Criminal Law

Ellen H. Flottman, Esquire

Felon in possession statute is not an ex post facto law. State v. Harris, No. 93170 (Mo. banc, October 1, 2013), Fischer, J.

State’s appeal from the circuit court’s judgment quashing the indictment charging defendant with being a felon in possession of a firearm. The lower court had found that § 571.070 is an ex post facto law as applied to defendant in violation of the Missouri Constitution.

Held: Reversed.
Section 571.070 is not an ex post facto law because it does not apply to conduct completed before its enactment. 

Although the verdict director violated right to unanimous verdict, the error did not rise to the level of manifest injustice because the defense was total denial of all acts of sodomy. State v. Rose, No. 32168 (Mo. App. S.D., September 30, 2013), Sheffield, J.

Defendant was convicted of first degree statutory sodomy.

Held: Affirmed.
Although in this multiple acts case the trial court erred in submitting a verdict director that did not specify which act was being charged, in violation of the defendant’s right to a unanimous verdict, it was not plain error because the defense was not offense specific.

Ordering venire panels of such size to fill every available seat in the courtroom did not violate the defendant’s right to a public trial where the record does not reveal that any member of the public or the press was actually prevented from attending voir dire by the trial court’s actions. State v. Salazar, No. 32032 (Mo. App. S.D., October 2, 2013), Burrell, J.

Defendant was convicted of murder in the second degree.

Held: Affirmed.  

Mother who voluntarily assumed care of her adult disabled son therefore had a duty to provide care, the failure of which provided the basis for a conviction of involuntary manslaughter. State v. Shrout, No. 32334 (Mo. App. S.D., October 23, 2013), Scott, J.

Defendant was convicted of involuntary manslaughter in the second degree.

Held: Affirmed.
Defendant asserted that an omission of care to an adult child could not provide the basis for a charge of involuntary manslaughter where there was no duty of care. However, defendant’s voluntary assumption of care for the victim created a duty to not act recklessly or with criminal negligence in carrying out that duty. 

Emergency room personnel are emergency personnel for purposes of § 565.082.2, which criminalizes assault of such persons. State v. Bolden, No. 75563 (Mo. App. W.D., October 22, 2013), Martin, J.

Bolden appeals from the motion court’s judgment denying post-conviction relief after an evidentiary hearing.

Held: Affirmed.
Bolden sought to vacate his conviction of assault of emergency personnel because the victim was not medical personnel and therefore not emergency personnel under § 565.082.2. Because the victim fell within the category of emergency room personnel, he was covered by the statute.

Defendant cannot introduce evidence of blood alcohol content derived from a portable breathalyzer test, even where exculpatory, under § 577.021. State v. Eisenhour, No. 32441 (Mo. App. S.D., October 21, 2013), Lynch, J.

Defendant was convicted of driving while intoxicated. He sought to introduce evidence at trial that his pre-arrest portable breathalyzer test (PBT) numerical result was .002.

Held: Affirmed.
Section 577.021 provides that PBT results are admissible as exculpatory evidence but not as admissible as evidence of blood alcohol content. Defendant here seeks to introduce evidence of blood alcohol content in violation of the statute.

The trial court did not err in granting the motion to suppress evidence while finding that mere touching or crossing the fog line by itself does not justify a traffic stop. State v. Beck, No. 32651 (Mo. App. S.D., October 7, 2013), Sheffield, J.

State’s appeal from the trial court’s order granting a motion to suppress evidence.

Held: Affirmed.
The trial court discredited the evidence that the car was weaving, and the court of appeals will disregard all evidence contrary to the trial court’s ruling.  

Rosalynn Koch, Esquire

Defendant confined victim for a “substantial period” and was consequently guilty of kidnapping, even though victim escaped after a few minutes. State v. Sistrunk, No. 98726 (Mo. App. E.D., October 1, 2013), Richter, P.J.

Before leaving the victim’s store after a robbery, the defendant moved the victim to the rear of the building and tied his hands and feet together. The victim got free within two minutes. The defendant was convicted of kidnapping.

Held: Affirmed.
The term “substantial period” in the kidnapping statute is qualitative as well as quantitative; the confinement was not merely incidental to the robbery and created the possibility of increased risk of harm to the victim.

A butcher knife is a “deadly weapon.” State v. Brookins, No. 99422 (Mo. App. E.D., October 1, 2013), Ahrens, J.

The defendant cut the victim with a butcher knife from the victim’s kitchen, and was convicted of second degree assault by means of a “deadly weapon.”

Held: Affirmed.
A “deadly weapon” includes a dagger, and a butcher knife is like a dagger in many respects.

No appeal from pretrial ruling excluding the defendant’s statement due to state’s failure to establish corpus delicti. State v. Lilly, No. 76349 (Mo. App. W.D., October 1, 2013), Ahuja, J.

Trial court granted the defendant’s pretrial motion to exclude his statements under the corpus delicti rule, and the state appealed.

Held: Appeal dismissed.
A ruling excluding evidence based on the corpus delicti rule is not a ruling suppressing evidence or a confession, and so there is no authority for an interlocutory appeal.

State violated Brady in failing to disclose defendant’s booking form, listing his given address, until after trial opening statement in which the defense denied that the defendant resided at that address at the time the illegal weapon was discovered there; and reversible error ensued when the defendant’s statement was subsequently admitted. State v. Henderson, No. 98281 (Mo. App. E.D., October 8, 2013), Mooney, J.

Defendant was arrested for unlawful possession of a firearm that was discovered at a residence where he was present. He gave that address as his home address on his booking form, which was not disclosed to the defense in discovery. After the defense opening statement claiming that the defendant did not reside there, the state disclosed the booking form and was later permitted to introduce it at trial.

Held: Reversed and remanded.
By the time of disclosure, the defendant had already committed to a theory of defense that he did not reside at the address. A defendant’s statement is uniquely prejudicial because of the great weight attached to inculpatory statements.

Evidence identifying the cell phone towers to which the defendant’s phone connected at the time of the offense required expert testimony, due to the number of variables besides location involved in connection. State v. Patton, No. 98051 (Mo. App. E.D., October 8, 2013), Van Amburg, J.

During defendant’s trial the state introduced maps of cell phone towers along with identifying which towers the defendant’s cell phone connected to at the time of the offense, in an effort to establish his location near the scene.

Held: Affirmed.
It was permissible to use lay testimony to show where cell phone towers were located, but locating a cell phone in relation to the towers required expert testimony. A cell phone will connect to the tower with the strongest signal, but factors other than location may determine signal strength. Error was not prejudicial.

Trial counsel was ineffective in failing to read discovery, which indicated that the value of property stolen was under $500, before allowing defendant to plead guilty to a felony offense. Ervin v. State, No. 99407 (Mo. App. E.D., October 15, 2013), Gaertner, J.

Defendant filed for postconviction relief after pleading guilty to a felony charge of receiving stolen property.

Held: Reversed and remanded for new trial.
Trial counsel’s duty to investigate included reading the discovery that she had obtained, which would have shown that the defendant committed a misdemeanor offense.