Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was convicted of harassment under Sec. 565.090.1(5) for text messages, phone calls and name-calling to an ex-girlfriend. Sec. 565.090.1(5) provided that a person commits the crime of harassment if he knowingly makes repeated unwanted communication to another person. After Defendant’s trial but while his appeal was pending, the Supreme Court found in State v. Vaughn, 366 S.W.3d 513 (Mo. banc 2012), that Sec. 565.090.1(5) was overbroad under the First Amendment because it criminalized protected speech. Defendant contends that his conviction constitutes plain error.

Holding: Even though Defendant did not raise the constitutional issue in the trial court, plain error results if a person is convicted under an unconstitutional statute. Such a conviction is not merely erroneous, but is illegal and void. Where the law changes after a judgment but before the appellate court renders its decision, the change in law must be followed. Conviction vacated.

State v. Anderson, No. ED97522 (Mo. App. E.D. 11/20/12):

Even though Defendant had marijuana in his hotel room and made a statement “it’s mine” at the police station, the evidence was insufficient to convict of possession of cocaine found in a straw between the hotel nightstand and bed.

Facts: Police received a report of a party and marijuana smell coming from a hotel room. They went to the room, and Defendant consented to let them in. They found in the room marijuana and scales in various parts of the room. They also found a straw between the hotel nightstand and bed that contained a small amount of cocaine residue. Defendant said he was the only person who lived in the hotel room, although his nephew had visited for a few hours. At the police station, the marijuana evidence and straw were on a table. Defendant at some point said “it’s mine” but also said that he had never seen the straw before. Defendant was convicted of cocaine possession.

Holding: There is insufficient evidence to prove that Defendant constructively possessed the cocaine. Defendant did not have exclusive possession of the room, since other hotel staff had access. None of Defendant’s belongings were close to the straw, and Defendant wasn’t close to it when the police came. The amount of cocaine was minute; there were no other cocaine-related items in the room. There was no evidence how long Defendant rented the room to allow jurors to infer that everything was his. Other people were in the room. Defendant’s conduct did not imply knowledge – he consented to a search, was not nervous and did not give false information. Defendant confessed to the marijuana possession. The statement “it’s mine” is ambiguous in this case because the jury would have to infer that Defendant saw the straw on a table at the police station and was referring to it, but he denied having seen the straw. Defendant’s possession of marijuana does not prove that he knowingly possessed cocaine. Conviction vacated.
State v. Jones, No. ED97121 (Mo. App. E.D. 6/19/12):

Holding: Evidence was insufficient to convict of first degree statutory sodomy where there was no evidence that Defendant had put victim’s hand on his penis.
State v. Richie, No. ED96753 (Mo. App. E.D. 6/5/12):

Even though Defendant ran into a parking garage, hid and did not have a car parked there, where this garage was open to the public, this did not constitute first degree trespassing, Sec. 569.140.

Facts: Defendant was charged with trespassing for “knowingly enter[ing] unlawfully upon real property located at 707 Pine and owned by the City of St. Louis, which said real property was enclosed in a manner designed to exclude intruders.” Defendant had run through a public door into the garage and ultimately hid under a car. A sign stated the garage was “open to the public.” After being found guilty at trial, Defendant appealed.

Holding: The evidence is insufficient to convict because the State charged Defendant with “knowingly enter[ing] unlawfully,” yet there was a sign stating that the garage was “open to the public.” The State did not present any evidence that “intruders” were not welcome in the garage or that a person had to have a car parked there to come into the garage. Even though Defendant’s actions were suspicious, they weren’t trespassing, as charged. Conviction reversed.
State v. Kelly, No. ED96743 (Mo. App. E.D. 4/24/12):

Even though Defendant-sex offender left one address and didn’t establish a new permanent address for several months, the registration statute, 589.414, required that he report changing from the prior address within three days.

Facts: Defendant-sex offender lived at one address but vacated it in December. He did not register a new address until March, when he said he obtained a new permanent address. Defendant was convicted of failure to report change of address as a sex offender for not reporting a change within three days after leaving the first address in December.

