Evidence Sufficient for Felony Stealing
Gary Turner was convicted by a jury of felony stealing. On appeal, his sole argument was that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove the value of the stolen property.
The evidence at trial showed that a security camera recorded Turner on the victim’s property. The camera system notified the property owner who contacted law enforcment. The Washington County Sheriff’s Department was notified, and when deputies arrived, they found Turner and another individual on the driveway with a utility terrain vehicle (UTV) and a dirt bike. Turner and his companion fled from the deputies in the UTV, and Turner was forcibly stopped and detained. He was convicted of class D felony stealing and sentenced to 18 years in prison.
Although Turner did not raise this specific claim at trial, an appellate court will review a challenge to the sufficiency of the evidence even when it was not preserved.
Under Missouri law, “value” is defined in Section 570.020(1), RSMo, as “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.” Market value may be established through direct or circumstantial evidence. State v. Perrey, 711 S.W.3d 483, 488 (Mo. App. E.D. 2025). When value is being determined the jury may also draw reasonable inferences from its “common sense and life experiences,” and the testimony of a single witness is sufficient to support the valuation of stolen property.
Here, the victim testified to the value of numerous items, which together easily exceeded the statutory threshold. The State also introduced photographs of the items that showed their condition and further supported their value. The jury therefore had more than sufficient evidence from which to reasonably determine the value and condition of the stolen property. Missouri v. Turner, (ED 113893, 10/20/26)
Judicial Recusal
Boyd Wilson was convicted by a jury of first-degree statutory sodomy for having deviate sexual intercourse with a person under 14 years of age, and of two counts of third-degree child molestation. He was sentenced to 10 years’ imprisonment on each count, to be served concurrently.
After the verdict, defense counsel filed a motion asking the judge to recuse from sentencing. The motion was based on a juror’s contact with defense counsel. The juror stated that the judge had shown overt hostility toward defense counsel and made disparaging comments about counsel in the jury’s presence, creating an atmosphere of bias that undermined the integrity of the proceedings. The juror was concerned that, because of the court’s conduct, the defendant did not receive a fair and impartial jury trial. The motion was overruled.
On appeal, the Southern District court stated that it would “presume the trial judge ‘acts with honesty and integrity and will not preside over a hearing in which the judge cannot be impartial.’” Harper, 739 S.W.3d at 196. A party challenging a judge’s impartiality bears the burden of overcoming that presumption by showing that, given the entire record, “a reasonable person would have factual grounds to find an appearance of impropriety and doubt the impartiality of the court.” Anderson, 402 S.W.3d at 91. Whether a judge should recuse is generally a “discretionary matter” best left to the judge. State v. Owens, 759 S.W.2d 73, 74–75 (Mo. App. S.D. 1988).
The standard for recusal is set out in the Code of Judicial Conduct. Under Rule 2-2.11(A), a judge shall recuse “in any proceeding in which the judge’s impartiality might reasonably be questioned.” A judge’s impartiality might reasonably be questioned when “the judge has a personal bias or prejudice concerning a party or a party’s lawyer.” Rule 2-2.11(A)(1). “The rule is not limited to actual prejudice,” but instead requires a finding of “an appearance of impropriety” sufficient to “doubt the impartiality of the court.” Anderson, 402 S.W.3d at 91 (quoting State v. Smulls, 935 S.W.2d 9, 17 (Mo. banc 1996)). However, “[t]he appearance of judicial prejudice does not follow from every negative or hostile comment made by a trial judge against a party.” State v. Jenkins, 675 S.W.3d 704, 709 (Mo. App. W.D. 2023). Rather, disqualifying prejudice results from an “attitude of personal enmity towards the party or in favor of the adverse party to the other’s detriment.” Id.
