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Case summaries for Sept. 25 - Oct. 1


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.

Civil | Criminal | DWI | Family | Insurance | Juvenile | Mental Health | Workers' Compensation


Reconsideration Negated Prejudice from Short Notice
Rule requires five days’ notice of a hearing on any motion, other than one expressly subject to ruling ex parte, and allows less notice if reasonable. Appellant showed no prejudice from less than five days’ notice of a hearing, when the circuit court convened a hearing on appellant’s motion for reconsideration, at which the circuit court heard and ruled on appellant’s arguments against dismissal. Dismissal, as a sanction for failure to comply with discovery, affirmed.
Brad Burns vs. Nathan Granger, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83395


Restitution and Costs Discussed
Court of Appeals does not apply the Escape Rule for appellant’s failure to contact parole officer, when that failure resulted from restrictions caused by COVID-19, parole officer recommended further attempts to communicate, and no further costs to the judicial system resulted. The State rehabilitated a venire person who hoped to hear testimony from defendant, so circuit court did not err in denying a motion to strike. Admitting State’s evidence showing no special urgency in investigating the burglary of a police officer’s home, to counter defense argument of bias, was not plain error. Statutes governing an order of restitution base the amount ordered on the loss from the offense so property damage from burglary, not just property stolen, is relevant. Failure to object to the amount ordered on a specific basis leaves only plain error review for that basis. Appellant did not show that his resources were so limited that assessing costs against him was an abuse of discretion. For specific items of costs, statutes provide that the remedy is a separate action to retax costs, not a direct appeal.  Appellate courts have inherent power to remand a criminal action for a new trial, based on newly discovered evidence, even when the time to file a motion for trial has passed; but not for evidence of limited impeachment value, even on allegations of a Brady violation, at least when post-conviction relief is available.
State of Missouri vs. Thomas J. Savage, III
(Overview Summary)
Missouri Court of Appeals, Western District - WD82413

Verdict May Vary from Charges
Failure to challenge a venire person for cause waives direct review of that venire person’s presence on the jury, and venire person’s comment on remembering the last thing they hear does not negate impartiality, so the Court of Appeals exercises its discretion against plain error review. Circuit court remedied an error in the jury’s verdict by vacating the sentence on that count, so appellant suffered no prejudice. Circuit court’s spoken judgment of guilty for a lesser included offense prevails over its written judgment of guilty on a greater offense. Remanded for correction of circuit court records.
Missouri Court of Appeals, Southern District - SD36374

Prejudice from Denial of Lesser Included Offense Instructions Explained
A jury instruction is due on any claim or defense supported by the evidence and inferences, and any evidence or inference is subject to rejection by the jury, so instructions on a nested lesser included offense were due on request. Circuit court submitted instructions for greater offenses but not nested lesser included offenses. The difference between greater and lesser was the element of victim’s age: younger for greater offenses, and older for lesser offenses. Therefore, when the jury found defendant guilty of a greater offense, it must have found that victim was the younger age, and thereby rejected any possibility that victim was an older age. The age element thus tested, no prejudice resulted from failure to submit instructions for the lesser included offenses. No such testing occurred for the age element of one nested lesser included offense, which was different from all others, and the State did not rebut the presumption of prejudice arising from those facts. Remanded for further proceedings on that count.
STATE OF MISSOURI, Plaintiff-Respondent v. SPENSER A. FARR, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36175

No Miranda Warning Needed
Evidence, to which defendant stated that he had no objection, is not subject to plain error review. No manifest injustice or miscarriage of justice results from the admission of cumulative evidence. No Miranda warning is necessary for routine booking questions because those questions do not constitute an interrogation. When investigators already know the answer, a question without a Miranda warning is harmless beyond reasonable doubt. An answer given without a Miranda warning, cumulative of an unchallenged post-Miranda confession, does not contribute to a guilty verdict.
State of Missouri, Respondent, vs. Larry E. Northcutt, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107999


Probable Cause Is Necessary for Arrest, Not for Traffic Stop
On administrative appeal from suspension of a license, the elements do not include probable cause for a traffic stop, only probable cause to arrest a driver for an alcohol-related offense. Probable cause to arrest a driver for an alcohol-related offense does not require field sobriety tests, and other indicia of intoxication—like refusal to take a field sobriety test—are sufficient. Based on circuit court’s determinations of credibility, Court of Appeals enters a judgment of suspension, because rule requires an appellate court to “give such judgment as the court ought to give [and, u]nless justice otherwise requires, ... dispose finally of the case.”
Justin Richard Turner vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD83439


