Case Law Update: 2011-2014 Cumulative Edition

Holding: Where Defendant was changed with a single count of sodomy but three different acts of sodomy were testified to at trial, the verdict director violated the right to a unanimous verdict because it did not describe the separate criminal acts with specificity as required by State v. Celis-Garcia, 344 S.W.3d 150, 155-56 (Mo. banc 2011). Although the State claims the three acts were virtually identical, they were distinguishable because one of them happened during the school year, but the others happened in the Summer; some of the events took place upstairs in a home, but others happened in the basement; and one of the acts involved threats that the others did not. However, this was not plain error because the defense was a general denial of all theacts, not an incident specific defense.
State v. Wadel, 2013 WL 1800231 (Mo. App. W.D. April 30, 2013):

Holding: (1) Where Defendant was charged with first-degree child endangerment and the verdict director stated only that the jury had to find that he engaged in “sexual contact,” this was erroneous because mere use of the legal description of this term without describing the “sexual contact” did not meet the requirements of MAI-CR3d 322.10 (but was not plain error here); and (2) where Defendant was charged with first-degree child endangerment and the verdict director stated only that the jury had to find that Defendant “created a substantial risk to the life or health” of child, this was erroneous because the MAI requires a description of Defendant’s conduct (but was not plain error here).
State v. Doss, 2013 WL 1197484 (Mo. App. W.D. March 26, 2013):

(1) Where the State submits an instruction in the disjunctive for a single robbery, both alternatives must be supported by sufficient evidence; thus, even though the evidence may be sufficient to prove Defendant stole a cell phone, where it was not sufficient to prove that Defendant stole a wallet and the verdict director stated that Defendant “took a cell phone and/or wallet,” the evidence was insufficient for robbery; and (2) in penalty phase, the State could not introduce Defendant’s juvenile records which would show the equivalent of only misdemeanor conduct because such records are closed under Sec. 211.271.3, and the State could not introduce juvenile records which did not show by a preponderance of evidence that Defendant actually engaged in the conduct alleged.

Facts: Defendant was charged with two counts of first degree murder, first degree robbery, and ACA. Two murder victims were found in a home. There were no cell phones or wallets found in the home. There were some statements made that indicated that a cell phone may have been taken. The jury convicted Defendant of second degree murder, first degree robbery and ACA. At penalty phase, the State, over defense objection, introduced Defendant’s juvenile records which showed offenses that would be felonies and misdemeanor if committed by an adult, and also showed other misconduct.

Holding: (1) Because the State submitted a disjunctive verdict director allowing the jury to convict if they found that he “took a cell phone and/or wallet,” the State had to present sufficient evidence to support each alternative. Here, there was some evidence that a co-defendant may have taken a cell phone. However, there was no evidence that any wallet was taken. The State argues that it is “logical” to assume that the victims must have had wallets, and since none were found in the home, the wallets must have been taken as part of the charged crime. While the State’s argument is logical, that is not the standard for judging sufficiency of evidence. Absent some evidence that wallets were present and available to be stolen that day, there simply was not enough evidence to support a conviction for stealing a wallet. Robbery conviction reversed. (2) The State argues that the juvenile records were admissible in penalty phase under Sec. 211.321.2(2) which allows juvenile records to be open “for an offense which would be a felony if committed by an adult.” Here, however, the records at issue showed conduct that would be a misdemeanor if committed by an adult, and other conduct that would be a felony. Juvenile records regarding misdemeanors are closed under Sec. 211.271.3, while records regarding felonies are open under Sec. 211.321.2(2). Here, it is possible that the juvenile court found Defendant to have engaged in only the misdemeanor-equivalent acts, and thus, the records would not be admissible. Additionally, while the records demonstrate that Defendant engaged in at least some of the acts, the problem is that there are criminal acts alleged in the “motion to modify” the prior juvenile disposition for which there is not evidentiary support that Defendant committed the acts, and the documents do not show which acts Defendant was adjudicated as having committed. Defendant was prejudiced because the jury asked to review the juvenile records, and sentenced Defendant to high sentences despite having found second degree murder. On retrial of the penalty phase, where the records make reference only to “assaults,” the State will have to present additional evidence showing that these were felony-equivalent assaults; otherwise, the “assaults” are not admissible because they may have been misdemeanor-equivalent assaults.
State v. Kelso, 391 S.W.3d 515 (Mo. App. W.D. 2013):

Where Defendant had Child place a condom on his penis into which Defendant ejaculated, this constitutes first degree child molestation even though the verdict director stated that the jury had to find touching “through the clothing”; touching “through the clothing” is not an element of the offense.

