Case Law Update: 2011-2014 Cumulative Edition

Facts: Officer stopped Defendant-Driver for speeding, and asked for identification. Defendant provided an insurance card and business card, but no license. Officer learned through police dispatch that Defendant’s license was suspended. Defendant was charged with driving while suspended and convicted at trial.

Holding: This evidence is insufficient to sustain a conviction for driving while suspended. Under Sec. 302.321, the State was required to prove that Defendant’s license had been revoked and that he drove with this knowledge. However, the State failed to introduce Defendant’s driving record, and the sole evidence of revocation was the hearsay statement of police dispatch. The State claims it may be inferred that Defendant knew his license was revoked because he did not produce it during the traffic stop. But such an inference cannot stand absent additional evidentiary support. There was no evidence Defendant had been notified of the suspension or had any knowledge of it whatsoever. Conviction reversed.
In the Interest of A.B. v. Juvenile Officer, 2014 WL 5877703 (Mo. App. W.D. Nov. 12, 2014):

Even though (1) 12-year-old Juvenile touched other child’s genitals, including with his mouth, and (2) trial court believed that the “only inference” that could be drawn if a 12-year-old boy engages in such conduct is that it is done for sexual gratification, the evidence was insufficient to prove first-degree sexual molestation because such offense requires proof that the acts were done for sexual gratification, and other evidence showed that Juvenile was immature for his age, had little sexual knowledge, and did not have an erection or other sexual arousal.

Facts: Juvenile boy, who was 12 years old, was charged with first degree sexual molestation for acts with a five-year-old boy. Both boys touched each other’s genitals and put their penises in each other’s mouth. There was no evidence that either child had an erection or ejaculation. Juvenile told other boy not to tell anyone what happened. The defense presented evidence that Juvenile was immature and had less understanding of sexual matters than the average 12 year old. The State called a rebuttal witness who did not examine Juvenile but testified that mouth-to-penis contact was an “advance stage of sexual whatever” and that the “only reason” a person would engage in oral sex is to satisfy sexual desire. The trial court found that the “only inference” from touching a five-year-old’s penis was sexual gratification.

Holding: While we accept as true all inferences favorable to the State, they must be reasonably drawn from the evidence. The “integrity of the inference” must be established before it can sufficiently support a judgment that the act was committed. Secs. 566.067 and 566.010 require proof that the touching of the genitals was done for sexual arousal or gratification. Here, the incidents lasted only a few seconds. There was no evidence of physical arousal. Neither boy described the incident in sexual terms. There were no words spoken indicating sexual arousal or sexual intent, or additional actions such as rubbing, moving a hand up and down, or use of a lubricant to show this. The issue here is whether an inference based solely on the act’s occurrence has sufficient “integrity” to prove beyond a reasonable doubt that Juvenile acted for the purpose of satisfying sexual desire. “We are not persuaded that intent can be inferred from the act alone” when dealing with a juvenile. Juvenile’s sexual knowledge was much lower than his stated age. Judgment reversed and Juvenile discharged.
State v. Gray, 446 S.W.3d 291 (Mo. App. W.D. 2014):

Evidence was insufficient to convict Defendant-bus driver of sexual contact with a student, Sec. 566.086.1, where Defendant touched victim during time he was receiving unemployment benefits, so Defendant was not then “employed” by the school bus company.

Facts: Defendant was a school bus driver during the school year, which ended in May 2012. In June 2012, Defendant visited one of the students at her house and touched her breasts. During June 2012, Defendant was receiving unemployment benefits. He was convicted of sexual contact with a student.

