Case Law Update: 2011-2014 Cumulative Edition

Holding: Where Juvenile was charged with second-degree assault, Sec. 565.060.1(2) for knowingly causing physical injury by means of a dangerous instrument, trial court plainly erred in convicting her of second –degree assault under Sec. 565.060.1(3) for recklessly causing serious physical injury, because this violated Juvenile’s rights to notice of the charged offense and to be convicted only of the charged offense, since second-degree assault under Sec. 565.060.1(3) is not a lesser-included offense second-degree assault under Sec. 565.060.1(2). This is because it is possible to cause mere “physical injury” without causing “serious physical injury.”
State v. Evans, 2014 WL 4832217 (Mo. App. E.D. Sept. 30, 2014):

(1) A hand or a fist is not a “dangerous instrument” for purposes of the ACA statute, so cannot support a conviction for ACA; and (2) trial court abused discretion in admitting a Facebook photo of Defendant apparently making a gang symbol with his hand, where Defendant’s identity was not an issue in case.

Facts: Defendant, using his fists, beat up victim outside a bar, causing serious injuries. Defendant was convicted of first degree assault and ACA. At trial, a Witness to the fight testified that he learned Defendant’s name after the fight by seeing Defendant on Facebook. The State then admitted the Facebook photo, which showed Defendant apparently making a gang symbol with his hand.

Holding: (1) Sec. 571.015.1 provides that a person is guilty of ACA when that person commits another felony through use of a “dangerous instrument.” “Dangerous instrument” is defined in Sec. 566.061(9) as any instrument which under the circumstances is readily capable of causing death or serious physical injury. The issue here is whether a body part can be a “dangerous instrument.” A common-sense definition and reading of “instrument” indicates an external object or item, rather than part of a person’s body. The dictionary defines “instrument” as a “tool or implement.” Body parts are not normally called “tools or implements.” This interpretation is consistent with the pre-1979 version of ACA, which required the use of actual weapons. The Legislature intended to impose additional punishment on people who felonies with an item or weapon, rather than those who just use their hands. Interpreting “dangerous instrument” to include body parts would unduly expand the reach of the ACA statute, and result in a significant departure from the historical intent of enhanced punishment. ACA conviction vacated. (2) Regarding the Facebook photo, it should not have been admitted because Defendant’s identity was not contested at trial. The defense was self-defense. The photo was irrelevant, and more prejudicial than probative because of its apparent gang affiliation, which was not an issue at trial. However, the photo was harmless due to overwhelming evidence of guilt.
State v. Murphy, 2014 WL 4832262 (Mo. App. E.D. Sept. 30, 2014):

A hand or a fist is not a “dangerous instrument” for purposes of the ACA statute, so cannot support a conviction for ACA.

Facts: Defendant hit elderly Victim with his fists as part of a “knockout game.” Victim died. Defendant was convicted of second degree murder, first degree assault, and two counts of ACA.

Holding: For the reasons stated in State v. Evans, 2014 WL 4832217 (Mo. App. E.D. Sept. 30, 2014), a hand or fist is not a “dangerous instrument” for purposes of the ACA statute. The plain meaning of the word “instrument” does not include a body part. Such an interpretation is consistent with the historical intent and use of the ACA statute. ACA convictions vacated.
In the Interest of: T.P.B., 2014 WL 4411669 (Mo. App. E.D. Sept. 9, 2014) & In the Interest of J.L.T., 2014 WL 4411679 (Mo. App. E.D. Sept. 9, 2014):

Where Defendant-Juvenile was charged with second degree assault for “knowingly causing physical injury to another person by means of a dangerous instrument,” Sec. 565.060.1(2), but trial court found Defendant guilty of second degree assault for “recklessly causing serious physical injury to another person,” Sec. 565.060.1(3), this violated Defendant’s rights to notice of the charged offense and to prepare a defense, since recklessly causing serious physical injury is not a lesser-included offense of knowingly causing physical injury by means of a dangerous instrument.

Facts: Defendant-Juveniles were charged with second degree assault for knowingly causing physical injury by means of a dangerous instrument, Sec. 565.060.1(2). The trial court found Defendants guilty of recklessly causing serious physical injury to another person, Sec. 565.060.1(3).

