Criminal Law

Ellen H. Flottman, Esquire

Insufficient evidence of constructive possession of drugs hidden in a house shared with another. State v. Ramsey, No. 30846 (Mo. App. S.D., February 16, 2012), Scott, J.

Defendant was convicted of possession of a controlled substance.

Reversed and remanded with instructions to discharge Defendant.

Rule of ejusdem generis, which limits a general term to that specifically enumerated as examples, does not limit domestic violence section, which criminalizes injuring a family member “by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation.” State v. Shelton, No. 31058 (Mo. App. S.D., February 27, 2012), Scott, J.

Defendant was convicted of second degree domestic assault.

Held: Affirmed.
Defendant was convicted of using his fists to beat his wife’s face. He claims that under principles of statutory construction, he was not guilty under § 565.073.1(1) of injuring a family member  “by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation.” The court finds that “by any means, including but not limited to” is plain and the rule of ejusdem generis does not apply. 

Rosalynn Koch, Esquire

Where some of the defendant’s convictions are affirmed on appeal and others remanded for resentencing, defendant must file a postconviction action within 90 days of the mandate for the convictions that were upheld, and 180 days after resentencing for the others. Peeples v. State, No. 96864 (Mo. App. E.D., February 14, 2012), Odenwald, J.

The movant was convicted of twenty-four counts of statutory sodomy, all except two of which were upheld on appeal on August 14, 2009. Two were remanded and the trial court entered a new sentence. The movant filed a postconviction motion on April 5, 2010.

Held: Appeal dismissed as to the counts that had been affirmed, remanded as to the counts that had been remanded for resentencing.
The record does not reflect the date of resentencing, so the court remands the matter to determine whether the postconviction motion was filed within 180 days of resentencing.

Trial court did not err in refusing to order a body attachment when the subpoena is not in evidence to show its proper execution. State v. Moore, No. 95952 (Mo. App. E.D., February 21, 2012), Gaertner, J.

The defense sought a writ of body attachment. The defense offered the return of the subpoena and also called the person who had served the subpoena. The court refused to issue the writ because the subpoena was not attached to the return and was not in evidence.

Held: Affirmed
. Rule 26.02 outlines the procedure for subpoenas of witnesses. Without a copy of the subpoena, the court cannot determine whether its execution is in compliance with the rules. The defense was further required to demonstrate that the witness was a material or necessary witness.

Failure to order disclosure of confidential informant was not plain error. State v. Bartlik, No. 95980 (Mo. App. E.D., February 28, 2012), Crane, J.

Defendant facing charges of sale of a controlled substance moved for disclosure of a confidential informant who, along with a police officer, was present during the transaction. The court denied the motion. The defendant failed to include the allegation in the motion for new trial, but did raise it at the hearing on that motion.

Held: Affirmed
. The purpose of a motion for new trial is to allow the trial judge to correct any errors that may have occurred at trial. There was no plain error.

Judge Romines, dissenting
: The usual concerns underlying the courts’ refusal to review claims of unpreserved error are absent here. The issue was fairly drawn before the trial court, and therefore the court of appeals did not have to speculate as what might have occurred at trial had a proper objection been lodged. One procedural error should not defeat review. The audiotape of the transaction was inaudible, and the informant’s participation was crucial.

Statute limiting the Missouri juvenile offenses to be disclosed for a presentence report does not limit consideration of other states’ juvenile records that may be disclosed differently under the laws of those states. Mason v. State, No. 73066 (Mo. App. W.D., February 28, 2012), Welsh, J.

The movant’s sentencing assessment report at trial mentioned a juvenile offense in California of “Lewd and Lascivious Act with a Child Under 14.” The movant’s postconviction motion challenged the trial court’s reliance on this offense in sentencing, as § 211.321.1, RSMo, provides that the violations of the juvenile code should be included in the presentence report, but limited to rape, sodomy, murder, kidnapping and other serious offenses. The motion court denied relief.

Held: Affirmed
. Section 211.321.1, RSMo, governs disclosure of Missouri juvenile records but does not extend to juvenile records of other states.