Case summaries for August 23-29, 2024

Appellate | Criminal | Employment security | Evidence | Family | Juvenile | Post-conviction | Real estate | Workers' compensation

Appellate

Uncorrected briefing deficiencies required dismissal
“Where a party has been warned of deficiencies in her briefing and persists in repeating the same errors, the appellate court should not act as an advocate for the party to overcome the briefing problems.” The Missouri Court of Appeals gave the appellant notice of deficiencies in the appellant’s brief. The appellant corrected some but not all errors. The remaining errors required the court to speculate as to the appellant’s theory, which appellate courts would not do. The Court of Appeals dismissed the action.
(Overview summary)
Robynn Saucier Crawford vs. Diane Peterson, Et Al.
Missouri Court of Appeals-Western District - WD86986

Inadequate statement of facts yields dismissal
Appellate rules require an appellant’s brief to include a statement of “facts favorable to [appellant’s] argument or essential to Respondent that led the court to its conclusion and judgment dismissing the action” with references to the record on appeal. Failure to comply preserved nothing for review and impeded review. The Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Michael Bosma, Appellant, vs. Siliga Systems, Inc., Respondent.
Missouri Court of Appeals-Eastern District - ED112224

Criminal

No finding on propensity evidence, no plain error
In a bench trial, any error in admitting evidence is presumed not prejudicial. Evidence of earlier conduct was admissible as evidence of a common scheme or plan, or as propensity evidence in the trial of sexual offenses. The defendant made no objection to such evidence to show a common scheme or plan, so the ruling admitting such evidence was subject to review only as to propensity and only for plain error. Plain error’s elements include manifest injustice or a miscarriage of justice, which the defendant could not show without showing that the circuit court considered the earlier conduct as propensity evidence, which the defendant could not show because the circuit court never made a finding the conduct had occurred.
(Overview summary)
State of Missouri vs. Joseph M. Albin
Missouri Court of Appeals-Western District - WD86325

No prejudice from disqualified juror
The elements of plain error included not only error but a resulting manifest injustice or miscarriage of justice, but no manifest injustice or miscarriage of justice resulted from the erroneous seating of a felon on the jury per se, and appellant offered no evidence of an unfair trial. The foundation for impeachment by prior inconsistent statement included a recitation of the statement and opportunity for the witness to explain, which the defendant omitted, so the circuit court did not err in barring that impeachment. The defendant also showed no prejudice from that ruling. Statutes provided that the influence of sudden passion arising from adequate cause reduced second-degree murder to voluntary manslaughter, and that such sudden passion was a special negative defense, on which the state carried its burden.
(Overview summary)
State of Missouri vs. Dmarius M. Bozeman
Missouri Court of Appeals-Western District - WD85909

Evidence was sufficient to show that defendant killed victim
The elements of a point relied on included a legal reason why an error is cause for reversal. Without that element, an appellate court could not know the appellant’s theory, and would not construct one. So, the Missouri Court of Appeals dismissed points noncompliant in that manner, except a challenge to the sufficiency of the evidence, which appellate courts always review in a criminal conviction, even if unpreserved. Circumstantial evidence supporting a conclusion that the defendant killed the victim included: a witness who saw the defendant deliver two shotgun blasts to victim; the defendant’s declaration that he would return to the victim to deliver a third shotgun blast; and the victim’s death by three shotgun blasts.
STATE OF MISSOURI, Plaintiff-Respondent vs. BRANT M. WINKLE, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD37867

Good samaritan drug possession immunity requires causation
A statute immunized the defendant from prosecution for possession of contraband substances when such possession was found “as a result of” a call for medical assistance. “As a result” of meant “because.” The defendant called for medical assistance but refused treatment and asked the responding law enforcement officer for ride to a gas station. The officer conditioned that favor on a search of the defendant for the officer’s safety. Defendant consented, the officer searched the defendant’s backpack, and the officer found contraband. That discovery happened because the defendant consented to a search, not because of the call for medical assistance. The call’s “but for” presence in a sequence of events did not make the call into the cause of the discovery. The Missouri Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Respondent v. TIMOTHY LOUIS SMITH, Appellant
Missouri Court of Appeals-Southern District - SD38313

Must find prior offender status before sentencing
Statutes provide that a prior offender was subject to sentencing by the circuit court, and that a finding of prior offender was due before submitting the case to the jury. The circuit court erroneously failed to do so, and the defendant sought remand for re-sentencing by the jury. “The right to jury sentencing is statutory, not constitutional, such that the mere deprivation of the right itself is not a basis for reversal [and] the denial of the statutory right to jury sentencing becomes prejudicial only when it impacts the fairness of the defendant’s trial.” The defendant could not show prejudice because no enhancement of sentence was at issue, and the defendant did not show that his defense would have been any different.
(Overview summary)
State of Missouri, Respondent, vs. Ryan Johnston, Appellant.
Missouri Court of Appeals-Eastern District - ED112469

