State v. Kroenung

188 S.W.3d 89, 2006 Mo. App. LEXIS 199, 2006 WL 400135
CourtMissouri Court of Appeals
DecidedFebruary 22, 2006
Docket27059
StatusPublished
Cited by2 cases

This text of 188 S.W.3d 89 (State v. Kroenung) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kroenung, 188 S.W.3d 89, 2006 Mo. App. LEXIS 199, 2006 WL 400135 (Mo. Ct. App. 2006).

Opinion

PER CURIAM.

Ian C. Kroenung (“Appellant”) appeals from the trial court’s denial of his motion to dismiss for lack of jurisdiction. He argues the trial court was without jurisdiction to proceed to a jury trial where he was charged with the Class B misdemeanor of property damage in the second degree, a violation of section 569.120. 1 Following the jury trial, Appellant was convicted of the aforementioned crime and sentenced by the trial court to ninety days in the county jail and a $500.00 fine. We affirm.

The record reveals that on March 10, 2004, the prosecuting attorney for Cape Girardeau County, Missouri, filed a “Complaint and Request for a Warrant in a Felony Case” against Appellant in the Circuit Court of Cape Girardeau County, Missouri, in case number 04G9-CR00377, and charging Appellant with property damage in the first degree, a violation of section 569.100. 2 Specifically the complaint alleged that on September 17, 2003, “[Appellant] knowingly damaged windows on the business of Pro Line Janitorial ... by striking it with a slingshot and steel ball bearings, causing the window to break, and the damage to such property exceeded seven hundred and fifty dollars.” A warrant was thereafter issued by Cape Girar- *91 deau Associate Circuit Court Judge Gary A. Kamp. In the probable cause statement attached to the warrant, it was set out that Appellant, who had been interviewed at the Cape Girardeau Police Department, had “admitted under Miranda [ 3 ] that he had been involved in several incidents of property damage in the City of Jackson,” Missouri. (Emphasis added).

The following day, on March 11, 2004, H. Morley Swingle (“Swingle”), the prosecuting attorney for Cape Girardeau County, filed a motion for the appointment of a special prosecutor. In his motion, Swingle stated that one of the windows allegedly broken by Appellant belonged to a vehicle he owned; accordingly, Swingle requested a special prosecutor be appointed so as to avoid the appearance of a conflict of interest. The trial court granted Swingle’s request and entered an order appointing Stephen Gray (“Gray”), Prosecuting Attorney for Bollinger County, Missouri, to serve in Swingle’s stead “With regard to this case and any other allegations of property damage or vandalism allegedly committed by this [Appellant] in Cape Girardeau County, Missouri.” (Emphasis added.)

Following a preliminary hearing, the trial court dismissed the charges against Appellant “for lack of probable cause.”

Thereafter, on October 12, 2004, Gray filed an information against Appellant in case number 04G9-CR01839, and alleging that on October 15, 2003, Appellant “caused damage to Jackson Glass by shooting and shattering [an] entrance door ...” and, thus, committed the Class B misdemeanor of property damage in the second degree, a violation of section 569.120. 4

On November 17, 2004, Appellant filed a “MOTION TO DISMISS FOR LACK OF JURISDICTION ON PART OF THAT PERSON SUBSCRIBING AS AND PURPORTING TO BE ‘PROSECUTING ATTORNEY OF BOLLINGER COUNTY’ IN THAT HE HAS NO AUTHORITY TO PROSECUTE A CASE IN CAPE GIR-ARDEAU COUNTY, FOR ACTS OCCURRING IN CAPE GIRARDEAU COUNTY.” In his motion, Appellant asserted that Gray had no legal authority to bring criminal charges against Appellant in a county in which he was not the prosecuting attorney.

In its November 22, 2004, Judgment Order denying Appellant’s motion, the trial court stated that it had previously “appointed Stephen Gray, Prosecuting Attorney for Bollinger County, Missouri, as Special Prosecutor to investigate and prosecute not only a pending charge [the prior case that was dismissed] against [Appellant], but any other allegations that could arise against [Appellant] that at that time w[ere] unfiled.” The trial court also stated that the information filed by Gray on October 12, 2004, was performed “under the authority previously granted him under the previously signed order.” The trial court also noted that “[t]he signing of the filings [by Gray] as Prosecuting Attorney of Bollinger County, Missouri, was a typographical error that caused no prejudice to [Appellant].” As such, it granted Gray “leave to file an amended information and complaint to correct the typographical error. ...” Gray subsequently amended the information to state that “[t]he Prosecuting Attorney of the County of Bollinger *92 acting as Special Prosecutor in Cape Gir-ardeau County, State of Missouri, charges that [Appellant].... ”

On December 10, 2004, Appellant filed a motion for change of judge and a motion for change of venue. The motion was granted by the trial court and the case was transferred from the Circuit Court of Cape Girardeau County to the Circuit Court of Bollinger County, and assigned to Associate Circuit Judge Scott Thomsen. Appellant then filed a motion requesting that Judge Thomsen reconsider Appellant’s previously filed motion to dismiss for lack of jurisdiction. The motion was denied.

The case proceeded to a jury trial in the Circuit Court of Bollinger County. Appellant was found guilty as charged in the information and was sentenced as previously set out. This appeal by Appellant followed.

“The trial court’s decision whether to grant a motion to dismiss ... is reviewed for abuse of discretion.” State v. Sprinkle, 122 S.W.3d 652, 658 (Mo.App.2003). “A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances 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. Burns, 112 S.W.3d 451, 454 (Mo.App.2003).

Although Appellant alleges two points of trial court error, it appears there is no discernable difference in the two points. We shall address them as a single point. Appellant asserts the trial court erred “in failing to properly act upon [Appellant’s] motions to dismiss this cause or otherwise recognize the lack of authority of the person purporting to charge the Appellant by Information.... ” Appellant maintains that Gray

had no authority to bring such a charge in the Circuit Court of Cape Girardeau County as he was the prosecuting attorney of Bollinger County, Missouri[,] and not the Prosecuting Attorney of Cape Girardeau County ... nor was he properly authorized to act as a special prosecuting attorney in Cape Girardeau County nor did he within the (1) year statute of limitations ever purport to act as anything but the prosecuting attorney of Bollinger County.

Section 56.110 sets out that “[i]f the prosecuting attorney ... be interested ... in any case where such employment is inconsistent with the duties of his office ...

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Related

State v. Passley
389 S.W.3d 180 (Missouri Court of Appeals, 2012)
State v. Smothers
297 S.W.3d 626 (Missouri Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
188 S.W.3d 89, 2006 Mo. App. LEXIS 199, 2006 WL 400135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kroenung-moctapp-2006.