Case Summary for May 6, 2014

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Case Summary for May 6, 2014

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

9:30 a.m. Tuesday, May 6, 2014

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SC93851
State of Missouri v. Sylvester Porter
St. Louis city
Challenge to sodomy conviction

Listen to the oral argument:

SC93851.mp3
Porter was represented during arguments by Amy Lowe of the public defender's office in St. Louis, and the state was represented by Evan J. Buchheim of the attorney general's office in Jefferson City.

Sylvester Porter was convicted of first-degree statutory sodomy following a report that Porter had touched the genitals of a minor with his hand, tongue and genitals. At trial, a video-recorded interview of the minor was played for the jury. During deliberations, the jury asked to review the video. A forensic interview specialist met with the jury to review and replay the video. The jury found Porter guilty of touching the minor’s genitals with his hand and tongue, but the trial court acquitted him of touching the victim with his own genitals. Porter appeals.

Porter argues the trial court erred in overruling his motion for acquittal at the close of evidence and convicting him of statutory sodomy. He contends the trial court’s ruling violated his rights to due process because the evidence was inconsistent and contradictory. Porter asserts the conviction was not supported by sufficient evidence because the victim recanted (took back) her original testimony. He argues the forensic interview specialist should not have been permitted to review and replay the video testimony presented at trial to the jury without supervision. Porter contends his rights to a fair jury, due process and fundamental fairness were violated because replaying the video gave the jury the impression that the testimony carried extra importance. He asserts the jury having unlimited access to replay the video also gave the state an unfair advantage.

The state responds the trial court correctly overruled Porter’s motion for acquittal and convicted him of statutory sodomy. It argues the evidence is sufficient to support a conviction for first-degree statutory sodomy. The state contends the trial court correctly permitted the jury to review the video testimony because Porter failed to object properly to the review and, in fact, urged the jury to review the video. The state further asserts there is no evidence that the jury reviewed the video multiple times or that the review prejudiced Porter.

SC93851_State_brief.pdf

SC93878
Louis Edward Mallow v. State of Missouri
Phelps County
Challenge to child molestation conviction

Listen to the oral argument:

SC93878.mp3
Mallow was represented during arguments by Frederick J. Ernst of the public defender's office in Kansas City, and the state was represented by Evan J. Buchheim of the attorney general's office in Jefferson City.

Louis Mallow was convicted of first-degree child molestation following a report that Mallow touched the genitals of a minor. He subsequently sought post-conviction relief. One of Mallow’s claims was that appellate counsel was ineffective for failing to challenge, on appeal, specific jury instructions known as verdict directors, intended to assist the jury’s decision making. The circuit court held an evidentiary hearing regarding the effectiveness of appellate counsel, determined counsel was effective and overruled Mallow’s motion. Mallow appeals.

Mallow argues the circuit court erred in overruling his motion for post-conviction relief following the evidentiary hearing. He contends his appellate counsel failed to represent him competently, violating his rights to effective assistance of counsel, due process, a fair trial, unanimous verdict and freedom from double jeopardy. Mallow asserts appellate counsel failed to challenge verdict directors used at trial that were improper and subjected him to double jeopardy. He argues appellate counsel also should have challenged the verdict directors because they were vague and failed to require a unanimous decision by the jury.

The state responds the circuit court correctly overruled Mallow’s motion for post-conviction relief. It argues Mallow failed to challenge the verdict directors properly at trial and, therefore, cannot raise this challenge on appeal. The state contends Mallow failed to provide evidence that that the jury’s decision was not unanimous or that juror unanimity is required. It asserts Mallow also failed to prove his appellate counsel’s decisions were not based on trial strategy. The state argues Mallow’s direct appeal predates case law he uses to support his claims.

