Each Procurement of Child Porn a Separate Offense
Ruling on whether affidavit shows probable cause to issue search warrant is “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the judge] there is a fair probability that contraband or evidence of a crime will be found in a particular place” to which a reviewing “court gives great deference [.]” Allegation of crimes, including supplying alcohol to a minor and sexual abuse, supported a finding of probable cause to search residence, including computer. Statute defining possession of child pornography contemplates each procurement as a separate unit of prosecution, so separate convictions and consecutive sentences for each count of possession of child pornography did not violate the double jeopardy clause. Evidence of other document on computer was relevant to show appellant’s access, not for the truth of the document’s content, so document was not hearsay.
State of Missouri, Respondent vs. Robin S. Roggenbuck, Appellant.
Missouri Supreme Court - SC92236
Residence-Based Denial of Non-Emergency Medicaid Affirmed
Regulations require residence in United States for five years before qualified non-citizen can receive Medicaid benefits. Regulations also provide an exception for emergencies other than organ transplant. Agency’s policy differed from federal regulations, but such departure did not control denial of benefits. Substantial and competent evidence supported application of federal regulation that supported denial, which agency applied correctly. Quotation of differing agency language was not determinative because Court of Appeals’ “primary concern is the correctness of the result reached by the administrative agency and not the route taken to reach it.”
Bertha Cruz vs. MO Department of Social Services
Missouri Court of Appeals, Western District - WD74667
Former Offense Not Sexually Violent Now
In action for confinement as a sexually violent predator, statute defines sexually violent offense to include some offenses that no longer exist, and describes all offenses having a gradation by the degree of offense. But it does not include first degree sexual assault, of which respondent was convicted under an earlier statute. Earlier statute described a “substantively different offense” with elements that “do not meet the statutory, felony definition of any of the offenses listed” in the definition of sexually violent offense. Preliminary order in prohibition made absolute and Court of Appeals order circuit court to dismiss.
STATE OF MISSOURI ex rel. JESSIE WHITAKER, Relator, vs. THE HONORABLE JOE Z. SATTERFIELD, SPECIAL JUDGE, 34TH JUDICIAL CIRCUIT, Respondent.
Missouri Court of Appeals, Southern District - SD31856
No Prejudice Shown
On claim that counsel was ineffective, “Prejudice is the reasonable probability of a different result but for counsel’s deficient performance.” Not investigating or calling witnesses, who negated a defense and provided no other, did not prejudice movant.
DARRELL TURNER, Appellant, vs STATE OF MISSOURI, Respondent.
Missouri Court of Appeals, Southern District - SD31756
Open Plea Discussed
A guilty plea on an open plea bargain is not knowing, voluntary, and intelligent unless defendant understands whether he can withdraw his plea if circuit court does not follow State’s recommendation. Motion, raising that issue, was untimely and circuit court must determine on remand whether any exception to timely filing applies. Matter raised in argument, but not in point relied on, is waived.
Travis M. Stanley, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED97795
Change in Strategy Okay
Even though trial counsel promised evidence in opening statement, change in trial strategy was needed after unforeseeably credible testimony of admitted killer. Promised evidence would have tied defendant to killer. Trial counsel’s decision not to offer promised evidence did not show that trial counsel was ineffective. Witnesses not called were either not reasonably subject to trial counsel’s knowledge and location, or were not able to support a viable defense, or would have offered only cumulative evidence. Because trial counsel’s decisions were not strategic errors, their cumulative effect did not prejudice defendant.
Travis S. Midgyett vs. State of Missouri
Missouri Court of Appeals, Western District - WD74731
Appeal of Building Permit Too Late
Zoning code set 15-day time limit on appeal issuance of building permit. Appeal was untimely and did not constitute an action for revocation because it addressed only matters that existed before issuance and nothing after issuance. Record supported a finding that that email explained issuance, and did not rule on revocation, and record did not show that email constituted a decision under delegated authority. On appeal of circuit court judgment that reviewed agency contested case decision, Court of Appeals reviews decision, not judgment. “[W]hen the decision of an administrative agency involves the interpretation of law and application of the law to undisputed facts, an appellate court reviews the agency's decision de novo.” The “Court [of Appeals] may not take judicial notice of the existence or content of city ordinances [.]”
BT Residential, LLC vs. Board of Zoning Adjustment of Kansas City, Missouri; American Tower Corporation
Missouri Court of Appeals, Western District - WD74780 and WD74861
Alleging erroneous description of land in deed of trust, the foreclosure of which resulted in appellant’s acquisition of title from predecessor, appellant sought rescission. Rescission requires both parties to be restored to status quo ante. Such restoration was impossible on the face of the petition, which alleged that appellant lost title by tax sale. That allegation showed that appellant had no title to restore to predecessor, negating the restoration of status quo that rescission requires.
BANK OF NEW YORK, as Trustee for the Certificateholders CWABS, Inc. Asset-Backed Certificates Series 2005-17, Plaintiff-Appellant, vs. ERNEST YONTS, EDITH YONTS, LAKES, L.L.C., DAVID L. BENZ, LATASHA A. BENZ, JOY L. SNOW, DEBRA J. SNOW, DAVID RODERICK,and KATHY RODERICK, Defendants-Respondents.
Missouri Court of Appeals, Southern District - SD31947