Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was charged with and convicted of animal abuse under Sec. 578.012 and with violation of a county ordinance regarding vaccination of animals. At trial, an animal care official (“Expert”) testified about the conditions in which the animals were found and that “animal abuse” occurred.

Holding: (1) It was proper for Expert to testify about the inadequate conditions in which the animals lived, such as inadequate food and water. The State, however, asked Expert whether “animal abuse” occurred. “Animal abuse” includes the element of whether the Defendant knowingly failed to provide adequate care for the animals. To the extent that Expert’s testimony could be interpreted as Expert testifying that Defendant knowingly failed to provide adequate care, it exceeded his expertise and invaded the province of the jury. However, court finds the error harmless here in light of other evidence. (2) The State failed to prove guilt of the county ordinance violation because the State failed to introduce it into evidence. Sec. 479.250 and subsequent cases require that municipal and county ordinances be introduced into evidence either by formal presentation or by stipulation. A court cannot judicially notice an ordinance. The ordinance is an essential element of proof. No misconduct can be shown or conviction proven without it. The State’s evidence being insufficient, it would violate double jeopardy to re-try Defendant on the county ordinance violation, so that conviction must be vacated.
* Perry v. New Hampshire, ___ U.S. ___, 90 Crim. L. Rep. 500 (U.S. 1/11/12):

Holding: Eyewitness identifications are not subject to suppression unless police arranged the suggestive circumstances; however, defendants may counter identifications with cross-examination, expert testimony, and jury instructions on the reliability of eyewitness identification.
U.S. v. Meises, 89 Crim. L. Rep. 257, 2011 WL 1817955 (1^st Cir. 5/13/11):

Holding: Even though Officer actually participated in the drug sting, this did not make his “overview testimony” about the sting about which he had no personal knowledge admissible; this was still hearsay and inadmissible lay opinion testimony.
U.S. v. Hampton, 93 Crim. L. Rep. 542, 2013 WL 3185044 (D.C. Cir. 6/25/13):

Holding: FBI agent should not have been permitted to testify as to the meaning of several cryptic phone calls because this was improper lay opinion testimony.
Minor v. U.S., 2012 WL 6617802 (D.C. 2012):

Holding: Expert testimony about unreliability of eyewitness identification should have been allowed.
Fisher v. Ozaukee County Circuit Court, 2010 WL 3835098 (E.D. Wis. 2010):

Holding: Trial court’s application of general law prohibiting admission of preliminary breath test (PBT) results so as to preclude defense expert from testifying that Defendant’s BAC would have been lower violated right to present a defense.
State v. Favoccia, 92 Crim. L. Rep. 6 (Conn. 9/21/12):

Holding: State cannot present expert in child sex abuse case to testify that victim exhibits behavioral characteristics of an abused child.
State v. Victor O., 2011 WL 2135671 (Conn. 2011):

Holding: Results of an Abel Assessment of Sexual Interest (Abel test), which purports to show sexual interest minors, were not sufficiently reliable in a nontreatment context to be admitted in criminal case.
Harris v. State, 89 Crim. L. Rep. 177 (Fla. 4/21/11):

Holding: For drug dog evidence to be admissible, State must not only show that dog had proper training and certification, but also evidence that particular dog is reliable; State failed to show this where there was no evidence of field performance records about the dog at issue or about dog’s performance on false alerts. Tennessee issued a similar ruling in State v. England, 19 S.W.3d 762 (Tenn. 2000).
Hoglund v. State, 2012 WL 759416 (Ind. 2012):

Holding: Although the conviction was affirmed, the Indiana Supreme Court overruled prior case law to hold that testimony concerning whether an alleged child victim is not prone to exaggerate or fantasize about sexual matters is a functional equivalent of saying the child is telling the truth, and is thus inconsistent with the rule of evidence prohibiting witnesses from testifying as to whether another witness testified truthfully.
State v. Hutson, 92 Crim. L. Rep. 498 (Iowa 1/25/13):

