Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable Patricia S. Joyce, Circuit Judge.
For Appellant: William P. Nacy.
For Respondent: Chris Koster, Evan J. Buchheim.
Nancy Steffen Rahmeyer, P.J. -- Opinion Author, Daniel E. Scott, J. -- Concurs, William W. Francis, Jr., C.J. -- Concurs.
Nancy Steffen Rahmeyer, P.J.
Damien T. Bryan (" Appellant" ) was convicted after a jury trial of two counts of second-degree murder and one count of felony driving while intoxicated as a result of a multi-vehicle accident. Appellant brings two claims of error: (1) that the trial court did not have jurisdiction because " none of the counts of the 'first substituted indictment' were designated as '[a] true bill' and were not signed by the grandjury foreman" ; and (2) that the trial court erred in denying Appellant's motions for judgment of acquittal because the State's evidence was legally insufficient in that, while he may have been shown to be intoxicated at some unknown time at least an hour after a trooper was called to the accident scene, there were no signs of intoxication at the accident scene and no evidence that Appellant had no access to methamphetamine between the accident and his observed intoxication. We reject both claims and affirm the judgment.
Appellant's first point is procedural: he claims that the court did not have jurisdiction because the substituted indictment, to which no objection was ever made, was insufficient. Citing to section 545.040, Rule 23.01, and State v. Horn, 336 Mo. 524, 79 S.W.2d 1044 (Mo. 1935), Appellant claims the insufficient indictment is a nullity. Appellant ignores the line of cases that hold a defendant's failure to object to a substitute indictment before trial renders the claim unreviewable. In State v. Parkhurst, 845 S.W.2d 31, 34 (Mo. banc 1993), the Supreme Court overruled a line of cases that had held that jurisdiction is dependent upon the sufficiency of the indictment or information. State v. Love, 88 S.W.3d 511, 516 n.4 (Mo. App. S.D. 2002); see also State v. Smith, 242 S.W.3d 735, 740 (Mo. App. S.D. 2007) (citing Rule 24.04(b)(2)). Appellant " waived his right to object to the information, 'except for objections that the indictment or information fails to show jurisdiction or to charge an offense.'" Smith, 242 S.W.3d at 740 (quoting State v. Simpson, 846 S.W.2d 724, 728 (Mo. banc 1993)).
As important as these cases is J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). In Wyciskalla, the Supreme Court held:
As discussed in In re Marriage of Hendrix, 183 S.W.3d 582 (Mo. banc 2006), Missouri courts recognize two kinds of jurisdiction: subject matter jurisdiction and personal jurisdiction. These two kinds of jurisdiction--and there are only two for the circuit courts--are based upon constitutional principles. Personal jurisdiction is, for the most part, a matter of federal constitutional law. Subject matter jurisdiction
is governed by article V of the Missouri Constitution.
Id. at 252. It states further what cases Article V covers:
In contrast to the federal system, the subject matter jurisdiction of Missouri's courts is governed directly by the state's constitution. Article V, section 14 sets forth the subject matter jurisdiction of Missouri's circuit courts in plenary terms, providing that " [t]he circuit courts shall have original jurisdiction over all cases and matters, civil and criminal. Such courts may issue and determine original remedial ...