SC93878_State_brief.pdf

SC93760
Mary Ellison, Arthur Fry, David Fry, and Susan Sleeper v. J.D. Fry, deceased, by Linda Fry, Trustee of the John Delbert Fry Revocable Intervivos Trust, et al.
Camden County
Challenge to inheritance

Listen to the oral argument:

SC93760.mp3
Ellison was represented during arguments by Beverly J. Figg of Andereck, Evans, Widger, Johnson & Lewis LLC in Jefferson City; and the estate of J.D. Fry was represented by Thomas M. Harrison of VanMatre, Harrison, Hollis, Taylor & Bacon PC in Columbia and Daniel S. Simon of the Simon Law Offices in Columbia.

The parents of Mary Ellison, J.D. Fry and Arthur Fry executed a will in 1981 bequeathing property and money to their three children. In 1990, following a car accident, the parents signed new wills and warranty deeds conveying property to Mary, J.D. and J.D.’s son, Delbert. Mary did not receive her deed. The 1990 wills were filed with the court in 2007, two years and seven years following the parents’ deaths, but probate estates never were opened for either parent. Mary subsequently filed a petition against J.D., his wife Linda, Delbert and J.D.’s company, Fry Grain Enterprises. Arthur and his children, David Fry and Susan Sleeper, later joined the suit. At trial, J.D. produced a claim release with Arthur’s signature. Arthur identified the signature as his but claimed not to have seen two pages of the release. J.D. died before the trial ended, and Linda was substituted as trustee of his estate. The circuit court entered a directed verdict for Linda as trustee of J.D.’s estate dismissed Arthur’s claims, the claims against Delbert and the claim against Fry Grain; and prohibited Mary from using jury instructions as to punitive damages. The jury found in favor of David and Susan against Linda for unjust enrichment, awarding them $5,500 each. The jury also found in favor of Mary for breach of fiduciary duty, fraudulent concealment, conversion and unjust enrichment, awarding her $35,000. Mary, David and Susan filed a motion for an order requiring a return of certain personal property, which the circuit court did not address. The circuit court assessed court costs for the court reporter against all parties and other costs against Linda. Ellison appeals the directed verdict as to punitive damages and Linda as trustee of J.D.’s estate cross appeals as to the jury’s verdict.

Mary Ellison’s appeal

Mary argues the circuit court erred in granting Linda’s motion for a directed verdict regarding punitive damages. She contends a reasonable juror could have found that Linda showed malice and reckless indifference to Mary’s and the other beneficiaries’ rights. Mary asserts Arthur should not have been dismissed because the jury could have found he was not given all of the pages of the release allowing him to make an informed decision before executing the release. She further argues the jury could have found that, if Arthur did execute the release, it was done by fraud, without adequate consideration and without Arthur’s proper consent. Mary contends the circuit court erred in granting Linda a directed verdict because Fry Grain Enterprises improperly converted certain property by accepting government checks due to Arthur, failing to pay rent to the parents for land used and keeping the deceased’s farm equipment. She asserts the circuit court also erred in granting a directed verdict because she presented evidence that Delbert asserted undue influence in relation to the 1990 wills and conveyances. Mary argues she should have been granted an order requiring the return of certain personal property items because the division of personal property among the beneficiaries was unequal. She contends she brought proper equitable and legal claims and deserves the appropriate damages for both.

Linda responds the circuit court correctly granted her motion for a directed verdict. She argues Mary did not make a legitimate claim for punitive damages because she did not provide sufficient evidence to prove that Linda’s conduct was outrageous nor had evil intention. Linda contends the circuit court properly dismissed Arthur because there was sufficient evidence to prove he had executed a release from claims. She asserts there is insufficient evidence to prove Fry Grain Enterprises converted property in which Mary had any interest or right of possession. Linda argues the circuit court properly dismissed Delbert because Mary failed to provide sufficient evidence to support a claim against Delbert for undue influence. She contends Mary is not entitled to an order for the return of personal property because Mary solely requested money damages in her petition.

