Joseph M. Ellis

In State of Missouri v. Phillip Lamont Ransburg, the defendant appealed his convictions for second-degree assault and armed criminal action arising from an incident in which he broke into his ex-girlfriend's trailer while holding a four-foot stick and charged toward her boyfriend, James Blackman, before fleeing. The Missouri Court of Appeals reversed those two convictions, entered a judgment of guilt on the lesser-included offense of third-degree assault, and remanded the case for sentencing on that count while affirming all other convictions and sentences. The court held that the evidence was insufficient to prove the stick qualified as a "dangerous instrument" under the statute, as it was not used in a manner that could cause death or serious physical injury. Without proof of a dangerous instrument, both the second-degree assault conviction and the related armed criminal action charge failed. The record did, however, support a finding that Ransburg attempted to cause physical injury to Blackman, satisfying the elements of third-degree assault.

criminal law

Terry McIlvoy, an inmate at Jefferson City Correctional Center, filed a pro se § 1983 civil rights suit against MVE supervisor James Sharp and several other prison employees and agencies. He alleged that Sharp assaulted him during a November 2013 workplace confrontation, that officials retaliated against him for filing a grievance, failed to properly investigate, tampered with witnesses, and covered up the incident. The trial court dismissed the claims against the agencies and most individual defendants on grounds of sovereign immunity, qualified immunity, and failure to state a claim, then granted Sharp summary judgment on similar immunity grounds plus video evidence showing no excessive force or prejudice. On appeal, the Missouri Court of Appeals affirmed, holding that the defendants were entitled to immunity protections, that McIlvoy had not adequately pleaded or proven his claims, and that his appellate arguments were either meritless or insufficiently developed for review.

civil rightsprocedure

Timothy Register was convicted by a jury in Morgan County Circuit Court of first-degree sodomy, first-degree statutory rape, and two counts of first-degree child molestation based on sexual abuse of his daughter C.R. beginning when she was five; he was sentenced as a prior and persistent offender to consecutive prison terms of 25, 25, 15, and 25 years. On appeal, Register argued that the trial court abused its discretion by allowing a forensic interviewer to read aloud to the jury a written statement C.R. had given years earlier at a child advocacy center, claiming the reading improperly bolstered C.R.’s trial testimony. The Missouri Court of Appeals affirmed the convictions and sentences. The court held that the bolstering objection had not been preserved because it was not raised in the motion for new trial (only a hearsay objection was), and that plain-error review did not apply because the oral reading was merely cumulative of the written statement, which had already been admitted under § 491.075 and published to the jury, resulting in no manifest injustice.

criminal lawprocedure

Clifford Porter appealed the denial of his Rule 24.035 motion for post-conviction relief after pleading guilty to first-degree burglary and second-degree robbery in exchange for the State recommending consecutive ten-year sentences, with his counsel free to argue for less. He claimed plea counsel was ineffective by assuring him he would receive no more than concurrent ten-year terms and that he would not have pleaded guilty had he known a longer total sentence was possible. The Missouri Court of Appeals affirmed the motion court's denial after an evidentiary hearing. The court held that Porter's claim was refuted by the plea petition and hearing transcript, in which he acknowledged understanding that the judge could impose consecutive sentences up to thirty years total with no guarantees or promises, and that any mistaken belief about sentencing did not render his plea involuntary.

criminal lawprocedure

Capital Finance Loans sued Andrew Read in Jackson County Circuit Court for breach of contract and a deficiency judgment after repossessing and privately selling his pickup truck following default on a retail installment contract. Read filed counterclaims, including one alleging the contract violated the Motor Vehicle Time Sales Act by omitting required information, and moved to dismiss the amended petition on grounds that Capital Finance’s presale notice failed to meet Uniform Commercial Code requirements under § 400.9-614(1). The circuit court granted the motion to dismiss, certified the partial judgment as final under Rule 74.01(b), and allowed the appeal to proceed. The Missouri Court of Appeals dismissed the appeal for lack of jurisdiction, holding that the partial judgment did not resolve an entire “judicial unit” because Read’s mandatory counterclaim directly tied to the underlying contract remained pending.