Holding: Sec. 566.086.1 provides that a person commits the crime of sexual contact with a student if he is “a person employed by an entity that contracts with the public school district to provide services.” Defendant claims the State failed to prove he was “employed” by the bus company in June 2012, since he was receiving unemployment benefits. Missouri statutes define “employee” in at least three different chapters. However, they show that a person is an employee if that person is currently providing a service, not has provided a service in the past. Here, Defendant provided bus-driver services through May 2012, but not in June 2012 when the sexual contact occurred. He was unemployed under the law because he was not receiving actual work pay from the bus company. Thus, he was not “employed” by the bus company, and the evidence was insufficient to convict under Sec. 566.086.1. However, court enters conviction for lesser-included offense of first-degree sexual misconduct, Sec. 566.090. Remanded for resentencing on lesser offense.
State v. Coleman, 2014 WL 4815414 (Mo. App. W.D. Sept. 30, 2014):
Even though Defendant (1) went into bank with grocery bag and told teller to “do me a favor. Put the money in this bag,” and (2) told a manager to “stop where you are and don’t move any farther,” the evidence was insufficient to convict of second degree robbery because this evidence didn’t show use or threatened use of physical force.

Facts: Defendant went into a bank with a grocery bag, and told teller to “do me a favor. Put the money in this bag.” When the bank manager approached, Defendant told her to “stop where you are and don’t move any farther.” The teller gave Defendant money and he fled. He was convicted of second degree robbery.

Holding: Second degree robbery, Sec. 569.030.1, requires proof that Defendant used or threatened use of physical force to steal property. The State argues that Defendant’s statements here were akin to “this is a holdup.” But “holdup” implies possession of a weapon, and Defendant’s statements did not. Even though the victims may have felt threatened, under 569.010, whether a defendant has impliedly threatened the immediate use of physical force is determined by the defendant’s actions, not the reactions or perceptions of the victims. The video in this case showed that Defendant never placed his hand in his pocket or implied he had a weapon. The evidence is insufficient to support second degree robbery, but is sufficient to support the lesser-included offense of stealing, Sec. 570.030. Conviction for second degree robbery vacated, and conviction for stealing entered. Remanded for resentencing.
State v. Barker, 2014 WL 4547839 (Mo. App. W.D. Sept. 16, 2014):

Even though Defendant-Wife knew that Husband had viewed child pornography on their computer, had deleted it, and had later restored the computer after it crashed, the evidence was insufficient to convict Wife of promoting child pornography as an accessory, because Wife’s actions were not with the purpose of committing the offense.

Facts: Husband was charged with a child pornography offense for pornography found on the family computer. Defendant-Wife was also charged as an accessory. Wife had known that Husband viewed child pornography on the computer, and had previously deleted it and installed parental controls. Also, the computer crashed several times, and Wife restored the computer.

Holding: Under Sec. 562.041, a person is criminally responsible for the conduct of another either before or during an offense if with the purpose of promoting the offense, he aids or agrees to aid or attempts to aid such other person in planning or committing the offense. The evidence must show that the accomplice had the mental state of having “the purpose to promote the offense.” Conduct without the requisite mental state is insufficient to convict. Here, Wife saw Husband view child pornography, but this was long before she restored the computer. There was no evidence why the computer crashed and Wife restored it. The State argues that Wife’s participation in restoring the computer when she had known her husband used it to access child pornography permits an inference that Wife restored it for that purpose. However, criminal intent cannot be inferred from circumstances that could or may give rise to a suspicion that a principal is or will commit a crime. If the State’s argument were accepted, a person who buys a computer for someone previously convicted of child pornography could be an accessory if a crime is later committed. Someone who pays for internet access could be an accessory. A parent whose child has driven drunk before and who lets the child drive again could be an accessory to DWI. Giving money to a drug addict who uses it to buy drugs could be an accessory. Accomplice liability requires the State to prove not merely conduct that technically facilitates the commission of a crime, but that such conduct was engaged in with the purpose to aid or encourage the commission of the crime. Defendant discharged.
State v. Wright, 2014 WL 4547825 (Mo. App. W.D. Sept. 16, 2014):

Even though (1) police observed Defendant and other people go in and out of a known drug house numerous times, and some of them apparently exchanged things with different people driving up in cars, (2) police found large amounts of marijuana at the house when other people were there, but not Defendant, and (3) months later, Defendant told police that he hadn’t sold marijuana for “more than a month,” the evidence was insufficient to convict of possession with intent to deliver more than 5 grams of marijuana because the State failed to prove Defendant had access or control over the premises, or constructive possession of the marijuana.