Late Home Study Necessitates New Trial
In an action to terminate parental rights, circuit court ordered a home study under the Interstate Compact on the Placement of Children, but convened the evidentiary hearing before that study was ready, and denied appellant’s motion for new trial on the basis of that study as newly discovered evidence. The elements of a motion for new trial based on newly discovered evidence include evidence that would probably change that outcome at trial and not previously discoverable by due diligence. Appellant satisfied those elements by showing how the study favored appellant, and how appellant tried unsuccessfully to get the study for trial.
In the Interest of: E.B.M.; Juvenile Officer vs. B.M.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83612

Proof, or Offer of Proof, Lacking for Property Value
In an action for dissolution of marriage, statutes require property division, which puts a burden of proof to show current property valuations on each party. “Because [appellant] attempts to assign error for a lack of evidence to which he neither objected nor offered alternatives, we will not find reversible error in the trial court’s judgment.” Appellant cannot challenge the exclusion of evidence, for which appellant made no offer of proof, unless: “(1) the record must show a complete understanding of the excluded testimony; (2) the objection must be to a category of evidence rather than to specific testimony; and (3) the record must show the evidence would have helped its proponent.”
Virginia G. Eckelkamp, Respondent, vs. Gary L. Eckelkamp, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108437


Assault and Battery Limitations Applied
Policies covering general liability and liquor liability limited coverage for damages “arising out of Assault and/or Battery.” That term “is not ambiguous simply because the term has more than one definition.” A reasonable person would understand assault or battery, or both, to include a gunshot wound. On a motion for summary judgment, movant established facts entitling movant to a favorable ruling, by non-movant’s admissions, to which non-movant failed to raise a genuine dispute with speculative arguments.
Scottsdale Insurance Company vs. Maria Olivares
(Overview Summary)
Missouri Court of Appeals, Western District - WD83178


No Presumption of Doli Incapax
Sufficiency of the evidence is subject to direct review even when appellant did not preserve or brief that issue. Statutes incorporate common law as of 1607. Common law presumes that a person aged between seven and 14 years is incapable of any culpable mental state, requiring the State to prove capacity “beyond all doubt,” as an element of a criminal offense. Criminal offenses processed under the juvenile statutes governing delinquency have civil consequences only, so that presumption—"doli capax”—does not apply, and review for sufficiency of the evidence on a mental state is subject to the same standards as other findings in a civil action. That includes considerations of “factors such as age, capacity, or experience.” On charges of arson and manslaughter, evidence of recklessness included: a protracted course of destructive conduct, the use of accelerant, and knowledge that victim was nearby, use of intoxicating substances, and laughter over victim’s death.  
In the Interest of: I.D. vs. Juvenile Officer
(Overview Summary)
Missouri Court of Appeals, Western District - WD83393

Mental Health

More Than One Confinement Procedure Applies
Statutes governing sexually violent predators are expressly in addition to, and not in conflict with, statutes governing a judgment of not guilty by reason of mental disease or defect. Confinement under one procedure does not moot confinement under another procedure because each procedure has its unique “disabilities and legal consequences.” Statutes assign a burden of clear and convincing evidence to a person confined, on a judgment of not guilty by reason of mental disease or defect, when seeking unconditional release. Therefore, substantial evidence is not necessary to support denial of that relief.
State of Missouri vs. William G. Carter a/k/a Billy Carter
(Overview Summary)
Missouri Court of Appeals, Western District - WD83120

Workers' Compensation

Claims Against the Second Injury Fund Too Late 
Statute of limitations on claims against the Second Injury Fund grant one year after filing a claim against the employer to file a claim against the Fund. A claim against the Second Injury Fund must name the custodian State Treasurer as a party, and checking a box designating the Fund on a form is insufficient. An amended claim may relate back to the original claim, “by adding some cause, effect, or injury,” but appellant’s amendments did not make such a change in the relative positions of the parties. The Second Injury Fund is not a State agency, so it is not subject to the rulemaking requirements of the Administrative Procedure Act. When the differing facts of different cases require a different result under the same statute, no change in law occurs. When nothing in the record shows that the practices of pro se claimants and represented claimants practices differ, appellant cannot show an unconstitutionally difference in the treatment of those practices. 
Missouri Court of Appeals, Southern District - SD36596 and SD36597