Case Summary for May 12, 2009

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Case Summary for May 12, 2009

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Tuesday, May 12, 2009

_________________________________________________________________

SC89867
State of Missouri v. Michael G. Craig
Clay County
Challenge to driving while intoxicated conviction
Listen to the oral argument:

Craig was represented during argument by Bruce B. Brown of Kearney, and the state was represented by James B. Farnsworth of the attorney general's office in Jefferson City.

Michael Craig had three prior charges of driving while intoxicated when, in September 2006, the state filed an information charging Craig with driving while intoxicated for a fourth time in March 2006. The state charged Craig with a class C felony pursuant to sections 577.010 and 577.023, RSMo, alleging Craig previously pleaded guilty or was found guilty of driving while intoxicated in January 1992, September 1999 and March 2002. In February 2007, Craig moved to dismiss the class C felony information and to strike the three enhancement allegations. He argued the state could not prove beyond a reasonable doubt he was prior, persistent or aggravated offender as defined in section 577.023 because the records from the three previous cases did not comply with Rule 24.02 and former Rule 37.59. Craig then pleaded guilty to driving while under the influence of alcohol in March 2006, but he did not admit the state's records were sufficient to prove his aggravated offender status. In March 2007, the trial court overruled Craig's motion to dismiss and found the state proved beyond a reasonable doubt that Craig had three prior intoxication related traffic offenses allowing for the enhancement to a class C felony and sentenced him to five years imprisonment. Craig moved for judgment of acquittal. The trial court overruled his motion. Craig appeals.

Craig argues the enhancement of the charge of driving while intoxicated from a class B misdemeanor to a class C felony was based on invalid pleas of guilty and invalid findings of guilt in the three prior intoxication related traffic offenses. He contends the evidence did not establish beyond a reasonable doubt that any of the alleged guilty pleas were made knowingly, voluntarily and intelligently as mandated by Rule 24.02 (state prosecutions) and former Rule 37.59 (municipal prosecutions) and, therefore, those records were invalid. Also, Craig asserts, the trial court should have dismissed the January 1992 court record because it does not reflect a guilty plea or a finding of guilty as required by section 577.023. He argues the disposition form in the January 1992 court record shows the line for the plea and the line for a finding of guilty were not checked and none of the other court records reflect a guilty plea or finding of guilty.

The state responds this Court should dismiss Craig's appeal without consideration on the merits because Craig, by pleading guilty to the charged offense, waived his right to challenge the sufficiency of the evidence to support the enhancement allegations on direct appeal. It contends it proved beyond a reasonable doubt that he had pleaded guilty to, or had been found guilty of, three or more intoxication-related traffic offenses.

SC89888
State of Missouri v. Robert M. Oliver
Taney County
Challenge to search and seizure
Listen to the oral argument:

Oliver was represented during argument by Nancy A. McKerrow of the public defender's office in Columbia, and the state was represented by Jamie P. Rasmussen of the attorney general's office in Jefferson City.

In November 2005, two children, KK, 8-years old, and CM, five-years old, went to Robert Oliver's house to play with Oliver's son. Later that day, KK and CM told their mother that Oliver took pictures and that Oliver had asked them to take their clothes off for the pictures. They said after taking the pictures, they looked at the pictures with Oliver on his computer. The mother called the police. The police went to Oliver's house with a division of family services employee. Oliver refused to give his digital camera, computer, and camera's media chip to the police. The division employee told Oliver's wife their options where that Oliver could leave and the wife and child could stay, the wife and child could leave and Oliver stay, or they could take the kids. Oliver left. A police officer then asked Oliver's wife if he could take Oliver's computer tower, digital storage devices and the digital camera. The wife agreed and signed a consent to search. The officers later obtained a warrant to examine the contents of the computer, camera and other storage devices. Before trial, Oliver moved to suppress the evidence seized from his digital camera and computer. The trial court overruled his motion. The camera's media chip and computer records evidenced pictures had been taken of the children without their clothes on and that someone in Oliver's home had visited, or attempted to visit, child pornography Web sites. Oliver was convicted of two counts of the class A felony sexual exploitation of a minor and two counts of the class B felony promoting child pornography in the first degree. The trial court sentenced him to concurrent terms of 15 years on both counts of sexual exploitation and 10 years for both counts of promoting child pornography. Oliver appeals.

Oliver argues the trial court denied his right to be free from unreasonable search and seizure as guaranteed by the United States and Missouri constitutions. He contends the evidence from his camera and computer should have been suppressed because they were seized without a warrant and without proper consent. Oliver asserts he refused to turn the items over to the police and his wife's consent after his refusal should not have been valid when the police did not have a warrant. He argues the warrant obtained two weeks later was invalid because information obtained as a result of the illegal search and seizure was presented to the judge and affected the decision to issue the warrant. Oliver asserts the trial court violated his right to due process because the state failed to prove he violated section 573.023, RSMo, sexual exploitation of a minor, or section 574.025, RSMo, promoting child pornography, beyond a reasonable doubt. He contends that the state failed to produce evidence he created obscene material, since the photographs of KK and CM do not show any sexual conduct and do not involve sexual performances, or that he intended to exhibit obscene material, since there was no evidence that he sold, shared, or gave any Internet image to any other person.

