Criminal Law

Ellen H. Flottman, Esquire

Mistaken identity defense did not compel prosecution to disclose identity of confidential informant. State v. Beard, No. 32471 (Mo. App. S.D., April 16, 2014), Burrell, J.

Defendant was convicted of three counts of distributing a controlled substance.

Held:  Affirmed.
The State has the privilege to withhold the identity of a confidential informant, and to overcome that privilege, the defendant must show that there is a “real probability” that he was prejudiced. Here, there was insufficient evidence presented that mistaken identity compelled the need for disclosure.

Fifty years is an authorized sentence for forcible rape under § 566.030.2, which provides that the range of punishment for that offense is life imprisonment or a term of years not less than five years; further, violation of an order of protection is not a lesser included offense of aggravated stalking and therefore conviction of both does not violate double jeopardy. State v. Hardin, No. 93555 (Mo. banc, April 29, 2014), Russell, C.J.

Defendant was convicted of forcible rape, aggravated stalking, and violating an order of protection.

Held:  Affirmed.

State’s appeal of trial court’s order is dismissed where it is unclear that the order appealed from is a final judgment. State v. Wright, Nos. 76647 and 76646 (Mo. App. W.D., April 22, 2014), Mitchell, J.

State appeal of judgments dismissing information against defendants.

Held:  Dismissed.
The trial court dismissed the information charging defendants with offenses relating to imitation controlled substances. Defendants had moved to dismiss on grounds that the definition of imitation controlled substance was void for vagueness, and in the alternative, that the information was insufficient to charge him with a crime. The trial court’s orders were unclear insofar as they failed to state what relief was being granted and did not identify which if any counts were being dismissed. The court of appeals could not determine whether final and appealable judgments existed, so dismissed the appeals and remanded for further proceedings. 

Shop building was not within the curtilage of the residence, so “knock and talk” at that building was permissible. State v. Cady, No. 32636 (Mo. App. S.D., April 2, 2014), Lynch, J.

Defendant was convicted of two counts of attempt to manufacture a controlled substance.

Held:  Affirmed.
The shop building was not in close vicinity of the residence, the area surrounding it was not enclosed, and there was no evidence that the shop building was used to carry on the “intimate activities of the home,” where it appeared instead to be a dumping ground for trash and further carried the strong smell of chemicals associated with methamphetamine.

Rosalynn Koch, Esquire

Trial court did not err in finding that there was no probable cause for defendant’s DWI arrest, despite evidence of alcohol on her breath, her admission to drinking a number of beers, and HGN results; defendant had passed other field sobriety tests and at the suppression hearing she challenged the arresting officer’s selective omission of facts favorable to her and conclusions. State v. Avent, No. 76395 (Mo. App. W.D., April 1, 2014), Ellis, J.

Upon stopping the defendant for speeding, officer smelled intoxicants on her breath. Defendant passed walk-and-turn and one-leg-stand test but failed HGN (Horizontal Gaze Nystagmus) test. Officer arrested defendant and she provided a breath sample registering .08%. The court suppressed the evidence due to lack of probable cause to arrest.

Held:  Affirmed.
The trial court determined what weight to give the evidence. While the defendant admitted to drinking, she challenged intoxication. The trial court should rule on a motion to suppress before trial.

Pfeiffer, J., dissenting:
  The defendant admitted that she was substantially exceeding the speed limit; she smelled of intoxicants; she had consumed alcohol; she tested positive for alcohol on a portable breath test; her eyes were watery; and she showed impairment in HGN testing. As a matter of law, these furnished probable cause, and thus there was no basis to defer to the trial court.

Trial court plainly erred in submitting verdict director as to resisting arrest by using “physical force or physical interference.” State v. Meeks, No. 99727 (Mo. App. E.D., April 8, 2014), Dowd, J.

Defendant was arrested after shooting at someone during an anti-violence block party. When the officers tried to take him to the ground, he pushed himself back up in an effort to avoid arrest. The court instructed the jury to find him guilty of resisting arrest if he resisted by using physical force or physical interference.

Held: Reversed
. Resisting arrest is defined as using or threatening use of violence or physical force, or flight, but not interference. Because the state relied solely upon the defendant’s interference, the instruction was plainly erroneous.

Child’s location and position, defendant’s demeanor, and medical opinion established corpus delicti of the child’s murder, permitting use of defendant’s statements. State v. Jones, No. 93348 (Mo. banc, April 15, 2014), Breckenridge, J.

