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Case summaries for Sept. 2 - Sept. 8, 2022


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 | DWI | Employment Security | Evidence | Juvenile | Post-Conviction


Defective Brief Results in Dismissal 
Appellant’s brief must give notice of the matters on appeal by following the format prescribed by appellate rules. Appellate rules require a statement of the facts relevant to matters on appeal, with pinpoint citations; points relied on, relating facts to law; and argument showing that the law applicable to the facts requires reversal. “While this Court frequently reviews claims ex gratia where the argument portion of a brief clarifies the issues an appellant intends to raise in a defective point relied on, in this case the argument portion of [appellant]’s brief does not remedy the defects in his points, and itself contains multiple violations [.]” Violations of the rules governing the argument portion of appellate brief require appellant to show whether—and, if so, how—appellant preserved a point for appeal; and law supporting the point relied on. Violations of the rules can leave an appellate court to guess at what matters are at issue, which compromises judicial neutrality, so appellate courts dismiss based on briefing violations. Appellant’s brief impedes appellate review, so the Court of Appeals dismisses the appeal. 
Xinsheng (Randy) Gan vs. Penny Schrock, Appointing Authority, Department of Social Services, Division of Finance and Administrative Services 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84637 

Generic Point Preserves Nothing 
Prosecutor’s statement in voir dire, that the State was not seeking the death penalty, did not require a new panel. Affirmatively agreeing to the circuit court’s remedy waived further relief. A generic motion to suppress, even renewed at trial, and a point relied on of equally “unrefined, unlimited scope” fail to preserve any issue for appellate review. 
STATE OF MISSOURI, Plaintiff-Respondent v. LONNIE LEROY WILLIAMS, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD37221              


Adequate Cause Is a Special Negative Defense 
Conviction on a lesser offense is not subject to reversal when the evidence would support conviction on a greater offense. “[T]he General Assembly defined second-degree assault to include ... ‘the influence of sudden passion arising out of adequate cause ... .’” Adequate cause is a special negative defense that the defendant has the burden to raise to a greater offense, so when the State pleads adequate cause, it concedes the defense and removes the matter from dispute. Therefore, even if the evidence of adequate cause were insufficient, appellant’s conviction for second-degree assault would not be subject to reversal. 
State of Missouri vs. Dana Ray Day, Jr. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84590 

Verdict Exceeded Instruction 
Circuit court limited cross-examination to exclude a specific matter, as to which appellant showed no relevance and no prejudice, and so failed to show plain error. Circuit court submitted the greater offenses of statutory sodomy in the first degree, of which child molestation in the first degree was lesser included offense, but the evidence did not distinguish different incidents to support separate convictions. The State thus used one set of facts to support convictions for lesser included offenses and greater offenses, which constitutes multiple punishments for the same offense, and is a form of double jeopardy. Even when a double jeopardy is unpreserved, plain error review is available for a violation appearing on the face of the record. Remanded to vacate judgments on counts of lesser included offenses. Verdict and sentencing assessment report misled the circuit court to consider a higher range of sentences than the offense charged, so the Court of Appeals remands for re‑sentencing for that count.   
State of Missouri vs. Charles H. Putfark, IV 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84246 

Shaken Baby Conviction Affirmed 
The State presented circumstantial evidence, sufficient to support a conclusion that defendant committed child abuse by recklessly shaking a baby, in the form of expert medical testimony. “The State was not required to show that the evidence was inconsistent with Defendant’s innocence, nor was it required to affirmatively disprove every other reasonable hypothesis of innocence.” Evidence and equally valid inferences to the contrary are irrelevant on appellate review. 
STATE OF MISSOURI, Plaintiff-Respondent v. SAMANTHA RENEE DILLBECK, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37195              


Unwritten Waiver of Counsel Presumed No Good 
In a criminal action, a waiver of counsel is possible after an evidentiary hearing and a proffer of the written form for defendant’s signature. Neither occurred. A pro se defendant need not preserve a constitutional objection to their own waiver of counsel, and a violation of the statutory procedure for a written waiver presumptively constitutes plain error. Remanded for new trial. 
State of Missouri vs. Jacob Edward Masters 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84753               

