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Case summaries for Feb. 7 - Feb. 13


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 | Evidence | Local Government | Orders of Protection | Personal Injury | Post-Conviction


Appellant Must Address Substantial Evidence
An appeal based on lack of substantial evidence must “confront and dispel the probative value attending [all the record’s substantial supporting] evidence and inferences.” Failure to do so results in denial of the point relied on. 
D.D.W., Respondent v. M.F.A., Appellant
Missouri Court of Appeals, Southern District - SD36177


Persistent Offender Status Is for Previous Offenses
On a charge of assault, statute enhances sentence, but only for assaults that occurred before the one charged. An objection to closing argument that is not sufficiently specific waives all but plain error review.
Missouri Court of Appeals, Southern District - SD36013

Comfort Item Allowed
Child Witness Protection Act facilitates better testimony from children, by allowing child witnesses to testify accompanied by a comfort item, which may include “Sully, a comfort dog of the . . . Prosecutor’s Office” with due regard to necessity for and visibility of the dog. Evidence that children were in the direction of shots that appellant drunkenly fired supported instructions and convictions on child endangerment. Verdict director in a multiple acts case must distinguish among incidents submitted to ensure a unanimous verdict, but three shots endangering target and nearby children constituted one assault incident of assault and child endangerment. Missouri Constitution protects the right to a unanimous verdict “as to the ultimate issue of guilt or innocence, [not] as to the means by which the crime was committed.” The difference between charge of assault in the first degree and requested instruction on assault in the second degree was “the influence of sudden passion arising out of adequate cause.” The latter had support in the evidence so, though not a nested offense, an instruction was due on request. The State’s suggestion of remand for trial with the lesser included offense, but with no option for acquittal, “defies the basic concept of American and English jurisprudence: the presumption of the innocence of every person charged with a crime. This is not a procedural presumption, but substantive, and there is no exception.”
State of Missouri, Respondent, vs. Albert Welch, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED106820


Foundation for Implied Consent Discussed
On judicial review of an administrative revocation for refusal to take a test, circuit court determines only whether driver refused a test when stopped by an officer having reasonable grounds to believe that the driver was driving while intoxicated. Drivers implicitly consent to a test for alcohol by driving on Missouri’s public highways, which do not include fast food parking lot where appellant was intoxicated, but do include the roads to get there, so the evidence supported an inference that appellant drove on a public highway while intoxicated.
Bryan Goforth vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD82604

Maintenance Report More than Okay
Statutes, on judicial review of an administrative revocation for driving with 0.08 blood alcohol, require proof of alcohol content by a breath analyzer maintained according to regulations. Regulations require a report of any changes made to breath analyzer when a new one goes into use; a currently used one goes into service at a new place, or a currently used one is serviced; or no more than 35 days from the last report. Officer’s testimony qualified his report under more than one of those categories, and appellant did not show otherwise.
Michael Stehwien vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD82574


Rape Shield Law Explained
Witness’s testimony about the propriety of appellant’s attempted action explained the witness’s own action and “was arguably not a lay opinion at all [.]” If that testimony was a lay opinion, it was admissible as a conclusion that jurors could draw from common experience based on facts known to the witness. Any error in that ruling could not produce cumulative error in the absence of other error. Appellant’s defense was victim’s consent. No Confrontation Clause issue arose when circuit court barred appellant from cross-examining a third party about that third party’s sexual contact with victim. A gap in victim’s memory as to victim’s consent gives rise to two inferences: that victim gave no consent, or that victim gave consent but does not remember. The latter inference precludes a conviction under the “equally valid inference rule” or “two inference rule,” but Missouri has abolished that rule, and an appellate court now looks only for evidence to support the fact-finder's choice of inference. Rape Shield Law governs cross-examination of the victim only, so it did not bar the State from offering evidence and argument that appellant had been subject to sexual assault the day before. State’s closing argument may address witness credibility, so the State could say that acquittal could follow only from a determination that victim fabricated everything. Circuit court did not err in barring appellant from elaborating on the meaning of reasonable doubt by visual aid.
State of Missouri vs. Austin Joseph Campbell
(Overview Summary)
Missouri Court of Appeals, Western District - WD82209