Linda’s cross-appeal

Linda argues the circuit court erred in overruling her motion to declare a judgment in her favor despite the jury’s verdict ruling against her. She contends David and Susan’s claims against J.D., as well as those regarding real property, are barred by the statute of limitations. Linda asserts that Mary does not have proper standing and that David and Susan do not have the proper interest to bring the claims. She argues the claims filed against her as trustee are improper because J.D.’s trust did not exist when the conduct relating to the claims occurred. Linda also contends she was substituted improperly to represent J.D.’s interests. She asserts the circuit court improperly assessed court costs because it did not specify the parties responsible for certain costs, noting some parties were dismissed, are deceased or had no claims filed against them. Linda argues the circuit court abused its discretion in assessing costs against her because the costs do not bear a relationship to the judgment.

Mary responds that the circuit court correctly overruled Linda’s motion to declare judgment in her favor. She argues Linda failed to prove the statute of limitations already has run as to the parents’ estates because the parties timely filed following revelation of the wills. Mary contends Linda also failed to prove the statute of limitations has run as to the claims against J.D. because the parties filed timely claims once J.D.’s fraudulent activity was revealed. She asserts that all of the parties have proper standing for their claims. Mary argues that the claims against Linda as trustee are proper because the circuit court substituted her as trustee for J.D.’s trust after he died. Mary contends Linda failed to properly preserve the matter of the circuit court’s assessment and allocation of costs for appeal. Mary asserts that the circuit court’s allocation of costs was proper because it considered the entire course of proceedings.

SC93872
Richard E. Ivie, Jimmie R. Ivie, Ladonna Small, and Bernard Ivie v. Arnold L. Smith and Sidney B. Smith
Scott County
Challenge to trust amendments

Listen to the oral argument:

SC93872.mp3
Smith was represented during arguments by Joseph C. Blanton of Blanton, Rice, Nickell, Cozean & Collins LLC in Sikeston, and the siblings were represented by Bruce Lawrence of Lawrence & Lawrence LLC in Sikeston.

Patricia Watson married Arnold Smith in February 2002 and created a will and trust two months later. Smith was not a beneficiary of the original trust. Watson amended her trust in July 2007 to leave $25,000 to each of her four siblings – Richard Ivie, Jimmie Ivie, Bernard Ivie and Ladonna Small – and the remainder to Smith. She also added a no contest clause to the trust, which would void the inheritance of anyone contesting the trust. Thereafter, Watson changed the beneficiary of certain trust and retirement accounts, as well as her vehicles, naming Smith as beneficiary. She also retitled some accounts as payable to the trust. In July 2008, Watson again amended her trust, this time reducing her siblings’ inheritance to $5,000 each and allowing a $5,000 inheritance to Smith’s son. Watson died in April 2009. Her siblings filed a petition to discover Watson’s assets and contest the trust. The circuit court found that the 2007 and 2008 amendments were invalid and that the siblings were entitled to inherit. Smith appeals.

Smith argues the circuit court erred in finding there was undue influence in amending the trust in 2007 and again in 2008. He contends that there was insufficient evidence to prove he had any role in the amendments and that Missouri law generally favors the spouse. Smith asserts both the 2007 and 2008 amendments are valid because there was sufficient evidence of Watson’s testamentary capacity (legal ability to make a will or trust). He argues any evidence of lack of capacity was documented at times other than the execution of the amendments. Smith contends the circuit court erred in finding the siblings may inherit under the amended trust because the siblings contested the validity of the amendments and the trust contains a no contest clause. He asserts there was no undue influence or lack of capacity related to changes in the titling of certain trust accounts and beneficiary designations. Smith argues that capacity is not an issue for such non-probate transfers. He contends the circuit court erred in finding the retitled assets were property of the estate because, prior to the retitling, the items were trust property. Smith asserts no parties were harmed by the changes in beneficiary designations.

The siblings respond that the circuit court correctly found that Smith exerted undue influence relating to the 2007 and 2008 trust amendments. They argue Watson had insufficient testamentary capacity to execute both the 2007 and 2008 amendments. The siblings contend they are permitted to inherit from the trust because the amendments were invalid. They assert the no contest clause does not apply because the amendments are invalid. The siblings argue Smith also exerted undue influence over Watson relating to the changes in title of certain trust accounts and beneficiary designations. They contend the circuit court correctly determined the estate was entitled to damages from Smith as a result of the undue influence.