Holding: Defendant claims he was not required to update his address until he had a new “permanent” address and that he was transient between December and March. This appears to be an issue of first impression in Missouri. Federal courts have held, however, that the plain language of SORNA requires registration when one leaves a residence with no intent to return. 589.414.1 requires updating registration “not later than three business days after each change.” The statute makes no reference to a “new” residence, but only to a “change” in residence. Thus, when a sex offender leaves a residence with no intention to return, even if he leaves to become homeless, his residence has changed as it is no longer that of the original residence, and he must update his registration. Conviction affirmed.
Walters v. State, No. ED96196 (Mo. App. E.D. 2/21/12):
Holding: Where State charged multiple acts of sexual abuse and Victim testified to many different acts, but there was no testimony that Defendant touched Victim’s vagina when she was less than 17 (as charged in one of the counts) or that he touched her breasts when she was less than 17 (as charged in another count), there was insufficient evidence to convict of second degree statutory sodomy and second degree child molestation on these counts.
State v. Smith, No. ED96004 (Mo. App. E.D. 12/27/11):

Where Defendant was only seen in yard of victim near time of burglary and when stopped by police shortly thereafter did not act suspiciously, evidence was insufficient to convict of burglary.

Facts: Homeowner saw Defendant walk past her side window toward the front of her house. She then heard a banging noise on her door, and she called 911. Homeowner ran out of the house through another door and heard someone yell “hello” from inside the house. Homeowner did not see who was in the house. Shortly thereafter, police stopped Defendant two blocks from Homeowner’s house. He did not try to flee, behave suspiciously or have any stolen items. Defendant was convicted of first-degree burglary at trial.

Holding: The conviction here rests on the coincidence of Homeowner seeing Defendant walk through her yard, someone breaking into her home, and Defendant’s presence two blocks away shortly thereafter. Homeowner never saw the person who entered her home, and the State never established a detailed timeline of events from when Homeowner saw Defendant to the time of the burglary. The evidence was not sufficient for a reasonable juror to find Defendant guilty beyond a reasonable doubt. Nor can the appellate court enter a conviction for trespassing because the State charged Defendant with unlawfully entering a habitable structure; where the charge specifies the act constituting the crime, the State must prove that act. The State could have alternatively charged the Defendant with burglary of the house and trespass of the yard, but did not do so. Defendant discharged.
State v. Sanders, 2014 WL 6735132 (Mo. App. S.D. Nov. 25, 2014):

Evidence was insufficient to prove “forcible” sodomy, Sec. 566.060.1, where Victim’s zipper was undone and Defendant put his hand inside her pants and Victim’s vagina, even though Victim pulled his hand away and zipped up her pants.

Facts: Defendant was convicted of “forcible” sodomy of his daughter. Victim’s zipper was undone, and she was not wearing underwear. Defendant put his finger in her zipper and in her vagina. Victim pulled his hand away and zipped up her pants.

Holding: The evidence is insufficient to prove “forcible” sodomy. Under Sec. 556.061(12), “forcible compulsion” is defined as “physical force that overcomes reasonable resistance,” or a threat that places a person in reasonable fear of death, serious physical injury or kidnapping. The State claims Defendant used physical force that overcame reasonable resistance. However, at best, the evidence shows Defendant placed his finger in his mentally ill daughter’s exposed vagina without her consent, as shown by her pushing his hand away and zipping her pants. To find otherwise would essentially collapse the “reasonable resistance” component of the definition of forcible compulsion into the lack-of-consent element of deviate sexual assault under Sec. 566.070.
Washburn v. Kirk, 2014 WL 3932553 (Mo. App. S.D. Aug. 12, 2014):

Holding: Even though Mother of student tried to talk to Teacher at a store but Teacher rebuffed Mother’s attempts, and subsequently Mother attended a school meeting which she was supposed to attend, trial court erred in entering an order of protection on behalf of Teacher against Mother on grounds of “stalking,” since Mother’s actions did not constitute a repeated course of conduct that served no legitimate purpose.