business & regulatoryprocedure

The case involved a lawsuit by The Bank of New York Mellon Trust Company, as trustee, against James and Pamela Jackson for default on a $15,000 promissory note they executed in 2006. The bank sought to recover the unpaid balance plus interest, while the Jacksons denied the bank's status as holder in due course and raised affirmative defenses and counterclaims. After a bench trial, the circuit court found that the bank had standing as holder of the note, entered judgment for the bank in the amount of $15,460.40, and rejected the Jacksons' defenses and counterclaims. On appeal, the Missouri Court of Appeals dismissed the case because the Jacksons, proceeding pro se, failed to file a transcript of the trial proceedings, leaving the appellate court unable to review any of the factual or evidentiary claims raised in the eight points on appeal.

business & regulatorypropertyprocedure

Christopher Pickering was convicted in a bench trial of driving while intoxicated after a traffic stop for erratic driving on I-35, during which a trooper observed signs of intoxication, administered field sobriety tests that Pickering failed, and obtained a breath test result of .136% BAC using a DataMaster device. Pickering appealed, arguing that the breath test results lacked a proper foundation because the State presented no evidence that the device's breath alcohol simulator had been certified against a NIST-traceable thermometer in 2013, as required by state regulation 19 C.S.R. 25-30.051(4). The Missouri Court of Appeals agreed that admitting the test results was error and rejected the State's claim of harmless error, finding that the trial court's comments indicated reliance on the breath test and that it was not clear the court would have convicted based solely on the other evidence of erratic driving, physical signs of intoxication, and failed field tests. The court therefore reversed the conviction and sentence and remanded the case for a new trial or further proceedings.

criminal lawprocedurebusiness & regulatory

Dewayne Leer, owner of Uncle D's Sports Bar & Grill in St. Joseph, was cited for violating two city non-smoking ordinances (§§ 17-335 and 17-337) by allowing smoking inside the establishment and maintaining ashtrays with ashes. After a municipal conviction and a trial de novo, the circuit court again found him guilty and imposed $100 fines for each violation. Leer appealed, arguing that his bar qualified as a "billiard parlor" exempt under a 1993 smoking article, that the 2014 ordinances were unconstitutional special laws because of casino exemptions, and that the ordinances improperly delegated legislative power regarding those exemptions. The Missouri Court of Appeals affirmed the judgment, holding that the 2014 Article's smoking prohibitions applied to the bar and that any constitutional defects in the casino provisions would be severable under the ordinance's severability clause, leaving the charged provisions unaffected.

business & regulatorycriminal law

In State of Missouri v. Henry R. Ramirez, the defendant was convicted of second-degree murder, two counts of first-degree assault, and three counts of armed criminal action after a 2012 stabbing incident at the Willis home that left one man dead and two others seriously injured. Ramirez appealed, claiming the trial court wrongly refused his requested jury instructions on the lesser-included offenses of voluntary manslaughter, involuntary manslaughter, and second-degree assault. The Missouri Court of Appeals vacated all convictions and remanded the case. It held that second-degree assault is a nested lesser-included offense of first-degree assault because proof of purposeful or knowing conduct necessarily establishes recklessness under Missouri’s graded mental-state statute, and the same principle required instructions on the manslaughter offenses; when a defendant requests such an instruction and the evidence supports the greater offense, the lesser must be given.

criminal lawprocedure

Eric Hickerson sued the Missouri Board of Probation and Parole after it calculated his minimum parole eligibility date on a new consecutive sentence as July 14, 2015, using the date that sentence was imposed rather than the earlier date of his arrest while on parole. The circuit court denied his petition for declaratory judgment, ruling that the claim was barred by issue and claim preclusion from prior litigation. On appeal, the Missouri Court of Appeals dismissed the case as moot. The court reasoned that the disputed eligibility date had already passed by the time of its decision, so any ruling on the correct starting date would have no practical effect on an existing controversy, and the case did not meet the criteria for the public-interest exception to mootness.

