Case Law Update: 2011-2014 Cumulative Edition

Holding: To convict, the State had to show that Defendant-Passenger had knowledge of the methamphetamine and constructively possessed it. Defendant’s mere presence in the truck was not enough. The meth was not in plain view, and not easily accessible to Defendant. The inconsistent stories told by the men did not show that Defendant made false statements because after Officer re-asked Driver about the trip, Driver confirmed Defendant’s destination. The GPS and cell phone evidence was not, in itself, incriminating. Even though the men were nervous and didn’t look at Officer, nervousness is merely one factor to consider and there are equally probable reasons a person may be nervous. The air freshener alone cannot support a conviction either. Here, the evidence was insufficient to convict Defendant-Passenger.
Nenninger v. Smith, 2013 WL 1110894 (Mo. App. W.D. March 19, 2013):

Even though family-member-Victim had obtained a prior full order of protection against Defendant, Victim was required to show an immediate and present danger of further abuse to have the order renewed, and could not just let the order lapse and then file a new petition alleging the same allegations that formed the basis of the initial order, since this would allow an order to be renewed ad infinitem, whereas Sec. 455.040.1 only authorizes a maximum of two renewals.

Facts: Victim and Defendant had child together, and thus, qualify as “family members” under the Adult Abuse Act, Sec. 455.010(5). In 2010, Victim obtained an order of protection against Defendant because Defendant had assaulted her and child. Defendant complied with that order. That order expired in 2011. Subsequently, Victim obtained a new order of protection because – although Defendant was incarcerated – he wrote letters and phone calls to Victim after the protection order expired, seeking contact with child. Defendant appealed.

Holding: In order to have had the original protection order renewed, Victim was required to show that expiration of the full order would place her “in immediate and present danger of abuse.” The only new allegations that did not form the basis for the prior protective order were the letters and phone calls. It would be illogical for Victim to be allowed to avoid the burden of proving an immediate and present danger of abuse, as required for renewal of a full order of protection, by simply letting the initial order lapse and then filing a new motion for a full order averring the same allegations of abuse that formed the basis for the initial order. This would enable a family-member-Victim to obtain an infinite number of orders, in violation of Sec. 455.040.1, which only authorizes a maximum of two renewals. Further, Victim’s new allegations do not meet the test for harassment under the Act because the phone calls and letters would not have caused substantial emotional distress to a reasonable person. Even though Victim testified that the letters and phone calls caused her PTSD-like symptoms, made her fearful and that she did not want child to know who child’s father was, the content of the letters and phone calls were not threatening; they were nothing more than legitimate attempts to communicate with child, which Defendant must do to avoid termination of parental rights. Evidence was insufficient for new order of protection.
State v. Rodgers, 2013 WL 427363 (Mo. App. W.D. Feb. 5, 2013):

Even though Sec. 571.070.1(2) makes it unlawful to possess a firearm if a person is a “fugitive from justice,” the phrase “fugitive from justice” is ambiguous because subject to multiple meanings, and must be construed strictly against the State; thus, even though Defendant had failed to appear in municipal court and a capias warrant had been issued for his arrest, the trial court did not err in dismissing an unlawful possession of firearm charge because Defendant was not necessarily a “fugitive from justice.”

Facts: Defendant was charged with a municipal offense of leaving the scene of an accident. However, he failed to appear on the charge, and a capias warrant was issued. When police approached Defendant to arrest him, he initially ran and threw down a gun, but was caught and arrested. The State charged Defendant with unlawful possession of a firearm under Sec. 571.070.1(2). Defendant moved to dismiss the charge, which the trial court granted. The State appealed.

Holding: Sec. 571.070.1(2) provides that a person commits the crime of unlawful possession of a firearm if such person knowingly has a firearm and “is a fugitive from justice.” The term “fugitive from justice” is not defined in the statute or anywhere else in the Criminal Code. Another Missouri statute, Sec. 319.303(16) defines it as a person who “has fled from the jurisdiction,” but this statute is not dispositive because it is in a different Chapter than the Criminal Code and has a different regulatory purpose. Other states and legal dictionaries give the phrase different meanings. Where a criminal statute is ambiguous, the rule of lenity requires that it be construed strictly against the State and liberally in favor of the Defendant. The elements of a crime should be clearly defined to provide meaningful notice of proscribed conduct. Here, the phrase is ambiguous and the trial court did not err in dismissing the charge. The appellate court suggests that the Legislature amend the statute to define the phrase.