Facts: Mother saw Teacher at a store and sought to talk to her. Teacher told Mother to make an appointment at school. Mother kept insisting on talking to teacher, and said loudly that Teacher mistreated Mother’s son and wouldn’t talk to her. Later, Mother went to a parent event at the school. Teacher obtained an order of protection against Mother on grounds of stalking.

Holding: “Stalking” occurs when any person purposely and repeatedly engages in an unwanted course of conduct that serves no legitimate purpose, Sec. 455.010(13)(a) and (b). Here, the encounter at the store was a random event where Mother sought to talk to Teacher. This was not a repeated course of conduct that had no legitimate purpose. The school event had a legitimate purpose in that Mother was supposed to be there. The Adult Abuse Act was not intended to be a solution for minor arguments between adults. The potential for abuse is great because of the harm of being labeled a “stalker” and possible criminal prosecution for violation of the criminal stalking statute, Sec. 565.225. Trial courts must exercise caution to prevent abuse of the stalking provisions. This was a minor argument between adults. The entry of an order of protection was a misapplication of law.
State v. Hansen, 2014 WL 1512479 (Mo. App. S.D. April 18, 2014):

Even though (1) child was on a restricted vegetarian diet, had low weight, and sometimes was denied sweets as punishment, and (2) an expert suggested that child suffered a substantial risk of harm to his body, where Defendant was acquitted of endangering the welfare of a child in the first degree by creating a substantial risk of harm by failing to provide adequate nutrition, the evidence was insufficient to convict of abuse of a child, Sec. 568.060 RSMo. Cum. Supp. 1997, by knowingly inflicting cruel and inhuman punishment upon child by restricting food.

Facts: Defendant and his family held religious beliefs which called for eating a vegetarian diet and eating only two meals a day. Defendant would punish his children by taking away sweets and garnishes on their food, such as jelly. One of his children had low weight, but was healthy and participated in bike riding and long hikes. The State charged Defendant with abuse of a child for inflicting “cruel and inhuman punishment” on his child by restricting food in this way. The State also charged him with endangering the welfare of a child in the first degree by knowingly acting in a manner that created a substantial risk to child by failing to provide adequate nutrition. Defendant was acquitted of the endangering count, but convicted of the abuse of a child count.

Holding: The version of Sec. 568.060 in effect at the time of the crime was the 1997 version, which provided that a person commits the crime of abuse of a child if they knowingly inflict “cruel and inhuman punishment” on child. “Cruel and inhuman punishment” was not defined in the statute, but was defined by caselaw as “severe, rough, or disastrous treatment.” The current statute requires proof of “physical or mental injury as a result of abuse or neglect” or placing child “in a situation in which child may suffer physical or mental injury as a result of abuse or neglect.” The State claims that Defendant inflicted “cruel and inhuman punishment” because the child was given only two meals a day, was sometimes withheld sweets, and the State’s expert suggested that child suffered a substantial risk of harm. The problem with the State’s argument is the acquittal of the child endangerment charge, which mirrored the charge here in that it called for conviction if Defendant created a substantial risk to child by failing to provide adequate nutrition. Furthermore, the evidence showed that the family ate a diet consistent with their sincerely held religious beliefs. It is not within common knowledge that being denied dinner or dessert is “cruel and inhuman punishment.” The child was small, but otherwise healthy, and participated in bike riding and long hikes. “This is an unusual and troubling case, but it would be the first time that a conviction was obtained based on the sincere and religiously held diet choice of the parents. These food choices and the slight deprivation alone cannot stand as the basis for a claim that the son was the victim of severe, cruel, or unusual punishment.” Conviction vacated.
Fowler v. Minehart, 2013 WL 5936385 (Mo. App. S.D. Nov. 6, 2013):

Holding: (1) Even though Person against whom order of protection was sought threatened a School Official by saying, “I’m going to get even with you. I’ll catch you off school campus and I’ll take care of you,” the evidence was insufficient to support a full order of protection for “stalking,” Sec. 455.010(13), because there was no evidence that Person initiated “repeated” contact with School Official; (2) Even though there were arguably two instances of contact (although they occurred on the same day), it was not disputed that School Official had initiated the second instance of contact because he wanted to talk to Person so this incident does not count under the statute.
State v. Politte, 2013 WL 658270 (Mo. App. S.D. 2/25/13):

Even though the evidence was sufficient to show that Defendant had “knowledge” of large amounts of marijuana in a trailer with multiple occupants, the evidence failed to show that Defendant had “control” over that marijuana, which was also necessary to convict.