Concealing suspect hindered prosecution
The elements of hindering prosecution of a felony included concealing another person with the purpose of hindering that other person’s apprehension. The state showed that element with evidence that a person wanted on outstanding felony warrants was in the defendant’s residence, and that the defendant denied that the person was in the residence. The defendant’s failure to hinder the person’s arrest was irrelevant.
(Overview summary)
State of Missouri, Respondent vs. Carri N. Myers, Appellant.
Missouri Court of Appeals-Eastern District - ED112129

Employment Security

Recovery of overpayment waived, procedure criticized
United States statutes provided pandemic-related benefits. A Missouri Division of Employment Security regulation provided recovery of overpayment and waiver of recovery when the claimant was without fault, meaning non-disclosure that was at least negligent. On a claim for waiver of recovery, the record reflected “complete administrative confusion[.]” The division’s hearing included testimony related to three other pending and unconsolidated claims among which “the Appeals Referee frequently bounced back and forth” so that the Missouri Court of Appeals could not “decipher what legal issues relating to [claimant]’s receipt of … benefits the Tribunal intended to address … nor what testimony pertained to each case[.]” No claimant fault appeared in the record. The record showed that the claimant sought recovery as to a first employer but had to list a second employer because the division’s online application form barred a claim against only the first employer. Also, the record showed no effect on the claimant’s benefits from listing the second employer. For lack of supporting competent and substantial evidence, and uncontested evidence supporting a waiver of recovery, the Court of Appeals reversed the Labor and Industrial Relations Commission’s denial of waiver. Moreover, though the commission certified the record on appeal as “true, accurate, and complete[,]” three supplements were necessary. The eventual record on appeal included repetitive filings and documents from other administrative actions still pending resulting in a “complicated, almost unintelligible, procedural [record.]” “A record as convoluted as this — with six separate, open appeals for one claimant — wastes judicial time and resources, and hinders timely resolution of unemployment cases.”
(Overview summary)
Ana Ramirez vs. Division of Employment Security
Missouri Court of Appeals-Western District - WD86598

Evidence

Rule of completeness explained
In a criminal action, a circuit court’s admission of evidence was reviewed for an abuse of discretion that deprived the defendant of a fair trial. The rule of completeness assures that the circuit court does not omit substantially exculpatory evidence from an exhibit admitted in part by requiring the admission of remaining parts to complete the whole of the same subject matter. The whole subject matter appeared in the state’s video of the events alleged, and the rule of completeness did not support the admission of evidence for impeachment.
STATE OF MISSOURI, Plaintiff-Respondent v. JAMES L. LANCASTER, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD38300

Family

Attorneys-in-fact gained termination of parental rights
The petitioners were a parent’s attorney-in-fact and sued to terminate a parent’s parental rights in connection with adoption. Statute allows an attorney-in-fact to exercise care, custody, and control on a parent’s behalf but not to consent to parental termination of parental rights on that parent’s behalf. That statute was irrelevant to the judgment terminating the defendant’s parental rights because consent did not include petitioning, and the termination stood on evidence of neglect on the record.
(Overview summary)
In the Interest of A.J.C.: L.E.R. and L.C.R. vs. A.J.C.
Missouri Court of Appeals-Western District - WD86706

Unauthorized adoption statute construed
Statute barring unauthorized adoption forbad the surrender or transfer of a child’s custody without court order but did not bar a parent from placing their child with someone if the parent retained custody. The defendant and defendant’s parents lived together. The defendant left their child with the defendant’s parents with instructions to keep the child safe. Those facts did not show a surrender or transfer of custody from the defendant to the defendant’s parents. The Missouri Court of Appeals reversed the child’s conviction.
STATE OF MISSOURI, Respondent v. CHAZ D. LEWIS, Appellant
Missouri Court of Appeals-Southern District - SD37815

Change in circumstances must be substantial to modify custody, not parenting plan
On a motion to modify an order of child custody, the governing statute required movant to show a “change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” as to any provision except physical and legal custody. As to legal and physical custody, case law required movant to show the change in circumstances was “substantial.” Health care decisions could be “allocated, apportioned, or decreed” in one parent without altering physical and legal custody. Therefore, no substantial change in circumstances was necessary to modify provisions on visitation or provisions on health care decisions, only a change in circumstances. The circuit erred in applying a higher standard to the motion than authorized by statute, so the Court of Appeals reversed the judgment, and remanded it for a determination under the statutory standard.
BRANDON SCHIESSWOHL, Appellant v. BOBBI SPAIN, Respondent
Missouri Court of Appeals-Southern District - SD38173