Holding: Where Defendant was charged with child endangerment, a DFS worker should not have been permitted to testify that child abuse report against Defendant was administratively determined to be “founded.”
Com. v. Heang, 88 Crim. L. Rep. 594 (Mass. 2/15/11):
Holding: Ballistics expert should avoid testifying that ballistics matches have more certainty than they do, and should avoid terms like “absolute certainty” and “reasonable degree of scientific certainty,” but can say “reasonable degree of ballistic certainty.”
People v. Kowalski, 2012 WL 3078584 (Mich. 2012):

Holding: Expert testimony regarding false confessions and interrogation techniques may be admissible in some cases, because this is beyond the common knowledge of ordinary persons.
State v. Langill, 88 Crim. L. 292 (N.H. 11/30/10):

Holding: Hearsay rule prohibited fingerprint examiner from testifying that her fingerprint results were confirmed by a second examiner, even though the ACE-V method requires two examiners to compare results.
State v. McLean, 89 Crim. L. Rep. 68 (N.J. 3/31/11):

Holding: Officer cannot testify as “lay opinion” that a series of roadside transactions involving Defendant looked like drug deals since this invaded fact-finding province of jury.
People v. Williams, 2013 WL 1195635 (N.Y. 2013):

Holding: Expert testimony discussing Child Sexual Abuse Accommodation Syndrome (CSAAS) could not be tailored to facts of the case through use of hypotheticals, because this left impression that the expert had found the testimony of victim to be credible.
People v. Bedessie, 2012 WL 1032738 (N.Y. 2012):

Holding: In a proper case, although not this one, expert testimony on the phenomenon of false confessions should be admitted in a criminal trial.
State v. King, 2012 WL 22136832 (N.C. 2012):

Holding: A lay witness can testify that they did not recall, forgot or had no memory of an incident, but cannot testify that they had “repressed” or “recovered” memory unless an expert testifies to this.
State v. Lawson, 92 Crim. L. Rep. 266 (Or. 11/29/12):

Holding: Noting that the rules followed by most state courts on eyewitness identification need updating, the court adopts new procedures that encourage expert testimony and jury instructions based on scientific research addressing the reliability of eyewitness identification.
State v. Kromah, 92 Crim. L. Rep. 500, 2013 WL 239070 (S.C. 1/23/13):

Holding: Forensic interviewers and nurses in child sex abuse cases should not be permitted to testify that the child was told to be truthful; to an opinion that the child told the truth; that any interview tests (such as the RATAC method of interviewing) or other statements showed a “compelling findings” of abuse; that the child’s behavior indicated the child was telling the truth; or any statement to indicate to the jury that the interviewer believes the child’s allegations.
In re Commitment of Bohannan, 2012 WL 3800317 (Tex. 2012):

Holding: Even though proffered defense expert in SVP civil commitment case was not a psychologist or medical doctor, she should have been allowed to testify where she had a Ph.D. in family science and therapy, was a sex offender treatment provider, and the SVP statute did not require that an expert be limited to psychologists or medical doctors.
State ex rel. Montgomery v. Whitten ex rel. County of Maricopa, 2011 WL 29828725 (Ariz. Ct. App. 2011):

Holding: Treating physicians who testified about treating child murder victim did not call for type of “expert testimony” for which they had to be compensated.
Lear v. Fields, 2011 WL 102572 (Ariz. Ct. App. 2011):

Holding: Statute which adopted Daubert test for expert testimony violated separation of powers because Arizona courts had rejected Daubert.
People v. Covarrubius, 2011 WL 6350541 (Cal. App. 2011):

Holding: Expert testimony regarding structure and practices of drug trafficking organizations was improper, absent evidence connecting drug defendant to such an organization.
People v. Cortes, 2011 WL 83732 (Cal. App. 2011):

Holding: Trial court abused discretion in limiting psychiatrist’s testimony about Defendant’s diminished capacity to abstract conditions and their effect on the general population, rather than discussing Defendant’s condition specifically as applied to Defendant.
Simpson v. State, 2013 WL 5354206 (Md. Ct. Spec. App. 2013):