Enough Clues Showed Reasonable Grounds 
Director of Revenue revoked Driver’s license for refusing a breath test. On appeal to circuit court, the Director had the burden to prove that reasonable grounds existed to arrest Driver for driving while intoxicated. Professional safety standards set forth clues for detecting intoxication, but nothing requires the presence of all clues, and some clues were present. The clues present, even considering the clues not present, supported a finding of probable cause. 
Weston Urbaniak vs. Director of Revenue 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84569

Employment Security

Too Late at Commission, No Appeal 
In an appeal from the ruling of an Appeals Tribunal to the Labor and Industrial Relations Commission, appellant filed her petition for review too late. That filing vested no authority in the Commission, so the Court of Appeals has no authority, either. Dismissed. 
Jennifer Jacobson, Appellant, v. Syberg's Eating and Drinking Company, Inc., and Division of Employment Security, Respondents 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110118 

Partial Benefits Explained 
Claimant had the burden of proof on her claim for benefits. Statute provides a partial benefit for partial unemployment, but the amount depends on total wages for the base year, which claimant did not show to an appeals tribunal. Allegations, made by counsel in claimant’s counsel in the petition for review before the Labor and Industrial Relations Commission, had no support in any new evidence admissible under Commission regulations. Claimant did not carry the burden of proof, so the Commission denied benefits, and the Court of Appeals affirms. 
Missouri Court of Appeals, Southern District – SD37322 


No Plain Error Review for State’s Cross Using Cell Phone 
Defending against a charge of theft from Wal Mart, defendant testified that he bought the item at a Dollar General. Dollar General, the prosecutor alleged, did not stock the item and, to prove it, the prosecutor challenged defendant to find the item on Dollar General’s website. “[T]he prosecutor’s stunt with his phone did not result in a manifest injustice or gross miscarriage of justice so the Court of Appeals denies plain error review. 
STATE OF MISSOURI, Plaintiff-Respondent v. CHRISTOPHER STEPHENS FORD, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD37278


Juvenile Appeal Standing Case Transferred 
Any right to appeal a judgment exists only by statute. The general statute, allowing any aggrieved party to appeal from a final judgment, does not apply when a specific statute governs appeal from a specific judgment. The judgment in a juvenile adjudication is subject to appeal under a statute that does not allow appellants to appeal. But “a significant split of authority exists on the issue of whether an appealing party can rely on [the general statute] for authority to appeal a juvenile court judgment ... when they are not specifically listed in” the specific statute. Transferred to the Supreme Court of Missouri. 
In the Interest of: L.N.G.S.; Juvenile Officer; and Missouri Department of Social Services, Children's Division vs. A.S. and A.S.         
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85072 

Commitment as Hypothetical Adult Was Plain Error 
Juvenile code provides that commitment to a juvenile facility has support in a violation of criminal statute or municipal ordinance under two theories: first, when the facts show a violation; or, second, when the facts would show a violation of criminal statute or municipal ordinance if done by an adult—as a hypothetical adult. The latter does not apply when the statute’s elements include the age of the accused. Appellant admitted violating a criminal code statute applicable to persons aged 18 years or more only, so the hypothetical adult theory cannot apply, and appellant was 16 years old. It was impossible for the facts to show a violation of that statute, ruling otherwise was plain error, and the Court of Appeals reverses the judgment and remands the action. 
In the Interest of: P.L.S. vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84977              


No Actual Conflict of Interest 
Absent an objection at trial, movant can show ineffective assistance of counsel based on a conflict of interest only if the conflict was actual. An actual conflict means that trial counsel, while actively representing movant and another client, did something advantageous to the other client and disadvantageous to the movant. The disadvantage to movant must be outcome-determinative. Movant did not allege such facts, so the circuit court’s denial of relief is affirmed. 
JERRY GLENN HAFFLY, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37314