Facts: Defendant was convicted of first degree child molestation for having a child less than 14 place a condom on his penis, into which he ejaculated. The verdict director directed the jury to find Defendant guilty if they found he caused Child to touch his genitals “through the clothing.” Defendant claimed the evidence was insufficient to convict because the condom was not clothing.

Holding: Sexual contact required for first degree child molestation is defined in Sec. 566.010(3) as “any touching of another person with the genitals or any touching of the genitals or anus of another person … or such touching through the clothing, for the purpose of arousing or gratifying sexual desire….” The elements of this offense are (1) a prohibited touching, (2) of a child less than 14, (3) done with intent to arouse or gratify sexual desire. The verdict director stated that the jury had to find that Defendant caused Child “to touch defendant’s genitals through the clothing.” However, although the statute provides for various methods of commission regarding the type of touching (e.g., hand-to-genital, hand-to-anus, etc.), the presence or absence of clothing is inconsequential. The only method the State must prove is the type of touching; the State need not prove whether clothing was present during the touching. Here, the State elected to prove hand-to-genital touching; that was all that was required. Further, the State was not required to prove the existence of clothing simply because this was in the verdict director since “through the clothing’ is not an element of the crime.
State v. Lumpkins, No. WD71602 (Mo. App. W.D. 9/20/11):

To the extent that MAI-CR3d 314.00 Notes on Use No. 4(C)2 requires that when felony murder is the highest degree of homicide submitted, an involuntary manslaughter in the second degree instruction “will be given,” the Note conflicts with Sec. 565.025.2(2) because involuntary manslaughter in the second degree is not a lesser-included offense of felony murder. Thus, the Note should not be followed.

Holding: Defendant, who was convicted of felony murder, contends that the trial court erred in failing to give an instruction on second degree involuntary manslaughter because this was a lesser-included offense of felony murder. Sec. 565.025.2(2) says the lesser offenses of second degree murder are voluntary manslaughter under Sec. 565.023.1(1) and involuntary manslaughter under Sec. 565.024.1(1). Sec. 565.024 says a person commits involuntary manslaughter in the first degree if he “recklessly” causes the death. Defendant did not request an instruction under Sec. 565.024.1(1). Instead, Defendant asked for an instruction for second degree involuntary manslaughter based on a person causing a death with “criminal negligence.” Second degree involuntary manslaughter is not listed as a lesser degree offense under Sec. 565.025.2(2). Hence, the court was correct in not instructing on it. To be clear, the lesson to be derived from this holding is that, in instructing down from the highest crime charged, there are two sources that must be checked. The first source is all lesser included offenses are to be given if requested by either party or the court per Sec. 556.046. Here, the court properly refused to give an instruction on second degree involuntary manslaughter because it is not a lesser included offense of felony murder. The second source for instructing down are particular statutes specific to the highest crime charged, in this case Sec. 565.025.2(2). That statute specifies that voluntary manslaughter under Sec. 565.023.1(1) and first degree involuntary manslaughter under Sec. 565.024.1(1) are to be given in offenses of second degree murder, including felony murder. This is analogous to the treatment courts have given the statutory mandate that felony murder be given in first degree murder cases. In those cases in and this one, the legislature has mandated instructions for certain offenses when appropriate but that does not make those offenses lesser included offenses. Defendant argues that MAI-CR3d 314.00 Notes on Use 4(C)2 provides that when felony murder is the highest homicide submitted, an instruction on second degree involuntary manslaughter “will be given” if justified by the evidence and requested by one of the parties or on the court’s own motion. However, the Notes on Use is wrong. To the extent that the Notes on Use requires the court to submit a second degree involuntary manslaughter instruction in a felony murder case it conflicts with Sec. 565.025.2(2) and should not be followed.
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.
* 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.
* Bobby v. Mitts, ___ U.S. ___, 89 Crim. L. Rep. 163, 2011 WL 1631037 (U.S. 5/2/11):

Holding: Habeas relief not warranted where jury instruction told jurors they must acquit Defendant of death penalty before considering lesser punishments; instruction told jurors not to deliberate on lesser punishments unless they have decided that prosecutors failed to prove that the aggravating circumstances outweighed the mitigating circumstances.