Child Support Credits Due for Court-Ordered Items Only
Bias means an inclination based on an extra-judicial source, so rulings against appellant that have support in the record do not show bias. Appeal of a contempt judgment is premature until execution on a fine or issuance of a warrant for commitment. The foundation for entering an audio recording into the record includes evidence that the recording is "authentic and correct.” Credit for children born after the decree of dissolution applies to an increase in child support, but not a decrease, regardless of which party initiated the action for modification. Credit for insuring children and overnight visits applies only to court-ordered insurance and overnights. Circuit court did not abuse its discretion in refusing to deny payment for guardian ad litem who “conducted a thorough and independent review of all the records and evidence in this case, communicated with both Mother and Father in person and through e-mail, and visited the minor children on multiple occasions.” Appellant’s bad faith protraction of litigation supported an award of attorney fees against him. Error is not grounds for reversal unless appellant shows prejudice, meaning a material effect on the merits, which is practically impossible to show in a bench trial. No prejudice occurred when challenged evidence of appellant’s mental health was cumulative of other evidence of appellant’s mental health. The record on appellant’ mental health supports the circuit court’s findings, which support the court’s conclusions on children’s best interest.
Victoria L. Frawley vs. Matthew J. Frawley
(Overview Summary)
Missouri Court of Appeals, Western District - WD82442

Local Government

County Commission Mandated to Fund Circuit Court
Separation of powers protects the judiciary from interference in employment decisions including by underfunding employees. The statutes provide that, on receipt of the circuit court’s cost estimate, the county commission must fund that amount unless the county commission seeks relief from the judicial finance commission. Mandamus issues to compel appropriation of funds.
Twentieth Judicial Circuit of the State of Missouri, By the Honorable Isidore I. Lamke, Presiding Judge, Relator, vs. The Board of Commissioners of the County of Franklin, State of Missouri; Tim Brinker, Presiding Commissioner; Todd Boland, First District Commissioner; Dave Hinson, Second District Commissioner; and Tammy Vemmer, Auditor of the County of Franklin, State of Missouri, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108658

Orders of Protection

Harassment Shown
Appellant’s repeated appearances near children’s school and home, when respondent was transporting children, constituted evidence of harassment. Harassment is a type of domestic violence against an ex-spouse and supports an order of protection. “Unlike stalking, harassment does not require proof the conduct placed the petitioner in fear of danger of physical harm.” Conduct barred by judgment serves no legitimate purpose. Circuit court must determine the potential for violence, in part by observing witness demeanor, for which circuit court’s lengthy experience with the parties was especially suited.
A.O., Respondent, vs. V.O., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107707

Personal Injury

Later Remedial Measures Admissible
The rule excluding post-injury remedies to a hazard exists to encourage remedies for hazards known only post-injury. City had pre-injury knowledge of the hazard, as shown by city’s pre-injury plan to remedy that hazard. Rule excluding post-injury repairs was therefore no bar to evidence of pre-injury plan, and circuit court’s exclusion of that evidence prejudiced appellant. Evidence of another, earlier injury, was admissible to show that the city had notice of the hazard. Rule on plain error does not cure the absence of a timely objection. Appellant showed no error from circuit court’s exclusion of “extremely” and “hazard” from a witness’s report.
Patricia Watson, Appellant, vs. City of St. Peters, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107780


Ineffective Plea Negotiations Not Shown
Movant rejected an earlier plea offer and eventually accepted a later plea offer. Movant argued that the later plea offer could have been better but for failures of plea counsel, but did not prove that allegation. No law required plea counsel to convey offers to prosecution. Movant did not show that plea counsel failed to convey offers to prosecution. For a conflict of interest to render counsel ineffective, the conflict must be actual, not merely potential, and have an adverse effect.
KIMBERLY K. COOK, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD35979