Holding: An uncharged offense is a “nested” lesser-included offense if it is impossible to commit the charged offense without necessarily committing the uncharged offense. To commit the uncharged offense, Defendants must have committed “serious physical injury.” But to commit the charged offense, Defendants need only have caused an ordinary “physical injury.” Because it is possible to commit an ordinary physical injury without causing serious physical injury, it is possible for Defendants to have committed the charged offense without committing the uncharged one. Thus, Sec. 565.060.1(3) is not a lesser-included offense of Sec. 565.060.1(2). The trial court violated due process by convicting of an uncharged offense. Defendants discharged.
State v. Glass, 2014 WL 4289102 (Mo. App. E.D. Sept. 2, 2014):

(1) Even though Defendant claimed ownership of some drug paraphernalia, evidence was insufficient to support attempted manufacture of meth or possession of meth where the meth evidence was located in a van and outbuildings “within a block” outside a residence where Defendant was living with his parents; (2) Even though there was a gun in Defendant’s parents’ bedroom, evidence was insufficient to prove felon-in-possession where there was no evidence that Defendant jointly controlled the gun or had regular access to the bedroom.

Facts: Defendant was convicted of attempted manufacture of meth, possession of meth, and felon-in-possession of a firearm. Police found drug paraphernalia in Defendant’s parents’ living room. Most of the paraphernalia was of a type used with marijuana, but a pipe was of a type used with meth, although no actual meth was found in the living room. Defendant claimed ownership of the paraphernalia. Police also found a gun in Defendant’s parents’ bedroom. Finally, police found various materials for manufacturing meth in a van, tent and shed on the property “within a city block” of the residence.

Holding: The evidence is insufficient for all convictions. Attempted manufacture of meth requires proof that (1) Defendant combined chemicals and meth precursors with paraphernalia, and (2) Defendant did so with the purpose of making meth. Here, the only evidence connecting Defendant with the meth materials outside the home was the fact that Defendant lived in the home with his parents. The pipe in the living room was for consumption of meth, not manufacturing it. There was no meth in the living room. There was no testimony by anyone who had allegedly seen Defendant make or consume meth. There was no evidence as to who owned the materials found in the van, tent or shed. Regarding possession of meth, there was no meth found in the living room, and Defendant was not in close proximity to the meth found outside in the van, tent or shed, such as to support an inference of knowledge. Regarding felon-in-possession, there was no evidence of who used or owned the gun in the parents’ bedroom. There was no evidence that Defendant had joint constructive possession of the gun or that he had routine access to the bedroom. The State argues that Defendant has joint control over the gun “simply because his parents did not remove [it] from the home.” However, “this is not the law in Missouri.” Defendant discharged.
City of St. Peters v. Roeder, 2014 WL 22468832 (Mo. App. E.D. June 3, 2014):

Holding: (1) City’s “red light” ordinance is invalid because conflicts with state law since ordinance does not require assessment of points against license; and (2) even though City claims appellate court can enter a conviction for violation of a different City ordinance, this rule applies only where evidence of a greater offense is held insufficient on appeal, but here, the “red light” ordinance is found invalid under state law; this is not a matter of evidentiary insufficiency.
State v. Brooks, 2014 WL 606526 (Mo. App. E.D. Feb. 18, 2014):

Even though Defendant gave bank teller a note demanding money and slammed his hand on the counter when teller left to get money, the evidence was insufficient to convict of second degree robbery, Sec. 569.030, because these actions did not constitute use or threatened use of physical force to obtain the property.

Fact: Defendant handed bank teller a note that said, “Fifties, hundreds, no bait money, and bottom drawer.” When teller began to walk away, Defendant slammed his hand down on counter and said “get back here.” Teller said she had to leave to get money. She ultimately gave Defendant money, and he left the bank. He was arrested shortly thereafter, with the bank money. He was convicted of second degree robbery.