Holding: Officer’s testimony in arson case regarding his observations of a dog that had been trained to detect accelerants was “expert testimony” subject to expert testimony rules; thus, this Witness should have been identified prior to trial as an expert and the court should have had to rule on whether he was an expert.
Payne v. State, 2013 WL 706913 (Md. App. 2013):

Holding: Officer’s lay testimony regarding details of cell phone tower tracking of Defendant was inadmissible because Officer was not qualified as an expert.
State v. Granskie, 2013 WL 5629000 (N.J. App. 2013):

Holding: Defendant can present expert psychiatric testimony about the impact of his opiate addiction and withdrawal symptoms on the reliability of his confession; a lay person may not understand the effects of withdrawal on an addict.
State v. Davis, 2010 WL 4608698 (N.C. Ct. App. 2010):

Holding: “Odor analysis” by which BAC was determined using Officer’s report of smelling alcohol on Defendant 10 hours later was not sufficiently reliable to be admissible.
State v. Cordovoa-Contreras, 2010 WL 4867534 (Or. Ct. App. 2010):

Holding: Physician’s “diagnosis” of “sexual abuse” was inadmissible absent supporting physical evidence; physician had not discovered any physical signs of abuse and his testimony was an impermissible comment on child’s credibility.

Ex Post Facto
State v. Wade, 2013 WL 6916794 (Mo. banc Dec. 24, 2013):

Since Article I, Sec. 13’s ban on “retrospective” laws applies only to “civil laws,” it does not apply to Sec. 566.150, which is a “criminal law” which prohibits certain sex offenders from knowingly being in or loitering within 500 feet of a park with playground equipment or a public swimming pool. Therefore, Sec. 566.150 applies to sex offenders who were convicted of their crimes before enactment of the statute.

Facts: Various sex offenders, who were convicted of their offenses in the 1990’s, were charged with violation of Sec. 566.150, which prohibits certain sex offenders from “knowingly be[ing] present in or lotier[ing] within 500 feet of any real property comprising any public park with playground equipment or a public swimming pool.” They claimed Sec. 566.150 was an unconstitutional “retrospective” law, as applied to them, because they were convicted of their offenses before enactment of the law.

Holding: State v. Honeycutt, No. SC92229 (Mo. banc 11/26/13), recently held that Article I, Section 13’s ban on “retrospective” laws does not apply to “criminal laws,” but only to “civil laws.” The question here is whether Sec. 566.150 is “civil” or “criminal.” This is a two-part test: First, whether the legislature intended the statute to affect civil rights and remedies, or criminal proceedings. If the legislature intended to impose “punishment,” that ends the inquiry. But if the legislature intended the law to be a “civil” regulatory scheme, the Court must determine if the scheme is “so punitive in purpose or effect as to negate the intention to affect civil rights or remedies.” To analyze the effects of regulation, this Court asks whether the regulatory scheme (1) has been regarded historically as punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to the nonpunitive purpose. Sec. 566.150 is part of the criminal code, appears on its face to be criminal, and does not explicitly state that it has the purpose of protecting the public by alerting the public to sex offenders in the area. The statute uses criminal language – “shall not knowingly be present.” It also proscribes a penalty, Class D felony, that increases to a Class C felony on a second violation. Most important, Sec. 566.150 does not depend on a sex offender’s registration status. In fact, the statute does not reference the registration list. An offender is guilty of violating 566.150 independently of any duty to register, if he has committed certain listed offenses. Therefore, 566.150 is “criminal” in nature, and Article I, Sec. 13 does not apply. Although not before the Court, the issue of whether 566.150 violates ex post facto would not be successful. 566.150 makes it a crime for certain prior offenders to loiter near or be present in certain parks. The conduct of the Defendants here in being near the parks all occurred after enactment of 566.150, so there is no ex post facto violation. R.L. v. Dep’t of Corrections, 245 S.W.3d 236 (Mo. banc 2008), held that a law prohibiting certain sex offenders from living within 1,000 of a school or child-care facility was “retrospective” to offenders who were convicted before enactment of that law. F.R. v. St. Charles County Sheriff’s Dep’t, 301 S.W.3d 56 (Mo. banc 2010), held that a “Halloween law” which prohibited certain sex offenders from engaging in Halloween activity was “retrospective” to offenders who were convicted before enactment of that law. “To the extent that R.L. and F.R. conflict with Honeycutt due to their failure to perform any analysis to determine whether the statute being challenged was a criminal law, they should no longer be followed.”

