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Case summaries for Dec. 22 - Dec. 29, 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 | Civil | Criminal | DWI | Employment Security | Evidence | Post-conviction | Probate


Prejudgment interest unresolved, judgment not final
Rulings subject to appeal include a final judgment, meaning a judgment that resolves all issues as to all parties. In an action for inverse condemnation, prejudgment interest begins to run on the date of the taking. Plaintiffs sought prejudgment interest, and the parties stipulated to the circuit court’s calculation of prejudgment interest at the statutory rate on any award of damages. But no such calculation, and no finding of fact on the date of the taking, appeared in the circuit court’s judgment, so the issue of damages remained unresolved, and judgment was not final. Appeal dismissed for lack of appellate jurisdiction.
Mary and Sherry Davis, Kevin Laughlin, David and Denise Kamm vs. City of Kearney, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD85669 and WD85670 and WD85688


New trial requires proof of prejudice
Rules allow circuit court to correct its own plain error sua sponte by granting a new trial. An order granting a new trial on one basis is deemed to reject any alternative basis, and is more likely to be affirmed than an order denying a new trial, but is subject to objections not raised in circuit court. The purpose of a new trial is for the circuit court to exercise “subsequent deliberate, unhurried consideration, to reverse the ruling it had made under the stress and pressure of trial urgency,” that is “so prejudicial that a party did not receive a fair trial.” No such prejudice arose from a comment about an exhibit that was used in questioning a witness but that the jury never saw. Because no manifest injustice occurred, the circuit court abused its discretion in granting a new trial.
Lisa J. Raley vs. Hy-Vee, INC.
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85971


Pardon erased conviction but not guilt
As protesters walked down the street past appellant’s house, appellant and appellant’s spouse, in an angry or threatening manner, exhibited firearms readily capable of lethal use. Those firearms were forfeited on appellant’s plea of guilty to a charge, reduced from felony unlawful use of a weapon, of misdemeanor fourth degree assault. A pardon eliminated the conviction, and any legal consequences of a conviction. But the pardon did not eliminate the guilty plea or facts to which appellant pleaded guilty, nor the consequences of the plea or facts. The plea and the facts, not the conviction, were the basis for the forfeiture, so the pardon did not support appellant’s action for replevin of the firearms. The plea bargain, including forfeiture in exchange for a lesser charge, waived defenses and “cleared the slate” of “interesting issues” like whether the Second Amendment applied to the facts, or the Castle Doctrine negated appellant’s guilt. No error in replevin procedure entitled appellant to possession of the firearms. A dispute in immaterial facts did not bar judgment on the pleadings. Judgment denying replevin affirmed.
Mark T. McCloskey, Appellant, vs. State of Missouri, Sheriff Vernon Betts, and Mayor Tishaura Jones, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111639

Conviction on an accomplice liability affirmed
Accomplice liability means that defendant may be liable for an offense without committing any element of that offense if defendant assisted another person to commit the offense. Evidence showing accomplice liability included research on homicide, driving the perpetrator to the crime scene, distracting victim while the perpetrator shot victim, false statements to law enforcement officers, and an unnaturally calm demeanor. Even a lay witness may testify to a common everyday conclusion, like defendant’s emotional state, based on personal observation of defendant’s demeanor: a “short-hand rendition” of a “composite impression.” Cumulative evidence is not prejudicial. The foundation for admitting evidence of internet searches from defendant’s phone requires authenticity, but authenticity does not require evidence that defendant conducted those searches, and the identity of the searcher goes only to the weight of the evidence. The circuit court did not err in submitting no instructions on lesser included offenses sua sponte, especially when defense counsel expressly repudiated lesser included offenses, and a later statutory amendment clarified and codified earlier case law. No plain error resulted when the circuit court refrained from intervening sua sponte in the prosecution’s closing argument that was based on an inference from the evidence.
State of Missouri vs. Nancy Sander
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85685