Juvenile

No prejudice shown
In a juvenile action, direct appeal could include effectiveness of trial counsel. On appeal from dismissal of juvenile action and transfer for a criminal action, the appellant alleged that trial counsel failed to raise facts favorable to the appellant, but the record showed that the circuit was aware of those facts while other facts weighed heavily in favor of certification. The appellant therefore failed to show prejudice as required under either possible standard for reversal. The Missouri Court of Appeals affirmed the judgment.
(Overview summary)
In the Interest of: D.L.C. vs. Juvenile Officer
Missouri Court of Appeals-Western District - WD86530

Juvenile was a victim but so was target of juvenile’s shooting
“To put it bluntly, Juvenile is a child who has fallen through the cracks of the system meant to help him … In many ways, Juvenile is a victim.” Nevertheless, evidence supported all statutory factors for dismissal of juvenile action and transfer for a criminal action, especially the serious nature of the current offense: The juvenile randomly shot someone twice, resulting in serious and permanent injuries to that victim. The Missouri Court of Appeals affirmed the judgment dismissing the juvenile action and transferring for a criminal action.
(Overview summary)
In the Interest of: K.X.B. vs. Juvenile Officer
Missouri Court of Appeals-Western District - WD86371

Post-conviction

Choice of defense theory was okay
Counsel was ineffective if substandard practice undermined confidence in the trial’s outcome. Trial counsel selected a strategy of mistaken identity, but the movant wanted to do more: Allege that a witness to his alibi was the perpetrator. But the witness’s identity was likely not admissible, and the witnesses could refute the defendant’s alibi. Trial counsel’s strategy was sound and the movant’s preferred defense would as likely undermined the defense, so the circuit court did not err in denying relief.
(Overview summary)
Forrest D. Russell, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED112090

Rulings on third-party interference and failure to prosecute required
For each conviction, the movant filed an amended motion. The amended motion alleged that the initial motion was late because, during the drafting, the movant transferred from the Missouri Department of Corrections’ custody to Jefferson County on a writ, depriving the movant of access to a law library. The amended motion also sought a trial date, but the circuit court dismissed for failure to prosecute, yet made no findings of fact and conclusions of law. That lapse required reversal and remand, to make findings of fact and conclusions of law on whether the movant experienced third-party interference on which the courts forgive late filing of an initial motion, and on failure to prosecute.
(Overview summary)
Gregory Trapp, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111699 Consolidated with: Nos. ED111700 and ED111701

Real estate

Implied warranty of habitability enforced
Every lease of residential space implied that the space was habitable, meaning free of conditions on that materially impacted health or safety. Despite an inadequate appellants’ brief and record, and failure to preserve the theory on appeal, the record was sufficient to show that conditions on the leased premises were more than de minimis code violations and inconvenience. Defendant landlords’ premises had water leaks from a living room ceiling and kitchen plumbing, mold in the refrigerator, inoperable air conditioning, and live wires sticking out of bathroom switches. The Missouri Court of Appeals affirmed plaintiff tenants’ judgment.
(Overview summary)
Grace Herr, Ally Burke, and Majorie Alvord, Respondents, vs. Min Zhao, Appellant, Yanqun Dong, Defendant.
Missouri Court of Appeals-Eastern District - ED111788

Workers’ compensation

Statutory employment shown
In a personal injury action, the defendant could prevail on summary judgment by establishing beyond genuine dispute the facts material to an affirmative defense. Affirmative defenses included workers’ compensation as the exclusive remedy for injuries arising out of and in the course of employment, including statutory employment. Statutory employment was a contract to do someone’s usual business on that person’s premises. Conversely, “sporadic or episodic” work outside the usual business was not subject to the exclusive remedy of workers’ compensation. The defendant established that the defendant’s usual business included delivery, that the defendant hired the plaintiff’s employer to perform delivery, and that the plaintiff’s injury occurred during delivery on the defendant’s premises. Because the defendant’s usual business included delivery, the irregular nature of hiring the plaintiff’s employer was irrelevant, and the plaintiff was a statutory employee. Because the plaintiff’s exclusive remedy was workers’ compensation, the circuit court did not err in dismissing the plaintiff’s action. The plaintiff had to plead any avoidance to that affirmative defense in a reply to the defendant’s answer. Avoidances to the exclusive remedy of workers’ compensation included status as a for-hire motor carrier. The plaintiff did not plead that avoidance and so failed to preserve that theory for appeal.
(Overview summary)
Jonathan Montgomery vs. Coreslab Structures (Missouri), INC.
Missouri Court of Appeals-Western District - WD86910