Facts: On March 18, 2011, police conducted a controlled drug buy at a house. Defendant was on the porch, went in the house, and came out with the confidential informant. On March 28, 2011, police conducted surveillance at the house. They again saw Defendant, whose van was parked outside the house. Various people came and went to the house, and exchanged things outside the house, including with people in cars. Later that day, police executed a search warrant and found more than 100 grams of marijuana hidden in the house, but Defendant was not at the house. Defendant’s daughter was at the house. In November 2011, Defendant was arrested. He was found with marijuana hidden in his vehicle. He said he hadn’t sold marijuana “for more than a month.” He was charged with possession with intent to distribute more than 5 grams of marijuana for conduct occurring on March 28, 2011.

Holding: The evidence fails to show that Defendant had constructive possession of the marijuana in the house on March 28, 2011. Defendant was not present at the house when the search warrant was executed. Most of the marijuana was hidden in the house, not in plain view. Defendant’s involvement with the confidential informant at the controlled buy on March 18 is unclear, and the confidential informant did not testify. Defendant’s admission that he last sold marijuana more than a month ago is vague; Defendant did not admit to selling marijuana on March 28, when police found the 100 grams. Defendant discharged.
State v. Blair, 2014 WL 3408294 (Mo. App. W.D. July 15, 2014):

Evidence was insufficient to support first-degree robbery where there was no evidence Defendant stole any property from Victim, and appellate court refuses to enter conviction for lesser-included offense of attempted first-degree robbery because State expressly refused to submit an instruction on that at jury trial.

Facts: Defendant was charged, in relevant part, with first-degree robbery and ACA. The evidence showed that Defendant and accomplices approached a victim, intending to rob him. However, Victim said he had nothing in his pockets. Defendant and accomplices shot victim, and ran away. A witness testified that one of the co-defendants had called someone before and after the incident. Later, Victim’s cell phone was found in possession of another person. There was no evidence how that person obtained the cell phone.

Holding: The evidence was insufficient to support first-degree robbery because the evidence did not show that Defendant forcibly stole any property from Victim. The State suggests that the Victim’s cell phone was taken. However, there was no evidence that Victim had a phone in his possession at the time of the incident. There was no evidence how the other person later obtained the phone. There cannot be an inference that the phone call after the incident was made from Vicitm’s cell phone, since another phone call was made before the incident. Usually, the appellate court would enter a conviction for the lesser-included offense of attempted first-degree robbery, which the evidence did support. However, the State made an express strategic decision at trial not to submit attempted first-degree robbery, and has not wavered from that position on appeal. “Under these circumstances, we so no reason to reward the State for its conscious and deliberate decision not to submit the lesser offense, and accordingly, we choose not to exercise our discretion to enter a conviction on the lesser offense. Robbery and ACA convictions vacated.
Damon v. City of Kansas City, 2013 WL 6170565 (Mo. App. W.D. Nov. 26, 2013):

