Editor:Ellen H. Flottman, Esquire
Constitutional challenge to second degree statutory rape statute waived when not raised before guilty plea. Ross v. State, No. 90807 (Mo. banc, April 26, 2011), Breckenridge, J.
Postconviction movant challenged Section 566.034 on the grounds that
the bill under which the statute was passed violated the single subject
provision of the constitution, in that it enacted multiple statutory
provisions that did not relate to sexual offenses.
Held: Affirmed. Because this constitutional
claim was not raised at the earliest possible opportunity, it was
waived by appellant's plea of guilty.
The crime of driving while revoked encompasses "driving while suspended" as prior offenses. State v. Acevedo, No. 30432 and 30434 (Mo. App. S.D., April 18, 2011), Barney, J.
Defendant was convicted of two counts of driving while revoked.
Held: Affirmed. Any cancellation, suspension or revocation of the driver's license constitutes a prior "driving while revoked."
Witness's statement that he shot the victim should have been admitted as impeachment evidence. State v. Winfrey, No. 90830 (Mo. banc, April 12, 2011), Breckenridge, J.
Defendant was convicted of murder in the first degree and robbery in the first degree.
Held: Reversed and remanded for a new trial.
The trial court erred in refusing to allow the Defendant to
cross-examine a witness who had previously admitted to shooting the
victim. While the statement was hearsay, it was admissible in this
case for the non-hearsay purpose of impeaching the declarant's
credibility. As the statement casts serious doubt on the truthfulness
of his other testimony, as well as his bias, it should have been
Reversal of convictions used as aggravators requires vacation of death sentence. State v. Bowman, No. 90618 (Mo. banc, April 12, 2011), Teitelman, J.
Defendant was convicted of murder in the first degree and sentenced to death.
Held: Death sentence reversed and remanded.
Two of the aggravating circumstances found by the jury consisted of
murder convictions that were reversed and vacated on appeal.
"Tried to have sex with" victim is sufficient to instruct
substantial step for attempted forcible rape, but instruction violated
unanimity rule in not specifying which occurrence was at issue. State v. Parsons, No. SD30351 (Mo. App. S.D., April 11, 2011), Burrell, J.
Defendant was convicted of attempted forcible rape, which had been
submitted as a lesser included offense of the charged forcible rape.
Held: Affirmed. Defendant asserted on appeal
that the verdict director did not specify the conduct that constituted
the alleged substantial step or where the conduct occurred. There
were two different allegations of alleged forcible conduct, one in the
bedroom and one in the bathroom. However, although the instruction was
error, it did not result in manifest injustice and therefore did not
rise to the level of plain error.
Rosalynn Koch, Esquire
Predatory sexual offender may be sentenced to serve life imprisonment before becoming eligible for parole. Huck v. State of Missouri, No. 94584 (Mo. App. E.D., April 26, 2011), Odenwald, J.
Defendant pled guilty to concurrent terms of life imprisonment as a
predatory offender, with the state standing mute as to the number of
years he would be required to serve before parole eligibility. The
court ordered him to prison for life without eligibility for parole.
Appellant filed a postconviction motion, claiming that the court was
required to set a specific term of years insofar as he was eligible for
parole as a predatory offender. The motion court denied relief.
Held: Affirmed. Section 558.018l7(5) provides that a
predatory sexual offender may be required to serve any amount of time
within the statutory range of punishment before becoming eligible for
Sex offender registration requirement under federal statute
applies to offenses resulting in suspended imposition of sentence. John Doe v. Keathley, No. 72121 (Mo. App. W.D., April 26, 2011), Ahuja, J.
Doe filed a declaratory judgment challenging the application of SORNA
(the federal Sex Offender Registration and Notification Act) to his
conviction for which he received a suspended imposition of sentence.
The trial court found for Doe.
Held: Reversed. The federal, not state, definition
of "convicted" applies in interpreting SORNA's registration
requirement. Under federal law, a guilty plea, standing alone,
constitutes a conviction.
Admissions in guilty plea in federal court, to the same
conduct for which the defendant is standing trial, are admissible at
state trial even if the defendant was not warned that his plea might be
used against him in state court. State of Missouri v. Rasheed, No. 94226 (Mo. App. E.D., April 12, 2011), Gaertner, J.
At the defendant's drug trafficking trial, the state read excerpts
from his guilty plea transcript in federal court, acknowledging guilt
of similar charges.
Held: Affirmed. The federal court was not
obligated to inform him that his plea could be used against him in
state court, as this was a collateral consequence of the plea.
Possession of multiple photographs of child pornography constitutes only one offense. State of Missouri v. Liberty, No. 71724 (Mo. App. W.D., April 12, 2011), Newton, J.
The defendant was convicted of eight counts of possessing child
pornography (Section 573.037, RSMo) after a number of photographs
were found on his computer.
Held: Affirmed in part, reversed in part, and remanded.
Section 573.037 prohibits the possession of "any obscene material that
has a child as one of its participants." The use of the terms "any"
and "material" indicate the legislature's intent to criminalize the
collective possession of the photographs as one offense, as does the
enhanced penalty for possession of over twenty images.
Computer check of a license plate number is not a Fourth Amendment "search." State of Missouri v. Loyd, No. 71836 (Mo. App. W.D., April 12, 2011), Ellis, J.
Defendant was convicted of driving while revoked after a stop based
upon results of a computer check, indicating that outstanding warrants
were associated with his car.
Held: Affirmed. The court follows federal jurisprudence interpreting the Fourth Amendment, holding that computer checks are not searches.
State waived claim that postconviction motion was out of
time by failing to raise untimeliness as an affirmative defense in
motion court; movant waived claim that the motion court's findings were
insufficient by failing to move to amend the judgment under Rule
78.07. Gerlt v. State of Missouri, No. 72225 (Mo. App. W.D., April 12, 2011), Witt, J.
Movant filed a postconviction motion one day out of time but the
state did not object to proceeding on the merits. The motion court
denied relief, and movant appealed.
Held: Affirmed. The time limits under Rules 24.035
and 29.15 are not jurisdictional and are waived if not timely asserted
in the motion court. The movant's claim that the motion court failed
to make required findings of fact and conclusions of law is waived by
movant's failure to follow Rule 78.07, which provides that such claims
must be raised in a motion to amend the judgment filed in the motion
The Missouri Bar Courts Bulletin, 11-May