Criminal Law

Ellen H. Flottman, Esquire

Possession of child pornography statute is ambiguous as to the unit of prosecution wherein it prohibits possession of “any obscene material” with a child as an observer or participant in sexual conduct. State v. Liberty, No. 91821 (Mo. banc, May 29, 2012), Stith, J.

Defendant was convicted of promoting child pornography and eight counts of possession of child pornography.

Held: Affirmed in part and reversed in part
. The statute criminalizing possession of child pornography, § 573.037, is ambiguous as to the unit of prosecution, in that it prohibits possession of “any obscene material” with a child as an observer or participant of sexual conduct. The rule of lenity requires seven of the eight counts be reversed, but they can be re-prosecuted as the evidence was of multiple items on a single occasion; therefore, the reversal is for trial court error rather than on double jeopardy concerns.

Excluding defense cross-examination of eyewitness about the fact that he subjectively hoped his testimony against the defendant would affect his sentence favorably was an abuse of discretion. State v. Clark, No. 92003 (Mo. banc., May 1, 2012), Price, J.

Defendant was convicted of first degree murder and armed criminal action.

Held: Reversed and remanded.

Ordinance violation conviction of failure to vaccinate animal cannot stand where the county health regulation requiring it was not introduced into evidence. State v. Cochran, No. 73766 (Mo. App. W.D., May 1, 2012), Witt, J.

Defendant was convicted of misdemeanor animal abuse and of a violation of a county ordinance for failure to vaccinate.

Held: Affirmed in part and reversed in part.

Improper enhancement of misdemeanor stealing because guilty pleas to prior stealing offenses occurred on the same day and law changed after the instant offense was committed. Prior offenses not charged in the information were irrelevant. State v. Nephew, No. 31482 (Mo. App. S.D., May 21, 12), Scott, J.

Defendant was convicted of third offense felony stealing.

Held: Reversed and remanded for resentencing as a misdemeanor.

Rosalynn Koch, Esquire

Defendant lost protections of the Interstate Agreement on Detainers (IAD) upon discharge from other jurisdiction’s custody, even if he was transferred to temporary custody in Missouri. State v. Jamison, No. 96449 (Mo. App. E.D., May 1, 2012), Romines, J.

The defendant claimed that he filed a request for disposition of charges in March 2010. Missouri took temporary custody of him in April and he was held continuously there until his trial in January 2011. Defendant was discharged from federal custody on August 13, 2010. He unsuccessfully moved to the dismiss charges against him.

Held: Affirmed
. The agreement on detainers no longer applied to the defendant after he was released from federal custody.

It is not necessary to prove that the defendant’s actions potentially affected the outcome of a specific case to convict him of tampering with a judicial officer; harassment is not a lesser included offense. State v. Hause, No. 73645 (Mo. App. W.D., May 9, 2012), per curiam.

The defendant left several messages on a judge’s answering machine after the judge issued a warrant for his arrest and set a bond revocation hearing in his case. He was convicted of tampering with a judicial officer.

Held: Affirmed.
The fact that the phone messages related to a past event and were not intended to affect future decisions was irrelevant, as the statute addresses conduct related to performance of the court’s general official duties. Harassment requires a threat to commit a felony, which is not an element of tampering.

Convictions for violation of order of protection and aggravated stalking for the same conduct violate double jeopardy and are plain error; verdict director for aggravated stalking submitting that defendant disturbed the peace by being near her home was plain error as it was not one of the types of conduct outlined in MAI-CR. State v. Smith, No. 96865 (Mo. App. E.D., May 15, 2012), Romines, J.

After the defendant’s ex-girlfriend obtained an order of protection against him, he left notes on her car and in her mailbox saying he was sorry and asking her not to press charges. On another occasion defendant ran close up by a parking lot where she was getting into her car and smiled at her. He was convicted of domestic assault, three counts of violation of an order of protection, and three counts of aggravated stalking.

Held: Affirmed in part, reversed in part
. Proof of the violation of order of protection was a necessary element of aggravated stalking. It was plain error for the court to instruct the jury to find defendant guilty for “disturbing the peace of [victim] by showing up near her home” as it is not an option under MAI-CR3d 333.52 and convicted him of conduct that would not violate the order of protection.

Defendant was entitled to habeas corpus relief on claim that opt-out program for jurors deprived him of a properly selected jury, as he established cause and prejudice in that he was unaware of the factual basis for his claim until his appeal and the time for seeking post-conviction relief were over. State ex rel., Koster v. McCarver, No. 97414 (Mo. App. E.D., May 15, 2012), Cohen, P.J.

Habeas petitioner was convicted in Lincoln County, which utilized an opt-out program for jurors that was later found to violate Missouri law. He filed a petition for writ of habeas corpus and presented evidence that his appellate counsel was unaware of the program and that he learned of it only after the opportunity to file for post-conviction relief was expired. The court granted the petition, and the state sought certiorari.

Held: Affirmed
. Petitioner proved that he was unaware of the issue during appeal and after until the time to file a post-conviction motion had elapsed. He was not required to file a post-conviction motion simply in order to preserve a claim of which he was unaware.

State may not call witness solely to force her to invoke privilege against self-incrimination and then insinuate that she was hiding something and protecting the defendant. State v. Register, No. 73390 (Mo. App. W.D., May 22, 2012), Newton, J.

At a statutory sodomy trial, the state called the defendant’s wife after she had been given immunity, and questioned her about observing the defendant and the victim together. The state told the jury that she invoked her rights to protect the defendant and also because she had failed to protect the victim.

Held: Reversed and remanded
. A witness’s assertion of the testimonial privilege cannot support an argument that defendant is thereby guilty, and allowing the state to deliberately build its case out of inferences arising from the use of the privilege is error. That her invocation of the privilege may have been invalid due to a grant of immunity was irrelevant because the jury would consider an invalid assertion in the same way as a valid one.

Because it criminalizes communications protected by the First Amendment, § 565.090.1(5), prohibiting “repeated unwanted communication” to another person is unconstitutionally overbroad; § 565.090.1(6), prohibiting an intentional act to “frighten, intimidate, or cause emotional distress to another person” is constitutional.

Defendant was charged with burglary for the purpose of committing harassment after using a key to enter his former wife’s home in order to frighten her, and harassment for making telephone calls after she asked him to stop. The court dismissed both counts as violating defendant’s right to free speech.

Held: Affirmed in part, reversed in part.
The state may not criminalize speech merely because another person might not want to hear it. Section 565.090.1(5) is overbroad and must be severed from the rest of the statute. Appellant’s attempt to frighten his ex-wife was an infliction of injury and breach of the peace that was unprotected by the First Amendment. The terms “without good cause,” “frighten,” “intimidate” and “emotional distress” are not vague and call for a reasonable person standard.