The Southern District reviewed the record extensively to determine whether it reflected any partiality by the trial court. The defendant did not claim that the court held a personal bias or prejudice against him; instead, he alleged that the court repeatedly chastised and admonished defense counsel. Even assuming the remarks were critical or hostile, they did not clearly demonstrate personal bias or prejudice. Nor did the sentence itself suggest bias: although the maximum penalty was life imprisonment, the court imposed concurrent 10-year sentences rather than consecutive ones.
The Southern District affirmed the judgment. Missouri v. Wilson, (SD38952, 10/8/26)
Detention of Minors
We have previously covered this case. Bart Rockett and Kami Ballard divorced in Missouri but continued working together to guide their children, who were aspiring performers hoping to succeed in Hollywood. Ballard was awarded primary custody, with Rockett having custody at the beginning of each month and during television pilot season.
At the end of a custody hearing, the children refused to leave with Ballard. Judge Eighmy introduced himself to the children and asked them to follow him to a conference room. He told them they were required to obey his order and that refusing could result in their placement in foster care. He then threatened to put them in jail if they did not comply, and ultimately ordered that they be taken into custody and placed in a detention cell. After about 20 minutes in the cell, the children agreed to leave with their mother.
Rockett sued Judge Eighmy in federal district court, alleging violations of the children’s Fourth Amendment rights. The judge filed a motion to dismiss on the basis of judicial immunity which was denied, and the Eighth Circuit affirmed, holding that the children were beyond the judge’s contempt power and that judges do not do double duty as jailers. Judge Eighmy raised judicial immunity again on summary judgment, along with qualified immunity. Both arguments failed, and the case proceeded to trial. The jury returned a verdict in the children’s favor, awarding $5,000 to each child, and the court awarded $362,637.22 in attorney fees.
On appeal, Judge Eighmy again asserted judicial immunity, arguing that new facts developed at summary judgment and after trial would change the court’s earlier determination. Because he did not raise judicial immunity at the close of the evidence or after the verdict this issue was not preserved for review.
Judge Eighmy did preserve his qualified-immunity defense. Qualified immunity requires the court to determine whether the defendant violated a constitutional right and whether that right was clearly established at the time. Hight v. Williams, 164 F.4th 672, 675 (8th Cir. 2026). The court held that Judge Eighmy violated the Fourth Amendment by unreasonably seizing the children. No case permits a judge to detain children in a holding cell for refusing to leave with a parent, and a reasonable judge should have known better. Criminal contempt was not an option because the children were neither parties to the custody case nor present in the courtroom. The law was therefore clearly established enough to place the issue “beyond debate.” Taylor v. Barkes, 575 U.S. 822, 825 (2015). The judgment was affirmed. Rockett v Eric Eighmy, (8th 25-1664, 10/13/26)
Disqualification of Prosecutor
Francis Kempker was indicted for felony rape, sodomy, kidnapping, and armed criminal action. Several months later, the Cole County Prosecuting Attorney’s Office filed additional charges alleging that he had raped three other women. A jury ultimately found Kempker guilty of two counts of first-degree rape.
After he was charged, Kempker moved to disqualify the assistant prosecuting attorney (APA) who had been involved in filing the charges. He asserted that the APA had previously worked at a private law firm that represented him, that she had appeared on his behalf, and that he had discussed the details of his case with her. His only supporting evidence was a docket sheet showing that the APA had entered an appearance for him. Kempker argued that the Missouri Rules of Professional Conduct prohibited the APA from participating in his prosecution.
At the hearing on the motion, the APA told the court she had no recollection of appearing on Kempker’s behalf until he raised it. She nonetheless withdrew from the cases, another prosecutor entered, and she agreed to screen herself from any further involvement. By agreement of the parties, the court did not rule on the motion, and Kempker’s attorney advised the court that these measures were sufficient.
About two months after filing the motion to disqualify, and a few weeks before trial, Kempker moved to dismiss all pending charges for prosecutorial misconduct. The motion repeated his earlier allegations and further alleged that the investigation leading to the additional charges began at the APA’s request to a detective. He also stated that he had learned the APA signed a search warrant authorizing a search of items previously seized.
