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Clayborn-Muldrow Motion To Dismiss
Clayborn-Muldrow Motion To Dismiss
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
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
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
I. Lack of Jurisdiction Under RSMo § 556.036 For the Original Information and
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
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.
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).
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
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
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
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.
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
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.
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
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
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
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
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.
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
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
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
30. Therefore, in the interest of justice, the information against the Defendant should
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
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,
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
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