Respondent vs. D.W.L., Appellant
Missouri Court of Appeals, Southern District - SD37948


Plaintiff’s automobile insurer may assume the defense  
Plaintiff’s decedent was covered by an automobile insurance policy with uninsured motorist coverage. In an action for wrongful death, plaintiffs named as defendants the driver who hit decedent, and plaintiff’s insurer. Plaintiff’s insurer, even if not named a defendant, had the right to represent defendant driver because plaintiff’s insurer “assumes an adversarial position to that of the insured” with no “impermissible conflict of interest” when uninsured motorist coverage is at issue. Defendant’s admissions and default do not change that result. The Court of Appeals need not address whether instructions were erroneous, because the case is remanded, and what instructions are appropriate will depend on what evidence the parties offer.   
Mark Brommelhorst and Barbara Brommelhorst, Individually and on Behalf of Gabriel Brommelhorst, Deceased, Respondents, vs. Automobile Club Inter-Insurance Exchange, Appellant, and Danielle Johnson, Defendant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110912


Record refutes allegations  
Movant alleged that trial counsel was ineffective in failing to investigate. On a claim that plea counsel was ineffective for failing to investigate a witness, among the allegations that movant must prove are that the witness would have offered a viable defense. The witness would have testified about a security camera video. The video was retained for 90 days, at most, after recording. Trial counsel entered an appearance 112 days after recording, when the video was already unavailable, so the witness would not have supported any defense.  On those facts, movant could not show that plea counsel’s performance was below standard and could not show any prejudice. The circuit court did not err in denying the motion without an evidentiary hearing.    
Timothy Waldorf, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111167


Conservator liable  
Statutes and common law impose a fiduciary duty on conservator, require conservator to preserve protectee’s property for protectee’s benefit, and bar commingling. Circuit court’s blanket ratification of conservator’s transactions erroneously declared or applied the law. “The probate court’s dispensation of the annual settlement requirement in April 2000 was not also a dispensation of the final settlement requirement. Those are two separate requirements mandated by two separate statutes.” Respondent conservator appropriated protectee’s savings and deposited income from protectee’s real property and social security in accounts owned by conservator and conservator’s spouse. Conservator and conservator's spouse had a duty to provide basic ordinary support for protectee but diverted protectee’s social security survivor benefit for that purpose. That conduct constituted a breach of fiduciary duty. Conservator’s poor record-keeping does not excuse her from liability, it just lowers the bar for protectee to prove damages. Whether the conservator still has the money or has already spent it is irrelevant. Reversed and remanded to determine amounts due protectee.   
Andrea E. Stockman vs. Brian G. Schmidt  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85691 and WD85694


Securitization discussed  
Statute allows an investor-owned utility to issue securities for the recovery of certain extraordinary costs that would distort the rate-setting process if assigned to a single year. Such costs include those attributable to severe weather, necessary to maintain service during a winter storm, like fuel and purchased power, and beyond the recovery provided by the utility’s general rates and fuel adjustment clause. Appellant utility’s fuel adjustment clause allowed a 95 percent recovery, so a 95 percent recovery was just and reasonable for the securities. The costs subject to recovery also include transition costs for retiring a coal-fired plant. The statutes specifically allow the securities to recover costs associated with that property, or “carrying costs,” subject to the requirement that all expenditures must be prudent, and result in just and reasonable rates. Such securities are limited in dollar amount, in part, by any remaining balance in the accumulated deferred income taxes account. That account is subject to a calculation to show its present effect on the dollar amount of securities that the utility may issue. The record made before the Public Service Commission supports the Commission’s determinations as to those amounts. Commission decision affirmed.  
In the matter of the petition of the Empire District Electric Company d/b/a Liberty to obtain a Financing Order that Authorizes the Issuance of Securitized Utility Tariff Bonds for Qualified Extraordinary Costs and In the matter of the Petition of the Empire District Electric Company d/b/a Liberty to Obtain a Financing Order that Authorizes the Issuance of Securitized Utility Tariff Bonds for Energy Transition Costs Related to the Asbury Plant; Empire District Electric Company d/b/a Liberty; Office Public Counsel vs. Public Service Commission of the State of Missouri  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85800 and WD85801