Criminal Law

Ellen H. Flottman, Esquire

Child victim testifying from behind a screen violated the defendant’s Confrontation Clause rights, but the error was harmless. State v. Benitez, No. 32063 (Mo. App. S.D., June 10, 2013), Rahmeyer, J.

Defendant was convicted of statutory sodomy in the first degree.

Held: Affirmed.
It was error to allow the child victim to testify from behind a screen which prevented the child from seeing the defendant. The trial court have any evidence from which it could find that this procedure was necessary, and did not make case-specific findings required by Maryland v. Craig, 497 U.S. 836 (1990). However, the error was harmless, since the child’s testimony was brief and cumulative of other admitted evidence.

Criminal nonsupport statute is not unconstitutional in shifting the burden of proof of an element of the offense to defendant; rather, the state bears the
burden of proving lack of good cause beyond a reasonable doubt, despite the existence of a similar affirmative defense available to defendant. State v. Holmes, No. 92648 (Mo. banc, June 11, 2013), Stith, J.

Defendant was convicted of misdemeanor criminal nonsupport.

Held: Affirmed.
Section 568.040.1 makes “lack of good cause” an element of the offense of criminal nonsupport. That element must be proved beyond a reasonable doubt, despite that § 568.040.3 creates an overlapping option for the defendant to put on an affirmative defense of good cause for failure to provide adequate support.

Anonymous tip not sufficiently corroborated to justify warrantless seizure of defendant. State v. Flowers, No. 32073 (Mo. App. S.D., June 18, 2013), Burrell, J.

Defendant was convicted of possession of drug paraphernalia with intent to use and possession of methamphetamine.

Held: Reversed and remanded.
The officer who stopped defendant lacked reasonable suspicion to do so. The officer had received an anonymous tip that a person was threatening to assault another male and do damage to a vehicle. On approaching defendant, the officer learned only that defendant “and his girlfriend had got into an argument.” This was not corroboration of the anonymous tip sufficient to justify defendant’s seizure without a warrant. There was not reasonable suspicion based on specific, articulable facts that criminal activity was occurring or had occurred.

Appearance of impropriety required the post-conviction judge to recuse, since he made reference to extrajudicial information he had learned from the foreperson of an earlier jury regarding issues before him in this case. State v. Anderson, No. 92101 (Mo. banc, June 11, 2013), Breckenridge, J.

Defendant was convicted of murder in the first degree and sentenced to death. This is an appeal of the denial of his postconviction motion following a penalty phase retrial.

Held: Reversed and remanded for further proceedings
. A reasonable person would find an appearance of impropriety from the judge’s references to extrajudicial information from the foreperson of the jury in the first trial, which indicated that the judge may have prejudged the postconviction issues.

Rosalynn Koch, Esquire

Section 566.083, which criminalizes sexual misconduct involving a child by knowingly exposing the genitals to a person under 15 years of age with awareness that such conduct is likely to affront or alarm, is not overbroad and does not violate the right to privacy of defendant who stood nude in the doorway or front window of his own home. State v. Jeffrey, No. 93172 (Mo. banc, June 25, 2013), Fischer, J.

Defendant was convicted of sexual misconduct involving a child after standing in front of his window nude when young girls approached his house.

Held: Affirmed
. The overbreadth doctrine applies only to First Amendment interests. A person who intentionally stands in view of the public relinquishes the right to privacy.

Postconviction movant entitled to evidentiary hearing to determine whether trial counsel’s failure to make offer of proof involved matters that would come under exception to rape shield statute. Baker v. State, No. 32106 (Mo. App. S.D., June 19, 2013), Rahmeyer, J.

Movant’s trial attorney failed to make an offer of proof regarding the findings of a physical exam indicating that the sodomy complainant’s sexually transmitted disease was HPV and could not have been transmitted by the defendant two days before the exam. Movant filed for postconviction relief based upon counsel’s omission, alleging that he had been foreclosed from presenting evidence falling within an exception to the rape shield statute.

Held: Reversed and remanded
. An evidentiary hearing was required to determine whether the excluded evidence involved an exception to the rape shield statue and whether exclusion was prejudicial.            

Purchasing manager committed stealing by setting up a separate company to receive a percentage of the amount he purchased on behalf of his employer, when supplier believed the money was going to the employer. State v. Mitchell, No. 98752 (Mo. App. E.D., June 4, 2013), Clayton, J.

Defendant purchasing manager registered a fictitious named company and set up a bank account into which his employer’s supplier deposited a percentage of the invoice amount in exchange for increased orders. Defendant was convicted of stealing.