(1) Claims that municipal ordinances are unconstitutional are not within the “exclusive” jurisdiction of the Missouri Supreme Court, but are also within the jurisdiction of the Court of Appeals; (2) Plaintiffs who have received a notice of violation but have not yet gone to court or paid their fine have standing to assert their claims in this action because they do not have an adequate remedy in their ordinance violation cases since Private Company which administers the red light fine collection program is allowed to act in law enforcement, prosecutorial and adjudicative roles under the ordinance (disagreeing with Eastern District cases); (3) the “notice of violation” under the ordinance appears to conflict with Rule 37 because it does not state the address of a court (but rather directs payment to a private company) and does not command appearance before a court; (4) Plaintiffs have alleged sufficient facts to survive a motion to dismiss in contending that the ordinance does not have a substantial relationship to public safety because it actually increases accidents, reduces the number of police officers, and is really a revenue collection program; (5) the ordinance conflicts with state law which requires assessment of points for moving violations; and (6) if the ordinance is “criminal” in nature, then the rebuttal presumption that the owner of the vehicle is the driver is unconstitutional because it violates the presumption of innocence as to every element of the crime and because it invades the fact-finding function of the jury.

Facts: Plaintiffs raise numerous claims about validity of City “red light” ordinance. The ordinance provides that no vehicle shall be “driven” into an intersection with a red light. The ordinance also creates a “rebuttable presumption” that the owner of the vehicle is the driver. Finally, the ordinance provides that upon filing of an information in municipal court, a summons will issue pursuant to Missouri Supreme Court Rule 37.

Holding: As an initial matter, the Court of Appeals determines that it has jurisdiction in this case because claims that municipal ordinances are unconstitutional are not within the “exclusive” jurisdiction of the Missouri Supreme Court, but may also be decided by the Court of Appeals. Additionally, contrary to rulings by the Eastern District, the Western District finds that plaintiffs who have received notices of violation but who have not paid their fines do have standing to proceed as plaintiffs here because they do not have an adequate remedy at law in their ordinance violation cases since the ordinance allows the private company which collects the fines to play law enforcement, prosecutorial and/or adjudicative roles. The Supreme Court has recognized that subjecting a defendant to criminal sanctions involving his liberty before a tribunal that has a direct, personal and substantial pecuniary interest in convicting him is a denial of due process. Further, to allow private prosecutors, employed by private citizens, to participate in the prosecution of a defendant is fundamentally unfair. On the merits, the ordinance is invalid or unconstitutional for several reasons. First, there are multiple problems with the “summons procedure” for contesting a violation under the ordinance. The “notice of violation” is not delineated a “summons” and gives confusing and conflicting instructions on how to pay a fine or contest a violation. The notice conflicts with Rule 37 because it does not state the address of a municipal court, and does not command appearance in any court. Second, Plaintiffs have alleged sufficient facts to survive a motion to dismiss in contending that the ordinance does not have a substantial relationship to public safety because it actually increases accidents, reduces the number of police officers, and is really a revenue collection program. Third, the ordinance conflicts with state law, Sec. 302.302.1(1), which requires assessment of points for moving violations. Finally, if the ordinance is “criminal” (as opposed to “civil”), then the rebuttal presumption that the owner of the vehicle is the driver is unconstitutional because it violates the presumption of innocence as to every element of the crime and because it invades the fact-finding function of the jury.
In the Interest of J.N.C.B. v. Juvenile Officer, No. WD75299 (Mo. App. W.D. 6/28/18):

Mere entry into a building with valuables in it, without more, is not sufficient to prove an intent to steal necessary for conviction for burglary.

Facts: In response to an alarm at 7:00 p.m., police were called to a former school building which contained various property. When they arrived, they found the door propped open, and Defendant-juvenile and several other juveniles in the building laughing and talking. One of the juveniles had a broom from the building, although police did not think they intended to steal the broom. Defendant was ultimately convicted at trial of second degree burglary. He appealed.