Holding: Second degree robbery requires that a person “forcibly steal” property. Sec. 569.010(1) states that a person “forcibly steals” property when he uses or threatens the immediate use of physical force upon another person. Here, there was no explicit threat of force, or implied threat. E.g., Defendant did not have his hand in his pocket to imply he had a weapon. Defendant did not say “this is a holdup.” Defendant did not try to touch or strike the teller. Thus, a fact-finder could not have reasonably found that Defendant used or threatened use of physical force. There must be some affirmative conduct beyond the mere act of stealing, which communicates immediate threat of physical force. Even though the evidence is insufficient for second degree robbery, the evidence is sufficient to support the lesser-included offense of stealing. Conviction for second degree robbery vacated, and case remanded for sentencing for stealing.
N.L.P. v. C.G.W., 2013 WL 6628008 (Mo. App. E.D. Dec. 17, 2013):

Holding: Neighbor’s actions in (1) calling the building code enforcement division, police, the company building alleged Victim’s home, and animal control regarding alleged Victim’s property violations, parking, noise and dog; (2) following Victim to work at a grocery, which happened only once and which may have occurred because they live on the same road and were going to the same grocery; (3) calling Victim repeatedly to request financial contribution toward paying for the road; (4) threatening to reveal to authorities that Victim acquired her land by deceit; and (5) “flipping her off” while driving past her home, did not provide sufficient evidence for an order of protection, Sec. 455.010(13), because Victim did not testify that she had any fear of physical harm from Neighbor; the phone calls were to report unlawful behavior and had the legitimate purpose of ensuring compliance with governing laws; and although the phones calls may have been annoying and the hand gesture rude, Neighbor’s actions did not constitute behavior that would cause a reasonable person in Victim’s situation to fear physical harm. The stalking provisions of the Adult Abuse Act are not meant to be a panacea for the minor arguments that frequently occur between neighbors.

E.A.B. v. C.G.W., 2013 WL 6627981 (Mo. App. E.D. Dec. 17, 2013):

Holding: (1) Even though Neighbor one time brought his gun outside, waved it in the air and pointed it at alleged Victim when Victim was walking, this did not provide sufficient evidence to warrant a full order of protection because Sec. 455.010(13) requires “repeated” conduct, i.e., two or more incidents, and also Victim testified that this incident only “kind of worried” him; thus, Victim did not subjectively fear physical harm. (2) Even though Neighbor yelled at alleged Victim, “when are you going to talk to me, you fucking coward,” and stood in the middle of the road with fists clenched yelling “a bunch of stuff that [Victim] couldn’t understand,” the evidence was insufficient to support a full order of protection, Sec. 455.010(13), because the acts had a legitimate purpose of trying to collect money toward repairing a shared road, and even if there was not a legitimate purpose, Victim did not subjectively fear physical harm, and there is no evidence that a reasonable person would have feared physical harm from such conduct. The stalking provisions of the Adult Abuse Act are not meant to be a panacea for the minor arguments that frequently occur between neighbors.
Brunner v. City of Arnold, 2013 WL 6627959 (Mo. App. E.D. Dec. 17, 2013):

Holding: (1) City’s “red light” camera Ordinance violates state law, Sec. 302.225, because it expressly prohibits assessment of points for violators, but Sec. 302.225 requires courts to report any moving violations to the Department of Revenue for assessment of points; (2) Ordinance is “criminal” in nature and creates an unconstitutional rebuttable presumption that the owner of the vehicle was the driver; this denies an accused’s right to be presumed innocent until proven guilty; (3) Even though Plaintiff had paid his “red light violation” fine, he had standing to bring a challenge to Ordinance because the Ordinance was void ab initio since it was in conflict with state law, so the municipal court had no subject matter jurisdiction to enforce the Ordinance and all that court’s rulings are void; (4) Plaintiffs state a colorable claim that the Ordinance was in violation of the City’s police power because the Ordinance does not actually promote public safety since it fails to keep dangerous drivers off the road by not assessing points for violation, and numerous studies show that red light cameras actually increase crashes and injuries; (5) Plaintiffs state a colorable claim that City surrendered its governmental functions in prosecuting violations of the Ordinance to the private company that operates the red light cameras; and (6) Plaintiffs state a colorable claim that Ordinance is a prohibited revenue generating Ordinance, not one designed to promote safety, because the Ordinance allows dangerous drivers to remain on the road by not assessing points, the cameras do not photograph the actual driver of the car, and the Ordinance generates more revenue than is necessary to offset the cost of enforcement
Edwards v. City of Ellisville, 2013 WL 5913628 (Mo. App. E.D. Nov. 5, 2013):

Holding: City “red light” ordinance that makes it a non-moving violation for a car to be “present” in an intersection with a red light and which makes the owner liable for the fine is invalid, because this conflicts with State law that makes running a red light a misdemeanor moving violation and which requires assessment of points against driver’s license (overruling City of Creve Coeur v. Nottebrok, 356 S.W.3d 252 (Mo. App. E.D. 2011)).