U.S. v. Baird, 2013 WL 1364260 (1^st Cir. 2013):

Holding: Where evidence indicated that Defendant had purchased a stolen handgun from a seller without knowing it was stolen, and shortly thereafter, upon learning it was stolen returned it to seller in exchange for the purchase price, Defendant was entitled to an innocent possession instruction in a prosecution for possession of a stolen firearm.
U.S. v. Sasso, 2012 WL 4074415 (1^st Cir. 2012):

Holding: Where Defendant was charged with interfering with an aircraft, a jury instruction which stated that Defendant acted “willfully” if his actions were deliberate and intentional diluted the intent requirement because the instruction did not distinguish between negligent interference and willful interference.
U.S. v. Newell, 89 Crim. L. Rep. 670 (1^st Cir. 7/11/11):

Holding: Counts of indictment charging misuse of funds were multiplicitous, and thus, jury should have been given instruction on unanimity.
U.S. v. Jadlowe, 88 Crim. L. Rep. 350 (1^st Cir. 12/3/10):

Holding: Judge’s instruction that jurors could discuss case throughout trial as long as they didn’t express an opinion on it was erroneous but subject to harmless error.
U.S. v. Cain, 2012 WL 265882 (2d Cir. 2012):

Holding: The District Court’s erroneous failure to instruct the jury that the government was required to show that the predicate acts were related to one another and threatened continued criminal activity in order to support a RICO conviction affected the defendant’s substantial trial rights and seriously affected the fairness, integrity, and public reputation of the judicial proceedings.
Adamson v. Cathel, 88 Crim. L. Rep. 780, 2011 WL 692977 (3d Cir. 3/1/11):

Holding: Trial court was required to give a limiting instruction under Tennessee v. Street, 471 U.S. 409 (1985) when Defendant was impeached using the co-defendant’s confession after Defendant claimed his own confession was fabricated by police; Defendant’s confrontation rights were violated without the limiting instruction.
U.S. v. Whitefield, 2012 WL 3591038 (4^th Cir. 2012):

Holding: Forced accompaniment for a bank robbery that results in death is an additional offense element, not just a sentencing factor, so instructing the jury on this offense when a different offense was charged violates the Fifth Amendment Grand Jury Clause.
U.S. v. Montgomery, 95 Crim. L. Rep. 10 (5^th Cir. 3/28/14):

Holding: Where Defendant asserts good-faith defense from Cheek v. U.S., 498 U.S. 192 (1991) in tax prosecution, judge is required to instruct jury that Defendant’s belief that he was complying with the law is a complete defense even if the belief was unreasonable.

U.S. v. LaPointe, 2012 WL 3264062 (6^th Cir. 2012):

Holding: Defendant charged with conspiracy to possess with intent to distribute drugs was entitled to lesser-included offense instruction of conspiracy to possess drugs, even though he was alternatively charged in the same count with conspiracy to distribute.
Woodall v. Simpson, 2012 WL 2855798 (6^th Cir. 2012):

Holding: Death penalty Defendant had 5^th Amendment right to a no adverse inference from his failure to testify in penalty phase instruction.
U.S. v. Robinson, 2013 WL 3927719 (7^th Cir. 2013):

Holding: Where Defendant had stipulated to a prior felony in felon-in-possession case, court erred when it orally read the limiting instruction to the jury on this matter but omitted the last sentence that the jury should consider this mater only as to whether Defendant had a prior felony conviction.
U.S. v. Natale, 93 Crim. L. Rep. 455, 2013 WL 2506660 (7^th Cir. 6/11/13):

Holding: Jury instruction in prosecution under 18 USC 1035(a), which makes it a crime to lie in connection with a health care benefit program, was erroneous where it failed to instruct that the false statement must be in a matter involving a health care benefit program.
U.S. v. Pillado, 89 Crim. L. Rep. 858 (7^th Cir. 9/7/11):

Holding: Even though Defendant possessed a ton of marijuana, he could still get an instruction on lesser included offense of simple possession.
U.S. v. Amaya, 94 Crim. L. Rep. 15, 2013 WL 5302725 (8^th Cir. 9/23/13):

Holding: Jury form’s lack of a place to indicate the verdict coupled with judge’s decision to poll the jurors instead was plain error requiring new trial.
U.S. v. Sivilla, 93 Crim. L. Rep. 24, 2013 WL 1876649 (9^th Cir. 5/7/13):

Holding: Where the Gov’t has destroyed evidence before trial, Defendant need not show bad faith to get an adverse inference instruction, even though bad faith is required to get a dismissal of the charge.
U.S. v. Ramirez, 93 Crim. L. Rep. 188 (9^th Cir. 4/29/13):