Facts: An informant told police that he had “talked to Kientzel and several others” and had seen “Kientzel” with a quarter pound of marijuana at a trailer occupied by Kientzel and others. Police obtained a warrant to search the trailer and detached garage “occupied by Kientzel and others.” “Kientzel” was not there, but multiple other occupants were. There was loose marijuana in plain view in the living room where Defendant was. A quarter-pound brick was found under the couch, and other bricks in the detached garage. When questioned about the marijuana, Defendant said police “should talk to Kientzel.” The State charged Defendant with possession with intent to distribute, but he was found guilty at a bench trial of the lesser felony of possessing more than 35 grams of marijuana, Sec. 195.202. He appealed.

Holding: Defendant concedes that the evidence supports a conviction for possession of misdemeanor marijuana, but not felony possession of the bricks. To show possession of the bricks, the State had to prove that Defendant both knew of and controlled these drugs. The State contends that Defendant’s routine access to the living room, his proximity to the loose marijuana in the living room, and the large quantities of marijuana in the garage prove this, as well as the fact that Defendant did not feign surprise or ignorance when the bricks were found, but said to talk to Kientzel. These facts, however, may infer knowledge of the drugs (bricks), but do not infer control or ownership of them. Even though Defendant had access to the living room, multiple other occupants did, too, and there was no showing that Defendant used the detached garage. Hence, the evidence is insufficient to support felony possession. Conviction for misdemeanor possession entered.
State v. Slavens, No. SD31613 (Mo. App. S.D. 9/12/12):

Sec. 577.010 does not authorize DWI conviction for operating a non-road “dirt bike” on private property in an intoxicated condition.

Facts: Defendant was driving a “dirt bike” on his own private property when he had an accident that resulted in him being injured, resulting in the Highway Patrol being called. His BAC was .226. He was charged and convicted of DWI.

Holding: The elements of DWI under Sec. 577.010 are (1) that the defendant operated a motor vehicle and (2) that he did so in an intoxicated condition. However, the term “motor vehicle” is not defined in the statute. The question is whether the legislature intended to criminalize operating a non-traditional motor vehicle on private property. The rule of lenity requires that all ambiguity in a statute be resolved in a defendant’s favor. There is an ambiguity in Sec. 577.010 in its potential application to situations where a person operates a non-street legal motorized vehicle on private property. Since the statute allows for more than one interpretation, it has to be interpreted in Defendant’s favor so as not to prohibit this. Also, a contrary interpretation would lead to illogical results in that persons who operate golf carts on private golf courses or persons who operate motorized wheelchairs in their homes could be convicted of DWI. The legislature could not have intended these illogical results. Conviction reversed.
State v. Nephew, No. SD31482 (Mo. App. S.D. 5/21/12):

Sec. 570.040 RSMo. Supp. 2005 requires that a “stealing third” offense be based on prior stealing convictions which occurred on different days.

Facts: Defendant was charged and convicted of a “stealing third” offense, which was enhanced to a felony based on two prior stealing convictions which were both entered on the same day.

Holding: The 2005 version of 570.040 (since repealed) required that a “stealing third” conviction be based on two prior stealing convictions which occurred on different days. Here, the two prior convictions were entered on the same date, so they cannot form the basis to enhance the instant offense. The State argues that the conviction can be withheld because the judicially-noticed prior court files show that Defendant had additional prior stealing convictions. However, these cannot be counted because (1) they weren’t charged in the information as predicate offenses, (2) MACH-CR 24.021.1 Notes on Use states that the offenses used for enhancement have to be charged, and (3) 570.040 requires a trial court to determine the existence of the prior pleas of guilty. Under Collins v. State, 328 S.W.3d 705 (Mo. banc 2011), the State does not get a second chance to prove up prior convictions. Felony conviction reversed and misdemeanor conviction entered.
State v. Myers, No. SD31357 (Mo. App. S.D. 5/11/12):

Offense of “receiving” stolen property does not require proof that Defendant obtained the property from a “second person” than the owner.

