Arson Cases: Meeting The “Interest” Element Of The Offense


A recent Kansas Supreme Court ruling showed some of the evidentiary issues faced in the trial of arson cases.  The case was State v. Bollinger, (No. 110,945) and it was decided this month.

The facts of Bollinger are tragic.  The defendant was involved in a marital separation and divorce drama with his spouse.  The dispute escalated in intensity and bitterness.  One night, a fire occurred at the residence of the parties, and the defendant claimed he could not remember how it began.  The defendant’s spouse perished in the fire, and Bollinger was charged with felony murder and arson.

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Curtilage, Search Warrants, And Illegal Drug Seizures In Kansas

What is the “curtilage” of a residence?  Under what circumstances can law enforcement search the outside of a residence without a search warrant?  These are some of the questions considered by the Kansas Supreme Court in its recent decision in State v. Talkington (No. 107,596), decided on March 6, 2015.

The Talkington case involved a drug search in the area outside of a residence.  Three issues were implicated in the case:  (1) whether a residential backyard is part of the “curtilage” under the Fourth Amendment to the United States Constitution; (2) whether a social guest in the residence can challenge the search of host’s residence; and (3) whether drugs found on the defendant’s person after an illegal search of the curtilage should be suppressed as “fruit of the poisonous tree.”  Many search and seizure issues were implicated in this case.  It is an important case and one that deserves careful reading.

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The Good Faith Exception To The Exclusionary Rule Saves A Deficient Missouri Search Warrant

When will a search warrant be supported by probable cause?  What is the “exclusionary rule”?  And what is the “good faith exception” to the exclusionary rule?  These were some of the questions considered by the Missouri Court of Appeals last month (February 2015) in the case of State v. Gregory Robinson Sr, (WD 77664), which came out of Randolph County, Missouri.

The Defendant (Robinson) was charged with manufacturing drugs.  At his trial, his attorney filed a motion to suppress the evidence seized in the case, claiming that the search warrant used by the police officers did not show sufficient “probable cause” to search the premises.  He won his motion, and the evidence was suppressed.  The State, however, appealed.

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“Jury Box” Or “Hot Box” Jury Selection In Kansas Felony Criminal Trials

Does it matter how a jury is selected in a criminal case?  Can the method used in seating a jury cause reversible error?  According to the Kansas Court of Appeals, the answer is yes.  A recent case discussed these issues and how they would be applied.  The case was State v. Crabb, decided in February of this year (KS Court of Appeals No. 110,673).

In the Crabb case, defendant Christopher Crabb appealed his conviction of one count of interference with law enforcement. Crabb claims the district court committed reversible error by using the so-called “hot-box” method of jury selection over Crabb’s objection instead of using the statutory method of jury selection set forth in K.S.A. 22-3411a.  He also argued that the district court erred in instructing the jury and that he was denied a fair trial based on prosecutorial misconduct and cumulative error.

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Director Must Prove Elements Of Refusal Of Breath Test In DWI Cases

In a recent decision, the Missouri Court of Appeals upheld the standard required for the Director of Revenue to prove in DWI cases involving an alleged refusal to submit to a breath test.  The case was Ryan McPhail v. Director of Revenue (ED101307, from December 2014).  The Appellant, McPhail, argued that the Director had not proved he refused to submit to a breath test under RSMo. 577.041.1.  The Appellate Court agreed with him.

The facts were as follows.  The police officer conducted a traffic stop after observing a vehicle swerving and hitting parked cars.  The officer told the driver to get out and sit on the curb, and then told him to get his license and insurance.  The officer claimed he noticed signs of impairment, like slurred speech and stumbling; he asked McPhail to perform sobriety tests and take a breath test, and McPhail allegedly refused.  He was then arrested.

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Failure To Register As A Sex Offender In Missouri Not A Strict Liability Crime

In Missouri, failing to register as a sex offender is a class C felony, pursuant to RSMo. Sections 589.400 and 589.425.  The Missouri Court of Appeals for the Southern District recently had an opportunity to rule on some important aspects of this offense, and reached an interesting conclusion.  The case was State of Missouri v. William Wilder, No. SD33140, on appeal from Wright County, Missouri.  The decision was reached on January 16, 2015.