Defendant was convicted of second degree murder after admitting to laying her three-month old baby down with her face on a pillow for fifteen minutes. The baby had been found on a bed with a bassinet nearby; the defendant was calm when the authorities arrived; and an expert opined that the baby was lying face down when she died and that it was uncommon for a baby to die from a seizure.

Held: Affirmed.
The surrounding circumstances provided the corpus delicti justifying admission of the defendant’s statements.

Feeding a child two vegetarian meals daily in accordance with religious beliefs and occasional deprivation of meals does not constitute abuse of a child. State v. Hansen, No. 32109 (Mo. App. S.D., April 18, 2014), Rahmeyer, J.

Defendant and his family were Seventh Day Adventists, and as part of their beliefs ate only two vegetarian meals per day. Defendant also withheld dinner from his child for punishment five or six times. The child was slightly built but there was no evidence of adverse health effects.

Held:  Affirmed in part, reversed in part.
Confinement in a cold bathroom was child abuse, but in the absence of a showing of impairment to health, providing two vegetarian meals per day was not cruel and unusual punishment.

Postconviction motion alleging trial counsel’s failure to seek a change of judge at defendant’s request warranted evidentiary hearing. Moore v. State, No. 99603 (Mo. App. E.D., April 22, 2014), Dowd, J.

Defendant asked his attorneys to obtain a change of judge because the assigned trial judge had previously prosecuted him. They did not do so, and defendant was convicted and received a maximum sentence. His postconviction motion was denied without a hearing.

Held:  Reversed and remanded
. Defendant informed his attorneys of his concerns with the judge, and under the specific facts of the case, his allegations warranted a hearing.

Defendant was guilty of choking victim even though his acts did not prevent her from breathing. State v. Sutherland, No. 99778 (Mo. App. E.D., April 29, 2014), Quigless, J.

Victim testified that defendant held her up against the wall and squeezed her neck. She was able to continue breathing. Defendant was convicted of second degree domestic assault.

Held: Affirmed.
To “choke” means to make normal breathing difficult or impossible. Although the victim testified that she could still breathe, she did not say that she could breathe freely; and it was a reasonable inference that she could not.

Odenwald, J., dissenting:
While a victim’s ability to breathe need not be completely obstructed to constitute choking, there was no evidence that the victim had any difficulty in breathing as a result of defendant’s actions.

Counsel’s admission that defendant was guilty of charged offense obviated need for state to prove value to obtain a felony conviction. State v. Denzmore, No. 99468 (Mo. App. E.D., April 29, 2014), Cohen, J.

Defendant was charged with a number of offenses, including felony leaving the scene of an accident. In opening statement counsel told the jury that defendant was guilty of the leaving the scene count. After the state rested, defendant unsuccessfully moved for judgment of acquittal in that there was no evidence of the total amount of property damage.

Held:  Affirmed.
The defendant’s voluntary admission of fact before a jury is conclusive as to him.

Incoming drug-related text messages taken off a phone in the defendant’s possession at the time of his arrest were hearsay, when there was no showing that defendant owned the phone and the state focused on the incoming messages as opposed to the responses. State v. Francis, No. 100009 (Mo. App. E.D., April 29, 2014), Sullivan, J.

In a prosecution for drug possession, the state introduced a number of incoming text messages regarding drug transactions that had been found on a cell phone in the defendant’s possession.

Held: Reversed and remanded.
The incoming messages were hearsay. There was no evidence that defendant owned the cell phone or that he had authored the messages responding to them. The state focused on the incoming text messages as opposed to the outgoing messages, so they could not be considered tacit admissions.

Counsel was not ineffective for failing to move to disqualify the entire prosecutor’s office when the prosecutor had assisted in representing defendant in a previous criminal case. McArthur v. State, (Mo. App. E.D., April 29, 2014), Cohen, J.

Defendant challenged his conviction on the grounds that his attorney should have moved to disqualify the entire prosecutor’s office when the prosecutor had previously worked for a law firm that represented defendant. The prosecutor was not the lead counsel in the earlier case, had left the law firm before the preliminary hearing, and could not recall the previous charges or any conversations with the defendant. He did not discuss trial strategy with the assistant who prosecuted defendant.

Held:  Affirmed.
Given the minimal contact the prosecutor had with the cases, a motion to disqualify would have been likely to fail.