IN THE CIRCUIT COURT OF THE CITY OF ST.

LOUIS
STATE OF MISSOURI

STATE OF MISSOURI, )
)
Plaintiff, )
) Cause No. 2122-CR00515
vs. )
)
JATONYA CLAYBORN-MULDROW ) Division: 25
)
Defendants. )

MOTION TO DISMISS

COMES NOW the Defendant, by and through the undersigned counsel Peter O.

Bruntrager, and respectfully moves this Court under Rule 24.04 to dismiss the above titled action

for lack of jurisdiction under RSMo § 556.036, defective pleadings, and as justice demands, and

provides the following:

1. Charging documents were filed on March 16, 2021, accusing the Defendant of one

count of Tampering with a Victim, a class A Misdemeanor for an incident alleged to have occurred

between December 19, 2019 and March 16, 2020 under RSMo § 575.270.

2. Specifically, the information alleges that “the defendant attempted to dissuade T.L.

a victim of the offense of sexual misconduct in the first degree, from making a report of sexual

misconduct in the first degree to any peace officer, law enforcement officer, prosecuting agency,

or judge.”

3. The State filed a probable cause statement for this sole charge on March 16, 2021

and subsequently filed an amended probable cause statement on March 17, 2021. Notably, the

amended probable cause filing changed a line within the statement, sworn under threat of perjury

by Sergeant Ernest Church, from, “Defendant did provide the victim with information about how

to report the sexual assault to internal affairs investigators” to instead state “Defendant did not
provide the victim with information about how to report the sexual assault to internal affairs

investigators.”

4. Both probable cause statements allege that the Defendant last contacted the victim

on March 15, 2020. On March 16, 2020, the defendant is alleged to have “appeared at the internal

affairs unit and asked who was investigating the complaints.”

5. The Internal Affairs Division of the Saint Louis Metropolitan Police Department is

comprised of police officers of the department that conduct both internal and criminal

investigations. The officer who signed the probable cause statement in this matter, Sergeant Ernest

Church, is assigned to the Internal Affairs Division.

I. Lack of Jurisdiction Under RSMo § 556.036 For the Original Information and

Probable Cause Statement Filed on March 16, 2021

6. Under RSMo § 556.036, the time limitations for the State to file a case on a

misdemeanor are capped at one year, at which point a court of law lacks jurisdiction over the

matter and is compelled to dismiss those charges. See State ex rel. Morton v. Anderson, 804 S.W.2d

25 (Mo. banc 1991).

7. It is not alleged that the Defendant had any contact with the victim following March

15, 2020.

8. Therefore, on March 16, 2021, when charges were filed under the above styled

case, the Statute of Limitations had expired, and this Court had no jurisdiction to hear the matter.

The Information should therefore be dismissed with prejudice.

II. The State’s Criminal Information is Fatally Flawed

9. Article I, § 18(a) of the Missouri Constitution guarantees a defendant the right “to

be informed of the nature and cause of the accusation.” Missouri Supreme Court Rule 23.01
requires an information to “[s]tate plainly, concisely, and definitely the essential facts constituting

the elements of the offense charged.” An indictment or information is generally sufficient when

“it is substantially consistent with the forms of indictments or informations which have been

approved by the Missouri Supreme Court.” Griffin v. State, 185 S.W.3d 763, 766 (Mo. App. E.D.

2006).

10. “The basic purpose of an indictment or information is to inform the defendant of

the charges against him.” DeLuca v. State, 465 S.W.2d 609, 612-3 (Mo. banc 1971). “[T]he test

of the sufficiency of an indictment is whether it contains all the essential elements of the offense

as set out in the statute and clearly apprises defendant of the facts constituting the offense.” State

v. Metzinger, 456 S.W.3d 84, 91 (Mo. App. E.D. 2015). Additionally, “[e]ssential elements of the

crime charged which are missing from the information cannot be supplied by intendment or

implication.” State v. Atterberry, 659 S.W.2d 339, 341 (Mo. App. S.D. 1983).

11. The probable cause statement alleges “defendant J.M. invited the victim to lunch

and questioned her for nearly two hours about the sexual assault; defendant told T.L. it was just a

misunderstanding and advised T.L. to call defendant L.L. and explain to him the misunderstanding.