Concurring Opinion: Three judges join in a concurring opinion to “express concern” about the Court’s “increased willingness” to characterize a law as “criminal” or “civil” merely from where it is placed in the RSMo. codification system. These judges note that where a statute is ultimately placed in RSMo. is determined by the Joint Committee on Legislative Research, not necessarily the Legislature as a whole. “Until recently, this Court had a long and unblemished record of refusing to recognize any probative value in the codification or structure of legislative enactments on the question of statutory construction.”

Dissenting Opinion: Three judges would hold that Sec. 566.150 is a “civil” regulatory scheme subject to application of the ban on “retrospective” laws. Just as sexual predator and registration laws have been held to be “civil,” even though they require incarceration, so, too, should this law be regarded as “civil.”

State v. Honeycutt, 2013 WL 6188568 (Mo. banc Nov. 26, 2013):

Article I, Sec. 13’s ban on “retrospective” laws does not apply to criminal laws; thus, since Sec. 571.070.1(1)’s ban on possession of firearms by felons is a “criminal” law, the statute is not unconstitutionally retrospective as applied to person whose prior felony pre-dated the statute.

Facts: Defendant was charged with being a felon in possession of a firearm, in violation of Sec. 571.070, which became effective in 2008. His prior felony was for drug possession in 2002. He claimed that Sec. 571.070 was unconstitutionally “retrospective” as applied to him, because his prior felony conviction pre-dated the law.

Holding: The U.S. Constitution and Missouri Constitution prohibit “ex post facto” laws. However, only a handful of state constitutions, such as Missouri’s, also prohibit “retrospective” laws. A historical review of the term “retrospective” laws shows that it had a technical meaning at the time the constitution was adopted that limited its reach only to statutes affecting civil rights and remedies; the term was never intended to apply to criminal laws. The term has a separate meaning than ex post facto laws. In R.L. v. Dep’t of Corrections, 245 S.W.3d 236 (Mo. banc 2008) and F.R. v. St. Charles Cnty. Sheriff’s Dept., 301 S.W.3d 56 (Mo. banc 2010, this Court found that laws prohibiting certain sex offenders from living within 1,000 of a school or child-care facility and imposing restrictions on what sex offenders can do on Halloween were “retrospective” in operation. R.L. and F.R. did not expressly address whether Article I, Sec. 13 applies to criminal laws. This Court presumed the laws in those cases to be “civil,” even though the laws carried criminal penalties. The determination of whether this Court’s treatment of the statutes in R.L. and F.R. as civil in nature was accurate is not before the Court in this case. This Court will analyze that issue only when it is properly preserved and presented on appeal. To determine if a law is “criminal” or “civil” in nature, we must ascertain whether the legislature meant the statute to establish “civil” proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. But if the intention was to enact a regulatory scheme that is civil and nonpunitive, we must examine whether the scheme is so punitive either in purpose or effect as to negate the intention to deem it “civil.” This Court has held that sex registration laws are “civil” and “non-punitive,” even though they have a punishment for not complying with them. The gun statute at issue here, however, appears on its face to be a “criminal” statute. The statute is in the criminal code, and is the type that has traditionally been regarded as punishment. Therefore, Article I, Sec. 13’s ban on “retrospective” laws does not apply to it.