Discussion: To be valid, city ordinances cannot conflict with State law. Sec. 304.128 makes it a misdemeanor for a driver to run a red light. However, the City ordinance imposes strict liability on the owner of a car, if the car is present in an intersection with a red light. The ordinance regulates the same conduct as Sec. 304.128. The City cannot circumvent Sec. 304.128 by using semantics to say the ordinance only regulates the “presence” of cars in intersections. The ordinance conflicts with 304.128. The ordinance also conflicts with Secs. 302.225 and 302.302 which also require the assessment of points against a license for moving violations such as running a red light. The ordinance seeks to make running a red light a nonmoving violation with no points. However, by failing to require the municipal court to report a violation to the Director of Revenue for assessment of points, the ordinance conflicts with 302.225 and .302. To the extent that City of Creve Coeur v. Nottebrok is to the contrary, it is overruled.
D.A.T. v. M.A.T., 2013 WL 5913626 (Mo. App. E.D. Nov. 5, 2013):

Holding: Even though former Wife (against whom Husband obtained an order of protection) did not have custody of children, but attended children’s football games, tapped on Husband’s car window to get children’s attention, temporarily parked behind Husband’s car, drove by Husband’s house and parked nearby when Husband denied her visitation, and Husband did not “feel safe,” the evidence was insufficient to constitute a “course of conduct that causes alarm to another person,” Sec. 455.010(13)(a), as required for stalking because Husband proffered no evidence of threats, physical altercations or fear of physical harm; full order of protection reversed.
Unverferth v. City of Florissant, 2013 WL 4813851 (Mo. App. E.D. Sept. 10, 2013):

Holding: (1) City’s “red light camera” Ordinance conflicts with Missouri law because it regulates moving vehicles without requiring the municipal court to report the violation to the Department of Revenue as required by Missouri statutes; (2) Petitioner-Driver (who filed suit challenging the Ordinance) was entitled to discovery and to present facts on her claim that City exceeded its authority under its police power to enact the Ordinance because the purpose of the Ordinance (as alleged by Petitioner) is to raise municipal revenue, and not to regulate traffic or promote safety; and (3) Petitioner-Driver was entitled to discovery and to present facts on her claim that the Ordinance violates Supreme Court Rule 37.33 and denies procedural due process because traffic citations issued under it do not list a court date or how to contest a citation, and imply that there is no means to contest a violation.
State v. Ess, 2013 WL 4715352 (Mo. App. E.D. Sept. 3, 2013):

(1) Where after trial the defense discovered that a juror who had failed to answer questions on voir dire about whether they had preconceived notions about guilt had said during a pretrial recess that this was an “open and shut case,” the nondisclosure was likely intentional and case is remanded for more detailed factual findings or new trial; and (2) even though Defendant had victim touch his penis through clothing in 1995 or 1996, during that time period the act of touching through the clothing was not a violation of Sec. 566.010(3)(1995 version), so the evidence was insufficient to support attempted first-degree child molestation.

Facts: Defendant was charged with various child sex offenses. (1) During voir dire, jurors were asked whether anyone had a “preconceived notion about the guilt or innocence” of Defendant. Juror did not answer. After trial, the defense learned that Juror had said during a pretrial recess that this was an “open and shut case.” The defense obtained an affidavit from another juror stating this, and also called this other juror to testify at a hearing on the New Trial Motion, which raised this issue. (However, the New Trial Motion was filed late in this case, so all appellate issues are decided under plain error standard.) The trial court made no credibility findings regarding the other juror’s testimony, but denied a new trial. (2) Defendant was originally charged with first-degree child molestation for acts which occurred in 1995 or 1996 during which Defendant had victim touch Defendant’s penis through clothing. During trial, however, State discovered that in 1995 and 1996, the act of touching through the clothing did not violate Sec. 566.010(3)(1995 version). Thus, the State submitted to the jury “attempt” first-degree child molestation. Jury convicted of this offense.