The background of the case was relatively simple.  On October 22, 2010, Wilder was charged by information with the class C felony of knowingly failing to register as a sex offender (Count I), in violation of sections 589.400 and 589.425; and the class C felony of sexual assault (Count II), in violation of section 566.040.  As the case proceeded to trial, a joint stipulation was entered between the State and the defense.  The stipulation contained the following information:

1.  Records from the State of California show that the defendant, William Wilder, was arrested by the Los Angeles Police Department on September 17, 1979.

2.  The defendant entered into a final plea on October 4, 1979 to counts 1 and 5 (forcible rape).

3.  The defendant was ultimately sentenced to eight (8) years in prison.

4.  The defendant thereafter was notified by the State of California that he must register as a sex offender.

5.  The Notification of Registration Requirement bears the defendant’s signature and right thumbprint and is dated September 17, 1984.

6.  The defendant’s criminal history record shows the defendant was convicted of “Rape with Force” and he was received at a California Penal Institution on March 2, 1982.

7.  On September 23, 2010, Wright County Missouri Deputy Tiffany Butts (Neill) received a report of sexual assault. The alleged victim, [B.R.], reported that the defendant was helping her move on September 3, 2010 and the defendant forced her to have sex with him. [Victim] reported that the defendant again forced her to have sex on September 11, 2010.

8.  The defendant was arrested in Missouri on the forcible rape charge on September 24, 2010 (21 days after the initial alleged rape within Wright County Missouri) and had never registered in Missouri as a sex offender.

9.  That defendant moved from the State of California to the State of Missouri in 1985, after being released from confinement.

10.  That at the time the defendant moved to the State of Missouri, the State of Missouri did not have any statutory requirement for anyone who was a sex offender to register as a sex offender.

11.  That the State of Missouri did not have any statutory requirement to register as a sex offender until 1997. (See Section 589.400 RSMo)

12.  That the defendant was notified upon his arrest to register as a sex offender in the State of Missouri by registering with the Wright County Sheriff’s Department and the defendant has complied with that request.

13.  That the notification that defendant received to register as a sex offender upon his arrest on September 24, 2010 was the first notification that he had received to register as a sex offender since he moved to Missouri in 1985.

Besides this joint stipulation, no other evidence was submitted to the trial court, and no witnesses testified.  In their briefing to the trial court, the parties admitted that when Wilder moved to Missouri in 1985, there was no federal requirement for registration by sex offenders.  After the submission of trial briefs, the court in 2013 entered its “Order,” with findings of fact and conclusions of law, finding Wilder “guilty of the Class C felony of Failing to Register as a Sex Offender, [pursuant] to RSMo. Section 589.425, beyond a reasonable doubt.”  The court sentenced Wilder to prison, but suspended the sentence and put him on probation.

Wilder appealed his case, claiming that the trial court erred in that there was insufficient evidence for the trial court to find that Wilder knowingly failed to register as a sex offender in Missouri under RSMo. Section 589.425.  The appellate court agreed, finding that the critical element that had not been proven was the “knowingly” element.

The court found that a critical element of the “failure to register” statute is the “knowingly” element.  In other words, the State should have proven that the defendant knowingly or deliberately failed to register, after being aware that he had to do so.  A person cannot violate the statute by being negligent, careless, or reckless.

Section 589.425 provides: “A person commits the crime of failing to register as a sex offender when the person is required to register under sections 589.400 to 589.425 and fails to comply with any requirement of sections 589.400 to 589.425.” The State had the burden to show that Wilder knowingly failed to comply with the registration requirement of section 589.400 to 589.425.  This is consistent with the findings of State v. Jacobs, 421 S.W.3d 507, 513 (Mo.App. S.D. 2013) (en banc) and State v. Younger, 386 S.W.3d 848, 853 (Mo.App. W.D. 2012).

The appellate court had to conclude that no evidence was presented that Wilder knowingly failed to register.  Instead, the State claimed that “failing to register” should be seen as a “strict liability” crime; that is, no mental state should need to be proven.  In the State’s view, if you fail to register, you are guilty, period.  The appellate court rejected this view.  It clearly and unequivocally held that the State must prove that a person “knowingly” failed to register.  This clearly shows that the State must first demonstrate that a person knew he had to register, and then deliberately failed to do so.  And this it could not do.  You can’t be guilty of “failing to register” if you didn’t know you were supposed to register.  