McAlister v. Strohmeyer, 2013 WL 68901 (Mo. App. W.D. Jan. 8, 2013):

Holding: (1) Where a petitioner for a full order of protection proves “assault” (knowingly placing another person in fear of physical harm) under the Adult Abuse Act, the plain language of Sec. 455.040.1 requires a trial court to grant the full order; but (2) even though Man (Respondent) pointed a gun at Petitioner, trial court did not err in denying order because Man was justified in his actions under Sec. 563.031.2(2) which allows a person to use deadly force against a person who unlawfully enters their home and Sec. 563.074.1 which states that a person who uses force under Sec. 563.031.2 has an “absolute defense to civil liability,” and here, Petitioner forced her way inside Man’s house, disabled his phone, ignored his requests to leave, and physically attacked him, only after which did he point a gun at her to get her to stop.
State v. Cochran, No. WD73766 (Mo. App. W.D. 5/1/12):

(1) Expert should not be permitted to testify that Defendant committed “animal abuse” under Sec. 578.012 because this invades the province of the jury; and (2) where Defendant was charged with county ordinance violation but State failed to introduce the ordinance into evidence at trial, a court cannot judicially notice a county or municipal ordinance and the failure to introduce it at trial made the evidence insufficient to convict.

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.

State v. Buckler, No. WD72794 (Mo. App. W.D. 10/18/11):

Even though DNA testing showed that Defendant was not the father of child to whom child support was owed, where child had been legitimated by legal process, trial court did not err in excluding DNA test from trial and Court of Appeal must uphold conviction for failure to pay support, but Defendant has until Dec. 31, 2011, to avail himself of procedures of Sec. 210.854 to have himself declared not to be the father and have his conviction expunged.

Facts: Defendant was charged with criminal nonsupport. The child-support obligation stemmed from a court judgment entered in 2004 in which Defendant was declared to be the father. Defendant did not contest this finding in 2004 because he believed he was the father. However, he subsequently learned that he was not, and a subsequent DNA test showed that he was not the father. At trial, the trial court excluded the DNA evidence that he was not the father because the child had been “legitimated by legal process.” After conviction, he appealed.

Holding: The trial court did not err in excluding the DNA test at the criminal trial because under State ex rel. Sanders v. Sauer, 183 S.W.3d 238 (Mo. banc 2006), the State need only prove that the child was “legitimated by legal process,” not that the defendant is the actual father. Hence, whether Defendant was the actual father was irrelevant to the charge. Defendant also contends that since the DNA test shows he’s not the father, he was denied due process by his conviction. Under Sauer, however, he has no legal defense to the charge, and while the contention that something is “not fair” may be relevant to proceedings in equity, it is not a recognized legal defense to a criminal charge. However, there is a statutory remedy which Defendant can pursue: Sec. 210.854.1 and .8 provide that Defendant has until Dec. 31, 2011, to file an action to set aside the judgment that he is the father, and once that is done, he can have his conviction expunged under those sections. Defendant “is the ideal candidate under section 210.854 to have his conviction set aside and all records concerning his conviction expunged,” but he needs to follow the procedures set forth in that statute.

Editor’s Note: The statute provides that after Dec. 31, 2011, petitions under the statute have to be filed “within two years of the entry of the original judgment of paternity and support or within two years of entry of the later judgment in the case of separate judgments of paternity and support and shall be filed in the county which entered the judgment or judgments of paternity and support.”
State v. Caldwell, No. WD73194 (Mo. App. W.D. 11/8/11):

(1) Evidence insufficient to convict where State charged Defendant with trespass on property at a certain address but presented no evidence that Defendant was at that address, and even though prosecutor mentioned address in closing argument, closing argument is not evidence; and (2) evidence insufficient to convict of resisting arrest where Defendant refused to get out of her car at request of police and they had to use locksmith to open car’s door and there was no evidence that Defendant used any force after door was opened.

Facts: Defendant was convicted at trial of trespassing at a certain address, Sec. 569.140, and resisting arrest, Sec. 575.150. Defendant was parked in a car at an airport after it was closed for the night. Police asked her repeatedly to leave, but she refused and remained in her locked car. Police had to use a locksmith device to open her car door. At trial, the State presented no evidence of the address Defendant was at (other than it was an airport), but the prosecutor argued in closing that she was at “160 NW 251” as charged. The State presented no evidence of what happened after police opened the Defendant’s car door and took her into custody.