Holding: A person commits second degree burglary if he knowingly enters unlawfully in a building for the purpose of committing a crime therein. The parties agree that Defendant entered the building unlawfully (which is first degree trespassing), but Defendant argues the evidence is insufficient to prove that he intended to commit a crime therein. The State argues that intent to steal is presumed when there are items of value in a building, and that the mere presence of valuables alone, with no other indicia of intent to steal, is sufficient to prove intent to steal beyond a reasonable doubt. Although cases often cite this inference, it has always been in connection with additional supportive facts and inferences, such as forced entry, flight, weapons, burglary tools, confessions, or movement of valuables. Here, there are none of these additional facts, except possession of the broom, but police testified they didn’t believe anyone intended to steal the broom. Where a permissible inference is the sole basis for a finding of guilt, due process requires that the conviction may not rest entirely on that inference unless other proven facts are sufficient to support the inference of guilt beyond a reasonable doubt. The State is required to prove Defendant’s intent beyond a reasonable doubt. The evidence here is insufficient to do that. The State also argues that since Defendant did not offer any other reasons for being in the building other than to steal, this proves his intent, but the 5^th Amendment requires the State to bear the burden of proving every element of the crime beyond a reasonable doubt. Conviction reversed.
State v. Whites, No. WD75236 (Mo. App. W.D. 6/25/13):

Evidence was insufficient to convict Defendant-passenger of possession with intent to distribute marijuana for marijuana found in backpack in truck bed, even though truck smelled of marijuana, the bag was on the passenger side, and Defendant had a large amount of cash.

Facts: Officer stopped a pickup truck for a license plate violation. Defendant was a passenger in the truck. After doing license checks, Officer saw plastic bags with drugs in them by the curb about 15 feet behind where the truck stopped. Officer arrested driver and Defendant-passenger. Officer found $1,346 in cash in Defendant’s wallet and a receipt showing a $5,000 deposit into a Bank of America account. Driver and Defendant denied knowledge of the bags of drugs by the curb. Officer then searched truck and smelled “strong odor of marijuana.” Officer then found a backpack in the bed of the truck behind the passenger side, which contained much marijuana and a scale. Defendant-passenger was convicted of possession of marijuana with intent to distribute due to the marijuana in the backpack.

Holding: In order to prove guilt, the State must show that Defendant had constructive possession of the marijuana in the backpack. Because Defendant did not have exclusive control of the truck, the State was required to show additional incriminating evidence to prove knowledge and control of the marijuana. The odor of marijuana could support an inference that Defendant was aware of the marijuana, but other evidence here does not. The fact that the backpack was in the bed of the truck on the passenger side does not prove that Defendant put it there. Also, the fact that Defendant had $1,346 in cash does not prove guilt since the cash was not in denominations typically used in drug sales. Also, the fact that someone had deposited $5,000 into a bank account does not support guilt because there are many legitimate reasons for a person to do this, and it is unlikely a person who made money selling drugs would make such a deposit because of the easy ability for law enforcement to trace bank deposits. Conviction reversed.
State v. Maldonado-Echeverria, 2013 WL 1800201 (Mo. App. W.D. April 30, 2013):

Even though Defendant-Passenger (1) was in a truck that pulled off interstate before a drug checkpoint; (2) was nervous when stopped by police and wouldn’t look at Officer; (3) told a different story than Driver; (4) had a cellphone and sat next to a GPS device; (5) the vehicle had air freshener in it, and (5) Defendant-Passenger had a warrant out for his arrest, the evidence was insufficient to show that Defendant-Passenger had knowledge of methamphetamine hidden in the bed liner of the truck.

Facts: Defendant was a passenger in a truck. Police set up a ruse drug checkpoint on an interstate. The truck pulled off the interstate after seeing the checkpoint and was stopped for speeding. Driver and Defendant-Passenger would not look at Officer. The truck smelled of air freshener. Driver said they were going to Marshall to pick up a truck. Defendant said they were going to Sedalia, but when Officer again asked Driver about this, Driver said Defendant-Passenger had not been told they were going to Marshall. Defendant-Passenger was sitting next to a GPS device. Both men had cellphones, but neither had the other’s contact information on their phones. Defendant-Passenger also had an outstanding warrant for his arrest, but he said he was “going to take care of it soon.” Officer found methamphetamine hidden in the truck’s bed liner behind Driver. Defendant was convicted of second-degree trafficking.