The prosecuting attorney’s office responded that the APA did not know Kempker and was unsure she had ever seen him in court. She had received no privileged communications beyond learning the next court date. Although she did not believe an actual conflict existed, she withdrew to avoid any appearance of impropriety. The office further stated that the additional investigation began at a detective’s request, and that the APA had neither the authority nor the ability to direct whom law enforcement investigated.
The trial court denied the motion to dismiss but referred the matter to the presiding judge for reassignment from the Cole County Prosecuting Attorney’s Office to a special prosecutor or the Attorney General. The case was assigned to the Attorney General’s Office, which then sought a writ of prohibition from the Missouri Supreme Court to prevent the disqualification of the Cole County office. The Supreme Court issued a preliminary writ. Before a permanent writ issued, the trial court vacated its order, and the case proceeded to a jury trial with the Cole County office continuing as prosecutor.
On appeal, Kempker’s primary argument was that the trial court erred in failing to disqualify the Cole County Prosecuting Attorney’s Office based on the APA’s prior representation of and connection to him.
The Western District explained that “a trial court’s ruling on a motion to disqualify is reviewed for an abuse of discretion.” State v. Moore, 694 S.W.3d 79, 84 (Mo. App. W.D. 2024). “A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Lemasters, 456 S.W.3d 416, 420 (Mo. banc 2015) (quoting State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004)).
Lemasters sets out the framework for deciding whether to disqualify an entire prosecutor’s office. First, the court must determine whether a particular attorney in the office has a conflict that prohibits that attorney’s participation in the case, considering the Missouri Rules of Professional Conduct. Second, the court must determine whether that attorney’s conflict should be imputed to the entire office. “A conflict can be imputed in one of two ways: either (1) by the Rules of Professional Conduct, or (2) by the appearance of impropriety test which is whether ‘a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial’ to the defendant.”
Kempker argued that the APA violated Rule 4-1.9(a), but the Western District declined to consider that argument because it was raised for the first time on appeal. The court did consider whether a conflict existed under Rule 4-1.9(b) and found none: the APA had no recollection of Kempker, and her only contact with him, if any, was to provide the next court date. Kempker offered no evidence that he shared confidential information with the APA or that she otherwise obtained any.
The court further explained that even if the APA had a conflict, the Rules of Professional Conduct would not require disqualification of the entire office, because “under Rule 4-1.11(d), where a lawyer represents the government after having served clients in private practice, . . . former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.” Rule 4-1.10.
Applying the Rules of Professional Conduct, the court held that the Cole County Prosecuting Attorney’s Office was not required to be disqualified. Missouri v. Kempker, (WD87593, 9/22/26)
Fictitious Case Citations
Willie Fortune alleged that CTA Certified Transmission (CTA) damaged his vehicle when he brought it in for transmission repairs. He filed a small claims petition against CTA, and the small claims court ruled in CTA’s favor. Fortune sought a trial de novo, and the trial court again entered judgment for CTA. Fortune appealed to the Western District.
Fortune raised six points on appeal, but before reaching them, the court found that his brief did not comply with Rule 84.04. Failure to substantially comply with Rule 84.04 preserves nothing for review and is grounds for dismissal. State ex rel. Family Support Division v. Shipley, 605 S.W.3d 92, 95. (Mo. App. 2020)
The court identified significant errors in the brief. Fortune failed to list nine cases in his table of authorities. The cases he did cite bore no relation to the legal issues for which they were cited, and he misstated their holdings. In addition, three cases cited in his brief were entirely fictitious.
Given the pervasive rule violations, erroneous citations, and reliance on fictitious cases, the court concluded that the appeal constituted an abuse of the judicial system and dismissed it. Fortune v. CTA Certified Transmission, (WD88370, 9/1/2026)
