Criminal Law

Ellen H. Flottman, Esquire

Section 556.036 which allows the statute of limitations to be tolled by the filing of a complaint does not violate the Missouri Constitutional provision prohibiting felony prosecutions other than by indictment or information. State v. Mixon, No. 92230 consolidated with 92450 (Mo. banc, November 13, 2012), Fischer, J.

State’s appeal of two judgments declaring § 556.036 unconstitutional and dismissing charges against the defendants.

Held: Reversed and remanded.
The trial courts had held that § 556.036 violated the Missouri Constitution Article I, § 17, which it prohibits felony prosecutions other than by indictment or information. Section 556.036.5 allows the statute of limitation to be tolled by the filing of a complaint. The Missouri Supreme Court holds that these do not conflict; the statute of limitations is squarely within the province of the General Assembly.

Rosalynn Koch, Esquire

Trial court did not plainly err in permitting members of community to testify at defendant’s sentencing hearing concerning the general impact of drugs on their neighborhood. State v. Watson, No. 97303 (Mo. App. E.D., November 27, 2012), Gaertner, C.J.

Defendant was convicted of possession of a controlled substance with intent to distribute. At sentencing the state called representatives of the neighborhood to testify generally to the effect of presence of drugs upon the area.

Held: Affirmed
. Witnesses need not be direct victims of crime to testify as to victim impact. The community is a victim of drug offenses.

Cause transferred to Missouri Supreme Court to determine constitutionality of  §  565.020, mandating sentence of life imprisonment without parole for first degree murder regardless of whether offenders are juveniles . State v. Nathan,No. 96832 (Mo. App. E.D., November 20, 2012) Crane, J.

Defendant, who was 16 at the time of his offense, timely challenged the constitutionality of § 565.020, which imposes a mandatory sentence of life imprisonment without parole for first degree murder, in light of Miller v. Alabama.

Held: Transferred to Missouri Supreme Court.

Conviction reversed where lack of a transcript prevents meaningful review of issues on appeal. State v. Barber, No. 74279 (Mo. App. W.D., November 13, 2012), Pfeiffer, J.

Defendant was convicted of tampering with a witness. On appeal, he claimed that statements that formed the basis for his conviction were inadmissible because they were confidential communications to his attorney. His direct and part of his cross-examination were not recorded, and consequently could not be transcribed and made part of the record on appeal.

Held:  Reversed and remanded.
Because only part of the transcript was missing, the defendant was required to establish that the lack of a complete transcript prejudiced him. The defendant was prejudiced, however, as his testimony as to his belief about his relationship with counsel was essential to review of his claim.

Sex offender must report change of residence whenever he is not actually living at his address of record, even if he may intend to eventually return. State v. Younger, No. 74675 (Mo. App. W.D., November 6, 2012), Martin, J.

After authorities discovered that defendant’s listed residence was vacant, he was convicted of failing to register as a sex offender.

Held:  Affirmed
. The court agrees with the Eastern District that even if the defendant might intend to eventually return to the address on record, the law requires him to notify the authorities when he is not physically residing there.