Holding: Trial court erred when it instructed jury that it could not “speculate” as to why Gov’t did not call a witness who supposedly acted as a go-between in the charged drug transaction; jury could reasonably assume this witness was in the control of the Gov’t and was entitled to draw a legitimate adverse inference from the witness’ absence.
U.S. v. Garrido, 2013 WL 1501877 (9^th Cir. 2013):

Holding: Jury instructions on charges of honest services wire and mail fraud that allowed conviction if official acted or made decision based on his own personal interests, including receiving benefit from undisclosed conflict of interest, permitted conviction based upon failure-to-disclose theory that was subsequently determined to be unconstitutional in Supreme Court's decision in Skilling v. United States, and was plain error.
U.S. v. Zepeda, 92 Crim. L. Rep. 463 (9^th Cir. 1/18/13):

Holding: Where Defendant’s bloodline is derived from an Indian tribe as required for jurisdiction under Major Crimes Act, 18 USC 1153, is a question of fact for the jury.
U.S. v. Munguia, 92 Crim. L. Rep. 277 (9^th Cir. 11/27/12):

Holding: Defendant on trial for possessing pseudoephedrine “knowing or having reasonable cause to believe” it would be used to make meth is entitled to a jury instruction that reasonable cause is to be evaluated from the Defendant’s perspective, based on her knowledge and sophistication.
Doe v. Busby, 2011 WL 5027506 (9^th Cir. 2011):

Holding: Jury instruction on evidence of other unadjudicated sexual offenses and instruction on the preponderance of the evidence standard violated due process.
U.S. v. Madden, 2013 WL 4400388 (11^th Cir. 2013):

Holding: Where the indictment charged Defendant with possessing a firearm “in furtherance of” a drug trafficking crime, but the jury instruction allowed conviction “during and in relation to” a drug trafficking offense, this was an improper constructive amendment of the indictment and plain error.
U.S. v. House, 2012 WL 2343665 (11^th Cir. 2012):

Holding: Where Officer was charged with willfully violating a person’s civil rights, jury instruction should have stated that a traffic stop is reasonable under 4^th Amendment when supported by probable cause or reasonable suspicion even if contrary to agency policy or state law, not that a stop is unreasonable if was without jurisdiction or authority.
Gray v. U.S., 2013 WL 6227617 (D.C. 2013):

Holding: In response to jury question as to whether Defendant could be convicted of aiding and abetting certain crimes, trial court erred in simply re-reading the jury instruction on aiding and abetting because under the facts here, this could have caused jury to improperly convict.
Brown v. U.S., 2013 WL 264656 (D.C. 2013):

Holding: Where during poll of jury one juror said he did not accept the guilty verdict, trial court improperly coerced verdict in then instructing jurors to resume deliberations without telling the non-dissenting jurors that they were permitted to change their votes.
Barbett v. U.S., 92 Crim. L. Rep. 91 (D.C. 10/11/12):

Holding: Trial judge abused discretion in giving a hammer instruction after jury appeared deadlocked where judge had a policy of always giving such an instruction since a “‘uniform policy’ without exercising her discretion … is the definition of an abuse of discretion.”
Blaine v. U.S., 89 Crim. L. Rep. 191, 2011 WL 1584751 (D.C. 4/28/11):

Holding: Where jury sent a note asking for more guidance on burden of proof, judge erred in giving an additional instruction on reasonable doubt, even though the instruction was accurate, because the additional information about the State not having to prove guilt beyond a shadow of a doubt or to a mathematical or scientific certainty would have indicated to jury that judge believed Defendant was guilty and State met its burden of proof.
U.S. v. Stevens, 2011 WL 1033707 (D. Md. 2011):

Holding: Where prosecutor instructed grand jurors that Defendant’s reliance on advice of counsel was irrelevant in prosecution for obstruction of an official proceeding, this was erroneous since if Defendant relied in good faith on advice of counsel she would have lacked the wrongful intent necessary to violate the law.
U.S. v. Binette, 2013 WL 2138908 (D. Mass. 2013):

Holding: In order to prove the offense of making a false statement to a gov’t agent, the Gov’t must prove that Defendant knew he was talking to a gov’t agent, and Defendant was entitled to a jury instruction on this; here, Defendant testified that even though callers to his office said they were from the SEC, Defendant was unsure whether they were from the SEC and so did not tell them truthful information.
Horton v. Warden, Trumbell County Correctional Inst., 2011 WL 590259 (N.D. Ohio 2011):