Appeals court convenes in Nevada

Friday, April 27, 2007
Crystal D. Hancock/Daily Mail Judges of the Missouri Court of Appeals, Western District, held court proceedings at Cottey College Recital Hall Wednesday. From left are Judge Lisa White Hardwick , Judge Harold L. Lowenstein and Judge Joseph M. Ellis.

By Crystal D. Hancock

Nevada Daily Mail

The Missouri Court of Appeals, Western District, held court at Nevada's Cottey College Recital Hall Wednesday. The honorable Judge Harold L. Lowenstein, Judge Joseph M. Ellis and Judge Lisa White Hardwick presided the hearings. The Western District holds oral arguments monthly, and the public is always welcome to attend arguments whether they are held at the courthouse in Kansas City or other locations in the district, such as Cottey's campus.

The court especially welcomes student groups. Bronaugh students attended the hearings in Nevada and seemed very pleased with what they experienced. Bronaugh teacher, Deb Zoglmann said, "We thought it was great. The students really enjoyed it and want to thank the judges for visiting with them about the process of appeals court and also for allowing the attorneys to give background information before each case appeal was heard so that we could keep up with what they were discussing. The experience also gave the freshman students in attendance some knowledge they can use later when they go into American History courses as sophomores."

Bronaugh ninth grader Cody Byram said, "It's different from what you see in (circuit or trial) court. It's cool to see something like that here. Things like that don't really come to Nevada very often." After views two cases, students said they had "no idea" how the court would rule in the cases, but some indicated great interest in knowing the outcome later.

The first appeal case heard was that of State of Missouri vs. Steven Bybee. Bybee was found guilty, after a jury trial, in the 28th Circuit Court, in a case presided over by Judge James Bickel, of involuntary manslaughter and two counts of second degree assault. He was sentenced to seven years for the involuntary manslaughter charge, and five years on each count of second degree assault. The sentences were to run concurrently. On Nov. 24, 2004, Bybee and three other teenagers were driving to a friend's house. Bybee was driving at a high rate of speed, lost control of the car and crashed. A highway patrolman arrived on the scene and initially arrested Bybee for driving while intoxicated. One of the passengers in the car died and two others were injured. An accident reconstruction was done of the crash. The report indicated that at the time of the accident the car was traveling at over 100 mph, went airborne and then rolled and tumbled over a distance of approximately 300 feet.

Bybee's attorney argued on appeal that the trial court erred in admitting State's Exhibit No. 3, the accident reconstruction report, into evidence because the expert witness who wrote the report improperly instructed the jury on the law, the report contained improper hearsay testimony and it included speculation that alcohol, speed, driving skill and lack of safety restraints were contributing factors. "The highway patrolman who formed the report testified in court that it was only an educated opinion and being that, it was not fact, just an opinion. Therefore, these opinions should not have been put into the official highway patrol crash report. The officer basically wrote that there was no doubt that Steven was the driver, when in fact, this was just the opinion of that officer. That is why the report is such poison," argued Bybee's attorney of Elliston Law Offices of Webb City.

The Appeals Court will make a decision as to whether or not the crash report should have been taken into evidence and used against Bybee during the trial, but noted that the presiding judges are more than qualified to make this decision that may effect the length of Bybee's sentence.

Martin Marietta Materials, Inc. and state of Missouri vs. Board of Zoning Adjustment of Cass County was the second appeal case heard. Martin Marietta Material, Inc., filed an application for a special use permit with the Cass County Board of Zoning Adjustment to expand its rock quarry operations on to adjacent land. The BZA ultimately denied the permit. MMM appealed the decision to the Circuit Court of Cass County. The circuit court reversed and remanded the BZA's decision and ordered the permit to be issued to MMM, saying the BZA erred in denying MMM's 2004 application for a special use permit for various reasons.

Tammy Durbin (Lepley) vs. Mark Durbin was the third appeal heard. On July 10, 1998, the parties were granted a divorce. The parties were granted joint legal custody of their three children, and both are now appealing court decisions on custody.

The final case heard by Missouri Appeals court Wednesday was Mick Bednara vs. Fred Bashore. Bednara entered into a contract to purchase real estate located in Miller County from Bashore. Language in the contract stated that modular homes, mobile homes, or manufactured homes were not permitted on the property. The appeal centers around details of terms in a contract.

The 11 judges who serve the Western District have almost 300 years collective legal experience and over 130 years collective judicial experience to serve the citizens of Missouri. Before their appointment to the court of appeals, current judges served as municipal judges and circuit judges, practiced law with small and large firms and in rural and urban areas of the Western District, served in state administrative agencies and in county and state legislatures. The Western District is presented with a wide variety of cases, including family law, juvenile and adoption law, criminal law, personal injury law, workers compensation and unemployment law. However, because the state capitol, Jefferson City, is within its district, the Western District receives and disposes of the vast majority of appeals arising from state administrative agencies.

For more information on the Missouri Court of Appeals, or for locations and lists of cases scheduled for argument, visit www.courts.mo.gov.

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