Holding: (1) No person who has formed an opinion on a matter is qualified to serve as a juror. In determining whether to grant a new trial, the court must determine whether a nondisclosure occurred, and whether it was intentional or unintentional. If intentional, bias is presumed and a new trial should be ordered. If unintentional, a defendant must prove that prejudice resulted from the nondisclosure that may have influenced the jury’s verdict. Here, jurors were asked various questions about their ability to be fair and impartial, including directly being asked whether they had any “preconceived notion” about guilt or innocence. Juror at issue failed to answer, but said to another juror during a pretrial recess that this was an “open and shut case.” The direct questions on voir dire indicate that Juror’s failure to understand the questions or answer was unreasonable. Thus, juror’s failure to disclose was likely intentional. The State argues that since Defendant did not produce any evidence from Juror at issue, the Defendant fails to prove his claim of bias. “But to require a defendant to produce an affidavit from a biased juror confessing to intentional nondisclosure of material information, or to forgo any relief, places an impossible burden on a defendant.” Nevertheless, the trial court made no finding on whether it found the other juror’s testimony about what Juror at issue said to be credible, and no finding on whether the nondisclosure was intentional or not. Thus, case must be remanded for more findings. If the court finds that the testimony is credible, however, the court must find that the nondisclosure was intentional and grant a new trial. (2) In 1995 and 1996, touching a penis through the clothing was not prohibited by then-Sec. 566.010(3). (The statute was amended in 2002 to prohibit touching through the clothing.) Defendant’s acts here of having the victim touch his penis through clothing was not a substantial step toward the offense of first-degree child molestation. Thus, the evidence is insufficient to convict of attempted first-degree child molestation.
M.L.G. v. R.G., 2013 WL 4419352 (Mo. App. E.D. August 20, 2013):

Even though Defendant verbally threated Petitioner and put a gun to his head, this was only a single incident (not two), and therefore, did not support issuance of a full order of protection for “stalking” because Sec. 455.010(13)(c) requires “two or more” incidents to obtain an order of protection.

Facts: Petitioner and Defendant were neighbors, and got into a dispute over the spraying of herbicide along their adjoining property line. When they discussed the dispute, Defendant pulled out a gun, threatened Petitioner, touched the gun to his head, and wrestled with him. Although police were called, no criminal charges were filed. Petitioner subsequently obtained a full order of protection against Defendant for “stalking.” Defendant appealed.

Holding: Sec. 455.010(13) provides that “stalking” occurs whenever any person “repeatedly” engages in an unwanted course of conduct that would cause a reasonable person to be alarmed. Sec. 455.010(13)(c) defines “repeated” as “two or more incidents evidencing a continuity of purpose.” The issue on appeal is whether the incident here was “two or more.” The trial court found that the verbal threats to Petitioner constituted one incident, and the pulling out of the gun constituted a second incident. However, these events occurred during a single continuous episode. Although the trial court attempted to create two incidents from this single event, doing so was a misapplication of the law.
M.D.L. v. S.C.E., 391 S.W.3d 525 (Mo. App. E.D. 2013):

Holding: Even though (1) Man against whom order of protection was sought had followed Complainant by driving erratically behind her, had slashed Complainant’s boyfriend’s tires, and had threatened to ruin her professional reputation by instituting legal actions against Complainant, and (2) Complaint testified she was “always in fear of her safety” around Man, this was insufficient to prove “fear of danger of physical harm” where Complainant did not testify that she feared physical harm from Man’s specific alleged acts, and thus, was insufficient under Sec. 455.010(13)(a) for a full order of protection on grounds of “stalking” (but appellate court upholds protection order on other grounds).
State v. Hudson, No. ED96609-01 (Mo. App. E.D. 11/20/12):

Where after Defendant’s trial but while his appeal was pending the Supreme Court declared a portion of the harassment statute as unconstitutionally overbroad, Defendant’s conviction under that statute must be set aside because it is plain error to convict under an unconstitutional statute.