In today’s mobile society, this places the burden on the State of actually informing people of their duty to register before trying to prosecute them.  Seen in this light, the Wilder decision is consistent with due process and fundamental fairness.

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Entrapment As A Defense In Kansas And Missouri


Entrapment is a defense available to defendants as a remedy for over-zealous prosecutions.  The defense is defined slightly differently in Kansas and Missouri.  In Missouri, entrapment is defined in R.SMo Section 562.066:

1.  The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the prescribed conduct because he was entrapped by a law enforcement officer or a person acting in cooperation with such an officer.

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Identity Theft And Identity Fraud Crimes In Kansas And Missouri

Identity theft has been a growing problem for years.  Factors driving the increased prosecution of these types of cases is greater awareness of protecting personal information, the increasing use of identity theft in furtherance of undocumented labor, and the improved electronic security systems that are being implemented in the public and private sectors.

Both Kansas and Missouri have a specific set of statutes that are used to prosecute identity theft crimes, which are similar in some ways but different in others.  There are also federal criminal penalties for identity theft.

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Violent Crimes in Kansas and Missouri

Violent crimes are defined as those crimes involving force or the threat of force, or those that involve bodily harm to another.  It is not a precisely defined category, and authorities differ precisely on what may or may not be a “violent” crime.  Some types of offenses can be in more than one category of crime:  for example, aggravated sexual battery is both a sex crime and a violent crime.

Basically, a violent crime is one viewed as violent activity against a person or property that intentionally threatens or inflicts, or attempts to inflict, physical harm. Because of the seriousness of such acts and the potential damages that can result, violent crimes are typically prosecuted very aggressively by state and federal prosecutors.  In addition, alleged victims of violent crimes often have more involvement in the prosecution of these offenses than with other types of criminal offenses.

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Property Crimes


Property crimes are very common, and involve the alleged taking of money or property.  These offenses are generally grouped into the following categories:

Burglary.  Burglary is typically defined as the unlawful entry into almost any structure with the intent to commit any crime inside. No physical breaking and entering is required; the offender may simply trespass through an open door. There need not be any forcible taking of property, like robbery, which is usually classified as a violent crime.  The definition of burglary arises out of state law, and thus, the components of the crime may differ slightly depending on the state. Federal criminal law incorporates the meaning of burglary used by the state that the crime occurred in.  Most states use the same basic definition of burglary:

  1. The unauthorized breaking and entry.  This can be actual breaking, or “constructive” breaking, with no force used.
  2. Into a building or occupied structure.  An abandoned structure generally will not qualify.
  3. With the intent to commit a crime inside.  The crime intended inside the structure need not be stealing; it can be any felony crime.  But the crime needs to be separate from the break-in itself.

Some states further divide burglary into “degrees”, that is, “burglary in the second degree”, etc, depending on the circumstances and on whether a person was in the residence at the time of the intrusion.

Shoplifting.  Generally, shoplifting is composed of two elements: (1) willfully concealing or taking possession of items being offered for sale; and (2) the intent to deprive the items’ rightful owner (typically the store) of possession of the items, without paying for the item. 

Bad Checks.  These charges come about when something of value has been received, in return for which the vendor got a “bounced” check.  These can be a grey area between civil and criminal law, and prosecutors can look to the overall circumstances.  Our experience is that too many of these charges are really civil collection matters, and do not belong in criminal court.  Depending on the situation, some prosecutors look for some higher level of “fraud” in these cases, such as closing the bank account, or if someone has put a stop-payment order on the check.

Theft. This is the taking of something of value from another, with the intent to deprive the owner of rightful possession.

Arson.  This is the willful or malicious burning of property.  It is often seen in conjunction with attempts to commit insurance fraud.  It is a serious felony and is investigated by very trained units.  These cases, while rare, can involve a high level of scientific evidence and expert testimony.

Tampering.  This is the interference in the ownership or possession of the property of another.  It is commonly found in relation to auto cases, or other transportable property.

Property Damage.  Depending on the level of damage caused to the property of another, this can either be a felony or a misdemeanor.  It can happen when someone attempts to degrade, deface, or destroy the property of someone else.

Each of these crimes listed here has specific elements that will differ from state to state. There may also be slight variations on what these offenses are called.  If you or someone you know is facing a charge involving an allegation of a property crime, you need to speak with an experienced attorney without delay.

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