criminal lawprocedure

Telester Ameena Powell sued the City of Kansas City for alleged violations of Missouri’s Sunshine Law after the City failed to respond to her November 2011 written request for engineering reports, surveys, and other documents related to an eminent-domain project to build a police facility. The City had notified Powell in October 2011 of its intent to condemn her property and later completed the condemnation proceedings, but it never replied to her document request. In July 2013, Powell filed a petition seeking enforcement of the Sunshine Law, statutory damages, and injunctive relief. The circuit court granted summary judgment to the City, and the Missouri Court of Appeals affirmed. The appeals court held that the undisputed facts showed the action was filed more than one year after the alleged violation and was therefore barred by the one-year statute of limitations in § 610.027.5, entitling the City to judgment as a matter of law.

propertyprocedure

The case involved a Missouri juvenile court proceeding in which the Juvenile Officer sought to establish jurisdiction over Father’s biological child (K.G.) and stepchildren (K.L. and L.S.) under § 211.031.1(1), based on allegations that Father exposed the children to domestic violence and sexually abused two of them. After Father was served with summonses that omitted required notice of the right to appointed counsel, he appeared without an attorney at the June 2014 adjudication hearing; the court began taking testimony from the Juvenile Officer’s witness without first asking Father whether he wanted counsel, though it later granted his off-record request for appointment. The Court of Appeals reversed the judgment as to Father and remanded the case, holding that § 211.211.4 and Rule 124.06(b)(3) require the court to inquire about the right to counsel whenever a custodian appears without representation, that written notice in the summons does not satisfy this duty, and that the absence of an affirmative waiver constitutes reversible error regardless of later appointment of counsel.

family lawprocedurecivil rights

George Hall appealed the Missouri Public Service Commission's denial of his late motion to intervene in a proceeding on Missouri-American Water Company's application for a certificate of convenience and necessity to acquire and operate a sewer system in Benton County by purchasing the assets of a dissolved local sewer district. The Commission had allowed Hall to file an amicus brief but found that his stated interests—primarily operating his own septic system and challenging the district's prior USDA loans and dissolution—were either unaffected by the proceeding or beyond the agency's authority to address. The Court of Appeals dismissed the appeal, holding that Hall had sought only permissive intervention and that an order denying such intervention is not final or appealable. The court reasoned that the PSC's limited task of deciding whether to authorize MAWC's acquisition would have no practical effect on Hall's ability to pursue his claims in a proper forum.

business & regulatoryprocedure

The case concerned whether assets held in the Norma J. Meyer Revocable Living Trust, including a 300-acre ranch, belonged to her probate estate after her death. Dustin Meyer, as personal representative, appealed a trial court judgment that rejected his claims that the trust had been created through undue influence by Robert Presley (also known as Tommy Richardson) or had been terminated by Norma before she died. The Missouri Court of Appeals affirmed the judgment, holding that the trust assets were not part of the estate. The court reasoned that the trial court was entitled to credit the testimony of the drafting attorney and Richardson that Norma had voluntarily directed and executed the trust documents in 2005, and that the evidence of her later 2009 will and other circumstances did not establish undue influence or revocation of the trust.

property

In 2014, Alan John Gorman was convicted by a Cass County jury of first-degree statutory sodomy and first-degree child molestation based on his stepdaughter T.B.’s testimony that he had touched her sexually on multiple occasions beginning when she was seven or eight years old. Gorman appealed, arguing that the trial court abused its discretion by excluding evidence that T.B. had been molested years earlier by her biological father, which he claimed supported his defense that she was falsely projecting that prior abuse onto him. The Missouri Court of Appeals affirmed the convictions, holding that the trial court’s exclusion of the evidence was not arbitrary or unreasonable under the circumstances and therefore did not constitute an abuse of discretion. The court further declined to grant plain-error review on Gorman’s related claim that the rape-shield statute did not apply, because Gorman himself had repeatedly invoked the statute at trial.