Destruction of evidence discussed
A criminal defendant has a due process right in evidence, but only if the evidence is exculpatory, and not merely relevant. The State is liable for a sanction depending on whether the evidence had one or both of two qualities: “[1] exculpatory value that was apparent before the evidence was destroyed [; 2] such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means [.]” For evidence that had only one such quality—potentially useful evidence—the State is liable only for bad faith destruction. For evidence that had both such qualities—materially exculpatory evidence—the State is liable regardless of good or bad faith. As to a police interview recording, comparable evidence includes a trial testimony, a transcript, and a copy. A copy’s defects were waived when not raised in circuit court. Defendant could not show bad faith when law enforcement officers followed procedure on destruction and preservation of evidence. Defendant did not show any prejudice from the circuit court’s ruling on defendant’s closing argument, sustaining the prosecution’s objections, which did not prevent the jury from hearing those arguments. The evidence was sufficient to support findings of guilt on charges of forcible rape and use of a child in a sexual performance. The use of a child in a sexual performance is a felony of class C or B depending on whether the State establishes “serious emotional injury” in the victim by expert evidence. Expert evidence on serious emotional injury is absent from the record, so Court of Appeals reverses a conviction for use of a child in a sexual performance class B felony, enters the judgment that the circuit court should have—conviction for use of a child in a sexual performance class C felony—and remands for re-sentencing.
State of Missouri vs. Stephen D. Turner
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84901


Original signature not needed
Facts showing that a law enforcement officer arrested driver include restraint of the driver and driver’s understanding that driver is not free to leave. When law enforcement officer encountered driver, driver was immobilized in an emergency room hospital bed after crashing driver’s car, so no further restraint was practical or necessary to make an arrest. Being informed of the arrest by words spoken and written, and by further procedure, told the driver that driver was not free to leave. Statutes make admissible all copies of documents certified over the Director of Revenue’s, or another custodian’s, signature; and define signature as whatever method the Director chooses for verifying a document, so an original is unnecessary.
David L. Kaercher, Appellant, vs. Director of Revenue, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111737

Employment Security

Judicial review of administrative dismissal explained
Statutes allow administrative review of an administrative law judge’s decision at the Labor and Industrial Relations Commission but set a deadline for filing the application for review. The Commission found that appellant’s application for review was late and dismissed the application for lack of authority to review the application on the merits. The Commission’s dismissal is subject to judicial review on timely filing of a notice of appeal in the Court of Appeals. Review of the record shows that the application was late. The result is not the Court of Appeals dismissing the notice of appeal. The result is affirming the Commission’s dismissal of the application. Because the Commission did not reach the merits of claimant’s application, the Court of Appeals does not address the merits of claimant’s application.
Lisa K. McKeever, Appellant, v. Provident, Inc., and Division of Employment Security, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111411


Business records statute applied to medical records
Statute allows the admission of business records into evidence over a hearsay objection upon a specified foundation, which includes the affidavit of a qualified witness, which requires knowledge of the recordkeeping process. The sponsor’s status as a patient at a medical facility did not signify knowledge of the facility’s medical recordkeeping process. The circuit court did not err in excluding appellant patient’s exhibit with patient’s affidavit.
State of Missouri, Respondent, vs. Paul Bolton, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111305


Misidentification strategy supported decisions at trial
A charge of ineffective trial counsel fails on a showing of reasonable strategy. Reasonable trial strategy included focusing on one defense to the exclusion of alternative defenses that required contradictory evidence. A defense of misidentification thus excludes a defense that defendant was at the scene but did not commit the offense charged. Impeaching the identification process required displaying mugshots of movant that were less distinctive than that used to identify movant. A viable defense is a defense that negates an element of the offense charged, which evidence that victim’s DNA was on victim’s property would not have done.
Adrian R. Washington, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111393

One strategy may preclude others
Relief for ineffective assistance of counsel requires proof that prejudice to movant’s defense resulted from counsel’s substandard performance. Substandard performance never occurs upon the failure to make a meritless objection. That described an objection that trial counsel did not make to the State’s inquiry expanding on defendant’s testimony; defendant opened a door for the State. Reasonable strategy includes focusing on one defense theory to the exclusion of others, like self-defense to the exclusion of mental health issues. “[T]he defense strategy chosen during the guilt phase determines the evidence that trial counsel can credibly present to the jury during the penalty phase [.]” As to failure to call a witness, trial counsel testified that he had never heard of that witness, and the circuit court found that testimony credible.
Jordan D. Stuckey, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111093


No appeal from set-aside of default
Statutes provide that the probate division may rule on specific execution of contracts and allow an appeal from such a ruling, but that does not mean a judgment setting aside a consent judgment on such a claim, because setting aside the consent judgment re-instates the claim and leaves it unresolved. For that reason, statutes allowing an appeal from a personal representative’s settlement, or the denial of a claim, also do not apply. Whether the underlying settlement agreement is subject to enforcement is not on appeal. Motion to dismiss the appeal granted.
In the Matter of Ashlee Nicole Huelsing.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111300