Held: Affirmed.
Defendant argued that the money he received was not his employer’s, and he should have been charged with commercial bribery rather than stealing. The employer had a proprietary interest in the money, as the supplier testified he would have lowered his price if he had not been asked to make the deposits.

When defendant acknowledged that he understood his Miranda rights and then spoke with police, he impliedly waived his right to remain silent, despite lack of awareness that he was a suspect. State v. Pennington, No. 75506, (Mo. App. W.D., June 11, 2013), Mitchell, J.

While discussing a complaint defendant had made to police, the authorities read defendant his Miranda rights and asked him twice if he understood them. Defendant stated that he did and signed the Miranda form. Police then directed the discussion to an offense in which defendant was a suspect, and he eventually incriminated himself. The trial court found that defendant had not knowingly waived his Miranda rights.

Held: Reversed and remanded.
An implied waiver exists when the defendant makes an uncoerced statement after receiving Miranda warnings and the state shows that the defendant understood those warnings.

Hardwick, J. dissenting: The trial court is presumed to have applied the correct legal standard. The Miranda forms were presented to the defendant in the context of a discussion of an assault of which he was the victim, and it was not clear that he understood that he was waiving the rights of a criminal suspect. Therefore, the state failed to demonstrate that he understood the nature of the right and consequences of the waiver.

Counsel performed ineffectively if defendant was not advised that in order to prove its charge, the state was required to show defendant’s knowledge that he was less than 2000 feet from a school when he sold drugs. Johnson v. State, No. 74813 (Mo. App. W.D., June 11, 2013), Howard, J.

Defendant filed postconviction action to vacate convictions of distributing a controlled substance near a school. He testified that he was unaware that he was within 2000 feet of a school or that the state would be required to prove his knowledge. The motion court denied relief.

Held: Reversed and remanded.
The defendant’s knowledge of the distance from the school was an element of the offense that the state was required to prove. Although case law suggested otherwise at the time of defendant’s offense and plea, that case law was decided before significant amendments to statutes regarding culpable mental states. For this reason, the court refuses to follow the opposite holding in Applewhite v. State, 276 S.W.3d 900 (Mo. App., S.D. 2009).

Juror’s failure to disclose Facebook relationship with victim’s mother was not intentional nondisclosure. State v. Hill, No. 98317 (Mo. App. E.D., June 18, 2013), Norton, J.

During voir dire, juror stated that he knew and exchanged greetings with the victim’s mother. After conviction, defendant moved for a new trial on the ground that juror failed to disclose a Facebook relationship with the mother. Juror testified Facebook interaction was brief and general in nature, and that he did not access Facebook during trial.

Held: Affirmed.
The level of communication the juror described was consistent with the Facebook relationship, and the juror had not been specifically asked about Facebook.

Officers following an electronic signal they had hidden in a laptop were in fresh pursuit and could arrest the defendant in another state. State v. Williams, No. 98275 (Mo. App. E.D., June 25, 2013), Odenwald, J.

Officers set up a bait car with a laptop in plain view and electronic tracking device in downtown St. Louis. The tracking mechanism activated and officers followed the signal to East St. Louis, where they arrested the defendant with the laptop.

Held: Affirmed.
Illinois law permits authorities from other states to enter and continue “in fresh pursuit” to arrest a suspect. Fresh pursuit is the immediate pursuit of one who is attempting to avoid arrest. Although the defendant was unaware of the tracking device and pursuit, the fact that he left immediately for Illinois and tried to sell the computer indicates that he had left the area to avoid arrest.

Insufficient evidence of possession of a controlled substance by passenger in truck owned by driver, where large amount of marijuana was found in bed of truck directly behind passenger seat; fact of strong odor of marijuana and that defendant had $1,346 in cash did not connect him to the drugs. State v. Whites, No. 75236 (Mo. App. W.D., June 25, 2013), Ellis, J.

The defendant was a passenger in a truck stopped by police. Police found 613 grams of marijuana and a digital scale in the passenger side of the bed of the truck. There was a strong odor of marijuana. Although unemployed, defendant had $1,346 in his wallet and a bank receipt for $5000.

Held: Reversed.
The fact that the drugs were on the passenger side did not prove that defendant placed them there. Defendant’s knowledge of the presence of the drugs did not prove possession. The defendant did have a large amount of money, but there was no evidence as to whether the money was in denominations typically used in drug transactions, and there was no evidence of recent drug activity involving the marijuana.