criminal lawprocedure

Stephanie Trisler appealed from the Circuit Court of Ray County's denial of her petition for a child protection order against Henry Berry, her daughter's step-grandfather. The circuit court denied her request for an ex parte order on September 8, 2014, citing insufficient allegations of abuse or stalking, an existing custody order, and no immediate danger, then dismissed the full petition without prejudice the next day. Trisler asked the court to re-denominate the September 8 order as a judgment under Rule 74.01, which it did, and she appealed. The Missouri Court of Appeals dismissed the appeal for lack of jurisdiction, holding that the September 9 dismissal without prejudice was not a final, appealable judgment because the docket entry was not signed by the judge or denominated as a judgment, and it was unclear whether refiling would be futile. The court further noted that Trisler's points on appeal concerned the petition's dismissal rather than the ex parte denial.

family lawprocedure

Katy Dierks, a longtime laborer at Kraft Foods' Adair Foods plant, tripped on an air hose in January 2009, injuring her left knee, and later sought workers' compensation benefits for medical treatment, permanent partial disability, and permanent total disability. An administrative law judge found the workplace fall was the prevailing cause of a torn meniscus, awarded Dierks past and future medical benefits plus partial disability from the employer, and held the Second Injury Fund liable for total disability benefits due to the combination of the work injury with her preexisting knee arthritis and other conditions; the Labor and Industrial Relations Commission affirmed and adopted those findings. On appeal by both the employer and the Fund, the Missouri Court of Appeals affirmed, holding that the Commission's determinations were supported by substantial competent evidence, including medical testimony linking the tear to the accident and assessing Dierks's resulting unemployability, and that the Commission was entitled to weigh the evidence and draw reasonable inferences about causation and disability.

labor & employment

Jesse Powell filed a petition for a writ of mandamus in the Circuit Court of Cole County, alleging that the Missouri Department of Corrections was unconstitutionally requiring him to serve his prison sentences in installments. The circuit court denied the petition after issuing a summons to the DOC rather than a preliminary order in mandamus under Rule 94.04. The Missouri Court of Appeals dismissed Powell’s appeal from that denial. The court held that, under Rule 94 and the Supreme Court’s decision in U.S. Department of Veterans Affairs v. Boresi, an appeal lies only when a circuit court first issues a preliminary order and then denies a permanent writ; when the lower court issues only a summons and denies relief, the petitioner’s proper remedy is to seek the writ in a higher court.

criminal lawprocedure

Kenneth Figgins was charged with multiple counts including first-degree robbery, burglary, kidnapping, assault, and armed criminal action after two armed men robbed an apartment in 2008. A jury acquitted him on the assault count and one kidnapping count but hung on the others, leading to a mistrial; Figgins later entered an Alford plea to the robbery count in exchange for dismissal of the remaining charges and a 15-year sentence. He then sought post-conviction relief under Rule 24.035, claiming the conviction violated double jeopardy because the acquittals collaterally estopped the robbery charge and that his counsel was ineffective for not raising the issue. The motion court denied relief, and the Court of Appeals affirmed, holding that the acquittals did not necessarily resolve any fact that precluded a robbery finding since a rational jury could have accepted some testimony while rejecting other parts.

criminal lawprocedure

Gary Michael Clark won a Missouri Lottery annuity paying $50,000 annually for life (minimum 30 years) and used those payments as collateral for two loans from Community Bank totaling over $800,000. After defaulting, Clark sued for a declaratory judgment that the assignment was void under the State Lottery Law (§ 313.285), which bars assignment of lottery prizes, and asked that future payments be redirected to him; the Bank counterclaimed that the assignment was valid and enforceable under Missouri’s Uniform Commercial Code (§ 400.9-406). The circuit court granted summary judgment to the Bank, holding the loan agreements valid and directing the Lottery Commission to continue depositing payments into the designated account. The Court of Appeals affirmed, concluding that the UCC provision permitted the assignment of the lottery payments as an account notwithstanding the lottery statute’s general prohibition.

business & regulatoryproperty