Section 29.14 Scope of Review

• Library: Criminal Practice 2012 Supp

VIII. (§29.14) Scope of Review

Under Rule 84.04(d) and Rule 84.13(b), the appellant has the burden of stating the legal reasons for the claim of reversible error, which is error that materially affected the merits of the action. Failure to comply with Rule 30.06(c) will lead to possible dismissal of the appeal or the application of plain error review. Rule 84.14; see:

· State v. Cella, 32 S.W.3d 114, 119 (Mo. banc 2000)

· State v. Evans, 992 S.W.2d 275, 285 (Mo. App. S.D. 1999)

· State v. Boyle, 970 S.W.2d 835, 836 (Mo. App. E.D. 1998) (the appellate court has no duty to resort to the argument section of the appellant’s brief to ascertain wherein and why the appellant is claiming the trial court erred)

· State v. Dodd, 944 S.W.2d 584, 587 (Mo. App. S.D. 1997)

Generally, appellate review of a trial court decision requires the reviewing court to defer to the trial court’s factual findings and credibility determinations but to examine questions of law de novo. State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000). Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Green v. State, 32 S.W.3d 208, 210 (Mo. App. S.D. 2000). A trial court’s ruling on a motion to suppress is reversed only if it is clearly erroneous. State v. Tackett, 12 S.W.3d 332, 336 (Mo. App. W.D. 2000). A finding is clearly erroneous when the reviewing court, after a review of the entire record, is left with the definite and firm impression that a mistake has been made. Peet v. State, 22 S.W.3d 792, 794 (Mo. App. S.D. 2000). Concerning the review of a suppression ruling, the appellate court is limited to determining whether there was sufficient evidence to support the ruling. State v. Hamilton, 8 S.W.3d 132, 135–36 (Mo. App. S.D. 1999). Because the appellate court acts as a reviewing court, the burden of persuasion is different from that at trial. In most situations, the appellate court will examine the evidence in the light most favorable to the state, and the appellant must persuade the court of the error. State v. Johnson, 447 S.W.2d 285 (Mo. 1969); State v. Adams, 537 S.W.2d 201 (Mo. App. S.D. 1976); State v. Oldham, 546 S.W.2d 766 (Mo. App. W.D. 1977).

The appellate courts have been reluctant to describe precisely the burden of persuasion that the appellant must carry and choose, instead talking in terms of “unfairness,” “prejudice,” and “heavy burden of proof.” State v. Nolan, 499 S.W.2d 240 (Mo. App. E.D. 1973); State v. Leady, 543 S.W.2d 788 (Mo. App. E.D. 1976); State v. Gibson, 502 S.W.2d 310 (Mo. 1973); State v. Belleville, 530 S.W.2d 392 (Mo. App. E.D. 1975). There is a presumption that errors during a criminal trial are prejudicial. State v. Spencer, 472 S.W.2d 404 (Mo. 1971); State v. Allen, 246 S.W. 946 (Mo. 1922). The courts, however, regularly find that the error was harmless or that it was an error without prejudice. State v. Smith, 477 S.W.2d 67 (Mo. 1972).

The appellate courts will also look most closely at the appellant’s position in the matter and determine whether the appellant has standing to complain of the alleged error. This often can be viewed in several ways, including whether:

· the appellant was materially affected by...