Holding: The evidence was insufficient to convict of either charge. Defendant was charged with trespassing at “160 NW 251” but no evidence was presented at trial that this is where Defendant’s car was. The only time this address was mentioned was in the prosecutor’s closing argument, but closing arguments are not evidence. Sec. 575.150.1 makes resisting arrest illegal only upon “using violence, threatening to use violence, using physical force, threatening to use physical force, or by fleeing.” Even though police had to use a locksmith device to open Defendant’s car door, there was no evidence presented of what happened after the car door was opened. In other resisting arrest cases where convictions were upheld, the Defendant used physical resistance to resist and this was “use of physical force.” But there was no evidence of what happened after the car door was opened here or whether Defendant physically resisted once the door was opened. Convictions reversed and Defendant discharged.
* Loughrin v. U.S., 95 Crim. L. Rep. 416, ___ U.S. ___, 2014 WL 2807180 (U.S. 6/23/14):

Holding: A conviction under the federal bank fraud statute, 18 USC 1344, does not require proof that a financial institution was the target of the deception or that a financial institution was exposed to risk of loss; the statute’s reference to obtaining property “by means of” a false statement is satisfied by a defendant’s false statement (such as a false statement in an altered check) that causes a bank to part with money in its control.
* Abramski v. U.S., 95 Crim. L. Rep. 381, ___ U.S. ___, 134 S.Ct. 2259 (U.S. 6/16/14):

Holding: A defendant who purchases a gun for someone else while falsely claiming it is for himself is guilty of making a false statement in connection with “any fact material to the lawfulness of the sale,” 18 USC 922(a)(6), even though the true buyer (other person) could have legally purchased the gun himself.
* Bond v. U.S., 95 Crim. L. Rep. 312, ___ U.S. ___, 134 S.Ct. 2077 (U.S. 6/2/14):

Holding: Sec. 229 of the Chemical Weapons Convention Implementation Act, which bans possession of chemicals that “can cause death, temporary incapacitation or permanent harm to humans or animals” was intended to prosecute acts of war, assassination and terrorism, not “purely local crimes”; hence, Gov’t could not use statute to prosecute a Defendant who put toxic chemicals designed to cause a rash on her husband’s mistress’ doorknob; “[t]he global need to prevent chemical warfare does not require the Federal Government … to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
* U.S. v. Castleman, 95 Crim. L. Rep. 5, ___ U.S. ___, 134 S.Ct. 1405 (U.S. 3/26/14):

Holding: A “misdemeanor crime of domestic violence” under 18 USC 921(a)33 means a misdemeanor with a degree of force supporting only common-law battery, i.e., an “offensive touching” against a present or former spouse, parent, guardian or similar person. Here, Defendant was convicted under a state law allowing conviction for minor minor “bodily injury” such as a bruise. This qualified as a “misdemeanor crime of domestic violence” and, thus, prohibited Defendant from possessing a firearm under 18 USC 922(g)(9), which prohibits possession of a firearm by anyone convicted of a “misdemeanor crime of domestic violence.”
* Rosemond v. U.S., ___ U.S. ___, 94 Crim. L. Rep. 701, 134 S.Ct. 1240 (U.S. 3/5/14):

Holding: A Defendant charged with aiding and abetting another person who uses or carries a firearm in a crime of violence or drug trafficking is entitled to an instruction to determine whether he became aware that the person was armed in time to withdraw from the crime; 18 USC 924(c) requires that Defendant have “advance knowledge – or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice”; the Gov’t must prove that Defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a participant would use or carry a gun during the crime’s commission.
* U.S. v. Apel, ___ U.S. ___, 94 Crim. L. Rep. 675, 134 S.Ct. 1144 (U.S. 2/26/14):

Holding: A portion of a military base that contains a designated “protest area” and an easement for a public road is a part of a “military installation,” and therefore, a defendant who entered the protest area after having been barred from the base was properly convicted under 18 USC 1382, which prohibits re-entering a military installation after having been ordered not to do so; the limits of a “military installation” do not change simply because the commander invites the public to use a portion of the base for a road, school, bus stop or “protest area.”
* Burrage v. U.S., ___ U.S. ___, 94 Crim. L. Rep. 493, 134 S.Ct. 881 (U.S. 1/27/14):

Holding: Statute that imposes greater penalty on drug distribution that results in death, 21 USC 841(b)(1)(C), requires proof that the drug user would not have died but for the use of the distributed drug (reversing 8^th Circuit which had held that the drug need only be a “contributing factor” to the death); here, the decedent had taken multiple other drugs in addition to the drug at issue.
* Sekhar v. U.S., 93 Crim. L. Rep. 513, 133 S.Ct. 2720 (U.S. 6/26/13):

Holding: Even though Defendant threatened to expose Gov’t general counsel’s alleged affair to his wife if general counsel did not change his legal investment advice given to a Gov’t agency, this did not constitute extortion under the Hobbs Act, 18 USC 1951(a), which defines extortion as using threats to obtain of “property of another,” because the property extorted must be transferable, i.e., capable of passing from one person to another, a defining feature lacking here.
* Coleman v. Johnson, 2012 WL 1912196, ___ U.S. ___ (U.S. 2012):

