Case summaries for Sept. 15 - Sept. 21, 2023

Appellate | Civil | Criminal | Evidence | Orders of Protection | Post-Conviction | Schools

Appellate

Incomplete record requires remand 
In an action for removal from Missouri’s sex offender registry, when the pleadings do not resolve the case, an evidentiary hearing is necessary. No transcript of any hearing is in the record, so the Court of Appeals cannot know what evidence was before the circuit court, including documents in appellant’s appendix. Appellate review is impossible, so the Court of Appeals must reverse the judgment, and remand the case for the circuit court to make a complete record.  
J.M.L., Respondent, vs. Missouri State Highway Patrol, et al., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110665

Incomplete record requires remand 
United States statutes may require a person to register with Missouri as a sex offender even when Missouri statutes do not. In an action for removal from Missouri’s sex offender registry, when the pleadings do not resolve the case, an evidentiary hearing is necessary. When the record of that hearing is incomplete, and review of the final judgment is impossible, an appellate court must reverse the judgment and remand the case for a complete record.  
J.C.S., Respondent, vs. Missouri State Highway Patrol Criminal Records Repository, Appellant, and Jefferson County Sheriff's Office, Defendant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111139

Docket entry insufficient for final judgment 
In a criminal action, statute and rule allow an appeal from a final judgment, which occurs when the circuit court pronounces sentence in the defendant’s presence. Entering a written version of the judgment is a ministerial act, not required for the Court of Appeals’ jurisdiction, but necessary to the legal file for processing the appeal. Rule requires a written judgment and prescribes the judgment’s content, which must include the offense of which the circuit court convicted defendant, and that matter is absent from the circuit court’s docket entry. Appeal held in abeyance while the action is remanded to circuit court for the entry of a final judgment in writing.  
State of Missouri vs. James Eugene Logan 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85830

Civil

Joinder prohibited 
Rule allows joinder of a third party as necessary and indispensable if that party is required for complete relief or has an interest impeded by their absence. Neither circumstance allows defendant to compel joinder because a plaintiff may sue whichever tortfeasor plaintiff chooses. Respondent’s failure to answer a petition for writ of prohibition constitutes a default, and is enough to grant the petition, but courts prefer to rule on the merits. The Court of Appeals makes permanent its preliminary writ of prohibition.  
State of Missouri ex rel. Melissa Hogg, Relator, v. The Honorable Wendy Wexler Horn, Judge of the Twenty-Fourth Judicial Circuit, St. Francois County, Div. 1, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111910

No amendment of judgment on motion to enforce judgment  
Under the Sunshine Law, on a request for documents, the State has the right to payment of the costs for the search and production. Defendant prosecuting attorney did not raise that right on plaintiff’s request, nor in plaintiff’s action to enforce, nor on appeal of the original judgment in plaintiff’s favor. Waiver and law of the case bar defendant from asserting that right. When the prosecuting attorney failed to comply with the original judgment, plaintiff brought an action for enforcement of the original judgment, with a motion for civil contempt. The order denying civil contempt did not preclude judgment on the merits for enforcement. The action for enforcement of the original judgment can neither expand the Sunshine Law request nor narrow the original judgment. The circuit court’s enforcement judgment ruled that the prosecuting attorney had searched enough—though not as the original judgment ordered—and added a condition to the original judgment: payment of the costs for search and production. Those rulings constituted amendments to the original judgment after the circuit court had lost authority over the original judgment.  
Aaron M. Malin vs. Cole County Prosecuting Attorney 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85703

Criminal

Purpose implied in circumstances 
The elements of child molestation in the first degree include sexual contact, which includes a “purpose of arousing or gratifying the sexual desire of any person [,]” which the circumstances can imply. Confrontation Clause and hearsay objections must be raised timely and specifically at trial, and are separate issues, each requiring preservation and briefing in separate points relied on. Inconsistent statements are not necessarily proof of perjury, and all inconsistencies were subject to impeachment and explained away, and none was necessary to establish an element of the offense charged; so no plain error occurred in admitting that evidence.  
State of Missouri, Respondent, v. Santonio McCoy, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110900

Confrontation forfeited by wrongdoing 
Constitutional provisions bar testimonial hearsay when the declarant is absent from trial, unless defendant caused that absence to prevent the declarant’s testimony at trial, which constitutes forfeiture by wrongdoing. Defendant’s intent to silence victim was shown by threats and other circumstances. A protracted attack and flight from the crime scene supported a finding of deliberation.  
State of Missouri, Respondent, vs. Samuel L. Scott, Appellant.  
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110702

Recusal not required 
Rule requires a judge to recuse on facts that include a reasonable appearance of prejudice, meaning personal enmity, against a party. No prejudice appeared in the circuit judge’s skepticism over repeated continuances of a case long set for trial, especially when defendant prevailed on that motion. “[E]xpressions of annoyance that are within the bounds of what imperfect men and women sometimes display do not create bias.”  
State of Missouri vs. Jeromy L. Jenkins 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85228

Video barred from voir dire 
On voir dire, the defense may disclose some of the facts, but barring an explicitly detailed surveillance video of the offense was not an abuse of discretion, and appellant showed no prejudice. The circuit court excluded testimony of a witness on whether the witness could “rule out” an associate’s intent other than to commit an offense. That question called for an opinion that the jury could reach unaided, so the ruling was not error.  
STATE OF MISSOURI, Plaintiff-Respondent v. KIMBERLY RISTON, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37522