Defendant did provide the victim with information about how to report the sexual assault to

internal affairs.” The Probable cause statement was amended to allege “defendant J.M. invited the

victim to lunch and questioned her for nearly two hours about the sexual assault; defendant told

T.L. it was just a misunderstanding and advised T.L. to call defendant L.L. and explain to him the

misunderstanding. Defendant did not provide the victim with information about how to report the

sexual assault to internal affairs investigators.”

12. While the charging document is unclear if the completed act or if an attempted act

is charged, if the intended charge is tampering with a victim, the informations and probable cause
statements are fatally flawed in that there is no completed act of dissuading the victim from

reporting her sexual assault.

13. If the intended charge is attempted tampering with a victim, no facts are pled stating

that the Defendant asked (see State v. Sprano, 588 S.W.3d 215 (Mo. App. S.D. 2019)), threatened

(see State v. Hedge, 793 S.W.2d 478 (Mo. App. E.D. 1990)), bribed, (see State v. Anding, 689

S.W.2d 745 (Mo. App. W.D. 1985)) directed (see State v. Plopper, 489 S.W.3d 848 (Mo. App.

S.D. 2016)), or otherwise intended to dissuade the victim from reporting her sexual assault. Any

such finding of dissuasion could only be made by supplying intentions or implications, in violation

of Missouri Law.

14. In State v. Metzinger, the Court dismissed the information alleging charges of

making a terrorist threat because the facts alleged in the pleadings were insufficient to support the

charge. Metzinger, 456 S.W.3d at 99. The Court held that “an indictment is bad and is properly

dismissed if all the facts stated are true, and yet the accused can be innocent of the crime intended

to be charged.” Id, at 93.

15. Finally, “trial courts have the authority to dismiss a criminal information or

indictment based on its sufficiency.” Id, at 98 (citing State v. Fernow, 328 S.W.3d 429 (Mo. App.

E.D. 2010)). And that dismissal may be with or without prejudice. Id.

16. In this matter, the State relies solely on the facts provided regarding the victim’s

lunch with the Defendant. Rather than stating affirmatively that Defendant told the victim not to

report the incident, warned what might happen if she reported the incident, or threatened her to

stay quiet, the State only mentions that the Defendant called the incident a misunderstanding and

that the victim should call L.L. This Court then has two sworn statements in front of it contradicting

themselves as to whether the Defendant provided contact information for the victim to report the
incident. Those facts, even if true, do not support conviction for tampering or attempted tampering

with a victim.

17. Therefore, this Court should dismiss the criminal charges against the Defendant

with prejudice.

III. The State’s Criminal Information Fails to State a Charge

18. “An information which does not allege the essential elements of the offense charged

is void.” State v. Ladner, 613 S.W.2d 951, 952 (Mo. App. E.D. 1981). See Mo. Sup. Ct. R.

23.01(b)2. Black’s Law Dictionary provides that “void means an instrument or transaction is so

nugatory and ineffectual that nothing can cure it; voidable, when an imperfection or defect can be

cured…” Black’s Law Dictionary, 2nd Ed.

19. An essential element of “Tampering with a Victim,” as charged on both the

information and amended information in this matter is that the Defendant “purposefully prevented

or dissuaded [the victim] from … making a report of [sexual misconduct in the first degree] to any

peace officer, law enforcement officer, prosecuting attorney, or judge.” See MACH-CR 29.87.

The crime of “Attempted Tampering with a Victim” requires modification per MACH-CR 18.03.

See MACH-CR 29.87, notes on use 3. Importantly, “attempt, under sec. 564.011 [now 562.012],

has only two elements: (1) the defendant has the purpose to commit the underlying offense, and

(2) the doing of an act which is a substantial step toward the commission of that offense.” State v.

Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999).

20. Modification of MACH-CR 29.87 to charge an attempted crime requires a brief

description of the Defendant’s conduct which constitutes a “substantial step towards the

commission of [sexual misconduct in the first degree] and was done for the purpose of committing

such [sexual misconduct in the first degree].” See MACH-CR 18.03.

 21. The State has charged, based on the Court’s charge code and title section, the

completed act of tampering with a victim. If this is the intended charge, the State has failed to

plead the essential element of preventing or dissuading the victim from reporting the offense of

sexual misconduct in the first degree.