Holding: (1) A federal habeas court may overturn a state court decision finding the evidence sufficient only if the state court decision is “objectively unreasonable” and (2) while the federal court looks to state law to determine the elements of the offense, the minimum amount of evidence required to sustain the conviction is determined by reference to federal due process law, not state law; applying these standards, Supreme Court held evidence was sufficient to support verdict that Defendant had requisite intent to kill victim.
U.S. v. Fernandez, 93 Crim. L. Rep. 498 (1^st Cir. 6/26/13):

Holding: 18 USC 666, which prohibits corruption with respect to state and local programs that receive federal funds, does not prohibit giving or accepting gratuities for official actions; violation of Sec. 666 requires proof of a quid pro quo.
U.S. v. Franco-Santiago, 2012 WL 1948890 (1^st Cir. 2012):

Holding: Even though Defendant had participated in one robbery, the evidence was insufficient to support Defendant’s conspiracy conviction for a series of additional robberies where there was no evidence Defendant had a common goal or purpose of participating the additional robberies them.
U.S. v. Rehlander, 2012 WL 104908 (1^st Cir. 2012):

Holding: Weapons statute regarding person committed to mental institution did not apply, where subject was committed based on ex parte procedures for temporary involuntary emergency hospitalization, as such proceedings did not provide an adversary hearing to determine whether subject was actually mentally ill or dangerous.
U.S. v. Clark, 94 Crim. L. Rep. 501 (2d Cir. 1/17/14):

Holding: Appellate court holds it “taxes credulity” to believe that Defendant, who was handcuffed in the back of a police car, was responsible for a substantial quantity of drugs found tucked in the rear seat of the police car, when there was no trace of drugs on Defendant’s clothing or person.
U.S. v. Macias, 2014 WL 114272 (2d Cir. 2014):

Holding: Where Defendant was on Canadian soil just across the border when he was apprehended by border patrol agents, Defendant was not “found” in the U.S. so as to support conviction for being “found” in the U.S. as a previously deported alien.
U.S. v. Vasquez, 94 Crim. L. Rep. 466 (2d Cir. 1/14/14):

Holding: Where alien-Defendant was prevented by Canada from entering Canada from U.S. and was turned over to U.S. custody, Defendant was not “found in” U.S. under 8 USC 1326(a) to permit conviction under that statute because he wasn’t in U.S. voluntarily (disagreeing with 9^th Circuit).
U.S. v. Davis, 93 Crim. L. Rep. 688 (2d Cir. 8/14/13):

Holding: Even though a crime may take place in a federal prison on federal land, this fact alone does not prove the jurisdictional requirement that a crime took place within the “special maritime and territorial jurisdiction of the U.S.,” unless there is some indication that the State ceded jurisdiction or that the Gov’t explicitly accepted jurisdiction.


U.S. v. Vargas-Cordon, 93 Crim. L. Rep. 667 (2d Cir. 8/12/13):

Holding: Even though Defendant gave shelter to an illegal alien, this did not violate the federal law against “harboring” illegal aliens unless there is some evidence that Defendant acted in a way designed to thwart authorities.
U.S. v. Nkansah, 2012 WL 5439902 (2d Cir. 2012):

Holding: Even though Defendant deposited fraudulently obtained Treasury checks at banks, there was insufficient evidence of Defendant’s intent to commit bank fraud since the banks did not have a well-known exposure to loss permitting an inference of requisite intent.
U.S. v. Aleynikov, 2012 WL 1193611 (2d Cir. 2012):

Holding: The code that a defendant uploaded to a server and downloaded to his computer devices was intangible intellectual property, not “goods,” “wares,” or “merchandise,” within the meaning of the National Stolen Property Act (NSPA); thus, even though employee-defendant took a computer source code from his employer to create a competing program, this did not violate the federal Economic Espionage Act.
U.S. v. Banki, 90 Crim. L. Rep. 153 (2d Cir. 10/24/11):

Holding: Treasury Dept.’s regulations imposing sanctions on Iran are too vague to support conviction for noncommercial family transaction to Iran.
Rivera v. Cuomo, 2011 WL 3447445 (2d Cir. 2011):

Holding: Where State’s theory was either that Defendant deliberately shot victim or accidently did so, this did not prove “recklessness” for depraved indifference murder.
U.S. v. Stock, 93 Crim. L. Rep. 718 (3d Cir. 8/26/13):

Holding: Federal statute regarding making threats, 18 USC 875(c), applies only to statements expressing intention of present or future harm, not to statements by Defendant that he wished he had injured someone in the past.
U.S. v. Ashurov, 93 Crim. L. Rep. 663 (3d Cir. 8/12/13):