The state responds the digital camera, the media chip and the computer hard drive were seized pursuant to a valid consent of Oliver's wife and the images from those devices were properly seized pursuant to a valid warrant. It asserts the trial court properly overruled Oliver's motion for acquittal because there was sufficient evidence from which a reasonable jury could find beyond a reasonable doubt that Oliver created obscene material in that its exhibits depict the children engaged in sexual conduct because the way the children were standing in the photos is within the statutory definition of sexual conduct. The state argues there was sufficient evidence that Oliver possessed child pornography with the intent to exhibit it in that the children testified that Oliver showed them the pictures he had taken and because he looked at them multiple times.

SC89862
Ellen Wallingsford v. City of Maplewood
St. Louis County
Gender discrimination and hostile work environment
Listen to the oral argument:

Wallingsford was represented during argument by James R. Dowd of St. Louis, and the city was represented by Terry L. Potter of Husch Blackwell Sanders LLP of St. Louis.

Ellen Wallingsford was a police officer for the City of Maplewood from August 1986 to August 2004. In December 2002, she was suspended for failing to write up a male officer for taking evidence (a knife) for personal use. Wallingsford believed the suspension was based on her gender because she informed the proper supervisor, a male, about the knife being taken; the male supervisor was not disciplined for failing to write up the officer; and Wallingsford knew of other male officers who were not suspended for similar behavior. She alleged there was a continuing pattern of gender discrimination and a hostile work environment after her reinstatement. In March 2003, Wallingsford submitted a 12-page letter to the city manager detailing her claims of gender discrimination. When no action was taken, Wallingsford filed a charge of discrimination with the Equal Employment Opportunity Commission and the Missouri Commission on Human Rights. She resigned in August 2004. In January 2005, she filed a second charge of gender discrimination with the EEOC and MCHR. She received her notice of right to sue from the Missouri Commission on Human Rights in January 2006, and, in March 2006, she sued the city for gender discrimination and a hostile work environment. In May 2006, the city moved to dismiss the petition. In June 2007, the circuit court stated it intended to treat the motion to dismiss as a motion for summary judgment. Wallingsford moved to strike but, in January 2008, the trial court granted summary judgment for the city. Wallingsford appeals.

Wallingsford argues her suit was properly brought pursuant section 213.075, RSMo, in that her charge of discrimination was filed with the Missouri Commission on Human Rights within 180 days of the last alleged act of discrimination. She contends that she offered competent evidence she was subjected to continuing gender harassment and a hostile workplace environment until the date of her resignation, which she believes was constructive discharge. Wallingsford asserts the trial court erred in not sustaining her motion to strike the city's converted motion for summary judgment because the city failed to file summary judgment pleadings in conformity with Rule 74.04. She argues she was prejudiced in that the trial court's failure to require compliance with Rule 74.04 resulted in her not knowing of an additional ground upon which the city claimed it was entitled to summary judgment and upon which the trial court relied in entering summary judgment. Wallingsford contends she should have been granted leave to file a supplemental affidavit to respond to new arguments raised by the city in its reply memorandum.

The city responds the trial court lacked jurisdiction due to Wallingsford's failure to file a timely administrative charge. It contends the actions Wallingsford included in her suit did not occur within 180 days of her filing charge. The city asserts Wallingsford's resignation does not constitute an act of discrimination because she resigned voluntarily, not as a constructive discharge. It argues the trial court did not err in overruling Wallingsford's motion to strike because the city was not required to conform its motion to Rule 74.04 and because she was fully apprised of the basis upon which the city moved for dismissal or summary judgment. The city further responds the trial court properly denied Wallingsford's motion for leave to file a supplemental affidavit because the city did not make new arguments in its reply memorandum.

SC89960
Mitchell Miller v. Missouri Highway and Transportation Commission
Pike and Cole counties
Scope of workers' compensation
Listen to the oral argument:

Miller was represented during argument by Joseph A. Brannon of New London, and the highway and transportation commission was represented by Mary Anne Lindsay of Evans & Dixon, LLC, of St. Louis.

In 2005, the workers' compensation act was amended to include new definitions for the terms "accident" and "injury." The Missouri legislature replaced the term "substantial factor" with "prevailing factor" so that work must be the prevailing factor of an injury for compensation to be awarded in a workers' compensation lawsuit. Mitchell Miller worked for the Missouri highway and transportation commission for more than 19 years and was the assistant maintenance supervisor. In September 2005, while at a construction site in Pike County, Miller was walking to his truck when felt a pop behind his right knee followed by pain. He had no prior history of knee problems. Miller sought worker's compensation for temporary total disability, permanent partial disability and future medical treatment for his knee injury. In August 2007, the administrative law judge held Miller failed to meet his burden of proving he suffered a compensable injury as a result of a work-related accident arising out of and in the course of employment. Miller appealed to the Missouri labor and industrial relations commission, which, in July 2008, also denied benefits. It held that Miller's injuries were not related to his employment and he was equally exposed to this injury outside of his employment; therefore, section 287.020.3(2)(b), RSMo precluded an award of compensation. Miller appeals.

Miller argues that the injury did arise out of and in course of his employment because his injury was sustained during working hours, at a job site, while performing a task incident to work. He contends his testimony, the testimony of the highway and transportation commission's medical expert, and case law prove that the accident arose out of the course of employment and is therefore compensable.

The highway and transportation commission responds to recover pursuant to the 2005 amendments of the workers' compensation act, Miller was required to show his knee injury came from a hazard or risk related to his employment to which he would not have been equally exposed outside of work. The commission contends the undisputed evidence demonstrates Miller was equally exposed to the hazard of popping his right knee at work or in non-work situations and Miller failed to show any conditions unique to his employment caused or contributed to cause the popping incident and his right knee injury.