Facts: Defendant sold some stolen auto parts to an auto part store. He was convicted of “receiving” stolen property.

Holding: Defendant argues that older cases (some of which pre-dated the current statute) had held that to convict of receiving stolen property, there must be at least two actors involved, i.e., the accused must receive the property from some person other than the owner; defendant also relies on older cases that stated that one cannot at the same time be the principal in a larceny and a receiver of stolen property. However, while no evidence of a second party was presented at trial, the statutory definition of “receive” as contained in Sec. 570.010(13) does not require such proof. “Receives” as used in 570.080.1 references the definition of “receiving” contained in 570.010(13). This definition only required the State to prove that Defendant acquired possession or control of the property. The plain meaning of “acquire” is “to come into possession or control of [property] often by unspecified means.” The statute does not require proof of how or from whom Defendant acquired the property. The statute only requires proof of actual possession or control of it. Conviction affirmed.
S.D. v. Wallace, No. SD31296 (Mo. App. S.D. 3/27/12):

Even though Defendant repeatedly drove near Petitioner and stared at her, this would not have caused a reasonable person to fear physical harm so did not constitute “stalking” to support issuance of an order of protection.

Facts: Petitioner for order of protection claimed that Defendant drove near Petitioner and stared at her when they’d see each other in the community. Petitioner and Defendant were involved in a feud involving Petitioner’s daughter. Defendant appealed the trial court’s entry of an order of protection.

Holding: To engage in stalking, the offender must have (1) purposely and repeatedly, (2) engaged in an unwanted course of conduct, (3) that caused alarm, (4) when it was reasonable to have been alarmed by the conduct. “Alarm” means to cause fear of danger of physical harm. Here, there was no evidence that a reasonable person in Petitioner’s situation would have feared physical harm. Petitioner did not check the box on the form for getting an order of protection that she was in fear of physical harm, and she didn’t testify to this. She didn’t claim Defendant was following her, didn’t claim Defendant had ever been violent, and didn’t claim anything that would cause a reasonable person to be in fear of physical harm.
State v. Ramsey, No. SD30846 (Mo. App. S.D. 2/16/12):

(1) Where Defendant and woman shared a one-bedroom house and cocaine was found in a trash can in the bedroom, evidence was insufficient to prove that Defendant constructively possessed it; (2) even though State claimed that Defendant’s sale of drugs proved constructive possession, this evidence could not be considered for that purpose since the State admitted this evidence at trial as hearsay and “not for its truth.”

Facts: Police searched a house and found cocaine hidden in a trash can in the bedroom. Defendant and a woman shared the house. Defendant was convicted of possession of cocaine.

Holding: The State had to show constructive possession of the cocaine by Defendant. Where control of a house is not exclusive, the State must show some additional evidence to prove a defendant constructively possessed drugs. Here, the State claims that Defendant is tied to the drugs because he allegedly sold cocaine to an informer. However, at trial, the State declined to offer this hearsay for its truth; since it was not offered or admitted as substantive evidence, the State cannot rely on it on appeal as evidence. The State claims Defendant had access to the drugs because he slept in the bedroom. That Defendant slept in the bedroom of this one-bedroom house does not reasonably suggest that his female cohabitant did not, or that either had exclusive or even superior control of the room.

State v. Shoemaker, 2014 WL 6463676 (Mo. App. W.D. Nov. 18, 2014):

Even though when Defendant-Driver was stopped by police he produced only an insurance card and business card as identification (not a driver’s license), this was insufficient to prove driving with a suspended license where State failed to introduce Defendant’s driving record or any evidence Defendant knew his license was suspended.