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Case summaries for Oct. 13 - Oct. 19, 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 | Employment Security | Environmental | Family


No appeal from partial summary judgment 
All parties filed motions for summary judgment, on which the circuit court partially ruled, but denied both motions. Such a judgment is not final and subject to appeal because it disposed of less than all claims. Appeal dismissed.  
Kristal D. Fulton, Appellant, vs. Drive Rite, LLC, and Xcel Holdings, LLC, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111263


Marijuana conviction moot, others affirmed 
Appellate courts “will not use plain error to impose a sua sponte duty on the [circuit] court to correct Defendant’s invited errors.” On a charge of trafficking by possession, approved instructions require submitting a definition of possession, which did not happen. But failure to submit that definition constitutes error only when possession is in serious dispute, and a definition was included with other charges, so the circuit court’s failure to offer the instruction sua sponte did not constitute plain error.  As to a conviction for possession of marijuana, circuit court expunged the conviction, which renders moot the appeal of that conviction. The totality of the circumstances, supporting a finding that defendant constructively possessed a firearm, included: the discovery of the firearm in a dresser with defendant’s personal items, and evidence that no other occupant knew of the firearm. The Court of Appeals declines plain error review of the admission of evidence and a speedy trial because defendant showed no manifest injustice or miscarriage of justice.    
STATE OF MISSOURI, Plaintiff-Respondent v. KENNY JACKSON, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37762

Multiple acts, multiple convictions, no double jeopardy 
Double jeopardy is an affirmative defense. “Generally, constitutional issues must be raised at the earliest possible opportunity to be preserved for appellate review [unless] a double jeopardy allegation determinable from the face of the record [.]” When the face of the record shows multiple acts of statutory sodomy, no double jeopardy violation is determinable in one conviction per act, at least in the absence of some evidence that they occurred simultaneously. Convictions affirmed.  
STATE OF MISSOURI, Plaintiff-Respondent v. THAISEN PAUL OLLERICH, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37758

Sufficiency of the evidence means a submissible case 
Conflicting evidence of a charge or defense defeats a motion for acquittal at the close of all evidence. On appeal of a criminal conviction, an appellate court determines whether “any rational” fact-finder could find the defendant guilty beyond a reasonable doubt, looking solely at evidence supporting the conviction and disregarding contrary evidence. “In other words, if the evidence is sufficient for the case to be submitted to the trier of fact (because a trier of fact could reasonably find guilt), a sufficiency of the evidence challenge will invariably fail. Appellant’s failure to follow the analysis required of the challenges raised renders such portions of appellant’s brief analytically useless but an appellate court may review such challenges anyway. The circuit court’s statements at sentencing do not constitute findings of fact on guilt and do not amend the circuit court’s finding of guilt. The elements of involuntary manslaughter in the second degree include criminal negligence, meaning a gross deviation from a reasonable person’s standard of care, consisting of being unaware “of a substantial and unjustifiable risk that circumstances exist or [that] a result will follow [.]” Justifications include defense of another, the elements of which include defendant’s reasonable beliefs: that deadly force was necessary to prevent death or serious physical injury to another. The State has the burden of proof on both, to establish all elements of the offense and to negate one element of the justification, which it must carry beyond a reasonable doubt. Such proof included entering the curtilage of victim’s residence unlawfully, not in hot pursuit or fresh pursuit, and with no intention of arresting victim, and intentionally firing the gunshots into unarmed victim’s center mass that caused the victim’s death. Convictions for involuntary manslaughter in the first degree and armed criminal action affirmed.  
State of Missouri vs. Eric J. Devalkenaere 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85232

Employment Security

Appealing one decision does not appeal another 
The Labor and Industrial Relations Commission issued two separate decisions ruling that, respectively, claimant was ineligible for benefits received, and that claimant was therefore overpaid. Appealing the latter did not appeal the former. And on appeal from a decision of the Labor and Industrial Relations Commission, an appellate court can review only the matters determined by the Commission in that decision, and no other matters. Appeal dismissed. But even when an appellate court lacks jurisdiction, and respondent files a motion to dismiss, respondent should “always address the merits of the appellant’s points on appeal, rather than risk having this Court decide the case on the merits without the benefit of the respondent’s arguments.” 
Vivian DePaul, Appellant, v. Division of Employment Security, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111120


No authority for amended mining application pending AHC review 
Subject to a recommended decision on de novo review before the Administrative Hearing Commission, the Mining Commission administers the Mining Act, which provides that certain mining activities require the Mining Commission’s permit. A permit application must, by statute and regulation, include specified information. Such information includes all persons owning any interest in the mining site, and the written consent of any person necessary to grant access to the site, but the Mining Commission granted a permit without that information. A petitioner opponent of the application sought de novo review at the Administrative Hearing Commission. Applicant’s amendments to the application, during litigation at the Administrative Hearing Commission, did not cure the deficiency, because the Mining Commission had already lost authority over the application, except to add land to the permitted site. Petitioner prevailed in the recommended decision, which the Department of Natural Resources adopted as modified, holding that failure to provide the required information on the application was grounds for denial. Nevertheless, the Mining Commission’s decision was substantially justified, so the Court of Appeals denies the petitioner’s motion for litigation expenses. Because the decision granted the relief sought, the decision did not aggrieve the petitioner, and the petitioner had no standing to seek judicial review of the decision to the Court of Appeals.  
Nexgen Silica, LLC, Appellant/Cross-Respondent, vs. Missouri Department of Natural Resources, Respondent, and Operation Sand, LLC, Respondent/Cross-Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111424 and ED111428


Notice insufficient to terminate parental rights 
Rule allows circuit court to set aside a judgment within a reasonable time that is not more than a year. If the targeted judgment is not final, the procedure is a motion within the judgment’s action; and if the targeted judgment has already become final, an action under the rule constitutes a separate action. The standard is whether the targeted judgment is irregular, meaning “achieved in a manner materially contrary to the law’s established procedures for the orderly administration of justice [;]” and void, meaning without jurisdiction or contrary to due process. Rule required service of notice setting the trial date for termination of parental rights, but the record showed no such service, which required the circuit court to set aside the resulting judgment terminating parental rights. The circuit court erred in denying that relief. Reversed.  
IN THE INTEREST OF M.M.B., Reynolds County Juvenile Office, Respondent vs. S.D.B., Appellant 
Missouri Court of Appeals, Southern District - SD37865