Concurring Opinion: The statutes at issue in R.L. and F.R. sought to regulate the actions of sexual offenders by punishing them for engaging in conduct – such as giving out Halloween candy or living near schools or parks – that is perfectly acceptable if performed by persons who are not sex offenders, and it was because of this “regulatory effect” that the laws addressed in these two cases were held invalid.
State v. Harris, 2013 WL 5460639 (Mo. banc Oct. 1, 2013):

Holding: Statute banning felons from possessing firearms, Sec. 571.070, is not an ex post facto law because it does not apply to conduct that occurred before its enactment, but only punishes possession of firearms after its enactment (even though the prior felony may have occurred before enactment).
State v. Davis, No. SC91368 (Mo. banc 8/30/11):

Supreme Court – on procedural grounds -- upholds trial court’s ruling that Sec. 566.150 (which creates the crime of sex offenders being in certain parks), is retrospective as applied to offenders who committed their sex offenses before the effective date of the law; Supreme Court holds that the State failed to preserve claim that ban on retrospective laws applies only to civil laws, and not criminal laws.

Facts: Defendant was convicted of sex offense in 1983. Under SORNA, he has to register as a sex offender in Missouri. Sec. 566.150 makes it a Class D felony for a registered sex offender to knowingly be present or loiter within 500 feet of a public park that contains playground equipment or a public swimming pool. Sec. 566.150 became effective in August 2009. In 2010, Defendant was charged with violating Sec. 566.150. He filed a motion to dismiss, claiming that Sec. 566.150 violated the Mo. Constitution’s ban on retrospective laws as applied to him because his sex conviction was before the law’s effective date. The trial court granted the motion to dismiss. The State appealed.

Holding: The State claims that the prohibition on retrospective laws in Art. I, Sec. 13 applies only to civil statutes, and that Sec. 566.150 is a criminal statute. However, the State never presented this issue to the trial court, and cannot raise it for the first time on appeal. That issue is not preserved for appeal, and is not reviewed. Dismissal affirmed.
State v. Miller, No. WD71175 (Mo. App. W.D. 6/21/11):

(1) Where there was no evidence presented that Defendant touched victim’s genitals through clothing, the evidence was insufficient to convict of first degree child molestation; (2) conviction can only be upheld if evidence supports the offense as instructed in the jury instruction, and not just any action illegal under the statute; and (3) where Defendant was charged with sexual acts that occurred in 1997 and 1998, the applicable statute was Sec. 566.010(3) RSMo 1994, which did not criminalize touching through clothing and application of the subsequent law to Defendant would violate ex post facto.

Facts: Defendant was convicted of first degree child molestation for acts which occurred in 1997 and 1998. The jury instruction instructed jurors to convict if defendant touched the genitals of victim through clothing.

Holding: The State argues that Defendant’s conviction can be upheld if the evidence supports any of the methods of committing first degree child molestation, but this is a wrong statement of law. The method of the charged offense is an essential element of the crime. To allow a conviction on a method never submitted to the jury would effectively deny Defendant of his right to a jury trial on the offense as charged. Here, there was no evidence submitted that Defendant touched victim though clothing, so the evidence is insufficient. Further, the offense here is governed by Sec. 566.010(3) RSMo 1994, which did not criminalize touching through clothing. The law was later amended to cover touching through clothing but it would be ex post facto to apply the law enacted after the offense to Defendant. Conviction reversed.
State v. Sharp, No. WD71895 (Mo. App. W.D. 5/31/11):

Where Defendant was charged in 2007 with “assault on a corrections officer,” but the assault statute did not include “corrections officers” until 2009, Defendant could not be convicted of such offense, but because all elements of misdemeanor assault were established, appellate court enters conviction for misdemeanor assault.

Facts: In June 2007, Defendant pushed a lit cigarette into a corrections officer’s hand at a prison. He was charged and convicted of second degree assault on a corrections officer.

Holding: Defendant contends that his conviction violates his rights to due process and to be free from ex-post facto laws. In June 2007, the assault statute, Sec. 565.082.1(2), did not list “corrections officers” among the class of persons protected under the statute. In 2009, the statute was amended to include them. Because of the amendment, it is presumed that the legislature did not intend “corrections officers” to be covered by the prior statute. Hence, the court erred in finding Defendant guilty of second degree assault under 565.082. However, because all the elements of third-degree assault were proven, appellate court enters conviction for third-degree misdemeanor assault.