Evidence

Out-of-court statements okay 
No abuse of discretion occurred when the circuit court denied a motion to strike a venireperson based on one answer in isolation, and no prejudice resulted from that ruling, because that venireperson never sat on the jury. A motion to strike a venire person for one reason does not preserve another reason, and appellant failed to develop that reason in the argument portion of his brief. Denial of a strike for cause is not subject to appeal when a peremptory strike eliminates the same venire person. Testimony of a witness, recounting the witness’s past mental state and intent, is not hearsay. Testimony of a witness, recounting victim’s statements, was not hearsay because they were offered as background, not for the truth of victim’s statements; and victim’s statements were excited utterances, admissible even if hearsay. Victim’s statements recounted defendant’s threats, which were admissible as admissions of a party opponent. Even if allowing that evidence were error, no prejudice resulted because of other overwhelming evidence of guilt.  
State of Missouri, Respondent, v. Nore K. Edmond, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111055

Orders of Protection

Legitimate purpose exceeded in work-related meetings 
An amended statute took effect according to the time where relevant events occurred, so the amended statute applied to messages sent from New York State even though the amended statute was not yet in effect in Missouri. No plain error occurred when the circuit court applied an amended statute to events occurring before the statute’s effective date, because the amendment only provided a wider range of remedies, and defendant had no right vested in the pre-amendment remedies. Multiple employment-related meetings between plaintiff and defendant culminated in defendant’s threats against plaintiff expressed to defendant’s therapist. The threats were objectively alarming. The circuit court was entitled to find that those events lacked a legitimate purpose, and absent express findings, the circuit court is presumed to have done so. Plaintiff’s reaction to the threats supported a finding of subjective alarm.  
S.A.B., Respondent, v. J.L.R., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111235

Post-Conviction

No prejudice shown 
On voir dire, a hypothetical question that requires venire person’s commitment to a party’s theory is subject to objection. Trial counsel made no such objection, but no manifest injustice or miscarriage of justice resulted, because evidence of guilt was overwhelming. Appellate counsel ‘s choice not to raise that matter on appeal was strategically sound. The choice not to impeach a witness does not result in prejudice unless impeachment would have shown a viable defense and, whether movant’s accomplice was laughing while defendant committed charged offense, the accomplice’s testimony on that matter offered no viable defense.  
Christopher J. Potter, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110877

Extent of cross-examination was soundly strategic  
Movant charged trial counsel with ineffective assistance, and alleged that trial counsel made no opening statement, but did not allege any resulting prejudice; and any potential prejudice was refuted by trial counsel’s closing statement. Trial counsel’s choice on cross-examination of State witnesses—to avoid raising sympathy for them, was a reasonable strategy. 
Jonas Phillips, Appellant, v. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110785

Amended motion late, initial motion undecided 
Retained counsel timely filed the initial motion but did not file an amended motion, statement in lieu, or motion for extension of time. After the time for those filings passed, appointed counsel filed a motion for extension of time and an amended motion stating claims different from the initial motion. Abandonment does not apply to forgive late filing for the amended motion. The circuit court had no authority to rule on the amended motion, only the initial motion, but did not make such ruling so there is no final judgment in the action. Appeal dismissed.  
JOHNNY LEE COOPER, Appellant v. STATE OF MISSOURI, Respondent  
Missouri Court of Appeals, Southern District - SD37877

No lesser included offense instruction in an all-or-nothing defense 
During interrogation, defendant invoked the right to silence and trial counsel’s questioning of defendant raised those events, but trial counsel had to raise those events to explain away defendant’s prior inconsistent statements. On an all-or-nothing strategy, trial counsel’s choice of seeking no lesser included offense was sound. When a witness gave a non-responsive answer, trial counsel’s choice, to seek no remedy, was a sound strategy to avoid highlighting the damaging testimony. A motion in limine would not have prevented that testimony because neither the State nor the defense solicited it. Movant explained away an alleged threatening gesture during trial, and having trial counsel testify to the same thing would only have complicated the defense with no benefit, so trial counsel’s choice to not testify was strategically sound.  
QWENTEN DEON AMLIN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37647

Avoiding damaging evidence was sound strategy 
Movant alleged that trial counsel failed to interview an alibi witness, but the circuit court found otherwise, and “[c]redibility determinations are exclusively for the motion court and it is free to believe or disbelieve any evidence, whether contradicted or undisputed.” Movant argued that trial counsel should have offered evidence of a show-up identification to cast doubt on it, but the show-up identification was certain enough to bolster an in-court identification, so avoiding that outcome was sound strategy. 
WILLIAM H. COOK, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD37681

Schools

Gymnasium wall had no dangerous condition 
Statute provides sovereign immunity for the State and its political subdivisions, including defendant school district, subject to express limitations. Those limitations include a dangerous condition of real property, which means “physical defects in, upon and/or attending to property of the public entity” and may include “physical deficiencies created by the placement of objects on the public property.” That does not describe hanging a mat on a gymnasium wall for second base. Summary judgment for defendant affirmed.  
Z.S., By and Through His Next Friend, P.S., Appellant, v. Rockwood School District, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111319