Criminal Law

Editor:
Ellen H. Flottman, Esquire

Sufficient evidence of resisting a lawful stop or detention based upon the evidence of unprovoked flight.  State v. Crabtree, No. 74414 (Mo. App. W.D., April 30, 2013), Mitchell, J.

Defendant was convicted of resisting a lawful detention or stop. 

Held: Affirmed.
Officer began following Defendant’s car when a first responder pointed to Defendant’s car when the officer passed.  Defendant accelerated and did not stop when the officer activated his lights and siren.  Defendant challenged the sufficiency of the evidence, claiming the officer lacked reasonable suspicion to stop him and therefore the evidence did not demonstrate that he resisted a lawful stop, as required by § 575.150.1.  However, the attempted stop commenced when the officer activated his lights and siren, at which point he had reasonable suspicion to justify an investigatory stop. 


Verdict directing instruction which lacked a definition of the crime of “identify theft” although required by MAI-CR3d 324.41.1, was plain error, since Defendant disputed the issue of whether he knowingly possessed the means of identification.  State v. Arnold, No. 31992 (Mo. App. S.D., April 2, 2013), Bates, J.

Defendant was convicted of trafficking in stolen identities. 

Held: Reversed and remanded.   Significantly, during deliberations, the jury had sent a question to the court asking for the definition, which shows that the verdict was affected.  


Editor:
Rosalynn Koch, Esquire

Federal immigration law did not preempt forgery prosecution for employee’s use of a false social security number on an employment document.  State v. Diaz-Rey, No. 98848 (Mo. App. E.D., April 2, 2013), Crane, P.J.

The trial court dismissed an information charging the defendant with signing an employment document containing a false social security number, on the ground that the Immigration Reform and Control Act of 1986, which criminalized the knowing employment of unauthorized workers, preempted the state prosecution.

Held: Reversed and remanded.
  The IRCA did not expressly preempt the law, because it only applied to employers and not to employees. Congress did not occupy the entire field of the law by establishing a pervasive regulatory framework. The state prosecution did not conflict with the federal law.


Defendant committed the offense of tampering with physical evidence by throwing contraband items out of his truck during police chase.  State v. Hougardy, No. 74913 (Mo. App. W.D., April 2, 2013), Ellis, J.

While fleeing a traffic stop, defendant and others threw salt, coffee filters, pseudoephedrine pills, drain cleaner, and sulfuric acid from his truck.  Defendant was convicted of tampering with physical evidence.

Held: Affirmed
.  There is no requirement that a criminal investigation begin before one can impair it.


Court prejudicially erred in permitting state to impeach defense witness with defendant’s prior testimony that they had belonged to a gang.  State v. Duncan, No. 98457 (Mo. App. E.D., April 23, 2013), Van Amburg, J.

At the defendant’s trial for trafficking, over the defendant’s objection the state asked the defense eyewitness whether he was in a “criminal street gang” with the defendant. When the witness answered no, the state asked if his answer would be different if he knew that the defendant had earlier testified that they were in the gang.  The witness replied that they and the others were childhood friends.

Held: Reversed and remanded
.  The witness could not be impeached with a statement made by someone else, and the state had mischaracterized the defendant’s testimony.  Because the case essentially involved the word of a policeman against that of defendant’s witness as to what the officer could actually see, and the objectionable testimony was not cumulative to other evidence, the error was prejudicial.


Sexual abuse complainants’ recantations at trial do not trigger requirement of corroboration.  State v. Wadel, No. 74974 (Mo. App. W.D., April 30, 2013), Mitchell, J.

Complainants accused defendant of molesting them, but then recanted at trial. Defendant was convicted after the state introduced their out of court statements.

Held: Affirmed.
Two different rules may apply to suspect victim testimony in sexual abuse cases.  The corroboration rule, or corroboration exception, applies where the victim’s trial testimony conflicts with physical facts, surrounding circumstances, and common experience. The destructive contradictions doctrine provides that a witness’ testimony loses probative value when trial testimony is so internally inconsistent that it cannot have probative force and thus requires corroboration. This rule is not limited to cases involving sexual offenses.  Neither rule applies to a victim’s recantation at trial.


Insufficient evidence of trafficking on the part of passenger in vehicle containing large amount of concealed drugs; presence of air freshener was not equivalent to odor of drugs; inconsistencies with driver’s story did not per se demonstrate untruthfulness; and defendant’s nervousness could also be explained by outstanding warrant.  State v. Maldonado-Echeverria, No. 74860 (Mo. App. W.D., April 30, 2013), Howard, J.

Defendant convicted of drug offenses after car in which he was a passenger was stopped.

Held:  Reversed.

Update:
Court’s opinion in State v. Jones, No.97595 (reported in October 2012 edition)readopted and cause transferred to Missouri Supreme Court on April 26, 2013.