22. However, the language used by the State and the facts of the supported pleadings

suggest the intended charge is attempted tampering with a victim. The State of Missouri requires

pleadings on attempted crimes to specify the conduct of the Defendant which is done in an effort

to complete the crime. The State has failed to plead the act that was a substantial step toward the

commission of the offense.

23. Missouri has clear approved instructions when it comes to charging tampering with

a victim or attempted tampering with a victim. Rather than do so, the State simply removed

language from approved charge language and added the term “attempted,” ignoring the guidelines

of the patterned instructions.

24. Therefore, the State’s charging documents do not allege the essential elements of

the tampering with a victim or attempted tampering with a victim and are void.

IV. Justice Demands this Information be Dismissed

25. The defendant is charged with one count of tampering with a victim wherein the

alleged incident which victimized T.L. occurred on December 15, 2019. The Defendant for that

act, L.L., is charged under 2122-CR00517 for one count of sexual misconduct in the first degree,

a Class B misdemeanor, charged on March 17, 2021, more than a year after the alleged incident

and outside the statute of limitations.

26. Missouri Law has clearly contemplated a situation where the underlying charges

for a tampering with a victim charge result in acquittal. The tampering with a victim charges are
always subsequently dismissed with prejudice. See State ex rel. Seals v. Holden, 579 S.W.3d 235

(Mo. App. S.D. 2019); State v. Baldwin, 507 S.W.3d 173 (Mo. App. W.D. 2017); State v. Owens,

270 S.W.3d 533 (Mo. App. W.D. 2008); State v. Dooley, 851 S.W.2d 683 (Mo. App. E.D. 1993).

27. The investigating officers have been investigating the incident for which the

Defendant is charged for over a year at this point referred charges to the Circuit Attorney’s Office

in September of 2020. The Circuit Attorney’s Office subsequently allowed the statute of

limitations for the December 15, 2019 incident to pass without pursuing charges.

28. The Circuit Attorney’s Office made a clear discretionary decision to not pursue the

underlying charges in this matter. Tampering with a victim charges require that the witness who

is tampered with be a victim of a crime and it can be assumed that the Circuit Attorney’s Office

believed there was no crime committed or the incident surely would have been charged while this

Court had jurisdiction to hear it.

29. Alternatively, if the Circuit Attorney’s Office is going to argue that they did not

have sufficient evidence to support criminal charges stemming from the underlying incident until

after the Statute of Limitations had passed, it would be disingenuous and unjust to require that the

Defendant knew a crime had occurred and therefore T.L. was a victim of that crime when the

Circuit Attorney’s Office themselves did not know.

30. Therefore, in the interest of justice, the information against the Defendant should

be dismissed with prejudice.

V. Conclusion

31. The State filed its original charges on March 16, 2021 outside the one-year statute

of limitations granted to misdemeanors under Missouri law due to the fact that the alleged criminal
contact with the victim is pled as occurring on March 15, 2020. This Court lacks jurisdiction to

hear the matter and must dismiss it with prejudice.

32. The State’s information and probable cause statements, both original and amended,

are insufficient as a matter of law due to a failure to plead the necessary elements and facts to

support conviction of either a tampering or attempted tampering with a victim charge. Therefore,

this Court should dismiss the pleadings with prejudice.

33. Additionally, the State’s filed charging documents are void as they fail to comport

with Missouri Approved Charging language and omit essential elements and facts required to be

pled on criminal informations. Therefore, this Court should dismiss the pleadings with prejudice.

34. The State allowed the statute of limitations to pass on the underlying charges for

the matter the Defendant is charged without taking action. Due to their decision to not prosecute

the underlying incident, they should be barred from prosecuting this incident and the pleadings

should be dismissed with prejudice.

WHEREFORE, the Defendant respectfully requests this Court find it lacks jurisdiction over these

proceedings, that the State’s pleadings are insufficient, and that justice demands the charging

instruments be dismiss, and, for the foregoing reasons dismiss the information with prejudice, and

any additional relief or sanctions this Court deems necessary.

BRUNTRAGER & BILLINGS, P.C.

/s/ Peter O. Bruntrager

Peter O. Bruntrager, #67974
Attorney for Plaintiff
225 S. Meramec Ave., Suite 1200
Clayton, MO 63105
(314) 646-0066
(314) 646-0065 Fax